Drones Figure Prominently in New FAA Reauthorization Bill

The newly announced H.R. 4441, the “Aviation Innovation, Reform and Reauthroization Act of 2016” (#AIRR) contained a lengthy section relating to “unmanned aircraft systems,” or drones, as most people know them.  Most of the legislation concerned codifying existing law.  That is, sections that concerned drones in the FAA Reauthorization and Reform Act of 2012 have been given their own chapter (Chapter 455 – Unmanned Aircraft Systems) within title 49 of the United States Code.

Although Congress wants the FAA to keep track of its registration process that it put online on December 21, 2016 (see Sec. 441), AIRR codifies the provision that exempts model aircraft, which includes drones flown for hobby or recreational use, from FAA regulation (Sec. 432, § 45507).  This provision is currently the subject of a Petition for Review filed in the United States Court of Appeals for the District of Columbia Circuit.  John Taylor v. Michael Huerta, Case No. 15-1495 (D.C. Cir.).

AIRR also sets up several review boards and requires reports to Congress on FAA’s progress with integrating drones into civil airspace.

Subtitle B—Unmanned Aircraft Systems

SEC. 431. DEFINITIONS.

Except as otherwise provided, the definitions contained in section 45501 of title 49, United States Code  (as added by this Act), shall apply to this subtitle.

SEC. 432. CODIFICATION OF EXISTING LAW; ADDITIONAL PROVISIONS.

(a) IN GENERAL.—Subtitle VII of title 49, United States Code, is amended by inserting after chapter 453 the following:

‘‘CHAPTER 455—UNMANNED AIRCRAFT SYSTEMS

‘‘Sec.

“45501. Definitions.

‘‘45502. Integration of civil unmanned aircraft systems into national airspace system.

‘‘45503. Risk-based permitting of unmanned aircraft systems.

‘‘45504. Public unmanned aircraft systems.

‘‘45505. Special rules for certain unmanned aircraft systems.

‘‘45506. Operation of small unmanned aircraft.

‘‘45507. Special rules for model aircraft.

‘‘45508. Safety information for operation of covered unmanned aircraft.

‘‘§ 45501. Definitions

‘‘In this chapter, the following definitions apply:

‘‘(1) AERIAL DATA COLLECTION.—The term

‘aerial data collection’ means the gathering of data by a device aboard an unmanned aircraft during flight, including imagery, sensing, and measurement by such device.

‘‘(2) ARCTIC.—The term ‘Arctic’ means the United States zone of the Chukchi Sea, Beaufort Sea, and Bering Sea north of the Aleutian chain.

‘‘(3) CERTIFICATE OF WAIVER; CERTIFICATE OF AUTHORIZATION.—The terms ‘certificate of waiver’ and ‘certificate of authorization’ mean a Federal Aviation Administration grant of approval for a specific flight operation.

‘‘(4) MODEL AIRCRAFT.—the term ‘model aircraft’ means an unmanned aircraft that is—

‘‘(A) capable of sustained flight in the atmosphere;

‘‘(B) flown within visual line of sight of the person operating the aircraft; and

‘‘(C) flown for hobby or recreational purposes.

‘‘(5) PERMANENT AREAS.—The term ‘permanent areas’ means areas on land or water that provide for launch, recovery, and operation of small un-manned aircraft.

‘‘(6) PUBLIC UNMANNED AIRCRAFT SYSTEM.—The term ‘public unmanned aircraft system’ means an unmanned aircraft system that meets the qualifications and conditions required for operation of a public aircraft (as defined in section 40102(a)).

‘‘(7) SENSE-AND-AVOID CAPABILITY.—The term ‘sense-and-avoid capability’ means the capability of an unmanned aircraft to remain a safe distance from and to avoid collisions with other airborne aircraft.

‘‘(8) SMALL UNMANNED AIRCRAFT.—The term ‘small unmanned aircraft’ means an unmanned aircraft weighing less than 55 pounds, including everything that is on board the aircraft.

‘‘(9) UNMANNED AIRCRAFT.—The term ‘unmanned aircraft’ means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

‘‘(10) UNMANNED AIRCRAFT SYSTEM.—The term ‘unmanned aircraft system’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.

‘‘§ 45502. Integration of civil unmanned aircraft systems into national airspace system

‘‘(a) REQUIRED PLANNING FOR INTEGRATION.—

‘‘(1) COMPREHENSIVE PLAN.—Not later than November 10, 2012, the Secretary of Transportation, in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry, shall develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.

‘‘(2) CONTENTS OF PLAN.—The plan required under paragraph (1) shall contain, at a minimum, recommendations or projections on—

‘‘(A) the rulemaking to be conducted under subsection (b), with specific recommendations on how the rulemaking will—

‘‘(i) define the acceptable standards for operation and certification of civil unmanned aircraft systems;

‘‘(ii) ensure that any civil unmanned aircraft system includes a sense-and-avoid capability; and

‘‘(iii) establish standards and requirements for the operator and pilot of a civil unmanned aircraft system, including standards and requirements for registration and licensing;

‘‘(B) the best methods to enhance the technologies and subsystems necessary to achieve the safe and routine operation of civil unmanned aircraft systems in the national airspace system;

‘‘(C) a phased-in approach to the integration of civil unmanned aircraft systems into the national airspace system;

‘‘(D) a timeline for the phased-in approach described under subparagraph (C);

‘‘(E) creation of a safe airspace designation for cooperative manned and unmanned flight operations in the national airspace system;

‘‘(F) establishment of a process to develop certification, flight standards, and air traffic requirements for civil unmanned aircraft systems at test ranges where such systems are subject to testing;

‘‘(G) the best methods to ensure the safe operation of civil unmanned aircraft systems and public unmanned aircraft systems simultaneously in the national airspace system; and

‘‘(H) incorporation of the plan into the annual NextGen Implementation Plan document (or any successor document) of the Federal Aviation Administration.

‘‘(3) DEADLINE.—The plan required under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.

‘‘(4) REPORT TO CONGRESS.—Not later than February 14, 2013, the Secretary shall submit to Congress a copy of the plan required under paragraph (1).

‘‘(5) ROADMAP.—Not later than February 14, 2013, the Secretary shall approve and make available in print and on the Administration’s Internet Web site a 5-year roadmap for the introduction of civil unmanned aircraft systems into the national airspace system, as coordinated by the Unmanned Aircraft Program Office of the Administration. The Secretary shall update the roadmap annually.

‘‘(b) RULEMAKING.—Not later than 18 months after the date on which the plan required under subsection (a)(1) is submitted to Congress under subsection (a)(4), the Secretary shall publish in the Federal Register—

‘‘(1) a final rule on small unmanned aircraft systems that will allow for civil operation of such systems in the national airspace system, to the extent the systems do not meet the requirements for expedited operational authorization under section 45506;

‘‘(2) a notice of proposed rulemaking to implement the recommendations of the plan required under subsection (a)(1), with the final rule to be published not later than 16 months after the date of publication of the notice; and

‘‘(3) an update to the Administration’s most recent policy statement on unmanned aircraft systems, contained in Docket No. FAA–2006–25714.

