Regulating Drone Use

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A CCM Government Finance & Research Department Municipal InfoKit July 2016 Regulating Drone Use A CCM Government Finance & Research Municipal InfoKit

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This publication is intended for general reference purposes only and is not intended to provide legal advice, opinions, or conclusions. If you have questions about particular legal issues, the application of the law to specific factual situations, or the interpretation of any statutes, ordinances, or case law referenced in this publication, CCM strongly recommends that you consult your attorney, certified public accountant, or other relevant party.

For more information, please contact the CCM Government Relations & Research at (203) 498-3000 or [email protected]. INTRODUCTION

The recreational use of drones continues to gain popularity throughout the country. A 2015 report published by the Federal Aviation Administration (FAA) predicts that 1.9 million unmaned aircraft system (UAS) units, more commonly known as drones, will be purchased by “hobbyists” in the United States in 2016. The number of units purchased is forecasted to continue growing in subsequent years with a predicated average annual growth rate of 23 percent through 2020. An article published in The Economist titled, “Welcome to the Drone Age: Miniature Pilotless Aircraft are on the Verge of Becoming Commonplace,” likens the increasing popularity of drones to the rise of personal computers in the 1980’s. For a relatively low cost, drones with photography and videography capabilities, flying speeds surpassing 100 MPH and the ability to fly more than 500 feet above the ground are being purchased by individuals who may not have had previous interest or experience in aeronautics.

The rate at which drones are being purchased is occurring much faster than law makers can regulate their use. As this once military technology enters into the public, consumer driven arena, the need to understand, define, regulate and ultimately integrate drone technology has become a conversation of growing importance and urgency. With little regulation at the local, state and even federal level, there is much ambiguity regarding the safety and legality of unmanned aircraft systems. By law, the FAA has authority over ensuring the “safe and efficient use of U.S airspace.” Additionally, “the FAA has a statutory duty to, "encourage the development of civil aeronautics.” As a result, the FAA is tasked with creating safety mandates without “stifling innovation and the development of commercial drone markets.” Balancing these mandates is likely one reason for the current lack of drone regulation and the FAA’s authority over creating legislation has left state and local governments unsure about their role in drone regulation and restriction.

On April 3, 2013 Virginia became the first state to pass a law regulating drone use. At the conclusion of the 2016 legislative session, the National Conference of State Legislatures (NCSL) reported that 30 states had adopted legislation to control and or prohibit the use of drones. Examples of successful legislation include laws that prohibit drone owners from: using drones as weapons, infringing on the privacy of others through video and photography capabilities and gaining an unfair advantage when fishing, hunting or trapping through the utilization of drone technology. Drone legislation has been proposed at the Connecticut General Assembly during the 2014, 2015 and 2016 legislative sessions but a law has yet to be adopted.

The recent increase in drone popularity for recreational use has resulted in a more vocal conversation about needed regulations. This CCM Government Finance & Research Municipal InfoKit, Regulating Drone Use, was constructed to update municipal officials on the conversation surrounding drones. This InfoKit will touch upon legal issues regarding drone regulation, relay recent Federal Aviation Administration (FAA) regulations, provide an overview and examples of laws that have been passed in other states, update municipal leaders on recent and current efforts to address drone use in Connecticut and discuss local authority in regulating drones.

A Service of CCM Government Finance & Research Regulating Drone Use

A CCM Government Finance & Research Municipal InfoKit

TABLE OF CONTENTS

What are Drones?

CCM Connecticut Town and City Magazine‐ Drone Q&A 1 Federal Aviation Administration (FAA) and Drone Regulation

“Integration of Civil Unmanned Aircraft Systems in the National Air Space Systems Road Map” 2 “Overview of Small UAS Notice of Proposed Rulemaking” 74 Model Aircraft Safety Code 76 “Law Enforcement Guidance for Suspected Unauthorized UAS Operations" 77 State Level Drone Laws

2013 State Level Drone Legislation 85 2014 State Level Drone Legislation 87 2015 State Level Drone Legislation 90 2016 State Level Drone Legislation 92 Municipal Jurisdiction Over Drone Regulation

"Use and Regulation of Drones by Local Government Entities & Schools" 93 State and Local Regulation of UAS Fact Sheet 109 Connecticut’s Efforts Towards Drone Legislation 2014 An Act Concerning the Use of Unmanned Aircraft ‐ 116 Staff Findings and Proposed Recommendations‐ Drone Use Regulation 120 2015‐An Act Implementing the Recommendation of Legislative PRI Committee Concerning the Use of Drones 157 Staff Findings Update‐Drone Use Regulation 171 2016‐An Act Concerning the Use of Drones 173 2016‐An Act Concerning the Weaponization of Drones 182 Law Review Articles Addressing Drone Regulation

“What Can Municipalities do About Drones?” 185 “One Centimeter Over My Back Yard: Where does Federal Preemption of State Drone Regulation Start?" 189 “You Can’t Regulate This: State Regulation of the Private Use of Unmanned Aircraft” 258 This Q&A was previously published in CCM's April, 2016 Edition of the Connecticut Town & City Magazine. Q&A Drones

What is a drone? The Federal Aviation Administration (FAA) defines Unmanned Aircraft Systems (UAS), more commonly known as drones, as an aircraft, “flown by a pilot via a ground control system, or autonomously through use of an on-board computer, communication links and any additional equipment that is necessary for the unmanned aircraft to operate safely.” A UAS used for recreational purposes falls under the general classification of a model aircraft. In a publication titled, “Unmanned Aircraft Systems (UAS) Frequently Asked Question,” the FAA defines model aircrafts in the following way: governments do, however, have the authority to regulate the use of drones within their departments and A model aircraft is an unmanned aircraft that is capa- institutions such as the use of drones by their police ble of sustained flight in the atmosphere, flown within departments. visual line of sight of the person operating the aircraft, and flown only for hobby or recreational purposes… Model aircraft can include small Unmanned Aircraft Has Connecticut passed legislation Systems (UAS) aircraft, such as “quadcopters,” flown regulating drone use? for recreational or hobby purposes. Model aircraft are Legislation was proposed but not passed during the defined by the purpose of flight rather than the partic- 2014, 2015 and 2016 Connecticut General Assembly. ular configuration of the aircraft. Essential to the mod- The Program Review and Investigations Committee el aircraft operation is that the aircraft is operated for introduced “An Act Concern-ing the Weaponization of recreational or hobby purposes and the flight follows Drones Based on a Program Review and Investigations the requirements of Section 336 of Public Law 112-95. Committee Study,” and the Public Safety and Security Who regulates drone use? Committee have introduced “An Act Concerning the Use of Drones,” during the 2016 legistlative session. By law, the FAA has authority over ensuring the “safe and efficient use of U.S airspace,” and a statutory duty to “encourage the development of civil aeronautics.” As a result, the FAA is tasked with creating safety mandates without discouraging aeronautical innovation. Balancing these mandates has resulted in the FAA taking an “incremental” approach to UAS regulation with the goal of integrating drones and drone technology safely, efficiently, and timely. The first mandate to come out of the FAA’s incremental approach, effective December 21, 2015, requires that all drones over .55 pounds (250 grams) be registered with the FAA’s Un- manned Aircraft System registry prior to being flown outside. Registration cost is $5.00 and the documented owner must be at least 13 years of age to register. What can state and local governments do to regulate drones? The FAA has asserted that federal regulation preempts state or local statue or regulation. States and local

CCM Government Finance & Research Regulating Drone Use 1 Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap

First Edition – 2013

CCM Government Finance & Research Regulating Drone Use 2 November 7, 2013

Dear Members of the Aviation Community:

I am pleased to present the Federal Aviation Administration’s (FAA) Roadmap for Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS). The FAA and the UAS Aviation Rulemaking Committee (ARC) worked together for the past year to produce this roadmap. Unmanned aircraft offer new ways for commercial enterprises and public operators to increase operational efficiency, decrease costs, and enhance safety; and this roadmap will allow us to safely and efficiently integrate them into the NAS. The FAA is committed to the safe and efficient integration of UAS into the NAS. However, as safety is our top priority, UAS integration must be accomplished without reducing existing capacity, decreasing safety, impacting current operators, or placing other airspace users or persons and property on the ground at increased risk. We have made great progress in accommodating public UAS operations, but challenges remain for the safe, long-term integration of both public and civil UAS in the NAS. This roadmap outlines the actions and considerations needed to enable UAS integration into the NAS. The roadmap also aligns proposed FAA actions with Congressional mandates from the FAA Modernization and Reform Act of 2012. This plan also provides goals, metrics, and target dates for the FAA and its government and industry partners to use in planning key activities for UAS integration. We will update the specific implementation details (goals, metrics, target dates) as we learn from our current UAS operations, leverage ongoing research, and incorporate the work of our government and industry partners in all related areas.

Thank you for your continued support and active participation in the safe and efficient integration of UAS in the NAS.

Michael P. Huerta Administrator

CCM Government Finance & Research Regulating Drone Use 3 Table of Contents

Executive Summary...... 4 2.2.4 Managing the Challenges...... 20

1 Purpose and Background of Civil UAS Roadmap...... 6 3 Perspective 1: Accommodation...... 22

1.1 History of UAS...... 7 3.1 Overview...... 22

1.2 Proposed Civil and Commercial Applications...... 7 3.2 Standards...... 23

1.3 Definitions...... 8 3.3 Rules and Regulations ...... 24

1.4 Policy...... 9 3.4 Airworthiness Certification of the UAS...... 25

1.4.1 FAA UAS Policy Basis...... 9 3.5 Procedures and Airspace...... 27

1.4.2 International Civil Aviation Organization 3.6 Training (Pilot, Flightcrew Member, Mechanic, (ICAO) Policy...... 10 and Air Traffic Controller)...... 28

1.4.3 Industry Policy Recommendations...... 11 3.7 Research and Development (R&D) / Technology...... 28

1.4.4 Privacy and Civil Liberties Considerations...... 11 4 Perspective 2: Integration...... 32

4.1 Overview...... 32 1.4.5 National Security Issues...... 12 4.2 Standards...... 34 2 UAS Operations in the NAS...... 14 4.3 Rules and Regulations...... 34 2.1 FAA’s Dual Role for UAS Integration...... 14 4.4 Airworthiness Certification of the UAS...... 34 2.2 UAS Challenges...... 14 4.5 Procedures and Airspace...... 35 2.2.1 Policy, Guidance, and Regulatory 4.6 Training (Pilot, Flightcrew Member, Mechanic, Product Challenges...... 14 and Air Traffic Controller)...... 35 2.2.2 Air Traffic Operational Challenges...... 17 4.7 Research and Development (R&D) /Technology...... 36 2.2.3 Technological Challenges...... 18

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap ii

CCM Government Finance & Research Regulating Drone Use 4 Table of Contents

4.8 Test Ranges...... 37 C.3 Ground Based Sense and Avoid (GBSAA)...... 53

5 Perspective 3: Evolution...... 38 C.4 Airborne Sense and Avoid (ABSAA)...... 54

5.1 Overview...... 38 C.5 Control and Communications (C2)...... 56

5.2 Standards...... 38 C.6 Small UAS (sUAS) and Other Rules...... 58

5.3 Rules and Regulations...... 38 C.7 Test Ranges...... 60

5.4 Airworthiness Certification of the UAS...... 38 C.8 Air Traffic Interoperability...... 60

5.5 Procedures and Airspace...... 39 C.9 Miscellaneous...... 61

5.6 Training (Pilot, Flightcrew Member, Mechanic, Appendix D: FAA Modernization and Reform Act of 2012 and Air Traffic Controller)...... 39 Reference Text...... 66

5.7 Research and Development (R&D) / Technology...... 39

6 Conclusions...... 42

6.1 Summary...... 42

6.2 Outlook...... 42

Appendix A: Acronyms...... 44

Appendix B: Glossary...... 46

Appendix C: Goals, Metrics, and Target Dates...... 50

C.1 Certification Requirements (Airworthiness)...... 51

C.2 Certification Requirements (Pilot/Crew)...... 52

Table of Contents iii

CCM Government Finance & Research Regulating Drone Use 5 Executive Summary

Expanding Operations of Unmanned Aircraft Systems in the NAS Ultimately, UAS must be Since the early 1990s, unmanned aircraft systems (UAS) have operated integrated into the NAS on a limited basis in the National Airspace System (NAS). Until recently, UAS mainly supported public operations, such as military and border without reducing existing security operations. The list of potential uses is now rapidly expanding to encompass a broad range of other activities, including aerial photography, capacity, decreasing safety, surveying land and crops, communications and broadcast, monitoring negatively impacting forest fires and environmental conditions, and protecting critical infrastructures. UAS provide new ways for commercial enterprises (civil current operators, or operations) and public operators to enhance some of our nation’s aviation increasing the risk operations through increased operational efficiency and decreased costs, while maintaining the safety of the NAS. to airspace users or As stated in Destination 2025 (2011): persons and property “The Federal Aviation Administration’s (FAA) mission is to provide the on the ground any more safest, most efficient aviation system in the world. What sets the United States apart is the size and complexity of our infrastructure, than the integration of the diversity of our user groups, our commitment to safety and excellence, and a history of innovation and leadership in the world’s comparable new and novel aviation community. Now we are working to develop new systems and technologies. to enhance a culture that increases the safety, reliability, efficiency, capacity, and environmental performance of our aviation system.” The FAA created the Unmanned Aircraft Systems Integration Office to facilitate integration of UAS safely and efficiently into the NAS. Toward that goal, the FAA is collaborating with a broad spectrum of stakeholders, which includes manufacturers, commercial vendors, industry trade associations, technical standards organizations, academic institutions, research and development centers, governmental agencies, and other regulators. Ultimately, UAS must be integrated into the NAS without reducing existing capacity, decreasing safety, negatively impacting current operators, or increasing the risk to airspace users or persons and property on the ground any more than the integration of comparable new and novel technologies. Significant progress has been made toward UAS-NAS integration, with many challenges and opportunities ahead. Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 4

CCM Government Finance & Research Regulating Drone Use 6 Executive Summary

A key activity of the FAA is to develop regulations, policy, procedures, guidance material, and training requirements to support safe and efficient UAS operations in the NAS, while coordinating with relevant departments and agencies to address related key policy areas of concern such as privacy and national security. Today, UAS are typically given access to airspace through the issuance of Certificates of Waiver or Authorization (COA) to public operators and special airworthiness certificates in the experimental category for civil applicants. Accommodating UAS operations by the use of COAs and special airworthiness certificates will transition to more routine integration processes when new or revised operating rules and procedures are in place and UAS are capable of complying with them. The FAA has a proven certification process in place for aircraft that includes establishing special conditions when new and unique technologies are involved. This process will be used to evaluate items unique to UAS. In those parts of the NAS that have demanding communications, navigation, and surveillance performance requirements, successful demonstration of UAS to meet these requirements will be necessary. The process of developing regulations, policy, procedures, guidance material, and training requirements, is resource- intensive. This roadmap will illustrate the significant undertaking it is to build the basis for the NAS to transition from UAS accommodation to UAS integration. Government and industry stakeholders must work collaboratively and apply the necessary resources to bring this transition to fruition while supporting evolving UAS operations in the NAS. The purpose of this roadmap is to outline, within a broad timeline, the tasks and considerations needed to enable UAS integration into the NAS for the planning purposes of the broader UAS community. The roadmap also aligns proposed Agency actions with the Congressional mandate in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95. As this is the first publication of this annual document, the FAA will incorporate lessons learned and related findings in subsequent publications, which will include further refined goals, metrics, and target dates. The FAA is committed to the safe and efficient integration of UAS into the NAS, thus enabling this emerging technology to safely achieve its full potential.

Executive Summary 5

CCM Government Finance & Research Regulating Drone Use 7 Purpose and Background of Civil UAS Roadmap

1 Purpose and Background of Civil UAS Roadmap Unmanned aircraft systems (UAS) and operations have significantly increased in number, technical complexity, and sophistication during recent years without having the same history of compliance and oversight as manned aviation. Unlike the manned aircraft industry, the UAS community does not have a set of standardized design specifications for basic UAS design that ensures safe and reliable operation in typical civilian service applications. As a result, the UAS community often finds it difficult to apply existing FAA guidance. In some cases, interpretation of regulations and/or standards may be needed to address characteristics unique to UAS. Ultimately, the pace of integration will be determined by the ability of industry, the user community, and the FAA to overcome technical, regulatory, and operational challenges. The purpose of this roadmap is to outline, within a broad timeline, the tasks and considerations needed to enable UAS integration into the National Airspace System (NAS) for the planning purposes of the broader UAS community. The roadmap also aligns proposed Agency actions with the Congressional To gain full access to mandate in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95. This five-year roadmap, as required by the FAA Modernization and the NAS, UAS need Reform Act of 2012 (FMRA), is intended to guide aviation stakeholders in understanding operational goals and aviation safety and air traffic to be able to bridge challenges when considering future investments. The roadmap is organized into three perspectives that highlight the multiple paths the gap from existing used to achieve the milestones outlined, while focusing on progressive systems requiring accomplishments. These three perspectives — Accommodation, Integration, and Evolution — transcend specific timelines and examine the complex accommodations to relationship of activities necessary to integrate UAS into the NAS. These three perspectives will be explored in more detail in Section 2.2.4. future systems that Although the FMRA requires a five-year UAS roadmap, it is important to view UAS-NAS integration not only in terms of near-term activities and are able to obtain a objectives, but also in the context of mid- and long-term timeframes. The standard airworthiness timeframes used in this roadmap are defined in the President’s National Aeronautics Research and Development Plan, which specifies less than certificate 5 years as the near-term, 5-10 years as the mid-term, and greater than 10 years as the long-term. For this roadmap, the long-term is defined as

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 6

CCM Government Finance & Research Regulating Drone Use 8 1

2022-2026, which is consistent with the Joint Planning and Development Office (JPDO) National Airspace System Concept of Operations and Vision for the Future of Aviation and NextGen Air Transportation System Integrated Plan. Integration of UAS into the NAS will require: review of current policies, regulations, environmental impact, privacy considerations, standards, and procedures; identification of gaps in current UAS technologies and regulations, standards, policies, or procedures; development of new technologies and new or revised regulations, standards, policies, and procedures; and the associated development of guidance material, training, and certification of aircraft systems, propulsion systems, and airmen. The FAA will coordinate these integration activities with other United States Government agencies, as needed, through the Interagency Planning Committee (IPC).

1.1 History of UAS Historically, unmanned aircraft have been known by many names including: “drones,” “remotely piloted vehicles (RPV),” “unmanned aerial vehicles (UAV),” “models,” and “radio control (R/C) aircraft.” Today, the term UAS is used to emphasize the fact that separate system components are required to support airborne operations without a pilot onboard the aircraft. Early UAS operations received little attention from the FAA and its predecessor agencies due to the infrequency of operations, which were mostly conducted in remote locations or in special use airspace and were not deemed to impact the safety of the NAS. In the past two decades, the number of unmanned aircraft operations has been increasing dramatically, highlighting the need for a structured approach for safe and efficient integration.

1.2 Proposed Civil and Commercial Applications The use of UAS in commercial applications is expected to expand in a number of areas (see Operational Services and Environment Definition (OSED) for Unmanned Aircraft Systems (UAS), RTCA DO-320, 2010). Some of the currently proposed civil and commercial applications of UAS include:

• Security awareness;

• Disaster response, including search and support to rescuers;

• Communications and broadcast, including news/sporting event coverage;

• Cargo transport;

• Spectral and thermal analysis;

• Critical infrastructure monitoring, including power facilities, ports, and pipelines;

• And commercial photography, aerial mapping and charting, and advertising.

Purpose and Background of Civil UAS Roadmap 7

CCM Government Finance & Research Regulating Drone Use 9 1.3 Definitions Several terms used in this document are defined below as a common point of reference: Unmanned Aircraft (UA): A device used or intended to be used for flight in the air that has no onboard pilot. This device excludes missiles, weapons, or exploding warheads, but includes all classes of airplanes, helicopters, airships, and powered-lift aircraft without an onboard pilot. UA do not include traditional balloons (see 14 CFR Part 101), rockets, tethered aircraft and un-powered gliders. Crewmember [UAS]: In addition to the crewmembers identified in 14 CFR Part 1, a UAS flightcrew member includes pilots, sensor/payload operators, and visual observers (VO), but may include other persons as appropriate or required to ensure safe operation of the aircraft. Unmanned Aircraft System (UAS): An unmanned aircraft and its associated elements related to safe operations, which may include control stations (ground, ship, or air-based), control links, support equipment, payloads, flight termination systems, and launch/recovery equipment. As shown in Figure 1, it consists of three elements:

• Unmanned Aircraft;

• Control Station;

• And Data Link. National Airspace System (NAS): The common network of U.S. airspace — air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information and services; rules, regulations, and procedures; technical information; and manpower and material. (see Figure 2) Next Generation Air Transportation System (NextGen): According to the FAA’s Destination 2025, (2011): “NextGen is a series of inter-linked programs, systems, and policies that implement advanced technologies and capabilities to dramatically change the way the current aviation system is operated. NextGen is satellite-based and relies on a network to share information and digital communications so all users of the system are aware of other users’ precise locations.”

Unmanned Aircraft System (UAS)

Unmanned Aircraft

Pilot & Crew

Data Link

Control Station

Figure 1: The UAS and Flightcrew Members

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 8

CCM Government Finance & Research Regulating Drone Use 10 1.4 Policy The FAA is responsible for developing plans and policy for the safe and efficient use of the United States’ navigable airspace. This responsibility includes coordinating efforts with national security and privacy policies so that the integration of UAS into the NAS is done in a manner that supports and maintains the United States Government’s ability to secure the airspace and addresses privacy concerns. Further, the FAA will harmonize, when appropriate, with the international community for the mutual development of civil aviation in a safe and orderly manner. Components of existing FAA and International Civil Aviation Organization (ICAO) policy are outlined below.

National Airspace System

Figure 2: The NAS 1.4.1 FAA UAS Policy Basis Established FAA aviation policies support an acceptable level of safety for the NAS. At the core of these policies is the concept that each aircraft is flown by a pilot in accordance with required procedures and practices. This same policy applies to UAS. Aviation policies and regulations focus on overall safety being addressed through three primary areas: equipment, personnel, and operations and procedures. Each of these areas has standards and minimum levels of safety that must be met, independent of each other. As a matter of regulation, for example, a new civil aircraft must be able to independently obtain an airworthiness certificate, regardless of the airspace class where it might be flown. However, as a result or part of this certification, new procedures may be required for flightcrew members and air traffic control (ATC) in order to maintain the minimum level of safety of the NAS while accommodating the new technology. Under special certifications and authorizations, limited operations may be authorized for equipment unable to meet current standards. The application of these established aviation policies to UAS is summarized in the following key points excerpted from the FAA Notice of Policy: Unmanned Aircraft Operations in the National Airspace System (72 Fed. Reg. 6689 (Feb. 13, 2007)):

• Regulatory standards need to be developed to enable current technology for unmanned aircraft to comply with Title 14 Code of Federal Regulations;

Purpose and Background of Civil UAS Roadmap 9

CCM Government Finance & Research Regulating Drone Use 11 • In order to ensure safety, the operator is required to establish the UAS airworthiness either from FAA certification, a Department of Defense (DoD) airworthiness statement, or by other approved means;

• Applicants also have to demonstrate that a collision with another aircraft or other airspace user is extremely improbable;

• And the pilot-in-command concept is essential to the safe operation of manned operations. The FAA’s UAS guidance applies this pilot-in-command concept to unmanned aircraft and includes minimum qualification and currency requirements. These policies have enabled the accommodation of UAS into the NAS on a limited basis on the foundation that operations are conducted safely, present an acceptable level of risk to the general public, and do no harm to, or adversely impact, other users. To gain full access to the NAS, UAS need to be able to bridge the gap from existing systems requiring accommodations to future systems that are able to obtain a standard airworthiness certificate. These UAS will also need to be flown by a certified pilot in accordance with existing, revised, or new regulations and required standards, policies, and procedures.

1.4.2 International Civil Aviation Organization (ICAO) Policy ICAO, a special agency of the United Nations, promotes “the safe and orderly development of international civil aviation throughout the world. It sets standards and regulations necessary for aviation safety, security, efficiency, and regularity, as well as aviation environmental protection.” The goal of ICAO in addressing unmanned aviation is to provide the fundamental international regulatory framework to support routine operation of UAS throughout the world in a safe, harmonized, and seamless manner comparable to that of manned operations. Current ICAO guidance material for UAS is published in ICAO Circular 328, “Unmanned Aircraft Systems (UAS) Circular,” which provides basic guidelines for Member States to introduce and integrate UAS into airspace in a consistent manner, to ensure global interoperability and regulatory compatibility, when possible. The document’s guiding policy on UAS is: “A number of Civil Aviation Authorities (CAA) have adopted the policy that UAS must meet the equivalent levels of safety as manned aircraft… In general, UAS should be operated in accordance with the rule governing the flight of manned aircraft and meet equipment requirements applicable to the class of airspace within which they intend to operate…To safely integrate UAS in non-segregated airspace, the UAS must act and respond as manned aircraft do. Air Traffic, Airspace and Airport standards should not be significantly changed. The UAS must be able to comply with existing provisions to the greatest extent possible.” ICAO develops Standards and Recommended Practices (SARP), which are generally followed by national civil aviation authorities of the Member States. The United States is an ICAO Member State, and the FAA plans to harmonize with international efforts and adhere to ICAO SARPs when possible.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 10

CCM Government Finance & Research Regulating Drone Use 12 1.4.3 Industry Policy Recommendations RTCA, Inc. is a private, not-for-profit corporation that develops consensus-based recommendations regarding communications, navigation, surveillance, and air traffic management system issues. RTCA functions as a Federal Advisory Committee, and the FAA considers RTCA recommendations when making policy, program, and regulatory decisions. RTCA Special Committee 203 (SC-203) was established in 2004 to help assure the safe, efficient, and compatible operation of UAS with other aircraft operating within the NAS. This Special Committee has developed and documented guiding principles for UAS integration, which are summarized below:

• UAS must operate safely, efficiently, and compatibly with service providers and other users of the NAS so that overall safety is not degraded;

• UAS will have access to the NAS, provided they have appropriate equipage and the ability to meet the requirements for flying in various classes of airspace;

• Routine UAS operations will not require the creation of new special use airspace, or modification of existing special use airspace;

• Except for some special cases, such as small UAS (sUAS) with very limited operational range, all UAS will require design and airworthiness certification to fly civil operations in the NAS;

• UAS pilots will require certification, though some of the requirements may differ from manned aviation;

• UAS will comply with ATC instructions, clearances, and procedures when receiving air traffic services;

• UAS pilots (the pilot-in-command) will always have responsibility for the unmanned aircraft while it is operating;

• And UAS commercial operations will need to apply the operational control concept as appropriate for the type of operation, but with different functions applicable to UAS operations. Through an FAA-established UAS Aviation Rulemaking Committee (ARC), the FAA continues to collaborate with government and industry stakeholders for recommendations regarding the path toward integration of UAS into the NAS. This effort will harmonize with the work being done by international organizations working toward a universal goal of safe and efficient UAS airspace operations.

1.4.4 Privacy and Civil Liberties Considerations The FAA’s chief mission is to ensure the safety and efficiency of the entire aviation system. This includes manned and unmanned aircraft operations. While the expanded use of UAS presents great opportunities, it also raises questions as to how to accomplish UAS integration in a manner that is consistent with privacy and civil liberties considerations. As required by the FMRA, the FAA is implementing a UAS test site program to help the FAA gain a better understanding of operational issues relating to UAS. Although the FAA’s mission does not include developing or enforcing policies pertaining to privacy or civil liberties, experience with the UAS test sites will present an opportunity to inform the dialogue in the IPC and other interagency forums concerning the use of UAS technologies and the areas of privacy and civil liberties. As part of the test site program, the FAA will authorize non-federal public entities to establish and operate six test sites in the United States. The FAA recognizes that there are privacy considerations regarding the use of UAS at the test sites. To ensure that these concerns are taken into consideration at the test sites, the FAA plans to require each test site operator to establish a privacy policy that will apply to operations at the test site. The test site’s privacy

Purpose and Background of Civil UAS Roadmap 11

CCM Government Finance & Research Regulating Drone Use 13 policy must be publicly available and informed by Fair Information Practice Principles. In addition, each site operator must establish a mechanism through which the operator can receive and consider comments on its privacy policy. The privacy requirements proposed for the UAS test sites are specifically designed for the operation of the test sites and are not intended to predetermine the long-term policy and regulatory framework under which UAS would operate. However, the FAA anticipates that the privacy policies developed by the test site operators will help inform the dialogue among policymakers, privacy advocates, and the industry regarding broader questions concerning the use of UAS technologies in the NAS.

1.4.5 National Security Issues Integrating public and civil UAS into the NAS carries certain national security implications, including security vetting for certification and training of UAS-related personnel, addressing cyber and communications vulnerabilities, and maintaining/enhancing air defense and air domain awareness capabilities in an increasingly complex and crowded airspace. In some cases, existing security frameworks applied to manned aircraft may be applicable. Other security concerns may require development of new frameworks altogether. The FAA will continue to work with relevant United States Government departments and agencies, and with stakeholders through coordinating bodies such as the IPC and JPDO, to proactively address these areas of concern.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 12

CCM Government Finance & Research Regulating Drone Use 14 Purpose and Background of Civil UAS Roadmap 13

CCM Government Finance & Research Regulating Drone Use 15 UAS Operations in the NAS

This roadmap focuses on civil UAS access to the NAS. To this end, the FAA and the UAS community are working to address the myriad challenges associated with this effort.

2.1 FAA’s Dual Role for UAS Integration For UAS, as with all aircraft, the FAA acts in a dual role. As the regulator, the FAA ensures aviation safety of persons and property in the air and on the ground. As the service provider, the FAA is responsible for providing safe and efficient air traffic control services in the NAS and the other portions of global airspace delegated to the United States by ICAO. As part of its regulator role, the Office of Aviation Safety (AVS) efforts are led by the UAS Integration Office. The main focus of the UAS Integration Office is to provide, within the existing AVS structure, subject matter expertise, research, and recommendations to develop policy, regulations, guidance, and procedures for UAS airworthiness and operations in support of safe integration of UAS into the NAS. As the service provider, the Air Traffic Organization (ATO) efforts are led by the Air Traffic Emerging Technologies Group, which considers operational authorizations for UAS flights that are unable to meet current regulations and procedures. A Certificate of Waiver or Authorization (COA) is issued with limitations and provisions that mitigate the increased risks resulting from the use of uncertified technology. The ATO is responsible for the safe and efficient handling of aircraft and the development of the airspace rules, procedures, and air traffic controller training to support routine operations in the NAS.

2.2 UAS Challenges A number of issues that impact the integration of UAS into the NAS are being considered across the regulatory and service provider roles of the FAA. To ensure the FAA meets the goals set forth in this roadmap, these offices will be addressing the challenges as outlined in the following subsections.

2.2.1 Policy, Guidance, and Regulatory Product Challenges To ensure the FAA has the appropriate UAS framework, many policy, guidance, and regulatory products will need to be reviewed and revised to specifically address UAS integration into the NAS. UAS technology and operations will need to mature, and new products may be required in order to meet applicable regulations and standards. Figure 3 depicts policy, guidance, and regulatory product areas requiring research and development. This information is derived from the RTCA notional architecture and is primarily related to airmen and UAS certification.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 14

CCM Government Finance & Research Regulating Drone Use 16 2

Performance Baseline UAS Integration

Pilot & Crew Control Station Data Link Unmanned Aircraft

• Policy • Policy • Policy • Policy

• Certification • Certification • Certification • Certification Requirements Requirements Requirements Requirements • Operational Standards • Technical Standards • Technical Standards • Technical Standards • Procedures • Airworthiness • Airworthiness • Airworthiness • Regulations Standards Standards Standards • Guidance Material • Regulations • Interoperability • Procedures • Training Requirements • Interoperability Requirements Requirements • • Medical Standards Regulations • Guidance Material • Guidance Material • Testing Standards • Guidance Material • Continued • Coordinated Aviation • Measures of Airworthiness Radiofrequency Performance • Means of Compliance Spectrum • Continued • Standardized Control Airworthiness Architectures • Testing Standards • Measures of • Means of Compliance Performance

• Radio/DataLink Security Requirements

Figure 3: AVS Products to Regulate UAS Operations

UAS Operations in the NAS 15

CCM Government Finance & Research Regulating Drone Use 17 The challenge is to identify and develop the UAS regulatory structure that encompasses areas listed in Figure 3. Other regulatory drivers include:

• Developing minimum standards for Sense and Avoid (SAA), Control and Communications (C2), and separation assurance to meet new or existing operational and regulatory requirements for specified airspace;

• Understanding the privacy, security, and environmental implications of UAS operations and working with relevant departments and agencies to proactively coordinate and align these considerations with the UAS regulatory structure;

• And developing acceptable UAS design standards that consider the aircraft size, performance, mode of control, intended operational environment, and mission criticality. Although aviation regulations have been developed generically for all aircraft, until recently these efforts were not done with UAS specifically in mind. This presents certain challenges because the underlying assumptions that existed during the previous efforts may not now fully accommodate UAS operations. As an example, current regulations address security requirements for cockpit doors. However, these same regulations lack a legal definition for what a “cockpit” is or where it is located. This presents a challenge for UAS considering that the cockpit or “control station” may be located in an office building, in a vehicle, or outside with no physical boundaries. Applying current cockpit door security regulations to UAS may require new rulemaking, guidance, or a combination of both. The regulatory process is designed to provide transparency to the public and an opportunity to understand and comment on proposed rules before being issued. Additional checks and balances are in place to ensure that final regulations are not unnecessarily burdensome to the public. Because of these requirements, and lacking any exceptions, an average regulatory effort might span a number of years. These timeframes may be longer for high visibility or complex regulations. FAA experience to date with the development of a Notice of Proposed Rulemaking (NPRM) for small UAS indicates that UAS rulemaking efforts may be more complex, receive greater scrutiny, and require longer development timeframes than the average regulatory effort.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 16

CCM Government Finance & Research Regulating Drone Use 18 2.2.2 Air Traffic Operational Challenges Numerous Air Traffic products, policies, and procedures also need to be reviewed and refined or developed through supporting research to permit UAS operations in the NAS. The UAS Integration Office coordinates efforts with the ATO to complete these tasks. Interoperability Air Traffic Operations

Contoller Operations Safety

• Policy • Policy • Scope

• Handbooks • ATC Management • Data Collection and

• Training • Flight Planning Analysis

• En Route, Terminal, • Separation and Flow • Safety Case Oceanic Management • Safety Requirements

• Normal Procedures • Post Implementation (e.g., Sense and Avoid, Assessment

visual approaches) • En Route, Terminal, • Contingency Procedures Oceanic (e.g., Lost Link, Fly Away)

• En Route, Terminal, Oceanic Procedures

• UAS-Airport Surface Integration

Figure 4: ATO UAS Operational Area The goal of safely integrating UAS without segregating, delaying, or diverting other aircraft and other users of the system presents significant challenges in the areas outlined in Figure 4 above. For NAS integration, this also includes:

• Identifying policies and requirements for UAS to comply with ATC clearances and instructions commensurate with manned aircraft (specifically addressing the inability of UAS to comply directly with ATC visual clearances or to operate under visual flight rules);

• Establishing procedures and techniques for safe and secure exchange of voice and data communication between UAS pilots, air traffic controllers, and other NAS users;

• Establishing wake vortex and turbulence avoidance criteria needed for UAS with unique characteristics (e.g., size, performance, etc.);

• And reviewing environmental requirements (e.g., the National Environmental Policy Act).

UAS Operations in the NAS 17

CCM Government Finance & Research Regulating Drone Use 19 2.2.3 Technological Challenges The FAA recognizes that current UAS technologies were not developed to comply with existing airworthiness standards. Current civil airworthiness regulations may not consider many of the unique aspects of UAS operations. Materials properties, structural design standards, system reliability standards, and other minimum performance requirements for basic UAS design need to be evaluated against civil airworthiness standards for existing aircraft. Although significant technological advances have been made by the UAS community, critical research is needed to fully understand the impact of UAS operations in the NAS. There has also been little research to support the equipment design necessary for UAS airworthiness certification. In the near- to mid-term, UAS research will need to focus on technology deemed necessary for UAS access to the NAS. As UAS are introduced, their expected range of performance will need to be evaluated for impact on the NAS. UAS operate with widely varying performance characteristics that do not necessarily align with manned aircraft performance. They vary in size, speed, and other flight capabilities. Similarly, the issue of performance gap between the pilot and the avionics will impact NAS operations. For example, a quantitative time standard for a pilot response to ATC directions (such as “turn left heading 270, maintain FL250”) does not exist – there is an acceptable delay for the pilot’s verbal response and physical action, but there is no documented required range of acceptable values. Avionics that perform the corresponding function cannot be designed and built without these performance requirements being established. Existing standards ensure safe operation by pilots actually on board the aircraft. These standards may not translate well to UAS designs where pilots are remotely located off the aircraft. Removing the pilot from the Removing the pilot from aircraft creates a series of performance considerations between manned and unmanned aircraft that need to be fully researched and understood the aircraft creates a to determine acceptability and potential impact on safe operations in the NAS. These include the following considerations: series of performance • The UAS pilot is not onboard the aircraft and does not have the same considerations between sensory and environmental cues as a manned aircraft pilot; • The UAS pilot does not have the ability to directly comply with see- manned and unmanned and-avoid responsibilities and UAS SAA systems do not meet current operational rules; aircraft that need to • The UAS pilot must depend on a data link for control of the aircraft. be fully researched and This affects the aircraft’s response to revised ATC clearances, other ATC instructions, or unplanned contingencies (e.g., maneuvering aircraft); understood to determine • UAS cannot comply with certain air traffic control clearances, and alternate means may need to be considered (e.g., use of visual acceptability and clearances); potential impact on safe • UAS present air traffic controllers with a different range of platform sizes and operational capabilities (such as size, speed, altitude, wake operations in the NAS. turbulence criteria, and combinations thereof);

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 18

CCM Government Finance & Research Regulating Drone Use 20 • And some UAS launch and recovery methods differ from manned aircraft and require manual placement and removal from runways, a lead vehicle Unmanned flight will for taxi operations, or dedicated launch and recovery systems. Therefore, it is necessary to develop new or revised regulations/ require new or revised procedures and operational concepts, formulate standards, and promote technological development that will enable manned and unmanned operational rules to aircraft to operate cohesively in the same airspace. Specific technology regulate the use of challenges include two critical functional areas: • “Sense and Avoid” (SAA) capability must provide for self-separation SAA systems as an and ultimately for collision avoidance protection between UAS and other aircraft analogous to the “see and avoid” operation of manned alternate method to aircraft that meets an acceptable level of safety. SAA technology development is immature. In manned flight, see and avoid, radar, visual comply with “see and sighting, separation standards, proven technologies and procedures, avoid” operational rules and well-defined pilot behaviors combine to ensure safe operation. Unmanned flight will require new or revised operational rules to currently required of regulate the use of SAA systems as an alternate method to comply with “see and avoid” operational rules currently required of manned aircraft. manned aircraft. SAA system standards must be developed to assure both self-separation and collision avoidance capability for UAS. Interoperability constraints must also be defined for safe and secure interactions between SAA-enabled UAS and other airborne and ground-based collision avoidance systems. While SAA may be an independent system, it must be designed to be compatible across other modes (e.g., ATC separation services). See Appendix C.3 and C.4 for specific goals and metrics.

• Control and Communications (C2) system performance requirements are needed and RTCA is developing consensus-based recommendations for the FAA to consider in C2 policy, program, and regulatory decisions. The resulting C2 requirements need to support the minimum performance required to achieve higher-level (UAS level) performance and safety requirements. Third-party communication service providers are common today (e.g., ARINC, Harris, etc.) and the FAA has experience with setting and monitoring performance of third parties. The use of third parties is dependent on the UAS architecture chosen, but these are still being evaluated in terms of feasibility from a performance, cost, and safety perspective. See Appendix C.5 for specific goals and metrics.

UAS Operations in the NAS 19

CCM Government Finance & Research Regulating Drone Use 21 2.2.4 Managing the Challenges To provide the UAS community insight into the FAA process for fostering UAS flight in the NAS, Figure 5 highlights the intended shift in focus over time from Accommodation to Integration, and then to Evolution. This method is consistent with the approach used for new technologies on manned aircraft introduced into the NAS. Current design standards reflect the focus in the COA process on allowing existing designs, embodying some experimental design philosophies, to fly in the NAS. Progress toward standard airworthiness will also increase as design standards mature, but not before.

Percentage of Approvals

100 — COA/Experiments — Standard Airworthiness

0 Accommodate Integrate Evolve

Figure 5: Transition from COA/Experimental to Standard Airworthiness Approvals

Recognizing the challenges and the complex coordination required for integration, the UAS roadmap addresses the efforts needed to move forward incrementally toward the goal of full NAS integration. Timely progress on products, decisions, research, development, testing, and evaluation will be needed to successfully move from accommodation to integration in the evolving NAS. The approach to managing the challenges discussed in this section focuses on the following interdependent topics:

• Standards;

• Rules and Regulations;

• Certification of the UAS;

• Procedures and Airspace;

• Training (Pilot, Flightcrew Member, Mechanic, and Controller);

• And Research and Development (R&D) and Technology.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 20

CCM Government Finance & Research Regulating Drone Use 22 The roadmap discusses the activities and transitions for the above interdependent topic areas from the vantage point of Accommodation, Integration, and Evolution, as summarized below and described in more detail in subsequent sections of this roadmap. These perspectives transcend the near-, mid-, and far-term timeframes and provide additional insight into the task of integrating UAS into the NAS. Perspective 1: Accommodation. Take current UAS and apply special mitigations and procedures to safely facilitate limited access to the NAS. UAS operations in the NAS are considered on a case-by-case basis. Accommodation will predominate in the near-term, and while it will decline significantly as integration begins and expands in the mid- term, it will continue to be a viable means for NAS access with appropriate restrictions and constraints to mitigate any performance shortfalls. During the near-term, R&D will continue to identify challenges, validate advanced mitigation strategies, and explore opportunities to progress UAS integration into the NAS. Perspective 2: Integration. Establishing threshold performance requirements for UAS that would increase access to the NAS is a primary objective of integration. During the mid- to far-term, the Agency will establish new or revised regulations, policies, procedures, guidance material, training, and understanding of systems and operations to support routine NAS operations. Integration is targeted to begin in the near- to mid-term with the implementation of the sUAS rule and will expand further over time (mid- and far-term) to consider wider integration of a broader field of UAS. Perspective 3: Evolution. All required policy, regulations, procedures, guidance material, technologies, and training are in place and routinely updated to support UAS operations in the NAS operational environment as it evolves over time. It is important that the UAS community maintains the understanding that the NAS environment is not static, and that there are many improvements planned for the NAS over the next 13-15 years. To avoid obsolescence, UAS developers will need to maintain a dual focus: integration into today’s NAS while maintaining cognizance of how the NAS is evolving.

UAS Operations in the NAS 21

CCM Government Finance & Research Regulating Drone Use 23 Perspective 1: Accommodation

3.1 Overview The FAA’s near-term focus will be on safely allowing for the expanded operation of UAS through accommodation. Enhanced procedures and technology, over time, will increase access to the NAS through accommodation made possible by improvements to current mitigations and the introduction of advanced mitigations. The need to maintain this avenue for NAS access will continue. Research and development on current and advanced mitigations is necessary to maintain this avenue for access with appropriate restrictions and constraints to mitigate performance shortfalls and address privacy, security, and environmental concerns. The consideration and planning for integration of UAS into the NAS will continue simultaneously. There has been a growing interest in a wide variety of civil uses for unmanned aircraft. A number of paths can be used to apply for airworthiness certification of UAS. One method that the UAS civil community is currently using to access the NAS is with a special airworthiness certificate in the experimental category, which requires specific, proven capabilities to enable operations at a constrained level. Each application is reviewed for approval on a case-by-case basis that allows a carefully defined level of access that is limited and dependent on risk mitigations that ensure safety and efficiency of the NAS is not diminished. The use of special airworthiness certificates for UAS is similar to their use for manned aircraft and they are normally issued to UAS applicants for the purposes of research and development, crew training or market surveys per 14 CFR 21.191(a), (c), and (f). Through August 2012, the FAA had issued 114 special airworthiness certificates (i.e., 113 experimental certificates and one special flight permit) to 22 different models of civil aircraft. Of these 22 different models, 16 are unmanned aircraft and 6 are Optionally Piloted Aircraft (OPA). These experimental certificates have been useful for UAS research and development (R&D), and as R&D efforts subside, the use of experimental certificates may decrease. While the FAA continues to accommodate special access to the NAS, existing airworthiness standards are also an avenue for full-type certification. The FAA is working with the UAS ARC to gain feedback to potential changes to airworthiness standards for UAS, as necessary. In the long-term, UAS that are designed to a standard and built to conform to the design may be integrated into the NAS as fully certificated aircraft.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 22

CCM Government Finance & Research Regulating Drone Use 24 3

3.2 Standards If UAS are to operate routinely in the NAS, they must conform to an agreed-upon set of standards. Requirements will vary depending on the nature and complexity of the operation, aircraft or component system limitations, pilot and other crewmember qualifications, and the operating environment. A technical (or operational) standard is an established norm or requirement about a technical (or operational) system that documents uniform engineering or technical criteria, methods, processes, and practices. A standard may be developed privately or unilaterally, by a corporation, regulatory body, or the military. Standards can also be developed by organizations such as trade unions and associations. These organizations often have more diverse input and usually develop voluntary standards that may be adopted by the FAA as a means of regulatory compliance. To operate an aircraft safely and efficiently in today’s NAS, a means of complying with applicable parts of Title 14 of the Code of Federal Regulations must be developed. Aircraft certification standards govern the design, construction, manufacturing, and continued airworthiness of aircraft used in private and commercial operations. These standards were developed with an underlying assumption that a person would be onboard the aircraft and manipulating the controls. This has led to numerous requirements that make aircraft highly reliable and safe for their intended operations and flightcrew protection. While UAS share many of the same design considerations as manned aircraft, such as structural integrity and performance, most unmanned aircraft and control stations have not been designed to comply with existing civil airworthiness or operational standards. Beyond the problem of meeting existing aircraft certification standards, other components of the UAS, such as the equipment and software associated with the data link (control and communications) and the launch and recovery mechanisms, are not currently addressed in civil airworthiness or operational standards. Since 2004, the FAA has developed close working relationships with several standards development organizations. Most of these organizations plan to complete their UAS standards development efforts in the near- to mid-term timeframe. When accepted, these standards development products may provide a means of compliance for rules established in the mid-term. The FAA has also been either the lead or an important participant in cross-agency efforts that influence standards development and has coordinated and harmonized these activities with international efforts such as the ICAO UAS Study Group.

Perspective 1: Accommodation 23

CCM Government Finance & Research Regulating Drone Use 25 Standardization efforts have already produced a number of useful definitions, guidance documents, and considerations that provide common understanding and add insight and data to UAS integration efforts:

• RTCA/SC-203’s Guidance Material (DO-304) and numerous position papers

• RTCA/SC-203’s Operational Services and Environment Definition For Unmanned Aircraft Systems (OSED, DO-320), which documents definitions and operating scenarios for different UAS operations in the NAS

• RTCA Air Traffic Management Advisory Committee, Requirements and Planning Work Group Report “Airspace Considerations for UAS Integration in the National Airspace System,” March 26, 2008

• SAA Workshop Reports that have documented SAA timelines and definitions Standards development will continue with the goal of producing Minimum Aviation System Performance Standards (MASPS) by the end of the near-term. RTCA products will be taken under consideration by the FAA in the development of policy and guidance products such as Advisory Circulars. Minimum Operational Performance Standards (MOPS) may be used to define Technical Standard Orders (TSO) in the mid- to long-term timeframe. Additional coordination and input from the stakeholder community (industry and trade associations, manufacturers, academia, research organizations, and public agencies) is being provided with the recent establishment of the UAS ARC. Although the need to develop standards cannot be overstated, detailed policy, guidance, technical performance requirements, and operational procedures are also needed to enable manned and unmanned aircraft to fly safely and efficiently in the NAS. See Appendix C for specific goals and metrics.

3.3 Rules and Regulations Unmanned aircraft operations have significantly increased in number, technical complexity, and sophistication during recent years without specific regulations to address their unique characteristics. For a person wishing to design, manufacture, market, or operate a UAS for a commercial mission and seeking FAA approval The emphasis will be for that aircraft, its pilot and the operations, existing rules have not been fully tailored to the unique features of UAS. on the need for new The FAA has published a Notice which replaced the previous interim or revised rules for operational guidance material used to support UAS accommodation. Since accommodation is not envisioned to be eliminated entirely, this Notice will UAS to operate under need to be updated periodically, even as progress continues simultaneously on development of UAS rules and regulations for integration. instrument flight rules The FAA is also developing an NPRM to allow sUAS to conduct operations. (IFR), including rules This rulemaking effort includes an associated industry effort to develop consensus standards needed for rule implementation. Assuming the sUAS to allow UAS operations NPRM effort proceeds to a final rule, associated guidance will also be completed to allow the FAA to approve operations and civil and public UAS analogous to manned operators to apply for and safely implement these sUAS operations. All sUAS rule development and implementation will be in accordance with the FMRA. aircraft using visual During this period, the appropriate regulations are also being reviewed capabilities. for applicability to UAS operations by the FAA, industry groups, and the

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 24

CCM Government Finance & Research Regulating Drone Use 26 UAS ARC. The results of this review will determine any regulatory gaps that need to be addressed in the development of specific UAS guidance and rulemaking. The emphasis will be on the need for new or revised rules for UAS to operate under instrument flight rules (IFR), including rules to allow UAS operations analogous to manned aircraft using visual capabilities. Based on the findings of this review, a determination will be made regarding the need to modify, supplement, or create specific new regulations to support UAS beyond the near-term. UAS rulemaking will follow these steps.

3.4 Airworthiness Certification of the UAS Airworthiness certification is a process that the FAA uses to ensure that an aircraft design complies with the appropriate safety standards in the applicable airworthiness regulations. FAA type design approval indicates the FAA has evaluated the safety of the unmanned aircraft design and all its systems, which is more rigorous than simply making a determination that the UAS is airworthy. Airworthiness standards for existing aircraft are codified in Title 14 of the Code of Federal Regulations, with processes described for FAA type certification in FAA Order 8110.4 and airworthiness certification in FAA Order 8130.2. The FAA has the authority and regulations in place to tailor the design standards to specific UAS applications, and plans to use this authority until further experience is obtained in addressing the design issues that are unique to UAS. Civil UAS are currently accommodated with experimental certificates under FAA Order 8130.34. The FAA and the UAS industry will need to work together to move away from the existing experimental or expendable design philosophy, toward a design philosophy more consistent with reliable and safe civilian operation over populated areas and in areas of manned aircraft operation. Existing airworthiness standards have been developed from years of operational safety experience with manned aircraft and may be too restrictive for UAS in some areas and inadequate in others. For example, existing structural requirements that ensure safe operation in foreseeable weather conditions that are likely to be encountered represent an example of well-established design requirements that existing UAS designs will most likely need to consider. Structural failures have nearly been eliminated from manned aircraft operations and must be mitigated to a similar level of likelihood in UAS operations. Detailed consideration of UAS in the certification process will be limited in number until such time as a broad and significant consideration is given to existing standards, regulations, and policy. This will be facilitated by UAS manufacturers making application for type design approval to the FAA. For type design approval, UAS designers must show they meet acceptable safety levels for the basic UAS design, and operators must employ certified systems that enable compliance with standardized air traffic operations and contingency/emergency procedures for UAS. The FAA believes that the UAS community will be best served by the use of an incremental approach to gaining type- design and airworthiness approval. This incremental approach (see Figure 6) could involve the following steps:

• First, allowing existing UAS designs to operate with strict airworthiness and operational limitations to gain operational experience and determine their reliability in very controlled circumstances, as under the existing COA concept or through regulations specific to sUAS;

• Next, developing design standards tailored to a specific UAS application and proposed operating environment. This step would enable the development of useful unmanned aircraft and system design and operational standards for the UAS to facilitate safe operation, without addressing all potential UAS designs and applications. This would lead to type certificates (TC) and production certificates with appropriate limitations documented in the aircraft flight manual;

Perspective 1: Accommodation 25

CCM Government Finance & Research Regulating Drone Use 27 • And lastly, defining standards for repeatable and predictable FAA type certification of a UAS designed with the redundancy, reliability, and safety necessary to allow repeated safe access to the NAS, including seamless integration with existing air traffic. Because the UAS community is well established under its current operational assumptions, it is unlikely the FAA or UAS industry will establish an entire set of design standards from scratch. As additional UAS airworthiness options are considered and UAS airworthiness design and operational standards are developed, type certification may be more efficiently and effectively achieved. The UAS industry will continue to build capabilities into the mid- and long-term timeframes. See Appendix C.1 for specific goals and metrics.

Conceptual Timeline

• Increasing Levels of Certification Oversight

• Increasing System/Aircraft Full TC & Operational Access Complexity

• Increasing Resource/Policy/ Process Needs

• Increasing NAS Access

Tailored TC with Limitations and • Increasing Operational Limited Operational Accesss Flexibilty

• Reduced Operating Limitation/Restriction FAA Policy & Design Standard Maturity

No FAA Design Approval & Experimental COA

Near-Term Mid-Term Long-Term

Figure 6: Potential Airworthiness Path for UAS Industry

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 26

CCM Government Finance & Research Regulating Drone Use 28 3.5 Procedures and Airspace A procedure is a series of actions or operations that have to be executed in the same manner to always obtain the same result under the same circumstances (for example, emergency procedures). The NAS depends on the structure of its airspace and the use of standard procedures to enable safe and efficient operations. ATO directives and other FAA policy and guidance define how UAS are permitted to operate in the NAS today:

• COAs for public access to the NAS – Notice 8900.207 has been released for these operations;

• Experimental Certificates for civil access to the NAS;

• AND AC 91-57 for modeler (recreation) access to the NAS (June 1981) and Section 336 (Special Rule for Model Aircraft) of FMRA. Experimental certificates and COAs will always be viable methods for accessing the NAS, but typically come with constraints and limitations. Expanded, easier access to the NAS will occur after new or revised operational rules and UAS certification criteria are defined and the FAA develops specific methods for appropriately integrating UAS into NAS operations. Another requirement is the baselining activity to assess the applicability of existing air traffic control regulations and orders to UAS operations. Any identified gaps will need to be analyzed, and decisions on accommodation or changes to UAS or regulations will be completed. Some sample differences that affect UAS interoperability with the air traffic system are:

• En Route—Current UAS are not able to meet requirements to fly in reduced vertical separation minimum (RVSM) airspace. They do not fly traditional trajectory-based flight paths and require non-traditional handling in emergency situations.

• Terminal—UAS cannot comply with ATC visual separation clearances and cannot execute published instrument approach procedures.

• Facilities—The introduction of UAS at existing airports represents a complex operational challenge. For the near- term, it is expected that UAS will require segregation from mainstream air traffic, possibly accommodated with UAS launch windows, special airports, or off-airport locations where UAS can easily launch and recover. Initial rulemaking for UAS may not address the requirements for UAS at airport facilities, since sUAS are not expected to routinely use airports for takeoff and landing. However, as civil UAS are developed that require airport access, airport integration requirements will need to be developed. These requirements will include environmental impact and/or assessments (when required) concerning noise, emissions, and any unique fuels and other associated concerns. The current Airport Cooperative Research Project (ACRP 03-30) will address the impacts of commercial UAS on airports. The results of the study will be a publication to help airports and communities gain an understanding of UAS, including a description of how various areas of the aviation system, particularly airports, could be affected. The results should be helpful in addressing the airport integration requirement. ICAO has issued guidance requiring Member States to implement Safety Management System (SMS) programs. These programs are essential to manage risk in the aviation system. The FAA supports this and is a leader in the design and implementation of SMS. Technical challenges abound, including the ability to analyze massive amounts of data to provide useful information for oversight and assessment of risk.

Perspective 1: Accommodation 27

CCM Government Finance & Research Regulating Drone Use 29 A key input to a Safety Management methodology is the use of safety data. Valuable data collection is underway, but development of a safety-reporting database is currently limited to reporting requirements from existing COAs and experimental certificate holders. Data collection will expand when additional agreements are finalized for sharing public UAS data and new rules and associated safety data reporting requirements are implemented for sUAS. The strategy will use UAS incident, accident, and operational data from public, experimental, and sUAS operations to iteratively support the basis for and define appropriate UAS operating requirements. The availability and quality of this data may directly determine how fast or slow UAS are integrated into the NAS.

3.6 Training (Pilot, Flightcrew Member, Mechanic, and Air Traffic Controller) UAS training standards will mirror manned aircraft training standards to the maximum extent possible, including appropriate security and vetting requirements, and will account for all roles involved in UAS operation. This may include the pilot, required crew members such as visual observers or launch and recovery specialists, instructors, inspectors, maintenance personnel, and air traffic controllers. See Appendix C.2 and C.8 for specific goals and metrics. Accident investigation policies, processes, procedures, and training will be developed near-term, and will be provided to Flight Standards District Offices (FSDO) for implementation. Existing manned procedures will be leveraged as much as possible, though differences will need to be highlighted and resolved (e.g., when an unmanned aircraft accident occurs, there may be a need to impound the control station as well as the aircraft).

3.7 Research and Development (R&D) / Technology Research in the areas of gaps in current technology and new UAS technologies and operations will support and enable the development of airworthiness and operational guidance required to address new and novel aspects of UAS and associated flight operations. The FAA will continue to establish requirements for flight in the NAS so R&D efforts are not duplicative. Additionally, the FAA’s research needs are considered within the JPDO NextGen Research Development and Demonstration Roadmap to prevent overlap and provide opportunities for research collaboration. R&D efforts with industry support the establishment of acceptable performance limits in the NAS and enable the development of performance parameters for today’s NAS, while evaluating future concepts, technologies, and procedures for NextGen. The UAS Technical Community Representative Group (TCRG) is sponsoring broad-based UAS research (SAA, C2, and control station studies) aimed at integration with NextGen and validation of concepts. Near- term expected progress is described here: Sense and Avoid: Significant research into SAA methods is underway by both government and industry through a variety of approaches and sensor modes. Specifically the FAA is researching:

• Establishment of Sense and Avoid system definitions and performance levels;

• Assessment of Sense and Avoid system multi-sensor use and other technologies;

• And Minimum Sense and Avoid information set required for collision avoidance maneuvering. Some public agencies and commercial companies are seeking to develop advanced mitigations, such as Ground Based Sense and Avoid (GBSAA) systems, as a strategy for increased access. Concept-of-use demonstrations are underway at several locations to use GBSAA as a mitigation to see-and-avoid requirements for public UAS COA operators in limited operational areas. GBSAA research and the test evaluations will help develop the sensor, link, and algorithm

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 28

CCM Government Finance & Research Regulating Drone Use 30 requirements that could allow GBSAA to function as a partial solution set for meeting the SAA requirement and will help build the overall SAA requirements in the long-term. Additionally, as GBSAA technology matures, GBSAA could be used to provide localized UAS NAS integration in addition to being used as an advanced accommodation tool. See Appendix C.3 for specific goals and metrics. Research is underway on Airborne Sense and Avoid (ABSAA) concepts. Due to complexity, significant progress in ABSAA is not expected until the mid-term. Research goals for the near-term include a flight demonstration of various sensor modes (electro-optic/infrared, radar, Traffic Alert and Collision Avoidance System (TCAS) and Automatic Dependent Surveillance-Broadcast (ADS-B)). Actual fielding of a standardized ABSAA system is a long-term objective. See Appendix C.4 for specific goals and metrics. Control and Communications: A primary goal of C2 research is the development of an appropriate C2 link between the unmanned aircraft and the control station to support the required performance of the unmanned aircraft in the NAS and to ensure that the pilot always maintains a threshold level of control of the aircraft. Research will be conducted for UAS control data link communications to determine values for latency, availability, integrity, continuity, and other performance measures. UAS contingency and emergency scenarios also require research (e.g., how will a UAS in the NAS respond when the command link is lost either through equipment malfunction or malicious jamming, etc.). This research will drive standards that are being established through:

• Development and validation of UAS control link prototype

• Vulnerability analysis of UAS safety critical communications

• Completion of large-scale simulations and flight testing of initial performance requirements Spectrum and civil radio frequency (RF) identification requires global coordination. The International Telecommunication Union (ITU) through the 2015 World Radiocommunication Conference (WRC-2015) will consider spectrum for UAS beyond-line-of-sight (BLOS) applications. Within the United States, the Federal Communications Commission (FCC) manages and authorizes all non-federal use of the radio frequency spectrum, including state and local government as well as public safety. The National Telecommunications and Information Administration (NTIA) manages and authorizes all federal use of the radio frequency spectrum. UAS spectrum operations within the United States need either the approval of the FCC or NTIA and shall not transmit without being properly authorized. Government agencies and industry need to investigate link security requirements, such as protection against intended and unintended jamming, RF interference, unauthorized link takeover, and spoofing. See Appendix C.5 for specific goals and metrics. Modeling and Simulation: The FAA is working with other government agencies and industry to develop a collaborative UAS modeling and simulation environment to explore key challenges to UAS integration. The near-term modeling goals are to:

• Validate current mitigation proposals;

• Establish a baseline of end-to-end UAS performance measures;

• Establish thresholds for safe and efficient introduction of UAS into the NAS;

• And develop NextGen concepts, including 4-dimensional trajectory utilizing UAS technology.

Perspective 1: Accommodation 29

CCM Government Finance & Research Regulating Drone Use 31 These modeling and simulation efforts will address NAS integration topics for UAS, such as latency in executing ATC clearances, inability to accept ATC visual clearances or comply with visual flight rules, priority and equity of NAS access, lost link, and flyaway scenarios. Human Factors: With the pilot controlling the aircraft from beyond the aircraft, several human factors issues emerge related to both the pilot and ATC, and how they will interact to safely operate unmanned aircraft in the NAS. Human factors issues in manned aviation are well known, but there needs to be further analyses regarding integration of UAS into the NAS. In the near-term, data will be collected to permit analysis of how pilots fly UAS, how controllers provide service involving a mix of manned aircraft and UAS, and how pilots and controllers interact with each other, with the goal of developing pilot, ATC, and automation roles and responsibilities concepts. The JPDO, in collaboration with government, academia, and industry researchers, identified several interrelated research challenges:

• Effective human-automation interaction (level; trust; and mode awareness);

• Pilot-centric ground control station design (displays; sensory deficit and remediation; and sterile cockpit);

• Display of traffic/airspace information (separation assurance interface);

• Predictability and contingency management (lost link status; lost ATC communication; and ATC workload);

• Definition of roles and responsibilities (communication flow among crew, ATC, and flight dispatcher);

• System-level issues (NAS-wide human performance requirements);

• And airspace users’ and providers’ qualification and training (crew/ATC skill set, training, certification, and currency). Other research in this phase includes activities to support safety case validation and the associated mitigations. This includes case-by-case assessments to determine the likelihood that a system/operation can achieve an acceptable safety level. The research will consider UAS operational and technical risks including:

• Inability to avoid a collision;

• Inability to maintain positive control;

• Inability to meet the operational environment’s expected behavior (e.g., self-separate);

• And Inability to safeguard the public.

