[Senate Hearing 114-195]
[From the U.S. Government Publishing Office]
S. Hrg. 114-195
UNMANNED AIRCRAFT SYSTEMS:
KEY CONSIDERATIONS REGARDING SAFETY, INNOVATION, ECONOMIC IMPACT, AND
PRIVACY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON AVIATION OPERATIONS, SAFETY, AND SECURITY
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MARCH 24, 2015
__________
Printed for the use of the Committee on Commerce, Science, and Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
David Schwietert, Staff Director
Nick Rossi, Deputy Staff Director
Rebecca Seidel, General Counsel
Jason Van Beek, Deputy General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel and Policy Director
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SUBCOMMITTEE ON AVIATION OPERATIONS, SAFETY, AND SECURITY
KELLY AYOTTE, New Hampshire, MARIA CANTWELL, Washington,
Chairman Ranking
ROGER F. WICKER, Mississippi AMY KLOBUCHAR, Minnesota
ROY BLUNT, Missouri RICHARD BLUMENTHAL, Connecticut
MARCO RUBIO, Florida BRIAN SCHATZ, Hawaii
TED CRUZ, Texas EDWARD MARKEY, Massachusetts
DEB FISCHER, Nebraska CORY BOOKER, New Jersey
JERRY MORAN, Kansas TOM UDALL, New Mexico
DAN SULLIVAN, Alaska JOE MANCHIN III, West Virginia
RON JOHNSON, Wisconsin GARY PETERS, Michigan
DEAN HELLER, Nevada
CORY GARDNER, Colorado
C O N T E N T S
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Page
Hearing held on March 24, 2015................................... 1
Statement of Senator Ayotte...................................... 1
Statement of Senator Cantwell.................................... 3
Statement of Senator Schatz...................................... 46
Statement of Senator Moran....................................... 48
Statement of Senator Markey...................................... 50
Statement of Senator Peters...................................... 52
Statement of Senator Booker...................................... 54
Statement of Senator Daines...................................... 56
Statement of Senator Heller...................................... 58
Witnesses
Margaret Gilligan, Associate Administrator for Aviation Safety,
Federal Aviation Administration................................ 5
Prepared statement........................................... 7
John B. Morris, Jr., Associate Administrator, Office of Policy
Analysis and Development, National Telecommunications and
Information Administration, U.S. Department of Commerce........ 11
Prepared statement........................................... 12
Gerald L. Dillingham, Ph.D., Director of Civil Aviation Issues,
U.S. Government Accountability Office.......................... 14
Prepared statement........................................... 15
John Villasenor, Nonresident Senior Fellow, The Brookings
Institution; National Fellow, The Hoover Institution, Stanford
University; Professor of Electrical Engineering and Public
Policy, University of California, Los Angeles.................. 25
Prepared statement........................................... 27
Paul Misener, Vice President for Global Public Policy, Amazon.com 36
Prepared statement........................................... 37
Jeff VanderWerff on behalf of the American Farm Bureau Federation 40
Prepared statement........................................... 42
Appendix
Air Line Pilots Association, International, prepared statement... 65
National Association of Mutual Insurance Companies, prepared
statement...................................................... 71
Response to written questions submitted to Margaret Gilligan by:
Hon. John Thune.............................................. 83
Hon. Roger F. Wicker......................................... 83
Hon. Dean Heller............................................. 84
Hon. Tom Udall............................................... 85
Response to written questions submitted to John B. Morris, Jr.
by:
Hon. John Thune.............................................. 86
Hon. Roger F. Wicker......................................... 87
Response to written questions submitted to Gerald L. Dillingham,
Ph.D. by:
Hon. John Thune.............................................. 87
Hon. Roger F. Wicker......................................... 88
Response to written questions submitted to John Villasenor by:
Hon. John Thune.............................................. 89
Hon. Roger F. Wicker......................................... 89
Response to written questions submitted to Paul Misener by:
Hon. John Thune.............................................. 90
Hon. Roger F. Wicker......................................... 90
Response to written questions submitted to Jeff VanderWerff by:
Hon. John Thune.............................................. 91
Hon. Roger F. Wicker......................................... 93
UNMANNED AIRCRAFT SYSTEMS:
KEY CONSIDERATIONS REGARDING
SAFETY, INNOVATION, ECONOMIC IMPACT, AND PRIVACY
----------
TUESDAY, MARCH 24, 2015
U.S. Senate,
Subcommittee on Aviation Operations, Safety, and
Security,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:32 p.m. in
room SR-253, Russell Senate Office Building, Hon. Kelly Ayotte,
Chairman of the Subcommittee, presiding.
Present: Senators Ayotte [presiding], Heller, Moran,
Daines, Cantwell, Schatz, Markey, Booker, and Peters.
OPENING STATEMENT OF HON. KELLY AYOTTE,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Ayotte. I want to call the hearing to order. I want
to welcome our witnesses here today, appreciate all of you
being here.
Before I offer any of our opening statements, news is still
coming in, but I want to acknowledge the tragedy in Europe this
morning. My thoughts go out to the friends and families of
those who were affected. We will be monitoring this as the
situation develops. I know all of us are very sad to hear about
this tragedy.
With that, appreciate all of you being here today. I want
to thank you because today's hearing represents the second of
an active spring schedule, including a series of hearings in
preparation for this year's Federal Aviation Administration
reauthorization effort, as the agency's authorization expires
in September of this year.
For years, unmanned aircraft systems, UAS, also sometimes
more popularly called ``drones,'' have been identified with
fighting terrorism abroad. I have appreciated the important
work that this technology has been used for in terms of
protecting our country.
Today's hearing is not about the military use of drones,
but the commercial, recreational, and public utilization of a
new technology that represents much promise.
There has been great interest in this technology and its
potential on the home front. For example, unmanned aircraft
have countless civil and public applications. Just to name a
few, they could assist in furthering precision in agricultural
methods. They can conduct routine operations like utility line
inspections that are expensive and sometimes dangerous when
individuals do those on their own. They could enhance law
enforcement and our homeland security when used appropriately,
in protection of civil liberties.
They could empower creative film makers. They could enable
faster news gathering. They could bring sports action even
closer to viewers. They may save lives in search and rescue
operations, such as are often required on New Hampshire's
legendary Mount Washington and some of the difficult rescue
missions that have been done in our White Mountain National
Forest.
There is a great deal of potential for unmanned aircraft in
America and reports estimate that UAS integration could yield
tens of thousands of manufacturing jobs and tens of billions of
dollars of positive economic impact, which all of us, of
course, welcome to our economy.
We want America to be the location of innovation, but at
the same time, we have to look at this new technology and
ability in balancing other important considerations that we
have in this country.
We cannot sacrifice safety, privacy, or prudent use of this
new technology consistent with existing laws that we have and
standards that we expect from people.
These principles are not mutually exclusive. This hearing
is an opportunity to learn more about how all of this fits
together. We have heard previously, as I scheduled this hearing
from eager operators that are worried we are falling behind
competing nations, that integration has been slow.
The FAA has granted dozens of exemptions allowing for the
commercial use of unmanned systems, but the list of those
waiting in line is still long. However, FAA announced a new
interim policy to speed up authorizations today, and
additionally, best practices and opportunities for testing UAS
technologies are incomplete.
The FAA's designated test sites have potential that has yet
been fully realized. As with any new technology, incorporation
requires thoughtful work and caution, particularly when it
involves our national airspace system, the most complex
aviation system in the world. There is a great potential here,
but it must be managed correctly.
The FAA's proposed rule published last month is a
meaningful step in that direction. Access is expanded, but the
proposed restrictions would not throw open the door unfettered
to the use of unmanned systems.
Potential operators may be disappointed by limitations
imposed by this proposed rule. However, it is important that
this rule is designed to be the next step, and that FAA is
looking ahead to identify future areas to enable UAS usage.
At any stage of UAS integration, a primary consideration
has to be safety. We have all seen reports of UAS being flown
recklessly, either near commercial aircraft, including the
airport I regularly use in Manchester, New Hampshire, in
dangerous proximity to people or landing in sensitive areas,
like we heard, the White House lawn.
No doubt as this fledgling industry expands, there will be
more growing pains, but thoughtful policymaking and industry
action can ensure the lowest risk to people and property.
In addition to safety rules, it is important to have an
ongoing dialogue about how unmanned aircraft will impact our
lives and our expectations. In furtherance of that objective,
the National Telecommunications and Information Administration
is engaging stakeholders to consider best practices to address
issues of privacy, transparency, and accountability.
There is no easy cure all, but having concerned parties at
the table developing ways to respect these considerations while
enabling utilization of the potentially transformative
technology is a worthy endeavor.
Mr. Morris from NTIA is here today to provide information
on this multi-stakeholder process.
It is no surprise, and I think we can all understand, that
one of the primary concerns that people have about the use of
these unmanned systems is privacy. Unlimited surveillance by
Government or private actors is not something that our society
is ready or willing or should accept.
Because UAS can significantly lower the threshold for
observation, the risk of abuse and the risk of abusive
surveillance increases, both from the Government side and also
in the way that private individuals can interact with each
other.
While there are existing legal frameworks that may respond
to some of these concerns, their application to unmanned
aircraft pushes the boundaries and requires more attention and
analysis.
I look forward to hearing from all of you today about how
you think we can best address these privacy concerns.
I also want to point out that unmanned aircraft are not
unique in their ability to observe. We do have other means
where people are using telephoto lenses to allow observation at
great distances, and other means of technology to observe other
people as well.
Here today, we want to hear about how we can best address
the privacy concerns with these unmanned systems.
This hearing is a chance to explore many of these important
questions. I look forward to hearing the testimony today, as
well as the comments of my colleagues, and I want to thank my
Ranking Member, Senator Cantwell, and turn it over to her.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Cantwell. Thank you, Madam Chair, and thank you for
scheduling this hearing. I, too, would like to start by
offering my condolences to the loved ones of passengers and
crew from Germanwings Flight 9525. Our thoughts and prayers are
with them in this incredible tragedy.
I would like to welcome our witnesses today, and thank them
for testifying on such an important subject as unmanned
aircraft systems, and certainly appreciate the depth and
breadth of the expertise that is represented on this panel
today.
I look forward to what each of you have to say about this
area, and I am reminded that two FAA bill discussions ago, I
think, we had similar discussions about defense and other
applications as it related to the FAA and unmanned aerial
vehicles.
At that point in time, a small company in my state was
trying to figure out how to move forward in cooperation with
the FAA, and today that company has more than 800 people.
This industry has continued to grow. Today, we are here to
talk about the integration of unmanned aerial systems that
require a balancing act between the safety of our skies, which
we cannot and will not compromise, and the many possibilities
enabled by unmanned systems, such as fighting wildfires,
inspecting bridges and railroads, pipelines, aiding farmers,
monitoring our borders, or simply delivering something as
important as the new Seattle Seahawk Jersey.
We all have heard from our constituents and local
businesses about innovative solutions to existing problems or
want to develop new markets using unmanned aerial system
technology.
Unfortunately, many of us have also heard from companies
who had to move research or testing overseas as they were
unable to receive the necessary permission from U.S. regulators
in a timely fashion.
American engineers and manufacturers will lead the way if
we give them the ability to conduct the research and
development, and I hope this panel can take the input here and
help us move forward on how we do that.
The small unmanned system rule proposed by the FAA in
February is an important step forward, but technological
advancements will not slow down while we determine how to
address the newest set of challenges.
For the most part, these challenges come in maintaining the
safety of our airspace, the safety of people and property on
the ground, and while the FAA's proposal includes a robust
analysis of commercial unmanned aerial systems, cost/benefits
and concerns, there are issues that remain about non-commercial
users in the recreational community.
The number of pilots reporting near misses with these
unmanned systems around airports at altitudes well above 400
feet speaks to the existing problem, which will only grow as
technology becomes less expensive and more widely available.
Some have suggested that we allow technological solutions
to meet the demands created by technological problems and
employ geo-fencing around airports and sensitive areas such as
the White House to prevent reckless behavior or unintentional
violations of airspace.
This approach would change the paradigm of aviation, which
has relied on self-regulation by pilots, but it is something I
am sure we will be exploring today.
There is also good news for safety because unmanned systems
have the potential to save lives by performing dangerous tasks,
as the Chairwoman was just mentioning. Virtually, all
industries, such as inspecting power lines or assessing damage
after a fire or the many natural disasters we have in the
Pacific Northwest, could all be aided by these technology
solutions.
According to the Department of Labor, 4,400 workers died on
the job in 2013, not all of these deaths could have been
prevented by unmanned systems, but we have a responsibility to
continue to improve worker safety, and some of these tasks
could be performed in other ways.
Many of the commercial unmanned systems that the FAA has
already approved are from uses that promote worker safety, so I
encourage the FAA to look at that in particular in this
rulemaking.
As the Chairwoman said, today the FAA just advanced an
interim policy. That interim policy, a blanket certification of
the Section 333, would streamline the process so that below 200
feet, it would be an easier process for people to proceed with
this technology. I applaud the FAA in that move.
While we await a final unmanned system rule, which I am not
sure how long that is going to take, I am sure we will have
questions about that, I want to make sure that we are keeping
that time-frame in mind. I do think American owned companies
are faced with competitive disadvantages because of the slow
pace of regulation.
Several governments across the world are already working
hand in hand with commercial unmanned system operators to find
solutions where businesses can thrive with this existing new
technology and also maintain the safety of airspace while they
operate. I want to make sure that the U.S. stays mindful of
that, and to being a home for this great technology.
Another subject that I look forward to discussing here is
the issue of privacy, including how this new technology will
fit into our existing privacy laws and how we can protect
private citizens and businesses from this unwanted
surveillance.
Some of the privacy debate is intertwined with larger
discussions about data protection and security as well as
tracking, so I hope we will be able to address these issues
today, and I believe this hearing is an important step towards
the FAA's authorization bill, which Chairwoman Ayotte and I are
working together with the Chairman of the full committee, and
Ranking Member Nelson.
I hope we can continue to move these bills forward. Thank
you.
Senator Ayotte. I want to thank Senator Cantwell and most
of all welcome our panel of witnesses today, and thank you for
being here and for taking the time to talk about this important
topic before our committee.
First, I would like to welcome Ms. Margaret Gilligan. Ms.
Gilligan is the Associate Administrator for Aviation Safety at
the Federal Aviation Administration. Thank you, Ms. Gilligan.
STATEMENT OF MARGARET GILLIGAN,
ASSOCIATE ADMINISTRATOR FOR AVIATION SAFETY,
FEDERAL AVIATION ADMINISTRATION
Ms. Gilligan. I would like to thank the Chair, Senator
Ayotte, and the Ranking Member, Senator Cantwell, and members
of the Subcommittee for the opportunity to be here today.
Before beginning my testimony, I, too, would like to
express our condolences to those who were affected by today's
tragic accident. Both the National Transportation Safety Board
and the FAA are standing by to assist in the investigation in
any way that we can.
We are here today to discuss the safe integration of
unmanned aircraft systems or UAS into the national airspace
system. This technology holds huge potential and can be applied
to a wide range of uses, but the technology also introduces new
risks into the aviation system.
As UAS technologies continue to advance at a rapid pace,
the challenge is to develop a regulatory framework that will
allow for continued innovation while ensuring the safety of
other users of the airspace and people and property on the
ground.
Since the 2012 FAA Reauthorization Act, we have made a lot
of progress, and we have learned a lot along the way. The FAA
put forward a comprehensive plan and a 5-year roadmap to safely
accelerate the integration of civil UAS. We have an aggressive
research program that leverages the assets of our interagency
partners and industry to overcome some of the largest barriers
to UAS integration, such as detect and avoid technologies and
standards.
The six UAS test sites that we selected in 2013 to aid in
UAS integration are fully operational, and have established
their research agendas.
The FAA Technical Center in Atlantic City, New Jersey is
receiving data from the test sites that will help answer some
of the key questions about how unmanned aircraft can interface
with air traffic control. The Tech Center is working closely
with the test sites to identify the data that will be most
useful to the FAA.
To facilitate commercial integration, we have issued over
60 exemptions under Section 333 of the 2012 Act. These
operations do not pose a risk to others operating in the NAS,
to the general public, or to the national security, and they
can be safely conducted by UAS without an Airworthiness
Certificate.
We have learned a lot in the process of approving these
exemptions, and we are working hard to increase efficiency and
decrease processing time for these requests.
The FAA has also issued restricted category type
certificates to two UAS so they can conduct flights for
commercial purposes in the Arctic. We have issued 176 Special
Airworthiness Certificates in the experimental category for
civil UAS operations. Thirty-four of those approvals are active
today. These approvals facilitate research and development,
crew training, and market surveys.
Last month, we proposed a rule that would allow routine use
of small unmanned aircraft systems for commercial purposes
without an Airworthiness Certificate or a Certificate of Waiver
or Authorization for the use of airspace.
The proposed rule would cover many potential small UAS
operations, and offers a flexible framework for the safe use of
these systems while accommodating future innovation in the
industry. With this proposal, the United States would have one
of the most flexible UAS regulatory frameworks in the world.
As UAS operations in the system increase, we are reaching
out to educate the public on the safe and responsible use of
UAS. The FAA provided model aircraft enthusiasts guidance on
the ``do's and don'ts'' of safe model aircraft operation.
We have partnered with members of the industry and the
modeling community to initiate the Know Before You Fly campaign
to promote safe and responsible UAS operations.
The FAA is also working to position law enforcement to
deter, detect, investigate, and report unauthorized or unsafe
operations. While our first action is to educate UAS operators
about compliance, when appropriate, we will and we have used
administrative or legal enforcement actions.
Issuing a final rule for small UAS operations is a top
priority for the FAA, but we are already looking beyond that
rulemaking to identify additional types of operations and what
technologies we may need to certify.
The FAA has consulted with the UAS Aviation Rulemaking
Committee for recommendations for enabling UAS operations with
the highest societal benefits. These recommendations will
result in additional focus areas that will become the
centerpiece of FAA's plans for UAS integration.
As the industry and system grow more complex, we must
ensure that our resources are directed to the areas with the
highest safety risks. We will need to expand collaborative data
driven processes with the UAS industry to improve safety and
streamline certification.
To reach these objectives, we are developing a new advisory
circular to inform the UAS industry how to use risk based
decisionmaking to establish certification criteria. This
advisory circular is essential for enabling the certification
of larger UAS for operation in the NAS.
The FAA is safely and steadily integrating UAS into the
NAS, and as we do, we continue to look to the future to make
sure the proper framework and standards are in place to
facilitate safe integration in an increasingly complex airspace
system.
We look forward to continuing to work with our partners in
Government, the aviation community, and this committee to make
steady progress toward that goal.
This concludes my statement, and I look forward to
answering your questions.
[The prepared statement of Ms. Gilligan follows:]
Prepared Statement of Margaret Gilligan, Associate Administrator for
Aviation Safety, Federal Aviation Administration (FAA)
Senator Ayotte, Senator Cantwell, Members of the Subcommittee:
Thank you for the opportunity to appear before you today to discuss
the status of the safe integration of Unmanned Aircraft Systems (UAS)
into the National Airspace System (NAS).
The FAA is safely and steadily integrating UAS into the largest,
most complex aviation system in the world. At the same time, UAS
technologies continue to advance at a rapid pace. Consequently, novel
applications emerge challenging us to develop a regulatory framework
that will allow for continued innovation while ensuring the safety of
other users of the airspace and people and property on the ground.
The FAA Modernization and Reform Act of 2012 (2012 Act) established
the framework for the integration of UAS into the NAS and tasked the
FAA with the safe integration of civil UAS into the system by October
2015. We have followed through with Congress' intent in the 2012 Act
and have completed milestones forming the foundation for future
integration. This includes long-term planning for the future of
integration, collaborative research and development with interagency
partners and with industry, and the establishment of test sites and
airspace for UAS research and development and testing.
Consistent with the authority in section 333 of the 2012 Act, the
FAA has issued 48 exemptions that allow for commercial activity in the
NAS in low-risk, controlled environments. An exemption may be granted
after a two-step process. First, the Secretary of Transportation
determines that, based on criteria set forth in the statute, the UAS
does not pose a risk to those operating in the NAS, the general public,
or national security and it can be safely operated without an
airworthiness certificate. The FAA will then use its exemption
authority to grant relief from FAA regulations that may apply. The
exemption process allows the FAA to evaluate each request to determine
what conditions are required to ensure that the operation will not
create an adverse impact on safety. Once an exemption is granted, the
applicant must then apply for a civil Certificate of Waiver or
Authorization (COA), an FAA authorization issued by the Air Traffic
Organization permitting the operator to use specific airspace to
conduct the proposed operation.
Last month, we proposed a rule that would allow small unmanned
aircraft systems to operate for commercial purposes without first
obtaining an airworthiness certificate, section 333 exemption, or a
COA. The proposal would cover many potential small UAS operations and
would offer a flexible framework for the safe use of small unmanned
aircraft, while accommodating future innovation in the industry. As
proposed, the United States would have one of the most flexible UAS
regulatory frameworks in the world.
In addition to near-term challenges, the FAA is looking ahead at
what is next, and how to coordinate near and long-goals while
leveraging available resources to address the most pressing risks to
the system.
Laying a foundation and taking the next step for safe integration
From the outset, we have worked closely and successfully with
government partners and industry stakeholders to achieve milestones put
forward by the Act. We developed two long-term planning documents, the
Comprehensive Plan and a five-year Roadmap, in coordination with other
governmental agencies and industry to safely accelerate the integration
of civil unmanned aircraft systems in the NAS. We have worked with
members of the UAS Executive Committee (ExCom) to leverage our
collective assets and conduct research and development to overcome some
of the largest barriers to UAS integration and ensure the continued
safety of the NAS. The FAA has collaborated with the National
Aeronautics and Space Administration (NASA) on studies advancing air
traffic control interoperability with the future UAS use of detect-and-
avoid (DAA) systems in controlled airspace. We continue to collaborate
with members of industry on flight tests to validate RTCA \1\ standards
for DAA systems as well as command and control radios. RTCA began work
on the standards at the request of the FAA in 2013 and they are
scheduled for completion in 2016. These standards will help to resolve
two of the difficult challenges facing the industry for integration of
UAS into the NAS. NASA, the FAA, and industry partners have
successfully demonstrated a proof-of-concept airborne DAA system and
prototype radios for use as command and control systems for UAS.
---------------------------------------------------------------------------
\1\ RTCA, Inc. is not-for-profit organization that serves as a
Federal advisory committee to the FAA. See http://www.RTCA.org.
---------------------------------------------------------------------------
In November 2012, the FAA released its Arctic Implementation Plan
to establish permanent operational areas and corridor routes in the
Arctic for the operation of small UAS as required by the 2012 Act. In
July 2013, a restricted category type certificate was issued to
Insitu's ScanEagle X200 and to AeroVironment's PUMA so that each UAS
could conduct Arctic flights for commercial purposes. In September
2013, ConocoPhillips began using Insitu's ScanEagle for its marine
mammal and ice surveys. In June 2014, BP began using AeroVironment's
Puma AE to survey its pipelines, roads, and equipment at Prudhoe Bay,
Alaska. Safety and operational data from the operators will be used to
develop UAS operations and performance standards. The FAA has also
issued 176 special airworthiness certificates in the experimental
category for civil UAS, 34 of which are currently active. Special
airworthiness certificates are issued for research and development,
crew training, and market surveys.
In December 2013, the FAA selected six test sites for non-federal
entities to test UAS technology and operations. By September 2014, all
of the UAS test sites, which were selected based on geographic and
climatic diversity, were operational and will help us gather
operational data to foster further integration. Flights of unmanned
aircraft have already been conducted at test sites, including flights
for research on agricultural and wildlife monitoring and on law
enforcement and emergency services support.
Once the test sites were ready, the FAA gave them priority for
their first COA. The test sites all qualified as public entities so
their initial operations were under the public aircraft operations
statute. In 2014, the FAA implemented a Designated Airworthiness
Representatives program which will permit test site designees to issue
experimental certificates for unmanned aircraft for research and
development, crew training, and market surveys. Test site designees
need only complete FAA training, available online or in person, to be
authorized to work within this new program. This new delegation
authority will improve access to the test sites by UAS manufacturers,
as well as help to decrease the workload on the FAA to process UAS
experimental certificates.
On February 15, 2015, the FAA announced the Small UAS Notice of
Proposed Rulemaking that would allow routine use of certain small UAS
in the NAS. The proposed rule would allow unmanned aircraft weighing up
to 55 pounds to operate without the need for an airworthiness
certificate if the operations take place under a set of parameters to
maintain safety including operating at speeds below 100 mph and below
500 feet in altitude. The proposal would allow operations during
daylight hours and would require the operator to be able to see the
unmanned aircraft at all times. Rather than requiring a private pilot
certificate, the proposal is for operators to obtain a FAA unmanned
aircraft operator's certificate by passing a written proficiency test.
Before each flight, operators would conduct a preflight inspection,
just as pilots do with manned aircraft today. The proposal does not
permit flight over any persons not directly involved in the operation
unless those persons are located under a covered structure. Also,
unmanned flights would not be allowed in Class A (18,000 feet & above)
airspace and, unless air traffic control gives permission, would be
restricted from operating in certain busy airspace or in airspace
otherwise restricted to most or all aviation users.
In April 2008, the FAA chartered the small UAS Aviation Rulemaking
Committee (ARC) that included members from a wide spectrum across the
aviation community, to provide recommendations on how small UAS could
be safely integrated into the NAS. In April 2009, the small UAS ARC
provided recommendations and the FAA began working on a rulemaking that
encompassed the widest possible range of small UAS operations. The
approach utilized a regulatory structure similar to the one used for
manned aircraft; small UAS operations that pose a low risk to people,
property, and other aircraft would be subject to less stringent
regulation, while small UAS operations posing a greater risk would be
subject to more stringent regulation to mitigate the greater risk.
Developing this broadly-scoped approach to the rulemaking effort took
significantly longer than anticipated, as the FAA had a desire to put
forth a proposal that struck the right balance between mitigating
safety risks, yet allowing for changing technology and innovation.
The framework for UAS integration established by the FAA
Modernization and Reform Act of 2012 enabled the FAA to take a more
stream-lined, risk-based approach to this rule, and to lay a strong
foundation that will facilitate safe integration and harness innovation
in this rapidly evolving landscape. The flexibility with regard to
airworthiness certification for small, low-risk operations that
Congress provided in section 333 of the 2012 Act, enabled us to proceed
with multiple incremental UAS rules rather than a single omnibus
rulemaking.
The public comment period on the proposed small UAS rule is
scheduled to close on April 24, 2015. Issuing a small UAS final rule is
one of the FAA's and the Department of Transportation's highest
priorities, however the timing to promulgate the final rule will depend
heavily on the quantity and substance of comments we receive.
Building on the foundation for safe integration of UAS
The FAA has issued nearly 50 exemptions under section 333 of the
2012 Act and will apply this experience to increase efficiencies and
decrease processing time.
The FAA continues to use information and data provided by test
sites and other operators, as well as that obtained from its own
research and development, or partnerships with other agencies or
industry, to continue to identify challenges, validate advanced
mitigation strategies, and explore opportunities to progress to the
next steps in integrating UAS into the NAS.
Test sites are providing data about the types and sizes of
aircraft, number of operations, number of flight hours, notable
operating parameters (for example, whether the flight was within or
beyond visual line of sight), and any incidents and accidents. Each
site has also established its own research agenda. A significant
portion of test site data analysis is being performed at the FAA
William J. Hughes Technical Center. A Data Lead from the Technical
Center, regional representatives, and research engineers, are visiting
each UAS test site to evaluate how data is captured and maintained,
ensure the integrity of data transferred to the FAA, and determine
whether additional data collection would facilitate meeting the FAA's
research objectives. The FAA invited public comment in the proposed
small UAS rule on how the agency can improve or further leverage its
test site program to encourage innovation and safe UAS integration into
the NAS.
Consistent with the direction in the agency's FY 2014
appropriation, the FAA is in the process of selecting a new UAS Center
of Excellence (COE) which will serve as another resource for
identifying solutions for existing and anticipated UAS-related issues.
We intend to forge a union of public sector, private sector, and
academic institutions to create a world-class consortium that will
identify solutions for existing and anticipated UAS-related issues. We
are evaluating multiple proposals and plan to establish the COE later
this year.
UAS have become increasingly available and affordable to the
average consumer, many of whom are not trained aviators. Manned
aircraft operators have reported close calls with UAS flying in the
airspace. The FAA is taking a proactive approach to educate the public
on the safe and responsible use of UAS. The FAA provided model aircraft
enthusiasts guidance on the ``do's and don'ts'' of safe model aircraft
operations. Last year, we partnered with members of industry and the
modeling community to initiate the ``Know Before You Fly'' educational
outreach campaign that provides UAS operators with the information they
need to fly safely and responsibly. The FAA's No Drone Zone initiative,
to raise public awareness of the FAA Notice to Airmen, prohibiting
unauthorized aircraft-including UAS-from flying over or near NFL
regular-and post-season football, games is a success. The No Drone Zone
video posted on YouTube prior to the 2015 Super Bowl has received over
57,000 hits, and most importantly, we did not receive any reports of
unauthorized activity in the restricted airspace over University of
Phoenix Stadium during the game.
Recognizing that local law enforcement is often in the best
position to respond quickly, the FAA issued guidance for these first
responders to deter, detect, investigate, and report unauthorized or
unsafe UAS operations. While our first action is to educate UAS
operators about statutory and regulatory compliance, when appropriate,
we will use administrative and legal enforcement action to gain
compliance.
Future vision and challenges
We are already looking beyond the small UAS rulemaking at what
comes next in terms of the types of operations expected, and what
technologies we may need to certify. The FAA has consulted with the UAS
ARC to determine the next areas on which to focus so as to enable those
UAS operations with the highest net societal benefits. These
recommendations are being assessed and will result in additional focus
areas that will become the centerpiece for FAA's strategic plans for
UAS integration.
As the aerospace industry and aviation system grow more complex, we
must ensure that our resources are directed to the areas with the
highest safety risk. We will need to expand collaborative, data-driven
processes with the UAS industry to improve safety and streamline
process in areas such as certification. We must meet challenges and
take advantage of opportunities.
To reach these objectives, a new advisory circular is being
developed to inform the UAS industry how to use a risk based decision-
making process to establish certification criteria. This advisory
circular is essential for enabling the certification of larger UAS for
operation in the NAS.
Another key initiative is one that the FAA is undertaking through a
Cooperative Research and Development Agreement with CNN to look at the
operations of UAS engaged in newsgathering and at flexible ways to
facilitate safe operation over people and in urban areas. These
activities will support the development of standards for small UAS
intended for use in populated areas. These standards are under
development by ASTM International.
The safe integration of UAS into the NAS will be facilitated by new
technologies being deployed as part of the Next Generation Air
Transportation System (NextGen). NAS Voice System (NVS), Data
Communications (Data Comm), and System Wide Information Management
(SWIM) will provide more information, flexibility, situational
awareness and a greater ability to communicate with NAS users.
The United States has the safest aviation system in the world, and
our goal is to integrate this new and important technology while
maintaining safety as our highest priority. We are committed to
ensuring that the United States continues to lead the world in the
development and implementation of aviation technology for safety. We
look forward to continuing to work with Congress as we continue to
integrate UAS into the NAS.
This concludes my statement. I will be happy to answer your
questions at this time.
Senator Ayotte. Thank you very much. I now would like to
introduce Mr. John Morris, Jr. Mr. Morris is the Associate
Administrator for the Office of Policy Analysis and Development
at the National Telecommunications and Information
Administration, or known as NTIA.
Thank you for being here, Mr. Morris.
STATEMENT OF JOHN B. MORRIS, JR., ASSOCIATE
ADMINISTRATOR, OFFICE OF POLICY ANALYSIS
AND DEVELOPMENT, NATIONAL TELECOMMUNICATIONS
AND INFORMATION ADMINISTRATION,
U.S. DEPARTMENT OF COMMERCE
Mr. Morris. Chairman Ayotte, Ranking Member Cantwell, and
members of the Subcommittee, thank you for the opportunity to
testify regarding NTIA's upcoming multi-stakeholder process to
enhance privacy, transparency, and accountability in the use of
commercial and private unmanned aircraft systems, or UAS.
NTIA is the principal advisor to the President on
communications and information policy issues. Our focus frankly
is not on aircraft systems but on increasing broadband access
and adoption, on expanding spectrum opportunities, and assuring
that the Internet remains an engine for continued innovation
and economic growth.
Increasingly, our Internet policy work has focused on
enhancing consumer privacy in order to strengthen the trust and
consumer adoption of new and evolving technologies, and the
critical method of developing flexible and effective policy in
the Internet era is through the multi-stakeholder approach.
In this model, stakeholders work together to reach
consensus on best practices and codes of conduct that can be
implemented in the marketplace. Stakeholders can include
private industry, consumer groups, academics, and others with
an interest in an area.
The hallmark of these processes is they are open,
transparent, and consensus based. NTIA's role in multi-
stakeholder processes is as a convener and facilitator of the
stakeholder discussions. We are not a regulator in this area,
and we do not substitute our judgment for those of the
stakeholders.
We have used and are using the multi-stakeholder approach
in a wide range of policy areas including privacy, online
copyright, and cybersecurity.
The February Presidential Memorandum on UAS calls on NTIA
to convene a multi-stakeholder process to bring industry, civil
society, technical experts, academics, and others together to
craft best practices that address the very important issues of
privacy, transparency, and accountability in the commercial and
private use of UAS.
In early March, NTIA issued a Request for Comment seeking
public input on the structure of the multi-stakeholder
engagement on UAS, and on the substantive issues that
stakeholders will discuss.
In the RFC, NTIA seeks input on questions that could frame
the multi-stakeholder discussions, including just as some
examples, what UAS enabled commercial services raises the most
pressing privacy challenges, what best practices would mitigate
privacy challenges while supporting innovation, what
information should commercial UAS operators make public and how
best should that information be made public.
How can UAS operators ensure that their operations comply
with the relevant policies and best practices, and importantly,
are there different policy issues raised by different aircraft
sizes and different commercial uses.
Comments on these and other questions are due on April 20,
and we expect to convene the first public meeting later this
spring. NTIA will use the comments it receives to help
establish an efficient and effective structure for the multi-
stakeholder engagement.
We courage all individuals and entities that have interest
in these important issues to submit comments and we will
certainly encourage them to participate in the multi-
stakeholder meetings as well.
We hope the stakeholders will work collaboratively to
identify safeguards that address the privacy, accountability,
and transparency challenges posed by commercial and private UAS
use.
NTIA is pleased to be able to contribute to the
Administration's efforts to ensure that the integration of UAS
under the national airspace takes into account not only public
safety and economic competitiveness, but also the privacy and
civil liberties issues that these systems may raise.
Thank you again for the opportunity to participate in
today's hearing, and I look forward to answering any questions
you may have.
[The prepared statement of Mr. Morris follows:]
Prepared Statement of John B. Morris, Jr., Associate Administrator,
Office of Policy Analysis and Development, National Telecommunications
and
Information Administration, U.S. Department of Commerce
Chairman Ayotte, Ranking Member Cantwell, members of the
Subcommittee, thank you for this opportunity to testify on behalf of
the National Telecommunications and Information Administration (NTIA)
regarding NTIA's process to enhance privacy, transparency, and
accountability regarding commercial and private use of unmanned
aircraft systems (UAS).
NTIA, part of the U.S. Department of Commerce, is the principal
advisor to the President on communications and information policy
issues. NTIA's programs and policymaking priorities include: expanding
broadband Internet access and adoption in America; expanding the use of
spectrum by all users; and ensuring that the Internet remains an engine
for continued innovation and economic growth.
In 2012, Congress recognized the potential wide-ranging benefits of
UAS operations within the United States in the FAA Modernization and
Reform Act (Public Law 112-95), which requires a plan to safely
integrate civil UAS into the National Airspace System (NAS) by 2015.
Our colleagues at the Federal Aviation Administration are leading the
Administration's development and implementation of the integration
plan, supporting safe and efficient UAS operations in the NAS. As
discussed below, NTIA is contributing to the Administration's efforts
by convening stakeholders to develop best practices that can enhance
privacy, transparency, and accountability in the operation of UAS,
thereby facilitating the adoption of this innovative technology
platform in the most responsible and efficient manner possible.
Compared to manned aircraft, UAS may lower operation costs and
augment existing capabilities while reducing risks to human life.
Estimates suggest the positive economic impact to U.S. industry of the
integration of UAS into the national airspace could be substantial and
likely will grow for the foreseeable future. UAS may be able to provide
a variety of commercial services less expensively than manned aircraft,
including aerial photography and farm management, while reducing or
eliminating safety risks to aircraft operators. In addition, UAS may be
able to provide some commercial services that would be impossible for
manned aircraft. For example, improvements in technology may allow
small UAS to deliver packages to homes and businesses where manned
aircraft cannot land, and high-altitude UAS could provide Internet
service to remote areas by remaining aloft for months at a time--far
longer than manned aircraft.
On February 15, 2015, President Obama issued the Presidential
Memorandum ``Promoting Economic Competitiveness While Safeguarding
Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned
Aircraft Systems.'' \1\ The Memorandum states: ``[a]s UAS are
integrated into the NAS, the Federal Government will take steps to
ensure that the integration takes into account not only our economic
competitiveness and public safety, but also the privacy, civil rights,
and civil liberties concerns these systems may raise.''
