In Landmark Action, FAA Releases New Rules for Commercial UAS Operation

In a landmark event, Federal Aviation Administration (FAA) has published in the Federal Register on June 28, 2016 (81 FR 42063) a Final Rule entitled "Operation and Certification of Small Unmanned Aircraft Systems" that amends FAA regulations to adopt specific rules for the operation of small Unmanned Aircraft Systems (sUAS) in the National Airspace System (NAS).

 

This rule finalizes the notice of proposed rulemaking entitled Operation and Certification of Small Unmanned Aircraft Systems in Docket No. FAA-2015-0150, 80 Fed. Reg. 9,544 (February 23, 2015).  This rule will add a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for routine civil operation of small UAS (i.e., drones) in the NAS and to provide safety rules for those operations.

The key element to this new part 107 to CFR Title 14 is to allow commercial operation of Small UAS.  The FAA states in the Final Rule that “This Part 107 small UAS rule is an “enabling rule,” which effectively reduces the cost of entry into the non-recreational, non-hobby (or “commercial”) market for UAS services.”

Other key elements are as follows:

•Unmanned aircraft must weigh less than 55 lbs. (25 kg).

•Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in Command and the  person manipulating the flight controls of the small UAS.

•Small unmanned aircraft may not operate over any persons  not directly participating in the operation

•Daylight -only operations.

•Must yield right of way to other aircraft.( “see-and- avoid”  requirement)

•Maximum groundspeed of 100 mph (87 knots).

•Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure.

•Transportation of property for compensation or hire allowed under certain circumstances.  Note: No transportation of property for compensation or hire is allowed between the District of Columbia and another place in the District of Columbia. See 49 U.S.C. 40102 (a) (25).

•a remote pilot in command must operate a small UAS and must either hold a remote pilot airman certificate with a small UAS rating or be under  the direct supervision of a person who does hold a remote  pilot certificate (remote pilot in command),

•Part 107 does not apply  to model aircraft that satisfy all of  the criteria specified in section 336 of Public Law 112-95.

• Part 107 codifies the FAA’s enforcement authority in Part 101 by prohibiting model aircraft operators from endangering the safety of the NAS.

See a copy of the complete FAA Summary of Part 107 here.

The Final Rule is effective August 29, 2016. 

A more detailed analysis of the Final Rule will follow in future posts.

FAA Reauthorization Act of 2016 Analysis

The United States Senate passed H.R.636, the  Federal Aviation Administration Reauthorization Act of 2016 (“Reauthorization Act") on April 19, 2016.  The Reauthorization Act contains many key provisions which, should they survive the committee process (The House of Representative’s version, entitled the Aviation Innovation, Reform, and Reauthorization Act of 2016 was reported from committee on February 11, 2016.)  The Senate version is substantially different from the House version.  The following is a series of posts which will provide an analysis of each of the major provisions in the Senate version relating to UAS.

One key provision of H.R. 636 is Section 2152, entitled “Effect On Other Laws.”  This section in no uncertain terms establishes the federal preemption of the rules governing unmanned aircraft systems.   

SEC. 2152. EFFECT ON OTHER LAWS.

(a) Federal Preemption- No State or political subdivision of a State may enact or enforce any law, regulation, or other provision having the force and effect of law relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.

(b) Preservation of State and Local Authority- Nothing in this subtitle shall be construed to limit a State or local government's authority to enforce Federal, State, or local laws relating to nuisance, voyeurism, privacy, data security, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of unmanned aircraft systems if such laws are not specifically related to the use of an unmanned aircraft system.

(c) No Preemption of Common Law or Statutory Causes of Action- Nothing in this subtitle, nor any standard, rule, requirement, standard of performance, safety determination, or certification implemented pursuant to this subtitle, shall be construed to preempt, displace, or supplant any State or Federal common law rights or any State or Federal statute creating a remedy for civil relief, including those for civil damage, or a penalty for a criminal conduct. Notwithstanding any other provision of this subtitle, nothing in this subtitle, nor any amendments made by this subtitle, shall preempt or preclude any cause of action for personal injury, wrongful death, property damage, or other injury based on negligence, strict liability, products liability, failure to warn, or any other legal theory of liability under any State law, maritime law, or Federal common law or statutory theory.

