The 'Real Progress' issue of Dronin' On 09.13.19 RID OIRA
image courtesy Pixabay

Hi All –

This totally unexpected, last minute impromptu post this week was inspired by some very big, long awaited news.

After years of delay and less than subtle prodding from an increasingly irritated Congress, the Remote Identification Rule (RID) has (finally) been submitted to the Office of Information and Regulatory Affairs (OIRA) for review, the essential “next” step to issuing an NPRM.

Also a quick look at the new ASTM RID standard working its way through the system, thoughts from DOI’s Mark Bathrick on security, a quick update on the Heathrow Pause protest and some thoughts on the seeming plethora of Part 135 drone delivery companies.

REMOTE ID

RID to OIRA pending regulatory review
click to view

Thanks to @vehiclelaws, Joel Roberson at Holland & Knight LLP for bringing the Remote ID filing with OIRA to my attention.

OIRA now has 90 days to review this. Typically after the OIRA comment period, changes are recommended which require additional time for drafting and review to incorporate, so it is hard to say if the FAA will be able to make their recently announced December 20 deadline. Safe to say it’s gonna be tight.

Note too that perhaps taking advantage of the Holidays (?), or sending a fast track signal (?), the FAA is only allowing 60 days for the public comment period. Given the likelihood that the rule will be challenged, this seems to be a high risk strategy for no real return except to placate their critics.

It is important to note that the OIRA review is the time when other government agencies typically comment. Those of you who have been at this for a while, will remember that the original submission for Operations Over People (OOP) ground to a screeching halt when it was submitted to OIRA in late 2016, early 2017. At that time the security agencies made it clear that OOP would not go forward without Remote ID. So here we are.


After all of the promises and all of the testimony, it is reasonable to expect that the security agencies will review the rule with a critical eye.


But at least the FAA has it out the door and for the moment, it has the Hill off its back. Yesterday (9/13) Morning Transportation reported that:

SENATORS PUSH FAA ON REMOTE ID: John Thune (R-SD) and Ed Markey (D-MA) reupped their call for the FAA to publish a remote identification rulemaking for drones, joining the industry in expressing frustration at the repeated delays. In a letter, they wrote that the agency never formally responded to an April request on the same topic. 

Also yesterday morning Sara Baxenberg and Josh Turner published There’s Bipartisan Agreement that Remote ID Is Taking Way Too Long in WileyConnect. It is an excellent recounting of the many twists and turns the FAA has taken since they were instructed to come up with a Remote ID solution in the 2016 FAA Extension just over three years ago.

Of particular interest is the excerpt of the letter from Senators Thune and Markey to the FAA which raises many of the same questions that I have been asking.

In the letter sent yesterday [9/12], Senators Thune and Markey raised a number of specific issues relating both to the prospective Remote ID rulemaking and to the FAA’s request that the DAC consider voluntary compliance measures. Specifically, the Senators posed five questions for the FAA, asking for a response by September 27:

  1. How does the FAA plan to administer and facilitate any voluntary deployment of remote identification equipment to ensure these deployments are carried out in a nationally consistent manner?

  2. Will the FAA publish any interim rule or other informal guidelines regarding voluntary deployment of remote identification?

  3. Does the FAA believe that the remote identification NPRM and final rule will be further delayed as a result of any voluntary actions?

  4. How will the FAA ensure that any voluntary actions taken by industry in the pre-rule period do not substantially differ from requirements laid out by the NPRM or final rule?

  5. How does the FAA plan to use information gathered from voluntary implementation to inform the rulemaking process?

If you missed it, in May 2019 FAA Executive Director Jay Merkle gave the DAC 90 days to come up with ideas for voluntary compliance to the RID standard prior to the rulemaking.

I have had a number of email conversations with well-informed members of the DAC in which I raised many of the same questions. As I have reported previously, many of the DAC concepts relate to tying voluntary compliance to certain waivers – just as RID will be a condition of many (most? all?) rules going forward.

Of course, waivers will do nothing to incent the 10x greater number of recreational fliers who will be required to carry RID and don’t need waivers to operate. It’s a classic ‘what’s in it for me?’ problem. For better or worse, the way this is approached with the recreational community now will have a huge impact on compliance going forward.

But the real issue for me, which is neatly summed up in #4 above, is voluntarily comply with what? The ASTM standard should be approved later this month or next, but a technical standard is a long way from a FAA approved piece of hardware or a software patch that can be installed on a drone.

This is kind of a fine point, and has sometimes been a sore point, but it is very important to recognize that an ASTM standard is just that. Even though the FAA has been an active part of the development effort, it does not mean that when it is published it has been endorsed or accepted by the FAA.

As I reported in the Connected Skies issue, the expectation is that the FAA will want to spend some time testing the new standard before signing off on it. In fact, the ASTM working group fully expects to update the standard based on those tests and other trials.

