Observations on the Issuance of the Dreaded Interim Final Drone Registration Rules

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Today in a joint teleconference, DoT Secretary Foxx and Deputy Administrator Whitaker announced an INTERIM FINAL rule on the registration of small Unmanned Aircraft. The internet pundits have been launching epithets at the federal government over this invasive action with conclusions that the rulemaking violated §336 of the FAA Modernization and Reform Act of 2012 (FMRA), the Administrative Procedure Act, the Constitution and the UN Human Rights Act. There might have been some allegations that DoT/FAA violated the Mann Act, but these aircraft must be unmanned. The pre-publication angst and negativity were immense.

What did the registration rule really do?

The intent of this piece is to deal with the requirements of this new registration regime, not repeat some of the prior policy critiques posted on the JDA Journal. To quickly summarize, registration is more activity than action and will not appreciably enhance aviation safety.

Here are a number of observations about the new rules to be published in the Federal Register, soon: in no particular order, they are:

  1. The Interim Final Rule (IFR) is spread over 211 pages of single-spaced small text. The actual rule changes are but 10 pages long (p.198-208). It takes roughly 180 pages to introduce and explain the rule; included in that section are about 30 pages written to make a finding of “good cause” (see below discussion of the use of an Interim Final Rule under a “good cause” exception of the Administrative Procedure Act). The virtual reality of Washington Rule Making is consumed by 23 pages (p. 174-197) of analyses of congressionally mandated policy considerations (e.g. International Trade Impact Assessment, Unfunded Mandates Assessment and Paperwork Reduction Act). Less than 5% of the verbiage is the actual rule. 
  1. As Secretary Foxx noted, that is a lot of writing, especially considering that the Secretary announced the task force on October 19, 2015. The advisory group delivered their recommendations one day past the deadline on Saturday November 22. To have churned out 211 pages in 22 days is REMARKABLE, and much of the text was written in response to recommendations and comments; so the pages could not be pre-prepared.
  1. Some of the length of the IFR is attributable to the fact that every sentence seems to begin with, “The Secretary and the Administrator” or “the DOT and the FAA.” Maybe this repetition is driven by the fact that FMRA includes specific reference to the Secretary, but that is not unusual. The early preambles of other DOT modal administrations include reference to DOT, but then rely on their own agency as the actor in the NPRM (FMSCA, FRA/PHMSA or FHWA, other safety regulating organizations). What is even more disturbing is language which Congress intended to retain some decisions with the Administrator; 49 USC § 106(f)(2)(D) states, again quite clearly:

Authority of the administrator.

The Administrator shall not be required to coordinate, submit for approval or concurrence, or seek the advice or views of the Secretary or any other officer or employee of the Department of Transportation on any matter with respect to which the Administrator is the final authority.

Perhaps the Secretarial incursion into this process does not invalidate the rule, but it certainly creates an unfortunate impression.

  1. What exactly is an Interim Final Rule and how does invoking this exception to the APA permit deferring the normal “notice and comment” process? Here is the guidance which the Federal Register provided to executive agencies trying to avail themselves of this exception:

rule without first
 characterizes the
 as an
rule.” This
rule becomes effective immediately upon

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.

In the comments submitted to the docket, the Competitive Enterprise Institute attacked the reliance on this APA exemption (p. 156); consequently, pages 11-32 are devoted to defending this procedural criticism. The DOT/FAA replied with citation to the basic Congressional mandate to register all aircraft, 49 U.S.C 44101(a) and as further prescribed in 14 CFR part 47, registration is required prior to operation. See 80 FR 63912, 63913 (October 22, 2015). The rationale recites the growth of UASs, the near miss incidents, the FAA’s generic power to regulate air traffic, the absence of aviation experience with these UAS “pilots,” even the comparative ease of electronic filing, etc., as grounds for “good cause.”

