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Evolving Law on Airport Implications by Unmanned Aerial Systems (2017)

Chapter: III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY

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Suggested Citation:"III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
×
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Suggested Citation:"III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
×
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Suggested Citation:"III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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13 restricted areas,49 warning areas,50 military opera- tion areas (MOAs),51 alert areas,52 and controlled firing areas (CFAs).53 Finally, the FAA recognizes “other airspace areas,” a term that refers to the majority of the remaining airspace, including: local airport advisories, military training routes (MTRs), temporary flight restrictions (TFRs), parachute jump aircraft operations, published VFR routes, ter- minal radar service areas (TRSAs), and national security areas (NSAs).54 III. UAS REGULATORY FRAMEWORK: LEGAL AUTHORITY TO FLY Aviators currently have five regulatory paths to fly a drone (see Figure 3): (1) for hobby or recreational purposes under 14 C.F.R. Part 101 and Section 336 of the FAA Modernization and Reform Act of 2012 (FMRA; discussed further in Section III.A, infra); (2) commercially (or for hobby purposes, too) pursu- ant to 14 C.F.R. Part 107; (3) under the authority of a special airworthiness certificate in the experimental category; (4) as a non-military public operator under an FAA-issued certificate of waiver or authorization (COA); or (5) on a case-by-case basis under Section 333 of the FMRA. Broadly speaking, these regula- tory paths apply to three types of UAV operations: • Macro Civil UAV. Section 333 of FMRA, to- gether with the FAA’s COA process, allows flight of UAVs weighing more than 55 lbs. • Small UAV. UAVs weighing less than 55 lbs. may fly for commercial or recreational flight under 14 C.F.R Part 107. • Model UAV. Section 336 of the FMRA permits the flight of a UAV strictly for recreational or hobby purposes and in accordance with other operational restrictions, i.e., when flown within 5 miles of an airport, the operator of the model aircraft must pro- vide the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation.55 55 Pub. L. No. 112-95 (2012), § 336(b). See also fed. AVi- Ation Admin., Interpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396, www.faa.gov/uas/ media/model_aircraft_spec_rule.pdf. While Section 336 of FMRA carves out an exception for model airplanes, it does not limit the FAA’s power to pursue enforcement actions against persons operating model aircraft who endanger the safety of the national airspace system. Indeed, in its Interpretation of the Special Rule for Model Aircraft issued on June 18, 2014, the FAA confirmed its authority to take enforcement action against hazardous operations. Id. 49 Id. (“Restricted areas are areas where operations are hazardous to nonparticipating aircraft and contain air- space within which the flight of aircraft, while not wholly prohibited, is subject to restrictions. Activities within these areas must be confined because of their nature, or limita- tions may be imposed upon aircraft operations that are not a part of those activities, or both. Restricted areas denote the existence of unusual, often invisible, hazards to aircraft (e.g., artillery firing, aerial gunnery, or guided missiles). IFR flights may be authorized to transit the airspace and are routed accordingly. Penetration of restricted areas without authorization from the using or controlling agency may be extremely hazardous to the aircraft and its occupants.”). 50 Id. at ch. 14-4 (“Warning areas are similar in nature to restricted areas; however, the United States government does not have sole jurisdiction over the airspace. A warning area is airspace of defined dimensions, extending from 12 [nautical miles] outward from the coast of the United States, containing activity that may be hazardous to nonparticipat- ing aircraft. The purpose of such areas is to warn nonpar- ticipating pilots of the potential danger. A warning area may be located over domestic or international waters or both.”). 51 Id. (“MOAs consist of airspace with defined vertical and lateral limits established for the purpose of separating certain military training activities from IFR traffic.”). 52 Id. (“Alert areas are depicted on aeronautical charts with an ‘A’ followed by a number (e.g., A-211) to inform nonparticipating pilots of areas that may contain a high volume of pilot training or an unusual type of aerial activ- ity. Pilots should exercise caution in alert areas. All activ- ity within an alert area shall be conducted in accordance with regulations, without waiver, and pilots of participat- ing aircraft, as well as pilots transiting the area, shall be equally responsible for collision avoidance.”). 53 Id. (“CFAs contain activities, which, if not conducted in a controlled environment, could be hazardous to nonpar- ticipating aircraft. The difference between CFAs and other special use airspace is that activities must be suspended when a spotter aircraft, radar, or ground lookout position indicates an aircraft might be approaching the area. There is no need to chart CFAs since they do not cause a nonpar- ticipating aircraft to change its flightpath.”). 54 Id. Figure 3. Non-Exhaustive Overview of Operational Authority for Public and Civil UAV

