FAA Advisory Group Recommends Framework for Drone Flights Over People

HIGHLIGHTS:

• Today, the Federal Aviation Administration (FAA) released a report recommending a new regulatory framework for the flight of unmanned aircraft systems (UAS), or drones, over people.
• The report represents the consensus position of more than two dozen industry expert organizations – including a coalition of news companies that Holland & Knight represents – and specifically recommends that the FAA adopt a four-tier framework for UAS flights over people.
• FAA plans to use this report to inform the development of a notice of proposed rulemaking expected by December 2016.

Today, April 6, a panel of industry experts assembled by the Federal Aviation Administration (FAA) submitted its report recommending a new regulatory framework for the flight of unmanned aircraft systems (UAS), or drones, over people.

The report presents the FAA with a risk-based approach to allow for small UAS flights over people in four categories with different requirements based on the level of risk. FAA plans to use this report to inform the development of a notice of proposed rulemaking expected by December 2016.

This report represents the consensus position of more than two dozen organizations invited by the FAA to join an aviation rulemaking committee (ARC) on the safe flight of UAS over people. The committee was co-chaired by Earl Lawrence, director of the FAA UAS Integration Office, and Nancy Egan, general counsel of 3D Robotics. The ARC representatives also included UAS commercial operators, hobbyists, manufacturers, and software developers, as well as manned-aircraft pilots, airlines, airports, the National Association of Realtors and the News Media Coalition.

Holland & Knight participated in the ARC on behalf of our client, the News Media Coalition, a group of 22 leading news media organizations in the United States.

Background

On Feb. 23, 2015, the FAA published a notice of proposed rulemaking entitled “Operation and Certification of Small Unmanned Aircraft Systems.” In this notice, the FAA requested public comment on whether the agency should create a “microUAS” category of UAS that could operate over people. The FAA confirmed to the ARC that the final rule governing small UAS operations expected this summer will not allow for UAS operations over people.

Instead, FAA established the ARC to provide pre-decisional advice to the FAA to assist in the development of a separate rulemaking for flights over people by December 2016. Unlike the earlier proposed rulemaking, the ARC was asked to develop recommendations based on performance standards, rather than weight classes.

The FAA is expected to publish the final rule on small UAS this summer. The special rule on overhead flights likely will not be finalized before the second half of 2017.

Scope of the Report

The ARC report to FAA recommends a subcategory of small UAS that can be safely flown over people. In addition, the report includes certification criteria and operational limitations for those small UAS that would be permitted to operate over people. The report assumes that, as the FAA already has indicated, flights over people will be restricted to those that meet the following requirements:

• are within visual line of sight (VLOS)
• remain under 500 feet
• fly during daytime
• fly away from manned aircraft (in Class G airspace)
• operated by individuals that have passed an initial aeronautical knowledge test

ARC Recommendations to FAA

During the ARC deliberations, the Committee heard presentations from scientists, industry experts and foreign governments on risks of UAS to people, current operational limits and UAS regulations in other countries. Based on these presentations, the ARC developed its report to FAA, recommending a four-tier performance-based framework for UAS flights over people. For many of the scientific determinations, the ARC report requires that a voluntary consensus body determine the specific scientific thresholds. Therefore, while the ARC recommendation provides a general framework that includes some guidance about what types of drones will fall in each class, this is an approximation that will ultimately depend on the specific energy thresholds developed in the voluntary consensus standard process. Voluntary consensus standards will be developed later by third-party standard setting organizations, such as American Society for Testing and Materials (ASTM) or the Consumer Technology Association, to specifically define the energy thresholds and operational requirements that will apply to each category.

The following are the four categories recommended by the ARC:

• Category 1: For a small UAS that weighs less than 0.55 pounds (250 grams), operations over people would be permitted with very limited restrictions. Category 1 is designed for a toy UAS or a small UAS approximately the size of a smartphone that poses a low risk when flown over people. Based on the low risk, the ARC report also recommends that the FAA develop a more flexible initial aeronautical test for operators of Category 1 small UAS. It should be noted that the manned aircraft participants of the ARC objected to creating lower operator requirements for these small UAS based on their view that all UAS operators should have minimum knowledge.
• Category 2: For a small UAS that creates a low risk of serious injury based on their energy profile, operations over people would be permitted as long the operator maintains a minimum distance of 20 feet above people’s heads or 10 feet laterally away from people on the ground. Experts presenting to the ARC estimated that Category 2 small UAS would likely be below 4-5 pounds, depending on the impact energy consensus standard. There are a number of small UAS currently on the market that are expected to fit within this category.
• Category 3: For a small UAS that creates a moderate risk of serious injury based on their energy profile and meet certain manufacturer certification requirements, operations would be permitted over some people if the people are incidental to the operation. In this category, operators would not be permitted to fly over crowds of people, but could fly over a closed or restricted access work site or over transient or incidental pedestrians so long as the overhead flight was not sustained. Experts presenting to the ARC estimated that Category 3 UAS would likely be below 6-8 pounds, depending on impact energy consensus standard.
• Category 4: For a small UAS that creates a moderate risk of serious injury based on their energy profile and meet certain manufacturer certification requirements, operations over people would be permitted in accordance with a required documented risk mitigation plan. The documented risk mitigation plan would have to meet voluntary consensus standards to be established later. It is expected that risk mitigation plans would include items like (1) minimum pilot or operator qualifications or training requirements; (2) possible pooling agreements or limitations on the number of drones that could be flown within a given airspace and/or (3) coordination with local officials or first responders. In Category 4, operations over crowds would be permitted. In the same manner as Category 3, experts presenting to the ARC estimated that Category 4 UAS would likely be below 6-8 pounds, depending on impact energy consensus standard.

Note that these recommendations only pertain to flights over people. Flights that are not conducted over people will be subject to the requirements of the general small UAS rulemaking once that final rule is released.

The FAA will now move forward with a formal rulemaking to address small UAS flights over people. The FAA expects that a proposed rule addressing small UAS will be issued by December 2016 with a final rulemaking in 2017. Meanwhile, Congress is also considering FAA reauthorization legislation that would include statutory requirements for small UAS flights over people.

This is an area of significant legislative and regulatory activity, which manufacturers and drone operators should continue to monitor.   

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.