Drone News & Drone Directory

Drone Law

Comments to the NPRM: A Roadmap to the FAA’s Thinking

Much has been written about the FAA’s NPRM for sUAS over the last week and a half. I think it’s safe to say that, while many were pleasantly surprised by the liberality of the proposed rules, most comments from the industry have been critical, particularly of the requirement for Visual Line of Sight (VLOS) and the prohibition on night operations, as well as the requirement for an aeronautical knowledge test and sUAS pilot certification.  The comments posted to date at regulations.gov have ranged from the thoughtful to the unhinged.

But before submitting comments, it is useful to understand what the FAA is thinking, and how it views the path going forward. Otherwise, even the most well-intentioned comments are likely to drift off-point. The FAA has made this task simple enough by laying out its reasoning in the first 160 pages or so of the NPRM.

The entire framework of the proposed rule can only be truly understood by taking into account what the FAA sees as two primary concerns that, in its view, are unique to UAS: (1) the ability of the operator to see and avoid other aircraft; and (2) Loss of Positive Control (i.e., a loss of communication between the vehicle and the control station).

See and Avoid:

The FAA emphasizes that the first job of an airman in avoiding collisions with other aircraft is to adhere to the “see and avoid” rule of flying. The FAA believes that pilots of manned aircraft have an inherent advantage in exercising see and avoid because they are able to use their peripheral vision from the cockpit. The agency is concerned, on the other hand, that the vision of an operator of a UAS who relies on FPV or other camera devices will be too restricted to be able to effectively see and avoid other aircraft.

The agency has considered requiring on-board see and avoid detectors, as have become standard on manned aircraft. However, it believes that, at least for now, the technology is not advanced enough, and is too heavy, for use onboard small UAS. The agency nevertheless remains open to suggestions.

One can of course raise countervailing considerations, such as the fact that a sUAS at 500 feet will be extremely difficult to see with the naked eye. Nevertheless, it would be difficult to overstate the amount of importance that the FAA attaches to this subject. Comments on the VLOS rule should respectfully take the agency’s concerns into consideration.

Positive Loss of Control:

Crash

Another point of emphasis, one that also relates to the proposed VLOS rule, is that problem of Positive Loss of Control. The problem is well-known, as evidenced by a flurry of reports of fly-away incidents, including the White House episode, last month.

The FAA believes that the risk of PLoC is significantly mitigated by keeping the operator within VLOS. Again, the agency is open to ideas on less restrictive ways to address this, but its concerns should be respectfully considered when making comments to the NPRM.

The Elephant in the Room:

talk-about-the-white-elephant-in-the-roomAs we noted last week, the FAA realizes that it has a compliance problem. But the FAA is not a police force, and it currently has no ability to quantify the degree of non-compliance. It also knows that imposing regulations that are unduly burdensome will only foster more non-compliance.

Its goal, therefore, is to enact regulations that encourage compliance while balancing its safety concerns.  Again, keep this in mind when submitting comments.

About Those § 333 Exemptions:

UltralightUntil a final rule is in place, commercial operators who don’t want to risk problems with the FAA will still need to apply for and obtain a Section 333 exemption. One of the questions on people’s minds has been, why does the FAA impose such mind-bogglingly stringent requirements, such as requiring a private pilot’s certificate, when granting these exemptions?

The FAA claims – and here is where I think that the agency is being disingenuous – that it has no statutory flexibility under Section 333 to waive:

Requirements for Airman Certification; Security Vetting; Aircraft Marking; Registration Requirements.

That seems like a very odd assertion to make, given the fact that, for example, there is no airman certification requirement for operators of single-seat ultralights, which are much heavier than a typical sUAS and are powered by gasoline engines. The FAA does not claim any particular statutory authority for its regulations governing ultralights, other than a general series of statutes giving the FAA discretion to manage safety in the NAS.

Moreover, federal agencies – especially under this administration – have rarely been shy about claiming the maximum regulatory authority under the law. And the courts generally defer to an agency’s reasonable interpretations of the statutes that it is charged with administering.

It is therefore difficult to understand why the FAA claims such a lack of regulatory flexibility under Section 333. We are open to suggestions.

This NPRM Is Not the Last Word:

The above notwithstanding, the FAA clearly sees this NPRM as a first step on a long path to full UAS integration. It notes that the object should be to remain as open as possible to innovation, and it realizes that the pace of change in the UAS industry is rapid enough that it should avoid imposing some of the more stringent requirements, such as type certifications, that are common for manned aircraft.

It has specifically invited comments on a wide range of topics, such as whether UAS can be employed as air carriers, as well as available technologies and procedures that would allow safe VLOS and night operations, and whether a micro-UAS rule would make sense.

The comment period closes on April 24, so the time to get rolling on submissions is now.  If you would like to submit a comment with the assistance of counsel, please feel free to contact the law firm of Diaz, Reus & Targ, LLP and ask for Brant Hadaway, or email me at bhadaway@diazreus.com.

The post Comments to the NPRM: A Roadmap to the FAA’s Thinking appeared first on DRONE LAW.

