Commentary: Paul Fraidenburgh, Esq.

Avionics Today, February 18, 2015

The FAA finally introduced its highly anticipated draft of rules regulating the commercial use of small Unmanned Aircraft Systems (UAS), or UAS weighing less than 55 pounds. Included in the newly proposed guidelines are regulations regarding the requirements for operators of small UAS, as well as maximum altitudes, airspace classes and specifications for the type of aircraft that operators can fly.

Under the proposed regulations, operators would be permitted to fly their UAS at a maximum altitude of 500 feet above ground level within visual line of sight. The drafted rules apply only to non-recreational flight operations and also address operator certification, as well as aircraft registration and marking. Now that the proposal has been released, the FAA will allow for 60 days of public comments from the date of publication in the Federal Register. Once that period is over, it could be up to 18 months until the FAA works the comments into the proposal and the finalized rules are published, effectively instating official regulations for small UAS operations — something the National Airspace System (NAS) has been sorely lacking.

“I’m guessing the FAA will get thousands of comments, it will read the comments, it will work the comments into its proposed rules and come up with a final set of rules that the FAA will review internally, the Transportation Department will review, the Office of Management and Budget will have to review and then we’ll get a final decision with the final rules,” Anne Swanson, a partner with Cooley’s regulatory communications practice in Washington, D.C. told Avionics Magazine. “I think it is going to be 18 to 24 months — some time in 2017 — before the new rules go from the proposed stage to being effective.”

Until the rules are finalized, current operators seeking permission from the FAA to perform commercial UAS operations have the option of applying for a Certificate of Waiver or Authorization (COA). Once established, the rules would require operators to be at least 17 years old, and earn a “newly created FAA unmanned operator’s permit” by “passing a knowledge test focusing on the rules of the air,” FAA Administrator Michael Huerta said during a conference call discussing the proposed regulations.

Operators would also be required to renew their certification every 24 months, and the aircraft that they use would not be required to meet FAA airworthiness requirements for manned aircraft. The small unmanned aircraft would also need to be maintained in a safe condition, a significant aspect of the regulations for some UAS weighing less than 55 pounds.

“It’s a numbers game,” Paul Fraidenburgh, an attorney at Buchalter Nemer, who routinely represents UAS operators told Avionics Magazine. “The FAA faces and will continue to face serious challenges arising from the sheer volume and accessibility of unmanned technology. Unlike with manned aircraft, where there are significant barriers to entry (including price and size), anyone with a credit card can get online and have a drone shipped to their home in two days. The proliferation of unmanned technology throughout the country will continue to militate against a rule requiring airworthiness certifications for UAS. However, I would expect the FAA to continue to explore ways that this problem can be solved at a pre-consumer stage.”

While the release of the Notice of Proposed Rule Making (NPRM) is a major step toward the integration of small UAS into civil airspace, don’t expect Amazon to start delivering packages with unmanned aircraft any time soon. During the conference call, Huerta was stressed that the proposed regulation “does not authorize widespread commercial use of unmanned aircraft,” adding that widespread operations can only occur “when the rule is final.” Under the FAA Reauthorization Act of 2012, the agency’s original goal was to release a final set of regulations for commercial UAS operations by September 2015, which is highly unlikely at this point.

“These are very exciting times,” said Fraidenburgh. “Although these rules provide a foundation for the unmanned aircraft systems industry, the technology is evolving so quickly that we will likely see that the regulatory environment looks entirely different 10 years from now.”