Proposed Drone Legislation

Brief Summary of the Safeguarding America’s Skies Act:

Congresswoman Vicky Hartzler (MO-04) introduced the Safeguarding America’s Skies Act on 3/21/2018. Congresswoman Hartzler explained in a press release, “Title 18 also prevents federal agencies from using tailored jamming or protocol manipulation to interdict drones because it is considered intruding on a ‘protected computer.’ The National Defense Authorization Act for Fiscal Years 2017 and 2018 provided the Department of Defense with relief from Title 18 restrictions in order to protect certain military installations and assets. Unfortunately, federal agencies like the Department of Justice and the Department of Homeland Security continue to have their hands tied preventing them from interdicting a drone that poses a reasonable threat, such as those carrying drugs across the border.” For a much more in-depth legal discussion on all the legal issues surrounding countering drones, see my article 7 Big Problems With Counter Drone Technology.

The other major point is that this Act tells the Secretary of Transportation to create a ” final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified.”

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Notable Points of the Safeguarding America’s Skies Act:

• Calls for the creation of a final rule for remote identification and tracking of unmanned aircraft.
• Tells DHS, DOJ, DOT, FCC, and NTIA to all coordinate to minimize harmful interference to licensed and unlicensed communications.
• The unmanned aircraft that is seized is subject to forfeiture to the United States.
• The information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from the Freedom of Information Act.

Pros:

• Gives DOJ and DHS the ability to counter border drug running and prison drops.
• If DOJ and DHS can start using these pieces of equipment more, this will then create a market for counter UAS equipment. Companies will step in to fill this need which will result in more jobs.
• If companies are competing, more money will be  pumped into researching better and better CUAS equipment. This will also have a spill over effect in making our military stronger with their CUAS abilities.

Cons:

• If you are going to give DOJ and DHS the ability to counter drones, why not also give the Department of the Interior and the U.S. Department of Agriculture the use to counter the drones being flown around wildfires?
• The definition of  “covered facility or asset” does not exactly make sense as defined in (C) in relationship to facilities or assets.
• Remote ID is not liked by the unmanned aircraft community and this could result in potential push back which could potentially jeopardize the entire act.
• What about the state and local law enforcement?
• It tells the DOT to get a final rule within 1 year. Rule making on average takes around 2-3 years.  What is the penalty if the final rule is not promulgated in time?
• Says nothing regarding the FAA’s relaxed enforcement philosophy which is primarily education over enforcement. This policy needs to change.

Questions Left Unanswered:

• So what? The FAA rarely prosecutes anyone. Why all the new regulations when the FAA does little with the drone regulations they currently have? Do you know how many FAA enforcement actions have happened from 2014 to the summer of 2017?  48
• This will disproportionately hurt the law abiding. You’ll have three groups of people: (1) the law abiding, (2) the clueless, (3) and the illegal. Blowing the drone out of the sky will affect all 3 groups but remote ID and tracking will most likely affect only the law-abiding group unless there is a more robust system put in place that educates and ties the drone to a person. This whole “honor system” of registering the drone ended with massive amounts of non-compliance. Just compare the estimated drones sold versus drones registered. If you want a system of accountability, require at the point of sale registration.
• What about all the drones already out there? Are you grandfathering them in? Do we have to retrofit them? If a $5 registration that could be easily completed online resulted in wide scale non-compliance, what type of compliance do you think you’ll get if people have to spend more than $5?
• Won’t jamming hinder integration of drones into the national airspace? Unmanned aircraft systems have a communications link component and also use GPS for positioning.  If you open the door to jamming of the ISM frequencies or the GPS frequencies, this can have all sorts of trickle down effects. Imagine 5 years from now where more drones are flying in the NAS. If a jammer goes off, this could affect other unmanned aircraft flying in the area. Do commercial drone operators operating near sporting events have to plan for potential GPS and ISM jamming?
• How will this affect manned aviation using GPS during IFR? Jamming GPS signals or spoofing them can cause all sorts of problems with manned aircraft operations.
• It says remote identification AND tracking.  Are these two separate things? An equipment capability plus some type of tracking? Perhaps something similar to a gun registry?

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Actual Text of Safeguarding America’s Skies Act:

To amend title 18, United States Code, to provide for certain authorized actions regarding interdiction of unmanned aircraft, and for other purposes.

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Safeguarding America’s Skies Act of 2018’’.

SEC. 2. AUTHORIZED ACTIONS REGARDING INTERDICTION OF UNMANNED AIRCRAFT.

(a) IN GENERAL.—Chapter 1 of part I of title 18, United States Code, is amended by adding at the end of the following:

‘‘SEC. 28. AUTHORIZED ACTIONS REGARDING INTERDICTION OF UNMANNED AIRCRAFT.

‘‘(a) IN GENERAL.—Notwithstanding any other pro vision of this title, except as described in paragraph (1), the Secretary of Homeland Security and the Attorney General may, for their respective departments, authorize officers, employees, and contractors of the department assigned with duties that include safety, security, or protection of personnel, facilities, or assets of the department, to take such actions described in subsection (b) that are necessary to mitigate the threat (as defined by the Secretary of Homeland Security and the Attorney General, in consultation with the Secretary of Transportation) that an unauthorized UAV poses to the safety or security of a covered facility or asset. In taking such actions, the agency shall—

‘‘(1) avoid any infringement of the privacy and civil rights of the people of the United States and the freedom of the press consistent with the First and Fourth Amendments, including with regard to the testing of any equipment and the interception or acquisition of communications;

‘(2) limit the geographic reach and the duration of such actions to only those areas and timeframes that are reasonably necessary to address a reasonable threat; and

‘‘(3) use reasonable care not to interfere with non-targeted manned or unmanned aircraft, communications, equipment, facilities, or services.

‘‘(b) ACTIONS AUTHORIZED.—

‘‘(1) ACTIONS DESCRIBED.—The actions described in this subsection are as follows:

‘‘(A) Detect, identify, monitor, and track, without prior consent, a UAV, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by the UAV, to evaluate whether the UAV poses a reasonable threat to the safety or security of a covered facility or asset.

‘‘(B) Warn the operator of the UAV, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.

(C) Redirect, alter control, disable, disrupt, seize, or confiscate, without prior consent, a UAV that poses a reasonable threat as determined under subsection (a), including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by UAV.

‘‘(D) Use reasonable force to disable, disrupt, damage, or destroy a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a reasonable threat to the safety or security of a covered facility or asset.

‘‘(E) Conduct research, testing, training on, or evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable.

‘‘(2) REGULATIONS AND GUIDANCE.—The Secretary of Homeland Security and the Attorney General, in coordination with the Secretary of Transportation, may make rules and shall issue guidance in their respective areas to carry out this section.

‘‘(3) AVOIDANCE OF DUPLICATION.—The Secretary of Homeland Security, the Attorney General, and the Secretary of Transportation shall coordinate and avoid duplication in the development of guidance under this paragraph or otherwise implementing this section.

(4) MINIMIZATION OF HARMFUL INTERFERENCE.—The Secretary of Homeland Security, the Attorney General, and the Secretary of Transportation shall also coordinate with the Federal Communications Commission and the National Telecommunications and Information Administration to ensure that all actions taken and guidance and rules made under this subsection minimize harmful interference to licensed and unlicensed communications, devices, and services authorized by the Federal Communications Commission.

(5) FINAL RULE REGARDING REMOTE IDENTIFICATION AND TRACKING OF UAVS.—Not later than one year after the effective date of this section the Secretary of Transportation shall issue a final rule requiring remote identification and tracking of UAVs, including UAVs for recreational use, to ensure that cooperative aircraft are identified.

‘‘(c) FORFEITURE.—Any UAV described in subsection (a) that is seized by the Federal agency is subject to forfeiture to the United States.

‘‘(d) EXEMPTION FROM DISCLOSURE.—Information pertaining to the technology, procedures, and protocols used to carry out this section, including any regulations or guidance issued to carry out this section, shall be exempt from disclosure under section 552(b)(3) of title 5 and exempt from disclosure under State and local law requiring the disclosure of information.

