The US government will soon require tech enthusiasts to register their drones with the Department of Transportation (DOT) to crack down on reckless flying.

The DOT, which supervises the Federal Aviation Administration (FAA) still needs to figure out the specifics of, including which drones will be included, how users will register the devices, and whether the policy will apply to devices that have already been sold. The DOT hopes to have the registration process up and running by Christmas 2015.

US regulators have been scrambling to regulate drones as they become more popular. Senator Diane Feinstein (D-Calif.) introduced the “Consumer Drone Safety Act’’ requires “that a consumer drone be detectable and identifiable to pilots and air traffic controllers, including through the use of an identification number and a transponder or similar technology to convey the drone’s location and altitude[.]”[2]

Moreover, Cory Booker’s Commercial UAS Modernization Act prohibits the operations of commercial small unmanned aircraft “unless the owner has registered the aircraft under section 3(a) of the Commercial UAS Modernization Act.”[3]

This presents interesting problems, so let’s dive into the facts.

Proposed Regulations and Forecasted Sales

Bloomberg indicated that “Amazon is selling more than 10,000 drones a month[.]”[6] 3DR “is expected to top $40 million in sales in 2015, which would roughly translate to about 53,000 units”[7] and in 2014, “DJI sold about 400,000 units–many of which were its signature Phantom model–and is on track to do more than $1 billion in sales this year, up from $500 million in 2014.”[8]

Oklahoma City is where aircraft registration gets processed. The aircraft registration process still involves carbon copy forms, which must be filled out perfectly and sent in for an aircraft to be registered. They are extremely, I mean extremely, picky on registration based upon my experience. (If you need help with registration, contact me.)

If the paperwork is completed correctly, they will send you back an “N” registration which is required to be displayed on the aircraft. The reason for the “N” is the aircraft is tied to the country it operates in. (Think of license plates where the state is listed on the plate.) N = United States, C or CF = Canada, XA, XB, or XC = Mexico, B= China, JA= Japan, SU= Egypt, etc. The complete list is here at 4-1-1.  So N12345 is a U.S. registered aircraft while XA12345 is a Mexican registered aircraft.

On top of the drone sales, manned aircraft have been sold and already use some of the N numbers. For 2012, it was estimated that there were 209,034 aircraft in general aviation.[9]

Let’s get into the math. Let’s assume that all drones have to be registered. How many different combinations are possible?

“All U.S. civil aircraft registration numbers are prefixed by an N. The registration number, apart from the N prefix, is made up of one to five symbols, the last two of which may be alphabetical. This alphabetical suffix must be preceded by at least one numerical symbol. The lowest possible number is N1. A zero never precedes the first number. For example: N1 through N99999, all symbols are numeric. N1A through N9999Z, single alphabetical suffix. N1AA through N999ZZ, double alphabetical suffix. Note: To avoid confusion with the numbers zero and one, the letters O and I are never used as alphabetical suffixes.”[10]

This is how the math works out: 10 x 10 x 10 x 34 x 34 = 1,156,000. The reason for the 34 is 10 numbers + 25 letters. The letters I and O cannot be used because they can be confused with the numbers 1 and 0. Further compounding this problem is “A Certificate of Aircraft Registration issued under this paragraph expires three years after the last day of the month in which it is issued.” 14 CFR 47.40(a)(3).

Moreover, it is easier to register a drone than transfer registration. If you crash the drone, you’ll have crazy headaches trying to transfer registration of the N-number to the new drone as opposed to just registering a new N number. Here are some of the problems I see with mandatory drone registration.

Problem 1: Not Enough N Numbers

At this pace, we are going to run out of N numbers in the future. Here are a few proposed solutions:

• Open up the first 3 spaces to allow also the use of letters. This will increase the availability of the numbers by 44,279,424 spaces!
• Require re-registration of a drone every year.
• Make the N number registration transfer easy so people just don’t keep registering drones.
• Tie the N number registration of the drone to a person as opposed to the aircraft. That way you could have one N number put on multiple aircraft. This could work similarly to your car insurance policy number listing multiple vehicles.
• Add an additional 6th space or 7th

Problem 2: What Happens When You Don’t Want to Fly Anymore?

