S 1405 Introduced – FY 2018 FAA Authorization

Last month Sen. Thune (R,SD) introduced S 1405, the Federal Aviation Administration Reauthorization Act of 2017. This year’s bill includes one cybersecurity provision and a large number of provisions concerning unmanned aircraft systems (UAS). The UAS related items that may be of specific interest to readers of this blog include:

§2105. Analysis of current remedies under Federal, State, and local jurisdictions.

§2123. Small unmanned aircraft safety standards.

§2126. Additional rulemaking authority.

§2128. Special rules for model aircraft.

§2129. Authority.

§2133. Airport safety and airspace hazard mitigation and enforcement.

§2151. Federal and local authorities.

§2163. Unsafe operation of unmanned aircraft.

Cybersecurity

Section 4109 of the bill would require the FAA revise existing aircraft certification regulations to include {§4109(a)}:

• To address cybersecurity for avionics systems, including software components; and

• To require that aircraft avionics systems used for flight guidance or aircraft control be secured against unauthorized access via passenger inflight entertainment systems through such means as the Administrator determines appropriate to protect the avionics systems from unauthorized external and internal access.

The new regulations would be based upon work of the Aircraft Systems Information Security Protection Working Group as directed by Congress last year in §2111 of PL 114-190 (130 Stat 626).

Model Aircraft

Section 2128 of the bill adds a new §44808 (Special rules for model aircraft) to 49 USC. That section modifies and then codifies the model aircraft rules established in §336 of the FAA Modernization and Reform Act of 2012 (PL 1125-95, 126 Stat 77).

The ‘operational parameters’ in paragraph (a) have been expanded by including the following requirements for the model aircraft exemption {new §44808(a)}:

• Not flown beyond the visual line of sight of persons co-located with the operator or in direct communication with the operator;

• The aircraft is flown from the surface to not more than 400 feet in altitude, except under special conditions and programs established by a community-based organization; and

• The operator has passed an aeronautical knowledge and safety test administered by the Federal Aviation Administration online for the operation of unmanned aircraft systems subject to the requirements of section 44809 or developed and administered by the community-based organization and maintains proof of test passage to be made available to the Administrator or law enforcement upon request.

The FAA is further provided the authority to modify the operational parameters defined in the bill ‘as appropriate’. Paragraph (b)(2) provides an expansive list of considerations that the FAA might use to change those parameters.

Paragraph (d) of the new section provides the FAA with permissive authority to “promulgate rules relating to the registration and marking of model aircraft”. Furthermore, §2129 of the bill specifically re-instates the registration and marking requirements for small unmanned aircraft published by the FAA in December, 2015 and were recently vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15–1495).

Regulation of UAS Operations

Section 2105 requires the Government Accountability Office (GAO) “a review of the privacy issues and concerns associated with the operation of unmanned aircraft systems in the national airspace system”. Additionally, it tasks the GAO with identifying “specific issues and concerns that may limit the availability of existing civil or criminal legal remedies regarding inappropriate operation of unmanned aircraft systems in the national airspace system” {§2105(2)}.

Section 2123 addresses setting safety standards for UAS. It would add a new §44803 to 49 USC (Small unmanned aircraft safety standards). It would require the FAA to establish a rulemaking advisory committee to develop recommendations for regulations to establish {§44803(a)(1)}:

• Risk-based, consensus safety standards related to the safe integration of small unmanned aircraft systems into the national airspace system (referred to in this section as ‘consensus safety standards’) that can evolve or be updated as appropriate; and

• A Federal Aviation Administration process for permitting, authorizing, or approving small unmanned aircraft systems and their operations based on the safety standards to be accepted by the Administrator under this section.

The FAA would then be responsible for implementing those recommendations by establishing a process for {new §44803(d)}

• The acceptance by the Federal Aviation Administration of consensus safety standards recommended;

• Permitting, authorizing, or the approving small unmanned aircraft systems makes and models based upon the consensus safety standards; and

• The certification of a manufacturer of small unmanned aircraft systems that has demonstrated compliance with consensus safety standards.

These safety standards would also specifically apply to model aircraft {new §44803(f)}.

