In 2019, the FAA published two Notices of Proposed Rulemaking (NPRM) relating to unmanned aerial vehicles (UAVs, or drones) in the Federal Register. The first was its proposed ruling on Operation of Small Unmanned Aircraft Systems Over People, published in February 2019. Then, on the last day of 2019, the FAA published its proposal for Remote Identification of Unmanned Aircraft Systems. Following the NPRM procedures, each of these proposed rules was open for public comment, followed by an evaluation of the comments and the preparation of the final rule for each of the proposals.
The final guidelines for both rules were published on Jan. 15, 2021, in the Federal Register. The proposals were long and complex, and there were numerous comments made by various groups that led to revisions before the final rules were issued. The effects of these new rules are still, in the author’s opinion, open to question. The effects will probably only become slowly apparent because the rules will become effective at various times up to two and a half years after the publication date in the Federal Register.
Obviously, these rules affect drone operators, but why should pilots be concerned? Although many of us are both pilots and drone operators, whether commercial or recreational, the fact that there are now 1.7 million registered drones in the United States and over 200,000 FAR Part 107 licensed operators make anything dealing with operations of drones in the national airspace system of concern. We are all aware of the reports of close calls and a few fortunately minor collisions between fixed and rotary-wing aircraft and drones. So, any rules applying to drones that may enhance safety and reduce the possibility of collisions with drones should be of interest.
But do these new regulations enhance safety? Or are they merely, as some might argue, additional bureaucracy and cost to the owners and operators of drones that support regulation enforcers but will do little to improve the safety of aircraft operations?
In order to understand these new rule changes, it is probably most useful to review the Executive Summaries of rules published by the FAA in December 2020. The following discussions are taken from the executive summaries and the lengthy recently published Final Rules.
New Definitions: Small Drones Over People
This rule changes the prohibition of overflights in Part 107 of the FARs and now allows operations over people and at night under certain circumstances. One big takeaway on the new rule is that it discussed drones not in terms just of their size but also of their potential impact on people and other objects, including aircraft.
Previously, such operations were prohibited by Part 107 without an explicit waiver from the FAA. How much this new change might increase drone traffic is questionable, but one could foresee that operations allowed under this new rule could increase conflicts with helicopters and certain fixed-wing operations. This new rule will become active 60 days after Jan. 15, 2021.
To fly over people and moving vehicles, the UAV must fall into one of four categories. The categories are outlined below as taken directly from the Final Rule but truncated for brevity. The descriptions are Plane & Pilot’s, not the FAA’s.
Category 1, Miniature Drones: Eligible small unmanned aircraft must weigh less than 0.55 pounds, including everything on board or otherwise attached, and contain no exposed rotating parts that would lacerate human skin.
Category 2, Light-Small Drones: Eligible small unmanned aircraft must not cause injury to a human being that is equivalent to or greater than the severity of injury caused by a transfer of 11 foot-pounds of kinetic energy upon impact from a rigid object, does not contain any exposed rotating parts that could lacerate human skin upon impact with a human being, and does not contain any safety defects.
Category 3, Mid-Small Drones: Eligible small unmanned aircraft must not cause injury to a human being that is equivalent to or greater than the severity of injury caused by a transfer of 25 foot-pounds of kinetic energy upon impact from a rigid object, does not contain any exposed rotating parts that could lacerate human skin upon impact with a human being, and does not contain any safety defects.
Category 4 Small-Medium Drones: Eligible small unmanned aircraft must have an airworthiness certificate issued under Part 21 of FAA regulations. Must be operated in accordance with the operating limitations.
Categories 1-3 all require some type of protection of the rotating blades, such as prop guards to prevent skin laceration. While it appears that Category 2 eligibility and Category 3 eligibility are identical except for the difference in the “foot-pounds” of energy allowed, each of them requires an FAA-accepted means of compliance and FAA-accepted declaration of compliance. As noted below, there are different operating rules for Categories 2 and 3 that further differentiate the two categories.
At this point, the question might be what does an 11 or 25 foot-pound of kinetic energy impact mean? Think of a foot-pound being the impact resulting from dropping a 1-pound weight 1 foot. Thus a 25-pound weight dropped for a foot is 25 foot-pounds. This is not a trivial impact. Do not try this at home, but none of us would like to have a 25-pound weight dropped a foot onto his or her head. How these criteria are going to be met is an open issue. Will the FAA be able to come up with an accepted means of compliance (maybe a parachute to retard descent rates for heavier drones), or will the drone operator be able to self-certify under some FAA template?
For Category 3, operations over open-air assemblies are prohibited. Operations within or over a closed- or restricted-access site are allowed under two conditions: 1) all human beings located within the closed- or restricted-access site must be on notice that a small unmanned aircraft may fly over them, or 2) the small unmanned aircraft does not maintain sustained flight over any human being unless that human being is directly participating in the operation of the small unmanned aircraft or is located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.
Obviously, Category 4 is for the “Big Boys”—Amazon, Walmart, Google, etc., that want to deliver packages flying over people and can afford to manufacture and/or acquire drones with airworthiness certificates. Airworthiness certification under Part 121 is typically a long and involved process for aircraft. Will the FAA provide an abbreviated certification option for drones, or will this new option overload FAA resources that might be better spent on other airworthiness certification issues? This remains to be seen.
