Tag: FAA

The Supreme Court to Further Clarify “Transportation Worker” Exemption to the FAA

On September 29, 2023, the U.S. Supreme Court granted certiorari in Bissonnette v. LePage Bakeries Park St. LLC, a case from the Second Circuit Court of Appeals involving application of the Federal Arbitration Act’s (“FAA”) exemption for transportation workers.

Specifically, Section 1 of the FAA exempts from arbitration “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce”—the third category commonly referred to as the “transportation worker” exemption.

In the case below, the plaintiffs—a group of delivery drivers for a bakery—filed various wage and hour claims against the defendant, whom they claimed was their employer.  When the defendant moved to compel arbitration, the plaintiffs argued that, as bakery delivery drivers, they were exempt from arbitration as a “class of workers engaged in foreign or interstate commerce.”

The Second Circuit concluded that the plaintiffs were not exempt from arbitration because they were in the bakery industry, not in the transportation industry.  Therefore, the Second Circuit concluded that the plaintiffs were not transportation workers subject to exemption under Section 1 of the FAA. The Second Circuit’s decision turned, in part, on the interpretation of the U.S. Supreme Court’s decision in Saxon—a case that we previously reported on from last term.

In the Saxon case, the U.S. Supreme Court unanimously held that a ramp supervisor who frequently handled cargo for an interstate airline company was exempt under Section 1 of the FAA as a transportation worker.  In reaching that conclusion, the U.S. Supreme Court’s analysis focused on the “actual work” the worker performed, rather than the industry in which the employer operated—holding that “[the worker] is . . . a member of a ‘class of workers’ based on what she does at Southwest, not what Southwest does generally.”

Though the Second Circuit in Bissonnette acknowledged Saxon, the Second Circuit, in a split decision, held that Saxon did not come into play, stating that “those who work in the bakery industry are not transportation workers, even those who drive a truck from which they sell and deliver the breads and cakes”—essentially establishing a threshold requirement that the individual work in the “transportation industry” in order to be covered by the exemption.

In a pointed dissent, Judge Pooler wrote: “Of course these truckers are transportation workers,” and, “[b]y focusing on the nature of the defendants’ business, and not on the nature of the plaintiffs’ work, the majority offers the sort of industrywide approach Saxon proscribes.”

The U.S. Supreme Court’s forthcoming decision will likely clarify whether the FAA’s exemption contains an industry requirement or whether the analysis turns purely on the nature of the work the individual worker performs without regard to the underlying industry in which they work.  Regardless of the outcome, the U.S. Supreme Court’s decision will provide much-needed guidance at a time when more and more businesses are bringing transportation services in-house—opting to ship and deliver their own products as opposed to relying exclusively on traditional transportation companies.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.
For more articles on employment, visit the NLR labor and employment section.

Congress Passes Speak Out Act, Banning Certain Prospective Non-Disclosure Agreements (US)

Earlier this year, we reported that Congress amended the Federal Arbitration Act to preclude compulsory binding arbitration of sexual assault and sexual harassment claims. This past week, Congress went a step further, passing the Speak Out Act, S. 4524, which is aimed at prohibiting prospective, pre-dispute non-disclosure and non-disparagement agreements that prevent employees from discussing sexual harassment or sexual assault. The Senate passed the bill unanimously on September 29, 2022 and the House of Representatives voted in favor of the measure, 315-109, on November 17, 2022. President Biden has expressed his intention to sign the bill into law, and it will become effective immediately upon his signature.

The bipartisan federal legislation – the latest federal bill inspired by the #metoo movement and one that has been slowly gaining support over the past five years – applies only to pre-dispute nondisclosure and non-disparagement agreements and similar clauses in employment agreements, rendering them null and void in instances in which sexual harassment or sexual assault is alleged in violation of federal, state, or tribal law. The goal of the bill is to prevent the use of pre-dispute agreements aimed at silencing employees from reporting sexual impropriety in the workplace. Similar measures have been passed at the state level in some jurisdictions (see, for example, our prior reporting regarding analogous California, Illinois, Maryland, and Vermont here, here, and here, to name just a few), but when President Biden signs the Speak Out Act, as he has indicated he will do, the law becomes immediately effective nationwide.

