United States Drone Policy Stretches Its Wings

February 23, 2015

It has been a busy week for U.S. regulators and policymakers as they continue to wrestle with how to effectively manage the myriad issues related to the growing and evolving use of unmanned aerial systems ("UAS"), or "drones," both domestically and abroad.  Beginning February 15, 2015, the Obama Administration announced a series of new rules and policies affecting the commercial use of drones domestically, as well as the ability of U.S. manufacturers to export both commercial and military drones. 

Federal Aviation Administration Rules

On February 15, 2015, the Department of Transportation’s Federal Aviation Administration ("FAA") released long-awaited proposed rules for regulating the commercial use of UAS ("Proposed Rules").[1] 

In the main, the Proposed Rules would authorize the use of commercial drones in the United States with some of the following restrictions:

  • The drone must weigh less than 55 lbs.
  • Flights must remain under a 500 feet ceiling and travel at speeds of under 100 mph.
  • Flights can only occur in daylight and must remain in the line of sight of the operator or other visual observer at all times.[2]

Operators of a drone must be at least 17 years in age, and must pass an initial aeronautical knowledge test administered at an FAA-approved testing center and be vetted by the Transportation Security Administration.  Once a UAS operator certificate is obtained, the operator would need to pass the aeronautical knowledge test every two years to remain certified.  However, a UAS operator would not be required to obtain a private pilot license.

The Proposed Rules do not address model aircraft and do not affect previously issued FAA guidance related to the recreational use of drones.

While the proposed rules are more lenient in certain respects than had been anticipated by many parties tracking developments in this area, they do not go as far as many in the commercial sector would have hoped, particularly in terms of the line-of-sight restrictions.

The FAA will seek public comment to the Proposed Rules for 60 days from their publication in the Federal Register.  Until publication of the final rules, which many commentators do not expect until late 2015/early 2016, the FAA’s previous, more stringent unmanned aircraft rules remain in place.

Presidential Memorandum on Privacy and Civil Rights

Concurrently on February 15, 2015, President Obama issued a Presidential Memorandum ("Memorandum") to federal department and agency heads establishing policies intended to address privacy and civil liberty concerns in the Government’s use of drones.[3]  The Memorandum sets forth several guidelines that federal agencies utilizing UAS must establish and follow, particularly when concerning the collection, use and retention of personal data, and to safeguard First Amendment protections and other civil rights and liberties.[4]

The Memorandum requires federal agencies, within 180 days, to provide a status report to the President on the implementation of these policies, and, within one year, to publish information on how the public can access these policies and procedures.[5]

Finally, the Memorandum establishes "a multi-stakeholder engagement process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use," and requires the Department of Commerce, National Telecommunications and Information Administration, to initiate the process within 90 days.[6]

Export Policy

Subsequent to the February 15 actions relating to the commercial use of drones within the U.S., the Department of State on February 17, 2015 announced that the U.S. Government was opening up its policy relating to the export of U.S.-origin military drones.[7]  Under this new policy, the details of which remain largely unpublished and partially classified, the Department of State will now allow exports of military drones, including armed drones, to certain foreign governments under strict conditions and on a case-by-case basis after undergoing Department of Defense Technology Security and Foreign Disclosure process reviews.  

Decision-making for authorizing exports of military UAS would follow the guidelines and criteria set forth in the U.S. Conventional Arms Transfer Policy,[8] and authorizations would require end-use certification and monitoring from a purchasing nation that the drones will be used in compliance with international law, including human rights law, and will not be used in unlawful surveillance against their domestic population or unlawful use of force.[9]

The State Department will maintain a strong presumption of denial for exports of UAS that meet certain specifications (UAS that are capable of a range of at least 300 kilometers and are capable of carrying a payload of at least 500 kilograms) as these drones may be restricted by current U.S. commitments made under the Missile Technology Control Regime ("MTCR").  Such exports would only be authorized in "rare occasions," as justified by guidelines contained in the MTCR.[10]

The State Department announcement also notes that the new policy supplements and builds on the controls governing exports of commercial drones found in the Export Administration Regulations and administered and enforcement by the Department of Commerce, Bureau of Industry and Security.  However, at the time of publication of this alert, no further details could be found in Department of Commerce publicly available documents.

   [1]   See Operation and Certification of Small Unmanned Aircraft Systems: Notice of Proposed Rulemaking, 80 Fed. Reg. 9543 (Dep’t of Transp. Feb. 15, 2015), available at http://www.gpo.gov/fdsys/pkg/FR-2015-02-23/pdf/2015-03544.pdf.

   [2]   See FAA, Overview of Small UAS Notice of Proposed Rulemaking (Feb. 15, 2015), available at http://www.faa.gov/regulations_policies/rulemaking/media/021515_sUAS_Summary.pdf.

   [3]   The White House, Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (Feb. 15, 2015), available at http://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua.

   [4]   Id., Sec. 1(a)-(b).

   [5]   Id., Sec. 1(e).

   [6]   Id., Sec. 2.

   [7]   See U.S. Dep’t of State, Fact Sheet U.S. Export Policy for Military Unmanned Aerial Systems (Feb. 17, 2015), available at http://www.state.gov/r/pa/prs/ps/2015/02/237541.htm.

   [8]   The White House, Presidential Policy Directive/PPD-27 United States Conventional Arms Transfer Policy (Jan. 15, 2014), available at http://www.whitehouse.gov/the-press-office/2014/01/15/presidential-policy-directive-united-states-conventional-arms-transfer-p.

   [9]   U.S. Dep’t of State Fact Sheet, supra note 7.

  [10]   Id.

Gibson, Dunn & Crutcher LLP  

Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding the above developments.  Please contact the Gibson Dunn lawyer with whom you usually work, or the authors of this alert:

Judith A. Lee – Washington, D.C. (202-887-3591, [email protected])
William J. Peters – Los Angeles (213-229-7515, [email protected])
David A. Wolber – Washington, D.C. (202-887-3727, [email protected])

Please also feel free to contact any of the following members of the firm’s International Trade Practice Group:

Jose W. Fernandez – New York (212-351-2376, [email protected])
Marcellus A. McRae – Los Angeles (213-229-7675, [email protected])
Alexander H. Southwell – New York (212-351-3981, [email protected])
Daniel P. Chung – Washington, D.C. (202-887-3729, [email protected])
Andrea Farr – Washington, D.C. (202-955-8680, [email protected])
Eric B. Lorber – Washington, D.C. (202-887-3758, [email protected])
Lindsay M. PaulinWashington, D.C. (202-887-3701, [email protected])
Michael Willes - Los Angeles (213-229-7094, [email protected])    
Annie Yan – Washington, D.C. (202-887-3547, [email protected])

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