I stumbled across a surprising drone policy update in the FAA’s Aeronautical Information Manual (Manual) last week. The Manual contains official guidance and best practices to US airspace users. (My friend Marc Scribner reminds me that the Manual is not formally regulatory, though it often restates or summarizes regulations.) The manual has a (apparently) new section: “Airspace Access for UAS.” In subsection “Airspace Restrictions To Flight” (11-4-6) it notes:
There can be certain local restrictions to airspace. While the FAA is designated by federal law to be the regulator of the NAS [national airspace system], some state and local authorities may also restrict access to local airspace. UAS pilots should be aware of these local rules.
Legally speaking, the FAA is recognizing there is no “field preemption” when it comes to low-altitude airspace restrictions. In sharing this provision around with aviation and drone experts, each agreed this was a new and surprising policy guidance. The drone provisions appear to have been part of updates made on April 20, 2023. In my view, it’s very welcome guidance.
Some background: In 2015, the FAA released helpful “fact sheet” to state and local officials about drone regulations, as state legislatures began regulating drone operations in earnest. The FAA noted the several drone-related areas, including aviation safety, where federal aviation rules are extensive. The agency noted:
Laws traditionally related to state and local police power – including land use, zoning, privacy,
trespass, and law enforcement operations – generally are not subject to federal regulation.
To ensure state and federal drone laws were not in conflict, the FAA recommended that state and local officials consult with the FAA before creating “operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace.”
That guidance is still current and still useful. Around 2017, however, it seems some within the FAA began publicly and privately taking a rather harder line regarding state and local rules about drone operations. For instance, in July 2018, someone at the FAA posted a confusing and brief new statement on the FAA website about state and local drone rules that is hard to reconcile with the 2015 guidance. Continue reading →
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