Earlier versions of the Speak Out Act included language precluding non-disclosure clauses as applied to claims of race, age, national origin, and similar equal employment opportunity claims, but the bill was stripped back to apply only to claims of sexual harassment and sexual assault in its final form. President Biden’s administration urges further legislation to address the use of non-disclosure agreements used to prevent discussion of other types of labor violations, but as a practical matter, the National Labor Relations Act already protects the right of covered employees to engage in protected, concerted activity – such as discussing workplace discrimination, assault, and harassment – and existing EEO laws protect employees engaged in conduct aimed at asserting their own rights or cooperating with other employees in protecting their rights.

Furthermore, the Speak Out Act only precludes the use of pre-dispute non-disclosure and non-disparagement agreements, meaning those signed before the unlawful conduct begins. It does not prevent employers and employees from agreeing to confidential settlements after alleged sexual harassment or abuse occurs. Parties remain free to enter into such arrangements, provided that employers still cannot preclude employees from reporting violations of EEO laws to agencies entrusted with enforcing such laws, like the Equal Employment Opportunity Commission. Employers may still require non-disclosure agreements to protect trade secrets and confidential business information, and may still include confidentiality provisions in severance agreements. Consequently, the Speak Out Act is not as much a sea change itself as a recommitment by Congress and the Administration to expanding measures aimed at transparency around sexual misconduct in the workplace. Employers should review existing handbook policies and standard non-disclosure agreements to ensure compliance with the Speak Out Act, but that should be just one small step in a comprehensive audit of sexual harassment policies, reporting mechanisms, and investigation procedures.

For more Labor and Employment Law news, click here to visit the National Law Review.

© Copyright 2022 Squire Patton Boggs (US) LLP

BREAKING: Supreme Court Reverses California Court of Appeal in Viking River Cruises v. Moriana

On June 15, 2022, the U.S. Supreme Court issued its decision on Viking River Cruises, Inc. v. Moriana (Case No. 20-1573) reversing the California Court of Appeal’s decision to affirm the denial of Viking’s motion to compel arbitration Moriana’s “individual” PAGA claim and to dismiss her other PAGA claims.

As previously reported, the question presented in Viking River Cruises involved whether the Federal Arbitration Act (“FAA”) preempts the California Supreme Court’s decision in Iskanian v. CLS Transp. Los Angeles, LLC, 58 Cal.4th 380 (2014), which invalidates contractual waivers of representative claims under California’s Labor Code Private Attorneys General Act (“PAGA”).

In a majority opinion authored by Justice Alito, the Court held that while Iskanian’s prohibition on “wholesale waivers” of PAGA claims is not preempted by the FAA, Iskanian’s rule that PAGA actions cannot be divided into “individual” and “non-individual claims” is preempted.

Applying this holding to the parties, the Court held that Viking was entitled to enforce the parties’ arbitration agreement insofar as it mandated arbitration of Moriana’s individual PAGA claim.  As for Moriana’s non-individual PAGA claims,  because PAGA itself “provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding,” Moriana lacks “statutory standing” under PAGA to litigate her “non-individual” claims separately in state court.  Accordingly, “the correct course is to dismiss her remaining claims.”

Article By Timothy Kim and Michele J. Beilke of Hunton Andrews Kurth

For more litigation legal news, click here to visit the National Law Review.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

Supreme Court to Consider Whether the FAA Mandates Arbitration of PAGA Actions

On Dec. 15, 2021, the United States Supreme Court granted certiorari in Viking River Cruises, Inc. v. Moriana, and likely will decide by summer 2022 whether the Federal Arbitration Act (FAA) preempts California public policy and requires enforcement of arbitration agreements that purport to waive an employee’s ability to pursue representative actions under the California Private Attorneys General Act (PAGA). Employers have been waiting for the Supreme Court to take up this issue and are watching the case with interest.

Currently, per the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC, arbitration agreements that waive an employee’s right to pursue PAGA representative actions are considered void and unenforceable. In Iskanian, the California Supreme Court held the FAA does not preempt California state law prohibiting prospective PAGA waivers because PAGA actions are between the employer and the state, not the employee. Thus, the state of California is the real party in interest, not the employee bringing suit, and although the employee may have executed a binding arbitration agreement, the state of California did not. Thus, arbitration agreements that purport to waive the right, expressly or otherwise, to bring a PAGA representative action are not enforceable.

In Viking River, the employee filed a PAGA representative action seeking civil penalties for various alleged violations of the California Labor Code, despite signing an arbitration agreement with her employer agreeing to resolve all future employment-related disputes with the employer via individual arbitration. Relying on the agreement, the employer moved to compel the action to arbitration. The trial court denied the motion, and the Court of Appeal affirmed the denial citing California state law as articulated in Iskanian. The California Supreme Court subsequently denied the employer’s petition for review.