‘‘(c) EXPANDING USE OF UNMANNED AIRCRAFT SYSTEMS IN ARCTIC.—

‘‘(1) IN GENERAL.—Not later than August 12, 2012, the Secretary shall develop a plan and initiate a process to work with relevant Federal agencies and national and international communities to designate permanent areas in the Arctic where small unmanned aircraft may operate 24 hours per day for research and commercial purposes. The plan for operations in these permanent areas shall include the development of processes to facilitate the safe operation of unmanned aircraft beyond line of sight. Such areas shall enable over-water flights from the surface to at least 2,000 feet in altitude, with ingress and egress routes from selected coastal launch sites.

‘‘(2) AGREEMENTS.—To implement the plan under paragraph (1), the Secretary may enter into an agreement with relevant national and international communities.

‘‘(3) AIRCRAFT APPROVAL.—Not later than 1 year after the entry into force of an agreement necessary to effectuate the purposes of this subsection, the Secretary shall work with relevant national and international communities to establish and implement a process, or may apply an applicable process already established, for approving the use of unmanned aircraft in the designated permanent areas in the Arctic without regard to whether an unmanned aircraft is used as a public aircraft, a civil aircraft, or a model aircraft.

‘‘§ 45503. Risk-based permitting of unmanned aircraft systems

‘‘(a) IN GENERAL.—Not later than 120 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall establish procedures for issuing permits under this section with respect to certain unmanned aircraft systems and operations thereof.

‘‘(b) PERMITTING STANDARDS.—Upon the submission of an application in accordance with subsection (d), the Administrator shall issue a permit with respect to the proposed operation of an unmanned aircraft system if the Administrator determines that—

‘‘(1) the unmanned aircraft system and the proposed operation achieve a level of safety that is equivalent to—

‘‘(A) other unmanned aircraft systems and operations permitted under regulation, exemption, or other authority granted by the Administrator; or

‘‘(B) any other aircraft operation approved by the Administrator with similar risk characteristics or profiles; and

‘‘(2) the applicant for the permit has adequate liability insurance based on the criteria specified in subsection (c).

‘‘(c) SAFETY CRITERIA FOR CONSIDERATION.—In determining whether a proposed operation meets the  standards described in subsection (b), the Administrator shall consider the following safety criteria:

‘‘(1) The kinetic energy of the unmanned aircraft system.

‘‘(2) The location of the proposed operation, including the proximity to—

‘‘(A) structures;

‘‘(B) congested areas;

‘‘(C) special-use airspace; and

‘‘(D) persons on the ground.

‘‘(3) The nature of the operation, including any proposed risk mitigation.

‘‘(4) Any known hazard of the proposed operation and the severity and likelihood of such hazard.

‘‘(5) Any known failure modes of the unmanned aircraft system, failure mode effects and criticality, and any mitigating features or capabilities.

‘‘(6) The operational history of relevant technologies, if available.

‘‘(7) Any history of civil penalties or certificate actions by the Administrator against the applicant seeking the permit.

‘‘(8) Any other safety criteria the Administrator considers appropriate.

‘‘(d) APPLICATION.—An application under this section shall include evidence that the unmanned aircraft system and the proposed operation thereof meet the standards described in subsection (b) based on the criteria described in subsection (c).

‘‘(e) SCOPE OF PERMIT.—A permit issued under this section shall—

‘‘(1) be valid for 5 years;

‘‘(2) constitute approval of both the airworthiness of the unmanned aircraft system and the proposed operation of such system;

‘‘(3) be renewable for additional 5-year periods; and

‘‘(4) contain any terms necessary to ensure aviation safety.

‘‘(f) NOTICE.—Not later than 120 days after the Administrator receives a complete application under subsection (d), the Administrator shall provide the applicant written notice of a decision to approve, disapprove, or request a modification of the application.

‘‘(g) PERMITTING PROCESS.—The Administrator hall issue a permit under this section without regard to subsections (b) through (d) of section 553 of title 5 and chapter 35 of title 44 if the Administrator determines that the operation permitted will not occur near a congested area.

‘‘(h) EXEMPTION FROM CERTAIN REQUIREMENTS.—To the extent consistent with aviation safety, the Administrator may exempt applicants under this section from paragraphs (1) through (3) of section 44711(a).

‘‘(i) WITHDRAWAL.—The Administrator may, at any time, modify or withdraw a permit issued under this section.

‘‘(j) APPLICABILITY.—This section shall not apply to small unmanned aircraft systems and operations addressed by the proposed rule on small unmanned aircraft systems issued pursuant to section 45502(b)(1) or any final rule based on such proposed rule.

‘‘(k) EXPEDITED REVIEW.—The Administrator shall review and act upon applications under this section on an expedited basis for unmanned aircraft systems and operations thereof to be used primarily in, or primarily in direct support of, emergency preparedness, response, or disaster recovery.

‘‘§ 45504. Public unmanned aircraft systems

‘‘(a) GUIDANCE.—Not later than November 10, 2012, the Secretary of Transportation shall issue guidance regarding the operation of public unmanned aircraft systems to—

‘‘(1) expedite the issuance of a certificate of authorization process;

‘‘(2) provide for a collaborative process with public agencies to allow for an incremental expansion of access to the national airspace system as technology matures and the necessary safety analysis and data become available, and until standards are completed and technology issues are resolved;

‘‘(3) facilitate the capability of public agencies to develop and use test ranges, subject to operating restrictions required by the Federal Aviation Administration, to test and operate unmanned aircraft systems; and

‘‘(4) provide guidance on a public entity’s responsibility when operating an unmanned aircraft without a civil airworthiness certificate issued by the Administration.

‘‘(b) STANDARDS FOR OPERATION AND CERTIFICATION.—Not later than December 31, 2015, the Administrator shall develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system.

‘‘(c) AGREEMENTS WITH GOVERNMENT AGENCIES.—

‘‘(1) IN GENERAL.—Not later than May 14, 2012, the Secretary shall enter into agreements with appropriate government agencies to simplify the process for issuing certificates of waiver or authorization with respect to applications seeking authorization to operate public unmanned aircraft systems in the national airspace system.

‘‘(2) CONTENTS.—The agreements shall—

‘‘(A) with respect to an application described in paragraph (1)—

‘‘(i) provide for an expedited review of the application;

‘‘(ii) require a decision by the Administrator on approval or disapproval within 60 business days of the date of submission of the application; and

‘‘(iii) allow for an expedited appeal if the application is disapproved;

‘‘(B) allow for a one-time approval of similar operations carried out during a fixed period of time; and

‘‘(C) allow a government public safety agency to operate unmanned aircraft weighing 4.4 pounds or less, if operated—

‘‘(i) within the line of sight of the operator;

‘‘(ii) less than 400 feet above the ground;

‘‘(iii) during daylight conditions;

‘‘(iv) within Class G airspace; and

‘‘(v) outside of 5 statute miles from any airport, heliport, seaplane base, spaceport, or other location with aviation activities.

‘‘§ 45505. Special rules for certain unmanned aircraft systems

‘‘(a) IN GENERAL.—Notwithstanding any other requirement of this subtitle, and not later than August 12, 2012, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 45502 or the guidance required under section 45504.

