FAA Reauthorization Act Would Prohibit States from Passing Drone Regulations

A provision in the Senate version of the FAA Reauthorization Act (S.2658) would negate the ability of state and local governments to enact any regulation governing “unmanned aircraft systems” – drones.

The language, in Section 2142 titled “Effect on Other Laws,” states:

(a) Federal Preemption.—No State or political subdivision of a State may enact or enforce any law, regulation, or other provision having the force and effect of law relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.

Another subsection specifies that state or local laws governing “illegal acts arising from the use of unmanned aircraft systems” would not be affected; this includes, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, and property damage. State and local statutes governing civil court actions stemming from those violations would similarly remain intact.

The bill is still in committee, and likely will be for some time – the Senate is in recess until April 4. The House version of the reauthorization bill (H.R. 4441, also known as the AIRR Act) does not at this point contain this provision.

Already, state and local entities are voicing their opposition to this provision. 26 states and a growing number of cities have already passed their own drone-related regulations, and almost all 50 states have considered legislation.

Representatives of the National League of Cities, together with the United States Conference of Mayors, conceded that certain standards should be regulated by the federal government, such as rules about the manufacture and safety of drones. The groups sent a letter on March 15 (the day before the Senate Committee on Commerce, Science, and Transportation marked up the bill) voicing their opposition to the pre-emption of state and local authority.

They stated, “municipalities must retain their longstanding authorities to impose reasonable and appropriate zoning regulations in the future. Much like automobiles and land use development regulations, local leaders know best how to regulate issues that affect their residents in their own backyards.”

They went on to assert that while some municipalities have passed their own drone regulations, they have not been broad in scope and do not merit the intrusion that the measure would pose – which the two organizations called an “overly broad and unsubstantiated preemption of local authority.” They expressed concern over the establishment of a federal regulatory structure before issues surrounding unmanned aircraft systems were fully understood by the federal government or by the municipalities it was seeking to pre-empt.

Drone manufacturers are likely to oppose additional rules concerning manufacturing and registration of personal drones; businesses hoping to make innovative use of the technology (such as Amazon) may welcome the standardization of regulations. They will certainly approve of the provision recognizing the potential benefits of allowing commercial drone operators to fly beyond line of sight and at night, which also establishes testing standards and testing sites for those flights.

Other sections of the bill relating to drone regulation include requiring drone operators to pass an online test before receiving a registration allowing them to fly, an idea which was recommended by the Airline Pilots Association in February. The bill does not address an amendment to the House version of the bill which would create a “micro drone” classification, and in fact, would limit the ability of hobbyists, small manufacturers, and school programs from building their own systems.

Section 44803, subsection G states:

“It shall be unlawful for any person to introduce or deliver for introduction into interstate commerce any unmanned aircraft manufactured on or after the date that the Administrator adopts a relevant consensus standard under this section, unless the manufacturer has received approval…for each make and model.”

The bill does establish certain protections (Section 44808) for recreational use of what they classify as “model aircraft,” barring the FAA from passing rules specific to model aicraft as long as those meet certain requirements, including: that the aircraft is flown solely as a recreational or hobby use, not flown beyond visual line of sight, does not interfere with any manned aircraft, not flown higher than 400 feet in altitude, and others.

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