FAA delays Section 2209 again. Now scheduled for February 2024

The Federal Aviation Administration (FAA) regulation that would designate some sensitive locations as “no drone zones,” which is known as “section 2209,” of the FAA Extension, Safety, and Security Act of 2016 (FESSA), has been postponed again. Its implementation is now scheduled to take place in February 2024 at the earliest.

What is Section 2209?

The FAA is tasked under Section 2209 with the responsibility of establishing limits around “critical infrastructure” in order to prevent unauthorised drone flights from occurring there. However, the implementation of this rule is difficult because the FAA is responsible for deciding which locations should be categorized as “fixed site facilities” and off-limits to drones. This decision may be made in conjunction with other levels of government, including state and local governments.

The Act also provides for the identification of “other locations that warrant such restrictions,” which enables a wide interpretation of the many sorts of venues that might be included by the legislation. These sites could range from oil refineries to amusement parks and everything in between.

The official Section 2209 text

(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.

FAA is years behind on implementing Section 2209

The legislative deadline for the release of designations for protected “critical infrastructure” locations was initially scheduled for January 2017, however that has now been pushed out to February 2024. The FAA is obligated to post these designations on a website that is accessible to the general public.

“The original statutory deadline for this was January 2017. How can anyone take seriously the claim that drones are a potential national security risk if the federal government can't even get this done to start protecting the most critical locations?” Brendan Schulman, former Vice President of Policy & Legal Affairs at DJI tweeted earlier today.

The FAA Reauthorization Act of 2018 included a deadline for the implementation of Section 2209, which has not yet been met. The Act required the FAA to publish a notice of proposed rulemaking (NPRM) on Section 2209 by March 31, 2019, with the final rule to be issued 12 months after publication of the NPRM.

In June 2021, the U.S. Chamber of Commerce sent an open letter to the FAA, urging the implementation of Section 2209 “to protect critical infrastructure and facilities.”

“To date, the FAA has not issued an NPRM implementing Section 2209. 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.”

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