“Open for Business” – FAA Encourages Industry-Driven Innovation in Lieu of Rulemakings at Annual UAS Symposium

The Federal Aviation Administration (FAA) held its third annual UAS Symposium last week in Baltimore, Maryland, in conjunction with the Association for Unmanned Vehicle Systems International (AUVSI).  As in past years, the Symposium brought together stakeholders from across the unmanned aircraft system (UAS) community to collaborate on how to move unmanned operations forward.  The annual Symposium offers a unique opportunity for commercial, hobbyist, and public operators to interact directly with federal policymakers and regulators. This year, there were three key takeaways from the Symposium: (1) a focus on regulatory flexibility in lieu of FAA rulemaking proceedings; (2) the importance of the Administration’s UAS Integration Pilot Program to future UAS policymaking; and (3) the continued challenges posed by Section 336 of the FAA Modernization and Reform Act of 2012 (FMRA), which exempts hobbyists from most UAS regulation.

The Takeaways

First, while the FAA remains committed to drafting rules that will fully integrate UAS into the national airspace, designing and implementing rules that will allow expanded operations cannot happen overnight. As a result, the FAA sought to underscore the flexibility it has under its existing rules to authorize new operations. Using the tagline “Open for Business,” FAA officials emphasized that they have the ability to approve almost any proposed operations—but the key is that interested parties have to be able to make a safety showing to the agency.  FAA also emphasized that these kinds of operations are useful for gathering data that will improve eventual rulemakings.

The agency’s renewed focus on regulatory flexibility and deviation—and its enthusiastic encouragement to parties to bring their proposed operations to the agency—suggest a tacit recognition by FAA that it is simply impossible to adopt rules for expanded operations fast enough to allow the industry to grow and thrive in the short term.  

Second, the agency underlined the importance of the new Integration Pilot Program (IPP) to all of its various rulemaking efforts.  The IPP will allow the FAA to capture data and gain experience with a variety of different regulatory models and approaches.  The IPP is still in the early stages—participants won’t even be publicly announced until spring—so these data flows won’t start happening for a while. But the FAA is clearly hoping that this program will be helpful in moving things forward on a variety of fronts.        

Third, the agency made clear at the Symposium that the statutory restriction on the FAA’s authority over hobbyists in Section 336 of the FMRA must be revisited.  Various FAA officials emphasized that it is simply impossible to meet the concerns of the security community regarding full UAS integration into the national airspace if a large percentage of UAS operations are exempt from Remote ID and other requirements.

Read on for a more in-depth discussion of the current state of UAS regulations and what the FAA’s current direction means for the future of UAS integration.

Current UAS Regulations and the Remote ID Bottleneck

Pursuant to a mandate in Section 333 of the FMRA that the Secretary of Transportation “establish requirements for the safe operation of [UAS] in the national airspace system,” the FAA adopted its Part 107 regulations in June 2016.  Part 107 generally permits the operation of non-hobbyist small UAS, subject to several significant limitations.  Specifically, Part 107 imposes restrictions on altitude, flight visibility and time of day, operations in certain airspace, operations over people, operations beyond visual line of sight, and simultaneous operation of multiple UAS, among others.  Many of these restrictions have been deemed “waivable” by the FAA, which means that the agency will grant relief to operators who can demonstrate that the requisite level of safety will be met by the nonconforming operations.

The FAA’s plans for “full integration” of UAS have long included a series of rulemakings that would broadly authorize various categories of expanded UAS operations.  The first of these, a Notice of Proposed Rulemaking on Flights over People, was slated to be released by the agency in January 2017.  However, concerns from the security community about the inability to identify UAS operators in flight (Remote ID) delayed this rulemaking, which still has yet to be released.  Section 2202 of the FAA Extension, Safety, and Security Act of 2016 required the agency to convene stakeholders to facilitate the development of standards on Remote ID and pass corresponding regulations within two years, but did not preclude the FAA from pursuing rulemakings in other UAS-related areas in the meantime.  The FAA convened an Aviation Rulemaking Committee (ARC) on Remote ID, which provided a report to the FAA last December, but the FAA has yet to initiate a Remote ID rulemaking. 

The FAA has acknowledged that a rulemaking on Remote ID is a necessary prerequisite to any future rulemakings that will allow expanded UAS operations, but made clear during last week’s Symposium that it was not yet prepared to announce any proposed rules on the topic.

A Return to the Case-by-Case Approach

Given the continued delay of future rulemakings, the FAA emphasized at the Symposium that the industry should approach the agency with safety cases for expanded operations, and that the FAA would work with the industry to authorize these operations and collect data for future policymaking.  This is not the first time that the FAA has committed to authorizing UAS operations on a case-by-case basis in the absence of a broader regulatory structure.  The FAA’s early UAS integration efforts, before the promulgation of its Part 107 rules, included multiple opportunities for stakeholders to operate despite the lack of an enabling regulatory framework.  One such effort was the Pathfinder Program, pursuant to which the agency partnered with three entities and authorized them to conduct testing of certain types of expanded UAS operations, including operations beyond visual line of sight and over people.  In exchange for this operating authority, the entities were required to share their data with the FAA.  The FAA made a similar arrangement with UAS operators through seven FAA-sanctioned UAS Test Sites located throughout the United States.  In addition, before the Part 107 framework was in place, the FAA permitted any interested commercial operator to file a petition seeking authorization to operate UAS for non-recreational purposes (“Section 333” petitions).  Each of these opportunities for commercial UAS operations and UAS testing heavily influenced the agency’s resulting Part 107 rules, and likely enabled the FAA to complete the year-long rulemaking process more quickly than it otherwise would have. 

