The FAA recently issued a request for public comment on a policy for the type certification of certain Unmanned Aircraft Systems (“UAS” or “drones”). The policy applies to both large UAS (55 pounds or more) and certain small UAS weighing less than 55 pounds (“sUAS”) operating outside the limitations imposed by 14 CFR Part 107. sUAS operating under Part 107 (or with a waiver under Part 107) are not required to have airworthiness certification, but…
On December 26, the FAA released its long-anticipated proposed rule that would require the remote identification (“Remote ID”) of unmanned aircraft systems (“UAS,” or “drones”) in the United States. The proposed rule is an important step in advancing UAS policy-making in the U.S. and addressing emergent safety and security issues, such as close encounters between drones and manned aircraft and unlawful drone operations in places such as airports, military bases, outdoor events and civil infrastructure.…
The U.S. Department of Transportation (DOT) announced earlier this month that the long-awaited Notice of Proposed Rulemaking (NPRM) on remote identification for unmanned aircraft systems (UAS, or drones) has been delayed for a third time. The NPRM is now projected to be issued in December 2019. Remote identification is the ability of a drone to transmit identifying information while in flight to other parties, such as the FAA, federal security agencies, and law enforcement. Current…
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.”
On Tuesday, the FAA released a draft Advisory Circular (90-WLCLR), proposing a definition of small UAS staying “well clear” of aircraft during beyond visual line of sight (BVLOS) operations. The AC will be a useful tool for operators seeking waivers from Part 107 for BVLOS operations as the FAA. The AC also demonstrates the FAA’s continued efforts to give guidance for operations that exceed the standard operating conditions of Part 107, as the agency continues to draft additional UAS rules to enable greater operational capabilities beyond Part 107, including BVLOS.
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 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.
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.