We would like to offer our thanks for the huge turnout we had for our free webinar on Part 107 Waivers, Exemptions, and Certifications: How to do all the things you can’t do. For those of you who could not make it, we are providing a downloadable version of the slides used, as well as a link to the full presentation so that you can listen at your leisure.
Beyond visual line of sight package delivery has been promoted as the “holy grail” of UAS technology. Major players have devoted enormous amounts of time and effort into creating the missing technological pieces. At the same time, armies of lobbyists have been deployed to try to get the Congress to speed up, or in some cases, completely circumvent, the FAA and its time consuming, methodical rulemaking process.
Based on all of this work, it was surprising to hear that the United States Postal Service Office of Inspector General is taking a hard look at the entire premise. The following paragraph was slipped into the middle of a lengthy “Fact Sheet,” issued by the White House earlier this month, entitled “New Commitments to Accelerate the Safe Integration of Unmanned Aircraft Systems:”
Exploring the public’s views on using unmanned aircraft for the delivery of mail or packages: Technological innovation is rapidly transforming what is possible in the world of delivery. One of the innovations that is gaining extensive attention is delivery by unmanned aircraft, but to date little research has been done on public support for the concept. Today, the United States Postal Service Office of Inspector General is announcing its intention to publish new findings and analysis on the public’s rapidly-evolving opinion of drone delivery as a potential future logistics technology. Several topics are covered in the study, including the opinion of survey respondents to unmanned aircraft delivery’s overall appeal, its most and least compelling applications, the believability of claims about its potential benefits, the public’s expected timeframe for implementation of operations, potential downsides of the proposed technology, and how the public would view drone delivery if it were offered by the U.S. Postal Service and a small collection of other interested organizations.
As the August 29th implimentation date for Part 107 draws ever closer, now is probably the best time for this type of study. Often times, everyone associated with an industry, including lawyers, get caught up in the exciting question of whether or not something can be done. Will the technology work? What laws need to be changed? What are the possibilities? Sometimes the more fundamental question of whether it should be done slips through the cracks.
At the end of the day, package delivery is a service. It is a very important service that virtually everyone in the United States relies on in one way or another on a daily basis. If “on demand” drone package deliver is not something the public has interest in, then no matter how good the technology is and how accommodating the regulators are, the entire endeavor fails. Regardless of its utility, if people find the service annoying or intrusive, or the reality of the service does not match the hyped expectations, it will never meet its true potential.
Of course, the last massive technological and regulatory challenge faced by the Post Office was the rise of private package delivery companies such as UPS and FedEx, which ultimately captured the most lucrative parts of the business. The results of the study may show us how the Postal Service will respond to this new challenge. Will the study be used as an excuse to do nothing, or provide a justification to leap into the market with ever resource it can muster? We will all know the answer soon.
Part 107 Waivers, Exemptions, and Certifications
How to Do All the Things You Can’t Do
Wednesday, August 17, 2016
1–2:30 p.m. ET
Webinar – no charge
|Part 107 goes into effect on August 29, 2016. The new regulations are flexible, but there are still many things that you cannot do . . . or can you? Part 107 established a system of waivers to help people unlock additional opportunities such as flight over people, at night, or from a moving vehicle. In addition, the exemption process is not going away. It can still be used to go beyond what the waivers permit, such as operating a vehicle weighing over 55 pounds. Finally, what about things like autonomous beyond visual line of sight package delivery? Is vehicle certification the answer?
This webinar, one of our continuing series, will answer these questions as well as provide you with the latest developments. Among the topics we will address:
Join Jim Williams (former Manager, FAA UAS Integration Office), Mark McKinnon and Mark Dombroff for this important UAS Webinar.
Meeting of the UAS Insurance Association
July 28, 2016
1:00 pm – 2:30 pm eastern
- The Founding Board
- Website -www.uasinsurance.org
- Risk Managers
- FAA Micro UAS Working Group
- FAA UAS Advisory Committee
- Webinars – August 17
- Regulatory Update
- Part 107
Last month, we wrote about a new case that was going to require a federal court to determine whether or not an unmanned aircraft is an “aircraft.” The judge issued his opinion this week, and his decision is not a surprise to those of us who practice aviation law.
By way of background, the Court was asked to enforce an administrative subpoena issued by the FAA to Mr. Haughwout, who had achieved a certain amount of notoriety for several videos where he fired a flame thrower and a hand gun from a UAS. The subpoenas were the first steps taken by FAA in pursuit of possible civil penalties. Mr. Haughwout had refused to cooperate in the investigation or respond to the subpoena, claiming that the FAA has no jurisdiction over small UAS.
In his written opinion, Judge Meyer noted that federal agencies have broad authority to investigate whenever there is reasonable ground to believe that there is a violation of federal law. Here, 14 C.F.R. § 91.13 prohibits the careless or reckless operation of an aircraft “so as to endanger the life or property of another.” The Court held that “there can be no dispute that the weaponized devices shown on the YouTube videos at least give rise to questions about possible danger to life or property.”
