We’re coming up on three years since the FAA first implemented the Part 107 Rule for commercial drone operations in 2016, and it’s come time for an update.
On Monday, January 14, the FAA shared a draft of what will be the largest and most significant regulatory update to present for drone pilots since LAANC went into effect. The FAA has proposed to make operations over people and at night legal, under certain circumstances, without a waiver. Hip-hip-hooray! We can just hear the cheering of drone pilots across the country who’ve been waiting a long time for this kind of operational freedom and flexibility.
Image Source: Flickr, nrkbeta, CC BY SA-2.0
The proposal comes in the form of a “Notice of Proposed Rulemaking” (NPRM)—a public notice issued by law when the FAA wishes to make a change to their existing rules. An NPRM is uploaded to the Federal Register where it is opened to the public for comments and feedback.
The process should seem familiar, since the FAA released a NPRM in February 2015 prior to finalizing the original Part 107 rules. The drone industry has evolved by leaps and bounds since Part 107 was finalized in 2016, and the FAA is ready to adapt.
“Today, there are even more applications and opportunities for small UAS that either did not exist or were only in their nascent stages in 2016. The FAA’s challenge in developing this proposal, therefore, is to balance the need to mitigate the risk small unmanned aircraft pose to other aircraft and to people and property on the ground without inhibiting innovation.”
—DOT Secretary Elaine L. Chao and FAA Acting Administrator Daniel Elwell, Draft NPRM—Operation of Small Unmanned Aircraft Systems over People
According to the NPRM, “this proposal is the next step in the FAA’s incremental approach to integrating UAS into the national airspace system (NAS),” and has been “based on demands for increased operational flexibility and the experience FAA has gained since part 107 was first published” (6).
FAA Issues Notice of Proposed Rulemaking (NPRM) for Flights Over People and at Night
Here’s a link to the full 206-page NPRM — we were impressed with the creative solutions the FAA has proposed for further integration of UAS into the national airspace system.
In summary, the document proposes to:
- Allow flights over people and at night without a waiver;
- Expand the list of provisions under Part 107 that can be waived;
- Expand the requirement to present your remote pilot certification to the Administrator upon request to other law enforcement entities such as federal, state, and local law enforcement; and
- Make changes to the Part 107 testing and training process
We’ll review each of these proposed items in detail and discuss what they mean for individual drone operators and the drone industry as a whole.
Flying a Drone Over People
Under the current process for flying a drone over people, the sUAS operator must complete a waiver application that describes possible operational risks and methods to lessen/mitigate those risks. One of the reasons it’s so difficult to get approved is that the waiver applicant carries the full burden of proving the safety of his or her desired operation—but it looks like that may be about to change.
With this new, waiver-free process, the majority of legwork will fall on the drone manufacturer to prove the sUAS is safe to operate over people.
Under the proposed rules, FAA-approved flights over people will fall into three categories:
- Category 1 – all sUAS less than 0.55 lbs. permitted to fly over people
- Category 2 – sUAS greater than 0.55 lbs. can be flown over people if the manufacturer has proven that a resulting injury to any person will be under a specified severity threshold. Additionally, the sUAS must have no exposed rotating parts that could lacerate skin or have any FAA-identified safety defect.
- Category 3 – sUAS greater than 0.55 lbs. can be flown over people if the manufacturer has proven that a resulting injury to any person will be under a specified severity threshold, but the severity of the injury can be higher than what’s permitted in Category 2. Like Category 2, the sUAS must have no exposed rotating parts that could lacerate skin or have any FAA-identified safety defect.
To compensate for the higher injury threshold, Category 3 includes additional operational limits to lessen the chance of injury. Additional stipulations for Category 3 operations include:
- Cannot operate over an open-air assembly of people
- The operation must take place over a closed- or restricted-access site
- The sUAS may transit but not hover over people
The FAA anticipates that operators in Category 1 will be almost exclusively photographers and videographers. For some examples of drones that meet the weight requirement for Category 1, check out our Cheap Drones Guide.
On the other hand, the FAA predicts a wide range of operators in Categories 2 & 3. Some suggested use cases for Category 2 & 3 operations over people included rescue and emergency response efforts, newsgathering, wildlife data tracking, documenting sporting and cultural events, filming on closed sets, and collecting data on construction sites. We may see operations that previously were conducted under a waiver, like those performed by Rutherford County with the Vantage Robotics Snap drone, now falling into Category 2 or 3 operations over people without any waiver required.
The FAA says they will maintain a publicly available list of UAS that meet the criteria of each category. To be included on the list, manufacturers will have to submit a Means of Compliance. This means the manufacturer will need to “develop a test and present evidence to the FAA showing that the test is appropriate and accurately demonstrates compliance” (NPRM, 15). The manufacturer is free to develop the test in any way they see fit.
Flying a Drone at Night (Without a Waiver)
Requests to fly a drone at night are the most common type of waiver requests the FAA receives. sUAS operators have built up a good track record for night flying, with the FAA reporting that “to date, the FAA has not received any reports of small UAS accidents operating under a night waiver” (NPRM, 8).
