On January 14, 2019, amidst the longest federal government shutdown in U.S. history, the FAA unveiled its highly anticipated proposed rules that would allow small (under 55 lbs.) unmanned aircraft systems, commonly referred to as drones, to fly over people and at night, in certain limited situations without special waivers. While the proposed rules are certainly welcome by commercial drone operators, it is clear that lawmakers have recognized that rulemaking cannot keep pace with technological advances and therefore have proposed rules that are performance-based rather than prescriptive. DOT Secretary Elaine Chao stated that the DOT/FAA is “not in the business of picking technology winners and losers. Our philosophy is to encourage the widest possible development of safe new transportation technologies, so consumers and communities can choose the mix of options that suits them best.” Further, these proposed rules for expanded drone operations will not be finalized until the FAA finalizes the proposed rulemaking on UAS remote tracking and identification, which is expected later this year.
The FAA’s draft Notice of Proposed Rulemaking (NPRM), titled “Operation of Small Unmanned Aircraft System over People,” would allow operations of small drones over people in certain conditions and operations of small drones at night without a permit as is now required 14 CFR Part 107. The proposed rule would also require drone pilots to present their FAA certificate to federal, state and local officials upon request and amend the knowledge testing requirements to require training every 24 calendar months.
Night Operations: Currently, FAA regulations prohibit small drone operations at night without a waiver (§107.29). Requests to operate at night are the most common type of waiver requests received by the FAA and, to date, the FAA has not received any reports of small drone accidents while operating under a night waiver. The proposed NPRM would allow routine, small UAS operations at night as long as (1) the operator completes new knowledge testing/training relating to night operations, and (2) the UAS has an anti-collision light illuminated and visible for at least three statute miles.
Operations over People: Current regulations prohibit small drone operations “over people,” which is defined as any part of any person who is not directly participating in the drone operation (i.e. remote pilot in command and person assisting in the safe conduct of the operation) and who is not located under a covered structure or inside a stationary vehicle, without a waiver. The proposed rule would allow operations over people without a waiver under certain conditions depending on the level of risk the operations present to the people on the ground. The FAA proposes three categories of permissible operations over people:
Category 1: Applies only to UAS weighing less than 0.55 lbs (inclusive of any cargo attached to the UAS). The proposed rules would immediately allow remote pilots to conduct operations over people, subject to all existing applicable Part 107 requirements. No UAS design standards will be imposed by the FAA for Category 1 operations.
Category 2: Applies to operators conducting operations over people using drones over 0.55 lbs but less than 55 lbs (inclusive of any cargo attached to the UAS). But Category 2 is not solely weight based; rather, the FAA is proposing a set of performance-based requirements that would allow a small UAS to operate over people if the manufacturer can demonstrate that an impact with a person would not result in an injury more severe than an injury resulting from a transfer of 11 ft-lbs of kinetic energy from a rigid object. Further, UAS must not have exposed rotating parts that could lacerate human skin. Finally, a small UAS would be prohibited from operating over people if it has an FAA-identified safety defect, i.e., any material, component or feature that presents more than a low probability of causing an injury when operating over people.
Category 3: Similar to Category 2, but allows a for a higher injury threshold that is offset by limitations on operations. A Category 3 UAS manufacturer would need to demonstrate that an impact with a person would not result in an injury more severe than an injury resulting from a transfer of 25 ft-lbs of kinetic energy from a rigid object. The same Category 2 requirements regarding exposed rotating parts and safety defects apply as well. Because Category 3 allows for a higher injury threshold and an increased risk to people, the proposed rules include three operational limits: (1) no operations over an open-air assembly of people, (2) operations only allowed within or over a closed- or restricted-access site and anyone in the site must be notified that a drone may fly over them, and (3) for operations not within or over a closed- or restricted-access site, transit over people is allowed but hovering is prohibited.
Manufacturers of Category 2 and 3 UAS would need to submit evidence of compliance with the proposed rules through a Means of Compliance. The FAA will leave to each manufacturer the method they propose to use to show compliance with the rules. After a Means of Compliance has been accepted by the FAA, the manufacturer would then submit a Declaration of Compliance, and if accepted by the FAA, the manufacturer would be able to certify that the UAS was suitable for operations over people. The FAA intends to list publicly all same UAS models for which it has accepted a Declaration of Compliance. While short of issuing a Type Certificate for Category 2 and 3 drones, the FAA has adopted a compliance-based regulatory framework more akin to what is used with Light Sport Aircraft.
Manufacturers will also be required to provide UAS owners with operating instructions that address the types of payloads permissible and other relevant information to the UAS being used in Category 2 or 3 operations. The FAA does not intend to prescribe the format of the instructions, and the instructions would not be subject to FAA review and would not be incorporated into the Declaration of Compliance. Given that many UAS are able to carry many different payloads (e.g. cameras, sensors, etc.), the instructions could become quite lengthy and complicated, potentially exposing manufacturers to significant “failure to warn” product liability claims.
The proposed rules would also amend the knowledge testing framework by requiring remote pilots to complete recurrent training, rather than pass the knowledge test, to maintain a current remote pilot in command certificate with a small UAS rating. The recurrent training, which could be completed online, would occur every 24 months, in lieu of recurrent knowledge testing. There may be many different formats for the recurrent training, including having to compete questions throughout the training session, or by way of an approved proficiency program.
However, as noted above, because these proposed rules have a potential impact on public safety and national security, the FAA does not intend to promulgate a final rule to allow these operations until it finalizes the requirements regarding remote identification of small UAS.
As the FAA continues its efforts to integrate small UAS operations into the National Aerospace System, we can expect continued phased, incremental and risk-based proposed rulemaking that will garner significant comments and discussion from all stakeholders due to the virtually unlimited commercial potential of UAS systems and their very serious public safety, privacy, and national security risks.
Contributing Advisors
Myles CulmerDirector, BDO Advisory Services