Drone Innovation Act of 2017 (HR 2930)


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.