September 20, 2021

Volume XI, Number 263

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September 20, 2021

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September 17, 2021

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Potential Consequences of the FAA’s Failure to Implement Section 2209

Section 2209 of the Federal Aviation Administration Extension, Safety, and Security Act (the Act) requires the Federal Aviation Administration (FAA) to establish defined boundaries protecting “critical infrastructure” from unauthorized drones.  More specifically, the FAA is tasked with defining the precise sites where drones are prohibited from operating. It is likely that the FAA would have to work with state and local governments to make these determinations (e.g., which sites are considered “fixed site facilities”). However, the Act includes many types of “sites” from oil refineries to amusement parks as well as “other locations that warrant such restrictions.” This language allows for very broad interpretation.

Specifically, Section 2209 states:

DOT shall establish procedures for applicants to petition the FAA to prohibit or restrict the operation of drones in close proximity to a fixed site facility (an affirmative designation).

A “fixed site facility” is considered to be:

  • critical infrastructure, such as energy production, transmission, and distribution facilities and equipment;

  • oil refineries and chemical facilities;

  • amusement parks; and

  • other locations that warrant such restrictions.

The FAA shall publish designations on a public website.

Deadlines for the FAA’s implementation of Section 2209 according to the FAA’s Reauthorization Act of 2018 are as follows:

  • Publish a Notice of Proposed Rulemaking by March 31, 2019

  • Final Rule Due by March 31, 2020

To date, no NPRM on Section 2209 has been issued.

Recently, the Association of Unmanned Vehicle Systems International (AUVSI), the Commercial Drone Alliance, the Consumer Technology Association, and the Small UAV Coalition sent a letter to FAA Chief Administrator Steve Dickson pushing him to act as soon as possible on Section 2209. This group of industry stakeholders urged the FAA to  “publish a proposed rule to establish a process to designate airspace above and around fixed-site critical infrastructure facilities.” The U.S. Chamber of Commerce group also presented a letter to the FAA, signed by a significant list of drone and critical infrastructure stakeholders urging for the same action. The concern by these and other industry leaders is not simply that the failure to enact Section 2209 leaves ambiguity as to what infrastructure and facilities are considered “fixed site,” but a larger failure by the FAA to firmly establish that they hold sole authority to regulate the national airspace. Without the enactment of Section 2209, states have been enacting their own legislation to protect (and define) critical infrastructure sites, which has led to a patchwork unwieldy and inconsistent laws. The commercial drone industry seeks federal guidance on “fixed sites;” otherwise, without federal regulation, drone operators may not have a central source of information that defines these types of sites and leads to unknowing violations of state/local laws and inhibits the ability to integrate drones into the national airspace.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XI, Number 196
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About this Author

Kathryn Rattigan Attorney Cybersecurity Data Privacy
Associate

Kathryn Rattigan is a member of the firm's Business Litigation Group and Data Privacy + Cybersecurity Team. She advises clients on data privacy and security, cybersecurity, and compliance with related state and federal laws. Kathryn also provides legal advice regarding the use of unmanned aerial systems (UAS, or drones) and Federal Aviation Administration (FAA) regulations. She represents clients across all industries, such as insurance, health care, education, energy, and construction.

Data Privacy and Cybersecurity Compliance

Kathryn helps clients comply...

401-709-3357
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