Legal ABC’s of UAS Operator Liability · • FAA’s B4UFly mobile app • Educate commercial...
Transcript of 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
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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.
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Construction and mining are the fastest growing industries for commercial drone use
(DroneDeploy.com)
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“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)
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Responsibility!! Who is going to stop me?
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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.
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$200,000!!
Responsibility? Can I afford this??
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• Below 400’ AGL • W/in 400’ of a
structure • Possible
headache for quarries and open pit mines
Where Can I Fly?
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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.)
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Flying Below the FAA’s Radar:
• Open-air pits are a gray area.
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Regulation Priorities for the FAA
• Nighttime Operations • Beyond Visual Line-of-Sight
(BVLOS)
• Operations over People • Multiple UAS Controlled
by One Pilot
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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
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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
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https://faadronezone.faa.gov/#/ Registration Information
http://knowbeforeyoufly.org/ Operational Information and
Training Resources
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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Criminal Liability – It Is Possible!!
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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)
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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.
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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?
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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
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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]
Questions?
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