‘‘(b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In making the determination under subsection (a), the Secretary shall determine, at a minimum—

‘‘(1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and

‘‘(2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 is required for the operation of unmanned aircraft systems identified under paragraph (1).

‘‘(c) REQUIREMENTS FOR SAFE OPERATION.—If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system.

‘‘§ 45506. Operation of small unmanned aircraft

‘‘(a) EXEMPTION AND CERTIFICATE OF WAIVER OR AUTHORIZATION FOR CERTAIN OPERATIONS.—Not later than 270 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall establish a procedure for granting an exemption and issuing a certificate of waiver or authorization for the operation of a small unmanned aircraft system in United States airspace for the purposes described in section 45501(1).

‘‘(b) OPERATION OF EXEMPTION AND CERTIFICATE OF WAIVER OR AUTHORIZATION.—

‘‘(1) EXEMPTION.—An exemption granted under this section shall—

‘‘(A) exempt the operator of a small unmanned aircraft from the provisions of title 14, Code of Federal Regulations, that are exempted in Exemption No. 11687, issued on May 26, 2015, Regulatory Docket Number FAA–2015–24 0117, or in a subsequent exemption; and

‘‘(B) contain conditions and limitations described in paragraphs 3 through 31 of such Exemption No. 11687, or conditions and limitations of a subsequent exemption.

‘‘(2) CERTIFICATE OF WAIVER OR AUTHORIZATION.—A certificate of waiver or authorization issued under this section shall allow the operation of small unmanned aircraft according to—

‘‘(A) the standard provisions and air traffic control special provisions of the certificate of waiver or authorization FAA Form 7711–1 (7–12 74); or

‘‘(B) the standard and special provisions of a subsequent certificate of waiver or authorization.

‘‘(c) NOTICE TO ADMINISTRATOR.—Before operating a small unmanned aircraft pursuant to a certificate of waiver or authorization granted under this section, the operator shall provide written notice to the Administrator, in a form and manner specified by the Administrator, that contains such information and assurances as the Administrator determines necessary in the interest of aviation safety and the efficiency of the national airspace system, including a certification that the operator has read, understands, and will comply with all terms, conditions, and limitations of the certificate of waiver or authorization.

‘‘(d) WAIVER OF AIRWORTHINESS CERTIFICATE.— Notwithstanding section 44711(a)(1), the holder of a certificate of waiver or authorization granted under this section may operate a small unmanned aircraft under the terms, conditions, and limitations of such certificate without an airworthiness certificate.

‘‘(e) PROCEDURE.—The granting of an exemption or the issuance of a certificate of waiver or authorization, or any other action authorized by this section, shall be made without regard to—

‘‘(1) section 553 of title 5; or

‘‘(2) chapter 35 of title 44.

‘‘(f) STATUTORY CONSTRUCTION.—Nothing in this section may be construed to—

‘‘(1) affect the issuance of a rule by or any other activity of the Secretary of Transportation or the Administrator under any other provision of law; or

‘‘(2) invalidate an exemption or certificate of waiver or authorization issued by the Administrator before the date of enactment of this section.

‘‘(g) EFFECTIVE PERIODS.—An exemption or certificate of waiver or authorization issued under this section, or an amendment of such exemption or certificate, shall cease to be valid on the effective date of a final rule on small unmanned aircraft systems issued under section 45502(b)(1).

‘‘(h) APPLICABILITY.—

‘‘(1) DEFAULT.—The requirements of this section shall apply beginning on the date that is 270 days after the date of enactment of this Act unless the Administrator issues, before such date, a final rule based on the notice of proposed rulemaking issued on February 23, 2015, entitled ‘Operation and Certification of Small Unmanned Aircraft Systems’ (80 Fed. Reg. 9543).

‘‘(2) EXPIRATION.—The requirements of this section shall not be effective beginning on the date on which the Administrator issues a final rule based on the notice of proposed rulemaking issued on February 23, 2015, entitled ‘Operation and Certification of Small Unmanned Aircraft Systems’ (80 Fed. Reg. 20 9543).

‘‘§ 45507. Special rules for model aircraft

‘‘(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 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) COMMERCIAL OPERATION FOR INSTRUCTIONAL 5 OR EDUCATIONAL PURPOSES.—A flight of an unmanned aircraft shall be treated as a flight of a model aircraft for purposes of subsection (a) (regardless of any compensation, reimbursement, or other consideration exchanged or incidental economic benefit gained in the course of planning, operating, or supervising the flight), if the flight is—

‘‘(1) conducted for instructional or educational purposes; and

‘‘(2) operated or supervised by an eligible not-for-profit organization.

‘‘(c) STATUTORY CONSTRUCTION.—Nothing in this section may 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.

‘‘(d) ELIGIBLE NOT-FOR-PROFIT ORGANIZATION DEFINED.—In this section, the term ‘eligible not-for-profit organization’ means an entity that—

‘‘(1) is described in section 501(c)(3) of the Internal Revenue Code of 1986;

‘‘(2) is exempt from tax under section 501(a) of the Internal Revenue Code of 1986;

‘‘(3) the mission of which is demonstrably the furtherance of model aviation;

‘‘(4) provides a comprehensive set of safety guidelines for all aspects of model aviation addressing the assembly and operation of model aircraft and that emphasize safe aeromodeling operations within the national airspace system and the protection and safety of individuals and property on the ground;

‘‘(5) provides programming and support for any local charter organizations, affiliates, or clubs; and

‘‘(6) provides assistance and support in the development and operation of locally designated model aircraft flying sites.

‘‘§ 45508. Safety information for operation of covered unmanned aircraft

“Beginning not later than 120 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall make available to the public, through electronic or other suitable means, information developed jointly by the Federal Aviation Administration and appropriate non-governmental organizations relating to the safe operation of unmanned aircraft in United States airspace that includes—

‘‘(1) notice of the existence of airspace boundaries, designated navigational routes, and navigable airspace;

‘‘(2) the requirements for entry into and operation within class A, B, C, D, and E airspace, as defined in subparts A through E of part 71 of title 14, Code of Federal Regulations (or any successor provisions);

‘‘(3) notice of the existence and a description of Federal aviation regulations applicable to the flight of unmanned aircraft, including regulations prohibiting careless and reckless operation and operation of unairworthy aircraft in part 91 of such title (or any successor provisions);

‘‘(4) notice of sources of aeronautical information and applicable regulations, including publicly available resources for determining the locations of airports, designated navigational routes, and controlled airspace;

‘‘(5) notice of criminal and civil penalties that may result from unlawful operation of unmanned aircraft; and

‘‘(6) examples of the hazards associated with the operation of an unmanned aircraft—

‘‘(A) in a careless or reckless manner;

‘‘(B) in an unairworthy condition; and

‘‘(C) in proximity to other aircraft.’’.

(b) CONFORMING AMENDMENTS.—

(1) REPEALS.—

(A) IN GENERAL.—Sections 332(a), 332(b), 332(d), 333, 334, and 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) are repealed.