14 Higher risk operations, including operations beyond visual line of sight (BVLOS) and/or over peo- ple are yet unresolved issues that the FAA and drone industry are continuing to address as part of a phased plan for incorporating UAV into the NAS. A. FAA Modernization and Reform Act of 2012 On February 14, 2012, Congress enacted legisla- tion designed to promote both safety and commerce for UAV operations. Pursuant to the FAA Modern- ization and Reform Act of 2012,56 Congress directed the FAA to produce comprehensive UAV regulations to “safely accelerate the integration of civil unmanned aircraft systems into the national air- space system.” 57 Additionally, the FMRA required the FAA to implement a “plan” to integrate UAVs into the NAS “not later than September 30, 2015.” 58 The FMRA also directed the FAA to prepare recom- mendations and projections on the rulemaking that would define the acceptable standards for operation and certification of civil UAVs, ensure that any civil UAV has sense and avoid capability, and establish standards and requirements necessary to achieve the safe and routine operation of civil UAVs in the NAS.59 The FMRA allowed for a “phased-in” approach for civil UAV integration, but also estab- lished target dates or ranges, i.e., August 2014 for the publication of a final rule governing operations for UAVs. A final but not comprehensive rule was enacted at 14 C.F.R. Part 107 in August 2016 per- taining to small (under 55 lbs.) civil UAVs, respond- ing to pent-up industry demand for guidance and creating different regulatory schemes for public and civil UAV operations as detailed below. 1. Public and Civil UAV, COAs, and “333” Exemptions The rules for operating an unmanned aircraft depend on who the operator is and the purpose of the UAV flight.60 As a starting point, the FMRA defines a public UAS as an “unmanned aircraft sys- tem that meets the qualifications and conditions required for operation of a public aircraft as defined in section 40102 of title 49, United States Code.” 61 Public aircraft fly pursuant to certificates of waiver or autho- rization COAs issued by the FAA. COAs permit UAS operators to use a defined block of airspace and include special provisions unique to the proposed operation, e.g., flying only under visual flight rules (VFR) and/or only during daylight hours; coordination with an appropriate air traffic control facility; use of a transponder; compliance with “see and avoid” rules that apply to all aircraft; and/or use of a visual observer or an accompanying “chase plane.” COA applicants also work with the FAA to develop condi- tions and limitations for drone operations “to ensure they do not jeopardize the safety of other aviation operations.” 62 Emergency COA (ECOA) are also avail- able (though only to entities already holding a regular COA), allowing real-time applications that directly support emergency and law-enforcement type opera- tions (i.e., police operations, natural disaster, etc.). Prior to the codification of 14 C.F.R. Part 107 in August 2016, the FAA authorized civil (i.e., non- public) operation of drones by issuing a COA63 or Special Airworthiness Certificate, Experimental Category (SAC-EC). To obtain a SAC-EC, civil UAS operators must demonstrate “that their unmanned aircraft system can operate safely within an assigned flight test area and cause no harm to the public.” 64 Applicants must also describe how their system is designed, constructed, and manufactured, including engineering processes, software development and control, configuration management, and quality assurance procedures used, along with how and where they intend to fly.65 If the FAA determines the project does not present an unreasonable safety risk, the local FAA Manufacturing Inspection Dis- trict Office will issue a SAC-EC with operating limi- tations applicable to the particular UAS. Given how rarely the FAA issues a SAC-EC how- ever, obtaining permission to fly under Section 333 of the FMRA is a better alternative for civil UAS owners and operators. Section 333 mandates that the FAA: (1) identify and determine UAS operations [that] pose the least amount of public risk and no 56 FAA Modernization and Reform Act of 2012, Confer- ence Report, 112th Cong., Report 112-381, https://www. gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT- 112hrpt381.pdf. 57 See, e.g., Pub. L. No. 112-95 (2012), § 332(a)(1). 58 Id. at § 332(a)(3). 59 Id. at § 332(a)(2). 60 Keeping track of the various regulatory paths for UAV flight can be tricky as the same user and same drone may be treated very differently under the law as when a hobbyist may be a hobbyist during the day but a Part 107 operator in the evening while a 333 exemption during other parts of the day. See generally Am. Ass’n of Airport exeCutiVes, UAS Issues and Integration Conference, Nov. 9–11, 2016 (general comments during panel on state of the UAS industry). 61 Pub. L. No. 112-95 (2012), § 331. 62 fed. AViAtion Admin., Public Operations (Governmen- tal), https://www.faa.gov/uas/public_operations/. 63 Prior to Part 107, civil UAS operators could try to obtain permission to fly by partnering with and flying under a COA issued to a public entity—a public university or state government, for example. 64 fed. AViAtion Admin., Civil Operations (Non- Governmental), https://www.faa.gov/uas/civil_operations/. 65 Id.