‘‘(e) PRIVACY PROTECTION.—All actions taken and guidance and rules made under subsection (b)(2) shall ensure that—

‘‘(1) the interception or acquisition of or access to communications to or from UAV under this section is conducted in a manner consistent with the Fourth amendment to the Constitution and applicable provisions of Federal law;

‘‘(2) communications are intercepted, acquired, or accessed only to the extent necessary to mitigate the reasonable threat that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset;

‘‘(3) records of such communications are maintained only for as long as necessary and in no event for more than 180 days unless the Secretary of Homeland Security or the Attorney General reasonably determine that maintenance of such records—

‘‘(A) is necessary to support one or more safety or security functions of the Department of Homeland Security or the Department of Justice, respectively; or

‘‘(B) is required for a longer period to support a law enforcement agency or by any other applicable law or regulation; and

‘‘(4) such communications are not disclosed outside the Department of Homeland Security or the Department of Justice unless the disclosure, subject to paragraph (a)(1) above—

‘‘(A) would fulfill a safety or security function of the Department of Homeland Security or the Department of Justice;

‘‘(B) would support the Department of Defense, a civilian law enforcement agency, or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory action with regard to, an action described in subsection (b)(1); or

‘‘(C) is otherwise required by law or regulation.

‘‘(f) SCOPE OF AUTHORITY.—Nothing in this section shall be construed to provide the Secretary of Homeland Security or the Attorney General additional authorities beyond those described in (b)(1) without authorization by law.

‘‘(g) REPORT TO CONGRESS.—The Attorney General and Secretary of Homeland Security, shall each submit to Congress, not later than one year after enactment, and each year thereafter, a report that shall include, at minimum—

‘‘(1) a description of actions taken, guidance provided, and rules made pursuant to this section, including a summary of public comments submitted in relation to such guidance or rules;

‘‘(2) a description of each Department’s effortsto address privacy, civil rights, and civil liberties issues implicated by the actions permitted by this section and other Federal and State government policies affecting UAVs;

‘‘(3) the number of UAVs that have been subject to each of the actions taken under subsection (b)(2), broken out by action;

‘‘(4) actions taken by each Department to inform the public of covered facilities and assets authorized by this section;

‘‘(5) implementation costs; or

‘‘(6) a description of any revisions to this section that may be desirable.

‘‘(h) DEFINITIONS.—In this section:

‘‘(1) The term ‘cooperative aircraft’ means aircraft that have an electronic means of identification aboard in operation.

‘‘(2) The term ‘covered facility or asset’ means any facility or asset that—

‘‘(A) is identified by the Secretary of Homeland Security or the Attorney General;

‘‘(B) is located in the United States (including the territories and possessions of the United States): and

‘‘(C) relates to—

‘‘(i) the buildings and grounds leased, owned, or operated by or for the Federal Government, including Federal Facility protection operations;

‘‘(ii) authorized protective operations, including but not limited to the protection of Federal jurists, court officers, witnesses, and other persons;

‘‘(iii) penal, detention, correctional, and judicial operations;

‘‘(iv) National Security Special Events, Special Event Assessment Ratings Events, or other mass gatherings or events that are reasonably assessed by the Department of Justice to be a potential target for terrorism or other criminal activity;

‘‘(v) active Federal law enforcement investigations;

‘‘(vi) operations that counter terrorism, narcotics, and transnational criminal organizations.

‘‘(vii) securing authorized vessels, whether moored or underway;

‘‘(viii) protection operations pursuant to section 3056;

‘‘(ix) critical infrastructure;

‘‘(x) Emergency Response Operations;

‘‘(xi) National Disaster Areas if it is determined by the Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts;

‘‘(xii) Natural or Hazardous Disaster Areas if it is determined by the Secretary of Homeland Security that unauthorized access to the airspace would restrict recovery efforts; and

‘‘(xiii) other areas identified by the President.

‘‘(3) The term ‘UAV’ means a small unmanned aircraft, unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, pay load, or cargo.

‘‘(4) The terms ‘unmanned aircraft,’ ‘small un manned aircraft,’ and ‘unmanned aircraft system’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

‘‘(5) The terms ‘intercept’ and ‘wire, oral, electronic, or radio communications’ have the meaning given those terms in section 2510.

‘‘(6) The term ‘critical infrastructure’ has the meaning given that term in section 2339D except that the Attorney General may, in his or her determination, amend the definition for purposes of this section in the issuance of any guidance or rules made under subsection (b)(2).’’.

(b) CLERICAL AMENDMENT.—The table of sections for such chapter is amended by adding at the end the following:

‘‘28. Authorized actions regarding interdiction of unmanned aircraft.’’.

(c) CONFORMING AMENDMENTS.—Title 18, United States Code, is amended—

(1) in section 32, by adding at the end the following:

‘‘(d) Nothing in this section shall apply to any action lawfully taken under section 28.’’.

(2) in section 1030, by adding at the end the following:

‘‘(k) Nothing in this section shall apply to any action lawfully taken under section 28.’’.

(3) in section 1362 by adding at the end the following:

‘‘Nothing in this section shall apply to any action lawfully taken under section 28.’’;

(4) in section 1367, by adding at the end the following:

‘‘(c) Nothing in this section shall apply to any action lawfully taken under section 28.’’;

(5) in chapter 119—

(A) by adding at the end the following:

‘‘§ 2523. Exception for interdiction of unmanned aircraft

‘‘Nothing in this chapter shall apply in the case of any action lawfully taken under section 28.’’.

(B) in the table of sections for such chapter, by adding at the end the following:

‘‘2523. Exception for interdiction of unmanned aircraft.’’; and

(6) in chapter 206—

(A) by adding at the end the following:

‘‘§ 3128. Exception for interdiction of unmanned aircraft

‘‘Nothing in this chapter shall apply in the case of any action lawfully taken under section 28.’’.

(B) in the table of sections for such chapter, by adding at the end the following:

‘‘3128. Exception for interdiction of unmanned aircraft.’’.

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Background of the Safe Drone Act of 2017

On June 22, 2017, Senator Warner of Virginia introduced into the Safe Drone Act of 2017. The act is supported by Sen. Hoeven, Sen. Cortez Masto, and Sen. Heller.  On the day it was introduced, it was read twice and referred to the Committee on Commerce, Science, and Transportation.

My guess is that like most drone legislation, the Safe Drone Act will not go anywhere.

Summary of the Safe Drone Act of 2017

-Calls for the FAA to create guidance for rapid issuance of exemptions, waivers, or authorizations for disasters.

-Calls for the DOT and NASA to work on a plan to create an unmanned traffic management system to be presented within a year.

-The DOT is to designate a group of 2 year colleges and trade schools centers of excellence.

-5 million is to be given to implement the section defining the centers of excellence.

-The creation of a working group on spectrum management and a call for a report to congress.

-Calls for a working group on beyond the visual line of sight of the operator and over people operations.

-Requires the FAA to start rulemaking to create regulations for “operations over people, operations beyond the visual line of sight of the operator, operations at night, and operations of multiple unmanned aircraft systems[.]”

-Gives 14 million EACH year to the FAA to split up among the test ranges for research and development.

-Modifies the definition of the Section 336 protected flyers to make them obtain prior authorization prior to operating in B,C, D, or E at the surface airspace; registration; and requires that the flyers completes an online safety course.

-Defines a community based organization and calls for the FAA to create a list of community based organizations that is publicly accessible.

-Directs the director of the Office of Management and Budget to “exempt from the definitions of “regulation” and “rule” for the purposes of that Executive order any final action taken by the Secretary of Transportation or the Administrator of the Federal Aviation Administration on or after January 30, 2017, primarily related to unmanned aircraft systems.”

-Tells the Comptroller General to submit a report to congress on developments and protections relating to cybersecurity and operational control concerns with respect to unmanned aircraft systems, recommendations for developments and protections, and recommendations for clearly defining Federal jurisdiction and oversight of unmanned aircraft system security matters.

Pros:

-There is money attached to some of these directives such as the test rangers doing R & D and the implementation of the centers of excellence.

-There is an emphasis on getting 2 year colleges and technical school to start training people to use drones.

Cons:

-Prior authorizations for model aircraft flyers? Are you insane!  The system is extremely swamped and it would greatly cause backlogs.

-There is nothing in here regarding telling the FAA to step up enforcement actions against drone flyers or appropriating money to hire more attorneys to prosecute.

