2019 NPRM for UAS Rules, and What It All Means

Last week, the Department of Transportation put out a Notice of Proposed Rule Making (NPRM) for changing some aspects of 14 CFR Part 107 rules.

And fair warning, this article will be a bit longer than most of our Drone U articles. Parts of this NPRM will fundamentally change many of our operations. With that much info to release (and digest), this may be a bit wordy at times. But I think it will be worth your time.

As with all NPRMs, public input is expected, and as those involved in the drone industry, I hope you take it upon yourselves to do some research, form a position, and then take the time to professionally articulate that position by submitting it via the comments process.

This article is hopefully going to help you understand the reasons and research behind this NPRM. And with that knowledge, formulate your position. I also encourage you to read the entire 206-page NPRM. This PDF will go further into the nuances and technical aspects, especially for flights over people.

You should also seek out other summaries of the NPRM and gather as much information as possible. After you download the actual NPRM you’ll also find the breakdown and specifics of the categories of drones for ops over people. This is the section of the NPRM that will, in all likelihood, affect that greatest portion of the commercial UAS community. Standardizing night ops will also affect many of us as well. These rules changes will make the process more simple.

The opinions and interpretations in this article are mine alone, and may or may not reflect those held by Drone U and/or other organizations I belong to.

I feel the best way to start this article is by using the actual summary prepared by the DOT and FAA.

“SUMMARY: The FAA proposes to amend its rules applicable to the operation of small unmanned aircraft systems (UAS). This rulemaking would allow operations of small unmanned aircraft over people in certain conditions and operations of small UAS at night without obtaining a waiver. It would also require remote pilots in command to present their remote pilot in command certificate as well as identification to certain federal, state, or local officials, upon request, and proposes to amend the knowledge testing requirements in the rules that apply to small UAS operations to require training every 24 calendar months. This proposal would be the next phase in integrating small UAS using a risk-based approach. These amendments would allow expanded small UAS operations and reduce the knowledge testing burden on remote pilot in command certificate holders.”

So what does all of that mean, and how does it affect us?

Night Ops

Let’s start with the least technical of the two major rule changes coming to our 107 Operations. The FAA is proposing a change to 107.29, which restricts non-waivered flights to the hours between dawn and dusk (basically). While 107.29 restrictions are easily waived, the process is a bit cumbersome, and as of the last report in the NPRM (12/31/17) 1,233 107.29 waivers had been granted (2175 as of 12/19/18), and zero reports of incidents have been reported. So rather than require us to go through the process of a waiver application, the FAA proposes to “allow routine, small UAS operations at night under two conditions.”

Instead of requiring the waiver, and all of its conditions (many of which should still be used for safety reasons, even if they don’t require it), each Remote Pilot in Command (RPIC) will be allowed to fly night ops if they have anti-collision lights visible at 3 statute miles (SM), as well as the requirement that “the operator would complete knowledge testing or training, including new subject matter areas related to operating at night.” This training and testing would be incorporated into both the initial Remote Pilot test, as well as the recurrent test (more on the recurrent test later).

Some of the proposed knowledge necessary included:

• Maintain VLOS as to be able to determine NAS location, attitude and altitude, as well as the direction of travel;
• Observe airspace for other traffic and hazards;
• Determination that sUAS does not endanger life or property of another.

How this is incorporated into the primary or recurrent test, and the actual subject matter is to be determined. But it will cover nighttime illusions and mitigations (in the PHAK), preflight daylight scouting, VOs, and knowledge testing for all members of the flight crew. There may even be other mitigation included. But as Kevin Morris once mentioned in his webinars, “I’ll fly safe” will probably not be an acceptable answer to any of these test questions. We know that the illusions and vision effects of night will be included.

So what is the FAA looking for in responses to the NPRM? They’re actually quite nice in giving us that info. They want to know our thoughts on the lighting. Does it need to be color specific (like manned aviation), or just white? Should there be “FAA-certified” lights, or should it be up to each PIC (or manufacturer) to ensure they meet the 3SM rule? Hint, they mention that requiring anti-collision lights to be certified “would be overly burdensome for both the FAA and manufacturers of small UAS because they would be forced to make tradeoffs that affect both the weight of the aircraft and the aircraft’s power source and supply.”

