Unmanned Aircraft Systems (UAS) Tool Kit
PREPARED BY HOGAN LOVELLS US LLP FOR
THE AMERICAN FUEL & PETROCHEMICALMANUFACTURERS
TABLE OF CONTENTS
PageI. INTRODUCTION................................................................................................................1II. UAS LEGAL FRAMEWORK.............................................................................................2
A. Hobbyist Use..........................................................................................................2
B. Public Use..............................................................................................................3
C. Commercial / Non-Recreational Use......................................................................3
III. FAA NOTICE OF PROPOSED RULEMAKING................................................................3A. Operational Restrictions.........................................................................................4
B. Operator Certification and Responsibilities............................................................4
C. Aircraft Registration................................................................................................5
IV. UPDATE: MICRO-UAS AVIATION RULEMAKING COMMITTEE...................................6V. FAA SECTION 333 EXEMPTION PROCESS...................................................................7
A. Overview of FAA Section 333 Exemption Process................................................8
B. Recent Updates to Section 333 Process...............................................................9
i. Summary Grant Approval Process.............................................................9
ii. Pilot’s License Requirement.....................................................................10
iii. Blanket Certificate of Waiver or Authorization..........................................10
iv. Flow Chart of the Section 333 Exemption Process..................................12
C. Commercial Activity and FAA Enforcement.........................................................13
D. Critical Infrastructure and Energy Sector Section 333 Exemptions.....................13
VI. RESTRICTED FLIGHT AREAS......................................................................................16A. FAA Flight Restrictions.........................................................................................17
B. Private Entity Restrictions on UAS and Other Protections...................................18
C. Recent Amendments to House Proposed FAA Reauthorization Bill That Would Affect Oil Refineries and Chemical Facilities........................................................19
D. Recent Amendments to Senate Proposed FAA Reauthorization Bill That Would Affect Oil Refineries and Chemical Facilities........................................................20
VII. THE UAVS FOR ENERGY INFRASTRUCTURE ACT...................................................22VIII. ENFORCEMENT AGAINST ROGUE DRONES.............................................................22
A. Company Responses to Rogue Drones...............................................................23
B. State Laws Protecting Privacy and Restricting UAS Use.....................................24
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i. Federal Preemption of State and Local UAS Laws..................................26
IX. FEDERAL GOVERNMENT AND UAS PRIVACY...........................................................27
Appendix A: FAA UAS Guidance Material IndexAppendix B: FAA Regional Operation CentersAppendix C: State UAS Laws
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Unmanned Aircraft Systems (UAS), or so-called “drones,” are gaining popularity across industries for their efficiency and safety benefits in performing tasks ranging from infrastructure inspection and precision agriculture to real estate marketing and filmmaking.1 The potential benefits of UAS operations for refineries, petrochemical manufacturers, and their customers are great. Among other activities, UAS can be used to inspect and monitor equipment and facilities, or to access and evaluate emergency situations from different perspectives. By utilizing UAS, the need for human personnel to directly undertake such potentially hazardous activities is greatly reduced, if not eliminated. While the industry has much to gain from using UAS, there is also reason for concern. The use of UAS by unauthorized operators or for unauthorized operations presents critical safety, privacy, and security risks to the refinery and petchem communities.
This AFPM UAS Tool Kit is designed to provide refiners and petrochemical manufacturers an understanding of the existing UAS legal framework, including the Federal Aviation Administration’s (FAA) Section 333 exemption process, so that companies may determine whether and how to seek permission to fly small UAS in the United States. It also outlines the risks to the industry as a result of the increasingly prevalent use of this technology by hobbyists, public entities, news organizations, and commercial industry, and describes what protections are available—including FAA enforcement, common law torts, and certain UAS-specific state laws.
As part of this AFPM UAS Tool Kit we have assembled a portfolio of key UAS reference documents from a range of sources that contain valuable information and guidance material for commercial UAS operators. An index of this guidance material is attached as Appendix A.
This AFPM UAS Tool Kit provides a general overview of a complex topic. For legal advice on particular issues, the authors of this report, members of the Hogan Lovells Global UAS team, are available to answer any questions that individual companies may have.
1 A UAS consists of an unmanned aircraft, an aircraft control station, and command and control links.
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II. UAS LEGAL FRAMEWORK
The use of UAS for hobbyist or recreational purposes has been part of American tradition, and broadly authorized in the United States, for decades. Over the last several years, as UAS and information technology have improved at a rapid pace, UAS have become cheaper, smaller, more mobile, and increasingly able to capture data from the air safely and efficiently. With these technological advances, the commercial marketplace, including the oil and gas industry, has embraced the use of this technology.
However, UAS technology has moved much more quickly than U.S. policymaking—and U.S. law does not currently permit the use of small UAS commercially without special authorization from the FAA. This section of the AFPM UAS Tool Kit provides an overview of the current UAS legal framework for hobbyist, public, and commercial use of drones in the United States in order to guide industry activity and provide a roadmap for the future.
A. Hobbyist Use
Hobbyist use of drones is broadly authorized in the United States. The regulatory requirements for commercial use of UAS, which will be discussed in detail below, do not apply to operations of small UAS carried out strictly for hobby or recreation. Model aircraft are generally permitted to be flown less than 400 feet above ground level2 if the model aircraft weighs less than 55 pounds3, is flown within visual line of sight, and is operated in accordance with a community-based set of guidelines in a manner that does not interfere with, and gives way to, manned aircraft.4 Model aircraft operators do not have complete flexibility, however; they must provide advance notice to air traffic control in order to fly within five miles of an airport, and the FAA has the ability to enforce the law against hobbyists who fly their model aircraft in a way that recklessly endangers the public.5
For the refinery and petchem industries, it is important to recognize that a flight only qualifies as an authorized hobbyist flight if it is flown strictly for hobby or recreational use. This means that an employee hobbyist may not fly a model aircraft to benefit the company (even if he or she also flies for fun) and still fall under the hobbyist umbrella. A hobbyist who flies a UAS for the benefit of the company, even if they are not paid to do so, is engaging in commercial activity which is regulated by the FAA—and doing so without FAA authorization raises legal liability issues for both the individual employee and the company for which he/she is flying. 6
2 Advisory Circular 91-57A, Model Aircraft Operating Standards (September 2, 2015).3 Unless otherwise properly certified. See FAA Reauthorization Act of 2012, Section 336 (Special Rule for Model Aircraft).4 FAA Reauthorization Act of 2012, Section 336.5 See e.g., http://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5730.pdf, Docket No. CP-217 (N.T.S.B. Nov. 17, 2014).
6 For additional guidance on the distinction between hobbyist and commercial use, see Interpretation of the Special Rule for Model Aircraft Notice of Interpretation and Request for Comment, 79 Fed. Reg. 36172 (June 25, 2014; Docket FAA-2014-0396).
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B. Public Use
Federal, state and local agencies may also operate UAS in the United States with authorization from the FAA. A public operation involves a “public aircraft” UAS (meaning that it is publicly owned or operated on behalf of a public agency or government), carrying out a “governmental function”7 under the authority of a public Certificate of Waiver or Authorization (COA) issued to the government entity.