-Looks like a land grab by the AMA to try and get themselves defined as a CBO and maybe start making it harder for others to get listed as such.

Questions Raised by/Suggestions for Safe Drone Act:

Section 3 wants the FAA “to publish guidance for applications for, and procedures for the processing of, on an emergency basis, exemptions or certificates of authorization or waiver for the use of unmanned aircraft systems by or on behalf of civil or public operators in response to a catastrophe, disaster, or other emergency[.]”  The FAA already does this with the ACOA process for civil and public aircraft operators so I’m not sure why this is even in here. Maybe they want rapid exemptions and waivers done but why would you want that? Emergency personnel and first responders should have their act together before a disaster.

Seriously, get some money to the FAA to hire more attorneys. Additionally, there should be a call from Congress to change the FAA’s position on enforcement actions. The FAA has done very little enforcement under their relaxed enforcement standards.

 Actual Text of the  Safe Drone Act

SECTION 1. SHORT TITLE.

SEC. 2. DEFINITIONS.

SEC. 3. SENSE OF CONGRESS ON EMERGENCY EXEMPTION PROCESS.

SEC. 4. PLAN FOR FULL OPERATIONAL CAPABILITY OF UNMANNED AIRCRAFT SYSTEMS TRAFFIC MANAGEMENT.

(a) In General.—The Secretary of Transportation, in coordination with the Administrator of the National Aeronautics and Space Administration and industry stakeholders, shall develop an implementation plan to achieve full operational capability of unmanned aircraft systems traffic management (in this section referred to as “UTM”) and ensure the safety and security of all aircraft.

(b) Requirements.—In developing the plan required by subsection (a), the Secretary shall—

(1) establish a timeline for certifying an operational capability of UTM as safe and approved for use;

(2) establish criteria to be used to certify a UTM system under paragraph (1), including the demonstration and validation of such a system at the test ranges designated under section 332(c) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note); and

(3) outline the roles of industry and government in establishing an operational UTM.

(c) Assessments.—The plan required by subsection (a) shall include an assessment of various components necessary for and possible with the full operational capability of UTM, including—

(1) identification of unmanned aircraft systems in the national airspace system;

(2) deconfliction of unmanned aircraft systems in the national airspace system;

(3) mitigation of effects of unmanned aircraft systems in the national airspace system;

(4) the extent that UTM may rely on or use resources of the Federal Government;

(5) the need for additional detect-and-avoid technologies to detect cooperative and noncooperative aircraft;

(6) interoperability with traditional air traffic management services and technology;

(7) the potential for UTM to manage higher altitude operations of unmanned aircraft systems and unmanned aircraft systems weighing more than 55 pounds; and

(8) cybersecurity protections and national security benefits.

(d) Deadline.—Not later than one year after the date of the enactment of this Act, the Secretary shall—

(1) complete the plan required by subsection (a);

(2) submit the plan to—

(A) the Committee on Commerce, Science, and Transportation of the Senate; and

(B) the Committee on Science, Space, and Technology and the Committee on Transportation and Infrastructure of the House of Representatives; and

(3) publish the plan on a publicly accessible Internet website of the Federal Aviation Administration.

SEC. 5. COMMUNITY AND TECHNICAL COLLEGE CENTERS OF EXCELLENCE IN SMALL UNMANNED AIRCRAFT SYSTEM TECHNOLOGY TRAINING.

(a) Designation.—Not later than 120 days after the date of the enactment of this Act, the Secretary of Transportation, in consultation with the Secretary of Education and the Secretary of Labor, shall, subject to paragraph (2), designate consortia of public, 2-year institutions of higher education as Community and Technical College Centers of Excellence in Small Unmanned Aircraft System Technology Training (in this section referred to as the “Centers of Excellence”).

(b) Functions.—The Centers of Excellence shall seek to expand their capacity to train students for career opportunities in industry and government service related to the use of small unmanned aircraft systems, including by—

(1) admitting more students;

(2) training faculty;

(3) expanding facilities;

(4) establishing new career pathways from secondary school to associate degree and baccalaureate degree programs; and

(5) awarding credit for prior learning experience, including military service.

(c) Education And Training Requirements.—The Centers of Excellence shall address education and training requirements associated with various types of small unmanned aircraft systems, components, and related equipment, including with respect to—

(1) multi-rotor and fixed-wing small unmanned aircraft;

(2) flight systems, radio controllers, components, and characteristics of such aircraft;

(3) routine maintenance, uses and applications, privacy concerns, safety, and insurance for such aircraft;

(4) hands-on flight practice using small model quadcopters and computer simulator training;

(5) use of small unmanned aircraft in various industry applications and local, State, and Federal Government programs and services, including in agriculture, law enforcement, monitoring oil and gas pipelines, natural disaster response and recovery, fire and emergency services, and other emerging areas;

(6) Federal policies concerning small unmanned aircraft;

(7) dual credit programs to deliver small unmanned aircraft training opportunities to secondary school students; and

(8) training with respect to sensors and the processing, analyzing, and visualizing of data collected by small unmanned aircraft.

(d) Collaboration.—The Centers of Excellence shall seek to collaborate with institutions participating in the Alliance for System Safetyof UAS through Research Excellence of the Federal Aviation Administration and with the test ranges designated under section 332(c) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

(e) Authorization Of Appropriations.—There are authorized to be appropriated to the Secretary of Transportation $5,000,000 for each of the fiscal years 2018 through 2023 to carry out this section.

(f) Institution Of Higher Education.—In this section, the term “institution of higher education” has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).

SEC. 6. INTERAGENCY WORKING GROUP ON COORDINATED FEDERAL POLICY FOR COMMUNICATIONS AMONG UNMANNED AIRCRAFT SYSTEMS.

(a) Sense Of Congress.—It is the sense of Congress that—

(1) a Federal policy for communications among unmanned aircraft systems, which may include communications through spectrum, wireless, or broadcast networks, or other means, requires coordination among Federal agencies in order to facilitate the safe integration of unmanned aircraft systems into the national airspace system; and

(2) a policy described in paragraph (1) should ensure safety, promote investment, and foster innovation to benefit all unmanned aircraft systems stakeholders, including manufacturers, operators, and consumers.

(b) Establishment Of Working Group.—Not later than 60 days after the date of the enactment of this Act, the Assistant Secretary and the Chairman shall establish a working group to make recommendations with respect to the coordination of Federal policy for communications among unmanned aircraft systems to facilitate the safe integration of unmanned aircraft systems into the national airspace system.

(c) Membership.—

(1) IN GENERAL.—The working group established under subsection (b) shall be composed of Federal stakeholders described in paragraph (2) and non-Federal stakeholders described in paragraph (3).

(2) FEDERAL STAKEHOLDERS.—The Federal stakeholders described in this paragraph are representatives of—

(A) the National Telecommunications and Information Administration;

(B) the Federal Communications Commission;

(C) the Federal Aviation Administration;

(D) the National Aeronautics and Space Administration;

(E) the Department of Defense;

(F) the Department of Homeland Security;

(G) the Department of Justice; and

(H) any other Federal agency the Assistant Secretary considers appropriate.

(3) NON-FEDERAL STAKEHOLDERS.—The non-Federal stakeholders described in this paragraph are representatives of—

(A) unmanned aircraft systems manufacturers;

(B) unmanned aircraft systems operators;

(C) customers or end users of data collected by unmanned aircraft systems operators;

(D) unmanned aircraft systems technology providers;

(E) commercial radio spectrum license holders;

(F) operators of commercial services in unlicensed spectrum allocations;

(G) commercial radio equipment manufacturers;

(H) appropriate standards-setting organizations; and

(I) the test ranges designated under section 332(c) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

(d) Considerations.—In making recommendations under subsection (b), the working group established under that subsection shall consider current and anticipated communications needs for unmanned aircraft systems, including the development of—

(1) sense-and-avoid and detect-and-avoid technology;

(2) payload data transmissions;

(3) communications link integration in unmanned aircraft systems;

(4) appropriate standards for communications links for various altitudes, aircraft, and operations;

(5) traditional and unmanned aircraft system air traffic management technology;

(6) command and control at high altitudes;

(7) shared spectrum access and management technologies, including dynamic spectrum-sharing schemes, contention-based protocols, and cognitive radio capabilities;

(8) internationally harmonized communications standards; and

(9) radio-frequency communications security standards.

