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They’re Coming! The drones, that is—and the FAA regulations governing their use

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Despite 2015 drone sales approaching three-quarters of a million units, the FAA has been slow to enact regulations governing their safe flight in U.S. airspace or to permit commercial uses, except through specific individual exemptions. This article addresses the current industry landscape, proposed FAA regulations and regulations in other countries, and recommendations for U.S. regulations.

Drone regulations are coming! But as the industry’s users (or potential users) struggle to learn the rules by which they must play, the question remains, when will the regulations come? Drones have been among the hottest holiday gift items this season—the Consumer Electronics Association estimated that some 700,000 would ship by the end of 2015—and the race is on to create some rules for them.

Congress has mandated that the Federal Aviation Administration (FAA) prepare a plan to safely integrate civil Unmanned Aircraft Systems (UAS), a.k.a. drones, into the National Airspace System (NAS) by September 30, 2015. But September has come and gone, and with over 700,000 drone sales expected this year alone, the FAA needs to provide guidance, and soon.

An FAA task force released its proposed rules on November 21, 2015, for registration requirements for recreational drones.1 The Task Force recommended that all small UAS users:

  1. Must fill out an electronic registration form through the web or through an application (app);
  2. Immediately receive an electronic certificate of registration and a personal universal registration number for use on all small UAS owned by that person; and
  3. Mark the registration number (or registered serial number) on all applicable small UAS prior to their operation in the NAS.

On December 14, 2015, the FAA approved these recommendations through its “emergency” rulemaking power under the Administrative Procedure Act, and registration began on December 21, 2015. In order to encourage participation, registration is free until January 21, 2016, when a $5 fee for registration of recreational drones will apply.2

But what about commercial uses? They continue to expand; in comparison to manned aircraft, drones hold out the prospect of lower-cost operations, augmented capabilities, and reduced risk to human life. Moreover, drones will likely have a positive economic impact on other U.S. industries.3 But the FAA has yet to enact regulations governing the safe flight of UAS in U.S. airspace or to permit commercial uses, except through specific individual exemptions granted for commercial drone operation.

Without such regulations, both the UAS industry and casual operators are faced with uncertainties that include the altitude at which FAA authority applies, the environmental standards for UAS, privacy protections, design specifications and requirements, and acceptable methods of piloting UAS. This article addresses the current industry landscape, proposed FAA regulations and regulations in other countries, and recommendations concerning regulations.

Background

UAS/drones are remote-controlled, unmanned aircraft, operated without direct human intervention from within or on the aircraft, and possessing certain associated elements, including communication links and air-control components to ensure safe and efficient operation in the NAS.4 Until recently, public familiarity with drones was limited to grainy, black-and-white video from military operations; now producers and consumers alike are beginning to grasp the commercial significance of UAS/drones in both urban and rural communities and in various industries, including real estate, construction, agriculture and entertainment. Both the technology and its popularity have moved faster than the law governing its use.

Congress created the FAA in 1958 to regulate and oversee all aspects of American civil aviation. The FAA’s authority to regulate aviation in the U.S. is limited to the Federal Aviation Act of 1958 and its Federal Aviation Regulations governing aviation activities in the U.S., including operation of UAS. The FAA requires all aircraft to be (1) registered; (2) airworthy (requiring an airworthiness certificate per Title 14 part 91 §91.203); and (3) operated by a certified airman.5

Current FAA regulations, specifically those addressing airworthiness, simply are not workable with UAS. In fact, the FAA first addressed UAS in its Modernization and Reform Act of 2012 (FMRA),6 noting that Congress authorized it to allow exemptions to the airworthiness requirements pursuant to section 333 of the FMRA. Regardless of the operation, all UAS are currently precluded from carrying people or property for compensation or hire.7 Amazon cannot simply drop packages on your doorstep via UAS delivery—yet.

