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FAA Reauthorization Act Passes and FAA Steps Up Enforcement Action Against UAS Operators

The past week or so has seen two big new developments having to do with drones:

1) The FAA came out with new enforcement guidance for drone operations that interfere with wildfires, law enforcement, or other emergency response efforts, and

2) Congress passed the FAA Reauthorization Act of 2018 on October 3, 2018, which has now been sent to the president for his signature.

New FAA Enforcement Guidance

The FAA's news release, titled “FAA Targets UAS Violators for Enforcement,” states that the FAA has changed its enforcement guidance, even for first time offenders, for drone operators who interfere with wildfire suppression efforts, law enforcement, or emergency response efforts.

From the news release:

Under FAA guidance, inspectors generally use non-enforcement methods, including education, for correcting unintentional violations that arise from factors such as flawed systems, simple mistakes, or lack of understanding. However, given the potential for direct and immediate interference with potentially life-saving operations where minutes matter, offenders will immediately be considered for enforcement actions. Enforcement actions can include revocation or suspension of a pilot certificate, and up to a $20,000 civil penalty per violation.

Civil penalties for these types of violations are in the $15,000-$20,000 range. Suspected criminal violations will be referred to the US Department of Transportation or the Office of the Inspector General. Violations will be prosecuted “regardless of the culpability of the operator.” This new guidance also applies to model aircraft operations.

I interpret this to mean that the FAA is basically saying “No more Mr. Nice Guy” when it comes to drone interference in firefighting, law enforcement, and emergency response. Please be aware of what is going on around you when you fly and stay away from public safety operations unless you are authorized to help and the public safety authorities are aware that you will be flying in the affected area.

FAA Reauthorization Act of 2018

As of October 4, 2018, the bill has been passed by both houses of Congress and sent to the President for his signature, at which point it will become law. The full bill is over 1200 pages long, about 110 pages of which relate specifically to UAS.

Changes to Rules for Model Aircraft Operations

One of the most controversial aspects of this (almost) new law is that it REPEALS Section 336, the Special Rule for Model Aircraft. Section 336 was an exception to the FAA's authority to regulate aircraft, in that it prohibited the FAA from regulating model aircraft as long as the model aircraft operator followed certain rules.

Section 349 of the new law allows a person to operate a "small unmanned aircraft without specific certification or operating authority" from the FAA ONLY IF the operation follows ALL of the following limitations (items underlined and in bold below are new and/or different from old Section 336):

  1. The aircraft is flown only for recreational purposes.

  2. The aircraft is flown according to a community-based organization's safety guidelines that are developed in coordination with the FAA.

  3. The aircraft is flown within the visual line of sight of the operator or a visual observer co-located with the operator.

  4. The aircraft does not interfere with and gives way to manned aircraft.

  5. In Class B, C, or D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport, the operator obtains prior authorization from the FAA before operations and complies with all airspace restrictions and prohibitions.

  6. In Class G airspace, the aircraft is flown no higher than 400 feet AGL and complies with all airspace restrictions and prohibitions.

  7. The operator has passed an aeronautical knowledge and safety test and maintains proof of passage to show law enforcement upon request.

  8. The aircraft is registered and marked and proof of registration is shown to law enforcement upon request.

Other Miscellaneous Provisions

  • Sec. 352: Within 30 days of the president signing the law, the FAA must publish on its website a "representative sample of the safety justifications offered by applicants for sUAS waivers and airspace authorizations that have been approved for each regulation waived or class of airspace authorized." Any proprietary or sensitive information, however, shall not be included.

  • Sec. 363: Establishes a $25,000 civil penalty for operating a drone that is equipped with a dangerous weapon.

  • Sec. 381: Establishes criminal penalties for knowingly operating a UAS within or above a restricted building or grounds. "Restricted building or grounds" generally means the White House, the Vice President's official residence, or buildings or areas where anyone protected by the Secret Service is located.

  • Sec. 382: Establishes criminal penalties for knowingly or recklessly operating a UAS in a way that interferes with a wildfire suppression.

  • Sec. 384: Establishes criminal penalties for knowingly or recklessly operating a UAS in a manner that interferes with manned aircraft or UAS operations too close to a runway.

  • Sec. 357, 358, 375, 378: Various provisions regarding privacy.

  • Section 375 makes it an unfair and deceptive trade practice for any commercial UAS operator to violate its own privacy policy. The Federal Trade Commission would therefore have authority to prosecute such violations.

  • Sec. 360: The GAO will prepare a report about how the FAA can institute fees to recover the costs of regulation and safety oversight of UAS and the provision of air navigation services to UAS.

  • Sec. 369: Railroad facilities will now be included as a type of critical infrastructure, making them eligible to petition the FAA for a prohibition on UAS operations in close proximity to them.

  • Sec. 371: The DOT shall assess the level of compliance with the FAA's aircraft registration requirement. I expect that this is setting the stage for an increase in enforcement of the aircraft registration requirement.

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