(B) CLERICAL AMENDMENT.—The items relating to sections 333, 334, and 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) in the table of contents contained in section 1(b) of that Act are repealed.

(2) PENALTIES.—Section 46301 of title 49, United States Code, is amended—

(A) in subsection (a)—

(i) in paragraph (1)(A) by inserting ‘‘chapter 455,’’ after ‘‘chapter 451,’’; and

(ii) in paragraph (5)(A)(i) by striking ‘‘or chapter 451,’’ and inserting ‘‘chapter 451, chapter 455,’’;

(B) in subsection (d)(2) by inserting ‘‘chapter 455,’’ after ‘‘chapter 451,’’; and

(C) in subsection (f)(1)(A)(i) by striking ‘‘or chapter 451’’ and inserting ‘‘chapter 451, or chapter 455’’.

(3) CLERICAL AMENDMENT.—The analysis for subtitle VII of title 49, United States Code, is amended by inserting after the item relating to chapter 453 the following:

‘‘455. Unmanned aircraft systems ……………………………………….45501’’.

 

SEC. 433. UNMANNED AIRCRAFT TEST RANGES.

 

(a) EXTENSION OF PROGRAM.—Section 332(c)(1) of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) is amended by striking ‘‘5 years after the date of enactment of this Act’’ and inserting ‘‘5 years after the date of enactment of the Aviation Innovation, Reform, and Reauthorization Act of 2016’’.

(b) SENSE-AND-AVOID TECHNOLOGIES AT TEST RANGES.—

(1) IN GENERAL.—To the extent consistent with aviation safety, the Administrator of the Federal Aviation Administration shall permit and encourage flights of unmanned aircraft systems equipped with sense-and-avoid technologies at the 6 test ranges designated under section 332(c) of the FAA Modernization and Reform Act of 2012.

(2) WAIVERS.—In carrying out paragraph (1), the Administrator may waive the requirements of section 44711 of title 49, United States Code, including related regulations, to the extent consistent with aviation safety.

(c) PROVISIONAL CIVIL OPERATION OF SMALL UNMANNED AIRCRAFT SYSTEMS AT TEST RANGES.—

(1) IN GENERAL.—In carrying out the program established under section 332(c) of the FAA Modernization and Reform Act of 2012, and subject to the requirements of paragraph (2), the Secretary shall allow civil operation of small unmanned aircraft systems at the 6 test ranges designated pursuant to that section.

(2) REQUIREMENTS.—The Secretary shall provide that—

(A) operations of small unmanned aircraft systems occur exclusively within airspace designated in an applicable certificate of authorization or waiver; and

(B) notwithstanding section 44711 of title 49, United States Code, operations are conducted, to the extent practicable, pursuant to the proposed rule on small unmanned aircraft systems issued pursuant to section 45502(b)(1) of such title, or any final rule issued based on that proposed rule, except that a passing grade on the aeronautical knowledge test required for a sport pilot certificate described in part 61 of title 14, Code of Federal Regulations, or more advanced aeronautical knowledge test under uch part, shall be treated as satisfying the aeronautical knowledge testing requirement contained in such proposed rule.

(3) SUNSET.—This subsection shall cease to be effective on the date that is the earlier of—

(A) 5 years after the date of enactment of this Act; and

(B) the date of publication of a final rule based on the proposed rule described under paragraph (2)(B).

(d) DEFINITION OF TEST RANGE.—In this section, the term ‘‘test range’’ means a defined geographic area where research and development are conducted.

 

SEC. 434. UNMANNED AIRCRAFT SYSTEMS SENIOR LEADERSHIP AND STAFFING.

 

(a) INTRA-AGENCY LEADERSHIP.—

(1) UNMANNED AIRCRAFT SYSTEMS INTEGRATION OFFICE.—There is in the Federal Aviation Administration an Unmanned Aircraft Systems Integration Office (in this section referred to as the ‘‘Office’’).

(2) CHIEF UNMANNED AIRCRAFT SYSTEMS INTEGRATION OFFICER.—

(A) DESIGNATION.—Not later than 30 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall designate an individual to serve as the head of the Office, to be known as the Chief Unmanned Aircraft Systems Integration Officer.

(B) DUTIES; REPORTING.—The Chief Unmanned Aircraft Systems Integration Officer shall—

(i) report directly to the Associate Administrator for Aviation Safety (or a successor position);

(ii) have the duties and functions of the position of the Director of the UAS Integration Office, as of the date of enactment of this section; and

(iii) optimize intra-agency efforts to establish a sound technical and safety methodology for the integration of unmanned aircraft systems into the national airspace system.

(b) INTERAGENCY LEADERSHIP.—

(1) DIRECTOR OF UAS EXTERNAL AFFAIRS.— Not later than 30 days after the date of enactment of this Act, the Administrator shall designate an individual to serve as the head of interagency efforts on unmanned aircraft systems integration for the Administration, to be known as the Director of UAS External Affairs.

(2) DUTIES; REPORTING.—The individual designated under paragraph (1) shall—

(A) report directly to the Deputy Administrator;

(B) have the duties and functions of the position of Senior Advisor on UAS Integration, as of the date of enactment of this section; and

(C) focus on external outreach, education, and interagency initiatives consistent with the Administration’s management of unmanned aircraft systems integration efforts.

(c) STAFFING.—The Administrator shall designate a sufficient number of safety inspectors to focus on the safety oversight of unmanned aircraft systems into the national airspace system, taking into consideration the current and anticipated—

(1) budgetary environment; and

(2) volume of unmanned aircraft system operations.

 

SEC. 435. SENSE OF CONGRESS REGARDING UNMANNED AIRCRAFT SAFETY.

 

It is the sense of Congress that—

(1) the unauthorized operation of unmanned aircraft near airports presents a serious hazard to aviation safety;

(2) with increasing regularity, pilots are reporting near misses with unmanned aircraft at low altitudes during critical phases of flight, either on final approach or shortly after takeoff;

(3) a collision between an unmanned aircraft and a conventional aircraft in flight could jeopardize the safety of persons aboard aircraft and on the ground;

(4) Federal aviation regulations, including sections 91.126 through 91.131 of title 14, Code of Federal Regulations, prohibit unauthorized operation of an aircraft in controlled airspace near an airport;

(5) Federal aviation regulations, including section 91.13 of title 14, Code of Federal Regulations, prohibit the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another;

(6) the Administrator of the Federal Aviation Administration should pursue all available civil and administrative remedies available to the Administrator, including referrals to other government agencies for criminal investigations, with respect to persons who operate unmanned aircraft in an unauthorized manner;

(7) the Administrator should place particular priority on continuing measures, including partnerships with nongovernmental organizations, to educate the public about the dangers to the public safety of operating unmanned aircraft near airports without the appropriate approvals or authorizations; and

(8) manufacturers and retail sellers of small unmanned aircraft systems should take steps to educate consumers about the safe and lawful operation of such systems.

 

SEC. 436. UAS PRIVACY REVIEW.

