Happy Holidays From The FAA: FAA Announces Drones Registration Requirements for Hobbyists and Issues “Fact Sheet” on State and Local Regulation of Drones

On December 21, 2015, the Federal Aviation Administration's (FAA's) new registration requirements for hobbyist users of drones take effect.¹ The registration requirements arrive just in time for the holidays and seem to be a response to the FAA's expectation that "hundreds of thousands" unmanned aircraft systems (UAS) (i.e., drones) will be purchased as holiday gifts this year.² Although the registration requirements may not prevent reckless behavior by recreational UAS users, the regulations are meant to encourage "a culture of accountability and responsibility" for drone hobbyists.³ The good news for drone manufacturers and retailers is that the FAA's requirements place the onus to register entirely on the user of the drone, but myriad open issues remain with respect to who will ultimately bear the risk, and the cost, of injuries caused by hobbyist drone users. Use of the new web-based registration system by hobbyists will also serve as a test run for the eventual conversion from a paper-based to web-based registration system for commercial drone users.

In addition, on December 17, the FAA issued a "fact sheet" which seeks to clarify where federal authority over UAS ends and states and localities retain power to regulate UAS.⁴ The fact sheet may be an attempt by the FAA to strike first in a legal battle over the FAA's authority to preempt state law that many drone-watchers foresee as state and local governments increasingly scrutinize the use of drones within their borders.

The new registration requirements and fact sheet come in response to increasing concerns for safety in the national airspace given the growing number of hobbyist UAS flights. A recent study reports that there have been at least 921 incidents involving UAS and manned aircraft from December 17, 2013, to September 12, 2015.⁵ Of those 921 incidents, 241 qualify as near midair collisions and 90 involved drones and commercial jets carrying more than 50 people. Accordingly, the required registrations build on the FAA's existing safety guidelines⁶ and help to ensure each user's understanding of their ultimate responsibility for the safety of his/her UAS flights.

Requirements Just In Time For The Holidays

Unlike commercial drone users, who are subject to a fairly strict regulatory regime,⁷ the FAA Act of 2012 largely prohibited the FAA from imposing regulations on UAS intended for hobbyist or recreational uses.⁸ However, as the FAA is responsible for regulating the safety of the national airspace, the FAA has asserted the authority to impose registration requirements for all aircraft users, including hobbyists. Historically, the FAA has not enforced this requirement, but in light of an array of concerns about the dangers posed by unregulated hobbyist drone users—including reports of injuries, and risky and disruptive behavior—the FAA announced a task force in October to develop recommendations for the creation of a hobbyist drone registration process.⁹

When. The new registration requirements go into effect on December 21, 2015. Significantly, the new rules require all UAS owners, who receive or purchase applicable UAS after December 21, 2015, to register as small UAS owners prior to his/her first flight outdoors. For those UAS users who owned applicable small UAS before December 21, 2015, the rules require registration within sixty days, no later than February 19, 2016.

What. The new registration requirements apply to owners of small UAS, meaning UAS that weigh more than 0.55 pounds (250 grams) and less than 55 pounds (including all payloads, like cameras, etc.). Given the registration weight range, a standard children's toy drone for sale at a local toy store for less than US$100 will likely not meet the 250 grams weight threshold, but parents should think twice on Christmas morning before releasing a new toy drone outside.

Process. Hobbyists may register their applicable UAS in two ways: through an electronic web-based system,¹⁰ or through a paper-based process. The FAA's registration website will become operational on December 21, 2015.¹¹ In order to register a hobbyist UAS in the FAA's new UAS registration system, all UAS owners must meet the following requirements:

• The registrant must be at least thirteen (13) years of age and a US citizen or permanent resident.
• The registrant must be able to provide:
  • Name;
  • Home Address; and
  • Email address.

Fees. The registrant must pay a US$5 registration fee. However, the FAA is providing an incentive to all current and new hobbyist UAS owners: the FAA will waive all registration fees to UAS owners who register their UAS during the first thirty (30) days of the registration website's operation (from December 21, 2015, to January 20, 2016).

Upon the completion of the website registration process, the web application will provide a user with a certificate of registration and a unique identification number. The UAS owner is to then mark all of his/her UAS with his/her unique identification number. The user should mark his/her UAS with permanent marker, engraving, or label, so long as the label is legible upon visual inspection. According to the rules, a hobbyist user must renew his/her registration every three (3) years and pay a US$5 renewal fee. Moreover, there is no limitation to the number of UAS a hobbyist can own.

Penalties. The FAA has publicized fairly steep penalties for failure to register. The agency states it may impose regulatory and criminal penalties on users who fail to meet registration requirements. Civil penalties may be as high as US$27,500, and criminal penalties could include fines up to US$250,000 and/or three years imprisonment.

FAA Statement on State Regulation of UAS

In addition, on December 17, the FAA issued a "fact sheet" which clarifies its view of the scope of its authority with respect to drone regulation, including where the FAA's authority ends and the states' authority begins.

Significantly, the FAA's statement highlights its congressional mandate to regulate air traffic regulations to ensure safe and efficient use of the navigable airspace. Under the FAA Modernization and Reform Act of 2012, P.L. Law 112-95, Congress asked the FAA to implement a framework that would allow for commercial use of UAS within the national airspace. The release of the FAA's Notice of Proposed Rulemaking in February 2015 and its latest hobbyist registration regulations are part of the FAA's endeavors to meet the requirements of the congressional mandate and safely accommodate for UAS in the national airspace.

Specifically, the FAA's statement noted, "[b]ecause Federal registration is the exclusive means for registering UAS for purposes of operating an aircraft in navigable airspace, no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval." The FAA stressed that states should actively avoid participation in the creation of a "patchwork quilt of differing restrictions" for UAS since it would hamper the FAA's ability to ensure a safe and uniform approach in overseeing the national airspace. The FAA suggested that state laws endeavoring to regulate UAS overflight or mandating equipment, like geofences, for UAS safety would likely be preempted by the FAA's federal authority. However, the FAA noted that states are free to regulate UAS in circumstances relating to the state and local police power, including:

• Requirement for police to obtain a warrant prior to using a UAS for surveillance.
• Specifying that UAS may not be used for voyeurism.
• Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
• Prohibitions on attaching firearms or similar weapons to UAS.

Conclusion

The FAA's new registration system places the burden on users to register rather than on retailers at the point of sale. This provides some regulatory relief to commercial actors in the drone industry, but significant regulations on commercial drone users remain, as do open questions about the scope of potential liability for drone manufacturers and retailers, insurance issues, and state law. For example, the FAA notes that in some states, gift givers of UAS to minor recipients may face liability for damage caused by the gifted UAS.¹²

In the meantime, the FAA is busy finalizing the first in an expected series of new rules governing the commercial use of UAS, and other federal regulators and state governments have taken or propose an array of other "drone laws," many of which focus on the privacy and safety concerns posed by commercial and hobbyist drone use.