Updates to UAS Law 2017
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Updates to UAS law 2017 by Sarah Nilsson, Ph.D., J.D.
Background on Commercial Operations
The Federal Aviation Administration (FAA) continues to regulate commercial small unmanned aircraft system (sUAS) operations (those weighing less than 55 pounds) using 14 Code of Federal Regulations (CFR) Part 107 effective August 29, 20161, and prior existing Section 333 exemptions of the FAA Modernization and Reform Act of 2012 (FMRA).2 The caveat here is that an operator holding a valid (non expired) Section 333 exemption may choose to continue to operate under the exemption until it expires or may switch to 14 CFR Part 107, but may not pick and choose parts of both in a given operation.3 Furthermore, a Section 333 exemption is still required to operate UAS weighing more than 55 pounds, until the FAA creates further regulations for large UAS.4
14 CFR Part 107 requires that a person operating commercially, which is either for compensation or hire, or in furtherance of a business, first obtain a Remote Pilot in Command (PIC) Certificate which is valid for 2 years.5 This certificate may be obtained in one of two ways: (1) If a person is already an FAA licensed manned pilot who has logged a current biennial flight review, then all that is required is the completion of a two-hour online course with the FAA Safety Team,6 followed by a completed online Integrated Airman Certification and Rating Application (IACRA) application.7 (2) If a person has never held an FAA pilot certificate then a complete and thorough course of study is required in order to learn the intricacies of the National Airspace System (NAS) and how to operate UAS safely within it. The person must then achieve a successful passing score (70%) on a written knowledge test proctored at an official testing center, before completion of the online IACRA application. In this latter case, a background check through the Transportation Security Administration (TSA) will have to be performed before the FAA issues the Remote PIC certificate.8
1 FAA, Operation and Certification of Small Unmanned Aircraft Systems, https://www.federalregister.gov/documents/2016/06/28/2016-15079/operation-and- certification-of-small-unmanned-aircraft-systems 2 FAA Modernization and Reform Act of 2012 (FMRA), https://www.faa.gov/uas/beyond_the_basics/section_333/ 3 Id. 4 Id. 5 FAA Remote PIC Certificate, https://www.faa.gov/uas/getting_started/fly_for_work_business/becoming_a_pilot/ 6 FAA Safety Team, Part 107 small UAS, https://www.faasafety.gov/gslac/ALC/CourseLanding.aspx?cID=451 7 Integrated Airman Certification and Rating Application (IACRA), https://iacra.faa.gov/IACRA/Default.aspx 1 What follows next is a brief summary of the regulations of 14 CFR Part 107 organized by (1) Operational Limitations; (2) Remote PIC Certification and Responsibilities; (3) Aircraft Requirements; and (4) Model Aircraft.9
(1) Operational Limitations: - Unmanned aircraft must weigh less than 55 lbs. (25 kg). - Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer. - At all times the small unmanned aircraft must remain close enough to the remote pilot in command and the person manipulating the flight controls of the small UAS for those people to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. - Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle. - Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting. - Must yield right of way to other aircraft. - May use visual observer (VO) but not required. - First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways. - Maximum groundspeed of 100 mph (87 knots). - Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure. - Minimum weather visibility of 3 miles from control station. - Operations in Class B, C, D and E airspace are allowed with the required ATC permission. - Operations in Class G airspace are allowed without ATC permission. - No person may act as a remote pilot in command or VO for more than one unmanned aircraft operation at one time. - No operations from a moving aircraft. - No operations from a moving vehicle unless the operation is over a sparsely populated area. - No careless or reckless operations. - No carriage of hazardous materials. - Requires preflight inspection by the remote pilot in command. - A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS. - Foreign-registered small unmanned aircraft are allowed to operate under part 107 if they satisfy the requirements of part 375.
8 FAA Remote PIC Certificate, https://www.faa.gov/uas/getting_started/fly_for_work_business/becoming_a_pilot/ 9 FAA Summary of small unmanned aircraft rule (Part 107), https://www.faa.gov/uas/media/Part_107_Summary.pdf
2 - External load operations are allowed if the object being carried by the unmanned aircraft is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft. - Transportation of property for compensation or hire allowed provided that- - The aircraft, including its attached systems, payload and cargo weigh less than 55 pounds total; - The flight is conducted within visual line of sight and not from a moving vehicle or aircraft; and - The flight occurs wholly within the bounds of a State and does not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession. - Most of the restrictions discussed above are waivable if the applicant demonstrates that his or her operation can safely be conducted under the terms of a certificate of waiver.10 More details regarding the waiver process follow later in the paper.
(2) Remote PIC Certification and Responsibilities: - Establishes a remote pilot in command position. - A person operating a small UAS must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command). - To qualify for a remote pilot certificate, a person must: - Demonstrate aeronautical knowledge by either: . Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center; or . Hold a part 61 pilot certificate other than student pilot, complete a flight review within the previous 24 months, and complete a small UAS online training course provided by the FAA - Be vetted by the Transportation Security Administration. - Be at least 16 years old. - Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application. - Until international standards are developed, foreign-certificated UAS pilots will be required to obtain an FAA-issued remote pilot certificate with a small UAS rating. A remote pilot in command must: - Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the rule. - Report to the FAA within 10 days of any operation that results in at least serious injury, loss of consciousness, or property damage of at least $500.
10 Id. 3 - Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is in a condition for safe operation. - Ensure that the small unmanned aircraft complies with the existing registration requirements specified in § 91.203(a)(2). A remote pilot in command may deviate from the requirements of this rule in response to an in-flight emergency.11
(3) Aircraft Requirements: - FAA airworthiness certification is not required. However, the remote pilot in command must conduct a preflight check of the small UAS to ensure that it is in a condition for safe operation.12
(4) Model Aircraft: - Part 107 does not apply to model aircraft that satisfy all of the criteria specified in section 336 of Public Law 112-95. - The rule codifies the FAA’s enforcement authority in part 101 by prohibiting model aircraft operators from endangering the safety of the NAS.13
Waiver Process
As previously mentioned, here is a brief explanation of the waiver process. 14 CFR Part 107 includes the option to apply online for a certificate of waiver, which allows for a small UAS operation to deviate from certain operating rules if the FAA finds that the proposed operation can be performed safely. Processing time depends on the complexity of the request, but should take no longer than 90 days.14
The nine waivable sections of Part 107 are: (1) Operation from a moving vehicle or aircraft (§ 107.25)*; (2) Daylight operation (§ 107.29); (3) Visual line of sight aircraft operation (§ 107.31)*; (4) Visual observer (§ 107.33); (5) Operation of multiple small unmanned aircraft systems (§ 107.35); (6) Yielding the right of way (§ 107.37(a)); (7) Operation over people (§ 107.39); (8) Operation in certain airspace (§ 107.41); and (9) Operating limitations for small unmanned aircraft (§ 107.51). *No waiver of this provision will be issued to allow the carriage of property of another by aircraft for compensation or hire.15
An application for a Certificate of Waiver, issued in accordance with 14 CFR § 107.200, must provide justification that the operation can be safely conducted by satisfying certain performance-based standards.16 These performance-based standards also list exactly what the FAA needs the operator to do before they consider a waiver. Operators must make
11 Id. 12 Id. 13 Id. 14 FAA, Waiver to certain small UAS operating rules, https://www.faa.gov/uas/beyond_the_basics/ 15 Id.
4 waiver requests at https://www.faa.gov/uas/request_waiver/. Without a detailed description of how the applicant intends to meet these standards, the FAA cannot determine if a waiver is possible. Operators should select only the Part 107 regulations that need to be waived for the proposed operation. Applicants also should respond promptly to any request made by the FAA for additional information. If the agency does not receive a response after 30 days, it will withdraw the request.17 Operators must apply for airspace authorizations on the same web page. The required information is spelled out in the waiver/airspace authorization instructions document (PDF).18
Background on Public Operations
Public entities may choose to operate either under 14 CFR Part 107 or utilize a Certificate of Waiver or Authorization (COA).19 A COA is an authorization issued by the Air Traffic Organization to a public entity for a specific unmanned activity. Response time by the FAA is approximately 60 days from the time a completed application is submitted online (https://ioeaaa.faa.gov/oeaaa/Welcome.jsp). Applicants must obtain an account in order to access the online system.20
Background on Recreation or Hobby (Model Aircraft) Operations
Advisory Circular (AC) 91-57A - Model Aircraft Operating Standards - Including Change 1 continues to provide guidance to persons operating Unmanned Aircraft (UA) for hobby or recreation purposes meeting the statutory definition of "model aircraft" contained in Section 336 of Public Law 112-95, the FAA Modernization and Reform Act of 2012. This AC describes means by which model aircraft may be operated safely in the National Airspace System (NAS).21
Under the Special Rule for Model Aircraft (Public Law 112-95 Section 336), operators must: - Fly for hobby or recreational purposes only - Follow a community-based set of safety guidelines - Fly the UAS within visual line-of-sight
16 FAA, UAS Waivers, Performance Based Standards, https://www.faa.gov/uas/request_waiver/media/performance_based_standards.pdf 17 FAA, UAS Waivers, https://www.faa.gov/news/updates/?newsId=86707 18 Id. 19 FAA, Certificate of Waiver or Authorization (COA), https://www.faa.gov/about/office_org/headquarters_offices/ato/service_units/systemops/a aim/organizations/uas/coa/ 20 Id. 21 FAA, Advisory Circular (AC) 91-57A - Model Aircraft Operating Standards - Including Change 1, https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.info rmation/documentID/1028086 5 - Give way to manned aircraft - Provide prior notification to the airport and air traffic control tower, if one is present, when flying within 5 miles of an airport - Fly UAS that weigh no more than 55 lbs. unless certified by a community-based organization - Register the aircraft (UAS over 0.55 lbs. and less than 55 lbs. can be registered online at registermyuas.faa.gov; UAS 55 lbs. or greater must be registered through the FAA's paper-based process).22
Registration
Federal law requires that all aircraft (which includes UAS and radio/remote controlled aircraft) flown outdoors must be registered with the FAA and marked with a registration number. UAS weighing more than 0.55 pounds and less than 55 pounds may register online at https://registermyuas.faa.gov/ or by using the legacy paper based registration process. The weight limit includes everything that is on board or otherwise attached to the aircraft at the time of takeoff.23 In order to apply for registration a person must be: (1) 13 years of age or older (if the owner is less than 13 years of age, a person 13 years of age or older must register the small unmanned aircraft) and (2) a U.S. citizen or legal permanent resident. Visiting foreign nationals must register their UAS upon arrival in the United States (online registration serves as a certificate of ownership). Registration costs $5 and is valid for 3 years.24
Airspace
Anyone operating a UAS is responsible for flying within FAA guidelines and regulations. Operators should be aware of where it is and is NOT safe to fly.25 First, a person must check Temporary Flight Restrictions (TFRs) that define a certain area of airspace where air travel is limited because of a temporary hazardous condition, such as a wildfire or chemical spill; a security-related event, such as the United Nations General Assembly; or other special situations. The text of the actual TFR contains the details about the restriction, including the size, altitude, time period that it is in effect, and what types of operations are restricted and permitted. To view the list of active TFRs visit http://tfr.faa.gov/tfr2/list.html.26
The airspace surrounding Washington DC is the most restricted in the country. Flying
