What is Section 2209 – and Why is the Drone Industry Urging the FAA to Implement it as Fast as Possible?

what is section 2209 critical infrastructureNews and Commentary. What is Section 2209 of the FAA Extension, Safety, and Security Act of 2016 – and why is it so critical to the drone industry that stakeholders are urging the FAA to implement it as soon as possible?

What is Section 2209?

Simply, Section 2209 requires the FAA to establish defined boundaries protecting “critical infrastructure” from unauthorized drones.  In reality, it’s a complex problem. The FAA must define the sites which are prohibited to drones – possibly working with state and local governements to decide which places should be designated as “fixed site facilities.”  From oil refineries to amusement parks, the Act also allows for “other locations that warrant such restrictions,” which leaves the category of fixed sites wide open to interpretation.

From H.R. 636, the FAA Extension, Safety and Security Act of 2016:

(Sec. 2209) DOT shall establish procedures for applicants to petition the FAA to prohibit or restrict the operation of drones in close proximity to a fixed site facility (an affirmative designation).

A “fixed site facility” is considered to be:

  • 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 restrictions.

The FAA shall publish designations on a public website.

The FAA Reauthorization Act of 2018 gave the FAA a deadline for implementing Section 2209, one that has not been met.  According to the Reauthorization Act, the FAA was required to publish a notice of proposed rulemaking (NPRM) on Section 2209 by March 31, 2019: the final rule was due 12 months after publication of the NPRM.  To date, no NPRM on Section 2209 has been issued.

Drone Industry Stakeholders Urge the FAA to Act

In the last week, two major coalitions have sent letter to FAA Chief Admistrator Steve Dickson, urging him to act on Section 2209 as quickly as possible.   “The Association for Unmanned Vehicle Systems International (AUVSI), the Commercial Drone Alliance, the Consumer Technology Association, and the Small UAV Coalition are urging the Federal Aviation Administration (FAA) to publish a proposed rule to establish a process to designate airspace above and around fixed-site critical infrastructure facilities,” writes AUVSI (copy of the letter available here.). The U.S. Chamber of Commerce group also published a letter to the FAA, signed by a significant list of drone and critical infrastructure stakeholders (see signatories and a copy of the letter here.)

Section 2209 is critical to the commercial drone industry, because without a system to define “fixed sites” at the federal level, states and local governments have stepped in to define their own critical sites as off limits to drones.  Without definition at the federal level, drone operators may not have a central source of information that defines the sites and helps them to respect airspace restrictions.  If sites are not defined at the federal level, drone operators have no efficient way of applying for an exception to the restrictions when required for public safety, emergency, or legitimate commercial applications.

Who’s in Charge of the Airspace?

Failure to enact Section 2209 is not just about publishing a specific rule: it’s a failure of the FAA to firmly establish that they hold sole authority to regulate the national airspace – and that’s a failure that could have long-reaching consequences.

As AUVSI and the other signatories wrote in their letter,

We support this rulemaking to protect critical infrastructure facilities from the risk that malicious, reckless, or unknowing UAS operations may pose, and also to ensure that it is the federal government — not state or local governments — that controls the national airspace. The delay in establishing a process to designate airspace has left a vacuum that invites state and local governments to enact restrictions on UAS operations above and near a variety of structures.”

The U.S. Chamber of Commerce letter echos these opinions, stating:

“In the absence of the required rulemaking, many states have enacted legislation to protect critical infrastructure sites, resulting in a patchwork of state laws that is confusing for critical infrastructure stakeholders and the UAS industry.”