(e) Report To Congress.—Not later than one year after the date of the enactment of this Act, and annually thereafter through January 1, 2023, the Assistant Secretary shall submit to Congress a report on the status of the development of a Federal policy for communications among unmanned aircraft systems, including—

(1) a summary of considerations under subsection (d); and

(2) recommendations for legislative or regulatory action related to that policy that is necessary to facilitate the safe integration of unmanned aircraft systems into the national airspace system.

(f) Definitions.—In this section:

(1) ASSISTANT SECRETARY.—The term “Assistant Secretary” means the Assistant Secretary of Commerce for Communications and Information.

(2) CHAIRMAN.—The term “Chairman” means the Chairman of the Federal Communications Commission.

SEC. 7. INTERAGENCY WORKING GROUP ON ENHANCED SAFETY AND SECURITY FOR SMALL UNMANNED AIRCRAFT SYSTEMS.

(a) In General.—Not later than 90 days after the date of the enactment of this Act, the Administrator of the Federal Aviation Administration, in coordination with the Secretary of Homeland Security, shall establish an interagency working group—

(1) to examine methods and structures to enhance the safety and security of expanded operations by small unmanned aircraft that involve operations beyond the visual line of sight of the operator and over people; and

(2) to clearly delineate roles and responsibilities among agencies participating in the working group in determining proper safety and security-related obligations and oversight.

(b) Membership.—The interagency working group established under subsection (a) shall, in addition to the Administrator of the Federal Aviation Administration and the Secretary of Homeland Security, be composed of the following:

(1) The Secretary of Defense.

(2) The Attorney General.

(3) The Director of the Federal Bureau of Investigation.

(4) The heads of such other Federal agencies as the Administrator of the Federal Aviation Administration considers appropriate.

(c) Consultations.—The interagency working group established under subsection (a) shall regularly consult with representatives of—

(1) unmanned aircraft systems industry organizations and stakeholders; and

(2) the test ranges designated under section 332(c) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

(d) Report.—Not later than 180 days after the date of the enactment of this Act, the interagency working group established under subsection (a) shall—

(1) develop conclusions and recommendations with respect to the matters specified in that subsection; and

(2) submit to Congress a report on such conclusions and recommendations.

(e) Rulemaking.—Not later than 270 days after the date of the enactment of this Act, the Administrator of the Federal Aviation Administration shall release for public comment a notice of proposed rulemaking to modify part 107 of title 14, Code of Federal Regulations, to allow for operations by small unmanned aircraft, including operations over people, operations beyond the visual line of sight of the operator, operations at night, and operations of multiple unmanned aircraft systems by a single remote pilot.

SEC. 8. EXTENSION OF PILOT PROGRAM FOR INTEGRATION UNMANNED AIRCRAFT SYSTEMS INTO THE NATIONAL AIRSPACE SYSTEM.

(a) In General.—Section 332(c)(1) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note) is amended by striking “September 30, 2019” and inserting “September 30, 2024”.

(b) Authorization Of Appropriations.—There are authorized to be appropriated to the Administrator of the Federal Aviation Administration $14,000,000 for each of fiscal years 2018 through 2024 to carry out the pilot program under section 332(c) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note), to be distributed among the test ranges designated under that section for further research and development on the safe integration of unmanned aircraft systems into the national airspace system.

SEC. 9. EXCEPTION FOR HOBBYIST-OPERATED SMALL UNMANNED AIRCRAFT.

(a) In General.—Notwithstanding any other provision of law, a person may operate an unmanned aircraft without specific operating authority from the Federal Aviation Administration if—

(1) the aircraft is flown strictly for hobby or recreational use;

(2) the aircraft is operated in accordance with the safety guidelines of a community-based organization that have been published in a publically accessible format by the Federal Aviation Administration;

(3) the aircraft is not flown beyond visual line of sight of the person operating the aircraft or persons colocated with and in direct communication with the person operating the aircraft;

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft and does not pose undue hazard to any other aircraft, obstacle, or person;

(5)

(A) the operator—

(i) obtains prior authorization from air traffic control before operating in Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport; and

(ii) complies with all temporary and permanent airspace restrictions in place for the furtherance of security and law enforcement interests; or

(B) in the case of an operator conducting operations from a permanent location within such airspace or a community-based organization conducting a sanctioned event at a fixed site within such airspace, establishes a mutually agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport);

(6) the aircraft is flown from the surface to not more than 400 feet above ground level, except under special conditions and programs established by a community-based organization;

(7) the aircraft is registered and marked in accordance with chapter 441 of title 49, United States Code, and proof of registration is made available to the Administrator or a law enforcement agency upon request; and

(8) the operator has completed an online safety course administered by the Federal Aviation Administration for the operation of unmanned aircraft systems under this section, and proof of completion of the safety course is made available to the Administrator or a law enforcement agency upon request.

(b) Updates.—

(1) IN GENERAL.—The Administrator, in collaboration with government and industry stakeholders, including community-based organizations, shall initiate a process to periodically update the operational parameters under subsection (a), as appropriate.

(2) CONSIDERATIONS.—In updating an operational parameter under paragraph (1), the Administrator shall consider—

(A) appropriate operational limitations to mitigate aviation safety risk and risk to the uninvolved public;

(B) operations outside the membership, guidelines, and programming of a community-based organization;

(C) physical characteristics, technical standards, and classes of aircraft operating under this section;

(D) trends in use, enforcement, or incidents involving unmanned aircraft systems;

(E) ensuring, to the greatest extent practicable, that updates to the operational parameters correspond to, and leverage, advances in technology; and

(F) equipage requirements that facilitate operations and further integrate all unmanned aircraft systems into the national airspace system, such as through unmanned aircraft system traffic management and remote identification and tracking.

(3) RULEMAKING.—The Administrator may prescribe regulations for hobbyist-operated small unmanned aircraft based on the process established under paragraph (1).

(c) Rules Of Construction.—Nothing in this section shall be construed—

(1) to expand the authority of the Administrator to require operators of small unmanned aircraft operating under an exemption under subsection (a) to be required to seek authorization from the Administrator before conducting an operation in the national airspace system other than as required by subsection (a); or

(2) to limit the authority of the Administrator to pursue an enforcement action against persons operating small unmanned aircraft in violation of this section or any other provision of law.

(d) List Of Community-Based Organizations.—

(1) IN GENERAL.—The Administrator shall maintain on a publicly available Internet website of the Federal Aviation Administration a list of community-based organizations under which small unmanned aircraft may be operated in accordance with subsection (a).

(2) INCLUSION OF ORGANIZATIONS.—The Administrator may include a community-based organization on the list required by paragraph (1) if the organization submits to the Federal Aviation Administration—

(A) a statement that the organization meets the definition of “community-based organization” under subsection (e); and

(B) the safety guidelines of the organization.

(3) REMOVAL.—The Administrator may remove a community-based organization from the list required by paragraph (1).

(4) GUIDANCE.—The Administrator shall publish guidance on the process for including community-based organizations on, and removing such organizations, from the list required by paragraph (1).

(e) Definitions.—In this section:

(1) COMMUNITY-BASED ORGANIZATION.—The term “community-based organization” means an organization that—

(A) represents the aeromodeling and hobby and recreational unmanned aircraft community within the United States;

(B) provides its members a comprehensive set of safety guidelines that underscore safe operations of unmanned aircraft within the national airspace system and the protection and safety of the general public on the ground;

(C) develops and maintains mutually supportive programming with educational institutions, government entities, and other aviation associations; and

(D) acts as a liaison with government agencies as an advocate for its members.

(2) SMALL UNMANNED AIRCRAFT.—The term “small unmanned aircraft” means an unmanned aircraft that—

(A) is capable of sustained flight in the atmosphere; and

(B) weighs less than 55 pounds, including the weight of anything attached to or carried by the aircraft, unless otherwise approved through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization.

(f) Conforming Repeal.—Section 336 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note) and the item relating to that section in the table of contents for that Act are repealed.

