When is an Aircraft Not an Aircraft?

Issues in Drone Regulations
By Ryan Aggergaard

One of the most talked about emerging fields of aviation right now deals with drones and the law. The ever increasing prevalence of drones in both civil and public use continues to drive questions asking when, where, and how drones can be operated, and by whom. High profile announcements and incidents—use of drones for retail delivery, recording video footage of parks, college campuses, and sporting events, uses by law enforcement and other agencies, and alleged near collisions with commercial aircraft—serve to keep discussion of drones in the public view.

The significant commercial opportunities presented by drones are readily apparent to most observers. At the same time, concerns about safety, noise, and privacy from regulatory agencies and consumer advocates drive the discussion toward the legal and regulatory framework that should apply to drones and their operation. As the Federal Aviation Administration and other agencies seek to promulgate regulations and advance policies to address the growing use of drones in the United States, it will be important and valuable for the maintenance community to remain up to date on the current status of these aircraft.

The first thing that must be remembered is that at this time there are very few regulations that apply specifically to drones, or Unmanned Aircraft Systems (UAS). The FAA Modernization and Reform Act of 2012 (the FAA Modernization Act) specifically ordered the FAA to begin developing a comprehensive plan to integrate UAS into the National Airspace System. Part of this plan involves the issuance of a Notice of Proposed Rulemaking to implement the contents of that plan. In its comprehensive report to Congress, the FAA anticipated that the Notice of Proposed Rulemaking (NPRM) would be issued sometime in the year 2014. To date, that NPRM has not been issued.

Notwithstanding the absence of UAS-specific regulations, the FAA has still proceeded to implement and enforce policy over the operation of UAS in the United States. Such authority is claimed under the FAA’s safety mandate and its statutory authority to regulate both aircraft and airspace. Recently, however, questions have arisen as to whether certain UAS are considered aircraft under the statutory and regulatory definitions, and whether certain UAS may be exempt under the FAA’s own policy. It is upon this question that much else turns, and so it is this question we will address in this article.

Title 49 of the United States Code defines “aircraft” as “any contrivance invented, used, or designed to navigate or fly in the air.” The Federal Aviation Regulations offer a similar, though not identical, definition of “aircraft,” defining it as “a device that is used or intended to be used for flight in the air.” It must be noted that in neither of these broad definitions is there any requirement that the aircraft be manned. The plain language of both statute and regulation would therefore appear to encompass UAS. This can be contrasted with regulations in some other countries that specifically require a person to be on board a vehicle for it to be legally considered an aircraft.

 

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