The latest expose about the DAC in the Washington Post was an eye-opener that validates many of the misgivings some of us have had with the FAA’s private rulemaking process. First and foremost, it would appear that someone lobbying for a certain Chinese company has worn out his welcome. It is pure speculation as nobody in the industry talks to me. ;-)
I am stating for the record that I have had several people warn me about outing the FAA and other members of the airspace integration effort. Hard to heed warnings of caution when you have nothing left to lose. The following is a series of emails with the FAA addressing my concerns about the secrecy surrounding, and the privacy afforded, the members of the Drone Advisory Committee and public rule making.
The conversation started after I got wind of a few ideas that had been run up the flagpole in the Task Groups. Some of the industry representatives in Task Group 1 hatched a plan for State and local jurisdiction of 200’ AGL and below. Meanwhile, others had gone the whole 400’ AGL and below with law enforcement doing the enforcing and municipalities keeping the fines. They include but are not limited to the various UTM loonies (excluding NASA), LAANCers, Geo-fencers, foreign interests, assorted advocacy groups and failed drone companies. This idea smacks of forfeiture and arguing with law enforcement on the street rarely produces favorable outcomes for the layperson.
My first inquiry (May 25th, 2017)
I was corresponding with Brendan Schulman and he stated that he wouldn’t discuss “confidential matters.” I am very interested to hear what is considered “confidential” in the DAC proceedings. This process is supposedly “public” and we stakeholders have a right to know what is being run up the flag pole without our participation. I don’t see how it would be plausible to use the intellectual property excuse when talking about enforcement.
Thank you, Patrick Egan
FAA reply (May 29th, 2017)
Patrick…sorry for the delayed response but I wanted to get this right. The DAC operates as a Federal advisory committee, with all recommendations vetted in public meetings. The subcommittee and task groups accomplish much of the work of developing consensus recommendations. Those conversations, and the work in progress, that has not yet reached the state of consensus, are not open to the public. This is designed to permit the speakers to speak more freely and thereby better express their viewpoints to the group. Once the TG and then the DACSC has produced a consensus product, it is then presented to the DAC in a public meeting. Product items being presented to the DAC are available for review by the public prior to the meeting.
DAC meetings are open to the public. Members of the public can address the committee with prior approval of the Chairman. Members of the public can provide written comments or material to the committee. Only members of the DAC may participate in the consensus process or vote on matters brought to a vote by the Chairman.
Hope this helps…
This was not sitting well with me! Folks that follow me on Twitter and read my editorials know I am a no shenanigans “public” rulemaking process advocate. I’ve been at this awhile.
My response (May 31st, 2017)
I appreciate the response and fully understand the delay in replying. However, as a long-time participant in the NAS integration effort, I have concerns with this process. What you espouse is not a new concept as the FAA tried to insinuate the same policy (prior to this manual) was in effect when members were conferring with their constituents on the sUAS ARC, and to a lessor degree ASTM, and RTCA. Unfortunately, it was employed as leverage by some members to cajole other committee members to go along with the program or face being sidelined or kicked off. I know no one would want that to happen here, so we must stay vigilant.
I gave The Office of Rulemaking Committee Manual ARM-001-015 a peruse and it states that ARAC and subcommittee meetings are open to the public and only working group meetings are not. However, no mention about needing “consensus” or any of the information and subject matter being confidential. Further reading brings into question the process for picking some of the participants.
I distinctly remember asking FAA personnel and counsel to see any references in the U.S.C. that reaffirm this policy, and it could not be produced. I am asking you now to show me where the “not open to the public” part is referenced in Federal law. I do not see this as complying with FACA. Permitting the speakers to speak more freely and better express their viewpoints is not one of the ten exemptions listed in the “Government in the Sunshine Act.” While the notion may be enabling some, it may also and unfortunately silence others. This is not conjecture, after highlighting these concerns in the past to FAA management, and the Congress, the interpretation of policy was revised.
The commercial end-user and small businessperson have no representation in a process that could conclude in grave consequence to our future ability to put food on the table. Past performance, i.e. registration task force, leave plenty of room for concern. The public deserves to know well in advance, as the commenting after in the NPRM process has proven ineffectual.