22 FAA, Flying for fun (recreational or hobby), https://www.faa.gov/uas/faqs/ 23 FAA, Registration, https://www.faa.gov/uas/faqs/ 24 FAA, Register your UAS, https://www.faa.gov/uas/getting_started/fly_for_fun/ 25 FAA, Where to fly, https://www.faa.gov/uas/where_to_fly/ 26 FAA, Airspace Restrictions, https://www.faa.gov/uas/where_to_fly/airspace_restrictions/
6 your drone is illegal in any of the restricted airspace above the Nation's capital.27
Flying UAS in and around stadiums is prohibited starting one hour before and ending one hour after the scheduled time of any of the following events: (1) Major League Baseball; (2) Major League Football; (3) NCAA Division One Football; and (4) Nascar Sprint Cup, Indy Car, and Champ Series races. Specifically, UAS operations are prohibited within a radius of three nautical miles of the stadium or venue.28
It is illegal to fly your UAS in or around a wildfire firefighting operation. Recreational operators are required to give notice for flights within five miles of an airport to BOTH the airport operator and air traffic control tower, if the airport has a tower. However, recreational operations are not permitted in Class B airspace around most major airports without specific air traffic permission and coordination.29
The FAA continues to lead a public outreach campaign, called the No Drone Zone, to promote safe and responsible use of unmanned aircraft systems.30 The National Capital Region is governed by a Special Flight Rules Area (SFRA) within a 30-mile radius of Ronald Reagan Washington National Airport, which restricts all flights in the greater DC area. The SFRA is divided into a 15-mile radius inner ring and a 30-mile radius outer ring. Flying an unmanned aircraft within the 15-mile radius inner ring is prohibited without specific FAA authorization. Flying a UAS for recreational or non-recreational use between 15 and 30 miles from Washington, D.C. is allowed under these operating conditions: (1) Aircraft must weigh less than 55 lbs. (including any attachments such as a camera); (2) Aircraft must be registered and marked; (3) Fly below 400 ft.; (4) Fly within visual line-of-sight; (5) Fly in clear weather conditions; and (6) Never fly near other aircraft. The airspace around Washington, D.C. is more restricted than in any other part of the country. Rules put in place after the 9/11 attacks establish "national defense airspace" over the area and limit aircraft operations to those with an FAA and TSA authorization. Violators face stiff fines and criminal penalties.31
B4UFLY is an easy-to-use smartphone app available to both android and iPhone users that helps unmanned aircraft operators determine whether there are any restrictions or requirements in effect at the location where they want to fly. Key features of the B4UFLY app include: (1) a clear "status" indicator that immediately informs the operator about the current or planned location. For example, it shows flying in the Special Flight Rules Area around Washington, D.C. is prohibited; (2) information on the parameters that drive the status indicator; (3) a "Planner Mode" for future flights in different locations; and (4) informative, interactive maps with filtering options.32
27 Id. 28 Id. 29 Id. 30 FAA, No Drone Zone, https://www.faa.gov/uas/where_to_fly/no_drone_zone/ 31 Id. 32 FAA, B4UFLY Smartphone App, https://www.faa.gov/uas/where_to_fly/b4ufly/ 7 Preemption
A highly controversial issue in this country today (and for the past few years for that matter) is the division of power over the national airspace. On the one hand, the FAA was tasked by Congress with regulating the safe and efficient use of the airspace over our country and out to 12 miles off the coast of the contiguous U.S. As mentioned earlier in this paper, the FAA uses Section 333 Exemptions, COAs, 14 CFR Part 107 and model aircraft rules, among others to accomplish this task.
On the other hand, states and local governments owe an obligation to their constituents under their police power to ensure their safety, health and welfare and this includes resolving privacy and trespass issues among others. The tug of war between the FAA’s regulations and state and local laws occurs because they are governing essentially the same aircraft. Further compounding the issue is the fact that these various laws, of which there are hundreds, sometimes conflict. This then calls into question the subject of federal preemption.
On December 17, 2015, the FAA, Office of the Chief Counsel, released a State and Local Regulation of UAS Fact Sheet.33 This fact sheet was highly necessary as almost all states were proposing and passing laws. Congress has vested the FAA with authority to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source. 49 U.S.C. §§ 40103, 44502, and 44701-44735. Congress has directed the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103(b)(1). Congress has further directed the FAA to “prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes)” for navigating, protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable airspace efficiently; and preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects. 49 U.S.C. § 40103(b)(2). A consistent regulatory system for aircraft and use of airspace has the broader effect of ensuring the highest level of safety for all aviation operations. To ensure the maintenance of a safe and sound air transportation system and of navigable airspace free from inconsistent restrictions, FAA has regulatory authority over matters pertaining to aviation safety.34 These principles still hold true today and states and local governments should consult with the FAA for areas like these below.
33 FAA, State and Local Regulation of UAS Fact Sheet, https://www.faa.gov/news/updates/? newsId=84369&omniRss=news_updatesAoc&cid=101_N_U 34 Id.
8 Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example – a city ordinance banning anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F.2d 1306 (6th Cir. 1969). Mandating equipment or training for UAS related to aviation safety such as geo- fencing would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework. Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740 (E.D.N.C. 2008); Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn. 2007).35 It is worth noting that: Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002).36 State and local law
As previously mentioned, even before the FAA had issued a Notice of Proposed Rulemaking (NPRM) regarding 14 CFR Part 107, several states across our country had already begun instituting laws regulating UAS.
In the 2016 legislative session, at least 38 states considered legislation related to UAS. Eighteen states, namely, Alaska, Arizona, California, Delaware, Idaho, Illinois, Indiana, Kansas, Louisiana, Michigan, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia and Wisconsin, have passed 32 pieces of legislation.37 Alaska adopted a resolution supporting the aviation industry and urging the governor to make state land available for use in the development of UAS technology. Delaware adopted a resolution expressing support for the development of many facets of UAS and the increased economic and training opportunities available within the FAA regulatory framework. The governors of Georgia and North Dakota issued executive orders related to UAS.
Alaska
35 Id. 36 Id. 37 National Conference of State Legislators, Current Unmanned Aircraft State Law Landscape, http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state- law-landscape.aspx 9 Alaska House Bill (HB) 256 requests the Department of Fish and Game evaluate the use of UAS for aerial survey work and report findings related to safety and cost-savings compared to manned aircraft.38
Arizona Arizona Senate Bill (SB) 1449 prohibits certain operation of UAS, including operation in violation of FAA regulations and operation that interferes with first responders. The law prohibits operating near, or using UAS to take images of, a critical facility. It also preempts any locality from regulating UAS.39
California California SB 807 provides immunity for first responders who damage a UAS that was interfering with the first responder while he or she was providing emergency services. California Assembly Bill (AB) 1680 makes it a misdemeanor to interfere with the activities of first responders during an emergency.40
Delaware Delaware HB 195 creates the crime of unlawful use of a UAS and prohibits operation over any event with more than 1500 attendees, over critical infrastructure and over an incident where first responders are actively engaged in response or transport. The law also specifies that only the state may enact a law or regulation, preempting the authority of counties and municipalities.41
Georgia Georgia’s governor issued an executive order creating the Commission on Unmanned Aircraft Technology to make state-level rule recommendations to the governor.42
Idaho Idaho SB 1213 prohibits the use of UAS for hunting, molesting or locating game animals, game birds and furbearing animals.43
Illinois Illinois HB 5808 expanded the membership of the UAS Oversight Task Force and extended the deadline for the task force to issue a report from July 1, 2016 to July 1, 2017.44
Indiana
38 Id. 39 Id. 40 Id. 41 Id. 42 Id. 43 Id. 44 Id.
10 Indiana HB 1013 allows the use of UAS to photograph or take video of a traffic crash site. Indiana HB 1246 prohibits the use of UAS to scout game during hunting season.45
Kansas Kansas SB 319 expands the definition of harassment in the Protection from Stalking Act to include certain uses of UAS. Kansas SB 249 appropriates funds that can be used to focus on research and development efforts related to UAS by state educational institutions. The law specifies a number of focuses for the research, including the use of UAS for inspection and surveillance by the department of transportation, highway patrol and state bureau of investigation. It requires that the director of UAS make recommendations regarding state laws and rules that balance privacy concerns and the need for “robust UAS economic development” in the state.46
Louisiana Louisiana SB 73 adds intentionally crossing a police cordon using a drone to the crime of obstructing an officer. It allows law enforcement or fire department personnel to disable the UAS if it endangers the public or an officer’s safety. Louisiana HB 19 prohibits using a drone to conduct surveillance of, gather evidence or collect information about, or take photo or video of a school, school premises, or correctional facilities. It establishes a penalty of a fine of up to $2,000 and up to six months in jail. Louisiana HB 335 authorizes the establishment of registration and licensing fees for UAS, with a limit of $100. Louisiana HB 635 adds the use of UAS to the crimes of voyeurism, video voyeurism and peeping tom. Louisiana SB 141 specifies that surveillance by an unmanned aircraft constitutes criminal trespass under certain circumstances.47
Michigan Michigan SB 992, known as the “unmanned aircraft systems act,” prohibits localities from regulating UAS, except when the regulated drone belongs to the locality. It specifically permits commercial operation in the state if the operator is authorized by the FAA to operate commercially and permits hobby operation so long as the operator complies with federal law. The law prohibits using a drone in a way that interferes with emergency personnel and it also prohibits the use of a drone to harass an individual, to violate a restraining order, or to capture images in a way that invades an individual’s reasonable expectation of privacy. The law also prohibits sex offenders from using a drone to follow, contact or photograph a person that they are prohibited from contacting. Anyone who uses a drone in a prohibited way is guilty of a misdemeanor. The law also creates the unmanned aircraft systems task force to “develop statewide policy recommendations on the operation, use, and regulation” of UAS in the state. It specifies 45 Id. 46 Id. 47 Id. 11 the members of the task force, the length of appointment and other specifics related to the task force.48
North Dakota North Dakota’s governor issued an executive order establishing the Northern Plains Unmanned Systems Authority to oversee the operation of the UAS test site in the state.49
Oklahoma Oklahoma HB 2599 prohibits the operation of UAS within 400 feet of a critical infrastructure facility, as defined in the law.50
Oregon Oregon HB 4066 modifies definitions related to UAS and makes it a class A misdemeanor to operate a weaponized UAS. It also creates the offense of reckless interference with an aircraft through certain uses of UAS. The law regulated the use of drones by public bodies, including requiring policies and procedures for the retention of data. It also prohibits the use of UAS near critical infrastructure, including correctional facilities. Oregon SB 5702 specifies the fees for registration of public UAS.51
Rhode Island Rhode Island HB 7511/SB 3099 gives exclusive regulatory authority over UAS to the state of Rhode Island and the Rhode Island Airport Corporation, subject to federal law.52
Tennessee Tennessee SB 2106 creates the crime of using a drone to fly within 250 feet of a critical infrastructure facility for the purpose of conducting surveillance or gathering information about the facility. Tennessee HB 2376 clarifies that it is permissible for a person to use UAS on behalf of either a public or private institution of higher education, rather than just public institutions.53
Utah Utah HB 126 makes it a class B misdemeanor to operate a UAS within a certain distance of a wildfire. It becomes a class A misdemeanor if the UAS causes an aircraft fighting the wildfire to drop a payload in the wrong direction or to land without dropping the payload. It is a third degree felony if the UAS crashes into a manned aircraft and a second-degree felony if that causes the manned aircraft to crash.