Mitigating Unsafe UAS Operations

Section 2133 would add a new §44810 to 49 USC. That new section would require the FAA to “develop a plan for the certification, permitting, authorizing, or allowing of the deployment of technologies or systems for the detection and mitigation of unmanned aircraft systems” {new §44810(b)(1)}. The implemented plan would “allow appropriate officials of Federal, State, or local agencies requesting to utilize such technologies or systems to take steps to detect and mitigate potential airspace safety threats posed by unmanned aircraft system operations §44810(b)(2)}.

The section goes on to clearly state that the following federal statutes would not apply the operation of these ‘technologies or systems’ {new §44810(h)}:

• 18 USC 32 – Destruction of aircraft or aircraft facilities;

• 18 USC 1030 (the bill actually says ‘1031’, an obvious error) – Fraud and related activity in connection with computers;

• 18 USC Chapter 119 – Wire and electronic communications interception and interception of oral communications; and

• 18 USC Chapter 206 – Pen registers and trap and trace devices

Section 2163 would make it a federal crime to unsafely operate an ‘unmanned aircraft’. It would add a new section 39B to 18 USC. It would make it a federal offense to operate an unmanned aircraft in a manner that “knowingly or recklessly interferes with, or disrupts the operation of, an aircraft carrying 1 or more occupants operating in the special aircraft jurisdiction of the United States, in a manner that poses an imminent safety hazard to such occupants” {new §39B(a)}.

Committee Mark-Up

On June 29^th the Senate Commerce, Science, and Transportation Committee held a mark-up hearing that included the mark-up of S 1405. In that hearing 57 amendments, including substitute language from Chairman Thune, were offered and presumably adopted (though there is no indication on the Committee web site of the status of actions taken). The substitute language made no changes of significance to the provisions previously discussed. There was one amendment from Sen. Johnson (R,WI) that may be of specific interest here.

Johnson’s amendment would add a new §44816 to 49 USC, Unmanned aircraft systems in restricted buildings or grounds. This amendment mirrors current restrictions found in 18 USC 1752 against unauthorized entry of the White House or other grounds where the President (or other persons protected by the Secret Service) is present. It would apply similar legal penalties for flying UAS in such areas.

The amendment further expands upon the §1752 coverage by adding the phrase “impede or disrupt the orderly conduct of Government business or official functions” {new §44816(a)} with respect to UAS operations.

Violation of the new section would be punishable under 18 USC by fines and/or up to one year in prison, unless the offense included mounting a weapon on the UAS or caused serious bodily harm. Then the maximum sentence would be fines and/or up to ten years in prison.

Moving Forward

The FAA reauthorization is one of the ‘must complete’ actions for Congress each year, though that does not specifically apply to this particular bill. A House version of this bill has yet to be offered, but will ultimately happen. Each branch of Congress will pass their own version of an FAA reauthorization bill and a conference committee will iron out the differences. There is always the possibility of short-term continuing-authorization bills being passed.

Commentary

I am very happy to see that this bill provides not only authority, but specific requirements for the FAA to regulate the cybersecurity of aircraft control systems. I am disappointed, however, in the failure to require specific rules regarding the reporting of cybersecurity attacks (with an appropriate definition of what constitutes an attack) or the discovery of security vulnerabilities in avionics software or devices. Additionally, I would have liked to have seen a specific requirement for regulated air carriers and aircraft (and avionic system) manufacturers to be members of some sort of recognized cybersecurity information sharing organization.

The bill finally addresses one of the major issues related to enforcing UAS operation regulations, the fact that any attempts to immediately stop a UAS from illegal operation (not completely defined by this bill) would almost certainly involve violation of a number of federal criminal statutes.

I am not sure, however, that offering a blanket exemption to those laws is quite the right way to proceed. I would have preferred the bill to require the FAA to establish specific ground rules where such exemptions applied. The way that §2133 is written does not just limit the use of the developed ‘technologies and systems’ to the areas around airports. They would generally apply to any counter-UAS operations conducted by “Federal departments and agencies to detect and mitigate potential threats posed by errant or hostile unmanned aircraft system operations” {new §44810(a)} or more generally by “appropriate officials of Federal, State, or local agencies requesting to utilize such technologies” {new §44810(b)(2)}.

The Johnson amendment is an overly broad extension of current presidential security rules. While arguments could certainly be made to support allowing the Secret Service to control the use of UAS around the White House and presidential functions, the inclusion of the ‘orderly conduct of Government business’ language could have a chilling effect on freedom of speech and be a broad tool to counter civil disobedience usage of UAS.