Mr. Haughwout, however, claimed that this section was inapplicable because his small UAS was not an aircraft. The Court rejected that argument, noting that Congress had provided a statutory definition of aircraft that was “stunningly broad,” and includes “any contrivance invented, used, or designed to navigate, or fly in, the air.” The Court characterized Mr. Haughwout’s claim that the statute could not be given such an expansive definition because it would include baseballs and pizza dough, as “creative.” The Court held, however, that the FAA is not required to fully define the hypothetical limits of its authority before it takes action. Rather the question is whether the specific action that is taken by the FAA is permissible. As a result, the Court held that for purposes of this dispute, Mr. Haughwout’s UAS was an aircraft.
The Court did note, however, that if the FAA ultimately decides to fine Mr. Haughwout for flying on his own property in a way that cannot pose a threat to air commerce, some of his other arguments might be worthy of further consideration. The federal government does not have a general police power, and ultimately its authority is limited to the reach of the commerce clause. However, because the FAA’s investigative authority is so broad, the Court concluded that those arguments were best addressed in the context of a well defined and concrete factual record at some point in the future.
So, as expected, this is not the end of the issue. The FAA will have to conclude its investigation and determine whether they want to formally pursue a penalty. Mr. Haughwout, who has shown that he is not shy about fighting with the FAA, will ultimately be entitled to a hearing before an administrative law judge, appeal to the NTSB, and potentially appeal to the United States Court of Appeals for the District of Columbia Circuit. As a result, we will no doubt be writing about this saga for years to come.
|February 7–9, 2017
Venue The Ritz Carlton 1700 Tysons Boulevard McLean, VA 22102 | Map
|Write it in ink! Chisel it in stone! 2016 is flying by (no pun intended) and planning is well under way for the 2017 Airline Symposium.
More info, including agenda and registration details, to follow. Stay tuned.
|Questions Please contact Barbara Butler at +1 703 336 8704.|
We would like to offer our thanks for the huge turnout we had for our free webinar on Part 107 and the future of UAS Operations. For those of you who could not make it, we are providing a downloadable version of the slides used, as well as a link to the full presentation so that you can listen at your leisure.
Several years ago, at The Airline Symposium, I asked Peggy Gilligan, FAA Associate Administrator for Aviation Safety, who was on one of our panels, “Why do the FAA and NTSB hate one another?”
After the laughter in the room died down, Peggy said, quite correctly, that the premise of my question wasn’t accurate. She said something to the effect (and I’m not quoting her) that the FAA was the regulator and the NTSB was the investigator, with no regulatory authority and because the results of NTSB aviation investigations typically resulted in recommendations to the FAA, with which the FAA doesn’t always agree, there was a certain amount of tension between FAA and NTSB . An excellent answer. By way of footnote, it didn’t prevent me from asking Peggy, the following year at the Symposium, whether the NTSB and FAA still hated one another?
Well, here we are in 2016 and the US airline industry has been, and continues to be, at an unprecedented level of safety and a model for the rest of the world. The last US airline accident was in 2009, when Continental/Colgan Flight 3407 crashed in Buffalo, NY. This level of safety is no accident (excuse the pun). It’s a function of industry and government, i.e. FAA and NTSB, working together.
The airline industry is so safe that Chris Hart, the Chairman of the NTSB and someone who, in the opinion of Plane-ly Spoken, is, by far, the most qualified and effective Chairman in the history of the NTSB, has broadened the focus of the NTSB to include a more pro-active, advocacy role, namely, spotting air-safety hazards before they result in an accident. In doing so, Chairman Hart cited the increasingly growing levels of cooperation and sharing of information between the FAA and NTSB.
Make no mistake about it however, the FAA and NTSB won’t always see eye to eye in the future. But that’s okay, so long as future disagreements continue to be the exception and not the rule.
We have the safest aviation industry in the world. So long as industry and government continue to work together, the biggest winners will be the traveling public.
Thank you Associate Administrator Gilligan! Thank you Chairman Hart!
P.S. Maybe at The 2017 Airline Symposium, February 7-9, 2017, I’ll ask one of them “Why do the FAA and NTSB love another?”
The day the UAS industry has been waiting for is finally here. The FAA has just announced the release of 14 CFR Part 107, which sets out the operating rules for all small unmanned aircraft. This new regulatory system promises to open the skies to commerce in a way that was not possible under the restrictions that accompanied Section 333 Exemptions. The new rules will go into effect 60 days after they are published in the Federal Register some time next week.
One of the major differences between Part 107 operations and operations under a Section 333 Exemption relates to pilot qualifications. Part 107 creates a new type of pilot’s license, referred to as an Operator’s Certificate. As a result, a manned aircraft pilot’s license will no longer be required. In order to obtain an Operator’s Certificate, the applicant must:
- Be proficient in English,
- Be at least 16 years old,
- Pass an Initial Aeronautical Knowledge Test at an FAA-approved Knowledge Test Center, and
- Pass a TSA Background Check.
There is no requirement that the applicant obtain a medical certificate, pass a vision test, or demonstrate any flight proficiency. The FAA estimates the application process will take 6-8 weeks to complete.
