February 27, 2015

"Ding": You Are Now Almost Free to Use Small Drones Around the National Airspace

Arnold & Porter Advisory

On February 15, 2015, the Federal Aviation Administration (FAA) issued a Notice of Proposed Rulemaking (NPRM) that provides a proposed framework for unmanned aircraft system (UAS) regulations.  Limited to UAS under 55 lbs, daylight and visual line of sight (VLOS) operations, the NPRM attempts to wrangle the ever-advancing UAS technology into flexible rules that maximize safety and the efficient use of UAS in the national airspace.  The NPRM responds to the FAA Modernization and Reform Act of 2012's call for UAS rules.  A public comment period, which will last 60 days, will open following publication of the proposed rule in the Federal Register.  Related to the NPRM and additionally on February 15th, the President issued a Memorandum directing agencies to develop procedures to address the likely protection of privacy, civil rights, and civil liberties concerns related to the implementation of UAS operations in government use.

While the path for UAS commercial operation remains uncertain, the NPRM and Presidential Memorandum signify first steps toward commercial UAS operation within United States airspace in the near future.  With the advent of UAS rules, it may not be long before UAS are used for everyday functions.

The FAA Notice of Proposed Rulemaking for Small UAS

Under Section 333 of the FAA Modernization and Reform Act of 2012,1 the FAA has temporary authority to grant exemptions for non-recreational UAS operations until UAS regulations are finalized.2  Given the potential variance in UAS size, from "wingspan[s] as large as jet airliner or smaller than a radio-controlled model airplane," and the rapidly changing nature of UAS technology, integrating UAS commercial use into the "busiest [and] most complex airspace in the world" is no easy feat.3 The FAA's NPRM responds to the need for UAS rules and proposes regulations that will establish commercial use of small UAS, under

55 pounds, within United States airspace.  Focusing on a "safe, efficient, and timely" UAS integration, the FAA stated its awareness of the need to create rules that are flexible enough to accommodate UAS strides in technologies while maintaining safe civil airspace.4 Highlights of the NPRM for small UAS include:5

1.    "Operators" instead of pilots:  Rather than possessing a pilot's license, operators would be required to: (1) be 17 years of age or over; (2) pass the Transportation Security Administration's "initial aeronautical knowledge test at an FAA-approved knowledge testing center," as well as "recurrent aeronautical knowledge tests every 24 months"; (3) attain "an unmanned operator certificate with a small UAS rating"; (4) report any UAS accident resulting in injury or property damage to the FAA within 10 days of occurrence and conduct preflight inspections to confirm the UAS is safe for operation; and (5) upon FAA request, make the UAS and any required documents available for inspection or testing.

2.    Observers not required, but UAS must be within the operator's visual line of sight:  Observers are not required.  However, all UAS activity must remain within the VLOS of the operator or an observer.  The UAS must remain close enough to the operator that the operator can see the UAS without any magnifying device other than corrective lenses.  A first-person view camera may not be used to satisfy this "see and avoid requirement," but may be used if the UAS fulfills the "see and avoid" requirement in other ways.  Further, no one may be an operator or observer for more than one UAS operation at one time.

3.    Markings required, while airworthiness certification is not:  Although operators are responsible for making pre-flight inspections and maintaining the UAS in a safe operating condition, the FAA airworthiness certification is not mandatory.  However, aircraft markings are required.

4.    Safe UAS operation:  To maximize safety, the proposed rules prohibit reckless or careless operations, require preflight inspections by the operator, and prohibit UAS operation by any person who knows of, or has reason to know of, a mental or physical condition that may limit their ability to safely operate a UAS.  The rules also require that the UAS "may not operate over any persons not

directly involved" in the UAS operation.  Finally, all UAS must yield the right-of-way to other manned and unmanned aircraft.

5.     Size, speed, and altitude requirements:  In addition to the weight limit of 55 pounds (25 kg), the UAS may not exceed a maximum airspeed faster than 100 mph (87 knots) or a maximum altitude of 500 feet above ground level.