Public use of UAS is relevant to AFPM members for at least two reasons. First, private companies often partner with public entities, such as universities, in order to fly in partnership under a public COA. Refineries and petrochemical manufacturers interested in UAS may consider partnering with a public university for this purpose. Second, refineries and petrochemical manufacturers should be aware that local, state and federal agencies, including those related to environmental and regulatory enforcement, may themselves be operating UAS under this provision. Companies may therefore be on the receiving end of UAS surveillance from the government.
C. Commercial / Non-Recreational Use
While hobbyist use is broadly authorized and public use is routine with a public COA, the commercial use of UAS is not yet broadly authorized in the United States without special permission from the FAA. Any UAS operations that do not meet the requirements for hobbyist or public use must meet the requirements for commercial operations. For example, a non-governmental organization (NGO) using UAS for air or environmental sampling would be treated the same as a commercial use under the law.
On February 15, 2015, the FAA took an important step forward: The agency issued a Notice of Proposed Rulemaking (NPRM) that, once finalized, will open U.S. skies to certain commercial operations of UAS and other non-recreational uses of UAS. This AFPM UAS Tool Kit describes the NPRM in more detail below.
III. FAA NOTICE OF PROPOSED RULEMAKING
The FAA’s NPRM outlined a new “Part 107” of the Code of Federal Regulations that, once finalized, would govern small (i.e., less than 55 lbs.) UAS operations. The FAA received thousands of public comments on the proposed rule before the comment period closed on April 24, 2015. AFPM submitted comments to the FAA on behalf of its membership, urging the FAA to move expeditiously to finalize the proposed UAS regulations, and suggesting several revisions to the proposed rule. AFPM’s comment requested enhanced protections for critical infrastructure from unauthorized UAS overflights, and enhanced flexibility for the FAA to provide relief from certain operational restrictions. The FAA is analyzing those comments now. It is generally expected that a Final Rule that broadly authorizes low-risk commercial small UAS operations in the United States will be issued by the federal government sometime in mid to late 2016. From there, the federal government will take steps to implement the rule – which could take several additional months.
7 The term "governmental function" means an activity undertaken by a government, such as national defense, intelligence missions, firefighting, search and rescue, law enforcement (including transport of prisoners, detainees, and illegal aliens), aeronautical research, or biological or geological resource management. 49 U.S.C. § 40125(a)(2).
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The NPRM was generally embraced by industry as an appropriate first step for UAS integration in the NAS. The proposed rule covers the safety and operational aspects of flying UAS in the United States. This section of the AFPM UAS Tool Kit highlights the sections of the NPRM of most relevance to AFPM members.
A. Operational Restrictions
The rule proposed several restrictions that would limit the operations of small UAS. First, the UAS must stay within visual line of sight (sometimes abbreviated “VLOS”) of the Pilot-in-Command (PIC), which means that at all times the 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. “First-person view” (FPV) technology8, which has become increasingly popular among UAS operators, may be used to enhance awareness—but it may not replace the VLOS requirement. Other restrictions include maximum altitude of 500 feet above ground level and maximum speed of 100 miles per hour, and flight in restricted airspace (such as within five miles of an airport) only with air traffic control permission. Flights would be limited to daytime operation (official sunrise to official sunset, local time) in weather that allows at least three miles visibility from the control station. The UAS must yield right-of-way to other aircraft, manned or unmanned. The operator must inspect the UAS pre-flight, and no person may act as operator for more than one UAS at a time. Careless or reckless operations would be prohibited, as they are currently. 9
The proposed rule also asked the public for its opinion on whether the FAA should allow “micro-UAS” (4.4 lbs. or less) to fly with less restrictions than those placed on larger aircraft, including the ability to operate directly over people not involved with the operation. The FAA recently announced a new task force tasked with researching the merits of this question, discussed in more detail below.
B. Operator Certification and Responsibilities
The proposed rule would eliminate the current requirement (described more fully below in the context of Section 333 exemptions) that a UAS PIC needs a manned aircraft pilot’s license. Instead, an operator (at least 17 years old) would need to take an initial (and recurrent) aeronautical knowledge test at an FAA-approved knowledge testing center in order to receive an “Unmanned Aircraft Operator Certificate.” The candidate would also be vetted by the Transportation Security Administration (TSA). A medical certificate would not be required; one would merely self-certify that he or she does not have any physical or mental condition that would interfere with the safe operation of a small UAS. Finally, the operator would be required to report an accident to the FAA within 10 days of any operation that results in injury or property damage.
8 “First person view” technology involves mounting a video camera and transmitter to an unmanned aircraft and flying by means of a live video down-link, commonly displayed on video goggles or a portable monitor.9 Careless or reckless operations are operations that endanger the life or property of another. 14 C.F.R. § 91.13.
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C. Aircraft Registration
Over the past year there has been a surge in news events involving careless operators misusing drones, including crashes at stadium sporting events and hundreds of incidents involving close encounters between UAS and manned aircraft. In response to these news reports, the FAA recently released a new registration rule mandating the registration of small UAS, including those used for recreational or hobby use. While commercial operators were already required to register UAS, hobbyist operators were historically exempt from registration requirements.
While the hobbyist community was upset by the new rule, the commercial UAS community was generally pleased with the development. The new rule, which applies to all UAS weighing more than 250 grams (.55 pounds) and less than 55 pounds, created an alternative web-based UAS registration system designed to be simpler and more streamlined than the FAA’s existing (archaic) paper-based aircraft registration system that commercial operators are currently required to use.
Below is a summary of the key registration requirements for commercial UAS operators:
The new online registration system opened to commercial operators of small UAS on March 31, 2016.
Commercial operators are required to register each individual UAS and pay a $5 registration fee for each application. Registration lasts 3 years, and there is a $5 renewal fee for each renewal. These fees are the same as those currently required under the paper-based registration system.
Commercial operators are required to provide UAS-specific information in addition to basic contact information. The owner will receive a Certificate of Aircraft Registration with a registration number for each individual UAS registered.
Although each UAS must be assigned a unique registration number, commercial operators will be given a single online profile that allows them to manage the registration application process for each UAS.
While there is a U.S. citizenship requirement for registration, as is the case for manned aircraft, UAS owned by non-US citizen corporations qualify for registration so long as the corporation is organized and doing business under the laws of the U.S. or a State, and the UAS is “based and primarily used in” the U.S. The FAA has strict guidelines for meeting the “based and primarily used in” test.
There is no requirement to re-register UAS that have already been registered under the existing system. Operators may continue using the existing registration system or, alternatively, switch over to the new registration system when the registration is renewed.
The proposed rule includes limitations on where UAS may be operated, including prohibited or restricted areas, and in proximity to certain areas designated by a notice to airmen (NOTAM). In
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its comments to the FAA, AFPM asked for additional protections for critical infrastructure facilities—and requested that the Final Rule prohibit the unauthorized use, or unauthorized operation, of a small unmanned aircraft over all oil and gas production, handling, transport, and processing facilities.
IV. UPDATE: MICRO-UAS AVIATION RULEMAKING COMMITTEE
On February 23, 2016, the FAA announced the creation of a new aviation rulemaking (ARC) committee to study and recommend rules for authorizing some UAS to fly over people. The ARC is composed of various industry stakeholders, including UAS manufacturers, operators, academics and trade organizations. The recommendations made by the ARC, and the rules ultimately adopted by the FAA for operating UAS over people, could significantly affect not only how UAS are manufactured, but where and how commercial UAS operators can fly.