All of which is fine and good since the NPRM need not contain the standard but instead can refer to it. The good news with that approach is that as the standard evolves, the rule remains current.

But to me, voluntary compliance prior to the rule implies acceptance of the standard… especially if any modifications to the drone are required.

The DAC taskforce plans to submit its report at the next meeting which is expected to be in October 2019, though as of last week no site had been named.

There is also a larger issue with voluntary compliance. A famous riddle puts the issue in context:


If a tree falls in the forest, and there’s nobody around to hear it, does it make a sound?


Or more specifically, if aircraft squawk but the app hasn’t been rolled out to law enforcement, does it matter?

THE ASTM STANDARD

ASTM standard ASTM WK65041
graphic courtesy of ASTM

Coincidentally this week, an article appeared in IEEE SPECTRUM, Electronic License Plates for Drones May Come Soon: New drone standard for remote ID submitted for approval.

As I have mentioned before, the goal (a true BHAG) is to develop a much needed fully interoperable global standard that is adopted by all 193 ICAO members.

The newly proposed standard, ASTM WK65041, sets up guidelines for how drones can identify themselves to remote observers, as well as for how to set up systems to read that data. Developed with input from civil aviation authorities such as the U.S. Federal Aviation Administration (FAA) and Transport Canada, as well as leaders in the drone industry, the would be standard was submitted to global standards organization ASTM International (originally the American Society for Testing and Materials) on 5 September and will be out for ballot on 9 September.

The ballot is part of ASTM’s internal process. According to people that I have spoken with, it is reasonable to expect that it will be approved by the reviewers and submitted to the FAA before the NPRM is posted to the Federal Register.

To date there has been very little discussion about what implementation is likely to look like. Retired USCG Admiral Philip Kenul, chaired the ASTM International’s Committee F38 on Unmanned Aircraft Systems which developed the proposed standard offers some clues.

New drones can come automatically outfitted with such electronic license plates. Old drones can be retrofitted with ID chips that would plug into their USB ports and might cost $7 to $12, Kenul says. When it comes to radio-controlled model aircraft, the remote pilots of these vehicles can use a smartphone app to report the ID of the aircraft and the location and time of operation to remote ID authorities.

I very much like and have long advocated for the idea of mandating that all new drones imported into, or built in the US, have the necessary hardware and
software onboard.


This means that manufacturers will have to certify compliance.


Though one has to wonder if the FAA actually has the authority to mandate this (seems like a Department of Commerce issue especially at port of entry). For the same issues around voluntary compliance, it is unlikely to take effect until the rule is in place, unless the FAA accepts the standard prior to the rulemaking.

SECURITY

Mark Bathrick on drone security
Mark Bathrick speaks at the Brooking Institution – photo from Twitter

A huge favorite here at Dronin’ On for his leadership, foresight and professionalism is the DOI’s Director of Aviation Mark Bathrick.

In July Mark made some news by climbing out on a limb to authorize the purchase of DJI drones. This made for some merry headlines and claims of endorsement and absolution. However a close reading of the Memorandum told a different tale – and was anything but a hall pass:

1. Approve the purchase of M600Pro and Mavic Pro aircraft in the Government Edition configuration.

2. Maintain third party validation of any new or updated software, firmware, hardware, or ancillary DJI applications to ensure no data leakage occurs with
these updates.

3. Limit the use of approved aircraft to non-sensitive missions that collect publicly releasable data.

4. Provide all DOI UAS operators and bureaus operating DOI UAS with copy of the Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) Cybersecurity Best Practices for Operating Commercial Unmanned Aircraft Systems.

This week, Mark participated on a panel at the Brookings Institution, New Advances in Transportation and Service Delivery. Never one to miss some clickbait, Morning Transportation headlined:

The Interior Department’s aviation head defended the agency’s use of Chinese drones and said he didn’t think a federal ban would be effective at thwarting security concerns.

As is becoming customary (see the Democratic debates) us newsies are prone to throw gas on the fire. In fact, the response reflected Mark’s much more
measured approach:

… I think security needs to be part of every program. And in our program, it was in from the very beginning. We set requirements, encrypted control and encrypted payload link, the ability for us to deny or look out any information sharing. And we worked with companies, we worked with one particular company to develop a solution to that because they didn’t meet that requirement.

And I think that the conversation right now on security, as I see in the
press, is kind of bifurcated. There is a genuine concern for security, which I agree with, but security comes from good requirements, not from geography. I am probably one of many recipients in this room of free credit monitoring thanks to my personal information being compromised on a server within the government. So location didn’t help me there.

I think the other issue is the realization because these drones are very visible that we don’t make a lot of electronics, maybe we don’t make any electronics in the United States anymore. Anyone buy a Zenith TV lately?

So I think there’s two conversations that need to go on, and I’m concerned that they’re both happening at the same time. And that banning products never generated the US. industry. 

