Leonard Ligon and Tim Adelman, Attorney at Law have written the following white paper on a subject near and dear to us here at the sUAS News. The white paper highlights what many see as another example of possible incongruities in policy and regulations and their applicability concerning public aircraft and public UAS. Without question, a timely read on a subject that will be seeing more of the spotlight with the recent passage of the FAA reauthorization bill.
The points skillfully argued in the white paper raise more questions about the consideration the public aircraft stakeholder is being paid from the FAA. Frequent readers of the sUAS News are already well aware of double and possible triple standard’s as they are common maladies in so much as they leave some to wonder if this whole rulemaking/policy thing is being made up on the fly, as it were.
Can some of this be attributed to the FAA’s lack of an Administrative Procedures Manual? The AP manual, would add much needed continuity to the rulemaking process, and could further assist the FAA in meeting the goals set forth in their mission statement.
Another opportunity for interaction on the public safety subject…
I’d like to take this opportunity to invite those in the public safety sector to mark their calendars for a relevant discussion being hosted by
AUVSI at this year’s Unmanned Systems North America in Las Vegas and moderated by Mr. Ligon. This discussion will be an excellent opportunity for those thinking about or planning a UAS wing for their department or municipality to get educated about a complex subject.
The Law and Operating Unmanned Aircraft
In the US National Airspace System
Tim Adelman; Attorney at Law
Leonard Ligon; UAS Subject Matter Expert
University of Alaska, Geophysical Institute
This article addresses aviation law as applied to Unmanned Aircraft (UA) operating within the United States (US) National Airspace System (NAS). It further presents a review of the Federal Aviation Administration’s (FAA) authority to regulate UA flight operations by a government user (tribal, local, State or Federal). In addition, it touches on the liability of conducting UA flight operations in the NAS.
- FAA Authority to Regulate UAS Flight Operations
The FAA obtains its authority to regulate the NAS through statutes enacted by Congress. Therefore, any analysis of the FAA’s authority should begin with a review of the United States Code (USC). Based on statutory authority, the FAA’s responsibility is to implement regulations which carry out Congress’s intent.
Title 49 of the USC relates to Transportation. Subtitle VII relates to “Aviation Programs” and Part A of Subtitle VII relates to “Commerce and Safety.” It is in this section wherein the FAA obtains its authority to regulate the NAS.
49 USC §40103(b) states that “The Administrator shall prescribe air traffic regulations regarding the flight of aircraft for:
(A) Navigating, protecting, and identifying aircraft;
(B) Protecting individuals and property on the ground;
(C) Using the navigable airspace efficiently; and
(D) Preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.”
The important words in §40103(b) are “by regulation or order.” It is the FAA’s regulations and orders that govern the operation of aircraft in the airspace controlled by the FAA, not policies or guidance. Therefore, any analysis of whether an operation is permitted within the NAS should focus on the regulations and orders of the FAA. FAA policies, guidance’s, notices and advisories are simply documents used to provide guidance on how one might comply with regulations or orders. They are not law and are therefore not a foundation of legal enforcement. As one FAA attorney described, “Policies explain how the FAA may handle or interpret certain matters.”
In addition to providing general authority to the FAA, Congress also enacted statutes relating to the airworthiness and registration of aircraft, airmen certificates, and the definition of public aircraft.
The distinction between “civil” aircraft and “public” aircraft is essential in analyzing the FAA’s authority to regulate UA flight operations. 49 USC §40102 defines aircraft as “any contrivance intended, used, or designed to navigate, or fly in, the air.” This definition includes UA. Therefore, all statutes and regulations relating to “aircraft” include UA. Congress has further defined aircraft by distinguishing between “civil” and “public”. A “civil aircraft” is any aircraft except a “public aircraft.” A “public aircraft” includes:
- An aircraft that is used only for Government purposes.
- An aircraft that is leased or owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration.
