The split of competences between the European Union (“EU”) and its Member States has been a point of friction in the setting out of the future European rules on unmanned aircraft system (“UAS”). In December 2015, the European Commission advocated in its Aviation Strategy for the need for a common regulatory framework across the EU to ensure a single European UAS market. The European Aviation Safety Agency (“EASA”), headquartered in Cologne (Germany), would play a crucial role in defining the common European standards. Continue Reading The European Parliament pushes for an EU-wide regulation for UAS
On September 21, Hogan Lovells’ Unmanned Aircraft Systems lawyers Lisa Ellman, Patrick Rizzi, Matthew Clark, and Elizabeth Meer presented a webinar on Drones on Campus: Navigating the FAA’s New Small UAS Rule.
Colleges and universities across the country are finding new and innovative ways to use unmanned aircraft or “drones.” To name just a few, higher education institutions are using drones to support research and learning in areas like precision agriculture, wildlife habitat monitoring, and aerial surveying and mapping. They are using drones to film football practices, inspect their infrastructure, and shoot promo marketing videos. Continue Reading Drones on Campus: Navigating the FAA’s New Small UAS Rule
We are at a watershed moment in aviation history. As we reported yesterday, the FAA and DOT finally released their Final Rule for the Operation and Certification of Small UAS (Part 107), which will broadly authorize commercial UAS operations in the U.S.
With the release of Part 107, many Section 333 Exemption holders are left wondering how Part 107 will impact their exemptions. And for the 7,000+ petitioners stuck in the FAA’s backlog of pending Section 333 petitions and amendments, many are wondering what the FAA will do with these pending petitions.
Current Section 333 Exemption / COA Holders
Do you currently have a Section 333 Exemption? If so, your exemption is still valid and you may continue to operate under it until it expires (usually 2 years from the date of issuance). Once Part 107 becomes effective (in mid- to late August of this year), you may continue operating under the conditions and limitations of your Exemption / COA, or you may elect to operate under Part 107. Continue Reading A New Regime: Making the Jump from Section 333 UAS Operations to Part 107
The commercial UAS industry in the U.S. took a giant leap forward yesterday, as DOT and FAA released its Final Rule for the Operation and Certification of Small UAS (Part 107). At 624 pages long, there is certainly a lot to digest and we will be following up with more analysis of Part 107 throughout this week and next. For the time being, we wanted to provide you with a high-level overview of Part 107 and to identify a few areas where the FAA surprised us (mostly in a good way).
Timeline for Implementation
Part 107 will become effective 60 days after it is officially published in the Federal Register in the next 5-7 days making August the next milestone date for our industry.
As a threshold matter, we would note that the FAA determined that calling the individual operating the UAS the “operator” might be confusing, so the person operating the UAS will now be referred to as the “Remote Pilot.” The Remote Pilot Certificate will replace current requirements to hold a manned pilot’s license, which is one of the biggest hurdles to operating UAS commercially under a Section 333 Exemption. Continue Reading Huge News: FAA/DOT Release Small UAS Rule
Colleges and universities across the country are finding new and innovative ways to use drones in the classroom. To name just a few, institutions of higher education are using drones to support research and learning in areas like precision agriculture, wildlife habitat monitoring, and aerial surveying and mapping.
While speaking at the AUVSI annual conference in New Orleans this morning, FAA Administrator Michael Huerta announced the release of a new Legal Interpretation that will expand the scope of permissible UAS operations by students and educational institutions. The FAA’s principal conclusions are:
- A person may operate an unmanned aircraft under the carve-out for hobbyist operators in Section 336 of the FAA Modernization and Reform Act of 2012 (FMRA) at educational institutions and community-sponsored events provided that the person is (a) not compensated or (b) 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 that the student maintains operational control of the model aircraft such that the faculty member’s manipulation of the model aircraft’s controls is incidental and secondary to the student’s.
The FAA cautioned that a faculty member engaging in the operation of an unmanned aircraft, as part of professional duties for which he or she is paid, would not be engaging in a hobby or recreational activity. Similarly, a student operating UAS for research on behalf of a faculty member is associated with the faculty member’s professional duties and compensation and, thus, is not hobby or recreational use by the student pursuant to section 336. Faculty and students in these situations would need to seek and obtain authorization from the FAA.
The FAA also concluded, however, that limited instructor involvement in student operation of UAS as part of coursework does not automatically make the flight non-hobbyist or commercial in nature. This would include courses at accredited institutions where the operation of the unmanned aircraft is not the primary purpose of the course (for example, using drones as part of an agricultural science class). This exception for limited instructor involvement would not extend to classroom courses where the primary purpose of the class is UAS flight instruction.
