#FAA Finalizes Small #Drone Rules

On Tuesday, June 21, 2016, the Federal Aviation Administration announced that it had finalized the first operational rules for routine commercial use of small unmanned aircraft systems (#UAS, #drones, #UAV). The new rules will take effect in late August. These rules have been a long time coming and, according to the FAA, they have been designed to “minimize risks to other aircraft and people and property on the ground.”  These regulations apply to commercial use of drones less than 55 pounds, under 400 feet above ground level. The regulations require drone pilots to keep their drone in their line of sight at all times. It also requires that the drone operator have a newly created “remote pilot certificate” with a “small UAS rating.” The remote pilot certificate requires individuals to pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center or have an existing non-student Part 61 pilot certificate. As part of the remote pilot certificate application process, the #TSA will conduct a security background check of all remote pilot applications. Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application.

For more information about the new drone rules, visit the FAA’s website or send an email to Taber Law Group, P.C.


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DOT Inspector General Takes Some Shots at FAA

The Department of Transportation’s Office of the Inspector General was busy this week, particularly with respect to issues relating to the #FAA.

On Wednesday, Matthew E. Hampton Assistant Inspector General for Aviation Audits, gave testimony regarding #FAA’s air traffic controller hiring, staffing, and training plans. He concentrated on three areas involving FAA’s controller workforce: (1) FAA’s progress and challenges addressing its controller staffing levels at the Agency’s most critical facilities; (2) FAA’s implementation of its new hiring process; and (3) significant workforce issues that require top FAA management attention and action.

The Assistant Inspector General testified that FAA faces challenges ensuring it has enough fully certified controllers to effectively balance controller training requirements with pending retirements, especially at its most critical facilities. This is in part because FAA does not consider facility-specific information when anticipating future retirements, and lacks sufficient data to determine how many controllers it needs. In addition, the Assistant Inspector General stated that FAA recently introduced a new process for hiring controllers but lacked an effective implementation strategy for the new policies. While it is too soon to assess the overall impact of the new hiring policies, the Agency continues to fall short of its hiring goals due to the lengthy process it takes to hire and train a controller. Finally, the Assistant Inspector General noted that there are several issues that will materially affect the controller workforce going forward that require senior FAA management attention. These include effectively implementing a new scheduling tool, integrating Unmanned Aircraft Systems into our airspace, and transitioning to new Next Generation Air Transportation System technologies.

Also on Wednesday, the Inspector General announced that it was initiating an audit of “grandfathered” airports’ use of revenue for non-airport related purposes. Under preexisting financial arrangements, these grandfathered airports may expend limited amounts of revenue for non-airport purposes, though FAA grant assurances state that revenue generated by airports must be used solely for airports. The audit objective is to assess FAA’s oversight of grandfathered airports’ compliance with Federal law related to airport revenue payments.

And finally, last Friday, June 10, 2016, the #OIG announced that on June 1, 2016, Paul Douglas Tharp was sentenced in U.S. District Court, Greensboro, NC, for serving as an airman without an airman’s certificate and filing a false tax return. He was sentenced to 21 months incarceration, 3 years supervised release, and ordered to pay $285,028 in restitution to the IRS. He pled guilty to the charges in January 2016.

Tharp admitted that he flew his aircraft four times while his pilot certificate was suspended. He also falsely represented himself as a mechanic who held a FAA Powerplant rating. He performed repairs on aircraft engine parts and falsified the maintenance record logs.

Tharp was previously convicted and sentenced in May 2015 in U.S. District Court, Charlotte, NC, for serving as an airman without a certificate and providing false statements to an FAA investigator. In that case, he was sentenced to 60 days incarceration, 3 years of probation, and ordered to pay a $5,000 fine. He was also ordered to sell his airplane and not enter an airport for 3 years, unless to fly commercially as a passenger.

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D.C. Circuit Dismisses ‪Drone‬ ‪Privacy‬ Rules Challenge

The D.C. Circuit on Tuesday said it would not review Electronic Privacy Information Center’s, a privacy watchdog, petition to the ‪#‎FAA‬ asking the agency to address privacy concerns raised by drone use. The court found that both of EPIC’s requests were untimely.