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\1\ Presidential Memorandum, ``Promoting Economic Competitiveness
While Safeguarding Privacy, Civil Rights, and Civil Liberties in
Domestic Use of Unmanned Aircraft Systems,'' (Feb. 15, 2015), available
at: http://www.whitehouse.gov/the-press-office/2015/02/15/presidential-
memorandum-promoting-economic-competitiveness-while-safegua.
---------------------------------------------------------------------------
The focus of the Memorandum is on UAS usage by the Federal
government, but it also contains a key provision focused on commercial
UAS use. The Memorandum calls on NTIA to bring industry, civil society,
technical experts, academics, and other stakeholders together to craft
best practices that mitigate potential privacy risks, while at the same
time promoting growth and innovation. UAS can enable aerial data
collection that is more sustained and pervasive than manned flight; at
the same time, UAS flights can reduce costs, provide novel services,
and promote economic growth. These attributes create opportunities for
innovation, but also pose privacy challenges regarding collection, use,
retention, and dissemination of data collected by UAS. We hope that
stakeholders will identify safeguards that address the privacy
challenges posed by commercial and private UAS use.
NTIA has an established track record of promoting the
multistakeholder approach to policy development both internationally
and domestically. Pursuant to President Obama's 2012 privacy blueprint,
NTIA has convened stakeholders to develop privacy codes of conduct for
mobile apps and commercial uses of facial recognition technology.\2\
The hallmark of these processes is that they are open, transparent, and
consensus-driven.
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\2\ The White House, ``Consumer Data Privacy in a Networked World:
A Framework for Protecting Privacy and Promoting Innovation in the
Global Digital Economy,'' (Feb. 23, 2012), available at: http://
www.whitehouse.gov/sites/default/files/privacy-final.pdf.
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On March 4, 2015, NTIA issued a Request for Comment (RFC) seeking
public input on the structure of a multistakeholder engagement on UAS,
and on the substantive issues stakeholders will discuss.\3\ In the RFC,
NTIA seeks input on questions that could frame the multistakeholder
discussions, including:
---------------------------------------------------------------------------
\3\ NTIA, ``NTIA Seeks Comment on Process for Developing Best
Practices for Commercial and Private Use of Unmanned Aircraft
Systems,'' (Mar. 4, 2015), available at: http://www.ntia.doc
.gov/press-release/2015/ntia-seeks-comment-process-developing-best-
practices-commercial-and-private-use-u.
Do some UAS-enabled commercial services raise unique or
---------------------------------------------------------------------------
heightened privacy issues?
What specific best practices would mitigate the most
pressing privacy challenges while supporting innovation?
What information should commercial UAS operators make
public?
How can UAS operators ensure that oversight procedures for
commercial and private UAS operation comply with relevant
policies and best practices?
Should discussions be divided to address the needs of
different aircraft sizes or commercial uses?
The RFC asks a number of additional detailed questions. Comments
are due on April 20, 2015, and NTIA expects to convene the first public
meeting later this spring. NTIA will use the comments it receives to
help establish an efficient, effective structure for the
multistakeholder engagement and to identify the substantive issues
stakeholders wish to discuss. We encourage all individuals and entities
with interests in these important issues to submit comments, and we
urge stakeholders to participate in the multistakeholder process.
In addition to privacy concerns, the NTIA-convened process also is
aimed at helping stakeholders develop best practices for the
transparency of UAS operations. Transparent operation might include
identifying the entities that operate particular UAS, the purposes of
UAS flights, and the data practices associated with UAS operations.
Transparent UAS operation can enhance privacy, increase consumer trust
in the technology, and bolster other values. Transparency can help
property owners identify UAS if an aircraft erroneously operates over
or lands on private property. Transparency can also facilitate reports
of UAS operations that cause nuisances or appear unsafe. We will
encourage stakeholders to identify mechanisms, such as standardized
physical markings or electronic identifiers, which could promote
transparent UAS operation and facilitate appropriate response to
illegal UAS operations.
The NTIA-convened process will also provide an opportunity for
stakeholders to build consensus around best practices for accountable
UAS operation. Accountability mechanisms can include rules regarding
oversight and privacy training for UAS pilots, as well as policies for
how companies and individuals operate UAS and handle data collected by
UAS. Accountability programs can also employ audits, assessments, and
internal or external reports to verify UAS operators' compliance with
their privacy and transparency commitments. Accountability mechanisms
can be implemented by companies, model aircraft clubs, UAS training
programs, or others. We hope that stakeholders will identify mechanisms
that can promote accountable UAS operation.
NTIA is pleased to play a role in the Administration's efforts to
ensure that the integration of UAS into the national airspace takes
into account not only our economic competitiveness and public safety,
but also the privacy, civil rights, and civil liberties concerns these
systems may raise.
Thank you again for the opportunity to participate in today's
hearing.
Senator Ayotte. Thank you, Mr. Morris. I would like to
welcome Dr. Gerald Dillingham here today. Dr. Dillingham is the
Director of Civil Aviation Issues at the U.S. Government
Accountability Office, better known as the GAO. Thank you, Dr.
Dillingham.
STATEMENT OF GERALD L. DILLINGHAM, Ph.D.,
DIRECTOR OF CIVIL AVIATION ISSUES,
U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Dr. Dillingham. Thank you, Madam Chairman, Ranking Member
Cantwell, members of the Subcommittee.
Since the early 1990s, UAS have operated on a limited basis
in the national airspace system, primarily supporting military
and border security. As the Chair and the Ranking Minority
Member said in their remarks, the list of potential uses is now
rapidly expanding, and the economic impact of UAS integration
into the NAS has been estimated to grow to more than $82
billion by 2025.
As Ms. Gilligan has testified, FAA has taken some steps
toward integration, including establishing the six test sites
and most recently issuing the NPRM for small UAS, but there is
more work to be done.
My statement today focuses on three areas for moving
forward with UAS integration. First, the status of the FAA
designated UAS test sites. Second, how other countries are
integrating UAS into the airspace for commercial purposes, and
third, critical next steps for integration.
Regarding the test sites, in December 2014, we reported
problems with the working relationship and communications
between FAA and the test sites. For example, some of the test
site operators reported that they were not receiving adequate
guidance from FAA on the kind of research needed to support
integration or how it should be reported.
More recently, officials in FAA and some test sites told us
that the situation had improved in part because both FAA and
the sites have made a dedicated effort to work together through
activities such as bi-weekly meetings and information sharing
about research needs.
Continued coordination will be important to ensuring that
the test sites produce the data that supports standard
development for UAS integration.
With regard to international UAS activities, our work shows
that a number of countries allow commercial UAS operations and
have done so for years. For example, Australia and Canada have
had UAS regulations in place for a decade or more.
My written statement contains a table with the regulatory
requirements among four selected countries and the U.S., and
showing common traits and differences. One key difference is
that in these other countries, they generally have a different
legal structure than the U.S., which may allow more flexibility
in the development of regulations.
Second, these countries have less general aviation and
commercial air traffic and a much less complex airspace, which
means there is a lower risk of UAS collisions with a manned
aircraft. However, if UAS were to be flying in the NAS today
under FAA's proposed rules, they would operate under
restrictions that are very similar to regulations in these four
countries, with some notable exceptions.
For example, Canada relies more heavily on a risk
management approach to allow more UAS commercial operations
than the U.S.
Going forward, FAA still needs to take several critical
steps to maintain the current momentum toward integration.
These steps including the following: first, FAA must develop a
detailed implementation plan that would identify the
activities, resources, and schedule which could also serve as a
means to hold FAA accountable.
Second, FAA should continue to process the comments it
receives on the NPRM and issue a final rule for small UAS
operations as soon as possible. To date, there have been more
than 1,000 comments submitted with thousands more expected. FAA
estimates this process will likely not be completed until late
2016 or early 2017.
Third, FAA must continue its efforts to make the test sites
useful, including working with the operators to identify
incentives to encourage greater activities at the sites.
Fourth, in concert with the UAS industry, FAA should
consider expanding the public education campaign on permissible
and safe UAS operations, which could begin to ease public
concerns about privacy and safety.
Finally, FAA will need to ensure that the integration of
UAS is closely coordinated with the development of the next
generation air transportation system.
Thank you, Madam Chair, Ranking Member Cantwell, and
members of the Subcommittee. That completes my oral statement.
[The prepared statement of Dr. Dillingham follows:]
Prepared Statement of Gerald L. Dillingham, Ph.D., Director, Physical
Infrastructure Issues, United States Government Accountability Office
Unmanned Aerial Systems
Status of Test Sites and International Developments
Chairwoman Ayotte, Ranking Member Cantwell, and Members of the
Subcommittee:
I appreciate the opportunity to testify on the Federal Aviation
Administration's (FAA) efforts to integrate unmanned aerial systems
(UAS)\1\ into the national airspace system (NAS). Since the early
1990s, unmanned aerial systems have operated on a limited basis in the
national airspace system primarily supporting public operations, such
as military and border-security operations.\2\ The list of potential
uses is now rapidly expanding to include a broad range of other
activities including assisting in search and rescue operations,
inspecting pipelines, photographing real estate, surveying land and
crops, disaster assistance, gathering news, and filming movies. The
term ``unmanned aerial system'' is used to recognize that UASs include
not only the airframe and power plant, but also associated elements
such as a ground control station and the communications links as shown
in figure 1. In fact, according to a 2013 report by a UAS industry
group, the economic impact of integrating UASs into the national
airspace system will total more than $13.6 billion in the first 3 years
of integration and grow to more than $82.1 billion from 2015 through
2025. However, without specific UAS regulations in place, authorized
UAS access to the national airspace can generally only occur after a
case-by-case safety review by the FAA. These approved operations are
generally limited to flights within the operator's ``line of sight'' at
a few specified locations.\3\ Under the FAA Modernization and Reform
Act of 2012, enacted in February 2012 (the 2012 Act), FAA issued a
Notice of Proposed Rulemaking (NPRM) for small UAS operations in
February 2015.\4\ However, FAA has stated that it will take 16 months
to address comments and issue a final rule.
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\1\ UAS--also known as ``unmanned aerial vehicles,'' ``unmanned
aircraft systems,'' ``remotely piloted aircraft,'' ``unmanned
aircraft,'' or ``drones''--refer to aircraft that operate by following
commands from pilot-operated ground control stations and pre-programmed
routes.
\2\ GAO, Unmanned Aerial Systems: Department of Homeland Security's
Review of U.S. Customs and Border Protection's Use and Compliance with
Privacy and Civil Liberty Laws and Standards, GAO-14-849R (Washington,
D.C.: Sept. 30, 2014).
\3\ NASA and the Department of Homeland Security--U.S. Customs and
Border Protection operate large UAS beyond visual line-of-sight
operations with prior approval from FAA.
\4\ FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95,
Sec. Sec. 331-335, 126 Stat. 11 (2012).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
While FAA continues to make incremental progress on integration,
questions have been raised about whether the six UAS test sites
established by FAA, as required by the 2012 Act, are being used
effectively enough to help FAA meet its UAS research needs. FAA
requires safety and operations data from UAS operators for continued
development of standards supporting the safe and routine integration of
UASs. Furthermore, questions have been raised as to whether other
countries are making greater progress toward allowing commercial UAS
operations, and may outpace efforts made in the United States. Finally,
the safety of the national airspace is threatened on nearly a daily
basis by UAS operating without approval. The FAA has reported that
there have been 25 incidents a month involving unmanned aircraft. These
incidents have included UASs operating dangerously close to commercial
aircraft, and numerous instances of UASs flying over professional and
college football stadiums full of people.
My statement today provides preliminary observations on: (1) the
status of activity at FAA's designated UAS test sites, (2) how other
countries have progressed toward UAS integration into their airspace
for commercial purposes, and (3) the challenges for FAA going forward.
My statement is based on our ongoing study for this committee and
the House Committee on Transportation and Infrastructure and its
subcommittee on Aviation on UAS integration into the national airspace
system. We expect to issue this report later this year. We conducted
the ongoing work from January 2014 through March 2015. For this
testimony, we reviewed FAA's Comprehensive Plan \5\ and Roadmap for UAS
integration.\6\ To identify the status of activity at the UAS test
sites, we reviewed documents from each of these six test sites where
FAA has recently allowed UAS operations and spoke with officials from
all six of the test sites. To identify how other countries have
progressed toward UAS integration for civil and commercial purposes, we
spoke with the International Civil Aviation Organization (ICAO) and
other stakeholders familiar with the UAS activities currently occurring
in other countries.\7\ We also reviewed relevant empirical literature
and media reports to obtain information and perspectives on current
developments and future challenges, and spoke with representatives from
aviation authorities from Australia, Canada, France, and the United
Kingdom, to understand their regulations related to UASs and associated
activities. To identify key challenges to UAS integration, we conducted
semi-structured interviews with FAA officials and a wide range of
stakeholders, including representatives of Federal agencies such as
Department of Defense, National Aeronautics and Space Administration
(NASA), test site officials, research organizations, academics, and
industry experts.
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\5\ JPDO, Unmanned Aircraft Systems (UAS) Comprehensive Plan: A
Report on the Nation's UAS Path Forward (Washington, D.C.: September
2013).
\6\ FAA, Integration of Civil Unmanned Aircraft Systems (UAS) in
the National Airspace System (NAS) Roadmap: First Edition--2013
(Washington, D.C.: November 2013).
\7\ ICAO is the international body that, among other things,
promulgates international standards and recommended practices in an
effort to harmonize global aviation standards.
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The work this statement was based on was performed in accordance
with generally accepted government auditing standards. Those standards
require that we plan and perform the audit to obtain sufficient,
appropriate evidence to provide a reasonable basis for our findings and
conclusions based on our audit objectives. We believe that the evidence
obtained provides a reasonable basis for our findings and conclusions
based on our audit objectives.
Background
FAA has authority to authorize all UAS operations in the national
airspace--military; public (academic institutions and federal, state,
and local governments including law enforcement organizations); and
civil (non-government including commercial). Currently, since a final
rulemaking is not completed, FAA only allows UAS access to the national
airspace on a case-by-case basis. FAA provides access to the airspace
through three different means:
Certificates of Waiver or Authorization (COA): Public
entities including FAA-designated test sites may apply for COA.
A COA is an authorization, generally for up to 2 years, issued
by the FAA to a public operator for a specific UAS activity.
Between January 1, 2014 and March 19, 2015 FAA had approved 674
public COAs.
Special Airworthiness Certificates in the Experimental
Category (Experimental Certificate): Civil entities, including
commercial interests, may apply for experimental certificates,
which may be used for research and development, training, or
demonstrations by manufactures.
Section 333 exemptions: Since September 2014, commercial
entities may apply to FAA for issued exemptions under section
333 of the 2012 Act, Special Rules for Certain Unmanned
Aircraft Systems. This exemption requires the Secretary of
Transportation to determine if certain UASs may operate safely
in the national airspace system prior to the completion of UAS
rulemakings. FAA has granted such exemptions to 48 of 684 total
applications (7 percent) from companies or other entities
applying under section 333. These companies may apply to fly at
their own designated sites or the test sites.\8\
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\8\ As of March 19, 2014.
While limited operations continue through these means of FAA
approval, FAA has been planning for further integration.
In response to requirements of the 2012 Act, FAA issued the UAS
Comprehensive Plan and the UAS Integration Roadmap, which broadly map
the responsibilities and plans for the introduction of UAS into the
national airspace system. These plans provide a broad framework to
guide UAS integration efforts. The UAS Comprehensive Plan described the
overarching, interagency goals, and approach and identified six high-
level strategic goals for integrating UAS into the national
airspace.\9\ The FAA Roadmap identified a broad three-phase approach to
FAA's UAS integration plans--Accommodation, Integration, and
Evolution--with associated priorities for each phase that provide
additional insight into how FAA plans to integrate UAS into the
national airspace system. This phased approach has been supported by
both academics and industry. FAA plans to use this approach to
facilitate further incremental steps toward its goal of seamlessly
integrating UAS flight into the national airspace.
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\9\ The six goals address small UAS (under 55 pounds) operating
within visual line-of-sight, larger UASs and operations beyond visual
line-of-sight, planning and managing growing automation capabilities
through research, and the opportunity for the U.S. to remain world
leaders in UAS technology.
Accommodation phase: According to the Roadmap, in the
accommodation phase, FAA will apply special mitigations and
procedures to safely facilitate limited UAS access to the
national airspace system in the near-term. Accommodation is to
predominate in the near-term with appropriate restrictions and
constraints to mitigate any performance shortfalls. UAS
operations in the national airspace system are considered on a
case-by-case basis. During the near-term, R&D is to continue to
identify challenges, validate advanced mitigation strategies,
and explore opportunities to progress UAS integration into the
---------------------------------------------------------------------------
national airspace system.
Integration phase: The primary objective of the integration
phase is establishing performance requirements for UAS that
would increase access to the NAS. During the mid-to far-term,
FAA is to establish new or revised regulations, policies,
procedures, guidance material, training, and understanding of
systems and operations to support routine NAS operations. FAA
plans for the integration phase to begin in the near-to mid-
term with the implementation of the small UAS rule and is to
expand the phase further over time (mid-and far-term) to
consider wider integration of a broader field of UASs.
Evolution phase: In the evolution phase, FAA is to work to
routinely update all required policy, regulations, procedures,
guidance material, technologies, and training to support UAS
operations in the NAS operational environment as it evolves
over time. According to the Roadmap, it is important that the
UAS community maintains the understanding that the NAS
environment is not static and that many improvements are
planned for the NAS over the next 13--15 years. To avoid
obsolescence, UAS developers are to maintain a dual focus:
integration into today's NAS while maintaining cognizance of
how the NAS is evolving.
In February 2015, FAA issued a Notice for Proposed Rulemaking for
the operations of small UASs--those weighing less than 55 pounds--that
could, once finalized, allow greater access to the national
airspace.\10\ To mitigate risk, the proposed rule would limit small
UASs to daylight-only operations, confined areas of operation, and
visual-line-of-sight operations. FAAs release of this proposed rule for
small UAS operations started the process of addressing additional
requirements of the 2012 Act. See table 1 for a summary of the rule's
major provisions.
---------------------------------------------------------------------------
\10\ 80 Fed. Reg. 9544 (Feb. 23, 2015).
------------------------------------------------------------------------
Table 1.--Summary of Major Categories and Selected Provisions of
Proposed Rule for Small Unmanned Aerial Systems Operations
------------------------------------------------------------------------
Category Summary of proposed requirements
------------------------------------------------------------------------
Operational limitations Must weigh less than 55 lbs (25
kg).
Must operate within visual line-
of-sight only.
May not operate above any
persons not directly involved in the
operation.
Must only operate during the
day, no nighttime operations.
Maximum airspeed of 100 mph.
Maximum altitude of 500 feet
above ground level.
Must not operate carelessly or
recklessly.
Establishment of a micro-
unmanned aerial system (UAS) category
(4.4 lbs or less).
Must yield right-of-way to other
aircraft, manned or unmanned.
------------------------------------------------------------------------
Operator certification and Must pass a knowledge test
responsibilities initially and every 24 months.
Must be vetted by the
Transportation Security Administration.
Must obtain an unmanned-aircraft
operator's certificate with a small UAS
rating.
------------------------------------------------------------------------
Aircraft requirements FAA airworthiness certification
not required, but operator must inspect
the UAS to ensure that it is in a
condition for safe operation.
Aircraft markings required, if
aircraft is too small to display
markings in standard size, then the
aircraft simply needs to display
markings in the largest practicable
manner.
------------------------------------------------------------------------
Model aircraft Would not apply to model
aircraft that satisfy all of the
criteria specified in section 336 of
Public Law 112-95.
Would codify the FAA's
enforcement authority by prohibiting
model aircraft operators from
endangering the safety of the national
airspace system.
------------------------------------------------------------------------
Source: Notice of Proposed Rulemaking for small UAS./GAO-15-486T
FAA has also met additional requirements outlined in the 2012 Act
pertaining to the creation of UAS test sites. In December 2013, FAA
selected six UAS test ranges.\11\ According to FAA, these sites were
chosen based on a number of factors including geography, climate,
airspace use, and a proposed research portfolio that was part of the
application. All UAS operations at a test site must be authorized by
FAA through either the use of a COA or an experimental certificate. In
addition, there is no funding from FAA to support the test sites. Thus,
these sites rely upon revenue generated from entities, such as those in
the UAS industry, using the sites for UAS flights.
---------------------------------------------------------------------------
\11\ The test sites are located at the University of Alaska
(includes test ranges in Hawaii, Oregon, and Iceland); State of Nevada;
New York's Griffiss International Airport (includes test range
locations in Massachusetts); North Dakota Department of Commerce; Texas
A&M University-Corpus Christi; and Virginia Polytechnic Institute and
State University (Virginia Tech) (includes test ranges in Maryland,
partnered with the University of Maryland, and New Jersey, partnered
with Rutgers University).
---------------------------------------------------------------------------
Foreign countries are also experiencing an increase in UAS use, and
some have begun to allow commercial entities to fly UASs under limited
circumstances. According to industry stakeholders, easier access to
testing in these countries' airspace has drawn the attention of some
U.S. companies that wish to test their UASs without needing to adhere
to FAA's administrative requirements for flying UASs at one of the
domestically located test sites, or obtaining an FAA COA. It has also
led at least one test site to partner with a foreign country where,
according to the test site operator, UAS test flights can be approved
in 10 days.
FAA's Six Test Sites Are Operational and Beginning to Conduct UAS
Flights
Since being named in December 2013, the six designated test sites
have become operational, applying for and receiving authorization from
FAA to conduct test flights. From April 2014 through August 2014, as we
were conducting our ongoing work, each of the six test sites became
operational and signed an Other Transaction Agreement with FAA.\12\ All
flights at a test site must be authorized under the authority of a COA
or under the authority of an experimental certificate approved by FAA.
Since becoming operational in 2014 until March 2015, five of the six
test sites received 48 COAs and one experimental certificate in support
of UAS operations resulting in over 195 UAS flights across the five
test sites. These flights provide operations and safety data to FAA in
support of UAS integration. While there are only a few contracts with
industry thus far, according to test site operators these are important
if the test sites are to remain operational. Table 2 provides an
overview of test-site activity since the sites became operational.
---------------------------------------------------------------------------
\12\ Other Transaction Agreements (OTA) are administrative vehicles
used by the agency that take many forms and are generally not required
to comply with Federal laws and regulations that apply to contracts,
grants, or cooperative agreements. OTAs enable the Federal government
and others entering into these agreements to freely negotiate
provisions that are mutually agreeable.
------------------------------------------------------------------------
Table 2.--Overview of Five Designated Test Sites' Activities since
Becoming Operational
------------------------------------------------------------------------
Type of test site activity Overview as of March 2015
------------------------------------------------------------------------
Total Unmanned Aerial System Over 195 total UAS flights
(UAS) Flights at FAA One test site has had over 80
designated test sites UAS flights since becoming operational.
------------------------------------------------------------------------
Number and types of Five test sites hold 48 COAs.
certificate of waiver or One test sites held 4 broad
authorizations (COA) area COAs allowing flights over nearly
received the entire state by specific aircraft.
Four other test sites were
seeking COAs for large flight ranges
that could apply to any aircraft.
------------------------------------------------------------------------
Number of special One test site has reviewed and
airworthiness certificate approved an aircraft to operate under an
for experimental aircraft experimental certification.
Three test sites have certified
representatives affiliated with the test
site to review and approve and aircraft
for experimental certification.
------------------------------------------------------------------------
Signed contracts with UAS Five test sites have 22
companies contracts with industry groups and
companies to conduct UAS operations at
their respective test site.
These contracts are to allow the
test sites to generate revenue.
All test sites have additional
negotiations with companies underway.
------------------------------------------------------------------------
Source: FAA designated test site officials./GAO-15-486T
Note: FAA designated six test sites but we did not get a response from
the Texas A&M University--Corpus Christi test site. We do believe this
test site has received COA's and conducted test flights.
FAA officials and some test sites told us that progress has been
made in part because of FAA's and sites' efforts to work together. Test
site officials meet every two weeks with FAA officials to discuss
current issues, challenges, and progress. According to meeting minutes,
these meetings have been used to discuss many issues from training for
designated airworthiness representatives to processing of COAs. In
addition, test sites have developed operational and safety processes
that have been reviewed by FAA. Thus, while FAA has no funding directed
to the test sites to specifically support research and development
activities, FAA dedicates time and resources to supporting the test
sites, and FAA staff we spoke to believe test sites are a benefit to
the integration process and worth this investment.\13\
---------------------------------------------------------------------------
\13\ FAA and several other Federal agencies and private sector
stakeholders also have research and development efforts under way to
develop technologies that are designed to allow safe and routine UAS
operations. Furthermore, in support of research and development efforts
in the future, FAA solicited for bids for the development of a Center
of Excellence. The Center of Excellence is expected to support academic
UAS research and development.
---------------------------------------------------------------------------
According to FAA, its role is to ensure each test site sets up a
safe-testing environment and to provide oversight that guarantees each
test site operates under strict safety standards. FAA views the test
sites as a location for industry to safely access the airspace. FAA
told us it expects to collect data obtained from the users of the test
ranges that will contribute to the continued development of standards
for the safe and routine integration of UASs. The Other Transaction
Agreement between FAA and the test sites defines the purpose of the
test sites as research and testing in support of safe UAS integration
into the national airspace. FAA and the test sites have worked together
to define the role of the test sites and see that both the FAA and the
test sites are effectively supporting each other and the goal of the
test sites, we will continue to examine this progress and will report
our final results late this year.
Other Countries Have Progressed with UAS Integration to Allow some
Level of Commercial UAS Use
As part of our ongoing work, we identified a number of countries
that allow commercial UAS operations and have done so for years. In
Canada and Australia, regulations pertaining to UAS have been in place
since 1996 and 2002, respectively. According to a MITRE study, the
types of commercial operations allowed vary by country.\14\ For
example, as of December 2014, Australia had issued over 180 UAS
operating certificates to businesses engaged in aerial surveying,
photography, and other lines of business. In Japan, the agriculture
industry has used UASs to apply fertilizer and pesticide for over 10
years.\15\ Furthermore, several European countries have granted
operating licenses to more than 1,000 operators to use UASs for safety
inspections of infrastructure, such as rail tracks, or to support the
agriculture industry.\16\ The MITRE study reported that the speed of
change can vary based on a number of factors, including the complexity
and size of the airspace and the supporting infrastructure. In
addition, according to FAA, the legal and regulatory structures are
different and may allow easier access to the airspace in other
countries for UAS operations. While UAS commercial operations can occur
in some countries, there are restrictions controlling their use.
---------------------------------------------------------------------------
\14\ MITRE Corporation, UAS International Harmonization: A
Comparative Policy Assessment of Selected Countries, Outcome 6, Output
4 (Fiscal Year 2014).
\15\ According to the MITRE study, Japan's regulations also allow
UAS operations for agricultural purposes with UASs weighing less than
220 pounds.
\16\ In support of developing common standards across Europe, the
United States, and other areas of the world, standards-making
organizations from around the world have memorandums of understanding
supporting their relationships with other standards-making
organizations.
---------------------------------------------------------------------------
We studied the UAS regulations of Australia, Canada, France, and
the United Kingdom and found these countries impose similar types of
requirements and restrictions on commercial UAS operations. For
example, all these countries except Canada require government-issued
certification documents before UASs can operate commercially.\17\ In
November 2014, Canada issued new rules creating exemptions for
commercial use of small UASs weighing 4.4 pounds or less and from 4.4
pounds to 55 pounds. UASs in these categories can commercially operate
without a government-issued certification but must still follow
operational restrictions, such as a height restriction and a
requirement to operate within line of sight. Transport Canada officials
told us this arrangement allows them to use scarce resources to
regulate situations of relatively high risk. In addition, each country
requires that UAS operators document how they ensure safety during
flights and that their UAS regulations go into significant detail on
subjects such as remote pilot training and licensing requirements. For
example, the United Kingdom has established ``national qualified
entities'' that conduct assessments of operators and make
recommendations to the Civil Aviation Authority as to whether to
approve that operator.
---------------------------------------------------------------------------
\17\ UASs lighter than 55 lbs. are exempt from Canada's requirement
to obtain a Special Flight Operations Certificate. Those heavier than
55 lbs or otherwise not complying with the exemption requirements must
obtain a Special Flight Operations Certificate.
---------------------------------------------------------------------------
If UASs were to begin flying today in the national airspace system
under the provisions of FAA's proposed rules, their operating
restrictions would be similar to regulations in these other four
countries. However, there would be some differences in the details. For
example, FAA proposes altitude restrictions of below 500 feet, while
Australia, Canada, and the United Kingdom restrict operations to
similar altitudes. Other proposed regulations require that FAA certify
UAS pilots prior to commencing operations, while Canada and France do
not require pilot certification. Table 3 shows how FAA's proposed rules
compare with the regulations of Australia, Canada, France, and the
United Kingdom.
----------------------------------------------------------------------------------------------------------------
Table 3.--Comparison of Regulatory Requirements for Commercial Unmanned Aerial Systems Operations in Select
Countries
----------------------------------------------------------------------------------------------------------------
Regulatory
requirements for United States Australia Canada France United Kingdom
commercial UASs (proposed)
----------------------------------------------------------------------------------------------------------------
Weight < 55 0.2 <4.4 <4.4 15
classifications 0.2 < 331 4.4 <> 55 4.4 > 55 15 < 44
(in pounds) > 331 a >55 55 > 331 44 <> 331
331 331
----------------------------------------------------------------------------------------------------------------
Government issued Unmanned aircraft Unmanned aerial None; meet Authorization Permission from
documents for operator system (UAS) specified Civil Aviation
airspace access certificate operator conditions for Authority
certificate < 55 lbs.b
----------------------------------------------------------------------------------------------------------------
Pilot training or Certification c Certification Training Operator Certification e
certification certifies
required pilot
qualification d
----------------------------------------------------------------------------------------------------------------
Pilot proficiency Biennially Annually Upon None f Noneg
check application
----------------------------------------------------------------------------------------------------------------
Airworthiness No No, for < 331 lbs. No, for < 55 No < 55 lbs. Depends upon
certification lbs. the weight of
required the
UAS h
----------------------------------------------------------------------------------------------------------------
Beyond line of No Not specifically No No j No k
sight operations addressed in
allowed by regulation i
regulation
----------------------------------------------------------------------------------------------------------------
Restrictions from May operate over Unless 5.75 miles Do not allow Limited, based
congested or congested area specifically overfly on case-by-case
built-up area but authorized must review
not over any fly
persons not at sufficient
involved height
with the where, if any of
operations its
components fail,
it
would be able to
clear the area.
----------------------------------------------------------------------------------------------------------------
Altitude 500 ft. Unless 300 ft. if < 4.4 492 ft. 400 ft.
restrictions specifically lbs.
authorized, 400 500 ft. if 4.4
ft. lbs
<> 55 lbs.
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of UAS regulations in foreign countries./GAO-15-486T
Note: In certain instances, UASs may operate outside the requirements shown in this table with prior approval
from the cognizant authority, e.g., the civil aviation authority or air traffic control. This table shows
regulatory requirements for the UAS category used most frequently in each country.
a Regulations for large fixed-wing UASs (exceeding 331 lbs.) apply to helicopters or rotary wing UASs heavier
than 221 pounds.
bOperators must have certain documents available, including the exemption regulation and proof of liability
insurance.
cPilot must pass a test at an FAA-approved testing center.
dOwner of the UAS must self-certify that the UAS pilots have the required training.
ePilot qualifications are determined on a case-by-case basis based a number of factors including pilot
experience and aircraft weight. Permission is not required for aircraft 44 lbs. or less being flown within
direct unaided line of sight and away from people, property, and congested areas.
fOwner of the UAS must self-certify that the UAS pilots have the required training if the pilot has not flown
the UAS in proceeding 12 months.
gSelf-certification accepted using logbook entries unless the pilot changes aircraft type, or the pilot has less
than 2-hours experience logged in preceding 3 months on same aircraft type.
hAn airworthiness certification is not required for UAS weighing less than 44 lbs. but is required for UAS
weighing more than 44 lbs. Exemptions may be available in specified circumstances.
iAn Advisory Circular issued by Australia's Civil Aviation Safety Authority (AC 101-1(0)) provides for beyond
line of sight operations under certain circumstances
jUAS operations beyond line of sight are very limited and allowed only on a case-by-case basis, according to a
French civil aviation official.
kBeyond line of sight operations are allowed with aircraft fitted with a Sense-and-Avoid system or, operated
within a Segregated Airspace. The Civil Aviation Authority has noted that it is not aware of any Sense-and-
Avoid system with adequate performance and reliability, but has several areas of segregated airspace.
While regulations in these countries require UAS operations remain
within the pilot's visual line of sight, some countries are moving
toward allowing limited operations beyond the pilot's visual line of
sight. For example, according to Australian civil aviation officials,
they are developing a new UAS regulation that would allow operators to
request a certificate allowing beyond line-of-sight operations.
However, use would be very limited and allowed only on a case-by-case
basis. Similarly, according to a French civil aviation official, France
approves on a case-by-case basis, very limited beyond line-of-sight
operations. Finally, in the United States, there have been beyond line-
of-sight operations in the Arctic, and, NASA, FAA and the industry have
successfully demonstrated detect-and-avoid technology, which is
necessary for beyond line-of-sight operations.
In March 2015, the European Aviation Safety Agency (EASA) issued a
proposal for UAS regulations that creates three categories of UAS
operations--open, specific, and certified.\18\ Generally, the open
category would not require authorization from an aviation authority but
would have basic restrictions including altitude and distance from
people. The specific category would require a risk assessment of the
proposed operation and an approval to operate under restrictions
specific to the operation. The final proposed category, certified
operations, would be required for those higher-risk operations,
specifically when the risk rises to a level comparable to manned
operations. This category goes beyond FAA's proposed rules by proposing
regulations for large UAS operations and operations beyond the pilot's
visual line-of-sight. As other countries work toward integration
standards organizations from Europe and the United States are
coordinating to try and ensure harmonized standards. Specifically, RTCA
and the European Organization for Civil Aviation Equipment (EUROCAE)
have joint committees focused on harmonization of UAS standards.\19\
---------------------------------------------------------------------------
\18\ EASA is the European Union Authority in aviation safety. The
main activities of the organization include the strategy and safety
management, the certification of aviation products and the oversight of
approved organizations and EU Member States.
\19\ RTCA is a private non-profit organization consisting of
industry experts. RTCA provides a venue for public-private
collaboration supporting consensus building on aviation modernization
issues. EUROCAE is a non-profit organization dedicated to aviation
standards. The organization is composed of members, which are
specialized in technical fields of aeronautics.
---------------------------------------------------------------------------
Key Critical Steps Remain for UAS Integration
We found during our ongoing work that FAA faces some critical steps
to keeping the UAS integration process moving forward, as described
below:
Issue final rule for small UASs: As we previously discussed, the
NPRM for small UAS was issued in February 2015. However, FAA plans to
process comments it receives on the NPRM and then issue a final rule
for small UAS operations. FAA told us that it is expecting to receive
tens of thousands of comments on the NPRM. Responding to these comments
could extend the time to issue a final rule. According to FAA, its goal
is to issue the final rule 16 months after the NPRM, but it may take
longer. If this goal is met, the final rule would be issued in late
2016 or early 2017, about 2 years after the 2012 Act required. FAA
officials told us that it has taken a number of steps to develop a
framework to efficiently process the comments it expects to receive.
Specifically, the officials said that FAA has a team of employees
assigned to lead the effort with contractor support to track and
categorize the comments as soon as they are received. According to FAA
officials, the challenge of addressing comments could be somewhat
mitigated if industry groups consolidated comments, thus reducing the
total number of comments that FAA must address.
Implementation plan: The Comprehensive Plan and Roadmap provide
broad plans for integration, but some have pointed out that FAA needs a
detailed implementation plan to predict with any certainty when full
integration will occur and what resources will be needed. The UAS
Aviation Rulemaking Committee developed a detailed implementation plan
to help FAA and others focus on the tasks needed to integrate UAS into
the national airspace.\20\ The Rulemaking Committee emphasized the need
for an implementation plan that would identify the means, necessary
resources, and schedule to safely and expeditiously integrate civil
UASs into the national airspace. The proposed implementation plan
contains several hundred tasks and other activities needed to complete
the UAS integration process. FAA stated it used this proposed plan and
the associated tasks and activities when developing its Roadmap.
However, unlike the Roadmap, an implementation plan would include
specific resources and time frames to meet the near-term goals that FAA
has outlined in its Roadmap. An internal FAA report from August 2014
discussed the importance for incremental expansion of UAS operations.
While this report did not specifically propose an implementation plan,
it suggested that for each incremental expansion of operations, FAA
identify the tasks necessary, responsibilities, resources, and expected
time frames. Thus, the internal report suggested FAA develop plans to
account for all the key components of an implementation plan. The
Department of Transportation's--Inspector General issued a report in
June 2014 that contained a recommendation that FAA develop such a plan.
---------------------------------------------------------------------------
\20\ The UAS Aviation Rulemaking Committee was chartered in 2011 to
provide a mechanism for industry and academic stakeholders as well as
other federal, state, and local government entities to provide
recommendations and standards to FAA on issues related to UAS
integration.
---------------------------------------------------------------------------
Test sites: Several challenges still exist with the test sites,
including identifying the research that test sites should be
conducting. According to FAA, it cannot direct the test sites to
address specific research and development issues, nor specify what data
test operators should provide FAA. Further, FAA officials told us that
some laws may prevent the agency from directing specific test-site
activities without providing compensation.\21\ As a result, according
to some of the test-site operators we spoke to, there is uncertainty
about what research and development should be conducted to support the
integration process. As part of the Other Transaction Agreement between
FAA and the test sites, all UAS operations conducted by the test sites
must have a COA.\22\ The COA requires the test sites to provide safety
and operations data collected for each flight.