While the new Legal Interpretation won’t eliminate the need to seek and obtain authorization from the FAA for all UAS flight activities at educational institutions, the announcement is welcome news and a step in the right direction for expanding drone use in academia.
In a major new development, the FAA has sent the Small UAS NPRM to the White House for a final interagency review. This means that a final small UAS rule is coming soon – and that NOW is the last opportunity to influence the rule before it is released.
Before any significant regulatory action takes effect, it first must go through a review process at the Office of Information and Regulatory Affairs (OIRA) at the White House. OIRA is located within the Office of Management and Budget (OMB) within the Executive Office of the President. It is commonly said that OIRA is the most important agency in Washington, DC that nobody has heard of. OIRA reviews draft regulations before they are implemented and reviews and evaluates cost/benefit analyses to determine whether the benefits of a rule would justify the costs.
We are now at an extremely important step in the rulemaking process, which provides industry stakeholders with one final opportunity to provide additional input before the final rule is released.
The period for OIRA review is limited by Executive Order 12866 to 90 days. Under the Executive Order, the review period may be extended indefinitely by the head of the rulemaking agency; alternatively, the OMB Director may extend the review period on a one-time basis for no more than 30 days. According to OIRA, the average review period is 53 days. OIRA received the FAA’s Small UAS NPRM for review on April 20, 2016.
As part of its review process, any member of the public—including UAS manufacturers, operators, and users—can request a meeting with the agency to discuss the proposed rule, what it should contain, and how the rule will impact them. The meetings are conducted by the OIRA Administrator or his designees, and a log of all meetings is publicly available.
A meeting with OIRA provides a golden opportunity for stakeholders to make their voices heard on key UAS policy issues. Companies that want to provide input on issues such as certification of pilots and visual observers, registration of UAS, approval of operations, federal preemption of UAS policy issues, and operational limits for UAS now have the chance to provide their ideas directly to the White House. It is also helpful for stakeholders to reinforce the importance of expediency in moving the rulemaking forward.
If you would like to communicate your views to the White House during this review period, let us know. We would be happy to help.
Across the country and around the world, companies are more excited than ever about the benefits unmanned aircraft systems (UAS) can offer. This is evidenced by the large number of Section 333 Exemptions that have been authorized by the FAA—over 4,500 as of today.
Last February the FAA published a Notice of Proposed Rule Making (NPRM) that will broadly authorize commercial operation of UAS. This is a very important step forward and we eagerly await final publication of the rule. However, as currently drafted, the rule will not allow for flights over people. Meanwhile, as we previously blogged about here, a wide range of commercial UAS applications, especially those that typically need to occur in more urban and suburban environments, such as media and newsgathering activities, real estate, infrastructure inspection and, someday, package delivery, will require the flexibility to operate over people.
As such, and as we previously reported here, about six weeks ago the Department of Transportation (DOT) created a Micro-UAS Aviation Rulemaking Committee (ARC) to make recommendations to the FAA for allowing certain UAS to operate over people. Yesterday, the FAA publicly released the ARC’s final recommendations report.
Overall, we view the ARC’s recommendations as a positive first step in developing a common-sense risk-based approach. The ARC report presents the FAA with four categories of UAS operations based on the level of risk.
We urge the FAA to streamline and simplify the rules it eventually adopts from the ARC recommendations.
At the outset, it is important to recognize that the FAA informed the ARC that any recommendations regarding small UAS operations over people would be bound by the regulatory requirements in the Small UAS NPRM. In other words, all of the other requirements in the finalized rules resulting from the Small UAS NPRM would still apply to any UAS operations over people. These requirements include, for example, the requirement for a UAS pilot to have a UAS operator certificate, and restrictions on operating UAS beyond visual-line-of-sight of the operator.
Below is a summary of the four categories:
Category 1 includes small UAS weighing 250g (.55 lbs.) or less. The ARC determined that the level of risk of injury posed by this category of UAS is so low that no performance standards and no operational restrictions beyond those imposed by the proposed part 107 are necessary.
Some members of the ARC recommended that the FAA change the airman certification requirements in the NPRM to allow online testing to satisfy knowledge requirements, and to eliminate in-person visits and background checks. This was the one area of disagreement among the ARC members in the report.
Under Category 2, a small UAS weighing more than 250g may operate over people if it meets certain certification and operational requirements.
Category 3 operations present a higher level of risk than Category 2 operations. As such, operations are prohibited over crowds or dense concentrations of people. Limited operations over people are permitted if the operation is conducted over a closed-site / restricted-access area, or the flight is limited to brief overflight of people incidental to the operation.
Category 4 operations are those that present the same level of risk as Category 3, but that involve sustained flight over crowds and/or dense gatherings of persons. Category 4 operations require the operator to have a risk mitigation plan specific to the operation, similar to what helicopter operators have to submit to the FAA for operations over congested areas.