48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id.
12 Utah HB 3003 increases the penalties for offenses related to operating within a certain distance of a wildfire and permits certain law enforcement officers to disable a drone that is flying in a prohibited area near a wildland fire.54
Vermont Vermont SB 155 regulates the use of drones by law enforcement and requires law enforcement to annually report on the use of drones by the department. It also prohibits the weaponization of drones.55
Virginia Virginia HB 412 prohibits the regulation of UAS by localities. Virginia HB 29 and HB 30 appropriate funds to Virginia Tech for UAS research and development.56
Wisconsin Wisconsin SB 338 prohibits using a drone to interfere with hunting, fishing or trapping. Wisconsin AB 670 prohibits the operation of UAS over correctional facilities.57
Law enforcement agencies memo
Since the FAA recognized early on that State and local law enforcement agencies (LEAs) would be in a better position to deter, detect, immediately investigate, and as appropriate, pursue enforcement actions to stop unauthorized or unsafe UAS operations across the nation, it saw fit to put forth some guidance in this memo entitled, Law Enforcement Guidance for Suspected Unauthorized UAS Operations.58
Additionally, the FAA made available a concise reference card, which includes a nifty acronym based on D.R.O.N.E., meaning (1) Direct attention; (2) Report incident; (3) Observe; (4) Notice features; and (5) Execute appropriate police action. There is also a list of phone numbers to call to reach the FAA Operations Center based upon each of the four regions, Western, Central, East, and other East Regions Operations Center (ROC).59
Section 1 of this LEA memo introduces some basic legal mandates assuming an audience unfamiliar with UAS law. Section 2 deals with the role of law enforcement in this partnership with the FAA as explained below.
54 Id. 55 Id. 56 Id. 57 Id. 58 FAA, Law Enforcement guidance for suspected unauthorized UAS operations, https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS- PO_LEA_Guidance.pdf 59 FAA, LEA Reference Card, https://www.faa.gov/uas/resources/law_enforcement/media/FAA-UAS-DRONE-LE- ReferenceCard.pdf 13 The FAA promotes voluntary compliance by educating individual UAS operators about how they can operate safely under current regulations and laws. The FAA also has a number of enforcement tools available including warning notices, letters of correction, and civil penalties. The FAA may take enforcement action against anyone who conducts an unauthorized UAS operation or operates a UAS in a way that endangers the safety of the National Airspace System. This authority is designed to protect users of the airspace as well as people and property on the ground. Although the FAA retains the responsibility for enforcing FAA’s regulations, FAA aviation safety inspectors, who are the agency’s principal field elements responsible for following up on these unauthorized and/or unsafe activities, will often be unable to immediately travel to the location of an incident. While the FAA must exercise caution not to mix criminal law enforcement with the FAA’s administrative safety enforcement function, the public interest is best served by coordinating and fostering mutual understanding and cooperation between governmental entities with Law Enforcement responsibilities. Although there are Federal criminal statutes that may be implicated by some UAS operations (e.g., 49 U.S.C. § 46307), most violations of the FAA’s regulations may be addressed through administrative enforcement measures. As with any other civil or criminal adjudication, successful enforcement will depend on development of a complete and accurate factual report contemporaneous with the event. Although certainly not an exhaustive list, Law Enforcement officials, first responders, and others can provide invaluable assistance to the FAA and help deter unsafe UAS operations by taking the actions outlined below: (1) Witness Identification and Interviews (2) Identification of Operators (3) Viewing and Recording the Location of the Event (4) Identifying Sensitive Locations, Events, or Activities (5) Notification (6) Evidence Collection60 Memo to Universities
On May 4, 2016, in response to numerous questions posed by the public in the wake of the prior year’s Notice of Proposed Rulemaking (NPRM) and 14 CFR Part 107, the FAA chose to address (1) use of unmanned aircraft for hobby or recreational purposes at educational institutions and community-sponsored events; and (2) student use of
60 FAA, Law Enforcement guidance for suspected unauthorized UAS operations, https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS- PO_LEA_Guidance.pdf
14 unmanned aircraft in furtherance of receiving instruction at accredited educational institutions.61
In short, the FAA clarified that:
A person may operate an unmanned aircraft for hobby or recreation in accordance with section 336 of the FAA Modernization and Reform Act of 2012 (FMRA) at educational institutions and community-sponsored events provided that person is (1) not compensated, or (2) any compensation received is neither directly nor incidentally related to that person’s operation of the aircraft at such events;
A student may conduct model aircraft operations in accordance with section 336 of the FMRA in furtherance of his or her aviation-related education at an accredited educational institution.
Faculty teaching aviation-related courses at accredited educational institutions may assist students who are operating a model aircraft under section 336 and in connection with a course that requires such operations, provided the student maintains operational control of the model aircraft such that the faculty member’s manipulation of the model aircraft’s control is incidental and secondary to the student’s (e.g. the faculty member steps in to regain control in the event the student begins to lose control, to terminate the flight, etc.).
The FAA interprets “hobby or recreational” use to include operation of UAS to conduct demonstrations at accredited educational institutions or at other community-sponsored events provided the aircraft is not being operated for compensation, in furtherance of a business or incidental to a business. Therefore, a model aircraft hobbyist or enthusiast lawfully may fly UAS at accredited educational institutions or other community-sponsored events to promote the safe use of UAS and encourage student interest in aviation as a hobby or for recreational purposes provided the hobbyist receives no compensation of any form (including honorarium or reimbursement of costs), or any such compensation neither directly not indirectly furthers the hobbyist’s business or operation of the UAS and he or she follows the provisions of section 336.
Nevertheless, faculty teaching a course or curricula that uses unmanned aircraft as a component of that course may provide limited assistance to students operating unmanned aircraft as part of that course without changing the character of the student’s operation as a hobby or recreational activity or requiring FAA authorization for the faculty member to operate. The FAA finds that de minimis limited instructor participation in student operation of UAS as part of coursework does not rise to the level of faculty conducting an operation outside of the hobby or recreation construct.
61 FAA, Memorandum on the Educational Use of UAS, https://www.faa.gov/uas/resources/uas_regulations_policy/media/interpretation- educational-use-of-uas.pdf 15 This limited circumstance would apply to courses at accredited institutions where the operation of the aircraft is secondary to the design and construction of the aircraft.62
Drone Advisory Committee (DAC) update
On May 4, 2016 FAA Administrator Michael Huerta announced the establishment of the Drone Advisory Committee (DAC) at the Association for Unmanned Vehicle Systems International (AUVSI) Conference in New Orleans. This federal advisory committee was formed to provide an open venue for the FAA and key decision-makers supporting the safe introduction of UAS into the NAS. Members work in partnership with the FAA to identify and propose actions to the FAA on how best to facilitate the resolution of issues affecting the efficiency and safety of integrating UAS into the NAS.63
On January 31, 2017, the DAC held its second meeting in Reno, Nevada. During this meeting, the committee reviewed three draft tasking statements: (1) the roles and responsibilities of federal, state, and local governments in regulating and enforcing drone laws; (2) technological and regulatory mechanisms that would allow drone operators to gain access to the airspace beyond what the agency currently permits under the small UAS Rule; and (3) funding to offset the cost of supporting unmanned aircraft integration into the nation’s airspace.64
A summary of Task Group (TG) 1 is as follows: The FAA is presenting to the Drone Advisory Committee Subcommittee (DACSC) topics for discussion and analysis regarding whether the rapid advent of UAS warrants consideration of the relative roles and responsibilities of the Federal and of state/local governments for regulating certain UAS operations in low-altitude airspace as compared to the Federal government’s exclusive role and responsibility for regulating all aspects of manned aircraft operations.65
Since 1926, when the US declared exclusive Federal sovereignty of the airspace (s supplemented by aviation statutes in 1938 and 1958), a statutory and regulatory framework vests in the Federal Government exclusive authority for regulating all aspects of manned aviation, whether fixed wing aircraft or rotorcraft/helicopters. With the exception of takeoff and landing, most manned aircraft operations are conducted at “minimum safe altitudes,” which generally have not been defined to include low-altitude airspace. However, the rapid development and increasing use of UAS in low-altitude
62 Id. 63 RTCA, Drone Advisory Committee (DAC), http://www.rtca.org/content.asp? contentid=216 64 FAA, Drone Advisory Committee Builds Consensus, https://www.faa.gov/news/updates/?newsId=87465 65 RTCA, DAC Task Group 1, http://www.rtca.org/Files/Miscellaneous %20Files/DACTask1_Feb2017_Roles-and-Responsibilities.pdf
16 navigable airspace and their unique operating characteristics (e.g. can be launched anywhere, typically fly at low altitudes, ease of use) raises important regulatory policy questions as to the role of state and local governments relative to the role of the Federal Government.66
Currently, existing statutory and regulatory rules do not permit state and local governments directly or indirectly to regulate aircraft flight operations, aviation safety or efficient use of navigable airspace. They do have the authority through their police powers to promulgate and enforce rules of general applicability; however, increasingly state and local governments desire to exercise more direct authority over UAS operations in low-altitude navigable airspace to accommodate a broad array of sometimes competing national and community interests.67
A summary of TG 2 is as follows: The FAA has developed a roadmap to ensure the safe and efficient integration of UAS into the NAS. During the past several years, the agency has been fully engaged working toward the integration across a variety of platforms, multiple types of operations, and different classes of airspace to provide a structured approach to UAS integration. Since the agency established the DAC, the aviation community has expressed interest in working with the DAC to develop and provide the FAA consensus-based recommendations on issues related to UAS based on discussion at the September 2016 kickoff meeting. The FAA thus requests the assistance of DAC in developing consensus recommendations regarding the operational priorities to achieve full integration of UAS.68
Specifically, the FAA seeks greater input on a range of guidance material, and they believe that the DACSC is an appropriate forum to obtain industry input and perspective. The FAA understands the DACSC, in response to direction from the DAC, has established an Access to Airspace TG. The tasking outlined by them is intended to facilitate the DACSC’s focused and sequential review of UAS integration/access issues. It is their intention that follow-on tasks will be provided as needed for additional focus and direction in order to achieve measurable progress on airspace access issues by the end of 2017.69
A summary of TG 3 is still to be finalized by the FAA at the time of writing of this paper.