Finally, there is curiously lacking any mention of potentially applying flight restrictions to UAS operations above or around critical infrastructure or other restricted areas. Actually, what I would prefer to see would be to specifically disallow the operation of UAS over or around facilities where the federal government currently regulates security (for example: CFATS, MTSA and CIP regulated facilities) with the specific permission of the facility owners/operators. This would avoid the vague definition of ‘critical infrastructure’.

FAA ICR Revision for Closing Small Drone Registration

Today the OMB’s Office of Information and Regulatory Affairs (OIRA) announced the emergency approval of a change to the information collection request (ICR) supporting the FAA’s Small Unmanned Aircraft Registration System program. The change was requested in order for the FAA to comply with a recent court finding that the registration program was not legal.

According to the supporting document [.DOCX download link] submitted to OIRA:

“With respect to this update to the information collection, as a result of the May 19, 2017 ruling by the U.S. Court of Appeals for the District of Columbia Circuit, the Small UAS Registration and Marking interim final rule was vacated to the extent it applies to model aircraft. Model aircraft must meet the definition and operational requirements provided in section 336 of the FAA Modernization and Reform Act. Owners who are operating exclusively in compliance with section 336 who wish to de-register and receive a refund of the registration fee may do so by requesting de-registration from the FAA, which requires the FAA to collect their payment information.”

A new form [.DOCX download link] was included in the ICR revision submission. This form will be used by ‘model aircraft’ owners to de-register. It includes seven certification check-offs used to ensure that the registrant is flying a UAV in accordance with the ‘model aircraft’ provisions of §336 of the FAA Modernization and Reform Act (PL 112-95, 126 Stat 77-78). Commercial small aircraft registrants may not use this process to de-register as they were no covered in the court ruling.

I expect that we will see something in the Federal Register in the coming days addressing this de-registration process.

FAA Publishes UAS IFR

Yesterday the DOT’s Federal Aviation Administration published an interim final rule (IFR) in the Federal Register (80 FR 78593-78648) providing an alternative, streamlined and simple, web-based aircraft registration process for the registration of small unmanned aircraft. The rule requires that all unmanned aircraft systems weighing between 0.55-lbs (250-g) and 55-lbs to be registered with the FAA prior to their being flown in the National Air Space (NAS).

Definitions

The IFR adds the following definitions to 14 CFR 1.1:

• Model aircraft;

• Small unmanned aircraft;

• Small unmanned aircraft system (small UAS): and

• Unmanned aircraft

The definition of ‘model aircraft’ was specifically addressed by Congress in §336 of the FAA Modernization and Reform Act of 2012 (PL 112-95). Congress defined ‘model aircraft’ as an unmanned aircraft that is:

• Capable of sustained flight in the atmosphere;

• Flown within visual line of sight of the person operating the aircraft; and

• Flown for hobby or recreational purposes

Registration Requirement

Current law {49 USC 44101(a)} requires that “a person may operate an aircraft only when the aircraft is registered under section 44103 of this title”. Until this rulemaking the FAA has not applied this requirement to small UAS. The current regulations governing the registration of aircraft are found in 14 CFR Part 47 and generally require that an aircraft must be registered before it is flown in the United States.

The IFR amends 14 CFR by adding a new Part 48, Registration and Marking Requirements for Small Unmanned Aircraft. The IFR makes a distinction between two different registration types for UAS depending on the intended use of the UAS. For UAS that are intended to be operated as model aircraft, the registration is, in effect, a registration of the owner and each UAS owned by that owner would fall under that registration. For UAS that are not intended to be operated as model aircraft (commercial UAS for instance) each UAS must be registered separately.

Under §48.100(b) the registration requirements for small UAS intended to be used as model aircraft include submitting the following information on the new Web-based small unmanned aircraft registration system (the registration page will not be active until December 21^st, 2015):

• Applicant name;

• Applicant's physical address and mailing address if different; and

• Applicant's email address.

The same registration system would be used for small UAS intended to be flown as other than a model aircraft under §48.100(a). The data submission requirements are somewhat different and include the following additional information:

• The aircraft manufacturer and model name; and

• The aircraft serial number, if available

A Certificate of Registration would be provided for each registration after the fee of $5.00 is paid. The Certificate would have to be in the possession of the operator whenever the small UAS is operated in the NAS. For model aircraft the registration certificate number would be marked on all UAS owned by the registered owner. For non-model small UAS either the registration certificate number or the aircraft serial number would be required to be displayed on each aircraft.

