CHRISTMAS MORNING – SOMEWHERE IN AMERICA

A 12-year old boy opens a large package under the tree as his mom looks on with a tired smile.  “A drone!” the boy exclaims. “Just what I wanted! Thanks, Mom! Can I fly it, now? Can I, please?”

“I’m sorry, hon,” his mom sighs, “but you’re going to have to wait. Daddy’s still on the FAA website.”

And there you have it.  For the first time in the history of Christmas, an agency of the United States government will require you to register your child’s toy before he can begin to play with it.

Why?  Good question.

Section 336 of the FAA Modernization and Reform Act of 2012 contains an express prohibition, that the FAA “may not promulgate any rule or regulation regarding a model aircraft. . . .”  We naively assumed that, when Congress says that an agency “may not” do a thing, the agency indeed “may not” do it.

But nothing will upset the Constitutional order of the Republic faster than a bout of media-driven hysteria. The FAA has taken the position that all drones – including what were traditionally called model aircraft – are “aircraft” within the meaning of the Federal Air Regulations.  Taking its cue from panic over sightings of drones coming too close to manned aircraft, the FAA suddenly decided that 49 U.S.C. § 44102 gives it the authority to require registration of all drones, regardless of whether they are operated recreationally or professionally.

A task force of very capable individuals was quickly set up to provide recommendations to the FAA on drone registration.  Their proposal was subjected to a lightning-fast comment period which, depending on who you ask, may or may not have violated the Administrative Procedure Act.

The Final Interim Rule (a title which leads us to suppose that the rule isn’t FINAL final) on drone registration has been published, here.

The putative purpose of the registration requirement:

The estimate for 2015 sales indicates that 1.6 million small unmanned aircraft intended to be used as model aircraft are expected to be sold this year (including approximately 50 percent of that total during the fourth quarter of 2015). With this rapid proliferation of new sUAS will come an unprecedented number of new sUAS owners and operators who are new to aviation and thus have no understanding of the NAS [National Airspace System – ed.] or the safety requirements for operating in the NAS.

The risk of unsafe operation will increase as more small unmanned aircraft enter the NAS. Registration will provide a means by which to quickly identify these small unmanned aircraft in the event of an incident or accident involving the sUAS. Registration of small unmanned aircraft also provides an immediate and direct opportunity for the agency to educate sUAS owners on safety requirements before they begin operating.

Let’s unpack that last paragraph:

  1. The risk of unsafe operation will increase as more small unmanned aircraft enter the NAS.

Well, maybe. The fact is that we don’t really know. Numerous reports of “drone strikes” on manned aircraft have turned out to be false.  In any event, Congress expressly prohibited any “rule or regulation” concerning model aircraft.  We are unaware of the FAA’s authority to circumvent Congress.  Indeed, it is almost laughable that the FAA seized the authority to require registration while claiming, for example, that it lacks statutory authority to waive the airman certification requirement under Section 333 or to waive the registration fee requirement for model aircraft.

  1. Registration will provide a means by which to quickly identify these small unmanned aircraft in the event of an incident or accident involving the sUAS.

This makes two very large assumptions, neither of which are likely to be valid.  First, there have been almost no incidents of alleged threats to the NAS in which the offending drone has been recovered.  Without recovery, there will be no identification.

Second, it assumes 100% compliance with the registration requirement.  We frankly doubt that the level of compliance will be anything approaching 100%.  We especially doubt that those who are intent on causing harm or, at least, mischief, are likely to comply.

  1. Registration of small unmanned aircraft also provides an immediate and direct opportunity for the agency to educate sUAS owners on safety requirements before they begin operating.

This might be true if the rule had either a point of sale requirement (unworkable) or required a device that prevented the drone from being operated before it was registered (some drone companies build this sort of requirement into their devices).  But the rule does neither.

In addition to being likely ineffective and almost certainly contrary to law, the FAA registry will present a significant likelihood of exposing private data to the public.

The drone registration site is here.

The deadlines for compliance is December 21, 2015 for drones that are intended to be used exclusively as model aircraft but never flown, February 19, 2016 for drones that have been previously operated as model aircraft.

Merry Christmas!