The definition of “public aircraft” is further defined in 49 USCS §40125. §40125 states that “public aircraft” status is limited to operations that do not include commercial activity or the transportation of individuals who are not crew members or qualified non-crewmembers. The limitations excluding certain aircraft from public aircraft status do not apply to government UAS. Consequently, a government UA is a public aircraft and as such is subject only to the statutes and regulations relating to all aircraft, and not those that relate solely to “civil” aircraft.
Notice also that §44711 prohibits a person from operating a “civil aircraft” without an airworthiness certificate. In addition, §44711 prohibits a person from acting as an “airman with respect to a civil aircraft.” The statute does not say “aircraft.” It includes the qualifier, “civil”! As such, there is no statute prohibiting the operation of a “public aircraft” by the government user.
To best understand the distinction between “civil” and “public” aircraft, it is worth examining the testimony before Congress of the FAA’s own Associate Administrator for Aviation Safety, Nicholas A. Sabatini, on June 2, 2004. This following an accident by two air tankers being used by the Forest Service and the Department of Interior. The air tankers were military surplus aircraft being used by a government agency for a government mission. As such, the aircraft were deemed public aircraft.
In 2002, the wings on two air tankers separated during flight, causing fatal accidents. It was determined that the cause of the wing separation was fatigue cracks in the wings. The Congressional Committee on Commerce, Science, and Transportation held a hearing regarding the role of the FAA in safety oversight of Forest Service firefighting operations.
Mr. Sabatini prepared a written statement describing the FAA’s authority with regards to public aircraft. Excerpts taken from that statement follow:
“From the very beginning and at all times during the existence of the FAA, there has been a clear statutory distinction between civil and public aircraft operations. FAA has regulatory and oversight authority over civil aircraft operations. Public aircraft operations are conducted by or on behalf of many different government agencies and departments…..
By statute, authority for the safety oversight of these operations belongs to the agency or department responsible for their operation. While FAA can and does provide technical support to assist other agencies with their safety oversight responsibilities, the law is quite clear that the FAA cannot direct or compel another agency to impose specific safety requirements or force them to meet existing FAA requirements…..
Military (ex.: Government) aircraft are not required to meet FAA design standards or to receive an FAA type certificate…..
The difference is that with a public aircraft operation, ensuring that the government is meeting the safety standards falls to the agency on whose behalf the operation is being conducted, not the FAA.”
Mr. Sabatini’s statements are still today echoed by the FAA’s Certification and General Aviation Operations Branch, AFS-810. AFS-810 maintains that its authority to regulate public aircraft is limited to the authority granted to it by Congress. Therefore, the FAA may regulate how public aircraft interact with “civil” aircraft (i.e., the rules of the road), but the FAA does not regulate public aircraft airworthiness or airman qualifications. Consequently, Congress does not require the pilot of a public aircraft to hold an airman certificate, including any medical certificate requirements.
However, since the FAA is responsible for ensuring the safety of the NAS, the FAA does regulate how all aircraft cooperate with each other. This is accomplished primarily through Part 91 regulations – “General Operating and Flight Rules.”
Part 91.1 states “this part prescribes the rules governing the operation of (all) aircraft within the US… Each person operating an aircraft ~ shall comply with Part 91.”
There are two regulations that are of particular significance to UA flight operations:
- §91.13 – “Careless or Reckless Operation”
(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.
(b) Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of an airport used by aircraft for air commerce (including areas used by those aircraft for receiving or discharging persons or cargo), in a careless or reckless manner so as to endanger the life or property of another.
§91.13 is the catch-all regulation that requires aircraft operators to not act in a careless or reckless manner. FAA’s general counsel office at an FAA meeting on UAS advised that operating a UA without adequate airworthiness or airman knowledge to ensure the safety of others and their property could be a violation of §91.13. The courts have limited §91.13 to “egregious misconduct where the potential for harm is incontestably high.” Therefore, the applicability of §91.13 has a relatively high threshold.
- §91.113 – “Right-of-Way Rules: Except Water Operations”
(a) Inapplicability. This section does not apply to the operation of an aircraft over water.
