US Federal Aviation Authority release proposed rules on drones and the US President issues a directive restricting surveillance by drones

February 16, 2015 |

The US Federal Aviation Authority (the “FAA”) has just released its long awaited rules on the use of small unmanned aerial vehicles, known as drones to most. On the same day the US President has issued a directive on the use of drones which will place limits on surveillance. The combination of these two developments provides greater regulation on the use of drones while allowing the use of the technology to develop.  It also deals with the privacy issues that arise in the use of drones, especially in relation to surveillance.

The presidential The Fact sheet, titled Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems provides:

Today the White House issued a Presidential Memorandum to promote economic competitiveness and innovation while safeguarding privacy, civil rights, and civil liberties in the domestic use of Unmanned Aircraft Systems (UAS).

This Presidential Memorandum builds on efforts already underway to integrate UAS into the national airspace system (NAS).  The Federal Aviation Administration has authorized the testing of UAS at six sites around the country in December 2013 as part of its efforts to safely integrate UAS into the NAS, as required by the Federal Aviation Administration Modernization and Reform Act of 2012.

UAS are a potentially transformative technology in diverse fields such as agriculture, law enforcement, coastal security, military training, search and rescue, first responder medical support, critical infrastructure inspection, and many others.

The Administration is committed to promoting the responsible use of this technology, strengthening privacy safeguards and ensuring full protection of civil liberties.

The Presidential Memorandum released today ensures that the Federal Government’s use of UAS takes into account these important concerns and in service of them, promotes better accountability and transparent use of this technology, including through the following:

First, the Presidential Memorandum requires Federal agencies to ensure that their policies and procedures are consistent with limitations set forth in the Presidential Memorandum on the collection and use, retention, and dissemination, of information collected through UAS in the NAS.

Second, the Presidential Memorandum requires agencies to ensure that policies are in place to prohibit the collection, use, retention, or dissemination of data in any manner that would violate the First Amendment or in any manner that would discriminate against persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity, in violation of law.

Third, the Presidential Memorandum includes requirements to ensure effective oversight.

Fourth, the Presidential Memorandum includes provisions to promote transparency, including a requirement that agencies publish information within one year describing how to access their publicly available policies and procedures implementing the Presidential Memorandum.

Fifth, recognizing that technologies evolve over time, the Presidential Memorandum requires agencies to examine their UAS policies and procedures prior to the deployment of new UAS technology, and at least every three years, to ensure that protections and policies keep pace with developments.

Consistent with these objectives, the Presidential Memorandum additionally requires the Department of Commerce, through the National Telecommunications and Information Administration, and in consultation with other interested agencies, to initiate a multi-stakeholder engagement process within 90 days to develop a framework for privacy, accountability, and transparency issues concerning the commercial and private use of UAS in the NAS.

The FAA proposed rules are summarised generally in its press release DOT and FAA Propose New Rules for Small Unmanned Aircraft Systems which provides:

WASHINGTON – The Department of Transportation’s Federal Aviation Administration today proposed a framework of regulations that would allow routine use of certain small unmanned aircraft systems (UAS) in today’s aviation system, while maintaining flexibility to accommodate future technological innovations.

The FAA proposal offers safety rules for small UAS (under 55 pounds) conducting non-recreational operations. The rule would limit flights to daylight and visual-line-of-sight operations. It also addresses height restrictions, operator certification, optional use of a visual observer, aircraft registration and marking, and operational limits.

The proposed rule also includes extensive discussion of the possibility of an additional, more flexible framework for “micro” UAS under 4.4 pounds. The FAA is asking the public to comment on this possible classification to determine whether it should include this option as part of a final rule. The FAA is also asking for comment about how the agency can further leverage the UAS test site program and an upcoming UAS Center of Excellence to further spur innovation at “innovation zones.” 

The public will be able to comment on the proposed regulation for 60 days from the date of publication in the Federal Register, which can be found at  Separate from this proposal, the FAA intends to hold public meetings to discuss innovation and opportunities at the test sites and Center of Excellence.  These meetings will be announced in a future Federal Register notice.

 “Technology is advancing at an unprecedented pace and this milestone allows federal regulations and the use of our national airspace to evolve to safely accommodate innovation,” said Transportation Secretary Anthony Foxx.

The proposed rule would require an operator to maintain visual line of sight of a small UAS. The rule would allow, but not require, an operator to work with a visual observer who would maintain constant visual contact with the aircraft. The operator would still need to be able to see the UAS with unaided vision (except for glasses). The FAA is asking for comments on whether the rules should permit operations beyond line of sight, and if so, what the appropriate limits should be.

“We have tried to be flexible in writing these rules,” said FAA Administrator Michael Huerta. “We want to maintain today’s outstanding level of aviation safety without placing an undue regulatory burden on an emerging industry.” 

Under the proposed rule, the person actually flying a small UAS would be an “operator.” An operator would have to be at least 17 years old, pass an aeronautical knowledge test and obtain an FAA UAS operator certificate. To maintain certification, the operator would have to pass the FAA knowledge tests every 24 months. A small UAS operator would not need any further private pilot certifications (i.e., a private pilot license or medical rating).

