FAA Issues Final Rules on Remote ID for sUAS and Flight Over People and at Night

Client Alert

On December 28, 2020, the Federal Aviation Administration (FAA) issued its first major expansion of operational regulations for small unmanned aircraft (sUAS or drones) since June 2016. The two final rules impose new remote ID requirements for sUAS in flight and for the location of their control stations, and permit expanded flight operations over people and at night without obtaining a waiver, amending Part 107 of the federal aviation regulations. The new rules come after tens of thousands of comments from sUAS manufacturers, large commercial operators, hobbyists and other stakeholders in the drone industry, in response to the FAA’s notices of proposed rulemaking on flight over people and at night on January 19, 2019, and on remote ID for sUAS on December 31, 2019. Both rules lay the groundwork for the expanded commercial use of sUAS, taking the industry one step closer toward one of its main objectives—the integration of fully automated drone delivery systems into the national airspace system.

The Remote ID Rule

Remote ID allows law enforcement and other public agencies to track and identify drones in flight, as well as locate their control stations. The new rule (called Part 89) requiring remote ID applies to all sUAS that must be registered with the FAA. (sUAS that weigh less than .55 lbs are exempt from FAA registration.) In the new rule, the FAA backed away from requiring that operators have an Internet connection in order to broadcast their remote ID data, instead opting for a localized radio frequency broadcast of remote ID data from the sUAS itself. In making the shift away from Internet-based broadcasting, the FAA responded to commenters who complained about the cost of adding a monthly cellular data plan just to fly a drone, the lack of reliable cellular coverage in certain areas, the cost of paying a third-party data broker to track and store the data, and data breach/privacy concerns, among others.

The new remote ID rule sets forth three methods of compliance:

  1. Operating an sUAS with remote ID built in by the manufacturer
  2. Operating an sUAS with a remote ID module retrofitted by the operator to a drone lacking built-in remote ID
  3. Operating a drone without remote ID but only within specifically designated FAA-recognized identification areas

The remote ID rule takes effect 60 days after its publication in the Federal Register (expected in late January 2021). sUAS manufacturers will have 18 months after the effective date to begin producing drones with integrated remote ID functionality, and operators will have 30 months after the effective date to comply with the rule.

Importantly, the FAA has imposed a critical limitation on legacy sUAS with retrofitted remote ID modules—they may be operated only within the operator’s visual line of sight (VLOS). Manufacturer-installed systems complying with the remote ID rule will be permitted flight beyond VLOS—a critical functionality toward sUAS automation. For this reason, commercial sUAS operators are likely to defer purchases of new drones until sUAS manufacturers produce built-in remote ID systems complying with the new rule’s specifications.

The Rule on Operations Over People and at Night

The new rule permitting operations over people and at night amends Part 107, which applies to commercial sUAS operators. The rule also permits flight over moving vehicles under certain circumstances, which reflects a change from the proposed rule published in January 2019.

The new rule establishes four categories of sUAS that are permitted to operate over people not involved in the drone’s operation, subject to specific limitations:

  • Category 1 – sUAS that weigh .55 lbs and under and that have no exposed rotating parts that would lacerate human skin may be flown over people.
  • Category 2 – sUAS that are designed to not cause injury to a person equal to or greater than in severity injury caused by a transfer of 11 foot-lbs of kinetic energy upon impact, and which have no exposed rotating parts that would lacerate human skin.
  • Category 3 – sUAS subject to the same requirements in category 2 but using a kinetic energy threshold of 25 foot-lbs and subject to more restricted flight operations.
  • Category 4 – sUAS that have an airworthiness certificate issued under Part 21 (i.e., must be equipped and operated like manned aircraft).

The first category is presumptively so light as to not cause severe injury to persons if there is a collision. The second and third categories require that the drones be produced to FAA specifications measured against the severity of injury caused by a collision. The fourth category is not typically intended for sUAS but rather larger, heavier UAS operated with the same degree of safeguards, equipment and skill expected of a manned aircraft under the federal aviation regulations.

The final rule also permits flight over moving vehicles for Category 1, 2 and 3 sUAS provided that:

  1. The operations are within a closed or restricted access site, and persons in the vehicles are on notice of the flyover.
  2. The sUAS is transiting the airspace above the moving vehicles but not maintaining sustained flight over them.

Category 4 UAS can operate over moving vehicles provided the aircraft comply with the federal aviation regulations applicable to manned aircraft.

Operations at night are also permitted under the new rule provided that the sUAS has anti-collision lighting visible at a distance of at least three statute miles and incorporates a strobe or other type of flashing light sufficient to alert oncoming air traffic to avoid collision. The new rule also provides that night operations be included as a topic in the FAA’s knowledge test for remote pilots (for those remote pilots who have not yet taken their knowledge test). For remote pilots holding a remote pilot certificate under the pre-existing version of Part 107, the new rule replaces the requirement to complete a recurrent knowledge test every 24 months with updated recurrent training, which must now include operations at night.

Why Are the New Rules Important?

The new rules on remote ID and operations over people and at night represent important regulatory building blocks needed for the FAA to fully integrate sUAS (including, eventually, fully automated sUAS) into the national airspace system, taking the drone industry one step closer to delivery of parcels, food, medicines, etc., by autonomous aerial vehicle. While painfully slow for many innovators in Silicon Valley and elsewhere who are years ahead in developing drone automation technology, the FAA has been clearing the way for experimentation of these new technologies by such industry giants as Amazon’s Prime Air, UPS and Google’s Wing, which are already operating FAA-approved testing programs for unmanned package delivery operations at designated testing sites. In the coming years, expect further expansion from the FAA to accommodate larger testing programs for sUAS operations well beyond VLOS, operations of multiple sUAS by a single (automated) controller, operations in dense urban areas and operations employing new collision avoidance technologies, among other innovations.

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