UAS Test Sites and Ongoing Research
Selected in December 2013, the UAS Test Sites support UAS integration by providing an avenue for the UAS industry and stakeholder community to conduct more advanced UAS
66 Id. 67 Id. 68 RTCA, DAC Task Group 2, http://www.rtca.org/Files/Miscellaneous %20Files/DACTask2_Feb2017_Access-to-Airspace.pdf 69 Id. 17 research and operational concept validation. They are: (1) State of Nevada; (2) University of Alaska Fairbanks; (3) North Dakota Department of Commerce; (4) Texas A&M University Corpus Christi; (5) Griffiss International Airport (NY); and (6) Virginia Polytechnic Institute and State University.70
(1) State of Nevada The Nevada Institute for Autonomous Systems (NIAS) identified Reno-Stead Airport (RTS) as one of the testing ranges available in the state of Nevada for UAS testing. RTS provides a variety of unique testing conditions for UAS development including, but not limited to, uncontrolled airspace, abundant open space, basin and range topography, variable weather, educated workforce and existing infrastructure. These testing conditions have positioned RTS on the forefront of research and development, testing and manufacturing to compliment efforts by Desert Research Institute (DRI) and the University of Nevada, Reno (UNR), as well as businesses like Sierra Nevada Corporation (SNC), Tactical Air Support, Helitrak, and Hawkeye UAV. The Nevada COA allows up to 777 feet AGL and night flight testing. The 5,000-acre general aviation facility includes two runways, one 7,600 feet long and the other 9,000 feet.71
(2) University of Alaska Fairbanks
The University of Alaska Board of Regents in recognition of the importance and growth of the unmanned aircraft program established the Alaska Center for Unmanned Aircraft Systems Integration - RDT&E, or ACUASI, in December 2012. It was established under the University of Alaska Fairbanks in the Geophysical Institute where it originated but was given the role of leading all unmanned aircraft programs for the entire system. It was also tasked to pursue opportunities with the FAA such as the FAA test sites. The program originated in 2001, and over the years has expanded in scope, the equipment it operated, and the variety and complexity of research projects it executed. In 2013, ACUASI submitted its proposal to the FAA to become one of the six test sites established by the 2012 FAA Modernization and Reform Act, and in December 2013 the FAA announced that the University had been selected. The Pan-Pacific UAS Test Range Complex reports to ACUASI, but also includes principal partners in Oregon and Hawaii as well as 56 non- state partners located all over the US and internationally. Ranges are located in the three states as well as in Iceland, a key international partner. ACUASI’s mission is to maintain a world-class research center for unmanned aircraft systems, providing integration of unique payloads and supporting pathfinder missions within government and science communities, with a special emphasis on the Arctic and sub-Arctic regions. ACUASI’s vision it to develop, test, and ultimately exploit emerging unmanned aircraft technology and its uses to create a positive economic and social benefit within the State of Alaska.72
(3) North Dakota Department of Commerce 70 FAA, UAS Test Sites, https://www.faa.gov/uas/programs_partnerships/coe_test_sites/ 71 UAS Test Site, Nevada, http://renoairport.com/reno-stead/faa-uas-site/test-site- advantages 72 UAS Test Site, University of Alaska Fairbanks, http://acuasi.alaska.edu/about
18 The Northern Plains UAS Test Site was the first FAA test site to conduct flights, launching its first research flight in early May 2014. The Northern Plains UAS Test Site is headquartered in Grand Forks, ND. It currently uses several UAS Test Ranges which are various airspaces the FAA grants for UAS research and development through Certificates of Waiver or Authorization (COAs). These airspaces surround the Grand Forks area and are generally within about 120 miles. More COAs will be obtained as the research needs develop. North Dakota plays a critical role in determining how to safely integrate UAS into the national airspace, and the Northern Plains UAS Test Site serves as an opportunity to enhance North Dakota’s leadership position in the industry.73
(4) Texas A&M University Corpus Christi
The Lone Star UAS Center of Excellence and Innovation (LSUASC) test site was established in response to an FAA initiative to integrate UAS into the national airspace. The test site and its test ranges across Texas and the nation were designed by former FAA air-traffic control experts, according to FAA requirements for certificates of authorization (COA) and the screening information request (SIR) that solicited test-site proposals from public entities in February 2013.74
(5) Griffiss International Airport (NY)
The NUAIR Alliance is a New York based not-for-profit coalition of more than 100 private and public entities and academic institutions working together to operate and oversee UAS test ranges in New York, Massachusetts and Michigan. Headquartered at Griffiss International Airport, in Rome, New York, NUAIR manages one of just six FAA-designated UAS test sites in the United States leading research and deployment technologies that establish the case for safe UAS operations in the nation’s commercial airspace. NUAIR is installing a Ground Based Sense and Avoid system at Griffiss International Airport to deploy state-of-the-art range instrumentation that can track UAS in the air and provide first of its kind testing capability in the country. This technology supports the development of the test site’s FAA mission of supporting development of a Sense and Avoid (SAA) system. This range instrumentation was slated to be operational by summer 2016. NUAIR’s hangar and adjacent ramp access facilities at Griffiss International Airport are also newly renovated to support UAS Test Site activity.75
(6) Virginia Polytechnic Institute and State University
The Mid-Atlantic Aviation Partnership (MAAP) is an FAA-selected UAS test site formed in 2013 as collaboration between Virginia, Maryland, and New Jersey. MAAP is led by Virginia Tech with a focus on progressively overcoming obstacles to move the unmanned aircraft systems industry forward at an accelerated pace. MAAP accelerates the 73 Northern Plains Test Site, North Dakota, http://www.business.nd.gov/aviation/NorthernPlainsUASTestSite/ 74 UAS Test Site, LSUASC, http://lsuasc.tamucc.edu/lsuasc-test-site.html 75 UAS Test Site, NUAIR, http://nuairalliance.org/about-the-nuair-alliance/ 19 unmanned aircraft industry by connecting industry problems with solutions from innovative world-class research. They are able to leverage the tremendous research capability at multiple top research universities that are solving some of the hardest challenges faced by unmanned systems and connect these solutions with a myriad of industry problems. Additionally, the partnership employs world-class experts in unmanned aircraft technology who are innovating daily to solve operational challenges. MAAP works closely with regulating authorities and industry partners on groundbreaking studies that inform evidence-based policies and standards. As an FAA-selected UAS test site, they are able to connect their industry partners with the regulator to work together collaboratively in the development of safety cases and certification bases that establish precedent-setting foundations for expanded operations. MAAP is actively involved in the development of industry standards and they work closely with their industry partners to share lessons learned and best practices with multiple standards bodies. Enabling safe and productive operations with tomorrow’s technology today requires innovative solutions combined with groundbreaking studies in a safe environment that facilitates efficient prototyping. MAAP brings all of these components together.76
Center of Excellence (COE)
The FAA UAS Center of Excellence, the Alliance for System Safety of UAS through Research Excellence (ASSURE), is comprised of 23 of the world’s leading research institutions, led by Mississippi State University. It focuses on research, education, and training in areas critical to safe and successful integration of UAS into the nation’s airspace.77
Members include Mississippi State University, Drexel University, Embry-Riddle Aeronautical University, Kansas State University, Montana State University, New Mexico State University, North Carolina State University, Oregon State University, University of Alabama-Huntsville, University of Alaska-Fairbanks, University of California Davis, University of Kansas, University of North Dakota, The Ohio State University, Wichita State University, Auburn University - Affiliate Member, Concordia - Affiliate Member, Indiana State University - Affiliate Member, Louisiana Tech University - Affiliate Member, Sinclair Community College - Affiliate Member, Technion - Israel Institute of Technology - Affiliate Member, Tuskegee University - Affiliate Member, and University of Southampton - Affiliate Member.78
COE research focus areas include the following: (1) Air Traffic Integration - The overall level of safety in the National Aerospace System is preserved through NAS integration, which requires adherence to rigorous airworthiness standards and airspace regulations. While they apply equally to manned aircraft, they also recognize the distinguishing characteristics of UAS. This research encompasses those 76 UAS Test Site, Mid-Atlantic Aviation Partnership, http://maap.ictas.vt.edu/About/about-us.html 77 FAA, UAS Test Sites, https://www.faa.gov/uas/programs_partnerships/coe_test_sites/ 78 ASSURE, http://www.assureuas.org/index.php
20 UAS that operate like fixed wing manned aircraft that require use of ramps, taxiways and runways to complete ground operations. The FAA has recently implemented new rules at a number of airports for keeping airplanes far enough apart so they are not affected by each other's wake turbulence. This wake turbulence re-categorization (RECAT) more narrowly and accurately defines safe wake turbulence separation standards based on the performance characteristics of aircraft. This eliminates conservatively long separation standards that are necessary under current broader wake-turbulence classifications, which are based primarily on aircraft weight classes.79
Collaborative Decision Making (CDM) is a joint government/industry initiative aimed at improving air traffic flow management through increased information exchange among aviation community stakeholders. These stakeholders work together to create technological and procedural solutions to the Air Traffic Flow Management (ATFM) challenges faced by the NAS. New entrants into the NAS such as UAS are not being considered.80
(2) Airworthiness - Advances in technology have greatly increased the affordability and accessibility of UAS to potential commercial operators and the general public. Accordingly, now that the FAA has developed and issued regulations that enable the commercial and private operation of sUAS in the NAS below 400 feet, we can expect a significant increase in the number of aircraft operating in this space. In addition to the significant number of new aircraft operating in this space, these sUAS will be operating in airspace that puts them in closer proximity to people than conventional aircraft now operate (currently it is rare for aircraft to operate in this arena).81
(3) Control and Communication - Control and Communication (C²) research is the development of an appropriate C² link between the unmanned aircraft and the control station to support the required performance of the unmanned aircraft in the NAS and to ensure that the pilot always maintains a threshold level of control of the aircraft. Advanced research is required in data link management, spectrum analysis, and frequency management. Efforts will focus on completing development of C² link assurance and mitigation technologies and methods for incorporating them into the development of standards for the certification of the UAS.82
(4) Detect and Avoid (DAA) - This research area focuses on issues related to the detection of potential threats to remain well clear and avoid collisions. It explores sensors, the data produced from sensors, the management and use of that data, and the operational outcome that is considered safe and acceptable.83
(5) Human Factors - When the pilot controls the aircraft from a remote control station,
79 ASSURE, Research Projects, http://www.assureuas.org/projects/ 80 Id. 81 Id. 82 Id. 83 Id. 21 several human factors issues emerge with respect to the pilot, the air traffic controller, and their interactions to safely operate UAS in the NAS. Human factors issues in manned aviation are well known, but further analyses regarding integration of UAS into the NAS is required.84
(6) Low Altitude Operations Safety - The substantial increase in air traffic below 400 feet that is expected with the integration of small unmanned aircraft systems (sUAS) in the NAS also significantly raises the exposure of the general population to the potential effects of a sUAS mishap.85
(7) Training - The FAA's role in training is to establish policy, guidance, and standards. Airmen training standards are under development and need to be synchronized with the regulatory guidance. This research centers on UAS pilot training and pilot certification and the differences and similarities between manned and unmanned pilot training and certification.86
Future legislation
FAA Extension, Safety, and Security Act of 2016 On July 15, 2016 House Resolution (HR) 636 became Public Law 114-190. Under Title II, Aviation Safety Critical Reforms, Subtitle B, UAS Safety, the following was enacted:
SEC. 2201. DEFINITIONS. (a) DEFINITIONS APPLIED.—In this subtitle, the terms ‘‘unmanned aircraft’’, ‘‘unmanned aircraft system’’, and ‘‘small unmanned aircraft’’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note), as amended by this Act. (b) FAA MODERNIZATION AND REFORM ACT.—Section 331 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) is amended— (1) in paragraph (6) by inserting ‘‘, including everything that is on board or otherwise attached to the aircraft’’ after ‘‘55 pounds’’; and (2) by striking paragraph (7) and inserting the following: ‘‘(7) TEST RANGE.— ‘‘(A) IN GENERAL.—The term ‘test range’ means a defined geographic area where research and development are conducted as authorized by the Administrator of the Federal Aviation Administration. ‘‘(B) INCLUSIONS.—The term ‘test range’ includes any of the 6 test ranges established by the Administrator of the Federal Aviation Administration under section 332(c), as in effect on the day before the date of enactment of this subparagraph, and any public entity authorized by the Federal Aviation Administration as an unmanned aircraft system flight test center before January 1, 2009.’’.
