Even though the FAA Federal Aviation Administration (“FAA”) was hamstrung during the partial government shutdown, the Administration released two draft documents that will soon be published in the Federal Register. Both rulemaking documents would relax regulations on the use of small unmanned aerial systems (“UAS”) for commercial purposes under 14 Code of Federal Regulations Part 107 (“Part 107”).
Operations of Small Unmanned Aircraft Systems over People
The FAA published a draft notice of proposed rulemaking (“NPRM”) that would significantly expand the scope of permitted commercial UAS operations under Part 107 by allowing operations at night and over people without obtaining a waiver from FAA.
Night waivers are the most common type of UAS waiver requested. As such, FAA has proposed in the draft NPRM to allow commercial operations of small UAS at night under Part 107 subject to two conditions: (1) the operator must complete additional knowledge testing or training related to night operations; and (2) the UAS must have an anti-collision light illuminated that is visible for at least 3 miles.
Operations Over People
In addition, the NPRM would “allow UAS to make routine flights over people without a waiver or an exemption,” provided that the UAS falls into one of three UAS categories, two of which are defined based on the weight of the device, and the third based on the potential for injury during operations. Each category is subject to increasingly strict requirements in conjunction with risk the UAS poses.
Notably, the NPRM also states that “the FAA plans to finalize its policy concerning remote identification of small UAS—by way of rulemaking, standards development, or other activities that other federal agencies may propose—prior to finalizing the proposed changes in this rule that would permit operations of small UAS over people and operations at night.”
Safe and Secure Operations of Small Unmanned Aircraft Systems
The FAA’s second publication is an Advance Notice of Proposed Rulemaking (“ANPRM”) on the “Safe and Secure Operations of Small Unmanned Aircraft Systems.” Specifically, the FAA hopes to address “situations where small UAS have been used to conduct illegal surveillance and espionage” along with other illegal activities. As distinguished from the NPRM, the purpose of the ANPRM is not to propose regulations, but to determine whether regulation is needed. As such, this ANPRM provides a series of discussion points related to public safety and national security risks and requests public comment.
FAA’s publications of the NPRM and the ANPRM are merely the first step in the rulemaking process. After the notices are published in the Federal Register, the public will have an opportunity to submit comments with respect to each for review by FAA. There is no guarantee that the NPRM and ANPRM will be adopted as published, but the documents are significant because they demonstrate that the FAA is adhering to its incremental approach for integrating UAS into the national airspace system. The FAA acknowledged in the NPRM that it recognizes that UAS technology “moves at the speed of innovation” but the administrative rulemaking process does not. For this reason, the FAA will continue to follow a technology-neutral, performance-based regulatory philosophy.