 

(a) REVIEW.—The Secretary of Transportation, in consultation with the heads of appropriate Federal agencies, appropriate State and local officials, and subject-matter experts and in consideration of relevant efforts led by the National Telecommunications and Information Administration, shall carry out a review to identify any potential reduction of privacy specifically caused by integration of unmanned aircraft systems into the national airspace system.

(b) CONSULTATION.—In carrying out the review, the Secretary shall consult with the National Telecommunications and Information Administration of the Department of Commerce on its ongoing efforts responsive to the presidential memorandum titled ‘‘Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems’’ and dated February 15, 2015.

(c) REPORT.—Not later than 180 days after the date of enactment of this Act, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the results of the review required under subsection (a).

 

SEC. 437. PUBLIC UAS OPERATIONS BY TRIBAL GOVERNMENTS.

 

(a) PUBLIC UAS OPERATIONS BY TRIBAL GOVERNMENTS.—Section 40102(a)(41) of title 49, United States Code, is amended by adding at the end the following:

‘‘(F) An unmanned aircraft that is owned and operated by, or exclusively leased for at least 90 continuous days by, an Indian tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in section 40125(b).’’.

(b) CONFORMING AMENDMENT.—Section 40125(b) of title 49, United States Code, is amended by striking ‘‘or (D)’’ and inserting ‘‘(D), or (F)’’.

 

SEC. 438. FACILITATING UNMANNED AIRCRAFT AUTHORIZATION IN SUPPORT OF FIREFIGHTING OPERATIONS.

 

The Administrator of the Federal Aviation Administration shall enter into agreements with the Secretary of the Interior and the Secretary of Agriculture as necessary to continue the expeditious authorization of safe unmanned aircraft system operations in support of firefighting operations consistent with the requirements of section 45504(c) of title 49, United States Code.

SEC. 439. LOW ALTITUDE UNMANNED AIRCRAFT SYSTEM TRAFFIC MANAGEMENT.

(a) ESTABLISHMENT OF ADVISORY COMMITTEE.—

Not later than 90 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall establish an advisory committee comprised of government representatives and appropriate industry representatives to—

(1) assess the necessity, feasibility, and benefits of establishing unmanned aircraft traffic management systems for airspace between the surface and 400 feet above ground level;

(2) develop recommendations for government oversight of such systems; and

(3) address any other issues the advisory panel considers necessary and appropriate.

(b) REPORT.—Not later than 1 year after the establishment of the advisory committee under subsection (a), the Administrator shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the findings of the advisory committee.

(c) SUNSET.—The advisory committee shall terminate upon transmission of the report pursuant to subsection (b).

 

SEC. 440. UAS DETECTION SYSTEMS PILOT PROGRAM.

 

(a) ESTABLISHMENT.—Not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall establish a pilot program to deploy and evaluate the effectiveness of unmanned aircraft detection systems in maintaining the safety of air commerce and navigable airspace in light of aviation safety hazards posed by unauthorized operations of unmanned aircraft in proximity to airports.

(b) PARTICIPATING AIRPORTS.—The Secretary shall select not fewer than 3 airports in the United States with scheduled commercial air service that the Secretary determines to be suitable locations for participation in the pilot program.

(c) DETECTION CAPABILITIES.—In carrying out the pilot program under subsection (a), the Secretary may utilize unmanned aircraft detection systems to—

(1) detect, locate, and track unmanned aircraft;

(2) detect, locate, and track operators of unmanned aircraft; and

(3) mitigate unauthorized operations of unmanned aircraft in any airspace in which they may pose an aviation safety risk.

(d) LIMITATION.—The Secretary shall ensure that the unmanned aircraft detection systems used in carrying out the pilot program do not interfere with or harm airport operations, essential navigation systems, wireless communications, or the general public.

(e) REPORT.—

(1) IN GENERAL.—Not later than 18 months after the date of enactment of this Act, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the results of the pilot program established under subsection (a).

(2) CONTENTS.—The report submitted under paragraph (1) shall include the following:

(A) The number of unauthorized unmanned aircraft operations detected at each participating airport, together with a description of such operations.

(B) The number of instances in which unauthorized unmanned aircraft were mitigated pursuant to subsection (c)(3), together with a description of such instances.

(C) The number of enforcement cases brought by the Federal Aviation Administration for unauthorized operation of unmanned aircraft detected through the pilot program, together with a description of such cases.

(D) The number of any technical failures in the pilot program, together with a description of such failures.

(E) Recommendations for safety and operational standards for unmanned aircraft detection systems.

(F) The feasibility of deployment of the systems at other airports.

(3) FORMAT.—To the extent practicable, the report prepared under paragraph (1) shall be submitted in an unclassified format. If necessary, the report may include a classified annex.

(f) UNMANNED AIRCRAFT DETECTION SYSTEM DEFINED.—In this section, the term ‘‘unmanned aircraft detection system’’ means a system that can carry out the activities described in subsection (c).

(g) SUNSET.—The pilot program established under subsection (a) shall cease to be effective on the earlier of—

(1) the date that is 18 months after the date of enactment of this Act; and

(2) the date of the submission of the report under subsection (e).

(h) AUTHORITY.—After the pilot program ceases to be effective, the Secretary may use unmanned aircraft detection systems to detect and mitigate the unauthorized operation of unmanned aircraft that pose a risk to aviation safety.

 

SEC. 441. EVALUATION OF AIRCRAFT REGISTRATION FOR SMALL UNMANNED AIRCRAFT.

 

(a) METRICS.—Beginning not later than 180 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall develop and track metrics to assess compliance with and effectiveness of the registration of small unmanned aircraft systems by the Federal Aviation Administration pursuant to the interim final rule issued on December 16, 2015, entitled ‘‘Registration and Marking Requirements for Small Unmanned Aircraft’’ (80 Fed. Reg. 78593) and any subsequent final rule, including metrics with respect to—

(1) the levels of compliance with the interim final rule and any subsequent final rule;

(2) the number of enforcement actions taken by the Administration for violations of or noncompliance with the interim final rule and any subsequent final rule, together with a description of the actions; and

(3) the effect of the interim final rule and any subsequent final rule on compliance with any fees associated with the use of small unmanned aircraft systems.

(b) EVALUATION.—The Inspector General of the Department of Transportation shall evaluate—

(1) the Administration’s progress in developing and tracking the metrics set forth in subsection (a); and

(2) the reliability, effectiveness, and efficiency of the Administration’s registration program for small unmanned aircraft.

(c) REPORT.—Not later than 1 year after the date of enactment of this Act, the Inspector General of the Department of Transportation shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing—

(1) the results of the evaluation required under subsection (b); and

(2) recommendations to the Administrator and Congress for improvements to the registration process for small unmanned aircraft.

