11 Problems with Drone Registration
Drones with built-in geofencing will produce far better results than registration by preventing problems as opposed to pointing to who might have done it after something has happened.
Part 91 are the operational requirements for aircraft. 14 CFR 91.203(a) says, “Except as provided in§ 91.715, no person may operate a civil aircraft unless it has within it the following: . . . (2) An effective U.S. registration certificate issued to its owner or, for operation within the United States, the second copy of the Aircraft registration Application as provided for in§ 47.31(c), or a registration certification issued under the laws of a foreign country.”
Did you notice that § 44101 and § 91.301 both say the word “operate” which is defined in 14 C.F.R. 1.1, “Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in §91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).”
Buying a drone from a store is NOT operating a drone. Once the drone leaves the ground outside, then the FAA can argue jurisdiction.
Problem 8: Where is the $$$$?
Who is paying for this? Is this even in the budget of the FAA and DOT? The FAA is currently having to hire more contractors to pick up the slack in the rulemaking department, DOT docket office, and in the ATO with COA processing. Is Oklahoma City going to be responsible for this?
Problem 9: How Does this Work with the Section 336 of the FMRA?
Section 336 of the FAA Modernization and Reform Act says:
(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, if—
(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).
(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.
(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—
(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.
Congress passed this to protect recreational flyers. What the FAA is now doing is not “promulgating” any new regulations but merely repurposing the existing “locked in time because of the FMRA” regulations to try and get jurisdiction over drones. This is evidenced in the latest $1.9 million fine against Skypan where the FAA cited multiple violations of regulations other than the 91.13 careless and reckless prohibition. If the regulations cited above in Problem 7 cannot cover drones being sold in a store because they are not “operating,” the FMRA essentially just locked the FAA out from creating any new regulations.
Problem 10: How is this a Rule and How Will it Get Done by Christmas?
The announcement said they were going to try and roll this out by Christmas. How? Is this non-binding guidance or law? If it is law, then it is required to follow the rulemaking process. The overall idea is that the rulemaking process goes through notice and comment and then publication. The FAA started the rulemaking process in 2009 with the commercial drone rules and they only finally published them in February. That is 6 years! The only way the FAA could do it is through an emergency rulemaking process. This can only happen if there is a direct emergency rule that is published. (I wrote the chapter on the FAA rulemaking process for the American Bar Association book.) I’m just going to start quoting parts of it for your enjoyment.
The normal approach to rulemaking is notice, comment, and then publishing the rule. Publishing a direct final rule which skips the notice step appears to violate the APA; however, the APA allows the FAA to issue a direct final rule without any notice when the FAA has good cause. Good cause is when the rulemaking process is “impracticable, unnecessary, or contrary to the public interest.” The FAA issues final rules in these three good cause situations.
Generally, a direct final rule will take effect 60 days after publication in the Federal Register, unless the FAA receives an adverse comment which is a comment showing the rule is inappropriate, ineffective, or unacceptable. If an adverse comment is received, the FAA may withdraw the direct final rule and publish another direct final rule incorporating the comment or publishing a NPRM.
When Notice and Comment is Impracticable
“This exception can be used when an urgent and unsafe condition exists that must be addressed quickly, and there is not enough time to carry out Notice and Comment procedures without compromising safety.” The manual goes on to say the urgency must be explained and the time to give individuals to comply with the AD must reflect the urgency. “For example, it would make little sense to say immediate action is necessary to prevent a landing gear failure and then allow 60 days compliance time to resolve the unsafe condition. Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.’” In Air Transport Association of America vs. the Department of Transportation, the FAA’s penalty enforcement action was vacated by the U.S. Supreme Court because:
[T]he FAA is foreclosed from relying on the good cause exception[, from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).
Problem 11: Mandatory registration Only Helps if There’s a Crash
Manned aircraft N Numbers are hard enough to see. I can’t even see the logo on my Cheerson CX-10 from 10 feet. If there is a crash, do you really think you are going to find the small piece of plastic that had the “sharpie-drawn” N-number on it, the mailbox number stickers, or the serial barcode sticker under the gimbal? The only counter to this is taglets mixed in the plastic matched up with laser etched numbers on the critical parts that would most likely survive a crash (motors, etc.). Simple registration is useless unless this is a comprehensive manufacturer backed plan. What happens if DJI requires registration but Yuneec does not? I’m not ruling out the registration idea but geofencing would have better results.
 Section 3(b)(5) on page 4 of http://www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id=15de3392-f880-4d12-8aef-861ab6455f98
Section 337 (b)(2) on page 3 of https://www.congress.gov/114/bills/s1314/BILLS-114s1314is.pdf
 14 CR 107.13 at page 178 of https://www.faa.gov/regulations_policies/rulemaking/recently_published/media/2120-AJ60_NPRM_2-15-2015_joint_signature.pdf
 Fed. Aviation Admin. Order 8130.34C on page 2-1 at http://www.faa.gov/documentLibrary/media/Order/8130.34C.pdf
 See 5 U.S.C. § 553(b)(3)(B).
 The FAA explains that it issues direct final rules in two situations, but I’m using the APA’s three good cause exceptions which are compatible with the FAA two sections. See 14 C.F.R. § 11.29(a)-(b).
 See 14 C.F.R. § 11.31(a).
 See 14 C.F.R. § 11.31(c).
 Id. at 15.
 See id.
 Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369 (D.C. Cir. 1990), vacated without opinion and remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).
 Id. at 379.