(b) General. When weather conditions permit, regardless of whether an operation is conducted under instrument flight rules or visual flight rules, vigilance shall be maintained by each person operating an aircraft so as to see and avoid other aircraft. When a rule of this section gives another aircraft the right-of-way, the pilot shall give way to that aircraft and may not pass over, under, or ahead of it unless well clear.
(c) In distress. An aircraft in distress has the right-of-way over all other air traffic.
(d) Converging. When aircraft of the same category are converging at approximately the same altitude (except head-on, or nearly so), the aircraft to the other’s right has the right-of-way. If the aircraft are of different categories, the following rules apply:
(1) A balloon has the right-of-way over any other category of aircraft;
(2) A glider has the right-of-way over an airship, airplane, or rotorcraft; and
(3) An airship has the right-of-way over an airplane or rotorcraft.
(e) Approaching head-on. When aircraft are approaching each other head-on, or nearly so, each pilot of each aircraft shall alter course to the right.
(f) Overtaking. Each aircraft that is being overtaken has the right-of-way and each pilot of an overtaking aircraft shall alter course to the right to pass well clear.
(g) Landing. Aircraft, while on final approach to land or while landing, have the right-of-way over other aircraft in flight or operating on the surface, except that they shall not take advantage of this rule to force an aircraft off the runway surface, which has already landed and is attempting to make way for an aircraft on final approach. When two or more aircraft are approaching an airport for the purpose of landing, the aircraft at the lower altitude has the right-of-way, but it shall not take advantage of this rule to cut in front of another which is on final approach to land or to overtake that aircraft.
Compliance with §91.113 has been central with regards to UA flight operations. In particular, §91.113(b) refers to the “see and avoid” obligations of all pilots. For the most part, “see and avoid” is accomplished by a pilot in the cockpit. A pilot may have resources available to assist him/her in “see and avoid,” such as collision avoidance equipment or radar, however, the FAA views these devices simply as aids and not a substitute for seeing and avoiding with one’s own eyes. Courts have held that §91.113(b) requires “the reasonably prudent pilot need not be super-human in seeing and avoiding other aircraft, but must scan the sky with such frequency and respond with such precision as is possible.”
Consequently, the pilot of a UA may “see and avoid” other aircraft and obstacles if the aircraft is operated entirely within line of sight. The issue of complying with “see and avoid” becomes less clear however when the UA is operated outside of line of sight. As such, alternative means of compliance may need to demonstrate that the pilot of a UA can “see and avoid” other objects, including aircraft, buildings, persons or surface vehicles.
Ultimately, the question of whether “see and avoid” is literally seeing an object with one’s own eyes or whether it is detecting an object or ensuring an object has not legally been answered. The fact that the FAA’s Unmanned Aircraft Program Office (UAPO) has already approved alternative means of compliance suggest that taking all precautions to ensure another object is not in the area of operation is reasonable to assume a “see and avoid” standard.
- UAPO’s Philosophy on UAS Operations in the NAS
The FAA clearly has authority to regulate the operations of some UA in the NAS, whether civil or public. This is clear inasmuch as UA deemed public aircraft are required to abide by the general operating regulations set forth in Part 91.
To answer the need of “getting a handle on the matter”, the FAA established the Unmanned Aircraft Program Office to focus on UAS certifications & qualifications, UA flight operations and to assist users in incorporating UA into the NAS. Presently, there are no regulations pertaining solely to UAS, their certifications & qualifications, UA flight operations, or the personnel that are needed to operate and maintain them. There are however, Policies, Guidance Documents, Notices, Advisories, and Interim Operational documents, but these are procedural in nature and are not necessarily legally binding. And because UA are deemed aircraft, they are required to comply with the regulations applicable to all aircraft.
The Certificate of Authorization (COA)
Presently the FAA uses an online version of FAA Form 7711-2; Certificate of Waiver or Authorization (COA) process as its sole method of permitting UA to operate in the NAS. The COA is essentially a waiver request when planning to operate in noncompliance with any FAA regulation(s). This online version of the 7711-2 is for UA flight operations only and is available only to select persons within each government organization that desires to operate a UA. Presently, the UAPO mandates:
Approvals are required inasmuch as UA are not compliant with various sections of Title 14 of the Code of Federal Regulations (14 CFR) and, therefore, require an alternate means of compliance. Most notably, the lack of an onboard pilot requires an alternate method of the “see-and-avoid” provisions of 14 CFR 91.113.
