The US Federal Aviation Administration (FAA) has published its updated Fact Sheet (2023) discussing legal considerations applicable to state and local regulation of unmanned aircraft systems (UAS), or drones..
According to a statement “Like its 2015 predecessor, the Fact Sheet is a guide for state and local governments as they respond to the increased use of UAS in the national airspace.
“The updated Fact Sheet summarises well-established legal principles regarding federal authority for regulating the efficiency of the airspace, including the operation or flight of aircraft, which includes, as a matter of law, UAS. It reviews the federal responsibility for ensuring the safety of flight, as well as the safety of people and property on the ground as a result of the operation of aircraft. The updated Fact Sheet also sets forth the basic preemption framework applicable to UAS:
- “States and local governments may not regulate in the fields of aviation safety or airspace efficiency but generally may regulate outside those fields.
- “A state or local law will be preempted if it conflicts with FAA regulations.
- “State or local laws affecting commercial UAS operators are more likely to be preempted.
“As substantial air safety issues are implicated when state or local governments attempt to regulate the operation of aircraft in the national airspace, but legitimate state and local interests in health and safety exist in other contexts, the updated Fact Sheet provides examples of laws addressing UAS that would be subject to federal preemption and others that would likely pass muster.”
The FAA identifies which laws, other than aviation safety or airspace efficiency, can be introduced by States or local governments to cover drone operations.
“Such laws could include those concerning land use or zoning; harassment of individuals or groups; privacy; voyeurism; trespass on property; the exercise of other police powers; reckless endangerment; emergency medical services; search and rescue; law enforcement use of facial recognition; delivery of prison contraband; wildfire suppression; criminal mischief; transfer or delivery of controlled substances; taking photographs or videos with respect to particular facilities (e.g., water treatment facilities; prisons; oil refineries; chemical facilities; railroad facilities; amusement parks; energy production, transmission, and distribution facilities; and any system or asset described by title 42 of the United States Code, § 5195c(e)); requirements for police to obtain a warrant prior to using a UAS for surveillance; protection of wildlife; using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing; and law enforcement operations.
“Such laws are not covered by field preemption even if they have some effect on where UAS may operate in the air, as long as they do not impair the reasonable use by UAS of the airspace.
“Many of these state and local concerns are already addressed by laws that regulate ground-based conduct not involving UAS, and such laws often can be applied to UAS.
“Restrictions on how UAS are utilized (i.e., conduct) instead of where they may operate in the airspace would more likely be consistent with Federal preemption principles.
“…It is well established that States have a valid interest in choosing where aircraft may operate on the ground.
“Laws designating takeoff and landing locations have no direct effect on where UAS may operate in the air. Laws that prohibit, restrict, or sanction operations by UAS in the immediate reaches of property to the extent that such operations substantially interfere with the property owner’s actual use and enjoyment of the property.
“State and local policies concerning where a UAS operator can be located while conducting operations.
“UAS registration requirements that are ministerial and do not directly or indirectly regulate aviation safety or the efficient use of the airspace.”
For more information and to download fact sheet