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Jennifer Trock

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In mid-January, U.S. Secretary of Transportation Elaine Chao and the U.S. Federal Aviation  Administration (“FAA”) released a long-awaited proposed rule permitting unmanned aircraft system (“UAS” or “drone”) operations at night and over people. Once the rule is finalized, it will allow commercial operators to fly UAS operations previously restricted under the current Part 107 rules (14 C.F.R. §107) without an individualized waiver from the FAA (14 C.F.R. §107.200).

These rules show that the FAA is advancing from a one-size-fits-all regulatory structure to a more nuanced regime based on risk and safety analyses. For the most part, the rule is not based solely on weight. Instead, it incorporates performance-based requirements to achieve the agency’s safety objectives. Basing UAS restrictions on performance and risk is more consistent with European rules and other countries with advanced UAS regulations.

While the proposed rule represents a step in the right direction, the rule is not likely to be finalized for many months or longer, because the FAA indicated the rule would not be finalized until after the FAA addresses the contentious issue of remote identification of UAS. In the proposed rule—which is expected to be published in the Federal Register next week—the FAA states that it “plans to finalize its policy concerning remote identification of small UAS—by way of rulemaking, standards development, or other activities that other federal agencies may propose—prior to finalizing the proposed changes in this rule.”

The FAA added nine new companies to its Low Altitude Authorization and Notification Capabilities (LAANC) initiative.  The press release is available here.   In addition to the five existing companies, the new companies will provide near real-time authorizations to small commercial drone operators to fly in controlled airspace near 500 airports.  The FAA will open its application process for more LAANC partners in January 2019, and again in July 2019.

Last week, the FAA amended its Compliance and Enforcement Program for enforcement against drone operators that interfere with wildfire response.  This update follows the FAA Extension, Safety, and Security Act of 2016, in which Congress authorized the FAA to penalize individuals up to $20,000 for knowingly or recklessly interfering with wildfire responses.  FAA personnel must send cases to the FAA Chief Counsel’s Enforcement office, signaling that the FAA believes enforcement action is the appropriate deterrent.

On Tuesday, the FAA posted an update in anticipation of the arrival of Hurricane Florence in the Carolinas this week, available here.   Today, the FAA issued an informational press release to drone operators for Hurricane Florence, available here. In addition to storm-related information for commercial airline travelers and Air Traffic Control impacts, the FAA warns drone operators that interfering with emergency responses may result in fines exceeding $20,000 and civil penalties.  Although drone operators should…

On July 20, 2018, the FAA issued a press release to clarify its position on federal preemption of state and local laws relating to unmanned aircraft systems (UAS).  The brief release reminds states and municipalities that they are preempted from regulating aircraft operations, including flight paths, altitudes, or navigable airspace.  On the other hand, however, the FAA acknowledges that states and local governments have the power to regulate landing sites for drones through their land use powers. 

On July 11, 2018, DOT’s General Counsel and FAA’s Chief Counsel sent a stern response to the Uniform Law Commission’s (ULC) draft model tort laws for drones, claiming that the ULC had created an “incorrect impression” that their agencies concurred with the model rules and requested the ULC strike any reference to ULC’s contacts with DOT and FAA counsel. Although the agencies deny that they have taken an official position on the relationship between Federal regulation and State and local authority over drones, the letter explains that the FAA’s State and local drone law guidance does not support ULC’s suggested per se exclusion zone up to 200 feet.  The FAA goes so far as to raise “decades of established precedent” would conflict with ULC’s proposed rule and that Federal courts have rejected the notion of applying traditional trespass law to aircraft overflights.

The letter highlights the increasing uncertainty of federal preemption over airspace laws as tensions between new federal, State, and local drone laws grow. Operators, on the other hand, want a settled legal landscape in which to operate.  The drone industry should closely follow the development of ULC’s model rules, which may be the precursor to future State and local rules and play an important role in defining the future relationship of federal, State, and local regulation of drones.

The new European Union (EU) General Data Protection Regulation (GDPR) came into effect on May 25, 2018.  This regulation, which is directly applicable across the EU Member States, applies to the collection, hosting, storage, use and other “processing” of personal data.  The GDPR applies directly not just to companies in the EU, but also those outside of the EU to the extent that they offer goods or services (irrespective of whether a payment is required) to…

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.

The Unmanned Aircraft Systems (“UAS”) Identification and Tracking Aviation Rulemaking Committee (“ARC”) released its recommendations to the Federal Aviation Administration (“FAA”).  Despite a lack of consensus on issues, the recommendations should help the FAA develop new rules for drone identification and tracking. Although the FAA was scheduled to publish an Advanced Notice of Proposed Rulemaking on identification (“ID”) and tracking requirements in May 2018, the proposed rules remain under review by the Department of Transportation and have missed a February 2018 deadline for the Office of Management and Budget to start its review.  It is unclear when the rulemaking will progress.

Launched in June 2017 to address concerns over “rogue” drones flying in the National Airspace System (“NAS”), the FAA tasked the ARC with providing recommendations regarding UAS remote identification and tracking technologies. Comprised of three Working Groups; Existing and Emerging Technologies, Law Enforcement and Security, and Implementation, its membership represented a broad range of aviation and UAS industry stakeholders.  The ARC met several times to educate the public, gather information, and to discuss and deliberate among members and finalized its report in September 2017. 

The FAA is rolling out the Low Altitude Authorization and Notification Capacity (“LAANC”), a tool which is allowing operators of small unmanned aircraft systems (“sUAS” or drone) operators  to get immediate approval for certain operations in controlled airspace.  The introduction of LAANC will benefit commercial operators by decreasing the planning time required for many drone operations and increase flexibility in decisions.  LAANC is currently supported at about 50 airports from Miami to Anchorage and is scheduled to expand next year.