[Oklahoma City,] we have a problem.
The DOT’s Announcement Can Be Viewed Here.
The FAA’s request for comments is here.
The underlying FAA report of drone sightings is located here.
The Academy of Model Aeronautics responded to the report with an analysis located here.
Second Update: An individual took the time and responded to this post. I posted my reply at the bottom.
Update: Just to clarify, my point is not to “troll” the FAA, I think geofencing will produce far better results by preventing problems as opposed to pointing to who might have done it after something has happened. The uneducated new recreational flyers are the ones I believe causing the problems. Having manufacturers voluntarily “lock” the drones until an unlock access code is provided after an introductory ground school would produce better results. One way to sweeten the pot is not just provide “how to fly safely” video tutorials but also “how to get that awesome shot” tutorials. Education, not enforcement is a better strategy. If anyone higher-up in the FAA is reading this, please contact me so I can help you promote safety in the national airspace. 🙂
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.
Current Registration Requirements for Drones:
Commercial drone operators are required to obtain a 333 exemption. The exemptions being given out say, “All aircraft operated in accordance with this exemption must be identified by serial number, registered in accordance with 14 CFR part 47, and have identification (N−Number) markings in accordance with 14 CFR part 45, Subpart C. Markings must be as large as practicable.” This is in addition to the manned aircraft which are registering with the FAA. This is currently ONLY for commercial drones while recreational drones are not required to register their drones.
“The Department of Transportation is reviewing whether the FAA has the authority to require drones be registered at their point of sale, Transportation Secretary Anthony Foxx told CBS News on Friday.”
Furthermore, Senator Feinstein’ s “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[.]”
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.”
In the FAA’s explanations in the Notice of Proposed Rulemaking (“NPRM”) regarding unmanned aircraft it said, “The FAA’s statute, [49 U.S.C. 44101], prohibits the operation of an aircraft unless the aircraft is registered. Pursuant to this statutory prohibition, this proposed rule would require small unmanned aircraft to be registered with the FAA using the current registration process found in 14 CFR part 47.” The NPRM later showed the proposed rule, “No person may operate a civil small unmanned aircraft system for purposes of flight unless[,] . . . [t]he small unmanned aircraft being operated has been registered with the FAA . . . .”
Just today NBC announced, “The federal government will announce a new plan requiring anyone buying a drone to register the device with the U.S. Department of Transportation[.]” Just FYI, the DOT supervises the FAA which explains why they are involved.
The clear trajectory of all this is that commercial drone aircraft will be required to be registered and possibly also recreational aircraft. This presents interesting problems so let’s dive into the facts.
Bloomberg indicated that “Amazon is selling more than 10,000 drones a month[.]” 3DR “is expected to top $40 million in sales in 2015, which would roughly translate to about 53,000 units” 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.”
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.
The Proposed Laws and Regulations Intersecting with the Forecasted Sales.
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.”
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.
Problem 1 – Not Enough N Numbers.
At this pace, we are going to run out of N numbers in the future.
- 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! (The FAA must go through the rule making process for this but it is unclear how this would work with the FMRA).
- Require re-registration of a drone every year. (Currently it is every 3 years as per regulation. This needs to be changed via the rule making process but still the FMRA might cause problems.)
- Make the N number registration transfer easy so people just don’t keep registering drones. (This can be solved by some type of internet portal as opposed to the difficult paper process now.)
- 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 drone aircraft. This could work similarly to your car insurance policy number listing multiple vehicles. (This might be a work around for the N Number limit but it looks more like licensing.)
- Add an additional 6th space or 7th (still must go through the rule making process)
Problem 2 – What happens when the person does NOT want to fly anymore?
So the citizen has to register his drone. The drone registration last for 3 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 even 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 are you going to identify the aircraft after the incident/crime/accident?
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 in the world is drone registration going to STOP, actually prevent, the incident/ crime/ accident?
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 any authority or congressionally given jurisdiction to require drones to be registered which are on the ground, not being flown, with the drone being turned off, in a box, and inside a building?
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 and my presentation.)
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 in the world 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 in the world is this a rule and how is it going to 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. Good cause is when the rulemaking process is “impracticable, unnecessary, or contrary to the public interest.” The FAA issues final rules in these three good cause situations.
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. 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.
“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.” 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. “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. Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.’” In Air Transport Association of America vs. the Department of Transportation, 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).
Problem 11 – Mandatory registration does not help identify drones being seen by pilots but only if there is 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.
An individual took the time to respond to the above post and I include some of his post and my response to follow. His responses are in italics and mine are bold and underlined.
“More importantly, it seems as though you’re putting forward red herrings (somewhat irrelevant issues) to support your case. For example, your “problem” of not enough N numbers is easily solved simply by changing the FAA’s N number mechanism. When the phone company started “running out” of phone numbers years ago, it wasn’t really terribly difficult to create new ones (adding area codes). Adding a supplemental alphanumeric digit to the N Number format, for example, is a simple solution, and wouldn’t necessarily even affect current N number holders (which the addition of new area codes did to many phone number holders).”
The Number issue isn’t a red herring. 14 C.F.R. 47.15(b) says, “(b) A U.S. registration number may not exceed five symbols in addition to the prefix letter “N”. These symbols may be all numbers (N10000), one to four numbers and one suffix letter (N 1000A), or one to three numbers and two suffix letters (N 100AB). The letters “I” and “O” may not be used. The first zero in a number must always be preceded by at least one of the numbers 1 through 9.” Section 336 of the FMRA effectively locked the FAA into this regulation because the FAA can’t promulgate further drone regulations. The maximum amount is 1,156,000. How are they going to change or add anything without violating the FMRA?
