Saturday, February 27, 2016

FAA Creates Aviation Rulemaking Committee For Micro UAS Rules

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 . 

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.

E.  A key element of the ARC’s mandate is recommending standards “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.”  In other words, autonomous flight, which is the Holy Grail for industry stakeholders Amazon, Google, and other companies involved with the FAA  in the development of commercial drone delivery systems.  At the same congressional hearing at which Deputy Administrator Whitaker testified last June, At the same hearing, a senior executive told lawmakers that the e-commerce retailer would be ready to begin delivering packages to customers via unmanned aircraft when the regulations are in place, according to Reuters.  "We'd like to begin delivering to our customers as soon as it's approved," said Paul Misener,'s vice president of global public policy. "We will have it (the technology) in place by the time any regulations are ready. We are working very quickly."  So it appears that Amazon and Google’s efforts to push the regulations for commercial drone usage may bear fruit in the near future.  While the micro UAS rules may not end ultimately be included in the proposed Part 107 rules for small UAS, that may not matter to the industry stakeholders who are eager to initiate commercial operation of  any kind of small UAS. 

No comments:

Post a Comment