Saturday, December 28, 2019

The FAA Proposes a Landmark Rule for UAS Remote Identification



In the FAA Modernization and Reform Act of 2012, Congress tasked the Secretary of Transportation with developing “a comprehensive plan to safely accelerate the integration of

civil unmanned aircraft systems into the national airspace system.” Pub. L. 112-95, § 332(a)(1), 126 Stat. 11, 73 (codified at 49 U.S.C. § 40101).               

In 2016, pursuant to the instruction of the FAA Modernization and Reform Act, the Federal Aviation Administration  (FAA) promulgated the rule establishing the regulatory scheme  for drones in  Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064 (June 28, 2016) (hereinafter “Small UAS Rule”). This rule added a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for routine civil operation of small UAS (i.e., drones) in the national airspace system (“NAS") and to provide safety rules for those operations.

The key element to this new part 107 to CFR Title 14 was to allow commercial operation of Small UAS, i.e., drones weighing less than 55 pounds.

Now, in a truly landmark event, the U.S. Department of Transportation’s Federal Aviation Administration (FAA) on December 26, 2019, announced in a press release a proposed rule that would continue the safe integration of Unmanned Aircraft Systems (UAS), commonly called drones, into the nation’s airspace by requiring them to be identifiable remotely.

“Remote ID technologies will enhance safety and security by allowing the FAA, law enforcement, and Federal security agencies to identify drones flying in their jurisdiction,” said U.S. Transportation Secretary Elaine L. Chao.

The FAA states that the adoption of the proposed rule would then require the remote identification of unmanned aircraft systems. The remote identification of unmanned aircraft systems in the airspace of the United States would address safety, national security, and law enforcement concerns regarding the further  integration of these aircraft into the airspace of the United States while also enabling greater operational capabilities.

The FAA will seek input regarding the Notice of Proposed Rulemaking (“NPRM”) for Remote Identification (“Remote ID”) of Unmanned Aircraft Systems  that was placed on display in the Federal Register on December 26, 2019. The document details in the Federal Register accompanying the proposed rule indicates that the 319-page NPRM, Document No. 2019-28100 in Docket No.: FAA-2019-1100 will be published on December 31, 2019. The publication date will establish a 60-day window for the filing of comments by interested parties to assist the FAA in developing a final rule to enhance safety in the skies over the U.S. due to the implementation of Remote ID systems.

See a copy of the complete FAA Remote ID NPRM  here.

As the reader might imagine, the 319-page document establishing the FAA’s Remote ID regulatory scheme, which program will be the foundation for all drone traffic management in the future, is  intensely complicated. As the FAA notes in its press release, Drones are a fast-growing segment of the entire transportation sector – nearly 1.5 million drones and 160,000 remote pilots are registered with the FAA, with that number estimated to increase as the FAA implements its Remote ID program and teh commercial drone industry continues to mature. Consequently, all interested parties are encouraged to weigh in with comments regarding this revolutionary proposal..  

A more detailed analysis of the NPRM, section by section, will follow in future posts.

Monday, February 18, 2019

The FAA’s New Interim Final Rule Requires External Marking of Registration Numbers on Small Unmanned Aircraft



The FAA has now issued a new Interim Final Rule on February 13, 2019, which revises the small unmanned aircraft marking requirement. The new Interim Final Rule becomes effective February 25, 2019.  See 84 FR 3669 (February 13, 2019)  (“2019 Interim Final Rule”).  The FAA now requires that the registration number be marked on the exterior of the aircraft. The FAA is taking this action in the 2019 Interim Final Rule to address concerns expressed by the law enforcement community and the FAA’s interagency security partners regarding the risk that a concealed explosive device poses to first responders who must open a compartment to find the small unmanned aircraft’s registration number.

As background, the FAA observed that in the interim final rule titled “Registration and Marking Requirements for Small Unmanned Aircraft” (Registration IFR), the agency  provided a web-based aircraft registration process for the registration of small unmanned aircraft to facilitate compliance with the statutory requirement that all aircraft register prior to operation. See 80 FR 78593 (December 16, 2015). The Registration IFR also required that the FAA-issued number assigned during the registration process be affixed or marked on the small unmanned aircraft. To grant flexibility to the diverse types of small unmanned aircraft commercially available, the FAA required that the registration number marking be readily accessible and maintained in a condition that is readable and legible upon close visual inspection. The IFR further explained that markings in an enclosed compartment, such as a battery compartment, will be considered readily accessible if they can be accessed without the use of tools. See 80 FR at 78627-28.

