Input/Output: UAVs and the Regulatory Gap

Unmanned air vehicles (UAVs) are a force to be reckoned with--not just by enemy troops. So despite its reservations, FAA is beginning to act. At a UAV event just before the Paris Air Show, Nick Sabatini, the agency's associate administrator for aviation safety, assured attendees that unmanned aircraft systems (UAS) are "front and center in the FAA's strategic plan." (The agency calls them UAS because its mandate is to regulate "aircraft.")

With 300 UAV programs worldwide and billions invested by the industry, momentum is building for these primarily military vehicles to cross into commercial territory, from crop dusting to com relay. But lack of regulatory guidance makes the evolution difficult, argued Michael Ehrenstein, a partner in the Miami law firm, Kluger, Peretz, Kaplan & Berlin, at the event sponsored by UVS International.

FAA has embarked on a long-term, three-part rulemaking, and its Aircraft Certification Service is considering experimental airworthiness certification requests from Bell Helicopter Textron (Eagle Eye), Boeing (Scan Eagle) and General Atomics (Altair, a variant of Predator). The agency expects to certify the first of them late this summer. FAA Flight Standards is drafting an initial notice of proposed rulemaking (NPRM) for visual line-of-sight-operated UAS, but the target date is 2008. The NPRM will require them to be operated at no more than 400 feet, at least 3 miles away from airports--unless coordinated with airport authorities--and will limit them to 55 pounds (25 kg). Flight Standards has developed internal rules, but these have not been published.

UAS are already here. The military flies the national airspace system (NAS) under special approvals, but with a war on, is demanding routine access for UAS in order to train troops in their use. More than 40 certificates of waiver and athorization (COAs) have been approved for military and civil UAVs this year, some for a year of flying. There have been hundreds of flights in the NAS, says a knowledgable observer. Model airplanes will be regulated differently, though distinctons blur with UAVs that fit in the palm of your hand and models sporting jet engines. Other scale models are operated commercially for aerial photography.

So what do we do between the introduction of the technology and the maturing of a regulatory framework? What if a nonmilitary drone remotely piloted from the U.S. by a civilian employee of a government contractor landed on a rooftop in France? Or a foreign-owned, commercial drone crashed into a home or business in the U.S.? In both cases existing legal frameworks would be adapted to provide plaintiffs a remedy. But the point from an industry perspective is that companies should want to be as insulated as possible from law suits, says Ehrenstein. Regulations are needed to spell out standards for UAV operation, pilot licensing and training, maintenance and avionics performance.

The insurance industry is leery of UAVs, even miniature model airplanes used for commercial photography. It wants to see pilot training rules and school certification standards--for good reason. A master's thesis published by the MIT International Center for Air Transportation claims that the Aviation Safety Reporting System contains "10 incidents of near midair collisions reported with model aircraft in the traffic pattern around airports from October 1992 to December 2003." Web videos show the crash of a 300-pound (136-kg) British B-52. A rogue U.S. modeler has set an altitude record at 27,000 feet. Modelers also are trying to control these aircraft remotely by cell phones. Multiple aircraft could be flown at one time, Ehrenstein said.

The military's air traffic control woes in Iraq illustrate the difficulties of introducing UAVs without a unified approach to their use. The armed forces reportedly operate 750 UAVs in Iraq--although not simultaneously. There are reportedly 185 small Raven UAVs in Iraq and Afghanistan, and at least one midair collision has occurred in Iraq between a Raven and an OH-58D helicopter. Understandably, pilots fear the loss of tail rotors. Scarier still was a near miss between a German military Luna UAV and an airliner with gear and flaps down on approach to Kabul (though the airliner is said to have been at fault). Much must be done to ensure that a similar incident never happens here.