  1. The substantive details of the new registration regime:

(a)  Registration deadline if UAS purchase before 12/21/2015: 02/19/2016 (§48.5 (a)) for other than model aircraft)

(b)  Registration date for model aircraft: 03/31/16 (§48.5(a))

(c)  Registration deadline if UAS purchase after 12/21/2015: before 1st outdoor flight (§48.5 (b)) §§§

(d)  If individual owns more than one UAS: one registration by individual of all drones

(d)  Registration site: faa.gov/uas/registration – Registration will occur through an online web-based system

(§ 48.100(c))

  1. What UAS must register:drone size registrations rule

(a)  Unmanned aircraft weighing less than 55 pounds and

(b)  more than 0.55 pounds (250 grams) on takeoff,

(c)  including everything that is on board or otherwise attached to the aircraft and operated outdoors in the national airspace system must register.

(§ 48.15)

  1. Who may register:

(a)  Owned by a U.S. citizen.

(b)  Owned by an individual citizen of a foreign country lawfully admitted for permanent residence in the United States.

(c)  Owned by a corporation, not a citizen of the United States when the corporation is organized and doing business under the laws of the United States or a State within the United States, and the aircraft is based and primarily used in the United States (§ 48.20).

(d)  A person must provide the information required by § 48.100 to the Registry in the form and manner prescribed by the Administrator.

(e)  By its owner using the legal name of its owner, unless the owner is less than 13 years of age.

(f)  If the owner is less than 13 years of age, then the small unmanned aircraft must be registered by a person who is at least 13 years of age.

(§ 48.25)

NOTE: if it is determined that your drone was found guilty in a felonious use in a drug crime, the Administrator may revoke your registration under 49 USC§ 44106 of this title.

  1. What information must be submitted (UAS):

(a)  Applicant name and, for an applicant other than an individual, the name of the authorized representative applying for a Certificate of Aircraft Registration.

(b)  Applicant’s physical address and, for an applicant other than an individual, the physical address for the authorized representative. If the applicant or authorized representative does not receive mail at their physical address, a mailing address must also be provided.

(c)  Applicant’s e-mail address or, for applicants other than individuals, the e-mail address of the authorized representative.

(d)  The aircraft manufacturer and model name.

(e)  The aircraft serial number, if available.

(f)  Other information as required by the Administrator.

(§ 48.100(a))

  1. What information must be submitted (MODEL):

(a)  Applicant name.

(b)  Applicant’s physical address and if the applicant does not receive mail at their physical address, a mailing address must also be provided.

(c)  Applicant’s e-mail address.

(d)  Other information as required by the Administrator.

NOTE: The Model Aircraft operator does not have to include aircraft manufacturer, model name and serial number.

(§ 48.100(b))

  1. What does it cost:

(a)  UAS: $5.00 per aircraft (§ 48.30(a))

(b)  Model: $5.00 per certificate (§ 48.30(b))

→ In an effort to encourage as many people as possible to register quickly, the FAA is waiving this fee for the first 30 days (from Dec. 21, 2015 to Jan 20, 2016).

  1. How often do I have to change the information or re-register:

(a)  Correct information: The holder of a Certificate of Aircraft Registration must update the information using the web-based small unmanned aircraft registration system within 14 calendar days of the following:

(1)  A change in the information provided under § 48.100.

(2)  When aircraft registration requires cancellation for any reason including sale or transfer, destruction, or export.

(§ 48.105)

(c)  Renewal: A Certificate of Aircraft registration issued under this part expires 3 years after the date of issue unless it is renewed (UAS§ 48.110(b); Model § 48.115(c)).

  1. Where does the registration number go:

(a)  All small unmanned aircraft must display a unique identifier.

(b)  A unique identifier is the FAA-issued registration number

(c)  The Administrator may authorize the use of the small unmanned aircraft serial number.

(§ 48.200)

  1. What happens if I do not register: Failure to register an aircraft may result in regulatory and criminal sanctions. The FAA may assess civil penalties up to $27,500. Criminal penalties include fines of up to $250,000 and/or imprisonment for up to three years (FAA Q&A).
  1. Do I need to have my UAS certificate with me when I fly my drone: A certificate of registration will be available to download and will be sent to your email address at the time of registration.

(a)  When operating your UAS you must be able to present the certificate in either print or electronic.

