Legal ABC’s of UAS Operator Liability · • FAA’s B4UFly mobile app • Educate commercial...

Legal ABC’s of UAS Operator Liability Presented by:

Erik Dullea

© 2019 Husch Blackwell LLP

Agenda • Administrative Considerations and

Requirements • FAA Compliance, MSHA Compliance, State Agency

• Business Considerations • Do you go in-house or contractors?

• Civil and Criminal Liability • Trespass and Nuisance Claims • Local Law Enforcement interactions • Injuries and Accidents • OSHA inspections using UAS


Terminology

Remember: The airborne device is just a platform to maneuver a sensor or tool. Businesses use the best platform to reach the location or perform the task.


Construction and mining are the fastest growing industries for commercial drone use

(DroneDeploy.com)


“With Great Opportunity Comes Great Responsibility”

• Legal Items • FAA Enforcement and Compliance

• All Unmanned Aerial devices are “aircraft” to the FAA • All commercial aircraft must be operated by a certified airman • For Commercial UA operations

• Operator must have a Remote Pilot Airman Certificate (RPAC)

• Conflicting federal, state, local rules • Standoff distances from people and structures vary

• Operational Items • Civil Liability Potential (property owners, bystanders) • Perpetually changing job site conditions

• Weather (clouds, winds, temperature, humidity) • Flight Performance (weight and balance, altitude)


Responsibility!! Who is going to stop me?


Wave of Opportunities in Counter-Drone Technology

• While UAS platforms have beneficial uses, there are potential dangers: • Terrorists could mount grenades on a UAS and drop them with

up to 5km away from the remote controller.

• UAS can encroach on airports and flight corridors • Disrupting normal operations

• Causing midair collisions, which may lead to losses of lives

• UAS operations can invade people’s privacy, intrude on protected places, events or specifically target critical infrastructure

• Counter drone technology can detect, localize, track and/or ‘interact’ with rogue drones in many ways.


$200,000!!

Responsibility? Can I afford this??


• Below 400’ AGL • W/in 400’ of a

structure • Possible

headache for quarries and open pit mines

Where Can I Fly?


Flying Below the FAA’s Radar: • UAS underground mining

operations are not regulated by the FAA.

• Confirmed in the FAA’s 2018 Authorization Act (Thunder Bay, Ont.)


Flying Below the FAA’s Radar:

• Open-air pits are a gray area.


Regulation Priorities for the FAA

• Nighttime Operations • Beyond Visual Line-of-Sight

(BVLOS)

• Operations over People • Multiple UAS Controlled

by One Pilot


Options for Advanced Operations • Anyone here from Alaska?

• Permanent zones in Arctic • 24-hour UAS operations

• Over-water flights up to 2,000’ AGL

• BVLOS to be allowed

• Public entities to operate tethered UAS without a waiver • May eventually expand to

commercial uses


Privacy Concerns – Not FAA Enforced

• FAA’s mission is aviation safety, not privacy • Part 107 does not specifically deal with privacy issues for drones • No UAS regulations on data collection on people or property

• FAA is promoting a privacy education campaign • FAA’s B4UFly mobile app • Educate commercial pilots on privacy during certification process • Issued guidance to local and state governments on privacy

issues

• FAA encourages UAS pilots to check local and state laws • Examples: remote sensor technology or photography


https://faadronezone.faa.gov/#/ Registration Information

http://knowbeforeyoufly.org/ Operational Information and

Training Resources


Know Before You Fly • Small UAS (0.55 lbs < weight < 55 lbs)

• UAS weight includes payload • UAS Operator must have

• Remote Pilot Aircraft Certificate (RPAC), or • Be under direct supervision of an RPAC pilot

• Cannot operate over non-participants • Airspace Rules

• Class G airspace operations allowed without ATC permission;

• Class B, C, D, and E airspace flights allowed w/ ATC approval

• Max. alt: 400’ AGL or w/in 400’ of a structure • Daylight operations only • Remain in the Visual Line of Sight at all times • RPAC pilt can only command 1 UAS per flight


Remote Pilot Airman Certificate • Qualifications:

• Demonstrate aeronautical knowledge by either:

• Passing an initial aeronautical knowledge test

• Hold a part 61 pilot certificate, complete a flight review within the previous 24 months, and complete a UAS training course

• Be vetted by the TSA

• Be at least 16 years old


Certificate of Waiver • UAS operators who want to fly outside the

requirements of the Small UAS Rule (Part 107) may request a waiver and/or airspace authorization • Most common waiver: night operations

• FAA publishes interactive maps to show what airspace can be utilized for UAS operations • https://faa.maps.arcgis.com/apps/webappviewer/inde

x.html?id=9c2e4406710048e19806ebf6a06754ad


How to Apply for Waiver • For simple waiver, apply online at

https://www.faa.gov/uas/request_waiver/ • Review the below list of regulations subject to waiver before

applying – like PFMs, waivers are regulation specific • Waivable sections of part 107 • Operation from a moving vehicle or aircraft (§ 107.25)* • Daylight operation (§ 107.29) • Visual line of sight aircraft operation (§ 107.31) • Visual observer (§ 107.33) • Operation of multiple small unmanned aircraft systems (§ 107.35) • Yielding the right of way (§ 107.37(a)) • Operation over people (§ 107.39) • Operation in certain airspace (§ 107.41) • Operating limitations for small unmanned aircraft (§ 107.51)


Application Transparency • FAA publishes all approved waivers on its website

• https://www.faa.gov/uas/request_waiver/waivers_granted

• FAA will publish accepted applications on its website • Good resource for aspiring applicants • Will not reveal proprietary or commercially sensitive

information • When applying for an FAA waiver, cover 3 things:

• Safety

• Safety

• Safety


Recent Developments in 2018-2019 • 2018 National Defense Authorization Act (NDAA).

