As
noted previously in this blog, the FAA determined in 2015 that it was 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 issued an Interim Final Rule clarifying these
statutory requirements and issuing a request for further information. 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.
Required information from
individuals registering small unmanned aircraft intended to be used exclusively
as model aircraft are as follows:
• Applicant name.
• Applicant physical address (and mailing address if different
than physical address
• Applicant e-mail address.
• Other information as required
by the Administrator.
§ 48.100
However, the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) specifically provided that the FAA “may not
promulgate any rule or regulation regarding a model aircraft”, which model
aircraft met all of the following statutory criteria:
• The aircraft is flown strictly for hobby or recreational
use;
• The aircraft is operated in accordance with a
community-based set of safety guidelines and within the programming of a
nationwide community-based organization;
• The aircraft is
limited to not more than 55 pounds unless otherwise certified through a design,
construction, inspection, flight test, and operational safety program
administered by a community-based organization;
• The aircraft is
operated in a manner that does not interfere with and gives way to any manned
aircraft; and
• When flown within 5
miles of an airport, the operator of the aircraft provides the airport operator
and the airport air traffic control tower (when an air traffic facility is
located at the airport) with prior notice of the operation.
John Taylor, an attorney in the Washington
D.C., area and a model aircraft enthusiast, in challenged the Registration Rule
in the U.S. Court of Appeals for the District of Columbia Circuit on this very
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 recent decision, Taylor v. Huerta, No.
15-1495 (D.C. Cir. 2017), the U.S. Court of Appeals vacated the Registration
Rule to the extent it applied to model aircraft. See the text of the decision here.
This is a major blow to the FAA’s plan
to integrate sUAS safely into the National Airspace (“NAS”) . As noted
on a previous post, the FAA on the anniversary of the adoption of the Registration
Rule stated that the rule and the registration system were primarily aimed at
the thousands of drone hobbyists who had little or no experience with the U.S.
aviation system. The agency saw registration as an excellent way to give them a
sense of responsibility and accountability for their actions as the agency
incorporates drones into the National Airspace System. At that point the FAA noted that the registration
system has registered more than 616,000 owners and individual drones. Now that
the Court of Appeals has removed this requirement, the FAA is left with very
little ability to track the ownership of the vast majority of registered UAS owners.
The Court of Appeals did note that:
Aviation safety is obviously an important goal, and the
Registration Rule may well help further that goal to some degree. But the
Registration Rule is barred by the text of Section 336 of the Act. See
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511
U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation
of the text and structure of the Act . . . .”). Congress is of course always
free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft.
Perhaps Congress should do so. Perhaps not. In any event, we must follow the
statute as written.
The
Court of Appeals did perhaps provide some enforcement leeway to the FAA stating
that:
We note that Section 336(b) expressly preserves the FAA’s
authority to “pursue enforcement action against persons operating model
aircraft who endanger the safety of the national airspace system. (Citation omitted.) That provision, however, is tied to
safety. It does not authorize the FAA to enforce any pre-existing
registration requirement.
As NASA in conjunction with the FAA
and its development partners develops its UTM for the traffic management of
sUAS in the NAS, it would appear that the safety element addressed in this
dicta may allow the FAA to impose some type of registration requirement, not
pre-existing, in order to participate in
the UTM for flights of sUAS,
However, one thing is clear from
the language in the Taylor decision: the
FAA would appear to be barred from making any rule with respect to model
aircraft that contravenes the language in the FAA Modernization and Reform Act
of 2012.