‪#‎EPIC‬ objected to FAA’s dismissal of its petition for the addition of drone privacy rules in a planned rule-making regarding ‪#‎drones‬ and the fact that the FAA left out privacy rules in a preliminary notice of proposed rulemaking. The D.C. Circuit found that review of EPIC’s rulemaking petition was time-barred and review of the lack of drone privacy regulations in the proposed rules is premature.

The D.C. Circuit was unpersuaded that the FAA’s letter denying the privacy watchdog’s rulemaking petition was ambiguous enough to constitute “reasonable grounds” for not filing a Petition for Review within 60 days pursuant to 49 USC 46110(a). Likewise, the court found that it simply does “not have the authority to review proposed agency rules.” EPIC would have to wait until the drone rules are finalized in order to have the court review them for not addressing privacy issues.


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FAA Approves First Section 333 Exemption for Nighttime Drone Operation

In a major policy shift, the Federal Aviation Administration issued the first Section 333 exemption permitting the commercial operation of UAS during night.  On April 18, 2016, the FAA issued exemption No. 16341, (http://1.usa.gov/1rHRMie) permits Industrial Skyworks, Inc. to perform commercial UAS operations during the night for building and roof inspection.

FAA had long maintained that night-time commercial operations of UAS presented safety concerns.  Although Exemption 16341 does allow for night-time operations, the FAA expressed its concern that “operations at night to pose a higher safety risk because the reduced visibility makes it more difficult for the remote pilot to visually locate the UA and, therefore, determine the relative separation with other aircraft in the NAS in order to avoid a collision.”  The FAA concluded, however, that if the drone carries equipment onboard that “identif[ies]y the precise location, attitude, speed, and heading of the small unmanned aircraft” and uses the UAS at night for close inspection of roofs and walls, the safety concerns are mitigated. Moreover, the FAA pointed out that the airspace and ground below tends to be less populated at night, may have precipitated this policy shift.

This exemption is not a blanket rule that now allows commercial use of UAS at night, but is a carefully crafted exemption based on the operational requirements and restrictions proposed by the operator and approved by the FAA. Companies seeking permission for similar nighttime commercial operations should review their operational requirements and careful consider what restrictions they would accept in order to operate a commercial drone at night. Legal advice from an lawyer experienced with dealing with the FAA would be advisable.

Industrial Skyworks, Inc. Petition: http://bit.ly/1NrG5pS

Petition Amendment: http://bit.ly/23KqnYO

FAA Request for Additional Information: http://bit.ly/1s127FM

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Congress, in Passing the Noise Control Act of 1972, Wanted FAA to Develop Enforceable Standards and Airports to Develop Programs to Protect the Public Health and Welfare

The debates and legislative history of the Noise Control Act of 1972 evidence a desire on the part of Congress to set noise standards in the “airport environment” which must be met “in order to protect the public health and welfare.”

For airports which exceed the target levels, a plan must be developed and submitted by the airport operator which could include controls on the frequency of flights, the hours of airport operation, changes in operational and flight procedures, land use, and other techniques . . .

Senate Debate on S. 3342, October 12, 1972. This system of a locally-produced but federally-enforced plans to meet a federal standard is well-known in the environmental community. Under the Clean Air Act, they are called “State Implementation Plans.” A state develops a SIP, submits it to the EPA for approval, and once approved by the EPA the SIP can be enforced either by the EPA or the state environmental agency. This was the intent of Congress in passing the Noise Control Act of 1972.  In the same debate, Sen. Edmund Muskie (D-ME), stated:

What we propose to do here is to do nothing more than we did in the Clean Air Act of 1970 or the Water Pollution Act of [1972]. We propose to set targets and to set standards which will force industry and the technological community to build the hardware necessary to deal with this problem and in the meantime permit the communities – and the FAA has a veto in the field – to take pragmatic approaches to the problem which will enable them to make at least a beginning toward reducing the noise around airports.

Id. It seems that we should honor the intent of Congress in passing the Noise Control Act of 1972 and have the FAA develop the enforceable standards and have the airports develop programs necessary to protect the public health and welfare from the deleterious effects of aviation noise.

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The FAA Has Failed to Live Up to Goals of Noise Control Act of 1972.

