June 8, 2017 T. Evan Fisher 214-965-9900 www.njdhs.com

Texas Association of

Municipal Information Officers Legal Update: Regulation of Drone Use

Presentation Overview

Section I: Rules for “hobbyists” and others Section II: Part 107 as basis for flight policy Section III: Texas Privacy Act limitations Section IV: Final Thoughts / Q and A

2

What is a Drone?

An unmanned aircraft system (UAS), commonly referred to as a drone, is an aircraft without a human pilot onboard. The UAS or drone is controlled from an operator on the ground.

3

Regulatory Overview

FAA/Federal Regulations General Aircraft & Pilot Regulations

Hobbyist Regulations

New Rule 107 Regulations for Small Drones (<55lbs)

New Rule 107 Waiver Process

333 Exemption Petitions

State Privacy Laws Municipal Regulation Local Airport Regulation

4

FAA Regulations (www.faa.gov/uas)

3 Types of Operations Civil Operation (Cities) Public Operation Hobbyist Operation

Prior to 8/29/16, civil operations regulated same as manned aircraft: Extensive pilot training Pilot Certification Pre-flight checks and reporting Flight Plan Submission

Only practical way to fly was to file 333 Petition and receive a Special COA (6+ months for consideration)

5

Hobbyist Rules Regulated by Public Law 112-95, Section 336 (www.faa.gov/uas/):

Do not need FAA permission to fly a drone for fun or recreation

Drone may be used for recreational or educational flying only

No pilot requirements

Must be less than 55 pounds

Must be registered if it weights more than 0.55 pounds

Registration number must appear on drone

Can operate 5 miles from airports without prior notification to airport and air traffic control

ALWAYS yield right-of-way to manned aircraft

Drone must be kept in sight (VLOS)

Follow all community-based safety guidelines (Municipal Ord?)

6

Safety Guidelines Individuals flying for hobby or recreation are strongly encouraged to follow safety guidelines, which include: Fly at or below 400 feet and stay away from surrounding

obstacles Keep your UAS within sight Never fly near other aircrafts, especially near airports Never fly over groups of people Never fly over stadiums or sports events Never fly near emergency response efforts such as fires Never fly under the influence of drugs or alcohol Understand airspace restrictions and requirements

7

8 |

FAA Getting Started: HOW TO FLY Fly for Fun/Hobbyist Rules Fly for Work/City Rules (*Unless Waiver/Exemption)

Pilot Requirements No pilot requirements Must have Remote Pilot Airman Cert Must be 16 years old

Must pass TSA vetting

Aircraft Requirements Must be registered if over 0.55 lbs. Must be less than 55 lbs. Must be registered if over 0.55 lbs. (online)

Must undergo pre-flight check to ensure UAS is in condition for safe operation

Location Requirements 5 miles from airports w/o prior notification to airport and ATC Class G airspace*

Operating Rules Must ALWAYS yield right of way to manned aircraft Must keep the aircraft in sight (visual line-of-sight)

UAS must be under 55 lbs. Must follow community-based safety guidelines Must notify airport and air traffic control tower before flying

within 5 miles of an airport

Must keep the aircraft in sight (visual line-of-sight)* Must fly under 400 feet*

Must fly during the day* Must fly at or below 100 mph* Must yield right of way to manned aircraft*

Must NOT fly over people* Must NOT fly from a moving vehicle*

Example Applications Educational or recreational flying only Flying for commercial use (e.g. providing aerial surveying or photography services)

Flying incidental to a business (e.g. doing roof inspections or real estate photography)

Legal or Regulatory Basis Public Law 112-95, Section 336 – Special Rule for Model Aircraft

FAA Interpretation of the Special Rule for Model Aircraft

Title 14 of the Code of Federal Regulation (14 CFR) Part 107

FAA Regulations New Small UAS Rule (Part 107) 14 CFR Part 107-- Effective August 29, 2016:

Provides Safety Regulations for Unmanned Aircraft Drones Weighing Less than 55 Pounds that are Conducting Non-Hobbyist Operations

Designed to Minimize Risks to Other Aircraft, and

People and Property on the Ground

Intended to streamline application process online

9

Part 107 Rule Highlights Drones must weigh no more than 55 lbs. and must be

registered PIC Certificate Required (Applicants must have already

passed an initial aeronautical knowledge test) Commercial UAS operation must take place within

operator’s visual line of sight (VLOS) Operation during DAYTIME only

Flight is not permitted directly over persons or from

moving vehicles Drone operators are not required to coordinate

operations with or give notice to airports in Class G airspace (uncontrolled <400ft).

