UAS: Model Aircraft v. UAS: A Matter of Interpretation

Last week, the FAA published rules for the operation of model aircraft and requested public comment.  A survey of the news coverage on the announcement shows that many people are under the assumption that because this is a rule published in the Federal Register and that public comments are requested, that, at some time in the future, the FAA will issue a final rule on model aircraft which incorporates what the FAA has learned from the interested members of the public.  That view is almost certainly wrong.

To understand why, we must delve briefly into the realm of administrative law.  Generally, there are two types of administrative rulemaking, legislative and interpretive.[1] Legislative rulemaking is the one with which most people are familiar.  The agency has to follow the requirements of the Administrative Procedures Act, and there has to be a notice of proposed rulemaking, followed by public comments, and then issuance of a final rule.[2] Any time an agency wants to impose a new regulation or change the substance of existing law or policy, they must use legislative rulemaking.

Interpretive rulemaking, on the other hand, has much lower public visibility.  Agencies use interpretive rulemaking to publicize an existing law or policy.  As a result, interpretive rulemaking does not require any public notice and comment period.[3]

The model aircraft rules published in the Federal Register state that the FAA is taking the following action:  “Notice of Interpretation with Request for Comment.”  This is somewhat odd, because one of the benefits to an agency from an interpretive rulemaking is that no public comments are required.  So why do it?  Several reasons come to mind.  First, the FAA is probably very interested in taking the pulse of the nation before announcing the expected small UAS rules in November.  Second, there is a clear public relations value, in that it makes the FAA look responsive and it shows the FAA is pushing forward with its “rulemaking.”  Third, this notice of interpretation also gives the FAA the opportunity to restate its position on personal v. business use of model aircraft and UASs.

Could the fourth reason be that the FAA will issue a new model airplane rule in response to the comments?  No. Because the interpretive rule is simply a statement of existing law, any modification of it would, by definition, be a change to the law.  As a result, a new, full blown legislative rulemaking would be required, with publication of the notice of the new rule, another public comment period on the new rule, and then an announcement of the new final rule.

So, while we would tell anyone interested in the issue to provide public comment as we are sure the FAA is listening, don’t expect it to result in a modification of the FAA’s rules for model airplanes.

[1] Splane v. West, (no hyperlink provided) 216 F.3d 1058, 1063 (Fed. Cir. 2000).

[2] 5 U.S.C. § 553.

[3] Las Casa Del Convalsciente v. Sullivan, (no hyperlink provided) 965 F.2d 1175,1177-78 (1st Cir. 1992).

(Originally posted Jul 1, 2014)

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