Also new is the requirement that drones be identifiable remotely, so the anonymous operation of drones that could do major damage is prohibited. For flights over people, all categories must meet the criteria set forth in the other new rule discussed below, which establishes a new criteria under Part 89 for remote identification of the UAVs.
“Also new is the requirement that drones be identifiable remotely, so the anonymous operation of drones that could do major damage is prohibited.”
The new rule now allows pilots of remote ID-compliant drones to fly at night if they and the UAV meet training and equipment qualifications. For night operations, a UAV must be equipped with operational anti-collision lights that can be seen for 3 statute miles and have a flash rate “sufficient to avoid a collision.” What exactly that means is unknown.
In addition, there are new operating requirements for operating over moving vehicles and several administrative requirements for remote pilots, such as having their remote pilot certificate in their possession and presenting their certificate to FAA, NTSB, TSA or any federal, state or local law enforcement officer. There is also a requirement to allow the FAA to test or inspect the UAV upon request.
In summary, the rules for operating over people and at night may have little impact on pilots but may allow for reasonable drone operations over people and vehicles and for operations at night. There might be an increased chance of collision due to newly allowed drone operations that would have been previously prohibited. However, since the basic drone altitude restrictions are not changed, most pilots normally would not conflict with these operations or would be able to avoid them with preplanning.
The impact on drone operators will only be for those who want to take advantage of these new opportunities and therefore presumably are willing to accept the costs. However, make no mistake about the fact that this was part of the current administration’s push to allow commercial operations in domestic drone delivery situations. Whether our future will hold fleets of delivery drones operating day and night continuously in an ever more expansive use of the airspace and creating more risks of collisions is still an open issue.
Remote Identification Of Unmanned Aircraft (Part 89)
The Final Rule on remote identification of UAVs establishes a new FAR Part 89. The executive summary on this final rule describes the rule as establishing a “digital license plate” for UAVs. This is probably a very apt description, but what does that mean from a pilot’s perspective? One might have hoped that remote identification would be a process that would actively reduce the chance of a collision in the same way ADS-B can reduce collision risk. However, the transmission from UAVs required by the new rule is useless to pilots.
Although position information will be transmitted from the UAV equipped as required by Part 98, it will be over wifi or Bluetooth and therefore not usable by pilots. Its real purpose is to be useful to agencies and law enforcement, and its impact on flight safety is questionable at best. How many vehicle accidents have ever been prevented by a license plate? License plates exist for administrative reasons. They allow tracking some aspects of vehicle operation, and they aid law enforcement and regulatory enforcement. To the extent that the threat of detection/prosecution may deter illegal drone activities, the new Part 89 may reduce the possibility of a collision with a rogue UAV. Whether that will be a noticeable improvement over current conditions is open to question. Rogue remote pilots may just continue to ignore the new rules and operate nonconforming drones outside allowed operational limits, such as flying too high.
In contrast to the new rule change about operating over people and at night, this rule will affect almost every drone operator. There are some aspects that pilots will recognize immediately from our experience with such regulatory rollouts as ADS-B, with its delayed compliance dates, etc. However, this is not ADS-B or even ADS-B-lite. There is no UAV to UAV or UAV to aircraft transmissions. In fact, using ADS-B is called out as explicitly not satisfying the new Part 89 except under defined circumstances.
Part 89 becomes effective 60 days after Jan. 15, 2021. Then, through a phased series of timed deadlines, drone operators will be forced to comply with the new rules or seriously limit their operational areas through a new program establishing what are called FAA-Recognized Identification Areas (FIRAs). FIRAs are geographic areas where unmanned aircraft without remote ID can fly. There is no grandfathering. Existing drones must be retrofitted, or they will only be allowed to be flown in the FIRAs.
One of the most striking characteristics of the new Part 89 is that the new equipment required by the new rule does not presently exist. Right now, no one knows how much it will cost to implement these mandates in new drones, much less what it will cost to retrofit existing drones.
All unmanned aircraft required to register by the FAA must comply with Part 89. If the UAV weighs less than 0.55 pounds, compliance is only required when engaged in Part 107 operations. Larger UAVs are broken into different categories depending on whether they were built with the remote ID installed or whether they are retrofitted with the Remote ID Broadcast Module.
All UAVs manufactured after 18 months from the effective date of the rule must meet the new requirements of Part 89. For future UAVs built to conform to Part 89, referred to as Standard Remote ID Unmanned Aircraft, whatever equipment is used must be compatible with personal wireless devices (thereby allowing an enforcement official to use a smartphone to track a UAV and its operator). The UAV must broadcast its latitude/longitude, altitude, velocity and the latitude/longitude and altitude of the Control Station. Timing marks must also be broadcast, presumably to allow reconstruction of events. Although no transmission range requirements are set out, the rule requires that the system must be designed to maximize the range at which the broadcast can be received.
