October 27, 2017

On October 25, President Donald Trump signed a Presidential Memorandum directing Transportation Secretary Elaine Chao to establish a pilot program that will explore new commercial, public, and recreational applications of unmanned aircraft systems (UAS).

This development follows years of stumbles and starts as the Federal Aviation Administration (FAA) to create a regulatory framework that will accommodate companies that are exploring emerging business models for UAS, also known as drones. The FAA is bound by statutory guidelines and restrictions on UAS regulation that were last updated in 2012, while the “facts in the air” relating to drone use have changed greatly in the last five years.

Up until now, the FAA has only allowed drones to be operated under specific conditions, with the intention of limiting the potential risks to public safety. Currently, commercial drones are allowed to operate in daylight, within the visual line-of-sight of the operator, and not above members of the public, among other restrictions.

However, the FAA has also established a waiver program to explore commercial drone applications beyond those regulations. Through that program, companies have obtained permission to use drones to explore their use at night, beyond the operator’s visual line of sight, and/or beyond their line of sight. Most notable among them is CNN, which has obtained a waiver that allows it to fly drones over populated areas to gather aerial footage of major news events.

A White House fact sheet heralded this move as “making American aviation great again.” It argued that the United States’ drone laws are outdated, which is driving tech companies to test overseas. Indeed, Amazon has been looking across both the Pacific and Atlantic to test its technology – the Seattle-based tech firm has recently launched pilots in both the United Kingdom and Australia.

The White House called the expected increase in UAS development “unprecedented,” citing projections that the number of commercial UAS will increase fivefold by 2021. There are currently 1 million UAS owners registered with the FAA through the drone registration program, which was establish in order to track the number of UAS in the nation’s airspace and – if necessary – identify individuals using drones for nefarious or mischievous purposes.

In addition to commercial deliveries, the Trump Administration also expects that the program will experiment with deliveries of life-saving medications, precision agriculture initiatives where crops are inspected through drone-based surveys, and emergency response, and search and rescue operations.

The memorandum instructs the Secretary to establish the UAS Integration Pilot Program within 90 days. More than anything else, the purpose of this program is to experiment with different methods for federal, state, and local governments to oversee the safe operation of drones while also encouraging private-sector innovation.

Applicants will be selected based on the diversity of approaches to government oversight of drone operations, as well as the applications of the technology itself in diverse conditions (e.g., climate, geography, and critical infrastructure nearby).

USDOT will consider applications that meet the following criteria:

• Test UAS within specific altitudes (below 200 feet above ground level or, if the Secretary deems it appropriate, up to 400 feed above ground level);
• Thoroughly explain how the proposed UAS operations will be conducted;
• Are supported by agreements between the jurisdictions involved in the program;
• Consider questions of public safety and government oversight of the operations; and
• Expand the collective knowledge of public and private entities in drone operations.

If applicable, USDOT is instructed to leverage its existing authorities to grant exemptions, waivers, and exceptions in order to allow novel applications of drones to be tested. This includes issuing waivers under 14 CFR Part 107 and Certificates of Waiver or Authorization under section 333 of the FAA Modernization and Reform Act of 2012 (P.L. 112-95).

Below is a timeline for the program, based on the deadlines set by the Presidential Memorandum:

The program will terminate 3 years from the date the memorandum was issued. The USDOT Secretary will be required to submit preliminary annual reports on the progress of the pilot programs, then a final report to the President within 90 days of the program’s termination.

USDOT will release guidance for the pilot program in the coming days, according to the department’s website. This guidance will explain the costs of the program to the federal government, the details of the application process, and the degree to which operations by companies like Amazon will be allowed over sensitive and populated areas.