---------------------------------------------------------------------------
\21\ The FAA mentioned concerns regarding the augmentation of
appropriations and limitations on accepting voluntary services. As a
general proposition, an agency may not augment its appropriations from
outside sources without specific statutory authority. The
Antideficiency Act prohibits Federal officers and employees from, among
other things, accepting voluntary services except for emergencies
involving the safety of human life or the protection of property. 31
U.S.C. Sec. 1342.
\22\ In order to fly under a COA, the commercial entity leases its
UAS to the public entity for operation.
---------------------------------------------------------------------------
Test site operators have told us incentives are needed to encourage
greater UAS operations at the test sites. The operators explained that
industry has been reluctant to operate at the test sites because under
the current COA process, a UAS operator has to lease its UAS to the
test site, thus potentially exposing proprietary technology. With a
special airworthiness certificate in the experimental category, the UAS
operator would not have to lease its UAS to the test site, therefore
protecting any proprietary technology. FAA is, however, working on
providing additional flexibility to the test sites to encourage greater
use by industry. Specifically, FAA is willing to train designated
airworthiness representatives for each test site. These individuals
could then approve UASs for a special airworthiness certificate in the
experimental category for operation at a test site. As previously
indicated, three test sites had designated airworthiness
representatives aligned with the test site, but only one experimental
certificate had been approved. More broadly, we were told that FAA
could do more to make the test sites accessible. According to FAA and
some test site operators, FAA is working on creating a broad area COA
that would allow easier access to the test site's airspace for research
and development. Such a COA would allow the test sites to conduct the
airworthiness certification, typically performed by FAA, and then allow
access to the test site's airspace. As previously stated, one test site
received 4 broad area COAs that were aircraft specific. Officials from
test sites we spoke with during our ongoing work were seeking broad
area COAs that were aircraft ``agnostic''--meaning any aircraft could
operate under the authority of that COA. According to FAA officials, in
an effort to make test sites more accessible, they are working to
expand the number of test ranges associated with the test sites, but
not increasing the number of test sites. Currently, test sites have
ranges in 14 states.
Public education program: UAS industry stakeholders and FAA have
begun an educational campaign that provides prospective users with
information and guidance on flying safely and responsibly. The public
education campaign on allowed and safe UAS operations in the national
airspace may ease public concerns about privacy and support a safer
national airspace in the future. UASs' operating without FAA approval
or model aircraft operating outside of the safety code established by
the Academy of Model Aeronautics potentially presents a danger to
others operating in the national airspace. To address these safety
issues, FAA has teamed up with industry to increase public awareness
and inform those wishing to operate UAS how to do so safely. For
example, three UAS industry stakeholders and FAA teamed up to launch an
informational website for UAS operators.\23\ UASs are increasingly
available online and on store shelves. Prospective operators--from
consumers to businesses--want to fly and fly safely, but many do not
realize that, just because you can easily acquire a UAS, that does not
mean you can fly it anywhere, or for any purpose. ``Know Before You
Fly'' is an educational campaign that provides prospective users with
information and guidance on flying safely and responsibly (see table
4).
---------------------------------------------------------------------------
\23\ Know Before You Fly (www.knowbeforeyoufly.org) was founded by
three organizations with a stake in UAS safety: the Association for
Unmanned Vehicle Systems International (AUVSI), the Academy of Model
Aeronautics (AMA), and the Small UAV Coalition. The Federal Aviation
Administration (FAA) is partnering with the founding members to spread
the word about safe and responsible flying.
------------------------------------------------------------------------
Table 4.--Unmanned Aerial Systems Industry Stakeholders and FAA Safety
Guidelines for Small UAS Recreational Users
------------------------------------------------------------------------
------------------------------------------------------------------------
Follow community-based Do not fly in adverse
safety guidelines, as developed by weather conditions such as in high
organizations such as the Academy winds or reduced visibility.
of Model Aeronautics (AMA). Do not fly under the
Fly no higher than 400 influence of alcohol or drugs.
feet and remain below any Ensure the operating
surrounding obstacles when environment is safe and that the
possible. operator is competent and
Keep your small-unmanned proficient in the operation of the
aerial system (UAS) in eyesight at small UAS.
all times, and use an observer to Do not fly near or over
assist if needed. sensitive infrastructure or
Remain well clear of and property such as power stations,
do not interfere with manned water treatment facilities,
aircraft operations, and you must correctional facilities, heavily
see and avoid other aircraft and traveled roadways, government
obstacles at all times. facilities, etc.
Do not intentionally fly Check and follow all local
over unprotected persons or moving laws and ordinances before flying
vehicles, and remain at least 25 over private property.
feet away from individuals and Do not conduct
vulnerable property. surveillance or photograph persons
Contact the airport or in areas where there is an
control tower before flying within expectation of privacy without the
five miles of an airport. individual's permission (see AMA's
privacy policy).
------------------------------------------------------------------------
Source: www.knowbeforeyoufly.org./GAO-15-486T
UAS and air traffic management: As FAA and others continue to
address the challenges to UAS integration they are confronted with
accounting for expected changes to the operations of the national
airspace system as a part of the Next Generation Air Transportation
System (NextGen)\24\ FAA has stated that the safe integration of UAS
into the national airspace will be facilitated by new technologies
being deployed. However, according to one stakeholder, UASs present a
number of challenges that the existing national airspace is not set up
to accommodate. For example, unlike manned aircraft, UASs that
currently operate under COAs do not typically follow a civil aircraft
flight plan where an aircraft takes off, flies to a destination, and
then lands. Such flights require special accommodation by air-traffic
controllers. Additionally, the air-traffic-control system uses
navigational waypoints for manned aircraft, while UASs use Global
Positioning System coordinates. Finally, if a UAS loses contact with
its ground-control station, the air traffic controller might not know
what the UAS will do to recover and how that may affect other aircraft
in the vicinity. NextGen technologies, according to FAA, are
continually being developed, tested, and deployed at the FAA Technical
Center, and the FAA officials are working closely with MITRE to
leverage all available technology for UAS integration.
---------------------------------------------------------------------------
\24\ NextGen is a new satellite-based air-traffic management system
that will replace the current radar-based system for a variety of
aircraft types, including UAS. NextGen is expected to enhance the
safety and capacity of the air transport system and will provide a
number of operational, technical, economic, and environmental
opportunities and challenges for all national airspace system users.
---------------------------------------------------------------------------
Chairman Ayotte, Ranking Member Cantwell, and Members of the
Subcommittee, this completes my prepared statement. I would be pleased
to respond to any questions that you may have at this time.
Senator Ayotte. Thank you, Dr. Dillingham. I want to
welcome Professor John Villasenor. Professor Villasenor is a
Nonresident Senior Fellow at The Brookings Institution. Thank
you, Professor, for being here today.
STATEMENT OF JOHN VILLASENOR, NONRESIDENT SENIOR
FELLOW, THE BROOKINGS INSTITUTION; NATIONAL FELLOW,
THE HOOVER INSTITUTION, STANFORD UNIVERSITY;
PROFESSOR OF ELECTRICAL ENGINEERING AND PUBLIC
POLICY, UNIVERSITY OF CALIFORNIA, LOS ANGELES
Mr. Villasenor. Thank you very much. Good afternoon, Chair
Ayotte, Ranking Member Cantwell, members of the Subcommittee. I
appreciate the opportunity to testify today on this very
important topic.
I am a Nonresident Senior Fellow at The Brookings
Institution, and I am also a National Fellow at the Hoover
Institution of Stanford, and I am on the faculty at UCLA. The
views I am expressing here are my own and are not necessarily
those of The Brookings Institution, Stanford, or the University
of California.
I am going to devote my remarks to the very important issue
of privacy. It is important to start by acknowledging that
privacy is a very legitimate concern. For the first time ever,
unmanned aircraft systems are making it easy and inexpensive to
obtain overhead imagery.
The overwhelming majority of the time UAS operators in both
the public and private sectors will be mindful of the need to
respect privacy, but as the number of UAS users and flights
continues to increase, and as imagery technology continues to
improve, simple statistics make it inevitable that sometimes
either inadvertently or intentionally, UAS will be used in ways
that violate privacy.
That raises a key question. To what extent are our current
legal frameworks up to the task for addressing UAS privacy? I
believe that our existing legal framework will provide
substantially more protection against privacy violating misuses
of UAS than is commonly recognized.
That does not mean there is no need for new privacy laws,
but it means we have to have a full appreciation for the power
of the laws that we already have.
The applicable framework for privacy for UAS depends in
large part on who is making the observations. For UAS operated
by the Government, the Fourth Amendment is a key pillar of
privacy protection. For privately operated UAS, privacy
protections are provided through common law invasion of privacy
tort as well as through civil and criminal invasion of privacy
statutes.
I will start with the Fourth Amendment and government UAS.
It is sometimes suggested that because the Fourth Amendment was
ratified over 200 years ago, it will not be effective in
providing protection from privacy violations using UAS, the
technology that the founders could scarcely have imagined.
I disagree. In fact, a review of the Supreme Court's 21st
Century jurisprudence in relation to other technologies
provides cause for optimism that the Fourth Amendment will
prove to be protective with respect to UAS as well.
I will mention three notable Supreme Court cases related to
technology, although not specifically to unmanned aircraft
systems.
In 2001, in Kyllo v. United States, the Supreme Court ruled
against the Government when the Government used, without a
warrant, a thermal imager to measure the temperature of the
walls of a house, and thereby infer that marijuana was being
grown inside the house.
In 2012, the United States v. Jones decision, the Court
again ruled against the Government. That decision involved the
installation and use of a GPS tracker on a car. The majority
opinion in that case was based on the very narrow act of the
physical trespass involved in installing the GPS tracker.
More interestingly, with respect to this issue today, there
were two concurrences involving a total of five Justices in
which the Justices expressed great skepticism about the
constitutional concerns, in other words, they were very
skeptical of the Government's behavior and suggested that
tracking someone for weeks on end with technology without a
warrant would in fact raise very serious constitutional
concerns.
Most recently in 2014, in Riley v. California, the Court
ruled against the Government and said when conducting a search
incident to arrest, police did not generally have the right to
search the contents of an arrestee's mobile phone without a
warrant. Writing for the Court, Chief Justice Roberts explained
with respect to mobile phone technology, ``The fact that
technology now allows an individual to carry such information
in his hand does not make the information any less worthy of
the protection for which the founders fought.''
Thus, the Court is on record recognizing that despite the
unimaginable technological changes that have occurred since the
Constitution was written, ``The protection for which the
founders fought'' remains a central tenet of applying the
Fourth Amendment. Clearly, that has direct relevance to privacy
from Government unmanned aircraft systems.
I will briefly talk about non-government unmanned aircraft
and privacy. Private entities are not bound by the Fourth
Amendment restrictions that apply to Government, and in
addition, have an affirmative First Amendment privilege to
gather information. However, while that privilege is extensive,
it ends when it crosses into invasion of privacy.
There are both common law and statutory frameworks that
would certainly apply if a private entity violates privacy
using unmanned aircraft systems.
In closing, I would like to emphasize the importance of
First Amendment rights and First Amendment consistency.
Consider a law that might prohibit an UAS operator from
photographing private property without permission. Viewed
solely through the lens of privacy, that would certainly be
protective, but it is easy to see how this could lead to some
disturbing unintended consequences.
Peaceful demonstrators, for example, might be told they are
not permitted to use an UAS to film a demonstration on the
grounds that the footage might include adjacent buildings owned
by people who disagree with their viewpoint.
In closing, without in any way diminishing the importance
of the UAS privacy issue, I think it is important to recognize
the protections we already have. Some of the best protections
may in fact lie not in statutory text drafted with a keen eye
on the latest innovations in unmanned aircraft technology, but
instead in constitutional text drafted over 200 years ago.
I look forward to your questions. Thank you.
[The prepared statement of Mr. Villasenor follows:]
Prepared Statement of John Villasenor, Nonresident Senior Fellow, The
Brookings Institution; National Fellow, The Hoover Institution,
Stanford University; Professor of Electrical Engineering and Public
Policy,
University of California, Los Angeles
Good afternoon Chair Ayotte, Ranking Member Cantwell, and Members
of the Subcommittee. Thank you very much for the opportunity to testify
today on the important topic of domestic unmanned aircraft systems
(UAS).\1\
---------------------------------------------------------------------------
\1\ The acronym ``UAS'' is also sometimes expanded to ``unmanned
aerial systems.''
---------------------------------------------------------------------------
I am a nonresident senior fellow in Governance Studies and the
Center for Technology Innovation at the Brookings Institution. I am
also a National Fellow at the Hoover Institution at Stanford, and a
professor at UCLA, where I hold appointments in the Electrical
Engineering Department and the Department of Public Policy. The views I
am expressing here are my own, and do not necessarily represent those
of the Brookings Institution, Stanford University or the University of
California.
My testimony today can be summarized as follows:\2\
---------------------------------------------------------------------------
\2\ A small portion of this written testimony is excerpted from
John Villasenor, Observations From Above: Unmanned Aircraft Systems and
Privacy, 36 Harv. J.L. & Pub. Pol'y 457 (2013) and from Eyes in the
Sky: The Domestic Use of Unmanned Aerial Systems, Written Testimony of
John Villasenor before the House Committee on the Judiciary--
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
(May 13, 2013), available at http://www
.brookings.edu/ /media/research/files/testimony/2013/05/
17%20privacy%20drones%20villase
nor/villasenortestimonymay17.
---------------------------------------------------------------------------
With respect to privacy:
When considering the possibly of new privacy laws relating
to UAS, it is important not to lose sight of the protections we
already have. I believe that that our existing legal framework
will provide substantially more protection against privacy-
violating misuses of UAS than is commonly recognized.
UAS-specific privacy legislation at the Federal or state
level must be carefully crafted to avoid unintended
consequences. Absent such care, new legislation could
inadvertently end up impeding uses of UAS that pose no privacy
concerns at all.
Privacy legislation that would impact non-government UAS
users needs to be drafted in a manner that avoids colliding
with the First Amendment freedom to gather information.
With respect to the integration of UAS into the National Airspace
System:
Successful integration of UAS will require fundamentally
rethinking our approach to managing the airspace below 500 feet
above ground level.
In future years, with proper design and testing, autonomous,
beyond-line-of-sight UAS flight can enable important new
applications (such as automated search and rescue operations).
Congress should provide a mechanism to allow safe testing of
these technologies in appropriately selected subareas within
the FAA-designated UAS test sites.
With respect to ensuring America's continued technology leadership:
Robotics will be one of the key technologies of this
century. Ensuring that the United States remains a global
technology leader will require ensuring that we have a strong
robotics industry, and that in turn will require that we
maintain leadership in UAS technology. Congress has a central
role to play in achieving that goal.
The unmanned aircraft hobbyist community--which includes
both model airplane hobbyists as well as hobbyists who fly what
are commonly called ``drones''--is a vital pipeline for careers
in aviation and technology. It is important to avoid overly
narrow regulatory interpretations that unreasonably limit
hobbyists, and that as a consequence also impede America's
future capacity for innovation.
UAS: Growing Attention In Congress, and More Broadly
Much has happened in the three years since the FAA Modernization
and Reform Act of 2012 (FMRA)\3\ was signed into law. As Members of
this Subcommittee know well, that law addressed both government (more
formally, ``public'') UAS as well as those operated by non-government
(i.e., private and commercial) entities (more formally, ``civil''). In
particular, under the FMRA, the FAA was directed to ``develop and
implement operational and certification requirements for the operation
of public unmanned aircraft systems in the national airspace system''
\4\ by the end of 2015. In addition, the FAA was directed to ``provide
for the safe integration of civil unmanned aircraft systems into the
national airspace system as soon as practicable, but not later than''
the end of September 2015.\5\
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\3\ Pub. L. No. 112-95, Sec. 331, 126 Stat. 11, 72 (2012)
\4\ Id. Sec. 334(b), 126 Stat. at 76.
\5\ Id. Sec. 332(a)(3).
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In February 2015, the FAA released a long awaited Notice of
Proposed Rulemaking (NPRM)\6\ for civil ``small'' (defined as weighing
less than 55 pounds) aircraft. The process of developing these proposed
rules had been ongoing since well before the enactment of the FMRA, and
their publication marked a significant milestone in developing a civil
UAS integration framework.
---------------------------------------------------------------------------
\6\ Operation and Certification of Small Unmanned Aircraft Systems,
80 Fed. Reg. 9544 (Feb. 23, 2015), available at http://www.faa.gov/
regulations_policies/rulemaking/recently
_published/media/2120-AJ60_NPRM_2-15-2015_joint_signature.pdf.
---------------------------------------------------------------------------
The past several years have also seen a high level of activity in
state legislatures in relation to UAS. According to the National
Conference of State Legislatures, UAS-specific laws were enacted in 13
states in 2013 \7\ and 10 states in 2014.\8\
---------------------------------------------------------------------------
\7\ 2013 Unmanned Aircraft System (UAS) Legislation, NCSL.Org,
http://www.ncsl.org/research/civil-and-criminal-justice/unmanned-
aerial-vehicles.aspx (last visited on Mar. 15, 2015).
\8\ Rich Williams, 2014 State Unmanned Aircraft System (UAS)
Legislation, NCSL.Org (Sept. 16, 2014), http://www.ncsl.org/research/
civil-and-criminal-justice/2014-state-unmanned-aircraft-systems-uas-
legislation.aspx.
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UAS and Privacy: An Important and Legitimate Concern
It is important to start by acknowledging that the privacy concerns
raised by UAS are real and worthy of attention. For the first time
ever, UAS are making it easy and inexpensive to obtain overhead
imagery. In the coming decade, that capability will be used by dozens
of Federal government agencies, by hundreds of state and local law
enforcement agencies, and by thousands of private companies and
individuals.
The overwhelming majority of the time, UAS operators in both the
public and private sectors will be mindful of the need to respect
privacy. But as the number of UAS users and flights continues to
increase, and as imaging technology continues to improve, simple
statistics make it inevitable that sometimes, either inadvertently or
intentionally, UAS will be used in ways that violate privacy.
That leads to a series of key questions: To what extent are current
legal frameworks up to the task of addressing UAS privacy? What new
laws, if any, are needed? Should those laws be at the Federal or state
level, or both? And how can we ensure that any new laws are
constitutional and avoid impeding non-privacy-violating uses of UAS?
The February 2015 Presidential Memorandum on UAS Privacy
The UAS privacy question is particularly timely in light of
President Obama's February 2015 Presidential Memorandum titled
``Promoting Economic Competitiveness While Safeguarding Privacy, Civil
Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft
Systems'' (hereafter, the ``Presidential UAS Memorandum'').\9\ The
Presidential UAS Memorandum addresses UAS operated by the Federal
government and, separately, those operated by commercial and private
entities.
---------------------------------------------------------------------------
\9\ The White House, Office of the Press Secretary, Presidential
Memorandum: Promoting Economic Competitiveness While Safeguarding
Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned
Aircraft Systems White House.Gov (Feb. 15, 2015), available at https://
www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-
promoting-econo
mic-competitiveness-while-safegua.
---------------------------------------------------------------------------
With respect to Federal government UAS, the Presidential UAS
Memorandum provides a series of policies and procedures aimed at
protecting privacy and civil liberties and ensuring transparency and
accountability. For example, the Presidential UAS Memorandum limits the
duration of time that Federal agencies can retain information collected
using UAS that may contain personally identifiable information.\10\ It
also requires an agency using UAS to ``provide notice to the public
regarding where the agency's UAS are authorized to operate in the
NAS,'' \11\ and to ``make available to the public, on an annual basis,
a general summary of the agency's UAS operations during the previous
Fiscal Year, to include a brief description of types or categories of
missions flown, and the number of times the agency provided assistance
to other agencies, or to State, local, tribal, or territorial
governments.'' \12\
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\10\ Id. at Sec. 1(a)(ii).
\11\ Id. at Sec. 1(d)(i).
\12\ Id. at Sec. 1(d)(iii).
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One important government UAS category not directly \13\ addressed
by the Presidential UAS Memorandum is state and local government use.
The policies identified in the Presidential UAS Memorandum are of
necessity limited to Federal government agencies using UAS. However,
those policies can and should serve as a model for states to consider
and potentially adopt, either as is or with modifications.
---------------------------------------------------------------------------
\13\ The Presidential UAS Memorandum indirectly addresses state and
local government use by requiring that ``State, local, tribal, and
territorial government recipients of Federal grant funding for the
purchase or use of UAS for their own operations have in place policies
and procedures to safeguard individuals' privacy, civil rights, and
civil liberties prior to expending such funds.'' See the Presidential
UAS Memorandum at Sec. 1(c)(vi).
---------------------------------------------------------------------------
Separately, with respect to nongovernment (i.e., commercial and
private) UAS, the Presidential UAS Memorandum directed the National
Telecommunications and Information Administration (NTIA) to initiate a
``multi-stakeholder engagement process to develop a framework regarding
privacy, accountability, and transparency for commercial and private
UAS.'' \14\ This framework will not have the force of law, but will
instead be a set of ``best practices'' that commercial and private UAS
operators will presumably be encouraged to adopt. On March 5, 2014, the
NTIA published a request for public comment \15\ and identified a set
of 16 questions relating to privacy, accountability, and transparency
in relation to commercial and private UAS. Comments are due to the NTIA
on April 20, 2015. The dialog generated during this process will be
vital in identifying any loopholes that might exist in current privacy
law in relation to non-government UAS, and that could be addressed with
suitably crafted legislation.
---------------------------------------------------------------------------
\14\ Id. at Sec. 2(b).
\15\ Privacy, Transparency, and Accountability Regarding Commercial
and Private Use of Unmanned Aircraft Systems, 80 Fed. Reg. 11978 (Mar.
5, 2015), available at http://www.ntia
.doc.gov/files/ntia/publications/rfc_uas_privacy_03052015.pdf.
---------------------------------------------------------------------------
``Public Navigable Airspace''
One of the most interesting and important questions relating to UAS
generally, and to the privacy issues they raise specifically, relates
to the definition of ``public navigable airspace.''
Discussions about public navigable airspace in the context of
manned aircraft often assert that it is the airspace above 500 feet
above ground level. However, that assertion provides an incomplete
picture for several reasons. First, it is only partially accurate.
Fixed-wing aircraft obviously have a right to use altitudes lower than
500 feet when taking off and landing. In addition, the altitude
minimums are higher ``[o]ver any congested area of a city, town, or
settlement, or over any open air assembly of persons.'' \16\
Furthermore, helicopters are not subject to the same altitude minimums
as fixed-wing aircraft as long as ``the operation is conducted without
hazard to persons or property on the surface.'' \17\
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\16\ 14 C.F.R. Sec. 91.119(b).
\17\ 14 C.F.R. Sec. 91.119(d).
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With UAS the picture gets even more complicated because of rules
limiting operation of certain classes of small UAS to a maximum of 400
or 500 feet.\18\ Clearly, then, when it comes to UAS the public
navigable airspace must include some altitudes below 500 feet. But just
as clearly, it shouldn't include the airspace two inches above ground
in a person's backyard.
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\18\ The NPRM released in February 2015 (supra note 8) identifies a
proposed upper limit of 500 feet for small (up to 55 pounds) UAS and an
upper limit of 400 feet for the ``Micro UAS'' sub-classification, which
covers UAS up to 4.4 pounds.
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In a 1946 case involving manned aircraft (United States v. Causby),
the Supreme Court recognized the need to provide the public with access
to the airspace while also recognizing the need to provide property
owners with a zone of control over their land: ``We have said that the
airspace is a public highway,'' the Court wrote. ``Yet it is obvious
that if the landowner is to have full enjoyment of the land, he must
have exclusive control of the immediate reaches of the enveloping
atmosphere.'' \19\
---------------------------------------------------------------------------
\19\ United States v. Causby, 328 U.S. 256, 264 (1946).
---------------------------------------------------------------------------
But exactly how far up should this exclusive control extend? In a
November 2014 paper,\20\ Professor Gregory McNeal of the Pepperdine
University School of Law provided an excellent framing of the
complexities involved. Dr. McNeal observes that one component of a
solution could be to give property the owners the right ``to exclude
aircraft, persons, and other objects from a column of airspace
extending from the surface of their land up to 350 feet above ground
level.'' \21\ Dr. McNeal also notes that a height limit alone won't be
sufficient:
---------------------------------------------------------------------------
\20\ Gregory McNeal, Drones and Aerial Surveillance: Considerations
for Legislators, The Brookings Institution (Nov. 2014), available at
http://www.brookings.edu/research/reports2/2014/11/drones-and-aerial-
surveillance.
\21\ Id. at 4.
Granted a rule extending property rights in a manner to prevent
low altitude flights directly over a landowner's property won't
preclude the police from asking a neighbor if they can fly
above their adjacent property to obtain a better vantage point,
just like existing rules don't preclude the police (or a
private citizen) from asking a neighbor if they can come inside
to look out a second floor window into neighboring property.
Similarly, such a rule won't preclude the police from flying
above public land (such as sidewalks and streets), but local
zoning laws could address flights over public land.\22\
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\22\ Id. at 13.
To that, I would add the additional concern that codifying the
specific boundaries of a property owner's zone of control over airspace
would also codify a region (e.g., above 350 feet) in which the property
owner does not have control. It is easy to envision how this could be
exploited. And, with improvements in imaging technology, images
acquired from just above the upper limit of a property owner's region
of control could still be very invasive.
A more fundamental issue is that while height is certainly one of
the factors that impacts whether UAS use over (or in the vicinity of)
private property is invasive, it is not the only factor. It is also
important to consider what the UAS is doing. A UAS that transits
quickly and quietly over a property at 320 feet is generally far less
intrusive than one that hovers overhead for many minutes at 380 feet.
And a UAS equipped with a very advanced imaging system is potentially
much more invasive than one with a very basic imaging system.
Given these complexities, I do not think it is feasible to
effectively protect privacy by attempting to codify in advance the
specific ways in which it is permissible--or impermissible--to overfly
private property. I believe that the better way to address this is to
let courts apply tort law and (when applicable \23\) statutory law
using the well-established, non-technology-specific standard of a
``reasonable expectation of privacy'' to the facts specific to any
particular case that might arise.
---------------------------------------------------------------------------
\23\ Some invasion of privacy statutes codify a ``reasonable
expectation of privacy'' as the standard to use when judgeing whether
the statute has been violated.
---------------------------------------------------------------------------
How Protective is the Current Legal Framework?
Of course, in considering new laws addressing UAS privacy, one of
the first questions to ask is: What protections do we already have? The
answer, I believe, is that our existing legal framework will provide
substantially more protection against privacy-violating misuses of UAS
than is commonly recognized.
The applicable framework for privacy from UAS depends in large part
on who is making the observations. For UAS operated by the government,
the Fourth Amendment, which provides the ``right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,'' is a key pillar of privacy
protection. For privately operated UAS, privacy protections are
provided through the common law invasion of privacy tort as well as
through civil and criminal invasion of privacy statutes.
Government UAS and the Fourth Amendment
It is sometimes suggested that because the Fourth Amendment was
ratified over 200 years ago, it will not be effective in providing
protection from privacy violations using UAS--a technology that the
Founders could scarcely have imagined.
I disagree. To explain why, it is helpful to start by considering
several manned aircraft cases from the 1980s in which the Supreme Court
did not find a Fourth Amendment violation--and then to consider why, in
light of more recent Supreme Court jurisprudence, I believe that the
UAS privacy picture is somewhat more optimistic than those precedents
might initially appear to suggest.
The Supreme Court's 1986 decision in California v. Ciraolo \24\
considered police use of a small airplane to overfly a Santa Clara,
California residence at 1000 feet and look into the backyard, where
they saw marijuana plants. When presented with the question of whether
the observations violated the Fourth Amendment, the Supreme Court found
in favor of the government, writing that because the observations of
the curtilage of the respondent's home were made from ``public
navigable airspace . . . in a physically nonintrusive manner,'' the
respondent's expectation of privacy from such aerial observations was
not one ``that society is prepared to honor.'' \25\ The Court concluded
that ``[i]n an age where private and commercial flight in the public
airways is routine, it is unreasonable for respondent to expect that
his marijuana plants were constitutionally protected from being
observed with the naked eye from an altitude of 1,000 feet.'' \26\
---------------------------------------------------------------------------
\24\ 476 U.S. 207 (1986).
\25\ Id. at 213-14.
\26\ Id. at 215.
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Also in 1986, in a ruling involving government overflights of an
industrial facility, the Court found in Dow Chemical Co. v. United
States that ``the taking of aerial photographs of an industrial plant
complex from navigable airspace is not a search prohibited by the
Fourth Amendment.'' \27\ The Court in Dow Chemical considered the open
areas in the 2000-acre industrial facility more akin to an ``open
field'' than to the curtilage of a home, and concluded that those areas
were ``open to the view and observation of persons in aircraft lawfully
in the public airspace immediately above or sufficiently near the area
for the reach of cameras.'' \28\ And in 1989, in Florida v. Riley,\29\
a case similar in some respects to Ciraolo, the Supreme Court again
considered the constitutionality of aerial observations of a home's
curtilage by law enforcement. A majority of the justices in Riley found
the observations constitutional.\30\
---------------------------------------------------------------------------
\27\ Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986).
\28\ Id.
\29\ 488 U.S. 445 (1989).
\30\ The 1989 Riley decision comprised an opinion delivered by
Justice White and joined by three other Justices and an opinion from
Justice O'Connor concurring in the judgment. Thus, while there was no
majority opinion, a majority of the Justices found the observations
constitutional.
---------------------------------------------------------------------------
In combination, these rulings certainly suggest that some
observations from government UAS will be deemed constitutional.
However, and critically, that does not mean that all such observations
will be constitutional. If the government uses a UAS, without a
warrant, in a manner violating a reasonable expectation of privacy--
either through the duration of the observations or the detail they
reveal--then those observations should not pass constitutional muster.
We don't yet know how the Supreme Court would rule in a case
involving UAS privacy, but a review of the Court's 21st century
jurisprudence in relation to other technologies provides cause for
optimism. In 2001, for example, the Supreme Court ruled in Kyllo v.
United States \31\ that the warrantless use by the police of a thermal
imaging camera to measure the temperature of the walls of a house--and
to thereby infer that the occupant was growing marijuana--was a
violation of the Fourth Amendment.
---------------------------------------------------------------------------
\31\ 533 U.S. 27 (2001).
---------------------------------------------------------------------------
In 2014, the Court ruled in Riley v. California \32\ that when
conducting a search incident to arrest, police did not generally have
the right to search the contents of the arrestee's mobile phone without
a warrant. Writing for the Court, Chief Justice Roberts explained:
---------------------------------------------------------------------------
\32\ 134 S. Ct. 2473 (2014).
Our cases have recognized that the Fourth Amendment was the
founding generation's response to the reviled ``general
warrants'' and ``writs of assistance'' of the colonial era,
which allowed British officers to rummage through homes in an
unrestrained search for evidence of criminal activity.\33\
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\33\ Id. at 2494.
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And:
Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal,
they hold for many Americans ``the privacies of life''. The
fact that technology now allows an individual to carry such
information in his hand does not make the information any less
worthy of the protection for which the Founders fought. Our
answer to the question of what police must do before searching
a cell phone seized incident to an arrest is accordingly
simple--get a warrant.\34\
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\34\ Id. at 2494-2495, internal citations omitted.
The 2012 United States v. Jones \35\ decision also sheds light on
how some of the Justices view the Fourth Amendment in light of modern
technologies. That case considered the government's installation,
without a valid warrant, of a GPS tracking device on a vehicle used by
a suspect in a narcotics investigation. The Court's decision was
unanimous in finding the government's actions unconstitutional, but
there was considerable divergence in the basis for that finding. The
majority opinion, delivered by Justice Scalia, found a Fourth Amendment
violation in the physical trespass that occurred during the placement
of the GPS device on the vehicle. That intrusion, wrote Justice Scalia,
``would have been considered a `search' within the meaning of the
Fourth Amendment when it was adopted.'' \36\
---------------------------------------------------------------------------
\35\ 132 S. Ct. 945 (2012).
\36\ Id. at 949.
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In terms of viewing the Fourth Amendment in light of today's
technologies, the concurrences in Jones were more instructive than the
majority opinion. In a concurrence joined by three other Justices,
Justice Alito wrote that the question is whether the ``respondent's
reasonable expectations of privacy were violated by the long-term
monitoring'' \37\ of his vehicle. Because ``law enforcement agents
tracked every movement that respondent made in the vehicle he was
driving'' \38\ for four weeks--a level of monitoring that Justice Alito
felt impinged on reasonable expectations of privacy--Justice Alito
concluded that the tracking constituted a search.
---------------------------------------------------------------------------
\37\ Id. at 958 (Alito, J., concurring).
\38\ Id. at 964.
---------------------------------------------------------------------------
Justice Sotomayor, in addition to joining the majority, provided a
separate concurring opinion arguing that ``the trespassory test . . .
reflects an irreducible constitutional minimum'' \39\ and agreeing with
Justice Alito's view that the respondent's reasonable expectations of
privacy were violated. Justice Sotomayor also expressed concern that
the unchecked ability of the government to assemble ``the sum of one's
public movements'' could enable it to obtain private information
regarding political and religious beliefs.\40\
---------------------------------------------------------------------------
\39\ Id. at 955 (Sotomayor, J., concurring).
\40\ Id. at 956.
---------------------------------------------------------------------------
So we have a total of five Justices--Justice Alito and the three
others \41\ who joined his concurrence, and Justice Sotomayor in her
own concurrence--on record with statements indicating a view that
warrantless use of technology to perform long-term tracking violates
the Fourth Amendment. This is relevant to UAS both directly and
indirectly.
---------------------------------------------------------------------------
\41\ Justice Alito's concurrence was joined by Justices Ginsburg,
Breyer, and Kagan.
---------------------------------------------------------------------------
The direct relevance arises because there is one class of UAS,
called ``High Altitude, Long Endurance'' (HALE) UAS, that can stay
aloft at very high altitudes for weeks, months, or even years at a
time. The concurrences in Jones suggest that government use of such
platforms to perform warrantless long-term tracking of individuals
using this or any other technology would raise serious constitutional
concerns for a majority of the Justices.
There is also an indirect and far broader relevance that is not
specific to UAS. After all, most UAS can only stay aloft only for short
periods of time--usually measured in minutes, not hours. They simply
cannot be used to perform long-term tracking. They can potentially,
however, be misused in ways that would violate reasonable expectations
of privacy. The concurrences in Jones--as well as the majority opinions
in Kyllo and in Riley v. California--indicate that the Fourth
Amendment, when properly interpreted, retains the power to prevent the
government from using modern technologies in ways that violate privacy.
Non-Government Unmanned Aircraft and Privacy
Private entities are not bound by Fourth Amendment restrictions
that apply to the government and have an affirmative First Amendment
privilege to gather information. However, while that privilege is
extensive, it ends when it crosses into an invasion of privacy.
Use of a UAS to invade an individual's privacy could result in
civil or criminal liability. With respect to civil liability, courts in
most jurisdictions recognize the two forms of common law invasion of
privacy most likely to arise in connection with UAS: intrusion upon
seclusion and public disclosure of private facts.\42\ In addition, some
states also have civil or criminal statutes, or both, related to
invasion of privacy.\43\
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\42\ See William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 389
(1960); see also Restatement (Second) Of Torts Sec. Sec. 652A-652E
(1997).
\43\ See, e.g., Cal. Civ. Code Sec. 1708.8 (West 2011).
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State laws aimed at bolstering privacy protections from non-
government UAS should be enacted only if, and to the extent that,
current frameworks are insufficiently protective. After all, the set of
existing protections against invasion of privacy can be powerful and
adaptable precisely because they are not technology-specific, and can
therefore be reinterpreted as needed as new technologies emerge.
Technology-specific privacy laws, by contrast, risk becoming quickly
obsolete as the technology changes. Alternatively, or in addition, they
can sometimes lead to unintended consequences that impede uses of the
technology that pose no threat at all to privacy.
The Importance of First Amendment Consistency
There is also an additional consideration to keep in mind: Laws
drafted to address privacy with respect to a specific, rapidly evolving
technology such as UAS can inadvertently run counter to the goal of a
technology-neutral interpretation of the First Amendment freedom to
gather information. This can create some problematic consequences.
Consider a photograph of the countryside taken using a smartphone
by a passenger \44\ riding in a privately owned single-engine airplane
as it descends through 350 feet on the way to landing. No one would
reasonably deny the passenger's First Amendment right to take that
photograph. The owners of properties within the frame of view would not
have an ownership interest in the photograph; nor would they have the
right to control its use, to require notification that the photograph
had been acquired, or to require that it be retained for a certain
amount of time.
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\44\ I am assuming in this example that the passenger is not a
government employee or otherwise acting on behalf of a government
entity.
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Now consider a similar photograph taken from a privately-owned UAS
350 feet above the ground, using a camera with similar imaging
capabilities.\45\ Under some of the UAS privacy laws that have been
proposed (and in some states, introduced and adopted), the owners of
properties within the frame of view might have substantially more
control over the acquisition, use, dissemination, or retention of the
UAS-acquired photograph than of the photograph taken by the on-board
passenger.
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\45\ Of course, a UAS would not be able to operate in the immediate
vicinity of an airport, which is why the photograph could be
``similar'' but could not be ``identical.''
