Saturday, January 9, 2016

Analysis of the FAA's Interim Final Rule Governing UAS Registration

As noted in the previous post, the FAA has determined that it is time in the development of UAS regulation and operation  to enforce the applicability of the statutory requirements regarding aircraft registration to UAS, including those operating as model aircraft. In response to the Clarification and Request For Information document in Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration (“Clarification”) in Docket No. FAA-2015-4378, 80 FR 63912 (October 22, 2015),   the FAA has now issued an Interim Final Rule ("IFR") clarifying these statutory requirements and issuing a request for further information.  See Registration and Marking Requirements for Small Unmanned Aircraft, 80 FR 78593 (December 16, 2015) .

In the Clarification, the FAA requested comments on the following specific issues: 

1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?

2. At what point should registration occur (e.g. point-of-sale or prior-to-operation)? How should transfers of ownership be addressed in registration?

3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?

4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.

5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?

6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?

7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?

8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?

9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (e.g. PayPal)?

10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?

The Federal Aviation Administration (FAA) chartered the Unmanned Aircraft Systems (UAS)Registration Task Force (RTF) Aviation Rulemaking Committee (ARC) (Task Force) to provide recommendations to the FAA “on registration requirements and process for small UAS, including those used for commercial purposes, and all model aircraft.”  On October 20, 2015.  The Task Force issued its recommendations in a Final Report on November 21, 2015.

Robert E. Kelly on behalf of NetMoby, Inc., on November 6, 2015, submitted timely comments in reply to the Clarification which submission addressed the issues above. 
Not surprisingly, the Task Force, comprised  almost entirely of aviation industry companies and businesses with an acute interest in the development of the drone industry, such as Amazon and Wal-Mart,  issued recommendations that were not followed in toto by the regulatory-minded FAA.  

The following will analyze the IFR and which elements of the above list of issues were adopted in the Task Force's Report and which of NetMoby’s  comments were adopted as well. 

1.  Unmanned Aircraft Covered By The Registration Requirement. 

The FAA’s IRF requirement for the category of UAS covered by the IRF is:
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.

This requirement follows the Task Force recommendation to the letter.  NetMoby had recommended that all UAS below 55 pounds be registered, but acknowledges the concern that aircraft weighing less than 0.55 pounds (250 grams) might be considered toys.  However, the Task Force in its Report did note that an object with a kinetic energy level of 80 Joules (or approximately 59 foot-pounds) has a 30% probability of being lethal when striking a person in the head. Solving for mass and velocity, this equates to an object weighing 250 grams traveling at a terminal velocity of 25 meters/second or approximately 57 miles per hour. 

2.  Timing of Registration

The FAA determined that “Owners of small unmanned aircraft must register their aircraft prior to operation of the sUAS (small UAS").” 

Both the Task Force and NetMoby recommended registration prior to operation of the UAS, rather than at point of purchase.  As NetMoby pointed out, it  should be clear that registration by the owner is a pre-condition to legal operation of the UAS and should be the responsibility  of the owner, not  the entity selling the  UAS.  Furthermore, the point-of- sale approach would be an enormous burden on the merchant selling the UAS. It would also present a problem discriminating against brick-and-mortar merchants versus those selling UAS online. The purchase transaction itself would be tremendously complicated by the requirement of a simultaneous registration process at the point of purchase. This would hinder sales of the UAS and the concomitant development of the UAS industry. 

3.   Minimum Age To Register A Small Unmanned Aircraft 

The FAA established  the minimum age to register a small unmanned aircraft in the IRF as follows:

Persons 13 years of age and older are permitted to use the part 48 process to register a small unmanned aircraft. 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. 

The Task Force had recommend the 13 years of age benchmark for registration.  This position is not surprising from the Task Force/industry perspective, as it will allow for a greater universe of registrants.  NetMoby had urged in its comments submitted in the FAA’s Notice of Proposed Rulemaking for Small UAS in Docket No. FAA-2015-0150, 80 Fed. Reg. 9,544 (February 23, 2015) that a 16-year old limit for small UAS operators may be reasonable for hobbyists and students, but that the age limit should otherwise be 18 years of age for small UAS operators. 

4.     Registration Platform.

The FAA determined in the IRF that registration will occur through an online web-based system.  This makes eminent sense.  The FAA in the Clarification notes that "To date, UAS operators that the Department has authorized have been required to register their UAS through the FAA's existing paper-based registration process under 14 CPR part 47." The FAA acknowledged in its Clarification that “… it is apparent that the current paper-based system for aircraft registration is too burdensome for small UAS.”  As NetMoby had urged in its comments, the volume of paperwork alone in a paper-based registration system, even if a one-page registration form were used, would have clogged the FAA' s limited resources beyond salvage. To continue a paper based registration platform for UAS going forward simply was not feasible.  The Task Force also recommended a web-based platform for registration.

To be continued in the next post.