15 threat to national security and could safely be oper- ated in the NAS; and based on that assessment, (2) establish requirements for the safe operation of the UAS into the NAS. Within this framework—both before and after the codification of Part 107—the FAA has issued thousands of “333 exemptions” on a case-by-case basis to qualifying civil drone operators. Additionally, when issuing a Section 333 exemption, the FAA also automatically issues a “Blanket COA” allowing small UAV (i.e. drones weighing less than 55 pounds) to operate during daytime, VFR condi- tions, at specific altitudes, and outside of certain dis- tances from airports and heliports. The Blanket COA permits small UAV operators to fly: 66 (1) Five nautical miles away from an airport with an operating control tower; (2) Three nautical miles from an uncontrolled airport with an instrument approach procedure; (3) Two nautical miles from all other airports, heliports, and seaports; and (4) At or below 200 feet above ground level. While the COA process remains valid for drones weighing more than 55 lbs., Part 107 effectively gets the FAA out of the waiver-granting business in favor of administering a comprehensive set of operating rules. 2. Model Aircraft Operations and FMRA Section 336 Aviation enthusiasts have participated in aero- modelling activities, including airplane model compe- titions and fly-ins, since the dawn of aviation. Unlike full-scale airplane owners and operators, members of the hobby or recreational airplane community are chiefly self-regulated, a reality owed to the aeromod- elling community’s written standards and reputation for safety. In fact, aviation amateurs have regulated themselves for almost a century under the auspices of the Academy of Model Aeronautics (AMA). Founded in 1936, the AMA is the world’s largest model avia- tion organization, with a “membership of more than 195,000 from every walk of life, income level and age group.” 67 The Indiana-based organization holds itself out as “the voice of its membership, providing liaison with the FAA, the Federal Communications Commis- sion (FCC), and other government agencies… AMA also works with local governments, zoning boards, and parks departments to promote the interests of local chartered clubs.” 68 Importantly, notwithstanding its enactment of UAS-related laws, Congress has preserved the rela- tive self-governance that hobby and recreational aviators have historically enjoyed from federal avia- tion regulators. The FMRA defines a model aircraft as an unmanned aircraft that is capable of sustained flight in the atmosphere; flown within visual line of sight of the person operating the aircraft; and flown for hobby or recreational purposes.” 69 While the first two criteria of this definition overlap somewhat with the definition of an UAV, the third element places model airplane operators and operations on different regulatory footing than other aircraft.70 In fact, in its Interpretation of the Special Rule for Model Aircraft dated June 18, 2014, the FAA confirmed that Section 336 of the FMRA prohibits it from promulgating “any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft.” 71 The FMRA details how model aircraft operators can take advantage of this significant legal exception— they must adhere to five operational constraints: 72 (1) The aircraft is flown strictly for hobby or recreational use; (2) The aircraft is operated in accordance with a commu- nity-based set of safety guidelines and within the program- ming of a nationwide community-based organization; (3) The aircraft is limited to not more than 55 pounds unless otherwise certificated through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; (4) The aircraft is operated in a manner that does not inter- fere with and gives way to any manned aircraft; and (5) When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation. 69 Pub. L. No. 112-95 (2012), § 336(c)(1). 70 The FAA has posited that, with certain exceptions, model aircraft are on the same footing as other civil UAS. For example, model aircraft operations must still abide by certain rules applicable to all aircraft, including airspace rules, temporary flight restrictions, and 14 C.F.R. § 91.13, which states that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” But see Taylor v. Huerta, No. 15-1495 (D.D.C. May 19, 2017), at 7 (“In short, the 2012 [FMRA] pro- vides that the FAA “may not promulgate any rule or regula- tion regarding a model aircraft, yet the FAA’s 2015 Registra- tion Rule is a ‘rule or regulation regarding a model aircraft.’ Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.”). 71 Nevertheless, the FAA has interpreted the prohibi- tion against it under Section 336 as one that must be evaluated on a rule-by-rule basis. fed. AViAtion Admin., Interpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396, https://www.faa.gov/uas/ media/model_aircraft_spec_rule.pdf, at 8. 72 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,080 (June 28, 2016). 66 See generally fed. AViAtion Admin., Unmanned Air- craft Systems, Frequently Answered Questions—Permis- sions, Authorizations, Waivers, and Exemptions, https:// www.faa.gov/uas/faqs/. 67 ACAdemy of model AeronAutiCs, What is AMA?, http:// www.modelaircraft.org/files/102.pdf. 68 ACAdemy of model AeronAutiCs, Safety Program (Jan. 2014), http://www.modelaircraft.org/gov/docs/Safety Program.pdf.

