Emerging Patchwork of Regulation of UAS Operations near Critical Infrastructure

Over the last couple of years, we have seen an increase in state regulation of unmanned aircraft systems (UAS).  A recent report published by the American Legislative Exchange Council (ALEC) titled “A Guide to State Laws Impacting UAS/UAV Operations” identifies the restriction of operations near critical infrastructure among the leading trends in state regulation of UAS.  Notwithstanding the emergence of state regulation in this field, the enactment of the FAA Extension, Safety, and Security Act, 2016 (the “Act”), indicates that Congress intends to vest the authority to protect critical infrastructure from UAS with the FAA.  In light of this development, states that have enacted laws or are considering regulating in this field, should consult with the FAA in order to promote a unified national framework that addresses local concerns.

States that have enacted legislation restricting UAS operations near critical infrastructure include Oregon, Texas, Oklahoma, Louisiana, and Tennessee.  The approaches to the restrictions as well as the definitions of critical infrastructure vary among the jurisdictions.  Oregon’s law generally prohibits intentionally or knowingly engaging in UAS operations over critical infrastructure at or below 400 feet AGL.  It also prohibits allowing a UAS to make contact with critical infrastructure.  There are various exceptions from the general overflight restriction, including for operations conducted by: a public body, the federal government, a law enforcement agency, the owner or operator of the critical infrastructure facility, and for commercial operations conducted in compliance with FAA authorization. 

Oklahoma’s law carries similar restrictions and exceptions as Oregon with minor variances, and additionally prohibits allowing a UAS to come close enough to critical infrastructure to cause a disturbance.  Oklahoma also creates civil liability for damage to property, the environment, and human health.  Louisiana takes a different approach, prohibiting UAS flight near “targeted facilities” for purposes of surveillance or gathering evidence.  Targeted facilities include schools and correctional institutions.  And Tennessee prohibits the operation of UAS within 250 feet of the perimeter of critical infrastructure facilities for purposes of surveillance, collection of evidence, or capturing photos or video recordings.  As these examples indicate, there is discrepancy in the approaches adopted by states to protect critical infrastructure from UAS. 

In the interest of promoting compliance and efficient management of airspace, a uniform national framework implemented by the FAA in accordance with Section 2209 of the Act should be used to displace state regulation of UAS operations near critical infrastructure.

Section 2209 directs the Secretary of Transportation to establish a process to enable applicants to petition the FAA Administrator to “prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility.”  Section 2209 outlines the following criteria that the FAA may consider in determining whether to grant or deny an application for designation of a fixed site facility: (i) aviation safety, (ii) protection of persons and property on the ground, (iii) national security, or (iv) homeland security.  For an analysis of Section 2209, please see my previous post entitled “Protecting Infrastructure and Innovation under Section 2209”.

In the coming months, as the FAA establishes a process for designating fixed site facilities, states that have enacted regulations concerning UAS operations near critical infrastructure should review Section 2209 and consult with the FAA.    




Protecting Infrastructure and Innovation under Section 2209 of the FAA Extension

On July 15, 2016, Congress enacted the FAA Extension, Safety, and Security Act (the “Act”), which among other things, directs the Secretary of Transportation to establish a process to enable applicants to petition the FAA Administrator to “prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility.”  Congress tasked the FAA with establishing a process for designating fixed site facilities no later than 180 days from the date of enactment.  Below is an outline of the key problematic provisions in Section 2209 and a proposed path forward for establishing a process that meets the Congressional directive while not unnecessarily restricting industry.  

Section 2209 outlines the following criteria that the FAA may consider in determining whether to grant or deny an application for designation of a fixed site facility: (i) aviation safety, (ii) protection of persons and property on the ground, (iii) national security, or (iv) homeland security.  Subsection 2209 (b)(1)(C) further provides that only the following facilities may be considered for designation:

(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.