Summary of “Accommodation” Priorities

Accommodation of UAS in the NAS through evaluation and improvement of safety mitigations

Work with industry and the ARC to review the operational, pilot, and airworthiness regulations

Development of required standards to support technological solutions to identified operational gaps (MOPS)

Safety case validation for UAS operations in NAS—collect/analyze operational and safety data

Robust research, modeling, and simulation for UAS Sense and Avoid, C2, and human factors

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 30

CCM Government Finance & Research Regulating Drone Use 32 Perspective 1: Accommodation 31

CCM Government Finance & Research Regulating Drone Use 33 Perspective 2: Integration

4.1 Overview In the mid-term, emphasis will shift significantly from accommodation to integration. For the residual accommodation requirements, it is expected that operational lessons learned and technological advances will lead to more sophisticated mitigations with increased safety margins. Thus, COAs and experimental certificates will remain avenues for accessing the NAS with appropriate restrictions and constraints. Emphasis will shift toward integration of UAS through the implementation of civil standards for unmanned aircraft pilots and new or revised operational rules, together with necessary policy guidance and operational procedures. Integration efforts will focus on sequentially developing and implementing the UAS system requirements established by the FAA as a result of R&D and test range outputs:

• Finalize the integrated set of FAA rulemaking, policy, operational guidance, procedures, and standards;

• Define continued airworthiness methodologies;

• Complete training and certification standardization;

• Continue the research and technology development and assessment work that underpins the ability of UAS to operate safely and efficiently in the NAS; Integration efforts will • And address the privacy, security, and environmental implications of focus on sequentially UAS operations. To receive civil certification under existing or adapted/expanded developing and regulations, guidance, and standards, research is needed that will assist in defining the certification basis for unique UAS features. While current implementing the UAS regulations, guidance, and standards ensure safe operation of aircraft system requirements with pilots in the cockpit, these current regulations may not represent the necessary and sufficient basis for the design criteria and operation of UAS. established by the FAA Integration efforts will provide a foundation for creating and modifying FAA policies and procedures to permit more routine forms of UAS access as a result of R&D and and bridge the gap to the long-term goal of developing the policy, guidance, and operational procedures required to enable manned and test range outputs.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 32

CCM Government Finance & Research Regulating Drone Use 34 4 unmanned aircraft to fly together in an environment that meets or exceeds today’s level of safety and efficiency. As new UAS evolve, more specific training will be developed for UAS pilots, crew members, and certified flight instructors. See Appendix C.2 for specific goals and metrics. UAS operations comingled at airports with manned aircraft is one of the more significant challenges to NAS integration. The UAS must be able to operate within airport parameters and comply with the existing provisions for aircraft. As with airspace operational requirements, the airport standards are not expected to change with the introduction of UAS, and their operation must be harmonized in the provision of air traffic services. The following general requirements and assumptions will pertain to all UAS operations that are integrated into the NAS (with the exception of sUAS operating exclusively within visual line-of-sight (LOS) of the flight crew): 1. UAS operators comply with existing, adapted, and/or new operating rules or procedures as a prerequisite for NAS integration. 2. Civil UAS operating in the NAS obtain an appropriate airworthiness certificate while public users retain their responsibility to determine airworthiness. 3. All UAS must file and fly an IFR flight plan. 4. All UAS are equipped with ADS-B (Out) and transponder with altitude-encoding capability. This requirement is independent of the FAA’s rule-making for ADS-B (Out). 5. UAS meet performance and equipage requirements for the environment in which they are operating and adhere to the relevant procedures. 6. Each UAS has a flight crew appropriate to fulfill the operators’ responsibilities, and includes a pilot-in-command (PIC). Each PIC controls only one UA.* 7. Autonomous operations are not permitted.** The PIC has full control, or override authority to assume control at all times during normal UAS operations. 8. Communications spectrum is available to support UAS operations. 9. No new classes or types of airspace are designated or created specifically for UAS operations. 10. FAA policy, guidelines, and automation support air traffic decision-makers on assigning priority for individual flights (or flight segments) and providing equitable access to airspace and air traffic services.

Perspective 2: Integration 33

CCM Government Finance & Research Regulating Drone Use 35 11. Air traffic separation minima in controlled airspace apply to UA. 12. ATC is responsible for separation services as required by airspace class and type of flight plan for both manned and unmanned aircraft. 13. The UAS PIC complies with all ATC instructions and uses standard phraseology per FAA Order (JO) 7110.65 and the Aeronautical Information Manual (AIM). 14. ATC has no direct link to the UA for flight control purposes. * This restriction does not preclude the possibility of a formation of UA (with multiple pilots) or a “swarm” (one pilot controlling a group of UA) from transiting the NAS to/from restricted airspace, provided the formation or swarm is operating under a COA. ** Autonomous operations refer to any system design that precludes any person from affecting the normal operations of the aircraft. 4.2 Standards After MASPS are completed, the emphasis of standards activities will be geared toward the development of MOPS, which will contribute to the basis for regulatory changes and the equipment standards for UAS-specific systems and equipment. The development of MOPS may provide requirements the FAA may invoke as TSO to support airworthiness approval on certificated unmanned aircraft and may lead to the development of improved systems, potentially applicable to all civil aircraft. See Appendix C for specific goals and metrics.

4.3 Rules and Regulations Recognizing that the UAS community might be better served by specific rules, the FAA is initially proposing to amend its regulations to adopt specific rules for the operation of sUAS in the NAS. These changes will address the classification of sUAS, certification of sUAS pilots, registration of sUAS, approval of sUAS operations, and sUAS operational limits. As integration Operations of sUAS under new regulations may have operational, airspace, and performance constraints, but will provide experience for pilots and continues, new or additional data to inform subsequent rulemaking, standards, and training development for safe and efficient integration of other UAS in the NAS. revised operational When the final rule is published and in effect, it will reduce the need rules and associated for sUAS operators to conduct operations under either a COA or the constraints of an experimental certificate. This will allow operators standards and policies and the FAA to shift the focus of resources to solutions that will better enable UAS integration. See Appendix C.6 for specific goals and metrics. will allow compliant 4.4 Airworthiness Certification of the UAS UAS to access The FAA will work with the UAS community in defining policy and standards that facilitate agreement on an acceptable UAS certification additional airspace basis for each applicant. This may involve the development of new policy, guidance, rulemaking, special conditions, and methods of compliance. throughout the NAS. See Section 3.4 for a more detailed discussion and Appendix C.1 for specific goals and metrics. Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 34

CCM Government Finance & Research Regulating Drone Use 36 4.5 Procedures and Airspace There will be incremental increases in NAS access based on rigorous safety mitigations of current UAS that were previously developed and built without approved industry or governmental standards. As integration begins, there will be approved airspace and procedures for sUAS, which will provide a basis for developing plans for increased NAS access as UAS are certified. As integration continues, new or revised operational rules and procedures, and associated standards and policies, will allow compliant UAS to access additional airspace throughout the NAS. The ATO will use procedures with these UAS similar to those used for manned aircraft, but may also delegate separation responsibility to UAS for some operations. To support this, ATO goals will be: • Standardize air traffic operations and contingency/emergency procedures for UAS operators to ensure certified aircraft systems are interoperable with air traffic procedures and airspace requirements; • Develop airport facility integration plans. This will require research and the development of procedures that address critical issues such as low visibility, taxi spacing, light gun signals, and compatibility with NextGen operations; • Establish UAS operating requirements with associated ATC procedures for airport conditions; • And coordinate with the Department of Defense (DoD) and all other appropriate departments and agencies on the development of any new parallel procedures and requirements for air domain awareness and defense. See Appendix C.8 for specific goals and metrics.

4.6 Training (Pilot, Flightcrew Member, Mechanic, and Air Traffic Controller) The FAA’s role in training is to establish policy, guidance, and standards. Airmen training standards are under development and will be synchronized with the regulatory guidance. Civil operators normally develop a training regimen that allows pilots and flight support to meet regulatory standards. For any UAS operation, training regimens analogous to those that exist for manned aircraft will need to be considered, including relevant areas such as written tests, practical examinations, and currency and proficiency requirements. Standards for airmen will proceed following the sUAS regulation. The FAA will issue UAS airman certificates and support activities to enable UAS operations to include: • Development of practical test standards (PTS) and UAS airmen knowledge test question banks; • Development of a UAS handbook for airmen; • Training of aviation safety inspectors (ASI) at the FSDO level to provide practical test oversight; • Identification of designated pilot examiners (DPE) to assist the FSDOs; • Development of a UAS handbook for pilot and instructors; • Development of PTS and UAS pilot knowledge test question banks; • Development of UAS mechanic training and certificate process; • And development of flight crew security requirements by the relevant United States Government agencies. Pilot endorsements may be developed for specific UAS makes and models to permit commercial operations. Pilot qualifications by make and model will be built into training and will be expanded based on pilot experience. Training standards development will be more complex for UAS with unique operating parameters and will continue into the long-term as these UAS are certified.

Perspective 2: Integration 35

CCM Government Finance & Research Regulating Drone Use 37 Regardless of the UAS platform, similar types of training regimens are expected, consisting of a written knowledge test, practical test standards, and a flight evaluation. There will be a requirement for currency and proficiency; qualified ASIs will be fielded to regional offices across the country. With the introduction of UAS into the NAS, additional training requirements specific to different types of UAS characteristics will probably be required for ATC personnel, including UAS performance, behavior, communications, unique flight profiles, ATC standardized procedures, lost link/fly away profiles, operating limitations, and emergency procedures. Controller training will include differences in interoperability between manned and UAS flights, with a focus on specific handling issues of the aircraft. This training must be administered to ATC facilities throughout the NAS. It is expected that controllers will handle UAS the same as manned aircraft; therefore, no special ATC certification would be required. See Appendix C.2 and C.8 for specific goals and metrics.

4.7 Research and Development (R&D) /Technology Sense and Avoid: Research on SAA sensor performance, data communication, and algorithms must provide solutions for safe separation for integration of UAS into the NAS. Research to develop separation algorithms will be accomplished with the JPDO R&D plan goals of:

• Flight demonstration of self-separation and collision avoidance algorithms, with multiple sensors and intruders;

• Assessment of the performance of various self-separation concepts as a function of surveillance data configurations, and evaluation of risk-based self-separation algorithms and policy issues;

• Assessment of the performance of various separation assurance concepts, and flight demonstration of separation assurance algorithms, with criteria-based separation;

• And assessment of UAS performance for delegated spacing applications (e.g., defined interval clearances). Although research will continue, fully certified UA-based collision avoidance solutions may not be feasible until the long-term and are deemed to be a necessary component for full UAS NAS integration. This will include research on safe and efficient terminal airspace and ground operations, followed by ground demonstrations of autonomous airfield navigation and ATC interaction. See Appendix C.4 and C.8 for specific goals and metrics. Control and Communications: Advanced research is required in data link management, spectrum analysis, and frequency management. Efforts will focus on completing development of C2 link assurance and mitigation technologies and methods for incorporating them into the development of certification of the UAS. This will include:

• Identification of satellite communication spectrum from the ITU through its WRC;

• Verification and validation of control communication final performance requirements;

• Establishment of UAS control link national/international standards;

• And development and validation of technologies to mitigate vulnerabilities. Complete characterization of the capacity, performance, and security impacts of UAS on ATC communication systems will be completed. See Appendix C.5 and C.8 for specific goals and metrics.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 36

CCM Government Finance & Research Regulating Drone Use 38 Human Factors: Human factors research will continue in the areas of human-machine interface (both control station displays and ATC displays), automation, and migration of control. Human factors data collected in the near-term and mid-term will be analyzed to determine the safest technologies and best procedures for pilots and ATC controllers to interact with each other and with the aircraft; these results will influence technology and operations research. For separation and collision avoidance capability, the contribution of human decision making versus automation must be identified. See Appendix C.8 for specific goals and metrics.

4.8 Test Ranges Per the FMRA, the FAA will establish six test ranges. The test ranges will take into consideration climate and geographic diversity, the location of ground infrastructure and research needs. See Appendix C.7 for specific goals and metrics. The test range program will address and account for:

• Manned-unmanned operations,

• Certification standards and air traffic requirements,

• Coordination and leveraging of National Aeronautics and Space Administration (NASA) and DoD resources,

• Civil and public unmanned aircraft systems,

• And coordination with NextGen. The test ranges will help provide a verification mechanism for safe operations before unmanned aircraft are integrated into the NAS. The FAA anticipates test range operator privacy practices, as discussed in their privacy policies, will help inform the dialogue among policymakers, privacy advocates, and the industry regarding broader questions concerning the use of UAS technologies. Transparency of privacy policies associated with UAS test range operations will engage all stakeholders in discussions about which privacy issues are raised by UAS operations and how law, public policy, and the industry practices should respond to those issues in the long run.

Summary of “Integration” Priorities

New operational rules and associated standards, policies, and procedures established for small UAS

New operational rules and associated standards, policies, and procedures established for other UAS

C2 link standards defined for integrity, latency, and continuity

FAA acceptance of MASPS to enable development of detailed MOPS

Published FAA policy and operational guidance to define acceptable methods to comply with operational rules in accordance with an acceptable UAS certification basis for each applicant

Published FAA flightcrew training and certification standards

Perspective 2: Integration 37

CCM Government Finance & Research Regulating Drone Use 39 Perspective 3: Evolution

5.1 Overview Overlaying the integration of UAS is the need to remain aware of the changing characteristics and requirements of the evolving NAS. The long-term focus for UAS operations is the refinement and updating of regulation, policy, and standards. The end-state is to implement streamlined processes for the continued integration of UAS into the NAS. These efforts will include:

• Policy, operational guidance, and standards for civil aircraft airworthiness and NAS operations and with consideration for privacy and security concerns and frameworks;

• Continued airworthiness methodologies;

• Training and certification standardization;

• And certification of key technologies to enable continued operations of UAS in the NAS. 5.2 Standards Unique UAS certification requirements will have been determined. MASPS, MOPS, and TSOs will support the regulations and certification of key systems for each UAS. Additionally, all standards will be evaluated and modified, as needed. See Appendix C.1 for specific goals and metrics.

5.3 Rules and Regulations Lessons learned from previous rulemaking efforts may be applicable to the development of new UAS regulations. The process should become more efficient as UAS experience is gained and data analysis proves safety cases more quickly. UAS rulemaking activities will be more likely to involve revisions to existing rules, as needed, rather than the creation of new rules.

5.4 Airworthiness Certification of the UAS Certification of UAS will evolve as future technologies evolve and will be consistent with all other aircraft airworthiness and operational approval processes, adding more capability to the UAS through data analyses and trending, which will identify areas for change and improvement in operations, human factors, communication links, and maintenance. See Section 3.4 for a more detailed discussion and Appendix C.1 for specific goals and metrics.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 3838

CCM Government Finance & Research Regulating Drone Use 40 5

5.5 Procedures and Airspace Certified pilots and UAS will be permitted access into the NAS under seamless operating procedures. The need to accommodate special NAS access will be dramatically reduced, and will be limited to research and development or test operations. UAS operations will continue to evolve based on NextGen requirements. See Appendix C.8 for specific goals and metrics.

5.6 Training (Pilot, Flightcrew Member, Mechanic, and Air Traffic Controller) As new UAS evolve, more specific training will be developed for UAS pilots, crew members, and certified flight instructors based on lessons learned and data collection. See Appendix C.2 and C.8 for specific goals and metrics.

5.7 Research and Development (R&D) / Technology Identified limitations and gaps will be closed via research and development of required technologies that meet standards established by the FAA. Planned activities include:

• Sense and Avoid research that focuses on algorithm development and compatibility with current and future manned aircraft collision avoidance systems such as TCAS II/ACAS X and surveillance systems (e.g., ADS-B), as well as compatibility with ATC separation management procedures and tools;

• Research on UAS system safety and levels of automation for the improvement of UAS into the future;

• Examination of potential concepts for the widespread integration of UAS into the future NextGen environment;

• AND research on new tools and techniques to support avionics and control software development and certification, to ensure their safety and reliability. Organized studies will continue to investigate the evolution of UAS operations into the NextGen environment. Detailed research on SAA flight operations, using certified sensor systems, could allow aircraft to maintain safe distances from other aircraft during flight conditions that would not be appropriate for visual flight in a manned aircraft. This capability would rely heavily on network-enabled information, precision navigation, and cooperative surveillance, and would require the development and integration of NextGen-representative technologies for traffic, weather, and terrain avoidance. This conceptual model will be enlarged with sensors that expand the ability to maintain separation from other aircraft past the current visual spectrum and flight conditions restrictions. See Appendix C.8 for specific goals and metrics.

Perspective 3: Evolution 39

CCM Government Finance & Research Regulating Drone Use 41 Summary of “Evolution” Priorities

Seamless operations of certified UAS and crew members in the evolving NAS

Published FAA TSOs based on system level MOPS

Certified Sense and Avoid algorithms for collision avoidance and self-separation that are interoperable with evolving NextGen ATC systems and manned collision avoidance systems

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 40

CCM Government Finance & Research Regulating Drone Use 42 Perspective 3: Evolution 41

CCM Government Finance & Research Regulating Drone Use 43 Conclusions

6.1 Summary The safe integration of unmanned aircraft into the NAS is a significant challenge. The FAA is dedicated to developing the technical and regulatory standards, policy guidance, and operational procedures on which successful UAS integration depends. The application of financial and human resources by academia and industry to support critical FAA initiatives will shorten the time required to develop technical and regulatory standards. Together, all stakeholders can overcome the challenge of integrating UAS into the NAS and leverage UAS and associated technologies for the greater benefit of society.

6.2 Outlook Based on FAA policy and the challenges that need to be addressed, this roadmap has focused on the activities required to achieve integration of UAS into the evolving NAS. Throughout the process, the key messages below reflect the basis for the FAA’s consideration of requirements to integrate civil UAS into the NAS: 1) Government-industry collaboration is paramount to success and must focus on process, quality, and timely results. The FAA expects to gain experience in applying the existing airworthiness regulations during the type certification process with early UAS adopters. We also expect input from industry and the ARC. Taking into account industry and ARC inputs, and future experience with UAS type certification projects, the FAA will review and revise as necessary the existing airworthiness regulations to ensure UAS safety. 2) The FAA must remain committed to the development of technical and regulatory standards, policy guidance, and operations procedures on which successful UAS integration depends. With this roadmap, the FAA has outlined initiatives that must be accomplished. Because unmanned aircraft are considered aircraft that are flown by pilots, existing regulations and procedures are largely applicable. However, the complete integration of UAS at airports and in the various airspace classes may necessitate the development of new or revised regulations and supplemental procedures. These will be developed and implemented in coordination with relevant agencies to address related security and privacy implications. 3) Global standards encourage harmonization and yield cost-effective development. The FAA is not bound by international policies and standards. However, harmonizing efforts with the international aviation community will allow for more seamless operations of UAS across national boundaries. Synchronizing

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 42

CCM Government Finance & Research Regulating Drone Use 44 6

efforts within the aviation community will also permit better use of limited human and fiscal resources, thereby reducing the time required to produce regulatory guidance, policy, and standards. 4) The FAA is focused on increased access for UAS without impacting the safety or efficiency of the NAS, while managing environmental impacts. The FAA has placed a high priority on the development of rules for small UAS that will increase access to the NAS and provide an initial opportunity for commercial operations. In the long-term, the principal objective of the aviation regulatory framework is to achieve and maintain the highest possible uniform level of safety while maintaining or increasing the efficiency and the environmental performance of the NAS. In the case of UAS, this means ensuring the safety of all airspace users as well as the safety of persons and property on the ground. 5) Progress must be made on the development of technology to enable NAS access. Because of many distinct differences between UAS and manned aircraft, there are required technologies that must be matured to enable the safe and seamless integration of UAS in the NAS. Research will be focused in the areas of sense and avoid, control and communications, and human factors.

Conclusions 43

CCM Government Finance & Research Regulating Drone Use 45 Appendix A: Acronyms

ABSAA Airborne Sense and Avoid FAA Federal Aviation Administration

ACAS X Airborne Collision Avoidance System X FCC Federal Communications Commission

ADS-B Automatic Dependent Surveillance–Broadcast FMRA FAA Modernization and Reform Act of 2012

AIM Aeronautical Information Manual FSDO Flight Standards District Office

AMA Academy of Model Aeronautics GBSAA Ground Based Sense and Avoid

ARC Aviation Rulemaking Committee GSE Ground Support Equipment

ASI Aviation Safety Inspector IFR Instrument Flight Rules

ASTM American Society for Testing and Materials ICAO International Civil Aviation Organization

ATC Air Traffic Control IPC Interagency Planning Committee

ATO Air Traffic Organization ITU International Telecommunication Union

AVS Office of Aviation Safety JPDO Joint Planning and Development Office

BLOS Beyond-Line-of-Sight LOS Line-of-Sight

C2 Control and Communications MASPS Minimum Aviation System Performance Standard

COA Certificate of Waiver or Authorization MOPS Minimum Operational Performance Standard

DAA Detect and Avoid NAS National Airspace System

DHS Department of Homeland Security NASA National Aeronautics and Space Administration

DoD Department of Defense NextGen Next Generation Air Transportation System

DOJ Department of Justice NIJ National Institute of Justice

DPE Designated Pilot Examiner NOAA National Oceanic and Atmospheric Administration

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 44

CCM Government Finance & Research Regulating Drone Use 46 Appendix A: Acronyms A

NPRM Notice of Proposed Rulemaking TCRG Technical Community Representative Group

NTIA National Telecommunications and Information TSO Technical Standard Order Administration UAS Unmanned Aircraft System OPA Optionally Piloted Aircraft UAV Unmanned Aerial Vehicle OSED Operational Services and Environmental Definition VO Visual Observer PIC Pilot-in-Command WRC World Radiocommunication Conference PTS Practical Test Standards 14 CFR Title 14 of the Code of Federal Regulations R/C Radio Control

R&D Research and Development

RF Radio Frequency

RPV Remotely Piloted Vehicle

RVSM Reduced Vertical Separation Minimum

SAA Sense and Avoid

SARP Standards and Recommended Practices

SMS Safety Management System

S&T Science and Technology

sUAS Small Unmanned Aircraft Systems

TC Type Certificate

TCAS Traffic Alert and Collision Avoidance System

Appendix A: Acronyms 45

CCM Government Finance & Research Regulating Drone Use 47 Appendix B: Glossary

The following definitions were obtained from several sources, including: 1. Title 14 of the Code of Federal Regulations, Part 1.1 2. FAA Pilot/Controller Glossary (P/CG) 3. RTCA DO-320: Operational Services and Environmental Definition for Unmanned Aircraft Systems 4. Notice 8900.207, “Unmanned Aircraft Systems (UAS) Operational Approval,” January 22, 2013 5. FAA Modernization and Reform Act of 2012 6. “Sense and Avoid (SAA) for Unmanned Aircraft Systems (UAS)” – Second Caucus Workshop Report 2013 7. FAA Order 8130.34B – Airworthiness Certification of Unmanned Aircraft Systems and Optionally Piloted Aircraft Note: Applicable sources are shown at the end of each definition in parentheses (e.g. (1), (2), etc.). Terms without a specific source definition are defined in this Roadmap.

Terminology Definition Air Traffic Control A service operated by appropriate authority to promote the safe, orderly, and expeditious flow of air traffic. (1) Aircraft A device that is used or intended to be used for flight in the air. (1) Airspace Any portion of the atmosphere sustaining aircraft flight and which has defined boundaries and specified dimensions. Airspace may be classified as to the specific types of flight allowed, rules of operation, and restrictions in accordance with International Civil Aviation Organization standards or State regulation. (3) Airworthiness A process that the FAA uses to ensure that an aircraft design complies with the appropriate Certification safety standards in the applicable airworthiness regulations. Certificate of Waiver An FAA grant of approval for a specific flight operation. The authorization to operate a or Authorization UAS in the National Airspace System as a public aircraft outside of Restricted, Warning, or Prohibited areas approved for aviation activities. (4)

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 46

CCM Government Finance & Research Regulating Drone Use 48 B

Terminology Definition Civil Aircraft Aircraft other than public aircraft. (4) Collision Avoidance The Sense and Avoid system function where the UAS takes appropriate action to prevent an intruder from penetrating the collision volume. Action is expected to be initiated within a relatively short time horizon before closest point of approach. The collision avoidance function engages when all other modes of separation fail. (6) Communication Link The voice or data relay of instructions or information between the UAS pilot and the air traffic controller and other NAS users. (3) Control Station The equipment used to maintain control, communicate with, guide, or otherwise pilot an unmanned aircraft. (3) Crewmember [UAS] In addition to the crewmembers identified in 14 CFR Part 1, a UAS flightcrew member includes pilots, sensor/payload operators, and visual observers, but may include other persons as appropriate or required to ensure safe operation of the aircraft. (4)

Data Link A ground-to-air communications system which transmits information via digital coded pulses. (3) Detect and Avoid Term used instead of Sense and Avoid in the Terms of Reference for RTCA Special Committee 228. This new term has not been defined by RTCA and may be considered to have the same definition as Sense and Avoid when used in this document.

International Civil A specialized agency of the United Nations whose objective is to develop the principles Aviation Organization and techniques of international air navigation and to foster planning and development of international civil air transport. (2)

Manned Aircraft Aircraft piloted by a human onboard. (3) Model Aircraft An unmanned aircraft that is capable of sustained flight in the atmosphere; flown within visual line-of-sight of the person operating the aircraft and flown for hobby or recreational purposes. (5)

Appendix B: Glossary 47

CCM Government Finance & Research Regulating Drone Use 49 Terminology Definition National Airspace The common network of U.S. airspace; air navigation facilities, equipment and services, System airports or landing areas; aeronautical charts, information and services; rules, regulations and procedures, technical information, and manpower and material. Included are system components shared jointly with the military. (2) Optionally Piloted An aircraft that is integrated with UAS technology and still retains the capability of being Aircraft flown by an onboard pilot using conventional control methods. (7) Pathfinder An initial UAS airworthiness certification program that will aid the FAA in the establishment of certification requirements. Pilot-in-Command Pilot-in-command means the person who: 1) has final authority and responsibility for the operation and safety of the flight; 2) has been designated as pilot-in-command before or during the flight; and 3) holds the appropriate category, class, and type rating, if appropriate, for the conduct of the flight. (1)

Public Aircraft An aircraft operated by a governmental entity (including federal, state, or local governments, and the U.S. Department of Defense and its military branches) for certain purposes as described in 49 U.S.C. §§ 40102(a)(41) and 40125. Public aircraft status is determined on an operation by operation basis. See 14 CFR Part 1, § 1.1 for a complete definition of a public aircraft. (4) RTCA RTCA, Inc. is a private, not-for-profit corporation that develops consensus-based recommendations regarding communications, navigation, surveillance, and air traffic management system issues. RTCA functions as a Federal Advisory Committee. Its recommendations are used by the FAA as the basis for policy, program, and regulatory decisions and by the private sector as the basis for development, investment and other business decisions. (www.rtca.org)

See and Avoid When weather conditions permit, pilots operating instrument flight rules or visual flight rules are required to observe and maneuver to avoid another aircraft. Right-of-way rules are contained in 14 CFR Part 91. (2)

Self-Separation Sense and Avoid system function where the UAS maneuvers within a sufficient timeframe to remain well clear of other airborne traffic. (6) Sense and Avoid The capability of a UAS to remain well clear from and avoid collisions with other airborne traffic. Sense and Avoid provides the functions of self-separation and collision avoidance to establish an analogous capability to “see and avoid” required by manned aircraft. (6)

Small Unmanned An unmanned aircraft weighing less than 55 pounds. (5) Aircraft

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CCM Government Finance & Research Regulating Drone Use 50 Terminology Definition Special Airworthiness Airworthiness certification for experimental UAS and optionally piloted aircraft. Certificate – Experimental Category (UAS)

Test Range A defined geographic area where research and development are conducted in accordance with Sections 332 and 334 of the FMRA. Test ranges are also known as test sites in related documents such as the FAA’s Screening Information Request. (5)

Unmanned Aircraft 1) A device used or intended to be used for flight in the air that has no onboard pilot. This devise excludes missiles, weapons, or exploding warheads, but includes all classes of airplanes, helicopters, airships, and powered-lift aircraft without an onboard pilot. UA do not include traditional balloons (see 14 CFR Part 101), rockets, tethered aircraft and un- powered gliders. (4) 2) An aircraft that is operated without the possibility of direct human intervention from within or on the aircraft. (5)

Unmanned Aircraft An unmanned aircraft and its associated elements related to safe operations, which may System include control stations (ground, ship, or air-based), control links, support equipment, payloads, flight termination systems, and launch/recovery equipment. (4) An unmanned aircraft and associated elements (including communications links and the components that control the unmanned aircraft) that are required for the pilot-in-command to operate safely and efficiently in the national airspace system. (5)

Visual Line-of-Sight Unaided (corrective lenses and/or sunglasses exempted) visual contact between a pilot-in- command or a visual observer and a UAS sufficient to maintain safe operational control of the aircraft, know its location, and be able to scan the airspace in which it is operating to see and avoid other air traffic or objects aloft or on the ground. (4)

Appendix B: Glossary 49

CCM Government Finance & Research Regulating Drone Use 51 Appendix C: Goals, Metrics, and Target Dates

This appendix contains FAA-developed goals, metrics, and target dates (date ranges) and incorporates many related Unmanned Aircraft Systems (UAS) Aviation Rulemaking Committee (ARC) recommendations. The target dates in this appendix are generally limited to a five-year planning horizon. The FAA will continue its effective dialogue with the UAS ARC as it makes changes to the existing set of goals, metrics, and target dates in yearly updates to this roadmap. These annual updates will track and report progress, as recommended by the Government Accountability Office. The following material identifies the key goals and related activities to be accomplished in accommodating, integrating, and evolving UAS operations in the National Airspace System (NAS). The goals are, for the most part, intended to be addressed concurrently. For each goal, a set of metrics (i.e., well-defined milestones with target completion dates) is defined. The metrics help establish and maintain common government and industry expectations, and enable objective assessments of the progress made toward the accomplishment of each goal. The goals and metrics reflect the incremental approach to UAS certification and integration described in this roadmap. The goals and metrics in and of themselves do not constitute a UAS integration roadmap implementation plan; however, they do establish a set of strategic objectives that can guide the definition of activities, schedules, and resource requirements in such a plan. Many of the goals and metrics are not under the FAA’s direct control and are dependent upon industry efforts such as participation in civil UAS standards development activities and execution of initial certification (a.k.a. “Pathfinder”) programs to aid the establishment of certification requirements. Goals and metrics addressing FMRA requirements are identified and the FMRA Subtitle B (Unmanned Aircraft Systems) is included as a reference in Appendix D. Target dates for near-term metrics (i.e., those with dates prior to October 2015) are identified by the calendar quarter and year targeted for metric completion (e.g., “3rd Quarter of 2014” means targeted for completion by the end of September 2014). Mid-term metrics may only have a target year or year range specified. In this case, “2016” means the metric’s completion target is the end of calendar year 2016. Far-term metrics are outside the five-year horizon of this roadmap and have no target dates. Target dates shown as “from 201x to 201y” indicate related activity is expected throughout this time period. Unless the target dates are required by law (e.g., FMRA), they are exactly that – targets. They are not commitments, either by the FAA, other government organizations, or industry. The target dates consider ongoing and planned government and industry activities and schedules; however, they are not always constrained by these activities and schedules. Some of the target dates are aggressive and will require additional industry or government resources if they are to be met.

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CCM Government Finance & Research Regulating Drone Use 52 C

Although this roadmap is focused on the integration of civil UAS in the NAS, some of the recommended goals and metrics address public UAS integration activities – primarily those of the Department of Defense (DoD). Public entities may have their own certification processes, but the requirements typically build upon those established by the FAA for civil aviation. The DoD’s significant activities to develop public UAS that meet airspace and regulatory requirements can and should be leveraged in the FAA’s establishment of civil UAS certification requirements.

C.1 Certification Requirements (Airworthiness) Note: The term “Operator” is used here as defined by the FAA for passenger/cargo carrying and other “for hire and compensation” operations. Not all UAS operations conducted for hire and compensation will require an Operator Certificate. One outcome of this effort will be to establish which UAS operations will or will not require an Operator Certificate. Goal 1: FAA initial certification process established for one or more civil applicants by 2014. A. One or more Pathfinder certification projects were defined through government-industry plans (e.g., Project Specific Certification Plans (PSCP)) in the 2nd Quarter of 2013. • Explanation. Three UAS manufacturers have already applied for type certification and two of these applications were released from delayed sequencing to proceed with restricted category airworthiness certification. Restricted category type certifications for these two applicants have now been completed. Completion of these type certification projects under appropriate, existing certification regulations, will act as a catalyst to establish the process to be used for similar UAS type certification projects. Note: Some UAS type certifications may be in the restricted category with operating restrictions to maintain an equivalent level of safety for the public, but the goal is to certify the respective UAS to meet all integration requirements, if practical. B. One or more Pathfinder standard airworthiness certification projects complete initial certification planning by 2014. • Explanation. If the FAA and one or more industry partners complete initial certification planning as recommended in The FAA and Industry Guide to Product Certification, the groundwork will be in place for an efficient certification project that will help establish the process for similar UAS certification projects. One manufacturer has made application and the project will proceed per FAA sequencing processes.

Appendix C: Goals, Metrics, and Target Dates 51

CCM Government Finance & Research Regulating Drone Use 53 Goal 2: FAA’s initial issue papers for one or more standard airworthiness certification projects are available by 2014. A. One or more Pathfinder certification projects underway by the 4th Quarter of 2013. • Explanation. One manufacturer has made application for a standard airworthiness certificate and the project will proceed per FAA sequencing processes. B. FAA’s initial certification issues defined for the certification basis or new and novel systems (e.g., UAS control station, airframe, control system, propulsion system, ground support equipment (GSE), etc.) by the 4th Quarter of 2013. • Explanation. The certification basis and any unique requirements for new and novel systems must be established. Requirements can be identified and refined as a result of Pathfinder efforts or publication by standards organizations (e.g., RTCA, Inc., ASTM International). Goal 3: FAA’s unique certification requirements identified through issue papers that have matured for one or more standard airworthiness certification projects by 2015. A. FAA’s unique certification requirements for new and novel systems (e.g., UAS control station, airframe, control system, propulsion system, GSE, etc.) published by 2015. • Explanation. Lessons learned from certification of Pathfinder systems, publication of consensus standards, and additional operational experience gained as a result of small UAS (sUAS) rule publication will provide additional requirement information for future applicants. B. One or more Pathfinder standard airworthiness certification projects completed by 2017 if all associated activities are completed per the nominal certification process. • Explanation. It is expected that type certifications will be granted only when all requirements have been met under existing rules and requirements and this target date is a best-case scenario. C. Other certification programs completed by 2017–2020, based on timely applications and system commonality/complexity. • Explanation. Lessons learned from certification activities of Pathfinder systems, publication of consensus standards, and operations under the sUAS rule will provide data and experience to support other certification efforts. Goal 4: FAA certification requirements updated and systems certified as necessary. A. Certification requirements updated as necessary. B. UAS certified as necessary.

C.2 Certification Requirements (Pilot/Crew) Goal 1: FAA certification requirements for pilots and crew members for sUAS classes (including medical requirements, training standards, etc.) published as part of a sUAS rule by 2014 in accordance with the FMRA. Note: These requirements include coordination with other government agencies on security/vetting requirements.

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CCM Government Finance & Research Regulating Drone Use 54 Goal 2: Necessary changes to record keeping systems established as part of a sUAS rule and in accordance with the FMRA. • Explanation. Once the final requirements are established, some changes to existing record keeping systems will be necessary. Goal 3: FAA certification requirements for pilots and crew members for UAS classes other than those addressed under the sUAS rule (including medical requirements, training standards, etc.) published by 2014–2017.

C.3 Ground Based Sense and Avoid (GBSAA) Goal 1: FAA draft Advisory Circular on GBSAA systems and requirements released by 2015. A. FAA approvals for use of GBSAA at one or more DoD GBSAA test sites granted by the 3rd Quarter of 2015, subject to timely application and completion of Certificate of Waiver or Authorization (COA) or other approval processes. • Explanation. Use U.S. Army and U.S. Air Force developed solutions at DoD UAS test sites. (Note: These are existing DoD GBSAA test sites, not the new test ranges discussed in Section 4.8 and Appendix C.7.) B. FAA approvals for use of GBSAA for educational and other public applications granted by 2016–2018, subject to timely application and completion of COA or other approval processes. • Explanation. As above, but expanded beyond the DoD to include public use at other locations equipped with suitable GBSAA systems. Goal 2: GBSAA operations fully approved by the FAA for routine use by all aviation, including both public and civil entities (if needed). A. FAA approvals for use of GBSAA for limited civil applications granted. • Explanation. As with FAA operational approvals for use of GBSAA at all DoD GBSAA test sites and operational approvals for use of GBSAA for educational and other public applications, expanded approvals are expected to be granted for limited civil use at select locations. These approvals will incorporate relevant data from UAS test site operations with GBSAA. B. FAA’s initial GBSAA certification standards for civil operations established. • Explanation. Assimilate prior deployment experience for DoD, public, and limited civil use, and develop Minimum Aviation System Performance Standards (MASPS) for GBSAA. These approvals will incorporate relevant data from UAS test site operations with GBSAA. C. FAA approvals for use of GBSAA for civil applications granted. D. FAA’s final GBSAA certification standards for civil operations established. E. GBSAA certification standards updated as necessary.

Appendix C: Goals, Metrics, and Target Dates 53

CCM Government Finance & Research Regulating Drone Use 55 C.4 Airborne Sense and Avoid (ABSAA) Goal 1: Initial FAA certification of ABSAA that facilitates UAS operations without the requirement for a visual observer by 2016–2020. A. Initial industry proposal for Sense and Avoid (SAA) implementation, integration, and operation in a Pathfinder program provided by the 2nd Quarter of 2014. (See Appendix C.1 for the Pathfinder program goals and metrics.) • Explanation. This industry proposal will address: a) general UAS operations requirements, b) UAS sense- and-avoid requirements for all proposed operations, including proposed launch and recovery sites, c) proposed UAS ABSAA equipage, and d) planned installation and integration of the proposed ABSAA system(s). (“System” includes both hardware and software.) B. FAA Stage 2 issue paper on UAS SAA implementation in one or more Pathfinder programs completed by the 2nd Quarter of 2015, subject to applicant provision of sufficient information in certification application and ongoing processes. • Explanation. An FAA Stage 2 issue paper will provide the “FAA Position” indicating the FAA’s concerns, opinions, and actions the applicant is required to accomplish to resolve the issue. This position gives the applicant direction that will enable compliance to the requirements without dictating design Goal 2: Installation and certification of ABSAA developed to meet industry standards for use by the DoD and other public and civil entities that provide the SAA functions required in the NAS for Classes A, E, and G airspace, and operations approved without the requirement for a visual observer or a COA. Note: the RTCA Program Management Committee established a new Special Committee 228 and working group for Detect and Avoid (DAA). SAA and DAA may be used interchangeably until SC-228 provides a unique definition for DAA. Special Committee 228’s Terms of Reference acknowledge that the requirements for UAS DAA in some airspace will require rulemaking. A. RTCA Operational and Functional Requirements and Safety Objectives (OFRSO) for UAS, Volume 1 was released in the 2nd Quarter of 2013. • Explanation. The OFRSO “provides recommendations for UAS system level operational and functional requirements and safety objectives for UAS flown in the United States National Airspace System (NAS) under the rules and guidelines for civil aviation.” This document provides a framework to support the development of future UAS performance standards and “will prove useful to designers, manufacturers, installers, service providers and users in the development of future standards.” B. RTCA preliminary Phase 1 Detect and Avoid (DAA) Minimum Operational Performance Standards (MOPS) developed to establish performance standards that can be verified and validated for UAS DAA equipment in specified airspace by the 3rd Quarter of 2015. • Explanation. Emphasis for this initial phase will be standards development on civil UAS equipped to operate into Class A airspace under IFR. A second phase of MOPS development may include DAA equipment to support extended UAS operations in Class D, E and perhaps G airspace. This work effort includes recommendations for a verification and validation test program to be completed before the release of the DAA MOPS. Note: RTCA has sunset Special Committee 203 and Special Committee 228; has a new Detect and Avoid working group developing these DAA MOPS.

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CCM Government Finance & Research Regulating Drone Use 56 C. RTCA Phase 1 DAA MOPS released by the 3rd Quarter of 2016. • Explanation. This document includes the avionics onboard the UAS and required elements of ground control systems and is based on the results of verification and validation activities on the preliminary Phase 1 DAA MOPS. D. FAA DAA Technical Standard Order (TSO) issued by the 1st Quarter of 2017. • Explanation. This document includes the avionics onboard the UAS and required elements of ground control systems. E. FAA DAA TSO-required equipment used operationally. Goal 3: DoD or other public entity certification of initial ABSAA systems that enable the DoD and other public entities to safely operate ABSAA-equipped UAS in all NAS airspace classes without the need for a COA. Note: RTCA Special Committee 228’s Terms of Reference acknowledge that the requirements for UAS DAA in some airspace will require rulemaking. A. Initial proposal for ABSAA implementation, integration, and operation in one or more programs released by 2016. • Explanation. This proposal will address the requirements for ABSAA system(s), including the SAA avionics onboard the unmanned aircraft and required elements of ground control systems. “System” includes both hardware and software. B. FAA issue paper(s) on UAS SAA implementation in one or more programs for UAS operations in one or more airspace classes released. • Explanation. The FAA issue paper(s) will document the special considerations for certification of UAS airborne systems that include SAA functions. They also will document special considerations for operating UAS that employ these ABSAA systems and special considerations (including avionics equipage requirements) for manned aircraft operating in the same airspace. Goal 4: Installation and certification of ABSAA systems for use by the DoD and other public and civil entities that provide the SAA functions that facilitate integrated operation of manned and unmanned aircraft in all NAS airspace classes. A. RTCA OFRSO for UAS, Volume 1 was released in the 2nd Quarter of 2013. • Explanation. The OFRSO “provides recommendations for UAS system level operational and functional requirements and safety objectives for UAS flown in the NAS under the rules and guidelines for civil aviation.” This document provides a framework to support the development of future UAS performance standards. B. RTCA Phase 1 DAA MOPS released by the 3rd Quarter of 2016. • Explanation. This document includes the SAA avionics onboard the aircraft and required elements of ground control systems for IFR flight in Class D, E, and G airspace as noted in the Terms of Reference. C. RTCA DAA MOPS released for other classes of airspace. • Explanation. The second phase of DAA MOPS may specify DAA equipment to support extended UAS operations in Class D, E, G, and other airspace as noted in the Terms of Reference.

Appendix C: Goals, Metrics, and Target Dates 55

CCM Government Finance & Research Regulating Drone Use 57 D. FAA initial DAA TSO released by the 1st Quarter of 2017. • Explanation. This document will include the avionics onboard the aircraft and required elements of ground control systems as invoked from requirements specified in the Phase 1 DAA MOPS. E. FAA DAA TSO-required equipment used operationally. • Explanation. UAS will receive operational approval to use DAA equipment through standard operational approval processes that may include exemptions to Part 91 and/or rulemaking activities as defined by FMRA. F. RTCA UAS OFRSO and DAA MOPS updated as necessary. G. FFAA DAA TSO(s) updated as necessary.

C.5 Control and Communications (C2) Note: For purposes of this section, line-of-sight (LOS) means radio LOS, not visual LOS. Goal 1: International agreements, industry standards, and FAA regulations and guidance material established by 2015 for civil UAS Control and Communications (C2) capabilities such that C2 subsystems can be certified by the FAA for use in FAA-approved UAS operations. Note: C2 includes communications internal to the UAS for pilots to operate unmanned aircraft from ground control stations. A. International agreement was reached in February 2012 at the International Telecommunication Union’s (ITU) World Radiocommunication Conference (WRC) on spectrum identified for radio LOS UAS C2 links (or in ITU terminology, Control and Non-Payload Communications links). • Explanation. Internationally harmonized radio spectrum is needed to help ensure protection from unintentional radio frequency interference, to help ensure adequate spectral bandwidth is available, and to facilitate operation of UAS across international borders. While spectrum is also needed for beyond-line- of-sight (BLOS) C2 links, the initial focus was on radio line-of-sight for civil UAS because demand for LOS links is expected to be greater. B. RTCA OFRSO for UAS, Volume 1 was released in the 2nd Quarter of 2013. • Explanation. The OFRSO “provides recommendations for UAS system level operational and functional requirements and safety objectives for UAS flown in the NAS under the rules and guidelines for civil aviation.” This document provides a framework to support the development of future UAS performance standards. C. RTCA’s initial MOPS for all the UAS subsystems involved in providing or enabling C2 Data Link using L-Band and C-Band Terrestrial data links are available to be verified and validated by the 3rd Quarter of 2015. • Explanation. These preliminary MOPS and associated recommendations for a verification and validation test program are needed for the FAA and industry to mature the final Terrestrial data link standards before the release of the final MOPS. RTCA is expected to define MOPS that include L-Band and C-Band frequencies identified at WRC 2012. The resulting MOPS form the basis upon which the FAA can certify systems and services used in providing C2 capabilities for civil UAS.

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CCM Government Finance & Research Regulating Drone Use 58 D. RTCA final Phase 1 C2 Terrestrial Data Link MOPS released by the 3rd Quarter of 2016. • Explanation. These performance standards in both L-Band and C-Band spectrum are based on the results of the verification and validation test program activities. RTCA is expected to define MOPS that include L-Band and C-Band frequencies identified at WRC 2012. E. FAA’s initial regulations and guidance material (such as TSOs and Advisory Circulars) to enable the production, sale, installation, and maintenance of FAA-certified systems and services used in providing radio LOS C2 capabilities for civil UAS published by 2016–2017. • Explanation. For the commercial marketplace to offer FAA-certified systems and services for use in providing C2 capabilities for civil UAS, the FAA must establish the necessary regulations and guidance material. These are expected to be based on and largely incorporate the consensus industry standards defined in the RTCA MOPS. F. Initial FAA-certified Terrestrial C2 Data Link subsystems intended for civil UAS operations are available commercially. • Explanation. FAA-certified Terrestrial C2 Data Link subsystems for civil UAS are needed for operators and manufacturers to incorporate in their UAS, and for operators to obtain FAA approval for their UAS operations. Goal 2: Beyond-Line-of-Sight C2 links and capabilities are addressed in international agreements, industry standards, and FAA regulations and guidance material. A. International agreement reached at the ITU’s WRC 15 on radio spectrum identified for BLOS UAS C2 links by 2015. • Explanation. Internationally harmonized radio spectrum is needed for UAS C2 links to help ensure their protection from unintentional radio frequency interference, to help ensure adequate spectral bandwidth is available for meeting the projected C2 link capacity demands, and to facilitate operation of UAS across international borders. In the far-term, an increasing number of civil UAS operations are expected to require BLOS C2 links. B. RTCA’s second phase MOPS for all the UAS subsystems involved in providing or enabling radio BLOS C2 capabilities for civil UAS published. These elements will include the necessary portion of avionics onboard the unmanned aircraft, the voice and data links, and the necessary portion of ground control systems. • Explanation. This second phase of MOPS will be needed to provide standards for the use of SATCOM in multiple bands as a C2 Data Link to support UAS. This development will be based on the results of the ITU’s WRC 15 as well as lessons learned from industry application of the initial MOPS during product development and FAA certification activities. C. FAA’s final regulations and guidance material to enable the production, installation, and maintenance of FAA- certified systems and services used in providing radio BLOS C2 capabilities for civil UAS published. • Explanation. A revised set of FAA regulations and guidance material will be needed to address BLOS C2 Data Link systems. These regulations and guidance material will apply lessons learned from application of the initial set.

Appendix C: Goals, Metrics, and Target Dates 57

CCM Government Finance & Research Regulating Drone Use 59 D. Initial FAA-certified BLOS C2 subsystems intended for civil UAS operations are available commercially. • Explanation. FAA-certified BLOS C2 subsystems for civil UAS are needed for operators and manufacturers to incorporate in their UAS, and for operators to obtain FAA approval for their UAS operations. Goal 3: Adequate spectrum is available for both radio LOS and BLOS C2 links to meet the current and projected demand generated by civil UAS operations in the NAS. A. International spectrum identified for LOS and BLOS UAS C2 links reviewed for possible modification at a future WRC by 2020.

C.6 Small UAS (sUAS) and Other Rules Goal 1: sUAS rule adopted to allow for both civil and public operations. A. Agreements (Memorandums of Understanding (MOU), Memorandums of Agreement (MOA), COA, etc.) among the FAA and the DoD, the Department of Homeland Security (DHS), the National Aeronautics and Space Administration (NASA), the National Oceanic and Atmospheric Administration (NOAA), the Department of Justice (DOJ) and other public entities finalized and signed in conjunction with the release of the sUAS Notice of Proposed Rulemaking (NPRM). (The sUAS NPRM is expected to be released in early 2014). • Explanation. The sUAS proposed rule has undergone a risk assessment by the FAA through its Safety Management System (SMS) process. Adopting or applying the provisions of the proposed rule for public operations is necessary and will accelerate NAS integration of sUAS. It will also reduce the number of COAs the FAA will need to process and free up FAA resources to address other time-critical UAS in the NAS integration issues. B. sUAS follow-on night operations experiments and study accepted by the FAA for review by the 3rd Quarter of 2014. • Explanation. NASA completed an initial study at New Mexico State University in 2012. The FAA reviewed the report on this initial study and provided questions and other inputs for inclusion in NASA’s planned follow-on study. The FAA will review the report of these focused experiments and may consider DoD and other night operational data. C. If night operations are deemed as safe as or safer by the FAA, increased night operations for public entities are allowed by the 3rd Quarter of 2015. • Explanation. Public entities are requesting night operations as a means to fully exploit the capability of sUAS. D. D. Drafts of all required consensus standards necessary for the implementation of 14 CFR Part 107 available to the public in conjunction with the release of the sUAS NPRM (currently expected to be released in 2013). • Explanation. More than three years of consensus standard development have occurred. When completed, these standards will provide meaningful guidance to manufacturers and end users for the design, construction, and operation of sUAS. The timely release of the standards will permit industry an opportunity to fully prepare for publication of a final rule, and provide useful guidance to public entities desiring UAS deployment prior to final rule release.

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CCM Government Finance & Research Regulating Drone Use 60 Goal 2: sUAS rule adoption for public and civil operations. A. 14 CFR Part 107 published, consensus-based standards accepted by the FAA, and the FAA able to issue permits to operate in accordance with requirements of the FMRA. • Explanation. In order for operations to be conducted under 14 CFR Part 107, the FAA will issue a Notice of Applicability of referenced consensus-based standards and will be able to issue permits to operate. B. Update sUAS rules, guidance, and/or consensus-based standards after sufficient data have been gathered and analyzed. • Explanation. Assuming a final rule implementation, the FAA will gain experience with sUAS operating under 14 CFR Part 107. Advancements in technology and analysis of operational and safety data will provide the catalyst for refinement and improvement of Part 107 guidance and/or standards. C. Update sUAS rules, guidance, and/or consensus-based standards as necessary. • Explanation. As more operational and safety data is accumulated it will provide a catalyst for refinement and improvement of 14 CFR Part 107 guidance and/or standards as necessary. Goal 3: sUAS rule supports ATC interoperability to ensure safe and efficient NAS operations. A. Train air traffic control workforce within six months after sUAS rule enactment. B. Ensure consistency between sUAS rule proposed operational expectations and proposed changes to ATC Handbook and the Aeronautical Information Manual (AIM). C. sUAS operations are aligned with ATC Handbook and AIM when the sUAS rule is published and effective. D. Employ existing strategies to conduct UAS integration safety analysis within SMS Manual guidance to ongoing safety analyses supporting ATC interoperability. • Explanation. The FAA will enhance ATC interoperability under sUAS rule operations with safety analyses, as required. Goal 4: Other Rulemaking per the FMRA. A. Notice of Proposed Rulemaking published to implement the recommendations of the plan required by FMRA by the 3rd Quarter of 2014. • Explanation. Section 332, subsection (a)(1) of the FMRA specifies plan requirements and subsection (b) requires publication of an NPRM. B. Final rule published to implement the recommendations of the plan required by the FMRA by the 4th Quarter of 2015. • Explanation. Section 332, subsection (a)(1) of the FMRA specifies plan requirements and subsection (b) requires publication of a final rule not later than 16 months after publication of the associated NPRM. C. C. Update to the Administration’s most recent policy statement on unmanned aircraft systems contained in Docket No. FAA–2006–25714 required by the FMRA by the 3rd Quarter of 2014. • Explanation. Section 332, subsection (b) requires publication of this update.

Appendix C: Goals, Metrics, and Target Dates 59

CCM Government Finance & Research Regulating Drone Use 61 C.7 Test Ranges Goal 1: FAA program to integrate UAS into the NAS at six test ranges established in accordance with the FMRA. • Explanation. To establish this program, selection criteria and procedures were developed and communicated to prospective site operators. Test areas criteria consider geographic and climate diversity, the location of ground infrastructure, and research needs. FAA dialogue with prospective site operators clarified criteria and procedures by gathering prospective site operator questions and documenting answers for use by all. Goal 2: Test ranges selected by FAA in accordance with the FMRA. • Explanation. The FAA received applications from prospective site operators in the 1st Quarter of 2013 and is evaluating the applications per the established selection criteria and procedures. Any test range selected should provide the FAA, NASA, DoD, industry and academia with the opportunity for UAS prototype development and deployment. Goal 3: Selected test ranges operational in accordance with the FMRA • Explanation. The FMRA states that “the test range shall be operational no later than 180 days after the date on which a project is established.” Goal 4: Test range program operational until February 2017. • Explanation. The FMRA requires the test range program to be terminated by February 2017. Goal 5: Report findings and conclusions concerning projects in accordance with the FMRA. • Explanation. The FMRA states that “Not later than 90 days after the date of the termination of the program…the Administrator shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure and the Committee on Science, Space, and Technology of the House of Representatives a report setting forth the Administrator’s findings and conclusions concerning the projects.”

C.8 Air Traffic Interoperability Goal 1: Safety and Interoperability—The overall level of safety in the NAS is preserved through NAS integration, which requires adherence to rigorous airworthiness standards and airspace regulations. While they apply equally to manned aircraft, they also recognize the distinguishing characteristics of UAS. A. Conduct research that validates the required functional and performance capabilities for safe operation of UAS within the various airspaces of the NAS from 2012 to 2017. B. Air Traffic interoperability requirements will be allocated to appropriate Air Traffic program and UAS integration efforts from 2012 to 2017. C. Employ existing strategies to conduct UAS integration safety analysis within SMS Manual guidance to ongoing safety analyses supporting ATC interoperability. D. Conduct research on Sense and Avoid algorithms for collision avoidance and self-separation that are interoperable with evolving Next Generation Air Transportation System (NextGen) ATC systems and manned collision avoidance systems.

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CCM Government Finance & Research Regulating Drone Use 62 E. Analyze human factors data to determine the safest technologies and best procedures for air traffic controllers to provide services to UAS pilots. F. Track safety and operational data to use as a basis for policy decisions from 2012 to 2017. Goal 2: Procedures and Training A. Develop ATC training requirements specific to different types of UAS characteristics, including UAS performance, behavior, communications, unique flight profiles, ATC standardized procedures, lost link/ fly away profiles, operating limitations, and emergency procedures. Initial training produced in 2009, first revision to be available in 3rd Quarter of 2013. Subsequent training development will occur through 2020. B. B. Administer UAS training to ATC facilities throughout the NAS from 2013 to 2020.

C.9. Miscellaneous Goal 1: Develop more detailed plans for safely integrating UAS operations in the NAS by 2015. A. UAS ARC reviewed FAA and industry plans, including the 2006 Airspace Integration Plan, in 2012. • Explanation. The 2006 Airspace Integration Plan modified the airspace integration plan developed under the government-industry Access 5 program to more directly address the eight major challenges with UAS integration in the NAS. The UAS ARC will review the 2006 plan and update recommendations consistent with current thinking, including goals and metrics documented in this roadmap. B. UAS ARC made recommendations for changes to FAA and industry programs and provided them to the FAA in the 2nd Quarter of 2013. • Explanation. The UAS ARC completed its review of FAA and related industry plans and sent the FAA recommendations for additional planning elements and details. These recommendations include proposed changes to existing and planned programs. C. Updated FAA UAS Integration Roadmap published annually in accordance with the FMRA. Goal 2: Identify air traffic management system changes required to be implemented in NextGen. A. UAS are addressed in the FAA’s 2012 NextGen Implementation Plan by the 4th Quarter of 2013. • Explanation. This requires explicitly addressing the operation of UAS in the NAS and the evolution of enabling system capabilities in the various NextGen Segment Implementation Plans (NSIP). Although no significant changes to the current NAS and future NextGen are expected for the integration of UAS operations in unrestricted airspace, some system and procedure changes may be necessary. Any changes need to be incorporated in the NextGen Implementation Plan, so that appropriate adjustments to program baselines can be made. B. UAS are addressed in FAA’s NextGen Enterprise Architecture by the 4th Quarter of 2013. • Explanation. This requires explicitly addressing the integration of UAS operations in the NAS, including the necessary operational concepts and system capabilities. The NextGen Enterprise Architecture identifies whatever is needed to integrate UAS operations in unrestricted airspace. The CY 2012 update to the NextGen Enterprise Architecture depicted FMRA milestones in the aircraft roadmap component.

Appendix C: Goals, Metrics, and Target Dates 61

CCM Government Finance & Research Regulating Drone Use 63 Goal 3: Review and revise and/or develop new UAS operational scenarios to mature UAS operational concept elements, update operational requirements, and validate key concept elements for UAS integration into the NAS. A. FAA initiates an effort to review existing UAS operational scenarios/concept elements and revise them and/ or develop new scenarios, if needed, for use in UAS operational concept development per established air traffic system engineering practices by the 1st Quarter of 2014. • Explanation. A rich set of operational scenarios and mature concept elements is needed to develop a complete set of operational requirements, from which system functional and performance requirements can be derived. Off-nominal operations may also be defined for conceivable contingency situations. B. FAA uses vetted operational scenarios and other concept maturation products to update UAS operator and NAS operational requirements by the 3rd Quarter of 2014. • Explanation. This process uses vetted scenarios and other mature concept elements to update and document the set of UAS operator and NAS operational requirements associated with integrating UAS operations into the NAS per established air traffic system engineering analyses and related processes. C. FAA uses vetted operational scenarios, updated UAS operator and NAS requirements and other mature concept elements to validate key concept elements and requirements associated with integrating UAS operations into the NAS. • Explanation. Air traffic system engineering processes continue to validate concept elements and requirements based on priority need for their validation. Concept element validation priorities will determine resource allocations and schedule for validation of respective concept elements. Goal 4: Develop UAS integration in the Arctic Region in accordance with the FMRA A. A. FAA evaluates key operational concepts for potential inclusion into appropriate operational policy and procedures documents (e.g., FAA Order 8900.1 (Flight Standards Information Management System), state Aeronautical Information Publication (AIP) supplements, Notices to Airmen (NOTAM), etc.) by the 2nd Quarter of 2015. B. FAA and Arctic UAS operators examine the costs (e.g., aircraft certification, mandatory equipage requirements, etc.) and benefits (i.e., value of main business cases for use) by the 3rd Quarter of 2015. C. FAA begins Air Traffic Organization (ATO) process to establish UAS Arctic Areas, including airspace designation and DoD notice, by the 3rd Quarter of 2015. D. FAA completes safety studies in accordance with Section 335 of the FMRA by the 3rd Quarter of 2015. (Note: The first safety risk management (SRM) panel for initial projects convened in 2013 and has drafted the associated SRM document.) E. FAA develops UAS restricted category special airworthiness certificate standards by the 3rd Quarter of 2015. F. FAA reviews planning and approval documents (e.g., COA template, FAA Destination 2025, FAA Flight Plan 2012, other FAA/International Civil Aviation Organization (ICAO) documents) and evaluates or adapts their use for Arctic Area operations by 2015.

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 62

CCM Government Finance & Research Regulating Drone Use 64 G. Begin international UAS scientific experiments (Marginal Ice Zone Observations and Processes Experiment (MIZOPEX)) with NASA, NOAA, and the University of Alaska), commercial UAS photography missions, or other expanded use/demonstration of UAS in accordance with the Arctic Plan by the 3rd Quarter of 2013. Goal 5: Develop implementation of Common Strategy for DOJ and associated law enforcement, fire, and first responder agency use of sUAS in the NAS in accordance with the FMRA. Note: Progress on original metrics is documented below along with metrics to be completed. A. FAA began collaboration with the DHS Science and Technology (S&T) Directorate during the 4th Quarter of 2012 to support FAA testing and evaluation program of sUAS for law enforcement and first responders, with high-level suitability criteria. B. FAA formally accepted and signed the MOU with the DOJ National Institute of Justice (NIJ) in the 1st Quarter of 2013. C. FAA established a working group to examine validity of legacy pilot-in-command (PIC) and observer medical qualifications currently stipulated in COA guidelines in the 2nd Quarter of 2013. D. FAA established a liaison with DOJ NIJ and U.S. Fire Administration on the development of common strategies for the deployment of sUAS technologies in support of fire enforcement agencies in the 2nd Quarter of 2013. E. FAA established a working group to examine validity and alternatives to PIC certification requirements established in the 2nd Quarter of 2013. F. FAA established a collaborative working group with DOJ NIJ and federal law enforcement agencies to examine, plan, and develop a nationwide COA process/approval for the Federal Bureau of Investigation, Bureau of Alcohol, Tobacco, Firearms and Explosives, the National Park Service, and other federal law enforcement and emergency management agencies with country-wide jurisdictions in the 2nd Quarter of 2013. G. FAA incorporates key operational concepts of strategy into a revised law enforcement/first responder-specific COA template by the 4th Quarter of 2013. H. FAA establishes a collaborative working group with DOJ NIJ and appropriate law enforcement agencies and trade associations to examine, plan, and develop a COA approval process for law enforcement and first responder mutual aid operations by the 4th Quarter of 2013. I. FAA to establish working group with DOJ NIJ and the DHS S&T on the development of a technical bulletin on the Common Strategy for distribution to law enforcement/first responders across the nation by the 4th Quarter of 2013. J. FAA commences collaboration and coordination with DOJ NIJ and DHS S&T to support the co-hosting of a DOJ/FAA/DHS-focused sUAS conference to be convened in the 4th Quarter of 2013. K. FAA establishes a collaborative working group with DOJ NIJ, DHS and appropriate law enforcement associations to examine, plan, and develop guidelines for any law enforcement agency contemplating the use of unmanned aircraft by the 4th Quarter of 2013.