While there are concession so lawmakers such as Senator Dianne Feinstein that wanted to vest control of UAS regulation in the state and local authorities, the Federal preemption of UAS regulation  os clear and well-grounded.

This is consistent with FAA’s well-established  position on federal preemption of UAS.  For instance, the FAA issued its State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Federal Aviation Administration, Office of the Chief Counsel, on December 17, 2015 (“FAA UAS Regulation Fact Sheet”.  In the FAA UAS Regulation Fact Sheet, the FAA set out clearly the basis for the need for federal preemption:

Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system. See Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); see also Arizona v. U.S., 567 U.S. ___, 132 S.Ct. 2492, 2502 (2012) (“Where Congress occupies an entire field . . . even complimentary state

regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.”), and Morales v. TransWorld Airlines, Inc., 504 U.S. 374, 386-87 (1992).

As discussed elsewhere in this blog, Federal preemption is perhaps the most important legal topic in our nation of laws, and the we will now have to wait and see how forcefully the final FAA Reauthorization Act legislation  embodies this authority.

The Micro Unmanned Aircraft Systems Aviation Rulemaking Committee Addresses UAS Flight Operations Over People

The Micro Unmanned Aircraft Systems Aviation Rulemaking Committee (“ARC”), ARC Recommendations Final Report (“ARC Final Report”) was submitted to the Federal Aviation Administration (FAA) on April 1, 2016.  The mission of the ARC was to provide recommendations to the FAA Administrator on a regulatory framework for the classification and operation of micro UAS. Specifically, “The ARC was established specifically to address flight operations over people.”  See Footnote 1 of the ARC Final Report.   The ARC,  composed of members representing aviation stakeholders, including the UAS industry and other stakeholders, took their responsibility quite literally, by examining factors that would allow the flight over people without examining much else.  The report seems to focus entirely on risk factors, i.e., the analysis of impact  on people:

-p 5.  “The ARC agreed to establish risk thresholds based on the probability that direct impact with a person on the ground from a UAS would cause an injury that qualifies as level 3 and above on the Abbreviated Injury Scale (AIS)”

-p. 6. “Based on the information received, the ARC agreed that the metric used to quantify an acceptable probability of an AIS level 3 and above injury should be the impact energy of the small UAS, expressed in joules (J)/centimeter² (cm²). For a particular model of small UAS to qualify for operations over people, the manufacturer of that model will therefore have to certify that the product’s impact energy, as measured by a test established by an industry consensus standards body, does not, in the most probable failure modes, exceed a specified threshold. The intent of the test should be to establish the typical or likely impact energy of the most probable failure mode, and not simply the worst case condition.”

Consequently, the four categories of UAS (except for Category 1) are not based on size but on risk factors based on impact energy:

-Category 1 - for this category of UAS, the ARC recommends a maximum risk impact threshold of a 1% chance of AIS level 3 or greater injury, based on kinetic energy transfer at impact. The impact kinetic energy transfer standard and industry consensus standards are more fully explained in the Category 2 discussion. For simplicity, the ARC recommends using a weight-based measure instead of an impact kinetic energy measure for Category 1… The manufacturers will be required to indicate on the retail packaging the actual flying weight, or a statement that the aircraft weight is less than 250 grams. To provide flexibility in the future, the ARC does, however, recommend that the FAA invite industry to create voluntary, non-binding standards for product marking of UAS weighing 250 grams or less to make it clear to users that these UAS meet the requirement to operate over people.

Category 2 - Category 2 prescribes the performance standards and operational restrictions for operations over people that are conducted by unmanned aircraft that weigh more than 250 grams, but still present a 1% or less chance of “serious” injury (AIS level 3 or greater) to a person in the event of impact. The standard to determine whether the UAS meets the risk criteria will be an impact energy threshold based on information presented to the ARC, and calculated by the FAA in J/cm². During its meetings, the ARC was presented with information from Canada and the commercial space industry suggesting that this calculation would result in a value of 12 J/cm2 and that a quadcopter UAS weighing in the range of 4 to 5 pounds would qualify, depending on its design characteristics and operating instructions. The ARC recommends that the FAA calculate this exact impact energy threshold for the proposed flight-over-people rule.