• Encoded registration & marking requirements for sUAS

• 2018 Federal Aviation Administration Reauthorization Act • Advanced operations (Arctic areas);

• Data privacy protective measures required;

• Public UAS operations – agency operations (OSHA?);

• Safety standards – detection & identification

• 2019 NPRM issued • Would authorize night flying and flights over people


Federal Versus State Concerns • Recent Developments on FAA Preemption • Singer v. City of Newton MA, Sept. 2017

• Congress declared that Fed. Gov’t has exclusive sovereignty over US airspace and aviation regulations

• State/local are not barred in toto, but • Courts agree Congress controls most aviation law

• 2012 Modernization & Reform Act • Directed FAA develop UAS integration plan

• Newton’s ordinance involved safety and operations • Aviation safety is a federal topic, not state/local


Business Concerns Beyond the “Flight”

• Cybersecurity – “Data is the new oil” • Protecting Intellectual Property

• Use of data policies • FAA Reauthorization Act calls for

a plan on cybersecurity • How many communication ‘links’ are

used on a single flight? • Leasing or service providers

• Employment Policies and Contracts • Insurance Coverage


Responsibility for UAS Operations

• Do you handle the job in house? • Increased Complexity • Increased liability

• Regulatory Compliance • Risk of Civil Penalties (anywhere

between $400 and $200,000)

• Liability in the event of an incident/accident • Contract with a 3rd party for UAS services?

• Delegates compliance but … • Contract terms with UAS service provider are critical

• Trend in 2018 was moving towards in house operations


Contractor Considerations • Operator’s Duty to Comply with the law and regulations

• FAA Part 107 regulations • Common law liability

• Insurance Coverage • Sufficient for incident / accident? • Does their coverage list customers

(you) as an additional insured? • Indemnification for the UAS pilot?

• Protecting Intellectual Property • Who owns the data collected by the UAS operations? • Who has a license to use the data?

CONTRACTOR

HISTORY


Civil Liability

UAS versus Jogger

Planes, Trains and UAS

Drone’s Near Miss with Jet Spurs Call to Tighten Laws By Alan Levin | Feb. 15, 2018 Video from a drone that flew within feet of an airliner over Las Vegas … spurred three lobbying groups to call for tighter regulations


Civil Liability For Accident • Potential negligent acts include:

• Operating a UAS in violation of the FAA guidelines (Negligence per se)

• Failing to maintain UAS, which leads to a malfunction

• Permitting somebody without proper training to operate your UAS

• There are intentional torts which could apply: • Trespass, Nuisance, Assault, Battery, Invasion of Privacy,

and Fraud

• Products liability actions against manufacturers


Criminal Liability – It Is Possible!!


Areas for Legal Assistance

• Compliance checks regarding FAA regulations • Obtain insurance with correct coverage

• Ranging from standard policies to policies

purchased for individual flights

• Contract with third-party UAS operators

• Part 107 waivers (BVLOS, night)


What if You Have a UAS Accident? • Does this involve your worksite and employees?

• Are you under MSHA or OSHA Jurisdiction? • Do you have a reporting requirement? • OSHA 24 hour reports – loss of an eye

• Was the UAS operated by a contractor? • You may have adverse legal interests. • Control information and access by default.

• Take control of your site • Preserve the scene • Don’t let anyone move anything unless for safety

• Document. Take photos (not privileged!). • Get counsel involved ASAP.


Your contractor Has a UAS Accident

• You may be more experienced with accident / injury procedures

• Discuss investigation protocols and plans to interact with agencies • Determine contractor’s role

• Who writes the accident report?

• Who writes the RCA?

• Consider joint defense agreement • Re-evaluate the relationship?


Inspectors Using Drones!!! • 2018 OSHA initiative to allow CSHOs to inspect with UAS

• Knowledge of FAA rules can narrow inspection scope! • OSHA must obtain express consent from employer

• You can discuss when and where it will fly • Personnel on site who might be affected must be notified • Multi-Employer Worksite questions:

• Which employer(s) consent? • Which employees must be notified?

• Preservation of UAS evidence concerns: • Request to sit with the UAS pilot to observe the photos


OSHA Drone Inspections – cont. • OSHA remote pilot must be FAA certified • UAS must be registered with the FAA • 3-person UAS inspection team

• Pilot, Visual Observer, Safety Monitor (CSHO?)

• Flights Conduct Restrictions • Daytime operations only • Must maintain line of sight

• Cannot fly over people not involved in the flight • Safety Procedures

• Perform a JSA and document site-specific hazards


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Erik Dullea Partner 1801 Wewatta St. Suite 1000 Denver, CO 80202 Telephone: 303.749.7246 [email protected]

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Legal ABC’s of UAS Operator Liability · • FAA’s B4UFly mobile app • Educate commercial...

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