Appendix Appendix C: Goals, Metrics, and Target Dates 63

CCM Government Finance & Research Regulating Drone Use 65 L. FAA establishes working group with DOJ NIJ on the development of a process for the collection of Unmanned Aircraft Aviation Operations Report data from law enforcement agencies by the 4th Quarter of 2013. M. FAA completes the development of law enforcement and first responder sUAS competency evaluation procedures, safety risk analysis plan (SRAP), and evaluation checklist completed by the 4th Quarter of 2013. N. FAA assists three different-sized law enforcement agencies in first implementation of the Common Strategy – target date coordinated with the agencies and confident timeline for the agencies – 4th Quarter of 2013. • Explanation: FAA assistance is planned for one small agency (i.e., less than 100 sworn officers), one medium agency (i.e., 100 to 300 sworn officers), and one large law enforcement agency (i.e., greater than 300 sworn officers). O. FAA establishes working group to examine sUAS aircraft recommended guidelines for law enforcement agencies contemplating the use of unmanned aircraft by the 4th Quarter of 2013. P. FAA will complete COA online modifications to enable Common Strategy implementation by law enforcement agencies by the 4th Quarter of 2014. Q. FAA reviews planning and approval documents (e.g., unique law enforcement agency COA template, FAA Flight Plan 2012, other FAA/ICAO documents) and modifies or adapts their use for law enforcement agency and first responder sUAS operations by 2015. Goal 6: In accordance with the FMRA, develop policies to ensure “the Administrator of the FAA may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft.” A. Publish FAA order to establish criteria the agency will use to determine which model aircraft organizations can be considered community-based organizations. B. Publish update to Federal Register that compares content of AC 91-57 and the FMRA, provides examples of careless and reckless operations, and makes distinction between modeling and commercial operations. Goal 7: Requirements for the operation of “public unmanned aircraft systems” in the NAS in accordance with the FMRA. A. Develop and implement operational and certification requirements for the operation of “public unmanned aircraft systems” in the NAS by the 4th Quarter of 2015.

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CCM Government Finance & Research Regulating Drone Use 66 Appendix Appendix C: Goals, Metrics, and Target Dates 65

CCM Government Finance & Research Regulating Drone Use 67 Appendix D: FAA Modernization and Reform Act of 2012 Reference Text

Appendix D: FAA Modernization and Reform Act of 2012 Reference Text Subtitle B—Unmanned Aircraft Systems SEC. 331. DEFINITIONS. In this subtitle, the following definitions apply: (1) ARCTIC.—The term ‘‘Arctic’’ means the United States zone of the Chukchi Sea, Beaufort Sea, and Bering Sea north of the Aleutian chain. (2) CERTIFICATE OF WAIVER; CERTIFICATE OF AUTHORIZATION.—The terms ‘‘certificate of waiver’’ and ‘‘certificate of authorization’’ mean a Federal Aviation Administration grant of approval for a specific flight operation. (3) PERMANENT AREAS.—The term ‘‘permanent areas’’ means areas on land or water that provide for launch, recovery, and operation of small unmanned aircraft. (4) PUBLIC UNMANNED AIRCRAFT SYSTEM.—The term ‘‘public unmanned aircraft system’’ means an unmanned aircraft system that meets the qualifications and conditions required for operation of a public aircraft (as defined in section 40102 of title 49, United States Code). (5) SENSE AND AVOID CAPABILITY.—The term ‘‘sense and avoid capability’’ means the capability of an unmanned aircraft to remain a safe distance from and to avoid collisions with other airborne aircraft. (6) SMALL UNMANNED AIRCRAFT.—The term ‘‘small unmanned aircraft’’ means an unmanned aircraft weighing less than 55 pounds. (7) TEST RANGE.—The term ‘‘test range’’ means a defined geographic area where research and development are conducted. (8) UNMANNED AIRCRAFT.—The term ‘‘unmanned aircraft’’ means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft. (9) UNMANNED AIRCRAFT SYSTEM.—The term ‘‘unmanned aircraft system’’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.

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CCM Government Finance & Research Regulating Drone Use 68 SEC. 332. INTEGRATION OF CIVIL UNMANNED AIRCRAFT SYSTEMS INTO NATIONAL AIRSPACE SYSTEM. (a) REQUIRED PLANNING FOR INTEGRATION.— (1) COMPREHENSIVE PLAN.—Not later than 270 days after the date of enactment of this Act, the Secretary of Transportation, in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry, shall develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system. (2) CONTENTS OF PLAN.—The plan required under paragraph (1) shall contain, at a minimum, recommendations or projections on— (A) the rulemaking to be conducted under subsection (b), with specific recommendations on how the rulemaking will— (i) define the acceptable standards for operation and certification of civil unmanned aircraft systems; (ii) ensure that any civil unmanned aircraft system includes a sense and avoid capability; and (iii) establish standards and requirements for the operator and pilot of a civil unmanned aircraft system, including standards and requirements for registration and licensing; (B) the best methods to enhance the technologies and subsystems necessary to achieve the safe and routine operation of civil unmanned aircraft systems in the national airspace system; (C) a phased-in approach to the integration of civil unmanned aircraft systems into the national airspace system; (D) a timeline for the phased-in approach described under subparagraph (C); (E) creation of a safe (F) airspace designation for cooperative manned and unmanned flight operations in the national airspace system; (G) establishment of a process to develop certification, flight standards, and air traffic requirements for civil unmanned aircraft systems at test ranges where such systems are subject to testing; (H) the best methods to ensure the safe operation of civil unmanned aircraft systems and public unmanned aircraft systems simultaneously in the national airspace system; and (I) incorporation of the plan into the annual NextGen Implementation Plan document (or any successor document) of the Federal Aviation Administration.

Appendix 67

CCM Government Finance & Research Regulating Drone Use 69 (3) DEADLINE.—The plan required under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015. (4) REPORT TO CONGRESS.—Not later than 1 year after the date of enactment of this Act, the Secretary shall submit to Congress a copy of the plan required under paragraph (1). (5) ROADMAP.—Not later than 1 year after the date of enactment of this Act, the Secretary shall approve and make available in print and on the Administration’s Internet Web site a 5–year roadmap for the introduction of civil unmanned aircraft systems into the national airspace system, as coordinated by the Unmanned Aircraft Program Office of the Administration. The Secretary shall update the roadmap annually. (b) RULEMAKING.—Not later than 18 months after the date on which the plan required under subsection (a)(1) is submitted to Congress under subsection (a)(4), the Secretary shall publish in the Federal Register— (1) a final rule on small unmanned aircraft systems that will allow for civil operation of such systems in the national airspace system, to the extent the systems do not meet the requirements for expedited operational authorization under section 333 of this Act; (2) a notice of proposed rulemaking to implement the recommendations of the plan required under subsection (a)(1), with the final rule to be published not later than 16 months after the date of publication of the notice; and (3) an update to the Administration’s most recent policy statement on unmanned aircraft systems, contained in Docket No. FAA–2006–25714. (c) PILOT PROJECTS.— (1) ESTABLISHMENT.—Not later than 180 days after the date of enactment of this Act, the Administrator shall establish a program to integrate unmanned aircraft systems into the national airspace system at 6 test ranges. The program shall terminate 5 years after the date of enactment of this Act. (2) PROGRAM REQUIREMENTS.—In establishing the program under paragraph (1), the Administrator shall— (A) safely designate airspace for integrated manned and unmanned flight operations in the national airspace system; (B) develop certification standards and air traffic requirements for unmanned flight operations at test ranges; (C) coordinate with and leverage the resources of the National Aeronautics and Space Administration and the Department of Defense; (D) address both civil and public unmanned aircraft systems; (E) ensure that the program is coordinated with the Next Generation Air Transportation System; and (F) provide for verification of the safety of unmanned aircraft systems and related navigation procedures before integration into the national airspace system. (3) TEST RANGE LOCATIONS.—In determining the location of the 6 test ranges of the program under paragraph (1), the Administrator shall— (A) take into consideration geographic and climatic diversity; (B) take into consideration the location of ground infrastructure and research needs; and (C) consult with the National Aeronautics and Space Administration and the Department of Defense.

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CCM Government Finance & Research Regulating Drone Use 70 (4) TEST RANGE OPERATION.—A project at a test range shall be operational not later than 180 days after the date on which the project is established. (5) REPORT TO CONGRESS.— (A) IN GENERAL.—Not later than 90 days after the date of the termination of the program under paragraph (1), the Administrator shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure and the Committee on Science, Space, and Technology of the House of Representatives a report setting forth the Administrator’s findings and conclusions concerning the projects. (B) ADDITIONAL CONTENTS.—The report under sub-paragraph (A) shall include a description and assessment of the progress being made in establishing special use air-space to fill the immediate need of the Department of Defense— (i) to develop detection techniques for small unmanned aircraft systems; and (ii) to validate the sense and avoid capability and operation of unmanned aircraft systems. (d) EXPANDING USE OF UNMANNED AIRCRAFT SYSTEMS IN ARCTIC.— (1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act, the Secretary shall develop a plan and initiate a process to work with relevant Federal agencies and national and international communities to designate permanent areas in the Arctic where small unmanned aircraft may operate 24 hours per day for research and commercial purposes. The plan for operations in these permanent areas shall include the development of processes to facilitate the safe operation of unmanned aircraft beyond line of sight. Such areas shall enable over-water flights from the surface to at least 2,000 feet in altitude, with ingress and egress routes from selected coastal launch sites. (2) AGREEMENTS.—To implement the plan under paragraph (1), the Secretary may enter into an agreement with relevant national and international communities. (3) AIRCRAFT APPROVAL.—Not later than 1 year after the entry into force of an agreement necessary to effectuate the purposes of this subsection, the Secretary shall work with relevant national and international communities to establish and implement a process, or may apply an applicable process already established, for approving the use of unmanned aircraft in the designated permanent areas in the Arctic without regard to whether an unmanned aircraft is used as a public aircraft, a civil aircraft, or a model aircraft. SEC. 333. SPECIAL RULES FOR CERTAIN UNMANNED AIRCRAFT SYSTEMS. (a) IN GENERAL.—Notwithstanding any other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act. (b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In making the determination under subsection (a), the Secretary shall determine, at a minimum— (1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and

Appendix 69

CCM Government Finance & Research Regulating Drone Use 71 (2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems identified under paragraph (1). (c) REQUIREMENTS FOR SAFE OPERATION.—If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system. SEC. 334. PUBLIC UNMANNED AIRCRAFT SYSTEMS. (a) GUIDANCE.—Not later than 270 days after the date of enactment of this Act, the Secretary of Transportation shall issue guidance regarding the operation of public unmanned aircraft systems to— (1) expedite the issuance of a certificate of authorization process; (2) provide for a collaborative process with public agencies to allow for an incremental expansion of access to the national airspace system as technology matures and the necessary safety analysis and data become available, and until standards are completed and technology issues are resolved; (3) facilitate the capability of public agencies to develop and use test ranges, subject to operating restrictions required by the Federal Aviation Administration, to test and operate unmanned aircraft systems; and (4) provide guidance on a public entity’s responsibility when operating an unmanned aircraft without a civil air-worthiness certificate issued by the Administration. (b) STANDARDS FOR OPERATION AND CERTIFICATION.—Not later than December 31, 2015, the Administrator shall develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system. (c) AGREEMENTS WITH GOVERNMENT AGENCIES.— (1) IN GENERAL.—Not later than 90 days after the date of enactment of this Act, the Secretary shall enter into agreements with appropriate government agencies to simplify the process for issuing certificates of waiver or authorization with respect to applications seeking authorization to operate public unmanned aircraft systems in the national airspace system. (2) CONTENTS.—The agreements shall— (A) with respect to an application described in paragraph (1)— (i) provide for an expedited review of the application; (ii) require a decision by the Administrator on approval or disapproval within 60 business days of the date of submission of the application; and (iii) allow for an expedited appeal if the application is disapproved; (B) allow for a one-time approval of similar operations carried out during a fixed period of time; and (C) allow a government public safety agency to operate unmanned aircraft weighing 4.4 pounds or less, if operated— (i) within the line of sight of the operator; (ii) less than 400 feet above the ground; (iii) during daylight conditions; (iv) within Class G airspace; and

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CCM Government Finance & Research Regulating Drone Use 72 (v) outside of 5 statute miles from any airport, heliport, seaplane base, spaceport, or other location with aviation activities. SEC. 335. SAFETY STUDIES. The Administrator of the Federal Aviation Administration shall carry out all safety studies necessary to support the integration of unmanned aircraft systems into the national airspace system. SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT. (a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if— (1) the aircraft is flown strictly for hobby or recreational use; (2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)). (b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system. (c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is— (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.

Appendix 71

CCM Government Finance & Research Regulating Drone Use 73

Overview of Small UAS Notice of Proposed Rulemaking

Summary of Major Provisions of Proposed Part 107

The following provisions are being proposed in the FAA’s Small UAS NPRM.

Operational Limitations  Unmanned aircraft must weigh less than 55 lbs. (25 kg).  Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the operator or visual observer.  At all times the small unmanned aircraft must remain close enough to the operator for the operator to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses.  Small unmanned aircraft may not operate over any persons not directly involved in the operation.  Daylight-only operations (official sunrise to official sunset, local time).  Must yield right-of-way to other aircraft, manned or unmanned.  May use visual observer (VO) but not required.  First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways.  Maximum airspeed of 100 mph (87 knots).  Maximum altitude of 500 feet above ground level.  Minimum weather visibility of 3 miles from control station.  No operations are allowed in Class A (18,000 feet & above) airspace.  Operations in Class B, C, D and E airspace are allowed with the required ATC permission.  Operations in Class G airspace are allowed without ATC permission  No person may act as an operator or VO for more than one unmanned aircraft operation at one time.  No careless or reckless operations.  Requires preflight inspection by the operator.  A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS.  Proposes a microUAS option that would allow operations in Class G airspace, over people not involved in the operation, provided the operator certifies he or she has the requisite aeronautical knowledge to perform the operation. Operator Certification and  Pilots of a small UAS would be considered “operators”. Responsibilities  Operators would be required to: o Pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center. o Be vetted by the Transportation Security Administration.

CCM Government Finance & Research Regulating Drone Use 74 o Obtain an unmanned aircraft operator certificate with a small UAS rating (like existing pilot airman certificates, never expires). o Pass a recurrent aeronautical knowledge test every 24 months. o Be at least 17 years old. o Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the proposed rule. o Report an accident to the FAA within 10 days of any operation that results in injury or property damage. o Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is safe for operation. Aircraft Requirements  FAA airworthiness certification not required. However, operator must maintain a small UAS in condition for safe operation and prior to flight must inspect the UAS to ensure that it is in a condition for safe operation. Aircraft Registration required (same requirements that apply to all other aircraft).  Aircraft markings required (same requirements that apply to all other aircraft). 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  Proposed rule would not apply to model aircraft that satisfy all of the criteria specified in Section 336 of Public Law 112-95.  The proposed rule would codify the FAA’s enforcement authority in part 101 by prohibiting model aircraft operators from endangering the safety of the NAS.

CCM Government Finance & Research Regulating Drone Use 75 Academy of Model Aeronautics National Model Aircraft Safety Code Effective January 1, 2014 A. GENERAL: A model aircraft is a non-human-carrying aircraft capable of sustained flight in the atmosphere. It may not exceed limitations of this code and is intended exclusively for sport, recreation, education and/or competition. All model flights must be conducted in accordance with this safety code and any additional rules specific to the flying site. 1. Model aircraft will not be flown: (a) In a careless or reckless manner. (b) At a location where model aircraft activities are prohibited. 2. Model aircraft pilots will: (a) Yield the right of way to all human-carrying aircraft. (b) See and avoid all aircraft and a spotter must be used when appropriate. (AMA Document #540-D.) (c) Not fly higher than approximately 400 feet above ground level within three (3) miles of an airport without notifying the airport operator. (d) Not interfere with operations and traffic patterns at any airport, heliport or seaplane base except where there is a mixed use agreement. (e) Not exceed a takeoff weight, including fuel, of 55 pounds unless in compliance with the AMA Large Model Airplane program. (AMA Document 520-A.) (f) Ensure the aircraft is identified with the name and address or AMA number of the owner on the inside or affixed to the outside of the model aircraft. (This does not apply to model aircraft flown indoors.) (g) Not operate aircraft with metal-blade propellers or with gaseous boosts except for helicopters operated under the provisions of AMA Document #555. (h) Not operate model aircraft while under the influence of alcohol or while using any drug that could adversely affect the pilot’s ability to safely control the model. (i) Not operate model aircraft carrying pyrotechnic devices that explode or burn, or any device which propels a projectile or drops any object that creates a hazard to persons or property. Exceptions:  Free Flight fuses or devices that burn producing smoke and are securely attached to the model aircraft during flight.  Rocket motors (using solid propellant) up to a G-series size may be used provided they remain attached to the model during flight. Model rockets may be flown in accordance with the National Model Rocketry Safety Code but may not be launched from model aircraft.  Officially designated AMA Air Show Teams (AST) are authorized to use devices and practices as defined within the Team AMA Program Document. (AMA Document #718.) (j) Not operate a turbine-powered aircraft, unless in compliance with the AMA turbine regulations. (AMA Document #510-A.) 3. Model aircraft will not be flown in AMA sanctioned events, air shows or model demonstrations unless: (a) The aircraft, control system and pilot skills have successfully demonstrated all maneuvers intended or anticipated prior to the specific event. (b) An inexperienced pilot is assisted by an experienced pilot. 4. When and where required by rule, helmets must be properly worn and fastened. They must be OSHA, DOT, ANSI, SNELL or NOCSAE approved or comply with comparable standards. B. RADIO CONTROL (RC) 1. All pilots shall avoid flying directly over unprotected people, vessels, vehicles or structures and shall avoid endangerment of life and property of others. 2. A successful radio equipment ground-range check in accordance with manufacturer’s recommendations will be completed before the first flight of a new or repaired model aircraft. 3. At all flying sites a safety line(s) must be established in front of which all flying takes place. (AMA Document #706.) (a) Only personnel associated with flying the model aircraft are allowed at or in front of the safety line. (b) At air shows or demonstrations, a straight safety line must be established. (c) An area away from the safety line must be maintained for spectators. (d) Intentional flying behind the safety line is prohibited. 4. RC model aircraft must use the radio-control frequencies currently allowed by the Federal Communications Commission (FCC). Only individuals properly licensed by the FCC are authorized to operate equipment on Amateur Band frequencies. 5. RC model aircraft will not knowingly operate within three (3) miles of any pre-existing flying site without a frequency-management agreement. (AMA Documents #922 and #923.) 6. With the exception of events flown under official AMA Competition Regulations, excluding takeoff and landing, no powered model may be flown outdoors closer than 25 feet to any individual, except for the pilot and the pilot's helper(s) located at the flightline. 7. Under no circumstances may a pilot or other person touch an outdoor model aircraft in flight while it is still under power, except to divert it from striking an individual. 8. RC night flying requires a lighting system providing the pilot with a clear view of the model’s attitude and orientation at all times. Hand-held illumination systems are inadequate for night flying operations. 9. The pilot of an RC model aircraft shall: (a) Maintain control during the entire flight, maintaining visual contact without enhancement other than by corrective lenses prescribed for the pilot. (b) Fly using the assistance of a camera or First-Person View (FPV) only in accordance with the procedures outlined in AMA Document #550. (c) Fly using the assistance of autopilot or stabilization system only in accordance with the procedures outlined in AMA Document #560. C. FREE FLIGHT 1. Must be at least 100 feet downwind of spectators and automobile parking when the model aircraft is launched. 2. Launch area must be clear of all individuals except mechanics, officials, and other fliers. 3. An effective device will be used to extinguish any fuse on the model aircraft after the fuse has completed its function. D. CONTROL LINE 1. The complete control system (including the safety thong where applicable) must have an inspection and pull test prior to flying. 2. The pull test will be in accordance with the current Competition Regulations for the applicable model aircraft category. 3. Model aircraft not fitting a specific category shall use those pull-test requirements as indicated for Control Line Precision Aerobatics. 4. The flying area must be clear of all utility wires or poles and a model aircraft will not be flown closer than 50 feet to any above-ground electric utility lines. 5. The flying area must be clear of all nonessential participants and spectators before the engine is started. CCM Government Finance & Research Regulating Drone Use 76 LAW ENFORCEMENT GUIDANCE FOR SUSPECTED UNAUTHORIZED UAS OPERATIONS

Issue

There is evidence of a considerable increase in the unauthorized use of small, inexpensive Unmanned Aircraft Systems (UAS) by individuals and organizations, including companies. The FAA retains the responsibility for enforcing Federal Aviation Regulations, including those applicable to the use of UAS. The agency recognizes though that State and local Law Enforcement Agencies (LEA) are often in the best position to deter, detect, immediately investigate,1 and, as appropriate,2 pursue enforcement actions to stop unauthorized or unsafe UAS operations. The information provided below is intended to support the partnership between the FAA and LEAs in addressing these activities.

Discussion

The general public, a wide variety of organizations, including private sector (e.g., commercial companies), non-governmental (e.g., volunteer organizations), and governmental entities (e.g., local agencies) continue to demonstrate significant interest in UAS. The benefits offered by this type of aircraft are substantial and the FAA is committed to integrating UAS into the National Airspace System (NAS). This introduction, however, must address important safety and security considerations. The increasing number of cases of unauthorized use of UAS is a serious concern for the FAA and, in terms of safety and security challenges, many of its interagency partners.

This document is intended to assist LEAs in understanding the legal framework that serves as the basis for FAA legal enforcement action against UAS operators for unauthorized and/or unsafe UAS operations (Section 1) and to provide guidance regarding the role of LEAs in deterring, detecting, and investigating unauthorized and/or unsafe UAS operations (Section 2).

SECTION 1.

Basic Legal Mandates

The FAA’s safety mandate under 49 U.S.C. § 40103 requires it to regulate aircraft operations conducted in the NAS,3 which include UAS operations, to protect persons and property on the

1 At least in terms of initial contact with the suspected offender. 2 Applying any laws falling within the enforcement authority of the LEA in question. 3 The NAS is “the common network of U.S. airspace; air navigation facilities, equipment and services, airports or landing areas . . . . Included are system components shared jointly with the military.” See FAA Pilot/Controller Glossary (Apr. 3, 2014), available athttp://www.faa.gov/air_traffic/publications/media/pcg_4-03-14.pdf.

CCM Government Finance & Research Regulating Drone Use 77 ground, and to prevent collisions between aircraft and other aircraft or objects. In addition, 49 U.S.C. § 44701(a) requires the agency to promote safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security.4

A UAS is an Aircraft that Must Comply with Safety Requirements

A UAS is an “aircraft” as defined in the FAA’s authorizing statutes and is therefore subject to regulation by the FAA. 49 U.S.C. § 40102(a)(6) defines an “aircraft” as “any contrivance invented, used, or designed to navigate or fly in the air.” The FAA’s regulations (14 C.F.R. § 1.1) similarly 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/device that is invented, used, and designed to fly in the air, it meets the definition of “aircraft.” In addition, on December 16, 2015 the FAA the FAA promulgated an Interim Final Rule (80 Fed. Reg. 78594) that defined Unmanned Aircraft, Model Aircraft, Small Unmanned Aircraft and Small Unmanned Aircraft System in 14 C.F.R. § 1.1. The FAA has promulgated regulations that apply to the operation of all aircraft, whether manned or unmanned, and irrespective of the altitude at which the aircraft is operating. For example, 14 C.F.R. § 91.13 prohibits any person from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another.

Model Aircraft Operations

An important distinction to be aware of is whether the UAS is being operated for hobby or recreational purposes or for some other purpose. This distinction is important because there are specific requirements in the FAA Modernization and Reform Act of 2012, Public Law 112-95, (the Act) that pertain to “Model Aircraft” operations, which are conducted solely for hobby or recreational purposes. While flying model aircraft for hobby or recreational purposes does not require FAA approval, all model aircraft operators must operate safely and in accordance with the law. The FAA provides guidance and information to individual UAS operators about how they can operate safely under current regulations and laws. Guidance may be found at: http://www.faa.gov/uas/publications/model_aircraft_operators/

Section 336(c) of the Act and 14 C.F.R. § 1.1 define “Model Aircraft” as an unmanned aircraft that is –

(1) Capable of sustained flight in the atmosphere; (2) Flown within visual line of sight of the person operating the aircraft; and (3) Flown for hobby or recreational purposes.

Each element of this definition must be met for a UAS to be considered a Model Aircraft under the Act and the regulation. Under Section 336(a) of the Act the FAA is restricted from conducting further rulemaking specific to Model Aircraft as defined in section 336(c) so long

4 FAA action on these security concerns support and are informed by the national defense, homeland security, and law enforcement statutory responsibilities and authorities of our interagency partners.

CCM Government Finance & Research Regulating Drone Use 78 as the Model Aircraft operations are conducted in accordance with the requirements of section 336(a). Section 336(a) requires that—

(1) The aircraft is flown strictly for hobby or recreational use; (2) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) The aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; (4) The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

Model Aircraft that Operate in a Careless or Reckless Manner

Section 336(b) of the Act, however, makes clear that the FAA has the authority under its existing regulations to pursue legal enforcement action against persons operating Model Aircraft when the operations endanger the safety of the NAS, even if they are operating in accordance with section 336(a) and 336(c). So, for example, a Model Aircraft operation conducted in accordance with section 336(a) and (c) may be subject to an enforcement action for violation of 14 C.F.R. § 91.13 if the operation is conducted in a careless or reckless manner so as to endanger the life or property of another.

UAS Operations that are not Model Aircraft Operations

Operations of UAS that are not Model Aircraft operations as defined in section 336(c) of the Act and conducted in accordance with section 336(a) of the Act may only be operated with specific authorization from the FAA. The FAA currently authorizes non-hobby or recreational UAS operations through one of three avenues:

(1) The issuance of a Certificate of Waiver or Authorization, generally to a governmental entity operating a public aircraft; (2) The issuance of an airworthiness certificate in conjunction with the issuance of a Certificate of Waiver or Authorization; or (3) The issuance of an exemption under part 11 of title 14, Code of Federal Regulations that relies on section 333 (Special Rules for Certain Unmanned Aircraft Systems) of the Act for relief from the airworthiness certificate requirement, also in conjunction with the issuance of a Certificate of Waiver or Authorization.

CCM Government Finance & Research Regulating Drone Use 79 It is important to understand that all UAS operations that are not operated as Model Aircraft under section 336 of the Act are subject to current and future FAA regulation. At a minimum, any such flights are currently required under the FAA’s regulations to be operated with an authorized aircraft (certificated or exempted), with a valid registration number (“N-number”), with a certificated pilot, and with specific FAA authorization (Certificate of Waiver or Authorization).

Regardless of the type of UAS operation, the FAA’s statutes and the Federal Aviation Regulations prohibit any conduct that endangers individuals and property on the surface, other aircraft, or otherwise endangers the safe operation of other aircraft in the NAS. In addition, States and local governments are enacting their own laws regarding the operation of UAS, which may mean that UAS operations may also violate state and local laws specific to UAS operations, as well as broadly applicable laws such as assault, criminal trespass, or injury to persons or property.

UAS Compliance with Airspace Security Requirements

As an aircraft, UAS operations (including those involving Model Aircraft) must be conducted in accordance with the airspace-centric security requirements prescribed by the FAA’s regulations and various implementation tools used by the FAA, specifically including airspace with special flight rules and Notices to Airmen (NOTAM) that define Temporary Flight Restrictions (TFR). It is important that UAS operators and LEAs be familiar with the airspace restrictions respectively relevant to their operations and their enforcement area of responsibility.

Flight restrictions are used to protect, but are not limited to, special security events, sensitive operations (e.g., select law enforcement activity, space flight operations, etc.), and Presidential movement. The most up-to-date list of TFRs is available at www.tfr.faa.gov.

See Attachment A for reference resources.5

UAS Registration Requirements

All unmanned aircraft over 0.55 pounds and less than 55 pounds that are components of Small Unmanned Aircraft Systems (sUAS)6 and operated as Model Aircraft in the NAS must be registered with the FAA. sUAS operated exclusively as Model Aircraft (as defined in sec. 336(c) of Public Law 112-95 and 14 C.F.R. § 1.1) must be registered under either 14 C.F.R. Part 47 or Part 48.7 Those purchased on or after December 21, 2015, and used exclusively as model aircraft must be registered prior to operating in the NAS. UAS that have been operated in the NAS by the current owner, and used exclusively as model aircraft prior to December 21, 2015, must be registered by February 19, 2015.

5 Attachment A also includes a NOTAM concerning avoidance (including no loitering) over power plants, dams, refineries, industrial complexes, and military facilities. Although not a restriction, this TFR urges aircraft operators to avoid these locations. 6 Small Unmanned Aircraft Systems (sUAS) are defined in 14 C.F.R. § 1.1 as a small unmanned aircraft and its associated elements (including communication links and the components that control the small unmanned aircraft) that are required for the safe and efficient operation of the small unmanned aircraft in the national airspace system. 7 14 CFR part 47 is the legacy system by which aircraft owners use a paper based process to register aircraft. An alternative process for registration and marking of small unmanned aircraft was established under 14 CFR part 48.

CCM Government Finance & Research Regulating Drone Use 80 sUAS currently operating under a COA or an exemption, such as public aircraft or those operating for commercial use, must continue to be registered under the provisions of 14 CFR Part 47. Beginning on March 31, 2016, owners of UAS operated for purposes other than hobby or recreation may also register sUAS under Part 48.

The FAA will issue a unique registration number that must be placed on the UAS so that it is readily visible (this may be inside a battery compartment provided no tools are needed to open the compartment). This number will be unique to the operator if operating strictly for hobby purposes, and unique to the aircraft if operating for purposes other than hobby. The operator of the UAS must carry a Certificate of Aircraft Registration and make it available to law enforcement upon request. Operators may verify registration by carrying a paper copy or by showing an electronic registration.

SECTION 2.

The Role of Law Enforcement

The FAA promotes voluntary compliance by educating individual UAS operators about how they can operate safely under current regulations and laws. The FAA also has a number of enforcement tools available including warning notices, letters of correction, and civil penalties. The FAA may take enforcement action against anyone who conducts an unauthorized UAS operation or operates a UAS in a way that endangers the safety of the national airspace system. This authority is designed to protect users of the airspace as well as people and property on the ground.

However, as noted above, State and local Law Enforcement Agencies (LEA) are often in the best position to deter, detect, immediately investigate,8 and, as appropriate,9 pursue enforcement actions to stop unauthorized UAS operations. Although the FAA retains the responsibility for enforcing FAAs regulations, FAA aviation safety inspectors, who are the agency’s principal field elements responsible for following up on these unauthorized and/or unsafe activities, will often be unable to immediately travel to the location of an incident.

While the FAA must exercise caution not to mix criminal law enforcement with the FAA’s administrative safety enforcement function, the public interest is best served by coordination and fostering mutual understanding and cooperation between governmental entities with law enforcement responsibilities. Although there are Federal criminal statutes that may be implicated by some UAS operations (see e.g., 49 U.S.C. § 46307), most violations of the FAA’s regulations may be addressed through administrative enforcement measures. As with any other civil or criminal adjudication, successful enforcement will depend on development of a complete and accurate factual report contemporaneous with the event.

Although certainly not an exhaustive list, law enforcement officials, first responders and others can provide invaluable assistance to the FAA by taking the actions outlined below:

8 At least in terms of initial contact with the suspected offender. 9 Applying any laws falling within the enforcement authority of the LEA in question.

CCM Government Finance & Research Regulating Drone Use 81 (1) Witness Identification and Interviews. Local law enforcement is in the best position to identify potential witnesses and conduct initial interviews, documenting what they observed while the event is still fresh in their minds. In addition, local law enforcement is in an optimum position to secure all information necessary for our safety inspectors to contact these witnesses in any subsequent FAA investigation. Administrative proceedings often involve very technical issues; therefore, we expect our own safety inspectors will need to re-interview most witnesses. We are mindful that in many jurisdictions, state law may prohibit the transmission of witness statements to third parties, including the FAA. In those circumstances it is extremely important that the FAA be able to locate and conduct independent interviews of these individuals. (2) Identification of Operators. Law enforcement is in the best position to contact the suspected operators of the aircraft, and any participants or support personnel accompanying the operators. The FAA has previously exercised enforcement discretion in not requiring persons to register sUAS used exclusively as model aircraft, so educating the community on these requirements will be an ongoing process. We continue to identify operators engaged in commercial operations who have not received authorization from the FAA to do so. However, in our enforcement proceedings, we bear the burden of proof, and showing who actually is operating the unmanned aircraft is critical. Therefore, evidentiary thresholds must be met even when using data or video acquired via the internet. Likewise, the purpose for the operation (such as in support of a commercial venture, to further some business interest, or to secure compensation for their services) may become an important element in determining what regulations, if any, may have been violated by the operation. Identification and interview of suspected operators early on will help immeasurably to advance enforcement efforts. (3) Viewing and Recording the Location of the Event. Pictures taken in close proximity to the event are often helpful in describing light and weather conditions, any damage or injuries, and the number and density of people on the surface, particularly at public events or in densely populated areas. During any witness interviews, use of fixed landmarks that may be depicted on maps, diagrams or photographs immeasurably help in fixing the position of the aircraft, and such landmarks also should be used as a way to describe lateral distances and altitude above the ground, structures or people (e.g. below the third floor of Building X, below the top of the oak tree located Y, anything that gives reference points for lay witnesses). (4) Identifying Sensitive Locations, Events, or Activities. The FAA maintains a variety of security-driven airspace restrictions around the country to help protect sensitive locations, events, and activities through Temporary Flight Restrictions (TFR), Prohibited Areas, and other mechanisms such as the Washington, DC Flight Restricted Zone (DC FRZ). UAS operations, including Model Aircraft flights, are generally prohibited within these defined volumes of airspace. LEAs should become familiar with the steady-state airspace restrictions active within their area of responsibility, along with as-needed TFRs, which could be instituted to help protect sensitive events (e.g., major gatherings of elected officials) and activities

CCM Government Finance & Research Regulating Drone Use 82 (e.g., Presidential movements). If there is any question as to whether a TFR has been established in a given location, contact the nearest air traffic facility or flight service station for further information or visit http://tfr.faa.gov/tfr2/list.html for a graphic representation of TFRs locatable by state and effective dates. (5) Notification. Immediate notification of an incident, accident or other suspected violation to one of the FAA Regional Operation Centers (ROC) located around the country is valuable to the timely initiation of the FAA’s investigation. These centers are manned 24 hours a day, 7 days a week with personnel who are trained in how to contact appropriate duty personnel during non-business hours when there has been an incident, accident or other matter that requires timely response by FAA employees. A list of these centers and telephone numbers is included as Attachment B to this letter. FAA Law Enforcement Assistance Program (LEAP) Special Agents are also available to provide investigation support. LEAP Special Agent contact information is included as Attachment C to this letter. (6) Evidence Collection. Identifying and preserving any public or private security systems that may provide photographic or other visual evidence of UAS operations, including video or still picture security systems can provide essential evidence to the FAA. Many times these systems do not permanently store information but erase it as the system recycles at a given interval. Local law enforcement is in the best position to inquire and make initial requests to identify and preserve this form of evidence or obtain legal process for securing this evidence in the context of an investigation of a possible violation of state criminal law. In addition, some UAS may be marked with identification numbers (“N-numbers”) signifying FAA registration under a commercial or governmental authorization. All other UAS weighing greater than 0.55 pounds and operated for hobby or recreational purposes are required to be marked with a registration number assigned to the owner. The presence or lack of these identification numbers may be significant in an FAA investigation. For example, an operator may state that he or she is conducting an approved commercial activity, which usually requires registered aircraft. However, the absence of registration markings on the UAS may indicate that the aircraft is not registered, meaning the operation may not be authorized. Note that identification numbers may not be conspicuous from a distance because of the size and non- traditional configuration of some UAS. The registered owners of UAS operating under an approved commercial or governmental authorization bearing identification numbers can be found by searching for the N-number on the FAA’s website: www.faa.gov. Hobby UAS greater than 0.55 pounds must be marked with a registration number and the operator must provide evidence of registration upon request by law enforcement. These numbers can be verified by contacting an FAA Regional Operations Center, the Washington Operations Center or your FAA LEAP Special Agent.

Virtually all of the items listed above are already in the tool box for law enforcement officers. Other investigative methods also may prove useful, such as consensual examination of the UAS, equipment trailers and the like. However, other law enforcement processes, such as arrest and detention or non-consensual searches almost always fall outside of the allowable methods to pursue administrative enforcement actions by the FAA unless they are truly a by-

CCM Government Finance & Research Regulating Drone Use 83 product of a state criminal investigation. We do not mean to discourage use of these methods and procedures where there is an independent basis for them under state or local law. We simply wish to emphasize that work products intended for FAA use generally should involve conventional administrative measures such as witness interviews, “stop and talk” sessions with suspected violators, consensual examination of vehicles and equipment, and other methods that do not involve court orders or the potential use of force by law enforcement personnel.

It is extremely difficult to provide a “one size fits all” guide to cooperative investigation of unauthorized UAS operations considering the myriad jurisdictions and the associated statutory and constitutional restraints and requirements. State and local officials are always urged to use their governmental unit’s legal resources and their own management chain to develop acceptable protocols for dealing with these instances. In some situations, there may be legal bars to the sharing of some information or the use of databases designed for conventional law enforcement. However, with appropriate data collection during first responses and early reporting to the FAA, Federal, State and local agencies will be in the best position to both collect and share information that may be of interest to each jurisdiction. FAA aviation safety inspectors are adept at coordination with our own legal resources to ensure unauthorized operators are properly accountable for the potential risk they create to both people and property. In addition, we have specially trained inspectors within the FAA UAS Integration office who can provide expertise in this area.

If you have any questions or your agency would like to pursue advance planning on how to address these situations, please feel free to contact your local FAA Law Enforcement Assistance Special Agent or the FAA’s Law Enforcement Assistance Program Office at (202) 267-4641 or (202) 267-9411.

CCM Government Finance & Research Regulating Drone Use 84 The following 2013-2016 lists and summaries of drones laws was published by the National Conference of State Legislatures (NCSL). http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx 2013 State Level Drone Legislation

According to the National Conference of State Legislatures (NCSL), 43 states considered legislation related to drones in the 2013 legislative session resulting in 13 states passing 16 pieces of legislation.

List and Summary of UAS/Drone laws that were passed during the 2013 Session.

1. Florida: SB 92 defines what a drone is and limits their use by law enforcement. Under this legislation, law enforcement may use a drone if they obtain a warrant, there is a terrorist threat, or “swift action” is needed to prevent loss of life or to search for a missing person. The law also enables someone harmed by an inappropriate use of drones to pursue civil remedies and prevents evidence gathered in violation of this code from being admitted in any Florida court. 2. Hawaii: SB 1221 appropriates $100,000 in funds for two staff positions, contracted through the University of Hawaii, to plan for the creation of three degree and training programs on advanced aviation. One of the programs is a professional unmanned aircraft systems pilot program administered through Hawaii Community College. 3. Idaho: Became the second state to enact a drone law on April 11, 2013. SB 1134 defines an “Unmanned Aircraft System,” requires warrants for their use by law enforcement, establishes guidelines for their use by private citizens and provides civil penalties for damages caused by improper use. 4. Illinois: has enacted two new laws in 2013. Both measures define "drone" as any aerial vehicle that does not carry a human operator. Illinois HB 1652 prohibits anyone from using a drone to interfere with hunters or fisherman. SB 1587 allows drones to be used by law enforcement with a warrant, to counter a terrorist attack, to prevent harm to life or to prevent the imminent escape of a suspect among other situations. If a law enforcement agency uses a drone, the agency must destroy all information gathered by the drone within 30 days, except that a supervisor at the law enforcement agency may retain particular information if there is reasonable suspicion it contains evidence of criminal activity. The law also requires the Illinois Criminal Justice Information Authority (CJIA) to report on its website every law enforcement agency that owns a drone and the number they own. Each law enforcement agency is responsible for giving this information to the Illinois CJIA. 5. Maryland: HB 100 appropriated $500,000 for the state’s unmanned aerial system test site. 6. Montana: SB 196 limits when information gained from the use of unmanned aerial vehicles may be admitted as evidence in any prosecution or proceeding within the state. The information can be used when it was obtained pursuant to a search warrant, or through a judicially recognized exception to search warrants. The new law defines “unmanned aerial vehicle” as “an aircraft that is operated without direct human intervention from on or within the aircraft,” not including satellites. 7. Nevada: AB 507 appropriated $4,000,000 to the interim Finance Committee for allocation to the Governor's Office of Economic Development for the Unmanned Aerial Vehicle (UAV) program. The funds can only be appropriated if Nevada is selected as a Federal Aviation Administration test site. 8. North Carolina: SB 402 places a moratorium on UAS use by state and local personnel unless the use is approved by the Chief Information Officer for the Department of CCM Government Finance & Research Regulating Drone Use 85 Transportation (CIO). Any CIO granted exception has to be reported immediately to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division. The CIO may determine that there is a need to develop a UAS program within the State of North Carolina. This effort must include the CIO and the Department of Transportation Aviation Division Director. 9. North Dakota: SB 2018 grants $1 million from the state general fund to pursue designation as a Federal Aviation Administration unmanned aircraft systems test site. If selected, the law would grant an additional $4 million to operate the site. 10. Oregon: HB 2710 defines a drone as an unmanned flying machine, not including model aircraft. The law allows a law enforcement agency to operate a drone if it has a warrant and for enumerated exceptions including for training purposes. It also requires that a drone operated by a public body be registered with the Oregon Department of Aviation (DOA), which shall keep a registry of drones operated by public bodies. The law grants the DOA rulemaking authority to implement these provisions. It also creates new crimes and civil penalties for mounting weapons on drones and interfering with or gaining unauthorized access to public drones. Under certain conditions a landowner can bring an action against someone flying a drone lower than 400 feet over their property. The law also requires that the DOA must report to legislative committees on the status of federal regulations and whether UAV’s operated by private parties should be registered in a manner similar to the requirement for other aircraft. 11. Tennessee: SB 796 addresses the use of drones by law enforcement. The new law enables law enforcement to use drones in compliance with a search warrant, to counter a high-risk terrorist attack and if swift action is needed to prevent imminent danger to life. Evidence obtained in violation of this law is not admissible in state criminal prosecutions. Additionally, those wronged by such evidence can seek civil remedy. 12. Texas: HB 912 enumerates 19 lawful uses for unmanned aircraft, including their use in airspace designated as an FAA test site, their use in connection with a valid search warrant and their use in oil pipeline safety and rig protection. The law creates two new crimes, the illegal use of an unmanned aircraft to capture images and the offense of possessing or distributing the image; both offenses are class C misdemeanors. “Image” is defined in the law as any sound wave, thermal, ultraviolet, visible light or other electromagnetic waves, odor, or other conditions existing on property or an individual located on the property. Additionally, the measure requires the Department of Public Safety to adopt rules for use of UAS by law enforcement and mandates that law enforcement agencies in communities of over 150,000 people make annual reports on their use. Texas HCR 217 altered reporting requirements from the original HB 912. 13. Virginia: enacted the first state drone laws in the country with the passage of HB 2012 and SB 1331 on April 3, 2013. The new laws prohibit drone use by any state agencies “having jurisdiction over criminal law enforcement or regulatory violations” or units of local law enforcement until July 1, 2015. Numerous exceptions to the ban are enumerated including enabling officials to deploy drones for Amber Alerts, Blue Alerts and use by the National Guard, by higher education institutions and search and rescue operations. The enacted bills also require the Virginia Department of Criminal Justice Services and other state agencies to research and develop model protocols for drone use by law enforcement in the state. They are required to report their findings to the General Assembly and governor by Nov. 1, 2013.

CCM Government Finance & Research Regulating Drone Use 86 2014 State Level Drone Legislation According to the National Conference of State Legislatures (NCSL), 35 states considered legislation related to drones in the 2014 legislative session resulting in 10 states passing 12 pieces of legislation.

List and Summary of UAS/Drone laws that were passed during the 2014 Session. 1. Alaska: enacted HB 255 creating procedures and standards for law enforcement’s use of unmanned aircraft, as well as, regulations for the retention of information collected with UAS. It requires law enforcement agencies to adopt procedures that ensure: the appropriate Federal Aviation Administration flight authorization is obtained; UAS operators are trained and certified; a record of all flights are kept and there is an opportunity for community involvement in the development of the agencies’ procedures. Under the law, police may use UAS pursuant to a search warrant, pursuant to a judicially recognized exception to the warrant requirement and in situations not involving a criminal investigation. Images captured with UAS may be retained by police under the law for training purposes or if it is required as part of an investigation or prosecution. The law also authorizes the University of Alaska to develop a training program for operating UAS. The state senate also adopted a resolution HCR 15 to extend the operating time and expand the duties of the state UAS task force. 2. Illinois: enacted SB 2937 creating regulations for how law enforcement can obtain and use information gathered from a private party’s use of UAS. The law requires police to follow warrant protocols to compel third parties to share information, and if the information is voluntarily given to police, authorities are required to follow the state’s law governing UAS data retention and disclosure. The law also loosens regulations around law enforcement’s use of UAS during a disaster or public health emergency. 3. Indiana: is the first state to enact a UAS law in 2014. HB 1009 creates warrant requirements and exceptions for the police use of unmanned aircraft and real time geo- location tracking devices. It also prohibits law enforcement from compelling individuals to reveal passwords for electronic devices without a warrant. If law enforcement obtains information from an electronic service provider pursuant to a warrant, the provider is immune from criminal or civil liability. The law provides that if police seek a warrant to compel information from media entities and personnel, then those individuals must be notified and given the opportunity to be heard by the court concerning issuance of the warrant. The new law also creates the crime of "Unlawful Photography and Surveillance on Private Property," making it a Class A misdemeanor. This crime is committed by a person who knowingly and intentionally electronically surveys the private property of another without permission. The law also requests that the state's legislative council study digital privacy during the 2014 interim. 4. Iowa: enacted HF 2289, making it illegal for a state agency to use a UAS to enforce traffic laws. The new law requires a warrant, or other lawful means, to use information obtained with UAS in a civil or criminal court proceeding. It also requires the department of public safety to develop guidelines for the use of UAS and to determine whether changes to the criminal code are necessary. The department must report on their findings to the general assembly by Dec. 31, 2014.

CCM Government Finance & Research Regulating Drone Use 87 5. Louisiana: enacted HB 1029, creating the crime of unlawful use of an unmanned aircraft system. The new law defines the unlawful use of an unmanned aircraft system as the intentional use of a UAS to conduct surveillance of a targeted facility without the owner’s prior written consent. The crime is punishable by a fine of up to 500 dollars and imprisonment for six months. A second offense can be punished by a fine up to 1000 dollars and one year imprisonment. 6. North Carolina: enacted SB 744 creating regulations for the public, private and commercial use of UAS. The new law prohibits any entity from conducting UAS surveillance of a person or private property and also prohibits taking a photo of a person without their consent for the purpose of distributing it. The law creates a civil cause of action for those whose privacy is violated. In addition, the law authorizes different types of infrared and thermal imaging technology for certain commercial and private purposes including the evaluation of crops, mapping, scientific research and forest management. Under the law, the state Division of Aviation is required to create a knowledge and skills test for operating unmanned aircraft. All agents of the state who operate UAS must pass the Division’s knowledge and skills test. The law enables law enforcement to use UAS pursuant to a warrant, to counter an act of terrorism, to oversee public gatherings, or gather information in a public space. The bill creates several new crimes: using UAS to interfere with manned aircraft, a class H felony; possessing an unmanned aircraft with an attached weapon, a class E felony; the unlawful fishing or hunting with UAS, a class 1 misdemeanor; harassing hunters or fisherman with a UAS, a class 1 misdemeanor; unlawful distribution of images obtained with a UAS, a class 1 misdemeanor for; and operating a UAS commercially without a license, a class 1 misdemeanor. The law addresses launch and recovery sites of UAS, prohibiting their launch or recovery from any State or private property without consent. In addition the law extends the state’s current regulatory framework, administered by the chief information officer, for state use of UAS from July to December 31, 2015. 7. Ohio: enacted HB 292 creating the aerospace and aviation technology committee. One of the committee’s duties is to research and develop aviation technology including unmanned aerial vehicles. 8. Tennessee: has enacted two new laws in 2014. The first, SB 1777, makes it a class C misdemeanor for any private entity to use a drone to conduct video surveillance of a person who is hunting or fishing without their consent. SB 1892 makes it a Class C misdemeanor for a person to use UAS to intentionally conduct surveillance of an individual or their property. It also makes it a crime to possess those images (Class C Misdemeanor) or distribute and otherwise use them (Class B Misdemeanor). The law also identifies 18 lawful uses of UAS, including the commercial use of UAS under FAA regulations, professional or scholarly research and for use in oil pipeline and well safety. 9. Utah: enacted SB 167, regulating the use of UAS by state government entities. A warrant is now required for a law enforcement agency to “obtain, receive or use data” derived from the use of UAS. The law also establishes standards for when it is acceptable for an individual or other non-governmental entity to submit data to law enforcement. The new law provides standards for law enforcement’s collection, use, storage, deletion and maintenance of data. If a law enforcement agency uses UAS, the measure requires that agency submit an annual report on their use to the Department of Public Safety and also

CCM Government Finance & Research Regulating Drone Use 88 to publish the report on the individual agency’s website. The new law notes that it is not intended to “prohibit or impede the public and private research, development or manufacture of unmanned aerial vehicles.” 10. Wisconsin: enacted SB 196, requiring law enforcement to obtain a warrant before using drones in a place where an individual has a reasonable expectation of privacy. The law also creates two new crimes; “possession of a weaponized drone” and “use of a drone.” Use of a drone creates a class A misdemeanor for a person who, with intent, observes another individual in a place where they have a reasonable expectation of privacy. Possession of a weaponized drone is a class H felony.

CCM Government Finance & Research Regulating Drone Use 89 2015 State Level Drone Legislation

According to the National Conference of State Legislatures (NCSL) 45 states considered 168 bills related to drones resulting in 20 states passing 26 pieces of legislation during the 2015 legislative session.

List and Summary of UAS/Drone laws that were passed during the 2015 Session. 1. Arkansas: HB 1349 prohibits the use of UAS to commit voyeurism. HB 1770 prohibits the use of UAS to collect information about or photographically or electronically record information about critical infrastructure without consent. 2. California: AB 856 prohibits entering the airspace of an individual in order to capture an image or recording of that individual engaging in a private, personal, or familial activity without permission. This legislation is a response to the use of UAS by the paparazzi. 3. Florida: SB 766 prohibits the use of a drone to capture an image of privately owned property or the owner, tenant, or occupant of such property without consent if a reasonable expectation of privacy exists. 4. Hawaii: SB 661 creates a chief operating officer position for the Hawaii unmanned aerial systems test site. It also establishes an unmanned aerial systems test site advisory board to plan and oversee test site development and appropriates funds to establish the test site. 5. Illinois: SB 44 creates a UAS Oversight Task Force which is tasked with considering commercial and private use of UAS, landowner and privacy rights and general rules and regulations for the safe operation of UAS. The task force will prepare recommendations for the use of UAS in the state. 6. Louisiana: SB 183 regulates the use of UAS in agricultural commercial operations. 7. Maine: LD 25 requires law enforcement agencies receive approval before acquiring UAS. The bill also specifies that the use of UAS by law enforcement comply with all FAA requirements and guidelines. Requires a warrant to use UAS for criminal investigations except in certain circumstances and sets out standards for the operation of UAS by law enforcement. 8. Maryland: SB 370 specifies that only the state can enact laws to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems. This preempts county and municipal authority. The bill also requires a study on specified benefits. 9. Michigan: SB 54 prohibits using UAS to interfere with or harass an individual who is hunting. SB 55 prohibits using UAS to take game. 10. Mississippi: SB 2022 specifies that using a drone to commit "peeping tom" activities is a felony. 11. Nevada: AB 239 includes UAS in the definition of aircraft and regulates the operators of UAS. It also prohibits the weaponization of UAS and prohibits the use of UAS within a certain distance of critical facilities and airports without permission. The bill specifies certain restrictions on the use of UAS by law enforcement and public agencies and requires the creation of a registry of all UAS operated by public agencies in the state. 12. New Hampshire: SB 222 prohibits the use of UAS for hunting, fishing, or trapping.

CCM Government Finance & Research Regulating Drone Use 90 13. North Carolina: SB 446 expands the authority of the state's Chief Information Officer to approve the purchase and operation of UAS by the state and modifies the state regulation of UAS to conform to FAA guidelines. 14. North Dakota: HB 1328 provides limitations for the use of UAS for surveillance. 15. Oregon HB 2534 requires the development of rules prohibiting the use of UAS for angling, hunting, trapping, or interfering with a person who is lawfully angling, trapping, or hunting. HB 2354 changes the term "drone" to "unmanned aircraft system" in statute. 16. Tennessee: HB 153 prohibits using a drone to capture an image over certain open-air events and fireworks displays. It also prohibits the use of UAS over the grounds of a correctional facility. 17. Texas: HB 3628 permits the creation of rules governing the use of UAS in the Capitol Complex and provides that a violation of those rules is a Class B misdemeanor. HB 2167 permits individuals in certain professions to capture images used in those professions using UAS as long as no individual is identifiable in the image. HB 1481 makes it a Class B misdemeanor to operate UAS over a critical infrastructure facility if the UAS is not more than 400 feet off the ground. 18. Utah: HB 296 allows a law enforcement agency to use an unmanned aircraft system to collect data at a testing site and to locate a lost or missing person in an area in which a person has no reasonable expectation of privacy. It also institutes testing requirements for a law enforcement agency's use of an unmanned aircraft system. 19. Virginia: HB 2125 and SB 1301 require that a law enforcement agency obtain a warrant before using a drone for any purpose, except in limited circumstances. Virginia's governor also issued an executive order establishing a commission on unmanned systems. 20. West Virginia: HB 2515 prohibits hunting with UAS.

CCM Government Finance & Research Regulating Drone Use 91 2016 State Level Drone Legislation According to the National Conference of State Legislatures (NCSL), 41 states considered legislation related to drones in the 2016 legislative session resulting in 10 states passing 14 pieces of legislation.

List and Summary of UAS/Drone laws that were passed during the 2016 Session. 1. Arizona: SB 1449 prohibits certain operation of UAS, including operation in violation of FAA regulations and operation that interferes with first responders. The law prohibits operating near, or using UAS to take images of, a critical facility. It also preempts any locality from regulating UAS. 2. Idaho: SB 1213 prohibits the use of UAS for hunting, molesting or locating game animals, game birds and furbearing animals. 3. Indiana: HB 1013 allows the use of UAS to photograph or take video of a traffic crash site. HB 1246 prohibits the use of UAS to scout game during hunting season. 4. Kansas: SB 319 expands the definition of harassment in the Protection from Stalking Act to include certain uses of UAS. 5. Oklahoma: HB 2599 prohibits the operation of UAS within 400 feet of a critical infrastructure facility, as defined in the law. 6. Oregon: HB 4066 modifies definitions related UAS and makes it a class A misdemeanor to operate a weaponized UAS. It also creates the offense of reckless interference with an aircraft through certain uses of UAS. The law regulates the use of drones by public bodies, including requiring policies and procedures for the retention of data. It also prohibits the use of UAS near critical infrastructure, including correctional facilities. SB 5702 specifies the fees for registration of public UAS. 7. Tennessee: SB 2106 creates the crime of using a drone to fly within 250 feet of a critical infrastructure facility for the purpose of conducting surveillance or gathering information about the facility. HB 2376 clarifies that it is permissible for a person to use UAS on behalf of either a public or private institution of higher education, rather than just public institutions. 8. Utah: HB 126 makes it a class B misdemeanor to operate a UAS within a certain distance of a wildfire. It becomes a class A misdemeanor if the UAS causes an aircraft fighting the wildfire to drop a payload in the wrong location or to land without dropping the payload. It is a third degree felony if the UAS crashes into a manned aircraft and a second degree if that causes the manned aircraft to crash. 9. Virginia: HB 412 prohibits the regulation of UAS by localities. 10. Wisconsin: SB 338 prohibits using a drone to interfere with hunting, fishing or trapping. AB 670 prohibits the operation of UAS over correctional facilities.

CCM Government Finance & Research Regulating Drone Use 92 Use and Regulation of Drones by Local Government Entities & Schools: Thoughts for Public Entity Pools

Introduction The public sector is actively engaged in conversation about use and regulation of, and associated risks related to, drones (more broadly referred to as Unmanned Aerial Systems or UAS). Public entity pools are considering implications of drone use by local governments, schools, and other local public entities, whether that use is direct, by contract with a third party vendor, or through partnership with another public entity.

Potential pool implications of a members’ use or regulation of drones include coverage considerations, risk management guidelines, reinsurance considerations, and more. Commercial insurers are also evaluating these risks and responses, and much can be learned from monitoring commercial insurance market solutions.

Our intent is to provide a starting context and outline issues relative to drones, in particular as they relate to public entities pools and their members. Throughout this document we provide links to known reference materials about drone issues. This is not an exhaustive resource and it does not answer every known question. To the contrary, the intent is to raise questions so pools can independently evaluate their own drone-related needs or concerns, members’ likely use of drones, and related questions.

Definitions There are many names and acronyms for UAS, most commonly referred to as “drones.” The key characteristic of a drone is that the aircraft portion of the system is unmanned, although all drones are piloted either by a person or computer. Other commonly used names or designations include:

Remotely Piloted Aircraft System (RPAS) Unmanned Aerial Vehicle (UAV) Model Airplane / Model Aircraft

Drones take a wide variety of forms, ranging from small indoor-use children’s toys to large and sophisticated equipment. For purposes of this outline, we will use the term drone to refer to all types of unmanned aircraft likely to be operated by local government entities or schools. The most sophisticated drones, such as those used for international military operations, are not expected to be used by pool members.

CCM Government Finance & Research Regulating Drone Use 93 In addition to the drone aircraft itself, drone systems often include associated system components and support equipment – things like a control station, computer software, data links, telemetry, communication systems, navigational tools, etc. The degree to which these system components come into play will vary depending on the level of drone sophistication, the intended use, and whether it is piloted by a person or computer.

Pools are encouraged to become familiar with the spectrum of drones. Some pools may choose to classify categories of drones based on degree of perceived risk, and underwrite accordingly for their membership.

Prioritizing Drone Risks Pools and their member public entities face many high profile liability and risk issues on a daily basis. What makes drone use an issue worth time and attention?

Drone use is more than a fad. Drones are a growing service mechanism with widespread application, including public sector uses. Here are some examples of public sector uses already in place and experiencing growing levels of interest by public entities, including local governments and schools:

 Crime, accident, and fire scene investigation and Because the potential use documentation of drones may seem  Search and rescue operations overwhelming and the risks  many, it might be tempting Law enforcement surveillance to discourage member use  Fire suppression activities of drones by excluding  Tactical advantage and live imaging in hostile coverage. Given the likely situations prevalence of drones and anticipated growing use,  Monitoring and inspecting infrastructure pools are encouraged to  Aerial photography, filming of events instead help members  Property inspections and appraisals identify best practices for gradual and thoughtful implementation. It is also worthwhile to consider the evolving private sector use of drones. Private uses may speak to how public sector drone use will expand. Private uses may also be cause for local governments to consider implementing some degree of drone regulation within their borders. Evolving private sector drone use includes:

 Infrastructure inspection by engineers, construction firms, maintenance companies, etc.  Commercial aerial photography  Entertainment, video feeds, filming of events, news media  Private surveillance and investigation  Agricultural surveys, inspections, and maintenance

Indeed, drones have advantages both in public and private applications. Drone use can reduce costs, increase efficiencies, reduce dangers or injury to personnel, produce better outcomes, and offer enhanced perspective on projects. As with the evolution of any technology, we probably cannot today appreciate the total spectrum of value (or risk) that will be produced by drone use.

CCM Government Finance & Research Regulating Drone Use 94 Current Legal Environment for Drone Use by Local Government Entities While it is likely drones will be used in the future for many purposes we cannot now anticipate, pools must formulate coverage and risk management advice based upon how drones can be used under current law. In no case should local government use of drones, whether direct or contracted, operate outside the scope of legal authority.

The Federal Aviation Administration (FAA) and some states’ laws limit how drones can be used by both the public and private sectors. FAA rules are targeted primarily at promoting safe operations and preempt state laws as they relate to the national airspace. Many states, on the other hand, have adopted statutes governing drone use focused to a large extent on privacy issues. Some local governments are attempting to control aspects of drone use within their borders.

Federal regulation The FAA is responsible for establishing safety standards in the national airspace. Congress has required that the FAA establish regulations to incorporate drones into the national airspace by September 2015, although such regulation is not expected to happen until mid-2016. Current FAA provisions regulate all drone use over 400 feet. Drones may be flown for recreational purposes below 400 feet and within the operator’s line of sight. All other uses, including all commercial and governmental uses, require explicit FAA permission, obtained using estabished procedures.

The FAA presently oversees government ownership and operation of drones – including ownership and operation There is no public entity by local governments and schools – as “public aircraft use of a drone that falls operation.” Public aircraft operation requires a certificate outside a regulatory of authorization (COA) from the FAA, managed through process. If the drone use takes place above 400 feet, an online portal. it is regulated by the FAA. Any public entity use under The FAA regulates commercial use of drones as “civil 400 feet would not be aircraft operation.” Civil aircraft operation is regulated classified as “recreational,” through a different process referred to as “Section 333 whether operated directly by the local government exemption.” In both public and civil aircraft operations, agency, a third party part of the process for granting the COA or Section 333 contractor, or a volunteer. exemption includes review of intended use. If a public entity is making any use of a drone, it must comply with FAA regulatory Civil aircraft restrictions do not apply directly to local guidelines. government use, but they have implications for local government contracts for drone related services. Local government entities contracting with commercial operators who have a Section 333 exemption can eliminate the need for a public aircraft COA, although uses of leased drones may still be considered public aircraft operation.

This means public entities contracting with vendors who have an existing Section 333 exemption may benefit from expedited approval.

CCM Government Finance & Research Regulating Drone Use 95 Notice of proposed rulemaking On February 15, 2015, the FAA issued a Notice of Proposed Rulemaking (“Notice”) that would provide for the routine civil operation of small drones within certain limitations. While the public aircraft operations COA process would continue to exist under the regulations proposed in the Notice, local government entities could bypass that process by conducting their drone operations under the requirements for routine civil operation.

