On Monday, October 19, US Transportation Secretary Anthony R. Foxx and FAA Administrator Michael P. Huerta announced the formation of a task force charged with developing recommendations for a registration system for Unmanned Aircraft Systems (the “Task Force”). The Task Force will be directed to deliver its report by November 20. In connection with the announcement, the secretary and the administrator also issued a Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS (the “CRFI”), which was published in the Federal Register on Thursday, October 22. Through the CRFI, the agencies seek, for the first time, to impose the aircraft registration requirement on “model aircraft,” including recreational UAS, effective immediately, while also soliciting comments from industry and the public on the nature and parameters of the UAS registration process. Comments must be submitted by November 6 in order to be considered by the Task Force.

The aggressive timeline is driven by concern over the increasing frequency of potentially dangerous UAS operations and by the anticipated explosion in drone sales during the upcoming holiday season. The CRFI’s formulation as a “clarification” of existing requirements, rather than as the promulgation of a new regulation, is intended to avoid the restriction imposed on the FAA’s rulemaking authority with respect to model aircraft under Section 336 of the FAA Modernization and Reform Act of 2012 (the “2012 Act”).2 Notwithstanding concerns about the wisdom of such an accelerated process, or the soundness of the FAA’s basis for suddenly imposing the registration requirement on model aircraft, some industry participants will welcome the opportunity to update or replace the antiquated registration process currently used for commercial UAS operations, while others will be alarmed by the burdens, liabilities, and other transaction costs that will be imposed on the market by this extension of the registration requirement.

Growing Concerns

The Task Force announcement came less than two weeks after the House Transportation & Infrastructure Committee’s Subcommittee on Aviation held a hearing entitled “Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems.” That hearing, which included the testimony of representatives from the FAA, United States Forest Service, Air Line Pilots Association, and others, featured considerable discussion of recent high-profile instances of drones interfering with firefighting operations in California and FAA-published reports of pilot UAS sightings.

Unauthorized operation of drones in the airspace near fire-suppression activities poses a dual threat. One is the risk of collision with the manned aircraft engaged in the firefighting operations. Because those manned aircraft are often forced to suspend their activities when an unauthorized drone is spotted in the
active airspace, the secondary threat is the increased danger to people and property on the ground caused by the delays to the firefighting efforts.

The FAA claims that the rate of pilot sightings of UAS during 2015 is double the rate during 2014. This trend would suggest that the past year has also seen a significant increase in the number of “near miss” incidents between UAS and manned aircraft. Many members of the public, and several Aviation Subcommittee members, are concerned about this trend. Others, however, have expressed skepticism that the sightings data is an accurate reflection of the risk posed to manned aviation by UAS in the national airspace (“NAS”).

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