The sUAS Guide Issue 01, January 2016 | Page 78

Impracticable (Emergency)
The DC Circuit Court of Appeals examined this bypass carefully a 2014 case.
Impracticability is an “inevitably fact-or-context dependent” inquiry. See Mid-Tex Elec. Coop. v. FERC, 822 F.2d 1123, 1132 (D.C.Cir.1987). In the past, we have approved an agency’s decision to bypass notice and comment where delay would imminently threaten life or physical property. See, e.g., Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.Cir.2004) (upholding assertion of good cause when rule was “necessary to prevent a possible imminent hazard to aircraft, persons, and property within the United States”); Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C.Cir.1981) (noting the case was one of “life-saving importance” involving miners in a mine explosion); see also Jifry, 370 F.3d at 1179 (observing the good-cause exception should be invoked only in “emergency situations … or where delay could result in serious harm” (emphasis added)).[45]
• “Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.”[46]
• The FAA had data as far back as 2014 on drone reports which the FAA believes shows an “immediate proliferation.” The AUVSI Economic Report published in March 2013 said, “we used 100,000 unit sales per year as a conservative benchmark.” The FAA did not publish any rule till December 14, 2015. This is almost 3 years after the AUVSI report and around 1-2 years after the FAA started gathering drone sightings. “But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).”[47]
• The Registration Branch can’t handle the influx of Part 47 registrations soon to come in by the FAA now requiring all drones over 250 grams to be registered prior to operation.[48]
• Once again, the 2014 drone reports have been around for 1-2 years and the 2013 AUVSI report for almost 3 years. The reports cannot be used for justification for immediate implementation when the FAA and DOT waited. Waiting around till a problem becomes an emergency is bad public policy because it allows agencies to sidestep the comment period that was designed to put the public on notice and give the public a means of communicating their grievances.
• Part 47 registration was not designed for drones.[49]
• I don’t know why this is cited as a justification for impracticability or contrary to public interest.

• Part 47 registration will cost the FAA 775 million over the next 5 years.[50]
• I don’t know why this is cited as a justification for impracticability or contrary to public interest.
• Waiting longer for the notice and comment is impracticable.[51]
• Why? The idea behind implacability is this is an emergency, not an inconvenience. When someone call 911, does anyone expect 911 to say, “Yes, we can help you. We first need to create a taskforce on how to solve this problem, the taskforce will propose solutions to us, we will call you and let you know, and then we will be over there one week later.”
Unnecessary (Uncontested.)
• Drones are already considered aircraft and all aircraft are required to be registered.[52]
• That is what the United States Code, Code of Federal Regulations, the FAA and the NTSB say; however, while they have no problem with this rule, 99% of the model aircraft flyers out there will oppose this. 14 CFR § 11.13 says, “Our reason for issuing a direct final rule without [notice and comment] is that we would not expect to receive any adverse comments, and so an [notice and comment] is unnecessary. However, to be certain that we are correct, we set the comment period to end before the effective date. If we receive an adverse comment or notice of intent to file an adverse comment, we then withdraw the final rule before it becomes effective and may issue an [notice and comment].” The unnecessary exception is for no contest type of regulations. If this regulation was narrowly tailored to only the Section 333 guys who have to register anyways, this rule would have 99% of the commercial guys supporting it and it would be completely unnecessary to do notice and comment.
• Congress has directed the FAA to ensure safety of aircraft and airspace.[53]
• Congress most likely won’t contest this, but the model aircraft guys will; therefore, it still doesn’t fall into unnecessary because it is contested.
• No one would object because it “relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”[54]
• Only the Section 333 guys currently are required to do this and would not contest this rule. Hidden in this proposed regulations is that 14 CFR 91.203 registration requirement now applies to all aircraft above 250 grams. 91.203 requires the Part 47 route which is difficult. What is happening is the FAA is now “activating” a regulation that has laid dormant to model aircraft individuals and using that now