Insights

Lawmakers continue to negotiate the 2021 National Defense Authorization Act (“NDAA”), which could prohibit federal procurement or operation of certain foreign-made drones, including those from China, due to national security concerns.  Meanwhile, some executive agencies are moving forward with agency-specific restrictions on use of federal funds for drone operations that rely on Chinese-made aircraft.  The most recent updates come from the Department of Interior (“DOI”) and the Department of Justice (“DOJ”).

Last week, the House of Representatives passed a bill that would ban some U.S. Federal agencies from purchasing drones and drone components manufactured in certain foreign countries. The “Drone Origin Security Enhancement Act” would prevent Department of Homeland Security (DHS) agencies from purchasing drones based solely on their country of manufacture. A similar bill currently in the Senate, though not as far along as the House bill, would prohibit such procurement by all government agencies. The proposed bills prohibit the procurement of drones manufactured in any nation designated by the Department of Commerce, the Director of National Intelligence or the Secretary of Homeland Security as a national security threat. The main target is China, home of major manufacturers of drones and drone components alike. 

The FAA recently released a Notice of Proposed Rulemaking for Remote Identification of Unmanned Aircraft Systems. The long-awaited rule will require almost all unmanned aircraft systems (“drones”) flying in U.S. airspace to transmit certain identifying information to other aircraft and to people on the ground. Remote ID is an important step in building a robust air traffic system for UAS. The identity and location information will promote safety by providing increased situational awareness for manned and unmanned aircraft and quick access to crucial data for law enforcement and public safety officials. Because implementation of Remote ID is essential to enabling complex drone operations, such as operations beyond visual line of sight (BVLOS), industry stakeholders should carefully review the proposed rule (available here) and consider commenting on the new requirements. Comments to the proposed rule are due to the FAA by March 2, 2020.

The United States Postal Service (USPS) announced last week that it will explore the use of Unmanned Aircraft Systems or “drones” to deliver mail and to collect data. Through a Request for Information (RFI) posted on FedBizOps, USPS is seeking input from interested drone operators and developers to inform a future solicitation for drone delivery and data collection services.

Last week, the University of Alaska, in partnership with Iris Automation, Skyfront, Echodyne, and Alyeska Pipeline Service Company, completed the first-ever beyond-visual-line-of sight (BVLOS) drone flight without a ground-based visual observer. This successful flight is a breakthrough in both regulatory and operational respects and could pave the way for expanded commercial drone operations in the United States for a variety of drone users, including the energy, agriculture, and insurance industries. The mission also illustrates the gathering momentum for complex BVLOS operations; the FAA’s approval for the University of Alaska comes just seven months after insurer State Farm became the first operator to receive FAA approval for nationwide BVLOS flights using a visual observer.

Unmanned aircraft systems, or drones, have become increasingly prevalent in the energy industry, as highlighted in a recent North American Electric Reliability Corporation (NERC) Lesson Learned. Energy companies can improve safety and increase productivity by using drones to perform high-risk or tedious tasks such as major storm damage surveys; line repair; substation/switching station and line inspections; power plant, wind farm, and gas pipeline inspections; and infrastructure security. However, energy industry participants interested in such drone use must be aware of the Federal Aviation Administration’s (FAA) extensive regulation over their operation. 

Yesterday, the Federal Aviation Administration (FAA) posted in the Federal Register the Notice of Proposed Rulemaking for Operations of Small Unmanned Aircraft Systems over People and the Advanced Notice of Proposed Rulemaking for Safe and Secure Operations of Small Unmanned Aircraft Systems. The substance and implications of the draft rules were explored in previous client alerts and can be accessed here and here. Comments to both notices are due April 15, 2019.

Last week, the FAA moved forward with rulemaking on expanded drone operations with the release of several key documents: (1) a Draft Notice of Proposed Rulemaking (NPRM) for Operation of Small Unmanned Aircraft Systems over People, (2) a Draft Advanced Notice of Proposed Rulemaking (ANPRM) for Safe and Secure Operations of Small Unmanned Aircraft Systems, and (3) the announcement of the Unmanned Traffic Management (UTM) Pilot Program. This alert, the second of two, addresses the Draft ANPRM for safety and security and the UTM Pilot Program. The first alert, which addressed the Draft NPRM, can be found here.

Last week, the FAA moved forward with rulemaking on expanded drone operations with the release of several key documents: (1) a Draft Notice of Proposed Rulemaking (NPRM) for Operation of Small Unmanned Aircraft Systems over People, (2) a Draft Advanced Notice of Proposed Rulemaking (ANPRM) for Safe and Secure Operations of Small Unmanned Aircraft Systems, and (3) the announcement of the Unmanned Traffic Management (UTM) Pilot Program. This alert, the first of two, addresses the Draft NPRM for operations over people.

On November 28, the International Organization for Standardization (ISO) released the first ever draft global standard for unmanned aircraft systems (UAS) operations. The standard, titled Draft International Standard for Unmanned Aircraft Systems Operations, represents an important step in standardizing UAS operations around the world. Although ISO will publish the standard for global adoption starting in 2019, compliance is not mandatory. The standard is nevertheless important because the Federal Aviation Administration (FAA) and sister agencies worldwide will likely use it as a foundation for future rulemaking. Operators, service providers, and manufacturers should thus strongly consider early adoption of the standard in preparing for forthcoming regulation.

Last week the National Academies of Sciences, Engineering, and Medicine released a study commissioned by the Federal Aviation Administration to assess the risks of, and provide recommendations for, integration of unmanned aircraft systems (UAS) into the national airspace. The report focused on the FAA’s current processes for approving UAS operations, limitations to these processes, and alternative approaches. The study was prepared by a committee that included high-level representatives from both academia and industry.

As part of Crowell & Moring’s “First 100 Days” podcast series, Marc Warren, chair of the firm’s Aviation Group, and Steve Seiden, counsel in the group, sit down to discuss how the Trump Administration might affect the regulatory climate for commercial drones. Marc previously served as the deputy chief counsel of the Federal Aviation Administration, and Steve also served the FAA in various capacities, including a one-year assignment as special counsel to the agency’s chief counsel.

The drones are coming, albeit at the pace of government. For many years now, so-called unmanned aircraft systems (UAS or drones) have been used by governmental agencies to support law enforcement activities, search and rescue operations, border patrol missions, humanitarian aid efforts, and a host of other critical public functions. And although UAS have generally not been permitted to be used for commercial purposes in the United States, it is a near certainty that in the not-so-distant future UAS will be widely used by private American firms to support countless commercial activities, including 3-D mapping, aerial surveys, facility inspection, precision agriculture, security, small package delivery, and film production. UAS will be in high demand across a diverse array of industries due to their unique ability to increase human potential and productivity, allowing dangerous, dull or difficult tasks to be performed more safely and efficiently than with manned aircraft – or no aircraft at all.