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Last updated: May 25, 2016
As we await publication of the FAA’s final rule on the operation and certification of small UAS (scheduled for late July 2016), Congress, federal agencies and state governments have continued to be active in the area of UAS law and policy, proposing new legislation and regulations and issuing exemptions, guidance, and recommendations related to the integration of UAS operations into the National Airspace System (NAS). Below summarizes several recent developments of interest to UAS operators.
FAA Raises the Blanket Altitude Authorization for Section 333 Exemption Holders
On March 29, 2016, the FAA announced that it was issuing a “blanket” Certificate of Waiver or Authorization (COA), raising the authorized altitude for Section 333 exemption holders and government operators of UAS to 400 feet. Previously, FAA had issued a nationwide COA of 200 feet. The new blanket COA, as with the prior one, requires UAS operators operating under a Section 333 exemption to operate under daytime Visual Flight Rules, keep the UAS in visual line of sight of the pilot-in-command, and maintain minimum distance from airports. UAS operators must still register the UAS and meet pilot certification requirements, but by issuing the amended COA, the FAA expects to lessen the need for individual COAs by 30 to 40 percent. Any Section 333 exemption holder wishing to operate outside the parameters of the blanket COA must apply for an individual COA, specific to the operation of the UAS. In order to apply for an individual COA, the UAS operator must first have an FAA-issued exemption number and register its UAS with the FAA.
Micro UAS Aviation Rulemaking Committee Releases its Final Recommendations
On April 1, 2016, the FAA’s Micro Unmanned Aircraft Systems Aviation Rulemaking Committee (ARC) issued its final report with recommendations for performance-based standards for the operation of micro UAS over persons neither involved in the operation of the UAS nor protected in a covered structure. The FAA formed the ARC to develop consensus regarding future rulemakings governing the operation of micro UAS over persons, after issuing its proposed rule on the operation and certification of small UAS in February 2015 and reviewing public comments on that proposed rule. The FAA charged the ARC with the following three objectives: develop a performance-based standard for the classification of micro UAS; identify a means of compliance for UAS manufacturers; and recommend operational requirements for micro UAS. The ARC developed four small UAS categories for the operation of UAS over persons, focusing on risk of personal injury. The categories are based on weight and potential for injury if the UAS were to fail. Generally, the ARC recommended that the greater the risk the small UAS poses, the greater the operational restrictions that should be placed on that small UAS. Below is a summary of the categories.
The ARC has recommended that Category 1 UASs be permitted to operate over persons if the total UAS weight, including payload, is 250 grams or less and presents a low-risk probability of injury on the ground. Manufacturers can show that the UAS is Category 1 by either labeling it or certifying to FAA that the UAS meets the weight threshold. Under the ARC’s proposed Category 2, a UAS that is over 250 grams, but presents a low-level risk of injury to persons on the ground, may operate over persons if the UAS does not exceed an impact energy threshold to be established by the FAA. Category 2 would require UAS operators to follow the UAS manual, and would place further restrictions on operation over persons by requiring minimum distances of 20 feet above, and 10 feet laterally, from persons. The recommended Category 3 for UASs would entail increased operation restrictions, in addition to the restrictions placed on Category 2, given that Category 3 UASs present a higher risk for more serious injury to persons on the ground. Category 3 UAS would not be permitted to operate over crowds of people, and would be limited to closed-access areas or areas where overflight of people is incidental to the operation. The final recommended category, Category 4, would allow for the overflight of dense populations or crowded gatherings, even though the potential exists for more serious injury than Category 2 operations. The same operation restrictions as Category 2 apply to Category 4. Under Categories 2, 3, and 4, the manufacturer of the UAS would be required to (i) certify to the FAA that the UAS meets the industry standards and (ii) label the UAS as such.
The ARC also made a recommendation related to operator certification, encouraging the FAA to consider requiring, for operators of Category 1 UAS, an online knowledge assessment and certification process as opposed to the in-person test that currently is being proposed by the FAA in the pending rulemaking on the operation and certification of small UAS. Some ARC members have argued that allowing easier access to certification will encourage more operators to be certified and will increase the safety of the NAS. This recommendation was not unanimous, though, as some ARC members believe that the proposed rulemaking, which proposes a requirement for in-person knowledge tests at FAA facilities and TSA background checks, is the only way to ensure the safe integration of small UAS into the NAS. The ARC consisted of representatives from over 25 stakeholders and met twice in March 2016.