As noted above, in its NPRM the FAA contemplated a “micro” UAS classification that would have allowed UAS weighing no more than 4.4 pounds and constructed of frangible materials to operate over any persons, including members of the public not involved in the UAS operations or under a covered structure. In response to comments received, the FAA decided that it needed more industry input before it could officially propose a micro-UAS rule.
According to the FAA, the ARC will discuss and develop recommendations to be submitted to the FAA, and which will form the basis of a separate NPRM on classification and operating rules for micro UAS. Specifically, the FAA’s Charter requests the ARC:
a) Develop recommendations for a performance-based standard for the classification of micro UAS.
b) Identify means-of-compliance for manufacturers to show that unmanned aircraft meet the performance-based safety requirement.
c) Recommend operational requirements for micro UAS appropriate to the recommended performance-based safety requirement.
d) The micro-UAS ARC will develop and submit to the FAA a recommendation report by April 1, 2016.
If enacted, a micro-UAS classification that allows certain UAS to operate over people would remove one of the largest obstacles facing many commercial UAS operators. Generally speaking, with the exception of certain closed-set filming activities10, commercial operators flying
10 In two recently granted exemptions, the FAA expanded the scope of permissible activities (beyond TV and motion picture filming) that may qualify for an exception to the 500 foot setback requirement for unsheltered nonparticipants (i.e., people who are not on the UAS flight crew). In an exemption issued to Kansas State University (KSU) (Exemption No. 13465A), KSU was permitted to operate UAS closer than 500 feet to, but not directly over students participating in flight training. Similarly, in an exemption issued to Cape Productions (Exemption No. 11433A), Cape received authorization to conduct flights closer than 500 feet to, but not directly over, athletes (skiers and snowboarders) being filmed on a mountainside.
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under a Section 333 Exemption (discussed in detail below) are generally required to stay at least 500 feet away from all nonparticipating11 persons unless “barriers or structures are present that sufficiently protect nonparticipating persons from the UA and/or debris in the event of an accident.” Likewise, the FAA’s proposed rule for operating over people in the Small UAS NPRM would prohibit operating UAS over people not involved in the UAS operation.12 This is burdensome for companies who want to be able to fly in the vicinity of employees who are not involved with the operation.
While it will ultimately depend on what recommendations are made by the ARC, and the extent to which the FAA adopts those recommendations, with appropriate performance-based thresholds and operational requirements, the micro-UAS rule could broaden the scope of permissible UAS operations for many commercial industries, including operations for refineries and petrochemical manufacturers.
V. FAA SECTION 333 EXEMPTION PROCESS
As noted above, a Final Rule will likely not be issued by the Federal government until late 2016 or early 2017. Until then, the only legal way for a refinery or petchem company to operate small UAS outdoors is to obtain approval from the FAA in the form of a Section 333 exemption. 13 This involves filing a petition for exemption with the FAA and waiting for the FAA to grant the requested exemption.
This section of the AFPM UAS Tool Kit provides an overview of the exemption process, including a flow chart illustrating the process, as well as updated empirical and case-by-case summary of energy and critical infrastructure companies that have received approvals thus far.
11 Nonparticipating persons are defined as individuals other than the pilot, visual observer, operator trainees or other essential persons.
12 Proposed rule § 107.39 states:
§ 107.39 Operation over people.
No person may operate a small unmanned aircraft over a human being who is:
a) Not directly participating in the operation of the small unmanned aircraft; or
b) Not located under a covered structure that can provide reasonable protection from a falling small unmanned aircraft.
13 In theory, refineries and petrochemical manufacturers could also get approval to fly UAS by obtaining a Type Certificate for UAS as a “special class of aircraft,” a Restricted Type Certificate for “special purpose operations,” or an Experimental Certificate for research and development. In practice, these certificates are burdensome, time-consuming, and costly to obtain. The Section 333 Exemption is therefore the most appropriate avenue for oil and gas companies to legally fly UAS under U.S. aviation law, and provides the most flexibility for businesses looking to fly relatively quickly.
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A. Overview of FAA Section 333 Exemption Process
Section 333 of the FAA Modernization and Reform Act of 2012 (“FMRA”) required FAA to assess whether certain unmanned aircraft could be safely operated within the national airspace system in advance of completion of the required integration plan. Under this authority, the FAA established the “Section 333 exemption” process through which commercial UAS operators may petition FAA for an exemption from FAA regulations in order to fly UAS in a way that is deemed safe. FAA reviews and grants such petition requests on a case-by-case basis.
As of early 2016, approximately 10,000 Section 333 petitions for exemption have been filed in a wide variety of industries. The FAA has granted almost 4,500 of them, including at least 500 for critical infrastructure or oil and gas-related purposes. The FAA’s stated goal is to approve 50 exemptions per week.
By filing a Section 333 petition, a company is communicating to the FAA that it understands that, under current law, UAS are regulated as aircraft. Any aircraft operator must abide by the Federal Aviation Regulations (“FARs”). Certain sections of the FARs make sense as applied to UAS, but many of them do not. For example, the FARs require that an operator keep a safety manual on-board the aircraft. This makes sense as applied to manned aircraft, but not unmanned aircraft. The petition is therefore asking for exemption from the FAR sections that do not apply or would be unduly restrictive to the proposed UAS operation, and assuring the FAA that the operator will maintain an “equivalent level of safety” in its operation as if it were a manned aircraft operation under the FARs.
In particular, a petition includes information on the company, including why that company seeks to use small UAS, and why doing so is in the public interest. For companies wishing to utilize UAS for industrial infrastructure inspection, for example, one would explain to the FAA why operating UAS is safer than relying on a helicopter to hover over critical infrastructure, or asking a person to climb on and/or photograph a flare stack. The petition would identify which UAS the company seeks approval to fly, and how those UAS in particular are safe to operate. The petition would then go into a fair amount of detail explaining the FARs from which the company requires an exemption in order to conduct its small UAS operations14; how the company will ensure an equivalent level of safety for its operations; why the proposed UAS operations will not be a threat to national security; and why the FAA should authorize the proposed small UAS operations under the law.
A Section 333 exemption from the FAA will generally come with a number of conditions, which (most relevant to the refinery and petrochemical industry) include the following:
UAS must be small (under 55 pounds)15;
UAS must be registered with the FAA and identified with an N-number;
14 A typical Exemption approval includes an exemption from the following FARs:14 CFR §§ 61.23(a) and (c), 61.101(e)(4) and (5), 61.113(a), 61.315(a), 91.7(a), 91.119(c), 91.121, 91.151(a)(1), 91.405(a), 91.407(a)(1), 91.409(a)(1) and (2), and 91.417(a) and (b).
15 Note that a Yamaha R-Max vehicle that weighs 218 lbs. was approved by the FAA in May 2015 for precision agriculture operations, and so approvals for larger vehicles are possible.
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UAS must be flown within visual line of sight of the PIC;
Operated at an altitude under 400 feet above ground level (“AGL”);
Daytime UAS operations only and under visual meteorological conditions;
UAS must be operated in a controlled area, over property with permission of the owner / authorized representative, and away from non-participating persons or property (in non-congested areas and at least 500 feet away from non-participating people and structures, unless barriers are present or the owner has granted permission);
A visual observer is required in addition to the PIC;
The PIC must have a manned aircraft pilot’s license;
UAS must yield right-of-way to manned operations and activities at all times;
Within 2-5 miles of certain types of airports and heliports, a company has to get air traffic control permission;
Requirements to notify FAA of all UAS flights not more than 72 hours in advance, but not less than 24 hours prior to the operation so the FAA can post a NOTAM; and
Any manuals and documents required for the safe operation of the UAS must be available to the pilot at the ground control station of the UAS and during the time the aircraft is operating.
