FAA’s Final Rule on Commercial Unmanned Aircraft Systems (UAS)

The Federal Aviation Administration promulgated its final rule on small commercial unmanned aircraft systems, called Part 107, on June 21, 2016. It sets forth the operating requirements for small commercial drones (i.e., those weighing less than 55 lbs.), a streamlined process for small drone pilot certification, and simplified registration and maintenance for the UAS. Part 107 represents a major change in the federal regulation of aircraft, which until Part 107 became final applied to small UAS the same strict regulatory regime that has been applied to manned aircraft. Regulatory compliance with the full array of manned aircraft regulations has been particularly burdensome for individuals and companies that want to operate small drones in conjunction with their business, especially if the drone operations are not principal, but ancillary, business functions.

Recognizing the incredible growth and potential of UAS technology and affordability, Congress passed the FAA Modernization and Reform Act of 2012, directing the FAA to determine whether small UAS operations posing the least amount of public risk and no threat to national security could safely be operated in the National Airspace System (NAS) and, if so, to establish requirements for the safe operation of these systems in the NAS. After years of industry consultation, testing and interagency coordination, the FAA published its proposed rulemaking for the operation of small commercial drones in February 2015. After a long period of public commentary and consultation with industry stakeholders, the FAA published its final rule on small UAS, Part 107, last week.

Part 107 permits the commercial (nonhobbyist) operation of drones weighing less than 55 lbs. in the NAS, but with strict operating limitations and specific (though relaxed, when compared with manned aircraft) requirements for licensure of small drone pilots. Small UAS can now be operated during daylight hours (and with anticollision lighting, 30 minutes after sundown and 30 minutes prior to sunrise) up to an altitude of 400 feet above ground level and up to 100 mph. However, the UAS must remain within the visual line of sight of its remote operator and cannot fly in airspace controlled by air traffic control without permission, which includes operations within 5 miles of a towered airport. In order to pilot a small UAS, a person will need to be at least 16 years old and pass an initial aeronautical knowledge test administered by the FAA. Current manned aircraft pilots need only take an online course on UAS operations to be certified as small UAS pilots. Small UAS registration, maintenance and safety checks also have been streamlined and simplified. Part 107 also adopts a “best practices” approach to privacy issues implicated by small UAS operations, incorporating the recommendations of the National Telecommunications and Information Administration.

Part 107 represents a significant effort on the part of the FAA to accommodate and balance the needs of ever-expanding drone operations with the FAA’s primary mission of managing the NAS, ensuring the safety of manned aircraft operations and the safety of persons on the ground. This is uncharted territory for the FAA. A serious incident causing major personal injury or property damage involving a small drone could, however, derail efforts to make small drone operations more accessible and affordable and cause the FAA to revert to more burdensome regulation for small UAS operators.

Forthcoming technological advances in UAS navigational and sensory systems are expected to increase the pressure on the FAA to adapt its regulatory framework to new modes of UAS functionality that involve more indirect and/or attenuated human control. For example, we expect to see more of a push to permit the limited operation of drones controlled by remote software applications, as opposed to the direct control of a person holding a remote control device. Agricultural uses are some of the most likely immediate users of these new technologies. Another major technological leap will involve UAS operations beyond the visual line of sight (BVLOS), whether the UAS is under the control of a person or a computer. Right now, such operations are restricted and operators must apply for special waivers (under very limited circumstances) from the FAA to conduct small UAS operations beyond the Part 107 limitations. Continued advances in UAS software and sensor technology involving collision avoidance, smart navigation and BVLOS are the wave of the future.

For further information, please contact Andrew Zimmitti in Manatt’s Washington, D.C. office.