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Privatization of Air Traffic Control System Heats Up in Advance of FAA Reauthorization Bill

House Republicans have promised to unveil their bill to reauthorize the FAA in a coming weeks. A proposal to privatize the air traffic control system of the United States as well as stern words about the failure of the FAA to implement NextGen in timely and organized fashion is expected to be included. To add fuel to the fire, the Department of Transportation Office of Inspector General issued two reports calling the FAA’s management in general into question and its management of air traffic control operations in particular. On January 15, 2016, OIG issued a 33-page report, entitled “FAA Reforms Have not Achieved Expected Cost, Efficiency, and Modernization Outcomes.” The OIG notes that “costs continue to rise … operational productivity has declined … disappointing reform outcomes … resistant to change … unclear and inconsistent reporting … NextGen-critical programs remain over budget and behind schedule … unreliable cost and schedule estimates …” Characterizing the OIG Report as “scathing,” the House Transportation & Infrastructure Committee Chairman Bill Shuster saw the report as indicative of the need for extensive changes to the FAA. “This report shows that the FAA simply isn’t suited to successfully modernize our nation’s antiquated air traffic control system,” Shuster said. “The FAA remains a vast government bureaucracy, not a high-tech service provider. I’s clear from the DOT IG’s findings that we need transformational FAA reform if we are going to have a safe, efficient, 21st century aviation system.”

This is not a new issue. Whether the nation’s air traffic control system should be privatized has long been on the House T&I Committee’s To Do List. See, Has the Time Come to Privatize Air Traffic Control?
Moreover, on January 11, 2016, the OIG dropped another report “FAA Continues to Face Challenges in Ensuring Enough Fully Trained Controllers at Critical Facilities.” In that report, OIG concludes that the FAA is failing to ensure enough controllers are trained to fill vacancies left by retirees, costs have ballooned and air traffic control productivity has declined.

This is not to say that the FAA and its current Air Traffic Organization does not have its supporters. This past Monday, a new organization calling itself Americans Against Air Traffic Privatization (AAATP) held a press conference. The leaders of the new coalition believed that a move toward privatization would “lead to ‘increased safety risks,’ be ‘bad for workers and bad for consumers’ and is a ‘misguided ploy to disrupt a system that’s working well for the American people.'” At the press conference Rep. Elijah Cummings (D-MD) and Del. Eleanor Holmes Norton (D- DC), who are both on the House T&I Committee, also answered questions. Del. Holmes Norton made it clear that while she is generally opposed to privatization of the Air Traffic Organization, “My basic complaint has been [there have been] no discussions [with Shuster] and thus no sense of what a bill would be,” she said. “I can’t tell you I’m opposed to X or Y.” Rep. Cummings was less sanguine, stating that the “system that we have now … has been a very strong, effective and efficient system.”

In response to the OIG’s withering criticism, the FAA stated that “The agency is now centrally managing staffing at the national level to maximize the overall benefits for all facilities. As part of that process, the FAA is expediting employee transfers from well-staffed facilities to those needing additional personnel.”

One must also ask whether the issue of management of the air traffic control system is a management issue or a technical issue related to the NextGen roll-out. For example, the OIG report advises that the FAA must “bring costs and schedules under control.” Thus, the implicit conclusion is that due to the FAA’s long term inability to attain its performance goals, air traffic control is ripe for privatization. However, what seems to be missing in the debate is how we got here in the first place. That is, the question that needs to be asked before there is any discussion about privatization of air traffic control is why has FAA been chronically late in implementing NextGen and other development programs. The answer may lie not in the lack of management, but in lack of technical insight and how programs are conceived and designed.

Since early roll out of new technology is one of the primary reasons why privatization is viewed as beneficial, it might be instructive to examine one of the foundations of NextGen program. Wide Area Augmentation System (WAAS) or the effort to provide signal integrity for GPS (satellite based navigation) with ADS-B operations. WAAS was conceived to provide signal integrity and enhance accuracy of GPS signals. The majority of the faults that degrade signal integrity come from the satellite segment of GPS, not the ground-based WAAS. These are systemic faults. The issue that the FAA has been dealing with is trying alleviate a systemic problem downstream from the source, that is on ground, which is difficult and might be impossible. This is a technical deficiency due to an incomplete conceptual design. This might be one reason for the many delays. According to GAO reports, it was 169 months behind schedule and $2,000,000,000.00 over costs. See also, Management Processes in U.S. Air Traffic Management Modernization: a Study of Global Navigation Satellite System Development. The point is that failures pointed out by the OIG may be better (and easier) addressed by strengthening the technical and engineering functions, without going through a radical restructuring or the air traffic system.

There are many factors to consider before radical changes to the existing structure are considered. Looking to the source of the issues raised by the OIG would seem to be the best strategy.

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Los Angeles City Attorney Files First Criminal Charges Against Drone Operator; Raises Questions of Federal Pre-Emption

Los Angeles City Attorney Mike Feuer filed criminal charges against two men for flying drones in the vicinity of a hospital and police heliports. They will be the first to face criminal charges under Los Angeles’ new drone restrictions, and will test the ability of a municipality to restrict drone usage, an area that has traditionally been left to the FAA. The Los Angeles Times reported that on Dec. 12, city prosecutors say a drone flown by Arvel Chappel, 35, forced an LAPD air unit to change its landing path when he flew the device within a quarter-mile of the Hooper Heliport downtown. Days earlier, Michael Ponce, 20, was cited for flying a drone within three miles of several hospital heliports in Griffith Park. L.A.’s new drone ordinance, which the City Council unanimously approved in October, makes it a misdemeanor to fly a drone more than 500 feet in the air, within five miles of an airport without permission or within 25 feet of another person.

However, Chappel and Ponce’s attorneys should be aware that there is some question about the legality of the City’s ordinance. Although L.A.’s drone ordinance closely resembles the Federal Aviation Administration’s civilian drone flight regulations, the City’s ordnance most likely is pre-empted by federal law. Aviation statutes specifically state that “[t]he United States Government has exclusive sovereignty of airspace of the United States.” 49 U.S.C. 40103(a)(1). Moreover, the same statute specifically gives the federal government the authority to establish rules and regulations “for the use of navigable airspace.” 49 U.S.C. 40103(b). This is what is known as “field pre-emption,” where the statutory language is so broad that it pre-empts any state or local laws or ordinances that fall within the purview of the statute. As far back as 1973, the U.S. Supreme Court has upheld the FAA’s authority in Burbank v. Lockheed Terminal, 411 U.S. 624 (1973). In Northwest Airlines,Inc. v. Minnesota, 322 U.S. 292, 303 (1944) The U.S Supreme Court held that “[f]ederal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis into a runway it is caught up in an elaborate and detailed system of controls.”

It should be interesting to see if federal pre-emption will be raised in these cases.

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Drones in the News This Week

Regulation of drones by the FAA tops the coverage of drone activity this week. Appearing before the House Subcommittee on Aviation, FAA Deputy Administrator Michael Whittaker said that the FAA will finalize its small drone (under 55 lbs) rule sometime in the first half of next year.  This much earlier than some previous predictions that the rule would not be finalized until 2017 due to the mountain of public comments. Still, in the FAA Reauthorization and Reform Act of 2012, Congress gave the FAA until September, 2015 to finalize the rule. http://1.usa.gov/1FUQabd

In addition, Deputy Administrator Whittaker told the Subcommittee that it would test technology to identify drones flying within five miles of an airport and tracking them back to their operators. Partnering with CACI International, the FAA would use existing technology to identify drones by their radio signals. http://usat.ly/1MhnKch

On the other side of the Capitol, Sen Boxer (D-CA) introduces legislation to make drone offenses federal misdemeanors. http://bit.ly/1P0K63o Called the “Safe Drone Act,” the bill would make it a misdemeanor, subject to a fine and not more than a year in prison, or both, for someone to operate a drone in a restricted area, which is within a 2-mile radius of an airport or within two miles of the outermost perimeter of an ongoing firefighter operation involving the Department of Agriculture or Department of Interior.  Sen Boxer said that this bill is in response to the July 17, 2015, incident on I-15 near El Cajon Pass where firefighting planes were called off because of drones in the area, which allowed a fire to overtake and burn 20 vehicles on I-15.

