the 'H.R. 302 The FAA Reauthorization Act of 2018' issue of Dronin' On

Hi all –

The FAA Reauthorization Act of 2018 is almost here – there is a very slim chance that it will be a done deal by the time you go to work Monday.


Here is the regulatory path forward that the industry has been asking for.


While no bill is perfect, this one is remarkably thorough. It seems possible that it is the most sweeping piece of legislation ever written to advance a new technology. There are those who will debate if this is a good thing, arguing that it is axiomatic that regulation must always lag innovation.

But the way I read it, this bill is about one thing. Continuing the work of integrating UAS into the NAS. It would not have been possible to write this bill in 2012. Because we didn’t know what we didn’t know – the majority of us weren’t
even involved.

What we have learned since 2012 is that the potential of drones to transform our world far exceeds our imagination. And while many of the irrationally exuberant forecasts missed the details, they were right about the economic potential. The ROI case is hardly ubiquitous, but it has been made enough times to get people’s attention – particularly in the Congress.

We have also learned what it will take to make drone operations a regular part of our world – both the obstacles that need to be overcome and the safeguards that must be put in place. In that regard, the bill is not forward-looking so much as it is a reflection of the discussions and concerns that have informed the agenda at events like AUVSI, InterDrone and CUAV Expo this year.

The bill builds on six years of experience that has matured our ecosystem. It is the work of many hands: the Congress, the FAA and NASA, the hours volunteered to the DAC and the ARCs, the investment by developers, manufacturers and service providers, the universities, the test sites, the early adopters, the industry associations, the attorneys who shaped the discussions, the lobbyists who advocate for the industry, the tradeshows where ideas are exchanged and the publications that keep us all informed.

With apologies to those of you who do this every day, I am going to start with the basics for those who are not familiar with our legislative process.

WHY IS REAUTHORIZATION IMPORTANT?

There are two reasons that this bill is important to the FAA and the entire
aviation industry.

1) If passed in its current form, H.R. 302 will provide the FAA with funding for the next five years. Is that a big deal? Actually, yes. This will be the first time that a five-year plan has been approved since 1982. It means that the FAA can go about their business in an orderly fashion, instead of constantly trekking up to the Hill with hat in hand to keep the lights on for another six months.

2) What is more important is that the bill provides “marching orders” to the FAA and other agencies. Dronin’ On focuses on UAS, but the FAA is a 48,000 person organization with a $17B annual budget so it includes general aviation, commercial aviation, NextGen and space.

WHAT IS THE STATUS?

This is the current version of H.R. 302. It is a 1,205 page document. The relevant portion, Subtitle B – Unmanned Aircraft Systems starts on page 247 and contains 42 discrete sections. AUVSI prepared a handy summary here. I recommend that you download both.

UPDATE 10.05.18 Today the bill became law. Please note that the link to the bill I used for this post does not match the pagination of the final version, the Sections appear to be consistent. I suggest that you download the final version and use the Acrobat search function to find the appropriate SEC.

While it could still come off the rails, a tremendous amount of work has gone on behind the scenes to craft legislation that both sides of the aisle can live with…

On Wednesday, September 26th H.R. 4 passed in the House 398 – 23.

Friday Morning Transportation reported:

Word on the street: Taking up the FAA bill before Supreme Court nominee Brett Kavanaugh’s confirmation is settled is risky for Republicans, who fear Democrats could use it to delay the SCOTUS vote by demanding the full 30 hours of post-cloture debate time for FAA. But we won’t have to wait long: GOP leaders are planning a committee vote on Kavanaugh’s nomination this morning, followed by a procedural motion Saturday and a floor vote on his confirmation as early as Monday. That timeline would leave the Senate several days to take up the FAA bill once and for all.

LATE FRIDAY UPDATE – hmmm.

LET’S GO

I have chosen the sections that I consider to be of the broadest interest to highlight in this issue. I have tried to keep this in the order of appearance within the bill. However, there are certain items that are related but do not appear in numerical order – in those cases I have connected the dots by grouping them under common headlines.

To facilitate your exploration I have put the page number next to  the section number. Easy to follow along if you use this version of the bill

If you are in a big hurry, I recommend that you read SEC. 370 (p318) SENSE OF CONGRESS ON ADDITIONAL RULEMAKING AUTHORITY. Many past clients have called things like this vision statements.

In regard to SEC. 370, Robert Kirk, Wilkinson, Barker, Knauer notes:

I  am disappointed that the Reauthorization Bill did not more definitively address micro-UAS.  Given the small size of these UAS and the reduced risks associated with their operation, they should be subject to a less burdensome regulatory regime.  [NOTE there is one reference to micro-UAS p319, line 9]

SAFETY STANDARDS

SEC. 345 (p265) describes a process to develop sUAS equipage (aircraft) safety standards. The resulting certifications will be an integral part of developing more complex extended operations. Currently, there are no such standards.

