Reading between the Lines of the FAA’s sUAS NPRM, some insights

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The sUAS rule had a seven year (plus) gestation period, clearly has more than one author/parent and was born in a 195 page package. The commentary from a representative group of stakeholders, other aviation associations , the press and the Hill (both Houses) are generally positive. However, the folks at Amazon seem disappointed, but their negative response may be an overreaction. Several lawyers have provided excellent reviews of the new 14 CFR Part 107; so this post will not attempt to repeat their analyses. Here are a few observations about the new regulatory world of sUAS operations:

First, unlike a lot of NPRMs, it appears that the FAA really wants comments on its proposals. It is not an uncommon phenomenon for any federal agency to issue a “proposed” rule, but secretly hope that no one would comment negatively as to any of the drafted regulations. The staff has invested so much effort in drafting and revising the criteria that they are averse to reconsidering their carefully chosen words. For example at p. 36, the FAA asked for responses which might differ from their proposal:

“Accordingly, the FAA invites comments as to whether the final rule should relax operating restrictions on small UAS equipped with technology that addresses the concerns underlying the operating limitations of this proposed rule, for instance through some type of deviation authority (such as a letter of authorization or a waiver).”

Second, contrary to lamentations, Amazon’s delivery proposal to deliver packages by UAS is not dead. Yes, the parameters of Part 107 do not authorize the carriage of 3rd party packages. But no, as noted above, the FAA has virtually invited Amazon and others to stretch the rules via exemption (p.39):

“The FAA seeks comment on whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule, e.g., the ban on flights over uninvolved persons, the requirements for line of sight, and the intent to limit operations to a constrained area.”

In the preamble (p.9), the FAA referenced how valuable its experience has been with the pre-NPRM exemptions experience has been in drafting the rules:

Based on our experience with the certification, exemption, and COA

process, the FAA has developed the framework proposed in this rule to enable certain small UAS operations to commence upon adoption of the final rule and accommodate technologies as they evolve and mature.”

The Part 107 preamble defines the risks of such an operation, but a standard Safety Management System review should define, in a regulatorily preferred method, the appropriate means to address those risks.

Third, Operator is a critical term in the regulation of sUAS operations, but it is not defined in 14 CFR § 107.5 or §§107.59-107.69. In that context, it seems as unresolved whether

· the applicant must own a UAS, and

· the applicant must demonstrate her or his ability to operate SAFELY a sUAS, and

· such a “manipulate the controls” test would be based on the sUAS owned by the applicant, and

· the sUAS operator certificate would distinguish between the applicant’s authority to fly fixed wing airplane or rotary aircraft, their aerodynamics are quite different and

· more questions.

The FAA is already human resource constrained; how will it/can it meet the initial bow wave of requests?

Oddly the Small UAS ARC recommended that the minimum age of 18 for an operator’s certificate and the NPRM lowered the number to 17. Why?

The proposed rules will require “vetting” of “operators” by TSA. DHS and its sub organizations already complain about having inadequate personnel. How will they deal with this surge? What would disqualify an operator from “vetting”?

◊ Fourth, the need for a Visual Observer was rather elegantly defined in the sUAS ARC under this requirement on the Operator:


This direction became a lot more convoluted and confusing as explained in the Preamble:

Visual Observer: Under the proposed rule, an operator would not be required to work with a visual observer, but a visual observer could be used to assist the operator with the proposed visual-line-of-sight and see-and-avoid requirements by maintaining constant visual contact with the small unmanned aircraft in place of the operator. While an operator would always be required to have the capability for visual line of sight of the small unmanned aircraft, this proposed rule would not require the operator to exercise this capability if he or she is augmented by at least one visual observer. No certification requirements are being proposed for visual observers. A small UAS operation would not be limited in the number of visual observers involved in the operation, but the operator and visual observer(s) must remain situated such that the operator and any visual observer(s) are all able to view the aircraft at any given time. The operator and visual observer(s) would be permitted to communicate by radio or other communication-assisting device, so they would not need to remain in close enough physical proximity to allow for unassisted oral communication.

Since the operator and any visual observers would be required to be in a position to maintain or achieve visual line of sight with the aircraft at all times, the proposed rule would effectively prohibit a relay or “daisy-chain” formation of multiple visual observers by requiring that the operator must always be capable of seeing the small unmanned aircraft. Such arrangements would potentially expand the area of a small UAS operation and pose an increased public risk if there is a loss of aircraft control.

The text is reminiscent of the verbiage found in an Advisory Circular, a lot of precatory language. That is, you are not required to do this (“this is but one way of complying…”), but heaven help the operator if you do not follow this procedure. The FAA will bring an enforcement and you would wish that you followed the AC.

Fifth, Marking is a requirement that is so necessary for the FAA’s surveillance and enforcement. The proposed rules, 14 CFR§107.89(b), refer to 14 CFR Part 45. There it is written(14 CFR§45) that fixed wing aircraft must have N numbers of 12” high and rotorcraft of the same. There are many, if not most, of these sUAS for which an inch high numeral would be a challenge. One must assume that the FAA intends that the operator exercise his/her best efforts to place some visible markings, but the likely size of this critical regulatory nexus may not be readable at a distance. How will the FAA track down these invisible numbers?

Sixth, prior to the issuance of the NPRM, the most controversial aspect of the then applicable “rules” was what constituted operations for “compensation or hire”. Based on long applicable FAA interpretations and case law, for example, real estate agents were precluded from using a UAS for photographing houses even though they did not “charge” for this service. This interpretation was not thoroughly discussed in the NPRM, except for this “glancing blow” in the section on Air Carrier Operations (p.39):

“The FAA notes that some industries may desire to transport property via UAS. Proposed part 107 would not prohibit this type of transportation so long as it is not done for compensation and the total weight of the aircraft, including the property, is less than 55 pounds. For example, research and development operations transporting property could be conducted under proposed part 107, as could operations by corporations transporting their own property within their business under the other provisions of this proposed rule. The FAA seeks comment on whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule, e.g., the ban on flights over uninvolved persons, the requirements for line of sight, and the intent to limit operations to a constrained area. The FAA also seeks comment on whether a special class or classes of air carrier certification should be developed for UAS operations.”

That should attract a lot of comments in the docket.

These observations about the proposed Part 107 rules address concepts described in the first 40 pages of the NPRM. As progress is made through the remaining 150, more thoughts may be posted here.

If you have thoughts about this epic NPRM, please use THE COMMENT section below. Thanks

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1 Comment on "Reading between the Lines of the FAA’s sUAS NPRM, some insights"

  1. Really excellent commentary. With so much hype and controversy over the simple flying camera it is hard to really know what is acceptable legally. Thank you for bringing more clarity to this subject. I feel more confident that I can fly and not break the rules after giving a realistic, grounded interpretation.

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