Hi all –
This week DOT played catch up, announcing three initiatives for Operations Over People, Safe Operations and a ‘new’ UTM Pilot Project (UPP) ordered by Congress in 2016.
In this issue I am going to try to unbundle the noise and the rapture around these initiatives. Each of them merits a full length issue, and each will be the subject of ongoing discussion for months and maybe years. Such is the pace of progress. I’ll also look at InterUSS, a new Remote ID concept from Wing; and James Poss, Maj Gen (Ret) breaks down the 2018 FAR.
“AUVSI is reaching out to let you know the FAA UAS Symposium 2019 scheduled to take place in February is being postponed due to the government shutdown. The new conference dates will be announced after furloughed FAA employees return to work.”
Thank you to all of the people at the FAA who continue to stand their watch.
Dear Reader – You are not the only one who is wondering why DOT chose to introduce these three initiatives in the midst of the shutdown.
Since it’s all about process, let’s start with former FAA Chief Counsel and FAA Deputy Administrator Sandy Murdock writing in JDA Solutions:
Secretary Chao decided to use the platform of the Transportation Research Board to announce three major new proposals on the regulation and development of Unmanned Aerial Systems.
Technically these documents are not NOTICES OF PROPOSED RULEMAKINGs in that there is not an official place to announce them to the public, which is a requirement of the Administrative Procedure Act. [this is because the Federal Register is closed.]
This NOTICE OF PUBLICIZED RULEMAKING, an anomalous action, has some other different, if not unique, features.
- The documents were carefully drafted, revised and redrafted (usually multiple iterations) by
- FAA attorneys, economists, safety experts and policy analysts
- DOT attorneys, economists, safety experts and policy analysts
- OMB attorneys, economists, safety experts and policy analysts
? was all of the work completed before the shutdown
? if yes, why wasn’t it promulgated then
? if not, were the FAA/DOT/OMB personnel deemed “ESSENTIAL” to complete these documents
… To quote a favorite rulemaking scribe “when you want it badly, you’ll get it bad.”
This last link is a reference to the 2015 end run I call the Christmas Registration Rule that was later struck down by the court in Taylor v Huerta.
Obviously, Ms. Chao knows this and said that DOT will post to the Register when the government reopens. Which again begs the question, why now when nothing can happen?
Here is the link to the DOT UAS Initiatives announcement.
UTM PILOT PROJECT (UPP)
The third piece of the announcement is an action item from the 2016 Extension (FESSA) two and a half years ago:
SEC. 2208. UNMANNED AIRCRAFT SYSTEMS TRAFFIC MANAGEMENT. (a) RESEARCH PLAN FOR UTM DEVELOPMENT AND DEPLOYMENT. The FAA, in coordination with NASA, shall continue development of a research plan for unmanned aircraft systems traffic management.
The NASA program description says:
The FAA Extension, Safety, and Security Act of 2016 Pub. L. 114-190 § 2208 (July 15, 2016) directs coordination/collaboration, development, and publication of a UTM Research Plan and establishment of a UTM System Pilot Program (UPP). Established in April 2017, the UPP’s primary goal is to develop, demonstrate, and provide enterprise services that will support implementation of initial
There is also a short FAQ here. Thanks to Gretchen West at Commercial Drone Alliance for the links. According to the DOT press release:
Drone Traffic Management Pilot Project Selectees
The Unmanned Aircraft Systems Traffic Management System Pilot Project [UPP] will be distinct, but complementary to, the traditional FAA’s air traffic
The pilot project, through September 2019, is intended to develop and demonstrate a traffic management system to safely integrate drone flights within the nation’s airspace system. Also, the pilot project will create a shared information network and gather data that can be used for future rulemakings. [my emphasis]
Through a stringent application and evaluation process, the following providers were selected based on the strength of industry partnership, the maturity of the technology offered, and overall cost: Nevada UAS Test Site Smart Silver State; Northern Plains Unmanned Aircraft Systems Test Site; and, Virginia Tech Mid-Atlantic Aviation Partnership.
It’s a nice win for the test sites (no one else was even considered,) perhaps reflecting the love that they got from Congress in the 2018 FAR. Congratulations to Amit Ganjoo and the growing team at ANRA Technologies who have supported the NASA UTM program since TCL1 and whose technologies will power the Nevada and Virginia Tech solutions.
Again I find the timing curious. UPP is only scheduled to run through September 2019. NASA has yet to announce the test dates for TCL4 which is the last in a series of Technology Capability Levels that is designed to “…Focus on UAS operations in higher-density urban areas for tasks such as news gathering and package delivery. It will also test technologies that could be used to manage large-scale contingencies.”
UAS IPP, though primarily focused on policy issues, has UTM components and implications, and still has two years to run.
It’s also going to be interesting to see how UPP plays into a number of elements in the 2018 FAR, specifically SEC. 376 and SEC. 377. EARLY IMPLEMENTATION OF CERTAIN UTM SERVICES.
(d) EXPEDITED PROCEDURES—The Administrator shall provide expedited procedures for making the assessment and determinations under this section where the UTM services will be provided primarily or exclusively in airspace above areas in which the operation of unmanned aircraft poses low risk, including but not limited to croplands and areas other than congested areas.
