D.C. Circuit Revokes Drone Registration Rule

by Patrick J. Paul

On Friday, May 19, 2017, less than a month after the National Park Service’s first use of a drone in a Grand Canyon search and rescue mission, the District of Columbia Circuit Court of Appeals struck down a Federal Aviation Administration (FAA) rule requiring owners of small unmanned aircraft operated for recreational purposes, often referred to as drones, to register their craft pursuant to the FAA’s 2015 Registration Rule.

In 2012, Congress passed the FAA Modernization and Reform Act, 49 U.S.C. § 40101, which codified the FAA’s preference not to regulate model aircraft.  In particular, Section 336 of the Act, entitled “Special Rule for Model Aircraft,” directed that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a).  Despite that statutory restriction, the FAA issued a final rule in December 2015 requiring owners of small unmanned aircraft—including model aircraft—to register the aircraft with the agency. See Registration and Market Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015).  The Registration Rule required model aircraft owners to provide their names, physical, mailing, and email address and any other information the FAA might require. The rule also required a five dollar per individual registration fee.

In defense of the Registration Rule, the FAA offered two arguments each of which was summarily rejected by the D.C. Circuit.  First, the FAA maintained that the Registration Rule was authorized by pre-existing statutory provisions unaffected by the FAA Modernization and Reform Act and claimed that the Registration Rule itself was not a new requirement, but rather “a decision to cease its exercise of enforcement discretion.”  The court determined that the Registration Rule was in fact a rule regarding model aircraft that created a new regulatory regime replete with new penalties both civil and criminal.  Second, the FAA argued that the Registration Rule was consistent with one of the general directives of the FAA modernization and Reform Act, namely, to improve aviation safety. Although conceding that aviation safety was an important goal that the Registration Rule could well help further, the court nevertheless determined that the rule itself was barred by the text of Section 336 of the Act.

The Association for Unmanned Vehicle Systems International expressed disappointment with the D.C. Circuit decision noting that registration “helps create a culture of safety that deters careless and reckless behavior.”  The Association is hopeful to address the registration issue legislatively with Congress.

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