Torqued: Unreasonable UAS Rules Promote Culture of Non-compliance
Within a week of the FAA’s heralding its milestone “achievement,” 1,000 so-called 333 exemptions to allow commercial use of unmanned aerial systems or drones, the agency issued a press release decrying what it calls the huge increase in drone sightings by pilots. According to the FAA, “pilot reports of unmanned aircraft have increased dramatically over the past year, from a total of 238 sightings in all of 2014 to more than 650” by the beginning of August this year. Aside from the fact that the FAA is encouraging reporting, as are aviation groups such as ALPA, which could account for the increase in sightings, the data itself is largely unvetted, with no FAA analysis that I’ve seen of any potential safety impact to the manned aircraft from any of these individual sightings. So, in my opinion, the value of this data for safety purposes is conjectural, at best.
In addition to questioning conclusions that can be drawn from the data, I also question the data itself. Are all these supposed drone sightings–even one at 10,000 feet–actually civilian drones, especially the small and popular consumer drones? It’s doubtful that they are the consumer drones that are selling by the hundreds of thousands in the U.S. and around the world, especially the small white or black drones that measure barely a foot in diameter and are hard for me to see at 300 feet when I know they’re there, let alone being seen from the cockpit of an airliner whizzing by at hundreds of miles per hour. It’s hard to spot single-engine aircraft, let alone tiny drones. I’ve investigated more than one midair in which manned aircraft did not see each other until it was too late–in fact, there have been two recent midairs where military jets collided with GA aircraft–so it’s hard to imagine distinguishing specks in the sky as drones, as opposed to, say, birds or balloons.
Wild West Airspace
But the point here is not whether airline or other pilots are actually seeing civilian drones, but that the greatest risk to aviation safety is the culture that the FAA is creating among small drone operators by failing to move forward with reasonable regulations to allow commercial operations. Air safety has always relied on voluntary compliance, and creating requirements that are unduly restrictive or even irrational (such as requiring a manned pilot certificate to fly a drone that can rest on the palm of your hand) creates a culture of non-compliance. But in addition to the culture of non-compliance with whatever the FAA believes the rules are, and disrespect for the FAA’s authority and interpretation of safety requirements, the biggest safety risk I see is an I-set-my-own-safety-rules culture. A Wild West in the skies is a danger to air safety.
I’m not alone in this concern. Last year, Politico raised the same concern, writing, “As small drone operators grow used to flying them without the FAA’s permission, they could become less inclined to comply with any rules the agency puts in place.” The article went on to quote Ted Ellett, former FAA chief counsel and now a partner at a large D.C. law firm, “Most people want to comply with the FAA rules, but the more the FAA acts like a big-daddy, behemoth government agency that is imposing excessive restrictions, the more the feeling of ‘I’m an American, they can’t tell me what to do’ kicks in. And that’s the real danger for the FAA.”
Since the Politico article was written, the FAA has come up with a process for getting commercial approval, a so-called 333 Exemption (named for the section of the statute that authorizes it). A 333 Exemption is fairly easy to get: anyone can copy and paste from approved applications posted on the FAA’s website, and the FAA’s process for approving aerial applications–other than closed-set movie requests–involves no vetting of applicants for their ability to understand and comply with the 333 Exemption’s conditions. However, for even the most conscientious operators, actual compliance with all the requirements is another matter altogether.
The difficulties of compliance are spawning many discussions on drone forums about whether it is better to operate commercially without a 333 Exemption or to get the exemption and just not comply with all the terms and conditions, of which there are literally dozens. Yes, people have given up hope of complying with FAA requirements, and the discussions focus on the best way not to comply. Some of the more commonly ignored 333 Exemption stipulations include the requirements for a pilot certificate; a spotter; registration of the UAS (yes, the FAA requires even drones weighing a few pounds to be registered just like manned aircraft); operating at least 500 feet from any person, vehicle or structure if permission for closer has not been obtained; filing a Notam before each flight; and submitting detailed monthly reports to the FAA. (The FAA requirement for monthly reports demands listing “all operating locations, to include…latitude/longitude.”)
In a recently released advanced notice of proposed rulemaking that proposes a “regulatory framework for the operation of drones as well as concrete proposals for the regulation of low-risk drone operations,” the European Aviation Safety Agency observes that overly restrictive regulations create a culture of non-compliance. The EASA proposes minimal regulations for low-risk operations, defined as those by drones weighing less than 25 kilos (55 pounds) under direct visual line of sight “operated a safe distance from persons on the ground and separated from other airspace users.” The EASA proposal, which makes a lot of sense to me, would treat hobby and commercial operations the same for drones weighing less than 55 pounds, on the theory that the commercial nature of the flight doesn’t affect risk the same way it does for manned operations. The EASA’s approach would mitigate risk by specifying operational requirements, similar to those already in force in the U.S. for hobby flights.
The EASA’s analysis: “The classic assumption is that only the traditional certification and licensing processes would mitigate…hazards and keep the aviation system safe. Even if certification and licensing conditions were kept as ‘light’ as possible, the traditional manned aviation approach is likely…too heavy [for] drones, especially [for] the small-drone market. The level of rigour applied to safety management in manned aviation (involving strict controls of aircraft design, production and maintenance; pilots; operations with (in most cases) ex ante licensing and continuous monitoring) is disproportionate to the risk posed by many drone operations. Overburdening low-risk operations leads to a climate of indifference or to illegal operations adversely affecting safety.”
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