Table of Contents of Article
- 1 NOTE: John Taylor was successful in his lawsuit. The court struck down the regulations as being illegal; however, on December 12, 2017, the National Defense Authorization Act of 2017 was passed saying, “(d) Restoration Of Rules For Registration And Marking Of Unmanned Aircraft.—The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.” The registration rules are currently back in force. Since the regulations that were struck down were restored by Congress, I’m putting a strike through below on all the text since it should NOT be relied upon. This article still contains important legal and historical pieces of information which is why I’m leaving it up. Until the registration regulations are challenged and struck down again, you should abide by them.
- 2 1. The Violation of Section 336
- 3 Alternative or a New Regulation?
- 4 What Does Section 336 Actually Prohibit?
- 5 “Any” = “Some?”
- 6 Does Any Mean Any Any Time?
- 7 2. Good Cause Bypass Exception to the Administrative Procedures Act Requirements
- 8 Governing Authority
- 9 Impracticable (Emergency)
- 10 Unnecessary (Uncontested.)
- 11 Contrary to the Public Interest (Public Would Be Harmed Rather than Benefited by Notice and Comment)
- 12 3. Lack of Statutory Authority
- 13 Proposed Solutions for the FAA:
- 14 Why Am I Proposing These?
NOTE: John Taylor was successful in his lawsuit. The court struck down the regulations as being illegal; however, on December 12, 2017, the National Defense Authorization Act of 2017 was passed saying, “(d) Restoration Of Rules For Registration And Marking Of Unmanned Aircraft.—The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.” The registration rules are currently back in force. Since the regulations that were struck down were restored by Congress, I’m putting a
strike through below on all the text since it should NOT be relied upon. This article still contains important legal and historical pieces of information which is why I’m leaving it up. Until the registration regulations are challenged and struck down again, you should abide by them. This article lays out an in-depth discussion as to the three big reasons why the FAA’s FAR Part 48 drone registration regulations are illegal and should be struck down by a court. The registration regulations are currently being challenged in the D.C. Circuit Court of Appeals by John Taylor and I am assisting him with the lawsuit. The proposed rule is located here. The FAA’s FAQ page on drone registration is located here. The FAA’s privacy impact statement is here. Key Point of the Rule: “Persons owning small unmanned aircraft, whether intended to be used as model aircraft or as other than model aircraft, are required to register those aircraft with the FAA[.]” “This rule applies to all owners of small unmanned aircraft which weigh more than 0.55 pounds and less than 55 pounds on takeoff.” It goes into effect Dec 21, 2015. If you do not comply, you could face civil penalties up to $27,500 and criminal penalties of $250,000 and/or imprisonment up to 3 years. While the electronic means of registration seems great and would be a wonderful thing for my commercial drone clients, the issue is NOT with the proposed regulations but (1) the apparent direct violation of Section 336 of the FMRA, (2) the improper use of the “good cause” bypass exception to the Administrative Procedures Act, and (3) the lack of statutory authority.
1. The Violation of Section 336 Section 336 of the FAA Modernization and Reform Act of 2012 says: “IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft[.]” The key word here is “any” and the major take away is that it prevents the promulgation of new rules or regulations, not the using of already existing regulations (i.e. Part 47 and § 91.203).The FAA believes that model aircraft operators are now subject to 91.203 which requires the drone to be registered prior to operation in the national airspace. FAA responded to the Section 336 prohibition allegation in the registration rule document: “The FAA disagrees with the comments asserting that the registration of model aircraft is prohibited by section 336 of Public Law 112-95. While section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements. As previously addressed, Public Law 112-95 identifies model aircraft as aircraft and as such, the existing statutory aircraft registration requirements implemented by part 47 apply. This action simply provides a burden-relieving alternative that sUAS owners may use for aircraft registration. Model aircraft operated under section 336 as well as other small unmanned aircraft are not required to use the provisions of part 48. Owners of such aircraft have the option to comply with the existing requirements in part 47 that govern aircraft registration or may opt to use the new streamlined, web-based system in part 48.”’
Alternative or a New Regulation? If this is a “burden-relieving alternative[,]” why does the rule seeks to amend the non-alternative current rules in Part 1, § 45.1, § 47.2, § 47.3, § 47.7, § 91.203, § 375.11, and § 375.38? This rule is a new rule coupled with multiple regulations being amended so as to harmonize the new rule in Part 48. One key point is that this is being codified in Part 48 of the Code of Federal Regulations which brings us squarely back to the issue of the prohibition on the creation of rules or regulations.