It is important to note that the ARC report contains only recommendations. The FAA still must review the recommendations and issue a proposed rule for operating UAS over people. During a media briefing conference call yesterday, Earl Lawrence, Director of the UAS Integration Office, stated that the FAA is considering the ARC’s recommendations and that the FAA has begun the process of drafting an NPRM with proposed rules for flights over people. Director Lawrence emphasized that the micro-UAS NPRM was a priority for the FAA, but that it would still likely be several months before an NPRM is issued.
While we view the ARC’s recommendations as a positive first step, there are a lot of commercial UAS operators out there right now that require the ability to fly over people and can do so safely. For these operators, waiting another year or so until there is a final rule stifles business opportunities and makes it difficult for them to achieve real world success. And these are very low risk operations.
In the meantime, we encourage the FAA to adopt the ARC’s risk-based approach for allowing UAS flights over people and hope that it moves quickly through the rulemaking process without delay.
When the NPRM is released it will be very important for all interested parties to submit comments during the public comment period. We will update you with additional information on how to participate in this process as it becomes available.
The commercial drone industry continues to face regulatory challenges as companies strive to use drones to make their operations safer and more efficient. In a positive development this week, there is now hope that Congress may ease some of these regulatory challenges for natural gas and oil pipelines and other critical infrastructure owners and operators. The UAVs for Energy Infrastructure Act (S.2684), sponsored by Senator Jim Inhofe and introduced on March 15, 2016, would allow critical infrastructure operators to use drones to conduct any activity already allowed to be accomplished with manned aircraft. Senator Inhofe plans to include the bill in the FAA authorization legislation.
Among other tasks, the bill would permit oil and natural gas pipeline and other critical infrastructure developers, owners, operators, service companies and their agents to use drones to:
- Conduct surveys for construction, maintenance, and rehabilitation;
- Comply with safety requirements to periodically patrol rights-of-way to prevent encroachment and unauthorized excavation;
- Detect evidence of leaks or other conditions that jeopardize safety;
Prepare for a natural disaster or severe weather event; and
- Respond to other incidents outside of company control that may cause material damage to critical infrastructure.
- The use of drones would enable critical energy infrastructure companies to effectively and efficiently comply with federal regulations and permitting requirements, and would help to promote the overarching goal of pipeline and other facility safety.
The Inhofe legislation is intended to enhance the integrity, safety, and security of all critical infrastructure. As stated by Andy Black, president of the Association of Oil Pipe Lines, “Drones hold the possibility for additional high tech inspection of pipelines from the air. The Inhofe bill to break down regulatory barriers to using drone technology to keep pipelines safe is welcome legislation.” Martin Edwards, vice president of legislative affairs at the Interstate Natural Gas Association of America, agrees, stating “Unmanned aircraft offer natural gas pipelines a 21st century solution to [ ] regulatory requirement[s], a solution that can be more effective in numerous ways.”
Hogan Lovells, which combines a market-leading global Unmanned Aircraft Systems practice with a leading energy practice, is uniquely positioned to help pipeline companies, electric transmission, and power plant operators, and other companies that operate critical infrastructure to promote the legislation and to take advantage of the use of drones in operating their facilities, including any opportunities that may be afforded by the UAVs for Energy Infrastructure Act.
Energy companies that operate critical infrastructure face regulatory challenges on a daily basis as they strive to provide effective and efficient service safely. Congress may make some of these regulatory challenges less burdensome by lifting restrictions on the use of drones to monitor their assets. UAVs for Energy Infrastructure Act (S.2684), sponsored by Senator Jim Inhofe and introduced on March 15, 2016, would enable critical infrastructure operators to use unmanned aerial vehicles (UAVs or so-called drones) to comply with existing federal regulations, as well as to respond to an emergency, natural disaster or severe weather event. Specifically, the bill would allow the use of a drone to conduct any activity already allowed to be accomplished with manned aircraft. Senator Inhofe plans to include the bill in the FAA authorization legislation. Continue Reading Taking to the Air: Using Drones to Ensure Regulatory Compliance for Natural Gas and Oil Pipelines and Other Critical Infrastructure Owners and Operators
The FAA’s Office of Chief Counsel yesterday released new guidance for state and local government authorities as they increasingly seek to regulate unmanned aircraft systems (UAS), or drones. The FAA’s State and Local Regulation of UAS Fact Sheet provides basic information about the federal regulatory framework for use by states and localities when considering proposing legislation or ordinances that would affect the use of UAS.
In response to a flurry of local and state UAS policy proposals, the FAA clarified that “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.” Continue Reading FAA Warns State and Local Governments on Impermissible Regulation of UAS