United States: Rulemaking Committee Releases Final Report Suggesting Major Changes To FAA Drone Regulations

On March 10, 2022, the Unmanned Aircraft Systems Beyond Visual Line of Sight Aviation Rulemaking Committee (UAS-BVLOS ARC, referred to here as ARC) tendered its final report to the Federal Aviation Administration, recommending significant changes to the FAA's regulations for UAS, better known as drones. As the FAA recognized in prescribing this committee's original charter in June 2021, "the UAS capability to fly without the pilot onboard, and indeed beyond the pilot's visual line-of-sight, is what offers the most societal benefits[,]" yet this practice is largely prohibited under existing regulations and has only been permitted on a very limited case-by-case basis through FAA waivers. The central mission of the ARC, therefore, was to develop recommendations for regulations that would better support and promote the development of BVLOS operations.

To that end, the ARC suggested several broad changes to ensure the safe expansion of BVLOS UAS operations. First and foremost, the ARC proposed that the FAA reframe its regulations based on the level of risk acceptable in the use of UAS broadly, rather than trying to create regulations to address specific types of operations. The goal of this approach would be to eliminate the kind of inconsistencies and opacity that may result from the case-by-case waiver approach the FAA has adopted to date. Such an approach, the ARC concluded, would provide "clear guidance for the industry and regulators" while allowing operators to determine the means of compliance that best fit their operations, whether that be "through qualitative or quantitative methods, or a hybrid approach."

The ARC's proposal also includes new rules regarding the right of way. In areas considered "Shielded" (within 100 feet of a structure or a critical infrastructure), UAS will have the right of way over other forms of aircraft. Under this proposed rule, UAS will enjoy an operational space that is largely free of crewed aircraft, as a UAS that is operating within the boundaries of a structure or obstacle "would be considered part of the structure/obstacle." The ARC is aware of the undeniable benefits that drone technology offers for the inspection and monitoring of infrastructure and property, as reflected in the proposed rulemaking.

Separately, whether a crewed aircraft must yield to a UAS in "Non-Shielded" areas that are low altitude (below 400 feet) will depend on whether the crewed aircraft is equipped with an Automatic Dependent Surveillance-Broadcast (ADS-B) transmitter or Traffic Awareness Beacon System (TABS) broadcasting their position. If so, then the ADS-B-equipped crewed aircraft will have the right of way over drones in nonshielded low-altitude areas; but if the crewed aircraft is not equipped with ADS-B or TABS, then the drone maintains the right of way in those areas. The ARC stated that the purpose of this rule is to improve safety by encouraging the use of ADS-B and TABS systems in low-altitude areas.

What This Means for Companies

Companies looking to scale their drone operations in the future should be encouraged by the proposed rulemaking. While the FAA has recently imposed strict rules on drone operations by requiring they broadcast remote ID information, the ARC's proposal reflects a desire to loosen the regulations in other areas. Very soon, drone manufacturers and operators will be required to comply with the new Remote ID rule (there is a compliance date of September 16, 2022, for manufacturers, and September 16, 2023, for operators). The ARC's proposal, if codified, will undoubtedly create exciting new opportunities for drone operators within the United States.

For More Information

If you have any questions about this Alert, please contact Alyson Walker Lotman, Matthew Decker, Holden Benon, any of the attorneys in our Transportation, Automotive and Logistics Industry Group or the attorney in the firm with whom you are in regular contact.

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