United States: Final Approach: FAA Announces Long-Awaited Small UAS Notice Of Proposed Rulemaking

At a Sunday morning press conference held on February 15, 2015, the Federal Aviation Administration ("FAA") announced the release of its highly-anticipated notice of proposed rulemaking ("NPRM") governing the operations of small unmanned aircraft systems ("sUAS").  The proposed rule, titled "Operation and Certification of Small Unmanned Aircraft Systems," applies to drones weighing less than 55 pounds.

Depending upon your anticipated use of drones, the NPRM offers an encouraging vision of upcoming sUAS integration into the national airspace system ("NAS"), or it serves to shoot down your dreams. Contrary to previous public speculation about the upcoming sUAS regulatory structure (e.g., requirements for private/commercial pilot license, 3rd class medical certificate, flying below 400 feet), the NPRM appears to be more balanced and less onerous for the majority of potential sUAS users. Recreational (hobby) aircraft flown pursuant to Section 336 of the FAA Modernization and Reform Act of 2012 would not have to comply with most of the NPRM requirements, but are prohibited from endangering the NAS.

What has happened?

As a part of the FAA Modernization and Reform Act of 2012, the FAA must establish procedures for the safe integration of UAS into the NAS. Section 333 of that Act, which permits case-by-case authorizations for commercial drone operations, has served as a functional placeholder until a more permanent approval process can be put into place. The FAA's announcement reveals likely features of the sUAS regulatory framework to come, which will control how, where, and when small drones can be used for commercial purposes.

Flight operations

The NPRM proposes sUAS restrictions requiring visual line-of-sight flying (done close enough for the operator to see the drone with the unaided eye) but does not require the use of a visual observer to assist the operator. However, the rule would not permit long-range package delivery operation because those flights would presumably fly beyond the operator's unaided view. The FAA is seeking comment, however, on beyond line-of-sight operations that would not endanger other aircraft in the NAS. The fundamental visual flight principle of "see-and-avoid" (where pilots must detect other aircraft visually and avoid colliding with them) appears to be woven into the regulations, and first-person-view camera operations can be used if the operator employs other see-and-avoid methods. The operator cannot fly the sUAS at night, directly over people not involved in the drone's operation, or more than 500 feet above ground level (which is an increase over the typical 400 feet requirement for Section 333 exemption operators).

The FAA also proposes a speed limit of 100 mph, which is somewhat higher than many of the speed limits previously authorized under Section 333. The weather conditions during flight must permit three miles visibility from the control station. The FAA will, of course, still prohibit careless or reckless sUAS operations.

Additionally, no sUAS operations would be permitted in Class A airspace (18,000 feet above mean sea level and higher, which is hardly an imposition when the aircraft are not permitted to fly more than 500 feet above the ground. Operations in Class B (complex airspace near heavy-traffic airports), C (near medium-traffic airports), D (near lighter-traffic airports) and E (around other airports and in between other airspace layers) airspace are permitted, but would require air traffic control permission and coordination. Interestingly, this framework would permit sUAS operations within three miles of airports, so long as the operator notifies air traffic control in advance and yields to other aircraft. Currently, flights within three miles of airports are restricted. Operations in Class G airspace (mostly low-level airspace underlying Class E) are allowed without Air Traffic Control permission.

Operator certification and other requirements

Before a drone takes to the air, there will be additional requirements under the NPRM. First, the operator must be at least 17 years old, pass a written knowledge test, be vetted by the Transportation Security Agency, and obtain an "unmanned aircraft operator certificate" with a small UAS rating. This sUAS operator certificate, like its counterpart for private pilot certificates, never fully expires but must be renewed every 24 months by demonstrating proficient knowledge. Presently, pilots of manned aircraft (from hot air balloons to multi-engine jets) must take a written knowledge exam before obtaining their certificates, in addition to other certification requirements. The test covers a variety of subjects, including airspace, weather affecting flight, right-of-way rules, interpretation of sectional charts, airport operations and other rules of flight.

The FAA can require inspection of the operator's aircraft and any associated documents or records. It is not yet clear what other requirements would be a part of obtaining this new certificate, but we do know that obtaining a medical certificate will not be required. If the NPRM becomes final, obtaining a sUAS certificate will cost thousands of dollars less than a private pilot or commercial pilot certificate. That's great news for potential commercial sUAS operators.

Operators must conduct a preflight inspection of the vehicle's flight systems (much like pilots of manned aircraft today) and report accidents to the FAA within 10 days of occurrence. While an FAA airworthiness certification is not required, operators must maintain their sUAS in safe condition, register the aircraft with the FAA and display a registration number prominently on the drone's side.

Interestingly, the NPRM reveals that the FAA is considering relaxed standards for so-called "microUAS" (drones weighing less than 4.4 pounds) in Class G airspace operated directly over any person as long as the operator certifies he or she has sufficient "aeronautical knowledge to perform the operation." The microUAS would have to be made of frangible materials that easily break or yield on impact, flight would not be permitted in excess of 34 mph or 400 feet above ground level, and the operator would have to maintain close (1500' or less), manual control of the drone. The FAA suggested such a microUAS category could become part of the final rule.

Next steps

Once the NPRM is published in the Federal Register, members of the public will have 60 days (i.e., around mid-April unless the FAA extends the period) to submit comments about the NPRM. The FAA also specifically invited comments on what technologies might be available that would permit beyond line-of-sight sUAS flights.

Given the wide-reaching impact of these regulations on commercial UAS activity in the United States, there will be a high volume of comments. For example, last week, the FAA filed its Status Report in UAS America Fund, LLC, et al. v. FAA (D.C. Cir. Nos. 14-1156, -1157, -1158) indicating that the FAA received approximately 33,000 public comments in response to its June 25, 2014, Interpretation of the Special Rule for Model Aircraft (the "Interpretation"). The FAA has been using a private contractor to assist in collecting and processing these "Interpretation" comments and expects a final report from the contractor within the next few weeks, after which the FAA will begin preparing responses to the "Interpretation" comments. Generally, after releasing an NPRM, a regulatory agency must review and respond to all relevant and significant public comments in order to comply with federal administrative rulemaking requirements. This Status Report provides us with just a hint of what could be a massive undertaking that is ahead of the FAA when comments to the NPRM start rolling in.

The FAA's decision in this NPRM to refrain from requiring some of the more arduous requirements (like requiring that drone pilots obtain an expensive commercial or private pilot certificate) could actually alleviate some of the public controversy and thereby reduce the number of comments to the NPRM. Only time will tell. One thing is for certain: after years of waiting in darkness, commercial operators of small drones have finally caught a ray of sunlight through the clouds.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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