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I will emphasize that neither the UAS operator nor the on-board
passenger has the right to acquire images that constitute an invasion
of privacy. But, assuming that the images are such that no one's
privacy is invaded (for example, if the image resolution is low and no
private details are contained in the images), why should the UAS
operator's right to take a photograph be so much more limited than that
of the on-board passenger? Put another way, why should the scope of the
First Amendment be so much narrower for the UAS operator than for the
on-board passenger?
If the First Amendment is in effect narrowed for a particular class
of people--UAS users, in this instance--it is easy to see how this
could lead to some disturbing unintended consequences. Peaceful
demonstrators, for example, might be told that they are not permitted
to use a UAS to film a demonstration, on the grounds that the footage
might include adjacent buildings owned by people who disagree with
their viewpoint.
Integrating UAS Into the NAS: Meeting the Challenges
Without in any way diminishing the importance of the issue of UAS
privacy, I would also like to offer some more general comments
regarding the integration of UAS into the NAS.
The airspace in the United States is a complex, busy place. It is
shared every day by thousands of manned aircraft, including single-
engine private planes flying at 100 miles per hour and 500-ton
commercial passenger aircraft \46\ travelling at well over 500 miles
per hour. At this moment, and in fact at most times during most days,
there are many thousands of manned aircraft in the air over the United
States.\47\ We take it for granted that nearly all of the time, all of
these aircraft share the airspace without incident, in all types of
weather, day and night. Anyone who spends a few minutes watching the
radar tracks of airplanes above a major U.S. metropolitan area will
come away amazed by the complex, three-dimensional choreography
involved in keeping our skies safe.
---------------------------------------------------------------------------
\46\ The gross takeoff weight of an Airbus A380 is over one million
pounds.
\47\ Air Traffic NextGen Briefing: Keeping America's Skies Safe,
FAA.Org (last modified Sept. 18, 2014), https://www.faa.gov/
air_traffic/briefing/ (last visited on Mar. 15, 2015).
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To this already complicated mix, we will be adding thousands of new
unmanned aircraft. For UAS integration to occur as safely and
successfully as possible, we will need to rethink management of the
airspace below 500 feet above ground level. In addition, we should
recognize that autonomous flight can play an important longer-term
role. And, we should provide a mechanism to enable safe testing of
autonomous, beyond-line-of-sight UAS operation.
The Airspace Below 500 Feet: The Need For a New Approach
We need to rethink management of the airspace below 500 feet above
ground level. The paradigms developed for manned flight that generally
occurs above 500 feet are much less well suited to unmanned flight that
will occur below 500 feet. Instead, we need a new approach that
recognizes 1) the important stake of property owners in how sub-500-
foot altitudes will be managed and used, 2) the fact that UAS will
outnumber manned aircraft at those altitudes, and 3) that since so much
of the low-altitude traffic will be unmanned, the traditional
assumption that every aircraft must have at least one human pilot
devoting his or her full attention to flying it will, in the long term,
need to be revisited. This last point ties directly to the role of
autonomous flight technologies that, with proper design, have the
potential to improve both safety and efficiency in the lower airspace.
Autonomous Flight
``Autonomous'' UAS flight refers to a UAS that is flown without
being actively and continuously controlled by a ground-based human
pilot.\48\ Autonomy is actually a continuum, including fully autonomous
flight as well as flight that is mostly under the control of a human
pilot. It is also possible to have a UAS that flies autonomously during
some, but not all, portions of a flight. (In some respects, this isn't
so different from what routinely occurs today in the context of manned
flight using technologies like autopilot.) In discussions about UAS
integration, there is often an assumption that autonomous unmanned UAS
will pose more dangers than human-piloted UAS. I believe that is an
oversimplification.
---------------------------------------------------------------------------
\48\ Autonomy is actually a continuum, depending upon the level of
control over the flight maintained by an on-the-ground human pilot.
---------------------------------------------------------------------------
Certainly, autonomous UAS flight without the proper safeguards
would pose very real safety risks. But when the algorithms used to
control flight are designed with sufficient care and properly tested,
autonomous flight has the potential to deliver very important benefits,
including enabling new applications such as the automated search and
rescue scenario that I discuss below.
Autonomous, Beyond-Line-of-Sight UAS Operation
UAS flight that is both autonomous and beyond-line-of-sight (BLOS)
is another important area of technology development. BLOS refers to
operation in which the UAS cannot be seen by a person overseeing its
operation--either because it is obscured by intervening objects such as
trees or buildings, or because it is over the horizon.\49\
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\49\ I am referring here to beyond the visual line of sight, in
which the UAS operator cannot see the UAS. In some other contexts, the
term ``line of sight'' is used to in association with whether or not
there is direct radio communication with the UAS, without any need to
relay the radio signal through an intermediate location.
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BLOS and autonomous flight are not necessarily coupled. Today's
technology makes it possible (though it is not generally permitted \50\
in the current regulatory environment) for a ground-based human pilot
to fly a UAS beyond the line of sight using a computer, console, or
other display system showing live video from a UAS-mounted camera. The
pilot sees what he or she would see from onboard the UAS, and can
navigate the aircraft accordingly, despite not being able to actually
see the UAS from his or her location on the ground.\51\ This is an
example of BLOS flight that is not autonomous. Conversely, autonomous
UAS flight could be performed in very close proximity to--and within
view of--the person who initiated the flight. This is an example of
autonomous flight that is not BLOS.
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\50\ There is an exception under which, in regions of arctic
Alaska, certain beyond-line-of-sight UAS operations are permitted. See
http://www.faa.gov/news/updates/?newsId=73981
\51\ This type of flight is called ``first person view'' or
``FPV.''
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But some of the most compelling future applications of UAS involve
flight that is both autonomous and BLOS. Consider the challenge of
looking for a lost hiker in the wilderness at night, several miles from
the nearest road. It could be very helpful to be able to program a UAS
to fly autonomously to the search area, and then to fly automated
search patterns, using a thermal imager to identify heat signatures
that may indicate the lost hiker. Upon finding a possible match, the
UAS could then alert a human pilot, who would then retake control and
use the UAS to perform a closer inspection to see if the hiker had
indeed been located. To take this example one step further, it would be
possible to have half a dozen UAS collaboratively perform a search.
This would allow searches to be conducted much faster and much more
cost effectively than is possible today using manned aircraft.
Under current regulations (as well as those proposed in the recent
NPRM), a UAS flight operation of this sort would not be
permissible.\52\ In addition, it is currently very difficult for
companies or government agencies interested in developing this
capability to even test these capabilities. Rules at the six UAS test
sites recently chosen by the FAA currently prohibit flight that is
simultaneously BLOS and autonomous. This forces developers of this
technology to either limit their testing to the small confines of
indoor spaces, or to test overseas in a country where the rules
relating to autonomous UAS flight offer more flexibility.
---------------------------------------------------------------------------
\52\ Under the NPRM, operators of ``small'' UAS would be required
to be ``visually capable of seeing the small UAS'', i.e., BLOS
operations would not be permitted.
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Today, UAS technology is not yet sufficiently mature to allow
autonomous, beyond-line-of-sight UAS operations in the regular (outside
of suitable test sites) airspace. But I think it is important to move
towards a regulatory framework that could provide a mechanism to safely
test and refine these technologies. This could occur, for example, in
regions within the already-designated FAA test sites and/or on large
parcels of private property owned or leased by the company performing
the tests.
Promoting Innovation and Economic Prosperity
In the coming years, UAS will be used to improve agricultural
yields, to perform scientific research, to spot and fight forest fires,
to perform search and rescue, and to support disaster response.
Developing the UAS technologies to enable these and many other
applications will involve new business models, new companies, and new
jobs. But that will only occur if there is a regulatory climate that
fosters a thriving community of companies and individuals with an
interest in investing their time, money, and energy to create the
safest, most innovative unmanned aircraft technologies of the future.
While there has been plenty of attention to the important issue of
commercial UAS, I would also like to highlight the importance of the
unmanned aircraft hobbyist community. This community, which includes
both model airplane hobbyists as well as those who fly what are
commonly called ``drones,'' provides a critically important pipeline
for careers in aviation and technology. I would urge the FAA and
Congress to ensure that as we navigate the complex process of making
and interpreting rules for unmanned aircraft, we keep in mind the vital
importance of the hobbyist community for our future innovation
capacity.
Thank you again for the opportunity to testify on this important
topic.
The views expressed in this piece are those of the author and
should not be attributed to the staff, officers or trustees of the
Brookings Institution.
Senator Ayotte. Thank you, Professor. I want to welcome Mr.
Paul Misener. Mr. Misener is the Vice President of Global
Public Policy at Amazon, Inc. Thank you.
STATEMENT OF PAUL MISENER, VICE PRESIDENT OF GLOBAL PUBLIC
POLICY, AMAZON.COM
Mr. Misener. Thank you, Chairwoman Ayotte and Ranking
Member Cantwell for your attention to this very important
topic, for holding this hearing, and for inviting me to
testify.
Amazon Prime Air is a future service that will deliver
packages to customers in 30 minutes or less using small UAS
flying below 500 feet and generally above 200 feet, and
weighing less than 55 pounds. Prime Air UAS will take advantage
of sophisticated sense and avoid technology as well as a high
degree of automation to ensure safe operations, including
distances of 10 miles or more well beyond visual line of sight.
Amazon Prime Air has been conducting outdoor R&D flight
testing in multiple locations abroad. Our testing abroad has
required but minimal aviation regulatory approval. Nowhere
outside of the United States have we been required to wait more
than one or 2 months to begin testing, and permission has been
granted for operating a category of UAS, giving us room to
expand, experiment, and rapidly perfect designs without being
required to continually obtain new approvals for specific UAS
vehicles.
Our outdoor flight testing is going well, and we are very
pleased with the R&D progress this testing has enabled. No
country in which we now have distribution facilities has yet
adopted rules that would allow commercial UAS packaged
deliveries. In addition to our Prime Air R&D testing, we are
working with government agencies to develop appropriate rules
for small UAS operations.
Such rules must allow UAS applications to take advantage of
the core capability of the technology, to fly with minimal
human involvement, beyond visible line of sight.
Safety is Amazon's top priority, and earlier this month we
discussed UAS safety with Europe's most senior leaders of
aviation regulation. I am delighted to report that these
aviation authorities are enthusiastically pursuing regulatory
frameworks and operational rules for UAS.
The approach they are taking is imminently reasonable. UAS
rules should be simple and performance-based, and the basic
regulatory framework should be put in place without delay.
American commercial entities want to innovate and perfect
UAS technology, and to do so, we must conduct R&D testing.
Amazon has a large indoor R&D facility in downtown Seattle. Of
course, we need to test these designs outdoors, exposed to
flight conditions our UAS will eventually experience in
operations.
We are very grateful to the FAA for granting us permission
to conduct UAS testing outdoors in the United States. This
approval came last Thursday, and we are eager to get flying
here as we have abroad.
However, the permission the FAA granted to us is more
restrictive than are the rules and approvals by which we
conduct outdoor testing in the U.K. and elsewhere. It is even
more limited than the rules applicable to non-commercial
amateur UAS flyers in the United States.
Moreover, obtaining permission took far too long and
certainly much longer, over half a year, than it took in other
countries.
The good news is that while the FAA was considering our
applications for testing, we innovated so rapidly, that the UAS
approved last week by the FAA has become obsolete. We do not
test it any more. We have moved on to more advanced designs
that we already are testing abroad. Last Friday we asked the
FAA for permission to fly one of these advanced UAS in the
United States as well, and we are hopeful this permission will
be granted quickly.
Although the United States is catching up and permitting
current commercial UAS testing, the United States remains
behind in planning for future commercial UAS operations.
We are grateful for the FAA's newly released NPRM so far as
it goes, but it does not go far enough. Unlike the planning in
Europe, the FAA is not adequately addressing compelling UAS
applications that involve highly automated operations beyond
visible line of sight. The NPRM only briefly requests comments
on whether the rules should permit operations beyond visible
line of sight and if so, how enabling technology should be
evaluated.
This is not to suggest that regulators here or abroad can
quickly adopt actual rules for UAS operations beyond visual
line of sight. That may take some time. Surely, U.S. regulators
should start proposing regulatory frameworks and rules for
future commercial operations now.
Because the United States remains behind in planning for
future commercial UAS operations, one might assume that
Congress must step in to provide the FAA authority to act. The
fact is that with few exceptions, the agency already has
adequate statutory authority. What the FAA needs is impetus,
less the United States falls further behind.
Any impetus given by, embraced by the FAA should result in
the agency commencing now to plan and develop rules for UAS
operations that would encompass highly automated flights beyond
visual line of sight.
In conclusion, Madam Chair, I look forward to working with
you and your Subcommittee and the FAA to ensure that important
commercial UAS services become available in the United States
safely and soon. I look forward to your questions.
[The prepared statement of Mr. Misener follows:]
Prepared Statement Paul Misener, Vice President for Global Public
Policy, Amazon.com
Thank you, Chairwoman Ayotte and Ranking Member Cantwell. My name
is Paul Misener, and I am Amazon's Vice President for Global Public
Policy. Unmanned aircraft systems (``UAS'') present tremendous
opportunities for innovation and soon will provide consumer services
unimagined only a decade ago. Thank you for your attention to this
important topic; for calling this hearing; and for inviting me to
testify.
I. Amazon Prime Air
Amazon Prime Air is a future service that will deliver packages to
customers in 30 minutes or less using small UAS. Flying below 500 feet,
and generally above 200 feet except for takeoff and landing, and
weighing less than 55 pounds total, Prime Air UAS will take advantage
of sophisticated ``sense and avoid'' technology, as well as a high
degree of automation, to ensure safe operations including at distances
of 10 miles or more, well beyond visual line of sight.
Not only do we think our customers will love this service, we
believe it will benefit society more broadly. Once operational, Prime
Air will increase the overall safety and efficiency of the current
ground transportation system, by allowing people to skip the quick trip
to the store or by decreasing package delivery by truck or car. For the
same reasons, Prime Air will reduce buyers' environmental footprint: if
a consumer wants a small item quickly, instead of driving to go
shopping or causing delivery automobiles to come to her home or office,
a small, electrically-powered UAS will make the trip faster and more
efficiently and cleanly. To realize these tremendous opportunities for
innovation and other benefits in the United States, additional research
and development--and, soon, rules of operation--are needed.
Amazon Prime Air has been conducting outdoor R&D flight testing in
multiple locations abroad, i.e., in other countries. Our testing abroad
has required but minimal aviation regulatory approval, given the low
risk presented by our small UAS designs; the R&D nature of our flight
activity; and our relatively rural test sites. Nowhere outside of the
United States have we been required to wait more than one or two months
to begin testing, and permission has been granted for operating a
category of UAS, giving us room to experiment and rapidly perfect
designs without being required to continually obtain new approvals for
specific UAS vehicles. Our outdoor flight testing is going well, and we
are very pleased with the R&D progress this testing has enabled.
In addition to this work, we also will prepare our distribution
network for the eventual integration of Prime Air delivery service.
Preparation will include optimizing our internal systems because, in
order to meet our Prime Air customer delivery goal of 30 minutes or
less, our UAS must be loaded quickly, and this presents fascinating
logistical challenges, including within our huge warehouses.
II. International Regulatory Activities
No country in which we now have distribution facilities has yet
adopted rules that would allow commercial UAS package deliveries. So,
in addition to our Prime Air R&D; testing; and distribution network
preparations, we are working with government agencies to develop
appropriate rules for small UAS operations. Such rules must allow UAS
applications to take advantage of a core capability of the technology:
to fly with minimal human involvement, beyond visual line of sight.
Such rules of operation should be proportionate to risk, setting a
level of safety but not mandating how that level must be met.
UAS present obvious safety risks of mid-air collisions and crashes
to the ground. In its recently-released Notice of Proposed Rulemaking
(``NPRM''), the U.S. Federal Aviation Administration (``FAA'') tied
these concerns to the lack of human ``see and avoid'' abilities and the
hazard of ground-to-air communications ``link loss.'' Both of these
factors would have been difficult to address even just a decade ago,
but automated UAS sense and avoid technology and on-board intelligence
address these factors and will mitigate the related risks.
Safety is Amazon's top priority and, earlier this month, I
discussed UAS safety with Europe's most senior leaders of aviation
regulation, including at the UK's Department for Transport and Civil
Aviation Authority; the European Commission (``EC''); and the European
Aviation Safety Agency (``EASA''). I also conferred with leadership of
the Joint Authorities for Rulemaking on Unmanned Systems (``JARUS''),
in which Asian, European, and North American aviation officials are
working on a set of UAS technical, safety, and operational requirements
to be recommended to aviation authorities worldwide. Amazon also
participated in the EC conference on UAS in Riga, Latvia, and this week
we are attending the International Civil Aviation Organization
(``ICAO'') UAS conference in Montreal, Canada.
I'm delighted to report that these aviation authorities with whom
we met in the UK and at the multinational bodies are enthusiastically
pursuing regulatory frameworks and operational rules for UAS. The
approach they are taking is eminently reasonable: it is risk-and
performance-based, and it is mindful of the tremendous opportunities
for innovation and economic benefits that UAS present.
Two reports released this month, from the EC's Riga conference and
from EASA, demonstrate the important planning already underway for
future commercial UAS operations. The official report of the Riga
conference included several important conclusions: UAS should be
treated as new types of aircraft with proportionate rules based on the
risk of the operation (``rules should be simple and performance
based''); rules must be developed now (``the basic regulatory framework
should be put in place without delay''); technologies and standards
need to be developed for the full integration of UAS in the airspace;
and EASA should lead the harmonization of UAS regulation across Europe.
Following the EC's Riga conference, EASA presented its new regulatory
approach for UAS operations, concluding that:
The operation of [UAS] should be regulated in a manner
proportionate to the risk of the specific operation.
Considering the broad range of operations and types of [UAS],
it is proposed to establish 3 categories of operations and
their associated regulatory regime. . . . This concept has been
developed to address two main goals: (a) Integration and
acceptance of [UAS] into the existing aviation system in a safe
and proportionate manner; [and] (b) Foster an innovative and
competitive European [UAS] industry, creating new employment,
in particular for SMEs.
By the end of 2015, EASA plans to present a ``draft regulatory
framework'' to the European Commission.
III. Testing and Planning in the United States
A. Current Rules for R&D Testing
American commercial entities want to innovate and perfect UAS
technology, and to do so we must conduct R&D testing. Amazon has a
large indoor R&D facility in Seattle. In this facility, our Prime Air
team of roboticists, scientists, aeronautical engineers, remote sensing
experts, and a former NASA astronaut has conducted flight tests on
rapidly improving designs. But of course we need to safely test these
designs outdoors, exposed to the flight conditions our UAS eventually
will experience in operations--namely, wind, turbulence, and the
variety of temperature, humidity, and precipitation conditions of the
real world.
So, beginning in early 2014, we began talking to the FAA about
obtaining permission to conduct R&D testing outdoors. And, from the
beginning, we made clear that the rapid pace of UAS innovation means
that we need permission to rapidly modify our test vehicles, without
administrative delays associated with every change.
We are very grateful to the FAA for granting us permission to
conduct UAS testing outdoors in the United States. This approval came
last Thursday, and we're eager to get flying here as we have been
abroad. However, the permission the FAA granted is more restrictive
than are the rules and approvals by which we conduct outdoor testing in
the UK and elsewhere. (It's even more limited than the rules applicable
to non-commercial, amateur UAS fliers in the United States.) Moreover,
obtaining permission took far too long, and certainly much longer--over
half a year--than it took in other countries.
The good news is that, while the FAA was considering our
applications for testing, we innovated so rapidly that the UAS approved
last week by the FAA has become obsolete. We don't test it anymore.
We've moved on to more advanced designs that we already are testing
abroad. Last Friday, we asked the FAA for permission to fly one of
these advanced UAS in the United States, as well, and we are hopeful
that this permission will be granted quickly.
B. Planning for Future Operations
Although the United States is catching up in permitting current
commercial UAS testing, the United States remains behind in planning
for future commercial UAS operations.
We are grateful for the FAA's newly-released NPRM, so far as it
goes. But it doesn't go far enough. Unlike the planning by the national
and multinational groups with whom I met in Europe earlier this month,
the FAA is not adequately addressing compelling UAS applications that
involve highly automated operations beyond visual line of sight. The
FAA has proposed rules in the NPRM--to be adopted probably in 18-24
months--that simply do not address these extremely important
applications. The NPRM only briefly requests comments on whether the
rules should permit operations beyond visual line of sight and, if so,
how enabling technology should be evaluated.
Although the FAA has asked a subcommittee of one of its industry
advisory committees to examine beyond visual line of sight operations
(and I am a member of this subcommittee), the group has only met twice
since its inception last year. This low level of government attention
and slow pace are inadequate, especially compared to the regulatory
efforts in other countries. This is not to suggest that regulators here
or abroad can quickly adopt actual rules for UAS operations beyond
visual line of sight. That may take some time. But surely regulators
should start proposing regulatory frameworks and rules for future
commercial UAS operations now.
IV. Opportunities for FAA and Congressional Action
Because the United States remains behind in planning for future
commercial UAS operations, one might assume that Congress must step in
to provide the FAA authority to act. But the fact is that, with few
exceptions, the agency already has adequate statutory authority. What
the FAA needs is impetus, lest the United States fall further behind.
Any impetus embraced by, or given to, the FAA should result in the
agency commencing--now--to plan and develop rules for UAS operations
that would encompass highly automated flights, beyond visual line of
sight. A good starting point could be the ongoing work in the
multinational body JARUS, in which an FAA staffer serves as the vice
chair. Elevating the level and intensity of FAA participation in this
group is one way the United States could confirm its commitment to UAS
technology and services. And, here at home, the FAA could immediately
begin--or be directed to begin--proposing regulatory frameworks and
rules for operations of highly automated UAS beyond visual line of
sight, perhaps through a further notice of proposed rulemaking.
Consumer privacy is an area in which the U.S. approach to UAS
regulation already is particularly strong. We recognize that UAS
technology could cause privacy infringement if commercial operations
are not undertaken in a sensible, privacy-conscious manner. Prime Air
is a future delivery service, not a surveillance operation, and we will
respect the privacy of every person, with stringent privacy policies
accessible to all. We strongly support the Commerce Department's effort
to develop, through a multi-stakeholder process, best practices on
privacy, transparency, and accountability.
Lastly, international harmonization of rules is strongly desirable,
and domestic balkanization by states and localities is not. Harmonized
rules, perhaps developed through JARUS or ICAO, should be a top FAA
priority internationally. And within the United States, uniform Federal
rules should apply.
V. Conclusion
In conclusion, Madam Chair, I look forward to working with you,
your Subcommittee, and the FAA to ensure that important commercial UAS
services become available in the United States safely and soon. And I
welcome your questions.
Senator Ayotte. Thank you, Mr. Misener. I would like to
welcome Mr. Jeff VanderWerff. Mr. VanderWerff is representing
the American Farm Bureau Federation. Thank you, Mr.
VanderWerff.
STATEMENT OF JEFF VANDERWERFF ON BEHALF OF THE AMERICAN FARM
BUREAU FEDERATION
Mr. VanderWerff. Thank you, Subcommittee Chair Ayotte,
Ranking Member Cantwell, and members of the Subcommittee.
My name is Jeff VanderWerff, and I am a farmer from
Casnovia, Michigan. I farm with my family just outside the Town
of Sparta, where I raise corn, wheat, soybeans, and apples,
with my father, uncle, and brother. I am the fourth generation
of my family to work our home farm which was purchased by my
great grandfather, a Dutch immigrant, nearly 80 years ago.
Today, my wife and I are proud to be raising the fifth
generation on that same farm.
Within our farm, I am responsible for the day-to-day
activities and operations including precision agriculture and
our agronomics. As a farmer who uses precision agriculture and
understands the importance of the agronomic data, I am here
today to discuss the potential benefits and pitfalls of
unmanned aircraft systems for my farm in Michigan.
Last summer, I attended a precision agriculture
demonstration that includes unmanned aircraft flying across
fields gathering data. The demonstration concluded with the
explanation of the images and that data. I walked away knowing
this was the next evolution in precision agriculture on my
farm.
As an agronomist and a farmer who relies on precision
agricultural techniques, I rely heavily on the data to produce
accurate information. Accurate information is critical to the
day to day business decisions I make. These decisions affect my
yields, environmental impact, and ultimately the economic
viability of my operation.
Using an unmanned aircraft has the potential to provide me
with another accurate tool to use in making optimal decisions
to maximize the return of my family's business.
One takeaway I had after seeing the unmanned aircraft
demonstration was its ability to provide detailed scouting
information on weed emergence, insect infestations, and
potential nutrient shortages.
Currently, I spend about 12 hours a week walking nearly
3,000 acres of land that we farm, and while this method is
effective, it is not real efficient. Using an unmanned aircraft
would allow me to address threats quicker and more importantly
before they develop into significant or potentially
catastrophic problems.
Reducing environmental impact is another significant
benefit of using unmanned aircraft. The imagery from unmanned
aircraft allows me to spot treat sections of my fields as
opposed to watering or spraying an entire field.
Images from the unmanned aircraft will allow me to identify
the specific locations where a specific treatment, be it
fertilizer, water, or pesticides, is necessary. This allows me
to eliminate the need to use these applications more broadly
across an entire field.
By spot treating threats to a crop, I not only lower the
cost of treatment, but I also have the potential of lowering
the environmental impact by minimizing the application.
While this technology has the potential to be another tool
in the toolbox, there are certainly some pitfalls that we need
to discuss. The privacy and security of the data collected by
unmanned aircraft is concerning to farmers and ranchers.
Even if an individual operator follows all the applicable
rules, regulations, and best management practices on his or her
farming operation, there is still concern that regulatory
agencies or one of the numerous environmental organizations
that unnecessary target production agriculture might gain
access to individual farm data through subpoenas.
The biggest fear that farmers face in data collection is
that third parties, including the United States Government,
could gain access to our data and use it against us.
Questions abound within the agricultural community about
who owns and controls the data we generate. If a farmer
contracts with a company authorized to fly an UAS, does the
farmer then own the data that is generated or is it shared with
both the contractor and the farmer. In the case of a farm on
rented ground, do I, the tenant, or does my landlord own that
data.
Again, the use of unmanned aerial systems will be an
important addition to farmers' management techniques, but it is
critical that the data remain under the ownership and control
of the farmer, and is not available to Government agencies or
others without permission.
In conclusion, the Farm Bureau is glad to see the Federal
Aviation Administration introduce its Notice of Proposed
Rulemaking for small UAS. The Farm Bureau is in the process of
developing our comments to the FAA regarding this proposed
rule.
It is our hope that farmers and ranchers will be able to
secure the rights through this process to use UAS as part of
their precision agriculture systems.
I thank you for the opportunity today, and look forward to
answering your questions.
[The prepared statement of Mr. VanderWerff follows:]
Prepared Statement of Jeff VanderWerff on Behalf of the
American Farm Bureau Federation
The American Farm Bureau Federation (Farm Bureau) is the Nation's
largest general farm organization, representing agricultural producers
of nearly every type of crop and livestock across all 50 states and
Puerto Rico. We appreciate the opportunity to submit a statement to the
Subcommittee on Aviation Operations, Safety, and Security for this
hearing on Unmanned Aircraft Systems: Key Considerations Regarding
Safety, Innovation, Economic Impact, and Privacy.
Farm Bureau supports the use of unmanned aircraft systems (UAS) as
another tool for farmers and ranchers to use in managing their crops
and livestock and making important business decisions. A farmer faces
daily challenges that can affect the farmer's yield, environmental
conditions on the farmer's property and, ultimately, the economic
viability of the farm. Farmers rely on accurate data to make these
decisions and the use of UAS adds a valuable and accurate tool for the
farmer in making optimal decisions to maximize return on farming
operations.
It has become widely accepted that the introduction of UAS into the
commercial industry will begin with American agriculture. The primary
reason American agriculture is viewed as the pioneer industry to use
UAS for a commercial purpose is that the airspace above the fields used
in agriculture is low risk, and many of the fields are located in
remote areas.
Farm Bureau sees another reason American agriculture will pioneer
this effort. America's farmers and ranchers embrace technology that
allows their farming businesses to be more efficient, economical and
environmentally friendly. American agriculture continues to evolve, and
today's farmers and ranchers are using precision agricultural
techniques to make business decisions. These decisions can impact the
amount of fertilizer a farmer needs to purchase and apply to the field;
the amount of water needed to sustain the crop; and the amount and type
of herbicides or pesticides the farmer may need to apply. These are
only a few examples of the business decisions a farmer makes on a daily
basis to achieve optimal yield, lower environmental impact and maximize
profits.
Farmers and ranchers are excited to see the transformation of a
hobbyist activity into the newest tool for precision agriculture. The
U.S. Department of Agriculture defines precision agriculture as ``a
management system that is information and technology based, is site
specific and uses one or more of the following sources of data: soils,
crops, nutrients, pests, moisture, or yield, for optimum profitability,
sustainability, and protection of the environment.'' \1\ This
definition encompasses the purpose of UAS within the agriculture
industry.
---------------------------------------------------------------------------
\1\ USDA, Natural Resources Conservation Service, ``Precision
Agriculture: NRCS Support for Emerging Technologies.'' http://
www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb104
3474.pdf. June 2007.
---------------------------------------------------------------------------
Farm Bureau sees the benefit of UAS through their ability to
provide detailed scouting information on weed emergence, insect
infestations and potential nutrient shortages. This valuable
information allows the farmer to catch these threats before they
develop into significant and catastrophic problems. By addressing
threats quickly, the farmer has a greater likelihood of being able to
respond appropriately so as to optimize yields.
The imagery from UAS also allows the farmer to spot-treat sections
of the fields as opposed to watering or spraying the entire field. The
quicker a farmer can discover a potential threat, the quicker the
farmer can address the issue. Images from UAS allow the farmer to
identify the specific location where a specific treatment--be it
fertilizer, water, pesticides or herbicides--is necessary; in doing so,
the farmer can eliminate the need to use these applications more
broadly across the entire field. By spot-treating threats to the crop,
the farmer not only lowers the cost of treatment but also has the
potential of lowering the environmental impact by minimizing
application.
Farm Bureau is glad to see the Federal Aviation Administration
(FAA) introduce its notice of proposed rulemaking for small-UAS. Farm
Bureau is in the process of developing its comments to the FAA
regarding the proposed rule. It is our hope that farmers and ranchers
are able to secure the rights through this process to use UAS as part
of their precision agricultural systems. That will allow them to scout
fields and will serve as another tactic at their disposal to limit the
use of agricultural inputs to only those areas of the field that
require treatment. That will be good for the environment as we will be
able to grow more with less. Many farmers will adopt this technology as
yet another way to live up to the promise of continuous improvement in
food production.
While Farm Bureau supports this new technology and the potential
opportunities it offers for farmers and ranchers, Farm Bureau is also
concerned about the data collected from UAS and the privacy and
security of that data.
Even if an individual operator follows all the applicable rules,
regulations, and best management practices in his or her farming
operation, there is still concern that regulatory agencies or one of
the numerous environmental organizations that unnecessarily targets
agriculture might gain access to individual farm data through
subpoenas. While a farmer's pesticide or biotech seed usage may be a
necessary and accepted practice, it could also be politically unpopular
with certain groups.
The biggest fear that farmers face in data collection is government
accessing their data and using it against them.
Questions abound within the agricultural community about ``who owns
and controls the data.'' If a farmer contracts with a company
authorized to fly UAS, does the farmer own all the data from that UAS
or is it shared by both the contractor and the farmer? In the case of a
farm on rented ground, does the tenant or the landlord own the data?
Farm Bureau supports the use of UAS and believes it will be an
important addition to farmers' management toolbox, but it is critical
that the data remain under the ownership and control of the farmer and
is not available to government agencies or others without permission.
Senator Ayotte. Thank you, Mr. VanderWerff. I want to thank
all of our panelists. I would like to direct my first question
to Ms. Gilligan. What I wanted to ask you about was with this
new area of rulemaking by the FAA and implementation of the
small UAS rule and subsequent rules that obviously need to be
addressed, how does the agency plan to fund this effort?
I saw in the Notice of Proposed Rulemaking that there is
some contemplation of cost recovery. It was $5 to register an
unmanned aircraft that we could discern, $150 for knowledge and
tests of operators, and $50 to verify the I.D. of an applicant.
Is that going to cover all the resources that you need
going forward in an expanding area, given that we have other
areas including implementing NextGen and lots of other things
we want to do for the airspace?
Ms. Gilligan. Senator, at this point, the FAA has absorbed
a lot of the costs of beginning the implementation process for
bringing UAS into the airspace. We do have pending in the
President's Fiscal Year 2016 budget request some additional
growth, both in personnel as well as in research and
development dollars and facilities and equipment dollars.
As we identify our requirements, we may be making
additional requests through the budget process. If we can
defend those requests, we would hope the Congress can support
them as well.
Senator Ayotte. Do you anticipate this is going to be a
self-funded thing? In other words, that the fees that people
pay that want to do this will fund this within the FAA or not?
Ms. Gilligan. No, at this point the Notice of Proposed
Rulemaking does not suggest fees fund the entire FAA program.
Those fees that you identified are to offset the costs of those
particular elements.
In terms of finalizing the rulemaking and providing safety
oversight and issuing approvals, as we do with manned
operations right now, we do not charge fees for those services.
FAA provides those services to the industry. We would at this
point provide those services to the UAS industry as well.
Senator Ayotte. Can I also follow up on the issue of as I
understand the proposed rule, it prohibits UAS operation above
people. We obviously allow other types of aircraft to go over
people, including helicopters, blimps, et cetera.
What was the thinking behind the prohibition, and is it a
perceived dangerousness with these unmanned systems themselves,
or is this something that you anticipate looking at and
addressing in the next reiteration of rules?
Ms. Gilligan. With respect to the proposal for small UAS,
we are talking about vehicles that are not designed against any
standards, either FAA set standards or industry set standards,
which is different from what we have for manned vehicles.
Because of that, we were looking at how to mitigate that
risk, and one of the limitations in the proposal is to limit
the amount of operation over people not involved in the
operation. This is an area that we have asked for comment on,
and we will be looking at whether and how we can best balance
that risk.
Again, because we are talking about introducing systems
that are not designed or manufactured in any kind of system
that we are accustomed to, we think that is a risk that needs
to be addressed in this rulemaking.
Senator Ayotte. Mr. Misener, as you hear this and with some
of the issues that you have raised, given how Amazon proposes
to be able to use these unmanned systems to help package
delivery, where do you see this issue in the rulemaking going
forward, and Ms. Gilligan, if you could help address some of
the concerns that Mr. Misener raised as well, but first I would
like to hear from Mr. Misener on this.
Mr. Misener. Thank you, Senator Ayotte. What the FAA has
done in its NPRM is fine as far as it goes. It really needs to
go further. We need to be looking further down the road to
beyond visible line of sight, highly automated operations. It
is coming. I can assure you that it is coming quickly.
The fact that we are not yet even proposing rules or
proposing frameworks for rules is lamentable. I think we ought
to move ahead now and at least be thinking about those rules as
opposed to just dismissing them as the NPRM did.
Senator Ayotte. Thank you. How do you address the concerns
that Mr. Misener raises in terms of the pace with which the FAA
is going forward to issue these rules in light of our
international competitors?
Ms. Gilligan. We agree that we need to and, in fact, we are
focusing on the area of authorizing operations beyond visible
line of sight. There are several technology challenges to being
able to do that, including the need to address the issue of
what we call ``sense and avoid.''
Pilots in manned aircraft have a regulatory responsibility
to see and avoid other traffic. That is a technology challenge
that still needs to be completely addressed for unmanned
vehicles.
There are also issues around the command and control system
and assuring again that there is a standard against which those
can be designed in a way that will assure a level of safety.
We have a number of initiatives underway with the UAS
industry. RTCA is working on standards for both sense and avoid
and command and control, and that involves all of the industry.
We have another subgroup under our Aviation Rulemaking
Committee that is looking at beyond visual line of sight
operations as well.
That will be the next focus area. That will be an area that
we will look at setting standards for, but it is a far more
complex area, and it is one where we do not yet have the
technology standards established. We expect to get those from
RTCA over the next year or so.
Senator Ayotte. I thank you. I will have follow-up
questions, but I would like to turn it over to Ranking Member
Cantwell.
Senator Cantwell. Thank you, Chairwoman Ayotte. With this
new interim rule that is out this afternoon, does that put us
on par with the Europeans or are we still behind? Ms. Gilligan?
Ms. Gilligan. I think we are in a different place than the
Europeans, and I think, as Dr. Dillingham indicated, that there
are a number of locations where they are able to authorize
different types of operations because they have much less
complexity in their airspace system. They have much less
general aviation that tends to operate at those lower
altitudes.
We are faced with some additional challenges that a number
of our aviation partners around the world just do not face.
What we have authorized today is that as we are issuing our
exemptions under Section 333 from reauthorization, the operator
will be able to immediately operate as long as the operation is
below 200 feet.
If they want to go above 200 feet, they must still go to
the air traffic organization and identify the airspace where
they want to operate so that we can assure safe separation of
the unmanned system from whatever general aviation or other
operations there may be in that airspace. We believe this is
increasing the flexibility that we can give now as we grant
exemptions.
Senator Cantwell. Mr. Misener, I do not know if you have
any input on that, but Mr. Dillingham, I wanted to ask you, are
we always going to be behind the Europeans because they have
already implemented GPS and we are still on radar, so they have
much more information about who and what is in the airspace?
