Drone Regulations: United States of America

Yes. The United States Transportation Code defines an “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air”. The Federal Aviation Administration (the “FAA”) has adopted the term “unmanned aircraft” or “unmanned aircraft system” to describe the subset of aircraft that are commonly known as “drones.” The FAA defines an “unmanned aircraft” as an aircraft that is “operated without the possibility of direct human intervention from within or on the aircraft.” (FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 331(8), 126 Stat. 11, 72 (2012), which is referred to herein as the “FAA Modernization Act”, and which has directed the promulgation of regulations specific to UAS). Additionally, the term “unmanned aircraft system” has been adopted by the FAA in recognition of the fact that an unmanned aircraft system includes not only the airframe, but also associated elements necessary for the safe and efficient operation of the aircraft, such as the control station and communication links.

Additionally, some UAS may qualify as “model aircraft.” A model aircraft is an “unmanned aircraft that is – (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes” (FAA Modernization Act § 336(c), which is referred to herein as the “Special Rule for Model Aircraft”).

The FAA regulates registration and operation of aircraft in the national airspace system, including UAS.

Because UAS are included in the definition of “aircraft,” UAS are subject to all of the FAA regulations related to aircraft (found generally at 14 C.F.R. Parts 1 through 1310), unless specifically excluded from a regulation.   In addition, small UAS are also subject to more specific regulations found at 14 C.F.R. Part 48, regarding registration and marking, and 14 C.F.R. Part 107 (“Part 107”), regarding operation. Operators may obtain waivers of certain Part 107 requirements.

It is contemplated that the FAA will issue regulations specific to large UAS; however none have been issued at this time.  As a result, large UAS remain subject to all FAA Regulations pertaining to aircraft.

A further subset of UAS has been identified as “model aircraft.” Under the Special Rule for Model Aircraft, the FAA is specifically prohibited from promulgating rules regarding model aircraft that meet all of the following criteria:

“(1) the aircraft is flown strictly for hobby or recreational use;

(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation.”

Accordingly, UAS which qualify as “model aircraft” are not subject to Part 107’s requirements if they are operated exclusively within the Special Rule for Model Aircraft. Model aircraft are subject to 14 C.F.R. Part 101, which restricts the use of model aircraft in a manner so that such use does not “endanger the safety of the national airspace system.”

Part 107 is limited to small UAS, and thus does not apply to large UAS. The operational requirements of 14 C.F.R. Part 91 (“Part 91”), which are generally applicable to aircraft, apply to large UAS.  However, large UAS by their nature may not be able to comply with all of the requirements of Part 91. Accordingly, operators of large UAS must seek exemptions to such requirements under Section 333 of the FAA Modernization Act (“Section 333”). Section 333 exemptions are granted on a case-by-case basis.

Local governments (e.g., states and municipalities) may also pass laws relating to UAS.  However, it is well established in the United States that federal law is the “supreme Law of the Land,” and that state and local laws may be invalidated if a court determines that federal law preempts the local laws. The United States Transportation Code further clarifies that “[t]he United States Government has exclusive sovereignty of airspace of the United States.” Thus, state and local laws attempting to regulate UAS operations may be preempted by federal law.  Whether or not a state law is preempted by federal law, however, depends upon the particular subject and scope of the state law. Therefore, some state laws regulating UAS may stand in conjunction with federal regulation, while others may be deemed preempted by a federal law regulating the same subject matter. The exact scope of federal preemption of state laws relating to UAS is still developing on a case-by-case basis and is not well settled.

Yes, operators of privately owned UAS and operators of UAS owned by government entities or organizations have different requirements for operations, pilot qualifications, and registration.  These distinctions are discussed further below.

Yes, UAS used for public, leisure, and commercial purposes are subject to different requirements.

Generally speaking, “public aircraft” include aircraft owned by agencies, offices or subdivisions of the United States (other than aircraft of the U.S. Armed Forces), the states, the District of Columbia, or a territory or possession of the United States. UAS owned by such entities (“public UAS”) must be registered with the FAA in accordance with 14 C.F.R. Part 47 (“Part 47”) or 14 C.F.R. Part 48 (“Part 48”) (which registration processes are discussed further below).

Operators of public UAS may operate under Part 107 or under a blanket public Certificate of Waiver of Authorization under Section 334 of the FAA Modernization Act.

UAS operated for recreational or hobby use (“recreational UAS”) are operated “for enjoyment and not for work, business purposes, or for compensation or hire.”

Operators of recreational UAS have two options for operations.  The first option is to fly in accordance with the Special Rule for Model Aircraft (which operational limitations are discussed above). If the operator of a recreational UAS does not operate under the Special Rule for Model Aircraft, the UAS must be registered with the FAA as a “non-modeler,” the operator must obtain a remote pilot certificate, and the operations must comply with Part 107.