FAA Grants Exemption to UAS Operator for Nighttime Operations
On April 18, 2016, the FAA granted an exemption under Section 333 to Industrial Skyworks (USA), Inc., allowing for the nighttime operation of UAS. Out of the approximately 5,000 Section 333 petitions granted by the FAA prior to the Industrial Skyworks exemption, none had permitted nighttime operations. Industrial Skyworks petitioned for the exemption in order to allow it to conduct nighttime building inspections, which it claimed would allow it to obtain more accurate infrared readings to determine where or if heat or air is escaping a building. In granting the exemption, the FAA placed several conditions on Industrial Skyworks’ operations, including, but not limited to: (i) restricting the operational area to within 100 feet of a permanent structure, thereby ensuring that manned aircraft will not be operating in the same area; (ii) requiring Industrial Skyworks to conduct a daytime site assessment for hazards and obstacles; (iii) requiring the pilot-in-command to hold an airline transport, commercial, or private pilot certificate and medical certificate, thereby ensuring that the pilot-in-command has training in nighttime operations; (iv) requiring the UAS to be equipped with anti-collision lighting visible for 5,000 feet; (v) requiring the takeoff and landing areas to be lighted; (vi) requiring the pilot-in-command to complete Industrial Skyworks nighttime operations training programs; and, (vii) requiring the pilot-in-command and the visual observer to be in place 30 minutes before nighttime operations begin to allow for dark-sight adaptation.
Senate Passes FAA Reauthorization Bill, Including provisions related to UAS
On April 19, 2016, the United States Senate passed its version of the FAA Reauthorization Bill. Although the Senate Bill did not address the more controversial aspects of the U.S. House’s version, namely the privatization of air traffic control services, the Senate Bill does address many aspects of UAS operations in the NAS. The Senate Bill now is awaiting consideration in the House. Among other things, the Senate Bill: (i) continues the work of the National Telecommunications and Information Administration (NTIA) to develop privacy best practices, and requires the National Institute of Standards and Technology (NIST), in conjunction with the FAA, to develop standards for the remote identification of UAS: (ii) gives enforcement authority to the Federal Trade Commission to ensure that private companies adhere to their own privacy policies related to UAS operations; (iii) requires the FAA to develop a safety exam for the operation of UAS as well as standards in conjunction with the NIST for safe UAS operations; (iv) requires the FAA to revisit whether special rules for model aircraft, which typically are exempted from most FAA rules, are needed to ensure safe operations; (v) requires DOT to develop a regulation requiring economic authority, in the form of a registration statement, for UAS operators carrying property for compensation or hire; and (vi) requires the FAA to develop an underlying small UAS certification program further to the foregoing DOT registration statement requirement applicable to the carriage by UAS of property. By including provisions in the Bill addressing the carriage by UAS of property for compensation or hire, the Senate has indicated its support for a future commercial application that, thus far, has been limited in scope. Indeed, DOT’s statutory economic licensing requirements obligate any person engaging in the air transportation of property to either obtain a DOT certificate of public convenience and necessity or conduct its operations under a DOT exemption from the certificate requirement, such as air taxi, i.e., on demand, carriers operating small aircraft when such operations do not involve scheduled service above a certain threshold.
FAA Establishes New Online Aircraft Registration System for Section 333 Exemption Holders
Commercial operators of small UAS conducting operations under a section 333 exemption must register their UAS with the FAA. On April 21, 2016, the FAA published a notice concerning the registration of small UAS used for purposes other than model aircraft. Prior to issuing this notice, all UAS operating under a Section 333 exemption had to register their UAS under 14 CFR part 47 by mailing in a registration form to the FAA. In December 2015, the FAA issued an interim final rule announcing a web-based registration system for small UAS operated for recreational purposes. However, this web-based registration system was not open to current Section 333 exemption holders because the exemptions specifically required mail registration via Part 47. In the April 21st Notice, the FAA amended those exemptions to allow commercial users the option of registering aircraft via the web-based registration system in lieu of the paper-based system under 14 CFR part 47. This Notice is part of FAA’s ongoing efforts to streamline the exemption and registration process in order to safely and expeditiously integrate small UAS into the NAS.