However, the use for drones continues to mount.  As the L.A. Times reported, drones “are providing film and TV viewers a new perspective on the action.” http://lat.ms/1jQPARB While the article reports that less than 10% of all productions use drones, the demand is rapidly growing ever since the FAA gave an exemption for use of drones by the film and television industry. A camera drone and crew “costs as little as $5,000 a day, compared with at least $25,000 a day for a helicopter shoot.

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Drones Once Again Top Aviation News

Sen Chuck Schumer (D-NY) said that he would introduce a bill that would force drone manufacturers to implement technology that would keep “unmanned aerial vehicles” (#UAV) or “unmanned aerial systems” (#UAS) or “drones” as everyone else calls them away from airports and major events and places with large gatherings of people.  This concept, called #geo-fencing, would keep drones from operating within two miles of an airport or above 500 feet.  http://cbsloc.al/1M5vEUa  Nothing, however, about the privacy issues raised by drone use.  The collision-risk problem with drones was also the subject of an opinion piece in the Grand Forks Herald which calls for stricter enforcement of the current regulations without going as far as mandating geo-fencing. http://bit.ly/1Oqw9KR

Enforcement was also on the minds of people in North Carolina, where the Winston-Salem Journal reported that education and enforcement are the key to safe drone use. http://bit.ly/1LsmDBH In an article appearing in the Winston-Salem Journal, Richard Hanson, the government and regulatory affairs director at the Academy of Model Aeronautics, said that because anyone can purchase a drone and “point it in the direction you want to take the picture, with no information about where it may be appropriate or not appropriate to fly” there needs to be a bigger push to educate these buyers.  In addition, Mr. Hanson says that the FAA should be a “little more aggressive, a little more proactive in enforcing existing regulations.”  Perhaps memories of the Pirker case are still running through the FAA’s mind.  Enforcement does take place.  For example, a University of Kentucky law student was charged with wanton endangerment after a drone he was flying crashed into the campus’ crowded stadium.  The penalty carries up to 12 months in jail.  http://bit.ly/1J81smI  This comes on the heels of a drone crash at the U.S. Open tennis match in New York.  Moreover, a study by the Academy of Model Aeronautics, claims that only a small fraction of the reported “close calls” between commercial aircraft and drones were “near misses,” and only 10 required evasive action.  http://usat.ly/1EYkK2U

Local control was on the mind of Sid Salter in an opinion piece in Mississippi where the state legislature has made it a felony to use UAS technology to eavesdrop on people.  http://bit.ly/1VXWPF4  That being said, Mr. Salter stated that “as states carve out their own regulations, federal regulations become paramount” and he believes that the FAA’s selection of Mississippi State University to operate a new “National Center of Excellence for Unmanned Aircraft Systems” will enhance Mississippi’s position in the development of future UAS rules and regulations.  Where does the federal government’s mandate end and local control begin?  That is the question that Carlisle, PA was asking about police use of drones.  That raised further questions about local control of drones in light of the proposed FAA regulations.  http://bit.ly/1QAB8I0  In a phys.org piece on police use of drones, the question of armed drones used by police is discussed.  As the article points out, “the specter of armed drones surfaced with a law passed in North Dakota last month that allows police to equip the aircraft with teargas.”  http://bit.ly/1NrUYW7  At least 60 police forces across the country have applied for drone certification.  The article explains that “peeping tom” drones are just the tip of the iceberg, “[w]ithout proper regulation, drones equipped with facial recognition software, infrared technology and speakers capable of monitoring personal conversations would cause unprecedented invasions of our privacy rights.”

From “News of the Weird” comes this gem: the FAA granted an application to fly a paper airplane.  The FAA granted a Section 333 Exemption to Peter Sachs fly his powered paper airplane to “conduct aerial photography and videography.” As with all Section 333 Exemption in order to fly the paper airplane commercially – i.e., for money – he would have to hire a pilot with at least an FAA sport pilot license.  As Sachs stated: “[w]ith this grant, the FAA has abandoned all logic and sensibility by declaring that a 19-gram paper airplane is legally an ‘aircraft.’”  http://onforb.es/1gmwGzy

Meanwhile, businesses continue to come up with new and innovative ways to use drones.  At the Professional Retail Store Maintenance Association meeting in Scottsdale, AZ, a presentation was given on how unmanned aerial systems could retail facilities maintenance departments do their jobs more safely and less expensively.  http://bit.ly/1URc1Bw Here is an article that sort of wraps up some of the civilian uses of drones. http://bit.ly/1NrXyLN

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Debate on Privatizing Air traffic Control Rachets Up After DOT Inspector General Issues Report.

One of the U.S House leadership’s goals for the upcoming Federal Aviation Administration re-authorization is to privatize the nation’s Air Traffic Control system.  http://bit.ly/1QroLOx Although this idea has been kicked around before (see Has The Time Come to Privatize Air Traffic Control?), it seems to have gained traction in this Congress largely due to the rising costs and delays in the implementation of a new satellite-based flight navigation system known as NextGen.  In preparation for the upcoming debate, the Chairman of the House Transportation and Infrastructure Committee, Rep. Bill Shuster (R-PA) commissioned the Department of Transportation’s Inspector General Office to examine how other countries managed the transition.  That report, which was issued on Wednesday, September 9, 2015, found significant differences between the U.S. air traffic control system and methods for managing flight movements in the United Kingdom, France, Canada and Germany.  http://1.usa.gov/1KbffcZ

It is largely the failure of the FAA to implement NextGen quickly and efficiently that highlight the differences between it and the foreign, private sector, air traffic control systems.  The implementation of NextGen, which was finally approved by Congress in the FAA Reauthorization and Reform Act of 2012, has hit turbulence amid missed deadlines and rampant budget cutting in Washington.  The DOT IG points out in its report that “[t]he A[ir] Navigation S[ervice] P[rovider]s are financially self-supporting and finance their operations primarily through user fees, but also have borrowing authority for modernization and infrastructure projects.”  Moreover, “[t]he ANSPs also do not embark on large-modernization efforts or conduct extensive aviation research and development. Rather, they implement new technologies incrementally, using a variety of methods, such as purchasing commercial-off-the-shelf technologies.”  In other words, a privatized air traffic control system would be nimbler and more efficient because it would not rely on government funding to upgrade the system.

