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.    

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.