A decade after the U.S. Congress directed the FAA to protect critical infrastructure from drone threats, the regulator is publishing proposed rules for restricting unmanned aircraft operations in airspace over key facilities.
Published in the Federal Register on May 6, the notice proposed rulemaking (NPRM) has been long-awaited .
The purpose of this rule is to comply with the direction in section 2209 of FESSA to create a process for restricting unmanned aircraft in close proximity to certain fixed site facilities. Congress stated FAA may consider the following entities as eligible for UAFR: critical infrastructure such as energy facilities and equipment; oil refineries and chemical facilities; amusement parks; railroad facilities; and State prisons.
Congress identified the following factors for FAA to consider when reviewing an application for a UAFR: aviation safety, protection of people and property on the ground, national security, or homeland security.
FAA proposes to create a process under which certain facilities can request a UAFR to address public safety and security concerns associated with unmanned aircraft flying in close proximity to the facility. This proposal takes into account Congress’s mandate to establish this process while at the same time balancing FAA’s statutory mandates to regulate the use of the NAS to ensure the safety of aircraft and the efficient use of airspace, ensure the public right of transit, and integrate unmanned aircraft into the NAS.
In addition, because the rule proposes to restrict unmanned aircraft operations in certain airspace, the proposal also incorporates environmental review and public notice processes similar to those FAA routinely implements for other changes to airspace within the NAS. Finally, restricting airspace is an extraordinary remedy that must be balanced against the public right of transit under 49 U.S.C. 40103 and not unduly affect the efficiency of the NAS. Accordingly, this proposal establishes a process for granting UAFRs only in those limited circumstances in which there is a clearly articulated need that justifies the remedy of restricting airspace, and where narrower measures cannot adequately address a clearly documented security risk.
FAA seeks to balance the public’s right of transit through the NAS and a need to secure critical infrastructure fixed sites from UAS threats. In order to ensure preservation of the navigable airspace for aviation to the greatest extent possible, the proposal puts the burden on applicants to provide data and documentation establishing that the restriction is necessary for safety or security.
FAA would evaluate that information and determine whether the applicant demonstrated a sufficient need to justify the remedy of restricting airspace.
Executive Summary
This action would implement section 2209, of the FAA Extension, Safety and Security Act of 2016, by establishing a process for operators and proprietors of certain fixed site facilities to request and maintain an unmanned aircraft flight restriction.
The proposal also establishes requirements for applicants to demonstrate the unmanned aircraft flight restriction is necessary for: aviation safety, protection of people and property on the ground, national security, or homeland security.
Lastly, the proposal identifies the types of operations that are allowed in the unmanned aircraft flight restriction UAFR.
Unmanned aircraft systems (UAS) are fundamentally changing aviation, and, as a part of its congressional mandate, FAA is working to integrate them into the airspace of the United States. The relatively low cost of highly capable UAS technology has triggered hundreds of thousands of new operators to enter the aviation community, some of whom have aviation knowledge and experience and many others who do not. The proliferation of these operations presents significant opportunities for innovation and growth and represents a driving force in the aviation sector. As the scale and scope of UAS activities has grown, some stakeholders have become concerned about the safety and security implications of unmanned aircraft (UA) flying in close proximity to certain types of facilities.
These concerns led Congress to enact section 2209 of the FAA Extension, Safety and Security Act of 2016 (FESSA), directing FAA to create a system under which operators or proprietors of certain fixed site facilities could request FAA to restrict unmanned aircraft operations in close proximity to those facilities.
Congress identified the following for the process to apply to: 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 a restriction.”
In the FAA Reauthorization Act of 2018 (FAARA), Congress amended section 2209 to include railroad facilities, and in the FAA Reauthorization Act of 2024, Congress again amended section 2209 to include State prisons. Congress said FAA may consider the following factors when considering a request for an unmanned aircraft flight restriction (UAFR): aviation safety; protection of people and property on the ground; national security; and homeland security. FAA proposes a new part 74 to implement this mandate and properly balance FAA’s other statutory mandates.
Consistent with Executive Order 14305, Restoring American Airspace Sovereignty, FAA is proposing to limit facilities eligible for an UAFR to those that are fixed site facilities and meet the definition of critical infrastructure in 42 U.S.C. 5195c(e). Critical Infrastructure is defined as
“systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating effect on security, national economic security, national public health or safety, or any combination of those matters.”
Additionally, FAA would consider whether an applicant could demonstrate that a UAFR is necessary for aviation safety, protection of people and property on the ground, national security, or homeland security. FAA proposes to limit UAFR eligibility to balance the safety and security concerns Congress identified in section 2209 with the national policy objectives of ensuring the public right of transit, preserving airspace efficiency, and integrating UAS into the NAS.
FAA requests comments on its determination to limit UAFRs to those fixed site facilities within the sixteen sectors discussed in the notice.
Source: Federal Register