FAA Issues New Regulations for Small Unmanned Aircraft Systems (Drones)

On June 21, 2016, the FAA unveiled its long-anticipated framework for the operation of small unmanned aircraft systems (sUAS) in the National Airspace System, codified in a new Part 107 of the Federal Aviation Regulations. See 81 Fed. Reg. 42064 (June 28, 2016). Under Part 107, commercial sUAS operators will no longer be required to seek case-by-case operating authorization from the FAA. Instead, any person holding a “remote pilot certificate” – obtained by passing an aeronautical knowledge test – will be authorized to operate a sUAS for any purpose, so long as they stay within the parameters established under Part 107. In general, Part 107 requires sUAS operations to:

• Weigh less than 55lbs (25kg);
• Remain within visual line of sight (VLOS);
• Operate during daylight hours, or civil twilight with appropriate anti-collision lighting;
• Not operate over non-participating persons;
• Yield the right of way to other aircraft;
• Remain below the maximum authorized groundspeed (100mph);
• Remain below 400 AGL, or higher if within 400 feet of a structure;
• Maintain visibility of 3 miles from the control station; and
• Not operate in a careless or reckless manner.

Operators may also apply to the FAA for a Certificate of Waiver (CoW) from most of these rules by demonstrating that the proposed operation may still be safely conducted.

Airport sponsors, in particular, should be aware of the following additional aspects of the rule:

• sUAS operators are not required to notify nearby airports of their operation, and there is no general radius within which sUAS flight is prohibited. Rather, Part 107 requires operators to obtain authorization from Air Traffic Control to operate within Class B, C, or D airspace, or within the lateral boundaries of the surface area of Class E airspace designated for an airport. At uncontrolled airports, heliports, and seaports, sUAS must merely refrain from operating in a manner that “interferes with operations and traffic patterns.”
• Language in the preamble to Part 107 strongly suggests that the FAA will consider UAS operations to be aeronautical activities that must be accommodated at federally-obligated airports under the grant assurances: “Like ballooning, skydiving, banner towing, and other non-traditional aeronautical activities, the FAA expects that remote pilots will work with airport operators to identify ways to safety integrate small UAS operations into the ow of other operations at the airport.”
• The FAA declined to include an express statement on preemption, despite requests by several commenters to do so. Accordingly, the ultimate scope of federal preemption, and thus permissible state and local regulation of UAS, remains uncertain and will be settled and tested through future legislation, regulations, and litigation.
• The carriage of property by sUAS is permitted if the total weight of the sUAS and everything attached to it does not exceed fifty-five pounds. These operations must remain within visual line of sight (VLOS) and, if for compensation or hire, may not generally cross state lines.
• An individual manipulating the flight controls of a sUAS need not necessarily possess a remote pilot certificate, as long as they are under the direct supervision of a remote pilot in command and the remote pilot in command has the ability of immediately assuming direct control of the aircraft.

FAA Issues Final Policy on Non-Aeronautical Use of Airport Hangars

On June 15, 2016, the FAA published a notice of final policy on the non-aeronautical use of airport hangars (“Final Policy”). See 81 Fed. Reg. 38906 (June 15, 2016).

In the Final Policy, the FAA describes the standard for permissible non-aeronautical use as any use that does not interfere with aeronautical activities. The Final Policy contains a list of impermissible activities, which include non-aeronautical uses that impede the movement of aircraft movement or access, or displace aeronautical contents of the hangar. Non-aeronautical business or municipal agency functions in hangars are also prohibited without FAA permission, as are storage of items that are in violation of airport rules and regulations, lease provisions, building codes, or local ordinances. Vehicles are permitted to be parked in hangars, but only while the owner is using stored aircraft.

In recognition that temporary non-aeronautical use of hangars may sometimes be appropriate, the Final Policy allows airport sponsors to seek prior blanket approval from the FAA Airports District Office for month-to-month non-aeronautical leases where there is no aeronautical demand for hangars. In addition to blanket approval, the Final Policy also notes that airport sponsors may seek individual prior approval for three-to-five-year interim non-aeronautical leases. In every case where the lease involves non-aeronautical uses, the airport sponsor is required to charge non-aeronautical fair market rates. The Final Policy also suggests that airport sponsors include provisions in hangar leases that require an automatic increase in rates to fair market value in the event that a tenant uses its hangar for non-aeronautical purposes. While all of these provisions provide sponsors with some flexibility, the agency has not established a formal procedure (or, importantly, a timeline) for securing approvals.

