• This past weekend the Federal Aviation Administration (FAA) took the first steps to allow the routine use of certain small unmanned aircraft systems (UAS) for commercial purposes in U.S. airspace.  In taking this highly anticipated action, the FAA released a proposed rule, an overview of the proposed rule, a fact sheet and a press release.  The White House also released its long-expected executive order on drone privacy.

    Secretary Foxx and Administrator Huerta held a press conference on Sunday announcing the Administration’s actions.  Administrator Huerta’s delivered remarks can be found here and an audio of the press event can be found here.

    Also released by FAA over the weekend–by accident–was the Notice Of Proposed Rulemaking Regulatory Evaluation, which can be found here.  This document was taken down from FAA’s website shortly after it was posted.

    Here are ten important things to know about the proposed rule.

    First, the notice of proposed rulemaking (NPRM) will most likely be published in the Federal Register this week, possibly on Wednesday, February 18th.  The public will be able to comment on the proposed regulation for 60 days from the date of publication.  FAA official documents and the comments by the public will be placed in Docket ID: FAA-2015-0150, which can be found here.

    Second, and importantly, this is only a proposed rule.  It will not take effect until it is finalized and implemented, which is a lengthy process and could take until 2017.  In the interim, FAA’s current policies on the use of small UASs remain in effect.

    Third, the proposed rule only applies to certain small non-recreational drones.  While FAA airworthiness certification will not be required (which can take several years to obtain), the drone must–

    • weigh less than 55 pounds;
    • be registered (same registration as for all other aircraft);
    • be maintained in condition for safe operation;
    • be inspected prior to each flight; and
    • have aircraft markings (same markings as for all other aircraft).

    Fourth, FAA is proposing that the new rules only apply to drones operated in a certain way, most notably drones that–

    • remain close enough to the operator for the operator to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses (i.e., visual-line-of-sight flight only);
    • are flown only during daylight;
    • are not operated over any persons not directly involved in the operation;
    • do not exceed a maximum airspeed of 100 mph;
    • do not exceed a maximum altitude of 500 feet above ground level;
    • are not operated carelessly or recklessly; and
    • are operated so as to not allow any object to be dropped.

    Fifth, under the proposed rule, the person actually flying a small UAS would be an “operator,” who would have to–

    • be at least 17 years old;
    • pass an aeronautical knowledge test; and
    • obtain an FAA UAS operator certificate.

    To maintain certification, the operator would have to pass the FAA knowledge tests every 24 months.  A small UAS operator would not need any further private pilot certifications (i.e., a private pilot license or medical rating).

    Sixth, according to an article in Politico, the reaction to the FAA’s proposal has been measured at best. The Association for Unmanned Vehicle Systems International praised the FAA for issuing the long-delayed rule, but remained cautious about its impact.  The Airline Pilots Association was measured in its response, given that the NPRM does not call for full pilot licensing or medical certification. And Amazon issued a statement stating that “The FAA’s proposed rules for small UAS could take one or two years to be adopted and, based on the proposal, even then those rules wouldn’t allow Prime Air to operate in the United States.”

    Seventh, the White House’s privacy memo will also receive considerable attention in the coming weeks and months.  It generally pertains to the federal government’s use of drones but also convenes a multi-stakeholder process for privacy issues relating to drone use generally.  Press reports have indicated that the American Civil Liberties Union and Senator Markey have criticized the proposal as not going far enough to address privacy concerns.  A post on the White House memo can be found on Covington’s Inside Privacy Blog.

    Eighth, the leaked FAA Regulatory Evaluation focused on four potential small UAS markets:

    • Aerial photography,
    • Precision agriculture,
    • Search and rescue/law enforcement, and
    • Bridge inspection.

    It found that the NPRM would not only enable new technologies for these markets and other new marketplace opportunities, but utilizing a small UAS in place of a manned aircraft would save costs and improve safety.

    Ninth, the NPRM also includes extensive discussion of the possibility of an additional, more flexible framework for “micro” UAS under 4.4 pounds. The FAA is asking the public to comment on this possible classification to determine whether it should include this option as part of a final rule.

    Tenth, the NPRM would not apply to model aircraft.  Model aircraft operators must continue to satisfy all of the criteria specified in Sec. 336 of Public Law 112-95.  As a general matter, the NPRM would also not apply to government aircraft operations, because FAA expects that these government operations will typically continue to actively operate under the Certificate of Waiver or Authorization process unless the operator opts to comply with and fly under the new small UAS regulations.

    Global Policy Watch

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