Subsection 2209 (b)(1)(C) attempts to restrict the types of locations that would be subject to designation, however certain portions of the text undermine that goal.  Categories (i) and (ii) are generally reasonable as they outline a list of infrastructure and facilities that by their nature may create an environment that could increase the risk profile of UAS operations from a facility safety, national security or homeland security perspective.  However, since subsection (i) does not offer a closed definition of “critical infrastructure”, it could be construed too broadly.  The FAA should clarify the types of facilities that are considered critical infrastructure by providing a closed definition.  This clarification would help applicants understand whether their facility could be considered for designation and it would reduce the administrative burden of processing applications for facilities that the FAA does not consider to fall under the definition. 

Category (iii) – amusement parks – appears out of place in relation to the first two categories.  Amusement parks do not appear to raise special concerns from an aviation safety, national security or homeland security perspective.  Nor do they typically raise unique concerns in terms of potential damage to property or persons in the same way that critical infrastructure or chemical facilities do.  The risks to property or persons for UAS operations taking place near amusement parks are generally covered under Part 107 through provisions such as the restriction on flight over people who are not a part of the operation.  

Finally, category (iv) “other locations that warrant such restrictions” is very broad and opens the door to expanding the list of fixed site facilities well beyond the types of locations that the drafters intended to protect.  A broad construction will not only unnecessarily restrict the industry, it will also run the risk of leading to uneven results for applicants seeking to protect their facilities.  The FAA should establish a closed list of other types of locations that may be considered for designation.

Section 2209 incorporates a savings clause which states that, “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).”  The framework established by the FAA to implement Section 2209 should incorporate a waiver process in line with that provided in Part 107 that will allow applicants to fly in proximity to fixed site facilities if they show that they can mitigate the risks of the operation to an acceptable level. 

The process set up by the FAA should also acknowledge that operators may go directly to any designated fixed site facility to seek permission from the owner to operate UAS over the facility.  Incorporating this mechanism will serve to minimize the administrative burden on the FAA in granting waivers from the general restriction on flying UAS in proximity to designated sites.

Lastly, the applications for designation should be publicly posted in the Federal Register so that the FAA may consider public comments prior to making a determination whether to grant or deny applications.      


Part 107 Announcement Met with Industry Excitement

This morning, the Federal Aviation Administration (FAA) released the highly anticipated rules governing the operation of small UAS (sUAS) for commercial purposes.  The new rules are scheduled to take effect in late August – until that time, commercial operators may continue to operate under Section 333 exemptions.  As expected, Part 107 generally follows the proposed rules that were contained in the Notice of Proposed Rulemaking (NPRM) that was issued by the FAA in February 2015.

One of the most significant changes for industry is that commercial operations that fit within the framework of Part 107 will no longer require approval by exemption, which has typically taken months to secure.  Undoubtedly, the new framework will mean increased efficiency for commercial operators who will also not be required to secure airworthiness certification for their sUAS.

The fact that operators will no longer be required to hold a manned aircraft pilot’s license and can instead take a knowledge test to obtain a sUAS operator’s certificate is a significant win for the industry that will open up the skies to make more operators.  Brendan Schulman, VP of Policy and Legal at DJI remarks:

“This is a global precedent.  The most respected aviation authority in the world has concluded that drones may be operated safely for basic commercial operations without requiring airworthiness certification and without requiring pilots to pass a practical flight examination.  This reflects how fundamentally safe and beneficial this technology is, and is a model that should be adopted worldwide.”

The removal of the requirement to obtain a sport pilot’s license comes as no surprise as the NPRM stated that the “training, testing, proficiency and experience requirements for obtaining a commercial pilot’s license have limited relevance to the nature of small UAS operations.”  In addition to passing the aeronautical knowledge examination, pilots will be required to self-certify that they have the physical capacity required to safely operate sUAS.  They will also need to undergo a TSA security threat determination.  

