***PLEASE NOTE: On May 19, 2017, the United States Court of Appeals for the District of Columbia Circuit issued an opinion that vacated the FAA's registration requirement for model aircraft. Please consult with an attorney about registration requirements as this area of the law continues to evolve.***
On Monday, December 14, 2015, the Federal Aviation Administration ("FAA") announced new rules impacting users of any small unmanned aircraft ("UAS") (i.e., drones or unmanned aerial vehicles) ranging in weight between 0.55 pounds and 55 pounds. The weight restriction triggering registration is based on the weight at takeoff, and it includes everything that is attached to the UAS (everything on board, including cameras). These rules require online registration by owners of any UAS in this weight range when the UAS is going to be used exclusively for fun and recreation. The FAA has stated that it views the recreational registration process as an opportunity to educate new users and to keep them "accountable to the public for flying responsibly." It also gives the federal government the ability to quickly identify a UAS and its owner in the event of an incident or accident.
The federal government has always regulated the national airspace, and the FAA views the registration requirement for use of a UAS as a necessary part of its oversight of the national airspace. Between November 2014 and August 2015, the FAA received over 700 reports from airborne pilots of UAS sightings. The U.S. Forestry Service reported 18 unauthorized UAS flights in the vicinity of wildfires, and 10 of these incidents interfered with aerial firefighting efforts. Commercial UAS registration also has been expanding significantly. By mid-October of this year, the Federal Aviation Administration ("FAA") had issued approximately 1,700 permits to commercial operators of UAS. The failure to obtain a commercial permit can result in severe penalties. For example, an aerial photography company's repeated use of a UAS prior to registration in the busy airspace of New York and Chicago resulted in an FAA proposed fine of $1.9 million.
Registration of any kind is new for hobbyists and recreational users of small UAS and, in addition to the online aspect, this new registration process is different from other types of FAA registration for owners of small UAS used for non-recreational purposes. Previously, the process has been a UAS-specific registration process, meaning each UAS was separately registered. However, the newly adopted online registration process for a UAS being operated for recreational purposes is owner-specific, not UAS-specific. Each owner of a recreational UAS must now be registered.
The recreational registrant will receive a Certificate of Aircraft Registration and a unique registration number. The registrant can use this single registration number for an entire fleet of UAS owned by the registrant and used exclusively for recreation.
Importantly, the owner's registration number must be marked on each UAS used by the registrant before the first recreational flight. Other unique identifiers (such as serial numbers) may be allowed in the future, but the current requirement is to mark the UAS with the owner's registration number.
The owner's registration number must be affixed to the UAS in such a way as to be readily accessible and visual upon inspection. Being "readily accessible" means the registration number can be located without the use of any tools, which does not necessarily mean that it must be on the exterior of the UAS. For example, the registration number may be "readily accessible" if it is located within the battery compartment of a UAS if the compartment can be opened without the use of tools.
The new online registration rules will become effective on December 21, 2015, just in time for Christmas. Any owner of a recreational UAS that is acquired after December 21, 2015 must register online with the FAA and mark the UAS prior to the first flight. For any recreational UAS in use prior to December, 21, 2015, the new rules require online registration with the FAA and marking by February 19, 2016.
Registration costs $5.00, and it is valid for three years. The fee covers every UAS owned by the registrant and used exclusively for recreation. To encourage registration, the FAA has offered to waive the $5.00 fee for any person who registers before January 20, 2016.
Online registration will require the owner's name, physical address, mailing address (if different than physical address), email address, and "other information as required by the Administrator." Persons younger than 13 years of age cannot register, so parents, grandparents, or siblings may need to register for younger family members.
It is important to again note that the FAA adopted an owner-based registration system, not a UAS-specific registration system for recreational users of small UAS. This distinction is highlighted by the process that is required when a transfer of a small, recreational UAS occurs. Upon transfer, the seller does not have to update the seller's registration profile to show the UAS no longer belongs to the seller, but the buyer must be registered prior to operating the UAS for the first time. A buyer who is already registered with the FAA as a UAS owner will not have to update the buyer's registration profile to show the transfer of ownership. Instead, upon sale, the buyer's registration number must be placed on the UAS before the buyer flies it for the first time.
In addition to registration, users need to keep in mind that a UAS being used for recreational purposes must fly no higher than 400 feet and must stay at least 5 miles away from any airport.
The penalty for failing to register as an owner of a recreational UAS is not yet known. Even so, if your friends or relatives unwrap that 10-lb drone of their dreams on Christmas morning, tell them to head first to the online registration process with the FAA before entering the national airspace. And tell them to fly low, so they avoid Santa on his journey back to the North Pole and any nasty visits from the FAA.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.