The new rule also proposes operating limitations designed to minimize risks to other aircraft and people and property on the ground:

  • A small UAS operator must always see and avoid manned aircraft. If there is a risk of collision, the UAS operator must be the first to maneuver away.
  • The operator must discontinue the flight when continuing would pose a hazard to other aircraft, people or property.
  • A small UAS operator must assess weather conditions, airspace restrictions and the location of people to lessen risks if he or she loses control of the UAS.
  • A small UAS may not fly over people, except those directly involved with the flight.
  • Flights should be limited to 500 feet altitude and no faster than 100 mph.
  • Operators must stay out of airport flight paths and restricted airspace areas, and obey any FAA Temporary Flight Restrictions (TFRs).

The proposed rule maintains the existing prohibition against operating in a careless or reckless manner. It also would bar an operator from allowing any object to be dropped from the UAS.

Operators would be responsible for ensuring an aircraft is safe before flying, but the FAA is not proposing that small UAS comply with current agency airworthiness standards or aircraft certification. For example, an operator would have to perform a preflight inspection that includes checking the communications link between the control station and the UAS. Small UAS with FAA-certificated components also could be subject to agency airworthiness directives.

The new rules would not apply to model aircraft.  However, model aircraft operators must continue to satisfy all of the criteria specified in Sec. 336 of Public Law 112-95, including the stipulation that they be operated only for hobby or recreational purposes. Generally speaking, the new rules would not apply to government aircraft operations, because we expect that these government operations will typically continue to actively operate under the Certificate of Waiver or Authorization (COA) process unless the operator opts to comply with and fly under the new small UAS regulations.

In addition to this proposal, earlier today, the White House issued a Presidential Memorandum concerning transparency, accountability, and privacy, civil rights, and civil liberties protections for the Federal Government’s use of UAS in the national airspace system which directs the initiation of a multi-stakeholder engagement process to develop a framework for privacy, accountability, and transparency issues concerning commercial and private UAS use.

  The summary of the rules provide:

Summary of Major Provisions of Proposed Part107


The following provisions are being proposed in the FAA’s Small UASNPRM.

Operational Limitations

  • Unmanned aircraft must weigh less than 55 lbs. (25kg).
  • Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the operator or visual observer.
  • At all times the small unmanned aircraft must remain close enough to the operator for the operator to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses.
  • Small unmanned aircraft may not operate over any persons not directly involved in the operation.
  • Daylight-only operations (official sunrise to official sunset, local time).
  • Must yield right-of-way to other aircraft, manned or unmanned.
  • May use visual observer (VO) but not required.
  • First-person view camera cannot satisfy “see-and-avoid”requirement but can be used as long as requirement is satisfied in other ways.
  • Maximum airspeed of 100 mph (87 knots).
  • Maximum altitude of 500 feet above ground level.
  • Minimum weather visibility of 3 miles from control station.
  • No operations are allowed in Class A (18,000 feet & above)airspace.
  • Operations in Class B, C, D and E airspace are allowed with the required ATC permission.
  • Operations in Class G airspace are allowed without ATC permission
  • No person may act as an operator or VO for more than one unmanned aircraft operation at onetime.
  • No careless or reckless operations.
  • Requires pre flight inspection by the operator.
  • A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS.
  • Proposes a microUAS option that would allow operations in ClassG airspace, over people not involved in the operation, provided the operator certifies he or she has the requisite aeronautical knowledge to perform the operation.

Operator Certificationand Responsibilities

  • Pilots of a small UAS would be considered“operators”.
  • Operators would be required to:

o   Pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center.

o   Be vetted by the Transportation Security Administration.


o   Obtain an unmanned aircraft operator certificate with a small UAS rating (like existing pilot airman certificates,never expires).

o   Pass a recurrent aeronautical knowledge test every 24 months.

o   Be at least 17 years old.

o   Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the proposed rule.

o   Report an accident to the FAA within 10 days of any operation that results in injury or property damage.

o   Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is safe for operation.

Aircraft Requirements

  • FAA airworthiness certification not required. However, operator must maintain a small UAS in condition for safe operation and prior to flight must inspect the UAS to ensure that it is in a condition for safe operation. Aircraft Registration required (same requirements that apply to all other aircraft).
  • Aircraft markings required (same requirements that apply to all other aircraft). If aircraft is too small to display markings in standard size,then the aircraft simply needs to display markings in the largest practicable manner.

Model Aircraft

  • Proposed rule would not apply to model aircraft that satisfy all of the criteria specified in Section 336 of Public Law112-95.
  • The proposed rule would codify the FAA’s enforcement authority in part 101 by prohibiting model aircraft operators from endangering the safety of the NAS.

The Washington Post has covered both the FAA proposed rules and the presidential directive in detail in FAA proposes rules for drone use; Obama issues curbs on surveillance which provides:

Thousands of businesses could receive clearance to fly drones two years from now under proposed rules that the Federal Aviation Administration unveiled Sunday, a landmark step that will make automated flight more commonplace in the nation’s skies.