While the FAA’s openness to working with industry and using all of the tools in its regulatory arsenal has allowed some limited commercial UAS operations to take place in the absence of generally applicable regulations, this approach has its downsides.  For instance, the Pathfinder Program was limited to three operators and was not open to all interested parties.  Section 333 exemptions were time-intensive for the FAA to process, and waiting periods would often stretch several months.  Even then, the resulting authorizations were limited to specific aircraft and operating limitations, and entities were required to reapply for modified authorizations.

However, the benefits of the FAA’s approach may outweigh the challenges posed by the lack of enabling regulations.  FAA officials reiterated at the Symposium that the industry may be able to provide answers to UAS integration challenges better and more efficiently than the FAA can.  A salient example of this is the Low Altitude Authorization and Notification Capability (LAANC), an industry-created program that enables UAS operators to obtain streamlined access to controlled airspace.  The FAA announced at the Symposium it would begin rolling out LAANC to different regions in a National Beta Test beginning on April 30, 2018.  FAA officials also suggested that the partnerships with private entities that made LAANC possible could serve as a model for future Remote ID requirements.

The Importance of the Pilot Program

The FAA also signaled at the Symposium that it intends to use data from the nascent UAS IPP to inform future rulemakings.  Announced by the Trump Administration in October 2017, the Pilot Program will allow state, local, and Tribal governments, in partnership with private entities, to obtain authorization from the FAA to conduct expanded UAS operations in order to: “(i) test and evaluate various models of State, local, and tribal government involvement in the development and enforcement of Federal regulations for UAS operations; (ii) encourage UAS owners and operators to develop and safely test new and innovative UAS concepts of operations; and (iii) inform the development of future Federal guidelines and regulatory decisions on UAS operations nationwide.” 

Pursuant to the Executive Order establishing the IPP, the Secretary has until May to select the winning applicants.  Although the FAA did not expressly state that it would wait for the program to conclude before proceeding with future rulemakings, Earl Lawrence of the FAA’s UAS Integration Office indicated that data from the Pilot Program would inform the Remote ID rulemaking.  According to the White House’s Office of Information and Regulatory Affairs, the Department of Transportation plans to release an advanced notice of proposed rulemaking (ANPRM) on issues related to the safe and secure operation of small UAS—including identification technologies—in May of this year.  This suggests that the FAA may intend to collect public comment on the ANPRM simultaneously with data from the Pilot Program, using both to inform a subsequent NPRM on Remote ID.

The Continuing Problem of Section 336

While regulatory exemptions may enable the FAA to authorize expanded operations while its rulemaking proceedings remain in the pipeline, there continues to be a statutory impediment to the establishment of a Remote ID framework and other regulatory measures to allay the concerns of the security community: Section 336 of the FRMA, which divests the FAA of authority to regulate hobbyist UAS operators.

The FAA has already run into trouble attempting to integrate UAS into the national airspace because of Section 336.  In 2015, the agency imposed an interim final rule requiring all UAS operators—including hobbyists—to register their UAS in a central FAA database.  The D.C. Circuit vacated the rules as applied to hobbyists in light of Section 336’s limitation on the FAA’s authority.  In the National Defense Authorization Act of 2017, Congress reinstated these rules as applied to hobbyists, but did nothing to revise Section 336 or otherwise expand the FAA’s authority with respect to hobbyist UAS.

Acting FAA Administrator Dan Elwell made clear at the Symposium that Section 336 “must be revisited” to enable the FAA to move forward with its regulatory plan for UAS integration.  On a panel covering UAS Legislation & Regulation, Jackie Keshian of the Senate Commerce Committee noted that Congress was not “getting rid of” Section 336 any time soon, but was looking at ways to expand FAA control over hobbyists in the FAA reauthorization legislation slated for this year.  For instance, the current Senate draft of the bill includes a directive to the FAA to promulgate consensus safety standards for UAS, and expressly provides that the standards would “be applicable to model aircraft operations.”

Conclusion

To the extent additional rulemakings on expanded UAS operations are not currently feasible at the FAA given the safety and security concerns of various stakeholders, it is beneficial for the industry that the FAA has taken the “Open for Business” approach that it emphasized at last week’s Symposium.  However, questions remain as to whether case-by-case regulatory flexibility is sufficient at this juncture to meet the rapidly expanding needs of the thriving commercial UAS industry.  In any event, commercial operators looking to expand their operations beyond Part 107 in the short term should start thinking about how to build a safety case, and begin a dialogue with the FAA about their proposed operations.