84 Id. 85 Id. 86 Id.
22 SEC. 2202. IDENTIFICATION STANDARDS. (a) IN GENERAL.—The Administrator of the Federal Aviation Administration, in consultation with the Secretary of Transportation, the President of RTCA, Inc., and the Director of the National Institute of Standards and Technology, shall convene industry stakeholders to facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft. (b) CONSIDERATIONS.—As part of any standards developed under subsection (a), the Administrator shall ensure the consideration of— (1) requirements for remote identification of unmanned aircraft systems; (2) appropriate requirements for different classifications of unmanned aircraft systems operations, including public and civil; and (3) the feasibility of the development and operation of a publicly accessible online database of unmanned aircraft and the operators thereof, and any criteria for exclusion from the database. (c) DEADLINE.—Not later than 1 year after the date of enactment of this Act, the Administrator shall submit to the appropriate committees of Congress a report on any standards developed under subsection (a). (d) GUIDANCE.—Not later than 1 year after the date on which the Administrator submits the report under subsection (c), the Administrator shall issue regulations or guidance, as appropriate, based on any standards developed under subsection (a).
SEC. 2203. SAFETY STATEMENTS. (a) REQUIRED INFORMATION.—Beginning on the date that is 1 year after the date of publication of the guidance under subsection (b)(1), a manufacturer of a small unmanned aircraft shall make available to the owner at the time of delivery of the small unmanned aircraft the safety statement described in subsection (b)(2). (b) SAFETY STATEMENT.— (1) IN GENERAL.—Not later than 1 year after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall issue guidance for implementing this section. (2) REQUIREMENTS.—A safety statement required under subsection (a) shall include— (A) information about, and sources of, laws and regulations applicable to small unmanned aircraft; (B) recommendations for using small unmanned aircraft in a manner that promotes the safety of persons and property; (C) the date that the safety statement was created or last modified; and (D) language approved by the Administrator regarding the following: (i) A person may operate the small unmanned aircraft as a model aircraft (as defined in section 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note)) or otherwise in accordance with Federal Aviation Administration authorization or regulation, including requirements for the completion of any applicable airman test.
23 (ii) The definition of a model aircraft under section 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note). (iii) The requirements regarding the operation of a model aircraft under section 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note). (iv) The Administrator may pursue enforcement action against a person operating model aircraft who endangers the safety of the national airspace system. (c) CIVIL PENALTY.—A person who violates subsection (a) shall be liable for each violation to the United States Government for a civil penalty described in section 46301(a) of title 49, United States Code.
SEC. 2204. FACILITATING INTERAGENCY COOPERATION FOR UNMANNED AIRCRAFT AUTHORIZATION IN SUPPORT OF FIREFIGHTING OPERATIONS AND UTILITY RESTORATION. (a) FIREFIGHTING OPERATIONS.—The Administrator of the Federal Aviation Administration shall enter into agreements with the Secretary of the Interior and the Secretary of Agriculture, as necessary, to continue the expeditious authorization of safe unmanned aircraft system operations in support of firefighting operations consistent with the requirements of section 334(c) of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note). (b) UTILITY RESTORATION.—The Administrator shall enter into agreements with the Secretary of Energy and with such other agencies or parties, including the Federal Emergency Management Agency, as are necessary to facilitate the expeditious authorization of safe unmanned aircraft system operations in support of service restoration efforts of utilities. (c) DEFINITION OF UTILITY.—In this section, the term ‘‘utility’’ shall at a minimum include the definition in section 3(4) of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2602(4)).
SEC. 2205. INTERFERENCE WITH WILDFIRE SUPPRESSION, LAW ENFORCEMENT, OR EMERGENCY RESPONSE EFFORT BY OPERATION OF UNMANNED AIRCRAFT. (a) IN GENERAL.—Chapter 463 of title 49, United States Code, is amended by adding at the end the following: ‘‘§ 46320. Interference with wildfire suppression, law enforcement, or emergency response effort by operation of unmanned aircraft ‘‘(a) IN GENERAL.—Except as provided in subsection (b), an individual who operates an unmanned aircraft and in so doing knowingly or recklessly interferes with a wildfire suppression, law enforcement, or emergency response effort is liable to the United States Government for a civil penalty of not more than $20,000. ‘‘(b) EXCEPTIONS.—This section does not apply to the operation of an unmanned aircraft conducted by a unit or agency of the United States Government or of a State, tribal, or local government (including any individual conducting such operation pursuant to a contract or other agreement entered into with the unit or agency) for the purpose of protecting the public safety and welfare, including firefighting, law enforcement, or emergency response.
24 ‘‘(c) COMPROMISE AND SETOFF.— ‘‘(1) COMPROMISE.—The United States Government may compromise the amount of a civil penalty imposed under this section. ‘‘(2) SETOFF.—The United States Government may deduct the amount of a civil penalty imposed or compromised under this section from the amounts the Government owes the person liable for the penalty. ‘‘(d) DEFINITIONS.—In this section, the following definitions apply: ‘‘(1) WILDFIRE.—The term ‘wildfire’ has the meaning given that term in section 2 of the Emergency Wildfire Suppression Act (42 U.S.C. 1856m). ‘‘(2) WILDFIRE SUPPRESSION.—The term ‘wildfire suppression’ means an effort to contain, extinguish, or suppress a wildfire.’’. (b) FAA TO IMPOSE CIVIL PENALTY.—Section 46301(d)(2) of title 49, United States Code, is amended by inserting ‘‘section 46320,’’ after ‘‘section 46319,’’. (c) CLERICAL AMENDMENT.—The analysis for chapter 463 of title 49, United States Code, is amended by adding at the end the following: ‘‘46320. Interference with wildfire suppression, law enforcement, or emergency response effort by operation of unmanned aircraft.’’.
SEC. 2206. PILOT PROJECT FOR AIRPORT SAFETY AND AIRSPACE HAZARD MITIGATION. (a) IN GENERAL.—The Administrator of the Federal Aviation Administration shall establish a pilot program for airspace hazard mitigation at airports and other critical infrastructure using unmanned aircraft detection systems. (b) CONSULTATION.—In carrying out the pilot program under subsection (a), the Administrator shall work with the Secretary of Defense, the Secretary of Homeland Security, and the heads of other relevant Federal departments and agencies for the purpose of ensuring that technologies that are developed, tested, or deployed by those departments and agencies to mitigate threats posed by errant or hostile unmanned aircraft system operations do not adversely impact or interfere with safe airport operations, navigation, air traffic services, or the safe and efficient operation of the national airspace system. (c) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated from the Airport and Airway Trust Fund to carry out this section $6,000,000, to remain available until expended. (d) AUTHORITY.—After the pilot program established under subsection (a) ceases to be effective pursuant to subsection (g), the Administrator may use unmanned aircraft detection systems to detect and mitigate the unauthorized operation of an unmanned aircraft that poses a risk to aviation safety. (e) REPORT.— (1) IN GENERAL.—Not later than 18 months after the date of enactment of this Act, the Administrator shall submit to the appropriate committees of Congress a report on the results of the pilot program established under subsection (a). (2) CONTENTS.—The report required under paragraph (1) shall include the following:
25 (A) The number of unauthorized unmanned aircraft operations detected, together with a description of such operations. (B) The number of instances in which unauthorized unmanned aircraft were mitigated, together with a description of such instances. (C) The number of enforcement cases brought by the Federal Aviation Administration for unauthorized operation of unmanned aircraft detected through the pilot program, together with a description of such cases. (D) The number of any technical failures in the pilot program, together with a description of such failures. (E) Recommendations for safety and operational standards for unmanned aircraft detection systems. (F) The feasibility of deployment of the systems at other airports. (3) FORMAT.—To the extent practicable, the report prepared under paragraph (1) shall be submitted in a classified format. If appropriate, the report may include an unclassified summary. (f) SUNSET.—The pilot program established under subsection (a) shall cease to be effective on the earlier of— (1) the date that is 18 months after the date of enactment of this Act; and (2) the date of the submission of the report under subsection (e).
SEC. 2207. EMERGENCY EXEMPTION PROCESS. (a) IN GENERAL.—Not later than 90 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall publish guidance for applications for, and procedures for the processing of, on an emergency basis, exemptions or certificates of authorization or waiver for the use of unmanned aircraft systems by civil or public operators in response to a catastrophe, disaster, or other emergency to facilitate emergency response operations, such as firefighting, search and rescue, and utility and infrastructure restoration efforts. In processing such applications, the Administrator shall give priority to applications for public unmanned aircraft systems engaged in emergency response activities. (b) REQUIREMENTS.—In providing guidance under subsection (a), the Administrator shall— (1) make explicit any safety requirements that must be met for the consideration of applications that include requests for beyond visual line of sight or nighttime operations, or the suspension of otherwise applicable operating restrictions, consistent with public interest and safety; and (2) explicitly state the procedures for coordinating with an incident commander, if any, to ensure operations granted under procedures developed under subsection (a) do not interfere with other emergency response efforts. (c) REVIEW.—In processing applications on an emergency basis for exemptions or certificates of authorization or waiver for unmanned aircraft systems operations in response to a catastrophe, disaster, or other emergency, the Administrator shall act on such applications as expeditiously as practicable and without requiring public notice and comment.