Dr. Dillingham. Senator Cantwell, I would not say we are
behind. When you talk about GPS and NextGen, the U.S. and the
Europeans are working hand in hand to try to harmonize and make
those systems interoperable. With regard to the UAS, I think
that one difference between the U.S. and some foreign countries
is the legal framework. For example, in Japan where they have
been flying agricultural unmanned aerial systems for a while,
one of the differences is the farmer owns the airspace above
his land, so therefore, it is sort of a different perspective.
I think moving forward, with the U.S. working with the
international aviation community and the UAS industry, we will
in fact maintain our position as aeronautical leaders in the
world.
One of the things that I said in my statement is that if we
were to implement the Notice of Proposed Rulemaking now, we
would be on par in many ways with foreign countries. However,
we are probably 16 to 18 months away from doing that, and they
will still keep moving forward.
It is going to be that kind of back and forth, but there
are some reasons for it. FAA should be congratulated for moving
to the point that it has. As you said, there are still some
very critical things that need to happen to keep us in the
game.
Senator Cantwell. Mr. Misener?
Mr. Misener. Thank you, Senator. I think it is true that we
are on par when these rules get adopted, probably 18 to 24
months from now, for operations. Where we truly lag behind is
planning for the future. It is that high degree of automation
beyond visual line of sight flying is coming. The Europeans are
getting ready for it, we are not so much.
Senator Cantwell. I wonder, Ms. Gilligan, a couple of
things that we have done in Congress in partnership with the
FAA is to, within the FAA, create these centers of excellences
on things that we do not quite yet understand, whether it is
composite light weight manufacturing materials and approval on
products like the 787, so to keep the FAA up to date, they
created before they did that a center of excellence, same
center of excellence now in existence with the FAA in the lead
on biofuels, how are you going to get a drop in jet fuel.
Do we need one of these centers of excellence to help the
FAA on the technical side get the answers in advance so as the
market continues to develop, those questions are being
addressed, the research is being done, so to speak?
Ms. Gilligan. Yes, Senator. Again and actually, we have
gotten good support from Congress. In the last appropriations
bill, we were given additional appropriations for the purposes
of establishing a center of excellence.
That process is underway. The applications have been
received. They are under review. We expect to name the center
of excellence before the end of this Fiscal Year, and the
Administrator has challenged us to do that even sooner, as soon
as we possibly can.
I think it is in part because we see not only at the test
sites but again with a center of excellence that we can frame
these technology issues and some of the other challenges and
get the best minds in academia working on helping us solve
them.
Senator Cantwell. I think that last phrase is key, the best
minds in academia to help you. Thank you. Thank you, Madam
Chair.
Senator Ayotte. Thank you, Senator Cantwell. I would like
to call on Senator Schatz.
STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
Senator Schatz. Thank you, Chairwoman. Ms. Gilligan, the
FAA guidelines for recreational drones, I would like to go
through them and then ask for your comment. My understanding is
a drone must weigh less than 55 pounds, be flying below 400
feet, visual line of sight. Must not be flying carelessly or
recklessly, not interfere with manned aircraft operations and
not fly near an airport.
Importantly, there appears to be no speed limit for
recreational drones, and no prohibition on flying over people.
My question for you is although the Notice of Proposed
Rulemaking, I think, is progress, what are we doing at the 400
foot and down level, and who has jurisdiction?
Ms. Gilligan. The Notice, sir, is actually directed toward
operators who would want to be in commercial operation, which
we do not authorize right now at all. Hobbyists or recreational
users, in accordance with the reauthorization bill, are sort of
overseen by what we call a ``community standard,'' and we are
working with the American Modelers Association for them to
serve in that function.
They actually have a set of operating expectations for
their members, and those will be the----
Senator Schatz. Will they have the force of law?
Ms. Gilligan. They do not, but again, the reauthorization
was specific that it should be a community standard as opposed
to regulation.
Senator Schatz. Is preemption at play? In other words, if a
mayor wants to set aside--a mayor can decide to use a city or
county park how they wish in consultation with their Parks
Department, with their City Council. You can say no golfing, no
Frisbees, no dogs, dogs here, dogs not there, this is a passive
park. They have jurisdiction over the land. This goes to
Professor Villasenor's testimony.
My question is did we just preempt local decision makers
from making choices with respect to where recreational drones
are allowed and where they are not?
Ms. Gilligan. The Congress has preempted authority for
airspace to the Federal Government for quite a long time. FAA
is the sole entity responsible for the airspace. We do consider
that to be from the ground through as high as aircraft operate.
In fact, now we have commercial space operations as well.
Senator Schatz. I just want to be clear on this. There
would be no prohibition on flying a 54 pound drone 10 feet
above a ball field as fast as you want, because our statute and
the 2012 reauthorization preempts a local decisionmaker from
deciding what is allowable in public space and what is not; is
that correct?
Ms. Gilligan. I actually would have to ask our lawyers to
check the reading of the law. I think more importantly what we
see is there are a tremendous number of people who are using
these vehicles for recreational purposes, who are not well
informed about their responsibilities.
That is why the FAA, the modeling community, and the
manufacturers are doing the outreach that we are doing. Several
of the manufacturers are providing information in the packaging
so that people who buy UAS understand that they have a
responsibility if they are going to operate in the airspace.
Senator Schatz. Right. Professor Villasenor, did you want
to comment on that? I was taken by your citing of the 1946
Supreme Court case. I will just quote the Court, ``It is
obvious that if a landowner is to have full enjoyment of the
land, he must have exclusive control of the immediate reaches
of the enveloping atmosphere.''
It seems to me this question of at what sort of elevation a
landowner, either a public entity or private individual, ceases
to have full control over their land.
It is an open question, and it seems to me it is still
being adjudicated; is that correct?
Mr. Villasenor. I would say we are being forced, thanks to
unmanned aircraft, to actually figure out what we really could
afford not to figure out in as much detail before. No one would
really reasonably argue that as a landowner, I have the right
to stop United Airlines from flying over my property at 30,000
feet. Of course, the Causby ruling and many other rulings, it
is very clear that the airspace is a public resource.
The challenge is how low is public navigable airspace, and
clearly it does not include the airspace two inches above the
ground in my backyard. That would be ridiculous.
Senator Schatz. Do you think this should be articulated
through the lawmaking process, through the rulemaking process,
by community standards?
Mr. Villasenor. My concern is if we try to pick a specific
limit, like for example you have control up to 100 feet, then
you almost invite people to then sit right outside that limit
in ways that might be very problematic.
I think in that sense, it is better to sort of have things
be general in terms of reasonable expectation of privacy is not
specific, but we all know when it is in violation----
Senator Schatz. Even the courts have----
Mr. Villasenor. The courts have figured it out. That has
worked well.
Senator Schatz. I just have one final question, with your
indulgence, for Ms. Gilligan. I guess my basic question is are
model aircrafts--should we be treating model aircrafts and
drones synonymously? It seems to me some of the kind of policy
infrastructure did not really envision drones as they are
emerging. Maybe I am wrong here.
When I hear model aircraft, I do not picture a 54 pound
object moving at 100 miles an hour. Maybe I am still catching
up myself. Can you just comment on that very briefly?
Ms. Gilligan. I think what we are seeing, as you
highlighted, is that many people who are buying unmanned
systems are not what we would have historically considered
modelers. Modelers were generally aviators. They came into it
because of a love of aviation, they wanted to experiment with
the physics of flight and build their airplanes, those kinds of
things.
We have a different part of the community joining us now,
and we and the modeling community are working hard to make them
understand they have aviation responsibilities that go beyond
being able to buy this really interesting toy that they want to
use in their backyard.
Senator Cantwell [presiding]. Thank you. Senator Moran?
STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Chairwoman, thank you very much. Ms.
Gilligan, the FAA's proposed rules, there is no requirement for
an UAS operator flight training, nor is there any requirement
for any airworthiness certification of the equipment.
Those standards exist to ensure that vehicles are safe and
operators can safely utilize them. How are those issues going
to be addressed in the future?
Ms. Gilligan. Senator, on the issue of airworthiness, we
looked at the language in the reauthorization bill, which
authorized the Secretary to make a finding that there was no
need for an Airworthiness Certificate if certain other
criterial were met. Those were related to the speed, weight,
and location of operation.
What the rule does is describe those criteria and provide
limitations that are consistent with the statute in such a way
that we felt met the expectation that there would not be a need
for airworthiness certification to a particular set of
standards.
I am sorry, I forgot the other one you asked about.
Senator Moran. The operator. Airworthiness of equipment and
the operator.
Ms. Gilligan. There is an operator testing requirement. It
is different from the private pilot requirements because, of
course, they will not have to actually manipulate the aircraft.
In order to pass the test, it will be necessary to receive some
education in the standards of operating in the airspace.
We believe that the testing requirement will assure that
people are competent for the purposes of operating their
system.
We have asked for comment. We will be interested to see
what we get back from the community, to see if we need to
adjust those proposals in any way.
Senator Moran. Thank you very much. Mr. Morris, let me
change topics. In the discussion of developing a system of
control of UAS over long distances using existing cellular
telephone networks or at least existing cell towers, that
conversation, are we recognizing the considerable technological
hurdles that are out there, and are the telecommunication
companies prepared for this task?
Mr. Morris. Senator, we really are, I think, at the very
beginning of the development of kind of the commercial
aviation. I am honestly not thoroughly familiar with the use of
the cell towers in connection with UAS.
I think that is something that we would need to get back to
you on.
Senator Moran. I would welcome that.
Let me switch to the Farm Bureau. I am sure you said this
in your testimony, and I was not here to hear it. I would be
glad to hear about the value of UAS in Kansas. Much of
agriculture recognizes there is a great potential here.
I wanted to ask you a specific question about how necessary
are beyond line of sight operations for agricultural purposes?
Mr. VanderWerff. Thank you for the question, Senator. One
of the other panelists spoke earlier about the use by the
Japanese and some of the uses that are going on in the Asian
countries. They are using UAS in ways far beyond where we are
now in terms of they are not only using them for scouting, but
they are using them for application of nutrients, things of
that nature. Many of those things are beyond line of sight
control.
Presently, all UAS we have available in the U.S. are line
of sight controlled. I will say, and to some of the other
points that have been made, the safety features are extremely
redundant.
Once that vehicle exceeds the prescribed distance within
the software, it automatically turns and returns to the
geosynchronous point at which it started. When the battery is
running low, it drops to a specified elevation and returns to
where it started from. If you lose control of it, it comes back
to where it started from.
It is not like these things leave your line of sight and
just go buzzing out around the countryside. They do return to
where they started from. That is all based on the
geosynchronous information that was put in when they were
launched.
Senator Moran. Thank you very much. Thank you, Chairwoman.
Senator Ayotte [presiding]. Thank you. Senator Markey?
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Madam Chair, very much. I am
aware of the many beneficial uses of drones, including spotting
wildfires, examining crops, monitoring traffic. While there are
benefits to drone use, there are also risks of misuse, these
21st century eyes in the skies should not become spies in the
skies.
Today, just as we have rules of the road, we are going to
need rules for the sky as well. I believe we can achieve both,
protect privacy and give life to this new technology that will
bring jobs and economic growth to our country.
Unfortunately, today, when it comes to privacy protections
for the American people, we are flying blind, flying and
potentially spying robots sounds like science fiction, but they
are a reality right now. Their technology is getting cheaper
and more accessible.
This drone here has two cameras on it that can be easily
purchased and online for only $100. Two cameras flying over
everybody's house in the United States.
The FAA has already given exemptions to nearly 50
commercial operators and announced today that it is planning to
expedite the process so that drones can fly in the national
airspace with no clear privacy rules.
Today, operators are allowed to collect whatever
information they want about you and me, and they can then use
or sell that information however they choose. This is why
earlier this month, I introduced the Drone Aircraft Privacy and
Transparency Act.
The bill requires, one, commercial drone operators to
disclose what data they have collected, how that data is used,
and whether the data will be sold, and when the data will be
deleted, if at all.
Number two, law enforcement must obtain a warrant before
using drones except in emergency circumstances, and three, the
FAA must create a publicly available website that lists where
and when drones fly.
As the Committee continues to process the FAA
reauthorization, I look forward to working with my colleagues
on these issues.
Ms. Gilligan, if the FAA does not incorporate any Federal
privacy protections into the final drone licensing process, and
I saw a commercial drone flying over my house, would I be able
to find out how the company uses the data they collect or if
they sell my private information?
Ms. Gilligan. Senator, we do make available the information
about which operators we have authorized, and we do make
available information about the airspace in which they are
operating.
Senator Markey. But would I be able to find out the data
which they have collected? Would I be able to do that? If I see
it flying over my house, can I call the FAA and can you then
say provide the data over what you filmed in the backyard of
that American? Can you do that?
Ms. Gilligan. The FAA does not currently collect that
information.
Senator Markey. Would I be able to at least find out who
owns or operates the drone that was flying over my house?
Ms. Gilligan. As I said, we do keep records about what
airspace operators are authorized to operate in. That is
publicly available today.
Senator Markey. It is on a public website right now?
Ms. Gilligan. Yes.
Senator Markey. I could find out who just flew a drone over
my backyard?
Ms. Gilligan. I believe that is the case, sir. I know it is
publicly available. We also release it in response to FOIA
requests. It is available. I apologize, offhand, I do not know
if it is one that you can access from your IPad here today.
Senator Markey. You are saying if somebody sees this
outside of their window and they are filming their family
members in the backyard, that right now, an individual in
America could call the FAA or go to a website and find out who
owned that drone? Is that what you are saying?
Ms. Gilligan. We have the information about who has been
authorized to operate in what airspace. Whether or not that was
an authorized operation, I cannot tell you. If it was
authorized, the records on who is authorized to use that
airspace are available.
Senator Markey. Are people authorized to just film families
in the backyards of their homes?
Ms. Gilligan. The purpose for which they are filming is not
something I think we keep track of.
Senator Markey. Again, that goes to the privacy issue. If
families have their children in the backyard and those children
are now being filmed by a drone, what can we do to protect that
family from all these nefarious individuals, maybe now trying
to take advantage of the absence of real privacy rules?
Ms. Gilligan. I think that is why the Administration has
begun the initiative that was announced and that NTIA is taking
the lead on what Mr. Morris described earlier.
Senator Markey. Again, what I am saying is in the absence
of Federal laws that we put on the books, these drones with
cameras, for $100, are just flying over backyards of people,
parks, people all over the country.
We have to put strong, enforceable laws on the books that
ensure that ordinary Americans know that information is being
gathered about their children, that it is being collected, and
it potentially is being sold, and there are no rules against
any of that.
In the absence of us putting those protections on the books
in this committee, then we are allowing all of these
technologies to take off without the values that Americans
would want to have being built into this new technology. That
is our job on this committee.
This is an inanimate object. It has no values, good or bad.
We are the ones who are going to have to animate it with the
values that we believe it should have, as it potentially
engages in predatory activity against the families of our
country.
I thank you, Madam Chair.
Senator Ayotte. Senator Peters?
STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN
Senator Peters. Thank you, Madam Chair. Mr. VanderWerff, it
is wonderful to see you here as a fellow Michigander, and
hearing your testimony today. In addition to being a fellow
Michigander, you are also a proud alumni of Michigan State
University. It is great to have you here, of course, from one
of the great agricultural universities in the country.
I think it is important for you to be here as well in the
fact that I think if you look at the applications of these
drones and the opportunities for economic benefit, it is
probably the agricultural sector where we can see some of the
most significant increases of productivity.
That is what I want to talk to you a little bit about. You
mentioned it in your testimony. Perhaps we can flush it out a
little bit.
I know farming has changed very dramatically over the
years, and I have had the opportunity, for a guy who did not
grow up on a farm, to be on the tractors which look like
computers now. They do not look like tractors, with GPS and all
sorts of geographic information on them as you are dealing with
a field.
You talked about the ways these unmanned drones can help in
productivity. Could you quantify that? Are there things these
drones can do that you just cannot do given all the
sophisticated equipment you already have now? What is that
going to mean for your bottom line?
Mr. VanderWerff. Thank you, Senator, for the question. The
benefits of these unmanned aerial vehicles on our individual
farms and ranches are multifold, and they are not specific to
any one type of production system.
Everything from cattle ranchers in the Western United
States who are looking to find their herds of cattle over large
distances very quickly, to specialty crop growers, like myself.
I do not know if any of you have ever been in a commercial
apple orchard, but if you take an area the size of 10 city
blocks and put rows of trees on it 12 feet high, it is like
being in a giant labyrinth. You can not only lose yourself, but
can actually lose equipment very quickly. Unmanned vehicles
allow us to get that bird's eye view to identify issues.
On our grain side, the grain operation is probably where we
are most excited about the potential benefit of these vehicles.
Being able to, for example, fly over a corn field and look
through the lens of an UAV for invisible infrared light
signatures, heat signatures coming off the crop, we can
identify plant stress. We can identify weeds. For example, a
patch of grass will give off a different heat signature than a
field of soybeans.
Rather than having to walk the entire field or apply a
herbicide to the entire field, I can simply identify an area
with an UAV and then make that economic determination of
whether or not it is going to be beneficial.
Let's look at some of the issues that are going on right
now in the Western United States with water shortages in the
Ogallala Aquifer. I have a number of friends in Nebraska and
the Dakotas and Kansas who are extremely excited about the idea
that they no longer have to just blanket apply an inch of water
to an entire quarter section. They can fly an UAV over it and
map the heat signature coming off and apply water where it is
needed, when it is needed, and how it is needed.
This technology is very exciting. It is going to
revolutionize even more of the agricultural industry that we
are in currently. It is going to continue to make us the most
competitive agricultural country on the planet.
Senator Peters. Based on the large areas that you have to
cover, the regulations which limit line of sight operations,
that is not going to work for you, is it?
Mr. VanderWerff. Line of sight operation is a challenge
right now. It is a matter of location, if you are in part of
the United States where the ground is relatively flat, line of
sight can go a long way. You are basically limited to the
sharpness of your eyesight.
Where I am in Michigan, line of sight may only be a few
hundred feet before you have trees and other obstructions. That
is where the GPS capabilities of these technologies, as Mr.
Misener was alluding to earlier, are so relevant to us.
Being able to simply take your iPad and geofence the fields
you want to fly in, swipe your finger to map out the pattern in
which you want it to fly, the aircraft will take off. It will
fly that pattern. It will do the mapping. It will then come
back, land. I can upload that data into my computer and have it
right there.
The idea that these can take off from my home farm, fly
half a mile or mile to another farm, do that mapping and
return, is exciting. The technology is there but the question
becomes whether or not we will allow the technology to reach
its fullest potential. I believe we can do it safely and we can
do it effectively, but again, the technology evolves ever
faster.
Senator Peters. Right. Thank you. Ms. Gilligan, the FAA has
granted, and I think you mentioned in your testimony, some 60
exceptions under Section 333, which was granted for some of
these precision agriculture operations, as well as some aerial
photography.
I understand there are currently nearly 600 petitions
pending. Does the FAA have any plans to establish a process to
streamline this petition process similar to the 60 ones that
have already been granted, particularly as we hear about the
important applications this has for agriculture?
Ms. Gilligan. Yes, sir. We are learning lessons as we go
through this process. Today, we have issued 10 additional
approvals in a process that we are calling a ``Summary Grant,''
which means we can look at an individual petition and if it is
similar enough to one we have already fully analyzed and put
out for public comment, we do not need to repeat that process
again.
We believe that will substantially increase our ability to
handle these more quickly, because we are seeing now that there
are certain buckets in which many of them fall. There are still
some very unique ones, and those will have to go for public
comment and more complete analysis.
To the extent we can, we are trying to link new
applications with decisions that we have already made to
streamline them. In addition, today we issued what we are
calling a ``Broad COA,'' Certificate of Authorization, for
airspace, 200 feet and below.
If the applicant can operate and meet their mission below
200 feet, they will not have to get additional approvals from
the air traffic organization. That will also shorten the
process.
We have a dedicated team, so they are learning as they go
as well. They are getting more efficient at it as would be the
case. We are dedicated. The Administrator has challenged us to
move these petitions as quickly as we possibly can.
Senator Peters. That is good. That should help our
agriculture uses that we heard. Thank you so much. Appreciate
it.
Ms. Gilligan. Yes, sir. Thank you.
Senator Ayotte. Senator Booker?
STATEMENT OF HON. CORY BOOKER,
U.S. SENATOR FROM NEW JERSEY
Senator Booker. Ms. Gilligan, the White House drone, was
that a commercial vehicle?
Ms. Gilligan. No, it was not.
Senator Booker. The airplane problems we have had with
people flying drones close to airplanes, were those commercial
vehicles?
Ms. Gilligan. Not in most cases, sir.
Senator Booker. Mr. Misener, have any of the sensational,
salacious, exciting drone things that are showing up in
newspapers happening because of Amazon?
Mr. Misener. No, sir.
Senator Booker. We need to distinguish between commercial
operations and private use. I was happy to see my colleagues
bring up private use, but the commercial usage, have you given
permission for anybody commercially to fly over large crowds of
people?
Ms. Gilligan. No, sir; we have not.
Senator Booker. No. That is not an issue. Mr. Misener, I am
a little bit upset because it seems like when it comes to
Government moving at the speed of innovation, whether it is in
biologics, whether it is in the backlog at the Patent Office,
or in this area, we are slowing this country where innovation
is going on overseas at extraordinary pace, and we are being
left behind.
Forgive me your name, Mr. VanderWerff.
Mr. VanderWerff. VanderWerff; yes.
Senator Booker. Thank you very much, Mr. VanderWerff. You
talked about the revolutionary impact allowing drones to be
used could have on agriculture. Those revolutions are happening
overseas, correct, right now as we speak, our agricultural
competitors are investing in using this technology; is that
correct, sir?
Mr. VanderWerff. It is correct; yes.
Senator Booker. This is what is hard for me to believe, the
slowness with which this country is moving. If the actual
aviation industry was regulated back in the time of the Wright
Brothers, we may have gotten first in flight, but other people
would be up flying planes, commercial passenger planes, before
we even got an aviation industry started here.
Mr. Misener, it is frustrating to me, and I would love to
know that last week FAA allowed Amazon to begin testing UAS
outdoors in the United States, but it was really in a limited
fashion that still puts us in America in the back seat compared
to what you are allowed to do in other countries, and frankly,
no mishaps, no sensational articles, nothing like that is
happening with the experiments that you all are doing to
advance this technology; is that correct?
Mr. Misener. Yes, sir, although I will say the FAA has, I
believe, turned a corner. I have discussed this with Ms.
Gilligan before. Things are getting better with respect to
testing. Where they are not getting better is with respect to
planning for the future.
Senator Booker. Let the record show you sufficiently sucked
up to the FAA.
[Laughter.]
Senator Booker. They will look at your application kindly,
sir. Can you describe the work that Amazon is doing in other
countries in relation to what we are doing here? How about that
is a better way to ask it.
Mr. Misener. Thank you, Senator. Thank you also for
noticing that. What we are doing in other countries is just it
is more flexible. We are allowed to innovate quickly in other
countries in a way that we have not yet been allowed here.
The jury is still out on whether the system that is set up
under the grant last week will work. I think it will just
because I feel like the FAA staff now is motivated, here I go
again, but they are motivated to be helpful and to get us
innovating again here in the country.
It is just that we have not been able to do it yet, and we
are hopeful to do it very soon here.
Senator Booker. The FAA's dedicated professionals, I have
no pecuniary interest in saying nice things about the FAA,
incredibly committed folks. My comments are in no way talking
about them.
In fact, Administrator, I would say--Associate
Administrator, I would say you have some constraints on how
well you are able to move, because both the FAA and the
industry agree that exceptions to the process is too slow and
allows only narrow applications for companies that are lucky
enough to be granted the exemption.
I am asking you what steps can Congress take in the FAA
reauthorization to strengthen your ability, the FAA's ability,
to issue exemptions more broadly and in less time?
Ms. Gilligan. Thank you, Senator. I think, as you know, our
Administrator is also interested in looking at how we might be
able to take full advantage of whatever authorities we have,
and perhaps work with the Committee if we need to broaden
those.
In fact, there is technical assistance already underway
between our staff and staff here on the Committee to look at
these particular issues to see what more can be done. We will
certainly continue to support the Committee as we review those
issues.
Senator Booker. Can the FAA quickly and currently issue
exemptions for industry to safely operate UAS beyond the line
of sight? That is a big issue.
Ms. Gilligan. We would have the authority to issue those
exemptions if in fact we could make the safety case, and I
think the challenge that we face with beyond visual line of
sight is we do not yet have the technology standards to be able
to evaluate whether in fact we have safe enough technology to
permit that to occur.
Senator Booker. Thank you. I would just say to the Chair, a
lot of the comments, this is being muddled, and it would be
great to have a private drone hearing. There are a lot of
issues about anybody and their friends being able to go out and
get a drone and do things with it, but the commercial folks who
have been acting responsibly are really being held back
compared to our global competitors.
Senator Ayotte. Thank you, Senator Booker. I think you
raised some very good points here in terms of some of the uses
of the drones and making sure we are clear on where the misuse
is happening.
I would like to call on Senator Daines.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thanks, Madam Chair. I certainly have
appreciated the comments I have heard in this hearing and
raising probably more questions than answers.
I come from the state of Montana that places great value in
privacy. In fact, I might argue we have different individual
privacy expectations perhaps than people in large urban areas.
That is why people like to live in states like Montana.
I have also been talking to members of our state
legislature who are interested in addressing these privacy
concerns at the state level.
For Ms. Gilligan, I think it probably relates to what is
going on at the FAA. Certainly, I commend the FAA for taking
action on the certification, on the airworthiness aspects of
these commercial unmanned systems, and the Notice of Proposed
Rulemaking, on small commercial unmanned aerial systems, but I
do have concerns about the privacy aspects associated with the
remotely piloted aircraft, many of which are not being used
commercially. In fact, what Senator Booker was really
distinguishing between, commercial use and non-commercial use,
and therefore, are not subjected to the proposed rulemaking.
My question is does the FAA think there is an appropriate
role for local regulation of non-commercial or hobbyist uses,
and if so, what might they be?
Ms. Gilligan. Senator Daines, I am not sure the FAA has a
position on local control. What I do know is that in the last
reauthorization, Congress gave us very clear direction to allow
hobby operations without additional regulatory restraints.
We have complied with that. We are working with the model
aircraft community to allow the use of what they call
``community standards,'' and the American Modelers Association
is taking the lead and providing information to their members
about how they can properly operate safely and remain
recreational users of this kind of technology.
Senator Daines. What is your opinion, I guess, as a
professional, someone who is in it every day, knows a lot more
about it than I do, do you think there would be a role, do you
think that is a good idea allowing the states to have an
ability to regulate the non-commercial use?
Ms. Gilligan. We are always concerned about local
regulations that may affect the national airspace system. What
we do know and what Congress has been clear about is that we
need a national asset in the airspace, and those who operate
broadly in the airspace need to know that what occurs in one
location is safe and consistent with what can occur in other
locations.
I am not exactly sure whether or how a state or local
entity might be able to carve something out to address modelers
or to address recreational users. They may well be able to do
it. We would want to look closely at whether and how they did
that.
Senator Daines. Let me ask Mr. VanderWerff at the American
Farm Bureau, certainly I know some of our ag folks back home
could see the value of finding a lost cow when we have more
cows than people back home, which I am grateful for.
In your testimony, you questioned who owns and controls the
data collected by an unmanned system. An example you used was
with a contractor flying the unmanned system and potentially
being able to share or even sell that data with outside
parties, including the Federal Government, frankly is chilling.
What do you think is the best means of regulating this
data, and more importantly, how can we ensure enforcement?
Mr. VanderWerff. Thank you for the question, Senator. When
we speak about the issue of data privacy, I guess I would refer
you to our overall stance as American Farm Bureau and as
agriculturists in terms of our data privacy.
We are concerned about what is being collected, who
potentially is viewing it, whether it was EPA or a third party
environmental group. We believe that data ultimately belongs to
the farmer who created it, and they should have the right to
essentially determine who is able to use that data and for what
purposes they would use it for.
Senator Daines. Any thoughts on how we ensure enforcement?
Mr. VanderWerff. I would refer that to the full written
comments we will have with these proposed rules that will be
out in the next short time. I would have to get back with you
on that one specifically.
[Mr. VanderWerff later submitted this information in
reply:]
As a starting point, AFBF supports adherence to the Fair
Information Practice Principles (FIPPs), a set of internationally
recognized practices for addressing the privacy of information about
individuals. FIPPs is the appropriate framework for handling
information collected by UAS, and it should be used to inform the
stakeholders' UAS privacy discussion on the collection, storage and use
of data.
Farmers are concerned about UAS data collection from many
unauthorized sources. The first concern is the prospect of government
agencies--local, state or federal--inappropriately accessing sensitive,
proprietary data and attempting to use it against them in connection
with regulatory enforcement or litigation. Second, AFBF is concerned
about data gleaned from UAS operated by commercial entities and private
individuals, insofar as such entities and individuals are not bound by
restrictions applicable to the government. Increasingly, private sector
data breaches can be even more invasive and economically harmful than
those targeting the public sector. Farmers believe that both private
and government users must respect individuals' reasonable expectation
of privacy in a way that distinguishes between routine, unremarkable
uses of UAS technology and more invasive, intrusive uses. AFBF believes
that use under the latter scenario should require some form of active
authorization (e.g., obtaining a search warrant in accordance with the
Fourth Amendment, obtaining written permission from the pertinent
landowner and/or farm operator, or providing public notification).
Invading an individual's privacy should result in civil and/or
criminal liability, as appropriate with a state's and/or Federal law.
UAS use in the farming/ranching context presents some unique
challenges with respect to privacy. While AFBF recognizes that it would
be impractical to require UAS operators to notify each and every
individual in a position to visually observe the UAS in the air
regarding the purpose of the flight and planned routing, UAS operators
should nonetheless be required to secure the written consent of the
landowner and/or farm operator if the operator knows or has reason to
know that his or her UAS will be surveying or gathering data about
someone else's private property.
Senator Daines. Thank you. Mr. Morris, has the NTIA
explored how the ownership of data will be addressed?
Mr. Morris. Senator, our process is really just at the very
beginning. We have put out a Request for Comment, and I
certainly expect one of the issues raised will be an ownership
question.
We are not in a position to effect the legal rules that
actually would affect ownership, but certainly in terms of
looking at best practices that address issues like the farmer
concern on data, that certainly is a topic that we expect will
be discussed in our process.
Senator Daines. Thank you. I am out of time.
Senator Ayotte. Senator Heller?
STATEMENT OF HON. DEAN HELLER,
U.S. SENATOR FROM NEVADA
Senator Heller. Madam Chairwoman, thank you. Thank you for
the time, and I want to thank all of our witnesses for being
here, appreciate your expertise. I apologize for not being on
time. Myself and Senator Moran were in the VA Committee. I
apologize if my questions overlap a little bit.
I would like to address something that Senator Booker was
talking about as far as agriculture is concerned, coming from a
farm myself. He failed to mention fertilizing also. Maybe he
did. All the things that you were talking about, again, I want
to stress, are innovations that whether they are in European
countries or Asian countries are being used today; is that
correct?
Mr. VanderWerff. That is correct, sir; yes.
Senator Heller. Nevada was designated one of the six
unmanned air system test sites. For that, we are grateful. We
have some great facilities. Nellis, Creech, Fallon, go down the
list, Boulder City.
In fact, we had a test recently with the Governor of one of
these unmanned air systems. It was a wonderful experience to be
part of that test and to see what they are doing in that
particular facility.
Here is the concern, and I think it was well said by
Senator Booker, and that is the technology cannot be successful
if it is hampered by regulations, over burdensome, time
consuming approval process, and that is the complaint that I am
hearing today.
I guess I will ask Ms. Gilligan this question. There is no
doubt, there are privacy issues that you guys have to overcome,
and I give you credit for the hard work it is going to take to
overcome that.
These first steps of just testing have become very, very
restrictive. I believe it will dissuade a lot of companies and
a lot of people from using some of these test sites, and
devoting the kind of resources that will be necessary.
I guess my question to begin with would be quite simple,
and that is if the FAA was not required by law to begin work on
integrating drones into the national airspace, would the agency
be working on it at all?
Ms. Gilligan. Yes, sir. We have applicants who have come in
who actually want to fully certify their vehicles, and those
are underway in our Los Angeles Office. We are building what
are the set of standards that those vehicles need to meet.
We have an exemption process that anyone could have applied
for to authorize operations in the airspace. We are as mindful
as the members of the Committee that this is a growing
industry, and we do want to be able to support it, but we also
want to make sure we have identified if there are risks that
could be introduced into the system and that those risks are
fully mitigated.
Senator Heller. I guess a concern is, and the feedback that
I am getting, being one of the six states, the process seems to
inhibit testing as opposed to expanding it. Technology
development here in the United States where other countries
have already clearly moved far beyond what we are able to do.
Let me give you a couple of examples. The hoops they have
to jump through, every time they want to change designs of
their drone, it takes months to get that new design approved.
If they do a test and they want to test the same design in a
different manner, they have to jump through all these hoops. It
takes months to get the approval in order to do that.
They are arguing it just does not foster innovation. That
can be frustrating. That is what I am hearing, I am hearing
that kind of frustration.
I am going to give Mr. Misener one more chance to push back
on the FAA.
[Laughter.]
Senator Heller. You said in your testimony last week that
the approval for Amazon was a model that was already outdated.
What is it going to take from the FAA for you to do the work
you guys are trying to achieve?
Mr. Misener. Thank you, Senator. I think what it will take
will be a recognition that these are different kinds of
aircraft than the ones they are used to dealing with. This is
not a 777. This is a little device.
We would like to be able to tweak things and move quickly
and innovate. We call it ``iteration'' within Amazon. That
means making new changes all the time, constantly improving,
perfecting.
I think we are almost to the spot with the FAA where we can
do that domestically. It has just taken a long time to get
here. My biggest concern, Senator, is we are not planning for
that future in which drones will be able to fly beyond visual
line of sight with a high degree of automation, we are not
planning like the Europeans are, and we should be.
Senator Heller. Mr. Chairman, my time has run out, but
thank you.
Senator Booker [presiding]. Something unprecedented has
happened. I was designated by Kelly. That is my little bit of
seniority. This is a shocking and unprecedented moment where I
am now in charge----
Senator Heller. Congratulations.
[Laughter.]
Senator Booker.--of the hearing on drones. A very exciting
thing. I do have to say just for the record now that I am in
charge that you are a pretty cool guy for someone who went to
USC.
[Laughter.]
Senator Heller. I will take it.
Senator Booker. I actually tend to agree with--I never
thought I would agree with a Trojan as much as I do with
Senator Heller. I would like to get into another round of
questioning. I do not know if you have more.
Senator Heller. Sure.
Senator Booker. If I may begin, and just want to finish up
with a couple of questions to Associate Administrator Gilligan,
if you will. Can the FAA make a commitment into looking into
how we can begin safely testing and researching the out of
sight ability for UAS to fly? That is a big concern for me.
From what I read and from talking to people in the industry, it
puts a significant barrier to our ability to push the bounds of
what is possible with this technology.
Ms. Gilligan. The risk that is introduced with beyond
visual line of sight operations is that the vehicle itself
cannot sense and avoid if it is in proximity of other aircraft.
Right now, in the manned system, we have the pilot that
plays that role, and we are looking for how we can replace that
role for the unmanned system. The RTCA is working with an
industry group to design standards for sense and avoid. Once we
have those standards, we can put them forward and we can
determine how we can properly and safely allow for those
extended operations.
Senator Booker. Sorry to interrupt. Under Section 333, what
Mr. VanderWerff had said about on a large farm, no people, no
other aircraft in the area, could you understand an exception
might be worthy for agricultural purposes with a risk of in air
collisions might be significantly if not dramatically lower?
I would imagine, Mr. VanderWerff, if you could just nod up
or down, that other countries are using out of line of sight
operations for their drones in agriculture; is that correct?
Mr. VanderWerff. That is my understanding.
Senator Booker. Yes. Could you imagine the United States
catching up to that and making that exception?
Ms. Gilligan. It certainly might be something where we can
make a safety case for an exception. What we would need to
understand is what are the other operations in the area.
The U.S. has a very active general aviation community. We
also have a very active manned agriculture community who have
raised their own concerns about the idea of the use of drones
in the airspace where they are operating as well.
We do need to make sure that we understand what the risks
are and that we are mitigating them properly.
Senator Booker. You just feel like the other countries,
Germany, France, New Zealand, they are all just being far more
risky than the United States? They are taking unnecessary risks
on while the United States, we are much more cautious?
Ms. Gilligan. I do not know that they are taking on
unnecessary risks. I do know they have far less general
aviation in any of their airspace. They have a much less
complex airspace system generally. Their risks are different
than ours. I assume they are addressing their risks
appropriately, and we would look at doing the same.
Senator Booker. For areas of the country where we do not
have a lot of crowded airspace, like I would imagine the apple
orchards of certain states. I know New Jersey is not such a
state. There are some places out West.
Could you see us making more speedy exceptions to those
geographic areas where there is not complex airspace,
especially at certain heights? I do not know if the 150 to 250
foot airspace is that crowded in farms in say the Midwest.
Ms. Gilligan. We are using the exemption process now to
authorize visual line of sight operations. With an appropriate
safety case, we would use the exemption process for beyond
visual line of sight. But, we need to answer how is it that the
aircraft are going to be properly controlled and properly
separated in the event there is other aircraft.