16 Although these operational constraints appear clear on their face, regulation of “model aircraft” is tricky. The first criterion alone—flight strictly for hobby or recreational use—is open to interpretation. The FAA has applied an accepted dictionary defini- tion of recreation where a “hobby” is a “pursuit out- side one’s regular occupation engaged in especially for relaxation” and a definition of recreation is “a refreshment of strength and spirits after work; a means of refreshment or diversion (see Figure 4).” 73 In this context, any operation not conducted strictly for hobby or recreation purposes falls outside the special rule for model aircraft; and, clearly, commer- cial operations would not be hobby or recreation flights in this context.74 Likewise, flights that are in furtherance of a business, or incidental to a person’s business, would not be a hobby or recreation flight.75 What is more, “flights conducted incidental to, and within the scope of, a business where no common car- riage is involved, generally may operate under the FAA’s general operating rules of Part 91.” 76 In place of formal operational regulations govern- ing model aircraft (which are arguably prohibited by the FMRA in any case),78 the FAA has proposed spe- cific operating standards for hobby and recreational model aircraft owners and operators to reduce opera- tional risks and “create a good neighbor environment with affected communities and airspace users.” 79 These guidelines arose from regulatory guidance ini- tially issued more than three decades ago. Specifi- cally, in 1981, the FAA published Advisory Circular (AC) 91-57, entitled “Model Aircraft Operating Standards,” in order provide guidance to persons interested in flying model aircraft as a hobby or for recreational use. AC 91-57 focused on site selection and recommended model airplane operations occur below 400 feet, three miles from an airport, and away from populated areas.80 AC 91-57 further suggested that hobby-type airplanes not be flown higher than 400 feet above the surface and that operators select an operating site that is of sufficient distance from populated and noise sensitive areas such as parks, schools, hospitals, and churches.81 To the extent flights occurred within three miles of an airport, mod- elers were advised to notify the airport operator, or if applicable, air traffic control tower or flight service station.82 Additionally, hobbyists were advised not to fly in the presence of spectators until they were confi- dent that the model aircraft had been flight tested and proven airworthy.83 Finally, the FAA expected that hobbyists would operate their recreational model aircraft within VLOS, giving way to, and avoiding fly- ing in the proximity of full-scale aircraft.84 Significantly, the model aircraft operating stan- dards in AC 91-57 were not mandatory. Rather, the advisory “encourages voluntary compliance.” 85 Before codification of 14 C.F.R. Part 107 and its allowance of commercial UAS, the voluntary nature of the FAA’s guidance respecting model aircraft presented confu- sion—or opportunity—for drone operators. Indeed, enterprising individuals and companies asserted that AC 91-57 was a basis for commercial UAS flight operations. But this prompted the FAA to issue clari- fication in February 2007 concerning operations of unmanned aircraft in the NAS.86 The chief message of the policy clarification was that “AC 91-57 only 73 fed. AViAtion Admin., Interpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396, https://www.faa.gov/uas/media/model_aircraft_spec_rule. pdf, at 9. 74 Id. 75 Id. at 10. 76 According to the FAA, however, such operations— though not strictly commercial operations conducted for compensation or hire—do not qualify as a hobby or recre- ation flight because of the nexus between the operator’s business and the operation of the aircraft. Id. 77 See also fed. AViAtion Admin., Interpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014- 0396, www.faa.gov/uas/media/model_aircraft_spec_rule. pdf, at 11. 78 Federal aviation regulations do apply to model air- craft. See, e.g., 14 C.F.R. pt. 48 (governing registration and marking requirements for small unmanned aircraft). 79 See generally fed. AViAtion Admin., Advisory Circular 91-57, Model Aircraft Operating Standards (Sept. 2, 2015). 80 Id. at ¶ 3(c). 81 Id. at ¶ 3(a), (c). 82 Id. at ¶ 3(c). 83 Id. at ¶ 3(b). 84 Id. at ¶ 3(d). 85 Id. at ¶ 1. 86 Unmanned Aircraft Operations in the National Air- space System, 72 Fed. Reg. 6,689 (Feb. 13, 2007), http:// www.gpo.gov/fdsys/pkg/FR-2007-02-13/pdf/E7-2402.pdf. Figure 4. Allowable versus Disallowed UAS Flight (2014)77

