Correct FAA Failure to Act

Earlier this week the Department of Transportation published a regulatory review notice in the Federal Register seeking public comments on its current review of “existing regulations and other agency actions to determine whether they are consistent with the policies and National objectives set forth in these executive orders [EO 13990 and EO 13992].” The ‘action’ that I would like to draw to the Department’s attention is the inaction of the Federal Aviation Administration in complying with §2209 of PL 114-190 (130 STAT. 634) , the FAA Extension, Safety, and Security Act of 2016.

The Requirement

On July 15^th, 2016 President Obama signed into law HR 636. Section 2209 of that bill required the FAA to “establish a process to allow applicants to petition the Administrator of the Federal Aviation Administration to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility” {§2209(a)}. Fixed facilities in the following categories would be able to request designation as an area where unmanned aircraft systems would be restricted from operation {§2209(b)(1)(C)}:

• Energy production, transmission, and distribution facilities and equipment,

• Oil refineries and chemical facilities,

• Amusement parks, and

• Other locations that warrant such restrictions.

Section 2209 gave DOT 180 days from the signing of the bill to establish the process described above. That would have been January 12^th, 2017. To date no rulemaking activity has been published, nor is their a listing of such a rulemaking in either the current Unified Agenda or Long Term Actions Agenda.

To Limit Exposure

Part of the intent of Biden policy outlined in §1 of EO 13390 is “to limit exposure to dangerous chemicals and pesticides”. It would seem to me that a key component of ‘limiting exposure’ would be to help chemical facilities prevent accidental or deliberate releases of dangerous chemicals caused by actions or activities of UAS over their facilities. Clearly, this is the intention of §2209. Failure to provide chemical facilities with this security tool substantially limits their ability to address this mode of limiting exposure.

Proposed Action

The Department of Transportation should take immediate action to begin the rulemaking process on this requirement.

NOTE: A copy of this blog post will be submitted as a comment on the referenced DOT notice.

HR 3669 Introduced – Drone Crime

Earlier this month Rep. Garamendi (D,CA) introduced HR 3669, the Safety for Airports and Firefighters by Ensuring Drones Refrain from Obstructing Necessary Equipment (SAFE DRONE) Act of 2015. The bill would make it a Federal crime to operate a drone near a hub-airport or federal firefighting scene.

The bill would add §40A to 18 USC. It would make it a crime (punishable by fines and/or 1 year in prison) to operate “a drone in a restricted area” {new §40A(a)}. The bill defines a drone as an unmanned aircraft as defined in §331(8) of the FAA Modernization and Reform Act of 2012 (PL 112-95); so this definitely includes both commercial and hobby unmanned aerial vehicles.

The bill provides its own definition of ‘a restricted area’ {new §40A(c)(2)}:

• Within a 2-mile radius of a small hub airport, medium hub airport, or large hub airport;

• Within 2 miles of the outermost perimeter of an ongoing firefighting operation involving the Department of Agriculture or the Department of the Interior; or

• In an area that is subject to a temporary flight restriction issued by the Administrator of the Federal Aviation Administration.

There is no language in the bill that allows for authorized use in restricted area except for operations by Federal, State, or local unit of government (or their contractors) in support of firefighting activities. This would seem to mean that drones could not be used, for instance, in perimeter security operations at a hub airport.

Moving Forward

Garamendi is not a member of the House Judiciary Committee (the committee of jurisdiction for this bill), but one of his co-sponsors, Rep. Lofgren (D,CA) is a fairly influential member of that Committee. This means that there may be enough political pull to get this to a Committee hearing. The fact, though, that none of the ten cosponsors are Republicans tends to weigh against that possibility.

It is not clear at this point how much opposition there would be to this bill from commercial drone services or manufacturers. Any that does arise may be able to be placated by the addition of the word ‘unauthorized’ as a modifier of ‘operation’.

Commentary

This bill is obviously a response to several reports of interference in aerial firefighting operations by drones being sighted in the area combined with vague FAA reports about drone operations around airports. Something clearly needs to be done, but a tad bit more attention to detail needs to be paid in the construction of criminal statutes. Why for example is operation in an area covered by a temporary FAA flight restriction a crime operation in an area covered by a permanent FAA flight restriction is not?

The way this bill is currently written a child playing with a remote controlled helicopter in his yard within two miles of an airport could be made a felon. While one would like to think that a prosecutor would have more sense than that, stranger things have happened.

The one thing that does disturb me, however, is that there are no provisions in the bill that would make unauthorized operation of a drone over critical infrastructure facilities a crime. Again, some careful attention to the wording would be required, but this is clearly an area that needs to be addressed and a bill like this would seem to be the ideal vehicle.