Read Full Story

The FAA’s sUAS NPRM: It’s Time to Speak Up

Like many, we were pleasantly surprised by liberality of the FAA’s NPRM for sUAS.  Those who have been watching the FAA’s conduct, especially with regard to its often-tedious requirements for Section 333 exemptions, expected much more restrictive proposed rules that would have imposed impossibly high barriers to entry to all but the most well-financed operators.

Perhaps this is simply a matter of the FAA recognizing reality.  Pages 9-10 of the DOT’s released-then-un-released Regulatory Evaluation reveal a telling point:

While commercial small UAS operations are being operated without FAA regulatory approval, the FAA has no method to quantify their historical usage. However, as civil applications of UAS develop, a demand for legal and safe access to the NAS for commercial and other non-recreational purposes has emerged. This proposed rule announces our plan to work with the emerging UAS industry to build a safe environment; eventually leading to the inclusion of small UAS into the NAS for commercial and other non-recreational purposes as well as satisfying the congressional direction from P.L. 112-95.

In other words, the agency seems to be saying, we have no idea how many non-compliant operators are out there, but it’s probably a significant number.  Therefore, we think it better to have liberal rules that will bring more operators into the fold of compliance.

That seems to us like a smart move.  The FAA has no police force patrolling the cities and countryside, and its program to enlist local law enforcement appears to have fallen flat.  In any event, no federal agency can Constitutionally direct the activities of local law enforcement.

Indeed, while it is not our role to psychoanalyze a government agency, we see this NPRM as a case of bargaining – threatened with a complete loss of control over all but the most well-financed commercial sUAS operators, the FAA is promising to not be too onerous in exchange for a little more control than is actually necessary to achieve the purpose of safe integration.

It is nevertheless important for industry stakeholders not to be disarmed by this approach, but to carefully evaluate the NPRM on its merits and to engage the rulemaking process by filing comments.  For example, do you believe that the proposed rules strike the right balance for pilot certification?  Do you believe that the visual-line-of-sight requirement is too onerous?  Do you believe that there could be more efficient ways of protecting the airspace around airports that minimize barriers to entry for commercial sUAS operators?

We will air out our own thoughts on these questions in subsequent posts.  But in the meantime, make no mistake: Interested parties such as the Airline Pilots Association can be expected to submit comments urging much more restrictive requirements for pilot certification, air-worthiness certification, and operational parameters.  Your comments will be important to making sure that the final rules are as reasonable and entrepreneur-friendly as possible.

(As of this writing, the NPRM has not yet been published in the Federal Register, so the 60-day deadline for comments has not yet been triggered. But one should assume that the deadline will be sometime this Spring.)

Should you wish to engage counsel to assist you with the comment process, feel free to contact the law firm of Diaz, Reus & Targ, LLP at 305-375-9220 and ask for Brant Hadaway.  Or write me an email at bhadaway@diazreus.com.  If I can’t assist you, I’ll find you someone who can.

UPDATE:

The Wall Street Journal published a report yesterday which hints at the level of non-compliance with the FAA’s prohibition on commercial drone operations:

“Officially [the FAA’s] stance is, You can’t do that. But they say you can’t drive 70 miles per hour on a 50-mile-per-hour freeway,” said Peter Sosnowski, preconstruction director for Webcor Builders, a commercial construction company and San Francisco unit of Japanese firm Obayashi Corp. Webcor has used drones to map two big U.S. construction sites, he said. “Until someone gets caught and penalized, drone businesses will continue to do business as is.”

The post The FAA’s sUAS NPRM: It’s Time to Speak Up appeared first on DRONE LAW.

Read Full Story

While we were away….

The FAA nefariously decided to release its NPRM on sUAS while I am in a remote area of Colorado with a useless wifi connection (writing this post via iPhone).

My initial reaction is one of relief. The proposed rules seem much more liberal and business-friendly than many expected. At least we can say that the FAA is not taking an adversarial view of things. That is very encouraging.

A question on the minds of many will be whether, given these proposed rules, it makes sense to pursue a 333 exemption? There is no one-size-fits-all answer to that (i.e., it’s what lawyers call a “fact-sensitive” question).

I will have more on this, once I’m comfortably esconced in my office in Miami.

The post While we were away…. appeared first on DRONE LAW.

Read Full Story

Can a State Grant Immunity for Shooting Down a Drone?

Do I feel lucky?

Read Full Story

NPRM to be released this week?

All Is Not Lost

We’ve heard from a credible (non-government) source that the FAA’s Notice of Proposed Rule Making (NPRM) for small drones (sUAS) should be released this Friday, February 13th (yes, Friday the 13th).  Unfortunately, I will be in the air on my way to a long weekend of skiing in Colorado, so (assuming the NPRM is released this week) I probably won’t get around to publishing my initial comments until sometime next week.

Note that the NPRM will be just one step in the process.  There will be a comment period of several months before any rules can have the force of law.  Then there may be challenges in the courts, which could take years to resolve.  And, of course, Congress could step in at any point along the way to pass legislation that might effectively repeal FAA regulations, in whole or in part, and replace them with a different or modified framework.  We still don’t really know how all of this is going to play out.

Until some enforceable rules are in place, the only option for commercial operators to comply with FAA requirements will continue to be to apply for exemptions under Section 333.

The post NPRM to be released this week? appeared first on DRONE LAW.

Read Full Story

Page 5 of 6« First...23456