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Is a Drone Registration Mandate Illegal?

Today, the Department of Transportation announced the creation of a task force to develop recommendations for a national drone registration mandate. Transportation Secretary Anthony Foxx stated that he wants the task force to develop their recommendations by mid-November, with the mandate coming into force sometime in mid-December. Secretary Foxx also said that the mandate will apply to all unmanned aircraft systems. Drone lawyer Jonathan Rupprecht has a post on the practical and legal issues of creating and enforcing a registration regime. I’d like to highlight two problems raised by Rupprecht.

If Foxx is accurate, the Federal Aviation Administration will likely be in violation of two different federal laws: the FAA Modernization and Reform Act of 2012 and the Administrative Procedure Act.

First, in the 2012 FAA reauthorization, Congress included a provision (Section 336) that reads, in part:

Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft

Congress clearly intended to protect unmanned aircraft system hobbyists whose model aircraft meet the criteria contained in Section 336, as even the FAA appears to note in its interpretation of Section 336. FAA Administrator Michael Huerta claimed the FAA has existing safety authority to mandate drone registration, but it remains to be seen how the agency can evade Congress’s clear intentions.

Second, Secretary Foxx stated that the FAA plans to complete the rollout of its mandate by mid-December. Under the Administrative Procedure Act, agencies are generally required to solicit comments from the public and then consider relevant comments in their rulemakings. A rulemaking can take years and those subject to the rule are usually given 60 days to comply after the final rule is published in the Federal Register.

Clearly, if the Department of Transportation is claiming it will not allow public comments and will publish a binding regulation requiring UAS registration by mid-December, it is not planning to follow typical rulemaking procedures. The APA contains some exemptions to the normal notice-and-comment process. As Rupprecht points out, the FAA could attempt to invoke the “good cause” exemption (5 U.S.C. § 553(b)(3)(B)) to APA rulemaking requirements to carry out a UAS registration mandate, but would need to show that the typical procedural requirements are “impracticable, unnecessary, or contrary to the public interest.” The FAA would need to show that hobbyists’ UAS present an imminent threat to public safety and that following the APA requirements would endanger public safety. But, as Rupprecht shows, the FAA will also need to explain why it needs to move with such haste, including an explanation for why it didn’t begin this process earlier.

I highly recommend Rupprecht’s full post, where he also questions the FAA’s authority to require point-of-sale registration. The Obama administration has been at the cutting edge of twisting administrative law to serve its ends that run contrary to the intent of Congress, but its forced drone registration scheme will likely take some extra-creative lawyering to save it from a court challenge.

UPDATE: My comments on UAS registration submitted to the FAA on November 6 are here.