We all share the frustration that policymaking impedes innovation – that the private sector moves too quickly for the public sector to keep up. That is certainly true in the UAS arena. The best solution for this problem is for innovators to support policymakers. The private sector has a duty to educate government about technological advances that affect policymaking.
So for all of us frustrated with the pace of the rulemaking surrounding the commercial use of UAS, now is the time to get involved. The government needs to hear from you.
We wrote almost one month ago about the exciting news that the FAA sent its Notice of Proposed Rulemaking (NPRM) on Small UAS (NPRM) on Small UAS to the White House for review. The Office of Information and Regulatory Affairs (OIRA) within the White House performs this review. This an extremely important step in the rulemaking process, and provides stakeholders with a key opportunity to provide input.
We just returned from a meeting with the White House today, where we discussed our views on the forthcoming NPRM.
We have received many questions from folks asking about this review process, what it means, and why they should participate. Here’s our answer:
Q. What is OIRA and why does their review matter?
A. Under Executive Order 12866, before any significant regulatory action takes effect, it first must go through a review process at OIRA at the White House. OIRA is located within the Office of Management and Budget, which is within the Executive Office of the President. It is commonly said that OIRA is the most important agency in Washington, DC that nobody has heard of: OIRA reviews draft regulations before they are implemented and conducts cost/benefit analyses to determine whether the benefits of a rule would justify the costs. OIRA is currently reviewing the FAA’s NPRM on Small UAS (sUAS). After its review, OIRA will send comments back to FAA before FAA issues the NPRM.
Q. How long does OIRA’s review of the NPRM take?
A. The period for OIRA review is limited by Executive Order 12866 to 90 days. Under the Executive Order, the review period may be extended indefinitely by the head of the rulemaking agency; alternatively, the OMB Director may extend the review period on a one-time basis for no more than 30 days. According to OIRA, the average review period is 53 days. OIRA received the FAA’s sUAS rule for review on October 25, 2014 – so the review could take three months, or more or less, from that date.
Q. Will OIRA listen to what I think about the forthcoming rulemaking on small UAS?
A. As part of its review process, any member of the public—including UAS manufacturers, operators, and users—can request a meeting with the agency to discuss the proposed rule, what it should contain, and how the rule will impact them. The meetings are conducted by the OIRA Administrator or his designees, and a log of all meetings is publicly available.
Q. Will I be able to see the draft rule if I meet with OIRA?
A. No, but that does not mean that the meeting isn’t important. The meeting is a half hour listening session and represents an opportunity to make stakeholder voices heard. Keep in mind that OIRA will make its views known to the FAA once it has finished its review. It is extremely helpful to have the White House advocating for your view to the FAA, in addition to advocating directly to the FAA. While the FAA has track record of taking into account public comments in context of issuance of final rule, the reality is that the bulk of what we will see when the FAA issues the NPRM will resemble the final rule: the FAA will tinker around the edges, but the framework will remain. Now is the time to make your voices heard.
Q. Will a meeting with OIRA be helpful to the policymaking process?
A. A meeting with OIRA provides a golden opportunity for stakeholders to make their voices heard on key UAS policy issues. Companies that want to provide input on issues such as certification of pilots and visual observers, registration of UAS, approval of operations, federal preemption of UAS policy issues, and operational limits for UAS now have the chance to provide their ideas directly to the White House. It is also helpful for stakeholders to reinforce the importance of expediency in moving the rulemaking forward.
With your participation in the policymaking process, champions in government will be able to move forward more quickly. Now is the time for our community to get organized, get involved, and be heard.
Note: Planely Spoken would note that Lisa Ellman, currently Co-Chair of MLA’s UAS practice, formerly worked for the White House’s Office of Information and Regulatory Affairs.
(Originally posted November 21, 2014)