In response to criticism from experimental aircraft organizations, the Final Policy clarifies that the FAA considers construction of amateur-built and kit-built aircraft to be an aeronautical use of hangar space.

The Final Policy establishes that the FAA’s hangar policy “neither creates nor constitutes a right to store nonaeronautical items in hangars” and that “[a]irport sponsors may restrict or prohibit storage of nonaeronautical items.” The Final Policy retains language that continues to place airport sponsors in the role of enforcer of the Policy: it states that airport sponsors “should have a program to routinely monitor use of hangars and take measures to eliminate and prevent unapproved non-aeronautical use of hangars.” The Final Policy also states that “[t]he FAA may disapprove an AIP grant for hangar construction if there are existing hangars at the airport being used for nonaeronautical purposes.”

Responding to other comments, the FAA reiterates in the notice and in the Final Policy itself that the prohibition regarding non-aeronautical use of airport hangars applies regardless of the type of leasehold. Even hangars that are privately owned and constructed are subject to the Final Policy.

Perhaps in recognition of the uncertainty and additional responsibilities created by the Policy, the FAA commits to posting frequently asked questions and answers regarding the Final Policy on its website. The Final Policy becomes effective July 1, 2017.

FAA Authorization Extended Until September 2017

On July 13, 2016, Congress voted to extend the authorization of the FAA until September 30, 2017. See H.R. 636, FAA Extension, Safety, and Security Act of 2016. President Obama is expected to sign the bill before the FAA’s current authorization expires on July 15, 2016. The bill extends the agency’s authorization and funding at current levels, and also makes some subtle policy adjustments.

Many of the policy changes are targeted towards drones and flight safety. It is now a federal crime to interfere with emergency response activities through the use of drones, and there are new resources available to combat unauthorized use of drones. The bill also looks to improve pilot mental health screening and training in the wake of several crashes linked to pilot error.

The bill also addresses consumer frustrations with the Transportation Security Administration. The bill requires TSA to expand the PreCheck program and assess the staffing model to increase efficiency. TSA is also mandated to tighten certain access controls for security personnel and perform comprehensive security assessments for all overseas airports serving the United States.

The bill does not contain any discussion or mandate related to the privatization or reorganization of the air traffic control system. While several members of Congress pushed for privatization, reorganization, or at least a study of the topic, these provisions were ultimately not included in the final bill.

The full text of the bill is available here, and a concise summary from the House Transportation Committee is available here.

Safety Management Systems Regulations Forthcoming

The FAA is engaged an agency-wide effort to implement safety management systems (SMS) throughout all Industry functions. The agency’s 2010 proposed SMS rule for airports was greeted with considerable controversy throughout the airport industry. As a result, the FAA pulled back and has been implementing SMS rules internally only. FAA Order 5200.11 “FAA Airports (ARP) Safety Management System,” without public comment in 2010.  The Order requires that the FAA Airports Division conduct safety assessments for most airport actions, including ALP approvals, Part 77 hazard determinations, airspace approvals, construction project approvals, noise compatibility program approvals, and approvals of modification of standards.

On July 12, 2016, the FAA finally announced the release of an Airport Safety Management System Supplemental Notice of Proposed Rulemaking (SNPRM). Among other things, the proposed rulemaking changes the 2010 proposed SMS rulemaking by limiting the types of airports that will be required to comply with the new rules. The SNPRM is scheduled for publication in the Federal Register on July 14, 2016, and comments will be due within sixty days. A copy of the notice of proposed rulemaking is available here. Kaplan Kirsch & Rockwell will be publishing a white paper on the legal issues in the proposed rule and will be assisting clients in preparing comments.

Litigation

Court Decisions

Environmental Analysis. California, et al. v. United States Dep’t of Transportation, 2016 U.S. Dist. LEXIS 66859 (N.D. Cal. May 20, 2016) (addressing a 2003 permanent injunction on new construction at an airport until the sponsor complied with NEPA, and holding that the withdrawal of the original construction plan and submission of an updated plan requiring NEPA compliance warranted lifting of the injunction).

Airport Real Estate. City of Santa Monica v. United States, 2016 U.S. App. LEXIS 8938 (9th Cir. May 16, 2016) (unpublished) (reversing district court ruling that City’s quiet title action for property underlying airport was barred by statute of limitations).

First Amendment. Southwest Airlines Pilots’ Ass’n v. City of Chicago, 2016 U.S. Dist. LEXIS 70266 (N.D. Ill. May 14, 2016) (granting temporary restraining order and allowing pilots’ association to display advertisements critical of airline in terminal facilities).