Although the FAA’s proposed regulations impose significant requirements and limitations, they would enable public and private entities to develop programs for the routine use of drones.

The new FAA regulations are not expected to be finalized until 2016, after the FAA has considered comments received in response to the Notice. If the regulations are adopted as proposed, drones (including public entity drones) will be able to operate without a special exemption or COA if they meet a list of requirements, including the following:

 Weigh less than 55 pounds  Remain within the visual sight of the operator or a visual observer  Not operate over people who are not directly involved in the operation (with some exception for micro drones)  Operate only during daylight and with weather that allows 3 miles visibility from the control station  Not exceed 100 mph or go higher than 500 feet  Comply with requirements for air traffic control permission  Be inspected by the operator prior to the flight A new program by the FAA, called Pathfinder  Be operated by someone who has passed a test and Program, will explore with been vetted by the Transportation Security three corporate partners Administration issues related to drone  Be registered and have required markings operation outside a pilot’s line of sight. The uses explored will be An emerging question is the potential use of drones agricultural, train track beyond an operator’s line of sight. The FAA’s Notice inspection, and urban. requires drones be operated only within the line of sight More information about the of the operator or a visual observer. However, many Pathfinder Program is commercial applications would require drones be available on the FAA operated more remotely, using sensing and avoiding website. technology and possibly navigated by computer. Such use can be expected to raise a host of questions about possible new risks related to technology failure.

Executive order On the same day the FAA issued the Notice, President Obama issued an executive order that federal agencies must require state, local, tribal, and territorial government recipients of federal grant funding for the purchase or use of drones in their operations to have policies and procedures in place to safeguard individuals’ privacy, civil rights, and civil liberties.

CCM Government Finance & Research Regulating Drone Use 96 State regulation State legislatures are also regulating drones. The National Conference of State Legislatures reports 26 states have adopted legislation that addresses drone related issues. And so far in 2015, 45 states have considered 150 drone related bills.

Of course, half the states do not have laws yet, and most will never have laws that address all possible drone issues. Common state legislation regarding drones, in some cases applicable to public and private drone use, include:

 Defining drone Some states have passed  Controlling drone use laws preempting local o governments’ regulation of Limit use by law enforcement; require a warrant drones. The possible . Exceptions for disasters or emergencies conflicts created by multiple . No use for surveillance tiers of local, state, and o Prohibit various private uses of drones federal government authority . Voyeurism should be monitored by pools. These conflicts could . As a tool for hunting and fishing lead to litigation between . Interference with hunters and fishers governmental authorities o Allow use of drones to counter terrorist attacks over who can regulate drone o Limit retention and disclosure/require use, or between a government and aggrieved destruction of information gathered citizens who either want to o Prohibit weaponized drones operate drones in a manner  Creating a crime of unlawful prohibited by local law, or photography/surveillance want to stop drones from operating even though such  Providing civil remedies for prohibited use operation complies with the  Excluding evidence gathered in violation of the law law. As these situations  Requiring record retention and reporting by drone unfold, pools are likely to be operator called upon to advise members about local  Recognizing the value of the drone industry to the government regulation, state resolve coverage questions at the primary and To the extent any state legislation overlaps with federal reinsurance levels, and defend public entity requirements, there is the potential for conflict. Federal members for drone use requirements likely preempt states’ requirements in civil and/or regulation. rights and matters under the jurisdiction of the FAA.

Local regulation Some local government entities are regulating drone use within their borders, although so far relatively few local governments have taken this step. Overall, localities tend to address drone operation in certain geographic locations, use of any drone-collected information as evidence in federal or state court, and equipping drones with anti-personnel devices to target law enforcement or other public safety personnel.

As drone use increases, more local government entities may seek to create licensure requirements, prohibiting use of drones in certain locations under their land use and zoning power, and imposing other restrictions.

CCM Government Finance & Research Regulating Drone Use 97 Approaches to structuring drone regulation To the extent pools advocate Presently most government entities are considering at the local, state, or federal adoption of laws and regulations specifically related to level for any drone-related drone technology. This approach makes sense from the issues, or are asked to comment on drone-specific FAA perspective, because the FAA is tasked with legislation, it might be helpful controlling and assuring the safety of the national airspace. to consider technology- But some of the other concerns raised by drone technology neutral solutions, which and related regulation or laws are not exclusive to drones. would focus on the rights to be protected rather than the type of technology involved. A major concern raised by drone use is the potential for The use of a drone, in and of violation of privacy and civil rights. Mounted camera and itself, may pose no different video technology is one reason drones have so many or greater risk than applications, but imaging technology is in part what recordings made through other means such as concerns privacy and civil rights advocates. Drones are not security cameras, street the only conduit of imaging technology to raise these cameras, license plate issues, however. Manned aerial surveillance flights, readers, or body cameras. electronic license plate readers, security cameras at public On the other hand, the facilities, street security cameras, and police scope of a drone’s perspective is often much body/dashboard cameras are all imaging technologies that larger with granular detail raise issues of privacy, widespread surveillance, and easily accessible, which potential civil rights violations. could give rise to greater public scrutiny of local Focusing privacy legislation specifically on drones might government use of drones. not consider this larger picture – although in some cases drones may indeed be the true basis of concern. A number of resources offer perspective on the privacy issues raised by drone use, and how to address those issues under the law.

Drone Ownership and Operation Models A local government entity might buy or lease and operate its own drone, or use a drone owned and From the standpoint of operated by a third party. coverage, many of the same considerations apply whether a local government Operating an owned drone drone is owned and If a public entity purchases its own drone, it must operated directly or through develop a plan for use, secure an operator whose a third party. A pool that credentials meet the requirements of the FAA, and does not intend to provide coverage, or wants to obtain a COA. The public entity should also consider sublimit it, must think whether it will have insurance coverage for any drone carefully about language and accident or incident that results in liability. whether there could be contractual liability coverage, either when the local Contracting for use of a drone owned and government provides or operated by a third party receives services under a A local government entity might use a drone owned and contract. operated by someone else. This may be an easier solution if the private entity has equipment, a qualified operator, and a Section 333 exemption encompassing the intended operation. It is important for the local government to be sure its project fits within the owner/operator’s Section 333

CCM Government Finance & Research Regulating Drone Use 98 exemption, or within the FAA’s March 15 interim policy that provides those who already have a Section 333 exemption a blanket COA for certain uses.

Volunteers Pool s might work with Public entities should be particularly cautious about accepting members to ensure local services using drones owned and operated by volunteers. governments and schools understand and manage risks associated with non- A company that operates drones as part of its business is professional drone regulated by the FAA and cannot be considered a recreational operators, and consider user for regulatory purposes when providing services to a alternatives where possible. public entity, even on a volunteer basis. Thus, professionals must comply with all FAA requirements even if they are not being paid for their services.

An individual drone enthusiast who does not engage in Pools may be of assistance commercial drone operations and is considered to be a to their members by helping recreational user might also volunteer services and drone use develop contractual language that allocates to a local government or school. Such circumstances could liability to the party best able raise risks for public entities, because the volunteer may be to manage the risk. less experienced, less knowledgeable of FAA requirements, Contracts should require the may not have the correct exemption/permission, and may not drone owner/operator to be amenable to allocating liability through a written have insurance that provides coverage for drone agreement. Even if a volunteer is amenable to allocating operations. Other liability, without demonstrated insurance coverage there requirements may differ would be no guarantee of funds to cover losses. based on the nature of the drone use and which party bears certain responsibilities. Mutual aid For instance, it would makes Drones are likely to be used under mutual aid agreements, sense for a third party especially in emergency and disaster situations. Mutual aid owning and operating the agreements may be between public entities in the same state drone to be responsible for risks of bodily injury and or in neighboring states, and can be formal or informal. property damage arising Equipment might also be shared state-to-state under the from its operation, Emergency Management Assistance Compact. equipment failure, or misuse of the data collected, while Any mutual aid response including drones and drone the local government entity would be responsible for operators should be reviewed by the participating entities for privacy violations arising observance of all legal requirements related to the operation from its design of the of drones. It is common in local mutual aid relationships for mission and its misuse of the details of each parties’ operational oversight to go unchecked data collected. When it comes to mutual aid, pools – which could be quite problematic in terms of running afoul can play an important role by of drone regulation. educating members about likely emerging uses of Provisions for allocation of liability for drone risks under the drones in public safety, mutual aid agreement should also be carefully reviewed. associated risks, mutual aid contracting concerns, and Mutual aid partners should address directly how liability will the interrelatedness of all be allocated in the event of an accident or incident involving a three. drone.

CCM Government Finance & Research Regulating Drone Use 99 Risks of Drone Use There are many possible benefits resulting from public entity use of drones. There are also risks, most of which have not yet fully been explored because drone use is so new. We cannot quantify the likelihood or impact of potential risks, but rather provide some starting ideas for further consideration and evaluation by public entity pools.

In exploration of risk areas, probabilities, and possible impacts, it might be helpful to consider likely sources of drone risk:

 Piloting error  Inadequate training of personnel controlling drones, or overseeing drone use  Mechanical or technical failure of the drone  Mechanical or technical failure of associated drone software, hardware, or associated systems  Maintenance and storage of data and information, including images, captured via drone use  Inappropriate use of a drone by an employee  Unauthorized breach of drone technology systems, including data and information storage and control systems  Contracts related to drone use and operations  Drone accidents

Thinking further about how these risk sources might translate into claims against public entities and therefore have pooling implications, it might be helpful to consider the following possible risk scenarios.

Accidents. A drone might crash during use, itself sustaining physical damage or causing physical damage to property (city or private) or even personal injury. A drone could also collide with another aircraft, creating the same sorts of risks.

A drone crash or collision could also injure an employee of the public entity operating or overseeing operations of the When it comes to privacy drone – including the pilot, controller, or others in the and civil rights risks, pools are encouraged to take a general area at the time of the accident. “technology neutral” approach whenever Trespass. Drone use could entail allegations of trespass on possible. The use of a private property, including trespass into the airspace above drone, in and of itself, may pose no different or greater private property. If a drone needs to be retrieved because of risk than recordings made malfunction or crash, and if permission from a landowner is through other means such not appropriately granted, there could also be direct trespass as security cameras, street concerns. cameras, license plate readers, or body cameras. On the other hand, the Privacy breach and civil rights violations. There are risk scope of a drone’s considerations regarding privacy breach both in law perspective is often much enforcement use of drones and in other public entity use of a larger with granular detail more general nature. easily accessible, which could give rise to greater public scrutiny of local If a drone is used by law enforcement, there are risks related government use of drones. to appropriate warrant procedures such as the need for a

CCM Government Finance & Research Regulating Drone Use 100 warrant and the approval of a requested warrant. There may be privacy and civil rights risks related to recordings made by cameras or other devices employed by law enforcement through a drone (or any other means).

Even more generalized use of a drone by a public entity could raise privacy breach concerns – for instance an aerial parks survey conducted by drone could record private activity in the home on an adjoining property. Even if the local government entity does not use such private information in any direct way, the mere recording of information could be cause for privacy concerns.

Public officials liability. Where there is underlying risk to a public entity, there may be risk of public officials liability for an elected body. Of particular concern may be a cause of action somehow involving a drone used in a circumstance where the elected body allowed its use outside federal or state rules and regulations, whether or not it did so knowingly.

Cyber risks. Collection of information and images by drones can provide robust data, stored electronically, to local governments and schools. Such data or images might be subject to the same sorts of cyber attacks or accidental release as are other electronic information sources. In addition, the remote operation of drones could make them subject to direct cyber attack, such as a non-authorized pilot commandeering a drone being operated for a public purpose. This could result in theft or destruction of the drone, itself, but more importantly could lead to liability for the public entity that failed to adequately protect against such cyber-jacking of its (owned or contracted) drone.

Airport operations liability. Public entity airports may have special considerations when it comes to drones, including direct liability as well as contract liability concerns with airport managers or fixed base operators.

The proposed FAA Notice would permit drone operations near controlled airports with the permission of air traffic control. Consequently, drones may begin to be used at some point at municipally owned airports, or approved by air traffic control at the municipal airport. Such regulations would certainly be an issue to consider for any municipal airport, including how to best allocate drone risks in any contracts with airport managers or fixed base operators.

Regulatory violations. The FAA regulations apply to public entity use of drones, and in some cases there may be penalties for failure to comply. As drone regulation increases and takes firm shape at the federal and state level, other penalties could apply for violation of rules or restrictions.

Land use liability. Local government attempts to regulate when, where, or how drones can be used within their jurisdictions may face push-back from commercial or recreational users, in particular with regards to land use rights for private property.

Failure to supervise or limit use. For any situation where drone use over public property creates a liability concern – for instance by causing damage through a crash or collecting private information – there could be a tort claim against the local unit of government or school for failure to supervise use, failure to protect

CCM Government Finance & Research Regulating Drone Use 101 against dangers, or failure to apporopriately limit the use of drones in public areas. These claims could be made regardless of whether the local government, itself, operates a drone, allows a drone to be used, or fails to limit drone use over public property.

Other possibilities. As drone use increases, public entities and pools should expect novel approaches to liability. Might cyber risks associated with drone use also result in public officials liability, if a cyber-jacking incident resulted in harm to another third party and the local government did not take appropriate precautions? How will airplane exclusions and cyber coverage provisions co- mingle in a liability matter that involves drone use? There are many questions that will come to light as drones become more prevalent in the public environment.

Coverage and Underwriting Considerations for Pools Public entities using drones should have adequate risk transfer and financing in place, but not all public entity pools are currently comfortable providing drone coverage. Pools might ask themselves the following questions to determine whether and how to provide coverage for drone related losses, or what to recommend their member public entities seek in terms of other coverage and risk financing options.

How are member public entities using or likely to use drones? Include drones in your assessment of members’ risk. As drones become more readily available, their use in local government and school operations could emerge in a number of ways, especially in public safety and search and rescue. Members may not realize the importance and coverage implications of drone use, so it is important to ask directly about their current and planned adoption of drones as part of their operations.

What types of coverage are useful for drone related losses? The manner in which drones are used by public entities differs from many of the commercially focused applications. Currently, the largest emphasis is on search and rescue and law enforcement, neither of which is a focus of the private sector. Also, the private sector has less exposure to civil rights litigation than the public sector. If a private sector organization incorporates drones heavily into its operations, for example using them in order fulfillment, there may be a more significant business interruption/extra expense exposure than is faced by most public entities. Other exposures may be similar in public and private use. General liability and hull coverage affect both public and private sector drone users.

 General liability (BI, PI & PD). Drone accidents are relatively common, and can result in bodily injury, property damage and personal injury. This is an important coverage for public entities using drones in any part of their operations. It is even possible a loss could be catastrophic, if the drone collided with a passenger aircraft, for example. Such incidents may be unlikely to happen if the public entity is using a drone within FAA requirements, so a pool electing to provide this coverage may want to consider excluding losses resulting from drone use not in compliance with FAA, state or local requirements. Pools not wanting to provide this coverage

CCM Government Finance & Research Regulating Drone Use 102 should review aircraft exclusion language to be sure it specifically includes drones, and also check contractual liability language, which could come into play if a public entity hires a third party to operate drones on its behalf.

 Physical damage to drone/hull coverage. Some drones may be inexpensive, off-the-shelf items that will not be a significant loss if destroyed or damaged. Other drones are more expensive. Camera equipment and other technology carried by drones could also be a significant loss. Pools providing hull coverage for drones may want to consider sublimiting the coverage, requiring specific information about the equipment, and additional member contribution before offering higher limits.

 Privacy – general & law enforcement. This is an important coverage for drone use, especially if it is likely to incorporate use of a camera or other imaging technology. Liability can arise both from an intentional use of the technology that violates an individual’s privacy or civil rights, and from images captured unintentionally. Pools considering coverage for privacy and civil rights exposures occuring through the use of drones need to look at law enforcement liability, public officials liability, and other more general liability exposures.

 Workers’ Compensation. Pools providing workers’ compensation coverage will be responsible for claims from members’ employees injured during drone operations. On the positive side, drone use may eventually be used to supplement work by employees in hazardous situations, reducing the risk of a work related injury.

 Cyber. Most drones are controlled, and their images transmitted, through the operation of computer software. Some drones may rely on computerized navigation and object avoidance systems. Breach of these systems could destroy the drone, cause injuries and property damage, appropriate the drone for an unintended use, and/or steal information and images the drone has gathered. Consequently, cyber coverage is very important to complete protection for drone exposures and pools should consider whether and how they want to extend coverage to cyber hazards including those resulting from drone use.

 War/terrorism. War and terrorism exclusions are standard in many insurance policies, but are increasingly problematic in the cyber arena. Data breaches are frequently launched from foreign countries, and the question is whether these breaches are some type of cyber warfare or terrorism, as opposed to criminal acts. The line is becoming increasingly unclear. Pools that want to

cover their members’ drone use need to consider the effect of any war and terrorism exclusions in their coverage documents.

 Business interruption/extra expense. Public entities relying heavily on drones may have a related business interruption and extra expense exposure. For the time being, with use just beginning to gain traction in local governments, this may not be a major issue – but it is one pools should watch and consider how their current business interruption and extra expense coverage would apply.

CCM Government Finance & Research Regulating Drone Use 103 Are aircraft exclusions sufficient to protect pools against drone related losses? This is an open question. If phrased definitively, with language that incorporates drones into the term “aircraft,” drones could effectively be excluded from coverage for general liability and hull exposures. Pools wanting to use an aircraft type exclusion to avoid coverage for any drone exposure should be sure the exclusion applies to all lines of coverage, including public officials and law enforcement liability. For example, if the pool covers breach of privacy in its law enforcement liability coverage document, does an aircraft exclusion eliminate that coverage because the breach of privacy occurs using a drone? If the pool offers cyber coverage, does that include a cyber breach occurring by an attack on a drone or the systems that control it? Specificity is key in determining coverage for drone risks.

What types of expertise does the pool need to write and service drone coverage? Pools might consider when the Whenever a pool decides to write coverage for a new risk, limits offered for drone coverage are high enough that the issue arises of whether it needs to add or train staff for additional underwriting should the new exposure. To provide drone coverage, it’s clear be performed. Keep in mind underwriting needs to consider emerging issues, new that the size and cost of a technology, and untested use by public entities. Loss control drone is not the sole determinant of most and claims staff may also need to become more familiar with exposures. Small and these risk areas, so pools are encouraged to look for external inexpensive drones can resources and build internal resources accordingly. potentially cause very large losses for bodily injury, What type of underwriting information should the pool personal injury, breach of privacy, and other exposures. request from its members? Pools may want to consider Pools may want to consider following the lead of specialized requiring specific underwriting aviation insurers, by collecting detailed information about information at least to confirm the number, type and specifications of drone(s) to be used; their members are operating drones in accordance with the base station and transmitter; payload (cameras or other FAA and other legal equipment); the operators’ names, training, certification, and requirements. experience; specific intended uses; how information gathered will be protected and controlled; how its navigation systems are secured; maintenance of logs; and proof of a COA from the FAA for the intended use(s). Obtaining this information should not be difficult, because current FAA rules require a member to present much of it to obtain a COA.

How are pools, commercial insurers and reinsurers treating drone coverage? Drone use is still relatively new and pools, commercial insurers, and reinsurers are analyzing how best to address resulting risks in coverage. Many pools exclude drone use from coverage altogether by excluding damage to aircraft, liability arising from aircraft, and aircraft as a peril. This approach requires a definition of aircraft that is sufficiently broad to encompass unmanned aircraft. Like cyber liability, exclusion may be a short-term strategy as drone use becomes more integrated into public entity operations and risks are better understood.

Commercial GL policies and many pool liability coverages exclude aviation risk, but some are adding exceptions to aircraft exclusions to cover smaller types of unmanned aircraft. An example would be inserting an exception to the aircraft exclusion for “your unmanned remote control helicopter or aircraft up to three feet in wingspan, diameter or length while being used in the course of your

CCM Government Finance & Research Regulating Drone Use 104 [insert type of industry] business.” Some pools have added exceptions to aircraft exclusions for drones that meet certain criteria for speed and size. A good starting place for establishing those criteria would be the FAA Notice, which would require that drones weigh less than 55 pounds and not exceed 100 mph or go higher than 500 feet.

Here are two examples of approaches taken by pools:

 Provide limited hull coverage ($2,500) for no additional premium, and first and third party data breach coverage through a commercial carrier. Exclude BI or PD arising from aircraft except liability assumed under a contract.  Provide hull coverage for drones valued up to $25,000 as “mobile property.” Drones fall outside the policy definition of aircraft because they are not designed for the transport of persons or property. More expensive drones must be reported, separately scheduled, and are subject to additional contribution. Coverage includes third party BI, PD and PI liability, including privacy violations. No special sublimit or deductible or additional premium is imposed, but there is a $3 million annual aggregate on data breach liability.

Pools wanting to provide some level of coverage for drone operations have another potential issue to confront: their reinsurers. Reinsurer reaction may well depend on how well the pool prepares to launch the coverage and information about the ultimate exposure for the reinsurer. Pools should be prepared to discuss with reinsurers, at a minimum, the following information:

 How are drones currently in use by pool members, and what trends are expected?  What types of coverage will be provided by the pool?  Will specific uses be identified as covered, or will any use by the member be covered?  Will there be special sublimits or aggregates?  Will the pool separately underwrite each risk or will the coverage be granted without specific information?  Will the pool require an additional contribution for each risk?  Does the pool support the members with a loss control program directed at drone risks?

Specialized aviation insurers are offering full suites of coverage designed specifically for drone users, including law enforcement, SWAT teams, emergency responders, fire and rescue, traffic patrol and accident assistance, and others.

Loss Control Considerations for Pools Regardless of whether or how a public entity pool provides drone coverage, it may be in a strong position to provide member loss control advice and other risk management programs appropriate for evolving use of drones. The focus of such programs may be awareness, compliance, coverage, and policy guidance for those local government or school entities who choose to use a drone for any purpose. Of course, a pool’s efforts to help member entities will be guided by its

CCM Government Finance & Research Regulating Drone Use 105 own familiarity with drone issues. Pools might consider specialized assignments to staff in order to more fully research and understand drone-related risks, or might seek outside expertise.

General awareness. With the growing prevalence of drones in both the private and public sectors, all local government entities and schools should have a general awareness about how drones are likely to be used, whether recreationally or commercially. Elected and appointed officials should know about emerging drone issues and common concerns. Information to raise awareness about drone use should not be limited to ways the public entity, itself, might use drones – rather, awareness efforts should also include how private or commercial drone use could impact residents, businesses, and others within the community.

Compliance. Local government entities and schools should be aware of federal and state requirements regarding drone use, including how those regulations might shift over time and the specific requirements for government use of drones. As federal rules change and state regulations are implemented, and as local governments promulgate regulations of their own, ongoing updates and information sharing will be important.

Coverage. Public entities will benefit from learning about emerging drone use, common issues, and risks – and should be able to consider such uses and risks against available coverage for any specific drone use they might anticipate. Pools are encouraged to share specific information about coverage and limitations, application of coverage in likely scenarios involving drone use, and details about coverage unknowns.

Policies & Practices. As public entities consider increasing use of drones, whether on a direct or contracted basis, they will need to develop associated policies and practices. Pools are in an ideal position to help assure such policies are appropriate, compliant with federal and state laws, and consistent with available coverage. Public entities will benefit from policy guidance, template language, or other resources on:

 Reviewing existing local government operations across all areas to identify functions or activities where drone use might be implemented, and to determine whether revised or additional policies or practice guidelines are necessary.  Developing policies and practices focused on function, not technology. In other words, developing policies that apply to common risks in use of drones but are not limited to drone technology.  Considering how long images or information captured by use of drone or other means will be retained, how they will be controlled, and who will have access to them.  Determining whether such information, images, or utilization logs will be public records.  Developing appropriate retention schedules and disclosure policies.  Securing technology systems from breach, including drone controls, software, data links, etc.  Developing back-up policies and response protocols to be followed in case of security breach.

CCM Government Finance & Research Regulating Drone Use 106  Evaluating whether public entities have authority to restrict, enable, or license drone use; and whether a local government can grant privacy in land use to include or exclude drones on certain property.  Determining appropriate consequences for public entity personnel who violate drone-related policies or required practices.  Developing appropriate contract language for third-party drone operators and mutual aid operations.

Claims Handling Practices and Related Considerations Because drone use is new and emerging, there is likely to be a lag until pool claims professionals are faced with their first need to manage a drone-related matter. Developing internal staff expertise now will help adequately prepare the pool for drone-related claim matters, should they arise in the future. A pool might consider whether specialized training on drone-related issues is appropriate for a designated claims specialist, whether all claims staff should receive additional training, or whether useful external resources exist.

In particular, claims staff should be prepared to handle contract-related liability issues involving drone use, which are likely to be more tricky in terms of coverage and member relations. The combination of cyber risks and drone use may also present an area in need of heighted claims staff awareness and specialized expertise.

Finally, it may be a good idea for pools to carefully consider the use of images and information captured via drone use in litigation, including any rules of evidence and the impact of a public entity’s storage and retention practices. The collection of information and images via drone could have wide implications for the legal community, on the whole, which would have corresponding impacts on defending member claims.

Pool Use of Drones It’s possible, and probably likely in the long-term, that public entity pools will want to use drone technology in support of their own operations. We’ve heard of one pool that implemented a drone for inspecting covered properties as part of the regular appraisal process. Other easy-to-imagine pool uses of drones include assessing damages and collecting location information for underwriting purposes. Several commercial insurers have secured FAA approval to test the use of drones in their operations, including evaluating property damage claims, responding to natural disasters, risk assessment, and other risk management functions.

Pools have all of the same risks as any other drone user, and are subject to the same regulatory restrictions and expectations. Depending on the pool’s structural status, it could be subject to governmental regulatory standards or commercial standards – and all of the same contractual liability considerations outlined throughout this summary would also apply to a pool’s use of a drone.

CCM Government Finance & Research Regulating Drone Use 107 As a pool seeks to help its members understand and manage drone risks, so too should it evaluate its own possible use of drones and related risks. And, a pool should specifically review and consider its own insurance coverage terms and exclusions to determine whether it has adequate protection in place. Conclusion Drones offer public entities of all sizes the opportunity to enhance services, operate more efficiently, and reduce risks to their employees. Pools can expect members, even small ones, to consider and in some cases pursue this opportunity over the next few years. Now is a good time for pools to begin defining their risk appetite in this area, evaluating their coverages, and monitoring their members’ drone related activity. NLC-RISC and AGRiP will continue to follow and research drone use issues in the public sector, and will update this resource as additional information becomes available. Pools are encouraged to contact us about any drone related issues not otherwise addressed in this work, and to provide us with new resources to which we can link from this report.

CCM Government Finance & Research Regulating Drone Use 108 State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet

Federal Aviation Administration Office of the Chief Counsel

December 17, 2015

BACKGROUND

Unmanned aircraft systems (UAS) are aircraft subject to regulation by the FAA to ensure safety of flight, and safety of people and property on the ground. States and local jurisdictions are increasingly exploring regulation of UAS or proceeding to enact legislation relating to UAS operations. In 2015, approximately 45 states have considered restrictions on UAS. In addition, public comments on the Federal Aviation Administration’s (FAA) proposed rule, “Operation and Certification of Small Unmanned Aircraft Systems” (Docket No. FAA-2015-0150), expressed concern about the possible impact of state and local laws on UAS operations.

Incidents involving unauthorized and unsafe use of small, remote-controlled aircraft have risen dramatically. Pilot reports of interactions with suspected unmanned aircraft have increased from 238 sightings in all of 2014 to 780 through August of this year. During this past summer, the presence of multiple UAS in the vicinity of wild fires in the western U.S. prompted firefighters to ground their aircraft on several occasions.

This fact sheet is intended to provide basic information about the federal regulatory framework for use by states and localities when considering laws affecting UAS. State and local restrictions affecting UAS operations should be consistent with the extensive federal statutory and regulatory framework pertaining to control of the airspace, flight management and efficiency, air traffic control, aviation safety, navigational facilities, and the regulation of aircraft noise at its source.

Presented below are general principles of federal law as they relate to aviation safety, and examples of state and local laws that should be carefully considered prior to any legislative action to ensure that they are consistent with applicable federal safety regulations. The FAA’s Office of the Chief Counsel is available for consultation on specific questions.

WHY THE FEDERAL FRAMEWORK

Congress has vested the FAA with authority to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source. 49 U.S.C. §§ 40103, 44502, and 44701-44735. Congress has directed the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103(b)(1). Congress has further directed the FAA to “prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes)” for navigating, protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable

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airspace efficiently; and preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects. 49 U.S.C. § 40103(b)(2).

A consistent regulatory system for aircraft and use of airspace has the broader effect of ensuring the highest level of safety for all aviation operations. To ensure the maintenance of a safe and sound air transportation system and of navigable airspace free from inconsistent restrictions, FAA has regulatory authority over matters pertaining to aviation safety.

REGULATING UAS OPERATIONS

In § 333 of the FAA Modernization and Reform Act of 2012 (Public Law No. 112-95), Congress directed the Secretary to determine whether UAS operations posing the least amount of public risk and no threat to national security could safely be operated in the national airspace system (NAS) and if so, to establish requirements for the safe operation of these systems in the NAS.

On February 15, 2015, the FAA proposed a framework of regulations that would allow routine commercial use of certain small UAS in today’s aviation system, while maintaining flexibility to accommodate future technological innovations. The FAA’s Notice of Proposed Rulemaking offered safety rules for small UAS (under 55 pounds) conducting non-recreational or non-hobby operations. The proposed rule defines permissible hours of flight, line-of-sight observation, altitude, operator certification, optional use of visual observers, aircraft registration and marking, and operational limits.

Consistent with its statutory authority, the FAA is requiring Federal registration of UAS in order to operate a UAS. Registering UAS will help protect public safety in the air and on the ground, aid the FAA in the enforcement of safety-related requirements for the operation of UAS, and build a culture of accountability and responsibility among users operating in U.S. airspace. No state or local UAS registration law may relieve a UAS owner or operator from complying with the Federal UAS registration requirements. Because Federal registration is the exclusive means for registering UAS for purposes of operating an aircraft in navigable airspace, no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.

Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system. See Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); see also Arizona v. U.S., 567 U.S. ___, 132 S.Ct. 2492, 2502 (2012) (“Where Congress occupies an entire field . . . even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any

CCM Government Finance & Research Regulating Drone Use 110 state regulation in the area, even if it is parallel to federal standards.”), and Morales v. Trans 3 World Airlines, Inc., 504 U.S. 374, 386-87 (1992).

EXAMPLES OF STATE AND LOCAL LAWS FOR WHICH CONSULTATION WITH THE FAA IS RECOMMENDED

• Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example – a city ordinance banning anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F.2d 1306 (6th Cir. 1969). • Mandating equipment or training for UAS related to aviation safety such as geo-fencing would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework. Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740 (E.D.N.C. 2008); Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn. 2007).

EXAMPLES OF STATE AND LOCAL LAWS WITHIN STATE AND LOCAL GOVERNMENT POLICE POWER

Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002). Examples include:

• Requirement for police to obtain a warrant prior to using a UAS for surveillance. • Specifying that UAS may not be used for voyeurism. • Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing. • Prohibitions on attaching firearms or similar weapons to UAS.

CCM Government Finance & Research Regulating Drone Use 111 CONTACT INFORMATION FOR QUESTIONS

The FAA’s Office of the Chief Counsel is available to answer questions about the principles set forth in this fact sheet and to consult with you about the intersection of federal, state, and local regulation of aviation, generally, and UAS operations, specifically. You may contact the Office of Chief Counsel in Washington, D.C. or any of the following Regional Counsels:

FAA Office of the Chief Counsel Alaskan Region Regulations Division (AGC-200) Office of the Regional Counsel 800 Independence Ave. SW 222 West 7th Ave. Washington, DC 20591 Anchorage, AK 99513 (202) 267-3073 (909) 271-5269 (AK)

Central Region Eastern Region Office of the Regional Counsel Office of the Regional Counsel 901 Locust St., Room 506 1 Aviation Plaza, Room 561 Kansas City, MO 61406-2641 Jamaica, NY 11434-4848 (816) 329-3760 (718) 553-3285 (IA, KS, MO, NE) (DC, DE, MD, NJ, NY, PA, VA, WV)

Great Lakes Region New England Region Office of the Regional Counsel Office of the Regional Counsel O’Hare Lake Office Center 12 New England Executive Park 2300 East Devon Ave. Burlington, MA 01803 Des Plaines, IL 60018 (781) 238-7040 (847) 294-7313 (CT, ME, MA, NH, RI, VT) (IL, IN, MI, MN, ND, OH, SD, WI)

Northwest Mountain Region Southern Region Office of the Regional Counsel Office of the Regional Counsel 1601 Lind Ave. SW 1701 Columbia Ave., Suite 530 Renton, WA 98055-4056 College Park, GA 30337 (425) 227-2007 (404) 305-5200 (CO, ID, MT, OR, UT, WA, WY) (AL, FL, GA, KY, MS, NC, SC, TN)

Southwest Region Western-Pacific Region Office of the Regional Counsel, 6N-300 Office of the Regional Counsel 10101 Hillwood Parkway Dr. P.O. Box 92007 Fort Worth, TX 76177 Los Angeles, CA 90009 (817) 222-5099 (310) 725-7100 (AR, LA, NM, OK, TX) (AZ, CA, HI, NV)

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APPENDIX – LIST OF AUTHORITIES

Federal Statutes

• 49 U.S.C. §§ 40103, 44502, and 44701- 44735 (former Federal Aviation Act of 1958, as amended and recodified).

• FAA Modernization and Reform Act of 2012, Public Law No. 112-95 (Feb. 14, 2012), Subtitle B, “Unmanned Aircraft Systems.”

Federal Regulations

• Title 14 of the Code of Federal Regulations, Chapter 1.

The U.S. Supreme Court

• “Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxies onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government.” Northwest Airlines v. State of Minnesota, 322 U.S. 292, 303 (1944)(Jackson, R., concurring).

• “If we were to uphold the Burbank ordinance [which placed an 11 p.m. to 7 a.m. curfew on jet flights from the Burbank Airport] and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded.” Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 639 (1973).

• “The Federal Aviation Act requires a delicate balance between safety and efficiency, and the protection of persons on the ground … The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.” Burbank at 638-639.

• “The paramount substantive concerns of Congress [in enacting the FAA Act] were to regulate federally all aspects of air safety … and, once aircraft were in ‘flight,’ airspace management…." Burbank at 644 (Rehnquist, J. dissenting).

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U.S. Courts of Appeals

• “Air traffic must be regulated at the national level. Without uniform equipment specifications, takeoff and landing rules, and safety standards, it would be impossible to operate a national air transportation system.” Gustafson v. City of Lake Angeles, 76 F.3d 778, 792-793 (6th Cir. 1996)(Jones, N., concurring).

• “The purpose, history, and language of the FAA [Act] lead us to conclude that Congress intended to have a single, uniform system for regulating aviation safety. The catalytic events leading to the enactment of the FAA [Act] helped generate this intent. The FAA [Act] was drafted in response to a series of fatal air crashes between civil and military aircraft operating under separate flight rules .… In discussing the impetus for the FAA [Act], the Supreme Court has also noted that regulating the aviation industry requires a delicate balance between safety and efficiency. It is precisely because of ‘the interdependence of these factors’ that Congress enacted ‘a uniform and exclusive system of federal regulation.’” Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir. 2007), citing City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638-39 (1973).

• “[W]hen we look to the historical impetus for the FAA, its legislative history, and the language of the [FAA] Act, it is clear that Congress intended to invest the Administrator of the Federal Aviation Administration with the authority to enact exclusive air safety standards. Moreover, the Administrator has chosen to exercise this authority by issuing such pervasive regulations that we can infer a preemptive intent to displace all state law on the subject of air safety.” Montalvo at 472.

• “We similarly hold that federal law occupies the entire field of aviation safety. Congress' intent to displace state law is implicit in the pervasiveness of the federal regulations, the dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control over air safety. This holding is fully consistent with our decision in Skysign International, Inc. v. Honolulu, 276 F.3d 1109 (9th Cir. 2002), where we considered whether federal law preempted state regulation of aerial advertising that was distracting and potentially dangerous to persons on the ground. In upholding the state regulations, we held that federal law has not ‘preempt[ed] altogether any state regulation purporting to reach into the navigable airspace.’ Skysign at 1116. While Congress may not have acted to occupy exclusively all of air commerce, it has clearly indicated its intent to be the sole regulator of aviation safety. The FAA, together with federal air safety regulations, establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, states.” Montalvo at 473-474.

• “[W]e remark the Supreme Court's reasoning regarding the need for uniformity [concerning] the regulation of aviation noise, see City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), and suggest that the same rationale applies here. In Burbank, the Court struck down a municipal anti-noise ordinance placing a curfew on jet flights from a regional airport. Citing the ‘pervasive nature of the scheme of federal

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regulation,’ the majority ruled that aircraft noise was wholly subject to federal hegemony, thereby preempting state or local enactments in the field. In our view, the pervasiveness of the federal web is as apparent in the matter of pilot qualification as in the matter of aircraft noise. If we upheld the Rhode Island statute as applied to airline pilots, ‘and a significant number of [states] followed suit, it is obvious that fractionalized control ... would severely limit the flexibility of the F.A.A ….’ [citing Burbank] Moreover, a patchwork of state laws in this airspace, some in conflict with each other, would create a crazyquilt effect … The regulation of interstate flight-and flyers-must of necessity be monolithic. Its very nature permits no other conclusion. In the area of pilot fitness as in the area of aviation noise, the [FAA] Act as we read it ‘leave[s] no room for ... local controls.’ [citing Burbank]. French v. Pan Am Express, Inc., 869 F.2d 1, 6 (1st Cir. 1989).

CCM Government Finance & Research Regulating Drone Use 115 General Assembly Raised Bill No. 5217

February Session, 2014 LCO No. 1128

*01128______JUD*

Referred to Committee on JUDICIARY

Introduced by:

(JUD)

AN ACT CONCERNING USE OF UNMANNED AIRCRAFT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 15-34 of the general statutes is amended by adding subdivision (29) as follows (Effective October 1, 2014):

(NEW) (29) "Unmanned aircraft" means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

Sec. 2. (NEW) (Effective October 1, 2014) (a) A person is guilty of criminal use of an unmanned aircraft in the first degree when such person commits a crime, as defined in section 53a-24 of the general statutes, and in the commission of such crime such person used an unmanned aircraft, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, that is equipped with a deadly weapon, as defined in section 53a-3 of the general statutes, including, but not limited to, any explosive or incendiary device, as defined in section 53-206b of the general statutes, or any firearm, as defined in section 53a-3 of the general statutes. No person shall be convicted of criminal use of an unmanned aircraft in the first degree and the underlying offense upon the same transaction but such person may be charged and prosecuted for all or any such offenses upon the same information.

(b) Criminal use of an unmanned aircraft in the first degree is a class B felony.

CCM Government Finance & Research Regulating Drone Use 116 Sec. 3. (NEW) (Effective October 1, 2014) (a) A person is guilty of criminal use of an unmanned aircraft in the second degree when such person violates any provision of section 53a-181c, 53a-181d or 53a-189a of the general statutes and in the commission of such crime uses an unmanned aircraft, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act. No person shall be convicted of criminal use of an unmanned aircraft in the second degree and the underlying crime under section 53a-181c, 53a- 181d or 53a-189a of the general statutes upon the same transaction but such person may be charged and prosecuted for all or any such crimes upon the same information.

(b) Criminal use of an unmanned aircraft in the second degree is a class C felony.

Sec. 4. Subdivision (8) of subsection (a) of section 54-280 of the 2014 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2014):

(8) "Offense committed with a deadly weapon" or "offense" means: (A) A violation of subsection (c) of section 2-1e, subsection (e) of section 29-28, subsections (a) to (e), inclusive, or (i) of section 29-33, section 29-34, subsection (a) of section 29-35, section 29-36, 29-36k, 29-37a or 29-37e, subsection (c) of section 29-37g, section 29-37j, subsection (b), (c) or (g) of section 53-202, section 53-202b, 53-202c, 53-202j, 53-202k, 53-202l, 53-202aa or 53-206b, subsection (b) of section 53a-8, section 53a-55a, 53a-56a, 53a-60a, 53a-60c, 53a-72b, 53a-92a, 53a- 94a, 53a-102a, 53a-103a, 53a-211, 53a-212, 53a-216, 53a-217, 53a-217a, 53a-217b, [or] 53a-217c or section 2 of this act, or a second or subsequent violation of section 53-202g; or (B) a violation of any section of the general statutes which constitutes a felony, as defined in section 53a-25, provided the court makes a finding that, at the time of the offense, the offender used a deadly weapon, or was armed with and threatened the use of or displayed or represented by words or conduct that the offender possessed a deadly weapon;

Sec. 5. (NEW) (Effective October 1, 2014) (a) For the purposes of this section:

(1) "Unmanned aircraft" means an unmanned aircraft, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act;

(2) "Law enforcement agency" means any state or municipal law enforcement agency; and

(3) "Law enforcement officer" means any officer, employee or other person otherwise paid by or acting as an agent of a law enforcement agency.

(b) Each law enforcement officer who operates an unmanned aircraft shall operate such unmanned aircraft in accordance with this section, regulations and policies established by the Federal Aviation Administration, and regulations adopted pursuant to section 6 of this act.

(c) (1) Except as provided in subdivision (2) of this subsection, no law enforcement officer may operate an unmanned aircraft or disclose or receive information acquired through the operation of an unmanned aircraft.

(2) (A) A law enforcement officer may operate an unmanned aircraft only for a legitimate law enforcement purpose and only pursuant to a warrant or pursuant to an emergency circumstance described in subparagraph (D) of this subdivision;

(B) A law enforcement officer shall operate an unmanned aircraft in a manner to collect information only on the individual, residence or other area that is the subject of a warrant and to prevent the collection of

CCM Government Finance & Research Regulating Drone Use 117 information on individuals, residences or other areas that are not the subject of the warrant. No law enforcement officer may use a biometric identifier system, as defined in section 17b-30 of the general statutes, pursuant to the operation of an unmanned aircraft on an individual who is not the subject of a warrant;

(C) A law enforcement officer may disclose or receive information about an individual acquired through the operation of an unmanned aircraft if such individual has given advance written consent to such disclosure or receipt of information;

(D) A law enforcement officer may operate an unmanned aircraft without first obtaining a warrant in emergency circumstances in which it is reasonable to believe there is an imminent threat to the life or safety of an individual, subject to the following limitations: (i) The law enforcement officer shall document the factual basis for the emergency circumstances, and (ii) not later than forty-eight hours after the law enforcement officer begins operation of an unmanned aircraft, a supervisory law enforcement officer shall file a sworn statement with the appropriate court setting forth the emergency circumstances for such emergency use.

(d) (1) Information that was collected through the operation of an unmanned aircraft that concerns an individual, residence or other area that was not the subject of the warrant or emergency circumstance that was the basis for the operation of the unmanned aircraft may not be used, copied or disclosed for any purpose. The law enforcement agency that collected such information shall ensure that such information is destroyed as soon as possible, but in any event, not later than forty-eight hours after such information was collected.

(2) Whenever a law enforcement officer operates an unmanned aircraft, no part of the information acquired through the operation of the unmanned aircraft may be received in evidence in any trial, hearing or other proceeding before any court, grand jury, department, officer, agency, regulatory body, legislative committee or other authority of this state or a political subdivision thereof if the disclosure of such information would be in violation of this section.

(e) Not later than January fifteenth of each year, each law enforcement agency that used unmanned aircraft in the preceding calendar year shall report to the Chief State's Attorney and make public on its Internet web site: (1) The number of times the agency used unmanned aircraft in the preceding calendar year, specifying the number of uses in criminal investigations and the number of uses for other reasons; (2) a list of all occasions when an unmanned aircraft was used with the following details for each use: (A) The date of use, (B) the incident that gave rise to such use, (C) the location of such use, (D) the reason for such use, (E) whether the unmanned aircraft was used pursuant to a warrant or an emergency circumstance, (F) the type of information acquired through the use of an unmanned aircraft that was acquired in accordance with subsection (c) of this section, and (G) the type of information acquired through the use of an unmanned aircraft that was not relevant to a warrant or emergency circumstance and the date and time when such information was destroyed in accordance with subsection (d) of this section; and (3) the law enforcement agency's total cost attributable to the use of unmanned aircraft during the preceding calendar year.

(f) The Chief State's Attorney shall, based on the reports filed by each law enforcement agency pursuant to subsection (e) of this section submit a report, not later than February first of each year, in accordance with section 11-4a of the general statutes, to the joint standing committee of the General Assembly having cognizance of matters relating to criminal law and procedure, concerning the use of unmanned aircraft

CCM Government Finance & Research Regulating Drone Use 118 during the preceding calendar year. The report shall include a summary and analysis of the information received from law enforcement agencies pursuant to subsection (e) of this section.

Sec. 6. (NEW) (Effective October 1, 2014) The Commissioner of Transportation shall adopt regulations, in accordance with chapter 54 of the general statutes, to regulate the operation of unmanned aircraft, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, in airspace within this state that is not part of the National Airspace System and not governed by regulations concerning unmanned aircraft systems adopted by the Federal Aviation Administration pursuant to the FAA Modernization and Reform Act of 2012. The commissioner shall submit the regulations required under this section to the standing legislative regulation review committee not later than one hundred eighty days after the later of September 30, 2015, or the date such federal regulations are adopted by the Federal Aviation Administration.

This act shall take effect as follows and shall amend the following sections:

Section 1 October 1, 2014 15-34

Sec. 2 October 1, 2014 New section

Sec. 3 October 1, 2014 New section

Sec. 4 October 1, 2014 54-280(a)(8)

Sec. 5 October 1, 2014 New section

Sec. 6 October 1, 2014 New section

Statement of Purpose:

To: (1) Establish the crime of "criminal use of an unmanned aircraft", and require persons convicted of using an unmanned aircraft that is equipped with a deadly weapon to be subject to registration under the deadly weapon offender registry; (2) establish standards for the use of unmanned aircraft by law enforcement agencies; and (3) provide for regulations to be adopted concerning the use of unmanned aircraft in any state airspace that is not subject to federal regulation.

CCM Government Finance & Research Regulating Drone Use 119 Staff Findings and Proposed Recommendations

Drone Use Regulation

December 11, 2014

Legislative Program Review and Investigations Committee Connecticut General Assembly

CCM Government Finance & Research Regulating Drone Use 120 2013-2014 Committee Members Senate House John A. Kissel, Co-Chair Mary M. Mushinsky, Co-Chair John W. Fonfara Christie M. Carpino Steve Cassano Brian Becker Eric D. Coleman Marilyn Giuliano Anthony Guglielmo Brenda L. Kupchick Joe Markley Diana S. Urban

Committee Staff on Project Eric Michael Gray, Associate Legislative Analyst

Legislative Program Review and Investigations Committee Connecticut General Assembly State Capitol Room 506 Hartford, CT 06106

(860) 240-0300 www.cga.ct.gov/pri/index.asp [email protected]

CCM Government Finance & Research Regulating Drone Use 121 PRI Staff Findings and Recommendations Highlights December 2014

Drone Use Regulation

Background Main Staff Findings In June 2014, the program review Connecticut stakeholder concerns about drone use are primarily committee authorized a study of drone use those of privacy and safety. Some Connecticut stakeholders expressed regulation. The study focuses on current interest in commercial use of drones, and are concerned that lack of timely and potential drone use regulation in FAA regulations limited the potential positive economic impact of drones. Connecticut. Drones are any unmanned, powered aircraft that sustain flight through State or local attempts at regulating non-governmental flight or remote operation, autonomous control, or aircraft directly are preempted by federal authority. However, states some combination of the two. have authority over aircraft owned or used by state and local governments. That authority includes placing limits on drone use for governmental The 2012 Federal Aviation Authority (FAA) Modernization Act distinguishes between purposes and/or by government employees in the course of their job three different types of drones – civil, responsibilities. public, and model aircraft. At the federal level, these drone types are defined by Within the last two years, 20 states have passed legislation directly dealing with drones, while almost all states have considered some their physical characteristics and legislative action. Because of the recency of state regulatory efforts, no capabilities as well as by the purpose for determination of the efficacy of the regulations was possible at this time. which they are being used. Most jurisdiction for aircraft regulation is Most types of criminal drone use can be addressed through existing FAA at the federal level, excepting some state law, but some statutory clarification may be helpful. The same is true aspects of state and local governmental for civil actions. aircraft. This includes authority regarding: regulation of the navigable airspace; As is existing practice for manned craft, state and local governmental operation of aircraft; setting airworthiness safety protocols for drones should be at least as stringent as FAA standards; and, establishing pilot licensing requirements for non-governmental aircraft. or certification requirements. Commercial use of drones is regulated federally and is PRI Staff Recommendations currently prohibited by FAA, with a few exceptions. Draft federal regulations for State statutes should be reviewed and revised to reflect the existence . Statutes regarding aeronautics, in particular, use of small drones (i.e., under 55 pounds) and capabilities of drones for commercial purposes are expected to should be revised to address possible federal preemption issues. be made public sometime in 2015. Remote operation of weapons, including via drones, shall be This prohibition should be applied to both governmental and Program review staff relied on data from prohibited. the National Conference of State non-governmental drone users. Legislators for review of legislative efforts Law enforcement use of drones for targeted surveillance shall be in other states. Drone laws that were This adopted or considered by other states limited in duration unless there is probable cause and a warrant. limitation is intended to reduce possible violation of an individual’s fourth were summarized through a combination amendment rights, while allowing law enforcement access to possible of primary examination and review of beneficial uses of drones. The legislature should adopt a drone-based stakeholder and academic criticisms of the laws. Stakeholders representing a variety data retention policy for all state and local law enforcement agencies. of interests, including drone users, law All state and local governmentally-owned drones shall register with enforcement agencies, legal experts, and the Office of Policy and Management (OPM). Registration data on privacy advocates where interviewed as governmentally-owned drones should be publicly published on a regular part of a study process. A panel discussion basis. Governmental drone use shall be recorded, summarized, and regarding law enforcement interaction with publicly reported in an aggregate format annually. drones was held on October 8, 2014.

Legislative Program Review and Investigations Committee Staff Office State Capitol * 210 Capitol Avenue * Room 506 * Hartford, CT 06106-1591 P: (860) 240-0300 * F: (860) 240-0327 * E-mail: [email protected]

CCM Government Finance & Research Regulating Drone Use 122 Introduction

Drone Use Regulation

In June 2014, the Legislative Program Review and Investigation Committee approved a study of drone use regulation with a focus on examining how drones are regulated under current law and how they might be regulated by the state. This report builds on the study update presented to the committee on October 1, 2014. That update included information on the wide range of drone sizes, uses, and definitions, as well as clarifying the current status of federal regulatory efforts and how those efforts may inform state policymaking. The main points of the interim study update were:

• Drones are any unmanned, powered aircraft that sustains flight through remote operation, autonomous control, or some combination of the two. • The 2012 Federal Aviation Authority (FAA) Modernization Act: − defined unmanned aircraft (i.e., drones) for the first time in federal statute; − distinguished between three different types of drones – civil, public (i.e., government), and model aircraft; and − required the development of a number of plans and regulations to “safely accelerate the integration of civil unmanned aircraft systems in the national airspace system.” • The regulations to implement the Modernization Act are still in progress and have not yet been made public; • The Modernization Act defines drone types by their physical characteristics and capabilities as well as by the purpose for which they are being used. • Most jurisdiction for aircraft regulation is under FAA, excepting some aspects of state and local governmental aircraft. This includes authority regarding: − regulation of the navigable airspace; − operation of aircraft; − setting airworthiness standards; and, − establishing pilot licensing or certification requirements. • State or local attempts at regulating flight or aircraft directly are preempted by federal authority over national airspace. • States have authority over aircraft owned or used by state and local governments, including the ability to place limits on drone use for governmental purposes and/or by government employees in the course of their job responsibilities.

Another main theme presented in the study update was that primary stakeholder concerns about drones revolve around the issues of privacy, safety, economic activity, and the proper balance between all areas of concern. To further develop these points, program review staff

CCM Government Finance & Research Regulating Drone Use 123 interviewed several different stakeholders and stakeholder groups within the state, reviewed legislation adopted in other states, examined a sample of proposed recommendations in other states, and examined some of the testimony and media reports about legislative proposals from outside of Connecticut. On October 8, 2014, the program review committee also held a drone demonstration at the Capitol, followed by a panel discussion of drone use stakeholders and an informational public hearing.

Recent federal activity. Since the October study update, there has been relatively little federal activity regarding drones, except for two notable actions: 1) a set of six filmmaking companies were given FAA approval to use drones commercially in limited, controlled situations; and 2) the National Transportation Safety Board (NTSB) overturned an earlier March 2014 administrative decision1, which held “model aircraft” were not included in the federal definition of aircraft and thus not regulated by FAA, as a matter of statutory interpretation. NTSB came to a different statutory interpretation conclusion based on a plain language reading of the aircraft definition, and found that “model aircraft” are “aircraft” for the purposes of FAA regulation of “reckless or careless” operation. (Neither event has major implications regarding states’ authority over drones, which is the main focus of this report.)

Potential commercial uses. Almost all commercial drone use is currently prohibited. But once allowed, drones have the potential to be used for commercial activity in many ways. There have been some high profile examples of attempts to use drones for delivery of goods, but the current most practical use of drones is in capturing images or sound. For examples, drones can help a photographer create pictures or videos from vantage points not normally accessible. Drones may also be helpful in developing house profiles for real estate transactions. There are also numerous ways in which drones may be used to help survey agricultural areas.

Governmental drone use waivers. The number of Table 1. Number of COAs Issued governmental users is strictly limited, though much higher than the number of allowed commercial uses. Governmental uses are Year # of COAs currently only allowed under the terms of a certificate of waiver 2009 146 or authority (COA) issued by FAA to a governmental sponsor for 2010 298 a particular use. The COAs themselves are generally issued for a 2011 313 limited duration. In a January 2014 fact sheet on FAA drone 2012 257 regulation, FAA indicated there were 545 active COAs as of 2013 373* December 4, 2013. The total number of COAs issued by year is shown in Table 1. Program review staff obtained information *as of October 31, 2013 from FAA showing that at least eight COAs were approved for Source: FAA Connecticut higher education institutions for research purposes, all of which were sponsored by either Central Connecticut State University or the University of Connecticut.

Report organization. This report contains four chapters. The first chapter provides an examination of how drones might be addressed under current law. Chapter Two describes legislative efforts regarding drones in other states. The third chapter describes and proposes certain legislative actions regarding non-governmental drone use, while the final chapter does the same regarding governmental drone use.

1 FAA v. Pirker

CCM Government Finance & Research Regulating Drone Use 124 Chapter One

Drones Under Current Connecticut Law

The term “drone” is not mentioned in Connecticut state statutes.2 Still, some state laws may already apply to certain aspects of drones and drone use. This chapter looks at the current legal status for different drone uses and users under existing laws, criminal or otherwise. Also, the chapter examines how drones may be used by law enforcement agencies given existing statutes and case law.

Aircraft Statutory Definitions

Chapter 266 of the Connecticut General Statutes sets out a number of provisions regarding aeronautics in the state, and the Department of Transportation (DOT) commissioner’s responsibilities to enforce them.3 These provisions include a definition of “aircraft”, along with definitions of related terms. According to statute, aircraft:

means any contrivance used or designed for navigation of or flight in air, including (A) airplanes, meaning power-driven fixed-wing aircraft, heavier than air, supported by the dynamic reaction of the air against their wings, (B) gliders, meaning heavier than air aircraft, the free flight of which does not depend principally upon a power-generating unit, and (C) rotorcraft, meaning power- driven aircraft, heavier than air, supported during flight by one or more rotors. (C.G.S. Sec. 15-34(2))

This definition reads as inclusive of all aircraft, as it does not specify whether aircraft are manned or unmanned. The word “aircraft” is then referenced in several other definitions, such as of “operation of aircraft.”4 The current statutory definition of “operation of aircraft” does not exclude drones, as there is still an operator for drones – even when drones are automated, the person programming the automation is considered the operator.

Because drones fall under the state’s broad definition of aircraft, the regulations and restrictions already in place for aircraft would also apply to drones. In some instances, this makes the current status of certain aspects of drone regulation under state law fairly clear, but in other cases this may create restrictions not intended for, or clearly applicable to, unmanned aircraft. For instance, under current law any “aircraft accident” that causes substantial damage to the aircraft must be reported to the DOT commissioner or to the state police.5 Since drones are covered by the blanket term “aircraft,” it would seem drone accidents, which can end with

2 Nor are other commonly used synonymous terms (e.g., unmanned aircraft, unmanned aerial systems (UAS)). 3 As a larger matter not completely within the scope of this study, it is possible that much of the current state law pertaining to aircraft is preempted by federal law. This issue is addressed in Chapter Three. 4 C.G.S. Sec. 15-24 (20) ‘Operation of aircraft’ means the use of aircraft for the purpose of air navigation and includes the navigation or piloting of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control thereof, shall be deemed to be engaged in the operation of aircraft within the meaning of the statutes of this state.” 5 C.G.S. Sec. 15-71a

CCM Government Finance & Research Regulating Drone Use 125 considerable damage to the drones themselves, should be reported. However, for the purposes of the reporting requirement, an “aircraft accident” is statutorily defined as:

“an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, in which any person suffers death or serious injury as a result of such person being in or upon the aircraft or in direct contact with the aircraft or anything attached thereto or as a result of the operation of the aircraft, or the aircraft receives substantial damage[.]”(C.G.S. 15-71b(a).)

This definition of “aircraft accident”, which refers to persons boarding the aircraft, means that unmanned aircraft are exempt from the accident reporting requirements. Similarly, the statutes regarding aircraft registrations and aircraft use of airports or helipads both have instances where drones might be included and others where drones are excluded. As such, program review staff finds that current state aeronautic statutes are not clear about state requirements for drone use, as the statutes that are most applicable were largely crafted regarding manned aircraft exclusively and without possible use of drones in mind.

Criminal Use of Drones

Criminal law intersects with drone use in two main ways – instances where the use of the drone itself may be considered criminal and other cases where a non-flight based criminal act is committed through the aid of a drone. The former should generally be dealt with federally, while the latter may be addressed at different levels of government. That is, there are laws of general application that are relevant beyond only drones or aircraft. For example, there are several different felonies (e.g., assault, murder, robbery, burglary) with statutory description that is inclusive of the possession or use of a “dangerous instrument”.6 Certain uses of drones fit this description by virtue of being aircraft, regardless of any other equipment the drone might be carrying. But these laws apply beyond just aircraft or drones, as there are many other examples of non-aircraft “dangerous instruments.”

The use of a weapon, deadly weapon, or dangerous instrument in the course of many crimes is already illegal - using a drone to enable the use of the deadly weapon is generally not any different than using it directly without a drone’s involvement. Likewise, stalking is when a person “directly, indirectly or through a third party, by any action method, device or means, (1) follows, lies in wait for, monitors, observes, surveils, threatens, harasses…” a person – use of a drone to stalk is covered within that definition as either “indirectly” stalking or “by action method, device, or means.”7

Weapon possession. Possession and use of certain weapons is already illegal, so use of such weapons via a drone is also illegal. There are also statutory items that clarify what

6C.G.S. Sec, 53a-3 (7) "Dangerous instrument" means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a "vehicle" as that term is defined in this section and includes a dog that has been commanded to attack, except a dog owned by a law enforcement agency of the state or any political subdivision thereof or of the federal government when such dog is in the performance of its duties under the direct supervision, care and control of an assigned law enforcement officer. 7 C.G.S. Sec. 53a-181d

CCM Government Finance & Research Regulating Drone Use 126 constitutes breaking a particular law or as evidence for the same. For example, the “presence of a machine gun in any room, boat or vehicle shall be presumptive evidence of the possession or use of the machine gun by each person occupying such room, boat or vehicle.”8 Drones that can carry weapons appear to fit the statutory definition of “vehicle,”9 but since this particular law is based on the vehicle being occupied, it remains unclear whether the presence of an illegal weapon on a drone implicates the owner of the drone for possession.

Remote use of firearms. Current statute prohibits the use of remote devices to operate firearms.10 This implicitly includes drones within the definition of remote devices, but this statute is limited to forbidding remote hunting via computer software and does not address any remote use of firearms outside of hunting activities.

Trespass. One area of criminal law with very limited applicability to drones is trespassing. All degrees of trespass are described as “a person” entering a building or an area without permission or consent. As a drone is not “a person,” it is difficult to see how current law might apply here. Likewise, trespass requires either being in a building or on the premises of a location. Even if trespass could be committed by a proxy for a person, criminal trespass with a drone would most likely be done by flying in the air above a property, rather than clearly inside a building.

Current law, state or federal, does not make clear the elevation at which private property becomes public airspace. The United States v. Causby (1946) decision said that flying aircraft at 83 feet from the ground was so low as to have a material negative impact on the property owner, but did not make clear that this elevation was an actual demarcation of where private property ended. Without a definition of the upper elevation limits of private property, it would be difficult to argue that a drone had entered that property criminally by flying over it.

Civil Action

A civil action is the procedure by which a person, against whom a civil wrong has been committed by another, seeks by a lawsuit to stop the wrong or be compensated for it. Civil wrongs are distinguished from criminal laws, and can be either enacted as statutes or developed in case law. In the case of drones, it can easily be imagined that a drone could fly into property not owned by the drone operator, which could, for example, lead to a civil action for trespass (as opposed to criminal) if these elements were established:

(1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.

8 C.G.S. Sec. 53-202(e). 9 C.G.S. Sec. 14-1 (100) "Vehicle" includes any device suitable for the conveyance, drawing or other transportation of persons or property, whether operated on wheels, runners, a cushion of air or by any other means. The term does not include devices propelled or drawn by human power or devices used exclusively on tracks. 10 C.G.S. Sec. 26-80b.

CCM Government Finance & Research Regulating Drone Use 127 On the issue of whether a civil action based on state law for a drone flying over someone’s backyard would be allowed, or preempted by federal authority, the common legal reference Restatement of Torts11 states in a section on “Intrusions Upon, Beneath, and Above Surface of Earth” that “a trespass may be committed on, beneath, or above the surface of the earth. Flight by aircraft in the air space above the land of another is a trespass if, but only if:

(a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other's use and enjoyment of his land.”

As noted elsewhere, there is no clear formula for determining the elevation that would be considered the "immediate reaches of the air space next to the land", but appears to be a case by case determination.

Law Enforcement Search Warrant Requirements

In the course of criminal investigations, law enforcement agencies have several tools to access privately held areas or information. One main tool is the search warrant, required in many law enforcement activities because both the federal and state constitutions protect the rights of citizens against “unreasonable searches and seizures.”

