Up in the AIRR, Part 2: Unmanned Aircraft Systems

To date, CEI’s analysis of the Aviation Innovation, Reform, and Reauthorization (AIRR) Act (H.R. 4441) has largely focused on proposed air traffic control reforms, which CEI strongly supports. But the House’s Federal Aviation Administration (FAA) reauthorization plan covers much more than air traffic control corporatization. This series will highlight non-ATC elements of the bill that should either be supported, improved upon, or discarded from a free market, limited-government perspective. The first entry covers the local airport user fee called the passenger facility charge (PFC). This second entry covers unmanned aircraft systems (UAS).

The AIRR Act as originally introduced was disappointing for the UAS community, with the bill doing very little beyond codifying language from the 2012 FAA reauthorization. Fortunately, an amendment accepted during the House’s February 11 markup of the bill should give many drone users a reason to support the bill.

Much of the AIRR Act’s UAS subtitle is spent codifying the UAS subtitle of the FAA Modernization and Reform Act (FMRA) of 2012, which was enacted as a statutory note to 49 U.S.C. § 40101. Below is a table showing the proposed codification of several key FMRA UAS provisions:

While most of the above provisions are virtually identical to the 2012 reauthorization language, FMRA Section 336 (“Special Rule for Model Aircraft”) contains some important changes. Model aircraft are those that are “flown strictly for hobby or recreational use,” generally precluding compensation, reimbursement, or consideration. However, the AIRR Act allows money to change hands in the model aircraft realm if the following two conditions are met:

1. The flight is “conducted for instructional or educational purposes”; and
2. The aircraft is “operated or supervised by an eligible not-for-profit organization.”

The purpose here is to explicitly permit recreational UAS operators to pay for lessons. Congress also defines “eligible not-for-profit organization,” which appears to be functionally the same as the “community-based organization” mentioned in both FMRA and the AIRR Act. Congress should make clear the distinctions, if any exist, between “eligible not-for-profit organization” and “community-based organization.” If they are functionally identical, Congress should pick a term and stick with it.

In addition, the AIRR Act requires that the FAA establish a new equivalent level of safety permitting process for UAS (to be codified at 49 U.S.C. § 45503). This is something CEI requested that FAA consider in our April 2015 comments to the agency regarding its proposal for integrating small UAS into the National Airspace System. The bill would also require the FAA to establish a process for granting certificates of waiver or authorization to small UAS engaged in aerial data collection (to be codified at 49 U.S.C. § 45506).

Other UAS provisions contained in the AIRR Act as introduced include the creation of a UAS detection systems pilot program that will involve at least three airports (Section 440) and the ordered evaluation of the FAA’s controversial mandatory registration process of all UAS (Section 441).

Section 441 doesn’t call into question the legality of the FAA’s December 2015 interim final rule (CEI believes the rule is unlawful for several reasons), but it does require the agency to develop metrics and collect data on the level of compliance with the interim final rule or eventual final rule, the number of enforcement actions and descriptions of the enforcement actions, and the effect of the rule on compliance with any fees.

Similarly useless “fact-finding” missions are ordered by Congress with respect to privacy at Section 436 (an area in which the FAA lacks jurisdiction and expertise) and low-altitude UAS traffic management at Section 439. On the latter, CEI strongly supports the investigation of proposals to decentralize and privatize low-altitude UAS air traffic management. This was recommended in an October 2015 CEI paper. However, Congress’s creation of yet another advisory committee to “study” the issue will do nothing to actually move in that direction.

It should be clear at this point that the AIRR Act, as introduced, included some modest UAS liberalization provisions, but this was hardly the pro-drone bill many had hoped it would be. Thankfully, however, Rep. Rodney Davis (R-Ill.) proposed an amendment to create a new “micro UAS” category. The amendment was adopted by voice vote during the House Transportation and Infrastructure Committee’s February 11 markup.

Micro UAS are defined as weighing no more than 4.4 pounds (2 kilograms), including payload. Their operations must be limited to flying below 400 feet above ground level, traveling at no more than 40 knots, flying within visual line of sight of the operator, operating only during daylight hours, and flying no closer than five miles from an airport unless the UAS operator has received express approval from airport and air traffic control authorities.

These are all current best practices for UAS operators, so little is changed in that respect. However, if these conditions are met, micro UAS and their operators are exempt from onerous airmen certification, airworthiness certification, and a number of flight rules and maintenance requirements that current commercial operators must meet. Most drone advocates have called for such a category, noting that it is absurd to require that, say, realtors hire a licensed pilot to take aerial photos of their listed properties with a small UAS.

This provision is similar to Canada’s micro UAV rule, which has been on the books since November 2014. On February 24, the FAA announced it was creating an Aviation Rulemaking Committee to develop recommendations on micro UAS, but given its track record, Congress should ensure the FAA follows through with creating a micro UAS category. Canada is 20 years ahead of the United States when it comes to reforming air traffic control and airport governance. To prevent another two-decade aviation policy lag, Congress should do the right thing and pass the AIRR Act.