What Does Section 336 Actually Prohibit? If it is “not a complete bar on rulemaking[.]” what is it a bar actually on? It has to be a bar on something and it would be completely ludicrous to interpret it as a bar on nothing. The FAA’s interpretation is that it is a bar on “some” rulemaking, just not “any.” The scope of “some” is completely unclear.
“Any” = “Some?” Context is king. “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” We must not seek the FAA’s interpretation of this statute, but Congress’ meaning of the FMRA. Let’s look at the word “any” used elsewhere in Sections 331-336 of the FMRA and replace “any” with the FAA’s interpretation of “some” and see what happens. “[E]nsure that any [some] civil unmanned aircraft system includes a sense and avoid capability[,]” “[I]ncorporation of the plan into the annual NextGen Implementation Plan document (or any [some] successor document) of the Federal Aviation Administration.” “IN GENERAL.—Notwithstanding any [some] other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.” “[W]hich types of unmanned aircraft systems, if any [some], as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security[,]” “[O]utside of 5 statute miles from any [some] airport, heliport, seaplane base, spaceport, or other location with aviation activities.” “IN GENERAL.—Notwithstanding any [some] other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any [some] rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft,” “[T]he aircraft is operated in a manner that does not interfere with and gives way to any [some] manned aircraft[.]” Using the redefined “any” causes havoc on the reading of the text. The context of all those sections using “any” used it just as if they would have used the word “all.” Though not as contextually persuasive as Sections 331-336, 14 CFR § 1.3 Rules of Construction differs from the FAA’s interpretation, ‘“a person may not * * *” mean[s] that no person is required, authorized, or permitted to do the act prescribed[.]”’ Why did I bring up § 1.3? Because that rule of construction applies to 91.203 which is going to be the regulation cited against individuals flying their drones unregistered, “no person may operate a civil aircraft unless it has within it the following: The FAA’s interpretation of Section 336 “may not promulgate any[,]” meaning some rules or regulations, is different than their interpretation of 91.203 “no person may[,]” meaning all persons, which is currently being used against one individual, Skypan, and will be used against any future individuals who choose to not register their drone prior to operation.
Does Any Mean Any Any Time? The Second Federal Circuit Court of Appeals has said: As the Supreme Court has frequently observed, use of the word “any” in statutory text generally indicates Congress’s intent to sweep broadly to reach all varieties of the item referenced. See, e.g., United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (quoting Webster’s Third New International Dictionary 97 (1976) in concluding that, ‘[r]ead naturally, the word `any’ has an expansive meaning, that is, `one or some indiscriminately of whatever kind'”); accord HUD v. Rucker, 535 U.S. 125, 131, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (same); Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) (noting that “Congress made [the phrase at issue] even broader when it chose the expansive word `any’ to precede the list” (internal quotation marks omitted)). The Court most recently applied this principle in interpreting the phrase “`any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air'” in the Clean Air Act. Massachusetts v. EPA, ___ U.S. ___, 127 S.Ct. 1438, 1460, 167 L.Ed.2d 248 (2007) (quoting 42 U.S.C. § 7602(g)) (ellipsis and emphases in original). It concluded that “[o]n its face,” the quoted language “embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word `any.‘ The United States Supreme Court has said: ‘[A]ny’ can and does mean different things depending upon the setting. Compare, e. g., United States v. Gonzales, 520 U. S. 1, 5 (1997) (suggesting an expansive meaning of the term “`any other term of imprisonment'” to include state as well as federal sentences), with Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 542-546 (2002) (implying a narrow interpretation of the phrase ‘any claim asserted’ so as to exclude certain claims dismissed on Eleventh Amendment grounds). To get at Congress’s understanding, what is needed is a broader frame of reference, and in this litigation it helps if we ask how Congress could have envisioned the . . . clause actually working. . . . See, e. g., New Jersey Realty Title Ins. Co. v. Division of Tax Appeals of N. J., 338 U. S. 665, 673 (1950) (enquiring into ‘the practical operation and effect’ of a state tax on federal bonds). Contexts indicates that Congress practically intended that model aircraft would be free from the creation of rules or regulations. This is evidenced by sub-section (b) which says, “STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” The only thing in all of Section 336 that could even be read to limit the FAA is the language “may not promulgate[.]” Buttressing that, sub-section (c) defines “model aircraft” more narrowly than the definition of unmanned aircraft in Section 331 which indicates that it is a “special” sub-classification of the broad classification of unmanned aircraft. This all points to Congress intending to mean any any time it is used in Section 331-336. In conclusion, the United States Supreme Court, while acknowledging that any could mean different things, it is generally to be taken as a broad sweep of the category, unless context indicates otherwise. Furthermore, context indicates that sub-section (b) and (c) both look at (a) as providing something special that unmanned aircraft (non-model and public aircraft) do not get.