The FAA regulations and exceptions do not, however, apply to the use of model aircraft for hobby rather than commercial gain. The former was covered under the FAA Advisory Circular 91-57, Model Aircraft Operating Standards, which the FAA cancelled on September 1, 2015.8 As of September 2, 2015, FAA Advisory Circular 91-57A applies.9 According to the terms of this newest advisory, model aircraft should weigh 55 pounds or less and should fly (1) below 400 feet; (2) in a manner that does not interfere with, and gives way to, any manned aircraft; (3) away from prohibited areas and five miles away from airports, unless the operator has provided prior notice to, and received approval from, the airport operator; and (4) within the sight of the model aircraft operator. But the use of either model aircraft or UAS currently is not authorized in Class B airspace, which incorporates major urban areas and contains the highest density of manned aircraft in the NAS.10

To ensure that UAS can be safely integrated into the NAS and to help develop standards for pilots of commercial unmanned aircraft, Congress authorized the FAA to create six UAS test sites. The sites are located in Alaska (University of Alaska), Nevada, New York (New York’s Griffiss International Airport), Texas (Texas A&M University in Corpus Christi), Virginia (Virginia Tech) and the Northern Plains UAS test site at the University of North Dakota at Grand Folks Red River Valley.11 All test sites attempt to address various technical challenges apparent with UAS, which include sense and avoid (SAA) systems, control and communications (C2) links, and general UAS safety.12 For instance, manned aircraft use a concept known as “see and avoid;” in contrast, UAS require alternative safety systems because they cannot always see the obstacles before them. The FAA anticipates SAA systems will be ready between 2016 and 2020 and C2 structures between 2016 and 2017; the handling of safety concerns will continue to be a work in progress as the technology and its uses expand.

In summary, drone operations in the NAS are restricted to “hobby” use, section 333 exemptions, and Special Use Airspaces for governmental testing and training. Flight is generally limited to below 400 feet above ground level, and only daytime use in line of sight of the operator is permitted. In government test sites, by contrast, UAS operations generally do not have the same flight limitations. For example, the Northern Plains test site in North Dakota focuses on agricultural use and experiments with night-time flight beyond line of sight to a height of about 1,200 feet.13 The research results gathered at the FAA’s test sites, and the experience of users with section 333 exemptions, will play an important role in resolving these technological problems and addressing safety concerns in the crafting of FAA regulations.

These challenges hamper the use of drones within various industries across the country. But they are not preventing it: Commercial businesses across all industries are taking advantage of section 333 exemptions.
Starting in late May 2014, the FAA began accepting petitions for section 333 exemptions to operate UAS commercially in the NAS. The first approved industry uses were granted on September 25, 2014, to six film and television production companies.14 By September 1, 2015, the FAA had approved 1,407 exemptions out of over 2,650 petitions.15 As of November 6, 2015, the FAA had granted 2,213 exemptions.16 The rates of applications for exemptions—and approvals by the FAA—have grown exponentially.

Use of UAS

The Association for Unmanned Vehicle Systems International conducted a study of the first 1,000 commercial UAS exemptions. It found that more than 50 percent of the platforms fall into the micro-UAS category (weighing less than 4.4 pounds).17 Only one platform weighed over 55 pounds. The median endurance of the platforms was 25 minutes, the mean 28.25 minutes. Nearly all the platforms used electric propulsion—thereby improving safety, especially in cases where legacy tools require flammable fuel. According to the Association, users spanned 49 states and over 25 major industries. In the applications for those first 1,000 exemptions, industry users represented the following reasons for their use:

  • Aerial photography
  • Real estate
  • General aerial surveying
  • Agriculture
  • Construction
  • Film and television
  • Utility inspection
  • Environmental uses
  • Search and rescue
  • Emergency management
  • Insurance18

To cite one example among the many uses of UAS, agricultural users are projected to save significantly and derive many benefits. The uses of drones in that sector include providing early detection of insect or disease outbreaks as well as nutrient deficiency in crops. They are also expected to produce (1) improved planning for farmland that will result in increased efficiency, better yields and more accurate yield prediction; (2) real-time, high-resolution imagery that will assist in more precisely applying crop inputs, validating past management decisions, and adjusting in-season practices; and (3) aerial crop spraying that reduces reliance on tractors.

What is clear is that the UAS industry is growing, and its applications have only begun to be realized. What is not clear, however, is how the UAS industry will evolve given the current uncertainty with the law. As frequently seen in other U.S. industries, regulatory uncertainty discourages technological innovation, resulting in stagnation and a reluctance to push technologies too far ahead of the rules, lest resources be wasted in developing platforms that may never fly.

State Reaction

The lack of FAA regulations for small UAS has not escaped the notice of state governments. States and municipalities have had differing reactions to the uncertainty created by a dearth of federal regulations. Some states have opted to enact their own laws, while others have imposed a moratorium on drone use. As of October 8, 2015, 26 states had enacted laws and an additional six had adopted resolutions.19 Common issues addressed by state-level legislation include defining what a UAS is, how law enforcement or other state agencies may use them, how the public may use them, and regulations concerning their use in hunting game.