All UAS used for commercial purposes (i.e., not solely for recreational or hobby purposes) (“commercial UAS”) must be registered with the FAA under Part 47 or Part 48 (which registration processes are discussed further below).

Commercial UAS may be operated in the following ways:

If the anticipated operations of the UAS do not fall within the Special Rule for Model Aircraft or Part 107, the owner may apply for a Part 107 waiver or a Section 333 exemption.

The current regulations do not distinguish between completely autonomous UAS and remotely-piloted UAS. While current regulations do not specifically prohibit the operation of completely autonomous UAS, certain operational rules effectively limit the opportunity for the operation of completely autonomous UAS. For example, unless permitted by a Section 333 exemption, Part 107 waiver, or other special authorization, UAS operators (or visual observers in communication with the operator) must maintain a visual line of sight of the UAS during all UAS operations. UAS operators may obtain a waiver of this requirement under Part 107. Additionally, Part 107 requires (1) the designation of a remote pilot in command before or during the flight of the small UAS and (2) the remote pilot in command to have “the ability to direct the small unmanned aircraft to ensure compliance with the applicable provisions of [14 C.F.R. Chapter I].” This requirement is not waivable under Part 107.

The FAA’s regulatory framework for UAS operations and registration aims to safely integrate UAS into the national airspace system by promoting safe operations of UAS and increasing accountability for incidents involving UAS by accurately identifying UAS owners. For example, Part 107 sets forth the qualifications for remote pilot certification as well as a requirement that the remote pilot in command inspect the UAS prior to operation to determine that it is in a condition for safe operation. Part 107 also includes restrictions on where small UAS may be operated (e.g., not above non-participating human beings) and requires that small UAS yield the right of way to all other aircraft or other airborne vehicles.

For UAS operated exclusively in accordance with the Special Rule for Model Aircraft, the community-based safety guidelines (such as those of the Academy of Model Aeronautics) would govern these operations.

For UAS operated pursuant to a Section 333 exemption, the exemption details the operational limitations for the UAS to promote safety, including pilot qualifications and maintenance requirements.

With respect to small UAS, Part 107 provides that “[a] person may not operate or act as a remote pilot in command or visual observer in the operation of more than one unmanned aircraft at the same time.” However, UAS operators may obtain a waiver of this requirement. Additionally, an operator’s Section 333 exemption could potentially allow an operator to operate more than one UAS at a time.

Parties who operate small UAS for commercial purposes must obtain a remote pilot certificate to operate a small UAS under Part 107 or be under the direct supervision of an operator with such a certificate. To obtain the certificate, the operator must take an aeronautical knowledge test and complete the FAA Airman Certificate and/or Rating Application. Additionally, operators of commercial UAS are vetted by the Transportation Security Administration. Pilots who hold an Airman Certificate issued pursuant to 14 C.F.R. Part 61 may obtain a remote pilot certificate by completing the FAA’s online course, having a current flight review, submitting the appropriate application, and having the application approved by a certificated flight instructor, designated pilot examiner, an airman certification representative for a pilot school, or the local Flight Standards District Office.

Parties who operate small UAS for recreational purposes are not required to obtain a remote pilot certificate.

With respect to large UAS, the Section 333 exemption will specify the pilot qualifications.

Owners of UAS which are subject to the FAA’s registration requirements must pay the $5.00 registration fee.

The Knowledge Testing Centers that administer the aeronautical knowledge test required for obtaining a remote pilot certificate charge approximately $150.00 for the initial aeronautical knowledge test.

The cost of obtaining and maintaining the license required by a Section 333 exemption (including training) varies depending on the type of license required.

No. UAS may be operated without a Certificate of Airworthiness under Part 107 or pursuant to a Section 333 exemption.

Other than the pilot licensure, operational, and registration requirements discussed herein, there are no additional government barriers to entering the UAS operation services market.

Part 107 does not contain an economic requirement for small UAS operations.

It is possible that a Section 333 exemption may require a certain level of financial strength, but this is determined on a case-by-case basis.

Please see below for discussions regarding nationality of ownership.

Transportation of property by small UAS for compensation or hire is permitted by Part 107 so long as the operator complies with all requirements of Part 107. However, Part 107 provides that no waivers will be issued to allow the carriage of property of another by aircraft for compensation or hire when such operations are from a moving vehicle or aircraft or beyond the visual line of sight. Otherwise, drone transport is generally not permitted without a waiver or exemption.