SEC. 10. ENSURING CONTINUED DEVELOPMENT OF UNMANNED AIRCRAFT SYSTEM INDUSTRY.

SEC. 11. GOVERNMENT ACCOUNTABILITY OFFICE REPORT ON CYBERSECURITY AND OPERATIONAL CONCERNS.

(1) describing developments and protections relating to cybersecurity and operational control concerns with respect to unmanned aircraft systems;

(2) making recommendations for developments and protections described in paragraph (1) that could better address such concerns; and

(3) making recommendations for clearly defining Federal jurisdiction and oversight of unmanned aircraft system security matters.

Quick Summary of the Drone Operator Safety Act of 2017:

The Drone Operator Safety Act of 2017 is a proposed bill that makes it a federal misdemeanor to: (1)  fly unmanned aircraft in the runway exclusion zone of an airport (red zone in the picture to the left) without air traffic control authorization or (2) “operate an unmanned aircraft and, in so doing, knowingly or recklessly interfering with, or disrupting the operation of, an aircraft or other airborne vehicle carrying 1 or more occupants operating in the special aircraft jurisdiction of the United States, in a manner that poses an imminent safety hazard to such occupants[.]”

This applies to all unmanned aircraft.

A federal misdemeanor can be punished up to 1 year in federal prison and/or a $100,000 fine. If the person attempts or causes serious bodily injury or death with a drone, the crime is punishable up to life in prison.

This article is part of my Drone Legislation Database.

Background of the Drone Operator Safety Act:

The Drone Operator Safety Act of 2017 was introduced on August 4, 2017 by  Congressman Langevin (HR 3644) and on August 3, 2017 by Senator Whitehouse  (SB 1755). If this act’s name sounds familiar, it is because Congressman Langevin introduced a bill with the same name in 2016 that is very similar; however, this is NOT to be confused with:

• Senator Mark Warner’s Safe DRONE Act of 2017
• Senator Feinstein’s proposed Consumer Drone Safety Act from 2015 
• Congressman Garamendi’s Safe Drone Act of 2015.

This bill is somewhat similar to the 2016 Drone Operator Safety Act. The main difference is in regards to how the exclusion zone is defined. The 2016 version applied “class B, class C, or class D airspace” while the 2017 version says “an airport” which means it can apply to ALL airports.

Summary of the Drone Operator Safety Act:

The Drone Operator Safety Act is the culmination of the overall growing sentiment in Congress that drones should not operate near airports. There is research being put into drone countermeasures, drone detection, and drone jamming but there needs to be “teeth” as to how to counter the actual flyer of the drone, not just the aircraft.

It creates this runway exclusion zone that extends 1 mile off the end of the runway. The only way you can fly in the runway exclusion zone is if you have authorization.Flying in this runway exclusion zone is a federal misdemeanor punishable up to a year in federal prison and/or a $100,000 fine; however, if the misdemeanor results in death, they could be fined $250,000. See 18 U.S.C.  § 3559 and 18 U.S.C. § 3571.

In addition to the runway exclusion zone, it creates a crime that can happen ANYWHERE. The penalty for flying “knowingly or recklessly interfering with, or disrupting the operation of, an aircraft or other airborne vehicle carrying 1 or more occupants operating in the special aircraft jurisdiction of the United States, in a manner that poses an imminent safety hazard to such occupants.” A violation of this is punishable up to a year in federal prison and/or a $100,000 fine unless death happens which then makes the fine up to $250,000.

It also forbids attempted or caused great bodily harm or death and allows for punishment up to life in prison. This kind of makes sense. A prosecutor needs to have a wide range of punishments to work with when prosecuting. The federal crime of attempted murder with a gun is a maximum of 20 years; however, if you are trying to take out an airliner, that is like 130+ attempts of murder.

Pros:

• It will deter people from flying drones next to airports or aircraft. This is good because I’m tired of the drone “near misses” that are reported on the news which are later used for justification for some state or local laws.
• It will force commercial drone operators to use the FAA authorization process to obtain a FAA authorization which basically will act like the get out of jail free card.

Cons:

• I’ve seen this before where over-zealous law enforcement will arrest a person claiming the drone was being operated in the sky near an aircraft (whatever “near” means) which in the officer’s opinion would have killed everyone if there was a collision. This is exactly what happened in the Turgeon case in North Dakota. A law enforcement officer arrested him and he was charged with 2 counts of reckless endangerment and 1 felony level reckless endangerment (because the officer thought he could have taken out the airplane flying overhead). Turgeon later was found not guilty. The Turgeon case was NOT an outlier.  Wilkins Mendoza and Remy Castro were both charged under New York’s felony careless and reckless laws, but prosecutors dropped their case. See also my article on the 23 enforcement actions the FAA did where 19 of them were prosecuted under state law also. These laws are easy to arrest under but hard to prosecute.
• It applies to “airports” which means you can get in trouble flying in the runway exclusion zone of a middle-of-nowhere “po-dunk” class G airport that rarely sees any traffic. “Airports needs to be defined better to be narrow.
• It is written so broadly that I can see helicopter pilots, crop dusters, etc. all getting more aggressive with drone operators. I think it would be wise to create some type of language that this interference charge cannot happen below a certain altitude (200 or 400ft AGL) or within a certain distance of a structure. Hobbyists do not have any altitude restrictions like the 107 operators do (400ft AGL).This way loitering airplanes and helicopters cannot be used to suppress drones being used underneath them. Think about it, if you want to hide something, you just fly manned aircraft up in the sky and arrest whoever flys their drone. Any journalists see a problem here?
• I don’t believe all the airport phone lines are recorded (that is what a FAA FOIA processor told me) so there are potential situations where hobbyists could get permission but have no proof of authorization to fly in the exclusion zone.
• There are no air traffic control towers for many of the airports out there so this creates a problem. Furthermore, the FAA is not giving out authorizations under Part 107 to class G airports.

Questions Raised/Suggestions:

• Except for the exclusion zone, create a 0- 200ft AGL “safe zone” where drone operators cannot be prosecuted. This can be used to prevent people from using this law to suppress drone journalism.
• What type of “airports” are covered? There are thousands of airports all over the U.S. but a large chunk of them are private or quiet small class G airports. Only so many airports really matter. The FAA got away from trying to deal with “airports” and instead worded Part 107 to require authorization to operate in class B, C, D, or E at the surface airspace. I think this act should go back to the class, B, C, or D distinction.
• Another reason to go back to B, C, or D classification is you can’t get authorization from the FAA to operate near class G airports. Class G and class E at the surface airports 99% of the time don’t have air traffic control towers to get authorizations from. Moreover, a lot of the class G and class E at the surface airports don’t receive much traffic.
• The text says, “received prior authorization for the operation from the air traffic control tower at the airport” but how does this work with FAA’s new LAANC system?
• Make it a crime to knowingly create false drone sightings or over-exaggerate the closeness of the drone.
• Maybe the FAA should create a tip line where informants get paid if there is a prosecution.

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Drone Operator Safety Act of 2017’’.

SECTION. 2. UNSAFE OPERATION OF UNMANNED AIRCRAFT.

(a) IN GENERAL.—Chapter 2 of title 18, United States Code, is amended—

(1) in section 31—

(A) in subsection (a)—

(i) by redesignating paragraph (10) as paragraph (11); and

(ii) by inserting after paragraph (9) the following:

‘‘(10) UNMANNED AIRCRAFT.—The term ‘unmanned aircraft’ has the meaning given that term in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).’’; and

(B) in subsection (b), by inserting ‘‘ ‘airport’,’’ before ‘‘ ‘appliance’,’’; and

(2) by inserting after section 39A the following:

‘‘§ 39B. Unsafe operation of unmanned aircraft

‘‘(a) OFFENSE.—It shall be unlawful to operate an unmanned aircraft and, in so doing, knowingly or recklessly interfering with, or disrupting the operation of, an aircraft or other airborne vehicle carrying 1 or more occupants operating in the special aircraft jurisdiction of the United States, in a manner that poses an imminent safety hazard to such occupants.

‘‘(b) PENALTY.—

‘(1) IN GENERAL.—Except as provided in paragraph (2), a person who violates subsection (a) shall be fined under this title, imprisoned for not more than 1 year, or both.

