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.

FAA Proposes $1.9 Million Fine for Unauthorized Drone Use - Part Two

As discussed in the prior post, the ramifications of the proposed $1.9 million civil penalty against SkyPan International, Inc. by the Federal Aviation Administration are significant. 

As the wave of UAS activity in the United States mounts and will increase substantially in the future (the FAA estimates one million drones will be sold during the upcoming Christmas holidays in  2015 alone), the FAA has implemented a tripartite strategy to stay ahead of the rash of unsafe and  unauthorized activities which will inevitably follow in the future. 

The first leg of the strategy is education, which involves several public outreach programs involving the FAA.  One example is the “Know Before You Fly” educational campaign, which provides prospective UAS operators with information and guidance they need to fly safely and responsibly online at http://knowbeforeyoufly.org. Another is B4UFLY.  B4UFLY is a smartphone app that the FAA says users will be able to access before they operate their unmanned aircraft to determine  whether there are any restrictions or requirements in effect at the location where they want to fly. On August 28, 2015, the FAA indicated that it released B4UFLY to approximately 1,000 beta testers, including members of industry, government, and the public.

According to the FAA, this limited beta test is expected to run for several months, after which the FAA plans to make a final version of B4UFLY available for the general public. The beta version of the app is for iOS devices only, but the FAA intends to release a future version for both iOS and Android devices.

The FAA indicates that key features of the B4UFLY app include:

• A clear "status" indicator that immediately informs the operator about their current or planned location. For example, it shows flying in the Special Flight Rules Area around Washington, DC is prohibited
• Information on the parameters that drive the status indicator
• A "Planner Mode" for future flights in different locations
• Informative, interactive maps with filtering options
• Links to other FAA UAS resources and regulatory information

The second leg of the FAA strategy to limit the amount of unsafe UAS incidents involves an enforcement partnership with local law enforcement authorities. On January 8, 2015, the FAA released a document entitled Law Enforcement Guidance For Suspected Unauthorized UAS Operations, here. The document discusses, inter alia, the law enforcement community’s vital role in deterring, detecting and investigating unsafe operations:

State and local police are often in the best position to immediately investigate unauthorized UAS operations, and as appropriate, to stop them. The document explains how first responders and others can provide invaluable assistance to the FAA by:

·   Identifying potential witnesses and conducting initial interviews

·   Contacting the suspected operators of the UAS or model aircraft

·   Viewing and recording the location of the event

·   Collecting evidence

·   Identifying if the UAS operation was in a sensitive location, event or activity

·   Notifying one of the FAA’s Regional Operation Centers about the operation as soon as possible

The need for this partnership is obvious.  The FAA would require  an army of enforcement employees to control the flood of new UAS activity that will assuredly commence in the not too distant future.  Relying on the assistance of local law enforcement officials makes sense both from a practical and budgetary perspective.

The FAA’s budget for the personnel responsible for regulating the UAS miscreants is illustrative of the enormous practical difficulties facing the agency,  In 2009, the budget for the Office of General Counsel was approximately $43.5 million, and the office had 246 full-time employees.  Those numbers grew to $47.6 million and 252 FTE in 2012.  By 2014, those numbers dipped to $44.19 million and 233 FTE, and in 2015, $44.24 million and 236 FTE.  The requested amounts in the FAA budget for 2016 are $44.786 million and 236 FTE.  These static budget amounts are not nearly sufficient to support the regulatory and enforcement efforts needed in the future to combat  what is anticipated as the onslaught of problems that will arise from UAS miscreants. 

Third, there is new regulation and enforcement.  As discussed elsewhere in this blog, the FAA in February, 2015, proposed rules for the commercial use of UAS in the United States.  It is expected that the final rules will be issued in the early to middle part of 2016.  As stated on my comments filed on behalf of NetMoby, Inc., in the Federal Aviation Administration (FAA), Department of Transportation’s Notice of Proposed Rulemaking in Docket No. FAA-2015-0150, Operation and Certification of Small Unmanned Aircraft Systems, the FAA's Notice Of Proposed Rulemaking for small UAS is an extraordinary moment for 21st-century technology.  The first generation of regulations for small UAS has the potential to revolutionize air traffic not only across the United States of America but around the world. This is particularly true given the anticipated increase in UAS use, and concomitant rise in unsafe behavior, in the near future.

In addition, the Department of Transportation and Federal Aviation Administration has opened Docket No. FAA–2015–4378  seeking comments from the public concerning clarification and a request for information in Docket No. FAA–2015–4378 entitled “Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration.”  See the text of the notice at 80 FR 63912 (October 22, 2015) or here.   In essence, the FAA seeks to require the registration of all UAS and is seeking comments on the best method for allowing owners of UAS to register their aircraft with the FAA.  The FAA states

This document requests information and recommendations regarding what information and registration platform would be appropriate for UAS registration and ways to minimize the burden to the regulated community. In addition, we request comment on which UAS, based on their weight or performance capabilities, warrant a continued exercise of discretion with respect to requiring registration because of the negligible risk they pose to the national airspace system (NAS).

Registration will be an enormous undertaking, both to establish a user-friendly and streamlined platform for the public to use and also to allow the FAA to compile a database for access by the public.  The reason for the FAA’s admitted change in course on the proposed requirements of registration for all UAS, including model aircraft, is of course safety.  The FAA states in the Clarification that:

During the past several months, we have received increasing reports of unauthorized and unsafe use of small UAS. Pilot reports of UAS sightings in 2015 are double the rate of 2014. Pilots have reported seeing drones at altitudes up to 10,000 feet, or as close as half-a-mile from the approach end of a runway. In recent weeks, the presence of multiple UAS in the vicinity of wild fires in the western part of the country prompted firefighters to ground their aircraft on several occasions. These UAS operations are unsafe and illegal. However, only a small percentage of these incidents have resulted in enforcement actions against individuals for unsafe or unauthorized UAS operation because identifying an individual or entity responsible for the dangerous operation of UAS is very difficult.

Finally, the third tool is the FAA's enforcement authority. The $1.9 million fine proposed against SkyPan International, Inc.,  should serve as a tremendous deterrent to other companies in the business community contemplating the unauthorized use of drones should the enforcement action be brought to a conclusion with the imposition of a fine in the neighborhood of the amount proposed.  Whether such a fine will serve as a deterrent to the recreational user community remains to be seen.