Category 3 - Specifically, the ARC recommends that a small UAS be permitted to conduct limited operations over people (as defined below) if that UAS presents a 30% or lower chance of causing an AIS level 3 or greater injury upon impact with a person. The ARC recommends that the FAA also establish an impact energy threshold for this risk level based on information presented to the ARC, in J/cm².

Category 4 - Category 4 includes operations conducted by UAS operators that present the same risk as UAS conducting Category 3 operations over people, but without Category 3 operational limitations, and therefore require a risk mitigation plan specific to the operation (discussed below in Section 4.3.4). The industry consensus standards for this category are also the same as the standards for Category 3, but with the addition of the risk mitigation plan, which may include coordination with the FAA or event sponsor, municipality or local law enforcement, and pilot training, experience and certification commensurate with the increased risk, as determined by an industry consensus standard.

In addition to safety of persons on the ground, the recommended addition of engagement with appropriate third parties is intended to address concerns about the social acceptance of operating a UAS over large gatherings or events. It is the ARC’s recommendation that this facilitation of local engagement, while not intended as a delegation of jurisdiction over UAS operations, will be helpful to address community concerns.

I added the emphasis because this language establishes  that  a significant part of the Category 4 operations will be coordination with local law enforcement.  The FAA has been recommending this for some time, as the agency does not have the resources to police all UAS infractions themselves.  See  Law Enforcement Guidance For Suspected Unauthorized UAS Operations, January 8, 2015, here (“While the FAA retains the responsibility for enforcing Federal Aviation Regulations, including those applicable to the use of UAS, the agency also recognizes that state and local Law Enforcement Agencies (LEAs) are often in the best position to deter, detect, immediately investigate, and, as appropriate, pursue enforcement actions to stop unauthorized or unsafe UAS operations.”) 

The report leaves the development of industry standards to the future, in which industry stakeholders should have the opportunity to participate.  The final form of H.R. 636, the Federal Aviation Administration Reauthorization Act of 2016 will dictate the methods by which those standards will be developed.

The FAA's New Aerospace Forecast Report Is Bullish On UAS

In a press release dated March 24, 2016, the FAA announced that it has released its annual Aerospace Forecast Report Fiscal Years 2016 to 2036 which finds a sustained increase in overall air travel during that period of time.  The Forecast also finds a sustained increase in the use of Unmanned Aircraft Systems (UAS).

The press release states that :

A key portion of the forecast focuses on projections for the growth in the use of unmanned aircraft, also known as drones. The FAA estimates small, hobbyist UAS purchases may grow from 1.9 million in 2016 to as many as 4.3 million by 2020.  Sales of UAS for commercial purposes are expected to grow from 600,000 in 2016 to 2.7 million by 2020.  Combined total hobbyist and commercial UAS sales are expected to rise from 2.5 million in 2016 to 7 million in 2020.

Predictions for small UAS used in the commercial fleet are more difficult to develop given the dynamic, quickly-evolving nature of the market. Both sales and fleet size estimates share certain broad assumptions about operating limitations for small UAS during the next five years: daytime operations, within visual line of sight, and a single pilot operating only one small UAS at a time.  The main difference in the high and low end of the forecasts is differing views on how those limitations will influence the widespread use of UAS for commercial purposes.

See the press release with a link to the Forecast here.

While government projections must always be taken with a grain of regulatory salt, it is important to note that sales of UAS for commercial purposes will not grow without the promulgation of the rules governing he commercial use of drones.  The eagerly –awaited Report of the Micro UAS Aviation Rulemaking Committee (“ARC”) which reportedly has been submitted to the FAA should provide a window into the strategy of the FAA to craft the new rules for commercial UAS and perhaps also shed some light on a possible timetable for the issuance of said rules, the rulemaking for which is now more than  thirteen months old.