UAV Attorney’s Review of FAA’s Proposed Rules

KramerLevin_AT_KramerLevinLogoUAV specialist attorney Brendan M. Schulman () of Kramer Levin has completed a comprehensive analysis of the FAA’s recent Notice of Proposed Rulemaking (NPRM), and has uncovered some alarming backdoors and effects for both commercial, academic, and hobbyist flyers.
NPRMMost significant factor for hobbyists is that the NPRM did not specifically exclude model aviation from FAR part 91, as it already does for ultra-lights, moored balloons, kites, amateur rockets, and free flight balloons. Instead the FAA appears to be standing by their June ’14 interpretation where they believe they can regulate model aircraft that are operating recklessly or endangering the national airspace system, which is under-defined and subject to opinion. So without specifically excluding model aircraft in the NPRM, it may leave a back-door for the FAA.
Schulman writes,

This omission from the proposed text of 91.1(e) could be viewed as a back-door attempt to impose all existing part 91 aircraft regulations upon operators of model aircraft. Such an imposition could be viewed as a surreptitious codification of the FAA’s June 25, 2014, so-called “Interpretation of the Special Rule for Model Aircraft,” which asserted that model aircraft “are subject to all existing FAA regulations” and set out various purported interpretations of FMRA.

A second disturbing fact from the FAA is the lack of review of comments from last Junes’s ‘Interpretation of the Special Rule for Model Aircraft’. There were 33,000 comments submitted by hobbyists as well as potential commercial sUAS users. However, Schulman has discovered that,

In a recent court filing, the FAA indicated that it has not even begun reviewing the comments submitted last summer, but has only hired a third-party vendor to sort them.

Commercial operators appear to have a heavier burden with issues that will likely stunt the growth of the U.S. based sUAS industry. Among other limitations, commercial operators will be limited to:

  • Line of sight only
  • Daytime operations only
  • Hobby manufacturers may be required to follow all commercial sUAS rules
  • Educational operators must be 17 yrs or older.

Schulman adds,

The NPRM has been generally greeted as a long-overdue proposal that reflects a reasonable approach to sUAS operator and device certification. However, its contents raise significant issues that may be of concern to various manufacturer and operator constituencies in commercial, noncommercial and hobbyist contexts.

These are all significant problems for all the potential uses for unmanned systems. Stepping back from this NPRM to see the big picture, I see a federal agency completely out of their element, but under significant pressure to create something, anything.

Think about all of this for a minute and consider why unmanned systems and in general, robotics, are significant technologies. I believe this is a significant technology because what it can do for us. Everyone of course understands benefits from removing the human from flying cameras for an active event such as a crime scene or entertainment events, but the true benefits to mankind are the facts that autonomous systems allow some menial tasks such as delivering small objects and monitoring dull and boring places and events. Technology allows these tasks to be done autonomously so that more complete data can be collected, rather than creating more work for the humans. If a human has to ‘operate’ every sUAS in the country, the benefit of these systems is diminished and all the effort to collect valuable data may not yield any benefits over ‘the old fashioned way’. To truly benefit mankind with this technology, the regulation should not limit it to a 1 to 1 relationship from man to machine. Indeed, the FAA’s approach of managing sUAS basically like they do all other manned aircraft will severely limit any benefit they may deliver.

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