Brian Wynne, the president and CEO of the Association for Unmanned Vehicle Systems International wrote earlier this month that the “the rulemaking for remote identification has been delayed again.” This is not surprising. As I wrote in June on this blog, the notion that the UAS proposed rulemaking would be completed by September 2019 was highly unlikely. Indeed, that is the case.
This rulemaking, according to the Office of Management and Budget (OMB), was received from the Federal Aviation Administration (FAA) on September 12, 2019. This means that the FAA and the U.S. Department of Transportation (DOT) have separately and together concurred and now DOT and OMB are reviewing it. The FAA and DOT can now say that they have met their responsibility and that it is now out of their hands. According to the OMB website, there is no legal deadline, and the proposed rule is considered to be “economically significant;” that is, it is expected to cost the economy more than $100 million annually.
My experience tells me that OMB could take as much or as little time as it wants to complete its review. Some of it depends on things beyond OMB’s control. I was recently reading a 2014 paper, “Presidential Oversight and Regulatory Delay,” in which the authors write:
We find that an agency’s ideological distance to the president increases the length of review. However, organizational factors and resources have an impact equivalent to that of political factors traditionally thought to play such a central role in regulatory review.
First, we can interpret this to mean that rulemakings may take longer than others to review at OMB when the Office of Information and Regulatory Affairs is understaffed and over-worked. Second, and perhaps more consequentially, we can also interpret this to mean that if the President more or less believes in the specific role of the Agency, then OMB’s review process may be less time-consuming than otherwise. Given this, and to be perfectly frank, I am unsure of what OMB will do because the President is generally against costly regulations. At the same time, it appears some industries may push for a rapid rulemaking process because it provides certainty as the FAA moves forward with future UAS rules.
At this point, Wynne is somewhat incorrect when he blames the FAA for the slowness of this rulemaking, as he did in his aforementioned writing. Currently, it is more or less beyond the FAA’s control because it is undergoing OMB scrutiny. After OMB clears the rule, then the FAA is again responsible for ensuring that the public comments it receives, the analysis that follows, and the final rulemaking are completed as quickly as possible.
Bottom line: If OMB proceeds at a normal speed, we’re looking at November or December this year. If the Administration does not like the regulation, then the final rulemaking could be stalled through the next presidential election.