There are no FAA-promulgated data or privacy protection regulations specifically directed at UAS operations. However, generally applicable federal laws (such as the Fourth Amendment’s protection against unreasonable searches) may affect UAS operations in connection with data and privacy protection. Additionally, local government entities may promulgate laws aimed at data and privacy protection.

On a federal level, there are no regulations specifically addressing UAS control-link interference. However, it is possible that general laws relating to interference with radio signals and communications could come into play.

On a federal level, there are no regulations specifically directed at the manufacture of UAS.

This depends on the purpose and under which authority the UAS is operated.

If the foreign UAS operator is operating in compliance with the Special Rule for Model Aircraft, the foreign operator must complete the online registration process to obtain a “recognition of ownership” from the FAA prior to operating the UAS in the United States.

If the foreign UAS operator is not operating for commercial purposes but the operations are not in compliance with the Special Rule for Model Aircraft, the foreign operator may operate under Part 107 by obtaining a remote pilot certificate from the FAA. This requires the foreign operator to submit an application for foreign air carrier economic licensing.

If the UAS is to be operated for commercial purposes, the foreign owner must register the UAS in the country in which the owner is eligible to register and obtain operating authority from the U.S. Department of Transportation.

On a federal level, there are no regulations specifically directed at the fares or pricing of UAS operations. However, laws generally applicable to consumer protection, price fixing, etc., could apply.

In general, a person may not operate an aircraft (including UAS) in United States airspace unless the aircraft is registered. This includes small UAS which qualify as model aircraft (after the decision in Taylor, model aircraft were not required to be registered with the FAA –See Taylor, 856 F.3d at 1092-, however, Congress reinstated the registration requirement for unmanned aircraft). UAS which are less than 0.55 pounds are not required to be registered with the FAA. If a UAS is required to be registered with the FAA, the failure to so register may result in the assessment of regulatory and criminal penalties.

There are currently two methods available to register a UAS with the FAA: (1) the traditional “paper” registration process used for manned aircraft under Part 47, and (2) the newer online registration system created pursuant to Part 48.

Registration under Part 48

The FAA’s online system is available for most small UAS, regardless of their use. However, online registration is not available:

If one of the above applies, then the owner must register the UAS using the traditional “paper” registration and recordation system under Part 47, which is discussed in further detail below.

When registering a UAS online, the owner must indicate whether the UAS will be used for recreational purposes only or for commercial purposes. If the UAS will be used for recreational purposes only, the owner must indicate whether the UAS will be operated under Part 107 or under the Special Rule for Model Aircraft.  Registration is valid for three years. The Certificate of Aircraft Registration must be available to the operator when operating the UAS and can be available either in paper form or electronically. The online UAS registration system may be accessed at https://faadronezone.faa.gov/#/.

Registration under Part 47

If a UAS is not eligible for online registration, then the applicant must use the traditional “paper” registration process.  The process to register a UAS under Part 47 is similar to the process of registering a manned aircraft with the FAA. An applicant for registration must file certain documents (including evidence of ownership and a registration application) with the FAA Civil Aircraft Registry in Oklahoma City, Oklahoma, and will receive a hard copy Certificate of Aircraft Registration.  As with manned aircraft, UAS registered under Part 47 are assigned N-numbers.

As noted above, if public recording is desired for a UAS’s loan, lease, or ownership documents, the UAS must be registered with the FAA under Part 47.  Accordingly, a lender must perfect its security interest in a UAS by filing the instrument granting such interest with the FAA Civil Aircraft Registry.

The United States FAA Civil Aircraft Registry is an owner registry (rather than an operator registry) for both manned and unmanned aircraft. For UAS registered under Part 47, the documents filed with the FAA (including documents evidencing ownership and any lease or security agreements) are available to the public through the FAA Civil Aircraft Registry.  The Part 48 online registration is not currently searchable by the general public. However, the FAA’s Freedom of Information Act webpage includes a list of small UAS registry enrollments and registrants, which includes general geographic data such as the city, state, and country of the registrants, but not specific personal information such as names or addresses.

As with manned aircraft, to be eligible for U.S. registration, the owner of the UAS must qualify as a citizen of the United States under the United States Transportation Code or a lawful permanent resident. Registrants of small UAS used solely for hobby or recreational purposes must be at least 13 years old, while registrants of small UAS used for commercial purposes must be at least 16 years old.

Part 107 requires the remote pilot in command to ensure that the UAS is in a safe operating condition without setting forth specific maintenance requirements.

UAS operated exclusively within the Special Rule for Model Aircraft may be subject to maintenance or inspection requirements under the community-based safety guidelines.

For large UAS, the Section 333 exemption will detail maintenance and inspection requirements.