Equal Protection and Ridesharing Services.  Ill. Transportation Trade Ass’n v. City of Chicago, 2016 U.S. Dist. LEXIS 54598 (N.D. Ill. Apr. 25, 2016) (denying defendant City’s motion to dismiss plaintiff taxi trade group’s equal protection suit, which alleged disparate airport fees and regulations for traditional taxi agencies and Transportation Network Providers).

Ridesharing Fees.  Tadepalli v. Uber Technologies, Inc., 2016 U.S. Dist. LEXIS 55014 (N.D. Cal. Apr. 25, 2016) (approving settlement of a class action suit against ride-sharing service Uber for misrepresentation of “airport tolls” in its rates charged to customers).

Preemption.  Crawford v. Antonio B. Won Pat Int’l Airport Auth. 2016, U.S. Dist. LEXIS 44657 (D. Guam Mar. 31, 2016) (holding that a plaintiff’s unjust enrichment claim was not preempted by federal law where it was based on the airport authority’s alleged improper use of the plaintiff’s ancestral lands).

Flightcrew Rules.  Independent Pilots Ass’n. v. Federal Aviation Admin., 2016 U.S. App. LEXIS 5588 (D.C. Cir. Mar. 24, 2016) (rejecting challenge to FAA’s decision  to exclude all-cargo operations from a final rule setting forth new flightcrew member duty and rest requirements for passenger operations).

Preemption.  Echavarria v. Williams Sonoma, Inc., 2016 U.S. Dist. LEXIS 33980 (D. N.J. Mar. 16, 2016) (holding that the Federal Aviation Administration Authorization Act does not preempt state law governing motor carrier employer-employee relationships).

Environmental Analysis. City of Mukilteo v. United States Dept. of Transportation, 815 F.3d 632 (9th Cir. Mar. 4, 2016) (upholding FAA decision to forgo an Environmental Impact Statement before the commencement of new commercial passenger service).

Preemption. Cent. W. Va. Reg’l Airport Auth., Inc. v. Triad Eng’g, Inc., 2016 U.S. Dist. LEXIS 19816 (S.D. W. Va. Feb. 18, 2016) (holding that where a landslide occurred on airport property, state-law claims of negligence, breaches of warranties, breach of contract, and products liability against defendant engineering firm were not preempted by the Federal Aviation Act).

Bird Strikes.  Friends of Animals v. Clay, 811 F.3d 94 (2nd Cir. Jan. 26, 2016) (upholding a depredation permit issued to an airport operator under the Migratory Bird Treaty Act allowing the operator to “take” birds in “emergency situations”).

Preemption.  Nat’l Fedn. of the Blind v. United Airlines, Inc., 813 F.3d 718 (9th Cir. Jan. 19, 2016) (holding that a class action alleging claims for violation of California’s antidiscrimination laws was preempted by the Air Carrier Access Act and its implementing regulations).

Gate Allocation.  City of Dallas v. Delta Airlines, Inc., No. 3:15-CV-02069 (N.D. Tex. Jan. 8, 2016) (granting preliminary injunction to Delta Airlines to allow continued use of gates at Dallas Love Field following the expiration of certain provisions of the Wright Amendment).

Pending Cases

Aircraft Emissions.  Ctr. for Biological Diversity v. U.S. Environ. Protection Agency, et al., No. 1:16-cv-00681 (D. D.C. filed Apr. 12, 2016) (seeking to compel EPA to promulgate rules regulating greenhouse gas emission from aircraft).

Area Navigation. Citizens Assn. of Georgetown, et al v. FAA, et al., No. 15-1285 (D.C. Cir. Filed Aug. 24, 2015) (challenging RNAV procedures in the D.C. Metroplex area).

Passenger Facility Charges.  Hillsborough Cty. Aviation Auth. v. Michale Huerta, et al., No. 15-1238 (D.C. Cir. Filed July 24, 2015) (appealing FAA’s denial of Passenger Facility Charge authorization to construct an automated people mover at Tampa International Airport).

Access Restrictions.  Friends of the East Hampton Airport, Inc., et al. v. Town of East Hampton, No. 15-2334 (2nd Cir. Filed July 22, 2015) (appeal and cross-appeal of granting and denial of preliminary injunctions of various airport access restrictions).

Area Navigation.  City of Phoenix v. Huerta, No. 15-1158 (D.C. Cir. Filed June 1, 2015) (challenging RNAV procedures in Phoenix).