Key concepts are

  • There will be “risk-based consensus safety standards”
  • Manufacturers will be authorized to self-certify sUAS equipage and will have to demonstrate compliance with the standards.
  • Note that on p268 the FAA can suspend or revoke these authorizations effectively taking the model off the market until the issue(s) are resolved.

Put another way the burden is being shifted to the manufacturers and operators, and the Congress has given the FAA the power to enforce the standards.

Lydia Hilton, Berman Fink Van Horn PC observes that:

The bill puts or leaves the big players in the UAS-industry in the driver’s seat. In updating the plan for UAS integration, the FAA is required to get input from general aviation, governmental/public agencies using UAS, and the UAS industry. There’s no nod at all to any other stakeholders.

Section 345 seems to let industry drive the creation and adoption of safety standards, self-certify compliance, and appears to force a move from traditional aviation risk assessment that focuses on the degree of possible harm to non-aviation cost-benefit analysis urged by the package delivery lobby. (44805(b)(8) at p. 267). Good or bad for safety, it’s not clear who else would have the interest or funding to get this done.

336

SEC. 349 (p282) EXCEPTION FOR LIMITED RECREATIONAL OPERATIONS OF UNMANNED AIRCRAFT.

The early headlines have focused on the repeal of the Section 336 hobbyist carve out established by the 2012 Reauthorization. While well intentioned, 336 stood in the way of the FAA writing a universal Remote ID rule as instructed by Congress in the 2016 FESSA.

The notion of repeal has been accompanied by howls of outrage, copious handwringing and the threat that the Wrights would have never flown, that this marks the end of STEM and anything else that might fit in the woebegone kitchen sink.

It puts to rest the AMA’s aspirations to be some kind of quasi-governmental auxiliary to the FAA. A promise that like their safety claims is impossible to deliver on. In Commander Frank Mellott (USN Ret.) words, “It simply brings an end to their Orwellian “We’re all equal but some are MORE equal than others” approach.

Congress has put an end to the AMA using the law to imply mandatory membership. The famous “programming” language now includes an “or” in a critical spot, a fix I recommended to my Congressman’s and Senator’s staffers (section 44809a2). 

I also would note that recreational sUAS are no longer exempted from registration and remote ID (section 44809f2 & f3). It also creates a carve-out that gives FAA authority to make additional rules for recreational sUAS to further safety (section 44809f4).

Going forward AMA members can still fly, so long as they obey the same rules as the rest of us… Here are three other perspectives:

Mark McKinnon, LeClair Ryan It permits the FAA to develop an aeronautical knowledge test that all hobbyists must pass in order to be able to operate, and permits the FAA to impose equipment standards on hobby aircraft, including equipment necessary for remote identification for aircraft. This gives the FAA more flexibility in opening the airspace for more advanced beyond visual line of sight and permitting flight over people.   

Todd Schlekeway, Executive Director of NATE NATE has long advocated that registration requirements for all users lend itself to accountability. We know there is a direct correlation between accountability and a safer environment for UAS operations. 

Lydia Hilton, Berman Fink Van Horn PC Ultimately, these [new] rules have no teeth unless they are enforced, and the FAA lacks the requisite bandwidth despite other provisions in the bill that order the DOT or FAA to enforce.  Just like state troopers enforce the speed limit on federal highways, state law enforcement will eventually have to enforce any UAS rules and regs at the local level and will need a greater say in what those rules are. [see SEC. 362]

UAS IPP

SEC. 351 (p293) UNMANNED AIRCRAFT SYSTEMS INTEGRATION
PILOT PROGRAM.

This moves UAS IPP from an Executive Order to a law.

(2) Savings Provision (p296) very clearly reaffirms Federal authority: “Nothing in paragraph (1) may be construed to prevent the Secretary from enforcing
Federal law
.”

I think this is smart and looks forward to the inevitable challenges that will come out of state, local and tribal governments having an active role in developing policy for their piece of the sky. By design, the FAA will try many different solutions to find the best one. Given that the goal is to write data based rules, the assumption is that there will be a winner that may not be to every community’s satisfaction. (i.e. NIH)

(h) Notification (p299) makes it clear that the Secretary is not to enter into any additional agreements without first notifying the appropriate committees.

(h) gets to the complaints from the Senate that the program was stood up without any funding to support it. And also to the notion that additional partners will
be added.

Also see SEC 373 (p323) FEDERAL AND LOCAL AUTHORITIES which is to identify any potential gaps between the two authorities.

