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Monday, February 02, 2015

FAA's Proposed Drone Rules May Address Toy Drones

WASHINGTON 1/29/2015 @ 11:26AM 10,068 views
FAA's Proposed Drone Rules May Address Toy Drones

The FAA’s proposed rules to govern the use of drones (technically referred to as small unmanned aircraft systems) will may include rules for model aircraft and toys. According to the Office of Management and Budget’s most recent update regarding the status of the proposed rule:

The NPRM also proposes regulations for all sUAS, including operating standards for model aircraft and low performance (e.g., toy) operations, to increase the safety and efficiency of the NAS. The FAA and sUAS community lack sufficient formal safety data regarding unmanned operations to support granting traditional, routine access to the NAS. This proposed rule would result in the regular collection of safety data from the user community and help the FAA develop new regulations and expand sUAS access to the NAS.

That’s right, according to the White House, the FAA through their NPRM is now seeking to regulate the operation of toys. It is unclear whether the rule will regulate just the operation of drones, or as the second bolded clause indicates, will also mandate certain information reporting standards for toy/hobbyist drones.

UPDATE: Some bloggers have incorrectly tied the information in this post and the reported rule change to the crash of a hobbyist/toy drone onto White House grounds earlier this week. If only the government worked that quickly! In fact, while the changes to the website are recent, the change to the NPRM has been in the Federal Register since December 22, 2014. See image below for evidence. [END UPDATE]

The image on the left shows the old sUAS proposed rule, the image on the right shows the updated description of the proposed sUAS rule. The change predated the crash of a drone into the White House lawn.

Either way, this is a significant development — the FAA Modernization and Reform Act of 2012 made an explicit carve out for model aircraft usage, in that law Congress wrote:

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…

The FAA seems to believe that the “Notwithstanding any other provision…” clause does all of the heavy lifting in this statute, relegating the “may not promulgate any rule” provision to mere surplusage. The FAA pins their argument to the other language in the statute which states “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.” (That’s part of the reasoning they’ve relied on to enforce FAA rules against reckless operators).

UPDATE 2: The folks over at the law firm, McKenna Long and Aldridge (who work on aviation law related issues) got a comment from the FAA. While their post suggests that the FAA won’t be regulating toys, the FAA statement doesn’t seem to squarely address the issue. Here is their post with the FAA statement excerpted below:

It has come to our attention that in December 2014, the www.reginfo.gov site was updated with incorrect information stemming from the 2014 Fall Unified Agenda and Regulatory Plan regarding the scope of the FAA’s small unmanned aircraft systems rulemaking action. The FAA is working to correct these errors. For up to date information regarding the scope and timing of this rulemaking, please refer to the DOT Significant Rulemaking Report available at www.dot.gov/regulations/report-on-significant-rulemakings. All model aircraft operators are required to operate in accordance with the statutory requirements for model aircraft operations set forth in section 336 of the FAA Modernization and Reform Act of 2012. For more information on these requirements, please review the do’s and don’ts for model aircraft operations.

The FAA statement is careful to segment the notion of “model aircraft” operations from the “toy” operations that were referenced in the Federal Register. We can take this new statement at face value and assume the FAA has no plans to regulate small toy/hobbyist drones (at least through the NPRM). Or, if we read the statement like a lawyer, concerned about overly restrictive regulations, we can read it to suggest that any toy flights that are not within the model aircraft guidelines would be subject to the sUAS NPRM (in the past, FAA officials have said that the only allowable recreational operation of unmanned aircraft are those that take place at a model aircraft field associated with an officially recognized group). While the FAA refers readers to the DOT’s January 2015 Report on Significant Rulemaking, the record reveals that the FAA was considering regulating model aircraft and toys as recently December of 2014. In any case, while the FAA may claim that the information on the OIRA website is “incorrect” at best it is merely out of date. [END UPDATE 2]


As I pointed out on November 30, 2014, the rule has been under executive review at the White House’s Office of Information and Regulatory Affairs (a subordinate department within the Office of Management and Budget). This review is the last opportunity for individuals outside of the FAA to correct the FAA’s proposed rule. (Full disclosure, I offered my thoughts on what I believed to be appropriate regulation in a meeting with the White House held in December 2014). The FAA cannot publish the NPRM until the White House review is complete, and that review is supposed to focus on costs vs. benefits. Under the White House’s standard procedures, the rule will be under review for 90 days, which means we should expect the rule before the end of January. However if significant changes are mandated by the White House, an additional 30 days can be tacked onto the deadline, which would push the rule’s publication date back to the end of February.

With that said, I’ve been arguing that we will likely see the NPRM by the end of January (so today or tomorrow), but so many deadlines have been missed in this process that predicting when the rule will be published is becoming a losing game. When the NPRM is published, we should also expect the President’s Executive Order on privacy.

As I mentioned in previous posts, the Executive Order will segment the privacy issues related to drones into two categories — public and private. For public drones (that is, drones purchased with federal dollars), the President’s order will establish a series of privacy and transparency guidelines. The order will include some operational guidelines, and will require that agencies operating drones reveal information about their use and surveillance capabilities. (For some possible guidelines regarding drones and privacy, see this white paper “Drones and Aerial Surveillance: Considerations for Legislators“).

Gregory S. McNeal is a professor specializing in law and public policy. You can follow him on Twitter @GregoryMcNeal or on Facebook.

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