The Notice of Proposed Rulemaking (NPRM) Operation of Small Unmanned Aircraft Systems Over People and Advanced Notice of Proposed Rulemaking (ANPRM) Safe and Secure Operations of Small Unmanned Aircraft Systems from the FAA are currently up for public commentary and represent a significant opportunity for every player in the drone industry to help shape the future of regulation in the United States. Commentary ends this April 15, so there’s no better time than now to start diving in.
To discuss the importance of the NPRM and ANPRM, we asked Christopher Korody to join the podcast to outline the documents, the history that got us here, and the potential ways it can shape your own operations for the better.
Christopher is a 45-year marketing veteran with deep experience in the technology, aerospace and automotive sectors. He launched DroneBusiness dot center to provide UAS and robotics companies with the market research, strategy and communication programs necessary to stand out in this crowded marketplace.
Christopher’s weekly newsletter, Dronin? On, aims to connect the dots in the commercial UAS industry. Chris is who I go to when I need an accurate take on the state of regulation and this week I am sharing his take with you. It’s worth subscribing to Dronin’ On if you want to keep your finger on the pulse of the industry.
Mike Pehel (InterDrone): So what is a notice of proposed rulemaking and while we’re on it what is an advanced notice of proposed rulemaking? What’s the distinction?
Chris Korody: Basically, right now there is Part 107 and if you want to do anything outside of plain vanilla Part 107 you get a waiver. A rule is something that allows you to not have to go to the waiver process and that’s why all this becomes important because the goal is by eliminating waivers people know what the rules are. Then they can fly by the rule and don”T have to go through the waiver process. The FAA doesn’t have to build a giant organization to approve waivers and the industry to scale. That’s why you want to get to a rule.
The rule begins life at the FAA and very often the FAA forms an advisory committee or ARC or relies on expert groups like the DAC (Drone Advisory Committee) to give input. Then they draft the rule. People need to understand this goes through a lot of versions. There’s a lot of internal review within FFA. There’s a lot of legal restrictions around what they do and how they think about the problem. Then it’s reviewed again by the Department of Transportation and then it goes to OIRA which is the Office of Information and Regulatory Affairs. OIRA is part of the Office of Management and Budget which is in turn part of the White House.
Because the FAA and Department of Transportation (DoT) are part of the Executive Branch, OIRA’s job is to review all the rules proposed rules for financial implications and a bunch of other considerations. It’s the first opportunity for other Federal stakeholders as well as well-connected individuals to comment.
When you think about remote ID which was mandated by Congress in the 2016 extension, but the whole remote ID thing took off when the original operations over people rule got to OIRA in January of 2017. Then all the security agencies said no, not without remote ID or this isn’t going forward. That’s the first big hurdle.
It seems like the security agencies really really made the case and made that case very fast that they weren’t going to let this go without remote identification. What was the impetus behind that? Do you think are they nervous about terrorist attacks are they nervous about just the regular old security of the airspace?
I think there’s a couple of things going on. Firstly this Administration is conservative, protective, and Law & Order, right? That’s the environment we’re in but I think reasonably prudent one. I think the thing that’s really tipped this started in 2013 or 2014. More Non-state actors started using drones for all sorts of purposes. The Somali pirates were using them and the narcotraficantes were using them to fly stuff over the border and spying on the border patrol positions. Then, of course, ISIS and Al Qaeda were using them to great effect in the Middle East and less discussed is the Russian’s very successful use of drones in Ukraine.
All of these things got a lot of attention from the US military and they started going up to the hill. Obviously, people talk and the concerns in the DoD didn’t take long to get to become concerns for the Department of Justice (DoJ) or at the Department of Homeland Security (DHS). I think that when this idea flying over people showed up everybody went and said, “Well wait a minute, what if it’s a bad guy? How do we know? How do we Control it? What’s Going on??
I think that was a lot of the impetus or at least in a larger historical context what happened.
So they (DoD) are one of the stakeholders in this process. Then there’s the DoJ and DoT as things move along through the meat grinder here?
DoJ, DHS, and DoT, and maybe even the Department of Energy (DoE) are all stakeholders in this. If you look at some of the things that have come out of the white house since Trump has been in office, you can see like in the UAS IPP document the FAA basically has to get consensus from those three agencies for every single thing they do now. I don’t know if that’s always the way it’s been because while I try to be a good student I haven’t gone back to look, but those agencies have a very significant role now in air safety.
