S 2607 Introduced – Local UAS Control

Earlier this month Sen Lee (R,UT) introduced S 2607, the Drone Integration and Zoning Act of 2019. The bill would provide for State and authority over ‘civil unmanned aircraft systems’ within 200-ft above the ground. Currently, sole jurisdiction over US airspace rest with the Federal Aviation Administration.

Definitions

Section 2 of the bill provides ten definitions to be used in the bill; most reference existing definitions in either the United States Code (USC) or the Code of Federal Regulations (CFR). Two new definitions are of specific interest: ‘immediate reaches of airspace’ and ‘unmanned aircraft take-off and landing zone’:

• ‘Immediate reaches of airspace’ “means, with respect to the operation of a civil unmanned aircraft system, any area within 200 feet above ground level” {§2(4)}.

• ‘Unmanned aircraft take-off and landing zone’ “means a structure, area of land or water, or other designation for use or intended to be used for the take-off or landing of civil unmanned aircraft systems operated by a commercial operator” {§2(10)}

This section uses the broad definitions of the terms ‘unmanned aircraft’ and ‘unmanned aircraft systems’ form 49 USC40101 Note (pg 869). The terms would include commercial UAS, small UAS, hobby UAS, and recreational  UAS.

Immediate Reaches of Airspace

Section 3 of the bill would amend the definition of ‘navigable airspace’ found in 49 USC 40102(32) by adding at the end: “In applying such term to the regulation of civil unmanned aircraft systems, such term shall not include the area within the immediate reaches of airspace (as defined in section 2(4) of Drone Integration and Zoning Act of 2019).’’ {§3(a)}.

Subsection (b) would then require the FAA to conduct a rulemaking to “to update the definition of ‘navigable airspace’” {§3(b)(1)}. The rulemaking would also designate the area between 200-ft and 400-ft above ground level for the operation of “civil unmanned aircraft systems under the exclusive authority of the Administrator”. The final rule would be required to be published within one year of the enactment of this bill.

Restrictions on Federal Actions

Section 4 of the bill starts out with a listing of congressional findings and deduced set of ‘sense of Congress’ elements that delineate the areas of responsibility for control of the ‘immediate reaches of airspace. The final conclusion is that: “the Federal Government lacks the authority to intrude upon a State’s sovereign right to exercise reasonable time, manner, and place of operations of unmanned aircraft systems operating within the immediate reaches of airspace” {§4(a)(2)(C)}.

The bill then goes on to further clarify the meaning of ‘immediate reaches of airspace’ in so far as it limits the FAA’s authority to regulate civil unmanned aircraft around buildings that are over 200-ft in height. It extends that area to 50-ft above the building and to within 200-ft (or the property line of the owner) laterally of the building. Those limits to not apply to UAS flying “directly within or above an authorized public right of way” {§4(b)(2)(C)}.

The bill then proceeds to outline what would be considered to be “reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system” {4§(b(3)}:

• Specifying limitations on speed of flight over specified areas.

• Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, moving locations, or other public or private property.

• Restrictions on operations at certain times of the day or week or on specific occasions such as parades or sporting events, including sporting events that do not remain in one location.

• Prohibitions on careless or reckless operations, including operations while the operator is under the influence of alcohol or drugs.

• Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.

Section 4(c) of the bill provides the FAA with the authority to designate ‘authorized commercial routes’ for civil unmanned aircraft with the limitation that such routes would be above 200-ft above ground level.

UAS Takeoff and Landing Zones

Section 5 of the bill outlines the limits of the authority of State and local governments to regulate the “designation, placement, construction, or modification of an unmanned aircraft take-off and landing zone” {§5(a)}. While most of the limitations are procedural limits on the zoning process, the section does provide a general limit on discrimination. Section 5(b) provides that the “regulation of the designation, placement, construction, or modification of an unmanned aircraft take-off and landing zone by any State, local, or Tribal government may not—

“(1) unreasonably discriminate among commercial operators of unmanned aircraft systems; or

“(2) prohibit, or have the effect of prohibiting, a commercial operator from operating an unmanned aircraft system.”

Restriction on State and Local Actions

Section 6 of the bill provides limits on State and local government authority to restrict the operation of civil UAS between the ground and the 200-ft limit of the ‘navigable air space’. Generally, such governments are prohibited from taking actions that unreasonably or substantially impede {§6(a)(1)}:

• The ascent or descent of an unmanned aircraft system, operated by a commercial operator, to or from the navigable airspace in the furtherance of a commercial activity; or

• A civil unmanned aircraft from reaching navigable airspace where operations are permitted.

Moving Forward

Lee is a member of the Senate Commerce, Science, and Transportation Committee, the committee to which this bill was assigned for consideration. This means that there is a good chance that Lee has enough influence to see this bill considered in Committee. This is a relatively comprehensive bill and with no cosponsors it would seem likely that one or more of the provisions might draw significant opposition from various factions. I suspect that we will not be able to determine what opposition might arise until the bill makes it to Committee consideration.

This bill would almost certainly require being considered in regular order on the floor of the Senate. That provides a practical limit on its possibility of being considered. This language could, however, be included as part of an FAA reauthorization bill, if there is sufficient support in Committee.

Commentary

There is nothing in this bill that would allow an exception to the 18 USC 32 prohibitions about interfering with the actual flight of a civil unmanned aircraft.