Pardon Our Dust
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On Oct. 26, President Trump sent a memorandum directing Transportation Secretary Elaine Chao to establish an Unmanned Aircraft System (UAS) Integration Pilot Program by which state, local and tribal governments, in partnership with private sector entities, would help advance the integration of UAS, or drones, into the National Airspace System.
The memo notes that UAS integration will require both private sector and local government involvement in federal efforts to develop and enforce UAS regulations in their jurisdictions. The drone industry, including the Small UAV Coalition, a McGuireWoods Consulting client, applauded the announcement and looks forward to additional guidance on program implementation, expected from the Department of Transportation (DOT) in the coming days.
Under this pilot program, the Secretary is directed to select proposals from governments with the objectives of testing and evaluating government involvement in the development and enforcement of Federal Aviation Administration (FAA) rules on UAS operations, ensuring UAS owners and operators can develop and safely test innovative concepts of operations, and informing future FAA rules and guidelines. The Secretary has until Jan. 23, 2018, to establish the pilot program.
The Department of Transportation intends to publish further guidance in one or more documents in the Federal Register in the near future. Secretary Chao and FAA Administrator Michael Huerta will host a Nov. 2 briefing, during which they may release additional guidance or discuss it in further detail.
While this pilot program is not intended to authorize state or local regulation of UAS operations, it is conceivable that state or local government applicants may be willing to allow drone operations critical to the success of the U.S. commercial UAS industry — including those beyond the visual line of sight (BVLOS) and over people, only within reasonable time, place and manner restrictions.
The Secretary must partner with at least five state, local or tribal governments within 180 days after the pilot program is established. DOT will receive and process applications on a rolling basis until October 2019, and not limit its selection to five government-industry partnerships.
To be eligible for selection, an applicant government must be prepared to begin integration of UAS operations within its jurisdiction within 90 days after the partnership has been established. Selection criteria will include the overall diversity of proposed UAS operations to be conducted; the overall diversity of proposed modes of governmental involvement; community involvement; commercial objectives that serve the public interest; overall economic, geographic and climatic diversity of the selected jurisdictions; and the ability of the applicant to meet one or more of eight policy objectives. The pilot program will terminate within three years unless the Secretary extends it.
To expedite consideration and approval of waivers for BVLOS and other operations, the Secretary will use best practices developed from exemptions granted under section 333 of the FAA Modernization and Reform Act of 2012; waivers granted under Part 107, the FAA’s first regulations for commercial small UAS operations; and the six designated FAA UAS test sites pursuant to the 2012 law. In more than one year after promulgation of Part 107, the FAA has granted only a handful of waivers for BVLOS operations or operations over people. It is unclear whether operations allowed under the pilot program will include package delivery, for which waivers under Part 107 are not permitted. Some clarity may be provided in the additional DOT guidance expected later this week.
This pilot program offers a great opportunity for state and local governments to attract the UAS industry and help innovate and test various types of operations in all environments, including urban. The pilot program also offers an opportunity to UAS companies to partner with state and/or local governments to test and deploy drones in a variety of environments.
State and local governments interested only in placing restrictions on drone operations are not likely to be selected for the pilot program. As noted, however, it remains to be seen whether a state or local government may propose a mix of permitted operations within the parameters of reasonable time, place and manner restrictions, whether already implemented or proposed.
It is also uncertain whether an application that proposes to allow UAS operations under an unmanned traffic management system will be favorably received.
Timelines
Presidential memorandum — Oct. 26, 2017
Additional DOT guidance — expected November 2017
Deadline to establish pilot program — Jan. 23, 2018
Deadline to select first five applicants — 90 days after program establishment (no later than April 22, 2018)
Deadline to consider applications — Oct. 26, 2019
The Emerging Technologies Practice Team can advise states, counties, cities or trial governments that are considering applying to participate in this program. The team is also well-positioned to advise private sector clients interested in partnering with a state, local or tribal government or to assist clients in completing or pursuing an application.