The other concern they have is whether or not the anti-collision lights at low altitude would have an effect on normal human activities. Personally, I have no idea what they mean, but it’s obviously a concern raised by someone at one of the meetings.

Maybe they also would like to know what else should be included in the training and testing in the area of Night Ops? I know I’ll have my suggestions on that subject included.

One thing I’ve been trying to find lately, and I didn’t know existed until now, is the actual definition of lights that are considered anti-collision. It’s nicely included in this NPRM. Apparently, it’s “any flashing or stroboscopic device that is of sufficient intensity so as to be visible for at least 3 statute miles.” So, yeah, they need to be strobes. Some in the community have insisted that static lights are fine. Not so much…

They also don’t seem to have a requirement for position, but since they reference the use of 3SM strobes on Ultralight aircraft, and use the phrase “visibility from above of ultralights operating at very low levels can be significantly enhanced by the addition of an anti-collision light on these vehicles,” I’m still strongly suggesting placement on top of our drones.

That always presents the possibility of them falling into our props and causing issues, but I firmly believe including security of the light attachments during preflight, and all battery changes, will prevent this in all but extreme circumstances.

One thing I don’t see addressed is how this will affect night ops in controlled airspace. At this point, our 107.29 waivers are not valid for controlled airspace (unless attached to a 107.41), nor is LAANC active after sunset. I’m hoping all of this will mesh night ops into all airspace. However, some ATC DO NOT want night ops in their airspace.

It will be interesting to see how this gets incorporated into the new 107 Certificate and testing. This would also be a good thing to address in your comments once open.

Back to the NPRM…

The next area of change I’ll address is the necessity of when we have to present our Remote Pilot Certificates. Currently, we are only required to present them to the FAA Administrator or his/her representatives when asked. Technically we don’t have to do so to any other law enforcement that may ask. The proposal would add “Administrator, authorized representatives of the National Transportation Safety Board (NTSB) or Transportation Security Administration (TSA), or any Federal, State, or local law enforcement officer, upon request from any such officials.”

Personally, this seems like common sense to me but there are always those who seem to bristle at being asked to show ID by local law enforcement (LEO). The reasoning for the change is that the FAA is extremely limited in its investigative ability, and having LEOs gather the necessary information for an investigation would be a Godsend for the FAA. But the way it stands now, LEOs have their hands tied. And I’ve heard of some Remote Pilots taking advantage of that.

As of now, there are no plans to allow locals to write or enforce NAS regulations. So that is not part of the NPRM. However, some of you may recall that is exactly what part of the DOT’s UAS Integrated Pilot Program (UASIPP) is all about. One of the tasks given to UASIPP participants is working with State, local, or Tribal governments to determine the feasibility of having them also enforce FAA-centric rules for the NAS. But that is not part of the current NPRM.

Personally, I am 100% behind this change. Many of us lament the fact that there is virtually zero enforcement for 107 violations. I believe this will help change that. As will Remote ID. And development and implementation of Remote ID is imperative before any ops over people and night ops will become commonplace based on the rules that come out of this NPRM. The FAA is very adamant about this. Page 23 mentions, “…. the FAA is cognizant of the importance of various stakeholders to be able to identify small UAS to mitigate security concerns that operations may present. 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.”

So all of you who are anti-remote ID, sorry, it’s a done deal. Or at the very least, the kitchen timer is about ready to ding, signifying that particular cake is ready to come out of the oven. However, before LEOs can enforce 107 rules, there have to be educational processes put into place.

Recurrent Testing

Recurrent test training is also going to change. And in my opinion, and from all I’ve talked with and heard from, this is going to be a change for the better (unless you’re a CATS owner).

