Federal UAS Regulation
The federal government is the primary regulator of aircraft operations and exerts significant control over the regulation of drones. In the past few years, the Federal Aviation Administration has taken a number of steps to further bring UAS operations into the mainstream, although a few key ones remain. Currently, non-recreational operations of drones weighing less than 55 pounds are regulated under what is commonly referred to as “part 107,” of federal regulations. It requires the operator to hold a remote pilot certificate, and the drone to remain within the visual line of sight of the operator or a visual observer, as well as prevents operations from taking place either over people, who are not participating in the operation of the drone or at nighttime. Nighttime is defined as “between the end of evening civil twilight and the beginning of morning civil twilight, as published in the Air Almanac, converted to local time.”
Remote Identification
On Dec. 31, 2019, the FAA released its proposed rule for the remote identification (Remote ID) of drones. The remote ID is the ability of a drone to provide identifying information that can be received by other parties during operations. Remote ID would assist the FAA, law enforcement, and federal security agencies in identifying when a drone appears to be flying in an unsafe manner or where the drone is not allowed to fly. The development of Remote ID is a necessary building block for the foundation of a UAS Traffic Management System (UTM) that is scalable to the national airspace, similar to the existing air-traffic control system applicable to traditional aircraft. Although only in proposed form, with no specific timeline for finalization, the publication represents an important step for the development of the technology. The FAA has previously stated that only once remote ID requirement is fully implemented will drones be able to expand operations beyond current limitations, which require operations not beyond the visual line of sight of the operator and only during daytime, unless granted a specific waiver from the FAA.
The proposed Remote ID rule applies to all drones that are required to be registered with the FAA (recreational drones weighing under 0.55 pounds, or 250 grams, are not required to be registered at this time). The rule proposes three options for a drone to comply with the Remote ID requirement. The first would require the drone to both broadcast its identity on a radio frequency that can be monitored nearby as well as communicate its operational information via the internet to a Remote ID UAS Service Supplier (USS). This would allow nearby drones and aircraft to avoid the drone while simultaneously allowing law enforcement agencies to identify rogue operators. A second option would require only that a drone transmit its operational information to a USS via the internet. Should a drone be complying with this option, the drone would be limited to maintaining a distance of no more than 400 feet from the operator. A third option would remove any requirements for the drone to transmit operational information to a USS via the internet or broadcast its identity if they fly in “FAA-recognized identification areas.” The FAA believes this option would likely make compliance for model aircraft minimal. Even if the proposal were finalized later this year with no changes, it still would not take effect for three years, likely pushing back any full delivery or commercial operations relying on flying beyond line of sight.
Beyond Visual Line of Sight
In Jan 2019, FAA released a proposed rulemaking that would authorize drone flights over people and at nighttime. Currently, such activities are not permitted unless an operator has specific authorization, in the form of a waiver from the FAA. Since the end of 2017, FAA has received more than 4,800 applications for night waivers but has only approved about 1,200, while denying about 2,300.
This proposed rule would allow nighttime operations if the operator completes new knowledge testing or training related to operating at night and that the drone be equipped with an anti-collision light illuminated and visible for at least three miles. Additionally, the proposal would allow for operations over people under varying conditions, depending upon the weight of the drone. Category one would allow drones weighing less than 0.55 pounds to be eligible for operations over people without any additional requirements. Category two would allow drones weighing more than 0.55 pounds to operate over people if the drone manufacturer had previously demonstrated to the FAA that if the drone crashed into a person the resulting injury “would be below a certain severity threshold.” This severity threshold includes limiting the impact to a person below a certain weight, ensuring the drone had no exposed rotating parts, and that the drone has no currently FAA-identified safety defect. The FAA does not propose specific ways in which a drone must be designed to meet these requirements. Category three would allow drones to operate over people with a higher injury threshold than category two but would restrict the types of operations a drone could undertake. Specifically, a drone under category three could not operate over any open-air assembly of people, would have to be within or over a closed or restricted-access site and anyone within that site would have to be notified that a small unmanned aircraft may fly over them, and the drone could not hover over people, although it would be allowed to transit over them.
The FAA would make a list publicly available of the drones that are compliant with any of the three categories as their manufacturers provide the necessary documentation proving their compliance. Additionally, the FAA would consider any person who purchases a compliant drone and modifies it in certain ways such as changing the drone’s computer code or outfitting it with non-compliant blades, to have taken on the role of a manufacturer and therefore would be required to seek FAA approval before that drone could undertake operations over people. Finally, the proposed rule would require that any drone operating under category two or three be labeled and identified as such. Operators would be required to follow any instructions included by the manufacturer for operations over people, while the FAA would also continue its current process for issuing waivers to these proposed and the existing requirements on drone operations outlined above.
