All posts tagged 'Unmanned Aircraft Systems'

Drone Operators Beware: Drone Operations Are Subject To FAA Enforcement

So, you just purchased a fancy new drone (“unmanned aircraft system” or “UAS”) and you have been flying it around. About a week later, you receive a phone call from an FAA inspector in which the inspector tells you that you have been operating your drone in violation of the Federal Aviation Regulations (“FARs”). And now you are wondering what’s going on and what can you expect?

As you may be aware, the FAA considers both UAS and model aircraft subject to regulation (although two civil lawsuits are pending disputing the FAA’s position, at least as it relates to “model aircraft”). And with that regulation also comes the responsibility for compliance and enforcement of the FARs applicable to UAS and their operation.

With the proliferation of UAS operations within the United States, the FAA is concerned about the safety risk posed by UAS operations that may be contrary to the FARs. To address these concerns, the FAA has stated that it “will use its resources to educate UAS operators about regulatory compliance and, when appropriate, use administrative and legal enforcement action to gain compliance.”

How Does a UAS Operator Violate the Regulations?

What does this mean for UAS operators? It means the operator of a UAS is now subject to the FAA’s compliance and enforcement procedures in the event that the UAS operator violates applicable FARs or other statutory requirements when the operator is operating its UAS. For example, if the UAS is being operated for hobby or recreational purposes and the operation “endangers the safety of the National Airspace”, the FAA may cite the operator for violation of operational FARs such as §§ 91.13-91.15, 91.113, 91.126-135, 91.137-145, and 14 C.F.R. Part 73.

If the UAS is operated for commercial purposes (e.g. other than for hobby and recreational purposes) and the operator does not have FAA authorization for the operation in the form of a Certificate of Authorization (“COA”), an exemption or an airworthiness certificate and civil aircraft COA, then the FAA could cite the operator for lack of the appropriate authorizations such as pilot and aircraft certification as well as any applicable operational FARs. Or if the UAS operator does have a COA or exemption but operates contrary to the operational requirements associated with the authorizations then the operator could be cited for violating those requirements.

How Will the FAA Respond to Violations?

In order to determine what type of action the FAA will take to respond to violations by a UAS operator, the FAA will analyze

  • Whether the violation was a first-time and inadvertent violation;

  • Whether the violation involves repeated or intentional violations; and

  • Whether the safety risk resulting from the operation in terms of actual or potential endangerment to the National Airspace was low/medium/high.

If the UAS operator’s violation is a first-time, inadvertent violation and education or counseling by the FAA will ensure future compliance, then the case will be resolved as a “compliance action” using education or informal counseling. When a situation involves a first-time, inadvertent violation by a UAS operator that poses a low actual or potential risk to safety but the FAA determines compliance cannot be gained through education, then the FAA will pursue administrative action using a warning notice or letter of correction with possible remedial training. And if the FAA determines that a UAS operator’s violation poses a medium or high actual or potential risk to safety, then the FAA will pursue legal enforcement action through a certificate or civil penalty action.

So, when will a UAS operator’s conduct subject the operator to legal enforcement action? One example would be when a UAS operator’s conduct has a medium or high risk of endangering the operation of another aircraft or endangering persons or property on the ground. Another example would be when the UAS operator’s conduct involves repeated or intentional violations.

What Type of Sanction Will the FAA Impose?

Once the FAA decides that legal enforcement action is necessary or appropriate, it must next determine what sanction it should impose for the violation. The sanction will vary depending upon whether the operator is an individual or an entity and, if an entity, what size of entity. FAA Order 2150.3B, Appendix B (the sanction guidance table) identifies a range of sanctions.

If a UAS operator’s violation poses a medium actual or potential risk to safety then the FAA may seek to impose a civil penalty in the minimum to moderate range. Alternatively, a violation by a UAS operator that poses a high actual or potential risk to safety would likely result in assessment of a civil penalty in the maximum range. And, not surprisingly, if a UAS operator repeatedly or intentional violates the regulations then the FAA would impose a civil penalty in the applicable maximum range.

UAS operators who also hold airman certificates (e.g. a pilot, mechanic or other certificate) are at even greater risk. The FAA has stated “[f]or a deliberate, egregious violation by a certificate holder, regardless of whether the certificate holder is exercising the privileges of the certificate in connection with the violations associated with a UAS operation, certificate action, may be appropriate. Such certificate action may be in addition to a civil penalty.” So, not only could an airman operating a UAS be subject to a civil penalty, but his or her airman certificate could also be at risk if the FAA thinks the airman’s UAS violation was serious enough.

Conclusion

For the operator of the shiny new UAS I mentioned above, my advice is to proceed with caution. How the operator was operating the UAS as well as what the operator tells the FAA will have a significant impact upon how the FAA views the case and what action it feels is necessary to deal with any regulatory violations. Knowing what to expect can help UAS operators be prepared to respond to the FAA appropriately.

Drone Registration: Just In Time For The Holidays?

As you may know, the FAA is working on regulations that will govern the operation of unmanned aircraft systems ("UAS"), more commonly and colloquially referred to as "drones."  Unfortunately, it doesn't look like the FAA will have a final drone regulation ready until next year, at the earliest.

With the concern that thousands of drones will be flying off the shelves this Christmas, the concern and, in some circles panic, has gotten the FAA's attention. Despite its efforts to educate the public regarding drone do's and do not's, the FAA came to the conclusion that registration of drones would be a good idea. Why, you might ask? Well, first, since the FAA considers drones to be aircraft, and under 49 U.S.C. 44101(a) a person may only operate an aircraft in the National Air Space ("NAS") if it is registered with the FAA's aircraft registration branch. Additionally, and perhaps more in response to the anticipated post-holiday proliferation of drones, the FAA feels drone registration will "promote a culture of accountability while achieving a maximum level of compliance."

So, what did the FAA do? It formed a Task Force to develop recommendations for the creation of a drone registration process which the FAA would ultimately use to promulgate drone registration rules. The Task Force was comprised of a number of individuals from a variety of groups and organizations representing both aviation and non-aviation perspectives on drones. After meeting several times, on November 21, 2015 the Task Force issued recommendations to the FAA addressing (1) minimum requirements for drones that would need to be registered; (2) a recommended registration process; and (3) methods for proving registration and marking of drones. Let's take a closer look at these recommendations.

Minimum Requirements
The Task Force recommended that all drones with a maximum take-off weight under 55 pounds and above 250 grams (approximately ½ a pound) and that are operated outdoors in the NAS be subject to registration. The 250 gram minimum was apparently derived from safety studies and risk probability calculations. Drones weighing in excess of 55 pounds are already subject to registration with the FAA. Thus, if you don't intend to ever operate your drone outside, you wouldn't need to register. But that would probably only apply to a very small segment of drone operators. Otherwise, most drones would be subject to registration under the Task Force's recommendation.


The Registration Process

For those drones subject to registration, the registration process recommended by the Task Force would require the drone operator to complete, at no cost to the drone operator, an electronic registration form through the web or using a yet-to-be-developed application ("App"). The drone operator would need to provide the FAA with the operator's name and street address. The Task Force suggested that an operator could also provide its mailing address, email address, telephone number, and serial number of the operator's drones, but that disclosure of this additional information should not be mandatory.

According to the recommendations, a drone operator would not need to register each individual drone, although the web-portal or App that would be used for registration would allow registration of individual drones. Rather, the Task Force has recommended that the drone registration system be owner/operator based. Thus, the drone operator would receive a single registration number that would be used with all drones that the operator wants or needs to register. (Sounds like "drone operator registration" to me, not "drone registration").

The Task Force recommended that drone operators registering drones must be at least 13 years old to register, but drone operators are not subject to the U.S. citizenship requirements that apply to registration of other aircraft with the FAA. Unfortunately, the Task Force does not address how this age-limit impacts the ability of an individual younger than 13 to operate a drone in the NAS. Since the recommendation requires registration for operation in the NAS, this raises a question as to whether individuals younger than 13 will be permitted to operate a drone in the NAS at all.

Once the drone operator completes the registration process, the drone operator would then immediately receive an electronic certificate of registration, via download, or, if the drone operator requests a paper copy or registers directly with the FAA Registry, a paper copy will be sent to the drone operator. The drone operator would also receive a personal universal registration number for use on all drones owned by that drone operator (another reason this is more like "drone operator registration"). Also, the Task Force suggests that the drone operator would have to produce the certificate of registration for inspection anytime the operator is operating a drone in the NAS, although it doesn't suggest to whom the drone operator would need to produce the certificate of registration. Presumably the FAA, law enforcement, and, perhaps, others?

Marking The Drone

Finally, the Task Force recommended that drone operators would have to place the registration number on all applicable drones before the operator could operate the drones in the NAS. Alternatively, if the drone operator provided the FAA with the serial numbers for any of the operator's drones during the registration process, the drone operator would need to ensure that the serial number was actually affixed to each drone.

The Task Force suggests that the registration or serial number marking must be readily accessible and maintained in a way so that it will be legible and readable by someone visually inspecting the drone. And the marking does not necessarily need to be on the outside of the drone. If the registration or serial number is in an enclosed compartment, such as a battery compartment, the Task Force felt that would be considered “readily accessible” so long as the compartment can be accessed without the use of tool.

Conclusions

So, those are the Task Force's recommendations regarding drone registration. Are they binding upon the FAA? No. Will they become part of the FAA's final drone registration rulemaking? Maybe. Will they be the only requirements in the FAA's rulemaking? Probably not.  The FAA is under a lot of pressure on this issue, so it is possible we will see some rulemaking before Christmas.  But for now, we will have to wait and see.  Ho, Ho, Ho.

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