Part 107 Waivers/Authorizations

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.

Image result for avitas systems imagesThe commercial unmanned aircraft systems (UAS or drones) market is taking off in the United States and around the world. Recent innovations have transformed what used to be considered toys into powerful tools that provide substantial safety and efficiency benefits to the commercial industry, governmental institutions, and the public.

However, many of the most promising drone-use cases require the ability to fly long distances beyond the range of human sight. Whether drones are being used to inspect oil and gas and other critical infrastructure in remote locations, respond to natural disasters like hurricanes, or deliver packages, companies need to be able to fly drones beyond visual line of sight (BVLOS) of the pilot.

However, under the current regulatory framework for commercial drone operations in the United States (Part 107), drone flights BVLOS of the pilot are prohibited without an approval from the Federal Aviation Administration (FAA), and those approvals often have conditions that can limit their commercial usefulness.

The FAA recently issued Avitas Systems, a GE venture, a precedent-setting exemption that opens the door to true commercial BVLOS operations. The exemption allows Avitas Systems to operate its UAS BVLOS of the pilot in Texas’ Permian Basin for critical infrastructure inspections and the permission granted to them is unique in that it does not require the use of visual observers.

As of October 25, the FAA has issued 2,174 Part 107 waivers – but only 24 of them (or .011 percent) are BVLOS waivers (with a few additional BVLOS exemptions that have been approved). While the FAA and industry have referred to these previously granted approvals as “BVLOS,” all of these approvals required the use of more visual observers to constantly visually scan the airspace with their eyes to identify other aircraft that could create a collision hazard with the drone. This method is limited in its utility; it requires the use of more personnel on site, which can be expensive and impractical for many real-world drone operations that require long-range flights, often in rural remote areas.

Instead of having to rely on human eyes as the primary means of deconfliction with other aircraft, the FAA has authorized Avitas Systems to use a ground-based radar system to detect other aircraft flying at low altitudes near the area of operation. This is the first FAA-approved use of radar for civil BVLOS operations.

The ability to operate in the Permian Basin is hugely important for Avitas Systems, and the BVLOS permission is just as significant for the commercial drone industry at large. Avitas Systems’ new permission represents a very important development for oil and gas safety, and for the commercial drone industry at large. The FAA’s willingness to approve BVLOS operations that rely on technology mitigations, like ground-based radar, as opposed to impractical operational mitigations like visual observers, is a strong step in the right direction as we seek to bring the safety and efficiency benefits of commercial drones to the American people.

Allowing BVLOS operations is also a boon to transportation safety in the Permian Basin. According to 2018 statistics published by the Texas Department of Transportation, a vehicular fatality occurred every 37 hours across 16 counties in the Permian Basin for the first four months of 2018. UAS technology is valuable in helping address these numbers by reducing the number of hours that inspectors travel on a regular basis to perform surveillance activities in remote areas. The use of UAS technology also facilitates the fulfillment of critical safety and environmental goals of the oil and gas industry and government agencies.

Avitas Systems used AiRXOS’ waiver and exemption service for system design, safety mitigation, testing, analysis, and validation support in obtaining the BVLOS permission. Avitas Systems was also supported by AiRXOS and Shell Air Transport – Americas. Partner Lisa Ellman and Senior Associate Matthew J. Clark of Hogan Lovells assisted the team through the FAA exemption process.

Drones are the future of transportation and information technology. Recent innovations have transformed what used to be considered toys into powerful tools that provide substantial safety and efficiency benefits to commercial industry, educational institutions, humanitarian NGOs, and the public.  Once properly enabled, the integration of drones into our nation’s National Airspace System will save countless lives and have a significant economic impact here in the United States.

However, many of the safety and efficiency benefits of drones require the ability to operate over people. To respond to disasters, or deliver packages, or gather the news, companies need to be able to fly in urban and suburban environments, where people are. The current regulatory framework does not allow for flights over people without a Part 107 Waiver from the FAA.  But according to one recent study of FAA Part 107 waivers granted and denied to-date, a waiver to operate over people is the most difficult waiver to receive from the FAA. This makes the new and precedent-setting FAA Part 107 Waiver issued to CNN for operations over people all the more important.

The FAA recently issued the first ever Part 107 Waiver authorizing drone operations over people for closed-set filming to CNN. This is a significant success for not just film and media companies, but for large swaths of the commercial drone industry.

To understand the significance of the new operations over people waiver issued to CNN, some background on Part 107, the rule broadly authorizing commercial operations with small UAS (drones), and the FAA’s history of approving closed-set filming drone operations under the “Section 333” process is necessary.

