In an important development, the FAA has announced a new
regulatory measure that is designed to hasten the integration of drones into the National Airspace System
perhaps more quickly. The FAA announced on February 24, 2015, that it had
formed an Aviation Rulemaking Committee for the purpose of developing
recommendations for a regulatory framework that would allow certain UAS to be
operated over people who are not directly involved in the operation of the
aircraft. The “certain UAS” specifically are micro UAS. As explained in the Aviation Rulemaking Committee Charter:
The Federal Aviation Administration
(FAA) contemplated a “micro” classification of small UAS (sUAS) in the Notice
of Proposed Rulemaking (NPRM) entitled Operation and Certification of Small
Unmanned Aircraft Systems (sUAS Operation and Certification Part 107 Rule),
which published on February 23, 2015. See 80 FR 9544. As discussed in
the NPRM, a sUAS would be defined as a micro UAS if it weighed no more than 4.4
pounds (2 kilograms) and was constructed of frangible materials “that break,
distort, or yield on impact so as to present a minimal hazard to any person or
object.” With additional operating restrictions, an operator of a micro UAS
would be able to conduct flights over “any person.” The FAA invited “commenters
to submit data and any other supporting documentation on whether the micro UAS
classification should be included in the final rule.” After reviewing comments,
the FAA has decided not to proceed with a micro UAS classification in the sUAS
Operation and Certification Part 107 Rule, and has determined that further
engagement with industry and stakeholders is needed before conducting
rulemaking to address the regulatory framework for micro UAS.
The Aviation Rulemaking Committee, or ARC, is specifically
tasked:
[t]o consider recommendations for a
performance-based standard that would allow for micro UAS to be operated over
people who are not directly participating in the operation of the UAS or under
a covered structure. Specifically, the micro UAS ARC will:
a. Develop recommendations for a
performance-based standard for the classification of micro UAS. In developing
the recommendation, the micro UAS ARC should consider, at a minimum, current
and past research on human injury thresholds, hazard and risk assessment
methodologies, and acceptable levels of risk to persons not directly
participating in the operation.
b. Identify means-of-compliance for
manufacturers to show that unmanned aircraft meet the performance-based safety
requirement. The ARC should evaluate the use of consensus standards as a means
of compliance, developing standardized test methods, and other means to
demonstrate compliance with the standard. The ARC should also consider and
recommend how the FAA and manufacturers should determine compliance with the
performance-based standard.
c. Recommend operational requirements
for micro UAS appropriate to the recommended performance-based safety
requirement.
The ARC’s deadline for submitting its recommendation report to
the FAA is April 1, 2016.
This is a significant development for several reasons:
A. The small UAS notice
of proposed rulemaking referenced above to promulgate regulations for the
commercial use of UAS was published on February 23, 2015, more than a year
ago. No order has been issued with the
proposed rules to date. Now, the FAA is
carving out a niche for a the creation of rules for a subcategory of UAS. This is a 180 degree turn for the FAA from
its proposal to promulgate micro UAS rules as part of the overall small UAS
rulemaking in its February 23, 2015 NPRM.
B. There has been a great deal of interest in the micro UAS classification since the beginning of the FAA efforts to promulgate rules governing commercial UAS operation. For example, the UAS America Fund, LLC, established in early 2014 by NEXA Capital Partners, LLC, filed a Petition for Rulemaking on December 18, 2014, asking the FAA to Adopt 14 C.F.R. Part 107 to Implement Operational Requirements for Micro Unmanned Aircraft Systems by direct rule, not by issuing an NPRM. The purpose of the petition was “to unlock the benefits of the commercialization of unmanned aircraft systems, including economic development, technical research, innovation, and job creation in the United States” due to the absence of specific UAS regulation. The FAA did not grant the UAS America Fund, LLC, petition, but did incorporate the petition into the February 23, 2015 small UAS NPRM. Essentially, the UAS America Fund, LLC was trying to jumpstart the adoption of some rules for UAS operation, in advance of what it perceived would be the lengthy ongoing notice of proposed rulemaking (NPRM) process for other categories of unmanned aircraft systems .
B. There has been a great deal of interest in the micro UAS classification since the beginning of the FAA efforts to promulgate rules governing commercial UAS operation. For example, the UAS America Fund, LLC, established in early 2014 by NEXA Capital Partners, LLC, filed a Petition for Rulemaking on December 18, 2014, asking the FAA to Adopt 14 C.F.R. Part 107 to Implement Operational Requirements for Micro Unmanned Aircraft Systems by direct rule, not by issuing an NPRM. The purpose of the petition was “to unlock the benefits of the commercialization of unmanned aircraft systems, including economic development, technical research, innovation, and job creation in the United States” due to the absence of specific UAS regulation. The FAA did not grant the UAS America Fund, LLC, petition, but did incorporate the petition into the February 23, 2015 small UAS NPRM. Essentially, the UAS America Fund, LLC was trying to jumpstart the adoption of some rules for UAS operation, in advance of what it perceived would be the lengthy ongoing notice of proposed rulemaking (NPRM) process for other categories of unmanned aircraft systems .
C.
Presumably the promulgation of rules for micro UAS will move to the front of
the UAS promulgation line. This is
mildly surprisingly, given the length of time since the February 23, 2015 small
UAS NPRM was released and the amount of time the FAA has been considering the
new small UAS rules. However, FAA Deputy
Administrator Michael Whitaker said in testimony on June 17, 2015, before the
U.S. House of Representatives Oversight and Government Reform Committee that
the FAA expected to finalize regulations for commercial
drone operations within the next 12 months.. "Hopefully before June
17, 2016," he added. This may
happen, at least for the micro UAS portion of the regulations, if the ARC meets its deadline of April 1,
2016. If so, then UAS America Fund, LLC
will have been successful in unlocking the small USA industry as it had
originally proposed.
D. The FAA’s request
for comments on micro UAS in its February 23, 2015 small UAS NPRM was specific
and detailed. The FAA devoted five pages
in the February 23, 2015 small UAS NPRM to its analysis and request for
comments concerning micro UAS, including a detailed comparison of Canada’s
existing regulation of micro UAS. The
FAA presumably collected a great deal of information during the original
comment period for the small UAS NPRM.
This should help the ARC in its task in developing its report by April
1, 2016.