Rep. Shuster could not have been more pleased with the result. In a publically released, he said that the report “shows that other major industrial countries have successfully separated their ATC functions without negative impacts to safety, and these systems are able to make enough money to be self-sustaining.”  http://1.usa.gov/1QrmDWY Stating that “[i]f we want to finally modernize our aviation system, reduce delays, and generate more efficiencies in our skies, we can’t continue to just tinker around the edges . . . We have to take action that transforms the way we do things.”

However, there is opposition to the privatization of air traffic control.  First, the FAA’s faulty and untimely roll-out of NextGen is not entirely to blame for the U.S.’s antiquated air traffic control system.  Prior to the passage of the FAA Reauthorization and Reform Act of 2012, the FAA had gone without funding for 5 years, limping along on 23 short-term operating bills.  Had the FAA been reauthorized when its funding ran out in 2007, NextGen would have had a five-year head start on the current situation.  Thus, gridlock in Congress is partially to blame for the status of the U.S. air traffic control system.

Second, there is a growing segment in the aviation industry that believes that they will be overlooked in the name of financial expediency.  Most recently, a group of South Dakota aviation businesses wrote to Sen. John Thune (R-SD) expressing their concern about privatizing air traffic control.  Their main concern is the reliance of a private air traffic control system on user fees that “will undermine the national air transportation system by denying rural America access to cutting-edge technology and hinder South Dakota’s economic development.”  http://bit.ly/1EQGZI8

The funding for the FAA is up at the end of September.  According to The Hill, Shuster has signaled that he will include the privatization push in an upcoming funding bill for the FAA.  http://bit.ly/1i1uBKK

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FAA Fails to Address Crucial Problems In Implementing “CatEx2”

On August 3, 2015, the Federal Aviation Administration published its Final Notice to Announce Implementation of Section 213(c)(2) CATEX and Disposition of Public Comments in the Federal Register. http://1.usa.gov/1Kc2Eql.  This Categorical Exclusion was included in the FAA Reauthorization and Reform Act of 2012 and has been the subject of much controversy, particularly in light of the rather heavy-handed way the FAA has implemented “Performance Based Procedures” (PBN) and “Regional Navigation Procedures” as part of its “NextGen” roll-out.  For those new to the issue, here is the legislatively mandated categorical exclusion:

NextGen Procedures.—Any navigation performance or other performance based navigation procedure developed, certified, published, or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rules procedures in the same airspace, shall be presumed to have no significant affect [sic] on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure.

On previous occasions, this blog has expressed issues with the categorical exclusion.  See RTCA’s Paper on “CatEx2” for NextGen Implementation Is Legally Indefensible.  These comments focus on the FAA’s proposed implementation of that CatEx.

First, the idea of using categorical exclusions for instituting PBN procedures is not a good one.  One of the primary problems that the FAA is currently having in dealing with PBN procedures is the lack of transparency.  That is, the affected communities do not feel like they have a stake in the decision about whether there will be aircraft flying over their heads.  Yet, the FAA continues to use “categorical exclusions” when instituting RNAV and other PBN procedures.  This avoids public scrutiny, since no public participation is required.  Thus, oftentimes the only notice affected residents have that the flight paths have changed is when they hear the aircraft rumbling overhead.  In response to a comment regarding the lack of transparency, the FAA brushed off the concern by stating that “the FAA and NAC are currently giving increased attention to improving airport operator and community involvement in PBN implementation.”  While that is a step in the right direction, it still does not resolve the current problem for communities that have already been affected.

Second, the FAA’s new proposal for implementation does not resolve the legal issues raised by the NAC’s “Net Noise Reduction” proposal.  The FAA claims that by focusing on aggregate noise instead of the number of the affected population, its version of net noise reduction will be “more consistent with the statute.”  However, changing to a system that aggregates noise instead of counting the number of people affected by the PBN procedure does not get around the statutory mandate that the “measurable reduction” of noise be on “a per flight basis.”  Since the system to be implemented by the FAA still employs an average, it is out of compliance with the statute.  In its recent Notice, the FAA shrugged off these concerns by stating because “the FAA cannot directly apply the CATEX as written due to technical challenges associated with the language used by Congress in creating the CATEX” it will ignore the precise statutory language and implement a CatEx that is technically feasible, but runs contrary to the statute.  The problem here is that the FAA’s and the NAC’s technical staff are not used to dealing with statutes, they are used to drafting and implementing regulations.  When dealing with regulations, they can mold the wording of the regulations to fit the technical parameters. But they cannot, at least from a legal perspective, change or ignore statutory language to fit their technical needs.

Third, the FAA’s new proposal states that the “CATEX would not be used if any noise increases would be significant.”  This statement is rather perplexing, since the statute specifically states that the CatEx can only be used if there is a “measurable reduction” of noise.  It does not say “significant,” nor does it allow for an increase.  How is it that the FAA can state with straight face that the statute will allow it to use the CatEx in instances where there is an increase in noise?

Fourth, the FAA and the NAC seem to be unwilling to be creative from a technical standpoint.  For example, the FAA states that “noise depends not only on the varying noise levels of an aircraft as it flies, but also on the position of the aircraft in relation to noise sensitive receivers on the ground.”  However, the statute does not mention anything about measuring the amount of noise on the ground over noise sensitive receptors.  It would seem that the Congress is asking for a measurable reduction of noise produced by the aircraft and the aircraft engines.  That is measurable in the same manner that carbon dioxide emissions and fuel emissions are measurable.  For example, an aircraft using a continuous descent arrival produces less noise than an aircraft using the standard procedure.  Is that not what the Congress intended?

Finally, it should be pointed out that “CatEx2” is less a “categorical exclusion” and more of an amendment of NEPA’s requirements.  It is a grant of an exemption from the environmental impact process required under NEPA, which includes no requirement for public input.  Categorical exclusions were intended to be used as broad categories of administrative tasks undertaken by a federal agency that do not have a discernible impact on the environment.  The CEQ installed an escape hatch by stating that an activity that normally would be covered by a categorical exclusion could still have to go through the full NEPA environmental process if there were “extraordinary circumstances.”

However, categorical exclusions have been used by the FAA to “streamline” the NEPA process, particularly in the case of NextGen implementation, in order to avoid having to develop an Environmental Assessment or an Environmental Impact Statement.  They are used increasingly by federal agencies in instances where an Environmental Assessment is the more appropriate alternative.  This has had the effect of freezing a primary stakeholder – the affected public – out of the process.  This is particularly evident from the fact that there is no provision for “extraordinary circumstances” in CatEx2 which, in a usual CatEx, would augur against the use of a CatEx.  Under CatEx2, if the “measurable reductions” components are met, the “CatEx” can be used and the FAA can proceed to bypass NEPA requirements without regard to any extraordinary circumstances.

In the end, if the FAA is going to move with the implementation of this CatEx (one that the FAA admits it will use infrequently), that it include in its interpretative guidance a requirement that the public be involved before the CatEx is approved.  The FAA should take note that this piece of legislation is discretionary on the part of the FAA.  If the FAA cannot implement the statutory language, it is under no requirement to use the categorical exclusion.  If the FAA sincerely believes that an average is the right choice and the intent of Congress, then the FAA should seek to have the statute changed during the upcoming FAA reauthorization process instead of implementing a program that is legally suspect.

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