Background: History of Closed Set Filming under Section 333 Exemptions

Building off its historical practice of issuing waivers to authorize helicopter operations at low altitudes over people for closed-set motion picture and television filming, in September 2014 the FAA issued the first “Section 333” exemptions to six different Hollywood film companies to allow drone flights over people on a movie set. As part of its review process, the FAA correctly recognized that operations over people who are involved with and have consented to an operation should be treated differently than operations over members of the public, and that different policy frameworks should govern each. Notably, “participants” in the Section 333 closed-set filming context were defined as people associated with the filming production who acknowledged and accepted the risks associated with the drone operations.  This definition was broader than the flightcrew only.

By the time Part 107 became effective in August 2016, the FAA had issued over 500 of these closed-set filming exemptions. There were no known safety incidents.  These exemptions had a limited duration of two years.

Part 107 Waiver Process

Implemented in August 2016, Part 107 was an important step forward for the commercial UAS industry. However, Part 107 limited operations in critical ways.  Significantly, the rule prohibited flights directly over people other than the flightcrew. “Participants” was defined narrowly under Part 107, and unlike the Section 333 context, did not include people who acknowledged and accepted the risks associated with the drone operations.  Under this narrow definition of a “participant,” personnel engaged in activities related to what the drone is being used for are nonparticipants, just as if they were any other member of the general public. This prohibition has created significant obstacles for commercial drone operators that want to use drones near, around, and over people, as a waiver would therefore be necessary to fly a drone over participants other than the flightcrew.

Meanwhile, as Part 107 took effect, the FAA phased out Section 333 exemptions. So the question then became whether the Part 107 Waiver process would provide companies with a viable path forward for conducting operations over participants other than the flightcrew.

Until now, there did not appear to be a viable path forward. In reviewing waiver applications, the FAA for months utilized only very conservative thresholds for assessing the risks associated with drone operations over people.  Consistent with the framework proposed by the Micro-UAS Aviation Rulemaking Committee (Micro-UAS ARC) for flights over people, the FAA’s review process focused solely (or almost entirely) on kinetic energy at impact. In other words, the FAA asked only: How hard will a drone hit someone if it falls from the sky? While this kinetic injury-based approach to assessing risk has value in simplicity, it fails to account for the full scope of operational and technical mitigations adopted by many applicants to help ensure safety.  Moreover, a kinetic injury-based approach will only work if the thresholds adopted are reasonable.  As we previously blogged about here, even the FAA’s own commissioned report on UAS human collision hazards suggests that previously considered thresholds were too conservative and did not accurately reflect the risks to a person of being struck by a falling drone.

The Significance of the New Part 107 Waiver

The FAA took a critical step forward with its issuance of CNN’s new Part 107 Waiver. On the surface, the waiver is important for the commercial drone industry because it is the first waiver authorizing drone operations over people for closed-set filming.  But its real significance goes deeper: With this new waiver, the FAA has once again recognized (correctly) that different policy frameworks should govern operations over people who are involved with the work being performed and have consented to the risks of drone overflight, versus operations over general members of the public.  Unlike prior FAA Waivers issued for operations over people, the FAA did not look solely to the kinetic energy of a falling drone for its risk assessment.  The waiver authorizes CNN to operate any drone weighing less than 55 pounds over people with no altitude restrictions (beyond those that apply generally to all Part 107 operations).

Importantly as well, the category of people over whom CNN is authorized to fly drones under the new Part 107 Waiver is broader than what used to be permitted in the Section 333 closed-set filming context.  In the Section 333 context, the ability to fly over people only applied to operations conducted for the purpose of closed-set motion picture and television filming and production.  In this new precedent-setting waiver, the authority to fly over people is not tied to any specific type of operation.  Under the CNN waiver, authorized persons whom the drone can fly over include people “necessary to accomplish the work activity directly associated with the operation…

This is a big deal because it sets a precedent for not just film and media companies, but for other industries that also need to operate over people. The authority that CNN has to fly over news broadcasters on a film set could apply just as equally to flights over workers on a construction site or plant personnel at a critical infrastructure facility.

We should all be thankful for this step forward for the commercial drone industry. The new CNN waiver marks a common sense step forward as the FAA seeks to allow safe and expanded drone operations over people.  We hope that broad authorization in the form of a reasonably-crafted “operations over people” rulemaking will come next.

For additional information, see our press release on CNN’s new Waiver here.