Registrations would be required to be renewed every three years (new fee required. Registration information would have to be updated whenever it changed (no fee required).

Effective Dates

The effective date of this interim final rule is December 21^st, 2015. For model aircraft operated by the current owner before December 21^st, registration must be completed under either Part 47 or Part 48 of 14 CFR by February 19^th, 2016. All other model aircraft registrations must be completed before the small UAS is flown in the NAS.

For small UAS other than model aircraft must register their aircraft under the current Part 47 process used for conventional aircraft prior to operation in the NAS. Beginning March 31^st, 2016 registrations for other than model aircraft may be completed using the new Part 48 process.

Public Comments

The FAA is soliciting public comments on this IFR. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FAA-2015-7396). Comments should be submitted before January 15, 2016.

Commentary

I have noted in a number of blog posts (most recently here) that Congress, in §336 of the FAA Modernization and Reform Act of 2012 (PL 112-95), specifically prohibited the FAA from promulgating “any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft”. And I maintained that this IFR would obviously violate that prohibition. I am not so sure now.

The preamble to this rule undertakes to explain the FAA’s reasoning as to why this IFR does not conflict with §336. The discussion is a tad bit convoluted and legalistic, but I think that it completely ignores the best defense. Because of the way that §48.100 of this rule is written, the regulation does not address, directly, model aircraft. Since under §48.100(b) the registration for model aircraft does not include information about the aircraft it is a registration of the owner. Thus it seems fairly clear to me that the regulation does not violate the letter of §336.

Whether or not it violates the congressional intent of the §336, is an area that is not quite so clear. The original language in this section comes from S 223 in §607(g) where it was added as a floor amendment considered en bloc with no debate (CREC-2011-02-17-pt1-Pg 830) and there is no discussion about the intent in the Conference Report. Lacking any clear explanation of intent, we are probably stuck with the FAA interpretation.

I expect that we will see a number of negative comments about this conflict with the intent of §336, but lacking a comment from Sen. Inhofe (who proposed the amended language in the Senate), I do not expect that the FAA will revoke this model aircraft small UAS registration provisions of this rule. 

FAA Announces Revision of Model Aircraft Rules

Today the DOT’s Federal Aviation Administration published a notice in the Federal Register (80 FR 54417) indicating that it was revising Advisory Circular (AC) 91-57, Model Aircraft Operating Standards. The revision is required due to the requirements of §336 of PL 112-95 that was signed into law in February 2012. The FAA’s web site notes that AC 91-57 has been canceled.

AC 91-57 vs §336

The notice explains that: ”AC 91-57 contains provisions that are inconsistent with section 336 and therefore the Advisory Circular is being revised.”

Examples of the disconnect between §336 and AC 91-57 include:

∙ AC 91-57 sets a 3 mile limit for operations near an airport and §336 sets a 5 mile limit;

∙ AC 91-57 does not provide a definition of ‘model aircraft’ and §336 does; and

∙ Section 336 requires flight within line of sight of the operator.

There is nothing in the notice that indicates when the FAA expects the revised version of AC 91-57 will be released.

Commentary

It took the FAA more than three years to decide that AC 91-57 conflicted with §336. It is not clear that Congress was demanding that AC 91-57 be revised. This section was designed more to keep the FAA from including model aircraft operation in any regulation governing commercial small unmanned aerial vehicles (sUAVs).

Interestingly there is one area that Congress loosened up the operation of model aircraft. AC 91-57 had provided a 400 foot operation limit for model aircraft and there is no ceiling limitation found in §336. With AC 91-57 no longer in force there is now no limit on how high model aircraft are allowed to fly.

I think that Congress probably ended up making a mistake in adding §336 to the FAA Modernization and Reform Act of 2012. The §336 standards for model aircraft ended up being more restrictive than the FAA had included in AC 91-57. The FAA had been very generous in their handling of model aircraft since they realized that the field was changing and evolving on a continuous basis. In setting more specified rules Congress will almost certainly be ensuring that the FAA would be putting more limits on the expansion and evolution of model aircraft design and operation.