Before I break down what will eventually be two proposed rulemakings, I want to share a little story. I was on an Advisory Board call for InterDrone earlier this week. One of my fellow board members is former FAA Administrator Michael Huerta who talked about how important it is to take advantage of the opportunity that the NPRM process provides to give input to the FAA.
Rules replace the waiver process – so if you have skin in this game, it’s on you to make sure that each rule reflects the way you want the sUAS industry to evolve.
Speak now or forever, etc. That’s also the message from Mark McKinnon and Jonathan Rupprecht, both of whom are quoted extensively in this issue. I will let you know when the NPRM and the ANPRM are open for comment.
OPERATIONS OF SMALL UNMANNED AIRCRAFT OVER PEOPLE
The NPRM for Operations of Small Unmanned Aircraft Over People was originally scheduled to be published in June 2018. It was written in 2016 but was blocked by the security agencies demanding Remote ID in early 2017.
I’ll get to the details and commentary, but what surprised me is that Night Operations got folded into this rule. With 20/20 hindsight I realized that it has never had a place on the DOT Unified Agenda. I checked with a few people who “know these things” and got conflicting opinions about when Night Ops was added to
Night Ops is the easiest waiver to get FAA approval for – some 1,300 at this writing. As currently practiced, it is not dependent on Remote ID.
What’s ‘bad’ – because at the very least it will slow things down – is that it is bundled with Flight Over People, which as you will see is a complex proposal that is contingent on a Remote ID rule. Read the tea leaves, people will be applying for Night Ops waivers for a good long while.
As always, Mark McKinnon writing in Plane-ly Spoken does a beautiful job of breaking the proposed rules down in his article FAA/UAS – Drone Regulation Marches Forward! So I am going to ask him (metaphorically) to lead off.
The rules continue the FAA’s focus on a performance-based approach that is technologically neutral. The FAA does not care what means you use to meet the standard, just that the standard is met.
For flight over people, the regulation breaks UAS down into three categories based on risk of injury.
- Category 1: Includes all UAS weighing 0.55 pounds or less. These aircraft would be permitted to fly over people under Part 107 without any
- Category 2: Inclusion in this category is not weight-based. Instead, the manufacturer must prove to the FAA that, in the event of a collision, the UAS would not injure a person more severely than if they were hit with a rigid object that transferred 11 ft-lbs of kinetic energy. A UAS meeting these requirements can be flown under Part 107 without additional restrictions.
- Category 3: This class is for UAS that would not produce an injury in a person struck more serious than if he or she were struck with a rigid object that transferred 25 ft-lbs of kinetic energy. Category 3 UAS would have additional operating limitations. They could not operate over an open air assembly of people, must be conducted in a restricted access site, and would not be permitted to hover directly over people.
It should be noted, however, that the FAA made clear that the final flight over people rule will not be released until the UAS remote identification rulemaking
For night flights, the FAA will require additional knowledge testing and training and require the UAS to be equipped with an anti-collision light that is visible for at least 3 statute miles.
Playing it forward, this implies that a condition of the Flight/Night rule will be a requirement to utilize a Remote ID equipped aircraft.
I don’t know whether “the manufacturer must prove to the FAA” will be covered under SEC. 345. SMALL UNMANNED AIRCRAFT SAFETY STANDARDS.
“(3) authorizing a manufacturer to self-certify a small unmanned aircraft system make or model that complies with consensus safety standards accepted
under paragraph (1)
This certainly seems to be an appropriate way to apply the regulation for what is likely to be the first time.
The kinetic energy metrics continue to deserve discussion because there are more variables in play, starting with the height of the sUAS. I refer you to an article that I published in 2016, The Real Danger Of The Drone Over Your Head from Embry Riddle. It is based on a thesis by Andrew V. Shelley, an Accredited Safety Auditor and Member of the New Zealand Safety Council with Aviation Safety Management Systems Ltd in New Zealand.
While I am delighted that I cannot refute the “nobody has been killed” argument, it is a fact that any number of people have been badly hurt and there have been plenty of near misses on the ground. If you look at Shelley’s calculations, you will see that even a 250 gram drone falling from 100’ can cause a major skull fracture.
Beyond “I’m so sorry, that’s awful,” the rule does not (yet) mandate a liability insurance requirement. So even if the operator is identified, they may not have the ability to pay damages. The same could be true of the aircraft manufacturer. Perhaps this is something that the states will take up in much the same way that they mandate car insurance.
Jonathan Rupprecht writing for Forbes puts this in a larger context:
Operations over people is significant because not only are those operations valuable within line of sight, they become extremely valuable when you want to fly beyond line of sight. Why? Generally, you can’t really figure out if you are flying over people when you are beyond line of sight because of just that – it’s beyond your line of sight – so you just must assume so.
Jonathan also comments on another element of the NPRM which reflects the growing concern about how to police drone activities.