The reality is we have a lot of what we call ``itinerant
aircraft.''
Senator Booker. How are foreign countries answering that
question?
Ms. Gilligan. I would have to look at it more closely, sir.
I do not know exactly how they have addressed that risk, but I
can do that.
Senator Booker. Somehow they are addressing the risk, they
are doing it better than the United States, they are doing it
quicker than the United States. We are not answering those
questions.
Ms. Gilligan. They are doing it differently than the United
States, sir. I agree with that. We are looking at how we can
continue to enhance the integration of UAS.
Senator Booker. OK. I am going to just continue. Many of
the people on the panel--I would just like to get a chance to
get more feedback from other panel members--have been studying
the drones and use of regulatory structures.
I have been very impressed with the UAS usage and
technology abroad as I have talked about. I have seen examples
of drone use to deliver medication in difficult places to
reach. They have been used to monitor and protect against
animal poaching in Africa, in exciting ways. They have been
used to fix poles and lower the risk of people who have to
climb up a lot of our poles.
Like your home drones are being used to monitor farms as we
have been told and ensure the animals are getting humanely
treated.
This technology to me has unbounded potential. We have a
history in this country of embracing that potential. It has the
ability to extremely accelerate productivity, lessen our
environmental footprint. It actually has the ability to enhance
safety in this country, and it also has a chance to provide
services that would not have otherwise been practical or
affordable.
I would just like to ask real quickly, would anybody else
like to comment on the applications for UAV technology?
Mr. Villasenor. I just have a quick additional comment, if
I may.
Senator Booker. Yes, please.
Mr. Villasenor. The subject of private use came up before,
and Senator, you cited quite correctly, some very improper
uses. I think it is important to recognize that the
overwhelming majority of private unmanned aircraft users are
responsible, and in fact, we all agree about the importance of
innovation, and many of the innovations five and 10 years from
now commercially are going to come from the people who are
hobbyists today.
I think it is important to recognize the needs of that
community as well, while at the same time having zero tolerance
for behaviors that are reckless or dangerous or outside the
envelope----
Senator Booker. My time has expired. If I have another
round, I want to get the answer to that question. Mr. Heller?
Senator Heller. Thank you, Mr. Chairman. Let the record
reflect that the Pack 12 is dominating the discussion today.
Having said that, I want to go back to you, Ms. Gilligan.
I believe the question and the comments, from what I have
heard since I have been in the Committee, is how to speed up
the process, how to get through some of the hoops. Would it
make any sense for the FAA to work with the six designated test
sites to give them Certificates of Authorization with broader
authority, something called a ``blanket geographic COA?''
Ms. Gilligan. Yes, sir. We are looking at doing that at a
number of the test sites. In addition, for the test site in
Nevada, it has been the first test site that has a designated
airworthiness representative who can issue experimental
certificates to anyone who would want to fly their unmanned
system in that particular test site.
We think that is another way to encourage manufacturers to
bring----
Senator Heller. Explain that to me one more time. What does
Nevada have?
Ms. Gilligan. Yes, sir. We have initiated a program that
would allow for the test sites to identify an individual----
Senator Heller. Is that called ``train the trainer?''
Ms. Gilligan. In this case, not exactly. What they are
doing is identifying individuals who are experienced in
aviation. They go through specific training that the FAA is
offering, and they can then be designated by the FAA to issue
experimental certificates for unmanned systems, much like the
certificate that the FAA issued to Amazon. This would be a
designated individual connected with the individual test site.
We are setting it up only for the test sites, so again
there is that opportunity for the test site to be able to draw
manufacturers who may want to do work in that test site.
We are working to see how we can enhance people taking
advantage of what the test sites have to offer, because we
cannot get the data that we need to better understand what the
risks are and how to address them if we do not have people who
are operating at the test sites.
Senator Heller. Let me raise one other question having to
do with news gathering organizations. We have broadcasters in
the northern part of the state, southern end of the state, that
currently fly helicopters. They fly helicopters over populated
areas as a way to report the news. It is allowed, I believe, by
the FAA.
Ms. Gilligan. Yes, sir.
Senator Heller. All right. I think most people would agree
that these operations are important to inform the public and it
is all done to get them information, I would consider, in a
timely fashion.
UAS operations would seem to impose a much less potential
threat to people on the ground than helicopters do, and perhaps
provide even greater benefits in the field of news gathering
than even helicopters currently do.
However, the current proposed rules would ban their use if
even a single person is on the ground beneath them. Would the
FAA consider a reasonable allowance for the use of UAS to cover
news worthy events that inform the public?
Ms. Gilligan. Sir, the reason that we have not authorized
the use of UAS over populated areas is because the vehicle
itself is not designed to any standards, not tested to any
standards, and not manufactured against any particular process,
as opposed to manned vehicles, where I am sure you aware we
have extensive standards for both the design and manufacture to
ensure an appropriate level of safety.
Right now, we have not figured out how we can properly
mitigate the risk of the unmanned vehicle which does not meet a
defined level of safety, so we have required it be kept away
from people. We have asked for comment on that in the Notice of
Proposed Rulemaking.
We have recently through an agreement that we had with CNN
been able to authorize their use of an unmanned system not over
a populated area but in closer proximity than we had in the
past, so we could begin to learn more about just how we might
be able to better mitigate that risk.
We agree with you there is a good use for UAS in the news
gathering environment, at this point, design and manufacturing
standards are really not known to the FAA, so it is hard for us
to stand behind those.
Senator Heller. Right. It is not a problem with the idea,
in fact, you do not have a problem with the idea.
Ms. Gilligan. Right.
Senator Heller. It is whether or not we get to a point in
technology that we feel good enough that an unit is worthy
enough to fly over human beings.
Ms. Gilligan. That is very accurate. I believe if in fact
there were to be an accident with an UAS over a populated area,
the questions that this committee would be asking the
Administrator and me is: how is it that we authorized that?
Senator Heller. You are right.
Ms. Gilligan. We need to assure ourselves that we have done
the safety analysis and we have mitigated those risks before we
can authorize the operation.
Senator Heller. Thanks for your comments. Mr. Chairman, I
am done.
Senator Booker. Thank you. I have been alerted that we have
to close the hearing. It is unfortunate. It is the saddest I
have been since I have been an U.S. Senator.
[Laughter.]
Senator Booker. I want to thank everybody for coming here.
Your testimony has been invaluable, and I am very grateful for
that. It is exciting when you are on a new frontier of
possibility and opportunity for this country, it is incredibly
exciting when you have a technology that can improve the
health, safety, and expand economic opportunities within our
country, but it has to be done right, it has to be done with
safety concerns addressed and the privacy concerns that were
addressed in this hearing.
I know we will be doing more together on this issue, but I
just wanted to express my gratitude for you all coming here.
I will now say that the hearing record will remain open for
2 weeks. During this time, Senators are asked to submit any
questions for the record. Upon receipt, the witnesses are
requested to submit written answers to the Committee as soon as
possible.
With that, the hearing is now closed. Thank you.
[Whereupon, at 4:19 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Air Line Pilots Association, International (ALPA)
The following statement is submitted by the Air Line Pilots
Association, International (ALPA), representing more than 51,000
professional airline pilots flying for 30 airlines in the United States
and Canada. ALPA is the world's largest pilot union and the world's
largest non-governmental aviation safety organization. We are the legal
representative for the majority of professional airline pilots in the
United States and are the recognized voice of the airline piloting
profession in the country, with a history of safety advocacy that
extends for over 80 years. As the sole U.S. member of the International
Federation of Airline Pilots Associations (IFALPA), ALPA has the unique
ability to provide active airline pilot expertise to aviation safety
issues worldwide, and to incorporate an international dimension to
safety advocacy.
Introduction
The need to modernize aviation extends beyond simply upgrading
today's ground and airborne equipment. Among the most dramatic and
challenging revolutions in aviation technology and operational
capability to be introduced into the NAS is the Unmanned Aircraft
System (UAS) some of which are more appropriately called Remotely
Piloted Aircraft Systems (RPAS). ALPA recognizes the societal and
economic benefits of employing this technology to perform a wide
variety of tasks more efficiently, in a more environmentally
responsible manner, and potentially more safely than the same task
performed with conventional aircraft. However, it is vitally important
that the pressure to capitalize on the technology not lead to an
incomplete safety analysis of the aircraft and operations.
UAS/RPAS aircraft are separated into two categories. The first
category is the UAS/RPAS that weigh 55lbs or less are defined as
``small'' (sUAS) as discussed in more detail in the recent FAA Notice
of Proposed Rule Making (NPRM) entitled ``Operation and Certification
of Small Unmanned Aircraft Systems.'' These aircraft are generally
intended to be operated well away from other traffic in the airspace,
and so ALPA's primary concern in this regard is that the standards,
practices and regulations covering small UAS/RPAS provide the means to
ensure the aircraft do not stray, inadvertently or deliberately, into
areas where they may pose a hazard to airline operations. FAA's recent
NPRM cited above is a comprehensive review of the hundreds of
regulations necessary to address operation of small UAS/RPAS and we
commend FAA for the effort in developing the NPRM. ALPA will comment on
the specific provisions through the accepted public review process and
we look forward to working with the FAA to address our concerns
regarding ensuring the safety of operations in the National Airspace
System (NAS).
Large UAS/RPAS, those that weigh more than 55lbs, can range in size
as large as a Boeing 737 . While differences in size, performance and
operational capabilities can vary greatly, there also exists a wide
range of technology on the ground that forms the entire system that
also must be considered in evaluating the safety of integrating these
aircraft into the National Airspace System, not just the aircraft
itself. These aircraft, since they are intended to occupy the same
airspace as that used by our members' aircraft and other users of the
NAS, must be designed, managed and operated in the same manner and to
the same high safety standards as other NAS users. This is a daunting
challenge and ALPA, with other stakeholders, continues to work on many
levels to provide our views and expertise to the many government-
industry activities whose common goal is ensuring the safety of the
NAS.
Some UAS aircraft are operated completely autonomous in that their
flight route is completely computer programed and the device operates
without a ``pilot in the loop''. Other UAS aircraft, RPA aircraft, are
flown remotely by pilots from an operational center or control stations
that can be located at the launch and recovery site or thousands of
miles away. UAS is a broader descriptor and includes both autonomous
and RPA aircraft. Pilots/operators are not currently required by
Federal Aviation Regulations to be FAA-licensed or qualified as pilots
or even have a common level of proficiency. In fact, in many cases,
these operators are recruited from recreational modeling. Most of the
current larger designs were developed for the Department of Defense
(DOD) for use in combat areas and are not necessarily designed, built,
maintained, or able to safely interoperate with other civil users in
the same manner as other aircraft in the National Airspace System. As a
result, today they are typically flown in segregated airspace, i.e.,
military restricted airspace or equivalent, but these UAS have
demonstrated over and over again that they may potentially stray out of
their assigned airspace in the event of a malfunction.
The UAS/RPAS may be used to perform flight operations that may
expose more risk for a human to accomplish reliably and repeatedly in
potentially austere environments. The uniqueness of UAS/RPAS operations
has revealed many safety and technological challenges to be addressed
before integration in order to maintain the current level of safety for
the NAS, its users, and the travelling public. The introduction of
small and large UAS to the NAS has become the most challenging
enterprise for the FAA and the aviation community in many years. UAS
proponents have a growing interest in expediting access to the NAS as
evidenced by an increase in the number and scope of UAS flights in our
busy NAS.
FAA has identified research and development efforts to be conducted
at six specific test sites. Other operations in restricted capacities
have been authorized in remote or segregated areas of the NAS. However,
as the drumbeat to integrate the UAS/RPA as quickly as possible grows
louder, many current and future-state technological issues raise yet-
unanswered questions about the ability of these UAS/RPAS to safely
interoperate with today's certified aircraft in the NAS.
Until comprehensive end-to-end solutions are developed and
promulgated by FAA, our overarching position is that no unmanned or
remotely piloted aircraft, public or civil, should be allowed
unrestricted access to conduct flight operations into the NAS unless it
meets all of the high standards currently required for every other
airspace user. This means UAS/RPA must be designed to interoperate,
with similar performance and functional requirements at the heart of
their system, architectures embodying state-of-the-art safety
technologies and system redundancies as required by currently certified
commercial and general aviation airspace users. Of particular
importance and concern is the ability of commercial passenger carrying
aircraft operating in the NAS to safely perform see and avoid and
collision avoidance maneuvers against UAS and RPAS aircraft that may be
operating in the same area. Likewise, we believe UAS/RPAS operating in
the NAS must themselves be able to effectively identify other traffic
and safely maneuver to avoid conflict and collision.
We believe that the fundamental functions of operating the aircraft
in a safe manner must be maintained at the same level of safety
regardless of the location of the pilot or levels of automation. At the
center of current commercial aviation flight operations is a well-
trained, well-qualified professional pilot, and a well-qualified pilot
remains the single most important safety component of any commercial
aircraft. A UAS/RPAS should be able to operate as a part of commercial
or general aviation, as the case may be, through compliance with FAA
regulations and accompanying certification standards to meet the target
level of safety that is performed reliably and repeatedly by well-
trained airline pilots and their aircraft in the NAS today.
Accordingly, UAS/RPA operators performing commercial or ``For Hire''
operations in airspace used by manned aircraft should be required meet
all the certification and equivalent safety requirements of a
commercial operator and the pilots flying the aircraft must meet
equivalent training, qualification, and licensing requirements of
pilots of manned aircraft in the same airspace.
Harmonization of UAS/RPA Platforms
UAS/RPA aircraft themselves are necessarily part of a larger system
that includes the supporting ground station or control station, along
with the command and control communications system which may employ a
wide range of ground-or space-based elements.
Development of a common description of the UAS/RPA remains an
unresolved technical issue with different interpretations either by
country, regulatory body, or the media when described in publications.
The main point of contention is that an Unmanned Aircraft System is not
truly unmanned in today's context; more accurately, it is an aircraft
operated and managed by a pilot-in-command in a cockpit located in a
ground station. So, while the term UAS sounds more autonomous or
robotic, in reality, the FAA has stated that autonomous flights in the
NAS are currently not authorized nor envisioned in the near term. A
more apt description for these aircraft platforms and their support is
the Remotely Piloted Aircraft System or RPAS for short, which is the
accepted ICAO nomenclature. The term RPAS actually describes these
platforms quite well, as the pilot is remotely located in the ground
station but an integral part of the system. The FAA has representatives
serving on international committees to harmonize the definitions,
descriptions, procedures, and related documentation and we are
optimistic that the FAA will begin the adoption of products from these
groups to harmonize terminology with other regulatory organizations
ongoing work efforts.
UAS Design Standard Barriers
The futuristic visions of unmanned operations promise possibilities
and convenience that offers the attraction of a flying technology
unbound from the conventions and constraints of modern aviation. The
reality is quite different; new UAS/RPAS technology currently lack--but
must have--the standardization of safely integrated and interoperable
certified systems, which the FAA requires of commercial operators in
the NAS today. Without mature safety standards accompanying the
introduction of this technology, safety in the NAS today would be
significantly and negatively impacted, adding risk to commercial
airline operations and to an overburdened Air Traffic Control system.
There are UAS/RPAS proponents within government and industry who
are insistent that within the next few years, UAS/RPAS should begin a
much broader scope of civil commercial operations than is permitted
today. Some proposals even advocate fully autonomous systems, that is,
aircraft operations without pilots actively flying or commanding the
aircraft (e.g., package delivery and survey) but individuals who merely
monitor the end-to-end flight operation. At this time, the UAS/RPAS
technologies, safety standards and certification criteria for an end-
to-end solution for NAS integration are quite immature; patience, and
more importantly collaboration, is needed to diligently examine all the
barriers and successfully develop comprehensive and fully mature
solutions prior to widespread operational implementation into the NAS.
We simply cannot afford to miss critical steps in technological design
standards and safety analyses in an attempt to satisfy a market demand.
The introduction of multiple variations of UAS/RPAS without first
completing safety-focused architectural standards, analysis, rigorous
testing, and robust aircraft and pilot certifications would impair
aviation safety and the public's perception of safe air travel. We
believe that all aviation stakeholders should examine UAS/RPAS
integration to determine how these RPA platforms may impact their
operations.
Technological Barriers Impacting Operations in the NAS
American aviation technology is experiencing its own ``space race''
akin to the 1960s, with phenomenal growth in aviation science and
technological advancements in this modern digital age, the results are
testimony of the advanced applications underpinning NextGen and
associated programs. These technologies are designed at their core
architectures to be safe, reliable, and repeatable to provide the
efficiencies required maintain the target level of safety as aviation
transportation continues to grow. The target level of safety for
commercial air travel in the NAS should be proactively, not reactively,
protected. We are fully aware that there is a strong desire by UAS/RPAS
proponents, and those who wish to become operators, to begin flying in
the NAS as quickly as possible. Clearly, there are commercial, social,
business and international competitive advantages to a strong UAS
industry. However, the government and industry must take a longer view
of this present state of technology and ensure that robust safety
systems, in tandem with FAA certified redundant systems of UAS/RPAS are
developed that completely integrate with commercial airline operations,
and above all, do so safely. An imprudent rush to create and implement
minimum standards will not only harm safety, but potentially produce a
setback for the future expansion of UAS/RPAS operations for years to
come.
A June 20, 2014, newspaper article \1\ reported that 47 UAS/RPA
accidents involving U.S. military and Federal agencies' aircraft had
occurred since 2001, which is a safety record that no commercial
business or airline could survive. These Federal institutions have the
authority to self-certify the airworthiness of their own UAS/RPA which
can involve modifying compliance with FAA certification standards to
accommodate these agencies' unique mission requirements. This latitude
and difference in priorities relative to commercial aviation is likely
a contributing factor to the number of UAS/RPA accidents.
---------------------------------------------------------------------------
\1\ ``When Drones Fall from the Sky,'' Washington Post, June 20,
2014
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As such, it is easily understood that without the FAA's and other
safety organizations' experience and collective guidance in aviation
safety, lesser airworthiness standards and certification procedures
will produce greater UAS/RPA accident rates. Moreover, these accident
rates expose the importance of developing civil standards tailored
explicitly to UAS/RPA technologies, airworthiness, and related
certifications through established civil procedures.
Unlike their manned counterparts, a key system on a UAS/RPA is the
Communication and Control System (C\2\). This is what allows the pilot
to safely and effectively control the aircraft. The system transmits
and receives command inputs (e.g., flight maneuvers, navigation,
aircraft status, and ATC communications) to and from the ground station
via radio frequency link between the ground station and the UA/RPA. The
criticality of the C\2\ system becomes self-evident, as it is the most
vital single-system link depended upon for the UAS/RPA to successfully
and safely operate. Link failure--which is exactly analogous to the
pilot of an aircraft suddenly disappearing from the cockpit--may cause
a multitude of unintentional, cascading events. The sole dependence on
this vital link is a necessary aspect of UAS/RPAS operations but its
failure is one of the primary causal factors why UAS/RPA have
accidents.
The primary C\2\ contributing failures are associated with latency
issues, that is, the time between transmission and reception of a
command to successfully operate the UAS/RPA. Unlike the human on-board
pilot, whose control input is instantaneous, latency times can be from
3 seconds to as much as 30 seconds, perhaps more. In the NAS, where
immediate communication and required actions are expected to provide
separation between aircraft, latency could cause more significant
problems for Air Traffic Control (ATC) and manned aircraft in that
airspace. The term ``lost link,'' as the phrase implies, is the result
of the UAS/RPA having no communication or control whatsoever to
successfully operate and command the UAS/RPA until C\2\ two-way link is
re-established, if that is accomplished.
The varying degrees of UAS/RPA C\2\ vulnerabilities and failures
creates complex safety issues for UAS integration. The C\2\ data,
voice, and video requirements placed on operating UAS/RPA using radio
waves or satellite creates limitations that currently prevent UAS from
performing to the safety level of manned commercial aircraft
operations. If a UAS/RPA cannot maintain a C\2\ link, the normal
expectation of a UAS/RPA to perform the critical functions of ensuring
separation from terrain, obstacles, and other aircraft, as well as
collision avoidance responsibilities, will unduly place safety burdens
on other NAS users. Since 1931, ALPA's professional airline pilots and
safety professionals have worked together to advocate for the safety of
the NAS. Manned aircraft flown by pilots in the NAS today use
Instrument Flight Rules (IFR) to take advantage of the benefits of
FAA's ATC separation services, however, a pilot's responsibility to
``See and Avoid'' to remain well-clear of other aircraft is a constant
responsibility in their line of work, regardless of who or what else is
monitoring the flight. Simply stated, pilots visually scan the
airspace, especially when traffic is being reported to them by ATC, to
identify the aircraft in question when a traffic alert is initiated or
simply when a flight crew is flying into an airport that may not have a
control tower, to avoid all potential conflicts. The UAS/RPA needs to
be equipped with the technological ability to maintain well-clear of
and avoid collision with other operators if it is to truly replicate
the actions expected of every aircraft in the NAS.
A robust and safe UAS/RPA system design should never result in the
transference of safety responsibilities--such as maintaining
separation--to other operators and NAS users. Accordingly, one of the
most important capabilities yet to be developed for UAS/RPA operations
is the Detect and Avoid (DAA) technology that is fully capable of
performing two primary functions, staying well-clear of other aircraft
and if that cannot be done, the ability to avoid an imminent collision
using an active collision avoidance technology. While those
capabilities in manned aircraft are accomplished by a combination of
pilot skill and electronic means, UAS must rely solely on electronic
means. The responsibility to avoid coming hazardously close to other
aircraft is a two-way street. In addition to the UAS/RPAS ability to
detect and avoid other aircraft, other aircraft in the NAS must
likewise be able to ``see'' any UAS/RPA that could pose a collision
threat. Realistically, given sizes too small to be seen by the human
eye until the aircraft is dangerously close, the ability to be seen
must be electronic.
A promising system to enable that capability is called ACAS X.
Unfortunately no funding exists to develop ACAS for UAS/RPAS to
implement this groundbreaking technology. Specific funding for ACAS X
(current and future manned aircraft) and ACAS Xu (for UAS/RPAS) would
benefit manned and unmanned aircraft and play a vital role in the safe
integration of UAS platforms into the NAS RPA's and harmonize with
NextGen requirements in the near future, as well.
Government and Industry Initiatives
FAA Reauthorization legislation was introduced and Congress passed
the ``FAA Modernization and Reform Act reauthorization of 2012'' on
February 14, 2012. However, the FAA anticipating the growing advocacy
of UAS/RPAS expansion in the NAS stood up the UAS/RPAS Integration
Office, AFS-80. In general, AFS-80s purpose is to develop the
overarching aviation coordination of UAS/RPAS integration standards,
regulatory issues, certifications required for the aircraft and for the
pilots who fly them, as well.
In Section 332 of the FAA Reauthorization Act of 2012,
``Integration of civil unmanned aircraft systems into national airspace
system,'' the Act required the FAA to develop a comprehensive plan for
integration of UAS/RPAS into the NAS by September 2015. The UAS/RPA
industry is focused on the much publicized military and domestic law
enforcement UAS operations but, simultaneously, is rapidly moving
forward on UAS many roles in civil applications. UAS petitions for
exemption under Section 333 currently request exemptions from several
regulations in 14 CFR Parts 61 and 91, in order to perform operations
in areas like film making, environmental surveying, infrastructure
inspection, 3-dimensional map making, and agriculture applications.
As a result, the mounting pressure by the UAS industry to gain
access into the NAS for commercial UAS operations continues, as
evidenced by hundreds of petitions for exemption under Section 333 of
the 2012 FAA Reauthorization Act. However, the FAA is working hard on
an integration plan, and just released (February 2015) the long-awaited
NPRM for small unmanned aircraft (sUAS).
Until the sUAS rule is actually promulgated, operators file a
petition to seek exemption from compliance with these regulations that
the rest of the U.S. aviation community must be in compliance with
every day. Proponents must, in their petitions for exemption, describe
each and every means they intend to use to provide an equivalent level
of safety. The FAA, in turn, if they grant the petition, must then
check each and every operation for compliance with a set of
requirements that is custom tailored for every operator. The
requirements of the Act force the FAA to react to the legislated
ability for proponents to request exemptions from multiple regulations
significantly taxes an already strained FAA oversight capability.
Even as designs and procedures are refined, these UAS/RPAS
routinely fail. However, without quantitative failure data analyses,
what components and how often failure occurs has not been made
publically available. Small UAS/RPAS have failure conditions much like
their larger cousins, C2 links, GPS, navigational and flight control
failures appear to be quite common. As FAA points out in the NPRM, when
these small aircraft are in the areas in which they are intended to
operate, the risk to the public is arguably low. Hence it is critical
to ensure they remain in those areas. Without robust standards, system
architectures and redundant safety systems receiving certification
through the FAA, the approved operators under Section 333 will
certainly encounter failure conditions and create potential safety
issues in the NAS. A significantly growing problem is unapproved small
UAS/RPAS operations creating near mid-air collisions currently in the
NAS also demonstrate why safety-based standards, certifications, and
regulatory enforcement are required immediately to address this very
serious potential safety problem.
The FAA has been challenged in completing a plan for integration
that incorporates a complete set of standards development, rulemaking,
certification and safety analyses to meet the September 2015 deadline
required in the Act. We believe in order to guarantee an ``equivalent
level of safety'' for UAS in the NAS, realistic timelines for safety
and aviation technology studies, accompanied by stable sources of
funding to identify all potential hazards and ways to mitigate those
hazards, must be developed at a pace that does not compromise safety.
As a result of these challenges, the FAA has chartered Aviation Rule-
Making Committees (ARC) and tasked RTCA to create a Special Committees
(SC), both of which play pivotal roles in standards, regulatory and
policy development for many types of technological challenges in
aviation.
The FAA established the Small UAS/RPAS Aviation Rulemaking
Committee (ARC) in 2008 to develop standards and regulations unique and
appropriate to small UAS/RPAS (55 lbs and less). In 2011, another ARC
(more than 55 lbs) was chartered to make recommendations for standards
and regulations for the remainder of UAS/RPAS certification and
operation. RTCA, NASA and other organizations have multiple efforts
underway, many of which include participation by ALPA safety
representatives.
Currently, the research and analysis work continues for Detect and
Avoid (DAA) and Communication and Control Links (C\2\). Technological
dependencies and proposed architectures surrounding these systems lack
maturity and do not yet meet the safety, performance, and functional
requirements to operate reliably and repeatedly in an integrated and
dynamic airspace of the current NAS.
Conclusions
The pressure for rapid integration of UAS/RPAS into the NAS must
not result in incomplete safety analyses or inadequate technologies
prior to any authorization approvals to operate.
Standards and technologies for UAS/RPA must be in place to ensure
the same high level of safety as is currently present in the NAS before
a UAS/RPA can be authorized to occupy the same airspace as airlines, or
operate in areas where UAS/RPA might inadvertently stray into airspace
used by commercial flights.
Critical to safe UAS/RPA integration, the decisions being made
about UAS/RPAS airworthiness and operational requirements must fully
address safety implications of UAS/RPAS and complete interoperability
functionalities (e.g., DAA) of these aircraft flying in, around, or
over the same airspace as manned aircraft, and, perhaps more
importantly, airline aircraft.
A well-trained and experienced pilot is the most important safety
component of the commercial aviation system. The role of the pilot is a
major area of concern within the UAS/RPAS and piloted aircraft
communities. UAS/RPA operators using RC model pilots, non-licensed or
private pilots for commercial or ``For Hire'' operations should not be
allowed to operate UAS/RPAS in any commercial or ``For Hire''
operation. Another concern is that, by definition, it is impossible for
a UAS/RPAS pilot to react to anything other than an explicitly
annunciated malfunction. A pilot on board an aircraft can see, feel,
smell, or hear many indications of an impending problem and begin to
formulate a course of action before even sophisticated sensors and
indicators provide positive indications of trouble. This capability is
necessarily lost without a pilot on board, so the margin of safety it
represents must be replaced by other means.
UAS/RPAS pilots should be highly trained, qualified, and monitored
to meet the equivalent standards of pilots who operate manned aircraft
in either private or commercial operations.
While many UAS/RPAS have preprogrammed instructions on which that
aircraft relies in a lost link event, the fact that the pilot is no
longer in control of the aircraft when the aircraft is potentially near
airspace occupied by other conventionally piloted aircraft is a safety
concern. At present, no requirement exists to report all such events to
a government agency (e.g., FAA or NTSB) so ALPA is concerned that the
frequency of ``lost link'' with the UAS/RPAS is more prevalent than is
currently being reported.
Recommendations
1. A comprehensive, proactive safety UAS/RPAS program should
incorporate technology standards, safety analyses,
certifications, and flight standards to ensure that
introduction of UAS/RPA into the NAS will not degrade the
existing NAS Target Level of Safety.
2. Federal Aviation Regulations that specifically addresses UAS/RPAS
operators, operations, and pilots must continue to be
developed. Any UAS/RPAS unique or UAS/RPAS-specific regulations
must be comparable and compatible with other existing
regulations for other airspace users.
3. UAS/RPAS are inherently different aircraft from manned aircraft,
and should be required to be equipped with safety-based
technologies designed with both ``Well-Clear'' and ``Active
Collision Avoidance'' functionalities at the heart of their
system architectures to operate in normal and abnormal modes
and conditions, in order to maintain the current level of
safety in the NAS.
4. Support FAA efforts to ensure that all the components of UAS/RPAS
certified by the Department of Defense and other government
agencies do not adversely affect the NAS level of safety prior
to their operating in other than segregated airspace.
5. UAS/RPA pilots engaged in commercial operations with the
potential to adversely impact traffic in the NAS must be
commercially licensed with an instrument rating for the
aircraft to be flown to ensure the continuity of safety that
now exists in the NAS.
6. Regulatory directives containing certification standards,
continuing airworthiness standards, and Minimum Equipment List
requirements for UAS/RPA that are intended to operate in the
NAS must be developed.
7. Congress should work with industry stakeholders to develop an
appropriate UAS/RPAS integration funding mechanism within the
FAA Reauthorization.
8. Any person or persons in direct control of a UAS/RPAS must be
limited to the control of a single aircraft unless operations
are conducted in Special Activity Airspace or under an FAA
Certificate of Authorization.
9. The FAA's limited resources will be significantly taxed without a
dedicated and stable source of funding for this purpose,
combined with realistic timelines and a systematic approach
that builds the path of integration based on proactive safety
methodologies.
We appreciate the opportunity to comment on this important subject
and look forward to working with Congress as it progresses.
______
Prepared Statement of the National Association of Mutual Insurance
Companies
The National Association of Mutual Insurance Companies (NAMIC) is
pleased to provide comments to the Senate Commerce Subcommittee on
Aviation Operations, Safety, and Security on a variety of issues
surrounding the growing use of unmanned aerial systems.
NAMIC is the largest property/casualty trade association in the
U.S.A., serving regional and local mutual insurance companies on main
streets across America as well as many of the country's largest
national insurers. NAMIC consists of more than 1,300 property/casualty
insurance companies serving more than 135 million auto, home, and
business policyholders, with more than $208 billion in premiums
accounting for 48 percent of the automobile/homeowners market and 33
percent of the business insurance market.
Introduction
The recent proliferation of UASs has been nothing short of
phenomenal, and the addition of video systems and other increasingly
lightweight payloads are continually increasing the range of UAS uses
and capabilities.
The operational and technical capabilities of UASs have quickly
outpaced regulatory efforts, and perhaps the most complex issue is the
emergence of more, and more extensive, commercial use of UASs.
Businesses large and small--including insurers--are actively exploring
the myriad developing UAS capabilities and how these capabilities can
be effectively integrated into business operations. The Federal
Aviation Administration estimates 7,500 commercial UASs will be viable
soon and is working with a wide range of businesses to better
understand the potential universe of commercial UASs.
In addition to the potential use of UASs by insurers, policyholder
use and coverage of commercial UASs will be crucial for insurance
companies to better understand. Some UAS experts believe that
insurance--both for the UAS and for attendant liability--is the most
critical issue for commercial UAS development. More UAS laws and
regulations are being considered at both the Federal and state levels,
and required insurance coverage may well be a key part of the eventual
regulatory scheme for UASs. Other experts see UASs as the newest game
changer for the insurance industry, suggesting insurance companies can
capitalize on the use of drones because of their photo, video, data
collection and sharing, and navigational capabilities.
All of these areas are developing quickly and dramatically. This
paper attempts to draw a line for 2015 to define the current issues and
challenges more clearly. There will be more commercial use of UASs,
more detailed UAS regulation, and emerging interpretations of civil
liability of UAS use, particularly in the commercial context. As this
uncertainty is resolved, prudent UAS users will want to be adequately
insured against loss and liability. Mechanical things in the sky have a
nasty proclivity to sometimes fall in unexpected ways and places, and
insurance professionals who understand the issues can gain tremendous
opportunities to help their policyholders.
What is an Unmanned Aerial System/Drone?
Small hand-held remotely piloted aerial systems--these personal
flying machines--can range in size from minute helicopter-like devices
the size of hummingbirds to larger fixed-wing aircraft. How small? The
term ``micro drone'' commonly refers to UASs that weigh less than 50
pounds, but the Nano Drone measures only two inches across, and the
tiny Robo-fly has a carbon fiber body weighing less than one ounce and
a pair of flapping wings powered by electronic ``muscles.'' So-called
``macro drones'' are much larger--the size of small airplanes or
helicopters.
UASs can be piloted or autonomous. Autonomous, unmanned air vehicle
flight control systems are generally not hand-held and require
computers to generate and correct the path of their flight, as well as
to account for terrain obstructions, weather, and moving objects.
Piloted systems require hardware, software, power systems, and
connectivity to ensure that the UAS responds correctly and promptly to
pilot commands. They may also require computers for control but are
more often smaller and hand-held.
The dramatic rise in the popularity of UASs is due to the wide
range of applications being developed. These are no longer just flying
toys that simply buzz around the trees. Cameras for UASs are highly
developed and increasing in sophistication and daily use. UAS users can
produce real-time maps with a resolution up to 20 times greater than
Google Earth. Advances in microprocessors, software, and cameras give
an operator with $1,200 worth of equipment the ability to acquire
images that would have previously required the rental of helicopters at
upward of $600 per hour.
UASs were one of the most popular Christmas gifts in 2014,
prompting the FAA to issue a holiday bulletin and video advising on
their use. Amazon is reportedly selling more than 10,000 UASs a month,
and Best Buy expanded its selection from one last year to eight
different models in stores--and five more online--to meet rising
demand. Formerly the province of the military, this democratization of
UASs has resulted in uncertainty about what UASs are and how they can
be appropriately used. The power of UASs to hold and deliver packages
of increasing sizes and weights is also growing. One company claims a
132-pound lift capacity with the promise of payloads of up to 880
pounds. Numerous models and versions are available, or becoming
available, with the three largest manufacturers in 2014 being French
manufacturer Parrot, China-based DJI Innovations, and 3D Robotics in
the United States.
A Teal Group 2014 study calculated the UAS market at 89 percent
military and 11 percent civil for the decade, with the numbers shifting
to 86 percent military and 14 percent civil by the end of its 10-year
forecast. Fortune magazine reports that the global market for
nonmilitary drones has already ballooned into a $2.5 billion industry,
growing by more than 15 percent annually.
And that's under the current law. One of the biggest potential
markets for commercial drones--the United States--isn't even fully open
for business yet. The FAA asserts that civil UAS markets will continue
to grow, even with the current regulatory constraints. As these
constraints are resolved, commercial use of UASs will expand rapidly
and the demands for more UAS and ancillary services will also grow
quickly.
Proposed Commercial UAS Uses
Many experts agree that there are tremendous opportunities in the
rapidly expanding field of commercial UASs, and each commercial use has
its own range of specific questions of liability and insurability. The
potential commercial uses of UASs are continually expanded by technical
advances and imagination.
One year ago, Amazon CEO Jeff Bezos made headlines by suggesting
that to-be-developed Amazon Prime drones could make autonomous
deliveries in as few as 30 minutes. This was followed by reports of
Google using a fixed-wing aircraft to deliver packages, including
chocolate bars, dog treats, and cattle vaccines, to farmers in the
Australian outback. DHL announced a regular drone delivery service of
medications and other goods to a small island off the coast of Germany.
On the lighter side, a United Kingdom Domino's franchise delivered two
pizzas using a UAS, and a Minnesota brewery was testing a new drone
delivery system to airlift frosty cases of beer to fishermen holed up
in ice shacks on Mille Lacs Lake.
The following are some additional examples:
Movies and videography;
News gathering and reporting;
Real estate--promotional videos
and photos;
Pipeline/hydro-transmission line inspection--including
difficult to-access areas of refineries and production
facilities;
Railroad and highway maintenance--access and view dangerous
conditions from a safe distance, even in harsh weather and
extreme conditions, and;
Construction--highly detailed elevation views, detailed and
exact distances with CAD-quality drawings for any photographed
structure.
Popular opinion, however, may not be as favorable toward commercial
UAS use. A December 2014 poll reported that only 21 percent of the more
than 1,000 Americans surveyed were in favor of commercial UAS use. In
focused questions, those surveyed were more receptive to UAS uses such
as performing dangerous safety inspections or mapping and monitoring
wildlife, but opposed to uses such as taking aerial photographs or
videos and delivering small packages. Three-quarters of the persons
surveyed were concerned that private operators using UASs could pose a
danger to aircraft and people on the ground. Almost 90 percent of
persons surveyed were concerned that private operators could use UASs
in ways that violate other people's privacy.