Area Navigation.  James Lyons, et al. v. FAA, No. 14-72991 (9th Cir. Filed Sept. 26, 2014) (challenging FAA’s approval of RNAV procedures in Northern California).

Gate Allocation.  City of Dallas v. Delta Airlines, Inc., et al., No. 3:15-CV-02069 (N.D. Tex. Filed June 17, 2015) (seeking declaratory judgment regarding gate allocation at Love Field following the expiration of certain provisions of the Wright Amendment).

Gate Allocation.  In the Matter of Compliance with Federal Obligations by the City of Dallas, Texas, FAA Docket No. 16-15-10 (Notice of Investigation served Aug. 7, 2015) (FAA investigation into possible grant assurance violations related to a failure to accommodate air carrier requesting gate space).

Administrative Decisions

Airport Revenue Diversion. Director’s Determination, Chandler Air Serv., Inc. v. City of Chandler, Arizona, FAA Docket No. 16-13-05 (Feb. 19, 2016) (finding that the City may have violated Grant Assurance 25, Airport Revenue, by collecting levied aviation fuel tax and placing it in the City’s general fund and by waiving delinquent tax and interest for operator).

Press Release, City of Cleveland Agrees to Pay $200,000 and Enhance Compliance Systems (May 2016).

Federal Legislation

Airport and Airway Extension Act of 2016, Pub. L. 114-141 (enacted Mar. 30, 2016) (FAA reauthorization for 3.5 months, expiring July 15, 2016).

Federal Rules, Orders, and Guidance

Department of Transportation and FAA

Notice of Final Policy, Non-Aeronautical Use of Airport Hangars, 81 Fed. Reg. 31906 (June 15, 2016).

Notice of Policy, Evaluating Disputed Changes of Sponsorship at Federally Obligated Airports, 81 Fed. Reg. 36144 (June 6, 2016).

Extension to Order, Operating Limitations at New York Laguardia Airport, 81 Fed. Reg. 33126 (May 25, 2016).

Extension to Order, Operating Limitations at John F. Kennedy International Airport, 81 Fed. Reg. 32636 (May 25, 2016).

Withdrawal of Notice of Proposed Rulemaking, Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport, 81 Fed. Reg. 30218 (May 16, 2016) (withdrawing Jan. 8, 2015 Notice of Proposed Rulemaking that would have imposed longer-term limits on scheduled and unscheduled operations at subject airports).

Draft Advisory Circular No. 150/5360-14A, Access to Airport by Individuals with Disabilities (May 6, 2016); see also Opportunity to Comment on the Draft Advisory Circular, 81 Fed. Reg. 27489 (May 6, 2016) (setting comment deadline at June 6, 2016, though comments received after that date may be considered).

Notice of Proposed Policy Amendment and Request for Comments, Passenger Facility Charge (PFC) Program: Eligibility of Ground Access Projects Meeting Certain Criteria, 81 Fed. Reg. 26611 (May 3, 2016).

Compliance Guidance Letter, Interim Procedures for Review of Restrictions on Banner Towing, Powered Parachute, Gliders, Light Sport Aircraft, Parachute Operations, and Ultralights at Federally Obligated Airports (Apr. 25, 2016).

Program Guidance Letter No. 16-01, Wildlife Hazard Site Visits & Associated Follow-up Actions (Apr. 12, 2016).

Notice of Intent, Nondiscrimination on the Basis of Disability in Air Travel; Establishment of a Negotiated Rulemaking Committee, 81 Fed. Reg. 20265 (Apr. 7, 2016).

Change of Newark Liberty International Airport (EWR) Designation, 81 Fed. Reg. 19861 (Apr. 6, 2016) (designating EWR as a Level 2, schedule-facilitated airport effective October 30, 2016).

National Part 139 CertAlert No. 16-01, Operational Safety During Snow Removal Activities (Apr. 1, 2016).

Notice of Final Policy, Guidance on the Procedures and Process to Petition the Secretary Under the Airport and Airway Improvement Act, 81 Fed. Reg. 17756 (Mar. 30, 2016).

Advisory Circular No. 150/5100-20, Guidance on the Extraction of Oil and Gas at Federally Obligated Airports (Mar. 23, 2016).

Final Policy, Petition of the Aircraft Owner and Pilots Association (AOPA) To Amend FAA Policy Concerning Flying Club Operations at Federally Obligated Airports, 81 Fed. Reg. 13719 (Mar. 15, 2016).