26 SEC. 2208. UNMANNED AIRCRAFT SYSTEMS TRAFFIC MANAGEMENT. (a) RESEARCH PLAN FOR UTM DEVELOPMENT AND DEPLOYMENT.— (1) IN GENERAL.—The Administrator of the Federal Aviation Administration (in this section referred to as the ‘‘Administrator’’), in coordination with the Administrator of the National Aeronautics and Space Administration, shall continue development of a research plan for unmanned aircraft systems traffic management (in this section referred to as ‘‘UTM’’) development and deployment. (2) REQUIREMENTS.—In developing the research plan, the Administrator shall — (A) identify research outcomes sought; and (B) ensure the plan is consistent with existing regulatory and operational frameworks, and considers potential future regulatory and operational frameworks, for unmanned aircraft systems in the national airspace system. (3) ASSESSMENT.—The research plan shall include an assessment of the interoperability of a UTM system with existing and potential future air traffic management systems and processes. (4) DEADLINES.—The Administrator shall— (A) initiate development of the research plan not later than 60 days after the date of enactment of this Act; and (B) not later than 180 days after the date of enactment of this Act— (i) complete the research plan; (ii) submit the research plan to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science, Space, and Technology and the Committee on Transportation and Infrastructure of the House of Representatives; and (iii) publish the research plan on the Internet Web site of the Federal Aviation Administration. (b) PILOT PROGRAM.— (1) IN GENERAL.—Not later than 90 days after the date of submission of the research plan under subsection (a)(4)(B), the Administrator, in coordination with the Administrator of the National Aeronautics and Space Administration, the Drone Advisory Committee, the research advisory committee established by section 44508(a) of title 49, United States Code, and representatives of the unmanned aircraft industry, shall establish a UTM system pilot program. (2) SUNSET.—Not later than 2 years after the date of establishment of the pilot program, the Administrator shall conclude the pilot program. (c) UPDATES.—Not later than 180 days after the date of establishment of the pilot program, and every 180 days thereafter until the date of conclusion of the pilot program, the Administrator shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science, Space, and Technology and the Committee on Transportation and Infrastructure of the House of Representatives an update on the status and progress of the pilot program.
SEC. 2209. APPLICATIONS FOR DESIGNATION.
27 (a) APPLICATIONS FOR DESIGNATION.—Not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall establish a process to allow applicants to petition the Administrator of the Federal Aviation Administration to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility. (b) REVIEW PROCESS.— (1) APPLICATION PROCEDURES.— (A) IN GENERAL.—The Administrator shall establish the procedures for the application for designation under subsection (a). (B) REQUIREMENTS.—The procedures shall allow operators or proprietors of fixed site facilities to apply for designation individually or collectively. (C) CONSIDERATIONS.—Only the following may be considered fixed site facilities: (i) Critical infrastructure, such as energy production, transmission, and distribution facilities and equipment. (ii) Oil refineries and chemical facilities. (iii) Amusement parks. (iv) Other locations that warrant such restrictions. (2) DETERMINATION.— (A) IN GENERAL.—The Secretary shall provide for a determination under the review process established under subsection (a) not later than 90 days after the date of application, unless the applicant is provided with written notice describing the reason for the delay. (B) AFFIRMATIVE DESIGNATIONS.—An affirmative designation shall outline— (i) the boundaries for unmanned aircraft operation near the fixed site facility; and (ii) such other limitations that the Administrator determines may be appropriate. (C) CONSIDERATIONS.—In making a determination whether to grant or deny an application for a designation, the Administrator may consider— (i) aviation safety; (ii) protection of persons and property on the ground; (iii) national security; or (iv) homeland security. (D) OPPORTUNITY FOR RESUBMISSION.—If an application is denied, and the applicant can reasonably address the reason for the denial, the Administrator may allow the applicant to reapply for designation. (c) PUBLIC INFORMATION.—Designations under subsection (a) shall be published by the Federal Aviation Administration on a publicly accessible website. (d) SAVINGS CLAUSE.—Nothing in this section may be construed as prohibiting the Administrator from authorizing operation of an aircraft, including an unmanned aircraft system, over, under, or within a specified distance from that fixed site facility designated under subsection (b).
SEC. 2210. OPERATIONS ASSOCIATED WITH CRITICAL INFRASTRUCTURE.
28 (a) IN GENERAL.—Any application process established under section 333 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) shall allow for a person to apply to the Administrator of the Federal Aviation Administration to operate an unmanned aircraft system, for purposes of conducting an activity described in subsection (b)— (1) beyond the visual line of sight of the individual operating the unmanned aircraft system; and (2) during the day or at night. (b) ACTIVITIES DESCRIBED.—The activities described in this subsection are — (1) activities for which manned aircraft may be used to comply with Federal, State, or local laws, including— (A) activities to ensure compliance with Federal or State regulatory, permit, or other requirements, including to conduct surveys associated with applications for permits for new pipeline or pipeline systems construction or maintenance or rehabilitation of existing pipelines or pipeline systems; and (B) activities relating to ensuring compliance with— (i) parts 192 and 195 of title 49, Code of Federal Regulations; and (ii) the requirements of any Federal, State, or local governmental or regulatory body, or industry best practice, pertaining to the construction, ownership, operation, maintenance, repair, or replacement of covered facilities; (2) activities to inspect, repair, construct, maintain, or protect covered facilities, including for the purpose of responding to a pipeline, pipeline system, or electric energy infrastructure incident; and (3) activities in response to or in preparation for a natural disaster, manmade disaster, severe weather event, or other incident beyond the control of the applicant that may cause material damage to a covered facility. (c) DEFINITIONS.—In this section, the following definitions apply: (1) COVERED FACILITY.—The term ‘‘covered facility’’ means— (A) a pipeline or pipeline system; (B) an electric energy generation, transmission, or distribution facility (including a renewable electric energy facility); (C) an oil or gas production, refining, or processing facility; or (D) any other critical infrastructure facility. (2) CRITICAL INFRASTRUCTURE.—The term ‘‘critical infrastructure’’ has the meaning given that term in section 2339D of title 18, United States Code. (d) DEADLINES.— (1) CERTIFICATION TO CONGRESS.—Not later than 90 days after the date of enactment of this Act, the Administrator shall submit to the appropriate committees of Congress a certification that a process has been established to facilitate applications for unmanned aircraft systems operations described in this section. (2) FAILURE TO MEET CERTIFICATION DEADLINE.—If the Administrator cannot provide a certification under paragraph (1), the Administrator, not later than 180 days after the deadline specified in paragraph (1), shall update the process under section 333 of the FAA Modernization and Reform Act of 2012 (49
29 U.S.C. 40101 note) to facilitate applications for unmanned aircraft systems operations described in this section. (e) EXEMPTIONS.—In addition to the operations described in this section, the Administrator may authorize, exempt, or otherwise allow other unmanned aircraft systems operations under section 333 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) that are conducted beyond the visual line of sight of the individual operating the unmanned aircraft system or during the day or at night.
SEC. 2211. UNMANNED AIRCRAFT SYSTEMS RESEARCH AND DEVELOPMENT ROADMAP. Section 332(a)(5) of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) is amended— (1) by inserting ‘‘, in coordination with the Administrator of the National Aeronautics and Space Administration (NASA) and relevant stakeholders, including those in industry and academia,’’ after ‘‘update’’; and (2) by inserting after ‘‘annually.’’ the following: ‘‘The roadmap shall include, at a minimum— ‘‘(A) cost estimates, planned schedules, and performance benchmarks, including specific tasks, milestones, and timelines, for unmanned aircraft systems integration into the national airspace system, including an identification of— ‘‘(i) the role of the unmanned aircraft systems test ranges established under subsection (c) and the Unmanned Aircraft Systems Center of Excellence; ‘‘(ii) performance objectives for unmanned aircraft systems that operate in the national airspace system; and ‘‘(iii) research and development priorities for tools that could assist air traffic controllers as unmanned aircraft systems are integrated into the national air- space system, as appropriate; ‘‘(B) a description of how the Administration plans to use research and development, including research and development conducted through NASA’s Unmanned Aircraft Systems Traffic Management initiatives, to accommodate, integrate, and provide for the evolution of unmanned aircraft systems in the national airspace system; ‘‘(C) an assessment of critical performance abilities necessary to integrate unmanned aircraft systems into the national airspace system, and how these performance abilities can be demonstrated; and ‘‘(D) an update on the advancement of technologies needed to integrate unmanned aircraft systems into the national airspace system, including decision making by adaptive systems, such as sense-and-avoid capabilities and cyber physical systems security.’’.
SEC. 2212. UNMANNED AIRCRAFT SYSTEMS-MANNED AIRCRAFT COLLISION RESEARCH. (a) RESEARCH.—The Administrator of the Federal Aviation Administration (in this section referred to as the ‘‘Administrator’’), in continuation of ongoing work, shall coordinate with the Administrator of the National Aeronautics and Space
30 Administration to develop a program to conduct comprehensive testing or modeling of unmanned aircraft systems colliding with various sized aircraft in various operational settings, as considered appropriate by the Administrator, including— (1) collisions between unmanned aircraft systems of various sizes, traveling at various speeds, and jet aircraft of various sizes, traveling at various speeds; (2) collisions between unmanned aircraft systems of various sizes, traveling at various speeds, and propeller-driven aircraft of various sizes, traveling at various speeds; (3) collisions between unmanned aircraft systems of various sizes, traveling at various speeds, and rotorcraft of various sizes, traveling at various speeds; and (4) collisions between unmanned aircraft systems and various parts of the aforementioned aircraft, including— (A) windshields; (B) noses; (C) engines; (D) radomes; (E) propellers; and (F) wings. (b) REPORT.—Not later than 1 year after the date of enactment of this Act, the Administrator shall transmit to the Committee on Science, Space, and Technology and the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report summarizing the costs and results of research under this section.
SEC. 2213. PROBABILISTIC METRICS RESEARCH AND DEVELOPMENT STUDY. (a) STUDY.—Not later than 30 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall enter into an arrangement with the National Academies to study the potential use of probabilistic assessments of risks by the Administration to streamline the integration of unmanned aircraft systems into the national airspace system, including any research and development necessary. (b) COMPLETION DATE.—Not later than 1 year after the date of enactment of this Act, the Administrator shall provide the results of the study to the Committee on Science, Space, and Technology and the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.87
Privacy
NTIA
87 Public Law 114-190, https://www.congress.gov/114/plaws/publ190/PLAW- 114publ190.pdf 31 National Telecommunications and Information Administration (NTIA) is the Executive Branch agency that is principally responsible for advising the President on telecommunications and information policy issues. NTIA's programs and policymaking focus largely on expanding broadband Internet access and adoption in America, expanding the use of spectrum by all users, and ensuring that the Internet remains an engine for continued innovation and economic growth.88
On February 15, 2015, President Obama issued the Presidential Memorandum "Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems." The Presidential Memorandum states: "As UAS are integrated into the NAS, the Federal Government will take steps to ensure that the integration takes into account not only our economic competitiveness and public safety, but also the privacy, civil rights, and civil liberties concerns these systems may raise." The Presidential Memorandum establishes a "multi- stakeholder engagement process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use in the NAS." The process will include stakeholders from industry, civil society, and academia, and will be initiated by the Department of Commerce, through NTIA, and in consultation with other interested agencies.89
NTIA's role in the multistakeholder process is to provide a forum for discussion and consensus-building among stakeholders. When stakeholders disagree, NTIA's role is to help the parties reach clarity on what their positions are and whether there are options for compromise toward consensus, rather than substituting its own judgment. Furthermore, this stakeholder group is not an advisory committee, as neither NTIA nor any other Federal agency or office will seek consensus advice or recommendations on policy issues from participants in this multistakeholder process. Public stakeholder meetings will be webcast, and there will be an opportunity for stakeholders viewing the webcast to participate remotely in the meetings through a moderated conference bridge. On March 5, 2015, NTIA sought public comment regarding privacy, accountability, and transparency issues concerning UAS. Individuals and entities in the commercial, academic, civil society, and government sectors filed comments.90
Stakeholders at the May 18, 2016 meeting agreed to conclude the process, and a diverse group of stakeholders came to consensus on a best practices document. This document was updated at the request of stakeholders on June 21, 2016, to include background information and reaction, but it does not include any changes to the UAS best practices agreed to on May 18. The stakeholders that support this best practices document include: Amazon, Association for Unmanned Vehicle Systems International (AUVSI), Center for Democracy and Technology, Commercial Drone Alliance, Consumer Technology 88 National Telecommunications and Information Administration (NTIA), About, https://www.ntia.doc.gov/home 89 NTIA, Multistakeholder Process: Unmanned Aircraft Systems, https://www.ntia.doc.gov/other-publication/2016/multistakeholder-process-unmanned- aircraft-systems 90 Id.
