The US Secretary of Transportation Elaine Chao and the US Federal Aviation Administration ("FAA") released a long-awaited proposed rule permitting unmanned aircraft system ("UAS" or "drone") operations at night and over people. It will allow commercial operators to fly UAS operations previously restricted under the current Part 107 rules (14 C.F.R. §107) without an individualized waiver from the FAA (14 C.F.R. §107.200). Comments are due on April 15, 2019.
These rules show that the FAA is advancing from a one-size-fits-all regulatory structure to a more nuanced regime based on risk and safety analyses. For the most part, the rule is not based solely on weight. Instead, it incorporates performance-based requirements to achieve the agency's safety objectives. Basing UAS restrictions on performance and risk is more consistent with European rules and other countries with advanced UAS regulations.
While the proposed rule represents a step in the right direction, the rule is not likely to be finalized for many months or longer, because the FAA indicated the rule would not be finalized until after the FAA addresses the contentious issue of remote identification of UAS. In the proposed rule—which is expected to be published in the Federal Register next week—the FAA states that it "plans to finalize its policy concerning remote identification of small UAS—by way of rulemaking, standards development, or other activities that other federal agencies may propose—prior to finalizing the proposed changes in this rule."
Nighttime UAS Operations without a Waiver
Currently, the FAA prohibits commercial operators from UAS operations at night (14 C.F.R. §107.29) without a waiver of the restriction. Baker McKenzie's Global Aviation team secured the first approval for nighttime operations in 2015. Since then, nighttime operations have become relatively common, as the FAA has issued thousands of waivers from the prohibition. The FAA has issued more waivers for nighttime operations than for any other provision of the Part 107 UAS regulations for commercial operators.
Under the new rule, operators would not need to apply to the FAA for an individualized waiver for operations at night. The operations would be permitted as long as:
- The remote pilot has satisfactorily completed updated knowledge testing or training requirements; and
- The UAS maintains an anti-collision light that remains lit throughout the flight.
This change, once finalized, will lessen the paperwork and applications required by the FAA for operators to perform a relatively low-risk operation, that otherwise must comply with all requirements of Part 107. However, by pairing this new authority for nighttime flights with the more complex rule regarding operations over people, the benefits of waiverless flights to nighttime operators will be delayed.
UAS Operations over People
The other portion of the proposed rule addresses operations over people, which are also currently prohibited The FAA proposes three categories of permissible operations over people based on the risk of injury they present: Category 1, Category 2, and Category 3, each of which have increasing manufacturer and operator requirements per category.
Category 1 is simple and straightforward: operators would be able to fly small UAS weighing 0.55 pounds or less ("micro-UAS") over people, subject to the other Part 107 Rules. Category 1 does not have design requirements, only the requirement to be lightweight. The FAA has determined that due to the weight restriction in the category, only limited injury could occur to a person in the case of an incident.
Category 2 is not solely weight-based. The FAA proposes a set of performance-based requirements that would allow a UAS to operate over people if the manufacturer can demonstrate that, if the UAS crashed into a person, the resulting injury would be below a certain severity threshold. The requirements specific to Category 2 would have three parts: (1) The UAS must be designed, upon impact with a person, to cause a less severe injury than a transfer of 11 ft-lbs of kinetic energy from a rigid object; (2) The UAS would not have exposed rotating parts that could lacerate human skin; and (3) The UAS could not be operated over people if it has an FAA-identified safety defect. For Category 2 operations, 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.
Category 3 involves both design and operational restrictions, because the injury threshold is greater. The three design restrictions are: (1) The UAS must be designed, upon impact with a person, to cause a less severe injury than a transfer of 25 ft-lbs of kinetic energy from a rigid object; (2) The UAS must not have exposed rotating parts that could lacerate human skin; and (3) The UAS could not be operated over people if it has an FAA-identified safety defect. Category 3 is distinct from Category 2, however, because the safety defect would be one that presents more than a low probability of causing a fatality when operating over people.
Unlike the first two categories, Category 3 involves operational restrictions in addition to the design restrictions outlined above. First, the proposal would prohibit operations over any open-air assembly of people. Second, 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 UAS may fly over them. Third, for operations not within or over a closed- or restricted-access site, the UAS may transit but not hover over people.
Other Aspects of the Proposed Rule
The proposed rule also included additional regulations related to operations over people and at night. For example, the rule includes a marking requirement that any UAS used for Category 2 or 3 operations would have to be marked with a label that identified it as either Category 2 or 3 (or both). The rule also expands the definition of "manufacturer" to include any person who modifies a UAS and would hold all operators responsible for following the manufacturer's instructions that accompany the UAS.
This rule proposes to include three additional types of waivers from Part 107 restrictions not previously available from the FAA. The first is a standalone waiver that would apply to operations over moving vehicles. The second would permit an operator to seek a waiver to conduct operations over people that would not otherwise meet the requirements of this proposed rule. The third would permit an operator to seek a waiver of the anti-collision lighting requirement for night and civil twilight operations.
By the FAA's own admission, this proposed rule will not be finalized until after the FAA addresses the thorny issue of remote identification of UAS. As the timetable for remote identification is unclear, operators have no clarity when these new authorities will be granted. However, following the concerns regarding UAS enforcement following alleged incidents of UAS near airports in the UK and the US, we expect the FAA to focus on UAS safety and security rather than granting broader UAS operational authority in the coming months.