We discuss the impact of recent FAA legislation on drones for energy infrastructure inspection with Van Ness Feldman’s legal experts
The US Federal Aviation Administration (FAA) recently issued a final rule to regulate the commercial use of small unmanned aircraft, or drones. Some of the requirements of the final rule could preclude the use of drones for the efficient monitoring and inspection of remote and linear energy facilities such as transmission lines, pipelines and hydropower facilities. Congress, however, has instructed the FAA to develop procedures to exempt from those requirements the use of drones for monitoring and inspection of critical infrastructure.
As part of requirements set out in the FAA Modernization and Reform Act of 2012, on June 28, 2016 the FAA issued the “Small Unmanned Aircraft Rule” to allow for the routine civil operation of small drones for non-recreational purposes and to establish a comprehensive set of rules for those operations. This rule, which became effective on August 29, 2016, replaces existing FAA regulations related to airworthiness, airman certification and operating limits.
The rule promulgates a number of specific requirements that must be met by any person seeking to operate a drone for the purposes of monitoring, surveying and/or inspecting energy infrastructure facilities. Specifically, it states that they:
must be registered with the FAA, a process that can be completed online if the drone will only be used within the territorial United States
may only be operated by a person with a remote pilot certification issued by the FAA
may not be operated over human beings not participating in the operation
may not be operated under a covered structure or inside a stationary vehicle
stay within 400 feet (122 metres) of ground level or a structure
remain within the visual line-of-sight of the remote pilot or visual observer
may be operated only during daylight or twilight (within 30 minutes of sunrise or sunset) hours
Fast on the heels of this rulemaking, the FAA Extension, Safety, and Security Act of 2016 was passed by Congress and signed into law on July 15. Section 2210 of this Act requires the FAA to establish an application process for the use of drones for monitoring, surveying and inspection of critical infrastructure facilities during the day or at night and beyond the line-of-sight of the individual operating the drone. Critical infrastructure facilities include oil and gas production, storage, transportation and delivery systems, as well as power generation and transmission, and telecoms networks.
Drone uses permitted under Section 2210 include activities to ensure compliance with Federal or State regulatory, permit, or other requirements; activities to inspect, repair, construct, maintain or protect critical infrastructure facilities, including for the purpose of responding to an incident; and activities in response to or in preparation for a natural disaster, manmade disaster, severe weather event or other incident beyond the control of the applicant. In addition, Section 2210 specifically authorises the use of drones at night and beyond the visual line of sight of the remote pilot. Van Ness Feldman (VNF) explained to InnovOil that: “Prior to the Part 107 regulations, drones could not be operated in accordance with many of the FAA’s regulations governing the operation of aircraft because of their “unmanned” nature. Many of those regulations, initially adopted in 1958, required the pilot to be on board the aircraft. While these provisions were suitable for their time, they did not contemplate the use of technology to substitute for the human vision of a pilot on board an aircraft or the ability to remotely operate an aircraft without being physically present within it.”
Section 2210 requires the FAA to certify to Congress by October 15 that it has established an application process for drone operations for the critical infrastructure activities described above. The FAA has not yet established such an application process and it is unclear if or when the agency will do so.
However, the FAA informally has advised that, in the absence of an application process to carry out Section 2210, it intends to enforce the Part 107 “certificate of waiver” process to waive any requirements that may limit or prevent the use of drones for those purposes. Under this process, the FAA may issue a waiver authorising deviation from some of the Part 107 requirements if it determines that a proposed drone operation “can safely be conducted under the terms of the waiver.”
While the new FAA regulations provide for fairly non-intrusive oversight of drone use, an applicant seeking authorisation to operate a drone consistent with Part 107 and Section 2210 will need to:
register its drone with the FAA
ensure that its pilot has a remote pilot certification
apply for any necessary waivers from the requirements of Part 107 and demonstrate that the drone can be safely operated under the terms of the waiver
demonstrate that it is in compliance with the remainder of the requirements of Part 107
These requirements include rules for aircraft maintenance and inspection; operating limitations relating to types of airspace, awareness of prohibited areas, speed, altitude, visibility and location of persons and property; emergency procedures, contingency procedures and consideration of potential hazards; and reporting requirements for deviation from the rules of Part 107 in the event of emergency.
VNF also explained that: “The aircraft, including its attached systems, payload and cargo must weigh less than 55 pounds [25 kg] total.” However, it does not impose any requirements on line of sight or require drones to have any specific technology equipage.
After acquiring authorisation to operate a drone, the applicant will need to ensure that it has systems in place to ensure continuing compliance with these requirements.
The likelihood is that with the firmer regulations in place, the US drone inspection market should now have healthy impetus for growth. VNF told InnovOil that: “Part 107 encourages the increased use of drones by specifically authorising the operation of small unmanned aircraft or drones where no such authorisation existed before... Section 2210 will only further encourage this use by setting out a clearly delineated and formal process for the use of drones for monitoring, surveying and inspection of critical infrastructure.”
The legislation does however, only extend to inspection land and the US’ territorial waters – up to 12nm offshore. VNF’s team told InnovOil that: “Drone operations in US flight information regions that [exceed that remit] are not currently allowed under Part 107. A drone that is used to inspect offshore structures located in foreign airspace will need to comply with the requirements of that country’s civil aviation authority (14 CFR 91.703).”
Future movement on this is expected, following agreements on drone operations reached between the US and other countries. The International Civil Aviation Organization is also developing its own framework for drone operations, which will no doubt inform future policy as well.
The insurance industry is also adapting and innovating in light of the growing prevalence of drone inspection. VNF commented that: “A number of insurance companies have begun to offer coverage for general liability to unmanned aircraft operators by endorsing such coverage onto existing property and casualty policies. However, insurers will need to resolve many liability and coverage issues specific to the use of unmanned aircraft before writing policies specifically for drones.”
This, VNF said, will likely include liability, property, personal injury, invasion of privacy and cyber risk for unmanned aircraft manufacturers, owners and operators, and companies that hire unmanned aircraft operators.” However, despite the rapid growth of the past few years, the disciple remains in its infancy. “Because the use of unmanned aircraft, particularly for commercial purposes, is such a new area,” the company added, “the insurance industry currently lacks the extensive industry data needed to determine risk and likely losses.”
Nevertheless, inspection firms have already launched a US offensive. Companies such as the UK’s Cyberhawk and Sky-Futures have already opened US branches, while others such as VDOS Global have already performed multiple inspections under a Section 333 Waiver.
As drone technology and capabilities improve even further, the industry has only begun to scratch the surface of what these machines can do.
Contact: Tom Roberts Tel: (+1) 202 298 1930 Email: firstname.lastname@example.org Web: www.vnf.com