We must remember that these public meetings do not allow video recording (Reno) and there was not enough room at the last venue to accommodate all of the stakeholders and interested parties who wanted to attend.
My goal is not to play a game of gotcha. These are important matters; some of the folks representing themselves on the DAC have proven unqualified to represent the majority of stakeholders and or the public-at-large.
Best regards, Patrick Egan
These are the type of advocacy and questions that get one labeled “mad at the world,” “hothead” or worse. Those are emails to share for another article. ;) Anyway, at this point, the questions get kicked upstairs to Counsel, as I am not letting go –
FAA reply (June 3rd, 2017)
Dear Mr. Egan:
Marke Gibson forwarded your last message to my attention. This email serves to address the concerns you raised in that communication.
In your initial communication you raised a concern that member of a task group that fell under the RTCA Drone Subcommittee (DAC), Brendan Schulman, had informed you their task group discussions were confidential. You asserted that such discussions should not be confidential and should be “public.” In response, Mr. Gibson advised you that work accomplished by task groups are not open to the public. However, he advised, that once there is a consensus product, it is presented to the DAC in a public meeting.
In response, you assert that Mr. Gibson’s response, i.e., that task group meetings do not have to be public, is contrary to the Federal Advisory Committee Act (FACA), 5 U.S.C. App. You assert that the exemptions to public meetings set forth in the Government in Sunshine Act are not applicable and, therefore, the task group meetings should be public.
However, neither the FACA nor its implementing regulations require that a task group’s meetings be held publicly if they are reporting their recommendations to the parent advisory committee. The openness requirements of the FACA is triggered if the advisory committee (i.e., committee, board, commission, council, conference, panel, task force, or other similar group) make their recommendations directly to a Federal officer or agency, or if its recommendations will be adopted by the parent advisory committee without further deliberations by the parent advisory committee. See 41 CFR § 102-3.145.
In this case, as explained by Mr. Gibson, the task group will report their recommendations to the DAC, a RTCA subcommittee, not the FAA. Although not required since the DAC is a subcommittee that reports their recommendations to the parent advisory committee, the RTCA, the DAC in accordance with the RTCA Charter, Order 1110.7W, will hold their meeting open to the public unless they publish a notice in the Federal Register that there is a specific exemption applicable under the Government in the Sunshine Act. Prior to any meeting, the FAA will publish in the Federal Register the identity of the subcommittee holding a meeting, the time, place, purpose of the meeting (including a summary of the agenda), and whether the meeting is open or closed. To the extent the meeting is open, which most are, anyone interested, such as yourself, can attend such meetings and appear before the committee/subcommittee subject to reasonable limits of space and time. See Order 1110.7W. In addition, anyone interested may file written statements with the RTCA.
I thank you for raising your concerns to our attention. However, I find that the openness requirement you attempt to impose on task group meetings, which are not reporting their recommendations to the FAA, is not applicable.
Principal Deputy Chief Counsel
Phone number redacted
Now I am trying to impose openness on the FAA, but no mention of the NDA’s to participate in the Task Group??
My reply (June 5th, 2017)
Thank you for your reply. Some of my concerns must have gotten lost in the translation because you are making statements of assumptions about what I said and my inquiries. I’ve included all of the correspondence for your review.
Mr. Gibson also stated that the sub-committee meetings were private and some matters were private or confidential until these groups reached consensus.
“I thank you for raising your concerns to our attention. However, I find that the openness requirement you attempt to impose on task group meetings, which are not reporting their recommendations to the FAA, is not applicable.”
I’m having trouble finding language in the FACA manual that says anything about sub-committee meetings being private, any mention of privileged or confidential information or consensus being a prerequisite for the public to be included or comment.
Maybe I have the wrong version of the FACA manual, or I have missed something? Can you please cite where in the FACA manual it states that there are “confidential” matters or “consensus” needed before the Government in the Sunshine applies or the public gets to hear?
Emails with Hoot to follow in a separate email.
Thank you, Patrick Egan
Maybe someone will FOIA the Task Group notes?
More information had come to light (June 13th, 2017)
Have you guys been over to the GSA website? I’m not seeing anything about confidential, Task Groups or consensus in any of the material on that site either. Am I just missing the language or does the FAA have its own interpretation/version of the FACA? Waiting on a reply and I also left a vote mail message.
Thank you, Patrick
Final FAA reply (June 20th, 2017)
Dear Mr. Egan:
Thank you for following up seeking assistance in connection to your concern that Mr. Gibson stated that sub-committee meetings are private, and that in some matters were private or confidential until those groups reached consensus. You advise that your are having trouble pin-pointing language in the “FACA manual” that states that sub-committees meetings are private, make any mention of privileged or confidential information, or consensus being a prerequisite for the public to be included or comment.
Let me reiterate that the openness requirements of the FACA is triggered if the advisory committee (i.e., committee, board, commission, council, conference, panel, task force, or other similar group) make their recommendations directly to a Federal officer or agency, or if its recommendations will be adopted by the parent advisory committee without further deliberations by the parent advisory committee. See 41 CFR § 102-3.145. This is a GSA regulatory provision.
Moreover, the Office of Rulemaking Committee Manual (ORCM) you reference as the “FACA manual” is not applicable to Drone Advisory Sub-committee (DAC), or any of the working groups or task groups that report to it. It likewise is not applicable to the RTCA, which is the parent advisory committee subject to FACA under which the DAC falls. The ORCM is applicable to the Aviation Rulemaking Committee (ARC) and the Aviation Rulemaking Advisory Committee (ARAC), another advisory committee subject to FACA.
Setting aside the inapplicability of the ORCM to the DAC or groups/task groups that report to it, the ORCM, Part II, relating to the ARAC, contains references to the consensus requirement for working groups that report to the ARAC or subcommittees under the ARAC. Section 2.3.6, provides that in preparing their recommendation reports, working groups, provide among other items, their consensus findings, including majority and dissenting positions. While drafting their recommendation report, the working group should mark any draft documents the FAA representative distributes for review as “DRAFT WORKING MATERIAL-NOT FOR PUBLIC RELEASE.” See Section 184.108.40.206. The working group should reach consensus on the final draft of the recommendation report. See Section 220.127.116.11. After the working group reaches consensus on the recommendation report, the Working Group Chair contacts the ARAC Chair or the Subcommittee Chair and secures time on the next public meeting agency to present the recommendation report. SeeSection 18.104.22.168. The report is provided to the ARAC Chair and the ARM-20 Council Coordinator or the Subcommittee Chair and the Subcommittee Facilitator for distribution to the ARAC or the subcommittee for review at least two weeks before the public meeting. Id. Prior to the arrangement for the public meeting, working group meetings are not open to the public. See Section A.3.4.
The discussions you originally raised to Mr. Gibson’s attention in your May 25, 2017, email related to work being performed by a group tasked with an assignment by the DAC, an RTCA subcommittee. In his response, Mr. Gibson referenced that group as a “subcommittee.” Please be advised he was not referring to the DAC – which he acknowledged is subject to FACA pursuant to the previously cited Charter in my earlier communication. Rather, he was referring to a group that was created to address issues assigned, and provide their findings to the DAC. Similar to the ARAC framework, the meetings held by that group are not public. But, once their recommendation report, including the identification of consensus (or if no consensus can be reached, majority and dissenting positions) are completed, they will likewise be available for public discussion.
I hope this answers your questions.
Principal Deputy Chief Counsel
The upshot is that the RTCA is screening for the FAA so we can let folks work in private. Now, you have to understand that I was not aware of the Members of Task Groups being forced to sign NDA’s to work up public rule recommendations. Folks have been asking me why I didn’t come forward sooner and all I can say is that I couldn’t press too hard as my sources would have possibly been outed and then ousted from the effort, and you’d have a secret consensus. I just would rather that the U.S. commercial end-user has a say in their Country’s rule making.
To surmise, I agree with the unnamed U.S. official in the Washington Post article who found it “very bizarre.” I have attached a few links to some of our stories on this subject. If you followed @thedronedealer on Twitter you’d already know.