Drone Industry Worried About FAA Reauthorization Bill Amendments, Tax Items
The Senate's Federal Aviation Administration reauthorization package contains many provisions benefiting the drone industry, but some industry officials are concerned the inclusion of renewable energy tax credits could hold up passage next week as some expect. They're also worried about specific amendments that could affect their industry. Several observers we interviewed pointed to problems with two filed amendments, one that weakens federal statutes pre-empting state and local regulations of drones and another that guts an air carrier authorization certification program.
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“There are a fair number of issues that may be sticking points and may forestall this process, and there are constituencies and stakeholders that have strong feelings on these issues -- including tax extenders and [air traffic control] reform," said Small UAV Coalition spokesman Michael Drobac, a lawyer at Akin Gump. "But the bill that was produced by the Senate Commerce Committee Chairman [John] Thune and ranking member [Bill] Nelson is a very strong bill that has a number of great UAS actions, and we think it will only be made stronger with some of the amendments by those who want to see the promotion and success of [unmanned aircraft systems] technology."
An attorney who works on drone issues said he has heard a deal is coming together on the energy tax provisions, and if one does come together hopefully it brings enough support so it "doesn't crater the entire FAA reauthorization package. But we'll just have to kind of wait and see." Asked about the progress of the FAA package in the Senate, an aide said "we feel good about the process at this point."
Observers said they don't think pushback by state and local officials would affect federal pre-emption of state and local laws and regulations on drones. In mid-March, the National League of Cities and U.S. Conference of Mayors sent a letter to Thune and Nelson, voicing concern over the Senate bill pre-emption of their local authority. The associations said that "municipalities must retain their longstanding authorities to impose reasonable and appropriate zoning regulations in the future." But Wiley Rein attorney Joshua Turner emailed that "the federal government has long occupied the field when it comes to regulating aircraft safety." He said "it would be helpful to have Congress underline and clarify the scope of federal preemption when it comes to unmanned aircraft, specifically, but given the history I don’t really understand the objection to restating federal primacy in this area."
Observers told us Sen. Dianne Feinstein, D-Calif., drafted and filed an amendment. An industry source said it would "erode" Section 2152 of the Senate bill. "Subsection a" of Section 2152 says "no state or political subdivision of a state may enact or enforce any law, regulation, or other provision ... relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance" of a drone that includes airspace, altitude, flight paths and other elements. The source said the language is "essential for the industry to start working with the FAA to really put out there where the swim lanes are for the feds, states and municipalities" and Feinstein's possible amendment would "circumvent what's been an established statute for a number of years."
"For all practical purposes, it does make the preemption in the language somewhat useless to the underlying bill," said the lawyer who works on drone issues. The amendment leaves in place federal pre-emption of laws on manufacture and design of drones, but weakens provisions on the use and operation of such vehicles, which is what many governments are mainly trying to regulate.
The Senate aide told us state and local authorities need to look at "subsection b," which says state and local authorities aren't precluded from enforcing laws as long as they don't single out drones or specific aircraft technology. The aide said state and local authorities can still make and enforce laws on "nuisance, voyeurism, privacy, data security, harassment, reckless endangerment, wrongful death, personal injury, property damage" and others listed in the subsection. It's about "focusing on bad behaviors rather than regulate specific technologies," the aide added.
Industry officials also cited a filed amendment by Sen. Joe Manchin, D-W.Va., that would essentially "gut" a provision directing the Department of Transportation to develop a streamlined air carrier authorization certification program that would allow companies, for instance, to deliver packages. The lawyer said the provision now says the FAA "shall" expedite rulemaking on this program, but Manchin's amendment would change that to "may." The lawyer said if left up to the FAA, the agency is "very reticent" to open up the industry.
Meanwhile, industry officials said they looked favorably on an NTIA multistakeholder process to develop privacy best practices for commercial and private use of drones. They said the postponement of what was to have been Friday's meeting (see 1604050027) was positive because the stakeholders -- industry groups and private and civil liberties advocates -- are working together to reach consensus. But one official said a provision in the Senate bill to require recommendations from the stakeholders for additional legislation and regulation could "undermine the entire premise for convening this process."