by Russell A. Klingaman
Attorney At Law
On December 14, 2015, the Federal Aviation Administration (FAA) issued its interim final rule entitled “Registration And Marking Requirements For Small Unmanned Aircraft” (80 Federal Register 78594). The registration rules, which became effective one week later (December 21, 2015), establish a web-based process for the registration of small unmanned aircraft systems (sUAS) used by non-commercial (i.e. hobby or recreational) owner/operators. The FAA created the rule based upon its review of public comments and recommendations from the Unmanned Aircraft System Registration Task Force.
In its executive summary for the rule, the FAA estimates that 1.6 million small unmanned aircraft systems would be sold in 2015 to non-commercial operators. The FAA declared: “With this rapid proliferation of sUAS will come an unprecedented number of sUAS owners and operators who are new to aviation and thus have no understanding of the NAS [National Airspace System] with the safety requirements for operating in the NAS.”
The registration process has two primary goals: (1) educate UAS operators on safety requirements before they begin flying, and (2) quickly identify operators in the event of an incident or an accident involving UAS equipment.
Here is a summary of the major provisions in the registration rule:
• Registration is required for all recreational operators of UAS equipment as “model aircraft” weighing more than .55 pounds and less than 55 pounds.
• Using an online web-based system, each registrant will be required to provide the FAA with: (1) his/her name, (2) a physical address, (3) an e-mail address, (4) the UAS make, model, and serial number, if available, and (5) credit card information for the registration fee.
• Each operator is assigned a registration number which must be written on or affixed to each UAS operated by the registrant.
• The registration fee is $5 per operator, regardless of the number of UAS owned by the registrant. (Registrants will receive a $5 credit – making the registration free – if they get registered before January 21, 2016.)
• Registration is required for operators 13 years of age and older (younger owner/operators must have their aircraft registered by a person who is at least 13 years of age).
• Registration is not required for UAS equipment operated exclusively indoors.
Each registrant will receive, via email, a Certificate of Aircraft Registration. Once the registrant completes the registration process, the certificate will be available for download.
Operators may print a hard copy of the certificate if they wish. A person operating UAS equipment in the NAS will be required to present his/her certificates when requested by federal, state or local law enforcement officers.
Concerning enforcement, the FAA has the power to impose significant civil penalties – up to $27,500 – per violation. It is unlikely, however, that large fines (i.e. greater than $1,000) will be imposed upon first-time violators of the registration rule in the absence of evidence of other misconduct. In 2015, the FAA adopted a new compliance philosophy putting greater emphasis on education, and less emphasis on punishments. See FAA Orders 8000.373 and 2150.3B.
It must be recognized that the registration process does not apply to UAS equipment operated for commercial purposes, which are governed by section 333 of Public Law 112-95, otherwise known as the FAA Modernization and Reform Act of 2012.
Education As A Primary Goal
One of the main goals of the registration rule is to reduce unsafe operations through education. Each registrant will receive important educational information along with his/her certificate. Concerning education, the FAA states:
The small unmanned aircraft registration platform described in this rule will require the registrants to review a summary of the sUAS operational guidelines before completing unmanned small aircraft registration. The FAA believes this is an invaluable access point to deliver sUAS operational safety information. The information will also direct registrants to additional sources of safety information generated by the FAA and other stakeholders, such as FAAsafety.gov and knowbeforeyoufly.org. Delivering post registration safety information to registrants on a continuous basis will help to remind the registrant[s] of their safety-of-flight obligations and help reduce sUAS risks in the NAS.
The rest of this article will discuss some of the most interesting proposals submitted to the FAA during the lead up to the creation of the registration rule. As UAS problems grow, it is reasonable to predict that some of the topics discussed below may become part of the laws governing UAS operations.
Personal Information For Registration
Many commenters suggested that the FAA should collect more information from registrants than just name, address and email. They want the FAA to collect and record personal information such as: (1) dates of birth, (2) driver’s license numbers, (3) Social Security numbers, (4) passport numbers, (5) nationality, (6) proof of citizenship, and (7) insurance information.
The FAA justifies its need for just basic contact information as follows:
An accurate mailing address is necessary because the FAA often relies on regular mail by the United States Postal Service to provide notice of administrative actions, serve enforcement documents, and provide other information.
Although email will reduce the agency’s reliance on regular mail for certain purposes, such as the provision of educational material, a mailing address is still required to support the agency’s compliance and enforcement actions.
Specifically justifying the need for an email address, the FAA said: “[E]mail allows for targeted delivery of educational [and] other safety-related materials directly to small unmanned aircraft owners.”
Point-of-Sale Registration
One area of considerable controversy surrounding the new rule is the FAA’s rejection of a registration-at-the-point-of-sale requirement. Commenters supporting a point-of-sale rule argued that UAS purchasers should be forced to demonstrate their knowledge of UAS rules of operation as part of the purchase transaction. The FAA determined, however, that it did not possess the power to create a point-of-sale rule. See 49 U.S.C. sec. 44101(a), which states that aircraft registrations are only required prior to operating aircraft, not when aircraft are purchased.
