The FAA’s Precautionary Approach to Drones Defies Reasonable Risk Tolerance
A new National Academy of Sciences report concludes the agency needs to relax and learn to love drones
The FAA has identified the integration of drones into the American airspace as one of its top priorities, and its administrators have spoken regularly about the bold and radical rethinking that must be undertaken to allow the fledgling drone industry to thrive. However, a new report from the National Academy of Sciences (NAS) finds that the agency’s approach to drones has been more of the same overzealous precautionary thinking that has defined the agency for decades.
According to the NAS committee that produced the report, the FAA’s drone regulations as written and currently enforced will greatly curb the development of numerous beneficial services. Under the current Part 107 regulatory process, firms and entrepreneurs who wish to operate drones in proof-of-concept experiments that go against current FAA restrictions must receive a waiver. Flying a drone at night, having a single operator control multiple drones, and flying a drone beyond the operator’s line of sight are all use cases that require express permission from the FAA.
When considering waiver applications, the report says the agency often demands evidence that the drones won’t cause harm under any and all contingencies. This creates an obvious catch-22: Entrepreneurs need to run tests to produce data and improve their technologies and services, yet the regulatory agency that must green-light those tests expects air-tight evidence that those technologies and services cannot fail.
Further, the NAS writes that placing the burden on drone operators to show they are prepared for anything that might go wrong creates a “near-zero tolerance” regulatory environment that is built on subjective and “overly conservative” risk estimates that inflates costs and minimizes or flatly ignores benefits.
A 2015 Mercatus comment submitted to the FAA by Eli Dourado, Ryan Hagemann, and Adam Thierer pointed out this very problem when the FAA considered several prohibitions for sUAS activity. For instance, when making its case for a rule prohibiting sUAS from carrying external loads (e.g., packages), the FAA included no discussion or attempted calculation of the benefits that drones carrying external loads would have despite their obvious relevance to drone delivery, photography, and even lifeguard rescue.
Further, the NAS report points out that acceptable risk levels vary by activity. For instance, the FAA has long tolerated a higher risk level for general aviation than for commercial flight. A 2015 report produced by an FAA task force made a similar recommendation when it proposed the risk level associated with general aviation activity as an appropriate benchmark for evaluating sUAS risk. Using that benchmark in a 2016 Mercatus report, Dourado and Sam Hammond estimate that the collision risk posed by sUAS is acceptable, even in the most extreme case that all drone strikes result in fatalities.
Yet the FAA has not heeded the advice that it lower its expectations to be consistent with the appropriate risk tolerance for sUAS, nor has it followed through on its promises to lower regulatory barriers. Instead, the agency has recently considered tightening requirements for drone registration and manufacturing mandates that would enable drone tracking. Further, Pres. Trump signed into law requirements that extended registration requirements to noncommercial drones, which previously fell under exemptions for model aircraft operators that have been targeted by commercial drone trade groups. The version of the 2018 FAA Reauthorization that passed the House includes an amendment that would require even noncommercial drone operators to obtain a license.
The FAA’s precautionary attitude was summarized well in a recent statement by its Acting Director Dan Elwell: “We need assurances that any drone, any unmanned aircraft, operating in controlled airspace is identifiable and trackable.”
But as Dourado and Hammond argue in a 2016 comment to the FAA, the claim that drones operating illegally can only be identified by law enforcement if they prominently display their registration number is contradicted by the feedback the agency received from law enforcement.
[I]n the vast majority of instances, owners of downed sUASs are readily identified even without a registration system in place. The FAA requested information from various law enforcement agencies and notes: “We received feedback that the majority of incidents do not require extensive amounts of time to track down sUAS owners, as they are normally with the sUAS or self-identify if the device crashes.”
In sum, Dourado and Hammond conclude that a drone registry’s compliance costs and deterrence effects far outweigh its at best minimal benefits. In a separate comment to the FAA, the two offer a permissionless innovation framework that would “liberalize most small UASs” as an alternative that promotes drone adoption without posing tangible dangers. Almost three years later, this framework still stands in stark contrast to the FAA’s cautious approach to drones that is out of touch with any reasonable notion of acceptable risk and fails to weigh the vast benefits against only credible safety risks.
Though scathing of the status quo, the NAS report, which was requested by Congress and the FAA, is cause for optimism. As Adam Thierer writes in a detailed summary of the NAS report at Tech Liberation Front, the NAS proposes several promising FAA reforms that would help foster a regulatory environment of permissionless innovation.
H/T Jordan Reimschisel and Adam Thierer. Thanks to Adam and Andrea O’Sullivan for comments.