Viking River then petitioned the U.S. Supreme Court for certiorari, relying on the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion and Epic Systems Corp. v. Lewis. These decisions held that courts may not disregard bilateral arbitration agreements or reshape traditional individualized arbitration by mandating class-wide arbitration procedures without all parties’ consent. Viking River argued the Supreme Court needed to review the case to reaffirm the FAA and national policy in favor of arbitration. Viking River further argued review was necessary to ensure that Concepcion and Epic promote bilateral arbitration, rather than simply result in “representational litigation” under PAGA by those who agreed to arbitrate individually. In granting review, the Supreme Court will decide “[w]hether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

This will be a closely watched decision for both sides of the bar and will likely have a groundbreaking effect on California employment litigation. Should the Supreme Court decide in Viking River’s favor, PAGA-only actions, which have become the preference of California plaintiffs’ attorneys in the face of arbitration agreements containing class action waiver provisions, will largely become a thing of the past for those employers who mandate individual arbitration for employees. Although it is by no means certain how the Supreme Court will decide this issue, employers should certainly be ready to revisit any arbitration agreements with California employees and consider what if any changes the ultimate ruling may warrant.

Article By Ashley M. Farrell Pickett and Radha D.S. Kulkarni of Greenberg Traurig, LLP

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©2021 Greenberg Traurig, LLP. All rights reserved.

Eliminating Use of PFAS at Airports May Be Harder Than Congress Thought

Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are subject to increasing environmental regulation and legislation, including legislation to outright ban their use in certain products. Congress directed the Federal Aviation Administration (FAA) to stop requiring PFAS in the foams used to fight certain fires at commercial airports, and to do so by Oct. 4, 2021. In complying with this order, FAA shows the difficult tightrope it has to walk to meet the “intent” of Congress’ directive, while not really meeting the goal Congress had hoped for.

The FAA issued Certification Alert (CertAlert) 21-05, “Part 139 Extinguishing Agent Requirements,” addressing the continued use of aqueous film-forming foam (AFFF) in order to meet the Oct. 4 deadline. In Section 332 of the FAA Reauthorization Act of 2018, Congress directed that after this date, FAA “…shall not require the use of fluorinated chemicals to meet the performance standards referenced in chapter 6 of AC No: 150/5210–6D and acceptable under 139.319(l) of title 14, Code of Federal Regulations.”

The CertAlert directs airports to continue using AFFF with PFAS unless they can demonstrate another means of compliance with the performance standards stablished by the Department of Defense (DoD) for extinguishing fires at commercial airports. The FAA alert also reminds airports about the need to test their firefighting equipment. Airports can perform the required testing by using a device that has been available since 2019 which does not require the discharge of any foam. Finally, the FAA also reminded airports to comply with state and local requirements for management of foam after it has been discharged.

The FAA reported in its communication that it began constructing a research facility in 2014 that was completed in 2019 and that it has been collaborating with DoD in the search for fluorine-free alternatives for AFFF. The FAA reported that it has tested 15 fluorine-free foams and found that none of them meet the strict DoD performance specifications that also are imposed on commercial airports. More specifically, FAA said the tested alternative foams had the following failings:

  • Increased time to extinguish fires
  • Not as effective at preventing a fire from reigniting
  • Not compatible with the existing firefighting equipment at airports

AFFF was developed to fight fuel fires on aircraft carriers where the ability to suppress fires as rapidly as possible and keep them suppressed is vital to the health and safety of pilots, crews, firefighters and the ship. The military specification (commonly known as MilSpec) for effective firefighting foams for fuel fires is in place for both military and civilian airports.  For many years, the consequences of the use of AFFF to fight aircraft fuel fires – most specifically, the adverse impact on groundwater and surface water – was not fully appreciated. Only recently has this threat been understood and only even more recently has the management of firefighting debris been directly addressed.

Congress may have thought it was eliminating a threat with the legislation directing the FAA to no longer require airports to use AFFF. But FAA’s latest messaging on AFFF highlights just how difficult it is to find suitable replacements, especially when they also have to meet the DoD’s stringent performance standards. The FAA did invite any airport, if they identify a replacement foam that meets the performance standards, to share that discovery with the FAA. However, it is unclear what that would accomplish when it is the DoD and not the FAA that certifies a particular foam’s performance.