However, the FAA also stated:
[The new rule] does not foreclose the opportunity for the development of the point-of-sale web-based application for registration that relieves the associated burdens identified by commentators. The agency encourages innovation in point-of-sale registration as it may provide the agency with a means by which to receive information regarding small unmanned aircraft in a seamless fashion, and hopes to work with retailers and manufacturers in the future to make the process as simple as possible.
Marking UAS Equipment With Registration Information
Many commenters were opposed to the idea of simply handwriting the registrant’s certificate number on his/her UAS equipment. In fact, several commenters proposed various electronic means to aid in UAS identification, such as requiring UAS equipment to emit a radio signal to aid in identification. One commenter recommended having a microchip on each UAS programmed to the registration number so that an electronic device, such as a smart phone with the proper app installed, could read the microchip and display the aircraft’s registration number. Concerning these suggestions, the FAA simply stated: “[A] requirement to identify a small unmanned aircraft using certain equipment [is] beyond the scope of this rule.”
UAS Pilot Certificate
A number of commenters recommended that the FAA implement a licensing system for UAS recreational operators – not just a registration system. They believe that registration alone does little to guarantee that a recreational UAS operator understands the rules of safety for operating in the NAS. They argue that a licensing system – with a testing component – is the best way to ensure safe operations in the NAS. They want a rule that requires registrants to pass a test as part of the registration process.
As with the point-of-sale suggestions, the FAA determined that it does not have the power to require a license for recreational/model UAS operators under the 2012 Reform Act.
Equipment – Based Requirements
Many of the comments received by the FAA focused not only on rules applicable to the operators, but applicable to the equipment itself. These commenters argued for equipment requirements, such as: (1) indestructible data plates, (2) ADS-B transmitters, and (3) visible strobe lights. Other examples of such technologies are QR codes and radio frequency identification (RFID). Some commenters argued that UAS equipment should be manufactured so that it can only be turned on and operated after the consumer registers the UAS and receives and applies an “activation code.” Again, the FAA rejected these proposals as beyond its current set of goals and/or powers.
Future UAS Requirements?
It is important to recognize that the new registration rule is only the first step towards managing the new problems and safety concerns created by the rapid proliferation of UAS equipment in the NAS. Along these lines, the FAA states:
[T]he agency expects to continuously evaluate the database and the web-based registration process and look for opportunities to further develop the technical functionality of both. As with other aspects of UAS integration into the NAS, our approach to registration will be incremental. The Administrator may authorize expanded technical capabilities going forward, but the initial goal is to make this process as minimally burdensome as possible to encourage compliance with the registration requirement.
Concerning the future of UAS regulations, the FAA says:
Accountability in sUAS operation, along with identification of the aircraft owner, are desired outcomes for this rule.
While commenters provided a number of recommendations for further action towards these goals that are outside the scope of this rule making, the FAA found that one predominant recurring theme addressed education regarding safe sUAS operations.
The FAA agrees that education is a key component for reaching the agency’s aircraft registration goals and is an overarching tenet in ensuring the safety of the NAS. The FAA will continue to evaluate these additional methods recommended by the commenters for encouraging safe and responsible use among sUAS operators for future guidance material and rule-making.
Is The New Rule Better Than Nothing?
The critics of the new registration rule can be divided into two broad categories: (1) those who believe the FAA has gone too far, and (2) those who believe the FAA has not gone far enough.
In the first group are leaders and members of the Academy of Modern Aeronautics (AMA). These folks oppose the registration rule on various grounds including: (1) the safety risks of UAS recreational operations in the NAS are overestimated, and (2) the registration rule violates the 2012 Reform Act. In fact, the AMA has advised its members (totaling approximately 185,000) not to participate in the registration program. The AMA has also indicated it may make a legal challenge to the new rule. The AMA’s arguments are based, in part, on language in the 2012 Reform Act which states that the FAA “may not promulgate any rule or regulation regarding a ‘model aircraft’.” One criteria for being a model aircraft is that it be operated “in accordance with a community-based set of Safety Guidelines and within the programming of a nationwide community-based organization.”
On the other side of the debate are folks who believe that the FAA should impose UAS rules more comprehensive than just a web-based registration process.
So, did the FAA go too far, or not far enough, with its new registration rule? This author believes that the FAA’s registration program is a good start to dealing with the growing UAS problem. As a final note, it should be recognized that the FAA’s new UAS registration rule is being challenged in court. Stay tuned!
EDITOR’S NOTE: Russell A. Klingaman is a partner with the Hinshaw & Culbertson LLP law firm in Milwaukee, Wis. As an instrument-rated private pilot and aircraft owner, Klingaman has a special interest in aviation law, and teaches aviation law at Marquette Law School and UW-Oshkosh. Questions and comments about the foregoing topic may be directed to Russell A. Klingaman at rklingaman@hinshawlaw.com.
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