The benefits of commercial drones are substantial. However, current rules limit the commercial marketplace from being able to take advantage of some of drone technology’s most obvious safety and efficiency benefits. To capitalize on the life-saving and economic benefits of drones, companies need to be able to fly in urban and suburban environments, where people are. To respond to disasters, they may need to fly near cities. Countless commercial drone use cases rely
on the ability to fly over people.
Recognizing this, in an effort to continue moving Unmanned Aircraft Systems (UAS) integration forward, earlier this week, U.S. Secretary of Transportation, Elaine Chao, announced two regulatory actions covering expanded UAS operations: A proposed rule on operations over people and at night, and a drone security “pre-rule” designed to enable the integration of drones into our national airspace in a way that is safe and secure. The industry has been awaiting these regulatory actions for two years, so the announcement was a welcome development.
1. Notice of Proposed Rulemaking (NPRM) – Operations Over People and at Night
First, the Federal Aviation Administration (FAA) released a draft NPRM that would allow for operations of small UAS at night and over people in certain conditions without obtaining a waiver. Under the proposed regulations, for night operations, a remote pilot in command may operate a small UAS at night as long as: 1) The remote pilot has satisfactorily completed updated knowledge testing or training requirements; and 2) the small unmanned aircraft maintains certain anti-collision lighting that remains lit throughout the flight.
For operations over people, which are more complex, no waiver would be required under certain conditions, based on the level of risk the sUAS is deemed to present to people on the ground. The proposed rule imposes certain requirements on manufacturers and others on operators.
The FAA divides operations into three categories of permissible operations over people. Category 1 operations, i.e. those utilizing sUAS of 0.55 pounds or less, would be broadly allowed to fly over people. Category 2 and 3 operations would require compliance with a performance-based set of parameters in order to fly over people.
Among other requirements, Category 2 and Category 3 have injury threshold requirements. First, the sUAS must be designed such that it will not result in an injury to a person as severe as the injury that would result from a transfer of 11 ft-lbs of kinetic energy (Category 2) or 25 ft-lbs of kinetic energy (Category 3) from a rigid object. Second, the FAA proposes that the sUA would not have exposed rotating parts that could lacerate human skin. Third, no small UAS could be operated over people if it has an FAA-identified safety defect. For Category 2, a safety defect would be any material, component, or feature that presents more than a low probability of causing a casualty when operating over people (a casualty being a serious injury, which corresponds to a level 3 injury on the Abbreviated Injury Scale). For Category 3, the safety defect would be one that presents more than a low probability of causing a fatality when operating over people.
Category 3 allows for a higher injury threshold than Category 2, but limits an individual’s exposure to the risk of injury through three operational limitations: (1) a prohibition on operations over any open-air assembly of people; (2) the operations would have to be within or over a closed or restricted-access site and anyone within that site would have to be notified that a sUA may fly over them; (3) for operations not within or over a closed or restricted-access site, the sUA may transit but not hover over people.
Before a Category 2 or Category 3 sUA could be used to fly over people, the manufacturer would be required to demonstrate, to the FAA’s satisfaction, that the aircraft met these injury threshold requirements through a Means of Compliance (i.e., the method a manufacturer would use to show that its small UAS would not exceed the injury threshold upon impact with a person). The FAA’s proposal does not tell manufacturers which method or test to use to establish compliance, instead allowing the manufacturer to develop a test and present evidence to the FAA showing that the test is appropriate and accurately demonstrates compliance.
Notably, the NPRM discusses the importance of security and notes that the FAA plans to finalize the remote identification rulemaking prior to finalizing the proposed expanded operations rule. The proposed rule would also expand the categories of operations from which a Part 107 waiver could be sought.
2. Drone security “pre-rule”
Second, the FAA released a draft Advanced Notice of Proposed Rulemaking which seeks input and information from the public on drone security issues around how to balance innovation with law enforcement and national security needs. Topics covered include whether and in what circumstances the FAA should promulgate new rulemakings to require stand-off distances, additional operating and performance restrictions, the use of UAS Traffic Management (UTM),
additional payload restrictions, design requirements, and critical safety systems.
The FAA, and perhaps other agency partners, may design rules around the feedback the agency receives. Any company or organization interested in drone security issues ought to consider filing public comments for consideration. There will be a comment period of 60 days after publication in the Federal Register.
These regulatory actions will be discussed at our upcoming Domestic Drone Safety and Security Event on April 9, 2019. If you have not yet registered, space is filling quickly; please RSVP today.