Part 107 is being “refreshed” to make things better. For example, the rules currently say you must show required documentation to FAA inspectors, but the proposed regulation is saying you have to present required documentation also to a National Transportation Safety Board representative; any federal, state, or local law enforcement officer; or a representative of the Transportation
But as I pointed out in a previous article, Ability To Stop Drone Attacks In U.S. Is Lacking, And It’s The Legal Vision As Much As The Tech, I don’t think law enforcement is currently adequately trained to handle this requirement.
The Wall Street Journal adds:
…The FAA described the proposed easing of rules affecting night flights and operations over people as “a small change to the regulatory structure,” and didn’t spell out any enhanced enforcement efforts.
Despite continuing debates over privacy threats stemming from drones, the latest FAA documents don’t provide new guidance on such matters or the extent to which local and state law-enforcement agencies have authority to act on privacy issues. Arguments over privacy have prompted some of the most difficult and complex trade-offs between expanding commerce and protecting individual rights.
Gatwick is a painful reminder that training LEO’s (law enforcement officers) at the federal, state and local level is a major challenge that needs a lot more attention and budget.
SAFE AND SECURE OPERATIONS OF SMALL UNMANNED AIRCRAFT SYSTEMS
The ANPRM for Safe and Secure Operations of Small Unmanned Aircraft Systems was originally scheduled to be published in June 2018.
SUMMARY: The FAA is considering additional rulemaking in response to public safety and national security concerns associated with the ongoing integration of unmanned aircraft systems (UAS) into the National Airspace System (NAS).
An ANPRM is an advanced notice of proposed rulemaking. It will never become a rule, rather it is intended to solicit public input to be used to develop future (additional) rulemaking. Unfortunately, it’s not likely to get the same amount of attention as the NPRM – though I would argue that in many ways it is more important since its impact will be broader and longer lasting.
B. Public Safety and National Security Concerns As technology continues to improve and new uses for small UAS are identified, the FAA anticipates an increased demand for flexibility in operational restrictions under part 107. These new types of operations may have public safety and national security risks that were not anticipated or envisioned. This ANPRM seeks public comment on existing and future operational requirements and limitations in part 107 that may be necessary to reduce risks to the public and users of the NAS.
Mark McKinnon picks it up:
[The ANPRM seeks] …public comment on several different UAS safety and security issues. The FAA is seeking input on:
- Stand-Off Distances: Whether the FAA should require specific stand-off distances from persons and structures, what those distances should be, and how any new limits would impact operations and training.
- Performance Limits: Whether there should be additional performance limitations on UAS, such as altitude and maximum speed, for certain types of UAS and certain operations.
- Unmanned Traffic Management (UTM): How a UTM system should be operated, including what types of data the system should require and provide, what flights should have to utilize it, and what additional training should be required.
- Payload Limits: Whether the list of prohibited payloads should be expanded, and if so, what items should be included, whether only certain types of UAS should carry hazardous items, and any time or location-based limits on carrying certain items.
- Design Requirements: Whether there should be design requirements for UAS that conduct complex operations such as beyond visual line of sight flight, what the standards should be, and who should set the standards.
Stand-off – defined as either vertical, horizontal or slant and measured in feet – could tighten or loosen restrictions on various CONOPS, or prohibit operations entirely as we have already seen over a growing number of Federal facilities.
The 100mph, 400’AGL limits are up for discussion. Once again, I encourage the FAA to use this opportunity to harmonize UAS regulations and to align the performance parameters for modelers with those for commercial operators.
UTM raises questions about what kinds of operations should be subject to UTM requirements, as well as what types of data should be shared with the public and security personnel. No way around privacy here, which is also going to be a big consideration with Remote ID.
And the discussion of Design Requirements is the first step to establishing consensus standards for SEC. 345. Here’s another tell:
The FAA, through policy, may condition the grant of waiver from certain operational limitations in part 107 on equipage with redundant systems.
Here’s how Jonathan Rupprecht summed it up:
…Whichever side you are on, this DOT advance notice of proposed rulemaking is requesting you to provide comments on 26 questions ranging from required minimum stand-off distances for unmanned aircraft to establishing design requirements for systems critical to safety of flight during beyond visual line of sight operations. This is the perfect forum to raise any issues.
A proof-of-concept demonstration for a Remote ID solution called InterUSS might have led the industry news this week – except for the DOT announcement. Such is the life of a PR person or in this case, three.
InterUSS is an open source project developed by Wing that is platform agnostic and works well enough to do a live demo. If you Google it, the first thing that returns is github.com. Where it explains that:
The InterUSS Platform™ is flexible and distributed system is used to connect multiple drone service suppliers (known in the industry as USSs) operating in the same general area to share safety information while protecting operator and consumer privacy.
As Kittyhawk CEO Josh Ziering explains in the video “It’s not the stuff of the future, it’s available, ready to deploy into production today.” Which would make a lot of people happy.
One more group waiting for 800 Independence Ave. to reopen the doors.
Do you need to put these initiatives in perspective? Find yourself a few minutes to read this very strategic piece by James Poss, Maj Gen (Ret) in inside unmanned systems, The “Why’s” of the 2018 FAA Reauthorization Act. He analyzes the issues, and calls out the winners and the losers.
Thanks for reading and for sharing. Back issues of Dronin’ On are here.
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