The change proposed to 107.65 is “A person may only operate a small UAS if that person has completed the following in a manner acceptable to the Administrator within the past 24 months:

            1) Passed an initial aeronautical knowledge test covering the areas of    knowledge specified in § 107.73;

            2) Completed recurrent training covering the areas of knowledge specified in  § 107.73; or

            3) If a person holds a pilot certificate (other than a student pilot certificate)  issued under Part 61 and meets the flight review requirements specified in § 61.56, completed training covering the areas of knowledge specified in § 107.74.”

The changes proposed to the actual test are detailed starting on page 142 of the NPRM, but a quick synopsis shows it adding questions about night physiology and night illusions. That would satisfy the removal of 107.29 waiver requirement. And it would make the recurrent test on par with the initial RP test. Area added back to the recurrent would include “weather, small unmanned aircraft loading, determining the performance of the small UAS, the effects of drugs and alcohol, and radio communication procedures.”  The FAA has determined that they’re sufficiently important for safety to be included in all UAS training.

I also find it interesting that the FAA is still insisting on radio knowledge. I know we need to be familiar with terms for monitoring ATC communications near airports, but I wonder if the FAA and FCC have come to an agreement about us using aviation radios to self-announce. Could be a good thing. Could be a bad thing. We’ll see.

This training (not training classes) would be disseminated via various means of communications such as www.faasafety.gov, www.faa.gov/uas, and industry organizations. This does not mean that UAS schools won’t be teaching it as well. As a matter of fact, it will be a good chance for schools to step up and provide training to both initial and recurrent 107 pilots. I know Drone U will craft our courses to support these critical developments.

Additionally, Part 61 pilots will need to complete training on UAS affects with weather, loading, and performance. It looks like the current process will be the same for all of you, but the knowledge taught will be expanded to include above-mentioned changes.

Now for the good part of the recurrent test: no more trips to CATS. The FAA determined that “recurrent training, which a remote pilot can complete online, presents a less costly option and will achieve a level of assurance of knowledge that is comparable to the assurance a recurrent test provides.”

There is still no mention of incorporating a practical test for 107 holders. This may upset some long-standing members of the industry, but the FAA addresses it on page 177 during the reasoning of making the recurrent training identical to the initial test. They state, “The current initial testing requirement to evaluate a remote pilot’s knowledge for operating in the NAS is critical, given the absence of a requirement for a practical test or proficiency course in obtaining a remote pilot certificate. The FAA, however, has concluded that requiring recurrent training in lieu of recurrent knowledge testing will achieve the necessary assurance the FAA seeks with regard to remote pilots’ ongoing familiarity with small UAS operations and the provisions of part 107.”

So, again, no practical testing requirement. And I agree with the FAA on this. Given the ease of use of modern UAS, I just don’t see the practicality of a UAS Practical (pun intended). And adding an additional layer to the Remote Pilot Certificate would create unnecessary barriers to entry, and additional levels of bureaucracy, both of which I oppose in most aspects of business regulations. It would also burden an already over-taxed FAA UAS office with more mandates. And by the time they develop the test, technology would surpass the testing procedures. So it would be an endless process. Maybe this would be a necessity later down the road, or as part of a future waiver process (which is a good idea, in my opinion), but no requirement for now.

Once all of this goes through the NPRM and codification process, all initial and recurrent tests will be night op and over people op compliant. If you’re not scheduled for a recurrent test once this comes out, you have the option to either apply for waiver the “old-fashioned” way, or just take your recurrent test early. Both are acceptable.

I, for one, will be first in line to take the recurrent; especially since my 107.29 waiver will probably expire before this comes to pass.

Operations over Moving Vehicles

This is an interesting addition to the NPRM. Or at least the wording is interesting. Maybe they’re tired of being asked about it. But if so, it doesn’t really clarify as much as I’d like to see.