The Fourth Amendment to the United States Constitution reads: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A key concept underlying the meaning of unreasonable search is whether the person affected has a “constitutionally protected expectation of privacy”, determined by whether: 1) the person showed a subjective expectation of privacy and 2) society is willing to recognize that expectation as reasonable.12

There are numerous situations where search warrants may be necessary, most notably for searches of homes, cars, or other private property or in searches of persons themselves. A search warrant must be authorized upon application to a judge and a showing by law enforcement officials to the judge’s satisfaction there is “probable cause” that an item of interest in a criminal investigation is being held at a specific location or by a particular individual (i.e., more likely than not). In effect, the independent judicial review and consent that is necessary for a warrant to be issued for a search helps protects a person from an unreasonable search.

There are exceptions to the need for a search warrant. For example, a search of a person’s house (or other private property) is deemed reasonable if the owner of the property consents to the search, or if there is a reasonable belief a crime is being committed or there is an imminent threat to life or safety (i.e., exigent circumstances).13 A search is also deemed reasonable if it

11 Restatement (Second) of Torts § 159 (1965) 12 Katz v. United States 389 U.S. 347 (1967) 13 Per People v. Ramey, “’exigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.”

CCM Government Finance & Research Regulating Drone Use 128 consists of items in plain view of the non-aided human eye from an appropriate vantage point, which may also involve an expectation of privacy analysis.

Use of drones raises questions in regard to search warrants because drones are potentially capable of providing viewpoints outside of those normally available to law enforcement officials, and because they are capable of carrying and operating imaging equipment at those alternative viewpoints. Both advantages have already been addressed to some degree by the judicial system, but neither has been considered specifically in the context of current (or future) capabilities of drones. In particular, numerous rulings have been made on the necessity of a warrant for searches conducted using aerial surveillance and with so-called sense-enhancing devices.

Reasonable expectation of privacy and aerial surveillance. Aerial searches have been ruled legal so long as the information collected was visible to the unaided human eye from a public vantage point. As the national airspace is a “public highway,” views from that vantage point are allowed to the public and law enforcement agents alike (via manned aircraft). Since the public has a right to that aerial view, it does not bring with it an expectation of privacy. The result here is that items on private property that can be seen from above are potentially admissible evidence even when collected without a warrant. This is true even in situations when active precautions have been taken to prevent ground-level viewing (e.g., installing a tall fence or thick vegetation). This aspect of warrant law is commonly called the open-fields doctrine.

However, the cases that have permitted aerial surveillance by law enforcement without a warrant have not had to consider some of the advantages of small, light, unmanned aircraft – namely, that drones are able to operate safely at a much lower elevation than most manned aircraft. Some of the rulings have included specific heights at which aircraft flew as limiting the expectation of privacy.14 But the static elevations mentioned in those cases have been cited because they were within FAA proper use guidelines. If FAA guidelines change, it may be that the acceptable elevations change along with them.

It is not clear whether or how the courts may view the ability of drones to operate safely and within FAA guidelines at lower elevations and how that might impact on searches. If aerial surveillance is allowable from any height the FAA deems safe, then lower-elevation drone surveillance may be used in place of manned-helicopter surveillance. This could potentially lead to more effective, but also more invasive, aerial searches, if the decrease is elevation translates to more detailed imaging.

Another consideration is that current manned aerial surveillance efforts are typically limited to primarily overhead views due to the combination of topography and minimum safe flying elevations, but a relatively small drone would potentially be able to fly (or hover) at an elevation parallel to windows above the ground floor. This may lead to law enforcement officials being able to capture images from viewpoints they cannot currently easily get to. However, it is not clear that capturing images from this vantage point would require a warrant now. It is possible that evidence collected from that viewpoint would be admissible without a warrant in certain situations (e.g., for looking over fences or shrubs into the backyard) but not for others, depending largely on whether that viewpoint was deemed publicly accessible or not.

14 California v. Ciraolo (1986) specified that unwarranted aerial surveillance from an altitude of 1,000 feet is reasonable. Florida v. Riley (1989) similarly allowed unwarranted aerial surveillance, but from the lower altitude of 400 feet.

CCM Government Finance & Research Regulating Drone Use 129 Reasonable expectation of privacy and sense-enhancing devices. Beyond “human eye” aerial surveillance, the use of technology to aid or alter what and how much can be seen from an allowable vantage point has generally not been ruled as admissible evidence. In Kyllo v. United States (2001), the U.S. Supreme Court ruled 5-4 that heat-sensing imaging that allowed law enforcement to effectively see certain aspects of the inside of a private home amounted to a violation of an individual’s expectation of privacy and thus was deemed an unreasonable search that is not allowable without a warrant. The other notable feature of this ruling was that the expectation of privacy had been violated not only because the technology was looking into the house through the very features the individual relied on to provide privacy (e.g., walls, roofs, or curtains), but also because the technology employed to perform the search (infrared imaging sensors) was not publicly available and/or commonly used among the public.

Implications of current warrant law on drone use. Both aspects of the Kyllo decision have potential ramifications for use of drones. Most plainly, drones can potentially be equipped with infrared technology (or other types of sensors that reveal something about the content of a home) and doing so would be an unreasonable search given current case law precedent. However, as one factor of the ruling deals with the public use of technology, it may be that eventually infrared technology (or other sensors that can give someone an image of what happens within a building) becomes so publicly pervasive that using it to look inside a house is no longer determined to be a violation of the expectation of privacy.

This factor could impact drone use; while drones may not be commonly flown just yet, their increased functions and affordability may lead to such common use that the judicial view of the expectation of privacy may conform to acknowledging the presence of drones. In particular, this is a possibility with decreasing the expectation of privacy in areas that are current not viewable from non-aerial public viewpoints (e.g., upper story windows not near other buildings) or areas that may be shielded from overhead aerial views by overhangs. This change in the interpretation of what is a reasonable expectation of privacy is not assured to happen and may be avoided without any state action, but it does remain a possibility that should be considered as drone use increases and drone laws are developed.

CCM Government Finance & Research Regulating Drone Use 130 Chapter Two

Other State Laws Summary

Within the last two years, 20 states have passed legislation directly dealing with drones.15 Almost all states have considered some legislative action regarding drones.16 Program review staff examined these laws in other states in order to determine what aspects of drone use have been regulated under state law elsewhere, examine the concerns about drone use and drone regulation raised and addressed in other states, and decide whether the regulatory efforts put in place in other states would be appropriate to adopt in Connecticut.

Besides looking at the laws themselves, program review staff considered the testimony and media accounts associated with the legislative actions in other states. The concerns expressed elsewhere mirrored the main concerns brought up by stakeholders in Connecticut – privacy, safety, and economics were the most frequently cited issues. Most of the legislative proposals adopted dealt with trying to find the proper balance between safety and privacy. Since the concerns elsewhere were largely the same as in Connecticut, it follows that Connecticut’s efforts at drone regulation may benefit from identifying the basic goals of laws written and adopted elsewhere.

Ultimately, all of the laws were passed so recently that no determination of effectiveness was possible at this time. Faced with extremely limited objective data, no single state method was determined to be appropriate for direct emulation in Connecticut. However, the recommendations made in Chapters Three and Four of this report are informed by pieces of legislation passed or raised elsewhere, as well as by academic and stakeholder reaction to the same.

State Regulatory Drone Laws

In total, 20 states have adopted drone-related laws other than resolutions. However, no conclusions can be drawn directly from the number of states that have passed laws, as the issue is recent enough that nearly all legislative action has been adopted within the previous two calendar years. It is probable that more states will pass legislation in the next few year, although some states may intend to wait for more information on federal regulation before addressing the issue at the state level.

Of the 19 states that have adopted legislation, 14 states have passed laws attempting to regulate drone use in some way. Of those 14, all but one has limited law enforcement use in some manner. The other five states that have passed drone laws have done so to fund drone test sites, drone research, or both. This section focuses on those state laws that regulate drone use. Table II-1 summarizes all current state regulatory drone legislation.

15 This number does not include states passing just resolutions about drones. 16 46 states have considered at least one drone-related bill according to data from the National Conference of State Legislators (NCSL)

CCM Government Finance & Research Regulating Drone Use 131 Table II-1. Summary of Regulatory Drone Legislation Adopted in Other States. Law Bill Criminal Civil Enforcement State Number Chapter Year Moratorium Penalty Remedy Restriction Alaska HB 255 Chapter 105 2014 Yes Chapter Florida SB 92 2013-33 2013 Yes Idaho SB 1134 Chapter 328 2013 Yes Yes SB 1587/ Chapter(s) Illinois 1652* 569/402 2013 Yes Yes Yes Indiana HB 1009 Chapter 170 2014 Yes Yes Chapter pending Iowa HF 2289 1111 2013 report Yes Louisiana HB 1029 Chapter 661 2014 Yes Montana SB 196 Chapter 377 2013 Yes Chapter(s) North 2013-360/ 2013 Carolina SB 402/744 2014-100 /2014 Yes Yes Yes Yes Oregon HB 2710 Chapter 686 2013 Yes Yes Yes Chapter SB 796/ 470/ 629 Tennessee 1777/1892 /876 2013 Yes Yes Chapter Texas HB 912 1390 2013 Yes Yes Utah SB 167 Chapter 399 2014 Yes HB 2012/ Chapter Virginia SB 1331 755/796 2013 Yes Wisconsin SB 196 Chapter 213 2013 Yes Yes Illinois also passed SB 2937, which amended existing drone law to account for use of third party drone-based data. Source: NCSL data and PRI analysis

Moratoriums on governmental use of drones. To date, only two states, North Carolina and Virginia, have enacted moratoriums on some aspect of governmental drone use, though exceptions to the moratorium are allowed in each state. Virginia’s moratorium applies only to agencies “having jurisdiction over criminal law enforcement or regulatory violations” but allows for drones to be used by those agencies in response to certain emergencies, including search and rescue operation. Virginia’s moratorium, established in 2013, is scheduled to expire in mid-2015.

North Carolina passed a wider-ranging moratorium on all governmental drone use, but allows uses that are approved by the state’s Chief Information Officer on a case by case basis. North Carolina’s moratorium was scheduled to expire in summer of 2015, but was extended through the end of 2015 as part of a larger legislative effort in 2014 that restricted both governmental and non-governmental uses of drones.

CCM Government Finance & Research Regulating Drone Use 132 Law Enforcement Drone-Use Restrictions

Thirteen states have passed non-lapsing restrictions on law-enforcement use of drones.17 All 13 have used a regulatory framework that included blanket prohibitions on law enforcement or governmental use of drones, but all include exceptions that then allow drone use in cases when the drone is operated under the conditions of a warrant or to address an emergency. Emergency use is specified to include search and rescue activities and instances where there is reasonable belief that there is an imminent threat to life or safety, but can also include situations that allow for surveying natural disasters or pursuing a suspect while a crime is in progress. Five states have also specified that drones can be used to address specific terrorist threats, though this iterated allowance is duplicative of the more general emergency allowances. Beyond these core exceptions, there is a lot of variation.

Allowing use when a warrant is not required. Five states (Alaska, Iowa, Montana, Utah, and Wisconsin) have exceptions that allow for law-enforcement drone use either with a warrant or in situations where a warrant would not normally be required. Without other restrictions, this type of drone regulation is simply codifying that drones can only be used within existing law and judicial precedent.

Crime scene documentation. Three states (Illinois, Texas, and Oregon) specifically allow drones to be used as a method of crime scene documentation. Including the four states that generally allow use outside of warrants brings the total that allow this type of activity to seven of the 12 states with law enforcement restrictions. Program review staff found no evidence of objection to use of drones for crime scene documentation in any of the states examined. Because of this, it is more likely that states overlooked this potentially beneficial, non-objectionable use when crafting legislation than that these states meant to specifically restrict this type of use.

Data restrictions. Drone use regulations in six states have included sections that clarify data storage and admissibility rules. The laws in Florida and Iowa state that the information collected with a drone is inadmissible unless obtained under the terms of a warrant. Montana and Alaska places a similar restriction, but allows for the admissibility of all data obtained under the broader terms of its drone law. Since both of these states are generally permissive of use outside of a warrant, this means almost all drone-collected data is admissible.

Utah is generally permissive of law-enforcement drone use and addresses data-retention, but does so in such a permissive way that the restrictions seem, to program review staff, ineffective or unnecessary. The Utah law also specifies that data collected with a drone, but not by law enforcement agents, is allowable and should be considered admissible by the courts. Illinois has a data-retention policy that requires drone-based data to be destroyed within 30 days of collection unless there is a reasonable suspicion that data includes information regarding criminal activity.

Reporting requirements. Though not a direct restriction on drone use, reporting requirements can help inform policymakers and the public as to the types and frequency of drone uses by governmental entities. Four states (Illinois, Oregon, Texas, and Utah) require that drone

17 The 13 includes North Carolina, as that state has passed laws that extend beyond the moratorium, but excludes Virginia, which so far has only passed the moratorium .

CCM Government Finance & Research Regulating Drone Use 133 ownership or use be reported on a regular basis. Illinois requires annual reporting on the number of drones owned by any governmental entity. Additionally, Illinois is one of two states (Oregon is the other) that requires emergency use of drones (i.e., drone use outside of warrants and/or criminal investigations) to be reported within 24 to 48 hours of the emergency use. Oregon and Utah require annual reporting of actual drone use, though Utah allows use related to ongoing investigations to be temporarily omitted and reported the following year. Texas requires law enforcement agencies to report drone use in odd-numbered years if the jurisdiction of the agency (local, county, or state) exceeds a population of 150,000 people.

To date, only Illinois has reached a reporting milestone. The first annual report on the number of drones owned shows that three drones are owned by governmental agencies in that state. (The Illinois report can be found in Appendix A.)

Other notable law-enforcement restrictions. While many features of current state drone law are common to multiple states, there are several interesting portions, clauses, or features that are only currently found in a single state’s law. Wisconsin law includes a definition of drones that sometimes limits their classification as drones to those instances where the drones are recording images or sounds.

Indiana specified that drones are defined as tracking devices. Given that use of tracking devices, especially in instances of ongoing surveillance, was recently restricted by the Supreme Court in the decision of United States v. Jones (2012), the Indiana law does meaningfully restrict law enforcement drone use for surveillance activities. Indiana also specifically allows drones to be used for the purposes of geographical survey, outside of criminal investigations.

Idaho drone law is relatively restrictive. Drone use by law enforcement is limited to cases where the use is done under the terms of a warrant or in the case of an emergency, except the use of drones for “marijuana eradication efforts” is also specifically allowed. Current aerial surveillance is often focused on finding where controlled substances are grown, so this allowance is fairly large. Still, limiting unwarranted drone surveillance to just operations involving marijuana seems to unnecessarily leave out operations where other controlled substances may be present.

Criminalization of Drone Use

Some states have passed laws criminalizing some aspect of drone use. As of this writing, nine states have described drone uses that are specifically prohibited and one more, Iowa, passed a law looking into the need for criminal sanctions for certain types of use. Of the nine states that have adopted drone-specific criminal sanctions, eight have also passed law enforcement drone restrictions of some kind. The ninth state, Louisiana, prohibits pointing lasers at a drone or using a drone for targeted surveillance of select types of facilities (i.e., petroleum and alumina refineries, chemical and rubber manufacturing facilities, and nuclear power electric generation facilities) without consent, but has not passed legislation specific to governmental or law- enforcement use.

Four states (Indiana, North Carolina, Tennessee, and Texas) have prohibited some aspects of drone-based photography or videography, though each state’s law provides exceptions

CCM Government Finance & Research Regulating Drone Use 134 for images of videos taken with the consent of the person or property owner involved. North Carolina has made an exception to its photography ban for journalists. In some cases, the photography is permitted when the persons or property being photographed is not identifiable. Additionally, some state laws specify that publishing the pictures (i.e., either posting them publicly on the internet or selling them privately) is a greater crime than possessing the pictures. In these instances, criminal charges may be avoided if the pictures are destroyed without publishing upon discovery that a person or private property was identifiable within the images.

Wisconsin has banned the weaponization of drones (i.e., equipping any drone with a weapon that can be deployed or operated remotely). Illinois passed a law that prohibits hunter interference with a drone, which also includes some potential civil penalties for the same.

Oregon, among others, has passed a drone-related criminal law that serves to protect drones, rather than protect people from drones. In particular, shooting at drones or interfering with their operation without consent, either by taking over the drone by hacking the remote connection or by pointing lasers at a drone, which might cause sensor malfunction, are both illegal.18

Civil Remedies for Unwanted Drone Use

Beyond prohibiting certain governmental uses of drones and specifying criminal sanctions for other types of drone use, four states have provided civil remedies to address some unwanted aspect of drone use. As mentioned previously, Illinois adopted both criminal and civil consequences for drone use that interferes with legal hunting or fishing practices.

Oregon provides a civil course of action for drone operators to pursue if their legal drone use is interfered with, which mirrors the criminal sanctions that state put in place. Oregon also specifies that civil suit can be brought for the unwanted use of drones at less than 400 feet above a person’s private property, if the property owner has warned the drone operator that the use is a unwelcome behavior at least once prior to the incident that sparks the civil suit.

Idaho also created a civil remedy that allows a person to bring suit against a drone operator if the drone operator is engaging in unwanted surveillance or otherwise photographing an individual in a private area without that person’s consent. North Carolina has a similar law that allows civil suit to be brought against persons for unwanted surveillance, stating that the victims of unwanted surveillance may receive a sum of money for each unwanted image taken.

Drone Laws Under Consideration

Besides those states that have passed regulatory drone laws, program review staff, with the assistance of the Office of Legislative Research and the Legislative Commissioner’s Office, examined information on bills that were considered in other states. In total, drone-related laws that were passed or proposed in 34 states were analyzed.

The aim of this analysis was to determine if a wider range of possible regulations had been considered beyond just those legislative efforts that had been successfully adopted. Staff

18 Louisiana’s drone law similarly prohibits use of a laser to interfere with a drone.

CCM Government Finance & Research Regulating Drone Use 135 also examined whether the issues and possible legislative fixes considered but not adopted had differed in any substantial way from the regulatory efforts that were adopted. The results indicate that the same concern areas, privacy and safety, were present in reviewed states, regardless of whether legislation had been passed. Likewise, almost all states reviewed for this study have considered or passed legislation that restricts law-enforcement use of drones in some manner, and over half of all states reviewed considered or adopted legislation that criminalizes some aspect of drone use.

Table II-2 provides a summary of the legislation considered in 19 states that have not adopted regulatory legislation, which includes looking at what else the five states that passed non-regulatory test site or research funding considered. This sample represents just over half of the 34 states (excluding Connecticut) that have not adopted drone regulation legislation.

Table II-2. Types of legislation considered in states without regulatory drone legislation.

Types of legislation introduced or considered Non-regulatory Criminalization of non-law State bill adopted Law enforcement limitation enforcement use Alabama No Yes Yes Arizona No Yes No Arkansas No Yes Yes California No Yes Yes Delaware No No No Hawaii Yes Yes Yes Kansas No Yes No Maryland Yes Yes Yes Minnesota No Yes Yes Missouri No Yes No Nebraska No Yes No Nevada Yes No No New Hampshire No Yes Yes New Jersey No Yes Yes New Mexico No Yes No New York No Yes Yes North Dakota Yes Yes No Ohio Yes Yes No Washington No Yes Yes

Number and 5 of 19 (26%) 17 of 19 (89%) 10 of 19 (53%) Percent of Sample Source: NCSL data and PRI, OLR, and LCO analysis

CCM Government Finance & Research Regulating Drone Use 136 Chapter Three

State Options to Regulate Non-governmental Drone Use

Some drone use outside of government agency use may be regulated by the state, though certain efforts may run into federal preemption issues. This chapter examines some non- government agency drone uses and identifies areas where state action may be necessary, including some regulatory paths that might impact both governmental and non-governmental uses. In particular, this chapter provides information in several areas: review of existing statutes, drone registration, criminal use of drones, civil remedies for commercial drone use, and the economic impact of drones.

Statute Review

As discussed in Chapter One, current state statutes were crafted without the capabilities, and availability, of drones in mind. Because they do not need to be able to carry the weight of a pilot, drones are available at much smaller sizes and weights than manned aircraft. It is this smaller size that allows them greater maneuverability and safer operation at lower elevations. However, some drones are as big or as heavy as existing manned aircraft. As it is the smaller craft that are expected to be most prominently used going forward, and that the new features and capabilities of those craft that are most likely to exist outside the expectations of current statute for all aircraft, the program review committee staff recommends:

1. The statutory definition of “aircraft” in C.G.S. Sec. 15-34 (5) shall be amended to indicate that the term includes both manned aircraft and unmanned aircraft. Definitions of both manned and unmanned aircraft shall be adopted within statute, to allow proper differentiation when the term “aircraft” is found to be overly broad. Also, a subset of unmanned aircraft shall be defined as “small unmanned aircraft” when such unmanned aircraft weigh less than 55 pounds.

Creating these new categories under the umbrella term “aircraft” should assist lawmakers to modernize existing statutes to explicitly consider unmanned aircraft and small unmanned aircraft. The demarcation of small unmanned aircraft is intended to follow the federal definition of this class of unmanned aircraft. While the federal regulations for small drones have not yet been made public, it is likely that these small craft will be regulated in a substantially different manner than heavier drones.

There has been suggestion by some drone users interviewed by committee staff that the 55 pound weight limit maximum used at the federal level is too heavy to maintain safety adequately. The legislature may eventually need to identify another subset of small drones that is significantly lighter or smaller. However, until there are more drones on the market in the 20 to 55 pound weight range or until federal small unmanned aircraft regulations are adopted, it would be easiest to use the federal 55 pound weight limit to define small unmanned aircraft in Connecticut.

CCM Government Finance & Research Regulating Drone Use 137 Though current statutes do not directly refer to drones, there are instances where drone use seems to be covered under existing state statute, especially for statutes pertaining to aircraft more generally. Chapter 266 on Aeronautics dates back to at least the 1949 statute revisions, and it is possible that much of it is preempted by federal FAA law. Other statutes have been made obsolete through a combination of changes in aviation technology and reorganization of state government (i.e., the Connecticut Department of Transportation no longer has an aviation unit, though current statutes still require the transportation commissioner to oversee certain aeronautic rules and regulations). As much of the aeronautic statutes are outdated, the program review committee staff recommends:

2. The Connecticut Law Revision Commission shall review all state aircraft- and aeronautic-related statutes. The review shall include a determination of whether the statutes continue to be useful to the state, particularly for safety, privacy, or financial reasons. The review shall also determine when and if certain statutes should pertain only to a subset of aircraft, such as manned aircraft or small unmanned aircraft. The review should prioritize repealing statutes that are preempted by federal authority.

Registration of Drones

Notwithstanding the federal preemption issues and outdated aircraft statutes, the state currently has some limited authority regarding non-governmental manned aircraft. The state should expect a similar level of authority over non-governmental unmanned aircraft, except, perhaps, for those activities, capabilities, or uses of unmanned craft that differ from their manned counterparts.

One area of continuing state authority is of registration of aircraft for the purposes of property assessment and taxation. In order to avoid federal preemption, state registration requirements should not be used to prevent the operation of the aircraft. One state, North Carolina, recently passed legislation mandating state registration of drones beyond anticipated federal registration requirements. As the federal registration requirements for drones have not yet been adopted, it is not yet known whether the North Carolina law will need to be adjusted to avoid clashes with federal authority.

There may be a financial incentive for a state to require state registration of drones, as registration fees and property taxes on drones are potentially new sources of revenue. Indeed, Connecticut has some governmental infrastructure in place to register manned aircraft at the local level. However, since drone ownership is expected to eventually be far more common than manned aircraft, it may be that current local resources dedicated to manned aircraft registration would be overwhelmed by the volume of drone registrations. Further, building more infrastructure to register and tax drones universally might result in greater costs than individual revenues. Registration requirements in addition to the anticipated federal one could stifle drone use adoption in the state and, with it, any economic benefit from expanded drone use.

CCM Government Finance & Research Regulating Drone Use 138 Any benefits from adopting and enforcing a drone registration requirement in the state before the federal program is in place are likely to be outweighed by the costs of the registration program, which might include altering the system to align with the federal registration system or defending the legal status of the state registration program. The information gathered in the registration process at the federal level should be both the same basic information the state might seek about a registered drone and available to the state for review when necessary.

Once federal registration requirements for certain drone weight classes are made available, Connecticut should explore whether instituting a non-government agency drone registration program makes sense to achieve state safety and privacy goals, as well as whether such a program might be a long-term net positive revenue source. As part of this future examination, the state should determine whether drones in low weight classes, such as the small unmanned aircraft definition recommended above, should be exempted from registration requirements. To clarify the intent of this course of action, the program review committee staff recommends:

3. Unmanned aircraft shall be exempt from the aircraft registration requirements of C.G.S. Secs. 13b-39a to 13b-39d inclusive for a period of ten years.

Adding an exemption with a limited duration should allow policymakers time to observe adoption trends, examine federal regulations as they are adopted, and give the local governmental officials, who would be required to administer such registration programs under current law, time to prepare for the added time and expenses that may be incurred as drone use increases.

Criminal Use of Drones and State Response

Outside their operation, which is addressed federally, criminal use of drones can occur when those drones are used to perform activities that are illegal. That is, it is possible that a person using a drone could be committing a crime, but at the state level that crime would not be for drone use generally, but rather what is being done via the drone. The situation gets more complicated, and may require legislative action, when the statutorily-defined elements of the crime inadvertently exclude the possible use of drones.19

Stalking and voyeurism. One of the greatest concerns brought up in this study is the potential use of drones by private individuals to invade other individuals’ privacy. There are numerous ways this general activity has been addressed statutorily, especially laws to prevent stalking and voyeurism. As described in Chapter One, using a drone to stalk seems to be addressed by current statute without modification. This is mostly true for the voyeurism statute as well. It is worth pointing out, however, that the meaning and enforcement of some statutes may eventually be directly or indirectly impacted by drone use.

Current voyeurism law includes definitional language stipulating that the offending filming or photography is made “while (the victim) is not in plain view” and “under

19 This inadvertent exclusion of drones seems to occur when the capabilities of lightweight, maneuverable unmanned aircraft were not contemplated at the time the criminal act was described statutorily.

CCM Government Finance & Research Regulating Drone Use 139 circumstances where (the victim) has a reasonable expectation of privacy.”20 While not assured to do so, increasing drone use may change the underlying interpretation of what is deemed to be “in plain view” or what a “reasonable expectation of privacy” is in some circumstances. Even if this happens, it is likely that most use of drones for unwanted surveillance that captures images inside a house or otherwise on private property may be considered criminal conduct under existing law. It may be that pending FAA drone regulations directly or indirectly address this issue.

After federal regulations are adopted, current state law or federal regulation could be examined to determine if drone-based voyeurism, along with similar laws like stalking, is addressed adequately. If current law does not adequately address these uses, policymakers should consider adopting legislation that prevents this method of capturing unwanted images or video in a way that is inclusive of all technologies. Rather than specifying that drone-based voyeurism is indeed voyeurism, drones should be held as just one example in the category of technology the use of which is not inherently voyeuristic or otherwise criminal, but nevertheless may be used as part of a criminal activity.

Criminal trespass. Under current law, the presence of a drone itself is unlikely to be considered trespassing, because trespass requires a person to be on the property. It may be possible to modify the existing trespass law to state that trespass can be committed by a person or a technological proxy for a person, but that may be overly complicated and contested. Further, for trespass law to be effective outside of a building or house, it would need to be clear how far up personal property extends. That is, a drone would only be trespassing if it is on a property, not if it is flying above that property. As stated in Chapter One, current law, state or federal, does not provide a specific elevation end point for property rights.

The state would likely need to adopt a specific height relative to the ground below, a height above the highest structures on a piece of land, or some other demarcation for aerial trespass laws to be effective. This is somewhat problematic, as while this may be legally possible, it is not clear the state has the specific authority to establish aerial property rights in a clear and easy way. Under FAA’s current interpretation of its authority, all airspace is under that agency’s jurisdiction, including the airspace immediately above private property. If a state tried to establish a private property elevation, the state would likely be the subject of legal challenges from FAA. As there are numerous other ways to deter or prevent unwanted drone use around private property, program review staff makes no recommendation to change trespass law or establish a personal property height at this time.

Weaponization of drones. There is some concern that drones can be used to remotely control weapons to intentionally harm persons or property with a drone. In the course of this study, the risks and dangers of drones being used to control weapons were deemed by stakeholders to far outweigh any potential benefits of allowing the public such a practice. Considering these aspects, the program review committee staff recommends:

4. Remote operation, including through the use of drones, of deadly or dangerous weapons shall be prohibited.

20 C.G.S. Sec. 53a-189a.

CCM Government Finance & Research Regulating Drone Use 140 As mentioned in Chapter One, while current law prohibits the possession of certain weapons, the presence of such a weapon on a drone may not be presumptive evidence of possession given the statutory definitions involved. For these reasons, the program review committee staff recommends:

5. The presence of restricted items (e.g., weapons or controlled substances) on, in, or otherwise attached to unmanned aircraft shall be presumptive evidence of the possession of said items by the unmanned aircraft operator.

Civil Remedies for Dealing with Unwanted Non-governmental Drone Use

As mentioned in Chapter One, states can also establish civil remedies to help private citizens deter or prevent unwanted drone use on or near their personal property. While current law may be inclusive of civil action regarding drones, providing clarification about the applicability of current civil remedies for incidents involving drone use may at least partially address some privacy concerns. An advantage of establishing guidelines for civil action regarding drones, rather than more specific criminal language, is that these should not unnecessarily prevent or discourage private drone uses on a person’s own property or with the consent of other property owners.

Given the wording of existing law and the ambiguity associated with the lack of federal regulations, these clarifications may not be necessary at this time. However, if policymakers eventually decide to explicitly include civil drone offenses, such clarifications should be inclusive of drones as one form of technology among several to which these civil rules apply. If written correctly (i.e., avoid setting specific height requirements or forbidding uses the FAA specifically allows), this type of clarification should avoid federal preemption while providing additional avenues for remedy of potential privacy invasions.

Commercial Drone Use

Use of drones by non-governmental agencies for commercial activities is regulated by the federal government through FAA authority. While there is currently a blanket prohibition on commercial drone use, except for certain special uses, that commercial ban is not expected to last indefinitely.21 As of this writing, FAA has stated that the first commercial drone regulations should be made available for public comment in late 2014 or early 2015. The first required draft commercial regulations are expected to be limited to small drones with regulations on larger drones coming out in stages in the years following.22 It is likely that even the earliest commercial regulations will not be adopted until at least 2016.

Not knowing what the federal regulations might include, state legislation crafted now might conflict with these impending FAA regulations. Further, numerous stakeholders and

21 A very limited number of commercial uses of drones have been allowed to date. In late September 2014, FAA announced that six film making companies had been approved to use drones on closed sets for commercial activity. These waivers joined two previous commercial use approvals that were limited to rural Alaskan locations. 22 In this context, small drones are expected to be defined federally as drones weighing less than 55 pounds.

CCM Government Finance & Research Regulating Drone Use 141 stakeholder groups in Connecticut have expressed their desire to use drones for commercial purposes and to do so without state limitations beyond the expected FAA requirements.

Some drone-related legislation in other states (e.g., Texas and North Carolina) includes provisions that attempt to clarify what commercial uses are allowed. But commercial drone use in those states continues to be prohibited under federal law, regardless of whatever laws the state has passed. Commercial drone activity is expected to continue to be regulated federally in the future, so passing state laws allowing or prohibiting certain commercial uses may confuse users. This, in turn, could lead to FAA enforcement actions against those state resident drone users, while putting the state in a position to face legal challenges from the federal government.

Other states have passed laws restricting certain commercial uses, most commonly prohibiting the capture and distribution of certain images produced with the assistance of a drone. In some cases, these laws, like FAA rules, distinguish between commercial use and private use. Such laws seem overly difficult to enforce, as determining whether a drone is being used for recreation or commercial activity is difficult at the time of the activity and may change at time after the actual drone use (e.g., a hobbyist takes pictures with a drone and later decides to sell an image).

Within the context of state regulation of drones, any restrictions on non-governmental drone use should focus on improving the two main drone-related concern areas of safety and privacy. Based on staff interviews and literature review, there appears to be consensus between various stakeholder groups that any restrictions on non-governmental use of drones should be neutral to the type of drone user (i.e., commercial or hobbyist). Therefore, the program review committee staff recommends:

6. No laws specific just to commercial drone activity should be adopted in the state until at least such time as relevant federal unmanned aircraft regulations are adopted and can be reviewed.

Instead, any action restricting non-governmental drones the legislature deems necessary to protect resident privacy and safety should be content-neutral. This means that any law on drone use should address either all drone use or all non-governmental drone use, regardless of whether the use directly or indirectly leads to money changing hands. For instance, the state eventually may choose to restrict the launching, landing, or operation of drones in the direct proximity of active crime scenes to maintain integrity of the scene and alleviate the possibility of a drone crash in a sensitive area.23 If a restriction like this were adopted by the state, it should apply to private citizens and journalists alike, and not just one group or the other.

Potential Economic Impact of the Drone Industry

Another issue that was brought up by stakeholders regarding drone use is the expected economic impact of the emerging industry - and whether and for whom the impact will be positive or negative. Unfortunately, there has been little work done in this area by neutral, outside observers – the limited information readily available is industry-sponsored research.

23 This example is not a specific recommendation, as issues like this one may be addressed by federal regulation and may also be complicated by current law surrounding photography of crime scenes more generally.

CCM Government Finance & Research Regulating Drone Use 142 Accounting for that concern, the overall economic possibilities seem impressive. In one report, the impact of drones is estimated to be over $13 billion nationally in the first three years after drones are integrated into the national airspace.24 However, since the FAA regulations necessary to integrate drones into the national airspace have not been adopted yet, any sizeable impact has yet to be felt. Similarly, the same report estimates that with each year that passes without full drone integration in the national airspace, up to $10 billion is prevented from entering the national economy.

Faced with the massive uncertainty of the real impact of a relatively new technology, there are no surefire options to boost drone-related economic activity through state legislation. On the other hand, if drones are expected to provide a net positive economic impact, states may want to be careful to not impede such a boost through slowing the adoption of technology, particularly through creating additional regulations that may be viewed as cumbersome or unnecessary without added benefit to safety or privacy.

A few other states have adopted resolutions regarding the importance and potential economic benefits of expanded drone use. In some cases, these resolutions were crafted as a way of proactively reaching out to the drone industry to encourage creation of drone-related economic activity in the state. Other resolutions have more directly called for swifter federal action to allow some aspect of drone use or have urged favorable consideration of that state for the location of a drone test site. The nascent nature of the drone industry prevents any meaningful analysis of the impact of such resolutions. But, passing a resolution to encourage FAA timeliness in adoption of regulations that would allow the creation of legal drone uses in the state might be a worthwhile action with little downside.

Drone test sites. At this time, there are active drone test sites authorized by FAA located in six different states – Alaska, Nevada, New York, North Dakota, Texas, and Virginia. These sites were selected from 25 different proposals in 24 states. It is not yet known if the FAA will eventually expand the number of drone test sites nationwide. If it does, it may be in Connecticut’s financial interest to provide some funding for a site for use by drone manufacturers in and out of the state. Otherwise, the state may want to explore developing a formal relationship with the current site nearest to Connecticut geographically, in New York.

24 Jenkins, Darryl and Dr.Bijan Vasigh. The Economic Impact of Unmanned Aircraft Systems Integration in the United States. March 2013.

CCM Government Finance & Research Regulating Drone Use 143 Chapter Four

State Options to Regulate Governmental Drone Use

States maintain the authority to regulate what state and local government agencies can and cannot do, beyond certain federal minimums, with regard to drones. States can look to FAA guidelines for non-governmental aircraft to establish minimum safety standards, but states may also choose to be more restrictive of governmental drone use than federal regulation dictates for non-governmental drone use without running into issues of federal preemption. The ability to self-direct state and local government agencies opens a wide range of regulatory options to deal with at least some drones while balancing safety and privacy concerns. This chapter outlines several regulatory options - some as comprehensive systems and other as standalone pieces of a regulatory program - and presents committee staff recommendations for legislative consideration.

Governmental Drone Use Regulatory Framework Options

Several regulatory framework options will be discussed that address different aspects of drone-related concerns. In particular, there are two extreme options worthy of consideration, as well as several more moderate regulatory paths. While the options are presented as discrete choices, in some cases there are different ways to blend several of the presented options together. Likewise, there are many permutations of these and other policies that might also address the underlying balance of privacy and safety concerns.

All of the options have potential advantages and disadvantages that are inherent in trying to balance the safety and privacy of Connecticut residents. Some regulatory efforts immediately provide specific legislative direction to potential governmental drone users, sometimes at the cost of future flexibility – an important consideration when dealing with emerging and evolving technologies. Some of the most decisive efforts may run afoul of federal regulations or upset local drone stakeholders.

OPTION 1: NO LEGISLATIVE ACTION

The possible results of indefinitely not taking legislative action on drones are outlined in Chapter One: that chapter describes current law and how drones may fit into it. However, many of the results from this option rely on waiting for judicial precedent to be set and sorted out, which is likely to take many years, and those court rulings may be unpredictable in both the nature and scope of each ruling.

Advantages. No legislative effort is required. Law enforcement agencies will be free to deploy drones as they see fit to maximize public safety, within the bounds of current search warrant requirements.

Disadvantages. Concerns about possible infringement or degradation of fourth amendment privacy rights are not addressed. Unless affirmative action is taken by the legislature,

CCM Government Finance & Research Regulating Drone Use 144 it may not be clear to law enforcement officials whether no change to current law was deemed necessary or if a law change is pending, but not yet agreed upon.

Conclusion. This option is desirable if policymakers believe that present law that allows aerial surveillance and currently prevents law enforcement use of certain new imaging technologies is all properly applicable to drones and/or the imagining devices used on drones. This option represents a continuation of the status quo. While this option is not sufficient to address some privacy concerns, it may be a worthwhile temporary option if policymakers prefer to wait to take action until FAA regulations are adopted and there is some evidence of common use of drones by law enforcement agencies in Connecticut. The 37 states that have yet to pass regulatory drone legislation, including Connecticut, are currently using this option, though reliance on this option may be temporary while other options are being considered.

OPTION 2: MORATORIUM ON GOVERNMENTAL DRONE USE

This option would have the legislature prohibit all governmental use of drones, regardless of purpose or agency. A couple of variations of this option include barring governmental ownership, but allowing limited arrangements where drones are used in emergencies, or barring only law enforcement use of drones while allowing drone use in other governmental agencies.

Advantages. Not allowing any governmental use of drones is perhaps the cleanest of all options, as there is no ambiguity about what drones can be used for, where they can be used, and by whom. In this case, privacy concerns are exactly where they have been without drones as a law enforcement option.

Disadvantages. As discussed throughout this report, there are many potential beneficial uses of drones for governmental work. Even within just law enforcement agencies, a blanket moratorium would prevent search and rescue or emergency response drone uses. Additionally, this would prevent government agencies from being able to provide a positive model of how drones can be flown safely.

Conclusion. While privacy advocates may appreciate the full stop to any drone-related encroachment of fourth amendment rights, no stakeholders expressed a desire to prevent all government (or just law enforcement) use of drones, because of the potential positive uses. This option could be used temporarily to halt any drone use while waiting for more information about federal regulations and fourth amendment case law. However, this option does not seem necessary in this state as there has been no law enforcement ownership of drones to date (and only very limited use of drones in emergency situations). This option would also rely on other states to discover innovative governmental uses of drones and develop best practices in the field, regardless of the specific agency using drones. To date, two states have relied on this option, though both states’ moratoriums are scheduled to expire by the end of 2015.

OPTION 3: EXCEPTIONS TO A GENERAL PROHIBITION OF GOVERNMENTAL DRONE USE

Under this option, all uses would be prohibited except those explicitly allowed. The major difference between this and a comprehensive moratorium is what exceptions are established. At a minimum, drone use in emergency and life-threatening situations are allowed,

CCM Government Finance & Research Regulating Drone Use 145 including use in search and rescue operations, as are law enforcement uses in criminal investigations with a valid search warrant. Another common exception is to allow training for governmental pilots and use.

Advantages. This option can be used to put in place restrictions that protect citizen privacy while allowing the most non-controversial law enforcement uses of drones outside of criminal investigations. Because the nature and type of exceptions are customizable, this option can be used to allow only those uses policymakers and stakeholders find most beneficial.

Disadvantages. Depending on the exceptions, this option prevents certain law enforcement drone uses, which may or may not be directly related to expectations of privacy. There is also the possibility that a somewhat restrictive set of rules for law enforcement use of drones serves to deter adoption of the technology within the law enforcement community, thus delaying the implementation of some of the beneficial uses (e.g., search and rescue).

Conclusion. As discussed in Chapter Two, this is the most common regulatory action taken by those states who have acted so far, but the differences in exceptions are important. Thirteen states have instituted some variation of this option. This option is particularly customizable, with the exceptions being the key to the effectiveness and balance between privacy and safety. Too many exceptions will water down the overall prohibition and with it some of the privacy protections. Too few exceptions may stifle innovative uses, even those outside of the realm of criminal investigations.

Four states have included broader exceptions that allow law enforcement use with a search warrant or in situations where a warrant is not normally required. Under provisions like these, the allowable uses where warrants are not required are so vast that this exception does not seem to prevent any expected uses. Instead, this larger exception has the effect of codifying the status quo, as examined in option 1. Eight states have adopted this option with more limited exceptions.

It may take several successive years of legislative observation and action to address the nature and types of exceptions to ensure the right balance between permissiveness and restriction is found. For instance, a few of the states that acted first used this option and included only fairly limited exceptions to the blanket prohibition. In the year or more since those actions, several other states have concluded there are some mostly non-controversial beneficial law enforcement uses outside of emergencies or areas where warrants are available – namely, in crime scene assessment and photography. Any legislative action to regulate drones may need finessing as federal regulations are revealed and use increases. However, without careful consideration, this option may unwittingly prevent beneficial uses, especially those outside of law enforcement criminal investigations (e.g., mapping of wildlife on state lands, or examination of transportation infrastructure).

OPTION 4: PROHIBITION OF SPECIFIC USES OF GOVERNMENTAL DRONES

Under this option, restrictions would be placed on certain uses, but governmental uses would be allowed by default unless specified otherwise. For instance, if policymakers decide they would rather not have drones be used for traffic enforcement (or even a subset of traffic

CCM Government Finance & Research Regulating Drone Use 146 enforcement such as misdemeanor moving violations), that type of activity could be prohibited. Several states have employed this method specifically to restrict law enforcement drone activity surrounding hunting and fishing activities.

Advantages. Many of the fourth amendment concerns brought up by privacy advocates can be specifically addressed using this option. Drone uses that would not impact privacy concerns but may increase safety would be allowed, as would new or innovative uses.

Disadvantages. By allowing everything that is not covered by the specific prohibitions or by other laws or precedent, it is possible some controversial or less-desirable uses will be employed, either because they were not contemplated as possible uses during the crafting of the legislation or because they are unintentionally allowed because of the specifications of the prohibitions.

Conclusion. This option may be best suited to situations where there are a limited number of specific uses to be prohibited, as attempts to create a few broad restrictions or a greater number of focused restrictions may be overly burdensome. However, there is the potential with this option to address just the few uses that may be objectionable. For instance, if, in the end, the biggest privacy concern is about a pervasive use of drones for surveillance performed without a search warrant, this option could be used to address that concern and specifically restrict just surveillance activities while maintaining the availability of other uses. This option has been used by one state, Louisiana, for prohibiting criminal uses and for non- governmental drone-based surveillance of certain facilities, but has not yet been used elsewhere to regulate governmental drone use.

REGULATION OF GOVERNMENTAL DRONES

Given that there are many potential beneficial uses of drones by law enforcement or other governmental agencies, there does not appear to be a need to institute a general moratorium on use, as was presented as option 2. Likewise, taking no legislative action largely leaves the decision making on these issues to the judicial system. Adapting regulation through precedent via the judicial system will take considerable time and will be reactionary – only producing new law after a potential misuse is challenged. Additionally, the precedent of judicial rulings is focused on the specifics of a single case. There may not be clear information on how and when the precedent will be relevant in similar situations. Adoption of emerging technologies tends to increase at exponential rates. Therefore, it is expected that innovative new uses of drones will appear as overall use increases, and relying on the relatively slow, reactionary setting of judicial precedent, as is the case in option 1, should be ruled out as a preferred solution.

The framework of the options that remain are: option 3) broadly prohibiting drone use then allowing specific uses; or option 4) broadly allowing drone use and prohibiting specific uses. Both can address the perceived need for regulatory action to maintain an individual’s freedom from unreasonable search or seizure while allowing certain law enforcement efforts that should make those same individuals safer. However, a broad prohibition on drone use with exceptions would potentially stifle the development of new, potentially beneficial, uses that may not be specifically addressed within the exceptions. Also, the blanket prohibition approach seems

CCM Government Finance & Research Regulating Drone Use 147 to be slightly more prone to single out drones among other technologies with similar capabilities, though this could still happen with the more permissive regulatory option.

Program review staff concludes that the best option is to specifically prohibit those actions or uses that seem likely to tip the balance between privacy and safety past the point where most stakeholders feel the tradeoff of one for the other may be worthwhile.

Surveillance

In this case, the biggest government-related privacy concerns are that drones, by virtue of a decreasing cost compared to manned aircraft will enable expanded implementation of general surveillance, targeted surveillance without a search warrant, or both. As such, Connecticut’s legislative efforts to regulate drones should focus on setting the boundaries for use of this technology for surveillance activities. Therefore, the program review committee staff recommends:

7. The use of drones by Connecticut law enforcement agencies for surveillance of a specific individual or a privately-held property is prohibited except with the person or property owner’s consent or when the duration of such drone-based surveillance is limited to the following conditions:

Drone-based surveillance of a specific individual or a privately-held property: 1. without reasonable suspicion, shall be limited to 30 minutes total cumulative duration within a 30-day time period; 2. with reasonable suspicion of criminal activity, but without the combination of probable cause and a valid warrant, shall be limited to 24 hours total cumulative duration within a 30-day time period; and 3. with probable cause and a valid warrant, shall be limited to the terms of the warrant.

A person or privately-held property shall not be considered the target of such surveillance unless the person or property is identifiable via the drone’s imaging or other information-gathering device or is otherwise acknowledged as the intended target of such surveillance.

This limitation on the duration of surveillance should mitigate the concern, perceived or real, of drones eventually being used to provide near-constant, unwarranted tracking of individuals. The exceptions for surveillance with the person or property owner’s consent and the clarification of what constitutes surveillance of a specific target are specifically included to allow police surveillance of large public gatherings, such as outdoor concerts or sporting events.

Ordinarily, limiting such a policy to just one type of technology (i.e., drones) violates any broader goal of adopting technology-neutral laws, if such a goal is in place. However, drones are an unfamiliar emerging technology with unknown potential that are not clearly addressed under current statutes. In this instance, it may be more appropriate and effective to address drone use

CCM Government Finance & Research Regulating Drone Use 148 specifically, rather than try to fit drones into a regulatory system that was created without the advantages and capabilities of drones in mind.

If such a surveillance policy is initially limited to drones, it can serve as a test to determine if this approach is worth exploring for the wider range of technologies. This approach to limiting unwarranted surveillance activity is supported by some academic research.25 However, the implications of such a large policy change beyond drone use were not with the bounds of this study.

Viewpoint of surveillance. Another major concern about preserving fourth amendment expectations of privacy is raised because drones are capable of providing additional viewpoints not previously accessible to law enforcement agencies (or the public). Current aerial surveillance is generally limited to overhead views of private property. This overhead viewpoint is helpful to law enforcement for observing what is on the property other than roofed structures without skylights, but has not allowed unobstructed views of windows other than skylights.

Looking through a window under current law may or may not violate a reasonable expectation of privacy depending on the individual circumstance. For example, a first floor window immediately next to a public sidewalk provides little expectation of privacy, but a third floor window in a rural house set 100 yards back from the nearest public road has a greater expectation of privacy.

If desired, one way to ensure this new vantage point was not made available for law enforcement surveillance would be to establish minimum operating heights for governmental drones while collecting information. However, the potential for degradation of expectation of privacy here is rather limited because the expectation of privacy regarding upper-story windows in urban settings is already very low. Also, because this potential invasion of privacy can be addressed by the individual relatively inexpensively through the use of common window- blocking methods (i.e., blinds or curtains). Moreover, looking through the windows of a private dwelling would certainly fall within the targeted surveillance described previously, so adoption of that recommendation should also serve to significantly limit unwarranted observation from even this newly accessible vantage point.

The space that drones make more accessible is a relatively narrow range of elevation, which also changes with the distance from the window. The frequency with which drones might be present in this narrow area that provides this new view into a window is not known, in part because drones are not extremely common just yet. For this reason, and because the FAA regulations here are still unknown, there is no need for an additional regulatory action in this specific area at this time. However, this issue may be worth revisiting in the future after the FAA regulations regarding drone use near the ground or near buildings are adopted or when government use, especially for observing private property, has increased.

25 McNeal, Gregory. Drones and Aerial Surveillance: Considerations for Legislators. Brookings Institution, November 2014.

CCM Government Finance & Research Regulating Drone Use 149 Data Regulation

A regulatory approach that is permissive of drone-based data collection should be cognizant of maintaining the privacy of the data that are collected. In instances where a warrant is obtained, current data retention practice applies, which is generally permissive of retaining that data as necessary. However, as the approach recommended above allows some data collection outside of warrants, data use and retention policies should be established as another way to protect privacy.

Law enforcement agencies typically want to store as much information as possible for as long as possible. These agencies assert such data may immediately or eventually prove useful in a criminal investigation. Privacy advocates prefer that imaging or other data from drones be immediately destroyed unless there is at least a reasonable suspicion that such data pertains to an ongoing investigation of criminal activity. Both positions are held outside of just data collected with a drone, but the issue comes up again since this is a new technology.

One way of limiting data retention to maintain or enhance an individual’s expectation of privacy is to limit the data being collected in the first place, as is recommended above. But even within the bounds of the limits of duration of unwarranted surveillance, the collection and aggregation of 30 minutes of data on a specific person once a month over the course of several months or years moves that observation closer to being something like long-term observation rather than one-time incidental observation. Under current law, that may violate that individual’s reasonable expectation of privacy given that repeated instances of limited surveillance were ruled unreasonable searches as part of the United States v. Jones case. To avoid this long-term unconstitutional act, the data about that person need only be destroyed on a regular basis.

To aid in limiting targeted surveillance activities without a warrant, the program review committee staff recommends:

8. A drone-based data retention policy shall be established for all law enforcement agencies within the state, as follows. Data collected via drone outside the terms of a warrant (either when no warrant was involved or when the data collected was incidental to the terms of a valid warrant) shall be reviewed within three months of collection.

If such data contains identifiable images of persons or property about whom there is no reasonable suspicion of criminal activity, the data shall be destroyed as soon as reasonably possible following the review.

If the data contains identifiable images of persons or property about whom there is a reasonable suspicion of criminal activity, the data may be retained for up to five years from the date of collection, unless a valid search or arrest warrant is issued in connection with the criminal activity captured in the data, in which case the data may be retained under the terms of the warrant.

If data is collected that contains identifiable images of persons or property across several classification (e.g., target of the warrant or a

CCM Government Finance & Research Regulating Drone Use 150 person about whom there is no reasonable suspicion), modifying the data to remove or otherwise make unidentifiable just those images of persons of property for which there is no reasonable suspicion shall fulfill the terms of this policy.

Under this policy, data collected within the bounds of a warrant would be retained pursuant to current law enforcement record retention policies (i.e., kept as necessary, based partly on whether it was used as evidence in a criminal proceeding). Data collected inadvertently would be removed, but not at the expense of losing valid, useful data. Drone-based data created by sources outside of law enforcement, but given to law enforcement, would be subject to the same data retention policy. This would allow law enforcement access to useful information brought in from independent sources without compromising additional privacy rights.

This policy, in combination with the recommended surveillance policy, helps to balances concerns of safety and privacy. It assists in maintaining the privacy rights of individuals while allowing law enforcement agencies access to the data which should be most useful in criminal investigations.

Registration and Reporting

Adopting registration and reporting requirements, without doing anything else, serves as an advanced version of keeping the status quo (option 1), but could also enhance all the other options as it gives policymakers significantly greater insight into where governmental drones are and how they are used.

In total, four states have adopted registration or reporting requirements for governmental drones, all of which have done so in conjunction with imposing other law enforcement drone use restrictions.26 Only Illinois requires ownership reporting (i.e., registration) without more widespread use reporting. It is also the only state where a registration or reporting deadline has already occurred – the initial report indicates that there are three law-enforcement owned drones are present in that state (the full report is available in Appendix A).

Two states, Oregon and Illinois, require that use reports be filed within 24 to 48 hours after a drone has been used in an emergency. Three of the four require annual reporting of some kind, while Texas mandates reporting in odd numbered years. Besides Illinois, the other three states required detailed reporting on drone use. Oregon’s legislation, in particular, combines a one-time registration requirement with an annual report on use.

Governmental drone registration. Requiring governmental drone registration allows the state to develop an ongoing inventory of the drones that are available and of all government drone users. Since the drones in question are owned by governmental entities, governmental drones do not need to be registered for tax purposes. However, having a complete inventory of governmental drones in the state can be beneficial in several ways.

First, the inventory can give policymakers better information on the pervasiveness of drone use and how that may change over time. This can inform state policy on appropriate use

26 Illinois, Oregon, Texas, and Utah

CCM Government Finance & Research Regulating Drone Use 151 and provide better understand of the scope of the issue if the state decides to change any drone law. Second, the information provided by the inventory may help the state coordinate more efficient use of the technology. That is, if the state (or another municipality) knows that a particular municipality owns a drone, it may request that the town use that drone in a time of emergency, rather than the state bringing its own drone to an area where one is already available. Likewise, knowing that a particular municipality or state agency has a drone may help alleviate safety issues where two drones from two different governmental groups are interfering with one another.

As awareness of which governmental entities in the state own drones increases government transparency and potentially aids all governmental agencies in coordinating drone use, the program review committee staff recommends:

9. All state and local government-owned drones shall be registered with the Office of Policy and Management. The registration shall include the name of the government agency that owns the drone, the name(s) and contact information of those individuals who may operate the drone, and identification of the aircraft (at minimum make, model, and serial number). Such information shall be made available on the agency’s website and updated monthly if additional aircraft are registered.

Reporting drone use. In most regulatory options, the legislature could require all governmental drone use to be reported. Requiring well-documented use records does not interfere with beneficial uses of drones and allows law enforcement the opportunity to use drones more broadly. Use reporting also gives privacy advocates (along with policymakers and the public) objective information on how drones are being used and how often they are used for activities that might raise privacy concerns.

The specifics of what about the use is recorded can include who is using it and where, and can also include the purpose for which the drone was being used (e.g., mapping, surveillance with or without a warrant, search and rescue). Further, how the information collected from the drone was used (e.g., evidence in a criminal investigation, developing forestry or wildlife plans, or reviewing an emergency situation as part of ongoing training) would also be informative.

Installing reporting requirements does not directly prohibit activities that may lessen an individual’s expectation of privacy. Future action would likely be necessary to prevent unwanted governmental activities and that action may be predicated on an undesirable drone use having happened. As with most reporting requirements, there is a chance the reporting requirements will not be monitored well, in which case they lose their effectiveness. Likewise, an overly burdensome reporting system, if adhered to, may discourage drone use of any type, including clearly beneficial uses.

While concerns raised throughout this study about privacy invasions through law- enforcement drone use are plentiful, there are no drones owned by Connecticut state or local law enforcement agencies as of the writing of this report. Careful monitoring of governmental adoption and use of drones could occur simultaneously to observation of other developments in the industry (i.e., adoption of federal regulations and setting of judicial precedent).

CCM Government Finance & Research Regulating Drone Use 152 As ongoing reporting of non-law enforcement drone use will be beneficial in maintaining knowledge of types of use and help keep all state agencies aware of how drones are used within state government agencies, the program review committee staff recommends:

10. All non-law enforcement state use of drones, including drones operated for the benefit of the state that are not owned by the state, shall be recorded and reported to the Office of Policy and Management annually. Such reports shall include the location, time, duration, and purpose of each drone use. The Office of Policy and Management shall publish aggregate summaries of these reports within 90 days of the annual reporting deadline, including identifying those agencies with drone ownership or past drone use that have failed to report on drone use.

Ongoing reporting of state and local law enforcement drone use will be beneficial in maintaining knowledge of types of use, will help alleviate privacy concerns, and will help keep all law enforcement agencies aware of how drones are used by other law enforcement agencies within the state. Therefore, the program review committee staff recommends:

11. All state and local law enforcement use of drones, including drones operated for the benefit of the law enforcement activities that are not owned by the law enforcement agencies, shall be recorded and reported to the Office of the Chief State’s Attorney annually.

Such reports shall include the location, time, duration, and purpose of each drone use, along with whether the drone use was conducted within the limits of a warrant. Law enforcement agencies shall report the frequency with which data obtained from a drone was deemed to provide evidence of reasonable suspicion of criminal activity, how often data was reviewed and destroyed under the data retention policy recommended above, and how often data was destroyed without being reviewed.

The Office of the Chief State’s Attorney shall publish aggregate summaries of these reports within 90 days of the annual reporting deadline, including identifying those agencies with drone ownership or past drone use that have failed to report on drone use.

Weaponization of Drones

Special consideration needs to be given regarding law enforcement agencies’ ability to equip drones with weapons. The weaponization of drones can range from delivery of non-lethal pacification systems (e.g., tear gas) to remote control of a lethal firearm. As remote operation of weapons was recommended to be prohibited in Chapter One, allowing law enforcement access to this classification of drone use would need to be specifically allowed.

There may be some precedent for allowing certain law enforcement to remotely control weapons. For instance, law enforcement agencies now may be able use robots with these type of capabilities in some tactical situations. However, drones carry several additional risk factors that ground-based remote controlled technology does not have.

CCM Government Finance & Research Regulating Drone Use 153 First, there is a possibility that a drone carrying a weapon might malfunction during the flight and fail to get to the appropriate staging area. Were this malfunction to take place, the weapon may be accidentally discharged upon collision, or it may be that the weapon itself is inadvertently lost or given to those the drone was trying to target. Second, the precision necessary to properly use a weapon does not appear to be commonly available in drones at this time. The International Association of Chiefs of Police drone use guidelines state that “[g]iven the current state of the technology, the ability to effectively deploy weapons from a small [drones] is doubtful.” Because of these increased risks and a lack of a perceived benefit, the program review committee staff recommends:

12. Law enforcement use of drones to remotely operate weapons shall be prohibited.

This prohibition should remain in place until at least such a time that the need for, and safety of, this type of use can be affirmatively demonstrated. Any review of this prohibition should attempt to limit the allowable exceptions for this use to only those situations where all other reasonable alternatives have been exhausted.

Drone and Drone Pilot Safety

Drones themselves should be operated in a safe manner. To do so, the drones need to be mechanically sound and the operators of drones must be capable of limiting their use to situations where they can be controlled. Drone safety protocols are currently handled by the FAA on a case by case basis as part of the certificate of waiver or authorization (COA) application process. However, FAA is expected to include requirements for safe operation within its drone regulations. It is not yet known whether federal safety requirements for governmental drones and operators will differ significantly from non-governmental drones.

While governmental and non-governmental manned aircraft (and pilots) are technically faced with different certification requirements, the common practice is for governmental manned aircraft and pilots to follow standards that are at least as stringent as those for non-governmental manned aircraft. As FAA draft regulations pertaining to safety have not yet been made available for comment (or any type of drone, regardless of user or size), no specific recommendation is being made in this study regarding governmental safety protocols. Policymakers should continue to monitor federal developments regarding governmental drone use and take the steps necessary to ensure that drones are only used for governmental purposes when proper safety protocols have been followed.

CCM Government Finance & Research Regulating Drone Use 154 Appendices

CCM Government Finance & Research Regulating Drone Use 155 Appendix A

Illinois Drone Registration Report

CCM Government Finance & Research Regulating Drone Use 156 General Assembly File No. 708

January Session, Substitute Senate Bill No. 974 2015

Senate, April 16, 2015

The Committee on Judiciary reported through SEN. COLEMAN of the 2nd Dist., Chairperson of the Committee on the part of the Senate, that the substitute bill ought to pass.

AN ACT IMPLEMENTING THE RECOMMENDATIONS OF THE LEGISLATIVE PROGRAM REVIEW AND INVESTIGATIONS COMMITTEE CONCERNING THE USE OF DRONES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subdivision (5) of section 15-34 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(5) "Aircraft" means any contrivance used or designed for navigation of or flight in air, including (A) airplanes, meaning power-driven fixed-wing aircraft, heavier than air, supported by the dynamic reaction of the air against their wings, (B) gliders, meaning heavier than air aircraft, the free flight of which does not depend principally upon a power-generating unit, and (C) rotorcraft, meaning power-driven aircraft, heavier than air, supported during flight by one or more rotors. "Aircraft" does not include unmanned aerial vehicles.

Sec. 2. Section 15-34 of the general statutes is amended by adding subdivision (29) as follows (Effective October 1, 2015):

(NEW) (29) "Unmanned aerial vehicle" means any contrivance used or designed for navigation of or flight in air that is power-driven and operated without the possibility of direct human intervention from within or on the contrivance.

CCM Government Finance & Research Regulating Drone Use 157 Sec. 3. Subsection (a) of section 53a-189a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

Sec. 4. (NEW) (Effective October 1, 2015) (a) Except as otherwise provided by law, no person shall operate or use any computer software or other technology, including, but not limited to, an unmanned aerial vehicle, as defined in subdivision (29) of section 15- 34 of the general statutes, as amended by this act, that allows a person, when not physically present, to release tear gas or any like or similar deleterious agent or to remotely control a deadly weapon, as defined in section 53a-3 of the general statutes, or an explosive or incendiary device, as defined in section 53-206b of the general statutes.

(b) Any person who violates subsection (a) of this section shall be guilty of a class C felony.

Sec. 5. Subdivision (8) of subsection (a) of section 54-280 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(8) "Offense committed with a deadly weapon" or "offense" means: (A) A violation of subsection (c) of section 2-1e, subsection (e) of section 29-28, subsections (a) to (e), inclusive, or (i) of section 29-33, section 29-34, subsection (a) of section 29-35, section 29-36, 29-36k, 29-37a or 29-37e, subsection (c) of section 29-37g, section 29-37j, subsection (b), (c) or (g) of section 53-202, section 53-202b, 53-202c, 53-202j, 53-202k, 53- 202l, 53-202aa or 53-206b, subsection (b) of section 53a-8, section 53a-55a, 53a-56a, 53a- 60a, 53a-60c, 53a-72b, 53a-92a, 53a-94a, 53a-102a, 53a-103a, 53a-211, 53a-212, 53a-216, 53a-217, 53a-217a, 53a-217b or 53a-217c or section 4 of this act, or a second or subsequent violation of section 53-202g; or (B) a violation of any section of the general statutes which constitutes a felony, as defined in section 53a-25, provided the court makes a finding that, at the time of the offense, the offender used a deadly weapon, or was armed with and threatened the use of or displayed or represented by words or conduct that the offender possessed a deadly weapon;

CCM Government Finance & Research Regulating Drone Use 158 Sec. 6. (NEW) (Effective October 1, 2015) The presence of tear gas or any like or similar deleterious agent, a deadly weapon, as defined in section 53a-3 of the general statutes, or an explosive or incendiary device, as defined in section 53-206b of the general statutes, on or in an unmanned aerial vehicle, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, may be presumptive evidence of the possession or use of the agent, weapon or device by each person operating or using such unmanned aerial vehicle.

