FAA Issues New Proposed Rule on Commercial Drone Use
In what will certainly shape the future of commercial drone use in the United States, the FAA over the weekend issued its long awaited proposed rule on commercial drone use (PDF). Here’s a link to the proposed rulemaking.
Here’s a link to a summary of the proposed rule: www.faa.gov/regulations_policies/ rulemaking/media/021515_sUAS_Summary.pdf
Following are a few of the operational limitations on commercial drone use proposed by the FAA:
- Drones must be under 55 pounds
- Flights must take place during daylight hours
- Flights must take place within visual line of sight of the operator
- Operators may work with a visual observer, but the operator still must be able to maintain visual line of sight
- The drone must be registered and aircraft markings are required
- Operators must be 17 years old, pass an aeronautical knowledge test, hold an FAA UAS operator certificate, and pass a TSA background check
- Aeronautical knowledge testing must be renewed every 24 months (no private pilot license or medical rating would be required)
- Operators must ensure their aircraft is safe for flight, but there are no burdensome airworthiness standards or certification requirements (a preflight inspection conducted by the operator, checking communications links and equipment will be sufficient)
- Operators must report an accident to the FAA within 10 days of any operation that results in injury or property damage
- No operations are allowed in Class A (18,000 feet & above) airspace. Operations in Class B, C, D and E airspace are allowed with the required ATC permission, Operations in Class G airspace are allowed without ATC permission
- The new rules will not apply to model aircraft if those operators continue to satisfy all of the criteria specified in Sec. 336 of Public Law 112-95, including the stipulation that they be operated only for hobby or recreational purposes
- The proposed rule maintains the existing prohibition against operating in a careless or reckless manner. It also would bar an operator from allowing any object to be dropped from the UAS
The proposed rule will now go through a lengthy public comment period. It is not expected that a final rule will be issued before 2017.
As expected, the new proposed rule focus on safety and security. Some implications of the new proposed rule: First, the limitation on remote operation would seemingly prohibit any use of drones for delivery — for instance by Amazon. This limitation also effectively limits the kinds of apps that might be developed to control drones through a smart phone.
Second, the proposed rule is silent on the all-important issue of privacy with regard to commercial drone use. Senator Ed Markey (D-Mass.) said the order was insufficient and that he would introduce legislation requiring stronger privacy rules. “It stops short of ensuring that the strongest safeguards are in place to protect privacy and promote transparency,” Markey said. “The FAA order merely directs NTIA to come up with a voluntary framework for privacy for commercial drone use. We need strong, enforceable rules for both commercial and government activities that require transparency about the collection, use, and retention of data collected by drones before they take flight.” Absent any federal legislation, State and local laws will be needed to clarify the privacy implications of increased drone use, including any warrant requirements.
However, President Obama issued an executive order that accompanied the new FAA proposed rules. The President’s executive order — officially a Presidential memorandum titled “Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems” — requires federal agencies to implement guidelines and publicize policies by February 15, 2016. Such guidelines and policies must be updated every three years. These policies apply only to use of drones by government and do not directly impact commercial drone use. With regard to private commercial use of drones, the Presidential Memorandum requires that the Department of Commerce’s, National Telecommunications & Information Administration (NTIA) begin a process for creating privacy, accountability and transparency rules for commercial and private uses of drones. Any such rules will take at least a year to develop — perhaps longer — and will be voluntary.
The FAA Rulemaking process is likely to elicit considerable comment and attention from the drone industry. Notwithstanding the importance of the federal regulations governing safety and security, there are still large legal gaps that remain to be filled by State and local legislators and regulators.