In a recently issued enforcement policy, the FAA announced a discretionary approach to its enforcement of Remote ID Rule requirements applicable to the production of unmanned aircraft, to account for the delay in the FAA’s recent acceptance of a means of compliance (“MOC”) required by the Remote ID Rule. This discretionary policy will apply to the requirement that drone manufacturers submit a declaration of compliance with an FAA-accepted MOC on or before September 16, 2022. Under the policy, the FAA will exercise discretion whether to take enforcement action for any noncompliance with this requirement on or before December 16, 2022. The FAA will consider all circumstances when exercising its discretion, including, in particular, the delay in the FAA’s recent acceptance of an MOC. Affected manufacturers are encouraged to coordinate closely with the FAA.
Under 14 C.F.R. Part 89 (“Part 89”), established by the Remote ID Rule, designers and manufacturer of “standard remote identification unmanned aircraft” (drones equipped with built-in Remote ID) or Remote ID broadcast modules (added to drones without built-in Remote ID) for operation in the U.S. must meet the requirements of an FAA-accepted MOC and submit a declaration of compliance with the MOC. An MOC describes the methods by which the designer or manufacturer complies with the performance-based Remote ID requirements in Part 89, which must be accepted by the FAA. Anyone may submit an MOC for consideration, but the FAA encourages standards bodies, such as the American Society for Testing and Materials (“ASTM”), to develop consensus MOCs.
On May 13, 2022, in coordination with drone manufacturers and the FAA, ASTM submitted to the FAA a standard MOC for the production requirements in Part 89 (“ASTM F3586-22”). In response, on August 11, 2022, the FAA published a notice of availability announcing an FAA-accepted MOC consisting of both ASTM F3586-22 and certain additional requirements. Given that the August 11 MOC is currently the only FAA-accepted MOC and because of the delayed acceptance, the FAA acknowledged in its enforcement policy that certain manufacturers may not have sufficient time to adequately design, develop, and test unmanned aircraft and file a declaration of compliance with the FAA by the September 16 compliance date. As a result, the FAA will now exercise its discretion under the new policy in determining how to handle any apparent noncompliance, including exercising discretion to not take enforcement action for noncompliance that occurs on or before December 16.