In anticipation of the skies opening up significantly for sUAS, last year President Obama issued a Presidential Memorandum directing the National Telecommunications and Information Administration (NTIA) to convene an industry-led multi-stakeholder process to address privacy, transparency and accountability issues raised by UAS.  In May – after many months of meetings – various industry stakeholders reached consensus on voluntary best practices for conducting UAS operations.  Jules Polonetsky, CEO of Future of Privacy Forum, one of the stakeholders involved in the NTIA process states that with the final rule in place:

“Drones will bring a wide range of benefits, but for widespread acceptance, it will be essential for the public to feel comfortable that personal data collected by drone operators will be used responsibly.  The drone privacy best practices provide guideposts that will help major companies and small operators alike demonstrate that they handle data in a trustworthy manner.”

In the coming months, with support of the White House, industry stakeholders will work towards developing educational initiatives surrounding the privacy best practices aimed at promoting broad industry adoption.

In addition to responding to privacy concerns surrounding drones, what the industry needs to achieve its full potential is a framework that supports beyond line of sight operations.  This sentiment was expressed by Kurt Carraway, Unmanned Aircraft Systems Executive Director at Kansas State University (KSU): who commented on the Pathfinder Program which is a vehicle established to research how to fly beyond line of sight safely: “the methodologies incorporated into this great work are exactly what is needed to strike the balance between the advancement of the UAS industry and expansion of integration into the national airspace in a safe manner.”

In the meantime, industry reactions to the final rule suggest a general excitement surrounding the future of UAS.  Bob Young, CEO of PrecisionHawk remarked that “today, the FAA revealed new regulations that maximize freedom and safety, promoting business innovation that will take the industry to the next level. The rules recognize the value of drones as a tool to preserve our growing planet’s diminishing resources without jeopardizing a stellar safety record. We are excited to about the bright future of flying robots.”


UAS Stakeholders Reach Consensus on Privacy Best Practices

Last week, various UAS industry stakeholders reached consensus on voluntary best practices for conducting commercial and hobbyist UAS operations with privacy, transparency and accountability in mind. The industry-led multi-stakeholder process was coordinated through the National Telecommunications and Information Administration (NTIA), which was directed to convene on the matter by a Presidential Memorandum issued by President Obama on February 15, 2015.

The best practices include the following:

  • Making a reasonable effort to provide prior notice of UAS operations that intentionally collect personally identifiable information;
  • Developing a privacy policy that outlines the operator’s privacy and data security practices;
  • Avoiding using UAS for persistent collection of personally identifiable information without consent of the data subject or a compelling need;
  • Limiting the use and sharing of personally identifiable information collected using UAS; and
  • Implementing measures to safeguard personally identifiable information collected using UAS including administrative, technical and physical measures.

The best practices document is available here.

Perhaps the most critical takeaway is that the best practices are voluntary in nature – they are not intended to create a legal standard that operators would be held to. In fact, the document explicitly provides that the best practices should not serve as the basis for regulation. Stakeholders expressed legitimate concerns that lawmakers may look to the best practices to inform legislation. Doing so would be problematic in various respects, for instance if adherence to the practices was required by law, such legislation would single out UAS as opposed to treating UAS the same as comparable technologies – such as cell phones and cameras – that may be used to capture images in public space.

Another important takeaway is that the best practices do not apply to newsgatherers and news reporting organizations. The primary reason for this is that newsgathering and reporting is protected under the First Amendment of the Constitution. Accordingly, newsgatherers and news reporting organizations will continue to operate UAS pursuant to federal and state laws and the ethical rules and standards of their organizations.

The stakeholders that support the best practices include: Amazon, AUVSI, Center for Democracy and Technology, Consumer Technology Association, CTIA, Future of Privacy Forum, New America’s Open Technology Institute, PrecisionHawk, X, Small UAV Coalition, Online Trust Association, News Media Coalition, Newspaper Association of America, National Association of Broadcasters, Radio Television Digital News Association, Digital Content Next, Software and Information Industry Association, and NetChoice. The next steps in the process will include integration of the best practices and education.