17 applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.” 87 The FAA expressed its reasoning as follows: 88 Policy Statement The FAA recognizes that people and companies other than modelers might be flying UAS with the mistaken under- standing that they are legally operating under the author- ity of AC 91-57. AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes. The FAA has undertaken a safety review that will examine the feasibility of creating a different category of unmanned “vehicles” that may be defined by the operator’s visual line of sight and are also small and slow enough to adequately mitigate hazards to other aircraft and persons on the ground. The end product of this analysis may be a new flight authorization instrument similar to AC 91-57, but focused on operations which do not qualify as sport and rec- reation, but also may not require a certificate of airworthi- ness. They will, however, require compliance with applicable FAA regulations and guidance developed for this category. On September 2, 2015, the FAA cancelled its long-standing AC 91-57, replacing it with AC 91-57A. The updated advisory circular provides guidance to persons operating unmanned aircraft for hobby or recreational purposes meeting the stat- utory definition of “model aircraft” contained in Section 336 of the FMRA.89 Like the policy document it replaced, AC 91-57A recognizes that “aero-modelers generally are con- cerned about safety and exercise good judgment when flying model aircraft for the hobby and recre- ational purposes for which they are intended, [and] they may share the airspace in which manned aircraft are operating.” 90 However, “[u]nmanned air- craft, including model aircraft, may pose a hazard to manned aircraft in flight and to persons and prop- erty on the surface if not operated safely.” 91 As such, the FAA has retained the authority to prosecute unscrupulous or careless operators: “Model aircraft operations that endanger the safety of the National Airspace System, particularly careless or reckless operations or those that interfere with or fail to give way to any manned aircraft may be subject to FAA enforcement action.” 92 Enforcement action, then, hinges upon which regime the aircraft is operating within, i.e., as a recreational model aircraft or a Part 107 small UAS operation, for example. In AC-91-57A, Change 1, moreover, the FAA fur- ther noted that its prosecutorial authority comes from “Public Law 112-95 [which] recognizes the authority of the Administrator to pursue enforce- ment action against persons operating model air- craft who endanger the safety of the National Airspace System.” Accordingly, model aircraft opera- tors must comply with any TFRs.93 Moreover, model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas, or the Washington National Capital Region Flight Restricted Zone, without specific authorization.94 Additionally, model aircraft operators should be aware of other Notices to Airmen (NOTAM), which address operations near locations such as military or other federal facilities, certain stadiums, power plants, electric substations, 87 Id. at 6,690. 88 fed. AViAtion Admin., Unmanned Aircraft Operations in the National Airspace System, Docket No. FAA-2006- 25714, https://www.faa.gov/uas/media/frnotice_uas.pdf. 89 fed. AViAtion Admin., Advisory Circular 91-57A, Change 1, at ¶ 1. 90 Id. at ¶ 6b. 91 Id. 92 Id. 93 Id. at ¶ 6d (“TFRs are issued over specific locations due to disasters, or for reasons of national security; or when determined necessary for the management of air traffic in the vicinity of aerial demonstrations or major sporting events. Do not operate model aircraft in desig- nated areas until the TFR is no longer in force.”). 94 Id.