In essence, FAA could not solve the challenge that Congress gave it (approve a fluorine-free foam) and instead used the CertAlert to approve airports to use such foams if they can find them on their own. The bottom line is that inadequate progress has been made to fulfill congressional intent to stop using AFFF at commercial airports, and airports are left with no choice but to use PFAS containing foams.

There is legislative activity in many states to ban products with PFAS and at the federal level there have been legislative actions targeting the same – like removing them from MREs. The FAA’s removal of its mandate to use AFFF without offering a PFAS-free alternative is a particularly visible example of the challenge in transitioning away from reliance on PFAS chemicals.

© 2021 BARNES & THORNBURG LLP
For more on travel and transportation, visit the NLR Public Services, Infrastructure, Transportation section.

Will Louisiana’s New Laws for Self-Driving Delivery Devices Prevent Accidents?

Retail chains, grocery stores, and restaurants have been actively developing methods to deliver products faster. With inventions like self-driving cars and drones, it was only a matter of time before delivery services took advantage. But with any new technology comes safety concerns.

Republican Sen. Rick Ward sponsored a new bill to outline how driverless delivery devices are allowed to operate on Louisiana streets. Governor John Bel Edwards signed the bill and it went into effect immediately. With these new laws in place, Louisiana lawmakers hope to keep motorists and pedestrians safe as they share travel alongside self-driving delivery devices.

Self-Driving Technology

Self-driving cars have been in the works since the 1920s. Carnegie Mellon University’s Navlab and ALV projects built a computer-controlled vehicle in 1984. Since then autonomous technology has expanded to other devices to serve various markets.

Autonomous Cars

When most people think of self-driving technology, they think of autonomous cars. This type of self-driving machine can go long distances and carry larger cargo. Autonomous cars typically transport people while vans may transport smaller self-driving bots.

Surprisingly, the largest safety risk posed to autonomous cars is human unpredictability. The vehicles are programmed to obey strict safety guidelines along with the rules of the road. In theory, that should be adequate to ensure safety. In reality, these vehicles are bullied by human motorists who drive aggressively.

Drones

The first modern drone was developed in 1935. These small, unmanned aircrafts transformed from military equipment to personal aerial cameras. In June 2021, Kroger became the next company to utilize self-driving devices by launching their first drone flight to deliver groceries.

Airborne drones can fly over traffic jams or obstructions. This would allow them to make deliveries in rural areas that traditional delivery trucks cannot reach. Potential complications arise from privacy issues and Federal Aviation Administration (FAA) regulations.

Last-Mile Bots

Last-mile bots, also known as ground drones, are typically small robots that travel short distances. They may cross streets but otherwise tend to remain on sidewalks as they complete a delivery’s last leg of the journey. These robots are designed to navigate sleep inclines, curbs, and unpaved surfaces.

The biggest limitation of last-mile bots is the size and weight of the deliveries they can carry. Severe weather may also pose challenges. Companies like DoorDash and Postmates successfully use last-mile bots to make multiple short deliveries that delivery drivers typically don’t want to accept.

Louisiana’s New Laws for Self-Driving Delivery Devices

As new technologies emerge, so do new laws to govern their usage. Under Louisiana’s Senate Bill 147, self-driving delivery devices must move at low speeds. They cannot exceed 20 miles per hour. They are limited to 12 miles per hour in pedestrian areas, which is roughly the speed of a person jogging.

These autonomous delivery robots must yield to pedestrians. They cannot obstruct the flow of traffic. They must also be equipped with lights on the front and rear.

The companies utilizing robot delivery must ensure each vehicle carries at least $100,000 insurance coverage. Additionally, these devices are not permitted to transport hazardous materials.

Are Self-Driving Delivery Devices Safe?

Due to the high standards of robotics developers, driverless vehicles are generally safer than cars with human drivers. Safety is paramount, since according to a car accident lawyer in New Orleans, nearly 14% of Louisiana drivers don’t have auto insurance.

Louisiana’s new laws aim to prevent accidents both to motorists and pedestrians. Multiple states have passed similar legislation to protect people sharing space with these vehicles. However, Louisiana’s bill permits governing officials and airport authorities to establish additional laws or ban self-driving delivery devices if they pose a danger to public safety in the future.

Who Is Liable When a Self-Driving Delivery Vehicle Causes an Accident?

At this time, no delivery vehicles that are 100% automated are in use, so there are no laws or regulations to determine who would be liable in an accident. However, if there were an accident involving a self-driving delivery vehicle and it could be proven that the vehicle’s operators were negligent, in theory, they would be legally liable.