Sec. 7. (NEW) (Effective October 1, 2015) The presence of a controlled substance, as defined in section 21a-240 of the general statutes, on or in an unmanned aerial vehicle, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, may be presumptive evidence of the possession or use of the substance by each person operating or using such unmanned aerial vehicle.

Sec. 8. (NEW) (Effective October 1, 2015) (a) For the purposes of this section:

(1) "Unmanned aerial vehicle" has the same meaning as provided in subdivision (29) of section 15-34 of the general statutes, as amended by this act;

(2) "Law enforcement agency" means the Division of State Police within the Department of Emergency Services and Public Protection or any municipal police department; and

(3) "Law enforcement officer" means any officer, employee or other person otherwise paid by or acting as an agent of a law enforcement agency.

(b) (1) Each law enforcement officer who operates an unmanned aerial vehicle shall operate such unmanned aerial vehicle in accordance with this section and regulations and policies established by the Federal Aviation Administration, and pursuant to a policy adopted by a law enforcement agency as required by subdivision (2) of subsection (h) of this section.

(2) A law enforcement officer shall not operate an unmanned aerial vehicle that is equipped with tear gas or any like or similar deleterious agent or a deadly weapon, as defined in section 53a-3 of the general statutes, including, but not limited to, any explosive or incendiary device, as defined in section 53-206b of the general statutes, or any firearm, as defined in section 53a-3 of the general statutes.

(1) A judge of the Superior Court or judge trial referee has issued a warrant in accordance with section 54-33a of the general statutes authorizing the use of an unmanned aerial vehicle;

(2) The individual who will be the subject of the information collected by the operation of an unmanned aerial vehicle has given advance written consent to such operation;

CCM Government Finance & Research Regulating Drone Use 159 (3) The owner of the property that will be the subject of the information collected by the operation of an unmanned aerial vehicle has given advance written consent to such operation;

(4) The law enforcement officer has probable cause to believe that a criminal offense has been, is being or will be committed and exigent circumstances exist that make it unreasonable for the law enforcement officer to obtain a warrant authorizing the use of an unmanned aerial vehicle;

(5) The law enforcement officer reasonably believes that there is an imminent threat to the life or safety of an individual;

(6) Such operation is pursuant to search and rescue activities conducted by the law enforcement agency;

(7) Such operation is pursuant to training activities conducted by the law enforcement agency; or

(8) Such operation is used to reconstruct or document a specific crime scene.

(d) An individual or privately owned property shall be considered to be the subject of information collected by the operation of an unmanned aerial vehicle if the information allows the identity of the person or the privately owned property to be ascertained or if the law enforcement officer operating the unmanned aerial vehicle acknowledges such individual or such property was the subject of the information.

(e) Information that was collected through the operation of an unmanned aerial vehicle that concerns an individual or privately owned property that was the subject of a warrant may be retained pursuant to the warrant.

(f) Information that was collected through the operation of an unmanned aerial vehicle that concerns an individual or privately owned property pursuant to subdivision (2) or (3) of subsection (c) of this section may be retained pursuant to the terms specified in such advance written consent.

(g) (1) Information that was collected through the operation of an unmanned aerial vehicle that concerns an individual or privately owned property pursuant to subdivisions (4) to (8), inclusive, of subsection (c) of this section shall be reviewed by the law enforcement agency that collected the information within ninety days from the date of collection. The collected information shall be destroyed or modified pursuant to subdivision (2) of this subsection or retained pursuant to subdivision (3) of this subsection.

CCM Government Finance & Research Regulating Drone Use 160 permanently modify such information so that the identity of such individual or such property cannot be ascertained, and, after such modification, may retain the modified information for a period of not more than five years from the date of collection and, after such retention, shall destroy the modified information.

(3) If such information allows the identity of an individual or privately owned property to be ascertained and there is probable cause to believe that an offense was committed by the individual or on the property, such law enforcement agency may retain such information for a period of not more than five years from the date of collection and, after such retention, shall destroy such information, except that, if a warrant is issued in accordance with section 54-33a of the general statutes based in part on such information, such information may be retained pursuant to the warrant.

(h) (1) Not later than January 1, 2016, the Department of Emergency Services and Public Protection shall develop and promulgate a model policy that provides guidelines on the destruction, modification and retention of information collected by the operation of an unmanned aerial vehicle by a law enforcement agency.

(2) Each law enforcement agency that owns or authorizes a law enforcement officer to operate an unmanned aerial vehicle shall adopt and maintain a written policy that meets or exceeds the model policy developed by the Department of Emergency Services and Public Protection pursuant to subdivision (1) of this subsection regarding the destruction, modification and retention of information collected by the operation of an unmanned aerial vehicle either before taking ownership of an unmanned aerial vehicle or not later than thirty days after a law enforcement officer operates an unmanned aerial vehicle.

(i) Each law enforcement agency that owns an unmanned aerial vehicle shall register the unmanned aerial vehicle with the Office of Policy and Management not later than thirty days after taking ownership of the unmanned aerial vehicle. The registration shall be on a form prescribed by the Office of Policy and Management and shall include the name of the law enforcement agency, the name, job title and contact information of each law enforcement officer who is authorized to operate the unmanned aerial vehicle, and a description of the unmanned aerial vehicle, including, but not limited to, the name of the manufacturer, the model number and the serial number. The law enforcement agency shall post such registration on its Internet web site.

(j) Not later than January fifteenth of each year, each law enforcement agency that operated an unmanned aerial vehicle in the preceding calendar year shall report to the Chief State's Attorney: (1) The number of times the law enforcement agency operated an unmanned aerial vehicle in the preceding calendar year; (2) a list of all occasions when an unmanned aerial vehicle was operated with the following details for each operation: (A) The date, time and duration of operation, (B) the location of such operation, (C) the reason for such operation, (D) whether the unmanned aerial vehicle was operated pursuant to a warrant, and (E) the number of times the type of

CCM Government Finance & Research Regulating Drone Use 161 information collected through the operation of an unmanned aerial vehicle provided reasonable and articulable suspicion that a criminal offense was being committed; and (3) the law enforcement agency's compliance with the policy adopted pursuant to subdivision (2) of subsection (h) of this section, including the number of times the law enforcement agency reviewed and destroyed information collected by the operation of an unmanned aerial vehicle and the number of times the law enforcement agency destroyed information collected by the operation of an unmanned aerial vehicle without reviewing such information.

(k) Not later than April fifteenth of each year, the Chief State's Attorney, based on the reports filed by law enforcement agencies pursuant to subsection (j) of this section, shall post on its Internet web site a report concerning the operation of unmanned aerial vehicles by law enforcement agencies during the preceding calendar year. The report shall include a summary and an analysis of the information received from the law enforcement agencies. The report shall also identify any law enforcement agency that registered an unmanned aerial vehicle pursuant to subsection (i) of this section or submitted a report in a previous reporting period pursuant to subsection (j) of this section, but did not submit a report for the current reporting period.

Sec. 9. (NEW) (Effective October 1, 2015) (a) For the purposes of this section:

(1) "Unmanned aerial vehicle" has the same meaning as provided in subdivision (29) of section 15-34 of the general statutes, as amended by this act;

(2) "State agency" has the same meaning as provided in section 1-79 of the general statutes, except that "state agency" does not include a law enforcement agency, as defined in section 8 of this act; and

(3) "State employee" means any officer, employee or other person otherwise paid by or acting as an agent of a state agency.

(b) Any state agency may authorize a state employee to operate an unmanned aerial vehicle, provided the operation is within the scope of the state employee's employment, and in accordance with this section and regulations and policies established by the Federal Aviation Administration.

(c) Each state agency that owns an unmanned aerial vehicle shall register the unmanned aerial vehicle with the Office of Policy and Management not later than thirty days after taking ownership of the unmanned aerial vehicle. The registration shall be on a form prescribed by the Office of Policy and Management and shall include the name of the state agency, the name, job title and contact information of each state employee who is authorized to operate the unmanned aerial vehicle, and a description of the unmanned aerial vehicle, including, but not limited to, the name of the manufacturer, the model number and the serial number. The state agency shall post such registration on its Internet web site.

CCM Government Finance & Research Regulating Drone Use 162 (d) Not later than January fifteenth of each year, each state agency that permitted a state employee to operate an unmanned aerial vehicle in the preceding calendar year shall submit a report to the Office of Policy and Management. The report shall include a list of all occasions when an unmanned aerial vehicle was operated with the following details for each operation: (1) The date, time and duration of operation, (2) the location of such operation, and (3) the reason for such operation.

(e) Not later than April fifteenth of each year, the Office of Policy and Management, based on the reports filed by state agencies pursuant to subsection (d) of this section, shall post on its Internet web site a report concerning the operation of unmanned aerial vehicles by state agencies during the preceding calendar year. The report shall include a summary and an analysis of the information received from the state agencies. The report shall also identify any state agency that registered an unmanned aerial vehicle pursuant to subsection (c) of this section or submitted a report in a previous reporting period pursuant to subsection (d) of this section, but did not submit a report for the current reporting period.

Sec. 10. Subsection (c) of section 12-455a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(c) "Motor vehicle" means any vehicle propelled or drawn by any power other than muscular, except aircraft, unmanned aerial vehicles, as defined in subdivision (29) of section 15-34, as amended by this act, motorboats, road rollers, baggage trucks used about railroad stations, electric battery-operated [wheel chairs] wheelchairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, agricultural tractors, farm implements and such vehicles as run only upon rails or tracks;

Sec. 11. Subdivision (53) of section 14-1 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(53) "Motor vehicle" means any vehicle propelled or drawn by any nonmuscular power, except aircraft, unmanned aerial vehicles, as defined in subdivision (29) of section 15-34, as amended by this act, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated [wheel chairs] wheelchairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self- propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, motor- driven cycles as defined in section 14-286, special mobile equipment as defined in section 14-165, mini-motorcycles, as defined in section 14-289j, and any other vehicle not suitable for operation on a highway;

CCM Government Finance & Research Regulating Drone Use 163 Sec. 12. Subdivision (20) of section 22a-134 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(20) "Vehicle" means any motorized device for conveying persons or objects except for an aircraft [,] or unmanned aerial vehicle, as defined in subdivision (29) of section 15- 34, as amended by this act, or a boat, railroad car or engine, or farm tractor;

This act shall take effect as follows and shall amend the following sections:

Section 1 October 1, 2015 15-34(5)

Sec. 2 October 1, 2015 15-34

Sec. 3 October 1, 2015 53a-189a(a)

Sec. 4 October 1, 2015 New section

Sec. 5 October 1, 2015 54-280(a)(8)

Sec. 6 October 1, 2015 New section

Sec. 7 October 1, 2015 New section

Sec. 8 October 1, 2015 New section

Sec. 9 October 1, 2015 New section

Sec. 10 October 1, 2015 12-455a(c)

Sec. 11 October 1, 2015 14-1(53)

Sec. 12 October 1, 2015 22a-134(20)

CCM Government Finance & Research Regulating Drone Use 164 Statement of Legislative Commissioners:

The title was changed and in Section 8(b)(2) and (c)(4) and (5), "agency" was changed to "officer" for clarity.

PRI Joint Favorable Subst. C/R JUD

JUD Joint Favorable Subst.-LCO

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.

OFA Fiscal Note

State Impact:

Agency Affected Fund-Effect FY 16 $ FY 17 $

Emergency Services and GF - Cost Less than None Public Protection, Dept. $20,000

Resources of the General GF - Potential See Below See Below Fund Revenue Gain

Note: GF=General Fund

Municipal Impact: None

Explanation

The bill requires the Department of Emergency Services and Public Protection (DESPP) to develop a model policy for the destruction, modification, and retention of information obtained through operation of an unmanned aerial vehicle. DESPP is anticipated to incur costs of less than $20,000 in FY 16 for the development of the policy which may include consultant or overtime costs during creation of the new policy. To the extent that law enforcement agencies elect to develop such policies, rather than utilizing the policy developed by DESPP, they may potentially incur policy development costs.

CCM Government Finance & Research Regulating Drone Use 165 The bill creates a new class C felony and expands the crime of voyeurism and may result in fine revenue. To the extent that offenders are prosecuted for new or expanded offenses under this bill, potential costs for probation and supervision in the community or incarceration would result. On average, it costs the agency $6,050 (including benefits) to supervise an inmate in the community as opposed to $50,690 (including benefits) to incarcerate an offender.

The Out Years

The annualized ongoing fiscal impact identified above would continue into the future subject to inflation.

OLR Bill Analysis

sSB 974

AN ACT IMPLEMENTING THE RECOMMENDATIONS OF THE LEGISLATIVE PROGRAM REVIEW AND INVESTIGATIONS COMMITTEE CONCERNING THE USE OF DRONES.

SUMMARY:

This bill makes a number of changes regarding the use of unmanned aerial vehicles (often referred to as “drones”). It:

1. excludes them from the statutes governing aircraft, which includes, among other things, aircraft registration, tax treatment, accident investigation, and compliance with the Uniform Aircraft Responsibility Act. (§§ 1-2);

2. restricts when Department of Emergency Services and Public Protection (DESPP) and municipal police department officers, employees, agents, and anyone else paid by them may use a drone;

3. imposes retention and destruction requirements for information collected by law enforcement agencies using drones;

4. requires law enforcement agencies to register their drones with the Office of Policy and Management (OPM) and report on their use to the chief state's attorney annually; and

5. allows state agency officers, employees, agents, and others they pay to use drones, requires agencies to register their drones with OPM, and requires the agencies to report on their use to OPM annually.

The bill specifies that, for purposes of voyeurism crimes, a victim is “not in plain view” when the view is not otherwise obtainable and it is made possible by using a (1) drone or (2) technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities (§ 3).

CCM Government Finance & Research Regulating Drone Use 166 The bill also creates a new crime, making it a class C felony, unless otherwise provided by law, to use a drone, computer software, or another technology that allows someone who is not physically present to (a) release tear gas or a similar agent or (b) remotely control a deadly weapon, explosive, or incendiary device. By law, a class C felony is punishable by up to 10 years in prison, a fine of up to $10,000, or both. The bill requires people convicted of this crime to register with the deadly weapon offender registry (see BACKGROUND)(§§ 4-5).

The bill also creates two presumptions that may make it easier to convict someone of criminal activity involving use of a drone. It allows the presence of tear gas or a similar agent, a deadly weapon, explosive, or incendiary device on or in a drone to be presumptive evidence that it was possessed or used by each person using the drone. Similarly, the bill allows the presence of a controlled substance on or in a drone to be presumptive evidence that it was possessed or used by each person using the drone (§§ 6-7).

Finally, the bill makes technical changes.

EFFECTIVE DATE: October 1, 2015

§ 8 — LAW ENFORCEMENT USE OF DRONES

Authorized Uses

The bill restricts when DESPP and municipal police department officers, employees, agents, and anyone else they pay may use a drone.

Under the bill, these law enforcement officials can use a drone only if:

1. a judge or judge trial referee (a judge past age 70 who continues to serve with limited powers) issues a warrant authorizing the use;

2. the person who, or the owner of property that, will be the subject of the information collected by the drone has given prior written consent (the “subject” is a person or property that can be identified in information collected or that the official acknowledges as the subject);

3. the officer has probable cause to believe a crime has been, is being, or will be committed and exigent circumstances make it unreasonable to obtain a warrant (caselaw recognizes an exception to the usual requirement to obtain a warrant to conduct a search when exigent circumstances exist, such as an emergency with an imminent threat to someone's life);

4. the official reasonably believes there is an imminent threat to someone's life or safety; and

5. it is used for a search and rescue activity, training, or to reconstruct or document a crime scene.

CCM Government Finance & Research Regulating Drone Use 167 Operation of Drones by Law Enforcement Officials

The bill requires any law enforcement official operating a drone to do so according to the bill, Federal Aviation Administration (FAA) regulations and policies, and law enforcement agency policies. It prohibits law enforcement officers from operating a drone equipped with tear gas or a similar agent, a deadly weapon, a firearm, an explosive, or an incendiary device.

Information Retention and Destruction

The bill allows an agency to retain information collected by a drone about a person or private property under the terms of a warrant or written consent that authorized the drone's use. If a drone collected information for one of the other reasons authorized above, the official's law enforcement agency must review the information within 90 days. If information identifies an individual or private property, the agency must determine whether there is probable cause that a crime was committed by the person or on the property. If there is no probable cause, the agency must:

1. destroy the information within 48 hours after the review or

2. permanently modify it so that the person or property cannot be identified and destroy it within five years of the modification.

If there is probable cause, the agency must destroy it within five years of its collection or retain it pursuant to a warrant that was issued, at least in part, based on the information.

By January 1, 2016, the bill requires DESPP to develop a model policy with guidelines on destroying, modifying, and retaining information collected by law enforcement agencies using drones. Law enforcement agencies that own or authorize officials to use drones must adopt and maintain a written policy that meets or exceed DESPP's policy, either before taking ownership of a drone or within 30 days of an official using one.

Registration with OPM

The bill requires law enforcement agencies that own drones to register them with OPM within 30 days of taking ownership on an OPM-prescribed form that includes :

1. the agency's name;

2. the name, title, and contact information of officials authorized to use the drone; and

3. a description of the drone that includes its manufacturer, model, and serial number.

The agency must post the registration on its website.

Reports of Use

CCM Government Finance & Research Regulating Drone Use 168 The bill requires law enforcement agencies that use drones in a calendar year to report on their use to the chief state's attorney by the following January 15. The report must include:

1. the number of times the agency used a drone;

2. all occasions when a drone was used, including the date, time, duration, location, and reason of each use; whether a warrant was issued for the use; and the number of times the information collected provided reasonable and articulable suspicion that a crime was being committed; and

3. the agency's compliance with its information retention policy, including the number of times it destroyed information with a review and without a review.

By April 15 each year, the chief state's attorney must use these reports to post on its website a report summarizing and analyzing law enforcement agencies' drone use during the prior calendar year. The summary report must identify each agency that registered a drone with OPM or previously submitted a report to the chief state's attorney but did not use a drone during the current reporting period.

§ 9 — USE BY OTHER STATE AGENCIES

The bill allows state agencies to authorize their officers, employees, agents, and others they pay to use a drone within the scope of their employment according to FAA regulations and policies. This applies to any office, department, board, council, commission, institution, higher education constituent unit, technical high school, or other agency in any branch of government, except for DESPP.

The bill requires these agencies to register their drones with OPM and indicate their authorized users in the same manner as law enforcement agencies. They must also post the information on their agency websites.

The bill requires an agency that allowed a state employee to use a drone in a calendar year to report on its use to OPM by the following January 15. The report must include all occasions when a drone was used, including the date, time, duration, location, and reason of each use.

By April 15 each year, OPM must use these reports to post on its website a report summarizing and analyzing state agencies' drone use during the prior calendar year. The summary report must identify each agency that registered a drone with OPM or previously submitted a report to OPM on its drone use but did not use a drone during the current reporting period.

BACKGROUND

Deadly Weapon

CCM Government Finance & Research Regulating Drone Use 169 By law, a “deadly weapon” is a weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles.

Deadly Weapon Offender Registry

By law, DESPP maintains a registry of people convicted, or found not guilty by reason of mental disease or defect, of an offense committed with a deadly weapon. A person must register if he or she committed any (1) violation of specified statutes or (2) felony and the court finds that, at the time of the offense, the offender used a deadly weapon or was armed with and threatened to use, displayed, or represented by words or conduct that he or she possessed, a deadly weapon. Offenders must register for five years. The registry information is not a public record and is disclosable only to certain law enforcement and other agencies.

Voyeurism

By law, a person commits the crime of voyeurism when (1) he or she knowingly photographs, films, videotapes, or records the victim's image; (2) he or she acts maliciously or intends to satisfy his or her or another's sexual desire; and (3) the victim is not in plain view, has a reasonable expectation of privacy under the circumstances, and does not know of, or consent to, the conduct.

COMMITTEE ACTION

Program Review and Investigations Committee

Joint Favorable Substitute Change of Reference

Yea 8 Nay 1 (03/13/2015)

Judiciary Committee

Joint Favorable

Yea 43 Nay 1 (04/06/2015)

CCM Government Finance & Research Regulating Drone Use 170 PRI Staff Update December 2015

Drone Use Regulation – Update of Activity Since Study Conclusion

Background Summary of 2015 PRI Drone Legislation (sSB 974) In December 2014, the Program Review Substitute Senate Bill 974, File 708 (2015), An Act Implementing the and Investigations Committee completed a Recommendations of the Legislative Program Review and Investigations study of drone use regulation, including a Committee Concerning the Use of Drones: look at possible actions for Connecticut. Drones, or unmanned aerial systems • established a state definition of drones as differentiated from (UAS), remain a topic of interest for the manned aircraft (Secs. 1-2); state as their availability and use continue • outlawed the remote use of a deadly weapon, explosive or to increase. This document provides a incendiary device, or release of tear gas, including remote brief update on developments since the operation through the use of a drone (Sec. 4); and conclusion of the study and puts the proposed legislation based on the study • closed some potential loopholes regarding criminal use of recommendations into the current context. drones, including clarifying existing voyeurism law to address possible drone use (Secs. 3, 5-7). The study found that Connecticut stakeholders have concerns about safety Regarding governmental use of drones (Secs. 8-9), the bill established and privacy implications related to drone statutory provisions limiting law enforcement use of unmanned aerial use. Legislation based on study systems (UAS) to the following situations: recommendations ultimately won unanimous approval in the Senate (sSB • Pursuant to a warrant 974) but was not brought up for a vote in • With prior written consent by an individual monitored by UAS the House in the 2015 session. • With prior written consent by the property owner monitored by UAS Primary responsibility for drone regulation • With probable cause and exigent circumstances rests with the Federal Aviation Authority • With belief there is an imminent threat to life or safety of an individual (FAA). The FAA is solely responsible for • For search and rescue activities the navigable airspace system and is • For law enforcement training activities therefore responsible for regulation of all aircraft operated there. However, the • For crime scene documentation or reconstruction FAA’s main concern is limited to drone safety and does not extend to privacy The bill proposed a policy for data collected with a drone: issues. At the time of the study, the FAA had provided little information on its • Warrant-based data is kept under the terms of the warrant. regulatory strategy. Since the study • Advance consent-based data is kept under the terms of the consent concluded, the FAA has taken several agreement. actions, some specifics of which are • Other drone-based data is reviewed within 90 days or destroyed. If discussed on page two of this document. upon review the data includes identifiable people or property: State attempts at regulating the operation − With probable cause, data can be kept up to 5 years; of drones directly are preempted by federal − Without probable cause, data can be modified to remove law, though states do have authority to identifiable people or property or otherwise destroyed within 48 place limits on drone use for governmental hours of review. purposes and/or by government employees in the course of their job The bill also required that governmental use of drones must be reported responsibilities. Although most types of and made publicly available annually. Drones owned by a state agency or criminal drone use can be addressed local law enforcement agency would need to be registered with the Office through existing state law, the study of Policy and Management. recommended some statutory clarification. According to NCSL, 49 states have A finding of the 2014 PRI report was that these proposed laws avoid considered drone laws in the last three federal preemption by creating or adjusting laws of general applicability, years, including 26 states that have rather than laws specific to drone operation only. passed drone laws as of December 2015.

CCM Government Finance & Research Regulating Drone Use 171 Summary of FAA 2015 UAS Regulatory Activity The FAA was directed and authorized to regulate unmanned aerial systems and otherwise “safely integrate UASs into the national airspace system” by the 2012 FAA Modernization Act. The act codified certain rules for model aircraft while otherwise exempting them from further regulation by the FAA. Included in the act is a definition of model aircraft with the stipulation that model aircraft must be “flown for hobby or recreational purposes.” As such, commercial use of drones is regulated by the FAA. While the FAA has been working to draft and adopt specific regulations for commercial use of drones, it has otherwise prohibited any commercial use of drones unless the operation has been specifically allowed through a waiver or exemption.

The FAA granted many more exemptions in 2015 than previous years. When the PRI study concluded in December 2014, only eight waivers had been granted for commercial use. By early December 2015, over 2,500 exemptions have been granted.

Proposed Rulemaking for Small UAS. On February 15, 2015, the FAA issued proposed rulemaking on UAS, specifically for small UAS (under 55 lbs.). The main components of the proposed rule are that UAS could be used commercially if the UAS is:

• operated during standard daylight hours; • operated within visual sight of the pilot; • not operated over any persons not directly involved with the operation; • operated by a person at least 17 years or older; • operated by a person that has passed a written FAA knowledge test; • flown no higher than 500 feet and going no faster than 100 mph; and • registered with the FAA and appropriately marked as such.

Comments on the proposed rulemaking were accepted in the spring of 2015, with final rules expected in mid-2016. The proposed rules for small UAS generally mirror those already in place for hobbyist drone use, except: there is no age restriction for hobbyists; hobbyists do not need to pass a test; and hobbyist flights are limited to 400 feet instead of 500 feet elevation.

Until final rules are adopted, those wishing to operate a drone for commercial purposes still must seek an exemption from the FAA. Though the proposed rule is expected to alleviate the need for many exemptions, it seems likely that exemptions will still be sought, for example, to be able to operate a drone beyond the line of sight of the pilot.

FAA UAS Registration Requirements. On December 14, 2015, the FAA published an interim final rule for small UAS registration. All UAS between 0.55 lbs. (250 grams) and 55 lbs. must be registered. Upon registration, the operator receives a single registration number and is responsible for marking his or her UAS appropriately.

The rule describes a few restrictions on who can register a drone. To be able to register any aircraft, drone or otherwise, the registrant must be a citizen, permanent resident, or corporation of the United States – this is based on existing law that is unchanged by this rule. Only persons 13 years of age or older may register. Persons younger than 13 are allowed to operate UAS recreationally if the drone has been registered by a responsible party age 13 or older. Hobbyist operators can use an electronic, web- or app-based registration system when the rule goes into effect on December 21, 2015. Operators using drones for commercial purposes must continue to use the current paper-based registration system until March 31, 2016.

Under the final rule, owners must pay a registration fee of $5 every three years and provide their name, home address, and email address as part of the registration process. Operators may include the serial number of their UAS if they prefer to use that as the identification number, rather than having to affix the registration number to the UAS otherwise.

Though listed as “interim,” these requirements are effective December 21, 2015. Registration requirements are delayed by approximately two months for those who owned drones prior to December 21, 2015. Drones purchased after December 21 must be registered before they are flown outdoors. Regardless of date of initial ownership, those who register by January 20, 2016 will have the $5 fee waived to encourage compliance.

CCM Government Finance & Research Regulating Drone Use 172 General Assembly Raised Bill No. 5274

February Session, 2016 LCO No. 1434

*01434______PS_*

Referred to Committee on PUBLIC SAFETY AND SECURITY

Introduced by:

(PS)

AN ACT CONCERNING THE USE OF DRONES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subdivision (5) of section 15-34 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(5) "Aircraft" means any contrivance used or designed for navigation of or flight in air, including (A) airplanes, meaning power-driven fixed-wing aircraft, heavier than air, supported by the dynamic reaction of the air against their wings, (B) gliders, meaning heavier than air aircraft, the free flight of which does not depend principally upon a power- generating unit, and (C) rotorcraft, meaning power-driven aircraft, heavier than air, supported during flight by one or more rotors. "Aircraft" does not include unmanned aerial vehicles.

Sec. 2. Section 15-34 of the general statutes is amended by adding subdivision (29) as follows (Effective October 1, 2016):

CCM Government Finance & Research Regulating Drone Use 173 (NEW) (29) "Unmanned aerial vehicle" means any contrivance used or designed for navigation of or flight in air that is power-driven and operated without the possibility of direct human intervention from within or on the contrivance.

Sec. 3. Subsection (a) of section 53a-189a of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(a) A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, (3) with the intent to arouse or satisfy the sexual desire of such person, commits simple trespass, as provided in section 53a- 110a, and observes, in other than a casual or cursory manner, another person (A) without the knowledge or consent of such other person, (B) while such other person is inside a dwelling, as defined in section 53a-100, and not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (4) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the genitals, pubic area or buttocks of another person or the undergarments or stockings that clothe the genitals, pubic area or buttocks of another person (A) without the knowledge and consent of such other person, and (B) while such genitals, pubic area, buttocks, undergarments or stockings are not in plain view. For purposes of this subsection, "not in plain view" includes a view not otherwise obtainable that is made possible through the use of technology that is electronic, as defined in section 1-331, or of an unmanned aerial vehicle, as defined in subdivision (29) of section 15-34, as amended by this act.

Sec. 4. (NEW) (Effective October 1, 2016) (a) Except as otherwise provided by law, no person shall operate or use any computer software or other technology, including, but not limited to, an unmanned aerial vehicle, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, that allows a person, when not physically present, to release tear gas or any like or similar deleterious agent or to remotely control a deadly weapon, as defined in section 53a-3 of the general statutes, or an explosive or incendiary device, as defined in section 53-206b of the general statutes.

(b) Any person who violates subsection (a) of this section shall be guilty of a class C felony.

Sec. 5. Subsection (a) of section 53a-174 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(a) Any person not authorized by law who conveys, [or] passes or releases, or causes to be conveyed, [or] passed or released, into any correctional or humane institution or the grounds or buildings thereof, or to any inmate of such an institution who is outside the

CCM Government Finance & Research Regulating Drone Use 174 premises thereof and known to the person so conveying, [or] passing or releasing or causing such conveying, [or] passing or releasing to be such an inmate, any controlled drug, as defined in section 21a-240, any intoxicating liquors, any firearm, weapon, dangerous instrument or explosive of any kind, any United States currency, or any rope, ladder or other instrument or device for use in making, attempting or aiding an escape, shall be guilty of a class D felony. The unauthorized conveying, passing or releasing or possession of any rope or ladder or other instrument or device, adapted for use in making or aiding an escape, into any such institution or the grounds or buildings thereof, shall be presumptive evidence that it was so conveyed, passed, released or possessed for such use.

Sec. 6. Subdivision (8) of section 54-280 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(8) "Offense committed with a deadly weapon" or "offense" means: (A) A violation of subsection (c) of section 2-1e, subsection (e) of section 29-28, subsections (a) to (e), inclusive, or (i) of section 29-33, section 29-34, subsection (a) of section 29-35, section 29-36, 29-36k, 29- 37a or 29-37e, subsection (c) of section 29-37g, section 29-37j, subsection (b), (c) or (g) of section 53-202, section 53-202b, 53-202c, 53-202j, 53-202k, 53-202l, 53-202aa or 53-206b, subsection (b) of section 53a-8, section 53a-55a, 53a-56a, 53a-60a, 53a-60c, 53a-72b, 53a-92a, 53a-94a, 53a-102a, 53a-103a, 53a-211, 53a-212, 53a-216, 53a-217, 53a-217a, 53a-217b or 53a- 217c or section 4 of this act, or a second or subsequent violation of section 53-202g; or (B) a violation of any section of the general statutes which constitutes a felony, as defined in section 53a-25, provided the court makes a finding that, at the time of the offense, the offender used a deadly weapon, or was armed with and threatened the use of or displayed or represented by words or conduct that the offender possessed a deadly weapon;

Sec. 7. (NEW) (Effective October 1, 2016) The presence of tear gas or any like or similar deleterious agent, a deadly weapon, as defined in section 53a-3 of the general statutes, or an explosive or incendiary device, as defined in section 53-206b of the general statutes, on or in an unmanned aerial vehicle, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, may be presumptive evidence of the possession or use of the agent, weapon or device by each person operating or using such unmanned aerial vehicle.

Sec. 8. (NEW) (Effective October 1, 2016) The presence of a controlled substance, as defined in section 21a-240 of the general statutes, on or in an unmanned aerial vehicle, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, may be presumptive evidence of the possession or use of the controlled substance by each person operating or using such unmanned aerial vehicle.

Sec. 9. (NEW) (Effective October 1, 2016) (a) For the purposes of this section:

(1) "Unmanned aerial vehicle" has the same meaning as provided in subdivision (29) of section 15-34 of the general statutes, as amended by this act;

(2) "Law enforcement agency" means the Division of State Police within the Department of Emergency Services and Public Protection or any municipal police department; and

CCM Government Finance & Research Regulating Drone Use 175 (3) "Law enforcement officer" means any officer, employee or other person otherwise paid by or acting as an agent of a law enforcement agency.

(b) A law enforcement officer may operate an unmanned aerial vehicle provided:

(1) A judge of the Superior Court or judge trial referee has issued a warrant in accordance with section 54-33a of the general statutes authorizing the use of an unmanned aerial vehicle;

(2) The individual who will be the subject of the information collected by the operation of an unmanned aerial vehicle has given advance written consent to such operation;

(3) The owner of the property that will be the subject of the information collected by the operation of an unmanned aerial vehicle has given advance written consent to such operation;

(4) The law enforcement agency has probable cause to believe that a criminal offense has been, is being or will be committed and exigent circumstances exist that make it unreasonable for the law enforcement agency to obtain a warrant authorizing the use of an unmanned aerial vehicle;

(5) The law enforcement agency reasonably believes that there is an imminent threat to the life or safety of an individual;

(6) Such operation is pursuant to search and rescue activities conducted by the law enforcement agency;

(7) Such operation is pursuant to training activities conducted by the law enforcement agency; or

(8) Such operation is used to reconstruct or document a specific crime scene.

(c) An individual or privately owned property shall be considered to be the subject of information collected by the operation of an unmanned aerial vehicle if the information allows the identity of the person or the privately owned property to be ascertained or if the law enforcement officer operating the unmanned aerial vehicle acknowledges such individual or such property was the subject of the information.

(d) Information that was collected through the operation of an unmanned aerial vehicle that concerns an individual or privately owned property that was the subject of a warrant may be retained pursuant to the warrant.

(e) Information that was collected through the operation of an unmanned aerial vehicle pursuant to subdivisions (2) and (3) of subsection (b) of this section that concerns an individual or privately owned property may be retained pursuant to the terms specified in such advance written consent.

CCM Government Finance & Research Regulating Drone Use 176 (f) (1) Information that was collected through the operation of an unmanned aerial vehicle pursuant to subdivisions (4) to (8), inclusive, of subsection (b) of this section that concerns an individual or privately owned property shall be reviewed by the law enforcement agency that collected the information within ninety days from the date of collection. The collected information shall be destroyed or modified pursuant to subdivision (2) of this subsection or retained pursuant to subdivision (3) of this subsection.

(2) If such information allows the identity of an individual or privately owned property to be ascertained and there is no probable cause to believe that an offense was committed by the individual or on the property, such law enforcement agency (A) shall destroy such information within forty-eight hours after such review, or (B) shall permanently modify such information so that the identity of such individual or such property cannot be ascertained, and, after such modification, may retain the modified information for a period of not more than five years from the date of collection and, after such retention, shall destroy the modified information.

(g) (1) Not later than January 1, 2017, the Department of Emergency Services and Public Protection shall develop and promulgate a model policy that provides guidelines on the destruction, modification and retention of information collected by the operation of an unmanned aerial vehicle by a law enforcement agency.

(h) Each law enforcement agency that owns an unmanned aerial vehicle shall register the unmanned aerial vehicle with the Office of Policy and Management not later than thirty days after taking ownership of the unmanned aerial vehicle. The registration shall be on a form prescribed by the Office of Policy and Management and shall include the name of the law enforcement agency, the name, job title and contact information of each law enforcement officer who is authorized to operate the unmanned aerial vehicle, and a description of the unmanned aerial vehicle, including, but not limited to, the name of the manufacturer, the model number and the serial number. The law enforcement agency shall post such registration on its Internet web site.

CCM Government Finance & Research Regulating Drone Use 177 (i) Not later than January fifteenth of each year, each law enforcement agency that operated an unmanned aerial vehicle in the preceding calendar year shall report to the Chief State's Attorney: (1) The number of times the law enforcement agency operated an unmanned aerial vehicle in the preceding calendar year; (2) a list of all occasions when an unmanned aerial vehicle was operated with the following details for each operation: (A) The date, time and duration of operation, (B) the location of such operation, (C) the reason for such operation, (D) whether the unmanned aerial vehicle was operated pursuant to a warrant, and (E) the number of times the type of information collected through the operation of an unmanned aerial vehicle provided reasonable and articulable suspicion that a criminal offense was being committed; and (3) the law enforcement agency's compliance with the policy adopted pursuant to subdivision (2) of subsection (g) of this section, including the number of times the law enforcement agency reviewed and destroyed information collected by the operation of an unmanned aerial vehicle and the number of times such law enforcement agency destroyed information collected by the operation of an unmanned aerial vehicle without reviewing such information.

(j) Not later than April fifteenth of each year, the Chief State's Attorney, based on the reports filed by law enforcement agencies pursuant to subsection (i) of this section, shall post on its Internet web site a report concerning the operation of unmanned aerial vehicles by law enforcement agencies during the preceding calendar year. The report shall include a summary and an analysis of the information received from the law enforcement agencies. The report shall also identify any law enforcement agency that registered an unmanned aerial vehicle pursuant to subsection (h) of this section or submitted a report in a previous reporting period pursuant to subsection (i) of this section, but did not submit a report for the current reporting period.

Sec. 10. (NEW) (Effective October 1, 2016) (a) For the purposes of this section:

(1) "Unmanned aerial vehicle" has the same meaning as provided in subdivision (29) of section 15-34 of the general statutes, as amended by this act;

(3) "State employee" means any officer, employee or other person otherwise paid by or acting as an agent of a state agency.

(b) Any state agency may authorize a state employee to operate an unmanned aerial vehicle, provided the operation is within the scope of the state employee's employment.

CCM Government Finance & Research Regulating Drone Use 178 including, but not limited to, the name of the manufacturer, the model number and the serial number. The state agency shall post such registration on its Internet web site.

(d) Not later than January fifteenth of each year, each state agency that permitted a state employee to operate an unmanned aerial vehicle in the preceding calendar year shall submit a report to the Office of Policy and Management. The report shall include a list of all occasions when an unmanned aerial vehicle was operated with the following details for each operation: (1) The date, time and duration of operation, (2) the location of such operation, and (3) the reason for such operation.

Sec. 11. Subsection (c) of section 12-455a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

Sec. 12. Subdivision (54) of section 14-1 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(54) "Motor vehicle" means any vehicle propelled or drawn by any nonmuscular power, except aircraft, unmanned aerial vehicles, as defined in subdivision (29) of section 15-34, as amended by this act, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated [wheel chairs] wheelchairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, motor-driven cycles as defined in section 14-286, special mobile equipment as defined in section 14-165, mini-motorcycles, as defined in section 14-289j, and any other vehicle not suitable for operation on a highway;

CCM Government Finance & Research Regulating Drone Use 179 Sec. 13. Subdivision (20) of section 22a-134 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(20) "Vehicle" means any motorized device for conveying persons or objects except for an aircraft, unmanned aerial vehicle, as defined in subdivision (29) of section 15-34, as amended by this act, boat, railroad car or engine, or farm tractor;

This act shall take effect as follows and shall amend the following sections:

Section 1 October 1, 2016 15-34(5)

Sec. 2 October 1, 2016 15-34

Sec. 3 October 1, 2016 53a-189a(a)

Sec. 4 October 1, 2016 New section

Sec. 5 October 1, 2016 53a-174(a)

Sec. 6 October 1, 2016 54-280(8)

Sec. 7 October 1, 2016 New section

Sec. 8 October 1, 2016 New section

Sec. 9 October 1, 2016 New section

Sec. 10 October 1, 2016 New section

Sec. 11 October 1, 2016 12-455a(c)

Sec. 12 October 1, 2016 14-1(54)

CCM Government Finance & Research Regulating Drone Use 180 Sec. 13 October 1, 2016 22a-134(20)

Statement of Purpose:

To (1) establish the crime of using computer software or technology, including a drone, which allows someone who is not physically present to release tear gas or control a deadly weapon, explosive or incendiary device, (2) limit the use of a drone by law enforcement and other state agencies, and (3) establish retention and destruction requirements for information collected by law enforcement using drones.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]

CCM Government Finance & Research Regulating Drone Use 181 General Assembly Raised Bill No. 148

February Session, 2016 LCO No. 1113

*01113______PRI*

Referred to Committee on PROGRAM REVIEW AND INVESTIGATIONS

Introduced by:

(PRI)

AN ACT CONCERNING THE WEAPONIZATION OF DRONES BASED ON A PROGRAM REVIEW AND INVESTIGATIONS COMMITTEE STUDY.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 15-34 of the general statutes is amended by adding subdivision (29) as follows (Effective October 1, 2016):

Sec. 2. (NEW) (Effective October 1, 2016) (a) Except as otherwise provided by law, no person shall operate or use any computer software or other technology, including, but not limited to, an unmanned aerial vehicle, as defined in subdivision (29) of section 15-34 of the general statutes, as amended by this act, that allows a person, when not physically present, to release tear gas or any like or similar deleterious agent or to remotely control a deadly weapon, as defined in section 53a-3 of the general statutes, or an explosive or incendiary device, as defined in section 53-206b of the general statutes.

CCM Government Finance & Research Regulating Drone Use 182 (b) Any person who violates subsection (a) of this section shall be guilty of a class C felony.

Sec. 3. Subdivision (5) of section 15-34 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(5) "Aircraft" means any contrivance used or designed for navigation of or flight in air, including (A) airplanes, meaning power-driven fixed-wing aircraft, heavier than air, supported by the dynamic reaction of the air against their wings, (B) gliders, meaning heavier than air aircraft, the free flight of which does not depend principally upon a power- generating unit, and (C) rotorcraft, meaning power-driven aircraft, heavier than air, supported during flight by one or more rotors. "Aircraft" does not include unmanned aerial vehicles.

Sec. 4. Subdivision (8) of section 54-280 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(8) "Offense committed with a deadly weapon" or "offense" means: (A) A violation of subsection (c) of section 2-1e, subsection (e) of section 29-28, subsections (a) to (e), inclusive, or (i) of section 29-33, section 29-34, subsection (a) of section 29-35, section 29-36, 29-36k, 29- 37a or 29-37e, subsection (c) of section 29-37g, section 29-37j, subsection (b), (c) or (g) of section 53-202, section 53-202b, 53-202c, 53-202j, 53-202k, 53-202l, 53-202aa or 53-206b, subsection (b) of section 53a-8, section 53a-55a, 53a-56a, 53a-60a, 53a-60c, 53a-72b, 53a-92a, 53a-94a, 53a-102a, 53a-103a, 53a-211, 53a-212, 53a-216, 53a-217, 53a-217a, 53a-217b, [or] 53a- 217c or section 2 of this act, or a second or subsequent violation of section 53-202g; or (B) a violation of any section of the general statutes which constitutes a felony, as defined in section 53a-25, provided the court makes a finding that, at the time of the offense, the offender used a deadly weapon, or was armed with and threatened the use of or displayed or represented by words or conduct that the offender possessed a deadly weapon;

Sec. 5. Subsection (c) of section 12-455a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

Sec. 6. Subdivision (54) of section 14-1 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

CCM Government Finance & Research Regulating Drone Use 183 golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, motor-driven cycles as defined in section 14-286, special mobile equipment as defined in section 14-165, mini-motorcycles, as defined in section 14-289j, and any other vehicle not suitable for operation on a highway;

Sec. 7. Subdivision (20) of section 22a-134 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

This act shall take effect as follows and shall amend the following sections:

Section 1 October 1, 2016 15-34

Sec. 2 October 1, 2016 New section

Sec. 3 October 1, 2016 15-34(5)

Sec. 4 October 1, 2016 54-280(8)

Sec. 5 October 1, 2016 12-455a(c)

Sec. 6 October 1, 2016 14-1(54)

Sec. 7 October 1, 2016 22a-134(20)

Statement of Purpose:

To implement the program review and investigations committee recommendations concerning the weaponization of drones.

CCM Government Finance & Research Regulating Drone Use 184 CCM Government Finance & Research Regulating Drone Use 185 CCM Government Finance & Research Regulating Drone Use 186 CCM Government Finance & Research Regulating Drone Use 187 CCM Government Finance & Research Regulating Drone Use 188 One centimeter over my back yard: where does federal preemption of state drone regulation start?

Henry H. Perritt, Jr.1 Albert J. Plawinski

I. Introduction You look out your back window and see a small drone hovering a few inches over your lawn, driving your dog crazy, and watching you watching it. Do you have to figure out how to report it to the Federal Aviation Administration and wait for the FAA to send an inspector, or should you call the cops?

Since the United States Constitution was ratified, creating a paradigmatic federal structure for governing the United States, new technologies have consistently raised new issues about the allocation of governing responsibility between the central government and the sovereign states that ceded some of their sovereignty to create the United States of America. Steamboats, factories, railroads, telegraphs and telephones, motor cars, wireless communications, aircraft, the Internet, and biotechnology each have raised questions anew about whether a more or less uniform body of national law, or a mosaic of different state and local laws would advance social welfare the most.

Now, the proliferation of commercial drones (unmanned aircraft systems) reignites old controversies over state and federal power. Being sold by the thousands by Amazon and other online vendors, flown for fun by hobbyists and to make money in a variety of industries, drones alarm privacy advocates, enrage anti-government zealots, make pilots fearful of midair collisions, and invite intervention by politically ambitious office

1 Professor of Law and former Dean, Chicago-Kent College of Law, the law school of Illinois Institute of Technology. Private airplane and helicopter pilot. S.B. in Aeronautics and Astronautics, MIT; S.M. in Management, MIT Sloan School; J.D., Georgetown University Law Center. Formerly applications engineer and senior sales planner, Lockheed Aircraft Corporation; consultant to Administrative Conference of the United States on FAA and NTSB civil penalty procedures. Member of the bar:, Virginia (inactive), Pennsylvania (inactive), District of Columbia, Maryland, Illinois, Supreme Court of the United States. Mr. Perritt represents several private clients seeking section 333 exemptions from the FAA. He appreciates the stellar work of his research assistant, Albert J. Plawinski, Chicago-Kent College of Law Class of 2017, in fleshing out major parts of this article.

CCM Government Finance & Research Regulating Drone Use 189 holders and aspirants. At the same time, drones excite the entrepreneurial energies of private sector technology enthusiasts who have applied by the hundreds for governmental permission to operate them commercially, and who forecast hundreds of thousands of new jobs and billions in economic growth.

Drone regulation is inevitable. Drones, like other flying objects, can be dangerous. Airplanes and helicopters are quite safe statistically, but even they occasionally destroy things and kill people. Helicopters and airplanes operate safely most of the time in a century-old web of customary practices and federal regulation. The FAA sets standards for the aircraft, the pilots that fly them, and the procedures of businesses that operate them. That traditional legal framework is ill-suited to drones. The balances struck between safety and economic productivity for airplanes carrying passengers and helicopters performing med-evac missions cannot merely be extended to much smaller air vehicles with no one on board.

The author and his frequent co-author, Eliot O. Sprague, have been active in exploring the ingredients of sound drone regulation in other articles, published over the last couple of years.2 Those articles assume, for the most part, that whatever regulation emerges will be federal, with drone-operator (“DROP”) behavior also being conditioned by restrictions imposed by private liability insurers and the prospect of tort liability for negligent operation.

2 Henry H. Perritt, Jr. & Eliot O. Sprague, Drones, 17 VANDERBILT J. ENT. & TECH. L. 101 (2015); Henry H. Perritt, Jr. & Eliot O. Sprague, Law Abiding Drones, 16 COLUM. SCI. & TECH. L. REV. 385 (2015); Henry H. Perritt, Jr. & Eliot O. Sprague, Developing DROP Discipline: Training and Testing Operators of Small Unmanned Aircraft Systems, 7 HASTINGS SCI. & TECH. L. J. 143 (2015); Henry H. Perritt, Jr., Drones for hire, DRONESX, May 27, 2015; Henry H. Perritt, Jr. & Eliot O. Sprague, Bracing for Impact, VERTICAL, April/May 2015, at p.86; Henry H. Perritt, Jr., Drones gather news - legally, NEWSLETTER OF THE RADIO TELEVISION DIGITAL NEWS ASSOCIATION, May 21, 2015; Henry H. Perritt, Jr. & Eliot O. Sprague, Drones: Free at Last? NEWSLETTER OF THE RADIO TELEVISION DIGITAL NEWS ASSOCIATION, Mar. 26, 2015; Henry H. Perritt, Jr. & Eliot O. Sprague, Reigning in the Renegades, VERTICAL MAGAZINE, Dec./Jan. 2014-2015, at p. 8; Henry H. Perritt, Jr. & Eliot O. Sprague, Ready for the microdrone races? NEWSLETTER OF THE RADIO TELEVISION DIGITAL NEWS ASSOCIATION, Oct. 29, 2014; Henry H. Perritt, Jr. & Eliot O. Sprague, Seeking Law Abiding Drones: What to Tell Clients that Want to Use Drones in Their Business, BUSINESS LAW TODAY, Oct., 2014; Henry H. Perritt, Jr. & Eliot O. Sprague, Law abiding drones, ROTOR & WING MAGAZINE (Sep. 2014); Henry H. Perritt, Jr. & Eliot O. Sprague, Leashing Drones, ROTORCRAFT PRO, Aug., 2014; Henry H. Perritt, Jr. & Eliot O. Sprague, Leashing Drones, ROTORCRAFT PRO, July, 2014; Henry H. Perritt, Jr. & Eliot O. Sprague, Law and Order in the Skies, THE TECH (MIT student newspaper), 13 June 2014; Henry H. Perritt, Jr. & Eliot O. Sprague, But Who’s Going to Fly Them? PROFESSIONAL PILOT, June, 2014, p.94; Henry H. Perritt, Jr. & Eliot O. Sprague, Drone Dread, ROTOR & WING MAGAZINE, June, 2014, p.34; Henry H. Perritt, Jr. & Eliot O. Sprague, Is there a drone in your future? HELIWEB, May, 2014 p. 14.

CCM Government Finance & Research Regulating Drone Use 190 This is the fourth in a series of articles about civilian drones – what the FAA calls “small Unmanned Aircraft Systems (“sUAS”). The first article3 explores the subject generally, introducing the important distinction between microdrones and machodrones and focusing on the engineering choices that are made that produce actual designs of aircraft in these distinct markets. The second article4 focuses more closely on vehicle design and explains that most of the rules contemplated by the FAA to ensure safe operation can be built into onboard systems. If drones may be sold only when they internalize aviation safety rules, the burden of enforcing traditional rules on hundreds of thousands of operators is eased considerably. The third article5 focuses on human capital. It proposes that bureaucratic burdens can be eased by delegating much of the responsibility for drone operator (“DROP”) training and certification to private organizations, extending the model traditionally used for civilian pilots in the United States.

This article focuses on the allocation of responsibility among different levels of government, recognizing that much civilian drone commercial activity will take place close to the ground and within greatly circumscribed horizontal ranges – matters traditionally regulated by states and municipalities rather than by the federal government.

This article provides a framework within which an intergovernmental tug of war among federal aviation regulators, states, and municipalities can be addressed. Part II explains what drones are, emphasizing the distinctions between microdrones and machodrones. Microdrones, mostly multicopters in configuration, cost from a few hundred to a few thousand dollars, and have limited endurance and range. Mostly powered by electric motors and batteries, they are capable of flying for 15 minutes to an hour, at distances ranging up to a mile or so from the operator, at a few hundred feet above the ground. They can carry high-quality cameras and other sensors, and may eventually be able to deliver small packages. They cannot transport any practical quantity of freight, any significant weaponry, or carry people. They represent scaled up versions of model aircraft—or model aircraft themselves, put to new uses.

3 Henry H. Perritt, Jr. & Eliot O. Sprague, Drones, 17 VANDERBILT J. ENT. & TECH. L. 101 (2015). 4 Henry H. Perritt, Jr. & Eliot O. Sprague, Law Abiding Drones, 16 COLUM. SCI. & TECH. L. REV. 385 (2015). 5 Henry H. Perritt, Jr. & Eliot O. Sprague, Developing DROP Discipline: Training and Testing Operators of Small Unmanned Aircraft Systems, 7 HASTINGS SCI. & TECH. L. J. 143 (2015).

CCM Government Finance & Research Regulating Drone Use 191 Machodrones are bigger. More likely to be configured as fixed-wing aircraft or conventional helicopters, they often have gasoline, diesel, or turbine engines and much larger payloads. They can perform essentially the same missions as manned airplanes and helicopters and extend them, because they are not constrained by the endurance of on-board crew members. They represent scaled down versions of airplanes, helicopters, and military drones used in combat and for intelligence collection.

Microdrones present only modest risks to other aircraft and to people and property on the ground; machodrones present greater risk because of their weight and range.

Part II concludes with an overview of emerging drone regulation, haltingly initiated by the Federal Aviation Administration (“FAA”) in late 2014.

Part III reviews the constitutional pillars of federalism: the Commerce Clause and the Supremacy Clause; and analyzes the many cases adjudicating the boundary between federal and state regulation of older aviation technologies.

Part IV takes the preemption doctrines developed in Part III and synthesizes a set of legal principles that enable, while circumscribing, state and municipal regulation of drones. It considers a number of specific restrictions that might be contemplated and evaluates their likely prospects for surviving preemption challenges.

Part V recognizes that the eventual allocation of responsibility for regulating drones will be driven as much by politics as by the law. It sketches the likely political dynamics in light of mass public concerns and interest group alignments. It considers the damage that might result from a completely uninhibited and fragmented exercise of governmental power at the most local level, explores state-municipal allocation of responsibility and federal-state cooperative possibilities.

The final part provides a framework within which both the federal government and states and their subdivisions can exercise traditional powers to regulate different aspects of all kinds of drones. The enormous popularity of microdrones has given rise to a new category of operations, increasingly referred to "consumer drones." Consumer drones do not fit comfortably within either traditional model-aircraft operations or the commercial microdrone flights the FAA proposes to regulate in its NPRM and has accommodated with its nearly 700 section 333 exemptions. Consumer drone operations represent a greater threat to aviation safety and the safety of people and things on the

CCM Government Finance & Research Regulating Drone Use 192 ground than model aircraft or commercial microdrones, but the 2012 Act prohibits the FAA from regulating them. Senator Dianne Feinstein introduced a bill, S.1608, in 20156 that would address the problem, but it may be that the best solution is to leave consumer drones for state and local regulation. Section XXX considers that possibility.

II. Drones Any regulatory initiatives, whether federal, state, or local, should proceed from a solid understanding of the technology to be regulated. More important, it should focus on actual, rather than imagined, risks posed by the technology, qualified as much as possible. In other words, risk-based regulation should be the norm. Drone regulation also should impose performance standards rather than detailed engineering standards,7 which freeze technology at a particular point in time and discourage innovation. Finally, the burdens of any particular regulatory approach should be weighed against the benefit it produces to the public interest. All regulation necessarily excludes some low-probability risks with modest costs, when the burden of eliminating them is too high.8 The FAA has embraced all three of these principles in its NPRM,9 in its approach to the section 333 process.

A. Two weight groups Drone technologies are embedded in two distinct groups of vehicles: microdrones, machodrones. The boundary between the two other groups is statutorily defined; anything weighing more than 55 pounds is a machodrone. But the range from 0 to 55

6 S.1608, Consumer Drone Safety Act, 114th Cong., 1st Sess. (introduced Jun. 18, 2015). See Statement by Ms Feinstein, 161 Cong. Rec. S4300 (June 18, 2015) [hereinafter “S.1608”]. 9 FAA, Operation and certification of small unmanned aircraft systems; proposed rule, 80 Fed. Reg. 9544, 9552, 9561 (Feb. 23, 2015) (referring to risk-based and performance- based approach). 9 FAA, Operation and certification of small unmanned aircraft systems; proposed rule, 80 Fed. Reg. 9544, 9552, 9561 (Feb. 23, 2015) (referring to risk-based and performance- based approach). 9 FAA, Operation and certification of small unmanned aircraft systems; proposed rule, 80 Fed. Reg. 9544, 9552, 9561 (Feb. 23, 2015) (referring to risk-based and performance- based approach).

CCM Government Finance & Research Regulating Drone Use 193 pounds is too large; a 5-pound 3Drobotics Solo presents vastly different risks from a 50- pound aircraft. An appropriate boundary between small microdrones and big ones— which might be called “mididrones” has not been defined, however. Maybe it should be the 3 kilogram/4.3 pounds that the UAS America Fund proposed for a special regulatory category known as micro sUAS,10 a proposal on which the FAA explicitly invited comment in the NPRM.11 Maybe it should be 8 pounds or 20 pounds. The most popular small drones include the various DJI Phantom models which fit comfortably below the lowest number, but they also include the DJI Inspire 1, the 3Drobotics IRIS+, the DJI Spreading Wings S800, S900 and S1000, the FreeFly Cinestar 8, and many others.12

The vehicles most commonly approved in the section 333 exemptions almost all would be accommodated by 20 pound limit; and most would be accommodated by an 8 pound limit. The 4.3 pound limit would exclude everything except the DJI Phantoms.

Regardless of the regulatory categories and the dividing line between microdrones and mididrones, vehicles falling in the microdrone and mididrone groups share many basic characteristics. They are multicopters, typically quadcopters for the smaller products,

10 Petition of UAS America Fund, LLC (“UAS Fund”) to Adopt 14 C.F.R. Part 107 to Implement Operational Requirements for Micro Unmanned Aircraft Systems, http://www.uasamericafund.com/assets/uas-america-fund-petition-rulemaking.pdf (filed Dec. 18, 2014). 11 NPRM, 80 Fed. Reg. at 9556-9557 (inviting comment on micro-sUAS idea). 12 The most popular microdrone is the DJI Phantom, which comes in various models with prices clustered around $1,000. Options include a built-in gimbaled camera or a gimbal for a GoPro camera. The DJI Phantom, http://www.dji.com/product/phantom, is a quadcopter, with a diagonal size of 14 inches. It has a maximum gross weight of 2.6 pounts. A close competitor is the 3drobotics Solo, http://3drobotics.com/solo-gopro-drone-specs/, also a quadcopter, with a diagonal size of 23 inches. It has a maximum gross weight of 3.3 pounds.

Larger vehicles in the microdrone category include the SJI S1000, http://www.dji.com/product/spreading- wings-s1000/spec, an octocopter, with a diagonal size of 48 inches and maximum gross weight of 24 pounds, and the similarly sized Cinestar 8. See http://freeflysystems.com/products/cinestar/8/. All of them have maximum endurance of about 20 minutes and autonomous flight control and navigation features, including automatic hover, automatic return to home, and the ability to fly among pre-programmed waypoints. The smaller ones carry GoPro-sized cameras on 2- or 3-axis gimbals with the ability to downlink video. The larger ones can carry larger camera packages up to and including the Red camera used by professional cinematographers, and more sophisticated gimbals.

CCM Government Finance & Research Regulating Drone Use 194 and hexacopters or octocopters for the bigger ones.13 They all have electrical propulsion systems in which LiPo batteries drive a motor on each rotor. They all have sophisticated electronic control systems that adjust vehicle attitude and orientation by varying rotor RPM differentially, obviating the need for most of the mechanical complexity on helicopters.

They all have magnetometers (electronic magnetic compasses), altimeters, and GPS navigation. Most of them have autonomous safety features, usually including automatic take off, landing, and hover; automatic return to home at the command of the DROP or if the control link is interrupted; and geo- fencing, which keeps the drone within a certain distance of the DROP, below a certain altitude, and excludes it from airports and other controlled airspace. Most of them can autonomously fly a flight plan defined in advance by entering waypoints, and modifiable in flight.

Few micro- and mididrones have endurance greater than 30 minutes, and most are in the 15-20 minute range. With maximum speeds of about 35 knots, their theoretical range is 10-20 miles, but the spread-spectrum WiFi technologies used for their control links limit them to less than a mile, as a practical matter. They have enough thrust to fly up to several thousand feet above sea level.

Enough similarities exist among the most popular models that the analysis can proceed under the statutory bifurcation between microdrones and machodrones, recognizing that a new middle-category may emerge.14

Machodrones design will not crystallize until users gain more experience with widely varying configurations. Only a few have entered the market. They are, by definition, heavier, approaching the weight of small airplanes and helicopters. They are more likely to have gasoline, diesel, or turboshaft propulsion systems to allow greater endurance and range than is available from the smaller vehicles. To justify their cost, they will have to fly beyond line of sight and at altitudes that will cause them to intermingle with manned aircraft. It is far from clear whether their capabilities will

14 The article ignores altogether toy drones, those costing less than $100, weighing only an ounce or two and intended mainly to be flown inside. 14 The article ignores altogether toy drones, those costing less than $100, weighing only an ounce or two and intended mainly to be flown inside.

CCM Government Finance & Research Regulating Drone Use 195 justify their higher cost, comparable to, or exceeding that of airplanes and helicopters in similar weight classes.

B. Benefits The explosion of interest in civilian drones, accelerated by CBS 60 Minutes reporter Charlie Rose’s November, 2013 interview with Amazon CEO Jeff Bezos, is fueled by an appreciation of their utility. Microdrones and mididrones can make aviation support – especially aerial imagery – available where it has not been available before due to cost or risk of using manned aircraft. Microdrones and mididrones have acquisition costs two- to three orders of magnitude less than helicopters and airplanes. Their operating costs are similarly lower, although crew costs may turn out to be comparable, if DROP compensation resembles that for pilots – the labor market for DROPs is in its infancy.

The limited payload capability of the smaller drones means that they are primarily useful for aerial imaging. But aerial imaging applications abound. Event photography; aerial photographs and videos for marketing of real estate and boats; inspection of utility infrastructure such as pipelines, powerlines, and railroads; aerial inspection of bridges; traffic and breaking news coverage for television; assessing the damage from natural disasters; motion picture and television production; and precision agriculture resulting from crop inspection are applications that have provided incentives for more than 1,000 individuals and business entities to apply for section 333 exemptions, more than 700 of which have been granted, at the rate of 50 or so per week, as of this writing.

Further in the future, drones may be able to deliver packages and disaster relief supplies.

Drone proponents project creation of 100,000 jobs and $82 billion in contributions to economic growth.15 While this is likely overblown, the potential contribution to economic growth and employment is undoubtedly substantial.