And SEC. 343. (p258) UNMANNED AIRCRAFT TEST RANGES which reaffirms the role of test ranges which many felt were given short shrift in the UAS IPP process. In particular:

“(6) provide for verification of the safety of unmanned aircraft systems and related navigation procedures as it relates to continued development of standards for integration into the national airspacesystem;

WAIVERS

SEC. 352 (p300) PART 107 TRANSPARENCY AND TECHNOLOGY IMPROVEMENTS

This is something that is long overdue. It has received very little attention so far, but I think will make a huge difference to those applying for waivers, while at the same time it will push the FAA one step closer to rulemaking.

(a) TRANSPARENCY—Not later than 30 days after the date of enactment of this Act, the Administrator shall publish on the FAA website a representative sample of the safety justifications, offered by applicants for small unmanned aircraft system waivers and airspace authorizations, that have been approved by the Administration for each regulation waived or class of airspace authorized, except that any published justification shall not reveal proprietary or commercially sensitive information.

PRIVACY

Privacy will have a definite impact on public perception and future state and local legislation (e.g. ULC Drone Tort Law.) Notice that neither Section tasks the FAA with developing privacy specific regulations.

SEC. 357. (p303) UNMANNED AIRCRAFT SYSTEMS PRIVACY POLICY.

It is the policy of the United States that the operation of any unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects and protects personal privacy consistent with the United States Constitution and Federal, State, and local law.

SEC. 358 (p303) UAS PRIVACY REVIEW

This instructs the Comptroller General to “…carry out a review of the privacy issues and concerns associated With the Operation of unmanned aircraft systems in the national airspace system.”

If you are interested in this issue, take a look at this article from IoT, Privacy Activity in the Federal Government Ramps Up Dramatically.

FINANCE

SEC. 360 (p307) STUDY ON FINANCING OF UNMANNED AIRCRAFT SERVICES.

This has been considered at length by the DAC (Drone Advisory Committee) Task Group 3. Currently, there is no way for the FAA to generate revenue to help defray development costs now and operating costs in the years ahead.

It is clear that Congress is well aware of this and has ordered the Comptroller General to “…Initiate a study on appropriate fee mechanisms to recover the
costs of…”

Nine areas are listed including:

(2) the total annual costs incurred by the Federal Aviation Administration for the regulation and safety oversight of activities related to unmanned aircraft;

(5) the number of full-time Federal Aviation Administration employees dedicated to unmanned aircraft programs;

(7) the projected growth of unmanned aircraft operations for various applications and the estimated need for regulation, oversight, and other services;

I wouldn’t say that the free ride is over today, but it is clear that someone will have to pay for the services we need. And yes, this is one rationale for
public/private partnerships.

ENFORCEMENT

SEC. 362 (p309) SENSE OF CONGRESS REGARDING UNMANNED
AIRCRAFT SAFETY

This appears to be the direct result of two things. First the growing concern about the number of reported sightings and near-misses. And secondly the perception that the FAA has not been tough enough. Thus:

(5) the Administrator should pursue all available civil and administrative remedies available to the Administrator, including referrals to other government agencies for criminal investigations, with respect to persons who operate unmanned aircraft in an unauthorized manner;

The FAA’s preferred education approach is now paired with enforcement:

(6) the Administrator should—

(A) place particular priority in continuing measures… to educate the public…;

(B) partner With State and local agencies to effectively enforce relevant laws…

SEC. 356 (p303) AUTHORIZATION OF APPROPRIATIONS FOR KNOW BEFORE YOU FLY CAMPAIGN provides $1M a year to “…Broaden unmanned aircraft systems safety awareness.”

SEC. 372 (p321) ENFORCEMENT instructs the Administrator to:

…Establish a pilot program to utilize available remote detection or identification technologies for safety oversight, including enforcement actions against operators of unmanned aircraft systems that are not in compliance…

Here is an interesting thing – the AUVSI guide here includes SEC. 384 but it does not exist in the copy of the bill that I am using. I am not sure where the disconnect is, but if it is in the final bill it will make a lot of people happy.

SEC. 384. UNSAFE OPERATION OF UNMANNED AIRCRAFT.

Any person that operates a UAS and knowingly interferes with a manned aircraft or an airport, including the runway exclusion zone, shall be fined or face up to one year in jail. If serious bodily harm occurs, then UAS operators face a fine and up to 10 years of jail time.

COUNTER UAS

There are four sections that address this.

SEC. 363. (p311) PROHIBITION REGARDING WEAPONS.

(a) IN GENERAL—Unless authorized by the Administrator, a person may not operate an unmanned aircraft or unmanned aircraft system that is equipped or armed with a dangerous weapon.