“Manned aircraft are also grounded, scrapped, sold to others, modified, and rebuilt/restored constantly. So too are new aircraft joining the fleet constantly. There are mechanisms for keeping track (and certifying) of all these. The FAA maintains a database of every registered aircraft in the country (which is also publicly searchable).
Identifying aircraft involved in accidents is also already a system in place. Every manned aircraft (with a few exceptions, such as hang gliders, parachutes, etc.) is required to be registered with the FAA, and every pilot is absolutely required to report any incident or accident they or their aircraft is involved in to the FAA (within a specified time). There are other entities that necessarily get involved, as well, such as law enforcement, fire departments, insurance companies, Customs & Border Patrol, property owners, airport management, DOT, etc.”
People who do stupid things and crimes don’t often report. This is the group the registration is AIMED at. Furthermore, this doesn’t prevent accidents. It only tells these agencies who to maybe look for if they can even identify anything. Geofencing would prevent the problems from happening in the first place.
“Consider how much more cautious and responsible every UAV operator would be in their flying if they knew that there were always other people (including government officials) watching, and that both we and our aircraft would be readily identifiable and held accountable for all our actions. That’s exactly what pilots of manned aircraft do. It’s part of the privilege of flying (and not just in the U.S.), and it’s what helps keep the system as safe as possible. Why shouldn’t everyone entering this same airspace with new aircraft be held to similar standards and regulations?”
The chances of getting caught as a manned aircraft pilot are way higher than that of drone operator. You only have so many airports to land at. On top of that, your transponder and ground based radar track your flying. Drones don’t have transponders, they are almost impossible to track via radar and the operator can simply just run away.
“While analogies are admittedly never perfect, consider briefly this one.
We have extensive rules, regulations, and laws in place throughout the U.S. specifying how motor vehicles can be driven on our public roads and highways. We require a level of training, followed by formal licensing of all our drivers, and we are all required to abide by seemingly countless traffic laws and regulations (speed limits, traffic controls, lane usage, parking restrictions, directions we can drive, off-limits areas, DUI and texting laws, etc.). We also have numerous law enforcement entities empowered to control, restrict, prevent, and arrest us for our failure to abide by these rules.
We accept all this as necessary to keep the best degree of order and safety we collectively can on our nation’s roads and highways. Even so, there are still far too many accidents, injuries, and deaths (generally a result of people not abiding by the laws) — but far fewer than if we didn’t have these rules in place.
Now try to imagine that we suddenly had an onslaught of hundreds of thousands of new unmanned remote control vehicles entering our public roadways, operated by individuals who’ve never driven a car or never earned a driver’s license themselves — many of whom don’t even care who else is out there or what other vehicles on the road might be doing. They just want to have fun with their new “toy.” It would be a safety disaster.
Now, imagine that all these same remote controlled vehicles have the size and mass to cause total destruction of any vehicle they even slightly bumped into, resulting in death or injury.
That’s basically what we’re looking at with mid-air collisions between UAVs and manned aircraft. There’s no such thing as a “minor fender-bender” between two aircraft (of any size) in the air. Mid-air collisions, even between aircraft and things as small as birds, often result in a crash or destruction an aircraft. And there’s something about falling hundreds of feet out of the sky (most particularly the abrupt stop at the ground) that tends to make aircraft accidents far more often fatal than car accidents.”
This is not a good analogy. A better one would be 1,000 or 100,000 of remote controlled Hotwheel like toy cars or small racing cars operating in the grassy area on the side of the road. Occasionally one comes out of the grass and jumps into the road where the cars are. There is a potential that some of the motocycles could be involved in a serious wreck.
I do acknowledge that larger drones do present a safety hazard to helicopters, agricultural planes, and small airplanes; however, how in the world is registration going to help with that? Geofencing could somewhat mitigate this problem. (Preventing the rc cars from getting in the road). The NTSB would comb the wreck and have to find some crash survivable parts and to at least identify the first person who bought the drone. Then they would go try and track the chain of tittle down. If they somehow find the last owner, how is a prosecutor going to overcome the “I sold the drone” or “my drone was stolen” argument? A Plaintiff’s attorney might be able to overcome it but an attorney isn’t going to be suing some poor college student. It isn’t worth his time.
“It’s this approach that we as UAV or drone operators need to be taking. It doesn’t help any of us to think that we should be outside the law, or that all the rules, training and certification requirements, or even the rules for how all aircraft need to coexist in the air with each other, shouldn’t apply to us somehow.
Flying is truly a privilege. Most pilots with FAA licenses treat it that way, and commit an amazing amount of effort to training and certification, as well as knowing, understanding, and “playing by the rules.” We as UAV operators need to be willing to do the same, I think.”
Agreed. I’m very against the rogue drone operator mindset. I think that many recreational flyers should educate themselves on how to fly safely. I just think geofencing is way more effective than registration.
I wrote another post here and there are some helpful resources at the bottom that recreational flyers should look into on how to operate safely. I also wrote a book, located here, on drone law and the last chapter is a compilation of everything the FAA has said regarding the safe operation of recreational aircraft. I did this so as to help the non-pilots fly safely. Maybe we should include my book or last chapter with every drone sold in the US? 😛
Once again, thank you for your response. Let’s continue to work together to promote safety in the national airspace so we can enjoy flying manned as well as unmanned aircraft. 🙂
 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
Section 337 (b)(2) on page 3 of https://www.congress.gov/114/bills/s1314/BILLS-114s1314is.pdf
 Fed. Aviation Admin. Order 8130.34C on page 2-1 at http://www.faa.gov/documentLibrary/media/Order/8130.34C.pdf
 See 5 U.S.C. § 553(b)(3)(B).
 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).
 See 14 C.F.R. § 11.31(a).
 See 14 C.F.R. § 11.31(c).
 Id. at 15.
 See id.
 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).
 Id. at 379.
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