New Federal Drone Regulations and Guidance
The Federal Aviation Administration (FAA) recently took two actions related to the regulation of “unmanned aircraft”—more commonly known as “drones”—that I think are relevant to local governments here in Washington State. Specifically, the FAA:
- Began requiring many drone owners to register with the FAA; and
- Provided guidance on what state and local drone regulations are preempted under federal law.
Let’s talk about these new developments in drone law.
New Registration Requirement
On May 19, 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the FAA's Registration Rule as applied to model aircraft, which includes drones operated for recreational purposes.
Whether registration with the FAA is required largely depends on the size of the drone, the drone’s owner, and whether or not the drone is used for recreational purposes. Here’s a quick rundown of the registration requirements:
|Drones < 0.55 lbs||0.55 lbs < Drones < 55 lbs||Drones > 55 lbs|
|Individual persons operating the drone for recreational purposes||No registration required||Under a new interim final rule, must register online||Must register using aircraft registry process|
|Government drone operators
||Must register using aircraft registry process|
|Non-Government drone operators (except individual persons operating drones for recreational purposes)||Must register using aircraft registry process|
Note that these weights include everything that is on board or otherwise attached to the drone, including cameras and any cargo.
Drone owners must register (if required to do so) before operating their drones outside unless the drone was purchased before December 21, 2015, in which case registration must be completed by February 19, 2016.
For more information, see the FAA’s Registration Q&A.
New Guidance on State and Local Drone Regulation
On December 17, 2015, the FAA released a new fact sheet to clarify what state and local drone regulations are preempted under federal law. Although not binding on state and local governments, I think that the FAA’s fact sheet supports the argument that local governments are free to regulate the use of drones in their jurisdiction in at least three ways:
- Local governments clearly retain the authority to regulate their own use of drones.
- Local governments may prosecute drone operators if their use of drones violates a law of general applicability (e.g. laws protecting privacy, nuisance laws, etc.).
- Local governments may regulate the use of drones within their jurisdictions through their police power. However, the permissible extent of such regulations is unclear at this time.
According to the FAA, federal law, which authorizes the FAA—and not state or local governments—to promulgate regulations to ensure the safe and efficient use of the navigable airspace within the United States, likely preempts the following types of state or local regulations:
- Restrictions on drone flight altitude or flight paths.
- Regulations banning the use of drones, such as within city limits, within the airspace of the city, or within certain distances of landmarks.
- Mandates requiring certain equipment or training for drone operation.
- State or local drone registration laws.
In contrast, the FAA has taken the position that federal law generally would not preempt drone regulations adopted through the state or local police power (e.g. zoning, privacy, trespass, law enforcement operations, etc.).
The FAA’s fact sheet provides the following specific examples of state or local regulations that, in the agency’s opinion, would probably not be preempted under federal law:
- Requirement for police to obtain a warrant prior to using a drone for surveillance.
- Specifying that drones may not be used for voyeurism.
- Prohibitions on using drones for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
- Prohibitions on attaching firearms or similar weapons to drones.
This is a rapidly changing area of law, so please stay tuned for future updates to this information.
Have a question or comment about this information? Let me know below or contact me directly at firstname.lastname@example.org.
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