FAA Issues First Major Unmanned Aircraft Rules Since 2016

Jones Day

Jones Day

The FAA's new regulations provide long-awaited relief for commercial drone users and assurances to the security community.

On January 15, 2021, the Federal Aviation Administration ("FAA") issued two significant final rules: the Remote Identification of Unmanned Aircraft ("UA") rule and the Operation of Small UA Systems Over People rule. These are the first significant UA regulations from the FAA since 2016, and are important steps to increasing and regularizing commercial drone use in the United States.

First, the Remote Identification ("Remote ID") of UA rule seeks to address law enforcement and public interest groups' concerns by providing a way to identify drones and their operators. The rule sets three categories of drones with corresponding broadcast and equipage requirements: (i) standard remote ID, UAs with built-in remote ID technology, subject to no additional operational restrictions; (ii) UAs with separate remote ID modules affixed to the aircraft, which must be flown within visual line of sight of the operator; and (iii) drones without remote ID technology, which must be flown only in FAA-approved Recognized Identification Areas. Remote ID equipped UA must broadcast "message elements" such as the UA's location, heading, and altitude, and serial number or de-identified operator information. Standard remote ID drones must also broadcast the location of the UA's control station. Although this information is primarily intended to assist the FAA and law enforcement, if needed, it is also available to the public. The broadcast IDs would be required to use common unlicensed radio frequencies, such as Wi-Fi or Bluetooth, which could be received by most smartphones and handheld computing devices. Manufacturers would be required to prove the reliability of their systems to the FAA.

In response to cybersecurity and privacy concerns, the final rule eliminates the proposed requirement to connect to, and transmit, message elements through a third-party provided internet-based network, and for that provider to retain the information. While drone operators will not have their personal information revealed via the remote ID technology, there remains lingering privacy and security concerns that the final rule will still result in making the drone location and that of the operator available to the public. Drones flown in the United States must comply with the remote ID requirements by September 2023.

The second rule lessens the regulatory burden on drone users by allowing flights over people, at night, and over moving vehicles—currently only allowed by waivers issued to individual operators. The rule creates four categories for operation over people based on the potential force of impact by the aircraft, and sets corresponding graduated operational boundaries. To allow their drones to be flown over people under this rule, manufacturers would need to demonstrate to the FAA how they calculated impact force, or be issued an airworthiness certificate. For night flights, pilots must complete training and the UA must be equipped with operational anti-collision lights. It also revises remote pilot testing requirements, notably replacing recurrent testing with a continuing education requirement. The operational rules take effect on March 16, and the training rules take effect on March 1.

These rules take important steps forward for the increased use of drones and reducing the regulatory burden on operators that will unlock new and expanded UA use in the United States. However, the FAA still has work to do to implement the rules efficiently and to continue to remove individualized waiver requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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