The FAA’s Notice of Proposed Rulemaking on Small UAS has been under review before the White House’s Office of Information and Regulatory Affairs (“OIRA”) since October 25. This review is the last step before the NPRM is released to the public for notice and comment. Late this afternoon, the brief summary of the proposed rule on the OIRA website underwent an unannounced change, and the following clause was modified, with the newly added language we have highlighted below:
The FAA is proposing to amend its regulations to adopt specific rules for the operation of small unmanned aircraft systems (sUAS) in the National Airspace System (NAS). These changes would address the classification of sUAS, certification of sUAS pilots and visual observers, registration of sUAS, approval of sUAS operations, and sUAS operational limits. The NPRM also proposes regulations for all sUAS, including operating standards for model aircraft and low performance (e.g., toy) operations, to increase the safety and efficiency of the NAS. The FAA and sUAS community lack sufficient formal safety data regarding unmanned operations to support granting traditional, routine access to the NAS. This proposed rule would result in the regular collection of safety data from the user community and help the FAA develop new regulations and expand sUAS access to the NAS.
Yes, you read that right: the NPRM is going to propose operating standards for model aircraft and toy operations, in addition to commercial use of UAS. It will be interesting to see how the FAA positions these new regulations in light of the Congressional carve-out for hobbyists. In 2012, Congress added the following language to Section 336 of the FAA Modernization and Reform Act:
Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft . . . .
That statute also goes on to state that “nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” It was on this basis that the FAA stated that it will apply the prohibition against “careless or reckless operation of an aircraft under 14 C.F.R. § 91.13 to model aircraft and would bring civil penalty actions against unsafe operators.
It is possible that the reference to “standards for model aircraft” could be a system to create additional voluntary standards and not formal regulatory requirements. On the other hand, the summary also makes ominous reference to a lack of information that would warrant “traditional, routine access to the NAS,” implying that something more drastic is possible. Whichever it is, the new language makes clear that the federal government views this rulemaking as the first step in an iterative UAS policymaking process on model aircraft. A key goal is the regular collection of safety data from the user community so that the FAA can continue to develop refine the regulations and expand access to the national airspace over time.
If you’re a hobbyist or hobbyist organization, now is the time to get involved. While the rule is under review at OIRA, stakeholders have a continuing opportunity to meet with the White House to talk about its interests in the rule. And once the FAA is published, the entire UAS community will have the further opportunity to offer comments. Given the intense interest, we trust the FAA will receive upwards of 100,000 comments.
We can help. Contact us to make your voice heard.
(Originally posted January 28, 2015)