HR 2930 Introduced – UAS Policy

Earlier this month Rep. Lewis (R,MN) introduced HR 2930, the Drone Innovation Act of 2017. The bill would require the Department of Transportation to publish policy guidelines outlining State and local governments ability to regulate the operation of small unmanned aircraft systems (UAS). In many ways the bill is similar to S 1272, but it is in no way a companion bill.

Local Operation

In §2 of the bill the terms ‘local operation’ and ‘local in nature’ are defined. They are the key, in this bill, to establishing in what areas State and local governments may regulate UAS operations. The mutual definition of these terms refers to flights or portions of civil unmanned aircraft flights that occur in airspace {§2(3)}:

• Up to 200 feet above ground level; and

• Within the lateral boundaries of a State, local, or Tribal government’s jurisdiction.

Policy Guidelines

Section 3 outlines the framework that DOT is required to develop to help standardize (as much as possible) State and local rules with regards to “reasonable time, manner, and place limitations and other restrictions on operations of civil and small unmanned aircraft that are local in nature” {§3(b)(1)}. Additionally, the section outlines the limits on future federal rulemaking so as to “preserve the legitimate interests of State, local, and Tribal governments” {§3(c)}. Those limits include {§3(d)}:

• 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.

• Innovation and competition are best served by a diverse and competitive small and civil unmanned aircraft systems industry.

• Any limitation on small or civil unmanned aircraft should not create an unreasonable burden on interstate or foreign commerce.

• The operation of small and civil unmanned aircraft systems that are local in nature have more in common with terrestrial transportation than traditional aviation.

• 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.

• Relying upon technology solutions, such as unmanned traffic management, provided by private industry, will effectively solve policy challenges.

• State, local and Tribal officials are best positioned to make judgments 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.

• 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.

• Innovation and competition in the unmanned aircraft industry are best served enabling State, local, and Tribal governments to experiment with a variety of approaches to policies related to unmanned aircraft.

• 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.

• 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.

Privacy and Property Rights

Section 5 of the bill addresses a number of privacy and property right issues. First, like S 1272, the bill prohibits DOT from authorizing “the operation of a 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” {§5(a)}.

Second, it addresses the fact that this bill would not affect a whole slew of federal, State and local government regulations and civil actions including “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” {§5(b)}.

Third, it provides State and local governments exclusive authority to define private property rights with respect “to unmanned aircraft in the airspace above property that is local in nature” {§5(c)}.

Next the bill prohibits the State and local governments from “unreasonably or substantially impeding the ability of a civil unmanned aircraft, from reaching the navigable airspace” {§5(d)}, or the national airspace above 200ft.

Finally, the bill provides no authority is provided within the bill for federal, State, or local governments “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” {§5(e)}.

Moving Forward

Lewis is a freshman member of the House Transportation and Infrastructure Committee. His bipartisan co-sponsors are also members of that Committee. Between them they probably have enough influence to ensure consideration by the Committee. Whether or not there is enough political will to move this bill to the full House remains to be seen.

I expect that the largest problem with this bill (from the point of view of passing the bill) is that it lacks any language protecting the operation of model aircraft. This has been a recurring requirement in any legislation making a serious attempt at setting standards for the operation of UAS.

Commentary

As I mentioned with S 1272, the main shortcoming of this bill is the failure to address the problem of enforcement because of the legal restrictions on interfering with the flight of aircraft found in (18 USC 32). Failure to address this issue will make many regulatory issues practicably unenforceable.

In this bill in particular the privacy rights outlined in the bill cannot be enforced without the property owner or local police being able to stop the operation of the UAS over the property in question.

The question of protection of critical infrastructure from surveillance or attack via UAS is completely ignored in this bill. Lacking a federal will to set and enforce such rules, this bill could be a vehicle for allowing State and local governments to do so by adding ‘protecting the security of critical infrastructure’ to the list of State and local governments ‘legitimate interests’ in §3(c).