Task Force Makes Drone Registration Recommendations Expected To Be Adopted By The FAA, But On What Authority?

On November 21, 2015, the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee, chartered by the FAA, issued its Final Report to the FAA containing the Task Force's recommendations for how the FAA should implement a national drone registry system. With the dueling goals of maintaining safety in the National Airspace System (NAS) while also encouraging the emergence of the nascent UAS industry, the Task Force was given a difficult job: "develop recommendations for the creation of a registration process" for sUAS. The Final Report is particularly timely, as somewhere between 500,000 to 1 million drones (nearly all of which will be sUAS) are expected to be sold in the United States over the upcoming holiday season.

THE TASK FORCE'S RECOMMENDATIONS

Although the final report contains ample evidence of disagreement amongst the Task Force's 25 members (which ranged from Google to DJI to Walmart), a "general consensus" was ultimately reached on the following recommendations:

Users must fill out "an electronic registration form through the web or through an application, which would immediately provide the user with an electronic certificate of registration and a personal universal registration number for use on all sUAS owned by that person." The registration number must be marked on the sUAS before operations in the NAS in a way that is "readily accessible." A user could also opt to identify the drone using the unique serial number provided by the manufacturer in lieu of using the FAA-generated registration number. The registrant must be at least 13 years old and provide his or her name and physical address to the FAA. Registration should encompass an "education component," similar to Know Before You Fly.1 Drones that weigh 250 grams or less, including the aircraft, payload, and any other associated weight, would be exempted from the registration requirement. According to the Task Force, these recommendations will serve the goals of: (i) educating users on the safe operating rules for sUAS; (ii) linking a sUAS to the operator in the event of an incident or accident; and (iii) taking a risk-based approach to registration.

Although the recommendations appear straightforward, they leave some unanswered questions. For example, how useful will a registration number be in the event a drone actually collides with, and is completely destroyed by, a manned aircraft? And what good is the 250 gram exemption when nearly every drone, even toys, weighs more than that? The Task Force implicitly acknowledged these questions, but did not answer them, citing the "time-limited tasking" they were given by the FAA.

Despite these questions, it is anticipated that the FAA will adopt, in large part, the Task Force's recommendations and issue a "direct final rule" requiring registration through its "emergency" rulemaking power under the Administrative Procedure Act (APA)...