Other states and municipalities have placed a near-moratorium on the use of drones. For example, Virginia imposed a near-moratorium for two years on police use of drones except in search-and-rescue operations and certain life-or-death emergencies.20 Rhode Island bans drones in the vicinity of any public open air event.21 Even in Minnesota, the City of St. Bonifacius (Hennepin County) has placed a moratorium on drone use for two years.22 The Minnesota Senate proposed (in S.F. 878) to address the use of UAS by law enforcement, limiting the use to emergency situations or only after the execution of a search warrant; both uses would require compliance with the FAA regulations.23

Potential FAA Regulations

The FAA published its first edition of its “Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap” in 2013. Although it is not binding law, the Roadmap highlights the FAA’s goals in integrating UAS into the NAS. The FAA aims to create strict airworthiness standards and operational limitations to determine the reliability of UAS in very controlled circumstances. Next, the FAA will develop design standards tailored to a specific UAS application and proposed operating environment. The FAA hopes this leads to type certificates and/or production certificates and eliminates the need for the FAA to address all potential UAS designs and applications. Ultimately, the requirements for the operation of small UAS will vary depending on the nature and complexity of the operation, the aircraft design and/or component system limitations, the environment in which it will be operated, and the operator qualifications necessary to navigate in that environment.24

The goals noted in the 2013 Roadmap are reflected in the FAA’s proposed rules, published on February 15, 2015. According to the proposed rules, UAS/drones:

  1. must weigh less than 55 pounds;
  2. may only operate during standard daylight hours and within visual sight;
  3. must fly no higher than 500 feet and go no faster than 100 mph;
  4. must be operated by a person at least 17 years old who has passed a FAA knowledge test; and
  5. must be registered, but do not require an airworthiness certification.25

The FAA also proposes that UAS may not be operated over any persons not directly involved in the operation. The FAA does, however, propose a distinction for micro UAS, allowing operations in Class G (uncontrolled) airspace over people not involved in the operation so long as the operator certifies that she has the requisite aeronautical knowledge to perform the operation. No operations will be allowed in Class A airspace (18,000 feet and above) but allowed in Class B (nation’s busiest airports and major urban areas), C (generally from the surface to 4,000 feet surrounding airports with an operational control tower), D (generally from the surface to 2,500 feet surrounding airports with an operational control tower) and E (generally controlled airspace not classified as A, B, C or D) airspace with prior approval from Air Traffic Control. The FAA has also indicated that it is considering issuing separate regulations for UAS weighing less than 4.4 pounds.

Regarding certification of UAS operators, the FAA proposes that applicants must:

  • be at least 17 years old;
  • pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center;
  • pass a recurrent aeronautical knowledge test every 24 months;
  • be vetted by the Transportation Security Administration;
  • obtain an unmanned aircraft operator certificate with a small UAS rating; and
  • make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the proposed rule.

The proposed FAA regulations do not provide exceptions for operations at night or beyond the line of sight of the operator. To be fair, neither do the regulations in other countries, notably the United Kingdom, Australia and Canada. In fact, the proposed FAA regulations mirror, in some respects, those in force in Australia and the United Kingdom. The regulations currently in force in those countries provide some guidance regarding safe operation of small UAS.

Australia

Australia’s Civil Aviation Safety Authority (CASA) regulates the use of what it terms “unmanned aircraft.” Generally, Australia approves the specific type of use of unmanned aircraft on a case-by-case basis, with general rules applicable to certain unmanned operations. Without a specific approval, persons may not operate unmanned aircraft into clouds or at night.26 In addition, persons must not operate unmanned aircraft within 30 meters (98 feet) of a person not associated with the operation, except if the unmanned aircraft approaches no closer than 10 meters (33 feet) horizontally and 30 feet vertically. The CASA mandates that any person operating an unmanned aircraft must do so in a way that does not create a hazard to another aircraft, person or property. Strict liability applies to any violations under the CASA regulations.

In deciding whether to permit the use of unmanned aircraft, the CASA considers the effect the operation of the craft has on the safety of air space and specific area requested. The CASA also considers the “degree of redundancy in the [unmanned aircraft’s] critical systems, fail-safe design characteristics of the [unmanned aircraft], and the security of its communication and navigation systems.” The CASA may approve an unmanned aircraft to fly 400 feet above ground level in controlled airspaces permitted for flight by the CASA and with traffic control clearance. Outside an approved area, unmanned aircraft can only operate 400 feet above ground level if it has CASA approval and stays clear of “populous areas.” Unmanned aircraft can only fly over populous areas with CASA approval.