Legal Issues for Commercial UAS Use
Although new FAA regulations for small UASs have been proposed,
commercial use of UASs is not permitted under current law, as the FAA
fulfills its statutory mandate ``to develop a plan for the safe
integration of civil unmanned aircraft systems into the National
Airspace.'' While the FAA develops this plan, almost every state
legislature, as well as numerous municipalities, has introduced bills
and resolutions addressing UAS issues. While certain aspects of
proposed UAS laws and regulations are new, most UAS-related laws and
regulations are variations on both well-settled and emerging legal
issues of federalism, property rights, privacy, and tort liability.
The Government Accountability Office proposed in 2008 that the
United States develop a clear and common understanding of what is
required to safely and routinely operate UASs in the National Airspace
System. Congress specifically called for UASs' integration into the NAS
by September 2015 when it enacted the FAA Modernization and Reform Act
of 2012.
In the interim, the FAA has stitched together patchwork guidelines
and interpretations upon which the agency bases its jurisdiction and
enforcement. All unmanned aircraft, according to the FAA, are aircraft
within the definitions found in statute under title 49 of U.S. Code,
section 40102(a)(6) and title 14 of the Code of Federal Regulations
section 1.1. Section 40102(a)(6) defines an aircraft as ``any
contrivance invented, used, or designed to navigate or fly in the air''
and FAA's regulations (14 C.F.R. Sec. 1.1.) define an aircraft as ``a
device that is used or intended to be used for flight in the air.''
Because an unmanned aircraft is a contrivance or device that is
invented, used, and designed to fly in the air, the FAA position
remains that an unmanned aircraft is an aircraft based on the
unambiguous language in the FAA's statute and regulations. The agency
further concludes that because all civil aircraft are subject to FAA
regulation under law: 49 U.S.C. Sec. 44701, UASs are subject to FAA
regulation.
The FAA previously made the distinction between UASs used for
recreational purposes and those used for commercial purposes. Section
336 of the FAA Modernization and Reform Act of 201 established a
``special rule for model aircraft,'' specifically prohibiting the FAA
from promulgating ``any rule or regulation regarding a model aircraft,
or an aircraft being developed as a model aircraft'' if the following
statutory requirements are met:
The aircraft is flown strictly for hobby or recreational
use;
The aircraft is operated in accordance with a community-
based set of safety guidelines;
The aircraft is less than 55 pounds;
The aircraft is operated in a manner that does not interfere
with and gives way to any manned aircraft; and
The aircraft is not flown within five miles of an airport.
In June 2014, the FAA provided its interpretation that ``any
operation not conducted strictly for hobby or recreation purposes could
not be operated under the special rule for model aircraft. Clearly,
commercial operations would not be hobby or recreation flights.'' The
FAA specified that flights in furtherance of a business, or incidental
to a person's business, would not be a hobby or recreation flight.
Section 333 of the FAA Modernization and Reform Act of 2012 grants
the secretary of Transportation and, therefore, the FAA authority to
determine:
1. If an unmanned aircraft system, as a result of its size, weight,
speed, operational capability, proximity to airports and
populated areas, and operation within visual line-of-sight does
not create a hazard to users of the NAS or the public or pose a
threat to national security; and
2. Whether a certificate of waiver, certificate of authorization, or
airworthiness certification under 49 USC Sec. 44704 is required
for the operation of unmanned aircraft systems identified under
paragraph (1).
An exemption may be granted after a two-step process. First, the
FAA must determine that the UAS does not pose a risk to those operating
in the NAS, the general public, or national security, and it can be
safely operated without an airworthiness certificate. The FAA will then
use its existing exemption authority to grant relief from FAA
regulations that may apply. Once an exemption is granted, the applicant
must apply for a civil certificate of waiver or authorization
permitting the operator to conduct the proposed operation.
The FAA determined that UAS operations conducted for purposes other
than hobby or recreation are subject to FAA regulations. In petitioning
for the relief afforded under Section 333, UAS operators must seek
exemption from regulations applicable to the specific circumstances of
their operations with which they believe they are unable to comply. The
FAA published detailed guidance to people who are interested in
submitting a petition for exemption to the FAA to operate UASs in the
NAS.
Prior Exemptions Granted by the FAA
In June 2014, seven aerial photo and video production companies
obtained FAA regulatory exemptions to allow the film and television
industry to use UASs. In December 2014, the FAA granted five regulatory
exemptions to fly UASs to perform operations for aerial surveying,
construction site monitoring, and oil rig flare stack inspections. The
FAA granted two more exemptions in January 2015, including one for a
``system carrying a geo-referenced still camera to conduct
photogrammetry and crop scouting in order to perform precision
agriculture'' below 400 feet. The FAA has approved a request from State
Farm for drone use. Other insurance companies, including Erie Insurance
and USAA, have applied for, but not yet received, FAA exemptions for
the use of UASs. The FAA is expected to address these insurance company
applications in 2015. A detailed list of pending exemption requests
made to the FAA can be found on the agency's website.
In January 2015, CNN announced that it had signed an agreement with
the FAA to explore the use of drones in newsgathering and reporting.
CNN said it has officially ``entered into a Cooperative Research and
Development Agreement'' with the FAA to use UASs to improve
storytelling. The cooperation arrangement will reportedly integrate
efforts from CNN's existing research partnership with the Georgia Tech
Research Institute. That coordination among CNN, GTRI, and the FAA has
already begun.
This Cooperative Research and Development Agreement \1\ is not an
exemption, as described above, but rather an agreement that the FAA
will share facilities, equipment, services, intellectual property,
personnel resources, and other cooperation with private industry,
academia, or state/local government agencies to implement or develop an
idea, prototype, process, or product for direct application to the
civil aviation community and/or indirect application for commercial
exploitation. This agreement is not referenced or included on the FAA
website and the text of the agreement is not generally available.
---------------------------------------------------------------------------
\1\ Designated under Federal law, a CRADA is intended to speed the
commercialization of technology, optimize resources, and protect the
private company involved. A CRADA allows both parties to keep research
results confidential for up to five years. Private corporations
participating in a CRADA are allowed to file patents, and they retain
patent rights on inventions developed by the CRADA. The government gets
a license to the patents.
---------------------------------------------------------------------------
The rules also may address the ability of state and local
authorities to regulate drones, including a possible ``preemption
clause'' in draft rules to assert precedence over other laws. States
and municipalities are now considering limitations on UASs. The FAA is
charged with ensuring the safe and efficient use of U.S. airspace, and
this authority generally preempts any state or local government from
enacting a statute or regulation concerning matters such as airspace
regulation.
According to the FAA, a state law or regulation that prohibits or
limits the operation of an aircraft, sets standards for airworthiness,
or establishes pilot requirements generally would be preempted by FAA
regulations. But state and local governments do retain authority to
restrict the use of certain aircraft, including UASs, by the state or
local police or by a state department or university.
According to the National Conference of State Legislatures, 20
states have enacted laws addressing UAS issues, including defining what
a UAS is; how they can be used by law enforcement or other state
agencies; how they can be used by the general public; regulations for
their use in hunting game; and the FAA test sites. In 2013, 43 states
introduced 130 bills and resolutions addressing UAS issues. At the end
of the year, 13 states had enacted 16 new laws, and 11 states had
adopted 16 resolutions. In 2014, 35 states considered UAS bills and
resolutions, 10 of which enacted new laws.
Some industry experts think that insurability of unmanned aircraft
is the ``gorilla in the room.'' While FAA integration is a significant
event, insurability is a necessary event before businesses can
successfully use UASs in the NAS because no business is going to want
to absorb the risk of liability concerns. Insurability will determine
which sectors of the UAS market will grow and which will die, and side
industries, such as the creation of maintenance certification and UAS
registries, will then be developed to support this insurance segment.
Recreational Use versus Commercial Use
As noted, the FAA allows recreational or hobby use of UASs and set
limitations on UAS commercial use. The FAA defines ``hobby'' as a
``pursuit outside one's regular occupation engaged in especially for
relaxation'' and recreation as ``refreshment of strength and spirits
after work; a means of refreshment or diversion.'' UAS use in
furtherance of a business, or incidental to a person's business,
incidental to, and within the scope of a business are not considered by
the FAA to be a hobby or recreation flight.
More than the simple joy of flight, the development of UAS
capabilities has been in connection with the delivery of a message or
package or to collect data. So for the FAA, using a UAS to deliver a
beer to a friend at his pool may be a permissible hobby use, but the
FAA said it will not tolerate commercial delivery of beer to ice
fishermen. With respect to collecting data, the FAA will permit using a
UAS to view ``a field to determine whether crops need water when they
are grown for personal enjoyment'' but previously stated that it would
not allow a farmer to use a UAS to determine ``whether crops need to be
watered that are grown as part of commercial farming operation.''
Whether a policyholder is insured for commercial loss of a UAS or
any damage or liability from the commercial UAS use may depend on
whether the policy may be limited by law or regulation. The application
of policy coverage also needs to be considered. Insurance policies may
specifically exclude operations in violation of law or regulations, so
the language of policies should be reviewed to determine coverage. It
is also important to note that the FAA limits on commercial UAS use
exist only in Notices of Interpretation, which may or may not be
covered, depending on the language in policies.
With respect to recreational UAS insurance and experience, it may
be helpful to consider the Academy of Model Aeronautics Liability
Insurance Program for Site Owners. In its 2012 report, the academy
noted that roughly 35 liability claims are reported annually--
approximately 20 are property damage and 15 are bodily injury claims.
The AMA stated that the injury claims reported are mostly minor, but on
very rare occasion the injury is severe, resulting in a settlement
involving a large amount of money. From 2001 until 2012, the AMA and
its insurance company reported paying out approximately $5 million,
mostly to settle injury claims.
Regulation of Commercial Use of UASs
It has been the position of the FAA since 2007 that UAS commercial
operations are only authorized on a case-by-case basis. As previously
noted, in the 2012 FAA reauthorization legislation, Congress told the
FAA to come up with a plan for the ``safe integration'' of UASs, and
the agency is developing regulations, policies, and standards that will
cover a wide variety of UAS users, including commercial.
At the same time, insurance companies are already exploring ways to
use UASs commercially. As previously noted, property/casualty insurance
companies have applied to the FAA for exemptions from the prohibition
of commercial use of UASs for data collection purposes. Specifically,
insurance companies have said that they want to use drones to:
Perform risk assessment/management, loss prevention, and
underwriting, including roof inspections;
Inspect areas that are inaccessible by ground more safely
and quickly;
Collect images after loss and casualty events/catastrophes;
and,
Expedite payments to customers.
It is not difficult to imagine additional data collection and
analysis uses of UASs for property/casualty insurance companies. UASs
can access areas and locations that would otherwise involve exceptional
risks for personnel, and the data collected can be critical in
assessing how to continue the operation. It is all but certain that the
depth and breadth of property/casualty insurance company use of UASs
will develop and expand, particularly as attendant image capture and
analysis programs develop and proliferate.
FAA Proposed Regulations for Small UASs
In February 2015, the FAA proposed regulations to allow the
operation of small UASs in the NAS. The proposed changes would allow
for more operation of UASs, certification of their operators,
registration, and display of registration markings. Specifically, the
rules would allow for small commercial UASs, including business,
academic, and research and development flights that are hampered by the
current regulatory framework, to operate in the NAS.
These proposed rules are only one part of Federal UAS regulation.
Section 332(a) of the FAA Modernization and Reform Act of 2012 requires
the secretary of Transportation to develop a comprehensive plan to
safely accelerate the integration of commercial UASs into the NAS.
These rules are part of that plan for small UAS operations that the FAA
determined would pose the least amount of risk. The FAA will continue
working on integrating other UAS operations that pose greater amounts
of risk, which will be addressed in subsequent rulemakings.
Until the rules are adopted, FAA exemptions for small UAS use will
still be required. The proposed rules would not abolish the certificate
of waiver or authorization system, and the existing exemption process
will be required for UAS operations that fall outside the parameters of
the rules. UASs that are not within the definition of ``small'' or that
otherwise do not comply with the final regulations will be prohibited
from commercial use and will have to seek a certificate of waiver or
authorization in order to engage in commercial use.
The FAA proposed rules reassert FAA jurisdiction over small UAS,
noting that the operation of a small UAS still involves the operation
of an aircraft, as FAA's statute defines an ``aircraft'' as ``any
contrivance invented, used, or designed to navigate or fly in the
air.'' 49 U.S.C. 40102(a)(6). Because a small unmanned aircraft is a
contrivance that is invented, used, and designed to fly in the air, a
small unmanned aircraft is an aircraft for purposes of the FAA's
statutes. Because a small UAS involves the operation of an
``aircraft,'' FAA maintains that this triggers the FAA's registration
and certification statutory requirements.
The FAA states that the proposed rules are designed to mitigate
risk associated with small UAS operations in a way that would provide
an equivalent level of safety with the least amount of burden to
business. In general, the proposed rules are a minimally burdensome,
well-reasoned, and productive first step in enabling small commercial
UAS use, and it would reduce the potential for undue hazard to other
aircrafts, people, or property. The proposed rules request comments on
a significant range of issues and will likely be revised--perhaps
substantially--before they are adopted.
As the FAA faces the daunting task of developing regulations for
larger and more complex UAS operation in the NAS, the proposed small
UAS rules may require even further tweaking.
There are constituencies that will not be satisfied with the
proposed rules. Amazon and other companies that want to use UAS for
deliveries will be disappointed that external loads are not permitted.
The prohibition of operating over any persons not directly involved in
the operation will impede small UASs in more populated areas. Farmers
and other businesses involved in large areas may be limited by the
requirements of visual line-of-sight. Commercial airlines and other
aviators may certainly be concerned with the wider and less controlled
use of UASs in the NAS.
There are numerous practical considerations of the proposed rules
that will also have to be worked out. The proposed requirement that
small UASs may not operate over any persons not directly involved in
the operation has been criticized as impractical. The FAA ceiling of
500 feet for small UASs--but no floor--will also be of great
consternation to property owners who may be told that national airspace
exists one millimeter over their lawns or patios. Clearly, further
development is necessary.
While the proposed FAA rules would begin to reduce the more
significant barriers for drone insurance at the Federal level, NAMIC
remains concerned about the developing regulatory, commercial, and
practical considerations of providing the greatest level of protection
for policyholders, including the use of drones in policyholder
servicing. There is a more detailed discussion of the relevant
insurance specific issues of small UAS use later in this document.
NAMIC is committed to working with our members and the federal, state,
and local regulators to promote responsible UAS development that
protects aircraft, people, businesses, and property.
UAS Risks and Insurance--Some Legal and Operational Considerations
An understanding of insurance must begin with the concept of risk.
The effective response to risk combines two elements: efforts or
expenditures to lessen the risk, and the purchase of insurance against
whatever risk remains. Proactive risk management involves carefully
analyzing a situation to determine the major risks and then taking
steps to minimize potential damage. That is what the FAA is trying to
do--primarily, to minimize risk and damage to the NAS and other
aircraft, which is the FAA's primary role--and secondarily, to minimize
risk and damage as well as to protect individuals and property on the
ground.
Reactive risk management refers to a situation in which there is a
reaction to problems after they happen. At that time, either the victim
or damaged party can bear the injury of loss, mitigated perhaps by
insurance coverage, or some or all of the liability for the injury or
loss can be transferred to another party, who may also have insurance
coverage.
Whether the party injured by a UAS or a third party causing the
damage is covered by their own insurance will depend on the terms of
the specific insurance contract, which generally have not considered
the likelihood and extent of UASs, and may exclude aircraft coverage.
This is a factor that the insurance industry is working to manage and
define, as UAS use becomes less prohibited under law.
Reactive UAS risk management also depends greatly on whether laws
and regulations clearly operate to transfer liability, including
liability for damage by drones, by drone pilots and facilities
operators, or by people who hijack drones or interfere with drone
controls under defined tort standards, including product liability and
negligence.
A broader question, influencing all areas of this consideration, is
when and how law and regulation will transfer liability to another
party. Until standards of UAS liability are better defined, it will be
extremely difficult for insurance companies to understand and provide
for UAS risks and liability. The question of liability seems fairly
clear if a drone crashes into person or property, but:
What if the operator was acting under FAA direction to take
evasive action to avoid another aircraft?
What if the radio signals from the other aircraft interfered
with the controls, which resulted in the crash?
What if the drone dives directly in front of a car, which
then swerves into a tree?
What if the radio signals from the drone controller
interferes with an electronic railroad switch and sends the
5:04 to Newark onto the track used by the 5:09 from Boston?
There are even more basic questions of whether third-party
liability will even exist, raising the attendant questions of whether
the injured party or the third party has insurance coverage. Consider
that the FAA says that the national airspace extends to the ground,
even on private property, and that the FAA has set no minimum height at
which that drone must fly.
Can a drone fly in national airspace 400 feet, 100 feet, 25
feet, or 2 feet over private property without trespassing? If
so, does the drone have to avoid people and property, or is
there some requirement to keep the NAS clear of obstacles and
avoid aircraft in national airspace? In a person's back yard?
If a person feels threatened by a drone in his or her yard,
can he or she hit it with a baseball bat? How about in a
neighbor's yard? A public park? Would a driver have to swerve
to avoid hitting a drone on the highway?
Can states preclude UAS flights on state roads, or is that
national airspace?
What is the liability for a drone that--intentionally or
accidentally--electronically records e-mail or security
passwords or takes photos of children at a pool?
What standards apply to determine what is reasonable
operation of a UAS? What is careless operation? What is
negligent operation? What constitutes recklessness?
The FAA says that it ``understands and accepts'' that a
person flying a UAS ``may lose sight of the unmanned aircraft
for brief moments of the operation.'' If that UAS hits a person
in that brief moment, is this assault, negligence, or merely
conduct that the FAA has deemed ``understandable and
acceptable?''
These are but a sampling of the critical questions of law,
regulation, and liability that must be answered for insurance companies
to provide the wide variety of property/casualty insurance policies
necessary to protect policyholders and those injured or damaged by
UASs. As the regulators develop UAS rules, they will appropriately
focus on proactive risk management. It will be the responsibility of
the insurance industry to work with the development of these rules to
raise and address the reactive risk management insurance issues needed
for UAS insurance to develop as well.
The scope of UAS safety and privacy extends far beyond the role of
the FAA to protect the safety of the NAS. This was clearly recognized
in President Obama's February 2015 executive order directing the
Department of Commerce through the National Telecommunications and
Information Administration in consultation with other interested
agencies to develop a framework regarding privacy, accountability, and
transparency for commercial and private UAS use.
This is certainly a positive step, but it raises the question of
whether combined efforts of the FAA and Commerce Department are
sufficient to provide comprehensive regulations and enforcement for the
myriad of commercial UAS uses, as well as the liability and
compensation for the losses and damages that may result. Privacy,
trespass, negligence, and recklessness are just some of the related
issues that are the province of state and local law and judicial
interpretations.
There are numerous and unpredictable questions that will result
from commercial UAS operations that will probably come before state or
local government authorities and courts, particularly when it comes to
liability and insurance coverage. As the FAA and Commerce Department
appropriately resolve UAS issues under their respective Federal
jurisdictions, it will be important to appreciate and consider that
many if not most interpretation and enforcement of UAS standards will
likely end up at other authorities.
There are inherent risks in the operation of UASs, which are
amplified and exacerbated with the proliferation of their numbers,
uses, and increasing capabilities. The requisite combination of an
aircraft, control hardware, control software, and a communication
link--in addition to potentially hazardous payloads--makes risk
assessment, management, and coverage extremely complex. It also
directly impacts the development of regulations and legal liability of
UAS owners and operators.
UAS insurance policies will define the extent and limitations of
UAS coverage, with policy agreements contractually specifying that
extent and limitations of coverage, as well as exclusions,
restrictions, and prohibitions. This must be based on the work of
underwriters to define the range of UAS-related risks--their likelihood
and severity--to adequately price and offer UAS liability insurance.
This information, however, does not exist for UASs. A November 2014
study of UAS liability and insurance in Europe--where commercial UAS
use has been permitted for years--concluded that there is no reliable
data on UAS incidents or accidents either in public form or from
commercial sources, and that the lack of this information means that
the assessment of damage caused by UASs remains a theoretical exercise.
The existence and extent of insurance coverage for recreational and
commercial use of UASs in the United States are not very clear. While
various Internet sites purport to be or link to insurance companies
that offer UAS insurance in various capacities, the actual coverage
available is uncertain. The existing regulatory schemes in place for
UASs in Europe and Asia include requirements that operators and users
obtain and retain adequate insurance coverage. Insurance requirements
may be part of the more extensive UAS regulatory proposals expected
from the FAA.
The standard commercial general liability policy that most
businesses purchase covers bodily injury and property damage caused by
an ``occurrence,'' which it defines as ``an accident, including
continuous or repeated exposure to the same generally harmful
conditions.'' As a rule, however, most, if not all, such commercial
general liability policies have exclusions for damage caused by the
operation of aircraft. Commercial property insurance policies also have
various forms of aircraft exclusions, including policies that may
specifically exclude coverage while a UAS is off the ground.
Most homeowners' insurance policies also exclude coverage for
aircraft, with the exception of ``model or hobby aircraft not used or
designed to carry people or cargo.'' If a UAS has an attached camera or
other equipment/payload, coverage could possibly be denied because the
attachment may be considered cargo.
Like airlines and aircraft manufacturers, UAS manufacturers and
operators may need to be covered by specialized liability policies. It
appears that some UAS coverage, if available, may be currently written
on an aircraft liability form. This covers bodily injury and property
damage to third parties and may include physical damage coverage for
the UAS. It is underwritten based on the UAS type, the frequency and
purpose of use, the operator experience, the revenue from use, and the
limits purchased. Some insurers have reported providing UAS liability
coverage through an endorsement to existing commercial liability
policies, with no additional charge. Privacy-related liability may be
addressed by existing E&O/cyber liability policy, although this may
also be less than certain. For UASs valued at less than $5,000, the UAS
itself is often not insured.
With the exception of small UASs that are fully compliant with the
new proposed FAA rules when they become effective, the FAA and some
state regulations currently prohibit the commercial use of UASs, and
the breadth of the interpretation of ``commercial'' is very broad. The
FAA position is that a farmer using a UAS to look at his own garden is
a recreational user, but that same farmer using a UAS to view crops he
intends to sell is a commercial user. Similarly, the FAA has taken the
position that reckless recreational UAS use is a violation of FAA
rules.
These factors are important as property/casualty insurance
policies--commercial or otherwise--may often include a criminal act
exclusion that excludes coverage for bodily injury caused by, or
reasonably expected to result from, a criminal act or omission of the
insured. The criminal act exclusion generally applies regardless of
whether the insured person is actually charged with or convicted of a
crime. The exclusion can include a criminal act committed by or at the
direction of any insured. There are also state statutes that prohibit
insurance payment for illegal activities.
Insurance companies that make decisions to provide or not provide
UAS-related coverage have specific areas of concern. Liability could
exist for insurance company directors and officers who decide to
provide UAS coverage that is in known conflict with laws or
regulations, or fails to consider laws or regulations in deciding to
provide such coverage.
While laws and regulations for UAS and attendant tort liability are
in flux, insurance agents asked to provide UAS coverage will have to
engage in proper due diligence to ensure coverage in fact exists and
that there are no exclusions that could inadvertently negate coverage.
The agent would then be required to specifically advise the insured in
writing which exposures arising out of UAS use will not be covered to
mitigate the agent's E&O exposure. If the agent is mistaken as to law
or fact and tells the insured that coverage exists for certain
exposures, the agent may face a lawsuit regarding the uncovered
liability, potentially triggering his or her E&O insurance.
In making decisions concerning underwriting UAS risks and paying
claims related to UASs, insurers must identify and fully understand the
application of the specific torts, as well as state and Federal laws
that could permit UAS use and/or generate lawsuits or fines against a
UAS. Effective policy language is then needed to include or exclude
specific use and liability. The following is an overview of just some
of the major issues related to the legal and operational considerations
of property/casualty insurance coverage for UASs.
It has been estimated that underwriters now insure only 3 percent
of UAS applicants. Insurers that are considering offering UAS coverage
have to deal not only with regulatory and commercial law uncertainty,
but also the substantial risks of UAS operational failure, which are
exacerbated by the continually emerging technology implications subject
to unknown and varied vulnerabilities. UAS insurance policies can cover
the UAS itself, safety risks, privacy exposure, and cyber security
liability; all of which have very short histories on which to assess
risk levels and general aviation, model aviation, and even ultralights
experience to consider and extrapolate. While there are myriad
approaches to considering each question, this section will attempt to
address some of the major legal issues.
1. Loss of, or Damage to, the UAS
Inherent in the acronym UAS is the fact that it is an unmanned
aerial ``system'' composed of (1) the flying aircraft, (2) any camera,
video, or other payload, (3) the hardware and software that control the
aircraft, and (4) the communication hardware and software links that
connect the other parts of the system. For systems with relatively
lower cost, insurance may not make sense. Larger systems, which can
have a value in the tens or even hundreds of thousands of dollars, may
reach a level where ``hull'' insurance may be worthwhile. UAS physical
damage coverage will apply to loss or damage to the UAS and associated
equipment on an agreed value basis. It is not likely, however, that a
UAS of higher cost that is worth insuring will be for recreational use
only. As noted above, the FAA currently prohibits commercial UAS use
without FAA approval, and insurance policies may specifically exclude
operations in violation of laws or regulations.
To illustrate the complexity of insuring a UAS, consider automotive
insurance coverage. Insurers consider the manufacturer, model, and
value of the vehicle as well as the operator's gender, age, driving
record, and other factors. Accepted underwriting standards are
considered, with relevant minimum and state regulatory coverage
requirements, to determine how to price and provide a policy.
With UASs, the relevant pools are too small, and the actuarial
classes and policyholder risk matrices are not particularly relevant.
UAS coverage may have to be looked at anew. UAS insurance contracts
may specify matters as simple as whether the UAS is insured both in the
air and on the ground, and as complex as defining the permissible
operations of the UAS covered under the policy. It has been said that
UASs exist for missions that are too ``dull, dirty, or dangerous.''
Insuring a UAS may include understanding just how dirty and dangerous
the work for which the UAS will be used and how the operations will be
conducted to minimize unknown and unacceptable risk. Pricing a policy
for a FAA-certified pilot to take pictures with a UAS over a wheat
field will likely entail less risk than for insuring Uncle Ernie
spotting bluefish at a populated ocean resort.
Existing property/casualty insurance policies may exclude or limit
coverage for improper or reckless use, and there may be few, if any,
relevant standards for gauging proper or appropriate use that are
applicable to a UAS. Existing, more general property/casualty insurance
policies may also contain specific aircraft exclusions, and analogous
aviation standards may or may not be applicable to any UAS policies.
When a UAS crashes or is lost, any responsibility for the loss by
the manufacturer or software provider will be more difficult, if not
impossible, to establish. The legal and practical ability of an insurer
to pursue reimbursements for UAS manufacturer defects or product
liability is murky. It can be complicated by the possibility of damage
to the system resulting from a failure.
In considering UAS coverage, there is also an interesting and
unresolved question of UASs and state and local trespass laws. To
understand the risk of loss or damage to a quarter-million-dollar UAS,
it would be prudent to understand the local rights of land owners to
prevent or impede UASs from being on, over, or near their property.
Deer Trail, Colo., decided not to offer hunting licenses for shooting
down drones that might fly into the hamlet's airspace, but local
interpretations of the extent of property owners' rights to take action
against UASs for trespass, invasion of privacy, and nuisance may impact
the physical risk to UAS loss or damage and insurance risk.
2. Regulatory Liability
Insurance coverage for a UAS, and any liability for the operation
of a UAS, can be limited or prohibited by law or regulation, as well as
the terms of the insurance policy. Operation in violation of law or
regulation may void or limit the application and coverage of policies
under state contract or insurance law or pursuant to the terms of the
policy.
With respect to recreational UAS use, the FAA's authority to ``take
enforcement action against anyone who operates a [drone] or model
aircraft in a careless or reckless manner'' was affirmed in November
2014 by the National Transportation Safety Board. The NTSB directed an
administrative law judge to decide whether the aircraft was operated
carelessly or recklessly, but confirmed the authority of the FAA to
issue an assessment order and fine the operator $10,000 for reckless
operation of an unmanned aircraft.
The FAA has proposed regulations for small UASs, but it maintains
that all other commercial UAS operations are not in a regulatory ``gray
area'' and that the FAA ``is responsible for the safety of U.S.
airspace from the ground up.'' The FAA asserts that it has a number of
enforcement tools available, including a verbal warning, a warning
letter, and an order to stop the operation. The FAA has reportedly
looked for companies offering commercial UAS services and warned them
to stop doing so, in some cases threatening ``enforcement action.''
Recall, however, that the FAA determination and definition of
commercial vs. hobby UAS use are through a Notice of Interpretation
with Request for Comment, rather than statute or regulations that the
FAA is still drafting. There are many issues concerning UAS use and FAA
authority that has not been codified in law or promulgated in Federal
regulations, raising numerous questions of the enforcement authority of
the FAA in this regard and the impact of the notice on insurance
coverage provisions.
State UAS laws have also been enacted, and additional UAS
provisions are being considered. A number of states prohibit using a
UAS to electronically survey persons or the private property of another
without permission. Texas law enumerates lawful uses for unmanned
aircraft, including their use in oil pipeline safety and rig
protection.
In North Carolina it is a crime to fish or hunt with a UAS, harass
hunters or fisherman with a UAS, or distribute images obtained with a
UAS.
Exactly how these state laws will work when the FAA finalizes its
rules remains to be determined. But, UAS use raises a number of issues
concerning the respective ``airspace'' rights of private landowners,
local authorities, and the Federal Government.
3. Trespass and Privacy Liability Considerations
The Congressional Research Service has deemed privacy the most
contentious UAS issue. Property/casualty insurance policies,
particularly for commercial UASs, may include, or specifically exclude,
coverage for and indemnification of tortious liability, including civil
actions for trespass and privacy violations. Property lines are not
always clear, and a shift of wind could inadvertently blow a UAS over a
property line. These issues and the attendant liability and coverage
depend highly on legal concepts of property and airspace that are
evolving with UAS use.
Trespass in airspace requires the property owner to have possessory
rights to the airspace allegedly violated by the UAS. To constitute an
actionable trespass, an intrusion has to subtract from the owners use
of the airspace above his property that he can actually use. With
respect to privacy, in a public place, there is no right to be alone
nor is there any privacy invasion if a photograph is taken in a public
place.
In 1587, matters were simple and clear under the common law--the
owner of a piece of land also owned everything above and beneath it,
Cujus solum ejus est usque ad coelom--from heaven to hell.
Then modern law came and muddied it all up. In 1946, the U.S.
Supreme Court determined that Congress had declared a public right of
transit in navigable airspace and national sovereignty in that
airspace. The court declined, however, to draw a clear line as to where
that airspace over a property began. In the almost 70 years that have
passed since that decision, that clear line remains undrawn.
Congress did declare a public right through ``navigable airspace,''
and defined that space as minimum safe operating altitudes including
airspace needed for takeoffs and landings. Now that many readily
available UASs can take off and land on coffee tables, the forthcoming
FAA UAS regulations will require the FAA to make some official
determination that its jurisdiction is either from the ground up or
from some point in the air down. This determination will not only be
critical to define Federal and state UAS jurisdictions, as well as
personal rights, but will also directly impact liability of UAS
operators for trespass, privacy issues, and cybersecurity.
An FAA designation of UAS navigable airspace will generally
inhibit, if not preclude, allegations that a UAS in that airspace
trespassed on private property or violated privacy. Should the FAA
define UAS ``navigable airspace'' as ``from the ground up,'' the FAA
may practically eliminate private property limits--as well as state
jurisdiction--on UASs.
There is a bill proposed in California that would define trespass
as the ``knowing entry upon the land of another also to include
operation of an unmanned aerial vehicle below the navigable airspace
overlaying the property.'' That means flying a drone over private
property--below what the FAA deems ``navigable airspace''--could at
some point constitute trespassing in California. The problem is that
there may be no airspace below FAA jurisdiction. FAA officials have
reportedly taken the position that national airspace extends down to
the ground--that the FAA considers the air one millimeter above a
person's lawn or patio--to be the NAS subject to Federal Government
regulation. FAA officials admit that this is not ideal, but that's what
the laws say and that's what the rules say.
With respect to privacy, the FAA has in the past opined that it is
not taking specific views on whether or how the Federal Government
should regulate privacy or the scope of data that can be collected by
manned or unmanned aircraft. Numerous Federal and state legislative
proposals regarding UAS and privacy have been made, however. The
Preserving American Privacy Act would prohibit UASs from capturing data
in ``highly offensive'' ways; the Drone Aircraft Privacy and
Transparency Act would require UAS operators to submit a ``data
collection statement'' to the FAA.
President Obama issued an executive order on Feb. 14, 2015,
establishing transparent principles for the Federal Government's use of
UASs in the NAS and to promote the responsible use of this technology
in the private and commercial sectors. The order primarily addresses
government use of UASs. It also creates a ``multi-stakeholder
engagement process to develop and communicate best practices for
privacy, accountability, and transparency issues regarding commercial
and private UAS use in the NAS'' to include stakeholders from the
private sector. Insurance should certainly be a consideration with
respect to accountability, and NAMIC will request that the National
Telecommunications and Information Administration include insurance
issues in the agenda of the process.
4. Cyber
A commercial UAS that is not used for delivery of goods will likely
be involved in the collection, storage, and transmission of electronic
data. Owners and operators of these commercial UASs should seek
liability coverage for the collection, storage, or transmission of
protected private and business data, and claims resulting from actions
such as libel, slander, invasion of privacy, and misappropriation. A
UAS collecting or storing information can lose, irretrievably corrupt,
inappropriately transmit, or have its data hacked/stolen by third
parties resulting in liability.
Cybersecurity and data breach exposures simply did not exist when
commercial general liability policy forms were developed. Policyholders
have attempted to interpret existing policy provisions to provide
coverage for such exposures, and insurers have developed various
exclusions to bar coverage for cybersecurity exposures. The insurance
industry has also developed specialized cyber insurance policies that
provide coverage for, among other things, liability arising out of data
breaches. Lawyers advise that policyholders relying on commercial
general liability for cyber coverage may be using a bad risk management
technique and should initiate a thorough review of their policies to
see which cyber events are covered and which aren't.
5. Personal Injury/Property Damage
The law--through statute, regulation, or judicial decision--will
generally seek to constrain and direct human action and social behavior
by considering the risks posed to people and property, and the law has
a long history of managing the risks of things falling out of the sky.
Statutes and regulations will attempt to provide strict liability
standards for certain injuries or damages from a UAS, but with rapidly
evolving technology and very limited experience and expertise, there
will undoubtedly be a wider range of practical and legal questions that
will have to be addressed under common law claims, with judges making
decisions on duty, breach, causation, and damages.
What is the extent of the duties of a UAS operator to not present
foreseeable risk to others? When is UAS operation unreasonable in light
of those risks? What damages or injuries from a UAS are foreseeable as
a natural consequence of UAS operation? After an accident, what
determines the extent of operator error versus equipment failure,
versus software malfunctions, versus communications problems? As noted,
a study of UAS liability and insurance in Europe concluded that the
lack of reliable data on UAS incidents or accidents means the
assessment of damage caused by UASs remains a theoretical exercise.
Then there is the concept of negligence per se, which results from
the violation of a law meant to protect the public, such as a speed
limit or building code. Unlike ordinary negligence, a plaintiff
alleging negligence per se need not prove that a reasonable person
should have acted differently--the conduct is automatically considered
negligent--and the focus of a lawsuit will be whether it proximately
caused damage to the plaintiff. Some courts may apply FAA
interpretations and state regulations to establish negligence per se
and some may not. In the most relevant example, one court may deem
commercial UAS operation as negligence per se in violation of the FAA
notice, while another court may require plaintiffs to prove duty,
breach, causation, and damages.
While certain legal questions exist surrounding UAS damage and
injury, there is no question that the potential liability for harm from
even the smallest UAS can be significant, if not catastrophic. It has
been reported that Congress is already getting pushback from private
and commercial pilots who worry about collisions. The FAA receives
reports nearly every day about drones sighted flying near manned
aircraft or airports. Mark Baker, president of the Aircraft Owners and
Pilots Association, which represents private pilots, said online videos
show that ``operators are flying near airports, in the clouds, and in
congested airspace.'' He called such actions reckless and said they
will inevitably lead to a collision.
The MIT International Center for Air Transportation concluded that
it is the responsibility of the FAA to ensure the safety of UAS
operations in the NAS. FAA Order 8040.4 specifies that a risk
management process should be applied to all high-consequence decisions
by the FAA, which includes the incorporation of a new class of aircraft
in the NAS. Published in support of Order 8040.4, the FAA System Safety
Handbook provides general guidance to FAA personnel and contractors on
implementing a risk management process, but it does not supersede
existing regulations.
Conclusion
No less an authority than Lloyd's has opined that insurers must
play a role in developing standards of good practice for operating
UASs, particularly where there is a lack of regulatory specification.
To facilitate the ongoing development of commercial operation of UASs
for their own use and for policyholder use, insurers will look to cover
responsible operators. ``By requiring proof from the insured of a
safety and privacy conscious mind-set, insurers can help protect
against cases of misuse, which at the formative stage of the market
could set back UAS acceptance considerably,'' according to Lloyd's. By
applying business sense and hazard expertise, insurers will be critical
to earning the trust of the public, regulators, and opinion leaders in
a UAS field, where both risks and opportunities will continue to be
defined.
