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There are many security related uses for drones. They can be used to conduct facility risk assessments and damage assessments, monitor perimeters, parking lots, prisons, college campuses, stadiums and other outdoor venues both day and night with the use of thermal imaging cameras. Drones can be used to conduct inspections, to assist in executive and convoy security (especially in remote/hostile locations), to monitor or secure remote assets and to provide emergency relief. Drones can also be equipped with audio and video sensors, and overall the use of drones can reduce the cost of security operations.   

To be able to use drones in the United States for any commercial use, a company must follow Federal Aviation Administration (FAA) operational rules (known as “Part 107”) that went into effect in 2016. These rules have proved to be fairly restrictive. First, without a waiver from the FAA, drones cannot fly over people. They must be operated in a visual line of sight, can only be used during daylight hours and must fly under 400 feet, among other restrictions. Second, a 2018 study found that only 15% of all waivers have been granted, with just over 1% of all applications for a waiver to fly over people having been approved. Only 1% of waivers were approved to fly past line of sight. The vast majority of the 15% of waivers granted were for night operations (37% approval rate). In addition, the waiver process is plagued by a lack of transparency and delays.     

Elimination of Need for Waiver to Fly Over People and at Night

There is good news, though. In mid-January, U.S. Department of Transportation Secretary Elaine L. Chao announced the impending arrival of proposed new rules which will allow drones to be used commercially at night and over people without a waiver (subject to additional requirements and/or conditions). On February 13, 2019, the Notice of Proposed Rulemaking for Operation of Small Unmanned Aircraft Systems over People was put out for public comment by the FAA. Comments are due by April 15, 2019.   

Drone legal analysts believe that the proposed rule “will provide significant relief from the cumbersome waiver process for both types of operations.”[1] Not unexpected, the proposed new rule does not make any change to the requirement for a waiver for drone use past line of sight. And while it also keeps in place the current requirement to obtain a waiver to operate over a moving vehicle, it makes that waiver more specific which some believe will make it less difficult to obtain. 

There are two additional requirements on operators to fly at night without a waiver. First, the drone operator must “complete knowledge testing or training, including new subject matter areas related to operating at night.” Second, the drone must have “an anti-collision light illuminated and visible for at least 3 statute miles.”[2] Operators who do not meet these conditions may still request a waiver for nighttime operations using the traditional waiver process. 

To fly over people without a waiver will depend on the risk and level of injury the drone could inflict to persons the ground. The rule proposes three categories of permissible operations over people based on the risk of injury. The first category allows all drones under .55 pounds to be flown over people with no additional requirements. (I guess getting hit by a half pound drone falling out of the sky does not hurt that much!) The other categories put requirements on the manufacture and operation of drones over .55 lbs. that are intended to lessen the amount and severity of potential injuries.     

Requirements for Remote Identification and External Registration Number

While commercial drone operators have hailed the FAA’s proposed new rules easing restrictions on operations at night and over people, one fly in the ointment is that the FAA also stated that the rules will not become effective until the FAA and other federal agencies have “finalized its policy” related to the remote identification of drones. Remote identification is considered crucial in preventing or mitigating security concerns related to drones. The remote identification policy could be a formal rule, a standard or take some other form, but some are worried it could take years to finalize a remote identification policy which means it could take years for the night and over people rules to go into effect.     

Also, effective on 23 February, 2019 the FAA put out an Interim Final Rule that requires all drones to have their FAA registration number on an external surface. No longer will drone operators be permitted to enclose the FAA registration number in a compartment. The FAA stated that the new rule is “to address concerns expressed by the law enforcement community and the FAA’s interagency security partners regarding the risk a concealed explosive device poses to first responders who must open a compartment to find the small unmanned aircraft’s registration number.” [3]

The potential use of drones for security applications is enormous. Earlier this year drones were used for the first time ever as part of the security operations for the Super Bowl, and the proposed FAA rules are big step in the right direction. 


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