Across the country and around the world, companies are more excited than ever about the benefits unmanned aircraft systems (UAS) can offer. This is evidenced by the large number of Section 333 Exemptions that have been authorized by the Federal Aviation Administration (FAA) —over 4,500 as of today.
Last February the FAA published a Notice of Proposed Rule Making (NPRM) that will broadly authorize commercial operation of UAS. This is a very important step forward and we eagerly await final publication of the rule. However, as currently drafted, the rule will not allow for flights over people. Meanwhile, as we previously blogged about here, a wide range of commercial UAS applications, especially those that typically need to occur in more urban and suburban environments, such as media and newsgathering activities, real estate, infrastructure inspection and, someday, package delivery, will require the flexibility to operate over people.
As such, and as we previously reported here, about six weeks ago the Department of Transportation (DOT) created a Micro-UAS Aviation Rulemaking Committee (ARC) to make recommendations to the FAA for allowing certain UAS to operate over people. On 1st April, the FAA publicly released the ARC’s final recommendations report.
Overall, we view the ARC’s recommendations as a positive first step in developing a common-sense risk-based approach. The ARC report presents the FAA with four categories of UAS operations based on the level of risk.
We urge the FAA to streamline and simplify the rules it eventually adopts from the ARC recommendations.
At the outset, it is important to recognize that the FAA informed the ARC that any recommendations regarding small UAS operations over people would be bound by the regulatory requirements in the Small UAS NPRM. In other words, all of the other requirements in the finalized rules resulting from the Small UAS NPRM would still apply to any UAS operations over people. These requirements include, for example, the requirement for a UAS pilot to have a UAS operator certificate, and restrictions on operating UAS beyond visual-line-of-sight of the operator.
Below is a summary of the four categories:
Category 1 includes small UAS weighing 250g (.55 lbs.) or less. The ARC determined that the level of risk of injury posed by this category of UAS is so low that no performance standards and no operational restrictions beyond those imposed by the proposed part 107 are necessary.
Some members of the ARC recommended that the FAA change the airman certification requirements in the NPRM to allow online testing to satisfy knowledge requirements, and to eliminate in-person visits and background checks. This was the one area of disagreement among the ARC members in the report.
Under Category 2, a small UAS weighing more than 250g may operate over people if it meets certain certification and operational requirements.
Category 3 operations present a higher level of risk than Category 2 operations. As such, operations are prohibited over crowds or dense concentrations of people. Limited operations over people are permitted if the operation is conducted over a closed-site / restricted-access area, or the flight is limited to brief overflight of people incidental to the operation.
Category 4 operations are those that present the same level of risk as Category 3, but that involve sustained flight over crowds and/or dense gatherings of persons. Category 4 operations require the operator to have a risk mitigation plan specific to the operation, similar to what helicopter operators have to submit to the FAA for operations over congested areas.
It is important to note that the ARC report contains only recommendations. The FAA still must review the recommendations and issue a proposed rule for operating UAS over people. During a media briefing conference call yesterday, Earl Lawrence, Director of the UAS Integration Office, stated that the FAA is considering the ARC’s recommendations and that the FAA has begun the process of drafting an NPRM with proposed rules for flights over people. Director Lawrence emphasized that the micro-UAS NPRM was a priority for the FAA, but that it would still likely be several months before an NPRM is issued.
While we view the ARC’s recommendations as a positive first step, there are a lot of commercial UAS operators out there right now that require the ability to fly over people and can do so safely. For these operators, waiting another year or so until there is a final rule stifles business opportunities and makes it difficult for them to achieve real world success. And these are very low risk operations.
In the meantime, we encourage the FAA to adopt the ARC’s risk-based approach for allowing UAS flights over people and hope that it moves quickly through the rulemaking process without delay.
When the NPRM is released it will be very important for all interested parties to submit comments during the public comment period. We will update you with additional information on how to participate in this process as it becomes available.