United States: Drones: Much Anticipated Small UAS Notice Of Proposed Rulemaking Released By FAA

Over the weekend the FAA issued a much-anticipated Notice of Proposed Rulemaking (NPRM) for small UAS—i.e., drones weighing less than 55 pounds. The oft-delayed NPRM comes three years after Congress—through the FAA Modernization and Reform Act of 2012 (the "2012 Act")—directed the FAA to develop and implement "comprehensive" regulations to safely integrate drones into the national airspace. The NPRM initiates what is expected to be a years-long process of rulemaking to establish the regulatory regime for drones of all shapes and sizes.

By and large, the NPRM represents a practical approach to allowing low-risk UAS operations during the day in uncongested airspace within the visual line of sight of the operator, and subject to speed, altitude, and weight restrictions. The NPRM also creates a new class of UAS pilot qualifications, recognizing that the FAA's current process for pilot certification is not a good fit for UAS. For the most part, the restrictions proposed by the NPRM are a somewhat more relaxed version of those the FAA has been imposing on operators who sought early permission to operate through the Section 333 Exemption process. Additionally the NPRM contemplates the possibility of adopting much less stringent restrictions for UAS weighing less than 4.4 pounds, recognizing the reduced risk profile associated with these "Micro UAS." It's likely that, on balance, the NPRM will be viewed by many with an interest in commercial and other uses of drones as a step in the right direction.

Practical as it may be, it's worth noting that this NPRM is not the "comprehensive" set of regulations that Congress mandated the FAA issue in Section 332 of the 2012 Act. In fact, the NPRM uses Section 333 of the 2012 Act as the basis for its authority to issue the present NPRM, not Section 332(b), which mandates the "comprehensive" rulemaking. Section 333 merely permits the FAA to allow some UAS operations in the national airspace before the comprehensive rulemaking required by Section 332(b) takes place. In view of this, it makes sense that the restrictions proposed by the NPRM in some respects mirror those in recent Section 333 Exemption grants. Essentially, this NPRM creates a blanket Section 333 Exemption for certain categories of operations that the FAA has deemed to be safe. The NPRM is the FAA's way of incrementally permitting limited UAS operations in advance of its comprehensive effort to fully integrate UAS into the national airspace.

What is notable about this approach is the FAA's signaling that a comprehensive set of rules to address what the FAA views as more advanced, higher-risk operations is still to come. This future "comprehensive" rulemaking will likely address UAS operations that would not be authorized by the rules proposed in the current NPRM, including autonomous operations beyond the visual line of the sight of the operator and those that require sense and avoid technology.

The FAA's incremental approach is likely to please operators with low-risk profiles. It permits limited UAS operations, buying the FAA time to understand the state of advanced UAS technology, create a plan to incorporate UAS into its NextGen implementation, and oversee the development (likely in partnership with NASA) of "highways in the sky" for advanced UAS operations in more crowded airspace. It also shows, however, just how far behind the industry the FAA actually is, in not authorizing—at least for now—the use of advanced UAS technology that could revolutionize how business is done.


The road to the NPRM has been long and winding, starting with FAA's 2007 Policy Statement, "Unmanned Aircraft Operations in the National Airspace System." There, the FAA laid out a blanket prohibition on UAS operations: "No person may operate a UAS in the National Airspace System without specific authority[.]" According to the FAA, there was only one way to obtain that authority: "apply directly to the FAA for permission to fly."1 The 2007 Policy Statement recognized that "[r]egulatory standards need to be developed to enable current technology for unmanned aircraft to comply with Title 14 Code of Federal Regulations[.]"

In 2012, Congress formalized the FAA's regulatory mission: "provide for the safe integration of civil unmanned aircraft systems into the national airspace system[.]" But the FAA lagged (and continues to lag) behind the ambitious schedule that Congress set for it. Indeed, the present NPRM is merely a first step towards integration in a "phased" approach that is likely to take the FAA years to complete. As noted above, the proposed rule does not purport to implement Congress's mandate in the 2012 Act to issue comprehensive regulations.


The NPRM's key provisions affecting operations for UAS weighing up to 55 pounds can be placed into two categories: those concerning the operation of the UAS and those concerning the operator of the UAS.

With regard to the first category—operational limitations—the FAA essentially stuck to the existing Section 333 exemption script, with a few minor adjustments. Operations must be conducted during the daytime, and the operator must have the UAS in his visual line of sight (if operating the UAS alone), or be capable of having the UAS in his visual line of sight (if operating with the aid of a visual observer). Operations cannot be conducted over people who are not involved in the operations, and must be done at less than 100 mph (87 knots) and no more than 500 feet above the ground. These parameters should allow for many rural and contained uses of UAS, including applications for industrial-scale agriculture; energy generation, transmission, production, and pipeline facilities; transportation infrastructure, including railways, roads, ports, and waterways, and the rolling stock, vehicles, and vessels that use them; private and public emergency response (e.g., fire, flooding); and resource assessment, monitoring, and compliance.

With regard to the second category—operator qualifications—the FAA departed from its past Section 333 Exemptions (and from what many expected) by not requiring that a UAS operator have a private pilot's license.

Recognizing that requiring a private or commercial license would pose an "undue burden" on UAS operators and would have "limited relevance to the nature of small UAS operations," the FAA instead opted to create a new category of airman certificate for small UAS operators. In order to be certified, an operator would have to (i) be at least 17 years old; (ii) pass an initial knowledge test; (iii) be vetted by the TSA; (iv) obtain an unmanned aircraft operator certificate with a small UAS rating; (v) pass recurrent testing; and (vi) make the UAS available to the FAA for inspections, as well as report accidents to the FAA and conduct certain pre-flight inspections.