So the citizen has to register his drone. The drone registration last for three years under the current regulations. Are you going to force people to re-register their drones? Must they always have the drone registered? I can see a large group of people just letting the registration lapse and then selling their drones off on Amazon, Ebay, Craiglist, flea markets, and garage sales. Are the sellers required to keep paperwork of who they sold the drone to?

Problem 3: What in the World Does the FAA and/or DOT Even Regulate?

This problem is exactly like gun registration. The lower receiver is what is considered the “gun” and that is what is regulated federally. All the other gun parts you can buy and sell without registration. What is going to be considered the “aircraft” for purposes of drones? The batteries, the motors, the transmitter, the flight controller? Is it only a whole aircraft? Are drone kits regulated or just fully assembled drones?

14 C.F.R 1.1 says, “Aircraft means a device that is used or intended to be used for flight in the air.”  To be logically consistent, only a WHOLE or COMPLETE aircraft can meet this criteria.

Problem 4: What is a Drone for Purposes of Registration?

My Cheerson CX-10 can fit in my hand. Are we going to regulate all nanodrones? The paper airplane drone? Is there a weight or operational cutoff?

Problem 5: How Will Drones be Identified?

A drone sucked in a jet engine is going to be all over the place. Are you going to require metal placards attached to the drone? Furthermore, it is easy to scratch off a serial number. Is possession of a drone with a scratched off serial number going to become illegal?

Problem 6: How Will Drone Registration Actually Prevent Reckless Flying?

The two main groups that are causing problems are the (1) “how high can it fly” group and the (2) “I will fly wherever I want” group. Both of these groups can be countered with geo-fencing far better than registration. Registration points you to who might have caused the incident, geo-fencing can help prevent it.

Problem 7: How Does the DOT or FAA Have Authority to Require Drones on the Ground to be Registered?

I understand that once the drone leaves the store, comes out of the box, goes out of the house, and then gets a smidge off the ground, then the FAA can argue jurisdiction, but how can it argue jurisdiction anywhere before? (For a more in-depth discussion on the topic of the FAA’s jurisdiction, see my book Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them)

Part 47 is the part of the regulations which talks about registration requirements. 14 C.F.R § 47.1 says, “This part prescribes the requirements for registering aircraft under 49 U.S.C. 44101-44104.” Let’s read 49 U.S.C 44101 which says,  “(a) REGISTRATION REQUIREMENT.—Except as provided in subsection (b) of this section, a person may operate an aircraft only when the aircraft is registered under section 44103 of this title.”

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.[11] Good cause is when the rulemaking process is “impracticable, unnecessary, or contrary to the public interest.”[12] The FAA issues final rules in these three good cause situations.[13]

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.[14] 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.[15]

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.”[16] 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.[17] “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.[18] Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.’”[19] In Air Transport Association of America vs. the Department of Transportation,[20] 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).[21]

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.

[1] http://www.cbsnews.com/news/faa-considering-drone-registration/
[2] 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
[3]Section 337 (b)(2) on page 3 of https://www.congress.gov/114/bills/s1314/BILLS-114s1314is.pdf
[4] 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
[5] http://www.nbcnews.com/news/us-news/u-s-will-require-drones-be-registered-n446266
[6] http://www.bloomberg.com/news/articles/2014-12-17/santa-delivering-drones-for-christmas-amid-rising-safety-concern
[7] http://dronelife.com/2015/01/24/drone-sales-figures-2014-hard-navigate/
[8] http://www.forbes.com/sites/ryanmac/2015/05/06/dji-drones-frank-wang-china-billionaire/
[9] http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_01_11.html
[10] Fed. Aviation Admin. Order 8130.34C on page 2-1 at http://www.faa.gov/documentLibrary/media/Order/8130.34C.pdf
[11] See 5 U.S.C. § 553(b)(3)(B).
[12] Id.
[13] 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).
[14] See 14 C.F.R. § 11.31(a).
[15] See 14 C.F.R. § 11.31(c).
[16] Id. at 15.
[17] See id.
[18] See
[19] Id.
[20] 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).
[21] Id. at 379.

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