32 Association, CTIA, Future of Privacy Forum, Intel, New America's Open Technology Institute, PrecisionHawk, X (Formerly Google [x]), Small UAV Coalition, Online Trust Alliance (OTA), News Media Coalition, Newspaper Association of America (NAA), National Association of Broadcasters (NAB), Radio Television Digital News Association (RTDNA), Digital Content Next (DCN), Software & Information Industry Association (SIIA), NetChoice, U.S. Chamber of Commerce.91
Voluntary Best Practices Voluntary Best Practices for UAS Privacy, Transparency, and Accountability include the following:
1. INFORM OTHERS OF YOUR USE OF UAS 1(a) Where practicable, UAS operators should make a reasonable effort to provide prior notice to individuals of the general timeframe and area that they may anticipate a UAS intentionally collecting covered data. 1(b) When a UAS operator anticipates that UAS use may result in collection of covered data, the operator should provide a privacy policy for such data appropriate to the size and complexity of the operator, or incorporate such a policy into an existing privacy policy. The privacy policy should be in place no later than the time of collection and made publicly available. The policy should include, as practicable: (1) the purposes for which UAS will collect covered data; (2) the kinds of covered data UAS will collect; (3) information regarding any data retention and de-identification practices; (4) examples of the types of any entities with whom covered data will be shared; (5) information on how to submit privacy and security complaints or concerns; and (6) information describing practices in responding to law enforcement requests. Material changes to the above should be incorporated into the privacy policy.
2. SHOW CARE WHEN OPERATING UAS OR COLLECTING AND STORING COVERED DATA 2(a) In the absence of a compelling need to do otherwise, or consent of the data subjects, UAS operators should avoid using UAS for the specific purpose of intentionally collecting covered data where the operator knows the data subject has a reasonable expectation of privacy. 2(b) In the absence of a compelling need to do otherwise, or consent of the data subjects, UAS operators should avoid using UAS for the specific purpose of persistent and continuous collection of covered data about individuals. 2(c) Where it will not impede the purpose for which the UAS is used or conflict with FAA guidelines, UAS operators should make a reasonable effort to minimize UAS operations over or within private property without consent of the property owner or without appropriate legal authority. 2(d) UAS operators should make a reasonable effort to avoid knowingly retaining covered data longer than reasonably necessary to fulfill a purpose as outlined in §
91 Id. 33 IV.1(b). With the consent of the data subject, or in exceptional circumstances (such as legal disputes or safety incidents), such data may be held for a longer period. 2(e) UAS operators should establish a process, appropriate to the size and complexity of the operator, for receiving privacy or security concerns, including requests to delete, de-identify, or obfuscate the data subject’s covered data. Commercial operators should make this process easily accessible to the public, such as by placing points of contact on a company website.
3. LIMIT THE USE AND SHARING OF COVERED DATA 3(a) UAS operators should not use covered data for the following purposes without consent: employment eligibility, promotion, or retention; credit eligibility; or health care treatment eligibility other than when expressly permitted by and subject to the requirements of a sector-specific regulatory framework. 3(b) UAS operators should make a reasonable effort to avoid using or sharing covered data for any purpose that is not included in the privacy policy covering UAS data. 3(c) If publicly disclosing covered data is not necessary to fulfill the purpose for which the UAS is used, UAS operators should avoid knowingly publicly disclosing data collected via UAS until the operator has undertaken a reasonable effort to obfuscate or de-identify covered data —unless the data subjects provide consent to the disclosure. 3(d) UAS operators should make a reasonable effort to avoid using or sharing covered data for marketing purposes unless the data subject provides consent to the use or disclosure. There is no restriction on the use or sharing of aggregated covered data as an input (e.g., statistical information) for broader marketing campaigns.
4. SECURE COVERED DATA 4(a) UAS operators should take measures to manage security risks of covered data by implementing a program that contains reasonable administrative, technical, and physical safeguards appropriate to the operator’s size and complexity, the nature and scope of its activities, and the sensitivity of the covered data. Examples of appropriate administrative, technical, and physical safeguards include those described in guidance from the Federal Trade Commission, the National Institute of Standards and Technology (NIST) Cybersecurity Framework, and the International Organization for Standardization’s 27001 standard for information security management. For example, UAS operators engaging in commercial activity should consider taking the following actions to secure covered data: - Having a written security policy with respect to the collection, use, storage, and dissemination of covered data appropriate to the size and complexity of the operator and the sensitivity of the data collected and retained. - Making a reasonable effort to regularly monitor systems for breach and data security risks.
34 - Making a reasonable effort to provide security training to employees with access to covered data. - Making a reasonable effort to permit only authorized individuals to access covered data.
5. MONITOR AND COMPLY WITH EVOLVING FEDERAL, STATE, AND LOCAL UAS LAWS 5(a) UAS operators should ensure compliance with evolving applicable laws and regulations and UAS operators’ own privacy and security policies through appropriate internal processes.
BEST PRACTICES FOR NEWSGATHERERS AND NEWS REPORTING ORGANIZATIONS Newsgathering and news reporting are strongly protected by United States law, including the First Amendment to the Constitution. The public relies on an independent press to gather and report the news and ensure an informed public. For this reason, these Best Practices do not apply to newsgatherers and news reporting organizations. Newsgatherers and news reporting organizations may use UAS in the same manner as any other comparable technology to capture, store, retain and use data or images in public spaces. Newsgatherers and news reporting organizations should operate under the ethics rules and standards of their organization, and according to existing federal and state laws.
Guidelines for Neighborly Drone Use Drones are useful. New, fairly cheap drones are easy to use. But just because they are cheap and simple to fly doesn’t mean the pictures and video they take can’t harm other people. The FAA and partner organizations have put safety guidance online at http://knowbeforeyoufly.org. But even safe flight might not respect other people’s privacy. These are voluntary guidelines. No one is forcing you to obey them. Privacy is hard to define, but it is important. There is a balance between your rights as a drone user and other people’s rights to privacy. That balance isn’t easy to find. You should follow the detailed “UAS Privacy Best Practices”, on which these guidelines are based, especially if you fly drones often, or use them commercially. The overarching principle should be peaceful issue resolution.
1. If you can, tell other people you’ll be taking pictures or video of them before you do. 2. If you think someone has a reasonable expectation of privacy, don’t violate that privacy by taking pictures, video, or otherwise gathering sensitive data, unless you’ve got a very good reason. 3. Don’t fly over other people’s private property without permission if you can easily avoid doing so. 4. Don’t gather personal data for no reason, and don’t keep it for longer than you think you have to. 5. If you keep sensitive data about other people, secure it against loss or theft. 6. If someone asks you to delete personal data about him or her that you’ve
35 gathered, do so, unless you’ve got a good reason not to. 7. If anyone raises privacy, security, or safety concerns with you, try and listen to what they have to say, as long as they’re polite and reasonable about it. 8. Don’t harass people with your drone.92
Global Regulations
ICAO The International Civil Aviation Organization (ICAO) is a UN specialized agency, established by States in 1944 to manage the administration and governance of the Convention on International Civil Aviation (Chicago Convention). ICAO works with the Convention’s 191 Member States (including the U.S.) and industry groups to reach consensus on international civil aviation Standards and Recommended Practices (SARPs) and policies in support of a safe, efficient, secure, economically sustainable and environmentally responsible civil aviation sector. These SARPs and policies are used by ICAO Member States to ensure that their local civil aviation operations and regulations conform to global norms, which in turn permits more than 100,000 daily flights in aviation’s global network to operate safely and reliably in every region of the world. In addition to its core work resolving consensus-driven international SARPs and policies among its Member States and industry, and among many other priorities and programs, ICAO also coordinates assistance and capacity building for States in support of numerous aviation development objectives; produces global plans to coordinate multilateral strategic progress for safety and air navigation; monitors and reports on numerous air transport sector performance metrics; and audits States’ civil aviation oversight capabilities in the areas of safety and security.93
UAS Toolkit On December 13, 2016 appropriately on International Civil Aviation Day, ICAO published an online UAS Toolkit designed to help UAS operators of all ages operate their aircraft safely and responsibly regardless of their skills and experience. This toolkit includes a narrative that covers background and general recommendations for member states that are considering drafting UAS laws within their countries. The narrative presents UAS best practices, lessons learned and regulations.94 Additionally, ICAO published another online resource entitled, Fly Safe/Fly Legal, to ensure safe UAS operation, to encourage business and to provide societal benefits while all aircraft share the airspace in a safe, predictable and regulated manner.95
So far ICAO has published Circular 328 (2011) on UAS and amended Annexes 2, 7, and 13 to the Chicago Convention to accommodate Remotely Piloted Aircraft Systems
92 NTIA, Voluntary Best Practices, https://www.ntia.doc.gov/files/ntia/publications/voluntary_best_practices_for_uas_privac y_transparency_and_accountability_0.pdf 93 ICAO, About ICAO, http://www.icao.int/about-icao/Pages/default.aspx 94 ICAO, UAS Toolkit, https://www4.icao.int/uastoolkit/Home/Narrative 95 ICAO, Fly Safe/Fly Legal, https://www4.icao.int/uastoolkit/Home/Fly
36 (RPAS) intended to be used by international civil aviation.96 In 2015, ICAO published the Manual on Remotely Piloted Aircraft Systems. This document explains how the existing regulatory framework that was developed for manned aviation applies to unmanned aircraft. It also gives insight into the changes that will be coming for RPAS. It outlines ICAO’s SARPs and guidance material, thereby helping other standardization organizations coordinate their activities. The ICAO UAS Study Group plans to complete SARPs for air traffic management and ‘detect and avoid’ requirements for unmanned aircraft in 2020. Updates to Annex 6, Operation of Aircraft, that include RPAS Operations and Operator Certification, are expected by 2018.97
EASA The European Aviation Safety Agency (EASA) is an agency of the European Union (EU) with regulatory and executive tasks in the field of civilian aviation safety. There are currently 32 EASA member states. The mission of EASA is to: (1) ensure the highest common level of safety protection for EU citizens; (2) ensure the highest common level of environmental protection; (3) be a single regulatory and certification process among member states; (4) facilitate the internal aviation single market and create a level playing field; and (5) work with other international aviation organizations and regulators. Tasks of EASA include the: (1) drafting and implementing of rules in all fields pertinent to the EASA mission; (2) certification and approval of products and organizations, in fields where EASA has exclusive competence (e.g. airworthiness); (3) provision of oversight and support to member states in fields where EASA has shared competence (e.g. air operations, air traffic management); (4) promotion of the use of European and worldwide standards; and (5) cooperation with international actors in order to achieve the highest safety level for EU citizens globally (e.g. EU safety list, Third Country Operators authorizations.98
EASA Regulation (EC) No 216/2008 mandates EASA to regulate UAS and in particular RPAS, when used for civil applications and with an operating mass of 150 kg or more. Experimental or amateur built RPAS, military and non-military governmental RPAS flights, civil RPAS below 150 kg as well as model aircraft are regulated by individual Member States of the European Union. Toys, even if capable of flying but not equipped with an internal combustion engine, are subject to Directive 2009/48/EC.