C. Risks Microdrones and mididrones are lightweight, compared to helicopters and airplanes. That means that the kinetic energy to be absorbed in a crash is minuscule compared to

15 http://www.auvsi.org/econreport; See also See Marcelo Ballvé, The Drones Report: Market Forecasts For Commercial Applications, Regulatory Process, And Leading Players (Feb. 26, 2015) (BI Intelligence) (forecasting $13 billion in annual spending by 2024, up from $6 billion in 2014).

CCM Government Finance & Research Regulating Drone Use 196 that of a traditional manned aircraft crash. They also do not carry fuel and thus present de-minimis fire risk. Finally, they do not carry people, so the risks to aircrews and passengers that drive so much of traditional aviation regulation is absent from the equation.

Drone operation is not without risk, however. Even a Phantom can cut someone badly if it encounters her while its blades are turning. It can create a panic if it lands or appears about to land in the middle of a crowd. A DJI Phantom weighs about as much as a pigeon, and Cinestar 8 weighs about as much as a goose. The damage they could do helicopter bubbles (windshields) and airplane engines is probably similar to that resulting from bird strikes,16 the resistance to which is tested extensively before any airplane or helicopter receives an airworthiness and type certificate. 17

They also can create risk by distracting people performing potentially dangerous activities, like driving down expressways. Almost any driver would be inclined to swerve and apply the brakes if she suddenly sees even a small drone like a DJI Phantom in front of and a few feet above her in the express lanes.

Microdrone navigation systems and control links are notoriously unreliable, undermining the integrity of their autonomous safety features. Flyaways are not uncommon—a situation in which the drone ignores DROP commands and ascends beyond desired heights or flies beyond programmed or commanded distances from the DROP.18

Machodrones create far greater risk—similar to or greater than manned aircraft. Their higher weights give them greater kinetic energy, which must be dissipated in a crash. They are more likely to carry inflammable fuel. Their occupancy of higher levels of airspace magnifies the risk of mid-air collisions. The fact that their DROPs are on the ground makes it more difficult for them to honor the see-and-avoid principle that is the mainstay of traditional flight rules.

16 The large LiPo batteries and metal structural components on microdrones, however, absorb energy differently from bird bodies, and therefore testing beyond birds is necessary. 17 14 C.F.R. § 33.76 (bird-strike test requirements). 19 FAA, Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007).

CCM Government Finance & Research Regulating Drone Use 197 D. Regulatory approaches The FAA has been studying civilian drones at least since 2007. In that year it published a Federal Register notice on drones,19 describing a process for obtaining approval for civilian flight through special airworthiness certificates-experimental. The process was extremely cumbersome and mandated data submissions borrowed irrationally from the requirements for experimental airplanes and helicopters. Until 2012, the agency relied mostly on its slow moving advisory committee process20 to tell it how to proceed.

In 2012 Congress enacted the 2012 FAA Reauthorization and Revitalization Act,21 which contained several explicit sections requiring the FAA to move faster and ultimately to integrate civilian drones into the National Airspace System. It required the FAA to come up with “Comprehensive Plan” and a “Roadmap,”22 to issue proposed rules and then to finalize them,23 and to follow an incremental approach allowing lower risk drones to be flown commercially while more complex issues relating to high-risk, heavier drawings were being worked out.24 It also authorized, in section 333, interim procedures that would allow commercial drone flight in specific cases even before the FAA developed more general regulations.25

The FAA issued the required Comprehensive Plan26 and Roadmap in 2013,27 published a notice of proposed rulemaking (“NPRM”) for microdrones and mididrones in early 2015,28 and began a section 333 exemption process in late 2014,29 which resulted, by mid-

19 FAA, Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007). 20 See Aviation Rulemaking Advisory Committee (ARAC), http://www.faa.gov/regulations_policies/rulemaking/committees/documents/index.cfm /committee/browse/committeeID/1. The most recent posting of the Unmanned Aerospace Vehicles (UAV) Operations Working Group (WG) is dated 1991. 21 Pub. L. 112-95, 112th Cong. (Feb. 14, 2012) [hereinafter “2012 Act”]. 22 2012 Act § 332(a) (1) (comprehensive plan); Id. § 332(a)(5) (roadmap) . 23 2012 Act § 332(b). 24 2012 Act § 332(b). 25 2012 Act § 333. 26 http://www.faa.gov/about/office_org/headquarters_offices/agi/reports/media/uas_comprehensive_plan.p df. 27 http://www.faa.gov/uas/media/uas_roadmap_2013.pdf. 28 80 Fed. Reg. 9544 (Feb. 23, 2015).

CCM Government Finance & Research Regulating Drone Use 198 2015, in the grant of more than 700 section 333 exemptions.30 Pursuant to another statutory command,31 the FAA established six test ranges around the country.32 They were slow to take off because of needlessly cumbersome application and approval requirements initially imposed for every drone flight on the test ranges, and because of initial FAA reluctance to give guidance on the research and demonstration activities that would be most relevant to its regulatory development.33 Under considerable congressional pressure, the FAA began, in early 2015, to allow the test ranges to become more useful, by steering drone demonstration and experimentation activities to the test centers and by articulating more clearly the data needs for regulatory action.

The agency also has entered into a handful of cooperative ventures with industry to facilitate technology development that would enable broader use of machodrones, especially technologies that would provide collision avoidance through automated sense-and-avoid systems.34 NASA has undertaken a cooperative research effort to accelerate this technology development.35

The content of the NPRM and of the section 333 exemptions defines a regulatory approach that essentially imposes the non-binding guidelines for model aircraft flight:

29 https://www.faa.gov/uas/legislative_programs/section_333/; See FAA, Astraeus Aerial - Exemption Rulemaking, FAA-2014-0352, http://www.regulations.gov/#!docketDetail;D=FAA-2014-0352 (Sep. 25, 2014). 30 https://www.faa.gov/uas/legislative_programs/section_333/ (summarizing number of exemptions granted). 31 2012 Act § 332(c) (requiring establishment of “pilot projects”). 32 https://www.faa.gov/uas/legislative_programs/test_sites/ (announcing test sites). 33 GAO, Unmanned Aerial Systems: Efforts Made toward Integration into the National Airspace Continue, but Many Actions Still Required (Dec. 10, 2014), http://gao.gov/assets/670/667346.pdf; DOT, Office of Inspector General, FAA Faces Significant Barriers to Safely Integrate Unmanned Aircraft Systems into the National Airspace System, Report Number: AV-2014-061 (June 26, 2014), www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Unmanned%20Aircraf t%20Systems%5E6-26-14.pdf. 34 FAA, Press Release – FAA-Industry Initiative Will Expand Small UAS Horizons, https://www.faa.gov/news/press_releases/news_story.cfm?newsId=18756 (May 6, 2015) (announcing Pathfinder project). 35 NASA Armstrong Fact Sheet: Unmanned Aircraft Systems Integration in the National Airspace System (Feb. 28, 2014), http://www.nasa.gov/centers/armstrong/news/FactSheets/FS-075-DFRC.html.

CCM Government Finance & Research Regulating Drone Use 199 weight limits, restricted height (below five hundred feet), operations only with in the line of sight of the operator, avoidance of manned aircraft, exclusion of drone flights from airports and other controlled airspace, careful pre flight inspection, conformity to manufacturer instructions, operations only over property as to which an operator has permission, and qualification requirements for DROPs.36

The greatest controversies involve requirements, consistently imposed in the section 333 exceptions, that DROPs have pilot licenses, that DROPs maintain visual contact as opposed to video aided (first person view or “FPV”) control, and the exclusion of night flights and operation from moving vehicles. The proposed rule eliminates the requirement for a traditional pilot’s license, and substitutes a new airman certificate called "sUAS operator," which can be acquired by passing a knowledge test tailored to drone operation instead of manned aircraft flight. 37 In light of comments received on DROP qualification, the final rule is likely to add an experience requirement and a flight test to the drone qualification requirements.

The higher risks associated with machodrone flight justify the FAA’s incremental approach. Beyond line of sight operations at higher altitudes are likely to await the results of research and development on new technologies for collision avoidance.

International competitiveness adds to the pressure to get an appropriate regulatory regime in place to realize the potential. Canada, particularly, has moved much more quickly than the United States to provide flexible regulations allowing low risk commercial drone operations.38Amazon stresses in Congressional hearings and other public forums that it had to go overseas to conduct research and do demonstrations of package delivery by drones. Without prompt FAA action to get rules in place, drone design and manufacture are likely to move offshore.

General rules proposed in the NPRM are unlikely to be in place before 2016 or 2017. Meanwhile, the hundreds of section 333 exemption holders are beginning to fly commercially.

36 NPRM §§ 107.11-107.11, 80 Fed. Reg. at 9586-9588 (proposed operating rules); FAA Exemption No. 11310, Docket No. FAA 2014-0608 (Colin Hinkle) at 5-9 (imposing operating limitations). 37 80 Fed. Reg. at 9567-9574 (discussing UAS operator rating). 38 See NPRM at 9557 (table comparing Canadian microdrone rules with those proposed in NPRM).

CCM Government Finance & Research Regulating Drone Use 200 In addition, hundreds, maybe thousands, of others are flying drones for pleasure or commercially in ignorance or defiance of the FAA's regulatory regime. This is the most serious public safety threat. The FAA has brought no enforcement proceedings for illegal commercial flight,39 and its resources will never permit comprehensive enforcement against drone outlaws. Supplementing FAA resources by state and local law-enforcement resources might help, but if legal restrictions are too far out of line with what is possible and safe, noncompliance will become an even greater problem, exceeding the enforcement resources of all levels of government.

Increasingly state and municipal policymakers ask if they can do the regulatory job themselves. The answer to that question depends on whether state and local regulation of this new type of aviation activity is preempted by federal law.

III. Constitutional framework

A. The Commerce Clause Article One of the United States Constitution gives the Congress of United States the power “to regulate commerce with foreign nations, and among the several states . . . ."40 Known as the "Commerce Clause," this is both a grant of federal legislative power and a limitation on the states. The states may not, consistent with the "dormant commerce clause" regulate intrastate commerce so as to interfere with interstate commerce.41

39 John Goglia, FAA Says Commercial Drone Operators Need Exemption. But Doesn't Prosecute Those Flying Without One, Forbes, Feb. 13, 2015, http://www.forbes.com/sites/johngoglia/2015/02/13/faa-says-commercial-drone- operators-need-exemption-but-doesnt-prosecute-those-flying-without-one/ (reporting that FAA policy provides "that legal enforcement action is to be taken only for 'a violation that poses a medium or high actual or potential risk to safety,' such as 'when a UAS operation has a medium or high risk of endangering the operation of another aircraft or endangering persons or property on the ground.'”). 40 U.S. Const., art. I, § 8. 41 Wardair Canada, Inc. v. Florida Dept. of Revenue, 477 U.S. 1, 7-9 (1986) (explaining dormant commerce clause analysis and holding that state tax on aviation fuel did not interfere with foreign commerce with Canada).

CCM Government Finance & Research Regulating Drone Use 201 "Interstate commerce" has been given a very broad read so as to encompass commercial activities that have effects on interstate commerce as well as those that directly involve intercourse among the states.42 It is likely, for example, that sale and distribution of even the smallest toy drone affects interstate commerce, because they are sold by mostly by online vendors to anyone able to make contact with their websites, regardless of where they are located.

In two recent decisions, the United States Supreme Court emphasized that the United States Congress’ power under the Commerce Clause is not unlimited. In United States v. Morrison,43 the Supreme Court held unconstitutional a federal statute that provided a civil remedy for victims of gender-motivated violence because it exceeded the Congress's power under the Commerce Clause.

The Court reiterated, from Lopez, (see infra) three categories of activity that fall within the commerce power:

1. channels of interstate commerce; 2. instrumentalities, persons, or things in interstate commerce, and 3. activities that substantially affect interstate commerce.44

The Court focused on the third category, activities that substantially affect interstate commerce.45 It noted that federal regulation of intrastate economic or commercial activity has usually been held to be within the commerce power.46

Because the violence addressed by the statute was not commercial in character, the Court found it outside the commerce power.

42 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (holding application of NLRA to local steel production labor relations to be within federal authority under Commerce Clause because of indirect effects on interstate commerce). "Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions," 301 U.S. at 36. 43 529 U.S. 598 (2000), 44 529 U.S. at 608-609. 45 529 U.S. at 609. 46 Id. at 612.

CCM Government Finance & Research Regulating Drone Use 202 The Morrison Court relied heavily on United States v. Lopez,47 in which the Court held that a federal statute criminalizing possession of firearms near schools exceeded the commerce power. In reviewing the history of Commerce Clause jurisprudence, the Lopez court noted Wickard v. Filburn,48 which held that the commerce power extended to homegrown wheat because of its economic effect on the national market for wheat. But "neither here nor in Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities." 49

"We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce." 50

The Lopez court rejected the argument that gun violence might have an effect on interstate commerce:

"The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

“To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. "51

The Morrison and Lopez cases involved constitutional challenges to statutes, not to administrative-agency regulations or orders. The limitations imposed by the Court in those cases, however, apply to agency actions. Administrative agencies have no power

47 514 U.S. 549 (1995), 48 317 U.S. 111, 121 (1942), 49 Lopez at 558 (quoting Maryland v. Wirtz, 392 U.S. 183 (1968)). 50 Id. at 559. 51 Id. at 567.

CCM Government Finance & Research Regulating Drone Use 203 not validly delegated to them by statute. A statute purporting to delegate a power the Congress does not have is a legal nullity. So if a federal agency attempts to regulate an activity outside the Congress’s commerce power, the agency action is unconstitutional, just as a statute directly regulating the same activity would be.

Morrison and Lopez support an argument that federal power over drones is limited. For commercial activity that does not fall within the commerce power, per se; the federal regulator must demonstrate a substantial relationship to interstate commerce. Merely because an activity is commercial does not mean that it is within the commerce power. To be within the commerce power, local commerce must affect interstate commerce. The same touchstones for evaluating effects are expressed in the Lopez and Morrison cases; only the level of scrutiny is different.

Federal restrictions on the kinds of drones that may be sold would involve interstate commerce; regulation of localized drone flight at low levels above the ground does not. Localized flight does not involve commerce that crosses state lines; it usually involves activity within the scope of no more than a mile. Any safety hazards are local—to persons or property nearby. Safety hazards to airliners carrying interstate passengers or freight are minimal, given the autonomous limitations installed on the vehicle’s control systems that keep them away from where most commercial manned aircraft fly.

B. The Supremacy Clause The Supremacy Clause of the United States Constitution,52 nullifies state law that conflicts with federal law. Such conflict may arise when the United States Congress expressly forecloses state law in a statute (express preemption), when a state law or regulation directly conflicts with federal law (conflict preemption), or when the pervasiveness of federal regulation leaves no room for state regulation (field preemption).

Usually a presumption against preemption operates, but not with respect to aviation safety regulation.

"[T]he presumption against preemption only arises if Congress legislates in a field traditionally occupied by the states. In matters of air transportation, the

52 U.S. Const, Art. VI,

CCM Government Finance & Research Regulating Drone Use 204 federal presence is both longstanding and pervasive; that field is simply not one traditionally reserved to the states. The Supreme Court has not suggested that the presumption against preemption should be interposed in that field.53

1. Express preemption In Montalvo v. Spirit Airlines,54 the court of appeals found no general express preemption in the Federal Aviation Act,55 distinguishing express preemption under the Airline Deregulation Act:

“A State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any air carrier that may provide air transportation under this subpart.”56

49 U.S.C. § 40103 declares that "[t]he United States Government has exclusive sovereignty of airspace of the United States." This provision has been interpreted, however, as addressing sovereignty vis-a-vis other countries rather than the federal- state relationship.57

2. Implied preemption Montalvo explains two types of implied preemption: field preemption and conflict preemption.

a) Conflict preemption “Courts may find conflict preemption when a state law actually conflicts with federal law or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the federal law.”58

In some hypothetical instances, conflict preemption would be obvious. If the FAA mandates practice autorotations as a part of helicopter training, and a state prohibits

53 Brown v. United Airlines, Inc., 720 F.3d 60, 68 (1st Cir. 2013) (holding that state common-law claims by skycaps for a share of an airline fee for curbside checking of baggage was preempted by the explicit preemption language in the Airline Deregulation Act). 54 508 F.3d 464 (9th Cir. 2007). 55 508 F.3d at 470. 56 508 F.3d at 474-475, quoting 49 U.S.C. § 41713(b)(1). 57 CITE 58 508 F.3d at 470.

CCM Government Finance & Research Regulating Drone Use 205 practice autorotations because of the high incidence of accidents associated with such flight training, the conflict is manifest, and the state provision must yield.

Conflict preemption can be difficult to distinguish from field preemption. Suppose, for example, that an FAA regulation prescribes certain content for passenger briefings on commercial flights, and a state decides to impose an additional requirement that the briefing include advice that sitting for long periods of time can produce deep vein thrombosis. The state measure is preempted, either because the FAA has occupied the field of passenger briefing, or because adding to the FAA mandated briefing subjects conflicts with the scheme for passenger briefing the FAA envisions. In other words, the FAA prescription of certain content implies that briefer should talk about nothing else in the briefing.

b) Field preemption Field preemption exists when federal law so thoroughly occupies a legislative field “as to make reasonable the inference that Congress left no room for the States to supplement it."59

As § III.A explains, preemption cannot extend beyond the Commerce power.

C. Aviation preemption Some three dozen reported state and federal cases address federal preemption in the field of aviation safety.60 Some of them contain sweeping language concluding that the entire field of aviation safety is off-limits to state and local law. In Abdullah v. American Airlines, Inc.,61 the United States Court of Appeals for the Third Circuit held that state regulation of aviation safety is federally preempted.62 "[W]e find implied federal preemption of the entire field of aviation safety." 63 The case involved a state law claim for damages occasioned by operation of an airline transport in turbulence.

State regulation can, of course, take either one of two forms. It can be statutory, criminalizing certain drone-related conduct and imposing fines or giving authority to

59 508 F.3d at 470. 60 A Westlaw search on 13 June 2015 with the search terms sy,di("aviation safety" & preemp!) yielded 36 cases. 61 181 F.3d 363 (3d Cir. 1999). 62 181 F.3d at 365. 63 181 F.3d at 365.

CCM Government Finance & Research Regulating Drone Use 206 state or local administrative agencies to promulgate rules and impose civil penalties for their violation. Alternatively, the state common-law can give individuals a private right of action for certain drone-related conduct, such as that causing injury or damage or invading personal privacy property rights. Preemption caselaw discussed in this part involves both types of approach.

In In re Air Crash Near Clarence Center, New York,64 the district court assigned multiple cases involving a Colgan Airways crash held that occupation of the field of aviation safety by the Federal Aviation Act leaves no room for state safety standards. "Applying state law standards of care would interfere with these regulations and potentially subject airlines and related entities to 50 different standards."65

Other cases, however, adopt a more nuanced approach, examining whether the FAA has regulated particular subject matter, the degree of conflict between federal and state rules on the subject, and whether the matter regulated by the state involves a subject within traditional state police powers.

In early 2014, the FAA said: “[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.“66

a) Aircrew qualification State prescription of qualifications for flight personnel is preempted, because of the FAA’s extensive regulation of the subject. In French v. Pan Am Express, Inc.,67 the First Circuit held that state regulation of drug tests for pilots was preempted, because it intruded on the field of pilot qualifications, a matter regulated in detail by the FAA.68

In Ventress v. Japan Airlines,69 the court of appeals affirmed the district court's conclusion that state employment claims by a flight engineer were preempted. The plaintiff's whistleblower claims would have drawn the state court into deciding "backdoor

64 798 F. Supp.2d 481 (W.D. N.Y. 2011). 65 798 F. Supp.2d at 486. 66 FAA, Fact Sheet – Unmanned Aircraft Systems (UAS), http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153 (Jan. 6, 2014). 67 869 F.3d 1 (1st Cir. 1989). 68 869 F.2d at 4. 69 747 F.3d 716 (9th Cir. 2014).

CCM Government Finance & Research Regulating Drone Use 207 challenges to JAL's safety-related decisions regarding his and Captain Bicknell's physical and mental fitness to operate civil aircraft."70 "Permitting indirect challenges to aviation safety decisions under the guise of state law whistleblower claims interferes with the agency's authority to serve as the principal arbiter of aviation safety," it said.71 The court was careful to point out, however, that not all state employment law in the airline employment context is preempted, only those state claims that "encroach upon, supplement, or alter the federally occupied field of aviation safety" and jeopardize national uniformity.72

The court distinguished Martin v. Midwest Express Holdings, Inc.73 which found that state standards of care for airplane stairs were not preempted because the FARs established no requirements for airplane stairs.74

b) Aircraft design Many cases finding no preemption involve products liability actions premised on claims of negligent design. Public Health Trust of Dade County, Fla. v. Lake Aircraft, Inc.75 is an example. The plaintiff was injured in a seaplane accident and claimed that his seat was negligently designed. The court of appeals reversed summary judgment for the defendant, finding that, despite FAA standards for seat design, allowing a damages action to proceed did not interfere with federal regulation.76

Damages for personal injuries can co-exist with federal aviation safety regulations.77 State regulation prescribing flight rules or aircraft design cannot. In Lewis v. Lycoming,78 the district court interpreted Abdullah and Elassaad to hold that state products liability claims are not preempted on field preemption grounds; instead, a successful

70 747 F.3d at 722. 71 747 F.3d at 722. 72 747 F.3d at 722-723. 73 555 F.3d 806, 809 (9th Cir.2009). See § III.C.b) 74 747 F.3d at 721. 75 992 F.2d 291 (11th Cir. 1993). 76 992 F.2d at 294. 78 957 F. Supp.2d 552 (E.D. Pa. 2013). 78 957 F. Supp.2d 552 (E.D. Pa. 2013).

CCM Government Finance & Research Regulating Drone Use 208 preemption defense requires establishing conflict between federal and state standards, or at least federal regulation of a particular aspect of safety.79

FAA regulation of aircraft design and manufacture is even more detailed than regulation of aircrew qualification. Preemption in this field of aviation safety would thus appear complete. Cleveland By and Through Cleveland v. Piper Aircraft Corp.,80 however, is an influential case holding that the field of aircraft safety is not completely preempted.81 The case involved a claim by the pilot of a Piper Super Cub PA–18–150 that his severe injuries in a crash were due to the negligent design of the aircraft. The jury found that Piper had negligently designed the aircraft by providing for inadequate visibility from the rear seat (from which the pilot was flying) and failing to provide a rear shoulder harness.82 The court of appeals found that aircraft manufacturers could comply with FAA "minimum" safety standards and also comply with standards of care embodied in state tort law.83 Furthermore FAA approval of an aircraft's design "is not intended to be the last word on safety. The FAA has given manufacturers broad responsibilities for assuring their own compliance by appointing aircraft company employees to “act as surrogates of the FAA in examining, inspecting, and testing aircraft for purposes of certification.”84 There was, thus, no conflict preemption.

As noted in the discussion of O'Donnell, infra, subsequent Tenth Circuit caselaw questions the viability of the Cleveland analysis.

When FAA regulations are silent, however, on the design of a particular subsystem, there may be room for state law. The Martin court interpreted Montalvo to mean that when the agency issues “pervasive regulations” in an area, like passenger warnings, the FAA preempts all state law claims in that area. In areas without pervasive regulations or other grounds for preemption, the state standard of care remains applicable."85 It rejected the proposition that the aircraft certification process preempts every state inquiry into aircraft design; it only preempts those design or performance matters that

79 Id. at 558-559. 80 985 F.2d 1438 (10th Cir. 1993). 81 985 F.2d at 1444. 82 985 F.2d at 1441. 83 985 F.2d at 1445. 84 985 F.2d at 1445. 85 555 F.3d at 811.

CCM Government Finance & Research Regulating Drone Use 209 are explicitly that are explicitly addressed by specific certification regulations.86 Aircraft stairs were not among them:

"Airstairs are not pervasively regulated; the only regulation on airstairs is that they can't be designed in a way that might block the emergency exits. 14 C.F.R. § 25.810. The regulations have nothing to say about handrails, or even stairs at all, except in emergency landings. No federal regulation prohibits airstairs that are prone to ice over, or that tend to collapse under passengers' weight. The regulations say nothing about maintaining the stairs free of slippery substances, or fixing loose steps before passengers catch their heels and trip. It's hard to imagine that any and all state tort claims involving airplane stairs are preempted by federal law. Because the agency has not comprehensively regulated airstairs, the FAA has not preempted state law claims that the stairs are defective."87

Unlike airplane stairs, pilot qualifications and medical standards are subject to detailed FAA regulation.88 Thus the different result in Ventress.

The Martin court found support for its approach in Cleveland, Lake County.89

It acknowledged that the Third Circuit takes a different approach:

"The Third Circuit, considering a failure to warn claim, took a different approach. Rather than limiting its analysis to regulations on warnings, the court decided that “federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation.” Abdullah v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir.1999). The savings and insurance clauses, the court reasoned, only preserve state remedies, while excluding all state standards of care. Id. at 367-68."90

86 555 F.3d at 811-812. 87 555 F.3d at 812. 88 747 F.3d at 721-722. 89 555 F.3d at 811. It also cited Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 788-89, 794-95 (6th Cir.2005) (citing Abdullah to find FAA preemption of a failure to warn claim, but applying a state law analysis to a claim that a navigational instrument was defectively manufactured). 90 555 F.3d at 809.

CCM Government Finance & Research Regulating Drone Use 210 Later, in Gilstrap v. United Airlines, Inc., 91the Ninth Circuit embraced both Martin and Abdullah:

"We find persuasive, and here adopt, Abdullah 's division of the FAA's field preemptive effect into two components: state standards of care, which may be field-preempted by pervasive regulations, and state remedies, which may survive even if the standard of care is so preempted."92 The court's use of the words may and even if, however, still allows for Martin's conclusion that preemption results only when the FAA has explicitly regulated the particular aspect of safety involved in the state lawsuit.

c) Passenger warnings and liquor service In Montalvo v. Spirit Airlines,93 the court of appeals affirmed the district court's conclusion that federal law preempted state negligence claims for an airline's failure to warn about the danger of developing deep vein thrombosis. It reasoned that a state- imposed duty to warn would conflict with federal safety standards for pre-flight passenger briefings, backed up by the FAA's occupation of the entire field of aviation safety.94 It reviewed the legislative history of the Federal Aviation Act and Supreme Court and court of appeals cases finding Congressional intent to "make the Federal Aviation Administration the sole arbiter of air safety."95 It quoted Justice Jackson: “Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands.”96

Although it expressed reluctance to infer preemption from the mere comprehensiveness of statutory authority unless a federal agency has exercised the authority to occupy a subfield,97 it found sufficient exercise of FAA authority to "infer a preemptive intent to displace all state law on the subject of air safety."98

91 709 F.3d 995 (9th Cir. 2013). 92 709 F.3d at 1006 (emphasis added). 93 508 F.3d 464 (9th Cir. 2007). 94 508 F.3d at 468. 95 508 F.3d at 472. 96 508 F.3d at 471-472 (quoting Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944) (J. Jackson, concurring)). 97 508 F.3d at 470-471. 98 508 F.3d at 472 (emphasis added).

CCM Government Finance & Research Regulating Drone Use 211 Significantly, for extension of its reasoning to drone regulation, it cited the "uniqueness of the aviation industry."99 "Aviation transportation requires more national coordination than any other public transportation and also poses the largest risks. Regulation on a national basis is required because air transportation is a national operation," it said.100 As § III.A explains, this is not true of microdrone operations.

"If the FAA did not impliedly preempt state requirements for passenger warnings, each state would be free to require any announcement it wished on all planes arriving in, or departing from, its soil, or to impose liability for the violation of any jury's determination that a standard the jury deems reasonable has been violated. Such a patchwork of state laws in this airspace ... would create a crazyquilt effect. Congress could not reasonably have intended an airline on a Providence-to-Baltimore-to-Miami run to be subject to certain requirements in, for example Maryland, but not in Rhode Island or in Florida. See id. It is equally as doubtful that Congress would have intended the sufficiency of the Airlines' warnings to hinge on where each passenger on each flight was likely to file suit. As the district court noted, such a result would be an anathema to the FAA."101

It distinguished Skysign on the grounds that the FAA had not exercised its authority to regulate aerial advertising.

In U.S. Airways, Inc. v. O'Donnell,102 the court of appeals reversed the district court and held that state liquor regulation was preempted as applied to airline flights. It cited Martin, but took a broader approach, using language that suggests that all aspects of aviation safety are preempted--appearing to agree with Abdullah that the statutory savings clause only preserves state remedies for violation of federal standard. Nevertheless, the subject of alcohol service on air carrier aircraft is the subject of specific FARs, and " By requiring airlines to comply with NMLCA, New Mexico is seeking to impose additional training requirements on flight attendants and crew members serving alcoholic beverages on airplanes."103 It also noted the FAA's detailed balancing

99 508 F.3d at 473. 100 508 F.3d at 473. 101 508 F.3d at 472 (internal quotations and citations omitted). 102 627 F.3d 1318 (10th Cir. 2010). 103 627 F.3d at 1328.

CCM Government Finance & Research Regulating Drone Use 212 of various considerations arising from alcohol service on flights.104 So whether the Tenth Circuit would follow Martin or Abdullah is unclear.

The Tenth Circuit backed away from Cleveland, noting that its reasoning has been called into question by subsequent Supreme Court cases.105 It did not overrule it, however.

It remanded, however, a claim for unsafe seating configurations, which required closer analysis of airline-fare preemption.106

d) Flight rules: Aerial advertising Regulation of what aircraft may do in flight would seem to be at the heart of detailed FAA regulation. Parts 71, 91, 97, 119, 135, and 136 of the FARs contain hundreds of pages of specific operating rules. The regulations do not, however, cover everything. In Skysign International, Inc. v. City and County of Honolulu,107 the court of appeals, affirming the district court, held that local regulation of signage could be applied to banner- towing aircraft, notwithstanding broad federal preemption of aviation safety. The plaintiff's helicopters operated under certificates of waiver (“COWAs”) issued by the FAA.108 Because advertising is an activity traditionally regulated by the states rather than by the federal government, the court presumed, "that federal law does not displace Honolulu's regulatory authority over advertising absent a clear statement of the federal intent to do so, either by Congress or by the FAA as Congress's delegate."109 It found that Honolulu's general signage ordinance was entitled to this presumption, but not a companion ordinance that singled out aviation by prohibiting any advertising on an aircraft.110 It found that Congress expressly has preempted state regulation of aircraft noise and airline pricing, but not state regulation of aerial advertising.111 Although the court did not make this point, by the nature of the advertisement, the aircraft would not leave the state. If the aircraft traveled between states carried an advertisement, the outcome might be different.

104 627 F.3d at 1328. 105 627 F.3d at 1326. 106 508 F.3d at 475. 107 276 F.3d 1109 (9th Cir. 2002). 108 276 F.3d at 1113. 109 276 F.3d at 1115. 110 276 F.3d at 1116. 111 276 F.3d at 1116.

CCM Government Finance & Research Regulating Drone Use 213 It was unwilling to infer field preemption from the "mere volume and complexity" of federal aviation regulation,112 in the absence of any explicit federal regulation on the subject a state seeks to regulate. It rejected the plaintiff's argument that preemption should be inferred from FAA silence on a subject.113

Significantly, it was equally unwilling to infer preemption from overlapping safety concerns:

"Skysign notes that Honolulu justifies its ordinance based in part on the danger that distracting aerial advertising poses to motorists below, and it attempts to argue that Congress has confided to the FAA exclusive authority over such safety concerns. However, the provision it cites directs the FAA Administrator to “prescribe air traffic regulations in the flight of aircraft (including regulations on safe altitudes) for ... protecting individuals and property on the ground.” 49 U.S.C. § 40103(b)(2)(B) (1994). We do not read this provision to preclude local regulation with an identical purpose that does not actually reach into the forbidden, exclusively federal areas, such as flight paths, hours, or altitudes."114

By negative implication, a local ordinance that did address flight paths, hours, or altitudes would be preempted.

Finally, the FAA COWAs115 did not give rise to preemption, because they expressly required that the operator "understand" local laws relating to aerial signs.116

e) Airport siting The boundary between state and federal authority gets murkier when states determine where airports can be located and what operations can occur to and from them. In this regulatory arena, aviation safety and traditional state control of real property and its uses overlap. City of Burbank v. Lockheed Air Terminal Inc.,117 is the leading Supreme Court case on preemption of airport regulation. It held that a municipal noise ordinance

112 276 F.3d at 1116. 113 276 F.3d at 1116-1117. 114 276 F.3d at 1117. 115 Banner towing airplanes or helicopter requires a certificate of waiver ("COWA") issued by the FAA. 14 C.F.R. § 91.311. 116 276 F.3d at 1117-1118. 117 411 U.S. 624 (1973).

CCM Government Finance & Research Regulating Drone Use 214 was preempted. The municipal ordinance prohibited jet aircraft from taking off from the Hollywood-Burbank Airport between 11 PM of one day and 7 AM the next. The only scheduled flight affected by the ordinance was an intrastate one.118

In its 5-4 decision, the Court focused its attention almost entirely on federal regulation of aircraft noise rather than on general aviation safety regulation.119 It emphasized, however, the interplay between operational restrictions to reduce noise and other aspects of aircraft operation. "The Federal Aviation Act requires a delicate balance between safety and efficiency and the protection of persons on the ground. Any regulations adopted by the Administrator to control noise pollution must be consistent with the ‘highest degree of safety.’"120 It also noted that local restrictions on hours of operation would have a ripple effect through the national aviation system, and would limit the FAA's flexibility in controlling traffic flow.121

In Gustafson v. City of Lake Angelus,122 the court of appeals reversed the district court and held that a local ordinance prohibiting operation of seaplanes on a city-owned lake was not preempted. The challenged ordinance provided:

“4.10. Nuisances prohibited. Land may not be used for any of the following purposes, all of which are declared to be public nuisances:

“E. The mooring, docking, launching, storage, or use of any ... aircraft powered by internal combustion engines....

“J. The landing upon the lands, waters, or ice surface within the Village of Lake Angelus of any aircraft, airplane, sailplane, seaplane, helicopter, ground effect vehicle, or lighter than air craft."123

The city council declared that the ordinances were intended to “protect the public health, safety, and general welfare” of the residents, by preventing “noise, danger, apprehension of danger, pollution, apprehension of pollution, contamination and

118 411 U.S. at 625-626 (summarizing facts). 119 411 U.S. at 633-639. 120 411 U.S. at 638-639. 121 411 U.S. at 639-640. 122 76 F.3d 778 (6th Cir. 1996). 123 76 F.3d at 781.

CCM Government Finance & Research Regulating Drone Use 215 infestation from other bodies of water, destruction of property values, and interference with other lawful uses of the lake enjoyed by the great majority of citizens, including boating, sailing, fishing, swimming, and other recreational uses.”124

The court of appeals distinguished regulation of aircraft in flight from regulation of aircraft landing sites, "which involves local control of land (or, in the present case, water) use."125 It distinguished City of Burbank which held that a local noise ordinance was preempted because it interfered with airport operations. Aircraft noise, the Gustafson court said, is the subject of several explicit pronouncements by the FAA, the EPA and in the legislation history of the Federal Aviation Act and the Noise Control that embraced federal preemption.

"In contrast, in the present case, an examination of the Federal Aviation Act and regulations concerning seaplanes and aircraft landing sites indicates that the designation of plane landing sites is not pervasively regulated by federal law, but instead is a matter left primarily to local control. In contrast to the pervasive scheme of federal regulation of aircraft noise found in Burbank, we fail to identify any language in the Act, the regulations promulgated pursuant to the Act, or the legislative history of the Act, which by implication preempts enforcement of the City's ordinances prohibiting the operation of seaplanes on Lake Angelus."126

It also found, in 14 C.F.R. § 157.7(a), the federal airport siting regulation an express savings clause for local zoning and other land use regulation.127

It cited a number of earlier cases, finding that local airport siting regulation was not preempted.128

It distinguished Command Helicopters, Inc. v. City of Chicago,129 finding local regulation of helicopter heavy lift operations preempted because it conflicted with FAA regulations on heavy lift operations.130

124 76 F.3d at 781. 125 76 F.3d at 783. 126 76 F.3d at 784. 127 76 F.3d at 784-785. 128 76 F.3d at 786.

CCM Government Finance & Research Regulating Drone Use 216 In Condor Corp. v. City of St. Paul,131 the court of appeals summarily rejected the plaintiff's argument that denial of a permit for a heliport intruded upon exclusive federal power: "We see no conflict between a city's regulatory power over land use, and the federal regulation of airspace, and have found no case recognizing a conflict."132

In Golden State Farms, Inc. v. Bay,133 the New Jersey supreme court held that an ordinance prohibiting the creation of private heliports was not preempted.

It distinguished heliport siting from matters that require national uniformity:

"The case at hand does not present a situation where preemption may be predicated upon a felt need for a monolithic system of regulation. While in some important aspects uniform regulation may be required, that obvious need does not reach down to the level of the location of small, relatively isolated, privately owned helistops or heliports." 134 It cited cases supporting its conclusion that "state and local authority over the “operation and navigation of aircraft” is supplanted by this federal regulation, . . . significant local power over ground operations of aircraft remains viable."135

In Harrison v. Schwartz,136 Maryland's highest court held that certain zoning restrictions imposed on airport operations were preempted and others were not.

It held that the following conditions in the conditional use permit were preempted:

"2. Aircraft take-offs shall be separated by intervals of at least 15 minutes in order to minimize the adverse effects of aircraft engine noise upon the residents of the surrounding area and to reduce the intensification of the use of the property in what is otherwise a primarily rural residential area.

129 691 F.Supp. 1148 (N.D.Ill.1988) 130 76 F.3d at 787-788. 131 912 F.2d 215 (8th Cir. 1990). 132 912 F.2d at 221. 133 390 A.2d 1177 (N.J. 1978). 134 390 A.2d at 1180-1181 (internal citations omitted). 135 390 A.2d at 1181. 136 572 A.2d 528 (Md. 1990).

CCM Government Finance & Research Regulating Drone Use 217 “3. Aircraft take-offs shall not be made before 9:00 a.m. or later than 7:00 p.m. on any day."137

"To say that local authority may use its zoning power to ban a certain use is not the same as to say that it may permit a use subject to conditions that affect air navigation."138

In Riggs v. Burson,139 the Tennessee supreme court reversed the intermediate court and held that a state statute prohibiting heliports within nine miles of the boundary of national park was not preempted. The plaintiffs argued that the statute was aimed at flight of aircraft and aircraft noise; the defendants argued that it was aimed at the use of land and not the flight of aircraft.140 In agreeing with the defendants, the court cited Gustafson and distinguished Burbank. It also found Condor Corp. persuasive. The legislature articulated legitimate state interests: regulation of "noise, disruption and safety risks caused by locating heliports near main roads and heavily populated areas."141 "[W]e agree with the persuasive federal and state authority that has upheld laws which restrict the use of land for the operation of helicopters or other aircraft."142

In Vorhees v. Naper Aero Club, Inc.,143 the district court distinguished Gustafson and held that a private suit to enjoin operations on one runway of an existing airport was preempted. The litigation did not involve regulation of land use by a public body. Indeed, the airport was approved under state law.

"In Gustafson, the issue surrounded a city ordinance which prohibited the landing or taking-off of airplanes on a city lake—not an airport or runway. In the present case, plaintiff is seeking to enjoin an airport from using its already zoned runway—a runway which is protected by a state statute. See 620 ILL.COMP.STAT. 5/49.1 (prohibiting plaintiff from erecting any structure which would interfere with airport operations). Significantly, the plaintiff does not contend that the airport's operation violates any ordinance or regulation.

137 572 A.2d at 529 (quoting conditions). 138 572 A.2d at 533. 139 941 S.W.2d 44 (Tenn. 1997). 140 941 S.W.2d at 48 (summarizing arguments). 141 941 S.W.2d at 50. 142 941 S.W.2d at 51. 143 96 F. Supp.2d 820 (C.D. Ill. 2000).

CCM Government Finance & Research Regulating Drone Use 218 “In sum, although plaintiff claims that he is seeking to regulate land use, what he is actually seeking to regulate is the use of the airspace above his property. Thus, plaintiff's claim is preempted by the FAA. "144

Conversely, In Aviation Cadet Museum, Inc. v. Hammer,145 the supreme court of Arkansas approved an injunction, on private nuisance grounds, against continued use of a private airport. It found that the testimony at the trial established the elements of a common- law nuisance. A footnote asserts that land-use regulation is a matter of state law,146 but there is no real analysis of federal preemption; apparently it was not asserted as a defense.

f) Environmental regulation of airport activities A number of preemption cases involved environmental regulation by states and municipalities. Environmental regulation, especially when it is of a general nature rather than targeting specific airports or aviation operations, is likely to fall within state police power.

In Tweed-New Haven Airport Authority v. Town of East Haven,147 the district court enjoined local environmental authorities from interfering with construction of federally approved and funded runway improvements. It held that the local governmental regulation was preempted by the Federal Aviation Act under the doctrine of field preemption.148 It distinguished Dallas/Fort Worth Int'l Airport Bd. v. City of Irving,149 as involving land outside airport boundaries.150 It cited Burbank-Glendale-Pasadena v. City of Los Angeles, in which the City of Los Angeles enacted an ordinance requiring a local airport to submit for approval any plans that involved development-specifically runway and taxiway construction-on airport-owned land.151

144 96 F. Supp.2d at 823-824. 145 283 S.W.3d 198 (Ark. 2008). 146 283 S.W.3d at 201 n.2, 147 582 F. Supp.2d 261 (D. Conn. 2008). 148 582 F. Supp.2d at 272. 149 854 S.W.2d 161, 167 (Tex.Ct.App.1993), 150 582 F. Supp.2d at 269. 151 979 F.2d 1338, 1339 (9th Cir. 1992),

CCM Government Finance & Research Regulating Drone Use 219 In United States v. City of Berkeley,152 a case relied on by the Authority, the court addressed the City's attempt to regulate construction of an airport surveillance radar. According to the FAA, the construction was necessary to ensure air safety. The Berkeley court held that the City's attempted regulation was impliedly preempted by the Federal Aviation Act because federal regulation of the area is so pervasive.

It noted the following factors:

 Non-proprietary versus proprietary; when the local government is the proprietor of the airport, it has broader authority153  The court found preemption despite evidence of local concerns about traffic disruption and adverse affects on the quality of life of local residents because of noise.154

In Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Commission,155 the court of appeals affirmed judgment after a bench trial that local regulation of tree removal was not preempted. The plaintiff was privately owned and state licensed. The airport argued that the trees were "obstructions to air navigation" under 14 CFR Pt 77, and therefore that local limitations on removing them were preempted.156

It distinguished Tweed:

"The local regulatory action at issue in Tweed constitutes a much more direct intrusion of local authority on the preempted field of air safety than do the regulatory actions challenged here. Unlike Tweed–New Haven Airport, Goodspeed Airport is not licensed by the FAA; it is not federally funded, and no federal agency has approved or mandated the removal of the trees from its property. Indeed, in its response to a formal inquiry from the district court in this case, the federal government disclaimed any authority to order the trees' removal. Therefore, while in Tweed the construction project was approved,

152 735 F.Supp. 937, 940 (E.D.Mo. 1990). 153 The proprietary airport doctrine logically extends to any territory that a state or municipality like a park district owns and already regulates extensively. 154 582 F. Supp.2d at 271 n.13 155 634 F.3d 206 (2d Cir. 2011). 156 634 F.3d at 208.

CCM Government Finance & Research Regulating Drone Use 220 indeed required, by the federal regulatory authority, in this case there is no federal interest in the Airport's proposed actions."157

It noted that the challenged local regulations did not single out aviation; they were limitations of general applicability.158

It also observed that the FAA exercises only limited direct oversight of small airports.159

Matters within the boundary of an airport are more likely to be preempted than those outside the boundaries, because activities outside the boundaries are less directly linked to aviation.160

g) Private actions for trespass to land Not only state and local regulation through statutes, ordinances, and administrative- agency rules challenge federal authority. So do private actions for trespass to land. The common law of trespass to land recognizes the overflight close to the ground may be a trespass:

"(2) Flight by aircraft in the air space above the land of another is a trespass if, but only if,

(a) it enters into the immediate reaches of the air space next to the land, and

(b) it interferes substantially with the other's use and enjoyment of his land.”161

Early in the history of aviation, caselaw recognized that extensive liability for trespass would interfere with aviation:

"The air, like the sea, is by its nature incapable of private ownership, except in so far as one may actually use it. This principle was announced long ago by Justinian. It is in fact the basis upon which practically all of our so-called water codes are based.

157 634 F.3d at 211. 158 634 F.3d at 211. 159 634 F.3d at 211. 160 582 F. Supp.2d at 271-272. 161 Restatement (Second) of Torts sec. 159 (2015) (discussing Causby). The Restatement suggests that "immediate reaches" of the land extend to 50 feet, not to 500 feet and that heights inbetween, such as 150 feet would present questions of fact. Id. cmt. l.

CCM Government Finance & Research Regulating Drone Use 221 “We own so much of the space above the ground as we can occupy or make use of, in connection with the enjoyment of our land. This right is not fixed. It varies with our varying needs and is coextensive with them. The owner of land owns as much of the space above him as he uses, but only so long as he uses it. All that lies beyond belongs to the world.

“When it is said that man owns, or may own, to the heavens, that merely means that no one can acquire a right to the space above him that will limit him in whatever use he can make of it as a part of his enjoyment of the land. To this extent his title to the air is paramount. No other person can acquire any title or exclusive right to any space above him.

“Any use of such air or space by others which is injurious to his land, or which constitutes an actual interference with his possession or his beneficial use thereof, would be a trespass for which he would have remedy. But any claim of the landowner beyond this cannot find a precedent in law, nor support in reason."162

The Supreme Court agreed:

"The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case."163

These principles suggest that drone flight over private property at the heights approved for microdrones under the section 333 exemptions and proposed in the NPRM could give rise to liability for trespass to land. While the advent of drones has extended the concept of air navigation and of the National Airspace System to levels lower than the traditional 500 feet, and thus extended the federal interest in regulating it to lower

162 Hinman v. Pacific Air Lines Transport Corp., 84 Fed. 755, 758 (9th Cir. 1936) (affirming dismissal of trespass complaint seeking injunction; allegations of flight from 5- to 100 feet over portion of plaintiff's land). See United States v. Causby, 328 U.S. 256, 264 (1946) (citing Hinman approvingly). 163 United States v. Causby, 328 U.S. 256, 267 (1946) (holding that low-level flights by military aircraft constituted a compensable taking); see also Bryski v. City of Chicago, 499 N.E.2d 162, 164-167 (Ill. App. Ct. 1986) (reviewing caselaw after Causby and concluding that sole remedy for aircraft noise from municipal airport is action for reverse condemnation).

CCM Government Finance & Research Regulating Drone Use 222 levels,164 the fact remains that operations that close to the ground intrude upon traditional property rights. The resulting tension between private interests in exclusive domain over property and the public interest in air commerce places greater emphasis on delineating the height to which property extends--a question on which the Restatement, Hinman, and Causby punt. A reasonable rule of thumb is that a drone flying lower than treetop level or the level of utility lines commits a trespass, but not if it stays above that level.

D. Interaction of Commerce Clause and federal preemption doctrine The Commerce Clause and federal preemption doctrine interact in determining the legality of state regulation of drones. Under its commerce power, the Congress retains the authority explicitly to preempt state and local regulation, as it has done with respect to economic regulation of airlines.165 It has explicitly forborn to do so with respect to state law remedies.166 As to the more general realm of aviation safety regulation, it has not spoken explicitly about state power, but it has granted broad authority to the FAA and specified some details as to how the FAA should exercise that authority, supporting the many judicial findings of implied preemption.167

164 But see § XXX (evaluating argument that Commerce Clause and thus the permissible reach of FAA preemption does not extend below 500 feet). 165 49 U.S.C. § 41713(b): "a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier." Compare Morales v. Trans World Airlines, Inc., 504 U.S. 374, 391 (1992) (state deceptive advertising guidelines preempted as applied to airline fares) with American Airlines v. Wolens, 513 U.S. 219, 233 (1995) (state breach of contract action for violating terms of frequent flying program not preempted). "[T]erms and conditions airlines offer and passengers accept are privately ordered obligations and thus do not amount to a State's ‘enactment or enforcement of any law, rule, regulation, standard, or other provision having the force and effect of law within the meaning of § 1305(a)(1)." 513 U.S. at 228. See also 49 U.S.C. § 40116(b) (prohibiting state taxation air commerce). 166 49 U.S.C. § 40120(c): "A remedy under this part is in addition to any other remedies provided by law." See also 49 U.S.C. § 40116(c) (allowing landing fees for commercial aircraft landing or taking off within a state).. 167 See § XXX.

CCM Government Finance & Research Regulating Drone Use 223 Under the Commerce Clause, it could decide in the future to adopt explicit statutory preemption of state regulation of drones, partially or completely. It could not do so, however, beyond the limits of interstate commerce.

The federal preemption question then turns on a parallel inquiry, with the FAA the focus instead of the Congress, itself. Although some of the aviation preemption cases make sweeping pronouncements of field preemption, in fact, closer examination of the cases shows, not field preemption, at least not in general, but preemption turning on whether the FAA has exercised its statutory authority with respect to a particular aspect of safety. The analogy under the Commerce Clause is whether the Congress has exercised its authority on a particular subject.

As long as it acts within its statutory authority, the FAA could adopt a new rule that not only regulates some aspect of drone operations that theretofore had been unregulated, but it also could explicitly preempt state regulation, either as to the subject of the new FAA rule, or expressing its conclusion that that an aspect of safety should go unregulated. As long it is as it has done neither, states have a plausible argument that they are free to regulate the subject matter. Martin and Montalvo, discussed in § III.C, are examples of this kind of analysis.

Having this power to define the boundary between federal and state regulation, the FAA – or the Congress itself – could define a system for cooperative and concurrent state and federal regulation of drones.

IV. Space for states? As part III concludes, states are free to regulate drone operations when a statute explicitly saves room for state regulation as in tort remedies, or when the FAA has not exercised its authority on a particular subject.

The FAA's approach to drone regulation makes room for some arguments not generally available with respect to traditional aviation safety regulation. While the FAA’s statutory mandate is to integrate drones into the National Airspace System, its approach to microdrone regulation actually segregates microdrones and keeps them out of the vast expanse of the national airspace where most manned aircraft operations occur. It relegates microdrones to flights below 500 feet, where airplanes and helicopters cannot operate safely, and also keeps them out of airport traffic areas where manned aircraft

CCM Government Finance & Research Regulating Drone Use 224 operate below 500 feet in order to take off and land. The content of its proposed rule and its section 333 exemptions prescribe few operating rules beyond the height limit and a line of sight requirement –– which is tantamount to a horizontal distance restriction.

In effect, the FAA has said, “You can fly microdrones commercially but only outside the national airspace system.” It does not admit this, of course; its position, obvious from the content of FAR Part 91, is that airspace all the way to the ground is regulated by FAA rules. Indeed it says as much: "The FAA is responsible for the safety of U.S. airspace from the ground up."168 There is no explicit floor of the national airspace system expressed either in statute or rule.

What a defender of state regulatory authority would argue, however, is that the combination of low altitudes and short distances puts microdrone flight, at least as the FAA would allow it for commercial purposes —outside the National Airspace System, outside the realm of Air Commerce, outside Congressional power under the Commerce Clause, and beyond FAA jurisdiction. The FAA has defined microdrone airspace that is inherently local, and well within traditional state police power.

This argument may prove too much, however, because it would negate FAA authority, and leave it only to the states and their subdivisions to regulate low-level and close-in drone flights—not only drone flights, but any flight by any kind of vehicle.

A. Subjects of state regulation If the argument prevails that the FAA has essentially defined the floor of the national airspace system as 500 feet, states and localities have plenary authority to regulate low- level drone flight. If that argument fails or if plaintiffs with standing are unwilling to make the argument, the scope of federal and state regulation depends upon application of the caselaw. That yields the following conclusions.

States may not regulate subjects explicitly addressed by the FAA in its NPRM and section 333 exemptions—at least they may not do so as to the holders of section 333 exemptions and more generally, once the regulation becomes final. That means that states may not impose different weight limits, height limits, preflight inspection

168 FAA, Busting Myths about the FAA and Unmanned Aircraft, http://www.faa.gov/news/updates/?newsId=76240 (Feb. 26, 2015).

CCM Government Finance & Research Regulating Drone Use 225 requirements, accident reporting requirements, or periodic reporting requirements on operations. It means they may not impose different DROP qualification, training, certification, or experience requirements. They may not impose vehicle design requirements.

Before the FAA issued its notice of proposed rulemaking and began granting section 333 exemptions, the FAA had not preempted the field of drone regulation because it had not spoken and, under Martin, silence is not enough to preempt.

Now, however, the FAA has spoken. The Martin argument would be available only if the FAA unexpectedly does not act reasonably promptly to turn its NPRM and the comments it received into final rules. Otherwise, the defender of a state or local measure would be left only the relatively weak read of the 10th circuit Cleveland decision

In any event, the holder of a section 333 exemption would have a strong argument that the detailed involvement of the FAA in crafting the exemption preempts state and local regulation of matters covered by the exemption.

On the other hand, they retain their authority to enforce generally applicable state and local law against disorderly conduct,169 public endangerment, 170 refusal to obey the lawful command of a police officer, 171 or refusal to disperse.172 The FAA has published guidance for local law enforcement personnel confronted with what they believe to be impermissible microdrone operations.173 The language of the section 333 exemptions itself does not address state and local regulation. The blanket COAs accompanying the section 333 exemptions however do. A note on the first page says:

169 See 720 ILL. COMP STAT. 5/26-1 (2013) (disorderly conduct). 170 See MONT. CODE. ANN. § 45-5-207 (1987) (criminal endangerment).

171 See 720 ILL. COMP STAT. 5/31-1 (2014) (interference with public officers). 172 See City of Chicago v. Morales, 527 U.S. 41, 57-58 (1999) (affirming conclusion that gang-dispersal ordinance was unconstitutionally vague; explaining that laws criminalizing disobedience of police order are similarly questionable because of the possibility of arbitrary police orders); CA Penal Code §§ 409, 416 (refusal to disperse). 173 See FAA, Law Enforcement Guidance for Suspected Unauthorized UAS Operations, http://www.faa.gov/uas/regulations_policies/media/FAA_UAS-PO_LEA_Guidance.pdf.

CCM Government Finance & Research Regulating Drone Use 226 “Note-This certificate constitutes a waiver of those Federal rules or regulations specifically referred to above. It does not constitute a waiver of any State law or local ordinance.” 174

Further language on the last page says:

“"This Certificate of Waiver or Authorization does not, in itself, waive any Title 14 Code of Federal Regulations, nor any state law or local ordinance. Should the proposed operation conflict with any state law or local ordinance, or require permission of local authorities or property owners, it is the responsibility of the operator to resolve the matter. This COA does not authorize flight within Special Use airspace without approval from the scheduling agency. The operator is hereby authorized to operate the small Unmanned Aircraft System in the National Airspace System."175

To say that the exemption and COA do not “waive” state law or local ordinance does not say that any particular state law or local ordinance is valid under the Commerce Clause or federal preemption analysis. If the FAA approves specific drone operations through the section 333 process, preemption analysis says that a state cannot block the operations unless pursuant to a traditional police power not singling out aviation.

It is unlikely that states have the power to enforce FARs directly. States have no inherent power to enforce federal law.176 As a general matter, judicial enforcement of FARs is reserved to the Secretary of Transportation and the Attorney General.177

174 FAA FORM 7711-1 UAS COA Attachment accompanying section 333 exemption No. Exemption No. 11310 (Colin Hinkle), docket no. FAA-2014-0608 at page 1 (Apr. 9, 2015) 175 FAA FORM 7711-1 UAS COA Attachment accompanying section 333 exemption No. Exemption No. 11310 (Colin Hinkle), docket no. FAA-2014-0608 at page 6 (Apr. 9, 2015) 176 Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y. UNIV. L. REV. 698, 708 (2011) (asserting that states have no inherent power to enforce federal law); Hawaii v. Standard Oil Co., 405 U.S. 251, 263-64 (1972) (affirming dismissal of state parens patriae suit for damages under Clayton antitrust act); Connecticut v. Health Net, Inc., 383 F.3d 1258, 1262 (11th Cir. 2004) (affirming dismissal of action by state to enforce ERISA; no evidence of Congressional intent to give states enforcement standing). 177 See Bonano v. East Caribbean Airline Corp., 365 F.3d 81, 84-85 (1st Cir. 2004) (holding that Congress meant to reserve enforcement of aviation regulations to the FAA); Schmelling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996) (interpreting 49 U.S.C. section 46108 and holding that Federal Aviation Act does not grant private right of action to enforce FAA rules; affirming dismissal of action by former maintenance employer challenging dismissal for failing drug test).

CCM Government Finance & Research Regulating Drone Use 227 State courts remain open to adjudicate claims of invasion of privacy, trespass to land, or negligence so long as the elements of each tort applied in a particular drone case do not conflict with FAA rules.

For example, a jury instruction in a privacy case that tells the jury it may find the defendant liable only if it finds intent to intrude into private activities in a manner that a reasonable person would find offensive178 would protect the privacy litigation from preemption. Intent to intrude is an element that the FAA does not address; just like it did not address the design of airstairs in Martin.179 Conversely, a jury instruction in a negligence case that defines the standard of care as flying no lower than 1000 feet above private property, or testimony allowing a jury to find the same thing, would result in preemption.

As aviation matured through the twentieth century, landowners periodically sued aircraft operators for trespass and nuisance.180 Most of the trespass cases confronted questions about how high above the ground the property owner’s rights extend.181 Above that height, trespass liability is preempted by FAA regulation. As for the manned aircraft, machodrone flight is unlikely to engender difficulty with height questions. This question of the vertical extent of property is less prominent for microdrone operations. A landowner’s exclusive rights surely extend to 500 or 1,000 feet above the ground, as a handful of older aviation cases hold.

178 The tort of invasion of privacy-intrusion upon seclusion is defined as "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Restatement (Second) of Torts sec. 652B (1977). 179 See notes XXX-XXX and accompanying text, supra. 180 See, e.g., Hinman v. Pac. Air Lines Transp. Corp., 94 F.2d 755 (9th Cir. 1936) (rejecting trespass liability for aircraft overflying private property). 181 Compare United States v. Causby, 328 U.S. 256, 264 (1946) (holding that military flights at eighty-three feet over plaintiff's property constituted a compensable "taking" because it encroached on plaintiff's property rights), with Laird v. Nelms, 406 U.S. 797 (1972) (holding that high-altitude flight creating sonic booms did not constitute a trespass); See also Pueblo of Sandia ex rel. Chaves v. Smith, 497 F.2d 1043, 1045 (10th Cir. 1974) (rejecting trespass action against aircraft operator because no proof of actual injury to concrete uses of land). "The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land." Causby, 328 U.S. at 264.

CCM Government Finance & Research Regulating Drone Use 228 When states and municipalities adopt legislation or rules that target drones, it is more likely to be preempted than a state statute or regulation of general effect, as relating to noise, taxation, or environmental protection.

When state legislation and regulation specifies limits on flight profiles, crew qualifications, or aircraft design, it is more likely to be preempted than initiatives that address matters not directly related to flight, such as business financial reserves, employee vacation or sick leave, minimum wages, or employment discrimination. French, Montalvo and O’Donnell are examples of state regulation that intrudes too far into matters regulated by the FAA—definition of flight crew duties. Skysign is an example of general state regulation of advertising, found not to be preempted, and Goodspeed Airport is an example of non-preempted environmental regulation.

If an existing or proposed FAA rule exists on a particular subject addressed by state legislation and regulation, it is more likely to be preempted. Montalvo and O’Donnell are examples. But if the if the FAA has left a gap in its regulations on the particular subject, state action to fill the gap is less likely to be preempted, even if the FAA regulates the general area. Regulation of airstairs in Martin is an example.

Moreover, if a state narrowly targets a particular highly localized area of drone operations, and relates it to matters of traditional state concern, such as personal privacy, security of property occupancy, preemption is less likely. Deference usually given to matters of traditional state concern, and the argument is stronger that the activity is outside the Commerce Clause.

If a state incorporates federal regulatory standards into its tort law182 and provides its own remedies when a plaintiff can prove violation of the standards, proximate causation, and injury, preemption is unlikely. Cleveland is an example, although it goes further in allowing state regulation. Abdullah is square-on support for the proposition, and the other products liability cases discussed in § III.C embrace the distinction.

The caselaw validating state regulation of airport siting supports the proposition that states and municipalities have the power to specify where drones may take off and land, effectively limiting where microdrones may fly, given their short range.

182 The common-law doctrine of negligence per se is an example of such incorporation.

CCM Government Finance & Research Regulating Drone Use 229 Recognizing traditional state power to preserve public order, states should have the power to establish tort liability or to criminalize reckless conduct,183

183 See generally See generally http://blogs.findlaw.com/blotter/2014/07/2-drone-pilots- arrested-for-allegedly-endangering-nypd-helicopter.html; http://collegespun.com/sec/alabama-sec/someone-got-struck-by-a-drone-outside- bryant-denny-stadium-saturday-afternoon; http://7online.com/archive/9292217/http://rt.com/usa/185480-new-york-tennis-drone/ (news reports of drone flights resulting in charges of reckless endangerment).

In Alabama, “A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” AL Code § 13A-6-24.

New York has both a first degree and second degree reckless endangerment statute. Reckless Endangerment in the Second Degree occurs, “when the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” NY Code 120.20. Reckless Endangerment in the First Degree occurs, “when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.” NY Code 120.25. In Illinois, 720 ILCS 5/12-5 provides:

Sec. 12-5. Reckless conduct.

(a) A person commits reckless conduct when he or she, by any means lawful or unlawful, recklessly performs an act or acts that:

(1) cause bodily harm to or endanger the safety of another person; or

(2) cause great bodily harm or permanent disability or disfigurement to another person.

(b) Sentence.

Reckless conduct under subdivision (a)(1) is a Class A misdemeanor. Reckless conduct under subdivision (a)(2) is a Class 4 felony.”

CCM Government Finance & Research Regulating Drone Use 230 although this also is the subject of an FAA rule prohibiting reckless flight operations.184

State or municipal regulations increasing the height at which drones can be flown would be preempted, because of the FAA prescription of a maximum height above ground level, justified by reducing interference between drones and higher flying manned aircraft. On the other hand, a state or local rule establishing a minimum height is less likely to be preempted because there is no FAA-established minimum height, and because of traditional police power to regulate land use. The cases involving claims of trespass to land by aircraft might suggest otherwise, however.185

Limiting the purposes for which drones may be flown, for example, prohibiting flights for surveillance or to capture imagery of a particular individual might be permissible, because the FARs, while imposing different airman and aircraft certification and different flight rules for different purposes such as banner towing, med-evac, and tourism in certain areas do this because of differing types of safety threats. A state or local law limiting purposes would be aimed instead at exercising traditional police power over privacy or land use. To the contrary is a recent student note186 concludes that state and municipal laws focused on drone safety, such as measures limiting flight altitudes or flights over populated areas, are likely to be preempted.187 Conversely, the author concludes that state and local regulation of surveillance, justified by protection of personal privacy, may survive preemption challenges, at least if they apply the same limitations to manned aircraft as to drones.188

States should be able to regulate data collection, to limit liability for accidents, and to require liability insurance, because there is no federal aviation law on these subjects, and because of traditional—and statutory189—state prerogatives over insurance.