B. Recent Updates to Section 333 Process
The FAA has taken three positive steps in recent months to update and streamline the Section 333 exemption process so that it is less bureaucratic and more user-friendly.
i. Summary Grant Approval Process
First, the FAA adopted a “summary grant” process to speed up approvals. Aerial data collection in particular is now handled through the summary grant process, which means that a company applying to use previously-approved vehicles for aerial data collection16 and willing to operate subject to the standard exemption conditions and limitations is eligible for a relatively quick approval. The conditions listed above, and others, apply.17 FAA’s current goal is to issue fifty or more approvals per week through the summary grant approval process.
16 Aerial data collection includes any remote sensing and measuring by an instrument(s) aboard the UA. Examples include imagery (photography, video, infrared, etc.), electronic measurement (precision surveying, RF analysis, etc.), chemical measurement (particulate measurement, etc.), or any other gathering of data by instruments aboard the UA.
17 For a full list of the standard conditions and limitations in a Section 333 exemption, refer to item number 29 in the FAA UAS Guidance Material Index located in Appendix A.
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ii. Pilot’s License Requirement
Second, the FAA has revised the pilot’s license requirement. Previously, a PIC was required to have a full Private Pilot’s license in order to operate a small UAS under a Section 333 exemption. This requirement has become less burdensome as the FAA now only requires at least a Recreational or Sport Pilot Certificate18. With this change, the FAA also no longer requires a third class airman medical certificate—a PIC needs only a valid driver’s license. While this change is an improvement, the manned aircraft pilot’s license requirement for the PIC remains a burden for companies who do not currently employ certificated pilots of manned aircraft.
iii. Blanket Certificate of Waiver or Authorization
Finally, the process has been amended so that the exemption now comes with what is known as a “blanket COA,” or a blanket Certificate of Waiver or Authorization.19 Initially, FAA required petitioners to apply for and obtain a unique COA designating a specific block of airspace within which they would conduct flights, a process that could take 60 days or more. However, in March 2015 the FAA changed course, allowing Section 333 exemption holders operating UAS weighing less than 55 pounds to fly below 200 feet, during daytime, within visual line of sight of the PIC and Visual Observer, and certain distances away from airports or heliports under a blanket nationwide COA. This allowance was recently expanded to include all operations under 400 feet, consistent with the same airspace restrictions and line of sight requirements. A separate COA for specific flights is not needed unless operators wish to exceed the 400-foot altitude restriction or operate near an airport. The blanket COA is geographically unlimited within the U.S.; it generally allows flights anywhere in the country except restricted airspace and other areas, such as major cities, where the FAA generally prohibits UAS operations.
Before streamlining the process, FAA had issued fewer than 50 exemptions. By the end of 2015, over 2,800 exemptions had been issued. This has been a welcome change for industry, and has allowed Section 333 exemption holders to start flying much more quickly. The chart below, published by sUAS News, illustrates the increased rate at which the FAA has been granting exemptions:
18 A student can earn a Sport Pilot Certificate in 20 hours flight time. A Private Pilot Certificate requires a minimum of 40 flight hours. 19 https://www.faa.gov/news/updates/?newsid=82245 .
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333 Exemptions: Sept. 2014 – Feb. 15th 201620
20 Source: sUAS News (February 15, 2016).
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iv. Flow Chart of the Section 333 Exemption Process
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C. Commercial Activity and FAA Enforcement
Without a Section 333 exemption approval, it is currently illegal for a company to fly UAS. The FAA has issued a number of cease and desist letters and notices ordering UAS operators to stop operating UAS for business or commercial purposes unless and until they obtain an FAA authorization to do so. FAA has stated that it has launched a number of investigations of unauthorized UAS operations and has imposed civil penalties in some cases. In October 2015, it announced a proposed fine of $1.9 million against a commercial UAS operator, alleging that the operator had conducted unauthorized commercial operations in New York and Chicago.21
D. Critical Infrastructure and Energy Sector Section 333 Exemptions
As of April 4, 2016, the FAA has approved almost 4,500 section 333 exemptions, including amendments to exemptions. Prior to the FAA’s adoption of the Summary Grant Approval Process discussed above, petitioners typically limited their exemptions to specific UAS use cases, such as powerline or pipeline inspections. As part of the summary grant process, the FAA began grouping most UAS use cases into the broad categories of “aerial data collection” and “closed-set filming.” Because the FAA defined “aerial data collection22” so broadly, it no longer became necessary to define or otherwise limit petitions to specific UAS use-cases, so long as those proposed uses would be considered aerial data collection. As a result, many (if not most) petitioners began asking for a long array of hypothetical UAS use cases, often including energy or critical infrastructure use.
As depicted below, of all the exemptions issued to date, close to 1/3 of them fall into a broad general category of UAS inspection and monitoring activities. We estimate that within this category, approximately 450 involve energy uses or critical infrastructure more broadly. Among these, the vast majority were to conduct routine inspections of buildings and equipment such as pipelines, wind turbines, coal ash ponds, boilers, stacks, absorbers, mines, or solar farms. These applicants made the case to FAA that infrastructure inspection by UAS offered a safer alternative to the company than inspection by helicopters, planes, or people.
21 Federal Aviation Administration, Press Release – FAA Proposes $1.9 Million Civil Penalty Against SkyPan International for Allegedly Unauthorized Unmanned Aircraft Operations, October 6, 2015, https://www.faa.gov/news/press_releases/news_story.cfm?newsId=19555 .
22 Aerial data collection includes any remote sensing and measuring by an instrument(s) aboard the UA. Examples include imagery (photography, video, infrared, etc.), electronic measurement (precision surveying, RF analysis, etc.), chemical measurement (particulate measurement, etc.), or any other gathering of data by instruments aboard the UA.
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Authorizations By Industry*
Inspection / Monitoring
Mapping / Surveying
Film / Photo / Video
Public Safety / First Responders
0 500 1000 1500 2000 2500
*As of March, 2016
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Authorizations by Industry: Projects closely related to energy or critical infrastructure make up approximately 12% of all Section 333 exemptions authorized by the FAA:
General Inspection / Monitoring31%
(e.g., Industrial, Utility Power, Construction Sites, Oil, Gas, Environmental Complaince, Mining, Buildings, Bridges
Energy / Crtitical Infrastructure12%
*Estimate as of Feb. 18, 2016
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Authorized Drones by Manufacturer and Model: DJI remains the clear leader for all categories of UAS operation, including UAS in energy and critical infrastructure projects. The graph below from Drone Industry Insights depicts UAS make/model ranking based on all 333 exemptions as of the end of 2015:
VI. RESTRICTED FLIGHT AREAS
While the potential benefits to the AFPM members of UAS use are great, there is also the concern that unauthorized individuals will fly UAS over their facilities. For example, UAS could be used for surveillance and/or photography of facilities, or personnel or sensitive areas within facilities, which have been identified as critical infrastructure by the U.S. government. Environmental groups could use drones to support citizen suits, or rely on the same information captured by a hobbyist’s drone. A UAS could be armed with explosives and flown into a refinery. Less threatening but nevertheless very concerning, a hobbyist could accidentally crash his or her UAS into a refinery or
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petchem facility, similar to what happened recently when a hobbyist flew his UAS onto the White House lawn.