(b)  If you are asked to show your certificate of registration, you can show it electronically. You do not have to print the certificate.

  1. Who can see the data that I can enter: The FAA will be able to see the data that you enter. The FAA is using a contractor to maintain the website and database, and that contractor also will be able to see the data that you enter. Like the FAA, the contractor is required to comply with strict legal requirements to protect the confidentiality of the personal data you provide. Under certain circumstances, law enforcement officers might also be able to see the data (FAA Q&A).
  1. The FAA provided a lot more answers to reasonable questions here: FAA Q&A.
  1. Can I fly my UAS off shore to avoid the FAA: The FAA notes that under Presidential Proclamation 5928, the territorial sea of the United States, and consequently its territorial airspace, extends to 12 nautical miles from the baselines of the United States determined in accordance with international law (p. 35 of IFR).
  1. The realities (?) of regulatory world; here are some of the technical findings made in the IFR to get it through OMB:

(a)  The estimated time for a model aircraft owner to establish an online account and register an aircraft, under this rulemaking, is estimated to take 5 minutes; a registration renewal for these owners is also estimated to take 5 minutes. The bulk of this time includes reading and acknowledging basic safety information presented during the registration process.

(b)  The estimated time for a non-modeler registrant to establish an online account and register two small unmanned aircraft is 7 minutes; 5 minutes to establish an account plus 1 minute per small unmanned aircraft.

(c)  The FAA assigns an hourly value of $19.13 per hour for the value of time for model aircraft registrants and $24.89 per hour for the value of time for non-modeler registrants.

(d)  We assume this regulation does not affect the levels of FAA manpower or resources expended on UAS safety education and outreach but it will allow the FAA to target those efforts, making those on-going efforts more effective.

(e)  We do not attempt to quantify any safety benefit from this regulation.

  1. Initial Reactions

(a)  ALPA commends the new registration requirements. 

“…it will require the registration of unmanned aircraft systems (UAS) as a tool to help ensure that owners and operators fly their aircraft safely in skies they share with airliners carrying passengers and cargo. The FAA’s UAS registration requirement will facilitate the enforcement of regulations and demonstrate to purchasers the responsibility that comes with owning and operating a UAS in the U.S. national airspace. While the registration requirement for UAS is a significant step forward, ALPA believes the rule will be most effective.”

(b)  The Competitive Enterprise Institute threatens litigation:

“The FAA’s claim that complying with notice and comment requirements for small drone registration regulation is ‘impracticable and contrary to the public interest,’ so that it can therefore ignore them, is as predictable as it is absurd,” CEI transportation policy expert Marc Scribner said in a statement. “In issuing this unlawful interim final rule, [Transportation Secretary Anthony Foxx] and [FAA Administrator Michael Huerta] are practically demanding litigation.”

(c)  The Small UAV Coalition asserts that the $5 registration fee “may prevent users from registering for both convenience and cost, especially in the case of small toy-like UAVs [unmanned aerial vehicle].”

(d)  The National Business Aviation Association, an aviation industry advocacy group and a member of the registration task force, said in a statement that more people would register if it was free. “Given the agency’s stated goal that the registration process should serve primarily to educate [operators of small drones], we feel that process should be as inclusive as possible,” Sarah Wolf, a senior manager for security and facilitation for NBAA, said in a statement.

(e)  Doug Johnson, a vice president of technology policy for the Consumer Technology Association and a member of the registration task force, called the registration fee a “drone tax.” “We all felt that having a fee-based system as opposed to something that was free could hamper the registration system,” Johnson said. Adding “at least a step or two” in the registration process might dissuade people from signing up, even in the face of penalties, he said. Additionally, the registration fee, no matter how minute, risks dissuading people from buying drones, Johnson said. Even a “small amount could influence a decision,” he argued.

(f)  Joshua Kopstein Contributor to Motherboard – I’ll Register My Drone When You Have to Register Your Gun

(g)  Mandatory process at the point of sale – See more at: ALPA Commends FAA’s Unmanned Aircraft Registration Requirement



Final Rule: Registration and Marking Requirements for Small Unmanned Aircraft

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