In May, the National Transportation Safety Board (“NTSB”) issued a Safety Alert, “See and Be Seen: Your Life Depends on It; Maintaining Separation from Other Aircraft,” urging pilots to constantly and vigilantly scan the skies for traffic throughout every flight, and clearly indicate their intentions at all times. The Safety Alert was promulgated in light of incidents involving aircraft narrowly avoiding collision in cruise flight during ideal daytime meteorological conditions that were later found to be related to distractions in the cockpit.

The FAA’s recent Notice of Proposed Rulemaking (“NPRM”) for small unmanned aircraft systems (“sUAS”) echoes the NTSB’s “See and Be Seen” alert. Addressing concerns that the sUAS operator cannot “see and avoid” other aircraft in the manner as a pilot who is inside a manned aircraft, proposed rule 14 C.F.R. § 107.31 would require that the operator or visual observer must be able to see the sUAS throughout the entire flight to “observe the airspace for other air traffic or hazards.” Similarly, for manned aircraft, under 14 C.F.R. § 91.113(b), “vigilance shall be maintained by each person operating air aircraft so as to see and avoid other aircraft,” which the FAA describes as “the heart of the FAA’s regulatory structure mitigating the risk of aircraft colliding in midair.” The NPRM also proposes that the operator and the visual observer of the UAS would be required to remain in constant communication and coordinate to, “(1) scan the airspace where the small unmanned aircraft is operating for any potential collision hazard; and (2) maintain awareness of the position of the small unmanned aircraft through direct visual observation,” See 14 C.F.R. § 107.33 (proposed).

To further enable “maximum visibility for [sUAS] operation” and to ensure that sUAS “always yield the right-of-way to other users in the [national airspace],” the FAA also proposes to limit sUAS use to daylight-only operations. The FAA proposed the rule because of the relatively small size of the sUAS and the difficulty in being able to see it in darker environments to avoid other airspace users. This daylight-only restriction is also imposed upon current Section 333 exemption operators, but some petitioners are seeking relaxation of the daylight requirement.

Apart from its rulemaking, the FAA has partnered with several industry associations to promote safe and responsible UAS use and supports the “Know Before You Fly” campaign. The campaign instructs recreational users to follow community-based safety guidelines from the Academy of Model Aeronautics, whose safety code includes “[s]ee and avoid all aircraft and a spotter must be used when appropriate.”

Both the FAA and NTSB have expressed a concern about the risks of pilots and operators not being able to see other airspace users. The recent NTSB efforts to acknowledge and mitigate potentially dangerous encounters may lead to future agency actions, and even further regulations for UAS operators.