When damage or injuries result from a UAS, a key question will be
who is responsible and liable for damages. NAMIC member companies want
to provide comprehensive policyholder protection, but many serious
questions continue to go unanswered about UAS regulations and civil
liability. If the regulation of drones remains unclear and incomplete,
it will be very difficult for insurers to meet policyholder needs.
The FAA's recently proposed small UAS regulations would eliminate
the need for the vast majority of the FAA exemption requirements that
have hampered reasonable commercial use of drones by NAMIC members and
policyholders. The proposed rules also offer important UAS operational
requirements and performance standards that further define
responsibility and standards of care that can facilitate greater
property/casualty coverage. The proposed rules request comment on
further developments in this area, and NAMIC is ready with its 1,300
members nationally to propose even more comprehensive enhancements.
There will always be risks in the commercial use of drones, and
property/casualty insurance will be a critical consideration. The
proposed FAA rules eliminate some of the more significant barriers for
drone insurance at the Federal level, but responsible insurance
coverage for this emerging area will require more development of
federal, state, and local regulations, as well as related standards of
liability, negligence, and property rights.
NAMIC is committed to working with its members and federal, state,
and local regulators to promote responsible UAS development that
protects aircraft, people, businesses, and property. As UAS regulations
and civil liability standards evolve, NAMIC will work to ensure that
these regulations provide the necessary clarity and breadth that its
members need to provide policyholder protection. As these legal and
regulatory gaps are addressed, NAMIC wants to ensure that its members
can be in the business of providing effective protection and
compensation.
______
Response to Written Questions Submitted by Hon. John Thune to
Margaret Gilligan
Question 1. I am pleased that FAA was recently able to publish the
proposed rule addressing small UAS. Even with the limitation for line
of sight operations, it is a positive step forward, and I look forward
to opportunities that rule, when finalized, will unlock. As noted, the
current framework limits the opportunities to only line of sight
operations, though, so it begs the question: what steps would the
agency need to approve case-by-case beyond line of sight exemptions if
the Section 333 exemption authority from the 2012 FAA Bill were
expanded to beyond line of sight operations?
Answer. Beyond line of sight (BLOS) UAS operations present an
additional layer of complexity, not only in terms of operational risk,
but also in terms of air traffic interface and the requirement of the
pilot in command to ``see'' and avoid other aircraft. Currently, BLOS
public (governmental) UAS operations are authorized in the national
airspace system on a case-by-case basis, and only after a number of
risk mitigation procedures are implemented, including procedures to
address the requirement for the pilot in command to see and avoid other
aircraft. Even if Section 333 operations were permitted to operate
BLOS, the requirement to see and avoid other aircraft would still
exist.
The Agency's approach to UAS integration considers safety first,
and as such, must be incremental. The Administrator recently announced
the Pathfinder Program. The FAA is partnering with three leading U.S.
companies who have committed extensive resources to perform research
that will help us determine if and how we can safely expand unmanned
aircraft operations in the United States. BNSF Railroad will explore
the challenges of using these vehicles to inspect their rail
infrastructure beyond visual line-of-sight in isolated areas. CNN will
be researching how visual line-of-sight operations might be used for
newsgathering in urban areas. PrecisionHawk, a manufacturer, will be
surveying crops in rural areas using unmanned aircraft flying outside
of the pilot's direct vision.
Question 2. What can Congress do now to help the FAA and other
stakeholders facilitate the integration of UAS in a safe and secure
manner?
Answer. We expect that as integration moves forward, there will be
additional demands on our resources. We thank Congress for recognizing
the importance and requirements of UAS integration and for its support
through an increased budget supporting research and development.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
Margaret Gilligan
Question 1. Unmanned Aerial System (UAS) Center of Excellence. Can
you provide a timeline for the process and ultimate announcement for
the COE on Unmanned Aerial Systems?
Answer. On May 8, the FAA announced it has selected Mississippi
State University as the FAA's Center of Excellence (COE) for Unmanned
Aircraft Systems (UAS). The COE will focus on research, education, and
training in areas critical to safe and successful integration of UAS
into the Nation's airspace.
In addition to Mississippi State University, other team members
include: Drexel University; Embry Riddle Aeronautical University;
Kansas State University; Montana State University; New Mexico State
University; North Carolina State University; Oregon State University;
University of Alabama, Huntsville; University of Alaska, Fairbanks;
University of Kansas, University of North Dakota; and Wichita State
University.
Question 2. UAS Waivers. On October 14, 2014, electric utility
Southern Company asked for an exemption from the FAA to develop
unmanned aerial systems to help restore power and identify downed
electricity lines following hurricanes and tornados. Exemption requests
for movie making, real estate surveys, and R&D into package deliveries
have been approved but the Southern Company request continues to be
delayed. Can you explain the priorities being set by the FAA for these
exemptions?
Answer. Southern Electric Company's 333 Exemption was granted on
March 26, 2015.
The agency recently implemented improvements to streamline the
exemption review process by increasing the use of summary grants.
Petitions that are similar to exemptions the agency has previously
granted can be processed through the summary grant. Novel requests
require additional review. Additionally, the FAA is granting a
``blanket'' Certificate of Waiver or Authorization (COA) with each
exemption and has modified the pilot certification and medical
certificate requirements from the earlier exemptions.
Question 3. How does the FAA plan on managing the airspace below
500 feet?
Answer. The FAA uses a risk-based approach when considering
airspace management. For example, on March 23, 2015 we established an
interim policy to expedite issuance of appropriate airspace
authorizations for certain commercial unmanned aircraft (UAS) operators
who obtain Section 333 exemptions. The new policy does not evaluate
every UAS operation individually but considers operational limitations
that will allow one COA for all operations at and below 200 feet. We
will consider increases to the existing 200 foot limit through a risk-
based approach. This will allow us to analyze future operations that
will allow us to safely integrate small UAS into the NAS.
Under the new policy, the FAA will grant a COA for flights at or
below 200 feet to any UAS operator with a Section 333 exemption for
aircraft that weigh less than 55 pounds, operate during daytime Visual
Flight Rules (VFR) conditions, operate within visual line of sight
(VLOS) of the pilots, and stay certain distances away from airports or
heliports. Additional details may be found at http://www.faa.gov/news/
updates/?newsId=82245
Question 4. What research has the FAA conducted on small UAVs?
Where is the data being collected and analyzed?
Answer. The FAA has ongoing research focused on two key areas that
must be addressed to enable routine integrated UAS operations,
including small UAS operations. These two areas are ``Detect and
Avoid'' and ``Command and Control.'' The FAA's UAS research and
development requirements are set by the FAA's UAS Integration Office
and are executed on behalf of the FAA by the NextGen organization, both
at FAA Headquarters and the FAA's Technical Center in Atlantic City,
NJ.
______
Response to Written Questions Submitted by Hon. Dean Heller to
Margaret Gilligan
Question 1. In December 2013 (well over a year ago now) the FAA
identified the six designated UAS test sites as mandated by Congress.
Since that time, it is my understanding that each of these six test
sites have received at least one Certificate of Authorization (COA) to
test UAVs--effectively meaning they are ``considered'' open and
available for testing. However, it is also my understanding that there
are numerous test site COA applications still in the FAA queue for
review and approval. Additionally, it is my understanding there are COA
applications from other entities that are not FAA designated test sites
and private companies applying for Section 333 exemptions in order to
fly ``for profit''. How many COAs and Section 333 exemption requests
are currently in FAA's review and approval process queue?
Answer. As of May 8, 2015, there are 229 non-Test Site COAs
requests in queue. We have received 1280 Petitions for Exemption under
Section 333 and have processed 353 of those requests. The UAS Test
Sites have 54 active COA's and 34 in process.
Question 2. How long, on average, does it take for COAs and for
Section 333 exemptions to be reviewed and approved?
Answer. The FAA recently revised its approach for Section 333
exemptions, speeding up the approval process for many UAS operators.
The FAA is able to issue summary grants when it finds that it has
already granted a previous exemption similar to the new request.
Summary grants are more efficient because they don't need to repeat the
analysis preformed for the original exemption on which they are based.
This streamlined approach now allows the FAA to issue between 40-50
Section 333 exemptions a week.
As part of this streamlined approach, the FAA grants a COA for
flights at or below 200 feet when it issues the Section 333 exemption.
This applies to aircraft that weigh less than 55 pounds, operate during
daytime Visual Flight Rules (VFR) conditions, operate within visual
line of sight (VLOS) of the pilots, and stay certain distances away
from airports or heliports. Operators wishing to operate above 200 feet
would need to request an additional COA. The target goal for COA
processing is 60 days, and we routinely beat that goal with processing
timeframes in the low to mid 50-day range.
Question 3. Since the designated test sites were specifically
created to assist the FAA achieve its congressionally mandated mission
directive of safely integrating UAS into the National Airspace System
(NAS), are the COA applications of designated test sites given any type
of review and approval preference?
Answer. The Test Site COAs must undergo the same evaluations as
other COA applications, and there are limited resources within the FAA
that complete this safety function. Generally, Test Site COAs are not
prioritized over other COA applications, but they do have a higher
level of visibility, which enables issues to be identified and resolved
more quickly.
Question 4. Is the FAA working with the six designated test sites
to give them COAs with broader authority ``blanket geographic COAs''
that allow the test sites to have greater flexibility to achieve
testing objectives?
Answer. As of March 24, 2015, two of the six test sites had applied
for and received broad area COAs and a third Test Site has several
broad area COA applications in process.
Question 5. Is the FAA considering working with the test sites to
create a ``train the trainer'' program that allows the test sites to
approve testing activities at a local level?
Answer. The FAA issued an Order for Designated Airworthiness
Representatives (DAR) for UAS Certification at UAS Test Sites on
September 17, 2014.
This order sets policy and provides training requirements limited
to the issuance of special airworthiness certificates in the
experimental category at UAS Test Sites. Experimental certificates are
issued to aircraft that do not possess traditional airworthiness
certificates, for specific operations including crew training or
showing compliance with regulations. As of April 24, 2015, only one
Test Site has applied for and been designated a DAR.
Question 6. The Governor of Nevada has sent a letter to the FAA
encouraging them to allow the designated test sites to have authority
to operate under the parameters recently published in the Notice of
Proposed Rule Making (NPRM) so as to provide the FAA with empirical
data to prove up the proposed regulations. Has the FAA considered this
option? Is the FAA willing to support this approach?
Answer. This topic was discussed at a recent Technical Interchange
Meeting between the FAA and the Test Sites (March 30-April 1). The FAA
requested the Test Sites provide a proposal on this concept of
operations and specifically requested suggestions and proposals for how
current statutory requirements, such as the requirement for a
certificated pilot for commercial operations, could be addressed. As of
April 24, 2015, we have not received this proposal. We have committed
to the Test Sites to expedite the review process once the proposal is
received.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Margaret Gilligan
Question 1. Associate Administrator, UAS research, development, and
manufacturing are areas of great interest to New Mexico, especially
southern New Mexico. As you know, NMSU has served as UAS Flight Test
Center for more than a decade. As such, it has played an important role
in providing the FAA UAS data and background. How is FAA integrating
feedback from NMSU and other universities into the rule-making process?
How has the information they have collected helping craft new policies?
Do you think there is any room for improvement in how you work with
universities?
Answer. When developing final rules, the FAA considers feedback and
comments from all entities, including universities. We also rely on
universities, such as New Mexico State University and those included in
the UAS Test Sites to inform our UAS research and development efforts.
We are entering a new level of cooperation with our Nation's
universities through the establishment of the Center of Excellence for
Unmanned Aircraft Systems (COE UAS), announced on May 8. The team led
by Mississippi State University was selected and will focus on
research, education and training in areas critical to safe and
successful integration of UAS into the Nation's airspace. The team
brings together 15 of the Nation's leading UAS and aviation
universities that have a proven commitment to UAS research and
development and the necessary resources to provide the matching
contribution to the government's investment.
Question 2. The universe of UAS application continues to grow every
day. This variety of uses presents an opportunity for the FAA to build
and expand partnerships with other Federal agencies. For example, in
Alamogordo, New Mexico, an SBA grant will establish a Regional
Innovation Cluster focused on the development of unmanned systems for
agriculture, forestry management, and clean-energy development. This
SBA program will support public-private partnerships to spur unmanned
system development. Is the FAA working with the SBA to capitalize on
the data and research that may result program? Is FAA working to
support similar public-private partnerships? Is the FAA working with
other agencies who are interested in UAS development?
Answer. The FAA works closely with interagency partners such as DoD
and NASA on UAS integration related activities and research. While we
are not currently working with the SBA and the Regional Innovation
Cluster in Alamogordo, New Mexico, we see this as an excellent
opportunity for involvement by one or more of the UAS Test Sites to
provide partnership assistance and subject matter-expertise. We will
refer this opportunity to the Test Sites for additional follow-up. The
FAA is also engaged in our own public-private partnerships.
On May 6 we announced a partnership with industry to explore the
next steps in unmanned aircraft operations beyond the type of
operations the agency proposed in the small unmanned aircraft systems
(UAS) proposed rule, published in February. The FAA is working with
these industry partners on three focus areas, including: visual line-
of-sight operations in urban areas, extended visual line-of-sight
operations in rural areas, and beyond visual line-of-sight in rural/
isolated areas. Additional details may be found at http://www.faa.gov/
news/press_releases/news
_story.cfm?newsId=18756.
______
Response to Written Questions Submitted by Hon. John Thune to
John B. Morris, Jr.
Question 1. What can Congress do now to help the FAA and other
stakeholders facilitate the integration of UAS in a safe and secure
manner?
Answer. Pursuant to the FAA Modernization and Reform Act of 2012
(Public Law 112-95), the Federal Aviation Administration (FAA) is
executing a plan to safely integrate unmanned aircraft systems (UAS)
into the National Airspace System (NAS). I would defer to my colleagues
at the FAA regarding how best to ensure safe and secure integration.
NTIA is pleased to be working with private sector stakeholders and our
colleagues across the Federal government, including the FAA, to promote
privacy safeguards for commercial UAS operation, as requested by the
February 2015 Presidential Memorandum.
Question 2. How long do you anticipate NTIA will take in working
through the multi-stakeholder process with regard to privacy and best
practices?
Answer. Ultimately, stakeholders will determine the duration of the
NTIA process to develop best practices that can enhance privacy,
transparency, and accountability in the commercial operation of UAS. As
directed by the February 15, 2015, Presidential Memorandum ``Promoting
Economic Competitiveness While Safeguarding Privacy, Civil Rights, and
Civil Liberties in Domestic Use of Unmanned Aircraft Systems,'' NTIA
will bring industry, civil society, technical experts, academics, and
other stakeholders together to craft best practices that mitigate
potential privacy, transparency and accountability issues raised by
UAS, while at the same time promoting growth and innovation. NTIA will
act as a facilitator and convener of the multistakeholder process,
ensuring the process is open, transparent, and consensus-based, but
NTIA will not make substantive decisions about what the best practices
should include. Stakeholders will discuss the relevant issues, draft
best practices, and make the substantive decisions. NTIA expects that
stakeholders will work diligently and efficiently. We anticipate that
the group will set a working timeline that reflects the scope of their
anticipated efforts.
______
Response to Written Question Submitted by Hon. Roger F. Wicker to
John B. Morris, Jr.
Question. How will your UAS multistakeholder process differ from
previous efforts? How are best practices different than a code of
conduct?
Answer. NTIA has previously convened stakeholders to develop
privacy codes of conduct for mobile apps and commercial uses of facial
recognition technology. The hallmark of these processes is that they
are open, transparent, and consensus-driven. Although all NTIA
processes share these foundational traits, none of NTIA's
multistakeholder efforts are identical. Each process involves different
stakeholders, different topics, and potentially different procedural
norms.
In addition to these typical differences, NTIA's UAS
multistakeholder process will differ from previous efforts in two
important ways. First, the UAS process will focus on three aspects of
commercial UAS operation: privacy, transparency, and accountability.
Previous processes focused on one aspect of the relevant technologies:
privacy. Second, the goal of the UAS process is slightly different from
previous efforts. The UAS process is intended to help stakeholders
develop non-binding best practices for privacy, transparency, and
accountability challenges arising from commercial UAS. Previous efforts
have been intended to help stakeholders develop codes of conduct that
would be adopted by companies and enforced by the Federal Trade
Commission under the Commission's existing authority to hold companies
to their promises. The NTIA UAS process is focused on best practices
rather than a code of conduct because commercial UAS operations are
just beginning to expand. It is unlikely that stakeholders have
sufficient experience to draft a binding code to govern this emerging
commercial sector, but it is realistic for stakeholders to draft
voluntary best practices that can help guide the commercial rollout of
this important technology.
______
Response to Written Questions Submitted by Hon. John Thune to
Gerald L. Dillingham, Ph.D.
Question 1. What can Congress do now to help the FAA and other
stakeholders facilitate the integration of UAS in a safe and secure
manner?
Answer. Congress could help by encouraging FAA to consider a number
of efforts that stakeholders suggested could help facilitate the
integration of UAS into the national airspace. These include:
Consider if the position of the UAS Integration Office
within FAA and if the office has enough authority to ensure
integration of UAS;
Develop an implementation plan that would identify the
means, necessary resources, and schedule to safely and
expeditiously integrate civil UAS into the NAS; and
Expand its UAS public education campaign to increase the
safety on the national airspace.
Question 2. How can we ensure that the test sites are used more
effectively? Are there other areas in terms of research that need
attention from the FAA and other stakeholders?
Answer. There are a number of mechanisms to ensure that the test
sites are used more effectively:
Increased R&D direction from FAA: According to some of the
test site operators we spoke to as part of our ongoing work,
there is uncertainty about what research and development should
be conducted at the test sites to support the integration
process. However, FAA states it does provide support through
weekly conference calls and direct access for test sites to
FAA's UAS office. FAA is also working with MITRE Corporation
(MITRE), DOD, and the test sites to define what safety,
reliability, and performance data are needed and develop a
framework, including procedures, for obtaining and analyzing
the data. However, FAA has not yet established a time frame for
developing this framework.
Clear path from research and development to commercial
applications: The FAA's implementation of its Section 333
exemption authority provides an avenue for companies to engage
in commercial applications without the need for an
airworthiness certificate. Officials at one test site said that
it would be helpful if there was a route that would allow the
university and test site to be able to apply for the equivalent
of the section 333 exemption, enabling the university to
conduct research that crosses over into commercial
applications. The university could also work with smaller
companies, such as a precision agriculture consulting group.
These companies may not feel quite as comfortable with applying
for a section 333 exemptions directly through FAA, due to the
lack of legal resources, and could instead work with the
university under the umbrella of the test site.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
Gerald L. Dillingham, Ph.D.
Question 1. Is the U.S. falling behind other countries in allowing
for UAS development and commercial use? If so, why?
Answer. While other countries have been allowing UAS operations for
years, recent actions by FAA has moved the United States towards
allowing greater UAS operations, and proposed rules are similar to
rules in other countries. Foreign countries are also experiencing an
increase in UAS use, and some have begun to allow commercial entities
to fly UASs under limited circumstances. According to industry
stakeholders, easier access to testing in these countries' airspace has
drawn the attention of some U.S. companies that wish to test their UASs
without needing to adhere to FAA's administrative requirements for
flying UASs at one of the domestically located test sites, or obtaining
an FAA COA. It has also led at least one test site to partner with a
foreign country where, according to the test site operator, UAS test
flights can be approved in 10 days.
As part of our ongoing work, we identified a number of countries
that allow commercial UAS operations and have done so for years.
According to a MITRE study, the speed of change can vary based on a
number of factors, including the complexity and size of the airspace
and the supporting infrastructure. In addition, according to FAA, the
legal and regulatory structures are different and may allow easier
access to the airspace in other countries for UAS operations. While UAS
commercial operations can occur in some countries, there are
restrictions controlling their use.
If UASs were to begin flying today in the national airspace system
under the provisions of FAA's proposed rules, their operating
restrictions would be similar to regulations in other countries. For
example, FAA proposes altitude restrictions of below 500 feet, while
Australia, Canada, and the United Kingdom restrict operations to
similar altitudes. However, there would be some differences in the
details. Other proposed regulations require that FAA certify UAS pilots
prior to commencing operations, while Canada and France do not require
pilot certification.
Question 2. What will be the biggest markets for UAS uses? What
types of UAS will do that work?
Answer. According to a study by a UAS industry group, precision
agriculture and public safety are the most promising commercial and
civil markets and are thought to comprise approximately 90 percent of
the known potential markets for UAS.
Question 3. How soon will the FAA integrate UAS?
Answer. FAA has identified a broad three-phase approach to FAA's
UAS integration plans--Accommodation, Integration, and Evolution--with
associated priorities for each phase that provide additional insight
into how FAA plans to integrate UAS into the national airspace system.
This phased approach has been supported by both academics and industry.
FAA plans to use this approach to facilitate further incremental steps
toward its goal of seamlessly integrating UAS flight into the national
airspace.
While limited operations continue through these means of FAA
approval in the accommodations phase, FAA has been planning for further
integration. Currently, FAA has authority to authorize all UAS
operations in the national airspace--military; public (academic
institutions and federal, state, and local governments including law
enforcement organizations); and civil (non-government including
commercial). Currently, since a final rulemaking is not completed, FAA
only allows UAS access to the national airspace on a case-by-case
basis. FAA provides access to the airspace through three different
means:
Certificates of Waiver or Authorization (COA): Public
entities including FAA-designated test sites may apply for COA.
A COA is an authorization, generally for up to 2 years, issued
by the FAA to a public operator for a specific UAS activity.
Special Airworthiness Certificates in the Experimental
Category (Experimental Certificate): Civil entities, including
commercial interests, may apply for experimental certificates,
which may be used for research and development, training, or
demonstrations by manufacturers.
Section 333 exemptions: Since September 2014, commercial
entities may apply to FAA for issued exemptions under section
333 of the 2012 Act, Special Rules for Certain Unmanned
Aircraft Systems. This exemption requires the Secretary of
Transportation to determine if certain UASs may operate safely
in the national airspace system prior to the completion of UAS
rulemakings.
______
Response to Written Question Submitted by Hon. John Thune to
John Villasenor
Question. What can Congress do now to help the FAA and other
stakeholders facilitate the integration of UAS in a safe and secure
manner?
Answer. Congress is uniquely positioned to promote safe and secure
UAS integration. Three years ago, by enacting the FAA Modernization and
Reform Act of 2012 (FRMA), Congress has already taken the key initial
step in this process.
Moving forward, Congress can play a key role in continuing to
promote dialog, raise awareness, and spur the FAA and other relevant
government entities to take the regulatory and other steps needed to
ensure the safe, responsible, and productive use of UAS technology.
In a future Commerce Committee hearing on UAS, I would recommend
including a one or more representatives from the UAS hobbyist
community. Some of America's greatest innovators have started out as
hobbyists--and that will certainly occur in the realm of UAS as well.
The UAS hobbyist community is different in many ways from the
commercial UAS community--and operates under a different regulatory
framework. Ensuring that Members of the Committee have the opportunity
to hear about this important aspect of the UAS ecosystem will be
helpful as the UAS policy discussion continues.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
John Villasenor
Question 1. Does Congress need to pass legislation for Federal
preemption?
Answer. At present, I do not believe that Congress needs to
specifically pass legislation for Federal preemption with respect to
UAS. That may change in the future--if, for example, states were to
enact legislation that would potentially impede the FAA's ability to
oversee the safety of the National Airspace System, especially at the
lowest altitudes where UAS operations will be most common. But, at
least at present, I do not believe such legislation is warranted.
Question 2. Should Congress treat privacy issues associated with
UAVs differently than other technologies?
Answer. As I noted in my written testimony in the March 24, 2015
hearing, I think that existing privacy frameworks--including the
Constitution, common law, and statutory law--will provide significantly
more privacy protection with respect to UAS than is sometimes
suggested.
While the temptation to enact UAS-specific privacy laws is
understandable, it is difficult to draft laws that would both (1) avoid
being duplicative with respect to protections we already have, and (2)
avoid unintended consequences that could impede non-privacy-violating
uses of UAS.
In addition, UAS technology is changing very quickly. As I wrote in
testimony before the House Judiciary Committee in 2013:
If, in 1995, comprehensive legislation to protect Internet
privacy had been enacted, it would have utterly failed to
anticipate the complexities that arose after the turn of the
century with the growth of social networking and location-based
wireless services. The Internet has proven useful and valuable
in ways that were difficult to imagine over a decade and a half
ago, and it has created privacy challenges that were equally
difficult to imagine. Legislative initiatives in the mid-1990s
to heavily regulate the Internet in the name of privacy would
likely have impeded its growth while also failing to address
the more complex privacy issues that arose years later.\1\
---------------------------------------------------------------------------
\1\ Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems,
Written Testimony of John Villasenor before the House Committee on the
Judiciary--Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations (May 13, 2013), available at http://www.brookings.edu/ /
media/research/files/testimony/2013/05/
17%20privacy%20drones%20villasenor/villasenorte
stimonymay17
Finally, even if UAS-specific privacy laws are shown to be
necessary, such laws may in some cases be better handled at the state
level.
______
Response to Written Question Submitted by Hon. John Thune to
Paul Misener
Question. What can Congress do now to help the FAA and other
stakeholders facilitate the integration of UAS in a safe and secure
manner?
Answer. Congress has already given the FAA the authority to
regulate UAS; however, the FAA needs impetus to act, especially on
permitting commercial operations of highly-automated UAS beyond line of
sight. Therefore, Congress should provide oversight. There is also an
opportunity in the next FAA reauthorization act to direct the FAA to
move more quickly to permit UAS operations in a truly performance-based
manner.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
Paul Misener
Question 1. Unmanned Aerial System (UAS) Center of Excellence. Will
the UAS Center of Excellence serve a valuable role addressing issues
related to integration that will be useful to Amazon as you consider
options for potential applications?
Answer. Amazon supports the UAS center of excellence program and we
look forward to actively participating with the academic consortium
that is ultimately awarded the center. There are numerous research
projects the FAA could fund through the center of excellence that could
benefit the UAS industry, such as air traffic management for small UAS
at low altitudes, and safety equipage requirements.
Question 2. You've testified that the FAA is behind other
countries, do you think the FAA can catch up?
Answer. Although the United States is catching up in permitting
current commercial UAS testing, the United States remains behind in
planning for future commercial UAS operations, in particular for highly
automated commercial UAS that fly beyond line of sight. The FAA should
also elevate their level of intensity and participation in
multinational organizations, such as the Joint Authorities for
Rulemaking on Unmanned Systems (JARUS) and ICAO. International
harmonization of rules is strongly desirable, and domestic
balkanization by states and localities is not. Harmonized UAS rules,
perhaps developed through JARUS or ICAO, should be a top FAA priority
internationally. And within the United States, uniform Federal rules
should apply.
Question 3. What can Congress to do ensure the U.S. doesn't fall
further behind?
Answer. Congress should continue to provide close oversight of the
FAA's activities, as should the GAO and DOT Inspector General. Although
we are encouraged by the FAA's general preference to adopt a
performance-based approach to regulating small UAS operations, we would
like Congress, possibly in the FAA reauthorization act, to ensure the
FAA truly embraces performance-based permissions, which will enable
small UAS innovation to flourish. Congress can also provide the impetus
to move the FAA more quickly towards commercial operations.
The FAA needs a comprehensive UAS plan on how it will collect,
analyze, and use safety data. What data do they need, how do they want
to collect it, where will it go, who will analyze it, and what will be
done with it? Congress should also ensure that UAS research being
conducted by others is considered and utilized by the FAA. For example,
NASA has an unmanned traffic management initiative for small UAS flying
at low altitudes, which could help the FAA safely allow highly
automated UAS flying beyond line of sight.
Question 4. What would you like to see in the next FAA
Modernization and Reform Act?
Answer. We would like to see the FAA take a true performance-based
approach to permitting UAS. Overly prescriptive restrictions are likely
to have the unintended effect of stifling innovation and, over time,
will fail to offer any corresponding safety benefit as small UAS
technology evolves. By contrast, genuine performance-based permissions
would facilitate the development, testing, and introduction of UAS
technologies, including Prime Air, as soon as safely possible.
Question 5. The FAA has an industry advisory group looking at UASs,
is that group effective? What else could be done?
Answer. Although the FAA has asked a subcommittee of one of its
aviation rulemaking committees (ARC) to examine beyond visual line of
sight operations, the group (which Amazon sits on) has only met twice
since its inception over a year ago. This low level of government
attention and slow pace are inadequate, especially compared to the
regulatory efforts in other countries.
We would like the FAA to establish a new Small UAS ARC to address
the issues that will likely not be resolved in the proposed rule for
small UAS. This is not to suggest that regulators here or abroad can
quickly adopt comprehensive regulations for UAS operations beyond
visual line of sight. That may take some time. But regulators should
start developing a performance-based regulatory framework for future
commercial UAS operations now.
______
Response to Written Questions Submitted by Hon. John Thune to
Jeff VanderWerff
Question 1. Even with all of the challenges associated with safe
integration of unmanned aircraft, as highlighted by some of the other
witnesses at the table, do the potential economic impacts outweigh the
drawbacks in the agriculture community? How do the potential benefits
of UAS reach beyond the borders of your farm land and impact the
overall economy?
Answer. There is no denying the economic boon that UAS will bring
once their potential can be fully realized. A study conducted by the
Association for Unmanned Vehicle Systems International (AUVSI) found
that the UAS industry will create more than 70,000 new jobs in the
first three years after they are allowed to fly in U.S. airspace, and
over 100,000 new jobs by 2025. The resultant economic impact will total
over $13.6 billion in the first three years and is predicted to grow to
over $82.1 billion by 2025.
The AUVSI study concluded that the commercial agriculture market
will dwarf all other industry segments with its economic impact. During
the 11-year period 2015-2025, UAS integration is expected to contribute
$75.6 billion in economic impact by agriculture, compared to $3.2
billion by public safety and $3.2 billion by other activities.
Farmers will reap benefits from UAS through their ability to
perform important, time saving functions that support everyday farming
and ranching activities. Equipped with sophisticated cameras and/or
sensors tailored to the unique specifications and needs of the user,
UAS can help farmers and ranchers scout and monitor crops and pastures
more efficiently by capturing accurate, high-resolution images covering
up to hundreds of acres in a single mission. The imagery and data
gleaned from a UAS can assist in identifying the particular location
where a specific treatment--be it fertilizer, water, pesticides or
herbicides--is necessary. It allows the spot-treatment of sections of
fields and pastures as opposed to watering or spraying the entire
field. It allows ranchers to check on livestock on range lands and
pastures. By doing this, the producer not only lowers the cost of
treatment but also lowers the environmental impact.
The value of spot-treatment is exemplified during droughts.
Agriculture is a water-dependent industry. Whether they are growing
plants or raising animals, farmers and ranchers need water. It is no
secret that the past few years have been especially difficult for
farmers in Western states, particularly in California, where
historically low rainfall has created an emergent crisis with no end in
sight. In fact, the drought is so severe that the governor of
California earlier this month introduced the first mandatory water
restrictions in the state's history. Although no technology could
completely counterbalance effects of this magnitude, deploying UAS
above affected fields in California and elsewhere in the Western U.S.
could help minimize the amount of water used. Rather than apply an inch
of water on a blanket basis, for example, a UAS could quickly scan the
field to more precisely identify the areas most in need of treatment.
Question 2. With an expanded use of UAS in agriculture it seems
that farmers could have two options: either they will own and operate
their own UAS, or they will hire someone that specializes in UAS
services for a fee. Which do you expect to be the more popular option?
Why?
Answer. These will be the two options available for farmers who
want to utilize UAS on their farms. Determining which option is more
popular takes into account a variety of variables this includes
individual preference. While I cannot make a prediction on which option
will be more popular, one variable will be influential for all farmers
and ranchers, return on investment. Depending on which option provides
the greatest return on investment for that farmer's specific
circumstance will impact the decision. As with all business decision
the return on investment is a critical component.
Question 3. Which option would you use for your farming operation?
Answer. While we will certainly evaluate both options, we feel that
based on where the technology is headed, and the potential for drone
pesticide application, we will own and operate our own UAVs. I would
suspect, however, that there will be significant interest among farmers
who simply wish to contract for this service.
Question 4. Who will or should own the data if a farmer hires
another company to provide UAS services--the UAS company or the farmer/
client? What are some of the potential drawbacks with regard to each
approach?
Answer. AFBF supports UAS technology and the enormous potential it
brings to farming. But it is critical that the data remain under the
ownership and control of the farmer and is not available to government
agencies or others without express permission.
Privacy is a serious issue for farmers. They should be able to use
and enjoy their own property for personal and business purposes without
unwarranted intrusions either by the government or private actors. Nor
should any unauthorized parties be permitted to aggregate, use and/or
retain data collected from a farm or ranch without the express
permission of the farmer or rancher. Absent a strong set of principles
to deter such behavior, an activist group opposed to a common and
permissible farming practice, such as pesticide usage, could deploy a
UAS over a field to obtain information that could be used as part of a
slanted campaign to discredit the farm and or lead to an unwarranted
lawsuit that the farmer must spend resources to defend.
In addition, farmers and ranchers are concerned about data privacy.
For example, a farmer's crop information may be valuable to suppliers
and other companies for contract purposes and for many other reasons. A
framework must be established--preferably through industry action--to
protect farmers' data from unauthorized access by both government
agencies and private actors. Any violations of that framework must
trigger serious consequences and provide protections for the land
owner/operator.
Question 5. In your testimony you highlight a number of attractive
uses for UAS among growers and ranchers, particularly relating to the
precise information they can provide. Are there other applications that
may be of use to agriculture? For example, do you think UAS will
replace conventional spraying methods (both land and air tractors) in
the near future?
Answer. The Federal Aviation Administration (FAA) is currently
reviewing the comments on a proposed rule for the ``Operation and
Certification of Small Unmanned Aircraft Systems.'' This specific rule
is for UAS weighing less than 55 pounds. AFBF did submit comments to
the FAA.
Since the proposed rule is only for small UAS, the applications of
UAS within the agricultural community are currently focused on imagery
and surveillance. However, projecting the future of UAS precision
agriculture operations in this country does not require the stretch of
imagination. Other countries like Australia, Canada, the United
Kingdom, France and Japan are already benefiting from UAS flights.
Japan and Australia, in particular, are surpassing the U.S. with
respect to UAS in agriculture: Farmers in those countries have been
safely flying UAS to apply pesticides and fertilizer to their crops for
more than 20 years.
Question 6. What can Congress do now to help the FAA and other
stakeholders facilitate the integration of UAS in a safe and secure
manner?
Answer. Providing flexibility by instituting regulations and
legislation through a genuine performance-based standard. A final rule
that may take 18-24 months to finalize cannot be based solely on the
snapshot of UAS technology as it exists today. Farms are tailor-made
for application of performance-based UAS standards; with their
privately owned, contiguous and sparsely populated fields, they offer a
natural setting to conduct UAS operations without adversely affecting
safety. Instead of prohibiting operations such as those that are
conducted over non-participating persons, at night, and beyond visual
line of sight, performance-based standards should be used to authorize
such operations in circumstances where it is demonstrated that the UAS
can be operated safely. Any legislation or regulation should be
flexible and forward looking, rather than excessively prescriptive and
cemented in time.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
Jeff VanderWerff
Question 1. Unmanned Aerial System (UAS) Center of Excellence.
Would you agree that the Center of Excellence can serve an important
role by providing objective research for FAA consideration?
Answer. AFBF supports the FAA using the Center of Excellence in
addition to other public or private entities that promote research and
development for UAS.
Question 2. Is beyond line of sight operations needed for
agricultural uses? If so, at what altitudes?
Answer. Yes, beyond visual line of sight (BVLOS) is needed for
agricultural purposes. While some farms only consist of several acres
and could be fully surveyed within-visual line of sight, many more
farms do not fit this description. For these larger farms, in
particular, the importance of being able to conduct BVLOS operations is
magnified. Owners and operators of large farms need to survey huge
plots of land to protect their crops from threats. If farmers and
ranchers are restricted to visual line of sight requirements then
farmers and ranchers with large acreage would need to fly multiple,
potentially redundant missions to cover the necessary ground. Instead
of capturing the imagery and collecting the relevant data all at once,
these farmers would be forced to expend precious additional resources
into stitching together maps and synthesizing data. This would be
highly inefficient--both in terms of manpower and time--and could
nullify the potential time and cost savings that make UAS so attractive
with little corresponding safety benefit.
In addition, a BVLOS prohibition is redundant in the agricultural
context when considering the safety mechanisms already available and
installed on many UAS, especially when combined with the remote,
uncongested airspace over most farms. UAS can be controlled via proven
operational safeguards such as geofencing, visual observers, flight
termination mechanisms, and others that either exist now or will in a
short time frame. AFBF also supports the use of risk mitigation
procedures to notify manned aircraft that an UAS is operating in the
vicinity. But imposing a blanket BVLOS prohibition given the
availability of recognized risk mitigation measures and rapidly
developing UAS technology is unnecessarily prescriptive, particularly
in the open environment of a farm where the chances of UAS harming
general aircraft or persons on the ground are significantly reduced.
Given the remoteness of most farms and the uncongested airspace
over them, there is no reason why the 500 foot ceiling, as proposed in
the Federal Aviation Administration's proposed rule, could not be
lifted under certain circumstances. For example, such operations could
be limited to certain times and classes of airspace and subject to the
operator obtaining a certificate of waiver or authorization.