Legal Alerts Feb 20, 2019

Drones: A Legal and Regulatory Update

Operations Over People and at Night Among Issues Addressed in Latest FAA Proposed Rules

Drones: A Legal and Regulatory Update

The Federal Aviation Administration recently announced much-anticipated proposed changes to its rules for small unmanned aircraft systems, or drones, that weigh less than 55 pounds. The proposed rules track the trend of relaxing regulatory standards for commercial operations, which support ongoing efforts and testing around using drones for commercial deliveries in communities. This follows the finalization of the Part 107 small drone rule by the FAA in 2016.
The proposed rules were published by the FAA on Feb. 13 through a Notice of Proposed Rulemaking in the Federal Register, which commenced the public comment period. The public comment period ends April 15. Formal comment forms or additional information on the proposed rule changes can be found here.
As regulations around aerial drones continue to become more relaxed, increased operations will likely have new and unforeseen effects on businesses, governments and the public. Additionally, the preservation of recognized local powers concerning aerial drone operations will need to be carefully navigated. This will require local governments to  monitor, track and comment on FAA proceedings in consideration of their own proposed or ongoing drone operations and establishment of local regulations.
Notable changes include allowing drones to operate at night and over people, anytime, without FAA waivers. Currently, those flying aerial drones under Part 107 need a waiver to operate at night or over people. When an aerial drone is being used for public purposes, a public agency can be operating under a Certificate of Authority issued by the FAA that may allow for flying at night or over people, in addition to operating in airspace that is normally restricted.
The proposal also includes a pilot program for managing drone traffic so that the FAA may determine whether to eventually allow drones to share airspace with airplane traffic. Recent events involving the closing of airports due to unauthorized drone operations brought the drone tracking and airspace issue into the spotlight. Accordingly, the FAA has also issued a new rule requiring small drone owners to display the FAA-issued registration number on an outside surface of the aircraft rather than the interior compartment. The rule takes effect Monday.
The proposed rules recognize the opportunities presented by drone operations in multiple industries and professions, including emergency response, infrastructure inspections, agriculture, newsgathering, disaster surveying, health care and commercial deliveries. The proposed rules also address the importance of establishing a system for tracking and identifying drones as regulations around operations are relaxed.
Remote Identification and Tracking Before Rules are in Place
As part of its rulemaking process, the FAA convened an “Aviation Rulemaking Committee” of industry members and government agencies to provide recommendations regarding available technologies that could remotely identify and track drones. Because of significant threats that drones could pose to public safety and security, including to critical national infrastructure and airline traffic, establishing a national tracking system to identify drones is a priority for the FAA and NASA. The role of, and authority for, local law enforcement to quickly take action on unsafe operations is — and should continue to be — a part of this conversation.
The FAA plans to finalize its policy concerning remote drone identification before it finalizes any proposed rule changes regarding operations at night and over people, as discussed further below.
Allowed Drone Operations Over People
The proposed rules omit the requirement that a drone operator obtain a waiver to operate over people.
According to the FAA, allowing drones to fly over people will enable law enforcement, firefighters, and search and rescue personnel to respond quicker to emergencies. For example, SWAT teams will be able to better assess a hostage situation, especially in dangerous situations where active shooters may be involved; firefighters will be able to obtain an aerial survey of a burning building; and search and rescue personnel will be able to locate victims and assess danger from a distance concerning terrain access. Public agencies also use drones to survey infrastructure, public lands and efficiently monitor progress on construction projects.
To protect the people over which drones fly, the FAA proposes creating three operational categories as follows:

  • Category 1 drones are those that weigh less than 0.55 pounds.
  • Category 2 drones are heavier than 0.55 pounds and have an added requirement that the manufacturer design the drone so that the injuries caused by a collision with a person would not exceed a certain “kinetic energy” threshold. According to the FAA, these thresholds would protect against the likelihood that a collision with a person would be fatal. Specifically, a Category 2 drone would not be able to cause more injury than would result from a person being hit with 11 ft-lbs of kinetic energy from a rigid object (roughly equivalent to being hit by a baseball thrown at about 30 miles per hour).
  • Category 3 drones would not be able to cause more injuries than would result from a person being hit with 25 ft-lbs of kinetic energy from a rigid object (roughly equivalent to being hit by a baseball thrown at about 50 miles per hour). Neither Category 2 drones nor Category 3 drones may contain any exposed rotating parts that could lacerate human skin.

The FAA declined to propose a minimum distance from which a drone must operate over people. The FAA determined that the existing requirements of 14 CFR Part 107, which covers the commercial operation of small unmanned aircraft, combined with the new proposed regulations, provide sufficient risk mitigation. Specifically, a remote pilot is already required to ensure that his or her drone does not pose an undue hazard to other aircraft, people or property for any reason. According to the FAA, the remote pilot is best suited to determine what distance would be safe. Concerns around safe distances to operate away from people should be communicated to the FAA through the comment process.
Nighttime Drone Operations
The proposed rules also remove the requirement that a drone operator obtain an FAA waiver to operate at night. According to the FAA, allowing operators to fly drones in the dark will assist nighttime infrastructure inspections, wildlife monitoring and other activities that may be preferable during nighttime hours. The FAA also hopes that allowing nighttime drone operations will help the drone industry continue to innovate and expand.
Drones flown at night must have anti-collision lights that are visible for three statute miles (as defined under aviation rules). The remote pilot in command who operates a drone at night must have completed an updated knowledge test or must complete recurrent training to ensure familiarity with the risks for nighttime operations.
Aerial Drone Operations Over Moving Vehicles
As noted above, the proposed rules do not currently propose lifting the ban on operating drones over moving vehicles without an FAA issued waiver. The policy behind this prohibition is that the moving vehicle operating environment is dynamic and the remote pilot in command cannot directly control that environment. The impact of a drone on a moving vehicle poses unacceptable risks due to the potential impact and resulting safety concerns around hitting a moving vehicle. The FAA was also concerned that drone operations may distract drivers and cause accidents. However, as part of the proposed rulemaking, the FAA is requesting public comment on whether allowing aerial drone operations over moving vehicles without a waiver should be a part of this rulemaking or a future rulemaking. Accordingly, any safety concerns should be communicated as part of the comment period.
Testing and Recurrent Training Requirements
The FAA has proposed requiring remote pilots to take an initial aeronautical knowledge test and complete recurrent training every 24 months. Currently, the law requires all drone pilots to take an initial knowledge test and then another test every 2 years to maintain a current remote pilot certificate. The FAA’s proposed rule changes would remove the recurrent testing requirement and replace it with a continuing education/recurrent training requirement.
The proposed rulemaking is silent as to how it may affect local governments’ authority to regulate drone operations. Previously, the FAA recognized local agencies’ police power to regulate certain aspects of drone operations, including land use, zoning, privacy and law enforcement operations. Accordingly, the ongoing comment period around the proposed regulations provide an important opportunity for local governments to voice their support for preservation of existing powers around regulation that do not conflict with federal regulations. 
If you are interested in more information on the process for providing public comments to the FAA or have any questions about current or proposed drone regulations, please contact the authors of this Legal Alert to the right in the firm’s Municipal Law practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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