Despite the ongoing federal government shutdown, the Federal Aviation Administration (“FAA”) released two draft proposals concerning the commercial operations of small Unmanned Aircraft Systems (“UAS”), commonly referred to as “drones.” The FAA’s actions are the key next steps necessary to open a range of new UAS operations, providing a boost to this growing industry.

Proposed new rules and questions raised will aid the FAA in facilitating additional UAS operations that industry has long sought. The filmmaking, newsgathering, and construction industries will be major beneficiaries to the changes proposed to the flights over people rule, though much of the burden will be on UAS manufacturers to demonstrate that their designs can meet FAA standards. Overall, we view the FAA’s efforts as a significant step forward, though it remains to be seen whether the agency will have the funding to move quickly on all of its UAS initiatives.

The FAA’s first proposal suggests modifications to its rules to allow operations at night and over people, changes the UAS industry has sought since the existing Part 107 UAS rules were put into place in 2016. The item also suggests other modifications to the rules.

The second proposal seeks public comment on an Advanced Notice of Proposed Rulemaking (ANPRM) on the Safe and Secure Operations of Small Unmanned Aircraft Systems, a process that will aid in developing proposed rules in response to public safety and national security concerns related to UAS.

The draft proposed new rules:

• build on the FAA’s existing commercial UAS rules, found in 14 C.F.R. Part 107, reducing the need for waivers and exemptions from these rules;

• provide for very permissive nighttime operations, allowing all otherwise permitted operations to occur at night so long as the pilot has relevant training and the UAS has anti-collision lighting making it visible from at least three miles away;

• would allow operations over people based on the “category” of the UAS being used (Category 1, 2, or 3);

• would expand the requirement that pilots make available their credentials to a broader range of law enforcement officers and federal authorities, but replace some required pilot testing with training; and

• suggest expansion of the types of waivers presently allowed, to include operations over vehicles, operations over people not otherwise allowed, and the new anti-collision lighting requirements.

The three categories of UAS for flights over people were developed with the goal of mitigating the risk of injury, should a UAS fail. In particular, Category 1 UAS would be very light – less than 0.55 pounds – and would be permitted to fly over people in any situation otherwise permitted. Today, most commonly-available professional-grade UAS weigh around two pounds, meaning Category 1 devices would be very small, largely limited to carrying small payloads (such as a camera) for short-duration flights. Based on impact analyses, a Category 1 UAS, even with exposed rotors, poses an extremely small risk of injury to a person.

Larger UAS (up to the existing weight limit of 55 pounds) could be certified as either Category 2 or 3. Category 2 devices would be those designed to pose only a small risk of injury (such as by absorbing most of the force of an impact itself) and would be permitted to perform any otherwise permitted operation, while Category 3 devices would be subject to operational limitations, such as use within closed or restricted access areas and a prohibition against flights over any open-air assembly of people. Manufacturers would need to demonstrate performance, and for Category 3 UAS obtain Declarations of Compliance, via FAA-developed “performance-based requirements.” This process is designed to ensure that, even if a UAS crashed into a person, the injury would be below a certain severity threshold. The FAA would not establish how the necessary protection could be designed, leaving it to industry standards-setting organizations to develop methods of demonstrating compliance and to manufacturers on how to achieve them.

The separate draft ANPRM is an additional step towards the integration of UAS into the national airspace (NAS) while providing law enforcement with tools to distinguish which UAS may pose a threat. The ANPRM considers aspects of UAS operations that may or may not create hazards to other aircraft or to public safety, something that will become more important given the proposed expansion of allowed flights over people. The FAA:

• asks whether it should impose “stand off distances” between UAS and particular facilities or locations, and, if so, under what circumstances;

• seeks comments on adding limitations relating to UAS altitude, airspeed, and performance, such as vertical climb rates, descent rates, or rates of acceleration;

• as part of the process of its ongoing efforts to develop a plan for UAS Traffic Management (UTM), which would allow UAS access to presently-prohibited airspace (such as close to an airport), seeks comment on a range of questions regarding key aspects of a UTM;

• considers the security risks that come with payloads carried by UAS, especially in light of the move towards allowing UAS to carry cargo, questioning what prohibitions or exceptions could be applied to UAS payload and equipment; and

• inquires whether it should establish design requirements, such as redundant power, navigation, and positioning systems, and fail-safe command and control links, for certain UAS operations such as beyond line of sight.

One significant unresolved issue is the FAA’s decision to continue to decline to adopt UAS privacy rules, which it views as outside of its jurisdiction, pointing to state laws on the subject. This has attracted opposition from some members of Congress, and it is possible that the industry might face the specter of federal privacy legislation being introduced in the new Congress.