The airport regulation preemption decisions suggest that states and municipalities have more non-preempted power over facilities they own and manage than over facilities in

184 14 C.F.R. § 91.13 (prohibiting careless or reckless operation). 185 See § XXX. 186 Ray Carver, State Drone Laws: A Legitimate Answer to State Concerns or a Violation of Federal Sovereignty, 31 Ga. St. U. L. Rev. 377 (2015). 187 31 Ga. St. U. L. Rev. at 404. 188 31 Ga. St. U. L. Rev. at 404-405. 189 15 U.S.C. §§ 1011-1015 (saving state insurance regulation from federal preemption).

CCM Government Finance & Research Regulating Drone Use 231 private hands. In the drone context, that means that states and municipalities likely have more authority to regulate conduct in public spaces than they do over private property, especially over public parks. They already regulate access to public parks, charge fees, and determine what activities are permissible. It is a relatively simple matter, as the Chicago Park District Commission proposes to do, simply to add microdrone flight to the list of activities that are prohibited unless one obtains a permit.

The distinction between sovereign and government between proprietary and governmental functions was enshrined in Supreme Court case law for a while with respect to the reach your federal labor law into local government employment.190 The distinction is largely been abandoned as a touchstone of labor law preemption, but conceptually, it remains viable as a federalism principal.

B. Model aircraft and “consumer drones” Section 336 of the 2012 Act191 prohibits the FAA from promulgating any rule or regulation applicable to model aircraft weighing less than 55 pounds, as long as they are flown consistent with "community-based" guidelines, as a part of “community based programming,” and not near airports. The reference to community-based guidelines is generally understood to guidelines issued by the Academy of Model Aeronautics.192 The reference to “programming” probably means as a part of a local model aircraft club sponsored outing, but the reference is ambiguous.

Section 336 says nothing about state or local regulations, and its withholding of authority for the FAA leaves a relatively clear field for states to regulate model aircraft operations.

The safe harbor for model aircraft is written around traditional practices of well- organized and long-established model aircraft hobbyist organizations such as the XXX. In a traditional model aircraft club, RC hobbyists get together at designated fields as a group and cooperatively fly their aircraft, usually with one person serving as the pilot, and the second serving as an observer. Adherence to safe practices depends on the culture of a particular group and the dynamics of interaction on a particular day, but

190 CITE and Discuss Usery v Maryland. 191 2012 Act § 336. 192 http://www.modelaircraft.org/

CCM Government Finance & Research Regulating Drone Use 232 the clubs have rules, both general and specific for operations for any particular field, and the club members generally follow them, exerting social pressure on anyone who deviates. A visit to an RC hobbyist field, encounters hobbyists with their RC airplanes flying them in pairs, talking and joking about their plans and past exploits. They all know each other. It unlikely that one of them would stray too far from the norm and risk getting kicked out of the club.

If a club member gets interested in drones and buys a DJI Phantom or 3Drobotics Solo, he is likely to fly it in this fashion—unless he decides to try to make money with it. Then the pathway of the section 333 exemption process and the eventual final rule for sUAS are open to him. His habit of compliance with RC club rules and his general awareness of the FAA probably will cause him to comply rather than just to ignore the restrictions on commercial microdrone flight.

None of this poses any significant new threat to other aircraft or to the citizenry in general. Hobbyists have a good safety record, and commercial microdrone operators are unlikely to put their exemptions and certificates at risk by flouting the FAA's detail rules for commercial operations – whatever their eventual content.

The threat comes from a new quarter: from the thousands of people who got a microdrones as Christmas or birthday presents, but have no prior connection with an RC model club or any prior interest in tinkering with model aircraft. Some of them have entrepreneurial instincts; many already are entrepreneurs, especially photographers, freelance journalist, civil engineers, surveyors that mostly account for the nearly 700 section 323 exemptions that have been granted, and the much larger number of pending petitions. But the vast majority of these casual purchasers do not plan on starting a business or making arrangements to fly there drone as a part of an RC club activity. They are going to take it out into their backyards, local parks, and nearby schoolgrounds and fly for fun. When they go to a sporting event, a music festival, or some other recreational gathering, they will think about taking their drone for the same reason they take their cameras. They'll take their drones on their vacations for the same reasons they take their cameras on vacation: it will be a good way to get some good imagery for their Facebook pages and to record videos to put on YouTube.

CCM Government Finance & Research Regulating Drone Use 233 This is the source of the greatest threat, not RC hobbyists or commercial microdrone operators. The drone that landed on the White House lawn193 was not being flown for commercial purposes; it was flown for fun in connection with an alcohol-fueled party. Likewise the incident in King County Washington194 involved recreational, rather than commercial, drone flight. Arguably, these consumer operations fall outside the statutory safe harbor for RC hobbyists because they are not:

"operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization."195

The Conference Report on the 2012 Act explains:

"In this section the term ‘’nationwide community-based organization’ is intended to mean a membership based association that represents the aeromodeling community within the United States; provides its members a comprehensive set of safety guidelines that underscores safe aeromodeling operations within the National Airspace System and the protection and safety of the general public on the ground; develops and maintains mutually supportive programming with educational institutions, government entities and other aviation associations; and acts as a liaison with government agencies as an advocate for its members."196

There is enough ambiguity in the language, however, to support broad claims that the Congress has placed all forms of consumer drone activity beyond the FAA's reach. The statute may be amended, of course, as S.1608 proposes to do. But any proposed

193 Michael D. Shear and Michael S. Schmidt, White House Drone Crash Described as a U.S. Worker’s Drunken Lark, N.Y. Times, Jan. 27, 2015, http://www.nytimes.com/2015/01/28/us/white-house-drone.html?_r=0. 194 FAA investigating drone flying near news helicopters (March 17, 2015), http://www.kirotv.com/news/news/faa-investigating-drone-flying-near-news- helicopte/nkYk7/ (reporting on near miss between drone and news helicopters). 195 2012 Act § 336(a)(2). 196 FAA Modernization and Reform Act of 2012, Conference Report to Accompany H.R. 658, Rep. No. 112-381, 112th Cong., 2d Sess. 199 (Feb. 1, 2012), http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.XXX and XXX

CCM Government Finance & Research Regulating Drone Use 234 amendment is like to the face ferocious opposition from the RC hobbyist community and therefore is uncertain of passage.

Even if S.1608 becomes law, or if the FAA decides to impose automation performance requirements on microdrones as a prerequisite for sale,197 anarchy will be the norm for consumer drones unless states and municipalities supplement FAA enforcement resources. If states and municipalities decide to step in, the preemption barriers are modest. States have a long history of regulating recreational activity that may pose safety problems: hunting, archery, recreational boating, all-terrain vehicles. 198 Requiring consumer drones to fly down low, stay within line of sight of the operator, not to fly over people, and to fly in public parks only if they have a permit is not likely to interfere with commercial microdrone operations or to interfere with the operation of the National Airspace System.199

State and local regulation of consumer drones will have little adverse effect on the economics of commercial drone operation, because they are not being flown commercially--if the consumer drone regulations exclude commercial microdrone operations conducted under FAA rules and approvals.200

Limiting state and local regulation to risk-based and performance-oriented rules is a good idea anyway, but even if they are not so limited, the adverse effect on commercial designs may be limited because of a growing differentiation between Consumer designs and even low-end commercial designs.201

The matters outlined in section IV.A that are off-limits to state and local regulations of commercial drone activity are permissible subjects for state and local regulation of recreational drone activity. If states exercise that authority, they can be significant contributors to public safety and other legitimate state interests.

197 Its current authority to do so is uncertain. Compare statutory language for motor vehicle regulation and electronic device regulation with FAA's authority. 198 This puts states in a strong position under the first criterion set forth in § XXX. 199 This puts states in a strong position under the second criterion set forth in § XXX. 200 This puts states in a strong position under the third criterion set forth in § XXX. 201 This puts states in a strong position under the fourth criterion set forth in § XXX.

CCM Government Finance & Research Regulating Drone Use 235 C. State and local initiatives Only a handful of states have enacted statutes limiting the operation of drones (Unmanned Aerial Vehicles or “UAVs”). Most of these laws prevent law enforcement use of drones for evidence gathering without appropriate search warrants. Some of these limitations prohibit law enforcement and citizens from weaponizing drones. Some heighten privacy protection by prohibiting aerial surveillance without consent. A few statutes limit drone involvement in hunting. The following table lists the statutes. It is followed by a discussion of specific statutory provisions and an evaluation of the likelihood of federal preemption.

State Legislation Bill Date Approved Date Effective Paraphrase Enacted

Florida C.S.C.S.S.S.B 766 May 14, 2015 Prohibits law Freedom from enforcement use to Unwarranted gather evidence. Surveillance Act Prohibits recording an image of a privately owned property or of the owner (tenant, occupant, invitee etc.) violating a reasonable expectation of privacy. Exceptions: police get warrant, “perform reasonable tasks” within the scope of one’s license, property appraisals, utility inspection, mapping, delivering cargo (as long as with FAA compliance),

CCM Government Finance & Research Regulating Drone Use 236 State Legislation Bill Date Approved Date Effective Paraphrase Enacted

Idaho IC 21-213 No law enforcement searches without a warrant. No aerial photography without prior consent.

Illinois 720 Ill. Comp. Stat Prohibits law 5/48-3 enforcement use of Freedom from drones without a Drone Surveillance warrant. Act No drone interference with hunters Indiana IC 35-33-5-9 July 1, 2014 No law enforcement use without a warrant

Iowa HF 2289 May 23, 2014 No drones for traffic law enforcement. Evidence obtained with a drone without search warrant is inadmissible.

CCM Government Finance & Research Regulating Drone Use 237 State Legislation Bill Date Approved Date Effective Paraphrase Enacted

Maryland SB 370 May 12, 2015 July 1, 2015 Only the state can make drone laws (preempts counties and local ordinances).

Mississippi SB 2022 April 23, 2015 Define felonious trespass to include peeping through a window, hole, or opening with a drone. Prohibits photographs and video of people without consent

Montana HB 330 April 23, 2015 October 1, 2015 No weaponized or armored drones for law enforcement

CCM Government Finance & Research Regulating Drone Use 238 State Legislation Bill Date Approved Date Effective Paraphrase Enacted

Nevada AB 236 No person shall weaponize a drone The largest and or operate a most weaponized drone. comprehensive bill. No operation within 500 ft or 250ft vertically from a “critical facility” and 5 miles from airport without consent. Right of action (trespass) if drone less than 250ft over property and property owner notifies DROP that the flight is unauthorized. No use for law enforcement to collect evidence. Creates a public registry of all state operated drones.

New Hampshire SB 222 Fish and May 7, 2015 January 1, 2016 No activity that Game—Animal— disturbs animals Harassment with intent to prevent their lawful taking. No drone use with intent to conduct video surveillance of citizen lawfully hunting, finishing, or trapping, without prior consent.

CCM Government Finance & Research Regulating Drone Use 239 State Legislation Bill Date Approved Date Effective Paraphrase Enacted

North Dakota HB 1328 April 15, 2015 Evidence obtained by a drone not admissible as evidence without a search warrant nor can law enforcement use drone footage as a basis for probable cause. No lethal weapons on a drone. Does not prohibit drone usage for research and development by edu. inst.

Oregon HB 2534 Fish and May 12, 2015 Prohibit the use of Game—Fish and drones related to Wildlife pursuit of wildlife Commission— (angling, hunting, Drone Regulation trapping) or aiding through use of HB 2354: only drones to harass, definition of drone track, locate, or changed to scout wildlife; and “unmanned aircraft interfere with system” angling, hunting, and trapping. The definition of drone includes unmanned water- based vehicles

Tennessee HB 153 Crimes April 20, 2015 July 1, 2015 No operation over and Offenses— events with 100+ Drones— attendees for a Photography and ticked event; no Pictures flight around fireworks without event organizer’s consent;

CCM Government Finance & Research Regulating Drone Use 240 State Legislation Bill Date Approved Date Effective Paraphrase Enacted

Texas 423.008 Law enforcement must submit a report of drone use to the governor.

Utah HB 296 March 27, 2015 Evidence obtained by a drone not admissible as evidence without a search warrant.

West Virginia HB 2515 Wildlife— April 2, 2015 Prohibits hunting, Animals— with drone.. Weapons

Wisconsin WSA 941.292 April 10, 2014 No weaponized WSA 175.55 drones.

No law enforcement use without a warrant.

Law Enforcement . The drone statutes reinforce the Constitutional limitation on unreasonable searches and seizures. This prevents law enforcement from taking advantage of a new technology to conduct warrantless searches. Some states prohibit law enforcement from gathering evidence without a search warrant. In Illinois, law enforcement “may not use a drone to gather information”202 unless it obtains a search warrant prior to the search.203 Law enforcement agents may use drones in certain circumstances like crime scene and traffic investigation.204 Wisconsin and Indiana, like Illinois, prohibit the use of

202725 ILCS 167/10 203 725 ILCS 167/15 (2) 204 725 ILCS 167/15 (5) The Illinois statute confines law enforcement drone operation to the geographic location and imposes a time limit on investigation.

CCM Government Finance & Research Regulating Drone Use 241 drones to gather evidence without a search warrant.205 Violation results in inadmissibility of the evidence. In addition, North Dakota prohibits use of drone imagery to establish probable cause to obtain a search warrant that would lead to drone captured evidence.206. Some states prohibit law enforcement from weaponizing a drone.207 In addition to weaponizing a drone, Wisconsin prohibits law enforcement from equipping a drone with armor.208 Other states extend this prohibition to civilian drone operations.209 Texas addresses concerns about law enforcement abuse but not limiting drone use. The Texas statute does not explicitly require a search warrant when law enforcement conducts an aerial search to gather evidence using a drone.210 It merely requires that the law enforcement agency must, every two years, submit a written report to the governor, the governor lieutenant, and each member of the state legislature with a list of drone missions, costs of operating and maintaining a drone, and a list of non-criminal drone investigations.211 Privacy. States with drone privacy statutes address the fear of citizens using drones as “prying eyes” to collect information about their neighbors from an aerial vantage point. They prohibit on aerial imagery capture without consent.212 Florida, for example, prohibits any surveillance of a privately owned property, its owner and anyone legally occupying the premise (landlord, tenant, or licensee).213 The Idaho statute prohibits capturing imagery of land and occupants without prior consent of the owner or the occupant.214 Additionally, some states legitimate drone use over property for property appraisals, utility inspections, and mapping if the DROP performs the “reasonable task” under a state occupational license.215 Flying a drone over private property without consent can lead to a trespass claim against the DROP or a penalty. Some states allow a trespass claim after the land owner notifies the DROP about an unauthorized flight over the land owner’s land lower than 250 feet.216 Texas, for example, creates a civil right of action against a violating DROP and allows a land owner to recover a penalty for every captured

205 WSA 175.55; IC 35-33-5-9. See Florida, Idaho, Utah, Nevada, Iowa, N Dakota (prohibiting drone use to gather evidence without a search warrant). 206 N Dakota HB 1328 207 Montana HB 330 208 WSA 175.55 209 Nevada AB 236, N Dakota, 210 Texas Drone Statute 423.008 211 Id. 212 See 213 Florida Freedom From Unwarranted Surveillance Act 214 Idaho 21-213 215 Florida Freedom From Unwarranted Surveillance Act 216 Nevada AB 236

CCM Government Finance & Research Regulating Drone Use 242 image, or for distributing images.217 In Mississippi, a drone trespass is a “felonious trespass” when a DROP uses a drone to peep through a “window, hole, or opening.”218 For drone operation during live events, Tennessee prohibits unauthorized use with more than 100 guests attending a ticketed event.219 Hunting. Aside from privacy concerns, some states worry about the role of drones in the outdoors by enacting bills concerning hunting, fishing, and trapping. New Hampshire prohibits drone use with the intent to prevent lawful taking by hunters.220 Oregon, for example, prohibits drone use to interfere with hunting, trapping, and finishing.221 State statues also prohibit drone use to aid in hunting. It is illegal to track, locate, and scout for wild animals222 and to herd animals with a drone to hunt.223 Drone wildlife statutes prevent DROPs from interfering with other’s enjoyment of wildlife sports and from taking advantage of drone to gain an upper-hand in outdoor sport. The measures restricting what state or local law-enforcement may do with drones are not preempted, because of the traditionally strong state interest in regulating its own law-enforcement bodies and the limited effect on air commerce Likewise, the measures related to hunting are not preempted, because of the traditional state interest in that subject.

The Tennessee, Florida, Idaho, and Mississippi statutes present more interesting preemption questions because they restrict the operations of civilian drones outside the hunting context. Tennessee's prohibition of flying over major events can be justified by the state’s interest in public safety. Limitations on what people can do in connection with large public events are a traditional mainstay of state and local regulation. The Tennessee crowd overflight prohibition is congruent with the section 333 exemption and (probable) eventual final-rule prohibition on flying over crowds. Tennessee could further justify its involvement as simply providing additional enforcement mechanisms for a federally established standard – similar to what happens when state, law provides toward remedies for conduct that violates federal standard. On the other hand, a state crowd overflight restriction that goes well beyond the federal standard is more vulnerable to a preemption challenge.

217 Texas 423.006 218 Mississippi SB 2022 219 HB 153 220 New Hampshire SB 222 221 Oregon HB 2534 222 Id. 223 West Virginia HB 2515

CCM Government Finance & Research Regulating Drone Use 243 The prohibition against aerial imagery over property without the owner's consent and of subjects without their consent can be justified as an extension of traditional state measures to protect private property and personal privacy interests, matters generally left to the states and covered by extensive state regulation already. Many states already prohibit capturing – or at least publishing –images of persons without their consent.224 State overflight rules on this subject, however, are more vulnerable to preemption challenges when they extend the height below which permission is required. 250 feet places half of the FAA’s allowable height under off-limits, especially if it is accompanied by restrictions or overflight of public spaces. Such inconsistent height limits interfere with the federal regulatory regime and burden air commerce.

The state privacy measures would fare better under preemption analysis if they simply extend existing state limitations on photographing individuals; such measures do not single out drones or other aircraft for special restrictions. The caselaw is more hospitable to state regulation of general application.

D. Space for municipalities? The sovereignties in the United States constitutional structure are the federal government and the states; not municipalities.225 It was the states that met at the Constitutional convention and ceded some of their sovereign power to the United States; counties, towns, and cities were not at the table.226

States started out with sovereignty and gave some of it up—part of it upward, to the national sovereign, and part of it downward to counties, cities, and towns. Counties and other municipalities enjoy only such powers as are granted by the sovereign state. The American Civil War established that states, having ratified the United States Constitution, are not entitled to take back any of the sovereignty they ceded to the federal government, but the sovereignty they ceded downward, to local units of

224 CITE examples—CA, IL. 225 Indian tribes also are sovereign, but there role in drone regulation is beyond the scope of this article. 226 CITE for constitutional convention

CCM Government Finance & Research Regulating Drone Use 244 government, they can take back at any time. A 2015 Maryland statute preempts municipal drone regulation.227

Of course, to the extent that state local government prerogatives are codified in state constitutions, the process for taking it back may be more arduous than simply passing a bill in one session of the Legislature. In some states, local government enjoys only those governmental authorities explicitly granted to them by state statute or constitutional provision. That was the case in Alabama for many years.228 The trend, however, is for states to adopt home rule legislation that grants general governmental power – roughly equivalent to that exercised by the state – to municipalities unless a specific power is withheld in the home rule statute or by subsequent legislation.229

E. Mechanisms for Federal-state cooperation Cooperative federal-state regulation is not uncommon. Mechanisms for sharing federal and state authority over the same subject matter are pillars of air pollution regulation, occupational safety and health regulation, and remedying employment discrimination.

227 (B) “Only the State may enact a law or take any other action to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems in the State.

(1)

(2) Preempts the authority of a county or municipality to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems; and supersedes any existing law or ordinance of a county or municipality that prohibits, restricts, or regulates the testing or operation of unmanned aircraft systems.” SB 0370 (B)-(C). 228 Paul Diller, Intrastate Preemption, 87 B.U. L.Rev. 1113, 1127 n.64 (2007) (characterizing Alabama's lack of meaningful home rule). 229 See David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255, 2277-2322 (2003) (analyzing history and competing philosophies of home rule); City of Commerce City v. State, 40 P.3d 1273, 1279 (Colo. 2002) (describing home rule authority).

CCM Government Finance & Research Regulating Drone Use 245 The Clean Air Act distributes responsibility for setting and enforcing air-pollution standards among the federal EPA and state and local governments.230

Title VII of the Civil Rights Act of 1964 requires the complaints of employment discrimination be filed first with state anti-discrimination agencies, if they exist, before the federal EEOC has jurisdiction.231

The Congress, in crafting the federal Occupational and Safety Act, was reluctant to federalize workplace safety. Accordingly, it provided for a system of state implementation plans under federal OSHA oversight.232

V. Economic and political realities Regulation arises, not only from politics and law, but also from economics and ideas.

A. Economics Two distinct markets exist for commercial microdrone activities. The first is the market for the vehicles themselves; the second is the market for services provided by operators of those vehicles. The market for the vehicles is undeniably national and international in character. The dominant vendor for small drones in the United States is DJI, a Chinese company. U.S. vendors such as 3Drobotics, like their foreign counterparts, seek footholds in international markets. Allowing states to set different standards for vehicles would significantly interfere with the efficient functioning of these markets, and it would be even worse if regulations are made at the local level. It would be bad enough to need 50 different business plans and vehicle requirements; let alone 36,000 for municipalities.233 Of course, drone manufacturers and operators could use a

230 Arnold W. Reitze, Jr., Air Quality Protection Using State Implementation Plans -- Thirty-Seven Years of Increasing Complexity, 15 Vill. Envtl. L.J. 209, 211-212 (2004) (explaining allocation of federal, state, and local authority in state implementation plans under the Clean Air Act). 231 See Procedure Under Title VII, 84 Harv. L. Rev. 1195, 1213-1216 (1971) (criticizing deferral-state procedure). 232 See AFL-CIO v. Marshall, 570 F.2d 1030, 1035 (D.C. Cir. 1978) (remanding OSHA regulations on staffing and funding of state implementation plans); Courtney M. Malveaux, OSHA Enforcement of the “as effective as” Standard for State Plans: Serving Process or People?, 46 U. Rich. L. Rev. 323, 324-325 (2011) (explaining that Occupational Safety and Health Act allows states to adopt their own implementation plans so long as they are at least as effective as federal standards). 233 https://www.census.gov/govs/go/municipal_township_govs.html (noting number of sub-county municipalities in the United States).

CCM Government Finance & Research Regulating Drone Use 246 “common denominator” model and adapt to the most stringent regulatory requirements in all their models. This would obviously increase costs.

The market for drone services, in contrast, is inherently local. The limited range of the available vehicles means that any particular mission is going to take place in a relatively small area. For example, an Amazon delivery drone can only deliver packages within the range of the battery flight time limitations. Thus, Amazon can only serve the market immediately adjacent to its warehouse and distribution offices.

Even so, there are broader impacts. Depending on the altitudes at which they are flown, these local missions could pose collision risks to interstate and international airline and commercial operations.

Also, economies of scale for marketing, finance, and operations management may lead commercial drone operators over time to expand, so they offer the same or similar services in more than one geographic area. One crew dispatcher for DROPs can handle more than one customer’s callouts. Promotional materials prepared for one local market can be made suitable for others. Investment promotion, cash management, accounting, purchasing, and liability insurance all represent fixed costs that can be shared among different local markets

The enterprise structure of the commercial helicopter industry is an analogy to how commercial drone operations will be structured; the markets and missions are, in many respects, similar. National or regional operations instead of purely local ones predominate for oil and gas exploration crew transportation, for medevac, for electronic newsgathering, and for much utility infrastructure inspection. To be sure, there are many purely local operators in each of these industry sectors, but they provide services mostly at the margins of their customers’ operations and of their own, flying an occasional utility patrol or event shot opportunistically in to fill out a portfolio of that offers flights for almost any purpose, frequently coupled with flight training as the mainstay business.

Drone operator organizational structure also will depend, to some extent, on the organization structure of the customers for drone services. An enterprise with a national or international footprint is likely to want to standardize drone services contracts across its geographically dispersed operations. It can do this, of course, while still allowing local decision-makers to contract with local operators, but the economies of scale from

CCM Government Finance & Research Regulating Drone Use 247 both buyers and sellers of drone services will push things toward arrangements of wider scope.

Different operating rules in different parts of the country would be impediments to realizing these efficiencies. Even if compliance is not a problem – for example not flying over 200 feet in New York State, but up to 500 feet in Colorado; or being allowed to fly the drone from a moving vehicle in Nebraska but not in Michigan—finding out what the rules are if they vary from place to place would impose significant additional transaction costs for legal research and advice.

B. Politics Politics will share the stage with law and economics in determining how regulatory power over drones will be allocated among the federal government, states, and municipalities. Microdrones will produce a clash over federalism when constituent or interest group pressures to draft drone legislation prove irresistible. Two different political issues exist. The first is the politics of the content of state or local drone regulation. The second is the politics of federalism and federal preemption. Section XXX discusses the politics of content.

The politics of federalism intersects with judicial appreciation of the need to give greater room for state regulation of federal interests in areas where states traditionally have exercised power.234 Most state and local lawmakers do not think much about preemption. Even if they are lawyers and recall the concept from law school and the bar exam, they are unlikely to have an appreciation of the analysis conducted in part XXX and its conclusion. They likely, however, have a general understanding that some matters are mostly federal and some are mostly local.

When they think of the subject as aviation regulation, they are likely to assume that it is a matter for the federal government. When the subject is zoning, other land-use regulations, nuisance, protection of personal privacy, and localized disorderly conduct, they assume it's a matter for state or local regulation. Here is what is likely to happen:

A state legislature or a city council has proposed legislation on its agenda, sponsored by one of its members in response to constituent pressure. The content of the measure may

234 See § XXX.

CCM Government Finance & Research Regulating Drone Use 248 restrict drones, or it may encourage their expanded use, depending on local politics. The Maryland statute235 clearly is an example of the latter, but most of the others on the list in § XXX are examples of the former. The legislative body schedules hearings, and at some point, a hearing witness, another legislator, or staff counsel suggests that the measure might be preempted by federal law. That will surely come as a surprise. "You mean the federal government excludes us from aviation regulations all the way down to one centimeter over my backyard?" someone may ask.

Then the battle is on. The FAA is extremely unlikely to accede to the proposition that it has anything less than exclusive authority all the way to the ground.

1. Not in my back yard Ultimately, as section VV explains, the boundary between federal and state regulation will be defined not by abstract legal principles, but by policy decisions made by federal, state, and local legislators. Their policy decisions will, of course, be informed by politics operating at their particular level of government. An axiom of political science is that concentrated interests trump diffuse interests. Socially desirable projects such as cell phone towers, wind turbine farms, waste disposal sites, and electricity infrastructure "often succumb to a political process that yields to concentrated costs over diffuse benefits."236 Organization matters, and it is not easy to organize.237

235 Cross ref § XXX. 236 Barak D. Richman & Christopher Boerner, A Transaction Cost Economizing Approach to Regulation: Understanding the NIMBY Problem and Improving Regulatory Responses, 23 Yale J. on Reg. 29, 37-38 (2006) (explaining political economy of NIMBY); Michael A. Fitts, Can Ignorance Be Bliss? Imperfect information as a Positive Influence in Political Institutions, 88 Mich. L. Rev. 917, 930-931 (1990) (summarizing literature on the greater political power of concentrated interests opposing diffuse interests); Michael A. Fitts, The Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legislative Process, 136 U. Pa. L. Rev. 1567, 1580-1581 (1988) (summarizing theory of how concentrated interests bias legislative decisionmaking);

237 See Lucas R. White, Untangling the Circuit Splits Regarding Cell Tower Siting Policy and 47 U.S.C. § 332(c)(7): When is a Denial of One Effectively a Prohibition on All?, 70 Wash. & Lee L. Rev. 1981, 1987- 1988 (2013) (analyzing collective action problems in cell phone tower siting decisions).

CCM Government Finance & Research Regulating Drone Use 249 Regulation at the federal level favors well-organized national interests, most of whom are likely to be pro-drone: farmers,238 the press and media,239 realtors,240 electricity and gas utilities,241 insurers,242 airlines,243 pilots,244 and railroads245. It will be easier for drone manufacturers to exert political power at the national level rather than having to develop a presence at the state and municipal level.

So does a role for states and municipalities mean more restrictions on desirable drone use because of the NIMBY phenomenon? 246Answering that question requires analysis of the political dynamics of local political decision-making, and that involves assessment of whether pro-drone or anti-drone interests are likely to be concentrated or diffuse.

Yale political science professor Robert Dahl, in his classic 1961 book, WHO GOVERNS?: DEMOCRACY AND POWER IN AN AMERICAN CITY, highlighted the role of local governmental institutions as mediators among conflicting interests groups, some of which had more power to influence the process than others.

“A political issue can hardly be said to exist unless and until it commands the attention of a significant segment of the political stratum [the small segment of the population

238 CITE – power of farmer lobby. 239 CITE – political power of press and media 240 CITE – power of realtors and developers 241 CITE – utility lobby 242 CITE insurance lobby 243 CITE – airline lobby 244 CITE ALPA and AOPA 245 CITE - RR lobby 246 "NIMBY, describes the situation where local citizens, organized community groups, and officials who want to benefit from an “essential infrastructure,” such as wireless telecommunication facilities, but do not want the infrastructure located in their particular neighborhoods and communities." Camille Rorer, Can You See Me Now? The Struggle between Cellular Towers and NIMBY, 19 J. Nat. Resources & Envtl. L. 213, 216-217 (2004-2005). See Hannah Wiseman, Expending Regional Renewal Governance, 35 Harv. Envtl. L. Rev. 477, 483- 484 (2011) (arguing that fragmentation of governmental authority prevents efficient land use for renewable energy; proposing regional structures).

CCM Government Finance & Research Regulating Drone Use 250 that is involved regularly in politics].”247 An issue may take root because members of the political stratum get interested in it and influence other members to pay attention. It also may take root when the apolitical stratum experiences a vaguely felt need and members of the political stratum formulate ways for the need to be addressed by political institutions.248 The vicissitudes of press and media attention drive awareness in both strata. A highly publicized drone accident, or a rescue of a lost child enabled by drone imagery has impace.

One cannot predict political behavior in a particular unit of government without sophisticated public opinion polling of the population of that particular unit. Even then, predictions based on poll results are notoriously unreliable when political opinion is rapidly changing or when a particular issue is not very firmly in the public consciousness. Still, national polling suggests that the public attitude toward drones is unfavorable,249 likely fueled by an perception that civilian drones resemble military drones used in combat by the armed services and intelligence agencies– Predators and Reapers with thousands of pounds flying out of sight, at thousands of feet above the ground, and loitering for many hours to spy on or launch missiles at those below.

Over time, the wider use of civilian microdrones will alter the public perception, but for now, the likelihood is great that negative public attitude, reinforced by the NIMBY phenomenon, will make state and local legislative bodies instinctively hostile to widespread use of microdrones. In May, 2015, for examples the Commissioners of the Chicago Park District had on their agenda a measure to prohibit drones from flying in Chicago's extensive public park system unless the operator had a permit.250 No mechanism was in place for obtaining a permit. The poorly drafted, one-page measure contained numerous errors about the FAA’s position on local regulation of drones. It was withdrawn from the agenda pending reconsideration at another meeting after model aircraft enthusiasts protested.

247 Dahl at 92 (explaining crystallization of political issues). 248 Id. 249 Alwyn Scott, Americans OK with police drones - private ownership, not so much: Poll, Reuters, Feb. 5, 2015 (reporting that 42% of 2,000 respondents opposed private ownership and operation of drones. but 62% support police use for crimefighting). 250 https://chicagoparkdistrict.legistar.com/LegislationDetail.aspx?ID=2283879&GUID=C26DC8E7-CAA4- 44B1-A9ED-E275409C6D92

CCM Government Finance & Research Regulating Drone Use 251 There will be exceptions of course. In some communities, drone proponents will be well organized and influential. Realtors, 251 construction firms, and utilities, are alert and have drones high enough on their agendas that they are willing to make the effort. In some rural communities, agricultural interests that want to use drones will be influential. In most cases, however, it is more likely that concentrated opposition will trump diffuse supporters who don't know about the initiative or who don't want to go to the trouble of opposing it.

2. Intellectual capital Eighty years ago, Justice Brandeis famously observed that the genius of the federal structure of the United States is that states can serve as laboratories within which different regulatory approaches can be tried out. 252 Moreover, having different local regulations has its merits. For example, each region has its own environmental characteristics (weather and terrain) that rational drone rules should take into account. Drone operations in rural, compared with urban, environments differ, along with the risks they pose.

The agenda of the laboratories, however, is not determines by an intellectual exploration of facts and the public interest. It is determined by politics. But politics translates into policy only when intellectual capital has linked amorphous public desired to concrete legislative or regulatory language.253

251 Realtors are well represented on zoning bodies. Accordingly their interest in using drones to market listed properties is concentrated relative to that of neighbors who may oppose drone operations for this purpose. But see Jerry L. Anderson & Erin Sass, Is the Wheel Unbalanced? A Study of Bias on Zoning Boards, 36 Urb. Law. 447 (2004) (reporting on survey of members of Iowa zoning boards, data from which mostly refuted hypothesis of pro-development bias).

252 "Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment." New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311 (1932) (Brandeis, J., dissenting) (invalidating, as violative of substantive due process, state law restricting entry into ice business). 253 CITE role of intellectual capital in translating political desire into legislation.

CCM Government Finance & Research Regulating Drone Use 252 Drone regulation is not like occupational safety and health, or employment discrimination, however, where many states had mature, effective programs before the national program was crafted. Instead, virtually all of the intellectual capital with respect to drone regulation has been developed focused on the premise that drones would be regulated nationally.

It is completely different with respect to drone regulation. Few states or municipalities have given any serious thought to how drones should be regulated. Few interest groups have focused on drafting desirable state and local regulations. Most of the bills proposed have been impulsive, superficial, and motivated by ill-conceived public perceptions of the realities of drone flight.

On a relatively new issue like drones, local decision-makers are buffeted by public outcries animated by urban myth and overblown anecdotes about what might happen. They lack firm intellectual or political anchors to resist or to shape public opinion, so they just go with the flow.

State and local legislators are not irresponsible; they just lack resources to find out what the facts are. Interest groups provide essential technical support and intellectual capital to higher-level legislative bodies and forge long-standing relationships involving trust with the ample committee and personal staffs that support the United States Congress. Interest groups frequently are impotent at lower levels of government, however, because they lack the resources to interact effectively with legislators, who often are part time, and have a little if any staff support.

VI. Plan for the future Drone regulation at the state—and, especially, at the local level—will result in dramatically different regulatory regimes across the country. Would that be a bad thing, either because of lack of uniformity, or because local regulation would bias decisionmaking? In addition to encouraging safety of air commerce, the FAA Administrator has a statutory duty to "encourage the development of civil aeronautics."254 It is thus

254 49 U.S.C. § 40104. See also 49 U.S.C. § 40101(d)(3) ("[FAA Administrator shall consider] encouraging and developing civil aeronautics, including new aviation technology"); 49 U.S.C. § 40101 (c)(2) "[FAA Administrator shall consider] the public right of freedom of transit through the navigable airspace").

CCM Government Finance & Research Regulating Drone Use 253 appropriate for the FAA, not only to assure that state and local regulation does not interfere with its safety mandate, but also to assure that state and local regulations does not stifle innovation and the development of commercial drone markets.

In considerable measure, the motivation for the proposal is to give the FAA and the Congress a way to respond to state and local political pressure to allow states and municipalities to regulate drones. Adoption of the proposal is far better for air commerce, the national airspace system, and local democracy than a shoving match among different levels of government, inevitable resulting in an outbreak of uncoordinated litigation in state and federal court.

1. Default: federal regulation and preemption Default regulation for drones would comprise FAA regulations for DROP qualification, vehicle capabilities, and operating rules. State and local desire to play a role would be accommodated by a petition process. A state or municipality (authorized by state law) could petition the FAA to regulate drones in certain airspace. The FAA would be required to grant the petition so long as it shows that the proposed state regulation involves matters traditionally of concern to the states, does not interfere with effective operation of the national airspace system including, now, drone integration into it, does not interfere with the economies of scale necessary to allow drone commerce to develop in an unfettered market, and performance rather than technical engineering standards. The four criteria are factors to be considered collectively; not elements. They also are interrelated.

In effect, the regulatory regime would be an inversion of the state of affairs in mid 2015, when the default is a prohibition, and commercial operators must petition to fly. Under the proposal, the default would be permission to fly with units of state and local government empowered to petition to limit it.

This arrangement could be authorized by statute, or it could be implemented under existing statutory authority. The FAA already has authority to decide when to regulate and went to stay its hand, and it also has authority to delegate its regulatory

CCM Government Finance & Research Regulating Drone Use 254 responsibility to others.255 For the most part delegation now involves shifting authority to private persons, but there is no reason that the authority to delegate explodes delegation to state and local governmental authorities. Moreover, the FAA has, and frequently exercises, the authority to leave certain areas within the scope of its statutory authority unregulated. Model aircraft operations are an obvious example, at least before the 2012 statute withdrew FAA authority over the subject. Commercial aircraft airstairs are another example, to borrow from the caselaw.

In effect, under the proposal, the FAA would say two things: first, we delegate our authority to you in the space and to the extent that you propose, and second, we withhold our authority to impose our own rules in the space and to the extent that you propose.

The concept could be implemented in the final rule for microdrones, but it is not a concept that was disclosed in the proposed rule, and therefore it has not received the public comment the Administrative Procedure Act envisions.256 If it is deferred, the federal government will have a considerable head start in regulating microdrones – exactly the opposite of the experience with occupational safety and health and employment discrimination regulation. That is not necessarily a bad thing, however. The initial increment of federal regulation could produce data about and what does and does not work, where state supplementation of the regulatory framework is most desirable.

The default position, of federal regulation, while leaving the initiative to states and municipalities to pose exactly what they want to regulate is that the Congress of the FAA need not make guesses as to what is well-suited for state and local regulation and what will satisfy state and local desires.

If the state wants to exclude drones from certain areas of geography, it can propose to do so.

255 See 49 U.S.C. § 44702(d) (authorizing FAA Administrator to delegate "examination, testing, and inspection necessary to issue a certificate under this chapter); 14 C.F.R. § 183.1 (summarizing delegation of authority for issuing airman, operating, and aircraft certificates). 256 5 U.S.C. § 553.

CCM Government Finance & Research Regulating Drone Use 255 2. FAA authority to approve a state plan, meeting certain criteria

a) Unusual local interest The first criterion would build on doctrine Commerce-Clause and federal-preemption analysis that allows states a wider ambit of regulatory authority alongside or instead of the federal government in areas traditionally with the state police power: land-use regulations, personal privacy, and other areas of common law torts. A state petition that imposes insurance requirements or tort rules for imposing liability arising from drone accidents would be viewed favorably under this criterion.

A petition that addresses traffic separation or drop qualification or vehicle standard would not.

b) Non-interference with NAS The second criterion involves assessing the state proposal in terms of its effect on the efficient and safe operation of the national airspace system. A state proposal to exclude drones from the airspace below to treetop and powerline level over private property without permission would be viewed favorably under this criterion because it would have little effect on national airspace system operations and on most legitimate drone flight; indeed it's not clear that anyone is permitted to fly a manned aircraft or a drone below treetop and powerline level about private property under existing if FARs, under the NPRM, or under the section 333 exemptions.

On the other hand, a blanket ban on drones over the entire territory of a municipality would interfere with the efficient and safe operation of the national airspace system, given that the Congress has declared that commercial drone operations are a part of the national airspace system, subject only to compliance with the FAA rules to ensure safe integration.

c) No adverse effect on national and international economies of scale The third criterion would require a showing by the state that its rules can be accommodated without commercial drone operators having to have separate business plans and operating programs for each local area in the United States. It also could be heightened by showing that a state or local government proposes to adopt uniform or model rules proposed by an entity like the uniform commissioners on national state laws, the National Association of attorneys general, or some private group. Satisfaction

CCM Government Finance & Research Regulating Drone Use 256 of this criterion also would exist if a petitioner shows that compliance with the rules impinges only slightly on likely commercial drone operations. Restricting low-level flight over backyards it is an example of where impingement is low. Exposing certain purposes such as harassment to after-the-fact liability would be another example. On the other hand, a state or municipal regulatory regime that limits the kinds of vehicles that can be flown would be suspect under this criterion. It would have the effect of requiring drone operators with more than a local footprint to select their fleets so as to accommodate a patchwork quilt of potentially inconsistent vehicle requirements. Local imposition of DROP and other crew member qualification requirements would be suspect for the same reason. Any system that requires advance approval of drone flight would be inconsistent with this criterion because it would ratchet up the transaction costs to know what the advance approval requirements are and to alter operations to comply with them. Advance approval for specific flights would be considerably worse in this regard than blanket approval for flights during a defined period of time, such as a year.

d) Plausible risk basis and performance orientation The fourth criterion is closely related to the first. The risks that are petitioner identifies should be explicitly, and logically linked to the interests it cites under the first criterion. The analysis would resemble that used in 14th Amendment due process analysis to demonstrate a nexus between limitations on human activity and legitimate state interests.

CCM Government Finance & Research Regulating Drone Use 257 You Can’t Regulate This: State Regulation of the Private Use of Unmanned Aircraft

By Jol A. Silversmith

he FAA Modernization and Reform Act of 2012 of aviation, federal preemption long has been under- requires the Federal Aviation Administration stood to sweep with a wide broom.11 Tto adopt regulations for the use of unmanned aircraft systems (often referred to as unmanned aer- The Idaho, Oregon, and Texas UAV Statutes ial vehicles or UAVs) by September 2015.1 Since the The newly adopted Idaho, Oregon, and Texas stat- act was adopted, bills that would restrict the use of utes all specifically limit the purposes for which UAVs have been proposed in most state legislatures, unmanned aerial vehicles can be operated by pri- and eight states actually have adopted UAV-restrict- vate citizens. Idaho prohibits citizens from using “an ing laws. In five (Florida, Illinois, Montana, Tennessee, unmanned aircraft system to intentionally conduct sur- and Virginia), the new requirements primarily restrict veillance of, gather evidence or collect information the use of UAVs for law enforcement purposes2— but about, or photographically or electronically record in three (Idaho, Oregon, and Texas), the new require- specifically targeted persons or specifically targeted ments restrict the use of UAVs by private parties.3 private property.”12 Oregon prohibits the “operat[ion] The statutes that restrict the use of UAVs only by of a drone that is flown at a height of less than 400 governmental entities seem to have attracted limited feet” over private property if the UAV has been flown scrutiny—perhaps because they embody a volun- there before and the owner or lawful occupier of the tary decision by each of those states to not use UAVs property has objected.13 Texas prohibits citizens from themselves, and not an effort to regulate the con- using “an unmanned aircraft to capture an image of duct of private citizens.4 But requirements of the kind an individual or privately owned real property in this imposed by the Idaho, Oregon, and Texas statutes state with the intent to conduct surveillance on the implicate significant legal questions, such as whether individual or property captured in the image.”14 restrictions on photography and other information The Idaho statute provides two codified excep- collection by UAVs can be reconciled with the First tions—for mapping and resource management and for Amendment to the U.S. Constitution.5 the inspection of one’s own facilities located on lands This article briefly addresses another legal question owned by another.15 The Oregon statute exempts that bears upon the Idaho, Oregon, and Texas statutes UAVs in the process of taking off or landing, or in (and any similar statutes adopted in the future)—namely, an airport’s flight path.16 The Texas statute, mean- whether these statutes are preempted by the Federal while, incorporates 19 specific exceptions.17 Some of Aviation Act of 1958. This issue may be less glamorous the Texas exceptions are law enforcement-specific, than a free-speech-based inquiry, but it is nevertheless but many permit specific classes of UAV surveillance an important question of federalism that to date has activities to be conducted by private citizens—e.g., for received only minimal attention and analysis.6 scholarly research, by real estate brokers, or in connection with oil pipeline safety.18 Federal Preemption of Aviation Regulation Additionally, the legislative history of the Texas stat- The U.S. Constitution provides that federal laws ute includes a summary of arguments made by its are the “supreme law of the land.”7 In the context of supporters and opponents—but with only a brief men- aviation, the doctrine of field preemption—that state tion of preemption. For supporters: “The FAA is not a action is preempted because Congress intended to privacy protection agency and has no experience draft- occupy the entire regulatory field—has been held ing laws that protect personal privacy rights. The Texas by many courts to generally prohibit state regula- Legislature is a more appropriate body to draft laws tion of aircraft safety and operations.8 Underlying and regulations that would protect the rights of Tex- this position is that the U.S. government by statute ans.” For opponents: “The bill would conflict with the “has exclusive sovereignty of airspace of the United regulations the FAA currently is drafting for the use of States.”9 As the Supreme Court explained more than unmanned vehicles. If each state passed its own drone 40 years ago in an opinion invalidating a locally laws, the law would become messy and confusing.”19 imposed curfew on aircraft noise, “a uniform and exclusive system of federal regulation” is required “if Federal Preemption of State Restrictions on Private the congressional objectives underlying the Federal UAV Operations Aviation Act are to be fulfilled.”10 Thus, in the context Neither the FAA nor the courts have had specific

Published in The Air & Space Lawyer, Volume 26, Number 3, 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. CCM Government Finance & Research Regulating Drone Use 258 occasion to address whether state and local laws Court of Appeals for the Tenth Circuit recently held regarding UAVs are preempted by the Federal Aviation that New Mexico could not require an airline to com- Act of 1958. But there is considerable reason to doubt ply with the state’s alcoholic beverage regulatory that the Idaho, Oregon, and Texas mandates (and any scheme in order to serve alcohol in-flight, based on similar statutes adopted in the future elsewhere) are the Federal Aviation Act of 1958.33 within the authority of a state legislature. The FAA has well-established requirements for the Conclusion use of manned aircraft for surveillance purposes.20 Given that (1) surveillance operations of the kind It also has long-established standards for the opera- that Idaho, Oregon, and Texas purport to regulate are tion of model aircraft.21 The FAA recently warned that specifically regulated already by the FAA for manned the operation of UAVs for commercial purposes is not aircraft, (2) courts have given an expansive interpre- encompassed by the model aircraft standards—but it set tation to the FAA’s authority under the doctrine of out procedures, pending the development of new regu- implied preemption, and (3) the FAA has been man- lations, by which special authority can be obtained to dated to further regulate operations by UAVs and has operate UAVs.22 And the future regulations are expected issued guidance thereto, the newly adopted statutes to encompass the aerial photography industry.23 would appear to be vulnerable to a challenge predi- Additionally, in response to a proposal in Deer Trail, Col- cated on the Federal Aviation Act of 1958. In court, a orado, to issue hunting permits and bounties for UAVs, challenge to state restrictions on the use of UAVs by the FAA issued a media statement which emphasized private citizens likely would be premised on multiple that: “The FAA is responsible for all civil airspace.”24 grounds—e.g., also including a First Amendment- Thus, even before the congressional mandates of the based challenge. But implied preemption perhaps FAA Modernization and Reform Act of 2012, the FAA could provide the simplest avenue by which a court seems to have had no doubt of its exclusive jurisdiction could find such laws to be unenforceable.34 to regulate UAVs, both as a general proposition and with specific reference to surveillance.25 Endnotes Case law interpreting the Federal Aviation Act of 1. See FAA Modernization and Reform Act of 2012, Pub. L. 1958 typically emphasizes that local regulation of safety No. 112-95, § 332, 126 Stat. 11. A “roadmap” and a “compre- matters is preempted. But in its seminal decision, Lock- hensive plan”—with a longer time horizon—were released heed Air Terminal, the Supreme Court made clear that by the FAA in November 2013. See http://www.faa.gov/ local requirements that affect not just safety but aircraft about/initiatives/uas/. operations generally are preempted—especially (but 2. See Fla. S.B. 92, effective July 1, 2013; Illinois S.B. 1587, not necessarily only) if those matters are the subject effective January 1, 2014; Mont. S.B. 196, effective Oct. 1, of specific FAA regulations.26 A subsequent decision of 2013; Tenn. S.B. 796, effective July 1, 2013; Va. H.B. 2012, particular interest is Banner Advertising, Inc. v. City of effective July 1, 2013. Boulder,27 in which the Colorado Supreme Court con- 3. See Idaho S.B. 1134, effective July 1, 2013; Oregon H.B. cluded that an ordinance that prohibited banner towing 2710, effective July 29, 2013; Tex. H.B. 912, effective Sept. 1, was preempted, noting that the FAA not only had “con- 2013. trol over the general activities of aircraft in flight,” but 4. Indeed, numerous articles already have discussed it also “exercises pervasive control over the specific act whether the unrestricted use of UAVs for law enforcement of banner towing.”28 Applying the same logic, it seems purposes would violate the Fourth Amendment to the U.S. likely that a court also would find local regulation of Constitution. See, e.g., Philip J. Hiltner, The Drones Are Com- activities conducted in-flight by UAVs to be impermis- ing: Use of Unmanned Aerial Vehicles for Police Surveillance sible, based on both the general scope of FAA authority and Its Fourth Amendment Implications, 3 Wake Forest J. & 29 and its current and mandated future oversight thereof. Pol’y 397 (2013); Chris Schlag, The New Privacy Battle: How Other courts likewise have found the preemptive the Expanding Use of Drones Continues to Erode Our Con- effects of the Federal Aviation Act of 1958 to have concept of Privacy and Privacy Rights, 13 U. Pitt. J. Tech. L. & 30 siderable breadth. For example, a town’s efforts to Pol’y 1 (2013). regulate parachute jump sites, insurance, and other 5. See, e.g., John Villasenor, Observations from Above: elements of skydiving operations were invalidated Unmanned Aircraft Systems and Privacy, 36 Harv. J. L. & by a federal district court based on the doctrine of Pub. Pol’y 457 (2013); Margot E. Kaminski, Drone Feder- implied preemption. The court specifically noted “that alism: Civilian Drones and the Things They Carry, 4 Cal. the FAA views its authority as pervasive in the realm L. Rev. Circuit 57, 61 (2013); Alissa M. Dolan & Richard M. 31 of parachute jumping.” Similarly, a local ordinance Thompson II, Cong. Research Serv., Integration of Drones into that limited the frequency of commercial operations at the town’s airport—specifically targeted at an opera- Jol Silversmith ([email protected]) is a partner at Zuckert, Scoutt & Rasenberger, LLP, in Washington, D.C. The views expressed tor of warbird rides—was ruled to be preempted by herein are solely those of the author. The author thanks Alexander T. another federal district court.32 Additionally, the U.S. Simpson for his assistance.

Published in The Air & Space Lawyer, Volume 26, Number 3, 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. CCM Government Finance & Research Regulating Drone Use 259 Domestic Airspace: Selected Legal Issues 17–19 (Apr. 4, 2013). use of a UAV, see id. § 423.003(b), and up to 180 days in 6. The Villasenor and Kaminski articles each provides prison and a $2,000 fine for the distribution of images col- only an abbreviated discussion of preemption; see Villase- lected by a UAV, see id. § 423.004. nor, supra note 5, at 513–14; Kaminski, supra note 5, at 15. See Idaho Code Ann. § 21-213(1)(b)(ii), (4). Additionally, 63–64. See also Timothy T. Takahashi, Drones in the National the statute explicitly does not apply to model aircraft used for Airspace, 77 J. Air L. & Com. 489, 501 (2012) (discussing pre- sport or recreational purposes. See id. § 21-213(1)(a). emption but citing Cleveland v. Piper Aircraft Corp., 985 16. See 2013 Oregon Laws Ch. 686 § 15(2). F.2d 1438 (10th Cir. 1993), for proposition that the Federal 17. See Tex. Gov’t Code Ann. § 423.002. Aviation Act of 1958 has no general preemptive effect— 18. See id. § 423.002(a)(1), (13), (18). apparently unaware that Cleveland had been explicitly 19. See House Research Org., Regarding the Capture of abrogated by US Airways v. Donnell, 627 F.3d 1318, 1326 Images by Unmanned Vehicles and Aircraft 6–7 (May 7, 2013). (10th Cir. 2010)). 20. See, e.g., 14 C.F.R. § 91.501(b)(2) (specifying that 7. See U.S. Const. art. VI, cl. 2. “[a]erial work operations such as aerial photography or sur- 8. See, e.g., Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 365 vey” may be conducted for compensation under Part 91 of (3d Cir. 1999) (“the FAA and relevant federal regulations estab- FAA regulations); id. § 119.1(e)(4) (stating that “[a]erial work lish complete and thorough safety standards for interstate and operations,” including aerial photography or survey and international air transportation and . . . these standards are powerline or pipeline patrol, do not need to be conducted not subject to supplementation by, or variation among, juris- under Part 121, Part 125, or Part 135 of FAA regulations); id. dictions”). Additionally, to the extent that the FAA already has § 375.41 (requiring DOT permit to conduct “pipeline patrol, adopted requirements for unmanned aerial vehicles—and now mapping, surveying,” and similar operations within the U.S. is required to adopt new standards by 2015—the doctrine of utilizing foreign civil aircraft); Restricted Category—Aerial conflict preemption also may be applicable. Survey Special Purpose Operations, FAA Order 8110.40 (June 9. 49 U.S.C. § 40103(a)(1). 15, 1984) (clarifying conditions for issuing special type cer- 10. See City of Burbank v. Lockheed Air Terminal, Inc., tificates to aircraft for aerial surveying pursuant to 14 C.F.R. 411 U.S. 624, 639 (1973). See also id. at 627 (quoting stat- § 21.25(b)(3)); Facility Operation & Admin., FAA Order JO ute subsequently recodified at 49 U.S.C. § 40103(b) (the FAA 7210.3X, § 5-4-6 (Feb. 9, 2012) (stating procedures for han- “has been given broad authority to regulate the use of the dling flight requests for photogrammetric operations). navigable airspace ‘in order to insure the safety of aircraft 21. See FAA, Model Aircraft Operating Standards, Advisory and the efficient utilization of such airspace . . .’ and ‘for the Circular 91-57 (June 9, 1981). The FAA advises that model protection of persons and property on the ground . . .’”)). aircraft should operate at elevations below 400 feet, which 11. Additionally, 49 U.S.C. § 41713—originally adopted indicates that the agency’s jurisdiction extends to manned as part of the Airline Deregulation Act—expressly preempts and unmanned aircraft no matter at what height they oper- states and municipalities from regulating a “price, route, or ate. See also Pub. L. 112-95, § 334(c)(2)(C)(ii) (directing the service” of an air carrier. But, based on the definition of “air FAA to establish standards for the operation of public UAVs carrier” and related terms in 49 U.S.C. § 40102, UAVs used at elevations below 400 feet); 14 C.F.R. § 91.119(d) (provid- for surveillance do not appear to invoke this statute. ing that there is no minimum elevation for operations by 12. See Idaho Code Ann. § 21-213(2)(a) (2013). The statute helicopters and certain other categories of manned aircraft specifies that the prohibition includes “[a] farm, dairy, ranch so long as the “operation is conducted without hazard to or other agricultural industry.” See id. § 21-213(2)(a)(ii). The persons or property on the surface”). statute creates a civil cause of action, with damages in the 22. See Unmanned Aircraft Operations in the National amount of $1,000 or actual and general damages, whichever Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007); Airwor- is greater, plus reasonable attorney’s fees and other court thiness Certification of Unmanned Aircraft Sys. & Optionally costs. See id. § 21-213(3). Piloted Aircraft, FAA Order 8130.34C (Aug. 2, 2013); 13. See 2013 Oregon Laws Ch. 686 § 15(1). The stat- Unmanned Operations in the Nat’l Airspace Sys. (NAS), FAA ute creates a civil cause of action, with treble damages for Notice JO 7210.846 (July 10, 2013). any injury to person or property, plus attorney’s fees if the 23. See Small Unmanned Aircraft Sys. Rulemaking Comm., amount pleaded is $10,000 or less. See id. § 15(3)–(4). The FAA Order 1110.150, § 4 (Apr. 10, 2008). Oregon attorney general is also empowered to bring an 24. See FAA Says, Leave Those Drones Alone, http://www. action alleging nuisance or trespass. See id. § 15(5). avweb.com/avwebflash/news/FAA-Says-Leave-Those-Drones- 14. See Tex. Gov’t Code Ann. § 423.003(a) (West 2013). Alone220182-1.html (July 22, 2013). However, the FAA’s The statute creates a civil cause of action, with damages in “comprehensive plan” for UAVs (supra note 1) in passing the amount of $5,000 for the impermissible use of a UAV, stated that: “Although there is no Federal law that specifi- $10,000 for the distribution of images collected by a UAV, cally addresses privacy concerns with respect to civil UAS and actual damages if the distribution was with malice, plus operations, many states have laws that protect individuals reasonable attorney’s fees and other court costs. See id. § from invasions of privacy which could be applied.” 423.006. Additionally, violations of the statute can be pun- 25. As an aside, to the extent that Texas has suggested that ished criminally, by up to a $500 fine for the impermissible the FAA lacks experience in protecting personal privacy rights,

Published in The Air & Space Lawyer, Volume 26, Number 3, 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. CCM Government Finance & Research Regulating Drone Use 260 that assertion is not only of questionable relevance to preemp- municipal ordinance.” See Skysign, 276 F.3d at 1116. In any tion but inaccurate. The FAA proposed and solicited comment case, the Ninth Circuit historically has applied an atypically upon a privacy policy for UAVs as part of its mandate to inte- narrow reading to federal preemption in the context of avia- grate them into the national airspace system. See Unmanned tion, and thus has issued certain decisions that conflict with Aircraft System Test Site Program, 78 Fed. Reg. 68,360 (Nov. 14, those of other courts. See, e.g., Air Transp. Ass’n of Am., Inc. 2013). Moreover, the FAA has extensive experience in main- v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008) (finding Ninth taining confidential information in records of airmen and other Circuit’s narrow reading of section 41713(b) preemption to regulated individuals. See, e.g., Privacy Act of 1974: System of be inconsistent with Supreme Court precedent); Jol A. Sil- Records, 75 Fed. Reg. 68,849 (Nov. 9, 2010). versmith, Federal Preemption over Air Carrier Prices, Routes, 26. See City of Burbank v. Lockheed Air Terminal, Inc., 411 and Services: Recent Developments, 24 Air & Space Lawyer, U.S. 624, 633–34 (1973) (quoting Nw. Airlines, Inc. v. Min- no. 3, 2012 at 4, 5. nesota, 322 U.S. 292, 303 (1944) (Jackson, J., concurring) 30. See also Bart Elias, Cong. Research Serv., Pilotless (“Federal control is intensive and exclusive. Planes do not Drones: Background and Considerations for Congress Regarding wander about the sky like vagrant clouds. They move only by Unmanned Aircraft Operations in the National Airspace System federal permission, subject to federal inspection, in the hands 20 (Sept. 10, 2012) (“matters pertaining to the use of domes- of federally certified personnel, and under an intricate system tic airspace generally fall exclusively within its purview. . . . of federal commands. The moment a ship taxis onto a runway, This may make it particularly difficult for state and local it is caught up in an elaborate and detailed system of con- governments to restrict or regulate the use of drones.”). trols”). See also Airport Compliance Manual, FAA Order 5190.6B, 31. See Blue Sky Entm’t, Inc. v. Town of Gardiner, 711 F. § 13.2(a)(1) (“[t]he federal government has preempted the areas Supp. 678, 693 (N.D.N.Y. 1989) (citing 14 C.F.R. pt. 105). of airspace use and management, air traffic control, safety, and 32. See Price v. Charter Twp. of Fenton, 909 F. Supp. 498 the regulation of aircraft noise at its source”). (E.D. Mich. 1995). 27. 868 P.2d 1077 (Colo. 1994). 33. See US Airways v. Donnell, 627 F.3d 1318, 1327 (10th 28. Id. at 1082 (citing 14 C.F.R. § 91.311). See also Let- Cir. 2010) (citing 14 C.F.R. § 121.575). The court did frame ter to Don Marcostica from Rebecca B. MacPherson, FAA the issue as being one of safety; the regulation cited safety Assistant Chief Counsel (July 9, 2010), reprinted at 8 Fed. concerns in its legislative history, although not in its body. Av. Decisions I-725 (opining that a locality could not deny But the court also interpreted the concept expansively, a permit to conduct filming operations using manned heli- joining other courts in finding that “the comprehensive regu- copters, citing the FAA’s “pervasive and exclusively federal latory scheme promulgated pursuant to the FAA evidences regime over management and use of the navigable airspace, the intent for federal law to occupy the field of aviation safety, noise, and aircraft operations. . . . Local jurisdictions safety exclusively.” In any event, the FAA’s existing guidance do not have authority to regulate the use of navigable air- for model aircraft and UAVs specifically incorporates safety space or the safety of flight operations and local actions to concerns. See, e.g., Advisory Circular 91-57, supra note 19; do so would raise preemption questions”). Unmanned Aircraft Operations in the National Airspace Sys- 29. The Ninth Circuit reached a conflicting conclusion tem, 72 Fed. Reg. 6689, 6689 (Feb. 13, 2007). in both Skysign International, Inc. v. City and County of 34. An alternative to a court challenge potentially could Honolulu, 276 F.3d 1109 (9th Cir. 2002), and Center for Bio- be a request to the FAA for a declaratory order pursuant to Ethical Reform, Inc. v. City and County of Honolulu, 455 49 U.S.C. §§ 40113(a) and 46101(a). It does not appear that F.3d 910 (9th Cir. 2006), but they appear to be distinguish- such a procedure previously has been utilized for an implied able. Notably, the Skysign court framed the central issue as preemption issue, but DOT recently issued a declaratory the regulation of advertising rather than operations, and order citing these statutes while finding that an agricul- on that basis ruled that the FAA had not exerted its author- tural inspection fee imposed by Hawaii was preempted by ity to a degree that preempted local regulation; moreover, both 49 U.S.C. § 41713 and the Anti-Head Tax Act, 49 U.S.C. the court conceded that if the FAA were to adopt such regu- § 40116. See Hawaii Inspection Fee Proceeding, DOT Order lations, they “would control over an actually contradictory 2012-1-18 (Jan. 23, 2012).

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