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Monday, March 2, 2015

Small Unmanned Aerial Systems: What Will the FAA Do?  

As UAVs become more prominent in everyday life, the question remains: How will the FAA handle regulations on these systems, and how will the public react?

By Mark Colborn

DJI S-900 with DJI A2 Flight Controller.
Photo by Mark Colborn

Small unmanned aerial systems (sUAS) stole the show at the Consumer Electronics Show Jan. 6-9 in Las Vegas, Nev. Who would guess that small consumer drones would create such a buzz? But apparently it was the event to attend.

Left: Author’s hobby drone: a DJI F550 hexacopter with 2-axis gyro-stabilized GoPro Hero 3 camera. Center: DJI NAZA Flight Controller and DEVO RX7 2.4GHz radio receiver on X-Wing racer. Left: DJI S-800 hexacopter with 3-axis gyro-stabilized GoPro Hero 3 camera. Photos by Mark Colborn
 

Then, on Jan. 26, an inebriated off-duty government employee made the poor decision to fly a friend’s DJI Phantom quadcopter near the White House. Apparently he wanted to test the machine in cold, wet conditions. So at 3:00 a.m., in a 42 degree- Fahrenheit light rain, the machine flew into a tree and crashed onto the southeast lawn of the White House. Of course, any breach of security at the White House garners worldwide attention and brings out the critics.

Congressional leaders, already frustrated with the slow pace at which the FAA has approached the issue of UAS’s in the National Airspace System (NAS), wasted no time in calling for stiffer “drone” regulations. President Obama also called for more regulations, even though flying in prohibited airspace is already illegal.

New rules on unmanned aerial systems are inevitable. But it is the speed at which this process is taking place that is frustrating pilots – who fear a collision – and entrepreneurs alike, whose only desire is to make money. Finally, remote control hobby flyers simply wish to be left alone.

Commercial pilots dislike drones because sUAS operators steal their jobs. The FAA forbids the use of sUAS’s for commercial endeavors unless the operator obtains a certificate of authorization (COA) and a special airworthiness certificate (STC) for the machine. However, it relaxed some rules and issued 24 operational exemptions, mostly to motion picture companies. In each case, the FAA requires commercial sUAS operators to possess an FAA pilot license. The restrictions against commercial sUAS usage do not deter amateur and professional operators from flying for profit, anyway. Pilots who see sUAS’s take their jobs away are justifiably reporting violations to the FAA. And the FAA has taken action, especially when flight safety violations occur. The FAA is getting intense pressure from both sides. Nearly every day, a news article appears speculating when the FAA will act, and what they will do.

New, enforceable regulations could take time - perhaps another year. The FAA must publish a Notice of Proposed Rulemaking (NPRM) before any new regulations are created. This long-awaited NPRM has been under a 90-day mandatory review period by the White House’s Office of Information and Regulatory Affairs (a subordinate department within the Office of Management and Budget, or OMB). This proposed NPRM has undergone a cost-benefits review. It was the last opportunity for other federal agencies and legal and industry experts outside of the FAA to correct language or make changes to the document before it is released for public comment. Once published in the Federal Register and posted to the regulations.gov web site, citizens, corporations and other interested parties have ninety days to file comments. Then eventually the administrator can promulgate new regulations. This NPRM was due at the end of January, but realistically, it will probably be published about the time this issue hits the wire. Ensure that you have a voice in this discussion. File a comment on this proposed regulation at www.regulations.gov.

A Dec. 22, 2014 OMB “proposed rule stage” post to the Federal Register gives the UAS and manned aviation communities a cursory glance into the rules the FAA will propose. It states that the rulemaking will adopt specific requirements for the operation of sUAS in the NAS, and will address the following issues: classification of sUAS’s, certification of pilots and visual observers, registration, approval of operations, and operational limits. Public Law 112-95, drafted by Congress in 2012, specifically addressed UAS operations in the NAS. Section 336 exempted modelers or hobbyists from new regulations and prevented the FAA Administrator from promulgating any new regulations on this group. But the FAA, concerned about an explosion of safety and airspace violations caused by sUAS’s, apparently believes it has the legal basis to ignore the section 336 provision. Section 336 begins with the legalese; “Notwithstanding any other provision of law…”

The OMB outlines the basis for this legal reasoning by stating that other sections of the United States Code give the FAA the authority to issue rules to promote the safe flight of civil aircraft and to protect the NAS. Hobby flyers are not going to like it, but the OMB further stated; “The NPRM also proposes regulations for all sUAS, including operating standards for model aircraft and low performance (e.g., toy) operations, to increase the safety and efficiency of the NAS.”