As with other types of pilots licenses, there is also a currency requirement, with the certificate holder required to pass an updated test every two years. The FAA also has made clear that all of the civil penalty and enforcement mechanisms used against unsafe manned aircraft pilots will also be used against unsafe UAS operators.
On the operational side, Part 107 flights are limited to vehicles weighing 55 pounds or less, and must occur below 400′ of altitude and at speeds below 100 miles per hour. The most significant restriction on Part 107 operators is the limitation of all flights to visual line of sight (VLOS) during daylight hours. This means that the controller must be able to see the UAS at all times. Binoculars, telescopes, first person view cameras and other vision aids are not permitted.
It is interesting to see what proposals did not make it into Part 107. The most significant exclusion was the so called “micro-UAS” rule, that would have completely carved out all UAS weighing below 2 kg from any federal regulation. The FAA has decided to pursue this issue in a more methodical way, and set the groundwork for a full blown micro UAS rulemaking with the conclusion of its micro UAS ARC earlier this spring.
Overall, the final rule is very similar to the draft rule released 16 months ago. The altitude limit was reduced from 500′ to 400′, the eligibility age for the pilot certificate was reduced from 17 to 16, and the accident reporting requirements were clarified. Interestingly, flights are permitted at altitudes over 400′ if the UAS is within 400′ of a structure. For example, if the UAS is used to inspect a tower that is 1200′ tall, the UAS can do so, as long as it stays within 400′ of the tower. In addition, the rule has provisions allowing Part 107 operators to obtain waivers from some of the flight restrictions, such as night operations, flight from a moving vehicle, and operations over bystanders.
So, does the release of Part 107 mean that the Section 333 Exemptions are no longer valid? No, all existing Exemptions are still in effect. Operators can fly under their Exemptions or under Part 107 at their option. Of course, only Exemption holders can fly between now and the day the rules actually go into effect in late August of this year.
For an in depth analysis of Part 107 and what it means for the future, join Jim Williams, Mark Dombroff, and Mark McKinnon for a free webinar on July 7 at 1 PM EDT. You can register by clicking the following link.
When is an aircraft not an aircraft? At first glance, this would seem to be the type of question that Lewis Carrol would ask, as it seems to answer itself. An “aircraft,” by definition, is always an “aircraft,” in much the same way that a “duck” is always a “duck,” particularly when it both walks and quacks like one. Of course, if you are facing potential criminal and civil penalties, even self-evident questions become worthy of extensive litigation and briefing.
Last year, Austin Haughwout posted two videos on YouTube demonstrating his modifications of a UAS to carry a gun and a flamethrower. In both videos, the UAS are shown firing its weapons. Needless to say, the FAA was not particularly pleased with the weaponization of these UAS, and began an investigation. The FAA issued a number of administrative subpoenas to Mr. Haughwout seeking documents and information about his modifications of the aircraft, the flights, and whether he generated any income from the videos.
According to news reports, Mr. Haughwout believes that the FAA does not have enough evidence to prosecute him, and he does not intend to voluntarily give the FAA any evidence. As a result, the FAA has filed an action in the United States District Court for the District of Connecticut to obtain a court order compelling a response to several subpoenas. Mr. Haughwout’s primary argument is that, in this case, his aircraft is not an aircraft, the FAA has no regulatory authority over him, and the statute making it a crime to arm an aircraft does not apply.
Mr. Haughwout is pressing the same arguments made and rejected in the Pirker appeal before the NTSB two years ago. He argues that the FAA’s definition of an “aircraft” is “unreasonable, patently absurd, obviously wrong, [and] clearly incorrect . . .” because, under this same definition, anything that flies would be an aircraft including a paper airplane, baseball, or hand tossed pizza dough. Since calling a ball of pizza dough an aircraft is “absurd,” Mr. Haughwout claims that calling his electrically powered remote controlled machine whose only purpose is to fly under its own power from place to place is similarly absurd.
The FAA, on the other hand, counters by relying heavily on the NTSB’s Pirker decision, which held that UAS are aircraft and that the FAA has the ability to pursue persons who operate them carelessly and recklessly. In addition, the FAA also relies on the FAA Modernization and Reform Act of 2012, which was not at issue in Pirker, as strengthening its position. The FAA points out that both Unmanned Aircraft System and Model Aircraft are defined in the Act as types of aircraft.
At the end of the day, Mr. Haughwout’s opposition to the subpoena faces an enormous obstacle, namely, the standard of review. The Court must give strong deference to the FAA’s interpretation of its own regulations. Essentially, the Court would have to find that both that FAA, and the NTSB, which has appellate authority over NTSB enforcement actions, have no idea what their regulations mean, and have adopted interpretations that have no basis in the law. It will not be enough for the Court to simply disagree with the definitions supplied by the FAA. Even if Mr. Haughwout does prevail before the district court, he will face the even more difficult task of persuading a three judge panel in the Second Circuit that the FAA’s arguments are frivolous.
This will definitely be a case that is worth watching as it travels through the legal system.