6.    Timing and weather requirements:  All UAS operation is limited to daylight hours only.  Additionally, there must be a minimum weather visibility of 3 miles from the operator's control station.

7.    Airspace requirements:  UAS operations are prohibited in Class A airspace (above 18,000 feet) and are allowed within Class G airspace (all airspace below 600 feet and airspace not controlled by other classes) without permission.  Meanwhile, UAS may be allowed to operate in Class B, Class C, Class D, and Class E airspaces with air traffic control's permission.6

The Presidential Memorandum

In addition to the FAA's February 15th NPRM announcement, President Obama issued a complementary Presidential Memorandum to federal agencies and executive departments highlighting "transparent principles" the government should use when they operate UAS.7 Like the endless possibilities for UAS commercial use, the Memorandum envisions UAS playing a "transformative role" in government action in fields as diverse as urban infrastructure management, farming, public safety, coastal security, military training, search and rescue, and disaster response."8 The Memorandum is cautiously optimistic and sets forth guidelines the government should follow to ensure UAS integration "takes into account not only our economic competitiveness and public safety, but also the privacy, civil rights, and civil liberties concerns these systems may raise."9 Some of the mandates included in the Memorandum are:

1.    Compliance with all applicable laws, including the Privacy Act:  If UAS is used as a platform for information collection, the "information must be collected, used, retained, and disseminated" in compliance with all applicable laws, including the Privacy Act of 1974, 5 U.S.C. § 552a.10 Similarly, all UAS operations must be performed in a manner consistent with all applicable laws.

2.    Concurrent development of privacy protections:  Given the rapid pace of UAS technology advances, the federal government will take steps to ensure privacy protections "keep pace" and develop contemporaneously with technology.  To achieve this goal, agencies are to examine their existing UAS policies and information collection procedures at least every 3 years to ensure privacy, civil rights and civil liberties remain protected.

3.    Provide civil rights and civil liberties protections:  Agencies are to prohibit "the collection, use, retention, or dissemination of data in any manner that would violate the First Amendment" or discriminate, in violation of law, based on ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity.  Agencies also must establish adequate procedures to receive, investigate, and handle privacy, civil rights, and civil liberties complaints.

4.    Accountability and transparency:  As a means of ensuring effective oversight, agencies will establish auditing, training, rules of conduct, and record management procedures in compliance with existing agency regulations.  Further, agencies will establish procedures for responding to UAS assistance requests relating to Federal, State, local, tribal or territorial governmental operations.  Additionally, State, local, tribal, and territorial government recipients of Federal UAS funding grants must establish their own UAS operating procedures which protect individuals' privacy, civil rights, and civil liberties.  In promotion of transparency, agencies are to inform the public: (1) where the agency's UAS will operate; and (2) if there are any UAS program changes that affect privacy, civil rights, or civil liberties.  Additionally, every year, the agencies will issue a public summary and description of the agency's UAS activities of the previous fiscal year.

5.    Reporting:  By August 14, 2015, every agency is required to provide the President with a status report on their implementation of procedures under the Memorandum.  By February 15, 2016, every

agency is required to make their implementation policies and procedures publicly available and publish steps informing the public how to access their implementation policies and procedures.

6.    Multi-stakeholder engagement process:  To maximize economic competitiveness while maintaining privacy, civil rights, and civil liberties protections, the Memorandum establishes a multi-stakeholder engagement process to develop best practices regarding commercial and private UAS use.  The multi-stakeholder process will include stakeholders from the private sector.11

As a complement to the FAA's NPRM, the President's Memorandum provides additional guidelines for privacy and constitutional protection not addressed within the NPRM.