The online COA process in place today goes on to address airworthiness, airman qualifications, flight safety operation, and maintenance. As part of this process, the FAA is looking for assurance that the government agency that employs a UA has sufficiently mitigated the risk to other aircraft, property, and people. If the aircraft cannot comply with all applicable regulations, then the FAA looks to that government agency to employ a reasonable alternative means of compliance.
By way of example, the UAPO believes that to comply with “see and avoid,” a pilot must be in the cockpit of the aircraft, however, there is no legal authority for this opinion with respect to the government user. As an alternative means of compliance, the FAA has in the past approved radar observation, chase planes, chase vehicles, or direct line of sight by either the pilot or a qualified observer. The UAPO maintains the position that while these methods do not always conform to the present interpretation of “see and avoid”, they may be a reasonable alternative means of compliance.
The following is an overview of some of the requirements in the online COA process that while applicable to civil aircraft, ARE NOT applicable to public aircraft or their users:
- Airworthiness — the online application implies the requirement for a statement of airworthiness and a description of the applicant’s airworthiness policies and procedures.
- There is no regulation that requires a government agency that owns or leases a public aircraft to provide the FAA an airworthiness statement based on policies and procedures. With that said, it is advisable that each public entity operating a UAS conduct some manner of due diligence to ensure airworthiness.
- Pilot Certificate — the online application requires all UAS operators have a pilot certificate (FAA or government equivalent) if they are operating UA in Class A, C, D or E airspace, under instrument flight rules, at nighttime, beyond line of sight, or at any other time or under any other circumstance the UAPO determines the need.
- This requirement extends beyond the FAA’s authority to regulate pilots of public aircraft inasmuch as under FAA regulations, pilots and crew of public aircraft are not required to have a pilot certificate.
- Medical Certificate — the online application implies the pilot in command and observer both have a valid FAA Class II (or equivalent) medical certificate.
- This requirement extends beyond the FAA’s authority to regulate pilots of public aircraft inasmuch as under FAA regulations, pilots and crew of public aircraft are not required to have medical certificates.
- Flight Operations — The online application requires the government agency that owns or leases the UAS to obtain specific authorization to conduct UA flight operations in the NAS, except in restricted, prohibited or warning areas.
- There is no regulation that prohibits UA flight operations.
- If a government agency complies with all FAA regulations, then there is no authority for the FAA to prevent UA flight operations.
- Oceanic Operations/FIR — For those Oceanic flight information regions (FIRs) that the US has accepted responsibility for providing air traffic services, the FAA does mandate compliance with its regulations to all US registered aircraft.
- The UAPO has taken this mandate to require compliance with Interim Operational Approval Guidance 08-01 in its FIRs. In this the UAPO appears to exceed the FAA’s own regulatory authority.
- There are no US regulations prohibiting Public (or “State”) Aircraft UA flight operations.
- Only Article 3 of the International Civil Aviation Organization (ICAO) applies to US “State” aircraft over international waters, including those maintained by US ATC.
As you can see, there is no statutory or regulatory authority for many of the mandates that government agencies which intend to operate entirely within the framework of the applicable regulations comply with the online COA process. Compliance with the COA process does have its pros and cons however.
- As a benefit, compliance with the COA process may be used as evidence of compliance with the FAA’s regulations. If the FAA deems that the airworthiness, airman qualifications, flight safety operations, and maintenance are adequate, then it will be difficult for someone to argue that the government agency was negligent in operating the UA if those operations complied with the statements in the COA application. In particular, if the UAPO approves the operations as meeting the requirements of §91.113 or being conducted using reasonable alternative means of compliance, it will be difficult for someone to later argue that the government violated §91.113.
