Proposed Small UAS Rule Expected Before the End of 2014, But Final Rule May Be Delayed Until 2017

HIGHLIGHTS:

  • On Dec. 10, members of Congress in a hearing pushed the FAA to quicken the pace of efforts to safely integrate unmanned aerial systems (UAS), commonly referred to as drones, into the national airspace.
  • While the FAA's overall progress on UAS integration has been troubling for businesses in the U.S., today's hearing demonstrated that Congress is listening to those concerns and is willing to use its oversight authority to promote UAS integration.

On Dec. 10, members of Congress in a hearing pushed the Federal Aviation Administration (FAA) to quicken the pace of efforts to safely integrate unmanned aerial systems (UAS), commonly referred to as drones, into the national airspace.

The Department of Transportation Office of the Inspector General and Government Accountability Office witnesses, however, confirmed to frustrated legislators that while a proposed small UAS rule is expected to be released before the end of 2014, a final rule likely will not be in place until 2017 or beyond. Until a final rulemaking is in place, small UAS can only be flown for commercial purposes if the user receives a Certificate of Authorization (COA) or an exemption under Section 333 of the FAA Modernization and Reform Act.

Members of the U.S. of House of Representatives Committee on Transportation and Infrastructure's Subcommittee on Aviation also peppered witnesses with questions about the lack of progress at the six test sites set up to test UAS use by private industry. On numerous occasions, members of Congress voiced concern that the lack of a regulatory framework for UAS in the United States was causing many companies to conduct their research and development overseas – this was described as stifling innovation and creating a competitive disadvantage.

Specifically, members of the subcommittee encouraged the FAA to better accomplish all of the following:

  • coordinate with the test sites to collect data to inform the FAA's development of new regulations
  • expedite its processing of petitions for Section 333 exemptions from the FAA's ban on commercial uses of drones
  • work more closely with industry to identify how technologies may be used to manage risks associated with UAS
  • determine what data is necessary to develop standards for UAS manufacturing, airworthiness and operations
  • provide more opportunities for testing UAS and allow companies to modify testing protocols without going through additional bureaucratic processes
  • adopt a more risk-based approach to regulating UAS that would permit less stringent regulation in sparsely populated regions

Although members of Congress acknowledged the importance of safety in the national airspace, they consistently expressed frustration with the FAA's lack of progress toward integrating drones into the national airspace by 2015, as Congress mandated in passing the 2012 law. Members of the subcommittee also were displeased with the FAA's level of coordination with the test sites.

While the FAA's overall progress on UAS integration has been troubling for businesses in the U.S., today's hearing demonstrated that Congress is listening to those concerns and is willing to use its oversight authority to promote UAS integration. This is an encouraging sign that will hopefully expedite the creation of a reasonable, risk-based regulatory structure that will allow for the safe and legal use of drones.

Further, just before the hearing, the FAA announced that it was granting five of the pending applications for limited commercial UAS use. These applications sought approval to use UAS to conduct aerial survey work, monitor construction sites and inspect offshore oil production platforms. This is the second group of UAS exemptions approved by the FAA, which follow exemptions granted for film production on movie sets in late September 2014.

The FAA's decision granting these petitions reflects its ongoing cautious approach to the use of UAS. Although the restrictions in the exemptions vary based on what the applicants proposed or agreed to, the most lenient exemptions provide that:   

  • The UAS must be piloted by an FAA-licensed airman with at least a third-degree medical certificate. A visual observer must also be included and line of sight must be maintained with the UAS.
  • The UAS must remain at least 500 feet from everyone other than the pilot and observer, with few exceptions (such as constructing a barrier between the nonparticipants and the UAS). The UAS may not be operated over congested or densely populated areas.
  • The UAS must weigh 15 lbs. or less; may travel as fast as 100 miles per hour; can only fly at a height of 400 feet or less; and can only operate during daytime.

Although these restrictions remain extensive, the FAA's decision to approve these additional uses of UAS can be seen as another concrete step to integrate commercial and civil UAS into the national U.S. airspace.

Holland & Knight lawyers have the knowledge and experience to answer your questions about the development of and policies relating to the use of civilian drones in the United States.