On February 15, 2015, the FAA issued its long-awaited notice of proposed rulemaking on small unmanned aerial vehicles (UAVs). Currently, federal law prohibits commercial use of UAVs without advance approval, typically through the so-called Section 333 approval process. The draft regulations would allow commercial operations subject to several limitations and with preapproval required to operate in certain classes of airspace. If implemented in their current form, the rules would be a significant step toward integrating UAVs into the national airspace system. But they remain a tentative step, and their limitations, such as daytime operation and visual line of sight, will constrain the industry. The FAA recognizes that further integration may come in future rulemakings as see-and-avoid and lost-link technologies progress.

Highlights of the Proposed Rules

Preapproval tied to airspace, not nature of use. Operators will no longer need FAA approval based on the commercial nature of the use. Air traffic control approval will be required to operate in class B, C, D or E airspace; no approval will be required for class G airspace.

No operations over people. UAVs cannot fly over people not directly involved in their operation, but otherwise there is no set separation from people and structures. Careless or reckless operations are prohibited.

No cargo for hire. UAVs can carry cargo, so long as the total weight of the UAV does not exceed 55 pounds, but not for compensation. External load operations are prohibited.

Visual-line-of-sight, visibility and altitude limitations. The FAA concluded that existing technology does not allow UAVs to see and avoid obstacles autonomously. The proposed rule requires UAVs to stay within the operator’s unaided visual line of sight and restricts operation to daytime with visibility more than three miles. UAVs may not exceed 500 feet above ground level. Additionally, a pilot may operate only one UAV at a time.

UAV operator’s license. UAV operators would not need a traditional pilot’s license but would need a UAV airman’s certificate from the FAA. The certificate would require an aeronautical knowledge exam every 24 months, but no flight training. UAV operators would also need to be vetted by the Transportation Safety Administration.

No airworthiness certification. The FAA would not preapprove the design of UAVs, unlike the design of manned aircraft. No specific lost-link response or geo-fencing technologies would be required. UAVs would be required to carry enough power to operate for five minutes beyond their intended operational time.

Just the First Step

The FAA acknowledges that the proposed rule will exclude many small UAV operations. It anticipates future rulemakings addressing operations that use more advanced technologies. The FAA is also considering granting waivers on a case-by-case basis for small UAVs equipped with technology that addresses the safety concerns underlying the proposed rule.

Timeline for Implementation

The FAA Modernization and Reform Act of 2012 requires the FAA to integrate small UAVs into the national airspace by September 30, 2015. It is widely believed that the FAA will miss that deadline and that the proposed rule will take much longer to implement. We expect significant pushback from several constituencies, including the commercial pilots’ union, which has insisted that UAV operators obtain commercial pilot licenses.

The proposed rule has not been published in the Federal Register yet. Once it is, the public will have 60 days to comment. The FAA is particularly interested in hearing about circumstances where operations beyond visual line of sight may be appropriate.

Until the proposed rule takes effect, companies that want to engage in commercial operations can continue to submit petitions for exemptions under Section 333 of the FAA Modernization and Reform Act. To date, the FAA has granted 25 such exemptions.

The proposed rule contains considerably more detail than this brief summary. It also proposes to create a classification of micro-UAVs under 4.4 pounds, which would not require an operator’s license, and to formalize the FAA’s authority over hobbyist UAV use.

Additionally, at the same time that the FAA released the proposed rule, the White House issued a presidential memorandum on the government’s use of UAVs. Among other things, the memorandum requires federal agencies to disclose what types of domestic UAV operations they conduct, how many they conduct, and where they conduct them. The memorandum also requires the Department of Commerce, through the National Telecommunications and Information Administration (NTIA), to initiate a multi-stakeholder engagement process to develop and communicate best practices for privacy, accountability and transparency issues regarding commercial and private use of UAVs. This process must be initiated by May 16, 2015, and must involve stakeholders from the private sector.

Perkins Coie’s Unmanned Vehicle Systems group has extensive experience in a wide range of areas important to our clients in the UAV industry, such as regulatory compliance, intellectual property protection and enforcement, privacy and security, risk management and supply chain issues. We assist clients in navigating through the current regulations, understanding the effect of the draft regulations, submitting comments on the draft regulations and participating in NTIA’s engagement process.

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