The United Kingdom

The United Kingdom authorized the Civil Aviation Authority (CAA) to regulate “small unmanned aircraft” (unmanned aircraft weighing less than 20 kilograms/44 pounds). Although not treated as authoritative, the CAA’s Order and Regulations, amended April 1, 2015, address the United Kingdom’s policies on the use of small unmanned aircraft. Under these regulations, all flights conducted for commercial gain must be pre-approved by the CAA.27 Generally, all small unmanned aircraft must be kept within the visual line of sight with its operator (500 meters/1640 feet horizontally and 400 feet vertically). An operator must seek CAA approval for any operation beyond these distances, mainly to ensure the unmanned aircraft can fly beyond these perimeters safely. In addition, no “article” or “animal” may be dropped from a small unmanned aircraft in a way that endangers persons or property.

Regarding where small unmanned aircraft can operate, the CAA establishes that any small UAS equipped to undertake any form of surveillance or data acquisition must not be flown, except with CAA approval:

  1. over or within 150 meters (492 feet) of any congested area;
  2. over or within 150 meters (492 feet) of an organized open-air assembly of more than 1,000 persons;
  3. within 50 meters (164 feet) of any vessel, vehicle or structure that is not under the control of the person in charge of the aircraft; and
  4. within 50 meters (164 feet) of any person except during take-off or landing, when the aircraft must not be flown within 30 meters (98 feet) of any person except for the person in charge of the aircraft.28

Any small unmanned aircraft weighing more than seven kilograms (15 pounds) has more restrictions placed on its flight, namely not being allowed to fly in Class A, C, D or E airspace unless permitted by the appropriate air traffic control, within an aerodrome traffic zone within specific hours, or above an altitude of 400 feet unless it is flying in the airspace specifically described above.29

Recommendations for UAS Use

Unlike Australia and the United Kingdom, the United States does not have regulations in place to instruct commercial users regarding the use of small UAS. The UAS industry does not know what to expect regarding rules and regulations. Commercial operators and manufacturers (those who are expected to have deep pockets) will be the likely targets for litigation involving UAS. For example, operators may be subject to suit for negligent operation. If the violation of the FAA regulations (proposed or those in force for manned aircraft) can be causally linked to a UAS accident and resulting injury, then an argument of negligence per se may be made.30 There is also a risk of liability to air traffic controllers and airport owners for any incidents that occur in the NAS.

Therefore, the need for guidance is paramount. The regulations from the United Kingdom and Australia, along with information gathered from research and development from the national test sites, should be used to assist in the preparation of regulations to integrate small UAS into the NAS.

Given the expansive potential of commercial drone usage and the prospects for the industry’s future growth and development, both the authors and the Association for Unmanned Vehicle Systems propose that the FAA regulations allow for (1) beyond-visual-line-of-sight operations, (2) night-time operations and (3) operations over heavily populated areas.31

Absent these provisions, we risk inhibiting the growth of the UAS industry in creating new and innovative uses for UAS. The focus of the FAA should be on a risk-based, technology-neutral regulatory framework.32 By emphasizing the “risk profile” of the particular UAS (which appears to be the stated goal in the 2013 FAA Roadmap), the FAA could ensure that its regulations will not inhibit innovation and experimentation in the industry. Risk-based profiling would eliminate the need for the FAA to create new regulations each time a new technology emerges, and it would benefit the UAS industry. Low-risk flights such as aerial surveys above rural farmland would be permitted, for example, allowing the agricultural industry to fully take advantage of the UAS technology.

To enact meaningful regulations, the government will need to maximize the use of its six test sites and collaborate with the UAS industry. Currently, however, the UAS industry is left in the dark. Although there are many unknowns regarding FAA regulations, one thing is clear: Until the FAA enacts regulations, industry users will need to apply for section 333 exemptions to operate UAS for commercial purposes. For now, the safest course of action is to look to the proposed FAA regulations as a guide to safe operation of small UAS. As reflected in the regulations in the United Kingdom and Australia, operators should not drop any object from a UAS in flight that creates a hazard to persons or property. For manufacturers, reminding customers to operate safely and providing information—such as links (on webpages or other promotional material) to FAA pages containing rules and safety guidelines—is a good start.

