The FAA has continued to publish a variety of new opportunities and restrictions for Unmanned Aircraft Systems (UAS) pilots after the waves of actual and threatened shutdowns receded. At the end of January, Megan Herr described the FAA’s proposals for allowing UAS operations at night, and operations over people without needing a Part 107 waiver. The public comment period on these proposed rules ends on April 15, 2019.

On February 13th and 15th the FAA published two important restrictions for UAS operations.

Additional No-Fly Zones

On February 15, 2019 the FAA expanded the geographic scope of sensitive security facilities above which UAS flights are prohibited under its Special Security Instructions, codified in 14 C.F.R. § 99.7. The 41 new facilities include federal prisons, correctional centers and military installations in various states.

The facilities were added under Notice to Airmen (NOTAM) 9/2586. The new NOTAM must be read in conjunction with NOTAM 8/3277 that describes the enforcement penalties for violating the boundaries of any of the numerous sensitive security areas.

On the bright side, because UAS flights tend to be “localized” in nature, the FAA’s Data Delivery System mapping tool is quite helpful to determine whether your planned UAS flight is located within a “no-fly zone” surrounding a sensitive security facility or an airport boundary.

External Display of UAS Registration Number

On February 13, 2019 the FAA published an Interim Final Rule that affects all UAS operators and goes into effect on February 25, 2019, and requires all UAS owners to display the FAA-issued registration number on the outside surface of the aircraft.

Yes, you read that correctly – you have twelve calendar days from the date on which the FAA published the interim final rule to comply!

The FAA’s justification for this change is to address security concerns of first responders that explosives might be concealed in a compartment where the registration number had been kept. The change is intended to enable first responders to see the registration number without handling the device.

The key difference from the previous requirement is that the registration number must be written on the exterior of the aircraft. The interim final rule does not change the existing requirements on the method of marking the aircraft (it must be legible for the duration of the flight), nor does it specify the location for the registration number.

Although the interim final rule goes into effect on February 25, 2019, the FAA is accepting public comments on the rule. The deadline to submit comments regarding the placement of the aircraft’s registration number on an external surface is March 15, 2019.

What Happens Next with these Restrictions?

No Fly Zones — When it comes to verifying the locations of sensitive security facilities and airport boundaries, no one can dispute the benefits of the DDS tool. However, is the federal government inadvertently opening the door for state and local flight restrictions? It is possible that the federal government’s adoption of localized flight restrictions around particular facilities and the display of these restrictions on the FAA’s mapping tool will open the door for state and municipal UAS flight restrictions.

Conceivably, state and local governments could argue that local flight restrictions could be integrated into the National Airspace System in order to protect community privacy interests and not create a conflict with (or disruption of) the federal aviation system.

Normally our federal statutory and regulatory systems are intended to prevent patchwork rules, but the FAA is taking us in that direction. What is to stop a city or town from filling in the gaps the FAA has left regarding privacy regulations or school safety by imposing minimum UAS altitudes over residential property, unauthorized UAS flights over schools, and adding those rules to the FAA’s mapping too?

External Markings — The intent behind the external markings rule is laudable, but the lack of specificity behind the placement of the markings may not achieve that intent. If a UAS owner only marks the top or bottom of the device, there is a strong probability that a first responder who discovers an unaccompanied, wayward UAS will have to pick up or turn over the device to read it.

From a practicality standpoint, the interim final rule may simply be a Band-Aid solution that will be subsumed by the FAA’s Remote ID proposed rule, which the FAA hopes to promulgate this summer. The FAA has caught a tiger by the tail when it comes to mandating the retrofit of more than one million registered UAS devices with Remote ID hardware.

Nevertheless, the manned aviation community, including US Senator Tammy Duckworth (a former Army helicopter pilot), recognizes that a Remote ID solution is needed for safety of flight purposes. The “big sky little airplane” theory is not tenable with millions of UAS devices in the air.

Contact Erik Dullea for more information regarding Husch Blackwell’s UAS team .