New FAA rules broadly authorizing commercial drone operations are now in effect and the utility sector stands to benefit significantly. The new rules provide utilities the opportunity to utilize drones to reduce costs and increase worker safety. Additionally, new federal legislation enacted last month may provide a framework for utilities to take advantage of both special privileges and protections related to drone operations in the future.

On August 29, 2016, the Federal Aviation Administration’s (FAA) final rules took effect governing the commercial use of small drones (also known as small unmanned aircraft systems or sUAS). The drone rules, also known as Part 107, will implement clear requirements and parameters for the commercial use of sUAS – replacing the unduly burdensome Section 333 exemption process. Click here for more information regarding the transition from the old system. The utility and energy industries, which are increasingly using sUAS for operations and maintenance, stand to benefit significantly from Part 107.

In addition to the Part 107 commercial sUAS rules, this summer also saw the enactment of the FAA Extension, Safety and Security Act of 2016 (the “Extension Act”). The new law contains two provisions that may ultimately grant the utility and energy sectors an alternative route to operate drones for their own projects while providing an option to prevent other drone operations near their critical facilities. While these provisions may be beneficial for utilities in the future, the FAA has yet to develop the corresponding policies implementing the provisions.

The Part 107 Commercial Drone Rules and Waivers for Operations Beyond the Scope of Part 107

The Part 107 rules apply to all commercial sUAS weighing 55 lbs or less, and broadly permit operations by all commercial sUAS users, including utilities that can use drones to monitor energy generators, transmission lines and distribution stations, as long as the operations are performed within certain operational and operator limitations. These new rules require visual-line-of-sight operation during daytime hours, prohibit flights above individuals not directly involved in the operation, limit operations to a speed of 100 mph and an altitude of 400 feet (or within 400 feet of a structure), and create a new pilot certificate that can be obtained by commercial sUAS operators after passing an aeronautical test and after pilots are vetted by the Transportation Security Administration. For a detailed analysis of the Part 107 Commercial UAS rules, click here.

  • Significantly, all commercial users can apply for a waiver of certain requirements of Part 107 if the applicant can demonstrate that a drone will be operated in a safe manner. Waivers may prove to be a valuable resource for utilities. Possible waivable provisions of Part 107 include:
  • speed and altitude limitations;
  • prohibition against flying the sUAS above individuals not directly involved in the commercial operation for which the sUAS was launched; and
  • operations beyond the visual-line-of-sight.

When the Part 107 rule took effect in late August, the FAA website opened up a portal through which applicants can begin the individual review process to obtain a waiver and operate beyond the parameters outlined in Part 107.

Another Route for Energy Industry sUAS Operations: Section 2210

The newly enacted Extension Act including Section 2210 requires that the FAA create and implement a system through which commercial users can use drones to survey and monitor critical infrastructure facilities beyond the visual-line-of-sight and at times that would otherwise be prohibited. Once the process for Section 2210 is established, utilities and others in the energy industry have more flexibility to respond to manmade or natural disasters or to respond to other incidents that threaten critical infrastructures.

Until Section 2210 is implemented, utilities can seek waivers under Part 107 to monitor critical infrastructure. As the FAA develops a process for operations under Section 2210, the differences and potential advantages of this provision versus Part 107 will become clearer.

Protecting Critical Energy Facilities from Unwanted Drone Operations

While recognizing the value of using sUAS to meet their own business and regulatory compliance needs, companies in the energy sector have also identified the potential privacy and security challenges raised by proliferation of sUAS flights near their facilities. Based on the possibility for accidental overflight or surveillance, utilities are exploring options for drone defenses. For more information on drone defense, click here.

A separate provision in the Extension Act begins to address this concern. Section 2209 lays out a framework that will eventually allow critical infrastructure owners, including energy production, transmission and distribution corporations, to apply for a designation from the FAA to prohibit or restrict the operation of UAS in close proximity to a fixed site facility. The FAA is required to develop a process by which owners of such facilities can apply for and receive a designation that will create a boundary around facilities in order to protect national security and homeland security. The language of the statute specifically mentions the energy industry, along with oil refineries and chemical facilities. So far, the FAA has not yet developed the application process for preventing operations under Section 2209.