So, as we look to the skies, uncertain about the operations of small UAS, we should hold some small comfort that UAS regulations are coming. We just have to play it safe until then.


 

DAVID CAMAROTTO is a shareholder at Bassford Remele, PA. David is an accomplished litigator who represents individuals, insureds and self-insured businesses in the defense of general liability, construction, and product liability matters. He is a member of the Association of Defense Trial Attorneys, has served as a trial advocacy adjunct professor at both William Mitchell College of Law and at the University of St. Thomas School of Law and is recognized as a Minnesota Super Lawyer.

UZODIMA FRANKLIN ABA-ONU is an associate at Bassford Remele, PA. Frank practices in all areas of civil litigation, with a focus on general liability, products liability, professional liability, and employment law. A cum laude graduate of the University of St. Thomas School of Law, Frank is an adjunct professor at William Mitchell College of Law.


Notes

1 Unmanned Aircraft Systems (UAS) Registration Task Force (RTF) Aviation Rulemaking Committee (ARC) Task Force Recommendations Final Report (11/21/2015), available at https://www.faa.gov/uas/publications/media/RTFARCFinalReport_11-21-15.pdf 

2 “FAA Announces Small UAS Registration Rule,” Federal Aviation Administration news release (12/14/2015), https://www.faa.gov/news/press_releases/news_story.cfm?newsId=19856

3 Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems, 80 Fed. Reg. 9355 (2/15/2015) [hereinafter Drone Memorandum], available at https://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua

4 Id. at §3.

5 See Scott Kesselman, The First 1,000 Commercial UAS Exemptions 13 (Kellie Sigler and Brett Davis eds., Association for Unmanned Vehicle International 2015) [hereinafter AUVSI].

6 Id.

7 Unmanned Aircraft Systems, The Federal Aviation Administration (8/27/2015), http://www.faa.gov/uas/

8 See AC 91-57 (Cancelled) – Model Aircraft Operating Standards, The Federal Aviation Administration, available at https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentid/22425

9 Model Aircraft Operating Standards, Advisory Circular No. 91-57A (9/2/2015), available at https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A.pdf

10 Unmanned Aircraft Systems, supra note 8.

11 Test Sites, The Federal Aviation Administration (8/4/2015), https://www.faa.gov/uas/legislative_programs/test_sites/

12 Major Stephen Maddox and Capt. David Stuckberg, Drones in the U.S. National Airspace System: A Safety and Security Assessment, Harv. L. Sch. Nat. Security J. (2/24/2015), http://harvardnsj.org/2015/02/drones-in-the-u-s-national-airspace-system-a-safety-and-security-assessment/

13 AUVSI, supra note 6, at 3.

14 Id. at 2.

15 Id.

16 Section 333, The Federal Aviation Administration (8/21/2015), https://www.faa.gov/uas/legislative_programs/section_333/ .

17 AUVSI, supra note 6, at 15.

18 Id. at 2.

19 “Current Unmanned Aircraft State Law Landscape,” National Conference of State Legislatures (10/8/2015), http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx

20 “State Senate should approve proposed drone regulations,” Los Angeles Times (7/28/2014), http://www.latimes.com/opinion/editorials/la-ed-drones-20140728-story.html

21 Peter Sachs, Esq., Rhode Island’s RIAC and its Drone “Ban”, Drone-RSS.com (6/20/2014), http://drone-rss.com/2014/06/rhode-islands-riac-and-its-drone-ban/ 

22 Martin Moylan, “Drones take flight with consumers; safety worries rising, too,” MPR News (5/13/2015), http://www.mprnews.org/story/2015/05/13/drones

23 S.F. 878, 89th Leg., Re. Sess. (MN. 2015).

24 Federal Aviation Administration, Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap (1st ed. 2013), available at http://www.faa.gov/uas/media/uas_roadmap_2013.pdf

25 Federal Aviation Administration, “Overview of Small UAS Notice of Proposed Rulemaking,” available at http://www.faa.gov/regulations_policies/rulemaking/media/021515_sUAS_Summary.pdf

26 Civil Aviation Safety Authority Regulations 1998 (Cth) sub-pt 101.095 (Austl.).

27 See The Air Navigation Order 2009, SI 2009/3015 (Eng.).

28 Id. at art. 167.

29 Id. at art. 166, §4.

30 See, e.g., Beck ex rel. Chain v. Thompson, 818 F.2d 1204 (5th Cir. 1987).

31 AUVSI, supra note 6, at 2.

32 See id.

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