The FAA released its final microdrone rule on 21 June 2016. It is very similar to the NPRM. Once it is effective, in late August, 2016, it permits commercial flight of small drones--those weighing less than 55 pounds--below 400 feet AGL during the day and during twilight. It does not permit flights directly over people on the ground and requires that the drone remain within sight. It establishes a new category of airman called a Remote Pilot and allows individuals to qualify for the rating by taking a written test or, in the case of persons who are already pilots, by taking a course. No flight test or any particular level of experience is required. No airworthiness certification or any designed criteria are imposed on the vehicles themselves. The rule explicitly invites application for waver of the daytime-only, line-of-sight, and no-flights-over-people restrictions.

The FAA had released its long-awaited notice of proposed rulemaking (“NPRM”) on 15 February 15 2015. Under the proposed rule, drone operators may fly microdrones weighing under 55 pounds up to 500 feet above ground level within line of sight of the operator, as long as they have an FAA-granted operator certificate and register the microdrone with the FAA. DRone OPerator (“DROP”) certificates will be available after a candidate passes an FAA-prescribed knowledge test and undergoes screening with the TSA and a flight instructor or FAA representative.

The agency decided not to require airworthiness and type certification of microdrone vehicles or to require skills training and testing. It explicitly held open the possibility of a segmented approach to microdrone regulation, in which the smallest vehicles would be exempt from operator testing. It rejected a requirement for a conventional pilot’s certificate. The proposal does not require a separate observer or any particular safety technology, such as return-to-home, on the vehicle.

Any member of the public may submit comments on the proposal for 60 days after it is published in the Federal Register – expected on 23 February.

The NPRM is not a law, yet. Under the federal Administrative Procedure Act, the FAA must consider comments received during the comment period and then write a final rule. It must justify the content of the final rule with reference to the proposed rules and the comments received. Often agencies, surely including the FAA, take many months or years to evaluate comments and issue a final rule, depending on the level of controversy over the NPRM.

Formally, issuance of the NPRM does not change the law: commercial drone flight is still prohibited unless one receives a section 333 exemption or a special airworthiness certificate.

Hopefully, however, the FAA will adjust its enforcement policies to align them with the content of the proposed rule. It should not seek civil penalties against DROPs who comply as much as possible with the content and spirit of the NPRM.

Complete compliance is not possible under the proposed rule, because there is no infrastructure for knowledge testing of operators. The NPRM does, however, include a list of specific areas of knowledge that DROPs will be expected to master and be tested on. That enables the possibility of private sector mechanisms for DROP training, testing, and certification. Flight schools and at least one nonprofit association are gearing up to do this. See www.aadicert.org.