FAA Releases Mandatory Drone Registration Interim Final Rule
On December 16, the FAA will publish its interim final rule (IFR) on Registration and Marking Requirements for Small Unmanned Aircraft in the Federal Register. The prepublication rule can be found here. IFRs take effect immediately upon publication (more on this below).
Here is the FAA’s summary of major provisions to be included under 14 C.F.R. Part 48 (Table 1, p. 6):
|
Issue |
Interim final rule requirement |
|
Unmanned aircraft covered by the registration requirement |
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 must register. § 48.15 |
|
Timing of registration |
Owners of small unmanned aircraft must register their aircraft prior to operation of the sUAS. § 48.15 |
|
Compliance dates |
December 21, 2015 · Any small unmanned aircraft to be used exclusively as model aircraft that have never been operated. · Small unmanned aircraft to be used in authorized operations as other than model aircraft continue to use part 47 registration process. February 19, 2016 · Small unmanned aircraft to be used exclusively as model aircraft and have been operated by their owner prior to December 21, 2015. March 31, 2016 · Small unmanned aircraft to be used in authorized operations other than as model aircraft continue to use part 47 registration process or use part 48 process. § 48.5 |
|
Minimum age to register a small unmanned aircraft |
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. § 48.25 |
|
Registration platform |
Registration will occur through an online web-based system. § 48.100(c) |
|
Registration number |
Each small unmanned aircraft intended to be used other than as a model aircraft and owned by individuals or other persons, including corporations, will be issued a Certificate of Aircraft Registration with a unique registration number. § 48.110(a) A Certificate of Aircraft Registration and registration number issued to an individual intending to use small unmanned aircraft exclusively as model aircraft, constitutes registration for those small unmanned aircraft owned by that individual that are intended to be used exclusively as model aircraft. § 48.115(a) |
|
Registration information |
Required information from persons registering small unmanned aircraft intended to be used as other than model aircraft. · Applicant name or name of authorized representative. · Applicant physical address (and mailing address if different than physical address). · Applicant e-mail address or email address of authorized representative. · Aircraft manufacturer and model name, and serial number, if available. · Other information as required by the Administrator. Required information from individuals registering small unmanned aircraft intended to be used exclusively as model aircraft. · 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 |
|
Registration fee |
Persons intending to use the small unmanned aircraft other than as model aircraft. · $5 to register each aircraft. Individuals intending to use the small unmanned aircraft exclusively as model aircraft. · $5 to register an individual’s fleet of small unmanned aircraft. § 48.30 |
|
Delivery of Certificate of Aircraft Registration |
Upon completion of the registration process, the Certificate of Aircraft registration will be delivered to the aircraft owner via the same web-based platform used to register the aircraft. § 48.100(d) |
|
Information contained on the Certificate of Aircraft Registration |
Small unmanned aircraft owner name, issue date and registration number. |
|
Registration renewal and fee |
A Certificate of Aircraft Registration issued in accordance with part 48 is effective once the registration process is complete and must be renewed every three years. The fee for renewal of a Certificate of Aircraft Registration is $5. §§ 48.110(c), 48.115(c) |
|
Marking |
All small unmanned aircraft must display a unique identifier. · A unique identifier is the FAA-issued registration number. · The Administrator may authorize the use of the small unmanned aircraft serial number. § 48.200 |
Former FAA Chief Counsel Sandy Murdock provides a good summary of the IFR provisions here. CEI’s primary criticism of the FAA’s mandatory drone registration scheme is procedural, specifically that dispensing with the Administrative Procedure Act’s (APA) notice-and-comment requirements by invoking the good cause exception at 5 U.S.C. § 553(b)(3)(B) is unjustified. Thus, we believe the entire IFR is unlawful and the FAA should go back to the drawing board and follow normal APA rulemaking requirements.
As Murdock points out, the FAA noted our criticisms of their reliance on the good cause exception (p. 156) and proceeded to defend their end run around the APA’s rulemaking requirements with more than 20 pages (pp. 11-32). As Murdock summarizes:
The DOT/FAA replied with citation to the basic Congressional mandate to register all aircraft, 49 U.S.C 44101(a) and as further prescribed in 14 CFR part 47, registration is required prior to operation. See 80 FR 63912, 63913 (October 22, 2015). The rationale recites the growth of UASs, the near miss incidents, the FAA’s generic power to regulate air traffic, the absence of aviation experience with these UAS “pilots,” even the comparative ease of electronic filing, etc., as grounds for “good cause.”
There are three prongs of the APA’s good cause exception; that notice and comment is 1) unnecessary, 2) impracticable, and 3) contrary to the public interest. In this IFR, the FAA claims that complying with the APA’s notice-and-comment requirements “is impracticable and contrary to the public interest in ensuring the safety of the [National Airspace System] and people and property on the ground to proceed with further notice and comment on aircraft registration requirements for small unmanned aircraft before implementing the streamlined registry system established by this rule” (p. 19).
Attempting to justify their invoking the good cause exception, the FAA argues that it is impracticable for UAS operators to use the existing Part 47 paper registration process. It claims the large projected increase in UAS in the National Airspace System constitutes an immediate and ongoing safety risk to the National Airspace System, and that complying with notice-and-comment requirements would be contrary to the public interest.
This is entirely predictable. It is also a weak defense of a naked regulatory power grab. The FAA does not adequately explain why it did not begin this process earlier if it is so important, undermining the “impracticability” prong of the good cause exception. It also fails to explain why it believes drone registration alone will have any material impact on aviation safety risks potentially posed by drones, undermining the “contrary to the public interest” prong of the good cause exception.
We will address more of these issues, including the potential problems with the IFR and the FAA Modernization and Reform Act of 2012’s Sec. 336 prohibiting the FAA from promulgating new regulations on model aircraft, in the near future. Suffice to say, we are not impressed.
For more from CEI on mandatory drone registration, see our November 6 comments in response to the creation of the task force and our response to the task force recommendations.