As drones fly around Gatwick or not and fly around Newark or not, and all the other things seem to be happening these people are more concerned. It’s a conservative crowd because nobody gets an A+ if somebody gets blown up. I have nothing to base it on in particular, but I would not describe the role as passive or bystanders. They’re very active. And now with the Reauthorization Act, the DoJ and the Department Homeland Security also have the authority to begin testing in the United States which they didn”T have before. They are trying to figure out how to do this at the same time.
I think it’s good to go into that detail so people understand how many players are involved in this process to get a rule in clear human language.
And let’s not forget the role of the Congress in all this too, because it all starts with the FAA Reauthorization. Those are orders to the FAA and other organizations like the Controller General to execute things as part of this. It starts there. The FAA is kind of in the middle because they have to meet the needs of their sister agencies but they also have to satisfy the commercial enterprises, and the flying public and us, what we think about drones flying over our house. It’s a pretty complex thing to evolve.
Yeah, and part of the FAA’s mission statement under this administration is to focus on Innovation and connect with businesses. That’s what this whole UAS IPP thing is about right? It seems like there are conflicting ideas that are going to have to be balanced out as we go through the rulemaking process, the actual tests, and the results to come out of the test sites, as well as continued industry participation. Also, not having the tech sector innovator crowd be scared away by the clamp coming down on something that used to be a very open market by comparison.
Well, there were no rules except it was entirely illegal. This started in 2012. The mandate to integrate UAS into the National Airspace System (NAS). Here we are seven years later still working on that problem. That’s the grand picture.
Let’s just finish off with what happens in the rulemaking process. We go to OIRA and the FAA incorporates its comments or proceeds to modify the proposal or they can pull the proposal, which is what happened with the NPRM flight operations over people. The piece I”D like our listeners to understand is that the FAA has posted these proposed rules on the Federal Register and they are open for public comment which closes I think on April 5th. Those comments will have an impact when they draft the final rule. This is why I was excited to participate and webcast is because I think people need to understand it’s their chance to influence the outcome.
There are three things that are open right now. The little one that we can kind of dispose of is the interim final rule for external marking, which is on a fast-track that closes in 30 days. It says you have to put your registration number on the outside of the drone and you can come in if you want but I think it’s a lost cause. If you think about, it’s the first step to remote ID and that’s pretty much a given. The NPRM covers three things, some changes to part 107 in terms of testing, night operation, and then operations over people. Everybody should be very clear that this rule is going through the public review or process right now, but it will not go forward until there is a remote ID rule in place. If you think back to the history I just shared the position hasn’t changed.
That seems kind of putting the cart before the horse a little bit there because there’s potential that some of the problems can be solved just by remote ID handling the Drone of being able down the Drone if there’s a unified system.
I don”T know why they did it this way except that the NPRM for operations over people has been on the drawing board since 2015 or 2016. I guess the theory is we’ll get it done now and we’ll put it in the corner, and then we’ll get it out when we’ve got a remote ID rule. I have a lot of issues with the way they’re going about it because we’ve got the ANPRM, which will talk about a minute, which certainly helps to inform that ops over people rule. The other thing is that is the night operations and the changes in the Part 107 procedures like training instead of testing, and having to show your ID to people other than the FAA are all delayed now because they’re conflated with the operations over people rule.
You have operations over people, then also night operations. I was on a webinar earlier this afternoon and an interesting statistic I found out is that 95% of the waivers the FAA is giving out is for night operations. They’ve given out 2,400 or 2,300 at this point in time, but only 24 or so for operations over people. The night operations thing is pretty well understood. There’s a training component and you have to have a big flashy light, so people can see for three statute miles, and that’s all pretty straightforward. I’m sure people will have comments about it. One thing to say to the listeners is this NPRM document is 206 pages long.
So start reading now.
Yeah, start reading now, there”Ll be a test eventually (said jokingly).
There’s a lot of issues around operations over people. It’s important to certain segments. Obviously, the public safety people and the news media are very interested in it. After that, I question the value of it.
We also have an Advanced Notice of Proposed Rulemaking (ANPRM) which is like a focus group or survey. They put a bunch of questions out there so that the public can give you input on a wide range of issues. One thing that got said at the webinar I mentioned we’re going from general rules to more and more specific rules because that’s what the FAA does. This trend will continue adding rules about how far can you be from so and so or how fast can you go or how high can the thing go. The ANPRM basically divides a set of questions that they’re wrestling with how to make rules going forward into the five buckets. There are 26 questions that they ask. It’s sort of all open-ended questions and if you’re inclined to invest some time you can answer one or all of them. The ANPRM is very important to people who have mission profiles for concept operations in mind, who have specific ideas they’re concerned about being able to do that would make their job, their mission easier or their business more successful. This is the place to put those things in.
