On Saturday, the Unmanned Aircraft System (UAS) Registration Task Force issued its recommendations on a mandatory UAS registration proposal. The report is available here. On October 19, the task force was announced by Transportation Secretary Anthony Foxx and Federal Aviation Administrator (FAA) Michael Huerta. A Federal Register notice followed on October 22. The Competitive Enterprise Institute (CEI) filed comments on November 6.
The recommendations aren’t particularly surprising, as many of the details had been leaked in prior weeks. The main recommendations from the task force are:
- All UAS with a maximum takeoff weight of less than 55 pounds and more than 250 grams (8.8 ounces) that are operated outdoors in the National Airspace System (NAS) must be registered.
- Registration is owner-based and each owner will have a single number, allowing the owner to register any and all UAS that he or she owns.
- Registration will be required prior to operation, not at point-of-sale.
- Registration must include the owner’s name and street address. Mailing address, email address, telephone number, and serial number of the UAS are optional.
- There is no citizenship requirement.
- The registrant must by at least 13 years of age.
- There is no registration fee.
- Registration will be Web-based, with an API that will allow for the development of third-party apps to be used by registrants.
- Registrants will receive a certificate of registration electronically or through the mail if a paper copy is requested. The certificate will contain the registrant’s name, identification number, serial number if provided by the registrant, and a link to an FAA website for authorized users to verify registration. Operators must be able to produce their certificate to authorities whenever their UAS is in operation.
- Registrants must affix their registration number to the UAS, unless they provided the FAA with their UAS serial number(s). Markings must be accessible without the use of tools and be legible upon close visual inspections.
While we are happy not all toy drones will be required to be registered if the FAA adopts the task force recommendations, there are many harmless toys that weigh more than 8.8 ounces. These generally have an extremely limited range (within the low hundreds of feet from the operator) and a short battery life for flight (less than 20 minutes). Should the FAA really be in the business of maintaining a toy registry?
But the biggest problems with FAA’s planned UAS registration mandate is how they are choosing to go about implementing it:
- In 2012, Congress prohibited the FAA from regulating hobbyist UAS operators.
- Mere drone registration will do essentially nothing to mitigate UAS safety risks.
- The FAA is attempting to dispense with the required notice-and-comment rulemaking requirements by invoking the Administrative Procedure Act’s “good cause” exception. This is unlawful.
CEI’s comments from November 6 spell these concerns out in more detail. We believe the Department of Transportation is behaving irresponsibly and unlawfully, ignoring the plain language of Congress’s 2012 FAA reauthorization as well as misinterpreting the extremely narrow “good cause” exception to Administrative Procedure Act rulemaking requirements (5 U.S.C. § 553(b)(3)(B)). If the FAA successfully invokes the good cause exception, it would set a dangerous precedent that should deeply concern all entities regulated by the FAA and Department of Transportation. It should and likely will be challenged in court.