This is likely to get the 2A crowd foaming at the mouth.

SEC. 364. (p312) U.S. COUNTER-UAS SYSTEM REVIEW OF INTERAGENCY COORDINATION PROCESSES.

This calls for an extensive review to be conducted to develop a report to Congress in 180 days that includes:

(4) A review of any additional authorities needed by the Federal Aviation Administration to effectively oversee the management of C-UAS systems within the United States (including the territories and possessions of the United States).

One way to interpret this is that it ends a certain amount of speculation as to whether the DHS would take over the CUAS function from the FAA.

SEC. 365. (p315) COOPERATION RELATED TO CERTAIN COUNTER-UAS TECHNOLOGY.

This instructs the Secretary to leverage the DOD. This has been long expected since US CUAS experience has been developed in theater. The challenge here is that many DOD technologies may not be suitable for use in the NAS.

SEC. 366. (p315) STRATEGY FOR RESPONDING TO PUBLIC SAFETY THREATS AND ENFORCEMENT UTILITY OF UNMANNED AIRCRAFT SYSTEMS.

The Administrator shall develop a comprehensive strategy to provide outreach to State and local governments and provide guidance for local law enforcement agencies and first responders with respect to—

(1) how to identify and respond to public safety threats posed by unmanned aircraft systems; and

(2) how to identify and take advantage of opportunities to use unmanned aircraft systems to enhance the effectiveness of local law enforcement agencies and
first responders.

This is an interesting two-pronged approach. (1) will be very challenging. There are other concepts like (2) elsewhere in the bill which I have not addressed.

C2

SEC. 374. (p325) SPECTRUM

This addresses one of the big hidden snags in the development of extended operations. The approach calls for the development of an inter-agency report by the FAA, NTIA and FCC that addresses:

1) whether UAS should be permitted, but not required, to operate on spectrum that was recommended for allocation…

2) that addresses any technological, statutory, regulatory and operational barriers

3) that, if it is determined that some spectrum frequencies are not suitable for BVLOS operations by unmanned aircraft systems, includes recommendations of other spectrum frequencies that may be appropriate for such operations.

UTM

SEC. 376. (p327) PLAN FOR FULL OPERATIONAL CAPABILITY OF UNMANNED AIRCRAFT SYSTEMS TRAFFIC MANAGEMENT.

This builds on the 2016 FESSA.

Here is the key piece:

(3) Where the particular operational environment permits, permit blanket waiver authority to allow any umanned aircraft approved by a UTM system pilot program selectee to be operated under conditions currently requiring a case-by-case waiver under part 107.

Under (c) IMPLEMENTATION PLAN CONTENTS there are two are forward-looking ideas. The first one goes to the point that Skyward CEO Mariah Scott made recently at a House hearing:

(F) the potential for UTM services to manage unmanned aircraft systems carrying either cargo, payload, or passengers, weighing more than 55 pounds, and operating at altitudes higher than 400 feet above ground level; [ie UAS in the NAS].

I am glad to see (G):

(G) cybersecurity protections, data integrity, and national and homeland
security benefits

SEC. 377. (p335) EARLY IMPLEMENTATION OF CERTAIN UTM
SERVICES.

(a) IN GENERAL—…the Administrator shall upon request of a UTM service provider, determine if certain UTM services may operate safely in the national airspace system before completion of the implementation plan required by section 376.

One assumes that this is intended to give the FAA discretion to trial specific UTM services such as may be incorporated into a UAS IPP pilot. One can also assume that the long line of supplicants will increase the FAA’s workload considerably…

CONCLUSION

I think of this issue as something like waking up on Christmas morning. There is a lot to discover as the goodies get unpacked and the (inevitable) lumps of coal come to light. Is it perfect, no.

Keep in mind that the FAA has already committed to a rulemaking calendar. In the Memorial Day issue I presented the FAA’s portion of the DOT Unified Agenda through 2020. I am sure that new rules can be added to the Agenda, but I would be surprised to learn it happens quickly. Even if it does, please remember that the NPRM process takes two to three years.

This is all going to take some time.


The good news is that a key roadblock has been removed and the way forward has been charted.


Miriam McNabb, the very talented editor of DroneLife.com summed it up perfectly:

There is always a gap between the adoption of new technology and the integration and acceptable regulation of that technology.  There is always a gap – and the drone industry is in it.

Finally, I am grateful to the people who responded on short notice to share their perspectives – Lydia, Miriam, Frank, Bob, Todd and Mark. I very much appreciate their support and contribution.

Thanks for reading and for sharing. Back issues of Dronin’ On are here.

best,
ck

Christopher Korody
Editor and Publisher
chris@dronebusiness.center
follow me @dronewriter