You know, banning Japanese cars in the ’70s never would have kick started the U.S. auto industry. And frankly it’s not going to solve the security issue.


“What’s going to solve the security issue is good requirements, both in industry and government, and then adhering to those requirements and only buying products that meet those requirements.”


Well worth reading the entire transcript.

Also worth a look is Jonathan Rupprecht’s recent post, Counter-Drone Law & Technology: We Need a Comprehensive Game Plan.

The Gatwick Airport drone incident has caused us to see the need for counter-drone technology, but while most commentary is focusing on only short-term issues and solutions (“Just shoot it down”), what is not being recognized is the need for a complete end-to-end solution which would involve training law enforcement and prosecutors to arrest and prosecute these types of events to a
successful conviction.

…Assuming you catch the bad guy and turn over the case to a prosecutor, does the state or federal prosecutor even know what to do with this bad guy? 

Here is what we need – a long-term vision of detecting, defending, and prosecuting the bad drone actors all the way to a successful conviction.

Always on top of the news of the day, Mark McKinnon and Mark Dombroff are doing their first webinar from their new home at Fox Rothschild LLP, Drone Defense: Rules, Regulations, Dos and Don’ts October 1st.

HEATHROW PAUSE

Heathrow Pause environmental protest
Heathrow Flight Paths (hatched rectangles) where no drones will be flown, and the remaining 5km exclusion zone in which drones will be flown.

Drones have found many uses from bombers to saviors. But the use of drones as a tool of civil disobedience, as opposed to a tool to chronicle civil disobedience, is new to me.

Air Transport World reported that:

Environment protest group Heathrow Pause plans to disrupt flights at London Heathrow Airport for at least five days from Sept. 13 by illegally flying unmanned aerial vehicles (UAVs), or drones, within the airport’s exclusion zone.

The group opposes Heathrow’s expansion plans and wants to draw attention to the impact of rising emissions on climate change.

Unauthorized drone activity within Heathrow’s 5km (3.1 mi.) exclusion zone is illegal.

The campaign group plans to fly toy drones within the exclusion zone, from before the airport opens on Sept. 13. The drones will then be flown at regular intervals to keep flights grounded.

But the big day didn’t get off to a big start. sky news headlined, Heathrow Protest Fails to Take Off as Drones ‘Blocked by Signal Jammers’

Climate change activists have failed to cause disruption at Heathrow Airport by flying drones after claiming the gadgets were blocked by “signal jamming”.

So far 18 have been arrested.

PART 135 PLETHORA

Flirtey Part 135 UAS IPP delivery
Flirtey’s new ‘Eagle’ drone is capable of flying in “95 percent of weather conditions” – courtesy Flirtey

I was completely and utterly gobsmacked when I read in Avionics International that:

Drone delivery startup Flirtey is enabling rapid point-to-point drone delivery using a new commercial drone, a portable drone launch point and autonomous software that is FAA-approved to allow one operator to oversee the operations of ten drones simultaneously

Sorry but WTF? Talk about taking it to the MAX… What was the approval based on? What testing? What frequencies? And how did the FAA go about testing and certifying a complex piece of software?

We don’t have RID, or an Ops Over People rule, or a Night Flight rule, or a BVLOS rule or any aircraft or communication certification standards but the FAA is handing these things out like candy. The official rationale is that they are busy
collecting data…

Wing and Flirtey are both part of the UAS IPP program – as far as I know Amazon and UPS are not. On the Brookings panel with Mark Bathrick was Darshan Divarakan, UAS Program Engineer, Division of Aviation North Carolina Department of Transportation (NCDOT).

In the manned aviation side you have your air carriers that transport people, you know, your airlines and everything, and then you have package delivery and cargo delivery. Those are your 135 operators.

And how they operate is very different from commercial air carriers and everything. So there are certain regulations around it which could be like pages, maybe multiple pages.

Now Part 135 Operations is not something which we can just give a sheet of paper and say you need to X mark all these things and give us everything. FAA is figuring out what for manned aviation might have been thousands of pages, how does it become a hundred pages or less for the unmanned system side?

So we are working — not just us, but other nine states are also working with FAA to see what is required. You know, things like air worthiness, training standards for aircrafts. All these things are coming into practice so that after this any and every company is able to replicate this process and FAA can change the regulations. Say
two or three years from now package delivery is no longer a dream, it’s a reality. 

So these are the things where we are seeing the changes taking place, but it’s also us as such that are restricting this progress.


“And that is where the regulations cannot be changed just because of a specific need of one company or a state, it has to be a mutual understanding between all the states that this is the progress towards the right direction.”


Thanks for reading and for sharing. Back issues of Dronin’ On are here.

best,
ck

Christopher Korody
Editor and Publisher
chris@dronebusiness.center
follow me @dronewriter