Top Fed Makes Case for More UAS Regulation

Speaking at the Association of Unmanned Vehicle Systems International (AUVSI) conference in Denver, last month U.S. Department of Transportation (DOT) General Counsel Steven Bradbury left little doubt that the federal government will be moving quickly to further assert its primacy over UAS rules and regulations and imposing more of them on the recreational sUAS community.

During a keynote address, Bradbury assured his audience that DOT’s UAS regulations would be limited in scope “to what is necessary to achieve our safety mission” and then laid out the case for increasing it on the grounds of airspace management, safety, security, and federal preemption.

Bradbury said the government is “motivated by critical concerns about safety and security. Those have to be the top priorities. Americans have no tolerance for aviation mishaps, and the FAA has no tolerance for aviation accidents. But if there were one major incident involving an unmanned system and a traditional aircraft or if there were a major terrorist attack in which drones were involved in carrying out a terrorist attack, I think we all understand that it would be a significant setback for the UAS industry. Those concerns cannot be ignored.”

UAS registration and tracking is a top government priority, he said, citing federal security agency concerns about the potential malicious use of UAVs. “The [Trump] administration has proposed legislation to Congress that would authorize the Department of Justice and the Department of Homeland Security, in coordination with the FAA and consistent with the Fourth Amendment in particular circumstances, to be able to identify and monitor and interdict drones that threaten critical facilities or sensitive activities. Like the UTM [UAS traffic management], this capability is going to require all drones that transit navigable airspace be equipped with the ability for remote identification and tracking. That’s going to be a critical requirement,” Bradbury said, adding that the FAA likely would be issuing a notice of proposed rulemaking (NPRM) on the topic in the near future soliciting public comment.

Bradbury said a related piece of that legislation would be a limiting of the Section 336 exemption for recreational UAS users embodied in the FAA Modernization and Reform Act of 2012. “We respect and value the freedom and the rights of all Americans to make personal use of UAS including for recreation. But the FAA believes and it is the view of the department that the current Section 336 impedes the FAA’s ability to relax its regulations or come up with new regulatory approaches that will help to expand and facilitate the greater use of UAS in the navigable airspace. Congress is considering ways of trimming the hobbyist exception, and the FAA is working closely with the responsible committees in Congress and reaching out to the leading model aircraft association in the U.S. to try and resolve these questions and we need to find a way forward on that front,” he said.

Finally, Bradbury reminded the audience that the patchwork of local and state UAS laws that sprung up while the federal government was shaping its own policy on the topic will ultimately be subject to federal preemption. “Some of these [state and local] laws are designed to protect privacy interests from snoopy drones and private property from trespass by drones. Some cities like New York have banned drone use pretty much in all of the city limits. These laws have the potential to conflict with the FAA’s ability to regulate the use of airspace by drones and expand that use. So we will need to be dealing with that and find the right balance between state, local, and federal interests. Of course, under the Constitution the federal requirements for safety and rules will preempt state and local laws in the area of commercial use. Once the Department of Transportation has granted economic authority, for example for package delivery services, the federal law expressly provides that any state law that purports to regulate the prices, routes, or services of those air carriers would be preempted by the federal law,” he said.