September 6, 2013

September Fiscal Fights in Congress Threaten to Ground Tribal Plans for Drones

Holland & Knight Alert
Philip Baker-Shenk

Domestic use of drones by Native American Indian tribal governments for resource management and public safety may be grounded before takeoff, at least for a while, by fiscal dogfights and privacy concerns that will play out later this month in the U.S. Congress.

The Senate's version of the appropriations legislation for the Federal Aviation Administration (FAA) would delay most civilian drone use for at least one more year while the FAA prepares a new report to Congress on the privacy implications of civilian drone use. Meanwhile, the House of Representatives is considering legislation that would direct the FAA to make "measurable progress" toward integrating unmanned aerial vehicles — or "UAVs" — into U.S. airspace.

Current Status of Domestic Drone Operation

Under current law enacted in 2012, the FAA may only approve UAV operations by issuing (a) special airworthiness certificates for experimental research and development, training and flight demonstrations, or (b) certificates of authorization or waiver for public aircraft. Most tribal government operations do not qualify for approval under either form of license; a 2011 memorandum from FAA's assistant chief counsel concluded that tribes are not eligible to operate public aircraft because the statute does not specifically include tribes among the eligible federal, state and territorial governments.

Working UAV drones exist and are available for purchase today. They generally involve aircraft, some as small as a laptop, that do not carry a human operator but instead fly autonomously or are remotely piloted. FAA guidance allows UAVs to be flown for recreational/non-business purposes so long as they are kept below 400 feet and are flown a sufficient distance from populated areas and full scale aircraft. Recently, however, the FAA banned experimental journalism classes at the University of Nebraska and the University of Missouri from operating UAVs without an FAA license.

The last time Congress debated the use UAVs was the 2012 FAA Modernization and Reform Act. The law requires the FAA to begin preliminary planning to integrate UAVs into the national airspace by establishing six test ranges. On July 26, 2013, the FAA approved the first commercial UAV operations in U.S. airspace, for research in the Arctic.

The pending Senate FAA appropriations bill acknowledges the many useful benefits UAVs may have in the United States, but would prohibit the further use of any federal funds to integrate UAVs into the national airspace until the Department of Transportation submits a report to Congress evaluating their effect on individual privacy. The report would be due no later than one year after enactment of the bill.

Looking Over the Horizon

The commercial and governmental markets for UAVs are growing and their potential uses are endless, but the congressional debate and FAA policymaking on the use of UAVs in 2014 will significantly affect the UAV manufacturing and user communities. Specifically, they will affect whether and when UAVs will become a lower-cost alternative for aerial resource management and public safety.

Relatively inexpensive UAV platforms would open up new opportunities for crucial tribal government services best provided with aerial support. From wildlife and crop and species management, public health and safety response, and trespass deterrence involving poachers and artifact thieves to search and rescue operations and emergency and disaster mitigation, UAV photography can help Indian country bring more accurate, useful and responsive information to tribal governments at a lower cost. 

Tribal governments require a seat at the table as Congress and federal regulators examine privacy and safety concerns in regulating domestic drone use. Congress needs to know that UAV technology provides a safe, non-intrusive, lower-cost means for tribal governments to obtain important information they need to govern more effectively. Like all other governments, tribes should have access to the best tools available to carry out self-governance.

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