UAS Insight Series: Regulatory Update – April 2018

As the second anniversary for FAA’s rules for the commercial operation of small UAS (sUAS)—Part 107—quickly approaches, this Insight Series will provide updates regarding on-going UAS rulemaking efforts since Part 107. Although Congress has required more FAA action and the industry has been clamoring for guidance to open the skies to UAS with new rules, the FAA has been limited in its rulemakings and many rulemakings have been significantly delayed.  However, the recently released Report on DOT Significant Rulemakings (March 2018) and the Agency Rule List (Fall 2017) suggest the FAA is making progress and new rules will be proposed in 2018.  Continue to follow our Insights for analyses of newly proposed and final UAS rules.Operations of sUAS Over People (2120-AK85)

This rulemaking to allow sUAS operations over people started in March 2016. The Notice of Proposed Rulemaking (NPRM) was scheduled to go to OMB on February 12, 2018 for clearance on May 14, 2018, but the FAA has not released the NPRM.  The FAA had plans to publish the NPRM on May 23, 2018 and give the public the opportunity to comment until July 23, 2018.  If the rulemaking gets back on schedule, a final rule may be released in late 2018 or early 2019.

A rule allowing for sUAS operations over people is one of the most highly anticipated rules in the industry. The existing prohibition has frustrated many industries, including news gathering and industrial operations.  The anticipated rulemaking would provide performance-based standards and means-for-compliance for operation of sUAS over people that are not directly participating in the operation or are not otherwise protected (i.e., in a structure).  Although permission to fly over people has been given to some commercial operators through the FAA’s Part 107 exemption process, commercial operators that are compliant with the new rules would not need to undergo the burdensome exemption process.

Safe and Secure Operations of sUAS (2120-AL26)

This Advanced Notice of Proposed Rulemaking (ANPRM), seeking comments on operational limitations, airspace restrictions, hardware requirements, and associated identification and tracking technologies for UAS was scheduled to go to OMB on February 12, 2018 for clearance in May 2018. To date, the FAA has not released the ANPRM.  It was scheduled for publication in May 2018 and the public comment period would have run through July 23, 2018.  If the rulemaking gets back on schedule, a final rule may be released in late 2018 or early 2019.

Topics for public comment will include the balance of needs between UAS operators, law enforcement, and national defense communities. The ultimate purpose is to address concerns over safety and security from homeland security, federal law enforcement, and national defense perspectives.

UAS Expanded Operations (2120-AL01)

The UAS Expanded Operations (or UAS XOps) rulemaking would enable expanded operations of sUAS in the National Airspace System and increase sUAS applications under Part 107, encouraging innovation in the UAS field. Although the rulemaking project was initiated in December 2016, its specific scope is unclear, its stage is currently undetermined, and the FAA has not scheduled any future dates for the rulemaking.

No-Drone Zones

In the FAA Extension, Safety, and Security Act of 2016 (FESSA), Congress included provisions related to UAS and the protection of critical infrastructure, but the FAA has not implemented the Congressionally mandated program. To date, the FAA has issued designated no-drone zones on an ad hoc basis over certain facilities such as nuclear and military areas, stadium during sporting events, Washington, DC, and in or around wildfires firefighting operations.

Section 2209 of FESSA requires that the FAA establish a process to allow applicants to petition the FAA to prohibit or restrict the operation of UAS in close proximity to a fixed site facility, including critical infrastructure, oil refineries and chemical facilities, and amusement parks. Additionally, Section 2210 requires the FAA to establish a process for applications for exemptions from certain aspects of Part 107 if the operation of the UAS specifically pertains to critical infrastructure.  The covered facilities include pipeline systems, electric energy generation, transmission, or distribution facilities, oil or gas production, refining, or processing facilities, or other critical infrastructure facilities.

Air Carriers Use of Alternative Aircraft (2120-AL21)

A rulemaking in the long-term semi-annual regulatory agenda may be related to advanced commercial UAS operations.  The rule, for which an NPRM is projected to be released in Fall 2018, states that the action “would enable air carrier operations in aircraft other than airplanes and helicopters (e.g., powered-lift aircraft, lighter-than-air) by broadening certain definitions in part 110.”  While the exact goals of the regulatory changes are currently unclear, expanding the definition of air carrier to other types of aircraft besides airplanes and helicopters could mark the beginning of more advanced UAS operations in the commercial air travel business, such as automated unmanned air passenger taxis.

Registration and Marking Requirements for sUAS (2120-AK82)

The sUAS registration and marking rulemaking has one of the more complex rulemaking histories. In December 2015, the FAA issued an Interim Final Rule, requiring the registration and marking of sUAS that are used for commercial and recreational purposes.  In May 2017, the rule was vacated to the extent it applies to “model aircraft”—i.e., sUAS operated for recreational purposes.  However, in November 2017, Congress reinstated the FAA’s interim registration rules for model aircraft.

The FAA released its interim final rule and gave the public an opportunity to comment until January 8, 2018 regarding FAA’s intention to request OMB approval to renew the information collection. The FAA has not responded to comments that it received or set a schedule for the rulemaking.  Operators will continue to have to meet the interim registration and marking rules while this final rulemaking is on-going.