California Drone Bill Misses the Mark

Last week, the California state Assembly approved Senate Bill 142 which, if adopted, would restrict drone operators from flying below 350 feet AGL over real property unless they obtain the owner’s permission. The Bill passed on a 43-11 vote and will proceed to the Governor who will have an opportunity to veto it. Although the intent of the Bill – the protection of privacy – merits pursuit, the Bill as amended on June 30th is problematic in multiple respects and should be denied passage.

The Bill may have unintended consequences for safety by failing to consider that the FAA currently limits operations above 400 feet AGL. By establishing an arbitrary 350-foot limit above real property, the Bill would confine drone operations to a narrow 50-foot corridor, which would result in increased congestion, move many operations closer to manned aircraft than needed and may lead to an increased risk of accidents.

The Bill is over-broad in its attempt to achieve privacy – it does not even distinguish between drones that have cameras and those that do not. The Bill is also ineffective, for instance it does not restrict operators from capturing images and videos of private property that are taken from a vantage point just outside of the owner’s property line. And since Congress has mandated the FAA to integrate drones into the national airspace, the Bill may trigger a constitutional challenge based on federal preemption.

California has existing laws that can be applied to drones, including trespass and anti-paparazzi laws. Nevertheless, if California lawmakers are resolved that current laws are insufficient to protect against the risks posed by drones, they should dispense with the current Bill and introduce legislation that is narrowly tailored and likely to be effective in achieving its purpose.

Transport Canada Proposes Amendments to sUAV Regulations

On May 28th, Transport Canada released a Notice of Proposed Amendment (NPA) outlining proposed changes to the regulatory framework governing small UAVs. If adopted, the changes would take effect in 2016. The deadline to submit comments is August 28th.

Minimizing the Application of SFOCs

Transport Canada proposes to establish regulatory requirements for UAVs weighing 25kgs or less (sUAVs) that are operated within visual line-of-sight (VLOS). Operators using sUAVS within VLOS that would be able to meet the regulatory requirements would be permitted to operate without having to obtain Special Flight Operation Certificates (SFOCs). Operators using UAVs weighing more than 25kgs and/or those seeking to operate beyond VLOS would continue to use the SFOC process.

Establishing Risk-Based Categories of Operations

Transport Canada proposes three categories of operations involving sUAVs that are flown within VLOS: Complex Operations, Simple Operations and Operations Involving Very Small UAVs.

Under each of the three categories, operators that meet certain criteria would need to register with Transport Canada and obtain an Operator Certificate by demonstrating that they have an “adequate management structure and can conduct a safe operation”. The criteria being considered includes:

  • The number of employees;
  • Companies that retain persons in commercial UAV enterprises; and/or
  • Companies seeking to operate across multiple regions and/or using a large number or multiple types of UAVs

Such operators would have to meet certain requirements for flight operations, documentation, flight time and duty time limitations, emergency equipment, maintenance requirements, training programs and operations manuals.

1. Complex Operations

This category would establish rules for operating around built-up areas and close to aerodromes. Because of the increased risk associated with such operations, this category would establish the most stringent requirements.

Specific requirements include:

  • Aircraft marking and registration;
  • Pilot permit (criteria includes: age restrictions, medical fitness, knowledge requirements, passing a Transport Canada written exam, practical training on the type of UAV to be flown and demonstrating competency in performing normal and emergency procedures); and
  • Manufacturer declaration that the UAV meets a design standard

Transport Canada proposes to establish operating rules for this category including:

  • Not operating within Class A or B airspace;
  • Not operating within Class F Restricted airspace without permission;
  • Restricting a single pilot from operating more than one UAV at the same time;
  • Prohibiting visual observers from being situated in moving vehicles;
  • Maintaining a minimum lateral distance from people, animals, buildings and vehicles (specific distances have not been proposed); and
  • Operating at a maximum altitude of 400 feet AGL

2. Limited Operations

This category would apply to operations taking place in remote areas, for example, agricultural operations and rural aerial surveys. This category would mandate specific operating distances from built-up areas and aerodromes.

