The United
States Senate passed H.R.636, the Federal Aviation Administration
Reauthorization Act of 2016 (“Reauthorization Act") on April 19, 2016. The Reauthorization Act contains many key provisions
which, should they survive the committee process (The House of Representative’s
version, entitled the Aviation Innovation, Reform, and
Reauthorization Act of 2016 was reported from committee on February 11,
2016.) The Senate version is substantially
different from the House version. The following
is a series of posts which will provide an analysis of each of the major
provisions in the Senate version relating to UAS.
One key
provision of H.R. 636 is Section 2152,
entitled “Effect On Other Laws.” This
section in no uncertain terms establishes the federal preemption of the rules
governing unmanned
aircraft systems.
SEC. 2152. EFFECT ON
OTHER LAWS.
(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.
(b) Preservation of State and
Local Authority- Nothing in this subtitle shall be construed to limit a State
or local government's authority to enforce Federal, State, or local laws
relating to nuisance, voyeurism, privacy, data security, harassment, reckless
endangerment, wrongful death, personal injury, property damage, or other
illegal acts arising from the use of unmanned aircraft systems if such laws are
not specifically related to the use of an unmanned aircraft system.
(c) No Preemption of Common Law
or Statutory Causes of Action- Nothing in this subtitle, nor any standard,
rule, requirement, standard of performance, safety determination, or
certification implemented pursuant to this subtitle, shall be construed to
preempt, displace, or supplant any State or Federal common law rights or any
State or Federal statute creating a remedy for civil relief, including
those for civil damage, or a penalty for a criminal conduct. Notwithstanding
any other provision of this subtitle, nothing in this subtitle, nor any
amendments made by this subtitle, shall preempt or preclude any cause of action
for personal injury, wrongful death, property damage, or other injury based on
negligence, strict liability, products liability, failure to warn, or any other
legal theory of liability under any State law, maritime law, or Federal common
law or statutory theory.
While
there are concession so lawmakers such as Senator Dianne Feinstein that wanted
to vest control of UAS regulation in the state and local authorities, the Federal
preemption of UAS regulation os clear
and well-grounded.
This is consistent with FAA’s well-established position on federal preemption of UAS. For instance, the FAA issued its State and Local Regulation
of Unmanned Aircraft Systems (UAS) Fact Sheet, Federal Aviation Administration,
Office of the Chief Counsel, on December 17, 2015 (“FAA UAS Regulation Fact
Sheet”. In the FAA UAS Regulation Fact
Sheet, the FAA set out clearly the basis for the need for federal preemption:
Substantial
air safety issues are raised when state or local governments attempt to
regulate the operation or flight of aircraft. If one or two municipalities
enacted ordinances regulating UAS in the navigable airspace and a significant
number of municipalities followed suit, fractionalized control of the navigable
airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions
could severely limit the flexibility of FAA in controlling the airspace and
flight patterns, and ensuring safety and an efficient air traffic flow. A
navigable airspace free from inconsistent state and local restrictions is
essential to the maintenance of a safe and sound air transportation system. See
Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French v.
Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); see also Arizona v.
U.S., 567 U.S. ___, 132 S.Ct. 2492, 2502 (2012) (“Where Congress occupies
an entire field . . . even complimentary state
regulation
is impermissible. Field preemption reflects a congressional decision to
foreclose any state regulation in the area, even if it is parallel to federal
standards.”), and Morales v. TransWorld Airlines, Inc., 504 U.S. 374,
386-87 (1992).
As discussed elsewhere in this blog,
Federal preemption is perhaps the most important legal topic in our nation of
laws, and the we will now have to wait and see how forcefully the final FAA
Reauthorization Act legislation embodies
this authority.