Currently, Part 107 prohibits the operation of an sUAS at night—more specifically, the period 30 minutes after sunset to 30 minutes prior to sunrise—without a waiver.
Under the new proposed rule, remote pilots would be permitted to fly at night without a waiver if they:
- Take an updated knowledge test or training that includes new subject matter relating to operating at night
- Equip their sUAS with anti-collision lights visible for 3 statute miles
The FAA will require remote pilots to complete an updated knowledge test or recurrent training that addresses sUAS operations at night before they can legally operate under the new rules. The additions to testing/training “would focus on night physiology and night illusions” (NPRM, 54). We explain more about the first requirement to take an updated knowledge test in this section on Updating the Part 107 Test and Recertification Process.
Regarding the second requirement, we recommend using LumeCube’s drone lights — use code UAVCOACH10 for a 10% discount.
Keep in mind that these new rules for flying a drone at night have only been issued as a draft, and have not been finalized by the FAA. For now, remote pilots should continue to request permission for night operations via the current waiver process.
Other New Rules Proposed by the FAA
In addition to making operations over people and at night legal without a waiver, the FAA’s NPRM also proposed to add more waiverable operations and to expand the list of people to whom you may be required to show your remote pilot certificate.
The three new types of waivers proposed include:
- Operations over moving vehicles
- Operations over people that otherwise do not meet the proposed rule
- Operations at night without anti-collision lighting
Persons to whom you will be required to show your remote pilot certificate upon request include:
- The FAA Administrator
- Authorized representatives of the National Transportation of Safety Board
- Any Federal, State, or local law enforcement officer
- Any authorized representative of the Transportation Safety Administration
Right now, the language around needing to present your remote pilot certificate is vague. Under these new proposed rules, it’s clarified who the exact individuals are that you must legally show your certificate to upon request.
Updating the Part 107 Test and Recertification Process
The FAA has proposed to update their existing process for Part 107 certification. Currently, Part 107 requires pilots to take an initial knowledge test and then another test every two years to remain currency. The FAA is planning to make two changes to this current process:
- Convert the subsequent knowledge testing requirement to a knowledge training requirement
- Update the testing and training materials with new information about night operations and any other changed regulations
To simplify, what we’d get out of this is a revised initial knowledge test and elimination of the recurrent test in favor of recurrent training.
Notice how I wrote “recurrent training”—the exact wording in the NPRM states that:
“The FAA proposes requiring recurrent training every 24 months, in lieu of recurrent knowledge testing, however, so remote pilots maintain ongoing familiarity with small UAS operations and the provisions of Part 107” (142).
Whoa! No more recurrent knowledge test every 24 months? Not so great for the 700ish testing centers who will lose out on that $150 test-fee revenue every 24 months, but great for us pilots. The recurrent training will most likely be able to be completed online, eliminating the need to travel to a physical testing center every 24 months.
However, there are still some details to be ironed out about how that training will be administered. The FAA is contemplating other training formats as well. For example, the FAA may allow recurrent training to occur within a proficiency program or other approved program administered by an outside entity. We’d like to see the opportunity to take the training both online through FAASafety.gov or through private training partners like Drone Pilot Ground School, our industry-leading Part 107 online test prep and training course.
Another change we might see when these rules are implemented is more comparability between the initial and recurrent knowledge test. Right now, the recurrent test has fewer knowledge requirements (no Weather & Micrometeorology, no UAS Loading & Performance)—see a breakdown of the topics here.
Under the new proposed rule, recurrent training will cover all the same topics as the initial test. This will ensure that remote pilots are refreshed on all the knowledge requirements during the recurrent training rather than only some of them.
When Will the Proposed Rules Be Implemented
This NPRM was added to the Federal Register on 2/13/19 and has a public comment period of 60 days.
Here’s something we found really interesting.
On page 23 of the NPRM, it looks like these rules won’t go into effect until the FAA finalizes its policy surrounding remote identification:
“Because of the importance of this particular issue, 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.”
There’s no concrete date on when the remote ID rules will be finalized, but the FAA is currently conducting research on the best methods for remote ID and unmanned traffic management through their UAS Integration Pilot Program.
With these new rules comes greater freedom and also greater responsibility. Those who already have a remote pilot license will not be able to operate under the new rules until they have taken an updated test/training, regardless of how much time has passed since their previous test.
We’re excited for the greater operational flexibility that will come with these new rules, but we still have a ways to go on the regulatory front. We’re still waiting on more options for beyond-visual-line of sight operations and anticipate that regulatory reform on this issue can’t be too far behind.
When do you think the FAA will implement these new proposed rules for flying a drone over people and at night? Share your thoughts with us in this thread on our community forum.
Chao, Elaine and Daniel Elwell. Draft NPRM—Operation of Small Unmanned Aircraft Systems over People. Department of Transportation, Federal Aviation Administration, 14 Jan. 2019, https://www.faa.gov/uas/programs_partnerships/DOT_initiatives/media/2120-AK85_NPRM_Operations_of_Small_UAS_Over_People.pdf.
“DOT UAS Initiatives.” Federal Aviation Administration, 14 Jan. 2019, https://www.faa.gov/uas/programs_partnerships/DOT_initiatives/.