2. Good Cause Bypass Exception to the Administrative Procedures Act Requirements 5 U.S.C. § 553 says, (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 14 CFR § 11.11 echoes, A final rule with request for comment is a rule that the FAA issues in final (with an effective date) that invites public comment on the rule. We usually do this when we have not first issued a [proposed rule] . . . , because we have found that doing so would be impracticable, unnecessary, or contrary to the public interest. We give our reasons for our determination in the preamble. The comment period often ends after the effective date of the rule. A final rule not preceded by an [proposed rule] is commonly called an ‘immediately adopted final rule.’ So unless the proposed regulation falls into the good cause bypass exception, it has to go through the rule making process required by Congress. It is ubiquitously called “notice and comment.” To make it simple, unless bypassed, the FAA must publish the proposed rule in the Federal Register, the public is given an opportunity to comment on it, the FAA must digests the comments and then publish a final rule. There are many steps involved that are beyond the scope of this article, but if you want more info, I wrote a chapter on the FAA rule making process for the American Bar Association book located here. The green arrow is where Part 48 was with the registration task force’s proposal on November 21, 2015. The blue arrow is where the current Part 107 commercial rule is located that was started back in 2009 and was only just published as a proposed rule in February of 2015 and became a final rule in August 29, 2016. The red arrow is where the current registration rule, Part 48, is located in the rule making process. The point I’m making is it bypassed all that stuff in the middle. The FAA can only do this if it can show that going the notice and comment route is either “impracticable, unnecessary, or contrary to the public interest.” The FAA acknowledges the comments of individuals saying this violates the APA in pages 156-159 and points us back to the preamble (page 11) of the document. The FAA’s justifications for the good cause exception were not completely clear on which of the three justifications categories they fall into so I attempted to categorize them from pages 11-20. I was unclear as to where most of the “impracticable” justifications should go and made a good faith effort to represent the FAA’s position accurately because I’m assuming they didn’t throw in non-exception factual justifications. Impracticable “Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.” 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. Part 47 registration was not designed for drones. Part 47 registration will cost the FAA 775 million over the next 5 years. Waiting longer for the notice and comment is impracticable.
Unnecessary Drones are already considered aircraft and all aircraft are required to be registered. Congress has directed the FAA to ensuresafety of aircraft and airspace. 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.”
Contrary to the Public Interest FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold. Individuals are commercially operating without authority. The FAA lists multiple stories on drone sightings. The FAA lists two tables of drone reports from 2014 and 2015. The FAA details 7 stories of drone reports. Commercial drone sales will “rapidly accelerate” to 11 million by 2020. Many individuals are new and have no clue of the national airspace.
