Preemption and Navy UAS

Reports indicate that the Senate version of the FAA Reauthorization Act contain language that would have FAA regulations pertaining to UAS preempt all state regulations.  Specifically:

FAA regulations regarding 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” would preempt state law.  The House version doesn’t contain this language and the bills still need to be conferenced and reconciled.  I don’t believe the Commerce Clause, the authority for the FAA’s regulation of air space, allows for field preemption and will be discussing this topic in an upcoming law school lecture.  The states still have police powers that they should be allowed to exert – to an extent.

Another alleged sighting by a commercial airliner, this time Aer Lingus at an altitude of 2,300 metres – incredibly high for most UAS.  In regard to that recent “drone strike” against a British Airways plane, a new report states it could have just been a plastic bag.  Who knows what to believe.  I would questions alleged drone sightings, but remain vigilant about ensuring UAS users fly safely.
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Finally, in exciting news, the Navy announced that the USS CARL VINSON (CVN 70) will host the first UAS Command Center, as part of the phased implementation of the MQ-XX program.  In this role, UAS will start to take over from the F/A-18 in the roles of refueling and some ISR.  They will also start to equip submarines with the Aerovironment Blackwing!Drone-command-center-set-up-on-US-aircraft-carrier

UAS Plane Strike?

There has been a growing amount of reports of drones near or hitting aircraft.  This one at Heathrow was the most recent.  Whether they are actually UAS or not, we don’t know.  But it is an important safety issue, which I have written about in the past.  Be careful and make sure to check your VFR map to see if you’re in authorized flight zones!

Senate Passes FAA Reauthorization

The Senate passed their version of the FAA Reauthorization Act, after dropping a few contentious amendments.  It is now back to the House.

Key UAS Highlights:

DRONE SAFETY FEATURES – Directs federal agencies to convene industry stakeholders to develop consensus standards for safety features to be built into drones to protect everyone who uses the national airspace and the public.

PRIVACY PROTECTIONS – Affirms that UAS operations should respect personal privacy, consistent with federal, state, and local law, advances drone identification standards to create operator accountability, and promotes adoption of written UAS privacy policies.

ONLINE SAFETY TEST – Promotes safety by requiring all drone users to pass an FAA-approved online aeronautical safety test before flying. This ensures users understand the national airspace system and avoid manned aircraft. Operators of UAS weighing less than 0.55 pounds could be exempted from the testing requirement.

SAFETY RULE ENFORCEMENT – Authorizes funds for FAA initiatives to better enforce drone laws and reduce risks.

AIRPORT PROTECTION – Authorizes FAA pilot programs and funds to intercept drones near airports and critical infrastructure.

OPPORTUNITIES FOR INNOVATION – Fosters innovation by authorizing expanded case by case

exemptions for beyond visual line of sight and nighttime operations, as well as for research and

development or commercial purposes.

FEDERAL & LOCAL RESPONSIBILITIES – Clarifies responsibilities of federal, state, and local governments with respect to the regulation of drones and directs the Government Accountability Office (GAO) to identify remaining gaps in current privacy protections.

UAS TEST SITES – Improves established UAS test sites, first authorized in 2012, by directing research priorities, improving coordination with the FAA, and enhancing protections for proprietary information to encourage more engagement with the private sector.

UAS PACKAGE DELIVERY – Requires the Department of Transportation to establish a UAS delivery air carrier certificate that would allow for package deliveries by UAS.

MICRO DRONE RULES – Directs the FAA to establish operating rules specific to  “micro” drones, which weigh 4.4 lbs. or less.

FOR UNIVERSITY USE – Streamlines the approval process for the safe operation of drones at institutions of higher education.

DRONE NO-FLY ZONES – Establishes a process for the FAA to designate areas where drones may not fly, for example around critical infrastructure, chemical facilities, or amusement parks.

Paolo e Noemia d’Amico Winery

I have not been able to post since Unmanned Systems 2015, but I serendipitously came upon an idea for a post yesterday evening.  I stray from UAS for a bit, but keep reading and I promise it will circle back to UAS.