Generally, small UAS may be operated up to 400 feet above ground level or within 400 feet of a structure’s immediate uppermost limit, in permitted airspace.  See below for airspace restrictions. Additionally, unless provided otherwise by a waiver or exemption, UAS operators (or a visual observer in communication with the operator) must maintain a visual line of sight of the UAS, unaided by any device other than corrective lenses, throughout the entire flight. UAS operators may request waivers or special authorizations in order to operate in otherwise prohibited areas or beyond a visual line of sight.

Not as a general rule. However, the conditions of a Part 107 waiver or Section 333 exemption could potentially impose such requirements.

UAS operations are generally permitted up to 400 feet above ground level or within 400 feet of a structure’s immediate uppermost limit, in permitted airspace. Some airspace restrictions that commonly affect UAS operations in the United States are discussed below.

UAS operations (including public UAS, recreational UAS/model aircraft, and commercial UAS) are prohibited within the Security Sensitive Airspace defined under UAS NOTAM FDC 7/7282.  The restrictions extend from the surface to 400 feet above ground level. UAS operations are prohibited in areas where a Temporary Flight Restriction (“TFR”) is in effect. A list of active TFRs is available at http://tfr.faa.gov/tfr2/list.html.  There are also special restrictions related to the operation of UAS in and around certain stadiums and sporting events. Additionally, UAS operations are generally prohibited in airspace classified as prohibited, restricted or special use airspace. Special use airspace consists of “airspace of defined dimensions identified by an area on the surface of the earth wherein activities must be confined because of their nature, or wherein limitations are imposed upon aircraft operations that are not a part of those activities or both” (14 C.F.R. § 73.3 (2016)). UAS operators can use a smartphone app called B4UFLY (available in the App Store for iOS and Google Play Store for Android) to determine whether there are any restrictions or requirements in effect at the location where they want to operate their UAS.

Part 107 prohibits the operation of small UAS in Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport without prior authorization from Air Traffic Control. The FAA is in the process of deploying the Low Altitude Authorization and Notification Capability (“LAANC”), which “provides access to controlled airspace near airport through near real-time processing of airspace authorizations below approved altitudes in controlled airspace.” Additionally, operators may obtain a Part 107 waiver in order to operate in such airspace. In situations requiring both a waiver and an airspace authorization, the waiver process must be used in lieu of LAANC.

Recreational UAS operators operating under the Special Rule for Model Aircraft must give notice to both the airport operator and air traffic control tower (if the airport has a tower) for operations within five miles of an airport. Recreational UAS operations are not permitted in Class B airspace around most major airports (e.g., New York, Chicago, Dallas-Fort Worth, Denver) without specific air traffic permission and coordination. This includes heliports and sea-based airports. The airport operator can object to the proposed UAS model aircraft operation if the proposed operation would endanger the safety of the airspace. However, other than airports with Class B airspace, the airport operator cannot prohibit or prevent the model aircraft operator from operating within five miles of the airport.

See above.

To the extent that air traffic control service is available for UAS, UAS air traffic control services are provided by the same ATC system as manned aircraft.

The FAA has not promulgated specific rules, but general tort law, contract law, and other state specific laws may apply.

The FAA has not promulgated specific rules, but general tort law, contract law, and other state specific laws may apply.

Under 14 C.F.R. § 107.9, the remote pilot in command of the small UAS is required to report to the FAA within 10 calendar days of the occurrence of any of the following resulting from a small UAS operation:

Accidents may be reported via an online portal https://faadronezone.faa.gov/#/home. The FAA also encourages witnesses to contact local law enforcement if a UAS incident results in injury or damage to property or if a person observes a UAS being operated recklessly or in a dangerous manner.

Large UAS are subject to the reporting requirements of 49 C.F.R. Part 830, which applies to aircraft generally. Generally speaking, the operator must notify the nearest National Transportation Safety Board office immediately and by the most expeditious means available following an accident or certain incidents such as equipment malfunctions or failure or incapacity of required flight crewmembers.

Upon being notified of an accident by the remote pilot in command, witnesses, or local law enforcement, the FAA may investigate the incident. The investigative process is not as well developed as the process for investigating accidents involving manned aircraft.

Generally speaking, current FAA regulations do not require insurance for small or large UAS. However, a waiver or exemption could require that the owner or operator obtain insurance.

This depends on the type of coverage. Insurers offer a variety of coverages for UAS operations, including on-demand coverage that allows remote pilots to only pay for coverage for specific flights.

We are not aware of any rules regulating state aid to UAS operators or state aid programs specifically targeting the UAS industry. However, it is possible that generally applicable state aid programs could be available to qualified UAS operators, in which case the rules and regulations pertaining to such programs would apply.

Please see response to Question 35, above.

Please see response to Question 35, above.

Please see response to Question 35, above.