Critical Infrastructure Companies Approved to Use Unmanned Aircraft Systems

Electric and gas utilities, oil and gas companies, and third party vendors are among those that have obtained approval from the Federal Aviation Administration (FAA) for Unmanned Aircraft Systems (UAS) to support a variety of commercial operations, including aerial inspections and monitoring of transmission and distribution lines, substations, pipelines, platforms, communications towers and other facilities. As of the end of July 2015, the FAA has granted over 940 requests for businesses to use UAS to perform commercial operations, including almost 80 requests relating to inspection and monitoring of critical infrastructure. As critical infrastructure companies are increasingly exploring UAS to support infrastructure asset management and inspection, it is critical that they understand the laws and regulations that govern UAS and that they develop policies to address privacy, safety, liability, and other issues.

Background

Pursuant to the FAA Modernization and Reform Act of 2012, the FAA has proposed rules that will enable businesses – including critical infrastructure industry companies – to routinely and more easily operate UAS for commercial operations under certain conditions. Under the proposed rules, small UAS that are less than 55 lbs. will generally be allowed so long as they observe certain height and speed restrictions, are limited to daytime operations, maintain a visual line-of-sight with the UAS operator or “visual observer,” and comply with certain other conditions. The FAA has also proposed various maintenance, inspection, and recordkeeping requirements for commercial UAS operations.

Until those rules are finalized, companies may apply to the FAA on a case-by-case basis for an exemption to operate UAS for commercial operations. In order to apply for an exemption, an applicant must describe the intended purpose and proposed operating parameters of the UAS, explain what procedures will be implemented to ensure that the UAS operation is safely conducted, and outline the specific FAA rules that require exemption.

Companies that obtain an exemption may then operate the UAS for specific purposes under the conditions granted by the FAA. According to the FAA, the standard period for obtaining an exemption is approximately 120 days. However, the FAA announced in April 2015 that it had implemented a program to expedite requests in certain situations where it has already granted a previous exemption similar to the new request.

NTIA Meetings

Pursuant to a Presidential Memorandum issued in February 2015, the National Telecommunications and Information Administration (NTIA) is engaging in a multi-stakeholder process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS. The NTIA recently announced that it will convene a series of meetings to discuss these issues.

The first NTIA meeting is scheduled for August 3, 2015, with additional meetings to be held in September, October, and November. The NTIA will work with stakeholders to identify safeguards that mitigate privacy challenges regarding the collection, use, retention, and dissemination of data collected by commercial use of UAS. The NTIA will promote transparent UAS operations, such as developing policies that identify the entities that operate particular UAS, the purposes of UAS flights, and the data practices associated with UAS operations. Finally, NTIA will assist stakeholders to develop practices for accountable UAS operation, such as by recommending rules regarding oversight and privacy training for UAS pilots and policies for how companies operate UAS and handle data collected by UAS. Accountability programs could also include audits, assessments, and internal or external reports to verify UAS operators’ compliance with their privacy and transparency commitments.

Critical infrastructure companies that use or are considering UAS to support their operations should participate in or monitor the NTIA multi-stakeholder process so that they can assist in developing best practices and ensure that their company’s operations are consistent with any standards or code of conduct that is developed through this process.

Next Steps

The FAA has indicated that it is working as quickly as possible to finalize its small UAS rules, although the significant number and complexity of the comments will affect the timeline for the final rules. Once those rules become final, critical infrastructure companies will be able to use small UAS for infrastructure asset management and inspection under specific conditions without having to apply for an exemption.

However, the FAA has acknowledged that it will likely need to develop new or revised regulations, procedures, and standards to accommodate advances in technology that will enable UAS to operate with increasingly sophisticated capabilities, such as being able to operate without a visual line of sight and “sense and avoid” capability that will enable UAS to automatically detect and avoid collisions with other manned and unmanned aircraft. In May 2015, the FAA announced a partnership with industry stakeholders to explore the next steps in UAS operations, such as extended visual line-of-sight operations in rural areas. In the meantime, the NTIA will continue to work through the multi-stakeholder process and it envisions it will ultimately publish a code of conduct in late 2015 or early 2016.

For more information, please contact Kevin Cookler at 202-416-6749, E: kcookler@lermansenter.com or David Rines at 202-416-6751, E: drines@lermansenter.com. Additional information regarding UAS may be found on the FAA’s website at https://www.faa.gov/uas/.