They’re calling this 14 CFR 107.105: “No operations over people located in moving vehicles.” While on paper this looks good, we have to go back to the FAA’s definition of “over.” Others and I have asked this very question numerous times to the good folks in the integration office. And the answer always seems to parrot the one I got from [email protected] in 2016 and hasn’t changed since: “Thank you for your inquiry. This is not meant to be pedantic, but over in this case means exactly that — over. If the UAS is directly over a person or multiple people, it’s in violation of 107.39.”

So does that mean we can fly over cars as long as we’re not “over” the people inside? Again, I’m not trying to be “pedantic,” but this doesn’t seem clear much up. I’d like to see someone with a bit more knowledge than I in this matter propose something concise. Either make it a rule or don’t.

I guess that’s the whole point of the NPRM anyway. So someone may do that very thing.

It also gets back to the FAA’s inability to prove someone was really “over” anything. We all know it can and will be used in an investigation, but a non-incident citing would be hard to prove. Of course if we all just used common sense in situations like this, rules wouldn’t be necessary.

Incidentally, if we all used common sense whenever we flew, we likely wouldn’t need most of the rules we see. But that’s probably asking for way too much from mere mortals.

Speaking of mortal humans…

Operations Over People

This has been an ongoing issue for as long as we’ve had our drones buzzing around in the NAS. It seems there are either folks who routinely and recklessly fly their drones over activities such as concerts (we’ve all seen the videos), or we have the self-appointed drone cops jumping on anyone who even looks remotely like they’re flying near people.

Of course, those are the extremes, and most people fall somewhere on the centerline between the two, but with the new rules over people in the NPRM, it should eliminate most of this disparity. Not all, that will never happen, but most.

The FAA proposes three categories of drone use over people. Some categories include weight distinctions, transference of kinetic energies, and the resulting injury severity. For Categories 2 and 3, all rotating parts capable of injury must also be protected from contact with humans.

Category 1 does not have any operational parameters. But it is limited to .55 lbs. However, the FAA is asking for input from the public on whether or not props cages or such should be required for all drones over people, including Category 1. Which doesn’t really make much sense to me. Having a drone stay below the .55 lb threshold, yet still include a cage, would probably make this category impossible. But maybe it’s .55 lb without the cage? We’ll see,

Category requirements directly from the NPRM, starting on page 26.

            Category 1: No performance-based requirements (small UAS must weigh 0.55 pounds or less)

            Category 2:

          1) Meet performance-based requirements showing the small unmanned aircraft:

• will not, upon impact with a person, result in an injury more severe than the injury that would result from a transfer of 11 ft-lbs of kinetic energy from a rigid object;
• does not contain any exposed rotating parts that could lacerate human skin upon impact with a person; and
• does not contain any safety defects identified by the Administrator.

            2) Display a label indicating eligibility for Category 2;

            3) Have remote pilot operating instructions;

            4) Be subject to a product notification process; and

            5) Operate only after the FAA has accepted a Declaration of Compliance   for that make/model.

           Category 3:

           1) Meet performance-based requirements showing the small unmanned  aircraft:

• will not, upon impact with a person, result in an injury more severe  than the injury that would result from a transfer of 25 ft-lbs of kinetic energy from a rigid object;
• Does not contain any exposed rotating parts that could lacerate human skin upon impact with a person; and
• Does not contain any safety defects identified by the Administrator

          2) Display a label indicating eligibility for Category 3;

          3) Have remote pilot operating instructions;

         4) Be subject to a product notification process; and

         5) Operate only after the FAA has accepted a Declaration of Compliance for  that make/model.

There will also be other parameters for Category 3 ops. Most likely, something along the lines of the closed-set regulations we’ve seen in the past.

The Over People Operations details take up much of the text of the NPRM, so if you’re into the science behind it, download the PDF and knock yourself out. I’m not going to go too deep into the details here for the sake of brevity.

Producing a Declaration of Compliance will land primarily in the lap of the manufacturers. And that’s probably a good thing. Doing the tests necessary for the declaration would be impossible for the average 107 Pilot. And it would also be in the best interest of the manufacturers to produce drones with those results. Resulting sales would easily offset the testing and verification costs incurred by the manufacturers.