There are several ways a company’s negligence could lead to an accident. For example, they could fail to maintain the vehicle or to perform critical software updates. Just as with any other type of vehicle on the road, self-driving delivery vehicles can and will get into accidents. When it happens, expect to see increased regulations and lawsuits.

© Laborde Earles Law Firm 2021

Airlines’ Shrinking Seat Space May Increase Likelihood of Head Injuries

While the Federal Aviation Administration (FAA) has addressed protection from head injuries for flight attendants, according to a recent article, it has not addressed the impact of shrinking seat designs on the safety of passengers. A second article states that no seat in coach meets the FAA’s standards for the space required for flight attendant seat safety.

Graphic Sheds Light on Impact of Smaller Seats and Rows on Safety

Embedded in the regulations governing commercial airline safety is a graphic that may offer evidence that smaller seats and rows on airplanes may affect passengers’ safety. The DOT graphic shows the “head strike zone” for a seated flight attendant and is intended to offer guidance on seat design to reduce the risk of injury to flight attendants during takeoff and landing but apparently a similar analysis has not been undertaken as to passengers.

The head strike zone is the space that must be kept clear so that the occupant’s head avoids contact with an adjacent seat in the event of an impact. The graphic suggests that shortening the distance between passenger seat rows may have increased the likelihood of a passenger suffering head trauma from the seat in front.

Lawsuit Seeks FAA Rules on Minimum Seat and Aisle Sizes

FlyersRights.Org filed a petition for rulemaking requesting that the FAA set rules on minimum seat and aisle sizes. In its petition, FlyersRights.org documented that economy class seat pitch, that is the distance between a point on one seat and the same point on the seat in front of it has shrunk from an average of 35 inches to 31 inches and in some airplanes, 28 inches. Among other things, FlyersRights.Org argues that passengers may not be able to evacuate quickly in a crash due to the cramped seating. Another concern is the risk of passengers developing potentially dangerous blood clots in their legs.

The FAA declined to draw up regulations on seat size, arguing that its rulemaking authority does not extend to comfort – and that safety tests indicate the smaller seats pose no danger. The FAA also maintains that flight attendants and passengers have the same injury protection regulations.

FlyersRights.Org filed a petition for review with the U.S. Court of Appeals for the District of Columbia, challenging the FAA’s refusal to engage in rulemaking and its unsupported conclusions about passenger seat safety. In recent opinion, the Court ordered the FAA to reexamine whether shrinking seats have safety consequences and to provide scientific evidence as to why narrower aisles and tighter seats are not safety issues.

This post was written by Bruce H. Stern of STARK & STARK, COPYRIGHT © 2017
For more legal analysis go to The National Law Review

Steer Clear from Military Bases if You Want to Keep Your Drone (and Yourself) Out of Trouble

There has been a growing security concern posed by drones, especially in light of increased use by both private citizens and companies. With the aim of keeping personnel and equipment safe in connection with its domestic military bases, the Pentagon recently issued classified rules that provide guidance to the U.S. military on how to deal with private and commercial drones that are found flying over or around its domestic military bases.

During the drafting process of the rules, the Pentagon consulted with the Federal Aviation Administration (FAA) to determine how best to deal with drones. Although the specifics of the rules are classified, the rules generally allow for a variety of different responses to drones including tracking, disabling, and destroying the drones. The response may depend on the circumstances as well as the installation the drone is spotted near (i.e. the drones may even be seized afterwards for use in subsequent investigations). Further, the military already has several options in place such as using traditional ammunition to disable or destroy the drones as well as relying on radio waves to commandeer the drones from their operators.

However, the drones may not be the only things targeted if found operating near military bases. Back in April of this year, the Pentagon and the FAA announced a rule that prohibited drone flights near various domestic military bases. Although the previous rule regarding drones did not indicate that the drones would be specifically targeted by the military, it did state that pilots caught violating the restriction would be subject to arrest. The Pentagon has indicated that it will support civilian law enforcement investigations and the prosecution of unauthorized drone operations over military installations. Violators could potentially face fines or jail time.

For reference, a map can be found on the FAA website that provides information for the general public regarding areas and altitudes where drones can be operated safely. The map also highlights the various restricted airspace in connection with the domestic military bases.

