There’s Bipartisan Agreement that Remote ID Is Taking Way Too Long

Last week, the Department of Transportation’s Report on Significant Rulemakings revealed that the timing for issuance of the Federal Aviation Administration’s (FAA) Notice of Proposed Rulemaking (NPRM) on Remote ID for unmanned aircraft systems (UAS, or drones) had slipped again, this time from September to December 2019. Speaking at a conference in Seattle yesterday, FAA Chief Counsel Arjun Garg emphasized that the FAA remained committed to issuing the Remote ID NPRM as soon as possible, but that they “want to get it done right,” and no one would benefit from an NPRM that failed to address all of the relevant issues. 

The delay has attracted attention on Capitol Hill.  Also yesterday, Senators Thune (R-SD) and Markey (D-MA) sent a letter to the FAA seeking answers to several questions about the timing and future of Remote ID. 

Remote ID is a big issue that is essential to the future of drone regulation, and the continued delay on the rulemaking has been a source of frustration for the industry.  Here’s what you need to know:

What is Remote ID?  Remote ID is shorthand for a system that people on the ground can use to determine the identity of an unmanned aircraft.  While everyone agrees that Remote ID is necessary, there has been less consensus on how best to implement the system, both within the UAS industry and among the various federal agencies that have responsibilities over UAS operations.

How does Remote ID fit into the regulatory framework for drone regulation?  Remote ID has been part of the UAS policy discussion for a long time.  The FAA has had rules requiring registration of UAS for years now, but physically marking drones with registration numbers only really helps in lost drone incidents; small numbers affixed on the body of a small unmanned aircraft are generally not prominent enough to be read from the ground.  Recognizing the need for a mechanism that would allow relevant authorities to determine drone provenance from a distance, the 2016 FAA Extension, Safety and Security Act of 2016 required the FAA to develop remote ID standards.  Federal security agencies have made clear that Remote ID is a necessary precursor to any enabling regulations beyond Part 107, the FAA’s existing regulations which were adopted in 2016 and allow commercial drone operations subject to significant operating limitations, including that flights remain within visual line of sight of the operator, are not conducted over people, and are conducted only during daylight hours.  The security agencies’ concerns about broadly enabling more expansive UAS operations absent a federal Remote ID policy has significantly delayed the FAA’s efforts to promulgate rules that would relax Part 107’s restrictions, including by delaying an NPRM on flights over people for about two years, from January 2017 to January 2019.  The FAA has made clear it won’t act on flights over people or adopt any other rules until standards for Remote ID are in place (though it’s unclear exactly what form these standards will take). 

Remote ID also will likely play a significant role in increasing state and local government (and public) acceptance of UAS operations and, accordingly, reaching equilibrium on the balance of authority between federal and state and local governments.  Many state and local officials have signaled that the perceived anonymity of existing UAS operations is one of the biggest concerns their constituents have.  Remote ID holds the potential to alleviate these worries, and to aid in law enforcement against unsafe operators—an activity that, in some form or another, will involve state and local governments.

What has the FAA done so far on Remote ID?  Consistent with the 2016 Extension Act, the FAA chartered an aviation rulemaking committee (ARC) in June 2017 to convene industry stakeholders and facilitate the development of Remote ID standards.  Ultimately, the ARC was unable to arrive at consensus on whether Remote ID should be supplied via a direct broadcast from the drone, or via a network connection. 

Late last year, the FAA issued a Request for Information to service suppliers, seeking information on how Remote ID might best be implemented.  Since then, the agency has been drafting an NPRM, which had been scheduled for release this month, but has now been pushed to December, after originally being slated for release last May.  However, the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget (OMB) has confirmed that the Remote ID NPRM is in fact under OIRA review, which is the last step before the item will be released in the Federal Register for public comment.

The FAA has also tasked the latest iteration of its industry-comprised Drone Advisory Committee (DAC) with figuring out ways to encourage stakeholders to adopt Remote ID on a voluntary basis, with the understanding that the rulemaking process will take a long time after the NPRM is released (whenever that ultimately occurs).  The DAC is wrapping up work on those recommendations, which will be released next month.

What does Congress want?  In broad terms, Congress wants Remote ID to be implemented as quickly as possible, consistent with its interest in facilitating full UAS integration into the national airspace.  The Hill acted last year to remove the biggest roadblock to Remote ID implementation, by eliminating a regulatory exemption for hobbyists that had been established in the 2012 FAA Modernization and Reform Act and would have made it difficult or impossible to impose Remote ID standards on UAS operated for recreational purposes.  Despite this legislative change in the 2018 FAA Reauthorization Act—passed into law nearly a year ago—the proposed rules still have not been released.

Indeed, yesterday’s letter is not the first time Congress has raised questions about Remote ID; back in April, Senators Thune and Markey sent a letter to Department of Transportation Secretary Elaine Chao expressing concerns about the delay at that point in the process. 

In the letter sent yesterday, Senators Thune and Markey raised a number of specific issues relating both to the prospective Remote ID rulemaking and to the FAA’s request that the DAC consider voluntary compliance measures. Specifically, the Senators posed five questions for the FAA, asking for a response by September 27:

1. How does the FAA plan to administer and facilitate any voluntary deployment of remote identification equipment to ensure these deployments are carried out in a nationally consistent manner?

2. Will the FAA publish any interim rule or other informal guidelines regarding voluntary deployment of remote identification?

3. Does the FAA believe that the remote identification NPRM and final rule will be further delayed as a result of any voluntary actions?

4. How will the FAA ensure that any voluntary actions taken by industry in the pre-rule period do not substantially differ from requirements laid out by the NPRM or final rule?

5. How does the FAA plan to use information gathered from voluntary implementation to inform the rulemaking process?

The Senators also noted that the FAA had yet to respond to the letter that they sent in April. 

What’s next?  Voluntary standards organization ASTM International is finalizing its standards for Remote ID, which should happen within the next few weeks.  The issues that stymied the ARC appear to have largely been resolved, with the standard permitting both broadcast and network Remote ID implementation, although it is unclear until we see the NPRM what the FAA plans to require. 

As these standards reach completion, it is likely that drone manufacturers and operators will begin to incorporate Remote ID technologies into their aircraft.  But despite the recent work of the DAC, which has focused on ways to incentivize voluntary compliance, it is not clear how much investment will be made in Remote ID without the assurance of federal standards.  As Senators Thune and Markey suggest in their letter, absent final (or even proposed) FAA rules, voluntary standards can only go so far—providers face the risk that any investment they make will be stranded if the rules end up being different than anticipated.

The reasons for the delay in the NPRM remain somewhat obscure.  It appears to be at least in part motivated by continued security agency concerns, though transparency on this point is lacking, and to the extent the security agencies have concerns, those have not been articulated publicly.  There is thus no way of knowing how significant these concerns might be, or how they might be addressed.

Without additional information, it is impossible to know how long the delay in the Remote ID regulations will continue. What is certain is that because of the central importance of Remote ID, the longer the delay lasts, the more pressure will build for action.