FAA Proposes Commercial Drone Rules As White House Issues Executive Memo

HIGHLIGHTS:

• A pilot's license would no longer be required to operate a UAS under the proposed rulemaking.
• The visual line of sight requirement and daylight operation restriction would remain under the proposed rulemaking.
• President Obama requires his administration and stakeholders to develop privacy, accountability and transparency best practices for UAS use.

The Federal Aviation Administration (FAA) released its long-awaited Notice of Proposed Rulemaking (NPRM) on Sunday, Feb. 15, 2015 for the commercial use of small unmanned aircraft systems (UAS), commonly referred to as "drones." The NPRM will be published in the Federal Register in the coming days and will provide a 60-day public comment period. Final rules on the commercial use of UAS are not expected until 2017 or later, according to the Government Accountability Office.

UAS are not currently permitted for commercial use unless the FAA grants an exemption for flights under restrictive circumstances. Under its new proposal, the FAA would allow commercial use of UAS within the following parameters:

• all UAS would weigh less than 55 pounds
• maximum altitude for UAS would be 500 feet (unless higher altitudes are approved by air traffic control)
• maximum speed for UAS would be 100 mph
• the operator, even with an additional visual observer, would be required to be able to keep the UAS in a line of sight at all times and could only operate the UAS during daylight hours
• flights over people would be prohibited
• payloads and towing would be prohibited, but "aerial photography" is a specifically referenced contemplated use, as are crop monitoring, research and development, education/academic uses, power line/pipeline inspections, antenna inspections, aiding rescue operations, bridge inspections and wildlife nesting area evaluations
• transporting property (i.e., deliveries) for compensation would not be permitted
• operators would be required to pass an aeronautical knowledge test and a security check but with far less stringent requirements for a pilot's license and with no medical check
• UAS would not be subject to FAA airworthiness certifications

Commercial uses outside of these parameters would require an exemption under the NPRM. The FAA also is asking for comments about whether it should recognize a separate class of "micro UAS" weighing less than 4.4 pounds (2 kilograms), which may be permitted to fly over people. Some foreign countries, such as Canada, have established similar micro UAS class regulations.

In a coordinated move, the White House released an executive memo designed to address privacy and surveillance concerns raised by civil liberties groups and members of Congress. The memorandum establishes measures that federal agencies should follow to avoid misuse of data collected in their UAS flights. The memorandum also directs the National Telecommunications and Information Administration (NTIA) to engage stakeholders, including those in the private sector, "to develop and communicate best practices for privacy, accountability and transparency issues regarding commercial and private UAS use." The NTIA has conducted similar multi-stakeholder privacy initiatives regarding mobile application transparency and facial recognition technology. It is important to note that the NPRM addresses privacy as well, including that state laws may already provide sufficient privacy protections for UAS use.

Until a final rulemaking is published, private entities must file a detailed Section 333 exemption request if they wish to fly UAS for commercial purposes. Common restrictions under the exemptions granted to date include the following:

• operator must have a full private pilot's license with at least a third-degree medical certificate, along with a visual observer
• flights must be at least 500 feet from non-operators (unless there is a barrier between the UAS and the person) and the UAS must remain 500 feet from vessels, vehicles and structures (unless the owner of the vessel, vehicle or structure grants permission)
• flights only over private or controlled access property and the land owner must have permission granted, and the UAS may not be flown over congested or densely populated areas

The proposed rulemaking would not impact pre-existing rules for non-commercial UAS flights by hobbyists or public UAS operations by units of federal, state or local governments.

Please contact Holland & Knight for further information about the NPRM, opportunities to file comments in response to it, concerns about the executive memorandum, or inquiries about operating a UAS before the final rules are published according to the exemptions.
  

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.