The FAA NPRM is a First Step: Opportunity for Comments

For 60 days following the date of Federal Register's publication of the FAA proposed rules, the public is invited to make comments.  At that time, requests for clarification may also be sought.  Clarifications may include: (1) requests for greater detail on the requirements for the "unmanned aircraft operator certificate"; (2) reasons for the limitation to daytime operation when nighttime UAS operations have been considered permissible with sufficient mitigation by the FAA under its Section 333 exemption authority;12 (3) the reasoning behind making the observer optional and for requiring the UAS to remain within the VLOS of the operator or observer when the rules also require the UAS to stay close enough to only the operator for the operator to be capable of seeing the UAS with unaided vision; and (4) what the definition of "one unmanned aircraft operation" means for the requirement that no person can be an operator or visual observer for more than one unmanned aircraft at one time.13  Further, because the proposed rules allow for UAS operations up to 55 pounds with maximum speeds of 100 mph, there will likely be a need to develop safety procedure guidelines that account for the potentially great variances in size and speed in authorized UAS operations.

Within its NPRM, the FAA specifically requests public input for proposed regulations that deal with UAS technologies and their potential application for innovative commercial uses.  The proposed rules for which the FAA specifically requests public comment include:

1.    Micro UAS classifications:  The FAA seeks input as to whether the proposed rules ought to have a classification for "micro" UAS that weigh less than 4.4 pounds.  Specifically, the micro classification would allow for Class G airspace operations over persons not involved in UAS operations so long as the operator can certify possession of the requisite aeronautical knowledge to safely operate the micro UAS.14

2.    Regulations that are performance oriented:  The FAA seeks comments on whether additional regulations "could be specified in ways that are more performance-oriented" so as to minimize disincentives to develop new technologies that would satisfy regulations at a lower cost.15

3.    Package delivery for payment and special air carrier certification:  The FAA requests input on "whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule" and whether it should develop a special class within UAS operations for air carrier certification.16

The public's opportunity to make comments on the NPRM is only the first step in a potentially long process of creating UAS regulations.  Before the issuance of final rules, the FAA will take time to evaluate and apply the comments provided.  Additionally, because UAS technology rapidly changes, it is possible that unanticipated technological advancement may force FAA to rethink aspects of the NPRM, thus slowing down the rulemaking process.  This also means that the final rules may vary greatly from those originally proposed and be issued some time from now.

Until Finalization of Rules, UAS Operators Should Continue to File for FAA Exemptions under Section 333

This month's release of the FAA's NPRM and the Presidential Memorandum is a watershed moment for UAS operations.  In addition to stressing safety assurances and protections for privacy, the NPRM and Memorandum also pave the way for semi-autonomous UAS operations within the national airspace.  It is unknown how long the NPRM process will last and what the final regulations may be.  Until final rules are issued, companies and the commercial public should continue to file Section 333 Exemption applications with the FAA for their individual UAS operations.

*Associate Elizabeth T.M. Fitzpatrick also contributed to this advisory.

  1. Pub. L. No. 112-95, 126 Stat. 11.

  2. Id. § 333.

  3. Fact Sheet?Unmanned Aircraft Systems (UAS), FAA.Gov (Feb. 15,2015), available here.

  4. Id.

  5. The proposed rules do not apply to hobby or recreational drone users.  However, recreational drone use is limited by state, municipality, and local drone laws.

  6. Overview of Small UAS Notice of Proposed Rulemaking, FAA.Gov, available here, (last visited on February 20, 2015) ("FAA Overview").

  7. Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems, WhiteHouse.Gov (Feb. 15, 2015), available here.

  8. Id.

  9. Id.

  10. "Among other things," the Privacy Act " restricts the collection and dissemination of individuals' information that is maintained in systems of records, including personally identifiable information (PII), and permits individuals to seek access to and amendment of records." Id.

  11. Id.

  12. See FAA Interim Operational Guidance 08-01 ¶ 8.2.7 (March 13, 2008) ("Nighttime operations may be considered in other airspace if the applicant provides a safety case and sufficient mitigation to avoid collision hazards at night."); Pictorvision, Inc., Exemption No. 11067, Regulatory Docket No. FAA-2014-0357, at 21-22 (Sept. 25, 2014) (noting night operations may be permitted with sufficient data and collision mitigation).

  13. See FAA Overview, supra.

  14. Operation and Certification of Small Unmanned Aircraft Systems ("NPRM") (proposed Feb. 15, 2015), at 54.

  15. Id. at 35.

  16. Id. at 39.

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