As the FAA noted, after the 2015 Registration IFR became effective, the law enforcement community and FAA’s interagency security partners highlighted the risk to first responders when registration numbers are permitted to be concealed. To address this safety and security risk, the FAA is amending 14 CFR 48.205(c) to require the registration number be displayed and visible on an external surface of the small unmanned aircraft. The FAA indicated in the 2019 Interim Final Rule that the agency has determined that the importance of mitigating the risk to first responders outweighs the previously discussed aesthetic interests and justifies the minimal burden and inconvenience this change could impose on small unmanned aircraft owners.  Consequently, small unmanned aircraft owners are no longer permitted to enclose the FAA-issued registration number in a compartment.

Comments may be submitted by the public in this proceeding on or before March 15, 2019. 
Comments may be submitted electronically following the instructions in the link here:  

Monday, September 3, 2018

FAA Prevails in Challenge to Drone Regulatory Scheme



 
 

John Taylor, an attorney in the Washington D.C. area and a model aircraft enthusiast, has been actively challenging the Federal Aviation Administration ("FAA") rules regarding unmanned aircraft systems ("UAS"s, more popularly known as "drones") since the time the rules were enacted, with varying success..


 

In the FAA Modernization and Reform Act of 2012, Congress tasked the Secretary of Transportation with developing “a comprehensive plan to safely accelerate the integration of
civil unmanned aircraft systems into the national airspace system.” Pub. L. 112-95, § 332(a)(1), 126 Stat. 11, 73 (codified at 49 U.S.C. § 40101) (“FAA Modernization and Reform Act”).

 

In 2015, the FAA issued a rule requiring registration of all UAS including model aircraft.  See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,59  (December 16, 2015)  (the “Registration Rule”).  The Registration Rule extended to

Unmanned aircraft weighing less than 55 pounds and more than 0.55 pounds (250 grams) on takeoff, including everything that is on board or otherwise attached to the aircraft and operated outdoors in the national airspace system.

The FAA determined that “Owners of small unmanned aircraft must register their aircraft
prior to operation of the sUAS.”  No exception was created for model aircraft.

Taylor challenged the Registration Rule in the U.S. Court of Appeals for the District of Columbia Circuit on this basis, i.e.,  Taylor argued that the FAA did not have  the statutory authority to issue the Registration Rule and require him to register his model aircraft due to this  language in the FAA Modernization and Reform Act of 2012.   The Court of Appeals agreed.  In a decision issued March 19, 2017, Taylor v. Huerta, 856 F.3d  1089,  1093   (D.C. Cir. 2017), the U.S. Court of Appeals vacated the Registration Rule to the extent it applied to model aircraft. 

 

However, Taylor’s victory was short-lived.  In December, 2017, Congress passed the  National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No.115-91, § 1092(d), 131 Stat. 1283, 1611 (2017).  Section `1092 9d) of the bill provides:

(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.

Undeterred, Taylor was back at it again with a subsequent petition for review filed  in the U.S. Court of Appeals for the District of Columbia Circuit challenging the FAA’s entire regulatory scheme for drones. 

In 2016, pursuant to the instruction of the FAA Modernization and Reform Act, the FAA promulgated the rule establishing the regulatory scheme  for drones in  Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064 (June 28,
2016) (hereinafter “Small UAS Rule”).

This rule finalized the notice of proposed rulemaking entitled Operation and Certification of Small Unmanned Aircraft Systemsin Docket No. FAA-2015-0150, 80 Fed. Reg. 9,544 (February 23, 2015).  This rule added a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for routine civil operation of small UAS (i.e., drones) in the NAS and to provide safety rules for those operations. 

The Small UAS Rule also added part 101 pursuant to section 336 of the FAA Modernization and Reform Act, which authorized a statutory “Special Rule for Model Aircraft.”

It was Part 107 which Taylor challenged, primarily because, as was his objection in Taylor v. Huerta, Taylor contended that the  Part 107 rule contained provisions with respect to Part 336 of the Modernization Act’s safe harbor exception which exceeded  the  agency’s  statutory authority and were arbitrary and  capricious. The Court, in an opinion written by Chief Judge Merrick B. Garland , denied Taylor’s petition for review. See Taylor v. FAA, No. 16-1302 (D.C. Cir. 2018). 

The decision in Taylor v. FAA I singularly important because it upholds the FAA’s regulatory scheme for small UAS.  The agency and the drone industry can now move forward with confidence that the rules in place for integration of UAS  into the national airspace system have withstood a serious legal challenge.