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 Amazon.com 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, Amazon.com'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. 

Super Bowl 50 Is A No Drone Zone

The Federal Aviation Administration in Washington, D.C., has issued a public service announcement that the airspace around Levi’s Stadium is a No Drone Zone during the Super Bowl.   Temporary Flight Restrictions will prohibit certain aircraft operations, including unmanned aircraft operations, within a 32-mile radius of the stadium in Santa Clara, Calif. on game day. The restrictions will be in effect from 2 p.m. to 11:59 p.m. on Sunday, Feb. 7.

The FAA produced a 20-second video that tells people to bring their lucky jerseys, face paint and team spirit to the game–but leave their drones at home because the stadium is a No Drone Zone. The agency is promoting the video on Twitter, Facebook, YouTube and the FAA website. See the video here

Analysis of the FAA's Interim Final Rule Governing UAS Registration

As noted in the previous post, the FAA has determined that it is time in the development of UAS regulation and operation  to enforce the applicability of the statutory requirements regarding aircraft registration to UAS, including those operating as model aircraft. In response to the Clarification and Request For Information document in Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration (“Clarification”) in Docket No. FAA-2015-4378, 80 FR 63912 (October 22, 2015),   the FAA has now issued an Interim Final Rule ("IFR") clarifying these statutory requirements and issuing a request for further information.  See Registration and Marking Requirements for Small Unmanned Aircraft, 80 FR 78593 (December 16, 2015) .

In the Clarification, the FAA requested comments on the following specific issues: 

1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?

2. At what point should registration occur (e.g. point-of-sale or prior-to-operation)? How should transfers of ownership be addressed in registration?

3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?

4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.

5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?

6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?

7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?

8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?

9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (e.g. PayPal)?

10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?

The Federal Aviation Administration (FAA) chartered the Unmanned Aircraft Systems (UAS)Registration Task Force (RTF) Aviation Rulemaking Committee (ARC) (Task Force) to provide recommendations to the FAA “on registration requirements and process for small UAS, including those used for commercial purposes, and all model aircraft.”  On October 20, 2015.  The Task Force issued its recommendations in a Final Report on November 21, 2015.

Robert E. Kelly on behalf of NetMoby, Inc., on November 6, 2015, submitted timely comments in reply to the Clarification which submission addressed the issues above. 

Not surprisingly, the Task Force, comprised  almost entirely of aviation industry companies and businesses with an acute interest in the development of the drone industry, such as Amazon and Wal-Mart,  issued recommendations that were not followed in toto by the regulatory-minded FAA.  

The following will analyze the IFR and which elements of the above list of issues were adopted in the Task Force's Report and which of NetMoby’s  comments were adopted as well. 

1.  Unmanned Aircraft Covered By The Registration Requirement. 

The FAA’s IRF requirement for the category of UAS covered by the IRF is:

Unmanned aircraft weighing less than 55 pounds and more than 0.55 pounds (250 grams) on takeoff, including everything that is on board or otherwise attached to the aircraft and operated outdoors in the national airspace system.

This requirement follows the Task Force recommendation to the letter.  NetMoby had recommended that all UAS below 55 pounds be registered, but acknowledges the concern that aircraft weighing less than 0.55 pounds (250 grams) might be considered toys.  However, the Task Force in its Report did note that an object with a kinetic energy level of 80 Joules (or approximately 59 foot-pounds) has a 30% probability of being lethal when striking a person in the head. Solving for mass and velocity, this equates to an object weighing 250 grams traveling at a terminal velocity of 25 meters/second or approximately 57 miles per hour. 

2.  Timing of Registration

The FAA determined that “Owners of small unmanned aircraft must register their aircraft prior to operation of the sUAS (small UAS").” 