For UAVs that are retrofitted with the Remote ID Broadcast Module, the Broadcast Module may be separate or built-in. The Broadcast Module serial number must be entered into the registration record for the UAV. The UAV must essentially meet the same broadcast requirement established for Standard Aircraft. Essentially the same information must be transmitted about the UAV, except that, for some reason, the Broadcast Module is required to transmit the takeoff location of the UAV instead of the location of the Control Station.
Finally, the new Part 89 establishes FAA-Recognize the Unification Areas (FRIAs), where UAVs not equipped with remote ID can fly. These areas may be established with the FAA on petition from community-based organizations recognized by the Administrator and by petition from other organizations, such as educational institutions, trade schools, etc. Within a FRIA, drone operation must be within line of sight. How this will affect radio-controlled model flying is not completely clear. To the extent that R/C modelers are recognized as community-based organizations recognized by the Administrator, they should be in the clear. The new regs should allow them to get their flying fields set up as FRIAs, therefore exempting them from the regs. However, the requirement for remote ID can be seen as a restriction for R/C modelers if they wanted to fly unfettered everywhere away from a FRIA.
Part 89 prohibits the use of ADS-B on UAVs unless the UAV is flying under a flight plan and communicating with ATC. Part 89 allows special authorizations for various reasons and sets requirements for foreign registered unmanned aircraft operating in the United States.
What will this cost drone operators in the future? Normally, a final rule has a cost evaluation associated with it, but such is not the case with Part 89, which does have cost estimates, but they appear to be only considerations of macro costs with no consideration for the cost to the individual operator such as is done with an Airworthiness Directive (AD). No one knows what the incremental costs of the remote ID system will be, but common-sense estimation of the costs may lead to some expensive speculations.
For drone manufacturers, the incremental cost of meeting the remote ID requirements may be minimal once the initial R&D is completed. Most of the various aspects are already part of modern UAV designs. GPS, geo-fencing limitations on startup and control, and transmission links are already there, and the UAV’s “brain” can probably be redesigned to satisfy the new requirements at a reasonable cost. Where the problem will probably arise is in the production of the Remote ID Broadcast Module.
Since Remote ID Broadcast Modules have never existed and since incorporation of the module would presumably be as an add-on to an existing drone without modifying the existing circuitry, these could become quite expensive. It may be possible that manufacturers of current high-end drones might provide a reasonably priced upgrade kit. However, the cost of these new modules may be high enough that unless the owner decides to continue to operate the drone in a FRIA, their current drone may become worthless and unusable.
At which price point this might happen is open to question. If the add-on module cost is in the $50-$150 range, many operators of a sophisticated, modern drone, such as a DJI model costing from $1,000-$2,000, would probably just purchase and install the module. However, if the add-on modules are in the $300-$500 range, many current operators might opt to retire their equipment or perhaps just fly in the FIRAs.
Commercial operators will consider the new Part 89 as perhaps an annoyance but a cost of doing business, which they will ultimately pass on to their customers. The operator who gets hurt is the owner with one or two drones for whom the additional cost of retrofitting a drone is just not economically justifiable.
Who will make the add-on modules? We don’t yet know. Manufacturers may be reluctant to enter a market that is unpredictable. Compare this with ADS-B, where few older aircraft owners were going to give up their aircraft over the requirement to install ADS-B. Although some owners did not install ADS-B and chose to remain out of areas where it is required, the demand for ADS-B was enough to assure manufacturers of an attractive market.
“The effect of these two new rule changes on pilots is very minimal except for those pilots who currently operate in areas of potential conflict with drones, such as life-support helicopter operations, helicopter firefighting, etc.”
Another consideration not addressed in the Final Rule is what impact the modules might have on the flight characteristics of the current drones that they might be used on. How heavy and bulky they will be is unknown, and this might have a significant impact on whether they can be used to upgrade current drones, particularly those with low lift capacity.
Finally, the requirements of Part 89 phase in over lengthy periods. Manufacturers have 18 months after the rule takes effect to produce compliant UAVs, and owners have two and a half years to comply by adding a module or limiting their operations to FRIAs.
Looking To The Future
The effect of these two new rule changes on pilots is very minimal except for those pilots who currently operate in areas of potential conflict with drones, such as life-support helicopter operations, helicopter firefighting, etc. For most pilots, the new rules provide little to no reduction in the risk of collisions or improvements in safety.
Increasing the ability of drones to fly at night and over people, which was previously prohibited, may increase the risk of collision. However, the deterrent effect of the enhanced ease of law enforcement identifying drones and their operators may be argued to reduce the risk of collision with drones operated outside regulatory framework.
For drone operators, the impact of the new rules, particularly the digital license plate requirements of the new Part 89, are significant. Owners and operators need to carefully read the Final Rule in the Federal Register and determine how and when they must comply with the requirements. Unfortunately, the possibility exists that many current safely operated drones will be scrapped, as their owners may determine that they cannot be cost-effectively operated once Part 89 is fully implemented.
Pilots who operate drones fall into a special category when looking at the impact of the new rules. Pilots who commit a violation with a drone (even in recreational drone flying) can potentially lose not only their drone license (if one was required for the drone operation) but also can have their pilot license(s) suspended or revoked based on a drone violation, so strict compliance with the new rules is essential.