NTIA Sets May 18, 2016 Meeting to Further Develop Best Practices for UAS Privacy, Transparency, and Accountability
On May 3, 2016, the National Telecommunications and Information Administration (NTIA) issued a notice announcing a May 18, 2016 meeting of stakeholders to address privacy, transparency and accountability in the use of UAS. This meeting is further to a February 15, 2015 Presidential Memorandum concerning the safeguarding of privacy, civil rights, and civil liberties related to domestic use of UAS. That Memorandum: (i) established guidelines for the federal use of UAS in public activities, directing federal entities to protect civil rights and liberties while ensuring accountability and transparency in the operation of UAS; and (ii) tasked the NTIA with developing a multi-stakeholder engagement process to develop such guidelines for non-commercial UAS operations. Since February 2015, the NTIA has convened several meetings to discuss privacy issues surrounding the use of UAS. The May 18th meeting will consider a working draft of voluntary best practices for UAS privacy, transparency, and accountability. The best practices currently being considered include informing other people not involved in the operation of the UAS of the use of the UAS; showing care in the operation of UAS; showing care in the storage and collection of personal data by the UAS; limiting the use and sharing of data; and securing data. In an effort to protect the First Amendment rights of newsgathering organizations, the voluntary best practices are not intended to apply to news organizations. The best practices continue to evolve as both private and public use of UAS expand.
FAA Announces the Establishment of the Drone Advisory Committee
On May 4, 2016, FAA Administrator Michael Huerta announced the establishment of the Drone Advisory Committee (DAC). The DAC is intended to be a long-standing Federal Advisory committee with a broad mission to address issues of integrating UAS into the NAS. The DAC will be comprised of industry stakeholders tasked with identifying and prioritizing various challenges presented by UAS integration. Prior FAA task forces and committees have been charged with producing recommendations in specific areas such as designing a registration system for non-commercial UAS and performance-based standards to allow for the operation of micro UAS over persons. The DAC is expected to address broader integration challenges. The DAC will be co-chaired by Brian Krzanich, CEO of Intel, and Administrator Huerta.
FAA Chief Counsel Issues Legal Interpretation Making it Easier for Students to Fly UAS
On May 4, 2016, the FAA Chief Counsel issued an interpretative memorandum concerning the educational use of UAS. Section 336 of the FAA Modernization and Reform Act of 2012 allows for the recreational use of UAS without prior FAA Authorization provided that the UAS is not more than 55 pounds, flown for hobby or recreational use, and operated in a manner that does not interfere with manned aircraft. However, if an operation is a commercial operation, prior FAA approval in the form an exemption granted under Section 333 must be obtained. As clarified by the FAA in its previously issued Interpretation of the Special Rule for Model Aircraft (79 Fed. Reg. 36172, 36174 (June 25, 2014)), commercial operations not only include flights for hire, but also “flights in furtherance of a business or incidental to a person’s business.” The FAA Chief Counsel issued his May 4th interpretation in response to inquiries from educational institutions about whether the operation of UAS at educational institutions, including operations that are part of a student’s coursework, require prior FAA authorization or are permitted under Section 336. The interpretation clarifies that: (i) a person may operate a UAS for hobby or recreation under Section 336 at an educational institution or community-sponsored event provided that either the person is not compensated or, if compensation is received, it is not related to the operation of the UAS; (ii) a student may operate a UAS under Section 336, provided such operation is in furtherance of his or her aviation-related education; and (iii) faculty may assist students operating UAS without obtaining an exemption, provided the student maintains control over the aircraft. In making this determination, the FAA stated that even though a student who learns to operate a UAS at an accredited educational institution may proceed into an aviation-related job where he or she will be compensated, the link between the coursework and the job was too attenuated to move the operation of the UAS by the student into the realm of commercial operations requiring an exemption under Section 333.
Other UAS Updates: