October 23, 2018

Federal Aviation Administration (FAA) Reauthorization Act Paves the Way for Federal Regulation of Delivery Drones

Holland & Knight Aviation Law Blog
Joel E. Roberson | Manuel Ayarra | Jennifer M. Nowak

On Oct. 5, 2018, President Trump signed into law the FAA Reauthorization Act of 2018 (Public Law 115-254), which reauthorizes funding of the FAA through Sept. 30, 2023. This is the first long-term FAA reauthorization since 2012 that has been signed into law. The new reauthorization takes significant steps forward in the continuing integration of unmanned aircraft systems (UAS), or drones, into the national airspace.

Specifically, the bill does the following:

  • Directs the FAA to Authorize Drone Deliveries by October 2019 (Section 348): The Act requires the FAA to update its regulations within one year to allow the use of drones in the U.S. airspace for carriage of private property. This would enable drones to deliver goods to consumers, an action that is currently prohibited under federal regulations. Although the specifics of these new requirements will be determined through the rulemaking process, the statute anticipates that the rulemaking will include performance-based requirements, aircraft airworthiness certification, operation specifications based on the nature and type of flight and operator qualifications.1 The Act also directs the FAA to take into consideration the input of states and local authorities on the potential impact to local communities.2

    Under the current statutory framework, all aircraft operators that carry persons or property for hire must obtain: (1) economic authority from the Department of Transportation (DOT) and (2) safety authority from the FAA. While the Act directs the FAA to move quickly toward enacting these safety regulations, it is important to note that DOT published a notification of procedures on April 30, 2018 announcing the process for unmanned aircraft operators to seek economic authority. It is rumored that several companies already have taken the first steps towards the operation of a commercial drone delivery business.

  • Applies Greater Oversight Over Recreational Drone Operators (Section 349): The new law also brings the use of drones for recreational purposes further under the FAA's regulatory oversight, displacing section 336 of the Modernization and Reform Act of 2012, which prohibited the FAA from promulgating any rule or regulation regarding a model aircraft. While the Act does not require certification for hobbyists, the statute specifies new requirements and operational limitations applicable to recreational operators, such as a requirement to pass an aeronautical knowledge and safety test, and to maintain a maximum altitude of 400 feet during operations.3
  • Requires Development of a Plan for Full Operational Capability of a Unmanned Traffic Management (UTM) Network (Section 376): The Act requires the FAA and NASA to develop a plan to implement UTM services that "expand operations beyond visual line of sight, have full operational capability, and ensure the safety and security of all aircraft." This section requires the FAA to create a process to accept applications from companies seeking to provide UTM services, set safety standards for UTM systems, and demonstrate and validate the performance of UTM systems.
  • Orders the Study of Viable Revenue Streams for the Regulation of Drones (Section 360): The law requires the Government Accountability Office (GAO) to initiate a study within 60 days of enactment on appropriate fee mechanisms to recover the costs of (1) the regulation and safety oversight of unmanned aircraft and unmanned aircraft systems; and (2) the provision of air navigation services to unmanned aircraft and unmanned aircraft systems. This includes revenue for the use of UTM solutions developed by the private sector.
  • Codifies the Drone Integration Pilot Program (Section 351): The law formally provides the FAA with the legal authority to implement the Drone Integration Pilot Program. The Drone Integration Pilot Program was created following an October 2017 Presidential Memorandum from President Trump to Secretary Chao requiring the creation of the program. Federal law codifying the Drone Integration Pilot Program is notable because it formalizes the effort to create a common framework for federal, state, local, and tribal governments to work together to safely integrate drones operations.
  • Requires a Strategy for Coordinating Federal Drone Programs (Section 342(d)): Within 90 days of enactment, the Act requires the FAA to develop a strategy that ensures timely implementation of and avoids duplication between UAS programs carried out by the FAA, including the Low Altitude Authorization and Notification Capability (LAANC), the Drone Integration Pilot Program (IPP) and the UTM Pilot Program (UPP).
  • Authorizes Tribal Governments to Fly Drones as Public Aircraft (Section 355): Until the Act was passed, tribes were not allowed to operate drones as public aircraft for governmental purposes, such as search and rescue or firefighting support. The Act provides tribal governments with the same rights as state and local governments to perform public aircraft operations via drone.
  • Prioritizes Rulemaking on Expanded Operations of Small UAS (Section 370): Citing to potential economic, academic and public safety benefits, Congress specifically highlighted as a "top priority" the FAA's development of regulations to expand the operation of small UASs (currently operating under Part 107) to operations beyond visual line of sight (BVLOS), at night and over persons.

With this statute, the U.S. follows other countries that have taken measured steps towards integrating drones into their economies. Iceland, for example, has already authorized use of drones for a food delivery service that uses GPS coordinates to find routes clear of human and natural obstacles.4 Similarly, Canada recently has approved numerous test flights for delivering medical and food supplies to isolated rural communities,5 while Singapore has authorized commercial operations, subject to the issuance of a permit.6


Notes

1 49 U.S.C. § 44808(b) (2018).

2 Id.

3 Id. §§44809 (6)–(7).

4 Philip E. Ross, Are Delivery Drones Commercially Viable? Iceland Is About to Find Out, IEEE Spectrum (Sept. 26, 2018, 15:00 GMT

5 Drone Delivery Canada Integrates into Controlled Airspace in Moosonee and Moose Factory in Beyond visual Line of Sight Pilot Project, The Virginian Pilot (Oct. 2, 2018)

6 Singapore Drone Laws, UAV Systems International

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