New Drone Provisions Enacted Through National Defense Legislation

On Dec. 12, 2017, President Trump signed into law the National Defense Authorization Act for Fiscal Year 2018 (NDAA), authorizing appropriations for various military and national defense programs. The NDAA also contained two key provisions regarding unmanned aircraft systems, or drones, worthy of note.

First, Section 1092 of the NDAA restores the FAA registration requirement for all drones in the United States. This reverses the decision in Taylor v. Huerta (856 F.3d 1089 (D.C. Cir. 2017)) in which the D.C. Circuit found that requiring hobbyists to register their drones was prohibited under Section 336 of the FAA Modernization and Reform Act of 2012. Section 336 provides that FAA may not promulgate "any rule or regulation regarding model aircraft." The Taylor decision did not impact the application of FAA’s registration rule on persons operating drones for commercial purposes under Part 107. 

Notably, the NDAA legislative fix reinstating hobbyist registration explicitly references the Dec. 16, 2015 Interim Final Rule on Registration and Marking Requirements for Small Unmanned Aircraft by docket and publication date, which means that FAA cannot make any changes to that Interim Final Rule or it will lose the protection afforded by the legislative fix. This approach also could result in some interesting legal challenges based on notice and comment rulemaking procedural requirements. 

Second, Section 1692 of the NDAA includes new language, added in conference, granting the Department of Defense (DOD) the authority to identify, track, and use "reasonable force" to destroy drones near any DOD "covered facility or asset." While the FAA already restricted drone operations over military bases earlier this year (see FAA Press Release), Section 1692 of the NDAA gives DOD enforcement authority over its own bases. This new identification, tracking and destruction language only applies to DOD. In May 2017, the Trump Administration proposed that Congress authorize similar powers for every executive branch agency (as covered by the New York Times). However, Congress has advanced these powers only for DOD at this point.

As the FAA moves forward with integrating small UAS into the U.S. national airspace, it will need to carefully consider this new authority of DOD to identify, track and destroy drones flying over DOD facilities and its effect on integration. This likely will include consideration by the aviation rulemaking committee (ARC) empaneled by the FAA in June 2017 to make recommendations to the agency about future rulemaking on remote identification and tracking.