This post was written by Thomas Nguyen of Polsinelli LLP in California © Polsinelli PC

For more legal analysis go to The National Law Review

Congress to Vote on Short-Term FAA Reauthorization This Week

Congress FAA reauthorizationThis week, Congress will vote on a short-term Federal Aviation Administration (FAA) authorization that will reauthorize FAA programs through September 30, 2017. The short-term authorization includes some policy changes, but avoids many significant changes the House and Senate had been pursuing. While the Senate passed a long-term FAA reauthorization bill this year, the FAA Reauthorization Act of 2016 (S. 2658), the House did not take up the bill reported out of the Transportation and Infrastructure Committee, the Aviation Innovation, Reform, and Reauthorization (AIRR) Act of 2016 (H.R. 4441). Both the House and Senate are expected to pass the highly-negotiated short-term extension, before FAA authorization expires on July 15.

The short-term extension does include provisions related to safety and security, as well as some unmanned aircraft systems (UAS) provisions. Among the policy changes, the bill will increase funding for bomb-sniffing dog teams, direct FAA to detect and mitigate UAS operation near airports, and require airlines to refund baggage fees if luggage is delayed or lost, among other provisions.

It appears that House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) successfully kept many policy changes out of the short-term extension, in order to keep pressure up on Congress to pass a long-term extension next year that includes Chairman Shuster’s controversial air traffic control reform proposal.

This Week’s Hearings:

  • On Tuesday, July 12, the Senate Commerce, Science, and Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security will hold a hearing titled “Intermodal and Interdependent: The FAST Act, the Economy, and Our Nation’s Transportation System.” The witnesses will be:

    • Patrick J. Ottensmeyer, Chief Executive Officer, Kansas City Southern Railway Company;

    • Major Jay Thompson, Arkansas Highway Police; President, Commercial Vehicle Safety Alliance;

    • David Eggermann, Supply Chain Manager, BASF; and

    • Stephen J. Gardner, Executive Vice President and Chief of NEC Business Development, Amtrak.

  • On Wednesday, July 13, the Senate Commerce, Science, and Transportation Subcommittee on Space, Science, and Competitiveness will hold a hearing titled “NASA at a Crossroads: Reasserting American Leadership in Space Exploration.” The witnesses will be:

    • William H. Gerstenmaier, Associate Administrator of Human Exploration and Operations, NASA;

    • Mary Lynne Dittmar, Executive Director, Coalition for Deep Space Exploration;

    • Mike Gold, Vice President of Washington Operations, SSL;

    • Mark Sirangelo, Vice President of Space Systems Group, Sierra Nevada Corporation; and

    • Professor Dan Dumbacher, Professor of Engineering Practice, Purdue University.

  • On Tuesday, July 12, the Senate Foreign Relations Subcommittee on Department and USAID Management, International Operations, and Bilateral International Development will hold a hearing titled “Public-Private Partnerships in Foreign Aid: Leveraging U.S. Assistance for Greater Impact and Sustainability.” The witnesses will be:

    • Eric G. Postel, Associate Administrator, U.S. Agency for International Development; and

    • Daniel F. Runde, William A. Schreyer Chair and Director, Project on Prosperity and Development, Center for Strategic and International Studies.

ARTICLE BY Timothy W. Drake & Patricia Doersch of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

FAA Rules for Drones: The Waiting is the Hardest Part

drone operations

The May edition of “Unmanned Systems” magazine printed interviews with Earl Lawrence and Marke Gibson, two administrators at the Federal Aviation Administration who are focused on drone integration.  While the FAA currently authorizes commercial drone operations on a case-by-case basis, it is anticipated that a new rule will be finalized this year and will be comprehensive enough to fulfill the public desire for commercial drone operations.

Lawrence predicted that performance-based standards, rather than weight and speed classifications, may be used in the new rule because they provide a more effective response to safety risks posed by drones. Lawrence also believed the new drone rule will require a certification for commercial drone operators.

Gibson noted that testing has revealed drone pilots are able to see other aircraft approaching at a distance of two and one half miles in daylight hours, more than the one mile estimated for operations within visual line-of-sight.  Gibson found this, and other testing data, valuable as the FAA continues its rulemaking for drones.

At least until the new rule is passed, however, commercial operators must still follow the Section 333 exemption process.  Those that wish to operate drones for business purposes must convince the FAA to issue an exemption.  The FAA requires information like the intended use of the drone; its design and operational characteristics; and how its operation will be done safely.

Neither Lawrence nor Gibson told the magazine when the new rule would actually be rolled out by the FAA.  Last Friday at a drone seminar though, Gibson hinted that the new rule may be announced this summer.  Hopefully, the waiting, not the rule itself, is the hardest part.

ARTICLE BY Jeffrey K. Phillips
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