On October 18, 1972, in the Senate debate concerning the Noise Control Act of 1972, then-Senator John V. Tunney of California stated the purpose of the Noise Control Act:

Both the Senate and the House were most concerned with the problem of aircraft noise and, more specifically, with the need to protect public health and welfare in the vicinity of airports from the impact of noise from aircraft operations.

. . . .

Such regulations would be required to include proposed means of reducing noise in airport environments through the application of emission controls on aircraft, the regulation of flight patterns and aircraft and airport operations, and modifications in the number, frequency, or scheduling of flights.

. . . .

Again, I stress that those regulations would include, but would not be limited to, the imposition of curfews on noisy airports, the imposition of flight path alterations in areas where noise was a problem, the imposition of noise emission standards on new and existing aircraft – with the expectation of a retrofit schedule to abate noise emissions from existing aircraft – the imposition of controls to increase the load factor on commercial flights, or other reductions in the joint use of airports, and such other procedures as may be determined useful and necessary to protect public health and welfare.

. . . .

Congress intends that the reasonableness of the cost of any regulation or standard be judged in relation to the purposes of this act, which is to protect public health and welfare from aircraft noise. Costs are to be judged against that goal, not for their effect on air commerce or particular air carriers.

(Emphasis added). Here it is 43 years later and the FAA has not promulgated the regulations that Sen. Tunney stressed. Nor does the FAA judge the reasonableness of the cost of regulation against the goal of protecting public health and welfare from aircraft noise.

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Arizona Sens McCain and Flake Introduce Bill Establishing an Airspace Management Advisory Committee

Last Thursday, February 25, 2016, Arizona Senators John McCain and Jeff Flake introduced a bill (S.2585) that would establish an Airspace Management Advisory Committee. This Committee would review and provide comments on proposals that would change “regulations, policies, or guidance of the Federal Aviation Administration relating to airspace that affects airport operations, airport capacity, the environment, or communities in the vicinity of airports.” In addition, the Committee would review and offer revisions to the current practices and procedures of the FAA concern those changes. In their joint press release, the Senators explained why they introduced the Bill. “While modernizing flight paths is critical to enhancing safety for all travelers, our communities and airports deserve to have a seat at the table before the FAA implements any changes,” said Senator McCain. “Our legislation would ensure that all impacted communities, like those around Phoenix Sky Harbor International Airport, are able to voice their concerns before future changes go into effect.” Senator Flake added that “while I continue to support efforts to improve the safety and efficiency of the national airspace system, it’s clear that the FAA would greatly benefit from working with relevant stakeholders before all major airspace changes go into effect.”

While the development of such a committee is a step in the right direction, there are a few issues with the bill. First, “communities in the vicinity of airports” must be read broadly in order for it to have meaning. In the past, the FAA has concluded that any community beyond the 65 DNL contour is beyond the vicinity of the airport. The FAA’s reasoning is that beyond 65 DNL contour, aircraft noise haws no significant impact on the human environment. There are, however, many communities that are have been harmed by aircraft noise that are outside the 65 DNL contour and are located some distance from the airport. In many cases, this is the result of the creation of flight paths where there were not any before. Thus, “communities in the vicinity of airports” should include those communities where an aircraft, on approach or upon departure, is below 5,000 feet above ground level.

Second, the membership of the Committee does not include any representation from community groups. The Bill states that the Committee shall include “representatives of air carriers, airports of various sizes and types, and State aviation officials.” All of those representatives have a vested interest in the promotion of air commerce. While they may try to be pre-judge their review of FAA proposals, they all have an inherent bias toward the promotion of air commerce at the expense of those people on the ground. In order to make the Committee workable, there needs to be a diversity of opinions that reflect the entire spectrum of thought on these matters.

Senators McCain and Flake should be applauded for their efforts to protect the interests of the families living in areas harmed by aircraft noise. This bill, along with S.2406, “a bill to require the Administrator of the Federal Aviation Administration to review certain decisions to grant categorical exclusions for Next Generation flight procedures and to consult with the airports at which such procedures will be implemented,” shows their concern for the health and well-being of families on ground. With the Senate poised to take up FAA Reauthorization in the coming weeks, let us hope that the voices of the families harmed by aircraft noise are heard.

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