My wife and I enjoy visiting Madison Wine Shop in downtown Madison, CT, a family-owned shop that was rebuilt after a devastating fire in June 2013.   On Friday evenings there is often a wine tasting and the owners, Whitney and John Algieri make wonderful selections that have expanded our wine horizons.  You can follow them on Facebook for updates.

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The owners inside of Madison Wine Shop

Yesterday evening they had Riccardo Bertocci from Paolo e Noemia d’Amico in Tuscany running a tasting of wines from Italy.  The wines were all absolutely amazing, particularly the Umbrian Cabernet Franc, Atlante.  Unfortunately at $85 it was above our price range for a casual Friday night, but it was a pleasure to taste.  We did get a couple of more moderately priced, but still amazing, wines from them – shown below.

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Paolo e Noemia d’Amico is located in Italy and I’ve attached a map with its general location.  It is a beautiful estate, and the wine cellar is particularly stunning.  I’ve also attached a few pictures, and a Condé Nast Traveller article about the estate.

Most importantly for the blog, there is a video shot by a drone.  It even goes into the wine cellar with an exciting trip through the halls leading to it.  I don’t have an embed code, but click on the link in the previous sentence and the video should start after it loads.  I hope to get a bit more information about the video, but for now enjoy the amazing views.

Winery Vaiano, Private Property (http://www.cedricreversade.com), Italy 18_-_Villa_Tirrena_Sculpture_Gardens_3

 

Federal Contracting is Lucrative but Ripe with Danger

In September the Navy will begin operational assessments of the Northrop Grumman MQ-4C Triton at NAS Patuxent River, Maryland.  The Triton has also been undergoing electromagnetic testing to ensure that any one of its systems does not interfere with another.  Triton picture
The Triton is a High Altitude Long Endurance (“HALE”), or more specifically a Broad Area Maritime Surveillance (BAMS) UAS that builds upon Northrop’s Global Hawk UAS. Besides the US, the Royal Australian Air Force is the only other customer for this MTCR Category I and ITAR-controlled aircraft.

Government contracts like this one are lucrative not only for the prime contractor (in this case, Northrop Grumman),  but also its subcontractors.  Small UAS businesses might not have a shot at even bidding on a contract of this size, but there are still numerous opportunities for small businesses.  These include subcontracting with the prime contractor or its subcontractor, bidding on a small contract, or obtaining a grant through the SBIR (“Small Business Innovation Research” or STTR (“Small Business Technology Transfer”) programs.

Make sure you are ready before you bid on a contract or sub-contract, and in particular make sure you will qualify as “responsible” under the Federal Acquisition Regulations.  And more importantly, do you even know how to find contracts on which you might want to bid?

But perhaps the biggest landmine for government contractor is the False Claims Act (“FCA” – 31 U.S.C. §§ 3729 – 3733).  This law was passed during the Civil War to combat rampant contractor fraud and was amended surrounded both World Wars (also times ripe for fraud).  Fiscal Year 2014 was a record year in FCA monetary recovery, aided in no small part by inside whisleblowers through “Qui Tam” lawsuits.  Two recent court cases are important for contractors.

In May, the Supreme Court ruled unanimously in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, No. 12-1497 (May 26, 2015) that the Wartime Suspension of Limitations Act (WSLA), which suspends “the running of any statute of limitations applicable to any offense” involving fraud against the Federal Government, only applies to criminal offenses. Civil false claims are now back to six years.

However, this may be a short-lived victory for defense contractors.  The Fourth Circuit Court of Appeals, which has jurisdiction over Virginia and most defense contractors, adopted the “implied certification” theory in United States ex rel. Badr v. Triple Canopy, Inc., No. 13-2101 (4th Cir. Jan. 8, 2015).  This theory states that a claim for payment is false when it rests on “a false representation of compliance with an applicable . . . contractual term.”” Therefore, the certification can be either express of implied.” For example, if you certify compliance to an underlying contract for delivery of a product to the government or your prime contractor, you are certifying compliance with each and every one of the terms of the contract.  If you haven’t seen a government contract, they’re long with many provisions incorporated by reference – including manuals you may have never seen.

United States v. Triple Canopy is headed to the Supreme Court, but in the meantime “implied certification” is increasing the uncertainty and risk associated with many government contracts.  The False Claims Act, and therefore implied certification, affects documents provided to the government in relation to grants as well.