18 dams, oil refineries, national parks, emergency ser- vices, and other industrial complexes.95 Under AC- 91-57A, Change 1, the requirement not to fly within TFRs, or other circumstances where prohibited, would apply to operation of model aircraft that would otherwise comply with section 336 of the FMRA.96 In any case, model aircraft operators should follow best practices including limiting oper- ations to below 400 feet AGL.97 Currently, while model aircraft are not subject to the provisions of 14 C.F.R. Part 107 consistent with the FMRA, Part 101 incorporates the statutory man- date in section 336(b) of the FMRA that preserves the FAA’s authority, under 49 U.S.C. § 40103(b) and § 44701(a)(5), to pursue enforcement “against per- sons operating model aircraft who endanger the safety of the national airspace system.” 98 § 101.43 Endangering the Safety of the National Air- space System No person may operate model aircraft so as to endanger the safety of the national airspace system This rule is codified in 14 C.F.R. Part 101 as a stand- alone “special rule” applicable to model aircraft, pro- hibiting model aircraft operators from endangering the safety of the NAS.99 B. Part 107: Small Civil (Commercial) UAS Operations Part III, supra, sets out five regulatory paths to fly a drone, whether the drone be a public or civil air- craft. Within this regime, three types of authoriza- tion existed for the lawful flight of civil UAS (i.e., non-public and commercial) or non-model (i.e., recre- ational or hobby use under Section 336 of the FMRA): (1) Arrange to fly as a public entity and obtain a certificate of waiver or authorization (COA) from the FAA, (2) Obtain a special airworthiness certificate (SAC) from the FAA in the experimental category, or (3) Petition for authorization to fly under Section 333 of the FMRA. When 14 C.F.R. Part 107 became effective on August 29, 2016, a new mainline regulatory scheme came into effect for civil (and thus commercial) flights of UAVs weighing under 55 lbs. (The COA and “333” framework continues to apply to UAV weighing more than 55 lbs., though most small UAV operators previously issued a COA are migrating to Part 107 operations. Meanwhile, according to the FAA, pend- ing issuance of separate rules for micro-UAV (those weighing under 0.55 lbs.), micro-UAV are governed by Part 107.) Under Part 107, the person flying a drone must be at least 16 years old and have a remote pilot certificate with a small UAS rating, or be directly supervised by someone with such a certificate.100 To qualify for a remote pilot certificate, an individual must either pass an initial aeronautical knowledge test at an FAA- approved knowledge testing center or have an existing non-student Part 61 pilot certificate.101 Among other key features of the new final rule (see Figure 5): 102 • Remote pilots must keep their aircraft within visual line of sight, • Aircraft are prohibited from flying higher than 400 feet above the ground and cannot operate over people, • Allowance of operations during daylight and during twilight if the drone has anti-collision lights, and • Operation is allowed in Class G airspace only. Significantly, many of the operational require- ments and qualifications under 14 C.F.R. Part 107 are elastic because the FAA will consider issuing waivers in appropriate circumstances. Pursuant to 14 C.F.R. § 107.205 specifically, a certificate of waiver may authorize a deviation of the following in approved cir- cumstances based on “performance-based standards”: • Flight at night. • Operations in Class B, C, D, & E surface areas. • Flight beyond visual line of sight. • Flight over people. • Flight over 400 ft. above the ground. • Operations near manned aircraft. To obtain a certificate of waiver—referred to as a “CoW”—an applicant must submit a request 100 fed. AViAtion Admin., DOT and FAA Finalize Rules for Small Unmanned Aircraft Systems, https://www.faa.gov/ news/press_releases/news_story.cfm?newsId=20515. Persons younger than 16 years old may manipulate the controls of a UAV provided they are supervised by a remote pilot. 101 Id. 102 Id. See also Appendix B-2 (Summary of Small Unmanned Aircraft Rule (14 C.F.R. pt. 107)). 95 Id. Information regarding published NOTAMS can be found at https://notams.aim.faa.gov/notamSearch/. 96 Id. 97 Id. 98 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,080 (June 28, 2016). 99 Id. The FAA has taken the position that, from a safety point of view, there is no difference between the risk posed by recreational operations, operations used for salutary purposes, and nonrecreational/nonsalutary operations. Id. There is no data indicating that a small UAS operation whose operational parameters raise the safety risks addressed by Part 107 would become safer simply as a result of being conducted for recreational or salutary purposes rather than commercial purposes. Id. As such, the FAA declined requests to apply the terms of Section 336 beyond the statutory criteria specified in that section. Id. at 42,081.

