By: Barbara E. Lichman, Ph.D., J.D.

As the popularity of unmanned aircraft systems (“UAS” or “drones”) increases, expanding to such hybrid uses as local air taxi services, the Federal Aviation Administration (“FAA”) has been faced with pressure to loosen existing restrictions on drone operation. The FAA’s initial regulation, 14 C.F.R. Part 107, in essence, gave with one hand while taking away with the other, by prohibiting drone operations under a variety of different circumstances, including a prohibition on operation over people, 14 C.F.R. § 107.39, prohibition on night operations, 14 C.F.R. 107.29, and prohibition on flights over moving vehicles, 14 C.F.R. § 107.25, while providing, at the same time, a process for obtaining waivers of those prohibitions, 14 C.F.R. § 107.200. In its Notice of Proposed Rulemaking (“NPRM”), RIN 2120-AK85, FAA now proposes to allow operations over people and at night without the need for waivers, if the UAS meet certain preliminary standards, and the remote pilot in command conducts the activity pursuant to the proposed rule.

The first change would be to allow night operations on a general basis so long as they are carried on with anti-collision lighting, illuminated and visible for at least 3 statute miles, and the operator has proven his qualifications to operate a night flight. The second change is relaxation of the prohibition on the operation over people. This new rule applies to three specific categories of operations. First, it applies to UAS weighing under .55 pounds which, according to FAA, pose a low risk of injury to persons. Second, it applies to UAS weighing more than .55 pounds if the manufacturer can establish that, in the event the UAS crashed into a person, the resulting injury would fall below a specified severity threshold. Those severity thresholds themselves fall into three categories: (a) the small unmanned aircraft must be designed, upon impact with a person, not to result in an injury as severe as the injury that would result from a transfer of 11 ft-lbs of kinetic energy from a rigid object. This standard of injury is apparently based on calculation of potential damage contained in, among other studies, Sullivan et al, The Pig as a Model for Human Wound Healing, The International Journal of Tissue Repair and Regeneration (2001); Simon and Maibach, The Pig as an Experimental Animal Model of Percutaneous Permeation in Man: Qualitative and Quantitative Observations, An Overview, Skin Pharmacology and Physiology,13.5 at 229-34 (2000), see NPRM, fn. 75; (b) the FAA determines that the UAS would not have exposed rotating parts that could lacerate human skin; and (c) no small UAS could be operated over people if it has an FAA identified safety defect, defined as any “material, component, or feature that presents more than a low probability of causing a casualty when operating over people.” NPRM, p. 12. Third, it applies to larger UAS that must meet substantially the same three standards as apply to Category 2. In addition, to manage the increased risk from a larger object, Category 3 operations would include three additional operational limitations, including prohibition of operations over open air assemblies of people, within or over a closed or restricted access site, and the requirement that the unmanned aircraft may transit but not hover over people.

Finally, FAA also proposes to waive the need for the waiver process currently required. The first change would apply to operations over moving vehicles. Under existing regulations, an operator may seek a waiver to operate over moving vehicles using the waiver provision applicable to operations over people. See 14 C.F.R. § 107.205(g). The NPRM would establish a stand-alone waiver provision applicable to operations over moving vehicles to make the process clearer for operators. A second new waiver would permit an operator to conduct operations over people that would not include the protections established in the NPRM. The last would permit an operator to operate at night without the anti-collision lighting requirement for night and civil operations. In other words, FAA is first eliminating the need for waiver by incorporating protective devices in the operating rules, then allowing waiver of those protective devices.

Because the NPRM is a 200 plus page document, its proposals and justifications are far too voluminous and complex to be discussed in further detail here. The author suggests that interested parties may participate in a more complete discussion in a webinar taking place on February 26, 2019, between 1:00 p.m. and 3:00 p.m. PST. Further information about the webinar, the topics it will address, and the presenters can be found by clicking here. We look forward to your questions and comments.

Source: Aviation & Airport Development Law News