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Avialex Law Group's position on adopting drones in the National Airspace

The U.S. drone industry is trying to decide how to proceed in light of last month's Notice of Proposed Rulemaking (NPRM) issued in the anticipated adoption of unmanned aerial vehicles (UAVs)—i.e., drones, in the National Airspace System (NAS) (Docket No.: FAA-2015-0150; Notice No. 15-01).

Currently, FAA regulations prohibit the commercial use of UAVs absent a special airworthiness certificate, exemption, or certificates of waiver or authorization (COA). Obtaining one of these exemptions is a long and costly procedure requiring that you narrow down the anticipated operation to help ensure your petition will be granted. Exemptions are not guaranteed, but at this point there have been numerous exemptions granted so there are templates available out there for companies that want them.

Under the new NPRM, it looks like the practice of applying for special exemptions is about to change for certain types of Unmanned Aerial Systems (UAS) depending on the size of the aircraft.

Apparently, size really does matter.

Luckily for those of you who already obtained the 333 Exemption, the FAA just released an interim policy to speed up airspace authorizations to help "bridge the gap between the past process… and future operations" once the NPRM is finalized. Essentially this grants Exemption holders an automatic COA for flights at or below 200 feet with 55 lb. or smaller UAVs during the day.

The NPRM suggests that the UAV commercial market should be carved out into three classifications based on the physical weight and construction of the aircraft. Under the rapidly evolving UAV regulatory scheme (read: "currently undecided and quickly changing") there will likely be the following classes:

 

Moving away from the customer and autonomous technology, how does this affect the early adopter UAV operator who want to earn a living operating a drone? The NPRM explains that each operator will have to pass a test administered at an FAA-approved center, be approved by TSA, obtain an Unmanned Aircraft Operator Certificate, and be at least 17 years of age. The FAA estimates this process will run a little over $200 per person, not including the recurrency test that will be required every 2 years. Micro UAV operators will likely have a greatly reduced initial time investment but the specifics have not yet been ironed out.

What is missing from the NPRM?

For one, it does not suggest a best practice for minimizing risk during loss of control link—i.e. think drunk drone operator crashing a UAV on the White House lawn. This omission may be for the best as it should be up to the industries' top engineers and programmers to figure out the safest and most efficient way to handle inevitable risks.

Also undecided is what should result from an injury or property damage caused by a UAV. The NPRM suggests there should be an insurance requirement (Global Aerospace already advertises an UAS Insurance Policy) and that, at a minimum, operators should file a report within 10 days of any such incident.

Considering that, on average, the most costly damage will not be to bystanders but to the UAV itself, voluntary disclosure may result in non-disclosure. That said, Murphy's law demands that we prepare for the eventuality of a farming UAV veering of course to collide with an aircraft windshield or get sucked into a turbine engine, or a professional athlete suffering a permanent eye injury inflicted by a malfunctioning camera drone.

If you are interested to see how other countries are handling drones, look at the European Aviation Safety Agency (EASA) proposed regulatory framework released earlier this week. Instead of a 'size' approach, European law makers want drones classified as 'open', 'specific' or 'certified', each with its own set of rules. If Europe has its way, drone operations overseas will continue to far outpace those in America.

That said, Americans hate playing catch up so continue to check www.regulations.gov where the FAA is having a lively discussion with the public on how the NPRM will ultimately play out. Comments are encouraged.

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John Van Geffen