A. FAA Flight Restrictions
In the example of a UAS being used for environmental surveillance, the relevant threshold question from an FAA enforcement perspective would be whether the environmental group is categorized as a hobbyist or non-hobbyist operator. An environmental group operating its drone to further a lawsuit would likely be considered a non-recreational flight under the FAA’s current understanding, as the flight is not solely for “hobby or recreational purposes.”23 An environmental group would therefore need to have a Section 333 exemption or other authorization to fly from the FAA.
However, legal questions remain as to whether that same environmental group could use a hobbyist drone operator’s video images against a refinery in court. In the news media context, the FAA has indicated that it may be acceptable for newsgatherers to use hobbyist-captured drone images for commercial purposes, so long as the model aircraft operator’s original intention in flying the aircraft was actually recreational.24 As one could imagine, the difficulty with this standard is that may be difficult to prove what the operator’s initial intent was for conducting the flight. In a recent Notice of national policy about aviation-related videos or other electronic media on the internet, the FAA noted: (1) FAA inspectors “have no authority to direct or suggest that electronic media posted on the Internet must be removed”; and (2) “[e]lectronic media posted on a video Web site does not automatically constitute a commercial operation or commercial purpose, or other non-hobby or non-recreational use.”25 However, one could also argue that a company using a hobbyist drone image is a commercial use and therefore unauthorized.
Under FAA rules, refineries along with a number of other sensitive facilities are covered by NOTAM advisory 4/0811. NOTAM 4/0811 does not prohibit flight over the sensitive facility, but says instead: “Pilots are strongly advised to avoid the airspace above, or in proximity to such sites as...refineries, industrial complexes...and other similar facilities……Pilots should not circle as to loiter in the vicinity over these types of facilities.”26 The advisory applies to all aircraft and pilots, including UAS.27
23 See https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf/ . 24 See http://rtdna.org/ploads/files/Williams-AFS-80%20-%(2015)%20legal%20inte3rpretation.pdf . 25 FAA Notice N 8900.292 (effective April 8, 2015).
26 Federal Aviation Administration, FDC Special Notice, Notice to Airmen Advisory 4/0811 (“Power Plant NOTAM. Nuclear, hydro-electric or coal power plants, dams, refineries, industrial complexes, military facilities and other similar facilities are covered by NOTAM 4/0811...In the interest of national security and to the extent practicable, pilots are strongly advised to avoid the airspace above, or in proximity to such sites as power plants (nuclear, hydro-electric, or coal) dams, refineries, industrial complexes, military facilities and other similar facilities. Pilots should not circle as to loiter in the vicinity over these types of facilities.”)27 The Blanket COA that every Section 333 exemption holder receives also includes restrictions on operating near sensitive facilities:
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As a general matter, the FAA’s safety authority preempts any state or local government regulation of aircraft operations.28 However, state and local governments do retain certain authority to limit the aeronautical activities of their own departments and institutions.29 Recently, state and local governments have enacted UAS rules that test the boundaries of this authority. For instance, the Georgia Building Authority passed a resolution banning UAS within five miles of a heliport located atop a parking garage near the State Capitol building in downtown Atlanta.30 Whether a state or local government restriction is preempted by federal law depends on the precise nature of the limitation.
B. Private Entity Restrictions on UAS and Other Protections
In addition to governmental restrictions, some private entities have worked with FAA to establish flight restrictions over certain lands, usually based on security concerns. Airspace over Disney theme parks, for example, is restricted from the surface to 3,000 feet.31 This restriction applies to UAS as well as to manned aircraft. More recently, private entities, like ski resorts, have enacted policies restricting UAS without involving FAA. However, such policies, particularly as they pertain to UAS launched or operated from outside resort boundaries, raise unresolved legal issues over whether a private entity has any right or authority to limit the use of low-altitude airspace over its land, or whether such actions are strictly under the purview of FAA.
Some companies, such as Gryphon Sensors, advertise they provide the ability for companies to detect, track and identify low altitude, small UAS. A group of UAS hardware, operating system, and component makers support www.noflyzone.org -- a sort of “do not call list” website for UAS that allows individuals to insert their address indicating their preference not to have UAS fly over their property. Certain manufacturers have promised to respect the opt-out preferences of individuals and to incorporate those preferences into their product design. Airmap, the top drone airspace software provider, provides geo-fencing data to manufacturers that may include critical infrastructure facilities.
“The operator or delegated representative must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone. Such areas are depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/. Additionally, aircraft operators should beware of and avoid other areas identified in Notices to Airmen (NOTAMS) which restricts operations in proximity to Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, the Washington DC Metro Flight Restricted Zone, Military or other Federal Facilities.” 28 Federal Aviation Administration, Fact Sheet – Unmanned Aircraft Systems (Jan. 6, 2014) available at: https://www.faa.gov/news/fact sheets/news story.cfm?newsId=14153 .29 Id.30 AUVSI Advocacy, “Georgia Building Authority Passes Resolution to Ban UAS Use,” AUVSI (Jul. 7, 2015) available at: http://www.auvsi.org/resourcesold/blogs/blogviewer/?BlogKey=e1804c81-fd40-43a3-0bf3-63b94b615d9d.31 FAA, NOTAM FDC 4/3634, Temporary Flight Restrictions for Special Security Reasons: Disney World Theme Park, Orlando, Florida; Federal Aviation Administration, NOTAM FDC 4/2625, Temporary Flight Restrictions for Special Security Reasons: Disneyland Theme Park, Anaheim, California Near Seal Beach VORTAC (SLI).
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C. Recent Amendments to House Proposed FAA Reauthorization Bill That Would Affect Oil Refineries and Chemical Facilities
On February 3, 2016, Congressman Bill Shuster and Members of the Transportation and Infrastructure Committee and Aviation Subcommittee introduced a new FAA Reauthorization Bill. Officially called the Aviation Innovation, Reform, and Reauthorization (AIRR) Act, the Bill is a six-year reauthorization of the FAA and includes a number of proposals that would affect FAA regulation of UAS. Since being introduced, several key UAS amendments have been added to the Bill, including one amendment that would place new restrictions on the operation of UAS over and near certain chemical facilities and oil refineries.
On February 10, 2016, the following language regarding chemical facilities and oil refineries was approved as a part of a Manager’s Amendment package to the FAA Reauthorization Act. The amendment states, in relevant part:
§ 45509. Chemical facilities and oil refineries
(a) REGULATIONS.—Not later than 6 months after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall issue final regulations concerning the operation of small unmanned aircraft systems in the proximity of chemical facilities and oil refineries.
(b) CONTENTS.—In issuing the regulations, the Administrator shall—
(1) determine, in consultation with the heads of other government agencies that have relevant security information, which chemical facilities and oil refineries will be subject to the regulations;
(2) ensure that the chemical facilities and oil refineries that are subject to the regulations include facilities subject to other security-related laws, unless the Administrator specifically excludes a facility and provides a justification for the exclusion;
(3) establish boundaries for permissible unmanned aircraft operation, both for proximity to and distance above chemical facilities and oil refineries; (4) ensure that the regulations permit owners and operators of chemical facilities and oil refineries to operate small unmanned aircraft on or around the facilities and refineries for business or site operational purposes; and
(5) ensure that the regulations establish civil and criminal penalties for individuals and entities that violate the regulations.
