The specifics of AIRR (Title IV, Subtitle B) do not appear to achieve the goals of the UAS Industry

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Ten sections, some old (codification of some of the provisions of the FMRA) and some new of HR 4441—the Aviation Innovation, Reform and Reauthorization Act (AIRR) attempt to redirect the FAA’s regulation of Unmanned Aerial Systems (or drones). Many changes, good and bad, are proposed in this legislation. Here are some broad observations about the proposed new statutory provisions:

  • Congress has established some new standards intended to refocus the regulation of UASs, but the discretion left to the FAA in implementation may defeat or defer the intention.
  • AIRR follows a trend of recent Hill legislation directed at the FAA. The bill defines or AUTHORIZES several specific initiatives. Unless Congress fully APPROPRIATES funds for those programs, little can be done.

faa airr drone

On a micro level, here are more specific comments on the more important sections of AIRR Title IV, Subtitle B.

Proposed §45503 articulates a risk-based approach for approving UAS operations and that SMS-like approach could craft “licenses” designed for the specific use rather than the on-sized-fits-all approach of proposed Part 107 and more like the EASA intended regime. The statute language identifies the criteria under which the FAA must issue permits under this risk-based rubric (§45503 (b)(c)):

  • An equivalent level of safety to other UASs.
  • Adequate insurance.
  • Kinetic energy of the UAS.
  • The location of the UAS operation in relationship to
    • structures,
    • congested area,
    • special-use airspace, and
    • persons on the ground.
  • Nature of the operation, including any 2 proposed risk mitigation.
  • The nature of the operation, including any proposed risk mitigation.
  • Any known hazard of the proposed operation and the severity and likelihood of such hazard.
  • Any known failure modes of the unmanned aircraft system, failure mode effects and criticality, and any mitigating features or capabilities.
  • The operational history of relevant technologies, if available.
  • Any history of civil penalties or certificate actions by the Administrator against the applicant seeking the permit.
  • Any other safety criteria the Administrator considers appropriate.

Omissions of night time operations, beyond line-of-sight and flights above 400’ may or may not mean that the FAA must approve. Perhaps it indicates that these unmentioned elements may be approved IF the applicant establishes procedures which adequately mitigate the specific risk. The omission could result in a debate with the FAA what is adequate mitigation. One §333 exemption application included a complete SMS review and the FAA did not comment on the risk mitigation justifying the grant.

There is some confusion between this new §45503 risk-based approach and the pending Part 107. §45503(j) states that the SMS analysis does not apply to the NPRM. Are two systems expected to coexist or it is expected that Part 107 will atrophy?

AIRR instructs the FAA to initiate the following new initiatives:

  • Development of the UTM system using a coalition.
  • Greater utilization of UAS test ranges.
  • Development of sense-and-avoid technology at UAS test ranges.
  • UAS detection and mitigation technology.
  • Encouraging use of UAS in fire-fighting.
  • A task force to examine privacy issues at DOT.

These are all marvelous ideas, but the House T&I Committee has to make sure that the funds are appropriated. Maybe UAS user fees? (joking)

faa airr drones

Another example of the Congress’ leadership is found in §441, which directs the FAA to establish “metrics” to assess “compliance with and effectiveness” of the registration of small unmanned aircraft systems. §441(b) directs the OIG to report on the FAA’s registration efficacy. That action will roll the difficult policy decision forward at least a year.

It would seem more appropriate to measure the safety impact of Part 29, but perhaps the answer to that question would be intuitive—NO. Congress then might have concluded to delete the applicability of the FAA’s legal basis for this Part 29 requirement for drones. If safety and encouraging compliance is the goal maybe Congress should have included a program to advance RFID or similar technology to the list of projects to be pursued by the FAA. Then the identification of a violating UAS would be easier for law enforcement on the ground. Safety would be advanced by forcing this technology.

The innovative UAS industry has posed challenges to the FAA and to Congress in defining the regulatory path which the legislators want to be followed. This is actually the second iteration of the legislative direction to the regulators; FRMA was first and the record of the agency’s compliance was hardly encouraging. Having learned from four years of implementing those strictures, it was reasonable to expect that the second chapter would have proscribed more precise terms. While the FAA should be granted some latitude, the drafting of AIRR Title IV, Subtitle B does not appear to be exact enough in its wording to achieve the goals which appear to motivate the Congress’ second cut.

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