Requiring the installation of a geo-fencing system capable of keeping small unmanned aircraft out of restricted and prohibited airspace would present a number of technical hurdles. Specifically, there are currently no design or performance standards for geo-fencing equipment to ensure safe and reliable integration into the NAS. Without appropriate geo-fencing design and performance standards, the industry and the FAA lack the data necessary to assess the accuracy and reliability of geo-fencing equipment and therefore, the FAA cannot promulgate geo-fencing equipment design requirements (i.e., airworthiness certification).
In the NPRM, the FAA proposed limiting the exposure of small unmanned aircraft to other users of the NAS by restricting small UAS operations in controlled airspace. In addition, the NPRM proposed prohibiting small UAS operations in prohibited and restricted areas without permission from the using or controlling agency. The proposed rule also prohibited operation of small UAS in airspace restricted by NOTAMs unless authorized by ATC or a certificate of waiver or authorization.
For the reasons discussed below, this rule will adopt the provisions for operating in Class B through E airspace and in prohibited or restricted areas as proposed in the NPRM, but with the option to request a waiver from the provisions for operating in Class B through E airspace. This rule will not adopt the provisions for compliance with NOTAMs as proposed, but will instead require compliance with §§ 91.137 through 91.145 and § 99.7, as applicable. This rule will also not adopt the proposed prohibition on operations in Class A airspace because the other operational restrictions of this rule will keep a small unmanned aircraft from reaching Class A airspace. Lastly, this rule will add a prohibition against small unmanned aircraft operations that interfere with operations and traffic patterns at any airport, heliport or seaplane base.
The NPRM proposed prohibiting small UAS operations in prohibited and restricted areas without permission from the using or controlling agency, as applicable. Prohibited and restricted areas are designated in 14 CFR part 73. The proposed provision concerning prohibited and restricted areas was similar to the part 91 restriction on operations in these areas, and did not include any new UAS-specific prohibited or restricted areas. After careful consideration of the comments, the FAA will adopt the provisions as proposed. The FAA establishes prohibited and restricted areas when necessary to prohibit flight over an area on the surface in the interest of national security or welfare. As discussed in section III.J.2 of this preamble, several commenters requested that the FAA establish prohibited or restricted airspace over energy infrastructure facilities, citing national security concerns as the basis for their comments. However, four commenters also cited safety concerns when suggesting that the FAA establish such restrictions.
Southern Company and Edison Electric Institute, individually and jointly with NRECA and APPA, explicitly cited safety reasons for restricting operations near energy infrastructure facilities. Edison Electric Institute raised concerns regarding UAS operations over critical energy infrastructure, including electric transmission and distribution facilities, power generation facilities, transmission lines, and substations. The commenter noted that the FAA currently has a TFR for manned aircraft over generation facilities, which the commenter said should be extended to cover UAS. The commenter argued that the FAA should extend the TFR to small UAS because of “the obvious safety factor involved with any activity near high voltage equipment and the attendant economic loss that comes from the possible loss of electric distribution.” EEI also submitted a separate, joint comment with NRECA and the APPA, which reiterated the same concerns.
Southern Company proposed that the FAA prohibit small UAS operations over power generation and transmission facilities, except by the utility or third parties acting on behalf of the utility. The commenter stated that the current NOTAM advising pilots to avoid overflight of power-generation facilities, including nuclear power plants, does not adequately address the potential risk small UAS pose. The commenter argued that, “[b]ecause of the small size, low-cost, great availability, and unmanned nature of small UAS, little deters small-UAS operators, as opposed to their manned aircraft counterparts, from operating over power generation and transmission facilities.” The commenter further argued that, although small UAS are capable of safe operation in close proximity to most structures, operation next to power generation and transmission facilities may be subject to invisible hazards, such as fire hazards caused by light and heat produced from an electric arc, that may be unfamiliar to non-utility operators.
Consumers Energy Company and the American Fuel & Petrochemical Manufacturers also addressed the safety of energy infrastructure. Consumers Energy Company said the FAA should consider expressly identifying a zone of no small UAS operation within a specified distance from electrical facilities (substations, power lines, and utility poles), except for small UAS operations by the facilities’ owners. The commenter said that such a rule would reduce the likelihood of small UAS operations negatively affecting electrical facilities and continue to ensure the safety of the United States electric grid.
The American Fuel & Petrochemical Manufacturers complained that the NPRM does not identify—much less address—issues of safety and security arising from certain scenarios that are a serious issue for its members, including an accidental crash into a facility, such as a refinery. The commenter expressed concern that the airspace and geographic limitations in the proposed rule are not sufficient to ensure the safety and security of critical infrastructure facilities, and therefore requested that the final rule prohibit the unauthorized use, or unauthorized operation, of a small UAS over all oil and gas production, handling, transport, and processing facilities.
EEI expressed concern that FDC NOTAM 4/0811 advising pilots to avoid the airspace over, or in proximity to, power plants would prevent electric utility companies from conducting small UAS flights around their own facilities.
Restricted airspace is designated when the FAA determines it is necessary to confine or segregate activities hazardous to nonparticipating aircraft. The FAA does not create special use airspace applicable to only one particular airframe or aircraft type. The public’s right of free transit through the airspace includes the users of unmanned aircraft. Accordingly, the FAA declines commenters’ suggestions to create UAS-specific restricted airspace around certain facilities. However, the FAA acknowledges commenters’ concerns. In response to these concerns, the FAA emphasizes FDC NOTAM 4/0811, which states that “…to the extent practicable, pilots are strongly advised to avoid the airspace above, or in proximity to such sites as power plants (nuclear, hydro-electric, or coal), dams, refineries, industrial complexes, military facilities and other similar facilities. Pilots should not circle as to loiter in the vicinity over these types of facilities.”113 This NOTAM applies with equal force to pilots of manned and unmanned aircraft. In response to EEI’s concern, the FAA notes that FDC NOTAM 4/0811 is advisory and thus, does not constitute a regulatory prohibition.