(c) CHEMICAL FACILITIES AND OIL REFINERIES DEFINED.—In this section, the term ‘chemical facilities and oil refineries’ means—
(1) the facilities regulated pursuant to title XXI of the Homeland Security Act of 2002 (6 U.S.C. 621 et seq .); and
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(2) the facilities regulated under the Maritime Transportation Security Act of 2002 (Public Law 107–295; 116 Stat. 2064).
If enacted into law, this amendment to the Reauthorization Bill would benefit AFPM members. The proposed amendment would direct the FAA to establish new restrictions for operating UAS over, and within certain proximities to, chemical facilities and oil refineries. Unlike NOTAM 4/0811 for sensitive facilities referenced above, which is advisory in nature, the proposed amendment if enacted would establish civil and criminal penalties for individuals who violate restrictions on operating UAS over and within certain proximities of chemical facilities and oil refineries. Additionally, the amendment contains a carve-out to allow certain UAS activity by facility owners; as drafted, it would require the FAA to ensure that the restrictions adopted by the FAA still permit facility owners to operate UAS “on or around the facilities and refineries for business or site operational purposes.”
It is unlikely that the House will take up its version of the FAA reauthorization bill in the near future because of other controversial provisions included in the bill. Instead, Congress is likely to provide for a temporary extension of the current FAA authorization for up to three months while the Senate works on its version of the bill. AFPM is working to ensure that the amendment regarding chemical facilities and oil refineries is included in the Senate FAA reauthorization bill.
D. Recent Amendments to Senate Proposed FAA Reauthorization Bill That Would Affect Oil Refineries and Chemical Facilities
On March 9, 2016, Chairman John Thune and members of the Senate Commerce Committee unveiled their own version of FAA reauthorization legislation, the Federal Aviation Administration Reauthorization Act of 2016. During the amendment process, Section 2144, Application for Designation, was added to create a process for applicants to petition the FAA to prohibit or restrict the operation of an aircraft (unmanned or otherwise) over a fixed site facility, including critical infrastructure, oil and chemical facilities. The amendment states, in relevant part:
SEC. 2144. APPLICATIONS FOR DESIGNATION.
(a) APPLICATIONS FOR DESIGNATION.—Not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall establish a process to allow applicants to petition the Administrator of the Federal Aviation Administration to prohibit or otherwise limit the operation of an aircraft, including an unmanned aircraft, over a fixed site facility.
(b) REVIEW PROCESS.—
(1) APPLICATION PROCEDURES.—
(A) IN GENERAL.—The Administrator shall establish the procedures for the application for designation under subsection (a).
(B) REQUIREMENTS.—The procedures shall—
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(i) allow individual fixed site facility applications; and(ii) allow for a group of similar facilities to apply for a collective designation.
(C) CONSIDERATIONS.—In establishing the procedures, the Administrator shall consider how the process will apply to—
(i) critical infrastructure;(ii) oil refineries and chemical facilities;(iii) amusement parks; and(iv) other locations that may benefit from such restrictions.
(A) IN GENERAL.—The Secretary shall provide for a determination under the review process established under subsection (a) not later than 90 days from the date of application, unless the applicant is provided with written notice describing the reason for the delay.
(B) AFFIRMATIVE DESIGNATIONS.—An affirmative designation shall outline—
(i) the boundaries for unmanned aircraft operation near the fixed site facility; and(ii) such other limitations that the Administrator determines may be appropriate.
(C) CONSIDERATIONS.—In making a determination whether to grant or deny an application for a designation, the Administrator may consider—
(i) aviation safety;(ii) personal safety of the uninvolved public;(iii) national security; or(iv) homeland security.
If enacted into law, this amendment to the Senate’s proposed bill would benefit AFPM members. Similar to the amendment restricting UAS operations over certain chemical facilities and oil refineries in the House version of the bill, the Senate’s version would create a process that would allow refiners and petrochemical manufacturers to petition the FAA to prohibit or otherwise limit the operation of UAS over their facility.
The Senate bill also contains preemption language, discussed in more detail under Section VIII(B)(i) below.
VII. THE UAVS FOR ENERGY INFRASTRUCTURE ACT
On March 15, 2016, Senator Jim Inhofe (R-Okla.) introduced the UAVs for Energy Infrastructure Act (S.2684), which would ease some of the regulatory challenges for natural gas and oil pipelines and other critical infrastructure owners and operators. The bill would authorize critical infrastructure operators to use UAS to conduct any activity already permissible with manned aircraft. Senator Inhofe plans to include the bill in the FAA authorization legislation. Among other tasks, the
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bill would permit oil and natural gas pipeline and other critical infrastructure developers, owners, operators, service companies and their agents to use UAS to:
Conduct surveys for construction, maintenance, and rehabilitation;
Comply with safety requirements to periodically patrol rights-of-way to prevent encroachment and unauthorized excavation;
Detect evidence of leaks or other conditions that jeopardize safety;
Prepare for a natural disaster or severe weather event; and
Respond to other incidents outside of company control that may cause material damage to critical infrastructure.
The Inhofe legislation is intended to enhance the integrity, safety and security of all critical infrastructure, including oil refineries and petrochemical manufacturers. If enacted into law, the UAVs for Energy Infrastructure Act would benefit AFPM members.
VIII. ENFORCEMENT AGAINST ROGUE DRONES
The FAA has several civil enforcement tools to assert its authority over “rogue drones” flown by commercial and hobbyist operators alike. The FAA may elect to take no action, pursue an administrative action, or pursue a legal enforcement action. Administrative action may take the form of a warning notice or letter of correction. A warning notice is similar to a traffic warning, in that the FAA retains a record of the event, but declines to pursue further punitive action. A letter of correction outlines required action for the recipient, which if complied with, results in no further action by the FAA. Failure to comply with a letter of correction would elevate the incident to a legal enforcement action. Legal enforcement actions can include either certificate action (which applies only to FAA- certificated individuals) or civil penalties. In the case of certificated pilots, the FAA may take action against that airmen’s certificate, including suspension or revocation. Alternatively, the FAA may elect to pursue legal enforcement action by levying a civil penalty, or fine.
The FAA has indicated that some federal criminal statutes may be implicated by some UAS operations, but that most violations of the FAA’s regulations would be dealt with by administrative enforcement actions. Despite its authority to act against unauthorized and unsafe UAS and model aircraft operations, carrying out enforcement actions has proved challenging for FAA. This may be partly due to difficulty in identifying possible violators. Moreover, with the competing demands on FAA’s limited resources, the FAA is not able to monitor each and every UAS operation, particularly unauthorized ones, by itself. To fill the enforcement gap, FAA has stated it considers state and local law enforcement agencies best positioned to detect and immediately investigate unauthorized UAS or UAS operations. To that end, the FAA has issued a guidance document, “Law Enforcement Guidance for Suspected Unauthorized UAS Operations” (“LEA Guidance”), so that state and local officials are educated about what to do in case of unauthorized (or allegedly unauthorized) flight.
