On January 14, 2019, Secretary of Transportation Elaine Chao announced that the Federal Aviation Administration (FAA) would be publishing in the Federal Register a Notice of Proposed Rulemaking (NPRM) that proposes to permit the flight of approved unmanned aircraft systems (UAS), or drones, over people and at night, provided certain conditions are satisfied. Presently, drone flights over people and at night are permitted only by waiver under Part 107, the FAA’s rules governing the commercial operation of small drones (under 55 lbs.). The Secretary’s announcement represents a key step toward meeting the congressional mandate of integrating UAS into the national airspace system and more readily permitting complex drone operations in light of advancements in drone technology. However, Secretary Chao also made it clear that the FAA would not permit such flights unless and until regulators draft additional rules to track and identify UAS for safety and security purposes.
Among other changes to existing regulations, the NPRM proposes allowing UAS flights over people provided the drone meets certain design specifications, including defined limits on the maximum kinetic energy of the drone flown over people and protection from exposed propeller blades. Drones would be divided into three categories: those weighing 0.55 lbs. or less (toys, essentially) would be allowed to fly over people with no additional constraints given the likelihood that they would cause no harm given their size; the second and third categories would require shielding from rotating parts and would permit higher kinetic energy limits but restrict drones from hovering over people. However, based on early assessments of the FAA’s proposal, a large number of drones operating today would exceed the proposed kinetic energy limitations and require substantial redesign. Expect that UAS manufacturers and large operators will submit comments recommending significant changes to the NPRM to accommodate the drone fleet in service today.
The NPRM also proposes to permit UAS flight at night without waiver under Part 107, provided operators complete appropriate knowledge testing or training on night flying and ensure that the drone has anti-collision lighting visible for at least three statute miles. Other changes proposed in the NPRM include eliminating the current requirement for recurrent written knowledge testing every two years for holders of a remote pilot certificate in favor of recurrent training, which should cut down on paperwork and cost for remote pilots.
In conjunction with the NPRM, Secretary Chao also announced that the FAA would be publishing an Advance Notice of Proposed Rulemaking (ANPRM) called the UAS Safe and Secure ANPRM. The ANPRM seeks public comment on a number of safety and security proposals for drones. Among them, the FAA is proposing new regulations to require stand-off distances, additional operating and performance restrictions, the use of UAS Traffic Management (UTM), and additional payload restrictions on UAS.
Importantly, the NPRM and ANPRM make it clear that relaxing existing UAS regulations to permit flight over people and at night (and likely any further relaxing of existing regulations to permit more advanced drone operations) can take place only after the FAA promulgates new regulations for the remote identification and tracking of small UAS, which it considers a significant public safety and security issue for persons on the ground and in the air. Major disruptions and public concerns over the safety of commercial air transport in light of recent small UAS incursions into large airport airspace (e.g., the shutdown of Gatwick airport on December 20 and 21) have no doubt spurred the FAA’s rulemaking process for identifying and tracking rogue and unsafe drone operations.
As of the end of 2018, the FAA reported that there were nearly 1.3 million registered drones in the United States, and more than 116,000 certificated remote UAS pilots. While lagging far behind advancements in drone technology, the NPRM and ANPRM are critical regulatory steps forward in the expansion of advanced small drone operations, showing that the FAA continues to respond with some flexibility to the demands of a popular and growing industry.
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Andrew Zimmitti is a complex commercial litigator, certificated private pilot and leader of Manatt’s unmanned aircraft (UA) practice. Manatt’s UA practice brings together a cross-disciplinary group of attorneys with a broad range of experience to assist clients with commercial UA operational and ownership concerns. As an emerging technology, the commercial use of drones presents unique legal challenges and opportunities that manufacturers, operators and owners must consider. Understanding and adapting to this rapidly changing legal and regulatory landscape is essential. Manatt’s practice team brings together the expertise, insight and legal services needed to successfully navigate in this growing industry.