By: Barbara E. Lichman, Ph.D., J.D.
On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.
The Senate’s motivation is not obscure, where it sets forth, among other things, guidelines for “Collaboration Between Federal Aviation Administration and Department of Defense on Unmanned Aircraft Systems,” or UAS, H.R. 2810, § 1092. Most notably, that section re-imposes rules originally imposed on the operators of small, unmanned aircraft, weighing between .55 and 55 pounds, used for recreational purposes (“model” aircraft). Those rules were set aside by the United States Court of Appeals for the District of Columbia Circuit in May, 2017, in the published opinion Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017), on the ground that the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (“FMRA”) specifically prohibits FAA from promulgating “any rule or regulation regarding model aircraft.” Id. at § 336(a).
Congress has now enacted a revision to FMRA’s prohibition, and thrown model aircraft back into the regulatory arena.
Specifically, the Defense Authorization Act reinstates the original “mandatory FAA regulations,” governing all model aircraft of the specified sizes, and requiring operators to register with FAA, i.e., provide their names, physical mailing and e-mail addresses, and any other information FAA chooses to require. Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed.Reg. 78,594 (December 16, 2015), at 78,595-96. In addition, the FAA’s original 2015 registration rule also created an online platform for registration, established a $5.00 per individual registration fee, set compliance deadlines, and required all small unmanned aircraft to display a unique identifier number issued by the FAA. Perhaps most onerous are the penalties faced by model aircraft owners who do not register which include civil or criminal monetary penalties and up to three years imprisonment. Id. at 78,630.
Other rules, including the requirement that both commercial and recreational drones stay below 400 feet above ground level, and notify an airport if intending to fly within five miles, remained in full force and effect during the period of suspension of the vast bulk of the rule, as “tied to safety.” See Taylor, supra, 856 F.3d at 1093, quoting FMRA § 336(b).
In summary, the freedom from oversight that recreational drone operators have enjoyed until now has been significantly limited through Congressional reconsideration of FAA’s limitations on the operation of model aircraft. In reality, the restoration of the FAA rule enabled by the Defense Authorization Act, while burdensome, may serve to further enhance the safety of both UAS and conventional aircraft operations in the skies quickly filling with both.