FAA Regulations Draw Inspiration from Canada, But Miss Key Aspect

Various aspects of the anticipated proposed small UAS (sUAS) regulations that were released by the FAA today draw inspiration from Canada’s approach to regulation. In fact, the FAA provides a handy comparison chart on pgs. 55-56. The Canadian comparison is limited to Canada’s new exemptions for sUAS. Canada’s exemptions operate very differently than FAA exemptions, as they do not require approval from our regulator, Transport Canada. If you meet the requirements of either of our two exemptions, you can operate without applying for a Special Flight Operations Certificate (SFOC). SFOC allow for broader applications than what is shown in the FAA comparison chart, including FPV and beyond visual line of sight.

Practicing in the Canadian jurisdiction, I believe that one of the most valuable aspects of our system is its flexibility and the fact that the system rewards safe operators. For instance, in Canada, first time SFOC applicants are typically rewarded narrow certificates in terms of time, geography and level of operational risk. As operators develop a track record of conducting safe operations, they are able to receive ‘standing certificates’ allowing them to operate for up to three years over large regions of the country.

The FAA should consider adopting a similar approach that rewards safe operators by allowing them to complete less restrictive operations. For instance, the proposed rules state that operators would not be able to fly over persons not involved in the operation. If an operator has a good track record of conducting safe flights, there is no reason why the FAA should not consider removing this burden.

As the FAA crafts its final regulations, it is important to find ways to build flexibility into the system, and to not only focus on punishing irresponsible behavior but also rewarding safe operators.

Summary of the FAA’s Proposed Drone Regulations

This morning the FAA held a conference call to announce its highly anticipated small UAS (sUAS) regulations. Sunday morning might strike as odd timing, however it’s likely that the timing had to do with the leak of the Notice of Proposed Rulemaking Regulatory Evaluation, Small Unmanned Aircraft Systems, which I wrote about on here yesterday. Below is a summary of the critical aspects of the proposed regulations from the FAA summary (the proposed rules have not been made available at the time of writing).

Operational Limitations
• UAS must be under 55lbs
• UAS must be operated within visual line of sight
• FPV is not permitted
• Operator must not fly over people not involved in the operation
• Daylight operations only
• Maximum speed of 87 knots
• Maximum altitude 500 feet AGL
• A single person cannot act as an operator for more than one UAS operation at a time

Operator Certification and Responsibilities
• Operators must pass an aeronautical test
• Operators must obtain an sUAS operating certificate

Aircraft Requirements
• Airworthiness is NOT required
• Aircraft markings required

Model Aircraft
• Proposed rule would not apply to model aircraft
• Proposed rule would codify the FAA’s enforcement authority in respect of model aircraft operators who are endangering the safety of the national airspace

Some of the items that are not addressed in the FAA summary which I am particularly interested in are: (1) whether the proposed rules allow a single person to operate a fleet of drones within the same operation, and (2) what the TSA security clearance check will entail.

Possible Leaked FAA Document Provides Hints Regarding Proposed Rulemaking for sUAS

A new document purporting to be prepared by the FAA Office of Aviation Policy and Plans provides hints regarding the anticipated proposed small UAS (sUAS) regulations. The possible leaked document is dated February 2015 and is titled “Notice of Proposed Rulemaking Regulatory Evaluation, Small Unmanned Aircraft Systems.” The document’s authenticity has not been established, however assuming that the document is authentic, here are some of the more noteworthy insights into the upcoming proposed regulations…

Line of Sight in Daylight Below 500 ft

The FAA proposes that operators must fly within visual line of sight. The document states that at this time “there is no acceptable technological substitute for direct human vision.” The document also proposes that operators are only permitted to fly between sunrise and sunset. The rationale provided for this requirement is that sUAS will be flying at low altitudes and flying at night would make it difficult to see people on the ground. The proposed rule requires operators of sUAS to operate below 500 ft. The logic behind this ceiling height restriction is that manned aircraft generally operate above 500 ft.

sUAS Registration Requirements, No Airworthiness

Each sUAS would have to be registered with the FAA. Registration would cost around $5 and would have to be renewed every three years. According to the document, the FAA Aircraft Registration database would enable the FAA and the public to identify registered owners and operators. The document states that “this information is necessary for FAA Aviation Safety Inspectors to perform their routine checks or to investigate an incident or accident.” Although sUAS would have to be registered, airworthiness compliance would not be imposed. Because sUAS pose a lower risk to people and property, the document provides that airworthiness compliance “would not result in significant safety benefits.”

No Pilot’s License but Requires Knowledge Test and Operator Certificate

A pilot’s license would not be required to operate sUAS. The document admits that the “training, testing, proficiency and experience requirements for obtaining a commercial pilot’s license have limited relevance to the nature of small UAS operations.” Instead, operators would have to pass a test demonstrating aeronautical knowledge and would be required to obtain a small UAS operating certificate from the FAA. The test would take roughly 3 hours to complete.

TSA Security Threat Determination

According to the document, the “TSA would [need] to determine if the operators pose a security threat. The TSA considers someone to be a security threat when he or she is known to pose or is suspected of posing a threat to national security, to transportation security, or of terrorism.” The estimated cost of a security threat determination is $130 per applicant. Although the proposed rule does not impose this fee on the operator, the document states that “at some point in the future these costs may be passed directly to the operator.”

Physical Capacity Certification

The document provides that sUAS applicants would have to certify that they have “no physical or mental condition that could interfere with the safe operation of a small UAS.”

Alternative Approaches

Finally, the document reveals alternative approaches that the FAA considered in the rulemaking process. For instance, the FAA considered parsing sUAS into subcategories based on weight, operational characteristics and operating environment. The FAA dispensed with this approach as it was deemed too burdensome. However, the FAA is apparently considering a micro sUAS rule for UAS under 2kg that meet certain operational parameters including operating at less than 30 knots below 400 ft within line of sight without use of FPV. Under the micro sUAS classification, the operator would not have to complete the knowledge test however a micro sUAS operating certificate would be required.