sUAS Registration is Poorly Perceived and Poorly Presented.

The FAA requires the registration of all unmanned aircraft including drones and fixed-wing scale model hobby aircraft. This is not a new law, but it is a new rule in 14 CFR Part 48 – “Registration And Marking Requirements For Small Unmanned Aircraft”. The regulation is following the law set by Congress decades ago: 49 USC § 44102 requires aircraft to be registered prior to operation. All aircraft are required to be registered, but the FAA has ignored model aircraft. Until now.

The FAA is following the law – they are not making it up.

Not registering your model aircraft or drone can result in a fine of up to $27,500?

All the press releases say that not registering your model aircraft or drone can result in a fine of up to $27,500. Where does the $27,500 maximum fine come from?

The FAA has the statutory authorization to assess fines up to $27,500 for each violation. But the operative word is “up to”. This level of fine is only assessed for the most egregious violations. The FAA Quarterly Enforcement report reveals that the highest assessments are against airlines for maintenance or hazmat violations. The law giving the FAA the authority to assess fines says:

49 CFR § 46301 – ‘Civil penalties’ (a)General Penalty.— (1) A person is liable to the United States Government for a civil penalty of not more than $25,000 (or $1,100 if the person is an individual or small business concern) for violating—
28 CFR § 85.3 – ‘Adjustments to penalties’ Federal Civil Penalties Inflation Adjustment Act of 1990 allows the adjusted penalties of of civil penalties for violations occurring on or after September 29, 1999.

Why, then would the FAA use the higher, scarier figure for businesses when model aircraft registration applies only to individuals? The memo should read “Up to $1,210 for individuals”. Maybe they think a scarier number will coerce more compliance.

Model aircraft registration appears to be a knee-jerk response to the FAA database of 951 drone sightings this year. (And that’s all they are – someone thought they saw a drone. The data does not support the sensational news headlines of 951 near disasters). But the number of personal drones expected to be in the air in the near future has raised concerns. Registration of model aircraft using existing law offers the FAA an opportunity to deliver some aviation and airspace knowledge to the user. Most of the buyers of personal drones have no clue that a “Class B” airspace exists, let alone how to know where it is.

Registration is poorly thought out only in that it was not promulgated through a normal NPRM process. The FAA had plenty of time to see the need months before implementing an administrative rule that bypassed the requirements of the Administrative Procedure Act (APA).

Registration is also poorly perceived by those who don’t see the bigger picture.

There are, as expected, at least two lawsuits challenging the legality of the new rule. It is difficult to argue why identifying the aircraft owner in case of a crash is a bad thing. What is so wrong with taking a step to ensuring that people fly responsibly, including taking responsibly if their drone causes a problem?

But one of the lawsuits does have merit because the FAA created a new rule in 14 CFR §48.  Section 336 of Public Law 112-95 [The FMRA (PDF)] specifically prohibits the FAA from making new rules regarding Model Aircraft.

(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft,

Should this lawsuit succeed, I think it would only result in a Order of Abeyance until the FAA proposes the new rule through an NPRM.  In other words, only a temporary pause in the registration of model aircraft.

There was one nugget in the Registration Announcement.

The announcement from the FAA includes this provocative line: “The FAA is developing enhancements that will allow [commercial drones] online registrations by March of 2016.” Is this a hint of the publication of the Part 107 rules that are expected in 2016?

When the other shoe drops, things will be more clear.

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