Both the Task Force and NetMoby recommended registration prior to operation of the UAS, rather than at point of purchase.  As NetMoby pointed out, it  should be clear that registration by the owner is a pre-condition to legal operation of the UAS and should be the responsibility  of the owner, not  the entity selling the  UAS.  Furthermore, the point-of- sale approach would be an enormous burden on the merchant selling the UAS. It would also present a problem discriminating against brick-and-mortar merchants versus those selling UAS online. The purchase transaction itself would be tremendously complicated by the requirement of a simultaneous registration process at the point of purchase. This would hinder sales of the UAS and the concomitant development of the UAS industry. 

3.   Minimum Age To Register A Small Unmanned Aircraft 

The FAA established  the minimum age to register a small unmanned aircraft in the IRF as follows:

Persons 13 years of age and older are permitted to use the part 48 process to register a small unmanned aircraft. If the owner is less than 13 years of age, then the small unmanned aircraft must be registered by a person who is at least 13 years of age. 

The Task Force had recommend the 13 years of age benchmark for registration.  This position is not surprising from the Task Force/industry perspective, as it will allow for a greater universe of registrants.  NetMoby had urged in its comments submitted in the FAA’s Notice of Proposed Rulemaking for Small UAS in Docket No. FAA-2015-0150, 80 Fed. Reg. 9,544 (February 23, 2015) that a 16-year old limit for small UAS operators may be reasonable for hobbyists and students, but that the age limit should otherwise be 18 years of age for small UAS operators. 

4.     Registration Platform.

The FAA determined in the IRF that registration will occur through an online web-based system.  This makes eminent sense.  The FAA in the Clarification notes that "To date, UAS operators that the Department has authorized have been required to register their UAS through the FAA's existing paper-based registration process under 14 CPR part 47." The FAA acknowledged in its Clarification that “… it is apparent that the current paper-based system for aircraft registration is too burdensome for small UAS.”  As NetMoby had urged in its comments, the volume of paperwork alone in a paper-based registration system, even if a one-page registration form were used, would have clogged the FAA' s limited resources beyond salvage. To continue a paper based registration platform for UAS going forward simply was not feasible.  The Task Force also recommended a web-based platform for registration.

To be continued in the next post.

FAA's New Approach to UAS Registration

The FAA has determined that it is time in the development of UAS regulation and operation  to enforce the applicability of the statutory requirements regarding aircraft registration to UAS, including those operating as model aircraft. Consequently, the FAA issued a Clarification and Request For Information document in Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration (“Clarification”) in Docket No. FAA-2015-4378, Federal Register No. 2015-26874 effective on October 22, 2015.  This is a significant change in existing regulatory practice, as historically, the FAA, through the exercise of its discretion, has not enforced the statutory requirements for aircraft registration in 49 U.S.C. 44101 for model aircraft.  To assist the process, the Department of Transportation formed a UAS registration task force to explore and develop recommendations to streamline the registration process for UAS to ease the burden associated with the existing aircraft registration process, which was outdated (regulations required the submission of registration applications on paper) and remarkably complicated.

Robert E. Kelly on behalf of NetMoby, Inc., on November 6, 2015, submitted comments in reply to the Federal Aviation Administration (FAA), Department of Transportation’s (“DOT”) Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration (“Clarification”) in Docket No. FAA-2015-4378, Federal Register No. 2015-26874, ID No. FAA-2015-4378-4362.  The comments were submitted to support the efforts of the Unmanned Aircraft Systems (UAS) Registration Task Force to devise recommendations on the type of registration platform needed to accommodate small UAS, as well as the information that will need to be provided to register these aircraft.


NetMoby, in its comments submitted in the FAA’s Notice of Proposed Rulemaking for Small UAS in Docket No. FAA-2015-0150, 80 Fed. Reg. 9,544 (February 23, 2015), emphasized that the FAA’s stated mission was explicit, i.e., being responsible for the safety of civil aviation.”  NetMoby appreciates that, for the FAA, safety is “The Foundation of Everything We Do.”  Consequently, NetMoby prepared and submitted its comments in the Clarification proceeding through the prism of Safety First.

The following posts will discuss the FAA’s Clarification and the regulatory implications in more detail.