‘‘(2) SERIOUS BODILY INJURY OR DEATH.—Any person who attempts to cause, or knowingly or recklessly causes, serious bodily injury or death while violating subsection (a) shall be fined under this title, imprisoned for any term of years or for life, or both.

‘‘(c) OPERATION OF UNMANNED AIRCRAFT IN CLOSE PROXIMITY TO AIRPORTS.—

‘‘(1) IN GENERAL.—The operation of an unmanned aircraft, including an operation covered by section 336 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note), within a runway exclusion zone shall be considered a violation of subsection (a) unless—

 ‘‘(A) the operation of the unmanned aircraft received prior authorization for the operation from the air traffic control tower at the airport; or

‘‘(B) the operation is the result of a circumstance, such as a malfunction, that could not have been reasonably foreseen or prevented by the operator.

‘‘(2) RUNWAY EXCLUSION ZONE DEFINED.—In this subsection, the term ‘runway exclusion zone’  means a rectangular area—

‘‘(A) centered on the centerline of a runway of an airport; and

‘‘(B) the length of which extends parallel to the runway’s centerline to points that are 1 statute mile from each end of the runway and the width of which is 1⁄2 statute mile.’’.

(b) CLERICAL AMENDMENT.—The table of sections for chapter 2 of title 18, United States Code, is amended by inserting after the item relating to section 39A the following:

‘‘39B. Unsafe operation of unmanned aircraft.’’

The scope of this is ONLY for unmanned aircraft since that is what my business is about. :)

The title of the bill is “21st Century Aviation Innovation, Reform, and Reauthorization Act’’ and has multiple provisions for unmanned aircraft.

I’ll outline below the major provisions for each of the areas. I’ll continue to update this as I read through the documents.

This article is part of my Drone Legislation Database.

GENERAL

• Calls for the creation of a non-profit corporation called American Air Navigation Services Corporation.
• “The Secretary shall transfer operational control over air traffic services within United States airspace and international airspace delegated to the United States to the Corporation on the date of transfer in a systematic and orderly manner that ensures continuity of safe air traffic services.”
• Individuals who use air traffic services are assessed a fee.
• AIR TRAFFIC SERVICES.— “The term ‘air traffic services’ means services (A) used for the monitoring, directing, control, and guidance of aircraft or flows of aircraft and for the safe conduct of flight, including communications, navigation, and surveillance services and provision of aeronautical information; and  (B) provided directly, or contracted for,  by the FAA before the date of transfer.”
• ‘‘(12) UTM.—The term ‘UTM’ means an unmanned aircraft traffic management system or service.”
• “(b) PREEMPTION.—A State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to air traffic services.”
• This act cleans up Sections 331-336 from the FMRA of 2012. It also puts it in the United States Code in Title 49, Chapter 455.

ADVISORY BOARD

• The advisory board advising the non-profit corporation shall have on it unmanned aircraft operators and unmanned aircraft manufacturers.

Questions:

• Does this also include community based organizations like the Academy of Model Aeronautics?

UTM

• “[T]he Federal Aviation Administration shall initiate a rulemaking to establish procedures for issuing air navigation facility certificates pursuant to section 44702 to operators” of UTM for unmanned aircraft operations.
• While the regulations are getting created, the FAA shall determine shall determine, at a minimum, which types of UTM and low-altitude CNS, if any, as a result of their operational capabilities, reliability, intended use, and areas of operation, and the characteristics of the aircraft involved, do not create a hazard to users of the national airspace system or the public.”
• The DOT shall “provide expedited procedures for reviewing and approving UTM or low-altitude CNS operated to monitor or control
  aircraft operated primarily or exclusively in airspace above—(1) croplands; (2) areas other than congested areas; and (3) other areas in which the operation of unmanned aircraft poses very low risk.

OPERATION OF UNMANNED AIRCRAFT

• Provides for a risk-based permitting process. One interesting thing is when the FAA is evaluating the operations, it SHALL look at 8 elements, 1 of which says, “Any history of civil penalties or certificate actions by the Administrator against the applicant seeking the permit.”
• The permit lasts for 5 years.
• This permit is completely separate from Part 107.
• Tells the FAA to shall establish a “procedure for granting an exemption and issuing a certificate of waiver or authorization for the operation of a small unmanned aircraft system[.]”  Where has the writer of this bill been the last couple of years? It then goes on to list an exemption like and reference “Exemption No. 11687, issued on May 26, 2015, Regulatory Docket Number FAA–2015-0117, or in a subsequent exemption[.]”  This exemption was of the 2nd generation of exemptions (remember “closed set” filming) and it doesn’t make sense why they cited this one and not a post march 15, 2016 exemption which was better. But it does say “or in a subsequent exemption” so it ultimately doesn’t matter but I found that interesting

MODEL AIRCRAFT

• Upholds the protections of Section 336 regarding model aircraft flyers but DOES allow the FAA to create a registration system for model aircraft.
• The Section 336 provisions, which used to be 5 elements, now includes the requirement that the drone cannot fly over a fixed site facility that “operates amusement rides available for use by the general public or the property extending 500 lateral feet beyond the perimeter of such facility unless the operation is authorized by the owner of the amusement facility[.]”
• Commercial education of unmanned aircraft falls into the protections for model aircraft.
• The new language defines what a community based organization is 501(c)(3), is exempt from tax under 501(a), “mission of which is demonstrably thefurtherance of model aviation[,]” provides programming and support local charter organizations, affiliates, or clubs, etc….
• Tells the FAA to create within 180 days of passage a process for recognizing a community based organization.

PACKAGE DELIVERY

• Creates a small UAS air carrier certificate for property transport.

COMPTROLLER GENERAL STUDY

• “the Comptroller General of the United States shall initiate a study on appropriate fee mechanisms to recover the costs of— (1) the regulation and safety oversight of unmanned aircraft and unmanned aircraft systems; and (2) the provision of air navigation services to unmanned aircraft and unmanned aircraft systems.”

PUBLIC AIRCRAFT

• Allows Indian tribes to obtain public aircraft status using unmanned aircraft. What about manned aircraft?

HUH?

• ‘‘(g) EFFECTIVE PERIODS.—An exemption or certificate of waiver or authorization issued under this section, or an amendment of such exemption or certificate, shall cease to be valid on the effective date of a final rule on small unmanned aircraft systems issued under section 45502(b)(1).”  I have no clue what in the world this mean since Section 45502 is really the “updated” version of Section 332 of the FMRA of 2012 and was finally fulfilled by the FAA in the creation of Part 107 in August 29th, 2016.
• In Section 434, it says, ” It is the sense of Congress that …..the unauthorized operation of unmanned aircraft near airports presents a serious hazard to aviation safety; ……91.126 through 91.131 of title 14, Code of Federal Regulations, prohibit unauthorized operation of an aircraft in controlled airspace near an airport ……Federal aviation regulations, including section 91.13 of title 14, Code of Federal Regulations, prohibit the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another.”   Why are they citing Part 91 when unmanned aircraft operate under Part 107? Yes, I know Section 44807 exemption operations are under Part 91 but this is like some weird hold over from the pre-107 days.

Brief Summary:

The Drone Innovation Act of 2017 was introduced by Representative Jason Lewis on June 16, 2017. It was referred to the House Committee on Transportation and Infrastructure. This bill is similar to Senator Feinstein’s Drone Federalism Act recently introduced in that it seeks to clarify this murky area of how states and local governments can regulate unmanned aircraft.  I don’t know how far this bill will go because it has provisions that many will love and other provisions they will hate.

This article is part of my Drone Legislation Database.

My Thoughts:

The FAA has created a drone advisory committee to study out this very issue and present consensus recommendations. I think the wisest thing to do would be to wait until those consensus recommendations are completed. When it comes to chopping up the airspace, I think we should take the advice of my grandfather when he taught me about woodworking: “measure twice, cut once.”