- The benefit of the COA process is also a “negative”. If a government agency does not obtain a COA and there is a claim of negligence, there is a greater burden on the faulted agency to demonstrate that it was not negligent. In addition, if the government agency fails to abide by the terms of the COA, it could be argued that such a deviation was negligent. It is more difficult to argue that a deviation was proper than it is to argue that an operation meets the requirements of the regulation.
For example, assume the government user is operating a UA within city limits and flight operations were initially being conducted entirely within line of sight of the operator. During a particular operation, the user clears the airspace using observers and then extends the UA operation beyond his/her own visual line of sight in order to observe an area inaccessible by sight. During the operation there is an incident; the UA crashes into a building or another aircraft. If the user had obtained a COA permitting operations only by line of sight, then the mission would have violated the COA. There would be a strong argument that operations of the UA could only be conducted in a reasonable manner via line of sight because that is all the FAA would approve as an alternative means of compliance. The burden would likely shift to the government user to prove that the deviation was reasonable and still complied with the “see and avoid” requirements.
Assume the user did not have a COA. The user would be able to argue that clearing the area with the use of observers was a sufficient means of “see and avoid.” There would be no presumed evidence of negligence because the FAA had previously commented in other COAs that the use of observers was a reasonable alternative means of compliance.
While not having approval by the FAA for an alternative means of compliance may provide more room to argue the operations were safe, it also means that the government user will be proceeding without assurances that its operations comply with the regulations applicable to public aircraft.
- Liability for Operating a UAS
There are two types of liability applicable in these instances: (a) regulatory liability and (b) tort liability.
The Congress provided the FAA with the authority to enforce its regulations and orders. The primary method of enforcement is through civil monetary penalties and sanctions against certificates. For civil operators, the most effective way to mandate compliance is by threatening action against an individual’s airman certificate or a company’s airworthiness or operations certificate. This method of enforcement is not as applicable nor as effective when enforcing regulations against public aircraft and government agencies since they are not required to have airman certificates or airworthiness and operations certificates.
In addition to concerns about operating UAS in compliance with FAA regulations, there is also concern about liability from an accident involving a UA. This section provides a brief overview of the potential liability arising out of the operation of a government owned UAS.
It is important to understand that accidents happen and that someone is not always liable for an accident. The phrase, “the mere happening of an accident does not mean negligence,” is important to remember in analyzing tort liability. Generally, a person or entity may be liable for the damages caused by the person or entity’s unreasonable action or inaction. However, traditional concepts of negligence law do not directly relate to government liability.
The law provides a limited waiver of the federal government’s sovereign immunity, allowing the government to be sued in limited cases. The US cannot be sued in a tort action unless it is clear that Congress has waived the government’s sovereign immunity and authorized the suit.
Tort Liability – Applying the Federal Tort Claims Act (FTCA) to the Government UAS
The public agency may determine airworthiness of its aircraft. Determining airworthiness not only involves the general design of the aircraft but also determines whether the aircraft can be operated in a safe manner. Although some in the FAA may argue that airworthiness involves a finite set of established procedures, the law is clear in that public agencies need only resolve the matter to their own satisfaction.
- Airman and Maintenance Personnel Qualifications
The level of knowledge and experience required by a UAS operator and ancillary personnel for the government will be at the discretion of the government. Ultimately, there are no regulations or standards that are directly applicable to government agencies.
There is not a defined and analyzed body of law applicable to UAS. While regulations currently exist on how aircraft shall operate in the NAS, the regulations do not intuitively apply to UAS. By working closely with the FAA, the government will be able to obtain guidance regarding approved methods of alternative means of compliance with “see and avoid” and other applicable regulations. And by working closely with local FAA Air Traffic offices such guidance will be invaluable in creating a safe government UAS program.
While the FAA is certainly within its authority to comment on airworthiness and airman qualifications, the ultimate responsibility rests with the government user that will lease or own, and ultimately operate the UAS. Therefore, it is important for the government to develop its own comprehensive program that trains the users to fully understand the policies and procedures for operating UAS in any class of airspace within each user’s area of responsibility.