19 containing a complete description of the proposed operation and a justification, including supporting data and documentation as necessary, that establishes that the proposed operation can safely be conducted under the terms of the requested CoW.103 For example, a request for a major deviation from Part 107 for an operation that takes place in a congested metropolitan area with heavy air traffic will likely require signifi- cantly more data and analysis than a request for a minor deviation for an operation that takes place in a sparsely populated area with minimal air traffic.104 If a CoW is granted, that certificate may include additional conditions and limitations designed to ensure that the small UAS operation can be conducted safely.105 C. FAA Extension, Safety, and Security Act of 2016 (FESSA) In July 2016, Congress passed bipartisan legisla- tion entitled the FAA Extension, Safety, and Security Act of 2016. Its provisions relating to UAS include: 106 • Safety Statements. Under Section 2203, small UAS manufacturers must make available certain information at the time of delivery, including: (1) in- formation about, and sources of, laws and regula- tions applicable to small UAS; (2) recommendations for using small UAS; and (3) FAA-approved lan- guage regarding the definition and operation of model aircraft. Manufacturers who fail to provide the required information are liable for civil penal- ties of up to $27,500 per violation. • Interference with Wildfire Suppression. Now added to 49 U.S.C. ch. 493 is a law that makes it a civil penalty of up to $20,000 for any non-government, individual operator of an unmanned aircraft who “knowingly or recklessly interferes with a wildfire sup- pression, law enforcement, or emergency response.” • Pilot Project for Airport Safety and Airspace Hazard Mitigation. Under Section 2206 of the reau- thorization bill, the FAA is obligated to establish a pilot program for airspace hazard mitigation at air- ports and other critical infrastructure using unmanned aircraft detection systems. More than $6,000,000 was appropriated for the purpose of ensuring that technol- ogies that are developed, tested, or deployed by those departments and agencies to mitigate threats posed by errant or hostile UAS operations do not adversely impact or interfere with safe airport operations, navi- gation, air traffic services, or the safe and efficient operation of the national airspace system. • Emergency Exemption Process. The FAA is required to publish guidance for applications for, and procedures for the processing of, on an emer- gency basis, exemptions or certificates of authoriza- tion or waiver for civil or public operators in response to a catastrophe, disaster, or other emergency, e.g., firefighting, search and rescue, and utility and infra- structure restoration efforts. • Unmanned Aircraft Systems Traffic Man- agement. The FAA and NASA are required to con- tinue development of a research plan for an unmanned aircraft system traffic management (UTM). • Application to Prohibit or Restrict UAS Operations. Congress has required the FAA to develop a process for applicants to request the prohi- bition or restriction of the operation of an unmanned aircraft in close proximity to a fixed site facility. In this context, a fixed site facility includes only: (1) critical 103 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,072 (June 28, 2016). See also 14 C.F.R. § 107.25. 104 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,072 (June 28, 2016). See also 14 C.F.R. § 107.25. 105 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,072 (June 28, 2016). See also 14 C.F.R. § 107.25. 106 FAA Extension, Safety, and Security Act of 2016, UAS Safety, §§ 2201–12, https://www.congress.gov/114/ bills/hr636/BILLS-114hr636enr.pdf, at 14–24. Figure 5. Hobby v. Commercial UAS Operations Distinguished

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Evolving Law on Airport Implications by Unmanned Aerial Systems Get This Book
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TRB's Airport Cooperative Research Program (ACRP) Legal Research Digest 32: Evolving Law on Airport Implications by Unmanned Aerial Systems provides guidance to enhance understanding of the basic legal and operational issues presented by civil unmanned aerial systems (UAS), and evaluates best practices for managing these issues. The digest covers background on UAS uses, applications, regulations, and definitions, leading to operations within the National Airspace System (NAS), the issues of federalism as it relates to local and state laws, tort law implications, operations at airports, and best practices for airport operators. Appendix B—Guidance and Policy Documents and Appendix I—Summary of Interviews and Poll Results are available online.

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