Specific requirements include:

  • Aircraft marking and registration;
  • Basic knowledge test; and
  • Manufacturer declaration that the UAV meets a design standard

NOT required:

  • Pilot permit

The operating rules for this category would include:

  • Operating only during the daytime;
  • Maintaining a maximum speed of 87 knots;
  • Not entering in Class C, D, E or F airspace;
  • Staying a certain distance away from aerodromes (proposal considers 9km and 20 km);
  • Staying at least 9 km from built-up areas; and
  • Operating at a maximum altitude of 300 feet AGL

3. Operations with Very Small UAVs

Transport Canada is seeking comments on whether it should incorporate a category that would establish less restrictive rules for very small UAVs, and whether the category should be based on weight or an alternative approach i.e. kinetic energy. Although the proposal does not specify the weight limitation that would be applied to this category, it references the 2kg exemption that was issued last November.

As an alternative for classifying very small UAVs, Transport Canada proposes using a table that assesses maximum weight and airspeed to determine the lethality. Another option considered is to create a low energy category for UAVs that would not impart energy over a certain threshold on impact.

Specific requirements include:

  • Aircraft identification (pilot name and contact marked on UAV); and
  • Basic knowledge test

NOT required:

  • Aircraft marking and registration;
  • Pilot permit;
  • Medical certificate; and
  • Manufacturer declaration that the UAV meets a design standard

The proposed operating and flight rules for this category include:

  • Operating only during the daytime;
  • Not entering in Class C, D, E or F airspace;
  • Staying at least 9 km from aerodromes; and
  • Operating at a maximum altitude of 300 feet AGL

If you would like to submit a comment to Transport Canada, you may send your comment to carrac@tc.gc.ca by August 28th.

Does Your Drone Have a ‘Remote’? Canada’s Definition of Autonomous Operations is a Scene out of Chappie

Chappie, the new robo-film on the block, takes place in Johannesburg, where the police force is made up of robots. In one of the early scenes, the main characters, Die Antwoord’s Ninja and Yolandi take part in a drug deal that is raided by robot cops. Hoping to avoid a similar fate in their next deal, Yolandi suggests that they find the robots’ remote so that they can switch them off like TV sets. Do the robots have a remote, and do Ninja and Yolandi find it? No spoilers here, but let’s take up the underlying question in the context of drone regulations…

What is Canada’s position on autonomous and automated operations? Well, does your drone have a ‘remote’? If it does, according to Transport Canada, it is not an autonomous drone. Transport Canada defines an autonomous drone as one that does “not allow pilot intervention in the management of the flight.” It is not enough for an autonomous drone to be capable of self-governance, rather it must not allow for any possibility of human intervention.

What about drones that have a remote but can complete automated tasks such as take-offs or landings or that can execute pre-defined waypoint operations? Transport Canada distinguishes these drones from autonomous drones by pointing to the fact that they require operator initiation or intervention.

Although there is no express prohibition, truly autonomous operations are outside of the scope of Canada’s current regulations. For the time being, if your drone doesn’t have a remote, you wouldn’t be able to operate. Our framework permits operations that involve automation, but it requires that an operator have the capability to intervene – or rather, as Ninja and Yolandi would hope, your flying robot must have a remote.

How Canada Handles Beyond Visual Line-of-Sight Drone Operations

The FAA’s Notice of Proposed Rulemaking (NPRM) for small unmanned aircraft systems (SUAS) proposes to restrict operations that are completed beyond visual line-of-sight (BVLOS). However, the FAA has invited comments regarding the proposed BVLOS restriction.