The FAA is also seeking comment on whether it should adopt a different set of rules for Micro UAS—i.e., drones weighing up to 4.4 pounds that are made out of frangible materials that break or yield on impact, so as to present a minimal hazard to persons or structures with which the Micro UAS may collide. The key proposed operational limitations for Micro UAS would be: (i) a maximum airspeed of 30 knots; (ii) a maximum altitude of 400 feet above ground level; (iii) a maximum distance from the operator of 1,500 feet within the unaided visual line of sight of the operator; and (iv) operations conducted in Class G (unrestricted) airspace only. These limitations are, in large part, based on the rules already adopted by Transport Canada.

Most importantly, the NPRM contemplates that Micro UAS operations may be conducted "directly over people not involved in the operation." Authorizing such operations directly over uninvolved individuals may have significant implications for many urban operations, which—simply put—would not be permitted under the proposed rules applicable to UAS weighing between 4.5 and 55 pounds. The Micro UAS rules are also likely to raise additional privacy concerns not present when operations are not permitted over uninvolved people.

The operator qualifications for Micro UAS would also be different than those for other small UAS. The FAA is contemplating that no knowledge testing would be required in order to obtain a Micro UAS rating; instead, the operator would simply be required to submit a signed statement to the FAA stating that he has familiarized himself "with all the areas of knowledge that are tested on the initial aeronautical knowledge test" applicable to a small UAS rating.


Also important is what the NPRM lacks. For example, it does not propose an express preemption provision, despite significant lobbying, including a formal petition filed with the FAA, by certain groups for such a provision. This leaves open the possibility that state and local governments may attempt to regulate UAS operations differently from the way proposed by the FAA in the NPRM. Absent an express preemption provision in the final rules, such state and local regulation would not be foreclosed at the threshold, but would instead have to be analyzed under existing conflict preemption principles on a case-by-case basis.2


Release of the NPRM commences a 60-day comment period. That period may be extended by the FAA to allow interested parties additional time to comment on the proposed rule. The FAA specifically requests comments on a number of important issues that seem to reflect the agency's recognition that further regulation should take account of the rapid advances in UAS technology and be open to the burgeoning commercial uses of UAS. These include whether:

  • Regulation should be performance-oriented;
  • Operating restrictions should be relaxed based on new UAS technology;
  • Package delivery for payment should be permitted;
  • Special air carrier certification should be specified; and
  • Micro UAS classification and provisions should be developed.

After the comment period closes, the FAA is expected to take additional time to analyze the comments and implement necessary changes before issuing the final rules.

Issuance of final rules, however, will not be the end the story. We expect to see at least some judicial challenges to the final rule. These challenges may come in two forms: (i) challenging enforcement actions taken pursuant to the regulations, and (ii) direct challenges to the rule itself. Challenges to the rule itself are likely to be heard faster, as they'll be filed and heard directly in the courts of appeals. See 49 U.S.C. § 46110. Challenges to enforcement actions would necessitate a longer process, as administrative remedies will need to be exhausted before seeking judicial relief. See 14 C.F.R. § 406.179.


Interested stakeholders should be cautiously optimistic with the approach suggested by the NPRM. Those supporting commercial and other uses of drones should plan to participate in this rulemaking, both to endorse the positive aspects of the FAA's proposals and to critique those that are overly restrictive. Comments providing discussion of real-world, socially and economically beneficial uses of this technology, and how the proposed rules could encourage or hinder them, would be particularly powerful. Industry should also continue to put pressure on the FAA to issue the comprehensive regulations mandated by Congress, lest the FAA fall even further behind the technology, causing additional delay in the rulemaking process.

Companies should also continue to file individual Section 333 Exemption applications while the NPRM process is underway. It is not known when the FAA will issue final rules, and it could take a considerable amount of time. So those with an immediate desire to use UAS in their operations should seek authority to do so before the rulemaking is complete.

Finally, interested parties should be cognizant of privacy and other issues raised by the NPRM. In conjunction with the FAA issuing the NPRM, President Obama issued a Presidential Memorandum to the executive departments and agencies of the federal government highlighting steps that the federal government should take to protect privacy, civil rights, and civil liberties in operating UAS domestically. For example, the Presidential Memorandum requires that executive agencies that collect information through UAS have policies and procedures that limit such collection, as well as the retention and disclosure of any information that is collected. The Presidential Memorandum also establishes a multi-stakeholder process to be led by the National Telecommunications and Information Administration to develop best practices for privacy, accountability, and transparency in the commercial and private use of UAS. As a result, even though the FAA will not address privacy issues in its rulemaking, the President has put in place a process to address these issues in a non-regulatory manner, absent Congress enacting legislation on the issue.


1 The 2007 Policy Statement was not itself legally binding. To this day, it remains an open question whether drone flights for commercial purposes are ipso facto prohibited by federal law. See http://www.mofo.com/~/media/Files/ClientAlert/2014/11/141120HuertavPirker.pdf.

2 See "May State and Local Governments Control Low-Flying Drones?" available at http://www.mofo.com/~/media/Files/Articles/2014/12/141204MayStateLocalGovControlDrones.pdf.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Christopher J. Carr
Joanna Simon
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions