United States: A Look Back At April Drone Law Developments: The Micro UAS Report

Last Updated: May 3 2016
Article by Mark J. Connot and Jason J. Zummo

This past month, a FAA committee tasked with providing recommendations on a regulatory framework for the classification and operation of micro unmanned aircraft systems ("UAS" or "drones"), submitted its official report to the FAA.

The Micro UAS Aviation Rulemaking Committee ("ARC") was directed to develop "recommendations for a performance-based standard that would allow for micro UAS to be operated over people who are not directly participating in the operation of the UAS." On April 6, the FAA accepted those recommendations. Moreover, the FAA has already started the process of developing a notice of proposed rulemaking based on the ARC's recommendations.

While trying to balance the twin goals of ensuring safety and encouraging innovation, the ARC identified four small UAS categories defined primarily by level of risk of injury posed by operations over people. For each category, the ARC recommended a risk threshold that is based on either weight or an impact energy equivalent.

Category 1 includes small drones weighing .55 lbs (250 grams) or less, including accessories and payload (e.g., cameras). The ARC considers the level of risk of injury posed by this category of UAS to be very low. Consequently, the ARC recommended that no performance standards and no operational restrictions beyond those imposed by the proposed part 107 of Chapter 14 of the Code of Federal Regulations ("part 107") are necessary.

Based on the risk that a UAS could strike a person on the ground causing serious injury, the standards and restrictions in categories 2, 3, and 4 are "scaled up" to mitigate the increased risks.

Category 2 includes drones that weigh more than .55 lbs (250 grams) but still present a 1% or less chance of serious injury to a person in the event of impact. Depending on its design characteristics and operating instructions, a 4 to 5 pound drone would qualify. On the other hand, category 3 and 4 drones would have a 30% or lower chance of causing a serious injury upon impact with a person.

The ARC recommended that category 2 drones must, among other things, be operated at a minimum distance of 20 feet above people's heads, or 10 feet laterally away from people. Even with these minimum distance requirements, the small UAS must always maintain a safe distance from people so as not to create an "undue hazard" to those people.

Under the ARC's recommendations, category 3 operational restrictions "do not allow flight over crowds or dense gatherings of people." But category 4 differs because it allows sustained flight over crowds or dense gatherings of people beyond what is permitted in category 3. Since an increased number of people on the ground may be subjected to overhead flight of longer duration, category 4 prescribes additional standards and restrictions for drone operations over people that present the same level of risk of serious injury as category 3 (i.e. 30% or less).

Accordingly, the ARC recommends that category 4 drones (1) require the drone operator to have a risk mitigation plan in place for conducting sustained operations over people and (2) take into account materials and components of the drones to determine if the materials pose additional potential risk of collateral serious injury to people on the ground, in addition to injury caused by initial impact.

In each case, extensive testing would be required to determine that the drone meets the weight or impact energy threshold for its category. Additionally, to demonstrate that a small UAS qualifies for categories 2, 3, or 4 operations over people, the manufacturer of the drone must: (1) declare that the small drone meets industry consensus standards applicable to the category; (2) submit that declaration to the FAA in a form and manner acceptable to the FAA; (3) label the product or product retail packaging in accordance with industry consensus standards;1 and (4) provide an operating manual to the operator that includes operator instructions for flight over people. Lastly, drone operators would be responsible for knowing what category of operations his or her drone qualifies for, and what operational limitations he or she must follow.

The ARC's recommendations illustrate an effort by drone manufacturers to put drones on the path to everyday commercial and recreational use in populated areas by lessening the operational restrictions and requirements set forth by the FAA in the proposed rules in part 107 announced in February, 2015. But hurdles remain, including creating tests to determine which drones meet the various thresholds of the performance standards. As noted above, the FAA will use the information in the ARC's report to develop a flexible, performance-based proposed rule and the public will have the opportunity to comment.

It is difficult to predict how long it will take for the FAA to work out the details or how long before companies manufacture drones which meet the standards enumerated above. But what is clear is that this is progress and the application of the ARC's recommendations would allow businesses to use drones for many commercial applications. Indeed, the FAA's ban on flying drones over crowds or in towns and cities could soon be modified further.

Footnote

1 For category 1 operations over people, the ARC recommended that the manufacturer of the dronebe required to: (1) label the retail product packaging of the small UAS with either the actual weight of the small unmanned aircraft or a general statement that the small UASweighs .55 lbs (250 grams) or less; or (2) declare that the small unmanned aircraft weighs .55 lbs (250 grams) or less and submit that declaration to the FAA in a form and manner acceptable to the FAA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Mark J. Connot
Jason J. Zummo
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