10

FAA Part 107 Waivers An operator may apply for a Certificate of Waiver allowing for the drone operation to deviate from the following: Operation from a moving aircraft or vehicle (§107.25) Daylight operation (§107.29) Visual line of sight aircraft operation (§107.31) Visual observer (§107.33) Operation of multiple small unmanned aircraft systems (§107.35) Yielding the right-of-way (§107.37(a)) Operation over people (§107.39) Operation in certain airspace (§107.41) Operating limitations for small drones (§107.51)

11

FAA Part 107 Waiver Process

Apply online at www.faa.gov/uas/ Must ALREADY HAVE Remote Pilot Certificate (or equivalent) Must have registered your aircraft FAA “strives” to respond within 90 days. COW/A may include special provisions designed to ensure that

the drone operation provides an equivalent of safety as set forth under 107 (i.e., ’deviate’)

Scope of waivers unknown at this time. Standard special

provisions for 107 waivers will be issued by the FAA in the near future.

12

FAA Application: 333 Exemption Petition

A 333 Exemption Petition (i.e., letter) must contain the following:

Identification of the registered aircraft;

Identification of the pilot(s);

Description of the geographical area of possible flights;

Description of the scope of all possible uses;

Identify each statute from which an exemption is sought;

Description (legal argument) as to why the exemption should be granted; and

Evidence/Assurance that each granted exemption will not increase the risk of injury to persons, property or airplanes.

Recommend including proposed flight policy

13

FAA Application: 333 Exemption Petition

A 333 Exemption is required for: Flying in controlled airspace (Classes B, C, D or E); Flying at night or over people*; or Flying drones weighing more than 55 lbs. Flying within 5 miles of an airport** (see next slide) Current 333 Exemption Holders Grandfathered: Any Current 333 Exemption is valid until it expires – usually 2

years from date of issue. An operator with a 333 Exemption may choose to fly under

the conditions and limitations of the Exemption. Current petitions are subject to authorization but presently in

limbo.

14

Note on Airport Regulations

FAQ from the FAA Website:

What is required for civil UAS operations on or within 5 nautical miles of [an] airport? The civil UAS operator must have the following:

A Section 333 exemption; A “full COA” issued by the FAA that authorizes the UAS to

operate from or near your airport; and An executed letter of agreement with the airport sponsor.

Review LOA recommendations at: https://www.faa.gov/airports/special_programs/uas_airports/

Meet with local air traffic control to discuss PRIOR to applying for wavier/exemption

15

FAA Regulation Summary Local Governments have 2 options for flying a drone: Fly under new Part 107: Follow all rules under Part

107, including aircraft and pilot requirements; Fly under new Part 107: With permitted waivers; or Obtain Public Certificate of Authorization (COA):

Permits nationwide flights in Class G airspace at or below 400 feet, self-certification of the UAS pilot and the option to obtain emergency COAs under special circumstances.

16

State Regulation Texas “Privacy Act”

Local Government Code Chapter 423:

Solidifies privacy protections for private real property, and the individuals living on that property.

Prohibits any person to use a drone to capture

images of an individual or privately owned real property with intent to conduct surveillance on the individual or property and the possession, disclosure, display, distribution or use of such image.

Illegally or incidentally captured images must be

destroyed and cannot be disclosed under the Texas Open Records Act and are not subject to other means of legal compulsion for release.

17

Texas Privacy Act

18

Sec. 423.003. OFFENSE: ILLEGAL USE OF UNMANNED AIRCRAFT TO CAPTURE IMAGE. (a) A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image. Sec. 423.004. OFFENSE: POSSESSION, DISCLOSURE, DISPLAY, DISTRIBUTION, OR USE OF IMAGE. A person commits an offense if the person: (1) captures an image in violation of Section 423.003; and (2) possesses, discloses, displays, distributes, or otherwise uses that image. Sec. 423.005. ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE. (a) Except as otherwise provided by Subsection (b), an image captured in violation of Section

423.003… (1) may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative; (2) is not subject to disclosure, inspection, or copying under Chapter 552; and (3) is not subject to discovery, subpoena, or other means of legal compulsion for its release. Sec. 423.006. CIVIL ACTION. (a) An owner or tenant of privately owned real property located in this state may bring against a person who, in violation of Section 423.003, captured an image of the property or the owner or tenant while on the property an action to: (1) enjoin a violation or imminent violation of Section 423.003 or 423.004; (2) recover a civil penalty ($5,000 capture / $10,000 per disclosure or use)

Final Thoughts FAMILIARIZE YOURSELF WITH DRONES – they are a part of life now

Drones are quickly becoming essential tools to serve the public by: Providing more online content for citizens Providing more coverage for City PEG channels Providing access for City employees to inspect City facilities and property Providing potential for additional and more responsive public safety operations Enhancing the City’s image through better marketing

Before you get off the ground: Make CMO aware of the program Prepare vetted general public statement of program scope Budget, including data storage costs & policies Public information laws & policies Policy creation and administration Remote Pilot Certification & Renewal Liability issues and insurance costs

20