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.      


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 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.