Notable Points of the Drone Innovation Act:

• “[T]he Secretary of Transportation shall, after consultation with State, local, and Tribal Officials, and other appropriate stakeholders, publish a civil unmanned aircraft local operation policy framework[.]”
• The policy framework required shall “provide guidelines to aid States, local and Tribal governments and, to the degree possible, standardizing reasonable time, manner, and place limitations and other restrictions on operations of civil and small unmanned aircraft that are local in nature[.]”
• “In crafting the policy framework and in prescribing any future regulations or standards related to civil unmanned aircraft systems, the Secretary of Transportation shall define the scope of the preemptive effect of any civil unmanned aircraft regulations or standards pursuant to section 40103 or 41713 of title 49, United States Code.”
• “In formulating and implementing the policy framework required pursuant to subsection (a) and any future regulations, policies or standards related to civil unmanned aircraft systems, the Secretary shall abide by and be guided by the following fundamental principles” list in 11 section. (I think this sort of acts like an Executive Order 12,866 for drone regulations).
• The Secretary of the DOT shall enter into a pilot program with 20-30 State, local, or Tribal governments to provide technical assistance to such governments in regulating the operation of small and civil unmanned aircraft systems.
• “In prescribing regulations or standards related to civil or small unmanned aircraft systems, the Secretary shall not authorize the operation of small or civil unmanned aircraft in airspace local in nature above property where there is a reasonable expectation of privacy without permission of the property owner.”
• “[N]o cause of action, claim or remedy may be made solely because of the transit of an unmanned aircraft through airspace local in nature over private property in the absence of proof that such transit substantially interfered with the owner or lessee’s use or enjoyment of the property or repeatedly transited the airspace local in nature above the owner’s property.”
• “[T]he Secretary shall not issue any rule or regulation that impedes or operates contrary to the authority of the State, local, or Tribal government to define private property rights as it applies to unmanned aircraft in the airspace above the property that is” 200ft above ground level and below and within the lateral boundaries of a State, local or Tribal government’s jurisdiction.
• “A State or local government may not unreasonably or substantially impede the ability of a civil unmanned aircraft, from reaching the navigable airspace.” Examples include: outright bans, excessively large prohibitions, a combination of restrictions that have the practical effect of unreasonably impeding.
• “Nothing in this section shall be construed to prevent an operator or pilot from operating a small or civil unmanned aircraft over their own property, right of way, easement, lands, or waters.”

Who Supports the Drone Innovation Act:

• Representative Jason Lewis (MN-02) (He introduced it).
• Representatives Brownley (D-CA-26)
• Representative Rokita (R-IN-04)
• Representative Garamendi (D-CA-03)

Those Who Objected to the Drone Federalism Act:

The Drone Federalism Act is similar to this act in that it attempts to answer the question of how can states and local governments regulate unmanned aircraft. 13 organizations sent a letter to lawmarkers speaking out against the Drone Federalism Act and said “lawmakers should wait until efforts such as the FAA’s Drone Advisory Committee (DAC) have created consensus recommendations – with input from stakeholders – before considering changes to longstanding federal governance of the NAS. Legislating changes before consensus is reached may have dramatic unintended consequences that could stifle innovation, restrict economic growth and interstate commerce, and potentially compromise safety.” I think these organizations will react to this bill in a very similar way. These organizations include:

• Brian Wynne, President and CEO of Association for Unmanned Vehicle Systems International
• Gary Shapiro, President and CEO of Consumer Technology Association
• Mark R. Baker, President and CEO of Aircraft Owners and Pilots Association
• Rich Hanson, President of Academy of Model Aeronautics
• Robin Rorick, Group Director, of American Petroleum Institute
• Melissa Lyttle, President of National Press Photographers Association
• Matthew S. Zuccaro, President and CEO of Helicopter Association International
• Edward M. Bolen, President and CEO of National Business Aviation Association
• Jim Goldwater, Director of Legislative & Regulatory Affairs of National Association of Tower Erectors
• Lisa Ellman & Gretchen West, Co-Executive Directors of Commercial Drone Alliance
• Kara Calvert, Executive Director of Drone Manufacturers Alliance
• Peter F. Dumont, President and CEO of Air Traffic Controller Association
• Michael Drobac, Executive Director of Small UAV Coalition
• Trish Gilbert, Executive Vice-President of National Air Traffic Controllers Association

Pros:

• It does say a state or local government may not unreasonably or substantially impede the ability of a civil unmanned aircraft, from reaching the navigable airspace which is great. This section could be made much better by actually including some language saying that if the drone flyer is successful in winning a lawsuit against the state or local government that their attorney fees would be awarded.
• The state, local, and tribal governments will create laws to crack down on the unsafe drone flyers. I don’t know many will go all the way so as to say operating contrary to Part 107 is unsafe for the public.
• It does not have the language that Senator Feinstein had regarding restrictions that could go laterally 200ft.
• The FAA could be broad in preempting things and divest the states, local, and tribal governments from regulating in many areas. The FAA loves to do regulatory land grabs. Just see the Taylor v. FAA case.

Cons:

• Section 3(d) is going to slow down the rulemaking process even further for future drone regulations to figure out this new problem. The FAA is choked bad enough with Section 336, President Trump’s Executive Order (2 for 1 deal), and their limited human resources to get out the over people, night, and extended line of sight operation regulations out. They won’t want a repeat of the Taylor case by doing things sloppy.
• “Secretary shall not authorize the operation of small or civil unmanned aircraft in airspace local in nature above property where there is a reasonable expectation of privacy without permission of the property owner.” This 200ft “floor” will push drone aircraft further up into the national airspace which will be a problem when operating in urban environments with large amounts of aircraft in the area. Part 107 requires airspace authorizations to fly in controlled airspace, there is a lot near major cities, and the operating altitude gets lower the closer you get to the airport. This means the operational envelope for drone operations in urban environments for drone delivery (like Amazon drone delivery) will be much smaller if they have to be above 200ft while staying low enough to not interfere with manned aircraft. See my article on Amazon Drone Delivery and the legal issues they face.
• This has the net effect of pushing more operations above 200ft. Helicopter pilots, do you like that?

Questions Left Unanswered:

• “[T]he Secretary of Transportation shall, after consultation with State, local, and Tribal Officials, and other appropriate stakeholders, publish a civil unmanned aircraft local operation policy framework in the Federal Register.” How in the world is going to happen in 6 months??!?!?!

Section 1. SHORT TITLE

This Act may be cited as the “Drone Innovation Act of 2017”.

Section 2. DEFINITIONS

In this Act the following definitions apply:

(1) CIVIL AIRCRAFT. – The term “civil aircraft” with respect to an unmanned aircraft system, means that the unmanned aircraft is not a public aircraft as defined in a section of 40102 of title 49, United States Code.
(2) LOCAL GOVERNMENT. – The term “local government” means a unit of government that is a subdivision of a State, such as a city, county, or parish.
(3) LOCAL OPERATION. – The terms “local operation” and “local in nature” refer to flights or portions of civil unmanned aircraft that occur in airspace –

(A) Up to 200ft above ground level; and
(B) The lateral boundaries of a State, local or Tribal government’s jurisdiction

(4) SMALL UNMANNED AIRCRAFT. – The term “small unmanned aircraft” has the same meaning as such term is defined in section 331(5) of the FAA Reform and Modernization Act of 2012.
(5) STATE. – The term “State” means each of the several States, the District of Columbia, and the territories and possession of the United States.
(6) TRIBAL GOVERNMENT. – The term Tribal Government” means the governing body of an Indian Tribe (as defined in section 4 the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304)).

Section 3. CIVIL UNMANNED AIRCRAFT POLICY FRAMEWORK

(a) IN GENERAL – Not later than 6 months after the date of enactment of this Act, the Secretary of Transportation shall, after consultation with State, local, and Tribal Officials, and other appropriate stakeholders, publish a civil unmanned aircraft local operation policy framework in the Federal Register.
(b) CONTENTS. – The policy framework required pursuant to subsection (a) shall –

(1) provide guidelines to aid States, local and Tribal governments in harmonizing and, to the degree possible, standardizing reasonable time, manner, and place limitations and other restrictions on operations of civil and small unmanned aircraft that are local in nature;
(2) take into account the economic and non-economic benefits, such as civic or educational uses, of small or civil unmanned aircraft operations;
(3) provide guidelines to aid States, local, and Tribal governments in creating an environment that is hospitable to innovation and fosters the rapid integration of unmanned aircraft into the national airspace system; and
(4) aid States, local, and Tribal governments in adopting technologies, such as unmanned traffic management systems, that will enable notification to operators regarding reasonable time, manner, and place limitations on operations of civil and small unmanned aircraft that are local in nature.