EASA is supporting the European Commission to produce a regulatory framework for unmanned aircraft. In December 2015, the Agency published a technical opinion that contains, in its section 4, an update of the roadmap published by the European RPAS Steering Group (ESRG) in 2013.99
JARUS 96 EASA, UAS and Remotely Piloted Aircraft Systems (RPAS), https://www.easa.europa.eu/unmanned-aircraft-systems-uas-and-remotely-piloted- aircraft-systems-rpas 97 ICAO, Manual on Remotely Piloted Aircraft Systems, http://www.eurocontrol.int/news/icao’s-rpas-manual-issued 98 EASA, The Agency, https://www.easa.europa.eu/the-agency/the-agency 37 Joint Authorities for Rulemaking on Unmanned Systems (JARUS) is a group of experts from the National Aviation Authorities (NAAs) and regional aviation safety organizations. Its purpose is to recommend a single set of technical, safety and operational requirements for the certification and safe integration of UAS into airspace and at aerodromes. The objective of JARUS is to provide guidance material aiming to facilitate each authority to write their own requirements and to avoid duplicate efforts. At present, 50 countries, EASA and EUROCONTROL are contributing to the development of JARUS.100
EASA is member of JARUS, which is currently developing recommended requirements for: (1) Licensing of remote pilots; (2) RPAS operations in Visual Line-of-Sight (VLOS) and beyond (BVLOS); (3) Civil RPAS operators and Approved Training Organizations for remote pilots (JARUS-ORG); (4) Certification specifications for light unmanned rotorcraft (CS-LURS) and airplanes (CS-LURS) below 600 kg; (5) Performance requirements for 'detect and avoid' to maintain the risk of midair collision below a tolerable level of safety (TLS) and taking into account all actors in the total aviation system; (6) Performance requirements for command and control data link, whether in direct radio line-of-sight (RLOS) or beyond (BRLOS) and in the latter case supported by a Communication Service Provider (COM SP); (7) Safety objectives for airworthiness of RPAS ('1309') to minimize the risk of injuries to people on the ground; and (8) Processes for airworthiness.101
Canada Transport Canada has had regulations in place for a number of years and is currently in the process of updating them. When flying an unmanned air vehicle (UAV) in Canada, one must: (1) follow the rules in the Canadian Aviation Regulations (CARs), section 602.41 covers UAVs and section 602.45 covers model aircraft; and (2) respect the Criminal Code, the provincial Trespass Act, as well as all applicable municipal, provincial, and territorial laws.
Transport Canada inspectors investigate reports of unsafe and illegal UAV use. They may involve local police if other laws (e.g., the Criminal Code and privacy laws) were broken. One could face serious consequences, including up to $25,000 in fines and/or jail time, if one: (1) puts aircraft at risk, (2) flies where one is not allowed, or (3) endangers anyone’s safety.
Transport Canada is developing new regulations to address the safety requirements, growing popularity, and economic importance of UAVs. Proposed changes include: (1) new flight rules; (2) aircraft marking and registration requirements; (3) knowledge 99 EASA, UAS and Remotely Piloted Aircraft Systems (RPAS), https://www.easa.europa.eu/unmanned-aircraft-systems-uas-and-remotely-piloted- aircraft-systems-rpas 100 JARUS, http://jarus-rpas.org/ 101 EASA, UAS and Remotely Piloted Aircraft Systems (RPAS), https://www.easa.europa.eu/unmanned-aircraft-systems-uas-and-remotely-piloted- aircraft-systems-rpas
38 testing; (4) minimum age limits; and (5) pilot permits for certain UAV operations. A Notice of Proposed Amendment (NPA) was published in May 2015 to highlight these changes.102
In Canada, if one does not use the UAV for work or research (anything beyond the fun of flying) and it weighs less than 35 kg, one does not need Transport Canada permission, and should just fly safely. Two exemptions allow non-recreational operators to conduct lower risk operation in more remote areas without the need to apply for a Special Flight Operations Certificate (SFOC). Although most UAV operators will need to hold an SFOC, some may benefit from these exemptions. To operate under an exemption, one must meet all safety conditions outlined in one of the following: (1) exemption for UAVs that weigh 1 kg or less; or (2) exemption for UAVs above 1 kg up to and including 25 kg. If one cannot meet ALL of these requirements, one needs an SFOC to legally operate one’s UAV.103
Advisory Circular (AC) 600-004, entitled Guidance material for operating unmanned air vehicle systems under an exemption, provides additional guidance on the UAV exemptions as well as detailed information on each of the safety conditions.104
New Zealand The Civil Aviation Authority (CAA) of New Zealand takes a radically different approach to drone law than the U.S. and Canada, and most of ICAO nations for that matter. RPAS operations in New Zealand are either conducted under Part 101 or Part 102. Part 101 operators are not required to seek authorization from the CAA. As a result, there are no direct controls over the skills and qualifications of the operator, or the airworthiness of the aircraft itself. Part 101 applies to both recreational and commercial users. This means that a wide range of commercial activities could be conducted without any interaction with the CAA. This is in stark contrast with the approach taken by other countries, where all commercial operators are required to obtain a certificate or seek permission from the regulatory authority, regardless of the risk of their operation. This approach allows lower- risk commercial operations to take place without burdensome certification requirements, as long as the operators remain compliant with the restrictions set out in Part 101.105
Part 102 is designed for higher-risk operators. It is extremely flexible, in that very few activities are specifically prohibited (e.g. other than carrying passengers). Instead,
102 Transport Canada, Legal Requirements for UAVs, http://www.tc.gc.ca/eng/civilaviation/opssvs/flying-drone-safely-legally.html#legal 103 Transport Canada, Infographic Flying an Unmanned Aircraft, http://www.tc.gc.ca/media/documents/ca-opssvs/flying-unmanned-aircraft-need- permission.pdf 104 Id. 105 Civil Aviation Authority (CAA) of New Zealand, Advisory Circular (AC) 101-1, https://www.caa.govt.nz/assets/legacy/Advisory_Circulars/AC101-1.pdf 39 certificates are granted on a case-by-case basis, where the Director of Civil Aviation is satisfied that the operator has identified the risks associated with the intended operation(s) and has a plan in place to mitigate those risks. If an operator cannot comply with Part 101 this is a good signal that the operation may be higher risk and require certification.106 The purpose of Advisory Circular (AC) 101-1 is to provide compliance guidance and explanatory material designed to assist operators understand what they can and cannot do under Part 101(that is without certification). It should also assist operators to understand the difference between an RPAS operation under Part 101, and an RPAS operation that is more suitable for certification under Part 102.107 According to the CAA, model aircraft were traditionally regarded as small unmanned aircraft flown by hobbyists for purely recreational reasons. While Part 101 still refers to subcategories of ‘model aircraft’, such as free flight model aircraft and control line model aircraft, the more general term ‘model aircraft’ no longer exists. Model aircraft are now referred to as ‘remotely piloted aircraft’ under Part 101, and are unmanned aircraft for the purposes of Part 102. The rules do not make a distinction between remotely piloted aircraft that are operated for commercial or recreational purposes. This position reflects the CAA’s view that the aviation-related risk posed by remotely piloted aircraft differs very little, between an aircraft that is used for recreational purposes or commercial purposes. As an example, the risk to persons or property from a small unmanned aircraft taking an aerial photograph or video is the same, whether the photograph or video is sold or retained for private use. The important aspect is that the risks to persons and property are managed in both cases. Therefore, ‘model aircraft’ meet the definition of remotely piloted aircraft, and are subject to regulation under Part 101, or Part 102 if operating beyond the limits prescribed in Part 101.108
Part 101 Part 101 only applies to RPAS of 25 kg and under that can fully comply with the rules in Part 101. To operate any aircraft over this weight, and for operations that cannot comply with Part 101, the operator must be certificated under Part 102. RPAS weighing between 15 and 25 kg must be constructed or inspected, approved and operated under the authority of a person or association approved for this purpose by the Director of Civil Aviation. There are 12 key things that are required under Part 101. One must: (1) Not operate an aircraft that is 25 kg or larger and always ensure that it is safe to operate; (2) at all times take all practicable steps to minimize hazards to persons, property and other aircraft (i.e., do not do anything hazardous); (3) fly only in daylight; (4) give way to all crewed aircraft; (5) be able to see the aircraft with your own eyes (e.g., not through binoculars, a monitor, or smartphone) to ensure separation from other aircraft (or use an observer to do this in certain cases); (6) not fly your aircraft higher than 120 metres (400 feet) above ground level (unless certain conditions are met); (7) have knowledge of airspace restrictions that apply in the area you want to operate; (8) not fly closer than four kilometres from any aerodrome (unless certain conditions are met); (9)
106 Id. 107 Id. 108 Id.
40 when flying in controlled airspace, obtain an air traffic control clearance issued by Airways; (10) not fly in special use airspace without the permission of the administering authority of the area (e.g., military operating areas or restricted areas); (11) have consent from anyone you want to fly above; and (12) have the consent of the property owner or person in charge of the area you are wanting to fly above.109
Part 101 requires operators to obtain the consent of property owners and people that they are flying over. It is a two-step requirement: (1) an operator must not use airspace above people unless they have the consent of people below the flight; and (2) an operator must not use airspace above an area of property unless prior consent has been obtained from any persons occupying that property or the property owner. It is important to note that this is only one aspect of the risk mitigation required in Part 101. There is still an overarching obligation to take all practicable steps to avoid any hazards. If you cannot obtain consent, or obtaining consent is impractical, it may be a signal that your operation is too hazardous to be conducted under Part 101. You can apply to the CAA to be certificated under Part 102. Part 102 allows the Director of Civil Aviation to work though different options with an operator and/or to relax or remove one or both of the consent requirements altogether.110
Part 102 Part 102 is based on the risk of the operations. Applicants must submit an 'exposition' showing that they have identified hazards and risks of their operation, and ways they will mitigate those risks. Each application is considered on its merit as this allows for the wide scope of operations made possible by RPAS.111
109 CAA, Part 101, https://www.caa.govt.nz/rpas/index-2/ 110 Id. 111 Id. 41