Commercial Drone Uses Cleared for Takeoff by DOT

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Commercial, scientific, public safety and other non-recreational uses of unmanned aircraft systems (UAS)—commonly known as drones—are cleared for takeoff under a final rule released by the Department of Transportation June 21.

“This is a major milestone for safely integrating unmanned aircraft systems into our nation's airspace,” Transportation Secretary Anthony Foxx said in a conference call with reporters.

Despite expanding commercial and government use of drones for site assessments and other purposes (24 EDDG 27, 4/16/15), the Environmental Protection Agency doesn't use them in its enforcement work, saying it finds significant legal barriers (see related story).

Liability issues also arise due to the possibility of damage to property or harm to individuals, according to the EPA.

First National Guidelines

The final small UAS rule (RIN: 2120–AJ60) provides the first national, uniform guidelines for non-recreational operation of drones lighter than 55 pounds, the White House said in a statement. Under the rule, drone flights will be permitted for commercial, scientific, public safety and educational purposes, pursuant to a set of operational and safety requirements.

“Integrating drone technology into our daily lives and work will offer life-altering innovations across a vast array of sectors—agriculture, transportation, security—and change our lives for the better,” Douglas Johnson, vice president of technology at the Consumer Technology Association, said in a statement. “The arrival of these rules, and the ongoing industry and government cooperation they promise, will help ensure U.S. businesses and consumers enjoy all the benefits of drones at the lightning-fast speed of innovation.”

Speed, Height Limits

Foxx said the new rule, which takes effect in 60 days, will allow unmanned aircraft weighing less than 55 pounds to fly as high as 400 feet and as fast as 100 mph during the day. In the evening, only drones with anti-collision lights will be allowed to operate, he said.

Unmanned aircraft won't be allowed to fly over people under most conditions, and non-recreational remote pilots will be required to pass a written test and go through the same security vetting process as traditional pilots, Foxx said. Operators will continue to be required to keep their aircraft within sight unless they get a waiver.

The rule also allows unmanned aircraft to operate in sparsely occupied areas without a requirement to coordinate with air traffic control, Foxx said. In more congested areas, the operator still will need Federal Aviation Administration permission to fly, he said.

The restrictions still preclude longer flights to inspect farms, pipelines and utility lines, as well as such commercial uses as deliveries by companies like Amazon.com Inc. and Alphabet Inc.'s Google. But Hunton & Williams attorney Michael Sievers, chairman of the firm's unmanned systems group, told Bloomberg BNA that the new rules still are a small victory for companies with ambitious plans for commercial uses of drones.

“It’s a bit of a win for them to see the express acknowledgement of the ability to use drones to transport property for hire,” Sievers said. “What that sets up is the possibility that it won’t even be a question once the next round of rulemaking proceeds and the FAA gets in a position where they are comfortable with beyond visual line of sight operation.”

Easy Waiver Process

FAA Administrator Michael Huerta said the rule establishes a waiver process for certain operations.

The FAA's goal for the waiver process is to make it as streamlined as possible, for example, through an online portal, Huerta said. “We do not envision this being a very burdensome process,” he said.

So individuals or businesses that want to conduct nighttime operations can apply to the FAA for waivers, Huerta said. To receive one, they would need to demonstrate how they are going to ensure safety and visibility for nighttime operations, he said.

What's Not Eligible

What is not subject to waiver, Huerta said, is the maximum weight of 55 pounds, maximum speed of 87 knots or maximum altitude of 400 feet.

Requirements such as maintaining a line of sight, flights over people or nighttime operations are likely to make up the majority of waiver requests, Huerta said. Other possibilities for waivers include the rule's requirements for a visual observer and the operation of multiple aircraft, he said.

“What the applicant will need to do is demonstrate how [to] maintain safety and what mitigations they put in place for those sorts of operations,” Huerta said.

Matt Grosack, an unmanned aircraft litigator at DLA Piper in Washington, D.C., said the rule will open up a huge array of applications that so far have not been permitted.

“It is conceivable that in the future a waiver applicant could be allowed to fly behind visual line of sight and during night-time, so long as an applicant shows that such an operation can be conducted safely,” Grosack said.

Sievers said the rule also opens up the possible use of drones by local and state agencies.

“It will give a lot of flexibility to agencies perhaps that may not have already developed their own UAS operation program, but may want to,” he said.

Privacy Questions Remain

Jason Miller, deputy director of the White House National Economic Council, said the new rule does not address privacy.

However, the administration is aware of the need to protect the data that drones are able to collect, especially as technology and regulations mature, Miller said.

For nonfederal uses, the National Telecommunications and Information Administration has been working over the last year with privacy advocates and industry stakeholders to develop best practices, which were published in May, Miller said.

A number of large companies, such as Amazon and Google, support these best practices, Miller said. “And we're encouraging every company using drones to use these best practices to guide their own company's decisions.”

Commercial drone operators also will be tested on privacy issues as part of their license, according to the Obama administration.

Congressional Backing

House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.) and Aviation Subcommittee Chairman Frank LoBiondo (R-N.J.) said in a statement that they were “pleased” the new rule “closely mirrors the risk-based permitting provision approach we proposed in the House FAA reauthorization bill.”

“The FAA’s long-overdue final rule focuses on safely integrating unmanned drones into the national airspace while providing flexibility to permit more advanced types of operations as technology improves,” they said. “Completing this rule is an important step towards full integration and fostering innovation in the growing UAS industry.”

For More Information

The FAA rule covering commercial drone use can be viewed at http://src.bna.com/f6O.

An FAA fact sheet is available at https://www.faa.gov/news/press_releases/news_story.cfm?newsId=20515.

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