Proposed Drone Regulations Allow Waiverless Flying Over-People and Night Operations

The Department of Transportation made three major announcements that will be an advancement for the commercial drone industry: (1) proposed regulations to allow drone operators to fly over people as well as at night WITHOUT a waiver or an exemption, (2) an advanced notice of proposed rule making asking for recommendations on countering problematic drones affecting safety and security, and (3) the awarding of three contracts to commercial service entities to develop technology to provide flight planning, communications, separation, and weather services for drones under 400ft.

Proposed Regulations for Relaxing the Prohibition on Operations Over People and Night Operations.

The commercial drone industry has been greatly hampered because Part 107 prohibits the flying over non-participating people and also prohibits operations at night.  The only way around these prohibitions is to obtain a waiver or an exemption. Night waivers are attainable but over people waiver application denial rates are around 99%.  Yikes.

Operations over people is significant because not only are those operations valuable within line of sight, they become extremely valuable when you want to fly beyond line of sight. Why? Generally, you can’t really figure out if you are flying over people when you are beyond line of sight because of just that – it’s beyond your line of sight – so you just must assume so.

Keep in mind that this is not just night and over people being changed. Part 107 is being “refreshed” to make things better. For example, the current 107 says you must show required documentation to FAA inspectors, but the proposed regulation is saying you have to present required documentation also to a National Transportation Safety Board representative; any federal, state, or local law enforcement officer; or a representative of the Transportation Security Administration.

The major highlights of the proposed regulations are:

• Requires you to present documentation to FAA, TSA, law enforcement, or NTSB when requested. But as I pointed out in the previous article, I don’t think law enforcement is currently adequately trained to handle to this capability.
• You can operate over non-participating people provided your operation meets the requirements of at least one of the operational categories. There will be three categories of aircraft which each have their corresponding benefits:
  • Category 1. 0.55 pound (250 grams) and under aircraft which can fly over people without any design standards, manufacturer does not have to prove anything to the FAA, and no operational restrictions other than just Part 107.
  • Category 2. No operational restriction aircraft. Weighs more than 0.55 pounds and:
    • Has been satisfactorily demonstrated to the FAA by the manufacturer they are below the Category 2 injury threshold,
    • No exposed rotating parts that could lacerate human skin, and
    • No FAA-identified safety defect.
  • Category 3. Operational Restricted Aircraft. Aircraft which:
    • Have been satisfactorily demonstrated to the FAA by the manufacturer they are below the Category 3 injury threshold,
    • No exposed rotating parts that could lacerate human skin, and
    • Because of its FAA identified safety defect, is required to have operational mitigations requiring the pilot to (1) not fly over any open-air assembly of people, (2) fly only over a closed or restricted access site with everyone on the site being notified, and (3) does not maintain sustained flight over the human being (only briefly transiting).
• Even though you can operate over people with category 2 and 3 aircraft, you cannot operate over people in a moving vehicle.
• The initial knowledge exam will cover operations at night.
• Instead of doing a recurrent knowledge exam at a testing center, you can do recurrent training online instead. Recurrent knowledge testing currently does not test on weather, aircraft loading, physiological effects of drugs & alcohol, etc. while recurrent training would test you on those topics.

So When Will This Go Into Effect?

Don’t get too excited. These are proposed regulations. On average, you are looking at around 1.5 years until a notice of proposed rulemaking becomes a final regulation you can operate under. This is just an average of how long the rulemaking process takes. There are all these legal requirements the government has to comply with when creating regulations which bogs things down. Plus, the proposal said, the FAA does not plan on publishing the final rule for operations over people AND night operations until the remote identification rulemaking is finalized. The remote identification rulemaking has not been published yet. That’s still working its way through the system. Don’t confuse that with the advance notice of proposed rulemaking which was also announced.

Let that sink in. The FAA has to publish their remote ID NPRM and THEN it will go into affect about 1.5-2 years later. That has not even been done. Then they can publish the final over people and night regulations. For the time being, we’ll still be operating under waivers. If you need help obtain a waiver, contact me.

Seeking Recommendations on Managing Problematic Drones

The DOT is planning on issuing an advance notice of proposed rulemaking. “An advance notice of proposed rulemaking (ANPRM) tells the public that FAA is considering an area for rulemaking and requests written comments on the appropriate scope of the rulemaking or on specific topics.” Why is this advance notice of proposed rulemaking so great? It gives you, the public, an opportunity to provide recommendations to the FAA to influence their future rulemaking.  

We all heard about the recent Gatwick situation. It was reported that a drone prompted numerous shutdowns of the major airport in England. What really happened? I don’t know. But I do know it prompted everyone to start talking about countering problematic drones. There were a lot of things reported by the media. As time went on, some questioned the reports. DJI reported, “To date, none of these reports have been confirmed, and there is no proof that any of these alleged incidents occurred. Despite the lack of evidence, new sightings have been reported at more airports, raising the prospect that new reports are being spurred by publicity from past incidents.”

Regardless of whichever side you are on, this DOT advance notice of proposed rulemaking is requesting you to provide comments on 26 questions ranging from required minimum stand-off distances for unmanned aircraft to establishing design requirements for systems critical to safety of flight during beyond visual line of sight operations. This is the perfect forum to raise any issues.

Unmanned Aircraft Systems Traffic Management Systems Pilot Project Awarded

The UAS UTM Pilot Project (UPP) contracts were awarded to:

• Nevada UAS Test Site Smart Silver State
• Northern Plains Unmanned Aircraft Systems Test Site
• Virginia Tech Mid-Atlantic Aviation Partnership

Don’t confuse the UPP with the IPP which is the Integration Pilot Program. Here is a comparison between the UPP and IPP. The UPP, which was originally initiated by NASA but subsequently became a major joint effort between the FAA and NASA, “is intended to develop and demonstrate a traffic management system to safely integrate drone flights within the nation’s airspace system.”

Conclusion

The DOT is continuing the drone integration efforts by changing the regulations to be more pro-business while wisely seeking input on how to handle problematic drones.  The over people regulations and the UPP will be beneficial in helping build the foundation towards more beyond visual line of sight operations in the future. While these regulations won’t be coming into effect immediately, we can start preparing now to position ourselves for more unrestricted operations in the future.  

Jonathan Rupprecht

Aviation Attorney. FAA Certificated Commercial Pilot and Flight Instructor (CFI/CFII). Contributor at Forbes.com for Aerospace and Defense.