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A. Company Responses to Rogue Drones
So what should a company do if there is evidence that an unauthorized unmanned aircraft has, is, or will be flying over, facility property? As a threshold matter, and despite what many may have heard or read about the so-called Kentucky “Drone Slayer , ” it is never appropriate to try and shoot down or capture an unauthorized unmanned aircraft, even if it is operating over one’s facility/property without permission. Since both commercial and hobbyist UAS are considered to be aircraft, it would technically be a felony act to try and destroy or capture UAS in flight.32 Instead, management should legally gather as much data and information as possible that would facilitate a law enforcement or FAA investigation. Arguably, someone flying directly over people and/or sensitive facilities such as an oil refinery, without the owner’s/operator’s knowledge or consent may be operating in a hazardous or reckless fashion, which is illegal regardless of whether the UAS operator is commercial or hobbyist. If there is evidence that an unauthorized unmanned aircraft will fly over your property, or is currently flying there, the first step should be to contact local law enforcement and advise them of the suspected unauthorized UAS.
While the LEA Guidance referenced above is principally aimed at law enforcement officials investigating suspected illegal UAS flights, the guidance also provides helpful tips for facility owners/operators about how to document suspected illegal flight activity during and after the flight occurrence. For example, helpful information for enforcement purposes includes: descriptive information about the unmanned aircraft, including whether it is a rotorcraft or fixed wing; registration number or markings (if any); time/date; duration over facility or property; approximate altitude; and any visible payload. If done correctly, the evidence collected could provide a basis for future administrative, civil, or criminal sanctions against rogue UAS operators:
Witness Identification and Interviews. After a suspected illegal flight, facility owners/operators should identify potential witnesses and conduct initial interviews, documenting what they observed while the event is still fresh in their minds.
Identification of Operators. It is often difficult to identify the UAS operator. In a future enforcement proceeding against a rogue operator, the FAA will bear the burden of proof, and showing who was actually operating the UAS is critical. Therefore, evidentiary thresholds must be met even when using data or video acquired via the internet. Likewise, the purpose for the operation (such as in support of a commercial venture, to further some business interest, or to secure compensation for their services) may become an important element in determining what regulations, if any, may have been violated by the operation. Facility owners/operators should take steps to try to identify the operator of the UAS. For example, this may involve photographing the operator, the unmanned aircraft itself and, if possible, any observable registration numbers and/or serial numbers on the vehicle.
Viewing and Recording the Location of the Event. Pictures taken in close proximity to the event are often helpful in describing light and weather conditions, any damage or injuries, and the number and density of people on the surface, particularly at public events or in densely populated areas. During any witness interviews, use of fixed landmarks that may be depicted on maps, diagrams or photographs immeasurably help in fixing the position of the
32 See e.g., 18 U.S.C. § 32 - Destruction of aircraft or aircraft facilities .
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aircraft, and such landmarks also should be used as a way to describe lateral distances and altitude above the ground, structures or people (e.g., below the third floor of Building X).
Identifying Sensitive Locations, Events, or Activities. The FAA maintains a variety of security-driven airspace restrictions around the country to help protect sensitive locations, events, and activities through Temporary Flight Restrictions (TFRs), Prohibited Areas, and other mechanisms such as the Washington, DC Flight Restricted Zone (DC FRZ). UAS operations, including Model Aircraft flights, are generally prohibited within these defined volumes of airspace. Facility owners/operators should become familiar with airspace restrictions over and around the facilities’ location.
Notification. Immediate notification of an incident, accident or other suspected violation to one of the FAA Regional Operation Centers (ROC) located around the country is valuable to the timely initiation of the FAA’s investigation. These centers are manned 24 hours a day, 7 days a week with personnel who are trained in how to contact appropriate duty personnel during non-business hours when there has been an incident, accident or other matter that requires timely response by FAA employees. A list of these centers and contact information is attached as Appendix B.
B. State Laws Protecting Privacy and Restricting UAS Use
In addition to FAA enforcement, individual states offer varying levels of protection against misuse of UAS in the form of UAS-specific privacy laws, platform-neutral laws, and common law torts. Over the last few years, many states, including Arkansas, Florida, Idaho, Indiana, Louisiana, North Carolina, Oregon, Tennessee, Texas, and Wisconsin have enacted privacy laws that impact commercial and private use of UAS. Several cities and towns have done the same. And most states and cities are considering legislation or ordinances that would restrict UAS flight.
The laws that have been passed take many different forms. Idaho’s law specifically prohibits UAS from photographing or recording an individual for purposes of publicly disseminating the information without the individual’s written consent. Other laws prohibit the use of UAS to record or survey of private property. Louisiana’s UAS law, for instance, prohibits the use of UAS to conduct surveillance of certain manufacturing facilities. Importantly, most of these state laws have an exception to the general prohibitions on image capture with a person’s or property owner’s consent. Attached as Appendix C to this AFPM UAS Tool Kit is a spreadsheet that provides an overview of these state laws and hyperlinks to the relevant statutory text. Please see the tab labeled “State UAS Laws,” which is based on state law tracking performed by the National Conference of State Legislatures.33 In addition, Syracuse University maintains and continually updates a database of state legislation and legislative proposals relating to UAS here.34
33 Our high-level analysis is based on the information provided by the National Conference of State Legislature’s law summaries. In analyzing any UAS issue in a particular state, it would be important to perform an in-depth analysis of that state’s laws. See http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx, http://www.ncsl.org/research/transportation/2014-state-unmanned-aircraft-systems-uas-legislation.aspx, http://www.ncsl.org/research/transportation/2013-state-unmanned-aircraft-systems-uas-legislation.aspx.
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Additionally, some states have privacy laws that do not explicitly mention UAS but may be broad enough to cover UAS activities. California law, for instance, prohibits the capture of images taken in an offensive manner of an individual engaging in a personal or familial activity.35 Also, most states have general consumer protection laws that prohibit “unfair” or “deceptive” acts or practices, 36 the enforcement of which theoretically could include UAS activities that violate a person’s privacy expectations. Companies also could pursue a misappropriation of trade secrets claim.
In addition to statutory restrictions, there are common law privacy rules that may protect against certain misuse of UAS. For instance, a person is subject to liability for the tort of intrusion upon seclusion, if the person “intentionally intrudes...upon the solitude or seclusion of another or his private affairs or concerns...if the intrusion would be highly offensive to a reasonable person.” 37 In the context of UAS, an individual could claim that aerial images of his or her property captured private details and intruded on his or her seclusion. However, the requirement that the intrusion be “highly offensive to a reasonable person” can be a difficult standard to meet, and courts have rejected the claim that simply looking at another’s property is sufficiently invasive of privacy to meet the standard.38
Below is a brief summary of some of the relevant common law rules that may protect against certain misuse of UAS:
Trespass: A number of states have enacted laws that prohibit the use of drones over private property without the consent of the owner. In some cases the property owner may have a private cause of action to sue the UAS operator for trespass, and in other cases the state might prosecute the operator for use of a UAS in contravention of state law. Under the Restatement of Torts, flights constitute a trespass if (a) the aircraft enters into the immediate reaches of the airspace next to the land, and (b) it interferes substantially with the other’s use and enjoyment of the land.