Required Contract Provisions for Airport Improvement Program and for Obligated Sponsors (eff. Jan. 29, 2016).

Notice of Proposed Rulemaking, Stage 5 Airplane Noise Standards, 81 Fed. Reg. 1923 (Jan. 14, 2016)

Advisory Circular No. 70/7460-1L, Obstruction Marking and Lighting (eff. Dec. 4, 2015).

Reports, Studies, and Articles

U.S. Department of Transportation

Office of the Inspector General, Audit Report: FAA Reforms Have Not Achieved Expected Cost, Efficiency, and Modernization Outcomes, Report No. AV-2016-015 (Jan. 2016).

U.S. Government Accountability Office

United States Government Accountability Office, Federal Aviation Administration: Preliminary Observations of Potential Air Traffic Control Restructuring Transition Issues, GAO-16-386R (Feb. 2016).

United States Government Accountability Office, Transportation Security: Status of GAO Recommendation on TSA’s Security-Related Technology Acquisitions, GAO-16-176 (Feb. 2016).

Transportation Research Board, Airport Cooperative Research Program

Legal Research Digests

Legal Research Digest 27: The Fourth Amendment and Airports (Apr. 2016).

Reports

Report 156: Guidebook for Managing Compliance with Federal Regulations: An Integrated Approach (May 2016).

Report 154: Water Efficiency Management Strategies for Airports (May 2016).

Report 151: Developing a Business Case for Renewable Energy at Airports (Apr. 2015).

Report 148: LED Airfield Lighting System Operation and Maintenance (Dec. 2015).

Report 149: Improving Ground Support Equipment Operational Data for Airport Emissions Modeling (Dec. 2015).

Report 152: Evaluation Methods for Determining Interior Noise Levels Used in Airport Sound Insulations Programs (Mar. 2016).

Report 153: Guidebook for IROPS Stakeholder Communication & Coordination (Mar. 2016).

Synthesis Reports

Synthesis 71: Airport Safety Risk Management Panel Activities and Outcomes (May 2016).

Synthesis 70: Building Information Modeling for Airports (May 2016).

Synthesis 69: Airport Sustainability Practices—Drivers and Outcomes for Small Commercial and General Aviation Airports (Apr. 2016).

Web-Only Documents

Web-Only Document 27: Methodology to Develop the Airport Terminal Building Energy Use Intensity (ATB-EUI) Benchmarking Tool (Apr. 2016).

Web-Only Document 26: Methodology to Improve AEDT Quantification of Aircraft Taxi/Idle Emissions (Mar. 2016).

General Articles

Delta Airlines, Inc., The Costs of Privatizing Air Traffic Control and How it Will Impact Airline Travelers (Feb. 1, 2016).

Unmanned Aircraft Systems

Decided Cases

Electronic Privacy Ctr. v. FAA, 821 F.3d 39 (D.C. Cir. 2016) (dismissing challenge to FAA’s decision not to promulgate privacy-specific drone regulations).

Pending Cases

Taylor v. Huerta, No. 15-01495 (D.C. Cir., opening brief filed June 14, 2016) (petition for review of various FAA rules and regulations related to hobbyist use of drones as violating the Administrative Procedure Act and other federal statutes).

Boggs v. Merideth, No. 3:16-cv-6-DJH (W.D. Ky. filed Jan. 4, 2016) (complaint alleging the defendant shot down plaintiff’s unmanned aircraft while over defendant’s property).

FAA Rules, Orders, and Guidance

Final Rule, Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42064 (June 28, 2016).

Legal Interpretation Memorandum, Educational Use of Unmanned Aircraft Systems (UAS) (May 4, 2016).

Notice of Availability of Part 48 Registration System for FAA Exemption Holders, Registration of Small Unmanned Aircraft Systems Operated Under Exemptions Issued by the FAA, 81 Fed. Reg. 23544 (Apr. 21, 2016).

Reports, Studies, and Articles

Anastasia Telesetsky, Navigating the Legal Landscape for Environmental Monitoring by Unmanned Aerial Vehicles, 7 Geo. Wash. J. Energy & Envtl. L. 140 (Spring 2016).

Press Release, FAA Administrator Makes Two Major Announcements (May 4, 2016) (announcing formation of drone advisory committee and publication of educational use interpretation memorandum).

Troy A. Rule, Drone Zoning, 96 N.C.L. Rev. ___ (forthcoming 2016).

Bart Jansen, State drone laws could clash with federal drone policy, USA Today (Mar. 13, 2016).

A PDF of this Semi-annual Airport Law Digest is available.