In Canada, BVLOS operations are not yet mainstream, however they are attainable under the Special Flight Operations Certificate (SFOC) system. Transport Canada’s Staff Instruction 623-001 establishes the following conditions for BVLOS operations:

• BVLOS flights cannot take place outside of restricted airspace, unless the operator can mitigate risk to an acceptable level i.e. through the use of ground-based radar
• BVLOS flights must not be conducted over populated areas
• BVLOS flights must be conducted in visual meteorological conditions
• BVLOS flights cannot be conducted within controlled airspace
• BVLOS flights can only be conducted within 5 nautical miles of the point of departure
• The take-off and landing/recovery must be conducted within visual line-of-sight
• Direct radio line-of-sight capability must be maintained throughout the operating area

Canada is not alone in having established conditions for BVLOS operations. In fact, quite a few jurisdictions have more advanced regulations for BVLOS operations, including Australia, Colombia, Czech Republic, France, Israel and Poland. As stakeholders submit comments to the FAA over the next two months, it’s important to look at how other jurisdictions are managing risk in BVLOS operations.

Canada’s Approach to Risk Management for Nighttime Drone Flights

The FAA’s Notice of Proposed Rulemaking (NPRM) for small unmanned aircraft systems (SUAS) limits SUAS operations to daylight hours. The FAA concedes that the restriction on nighttime flights may negatively impact the ability to use SUAS in northern regions such as Alaska that have very few hours of daylight during winter months. The FAA has invited stakeholders to comment on how risk may be mitigated in the course of nighttime operations. Here is a breakdown of the Canadian approach to risk management for nighttime flights…

In Canada, nighttime operations are possible under the Special Flight Operations Certificate (SFOC) system. Transport Canada’s Staff Instruction 623-001 outlines the following conditions for nighttime operations:

• If the UAV has lights, the lights must be on during night flights
• If the UAV does not have lights, there must be a means of illumination that would enable visual contact with the UAV
• The crew must have a portable emergency light source available
• The pilot must not have visual limitation of depth perception, colour blindness or problems seeing at night
• Visual observers providing the sense and avoid function (i.e. where the pilot is using FPV) cannot use night vision goggles

Transport Canada further states that if light emitting diodes (LEDs) are used to satisfy the lighting requirement for nighttime operations, the LEDs must have sufficient intensity to enable the pilot or visual observer and other airspace users to have visual contact with the UAV.

FAA Regulations Draw Inspiration from Canada, But Miss Key Aspect

Various aspects of the anticipated proposed small UAS (sUAS) regulations that were released by the FAA today draw inspiration from Canada’s approach to regulation. In fact, the FAA provides a handy comparison chart on pgs. 55-56. The Canadian comparison is limited to Canada’s new exemptions for sUAS. Canada’s exemptions operate very differently than FAA exemptions, as they do not require approval from our regulator, Transport Canada. If you meet the requirements of either of our two exemptions, you can operate without applying for a Special Flight Operations Certificate (SFOC). SFOC allow for broader applications than what is shown in the FAA comparison chart, including FPV and beyond visual line of sight.

Practicing in the Canadian jurisdiction, I believe that one of the most valuable aspects of our system is its flexibility and the fact that the system rewards safe operators. For instance, in Canada, first time SFOC applicants are typically rewarded narrow certificates in terms of time, geography and level of operational risk. As operators develop a track record of conducting safe operations, they are able to receive ‘standing certificates’ allowing them to operate for up to three years over large regions of the country.

The FAA should consider adopting a similar approach that rewards safe operators by allowing them to complete less restrictive operations. For instance, the proposed rules state that operators would not be able to fly over persons not involved in the operation. If an operator has a good track record of conducting safe flights, there is no reason why the FAA should not consider removing this burden.

As the FAA crafts its final regulations, it is important to find ways to build flexibility into the system, and to not only focus on punishing irresponsible behavior but also rewarding safe operators.