34 See http://uavs.insct.org/state-regulation/. While the database appears to be fairly comprehensive and current, we have not independently verified the entries. We believe it will be a valuable resource, but we cannot vouch for its entire accuracy and completeness. 35 Cal . C iv . Code § 1708.8; Cal i forn ia Assembly B i l l 2306, (2014) , ava i lab le a t http://leginfo.ca.gov/pub/13-14/bill/asm/ab_2301-2350/ab_2306_bill_20140930_chaptered.pdf. (A person is liable for constructive invasion of privacy when the person “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.”).36 Justin J. Hakala, Follow-On State Actions Based on the FTC’s Enforcement of Section 5 at 9-11 (2008), available at http://www.ftc.gov/sites/default/files/documents/public_comments/section-5-workshop-537633-00002/537633-00002.pdf.37 RESTATEMENT (SECOND) OF TORTS § 652B.38 See e.g., GTE Mobilnet of S. Texas Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 618 (Tex.App.2001) (finding that “the mere fact that maintenance workers...look[ed] over into the adjoining yard is legally insufficient evidence of highly offensive conduct.”).
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Nuisance: Relatedly, a property owner can invoke nuisance doctrine to prohibit unwanted UAS. A nuisance is “an activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to the right of another, or to the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage.” Theoretically, a plaintiff could argue that the use of UAS interferes with his or her normal occupancy of the land by creating noise or flying low enough to create a safety or privacy risk. Depending upon the size of a UAS, consistent use of it on one’s own property could make enough noise to disturb neighboring property owners in the quiet enjoyment of their own property, bringing a potential lawsuit for nuisance. Similarly, a powerful enough UAS could kick up enough dust and dirt, and blow it over to a neighbor’s property. If this occurs regularly, it may potentially interfere with the neighbor’s use of his or her property to the point where the neighbor sues to stop the intrusion.
Privacy: Some states have passed laws or may soon do so that prohibit photography or recording by UAS. Where an individual has a reasonable expectation of privacy (for example, inside a home), a UAS operator that invades that privacy, and publishes the result may be subject to a lawsuit for the invasion under state law.
Stalking and Harassment: Traditional crimes such as stalking, harassment, voyeurism and wiretapping may all be committed through the operation of a UAS.
Reckless Endangerment: Some states may have the crime of Reckless Endangerment, which could be applied to the operation of a UAS under certain circumstances. Under a reckless endangerment scenario, the UAS operator could be charged if he or she operates the UAS in such a manner so as to put him/her or third parties at risk of injury, or has actually caused injury to third parties.
i. Federal Preemption of State and Local UAS Laws
In discussing State laws protecting privacy and restricting UAS use, it is important to understand the overall scope of permissible UAS regulation at the state and local level. As previously noted, the FAA’s safety authority preempts any state or local government regulation of aircraft operations. The FAA recently released new guidance, found in its State and Local Regulation of UAS Fact Sheet, for state and local government authorities as they increasingly seek to regulate UAS.
In response to a flurry of local and state UAS policy proposals, the FAA clarified that FAA maintains regulatory authority over matters pertaining to aviation safety.
This has broad implications for what states and localities are trying to do. Across the country, states and cities are attempting to impose their own registration and operational requirements for UAS—but these may in fact be preempted. For example, the FAA declared that federal registration is the exclusive means for registering UAS for purposes of operating an aircraft in navigable airspace. Therefore, no state or local government may impose additional registration requirements on the operation of UAS in navigable airspace without first obtaining FAA approval. Lawmakers seeing to mandate equipment or training for UAS, such as geo-fencing, would likely be preempted.
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However, the FAA also stated that laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Therefore, the FAA acknowledged that it is within local and state government purview to require their police to obtain a warrant prior to using a UAS for surveillance, or specify that UAS may not be used for voyeurism.
The Senate version of the proposed FAA reauthorization bill also contains strong federal preemption language for state and local laws relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of a UAS, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification. Consistent with powers historically granted to state and local governments, the Senate’s proposed FAA reauthorization bill states that laws (including common law causes of action) relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of UAS would not be preempted if they are not specifically related to the use of a UAS.
IX. FEDERAL GOVERNMENT AND UAS PRIVACY
While states traditionally regulate privacy issues, the federal government has also demonstrated a keen interest in UAS privacy issues. On February 15, 2015, the same day the NPRM was released, the White House issued a Presidential Memorandum on safeguarding privacy, civil rights, and civil liberties in the domestic use of UAS. The Presidential Memorandum directed the Department of Commerce’s National Telecommunications and Information Administration (NTIA) to lead a group of stakeholders, including industry and privacy advocates, to develop “Best Practices” for UAS operators that advance UAS privacy, transparency and accountability. There have been at least five NTIA-hosted meetings thus far, with broad industry participation. Once completed, adoption of the best practices by industry would be voluntary.
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Appendix A: FAA UAS Guidance Material Index
1. Advisory Circular (AC) 21-12C – Application for U.S. Airworthiness Certificate
2. AC 91-57A – Model Aircraft Operating Standards
3. AC Form 8050-88 – Affidavit of Ownership for Non-Type Certificated Aircraft
4. Blanket Certificate of Waiver or Authorization (COA) Issued to Section 333 Exemption Holders
5. Draft AC-107 – Small UAS
6. FAA 333 Exemption Database (current as of December 31, 2015)
7. FAA Fact Sheet on State and Local Regulation of UAS
8. FAA Fact Sheet on UAS (March, 2015)
9. FAA Interim Operational Approval Guidance 08-01, UAS Operations in the National Airspace System (NAS) (March 13, 2008)
10. FAA Law Enforcement Guidance for Suspected Unauthorized UAS Operations
11. FAA Office of Chief Counsel Legal Interpretation Re Operation of UAS as Public Aircraft for Educational Purposes
12. FAA Letter to COA Holders Regarding UAS Registration
13. FAA Pilot Handbook, Chapter 14 – Airspace
14. Huerta (FAA) v. Pirker
15. Grant of Exemption to Astraeus Aerial (No. 11062)
16. Instructions for Registering Civil Aircraft
17. FAA Office of Chief Counsel Legal Interpretation Regarding Media Use of UAS
18. New UAS Registration Interim Final Rule
19. Sporting Events Special Security NOTAM
20. Notice 8900.313 – Education, Compliance, and Enforcement of Unauthorized UAS Operators
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21. Notice JO 7210.891 – Unmanned Aircraft Operations in the NAS
22. NAMIC Report – A Compendium of State Laws and Proposed Legislation Related to UAS
23. Overview of the Small UAS Notice of Proposed Rulemaking (NPRM)
24. Proposed FAA Reauthorization Bill – UAS Provisions Extract
25. Instructions for Registering UAS to LLC
26. Sample FAA COA Application
27. Section 333 of the FAA Modernization and Reform Act of 2012
28. Small UAS NPRM (full version)
29. Standard Conditions and Limitations in a Section 333 Grant of Exemption
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Appendix B: FAA Regional Operation Centers
Western ROC AK, AZ, CA, CO, HI, ID,MT, NV, OR, UT, WA and WY
Central ROC AR, IA, IL, IN, KS, LA,MI, MN, MO, ND, NE,NM, OH, OK, SD, TX and WI
Southern ROC AL, FL, GA, KY, MS,NC, PR, SC, TN and VI
Eastern ROC DC, DE, MD, NJ, NY,PA, VA and WV
New England ROC CT, MA, ME, NH, RI and VT
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Appendix C: State UAS Laws
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