Governing Authority We are going to look at case law where applicable that will explain the good cause exception from 5 U.S.C. 553 and we will also look to the Federal Aviation Regulations, Part 11, which “applies to the issuance, amendment, and repeal of any regulation for which FAA (“we”) follows public rulemaking procedures under the Administrative Procedure Act (“APA”) (5 U.S.C. 553).” This is an excerpt from my American Bar Association book chapter on FAA rule making which deals specifically with these areas. Keep in mind I’m not going through the footnotes and trying to correct all the supra’s . Airworthiness Directives are subject to the rulemaking process as described elsewhere in this chapter. The FAA has an Airworthiness Directives Manual which explains these three good cause exceptions that will now be discussed. “This exception can be used when an urgent and unsafe condition exists that must be addressed quickly, and there is not enough time to carry out Notice and Comment procedures without compromising safety.” The manual goes on to say the urgency must be explained and the time to give individuals to comply with the AD must reflect the urgency. “For example, it would make little sense to say immediate action is necessary to prevent a landing gear failure and then allow 60 days compliance time to resolve the unsafe condition. Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.’” In Air Transport Association of America vs. the Department of Transportation, the FAA’s penalty enforcement action was vacated by the U.S. Supreme Court because: [T]he FAA is foreclosed from relying on the good cause exception[, from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. 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). This type of direct final rule is in effect a “final rule with request for comments. [The FAA’s] reason for issuing [this type of] direct final rule without an NPRM is that [the FAA] would not expect to receive any adverse comments, and so an NPRM is unnecessary.” The FAA plans “the comment period to end before the effective date” so if there are any adverse comments, it can withdraw the final rule and issue an NPRM. If the FAA publishes a rule, but a legitimate adverse comment comes up, the FAA will publish in the Federal Register a notification of withdrawal, part or whole, of the previous direct final rule. The FAA can then either publish a new direct final rule with the comments taken into account or publish a NPRM. Other unnecessary situation are when: (1) no one in the U.S. would be affected by the regulation and (2) the FAA makes “minor corrections, clarifications, and editorial changes.” Generally, this exception is coupled with either the impracticable or unnecessary exception. This exception’s purpose “is to excuse an agency from the Notice requirement if providing advance Notice would defeat the purpose of the agency action. For example, issuing advance Notice that the government is contemplating financial controls could cause public reactions so excessive that the financial system could be placed in jeopardy.” The Federal Circuit Court of Appeals for DC said, Generally, the “good cause” exception to notice and comment rulemaking, see 5 U.S.C. § 553(b)(3)(B), is to be “narrowly construed and only reluctantly countenanced.” Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C.Cir.1992) (quoting New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980)). The exception excuses notice and comment in emergency situations, Am. Fed’n of Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981), or where delay could result in serious harm. See Hawaii Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir.1995). Simply put, impracticable means you have no time (emergency), unnecessary means uncontested, and contrary to public interest is where the public would be harmed rather than benefited by the publication of the rule. In light of the above, I will address the factual justifications for the bypass point by point.
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)). “Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.” 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 ruletill 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).”
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. 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 usedfor 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. 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. Waiting longer for the notice and comment is impracticable. Why? The idea behind implacability is this is an emergency, not an inconvenience. When someonecall 911, does anyone expect 911 to say, “Yes, we can helpyou. We first need to create ataskforce on how to solve this problem, thetaskforce 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. 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 ensuresafety of aircraft and airspace. 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.” 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 activated difficult regulation as a justification to fall into the unnecessary. Here is the problem with that argument, 99% of the model aircraft community does not even know 91.203 now applies to them; therefore, you can’t have a rule being uncontested if the individuals affected don’t even know what is going on! The whole idea behind the Federal Register Act of 1934 and the Administrative Procedures Act was to keep the public informed.
Contrary to the Public Interest (Public Would Be Harmed Rather than Benefited by Notice and Comment) FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold. See below.
Even commercial guys are operating without authority. Yes,unfortunately that is the case. Many are doing so because they feel the FAA is unjustifiably regulating this area or the Section 333 restrictions are unreasonable. This is why it is extremely important for the FAA and DOT to work within the restrictions of Section 336 and the APA so as to not add fuel to the fire.
The FAA lists multiple stories on drone sightings. See the next one.
The FAA details 7 stories of drone reports. Out of the 7 stories, 4 of them resulted in the individual being identified without mandatory drone registration, 2 would have never even been remedied by drone registration, and only 1 would have been helped by mandatory drone registration. I’m not sure why these stories were put in here other than to maybe illustrate that education on the front end could have possibly prevented all 7 and in 1 of the stories, the individual could have been identified by registration alone. These facts don’t translate into justifying the good cause exception for notice being against the public interest. Maybe this was used as a justification for impracticability? Even so, there are 7 stories and this does not constitute an emergency.
The FAA lists two tables of drone reports from 2014 and 2015. “The court’s review of agency rulemaking is highly deferential, limited to determining “whether the agency has considered the relevant factors and articulated a ‘rational connection between the facts found and the choice made.’” The AMA responded to the drone sightings in a report that brings into question the facts being used for justification. https://www.modelaircraft.org/gov/docs/AMAAnalysis-Closer-Look-at-FAA-Drone-Data_091415.pdf It is not clear how many of the sightings of drones are in locations they should not be or how many are seen in areas where they could fly under the FAA’s own guidance documents. Furthermore, compounding the problem is that the FAA has not clearly come out and stated that under AC 91-57, AC 91-57A, FMRA Section 336, and 2014 Model Interpretation and many other areas listed online, that flying a drone near an airport is “illegal.” The lack of clarity leads everyone to believe that this is completely prohibited, and there has been no clarification by the FAA on this common misconception. Therefore, people report drones flying in places they could be flying in accord with the FAA guidance which causes the drone sightings to be inflated and unreliable forrule making .
