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.