(c) ANALYSIS – In crafting the policy framework and in prescribing any future regulations or standards related to civil unmanned aircraft systems, the Secretary of Transportation shall define the scope of the preemptive effect of any civil unmanned aircraft regulations or standards pursuant to section 40103 or 41713 of title 49, United States Code. Such regulations or standards shall be limited to the extent necessary to ensure the safety and efficiency of the national airspace system for interstate commerce, and shall preserve the legitimate interests of State, local, and Tribal governments, including-

(1) protecting public safety;
(2) protecting personal privacy;
(3) protecting property rights;
(4) managing land use; and
(5) restricting nuisances and noise pollution.

(d) LIMITATIONS. – In formulating and implementing the policy framework required pursuant to subsection (a) and any future regulations, policies or standards related to civil unmanned aircraft systems, the Secretary shall abide by and be guided by the following fundamental principles:

(1) Any limitation on small or civil unmanned aircraft should be consistent with maintaining the safe use of the navigable airspace and the legitimate interests of State, local, and Tribal governments.
(2) Innovation and competition are best served by a diverse and competitive small and civil unmanned aircraft systems industry.
(3) Any limitation on small or civil unmanned aircraft should not create an unreasonable burden on interstate or foreign commerce.
(4) The operation of small and civil unmanned aircraft systems that are local in nature have more in common with terrestrial transportation than traditional aviation.
(5) As it relates to the time, manner, and place of unmanned aircraft local operations, and the need to foster innovation, States, local, and Tribal governments uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly.
(6) Relying upon technology solutions, such as unmanned traffic management, provided by private industry, will effectively solve policy challenges.
(7) State, local and Tribal officials are best positioned to make judgements and issue dynamic limitations around events, including, fires, accidents and other first responder activity, public gatherings, community events, pedestrian thoroughfares, recreational activities, cultural activities, heritage sites, schools, parks and other inherently local events and locations, which may justify limiting unmanned aircraft activity that is local in nature while balancing the activities or events against the need for innovation.
(8) The economic and non-economic benefits, of small and civil unmanned aircraft operations may be best achieved by empowering the State, local, and Tribal governments to create a hospitable environment to welcome innovation.
(9) Innovation and competition in the unmanned aircraft industry are best served by enabling State, local, and Tribal governments to experiment with a variety of approaches to policies related to unmanned aircraft.
(10) The Department of Transportation shall, when making policy related to small or civil unmanned aircraft systems, recognize that problems that are merely common to the State, local, and Tribal governments will not justify Federal action because individual State, local and Tribal governments, acting individually or together, can effectively deal with such problems and may find and implement more innovation friendly policies than Federal agencies.
(11) The Department shall, when making policy related to small or civil unmanned aircraft systems, provide timely information and assistance to State, local, and Tribal governments that will ensure collaboration.

Section 4. PILOT PROGRAM ON FEDERAL PARTNERSHIPS

(a) IN GENERAL – Not later than 9 months after the date of the enactment of this Act, the Secretary of Transportation shall enter into agreements with not less than 20 and not more than 30 State, local, or Tribal governments to establish pilot programs under which the Secretary shall provide technical assistance to such governments in regulating the operation of small and civil unmanned aircraft systems, including through the use of the latest available technologies for unmanned traffic management, notice, authorization, and situational awareness with respect to reasonable time, manner, and place limitations and restrictions pursuant to section 3.

(b) SELECTION – In selecting among State, local and Tribal governments for purposes of establishing pilot programs under subsection (a), the Secretary shall seek to enter into agreements with –

(1) Governments that vary their size and intended approach to regulation of small and civil unmanned aircraft systems;
(2) Governments that demonstrate a willingness to partner with technology providers and small and civil unmanned aircraft operators; and
(3) At least 2 of each of the following: State governments, county governments, city governments, and Tribal Governments.

(c) UNMANNED AIRCRAFT SYSTEMS TRAFFIC MANAMAGEMENT SYSTEM. – The Secretary shall coordinate with the Administrator of the National Aeronautics and Space Administration to ensure that participants in pilot programs established under subsection (a) are consulted in the development of the unmanned aircraft systems traffic management system under Section 2208 of the FAA Extension, Safety, and Security Act of 2016 (Public Law 114-190, 49 U.S.C. 40101 note) and the pilot program under section (b) of such section.

(d) REPORT REQUIRED. – Not later than 18 months after establishment of the pilot programs required by subsection (a), the Secretary shall coordinate with pilot program participants to submit to Congress, and make available to the public, a report identifying best practices for State, local, and Tribal governments to regulate the operation of small and civil unmanned aircraft systems and to collaborate with the Federal Aviation Administration with respect to the regulation of such systems.

Section 5. PRESERVATION

(a) RIGHTS TO PRIVACY. – In prescribing regulations or standards related to civil or small unmanned aircraft systems, the Secretary shall not authorize the operation of small or civil unmanned aircraft in airspace local in nature above property where there is a reasonable expectation of privacy without permission of the property owner.
(b) CAUSES OF ACTION, CLAIMS, AND REMEDIES –

(1) IN GENERAL. – Nothing in this section shall be construed to preempt, displace, or supplant any Federal, State, or Tribal common law rights or any Federal, State, or Tribal statute or common law right creating a remedy for civil relief, including those for civil damages, or a penalty for a criminal law.
(2) CAUSE OF ACTIONS UPHELD. – Nothing in this section shall preempt or preclude any cause of action for personal injury, wrongful death, property damage, inverse condemnation, trespass, nuisance or other injury based on negligence, strict liability, products liability, failure to warn, or any other legal theory of liability under any maritime law, or any Federal, State, or Tribal common law or statutory theory, except that no cause of action, claim or remedy may be made solely because of the transit of an unmanned aircraft through airspace local in nature over private property in the absence of proof that such transit substantially interfered with the owner or lessee’s use or enjoyment of the property or repeatedly transited the airspace local in nature above the owner’s property.

(c) PRIVATE AIRSPACE. – Notwithstanding any other provision of law, the Secretary shall not issue any rule or regulation that impedes or operates contrary to the authority of the State, local, or Tribal government to define private property rights as it applies to unmanned aircraft in the airspace above the property that is local in nature.
(d) RIGHTS TO OPERATE. – A State or local government may not unreasonably or substantially impede the ability of a civil unmanned aircraft, from reaching the navigable airspace. Unreasonable or substantial impeding of a civil unmanned aircraft reaching the navigable airspace includes —-

(1) Outright bans on overflights of the entirety of the lateral boundaries of a State or local government’s jurisdiction;
(2) Excessively large prohibitions on overflights of areas of local significance such that access to airspace is so impeded as to make a flight within the lateral boundaries of a State or local government’s jurisdiction nearly impossible; and
(3) A combination of restrictions intended to unreasonably impede or having the practical effect of unreasonably impeding the ability of a civil unmanned aircraft from reaching the navigable airspace.

(e) RIGHT OF WAY. – Nothing in this section shall be construed to prevent an operator or pilot from operating a small or civil unmanned aircraft over their own property, right of way, easement, lands, or waters.

SECTION 6 STATUTORY CONSTRUCTION.

(a) JUDICIAL REVIEW. – An action taken by the Secretary of Transportation under any of sections 3-5 is subject to judicial review as provided under section 46110 of title 49, United States Code.
(b) CIVIL AND CRIMINAL JURISDICTION. – Nothing in this Act (including the amendments made by this Act) may be construed to diminish or expand the civil or criminal jurisdiction of –

(1) Any Tribal Government relative to any State or local government; or
(2) Any State or local government relative to any Tribal Government.

(c) LIMITATION. – Nothing in this Act (including the amendments made by this Act) may be construed to –

(1) Affect manned aircraft operations or the authority of the Federal Aviation Authority (in this section referred to as “FAA”) with respect to manned aviation;
(2) Affect the right of the FAA to take emergency action, including the right to issue temporary flight restrictions;
(3) Affect the right of the FAA to pursue enforcement action against unsafe aircraft operators; and
(4) Affect the right of first responders to access airspace in the event of an emergency.