Commercial drone sales will “rapidly accelerate” to 11 million by 2020. See above.
Many individuals are new and have no clue of the national airspace. This is a problem and should be remedied according to the APA and getting Congress to change Section 336.
3. Lack of Statutory Authority This is a major point. If you study out all the statutes where the U.S. Congress delegated authority to the FAA to registered aircraft, you’ll notice they are only give power to register – aircraft. They were never given power to register people anywhere. The statutes always say register and aircraft. Let this sink in. This is a “Do not go pass go” situation. Before we even get to the discussion of 336 and the APA’s good cause exception the FAA needs to answer this. You don’t even have to own an aircraft to register. The FAA’s own Marke Gibson said he didn’t even own an aircraft but registered. 
Proposed Solutions for the FAA: Get Congress to pass an amendment to Section 336 so the regulations will not be in violation of it. Go the notice and comment route with the regulations. Don’t skip this because it is inconvenient. Publish a document that has everything a drone pilot needs to know in ONE place. There are multiple things being said in multiple places. Certain parts of the regulations apply and other parts do not. It needs to be listed in one place if individuals are going to be educated; otherwise, it is far easier to just fly than try and figure out what is actually required of you. See my blog post where I discuss further. I had to actually create a chart in my drone book, Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them, of all the do’s and do not’s because they are scattered all over. Go through the drone reports and do your best to “clean up” the data. The data is lacking and because the whole flying near airports misconception has not beenfull clarified, the data isover inflated and inaccurate. Seek to implement quality controls on the data gathering and properly classify and represent it. Reach out to highly-viewed social media celebrities to collaborate with in educating the community.
Why Am I Proposing These? My fear is this rule will “delegitimize” the FAA and DOT in the eyes of many drone flyers. Why? Hope this helps guys. Fly safe. J  18 U.S.C. 3571  49 U.S.C. 46306  Page 155.  United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) (citations omitted).  Section 332(a)(2)(A)(ii).  Section 332(a)(2)(I).  Section 333(a).  Section 333(b)(1).  Section 334(c)(2)(C)(v).  Section 336(a).  Section 336(a)(4).  Cohen v. JP Morgan Chase & Co., 498 F. 3d 111, 117-18 (2nd Cir. 2007).  Nixon v. Missouri Municipal League, 541 US 125, 132-33 (2004).  Section 336(b).  Page 19.  Page 18.  Page 18.  Page 18.  Page 19.  Page 11.  Pages 11-12.  Page 20.  Page 12.  Page 12.  Pages 12-13.  Pages 13-14.  Page 14-16.  Page 17.  Page 17.  14 C.F.R. 1.1.  Fed. Aviation Admin., FAA-IR-M-8040.1C, Airworthiness Directives Manual (2010) [hereinafter “AD Manual”], available at http ://rgl.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/66ddd8e1d2e95db3862577270062aabd/$FILE/FAA-IR-M-8040_1C.pdf  Id. at 15.  See id.  See  Id.  Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369 (D.C. Cir. 1990), vacated without opinion and remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).  Id. at 379.  14 C.F.R. § 11.13.  Id.  See 14 C.F.R. § 11.31(c).  See id.  AD Manual, supra note 302, at 15.  AD Manual, supra note 302, at 15.  Jifry v. FAA, 370 F. 3d 1174, 1179 (D.C. Cir. 2004).  Sorenson Communications Inc. v. FCC, 755 F. 3d 702, 706 (D.C. Cir. 2014).  Page 19.  Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369, 378 (D.C. Cir. 1990), vacated without opinion and remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).  Page 18.  Page 18.  Page 18.  Page 19.  Page 11.  Pages 11-12.  Page 20.  Page 12.  Page 12.  Pages 12-13.  Page 14-16.  Pages 13-14.  Jifry v. FAA, 370 F. 3d 1174, 1180 (D.C. Cir. 2004).  Page 17.  Page 17.