A short term extension of the Federal Aviation Administration (“FAA”) is probable as Congressional leaders seem unlikely to iron out a compromise on FAA reauthorization bills before the end of September. Committees in each chamber approved separate long-term reauthorization legislation last month, including numerous significant changes to the current unmanned aircraft systems (“UAS”) regulatory regime. However, these drone provisions may be delayed by the lack of agreement on other manned aviation issues, such as air traffic control privatization and pilot training requirements. Without a broad consensus on the bill language and with Congress in August recess, Congress is unlikely to pass a substantive reauthorization before the FAA’s current authorization ends on September 30.
Should the legislation advance, these bills address some key issues regarding the future of UAS, such as privacy protections, carriage of property, unmanned aircraft traffic management (“UTM”), risk-based permitting, UAS defense, recreational drone registration, and public aircraft operations (“PAO”). These topics are analyzed in more detail below.
The legislation represents progress, but other important issues are left out. Many industries want Congress to iron out the thorny issue of preemption regarding UAS regulation. States continue to legislate in the field without clear boundaries regarding the extent of their authority, creating a patchwork of inconsistent regulations. Additionally, operators want Congress and the federal government to be more forward-leaning regarding the approval of certain UAS operations, such as operations at night and operations over people. Lastly, the legislation only scratches the surface on UAS privacy and cybersecurity—two issues that continue to raise concerns as the proliferation of UAS continues.
Carriage of Property – Many businesses, including retailers and restaurants, have wanted the FAA to approve package delivery by drone. Both the House and the Senate versions of the bill give the FAA one year to issue a final rule authorizing the carriage of property by small UAS (“sUAS”) operators for compensation or hire. These provisions would require that FAA create an sUAS air carrier certificate for persons that directly undertake the operation of sUAS to carry property in air transportation and the development of a classification system for such operations. The House version explicitly requires the approvals for such certifications to be performance-based and risk-based. The Senate version lists certain specific requirements and considerations to be used for UAS air carrier certificates.
Privacy – While the FAA has traditionally avoided the topic of privacy, the two pieces of legislation address this growing concern related to UAS proliferation. The House version requests a study from the Department of Transportation related to reduction of privacy caused by UAS. The Senate version includes such a study, but also goes further, including a number of provisions related to privacy. The Senate bill encourages commercial users to have written privacy policies, makes explicit the authority of the Federal Trade Commission to enforce violation of the privacy policies of commercial operators, and requires the FAA to make available a database of government and commercial operators authorized to operate UAS in the National Airspace System (“NAS”) and provide details about the timing and location of those operations.
UTM – UTM is a cloud-based system that will help manage UAS traffic at low altitudes, to prevent UAS collisions for operations beyond visual line of sight. The House bill includes language directing the FAA to initiate a rulemaking to establish procedures for issuing air navigation facility certificates to UTM operators for operations that occur primarily or exclusively in airspace 400 feet above ground level and below. Furthermore, the House bill has the FAA provide expedited procedures for approving UTM for croplands and other low-risk environments.
UAS Testing Sites – Both bills would reauthorize and enhance the utilization of the seven UAS test sites across the country. The Senate bill includes express language to streamline approvals of tests for advanced operations, such as operations beyond visual line of sight, sense and avoid technology, operations over people, and UTM capabilities.
Model Aircraft – Both the House and the Senate have crafted a legislative response to the D.C. Circuit’s recent Taylor decision [link to Taylor decision], which prevented the FAA from requiring the registration of drones used solely for recreational purposes. The House bill would allow the FAA to reinstitute the registration rule, whereas the Senate language automatically restores the effectivity of the rule. The Senate language includes additional requirements for hobbyist operators to pass an FAA online aeronautical knowledge and safety test prior to operation and subject the operating rules for operators
Micro UAS and Risk-Based Permitting – The Senate bill would mandate the FAA to determine in 270 days, based on a risk-based assessment, whether micro UAS (under 4.4 pounds) can safely operate in the NAS. If so, the agency would have to issue regulations allowing any person to operate a UAS under 4.4 pounds without any certification, as long as the UAS is flown in accordance with certain operational rules—in visual line of sight, under 400 feet, during the day, etc. The House bill has language, outside of the Part 107 Process, which would require the FAA to shift to a risk-based permit system, where aircraft approvals are contingent upon reaching a level of safety of other approved aircraft operations. In this consideration, the FAA would be required to consider the kinetic energy of the UAS—thus providing an advantage for lighter aircraft.
UAS Mitigation and Detection – In response to concerns about UAS operations near airports and other sensitive locations, the legislation would require the FAA to continue testing UAS hazard mitigation systems at public use airports. The FAA has worked on a similar pilot program for the past two years. Detection and mitigation systems approved by the FAA as a result of the testing would be eligible for purchase by airports using federal airport improvement program funds.
Native American Tribal Government PAO – Both versions of the bill would alter the structure for public aircraft operations—a classification of non-civil aircraft operation performed by governments that are regulated differently by the FAA. Previously, Native American Tribal governments had not been eligible to operate PAOs, but this legislation treats tribal governments the same as state governments and subdivisions of state governments for the purposes of PAOs for UAS.