Meanwhile, the White House on Sunday issued presidential directive that will require federal agencies for the first time to publicly disclose where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance.

Together, the FAA regulations and the White House order provide some basic rules of the sky that will govern who can fly drones in the United States and under what conditions, while attempting to prevent aviation disasters and unrestrained government surveillance.

The FAA’s draft rules would make it relatively simple for real estate agents, aerial photographers, police departments, farmers and anyone else to fly small drones for work purposes. Operators would need to pass a written proficiency test, register the drone and pay about $200 in fees — but would not have to obtain a regular pilot’s license or demonstrate their flying skills.

The long-awaited regulations — the FAA had been drawing them up for several years — are expected to lead to a revolution in commercial aviation. But they must first undergo a lengthy period of public review and comment that is projected to take at least until early 2017. Once the rules are finalized, the FAA estimates that more than 7,000 businesses will obtain drone permits within three years.

“We’re putting forward what we believe to be the safest possible approach at the moment, but of course we look forward to hearing back from the public,” Transportation Secretary Anthony Foxx told reporters Sunday on a conference call.

The proposed regulations carry some significant limitations. Businesses would be allowed to fly drones only during daylight hours. And drones would have to remain within eyesight of the operator or observers posted on the ground.

The drones could fly no more than 100 mph and would have to stay below an altitude of 500 feet to avoid the risk of colliding with other aircraft. They would also be prohibited from flying over bystanders not directly involved in their operation.

As a result, companies would not be permitted to fly drones over long distances. That would effectively preclude companies such as pizza makers, and newspaper companies from delivering goods to customers’ doorsteps via drone (Amazon’s chief executive, Jeffrey P. Bezos, also owns The Washington Post). The rules, however, are expected to be modified and loosened over the coming decade as drone technology advances.

Unlike with regular aircraft, the FAA would not require drone operators or manufacturers to certify in advance that the drones are safe to fly. Michael Huerta, head of the FAA, said such a requirement is unnecessary because small drones “pose the least amount of risk to our airspace.”

The regulations would apply only to drones weighing 55 pounds or less. The FAA is still drafting rules for larger drones, and those are expected to take several more years to sort out.

In addition, FAA officials said they are considering a separate set of rules for “micro-drones” that weigh less than 4.4 pounds. Under those rules, operators would not have to pass any kind of test; they would only have to submit a written statement to the FAA promising that they were familiar with basic aviation safety measures.

Congress also ordered the FAA to integrate drones into the national airspace by September 2015. Bogged down by staff shortages and a slow-moving regulatory structure, however, the FAA has been slow to keep up with rapid technological advances in the drone industry and has missed several deadlines to introduce regulations.

Until now, the FAA has relied on an interim patchwork of guidelines. Businesses are prohibited from flying drones without special approval. Recreational drone flights are allowed as long as the aircraft stay below 400 feet and five miles away from an airport. The military and other government agencies need a certificate to fly in civilian airspace.

The guidelines, however, have been routinely ignored by drone enthusiasts. Pilots across the United States have reported a surge in near-collisions with small unlicensed drones, presenting a major threat to aviation safety.

Huerta, the FAA administrator, said the agency’s gradual approach to adopting regulations, despite pressure from the drone industry to move faster, was designed to enhance safety. “We need to do this in a staged way that ensures the highest levels of safety, because that’s what people expect,” he told reporters.

When asked how the FAA would verify that drone pilots get a license and do not flout safety restrictions, Huerta said the agency relies on public education campaigns but also has enforcement tools, such as the power to levy fines, at its disposal.

“What we want to do is ensure that anyone who is flying in a careless or reckless manner that would be endangering the public or other users of the airspace, that we take appropriate enforcement action,” he said.

In reality, FAA officials have acknowledged that it is extremely difficult to police the skies or crack down on rogue drone pilots. Most drones are too small to appear on radar. And even when they are spotted near airports or intruding into congested airspace, it is hard to chase them, much less to track down whoever is flying them by remote control.

Although the proposed regulations announced Sunday are tailored for commercial drones, they are expected to trigger a huge expansion in drone use by government agencies, such as police and fire departments.

Under current rules, agencies must go through a cumbersome application process to win FAA approval to fly drones, determined on a case-by-case basis. The new regulations would lift many of those obstacles. Law enforcement agencies could fly their own drones to conduct surveillance or could hire a contractor to do so.

The FAA and the White House had intended to unveil their drone rules later this month. But an official document highlighting some of the proposed regulations was inadvertently posted on a federal Web site Friday night, prompting the Obama administration to announce the changes in the middle of a holiday weekend.

While the FAA rules are designed to exploit the economic potential of drones without jeopardizing aviation safety, the order issued Sunday by President Obama is intended to safeguard personal privacy and require the federal government to be more forthcoming about when and where it uses drones to conduct surveillance.

One Response to “US Federal Aviation Authority release proposed rules on drones and the US President issues a directive restricting surveillance by drones”

  1. US Federal Aviation Authority release proposed rules on drones and the US President issues a directive restricting surveillance by drones | Australian Law Blogs

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