FAA Reauthorization of 2018
Approved in fall 2018, the bill contained several provisions significantly affecting state regulation of drones.
Most importantly, section 348 directed the FAA to develop, within one year, though not yet published, a rule allowing the carriage of property by small UAS for compensation or hire—commonly known as drone package delivery. The potential for significant effect comes from the bill’s requirement that these drones be considered “air carriers.” States are currently preempted, due to provisions in the Airline Deregulation Act, from regulating the “route” of an “air carrier,” meaning they would have limited, if any, ability to prevent drones from operating in certain areas or at specific times of the day. While the bill does require that any final rule for drone package delivery “address the views of state, local, and tribal officials related to potential impacts of the carriage of property by operators of small unmanned aircraft systems for compensation or hire within the communities to be served,” it is unclear how the FAA will balance state views with the existing preemption for air carriers.
The reauthorization also addresses the issue of state and federal drone responsibilities in section 373, which requires the comptroller general (head of the Government Accountability Office) to study and report to Congress on the regulation of low-altitude operations of small unmanned aircraft and the appropriate roles and responsibilities of federal, state, local, and tribal governments in regulating such activity. The report is required to address several issues including, “the scope of various jurisdictions, gaps among them, and the level of regulatory consistency needed to foster a financially viable unmanned aircraft industry.” GAO has not yet issued the final version of the report.
Additionally, section 351 codifies the existing unmanned aircraft integration pilot program (IPP) created by the Department of Transportation (DOT) last year (more information below). Two other sections impacting how states and drones interact are sections 346 and 379. Section 346 codifies existing DOT authority to authorize public aircraft operations and provides guidance and support for government agencies seeking to operate unmanned aircraft. Section 379 requires the FAA to make available to the public, through a database, information regarding government and commercial operators authorized to operate UAS in the national airspace. The information includes where UAS are registered, summary descriptions of operations, and information on UAS that will collect personally identifiable information.
Another important set of provisions affecting drones, although not specifically aimed at states, was section 349, which redefines the rules for the operation of recreational drones by repealing section 336 of the 2012 FAA Reauthorization Act, which had severely limited the FAA’s authority to regulate recreational drones. The new rules for the operation would require passage of an aeronautical safety and knowledge test, registration and marking of the recreational drone, as well as operating under a community-based organization’s set of safety guidelines developed in coordination with the FAA. Additionally, section 376 requires the FAA to establish a pilot program to begin more thoroughly utilizing remote detection and identification of drones, which includes a mechanism for state law enforcement officials to report the suspected operation of unmanned aircraft in violation of applicable federal laws and regulations. Similarly, section 376 requires FAA to plan for full operational capability of unmanned aircraft systems traffic management (UTM) by creating a comprehensive plan for implementing UTM safety standards, among other matters, and delineate the roles and responsibility of public and private actors.
The reauthorization also included a title covering drone counter-drone authorities (cUAS). The bill gives the secretary of Homeland Security and U.S. attorney general the authority to destroy or overtake a drone that has violated protected airspace or is otherwise posing a threat to the safety or security of the United States. Similarly, section 366 also requires the FAA to develop a comprehensive strategy to provide outreach to state and local governments and provide guidance for local law enforcement agencies and first responders with respect to how to identify and respond to public safety, threats posed by UAS and how to identify and take advantage of opportunities to use UAS to enhance the effectiveness of local law enforcement agencies and first responders.
Integration Pilot Program
In May 2018, the U.S. Department of Transportation (DOT) announced the selection of 10 state, local and tribal governments as participants in the Unmanned Aircraft Systems (UAS) Integration Pilot Program, a three-year drone pilot program. The participants include:
- The Choctaw Nation of Oklahoma
- Lee County Mosquito Control District, Florida
- The University of Alaska at Fairbanks
- San Diego, Calif.
- North Carolina Department of Transportation
- Memphis-Shelby County Airport Authority, Tenn.
- Reno, Nev
- Innovation and Entrepreneurship Investment Authority, Virginia
- North Dakota Department of Transportation
- Kansas Department of Transportation.
The pilot program was established by a presidential memorandum in October 2017 giving DOT the authority to enter into agreements with at least five sites to experiment with both expanding drone authorities, such as flights over people or at night, while allowing state and local governments to issue reasonable time, place and manner restrictions. DOT received 149 applications for the program.
