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Newsletter October 2013: Newsletter FLO – Aviation

Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at law Flieger Law office bvba

UNMANNED AIRCRAFT: UAS – RPAS: A CIVIL USE

I.
In the United States of America the legislator and regulator did proceed with the development of several widely applicable rules to integrate UAS into the national airspace system by September 30th, 2015 Federal Aviation Administration Modernization and Reform Act 2012 (FMRA).

FAA has cautiously granted authorization for public sector uses of UAS on a case-by-case basis and prohibited commercial users completely.

US congress said an ambitious schedule for the integration of UAS into the national airspace system and delays may now be inevitable. Key policy decisions are being made right now, despite the fact that full integration will probably not occur until after 2015.

II.
As we already described in our newsletter of June 2013, UAS are also called unmanned aerial vehicles (UAV’s) or drones, and are typically associated with military operations.

One can refer to the Predator, that became a synonym for military surveillance and targeted airstrikes.

UAS can range from the size of an insect to that of an commercial passenger aircraft. However UAS developed for non-military use will be well under 25 kilos. Public agencies such as NASA have already used UAS for scientific and weather research, and they have also been employed by local law enforcement, fire departments and the Department of Homeland Security for border patrols. Unlike most manned aircraft, UAS are:

– Light
– Cheap
– Environmentally friendly
– Capable of flying continuously for days
– Capable of being launched without airports.

Such advantages imply that the rent and the operation of UAS for a year for a local law enforcement is the same as the price to rent and operate a helicopter for a few hours.

One will also note that UAS can be used in conditions where it is too dangerous to fly manned aircraft.

Needless to say that UAS have commercial impacts. Potential commercial uses include a.o. security services, delivery services, geological mapping or remote exploration.

III.
American regulatory structure
In the United States the FAA is the federal agency responsible for ensuring that there is a safe and efficient air space system.

FAA has got the responsibility to integrate UAS into the national air space system. Needless to say that the versatility of UAS poses enormous regulatory challenges for a system designed for manned aircraft. Current regulations assume the existence of a pilot on board who can manage and control the aircraft, talk with air traffic controllers,…

In 2003 the FAA issued Certificates of Waiver or Authorizations to a select few public agencies such as DOD. For private entities the FAA issued experimental special airworthiness certificates. Those special airworthiness certificates allow the applicant to utilize UAS for research and developments, market survey and crew training objectives. They are not allowed for profit making operations.

Certificate of Waiver or Authorizations and the special airworthiness certificates are issued under exemptions from typical aircraft regulations and require case-by-case approval determinations. Technical reviews that can lead to measure delays should be considered.

Current case-by-case certification processes are time-consuming and inefficient. Delays and uncertainty in receiving approvals have caused business to scale back UAS investments.

IV.
Timeline
The Federal Aviation Administration Modernization and Reform Act of 2012 (FMRA) is devoted to administrative matters and airport authorization, as well as to the FAA’s upcoming Next Generation Air Transportation System. NextGen is a modernized, satellite-based air traffic management system that is being implemented to improve aviation operations in the United States.

It is stated by the act that by September 30th, 2015 the FAA must provide for the safe integration of civil unmanned aircraft systems into national airspace system…

In addition to this final deadline, FMRA sets several milestones between February 14th, 2012 ( when FMRA was signed), and September 30th, 2015. These milestones require the following actions by FAA (among others): (1) by May 12th, 2012, enter into agreements with public agencies to expedite approvals, and allow public agencies to operate UAS weighing under 4.4 pounds and otherwise meeting certain restrictions; (2) by August 12th, 2012, establish six test-range locations at which UAS could be operated and establish a process allowing for less restricted use of all UAS in the Arctic; (3) by November 12th, 2012, expedite the issuance of COAs to public agencies and provide guidance to facilitate public use of UAS; (4) also by November 12th, 2012, develop a comprehensive plan to safely accelerate civil UAS into the NAS; (5) by August 13th, 2013, publish a final rule governing operations of “small UAS” weighing under 55 pounds; and (6) by August 14th, 2014, issue a notice of proposed rulemaking on all other civil UAS.

V.
Status of the Federal Aviation Administration Modernization and reform act of 2012 (FMRA)
FAA met several deadlines imposed by the act. Federal Aviation Administration Modernization and Reform Act appointed an executive manager for its newly created UAS Integration Office. The Certificate of Waiver or Authorizations process has been issued by the FAA.

One will however consider that there are several delays which are attributable to several factors. F.i. the successful integration of civil UAS is dependent on concerted action on the part of other agencies, including DHS, which may not be prepared for the September 30th, 2015, deadline.

Secondly, another potential cause for delay is the increasing spotlight on FAA. The media and civil liberties and privacy advocacy groups such as the Electronic Frontier Foundation and the American Civil Liberties Union have voiced privacy and Fourth Amendment concerns.

The largest obstacle to UAS integration is probably a negative public perception of UAS, which appears to be based on a belief that UAS may be used as weapons or as a means to “spy” or intrude upon personal privacy in a manner that somehow skirts state and federal laws applicable to manned aircraft.

VI.
Future
It’s up to the FAA to provide a safe and efficient airspace system, and it undoubtedly faces significant challenges in accomplishing this mission while meeting the Federal Aviation Administration Modernization and Reform Act deadlines.

Other questions such as high insurance costs, civil liability, privacy, export and import controls, homeland security, lack of infrastructure and technological readiness continue to persist and cause delays. Future will show if FAA or other agencies will attempt to answer all of these questions. One will also notice that public education efforts are undertaken by industry organizations such as AUVSI, and many of the obstacles for UAS integration can probably be resolved. The privacy issue can be addressed in licenses, permits, contractual terms, or acquisition regulations affecting test site operators and UAS operators. Stakeholders in the UAS contribute ideas as FAA takes initial steps that will shape the future of civilian UAS used in the United States of America. Probably the European progress will learn from it.

 

For further information and comment, please contact Arthur Flieger at Flieger@fliegerlaw.com, Website: www.fliegerlaw.com, telephone: +32 3 238 77 66

 

Copyright A. Flieger
This publication is defined to provide accurate and authoritative information in regard to the subject matter covered. It is transmitted with the understanding that the publisher is not engaged in rendering legal, or any other professional services. If legal advice or other expert assistance is required, professional services should be sought. You can always contact A. Flieger at flieger@fliegerlaw.com.