Another very nice option proposed by the FAA is that manufacturers will be allowed to test models already in the NAS. However, all drones that would fall under the Declaration of Compliance for existing models would have to be 100% stock. No modifications at all would be allowed.

The FAA even takes this into account. You will be considered a “manufacturer” if you modify your drone. Section “f)” on page 18 of the NPRM goes into the detail, but basically “anyone who modifies it after the FAA accepted its Declaration of Compliance” will then become the manufacturer of record, and they would have to re-qualify the UAS, or cease operations over people with it. Modifications “could include (but are not limited to), changing computer code to remove operational restrictions, replacing compliant propeller blades with noncompliant blades, or attaching a camera or other payload to the unmanned aircraft that was not specifically identified as approved in the manufacturer’s instructions.” The big one there for many will be the hacks and aftermarket props (and probably batteries) you see in many of the forums. Keep your bird stock once this comes out if you want to fly over people.

I also see this as a great opportunity for a revenue stream for manufacturers who are willing to test existing birds with newly designed cages.

Again, the details in the science behind the categories are easily available on the NPRM. So follow this link above and take a gander if that’s your thing.

New Waivers

With this NPRM, and its proposed rules, comes the ability for the FAA to create two new waivers. After all, with them removing two waivers, they need to create two more to keep the folks in Mr. Grogan’s office busy. To be fair, the folks in his office are quite busy enough and do their darnedest to stay ahead if the email avalanches I’m sure they get weekly.

Until the government shutdown, we were seeing well-written 107.29 applications processed and accepted in two weeks or less. Kudos to the wavier office on that!

First waiver would be for night operations without 3SM strobes. The second would be a waiver for operations over moving vehicles.

So this will be interesting to see how these mitigations will be determined once the regulations are in place.

Why the changes?

It can be dangerous to ask “why?” when you’re dealing with government agencies and the process of rule changes, but the FAA actually gives us a very good “why” right inside the NPRM.

One of the options they had during this process was just keeping the status quo. They rejected the status quo “due to the undue burden it would impose on small UAS operators without an expectation of an increased level of safety.” So the committee behind the changes realized that these rules did impose undue burdens on the industry. They’ve been listening.

They also determined that the newly proposed rules would “benefit the economy and encourage innovation and growth across a variety of sectors, such as construction, education, infrastructure inspection, insurance, marketing, and event, film and sports photography.”

Thanks, FAA, those are awesome reasons!

Conclusion

So what does this really mean to us? Right now, not much. At least not until this NPRM is published in the Federal Register. And once that happens, many of us in the industry will make sure people know. I know Drone U will make it a priority to get the word out.

In the meantime, take this opportunity to read, digest, and formulate your “suggestions” to the FAA. That way, you’re ready to go when it is published.

While I believe this industry is no longer in its infancy, it is in the toddler stage. And just like real toddlers, we as an industry are still beginning to learn to walk. Rule changes and tweaks are to be expected. There may be even more come out of the 2018 FAA Reauthorization Act. But those will need to follow this same NPRM process, so don’t worry about those. Yet.

Get your head around these, figure out the impact it could have on your operations, and get those comments ready for the FAA and DOT.

Frame your comments to address “the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason”. And include any supporting data.

So go ahead, get cracking.

~Vic Moss
[email protected]
Moss Photography/Drone U

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Vic Moss is a commercial photographer with over 30 years experience. He is also a national voice for drone safety and reasonable drone regulation. Vic has worked with numerous cities and states to help craft drone regulations that don’t inhibit safe and responsible drone use. Vic is also a FAASTeam member and one of three UAS specialists in the Denver FSDO Service Area. As a frequent contributor in many UAS forums, Vic keeps tabs on the pulse of all things UAS. Vic’s duties as a co-owner of Drone U include photography instruction, legislative liaison, and Elite pilot instructor. Vic was recently appointed to the FAA’s Drone Advisory Committee Waiver Task Group. You can get in touch with Vic by emailing him at [email protected].

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