Secretary Foxx’s UAS Registration Rule Overturned
Possible Collateral Damage from the Taylor v. FAA Defeat
From an ill-considered rule to a US Court of Appeals for the DC Circuit, the rejection of the UAS registration rule could have future regulatory impacts.
The idea of registering a UAS was announced by Secretary Foxx on December 16, 2015. Technically, it was denominated an Interim Final Rule—Registration and Marking Requirements for Small Unmanned Aircraft; Final Rule. In reality, it was a hastily written band aid issued in response to political pressure to highly publicized drone incidents. [It proved the administrative procedure aphorism, “If you want it badly, you’ll get it bad.”] Most relevantly, registration was not an effective means of identifying who was the irresponsible or violating Drone operator.
The DC Circuit gave short shrift to the Foxx rationale [the attribution of blame to the then Secretary is justified by three important points (i) the Secretary, not the Administrator, made the announcement of this concept, (ii) the IFR Federal Register inordinately referred to the “Secretary” on its description of the rule, and (iii) Part 107, which was the work product of the FAA career staff, did not include registration.] The best analysis of the court’s opinion was posted by Dentons; if you need more of the legal logic, you can click on this link.
Here are some thoughts about the possible collateral damage/mess from the defeat in Taylor v. FAA:
- The FAA’s regulation of drones was unique in its history. It was the first time in which those being restricted by rules had operated without any prior oversight. They had enjoyed their freedom and did not feel the need to be regulated. Part 107 and then Parts 1, 45, 47, 48, 91 and 375 created a negative response among Drone Nation. They and many lawyers replied that all of these rules were illegal; some of the statutory arguments were superficial, but some, now, are proven correct. The impact of Taylor v. FAA may be to encourage Drone Nation to disregard the FAA rules, in particular the limitations designed to insure safety.
- Very recently, the FAA’s Center of Excellence found that the risk to humans from collisions with UASs was lower than earlier estimated. Drone Nation had decried the conservativism of the FAA’s Part 107 supporting analyses. The CoE numbers affirmed their objections to the restrictions. It would be extremely timely for the FAA to reassess its limitations.
- The ability of a regulator to identify the regulated is not a novel or outrageous concept. Requiring that a number be affixed somewhere on a drone really did not accomplish that goal for these aircraft. Only when it crashed could the FAA determine who owned it, if the person manipulating the controls was the person assigned the number. The real regulatory rub from registration is that one could not identify any number while it is flying. The RFID technology or some variation thereof will likely become a realistic registration method; someone on the ground could “read” the ID from the ground. Does the decision preclude this option?
- At some time soon, UTM will advance UAS safety; does this decision invalidate a requirement that the drone, in order to interact with this automated ATC system, include an identifying (likely electronic) instrument?
- Similarly, as to UAS detection systems around airports?
- The FAA, illegally, collected many $5 registration fees. Now must they refund all of those payments?
- If the FAA is prohibited from requiring registration of the recreational UASs, does that leave the field open to state or local registration?
- The FAA has issued a press release indicating that it may appeal Taylor v. FAA. If they do, would a court issue an injunction permitting registration while certiorari is sought? The court’s order voids the relevant sections of the IFR; so (i) can existing registered UAS owners remove their numbers? And (ii) do new purchasers of drones need to register? The FAA ought to address these questions ASAP [see (1) above].
- There have been some indications that the FAA might ask Congress to reinstate the UAS registration in the FAA reauthorization bill. Repeat the questions of (8).
- Will the local model aircraft “rules” become made more public; so, those seeking to operate under that classification can know to what they must adhere? Would a violation of those rules create a basis for FAA action?
The Secretary of Transportation is a Cabinet Officer of her/his President’s Administration. That status subjects him/her to greater political sensitivity. After Part 107 was issued, there were some drone incidents and Secretary Foxx was clearly impacted by those reports and the reactions of elected officials everywhere. Indeed, the US was not the only country to issue registration rules.
Presumably the DoT and FAA lawyers, who drafted the IFR, told Secretary Foxx of the prohibition of §336 of the FAA Modernization and Reform Act of 2012. If that is a fair assumption, the Secretary’s dismissal of that advice did the FAA and the UAS industry a disservice in the name of expediency.