This announcement should not surprise the modeler community because the FAA outlined their reasoning and how they were eventually going to act early last year, when they released their “Interpretation of the Special Rule for Model Aircraft.” This was essentially an interpretation of Public Law 112-95. It set off a lengthy and heated public comment period on www.regulations.gov, garnering over 32,000 comments. The FAA stated that all UAS and “hobby machines” are aircraft and thus potentially fall under all the same rules that apply to manned aircraft flights. Also, they must regulate all airspace to protect the safety of citizens on the ground (FAR 91.13), for collision avoidance for aircraft landing or departing airports, and for flight operations in controlled or restricted airspace. Common sense dictates that the FAA could never allow any type of flying machine, manned or unmanned, to operate without limitations in controlled or restricted airspace.

DJI Phantom-1 quadcopter, the same model that crashed on the White House lawn. Photo by Mark Colborn
The FAA revised the rules on Temporary Flight Restrictions (TFR) in November 2014. This is additional proof that the language in this forthcoming NPRM shouldn’t come as a surprise. The FAA added prohibitions against unmanned aerial systems, model aircraft, and model rocketry operations in the vicinity of sporting events with an attendance in excess of 30,000 people. They also specifically banned the same type of operations over Disney World facilities in both California and Florida.

Should the FAA eventually place too many restrictive rules on owners of sUAS’s, however, the average pilot might simply choose to ignore them and fly anyway. And with Americans increasingly expressing their displeasure at what is perceived to be excessive government influence in their lives, too many regulations could have the opposite effect. Realistically, can the FAA regulate and enforce new rules they create that target hobby or toy remote control flyers? More likely this group will continue to fly until the drone fad peaks or the law of attrition (crashes) solves the problem. The FAA has already taken steps to address the issue of errant operators by soliciting the help of state and local law enforcement. Yes, they want state and local authorities to report “drone” operators who don’t follow the rules. The FAA is not asking local law enforcement to make arrests. But if a state or local law or ordinance is violated, law enforcement can seize the drone and arrest the operator. Over fifteen states have drafted drone bills, which place limits on where and how operators can fly. The common theme requires intent on the part of the operator to conduct unauthorized surveillance.

In legal parlance, intent is always more difficult to prove in court. Our aviation unit receives calls nearly weekly from a unit within the department that is tasked with investigating and filing cases on errant drone operators. The most common question asked is whether or not a person can fly a drone in a particular area of the city. The question as to whether any particular sUAS operation is legal continues to be handled on a case-by-case basis until the FAA hands down clear, legally binding, and enforceable regulations.

The OMB, in their proposed rule stage on operation and certification of sUAS, also concluded that the FAA and sUAS community lack sufficient formal safety data regarding unmanned operations to support granting traditional, routine access to the NAS. The thread concludes; “This proposed rule would result in the regular collection of safety data from the user community and help the FAA develop new regulations and expand sUAS access to the NAS.”

Clearly, we are years away from autonomously flown and controlled unmanned aircraft occupying the same airspace as manned aircraft. We can reason, however, that the FAA is planning to eliminate or relax the COA requirements on public safety sUAS’s and COA and STC requirements for commercial sUAS operations. These two groups can then operate in a relatively safe and controlled environment (below 400 feet AGL and within line-of-sight), all with the intent to stimulate these two lucrative markets, as well as generate and collect safety data that can be used for future full autonomous UAS integration into the NAS.

*Editor’s note: At the time this story was written, the FAA/DOT NPRM regulations had not been released. Please click here for more information on the NPRM.

Related: Unmanned News, FAA News

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