Former US Dept. of Justice aviation lawyer talks UAVs

The recent unmanned aircraft vehicle (UAV) crash at the White House has people in the industry asking even more questions regarding future regulations for the aircraft. The UAS Magazine spoke with McKenna Long & Aldridge LLP partner and former head of the U.S. Department of Justice’s aviation litigation group, Mark Dombroff, about the recent event and what this could potentially mean for the industry.

“If they [the White House] ever needed a basis to get off the dime [with regulations], it landed on the White House lawn at three in the morning on Monday,” said Dombroff. “That incident certainly says to me that it’s time to get this whole process moving forward.”

In an interview with CNN regarding the recent drone incident, President Barack Obama said, “There are incredibly useful functions that these drones can play in terms of farmers who are managing crops and conservationists who want to take stock of wildlife. But we don’t have any kind of regulatory structure at all for it.”

The U.S. Federal Aviation Administration has sent the proposed regulations to the Office of Management and Budget, which is part of the White House.  The Office of Information and Regulatory Affairs is a division of OMB which is responsible for doing cost and benefit analysis for all government rulemaking. Anytime an agency wants to issue regulations—unless it’s an emergency regulation—it has to send the proposed rules to OMB and OIRA prior to publishing the regulations for public comment.

What has to be determined is that the benefit of the rules to the regulated industries is going to outweigh the cost of those rules, which is the phase UAS regulations are currently in.

OIRA has 90 days to review the regulations prior to publication, however, under that same procedure, OIRA may extend the review period on a one-time basis for no more than 30 days.

With the regulations held up at OIRA, Dombroff believes all the criticism directed at the FAA for not moving quickly isn’t fair anymore.

“The FAA forwarded the Notice of Proposed Rulemaking to OIRA 90 days ago, and they’re not authorized to publish for public comment until they get the go-ahead from OIRA,” Dombroff said.

When asked whether or not the recent White House incident was going to halt the regulation process, Dombroff said he thinks it’s the exact opposite of what will happen. But he added that, “No matter how comprehensive the scheme of regulations ultimately proves to be, there are still going to be people who violate it.” 

Dombroff believes the way to reduce future UAS regulation violations lies in aggressive enforcement by the FAA. Dombroff is referring to the recent FAA settlement against UAS pilot Raphael Pirker who will pay a $1,100 civil penalty rather than the $10,000 fine the agency originally assessed.

“To me, the way you stop people from flying these things over prohibited areas is by setting examples that have real deterrent effects,” Dombroff said.

Dombroff points out that some people who either are in the UAS business or want to be in the UAS business, are going to be surprised to see how pervasive the regulatory structure really is. He added that he thinks a lot of people will wake up and realize that this isn’t a business they can necessarily afford to be in, “given how regulated it will be.”

“The people who should be in this business and operating in navigable airspace, should be serious about operating in a regulated environment,” he adds. “The key is understanding the system and working within it.”

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