Congress Seeks to End Run Federal Aviation Administration on Drone Rules

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Apparently impatient with the Federal Aviation Administration’s (“FAA”) slow progress in developing rules governing the commercial operation of unmanned aerial vehicles (“UAV” or “drones”), Senators Cory Booker (D-NJ) and John Hoeven (R-ND) introduced in Congress legislation to expedite implementation of rules governing the commercial operation of drones.

Supported by a host of interest groups, ranging from the Association for Unmanned Vehicle Systems International to the National Association of Broadcasters and Information Technology and Innovation Foundation, the stated purpose of the “Commercial UAS Modernization Act,” S.1314 (“Act”) is to amend the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), to create an interim rule providing basic guidelines for commercial use and testing of small UAS during the period within which FAA finalizes rules governing the operation of commercial UAS.  The Bill allows any person to “operate a small unmanned aircraft for commercial purposes without an airworthiness certificate within the United States, subject to the requirements under subsection (b) and the operating restrictions under subsection (c) during the period beginning on the date of the enactment of this Act and ending on the effective date of a final rule based on the Notice of Proposed Rulemaking Operation and Certification of Small Unmanned Aircraft Systems (80 Fed. Reg. 9544, February 23, 2015).” The Bill’s general requirements include: (1) liability insurance; (2) registration/certification under section 3(a) of the Act; and (3) the operator’s passing of an “aeronautical knowledge test,” Act, subsection (b)(3)(A), as prescribed by FAA in its February 2015 notice.

The permission granted under the proposed legislation is not without limits, however.

In addition, during the relevant period, the UAV operated for commercial purposes: (1) may be operated only under visual line of sight rules, Act, subsection (c)(1) and (5); (2) may not be operated higher than 500 feet above ground level, Act, subsection (c)(2); (3) may not be operated unless the operator has prior authorization from the Air Traffic Control facility having jurisdiction over that airspace, Act, subsection (c)(3)(A) and (B); (4) shall yield to all other users of the national airspace system, Act, subsection (c)(6); (5) shall comply with model aircraft operating standards set forth in FAA Advisory Circular 91-57, June 1981, as revised, Act, subsection (c)(4); (6) may only be operated after a preflight inspection, Act, subsection (c)(8); and, finally, (7) “may not be operated by a person with any physical or mental condition that the individual knows, or has reason to know, would interfere with the safe operation of aircraft.,” Act, subsection (c)(7).  Clearly, the legislation omits several protections that have, until now, been applicable to the operation of UAVs.  First, it does not require that UAVs be operated by licensed pilots.  Second, it appears to leave the determination of whether the operator is competent to operate the aircraft in a safe manner in the hands of the same operator who may or may not have the self-knowledge to make that determination.

S.1314 has now been referred to the Senate Committee on Commerce, Science and Transportation where it remains as of this date.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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