This is probably the place to make the difference. You can make the most impact here because of its specificity and you can inform the FAA essentially of how actual operations are working in a way that they probably don’t have access to because it’s big air space and a big country they are dealing with.
Yeah, and you can tell them what you need. There’s a favorite story I have about this with Part 107 because people say things like “It’s the government does anybody listen.” Before I get to it actually, let’s just talk about Part 107 for a minute. The final rule was over 500 pages, and 400 something of that was used by the FAA to address various comments that they got. So my favorite story comes from Todd Schlekeway, who’s the Executive Director of the National Association of Tower Erectors (NATE). These are the guys who own, operate, and service cell phone towers and other big towers around the country. Every day there’s five, ten, or fifteen thousand people out climbing Towers doing different things.
Todd and some of his guys went to see the FAA during the NPRM period to discuss the impact of the four hundred foot AGL rule on the utilization of their drones, and that’s how come there is today a 400-foot offset from the highest point of the structure rule. It’s because they went and said, “Look this is what we’re trying to do. Here is our issue. Here’s how we”D like to do it? and the FAA went and said anybody is who flying an airport airplane into a 400-foot structure is a lost cause anyway and that basically becomes a shield to the Drone. It’s on charge Pilots are aware of it and they can see it. The FAA approved it and that’s where that rule came from.
It is very possible, especially now with the ANPRM, for that kind of advocacy to happen and have an impact. I asked Todd if I could share the story, and he said, “Be sure to tell them that we have a great rapport with the FAA and that one of our UAS committee working groups is an FAA advocacy working group.” Hearing that you know it works obviously. You know this is becoming a big game and larger groups who are better capitalized, better organized, or have a more unified point of view are going to be more effective in this kind of lobbying, but that doesn’t mean that you can’t try to make a difference.
It’s almost like voting in a sense. If there is a consensus among let’s say five or six people that submit what they think is an answer to a question or there is a specific thing they need changing, that’s data where there was no data. The FAA is always certainly looking for consensus because that gives them the ability to confidently make a choice before putting words a paper. Maybe even if there are other people in your field that you could get commit, get them out and make the comment.
Yeah, absolutely. I mean the more they hear the better informed they are, and they want to build good rules that are responsive and that help people be successful. They’re not opposed to that. I agree with you. The more they hear the same drum beat and the same points, the more they begin to understand there’s something to it. Let’s remember that the ANPRM in and of itself nothing happens. It’s just they now have this body of comments. I’m sure they have some process for digesting a referring to and it will turn around and inform other rulemakings. Maybe what happens is they hear a lot about this issue under this category so now their writing this rule for it.
They’re going start with this as their going in position because that’s what we got. It is basically your chance to be on an ARC, to be on a rule committee. Exactly what shape it takes, in the end, is, I don’t think anybody knows but I think this is kind of laying a foundation for maybe the next two or three years.
Certainly, for pilots and operators, there are fewer opportunities than lobbyists and lawyers to actually make an impact on the law, so this is the chance to get that information out on what you are actually doing and how are your operations potentially affected by the way that these rules are structured. You said there were five buckets what were the five buckets?
Okay, so there are five buckets, the first of which is standoff distances which is what is the amount of space between your UAS and the closest person or object. That could be considered horizontally, it can be vertically, or there can be a slant. Remember that back in the 333 Exemption days the offsets were all 500ft. Obviously, you”D want to get closer, but for instance, should you be able to get as close to a building window as you can get to a bridge? These are the kinds of questions they want to know. They want to know what is the impact on your business, what is the impact on cost, and what is the impact on operations? They are very interested in trying to get to an understanding of how this is going to affect your business.
The next one is altitude, airspeed, and other performance. Right now, Part 107 says 55 lbs, 100 mph, and 400 feet, and they observed in the document that some of these things can outperform any airplane we go and easily get to 6,000 feet in a minute and clearly capable of going faster than 100 mph. Should that be changed or should there be certain use cases for instance where it’s okay and certain use cases where it’s not? Also, are there cost and safety implications?
The next bucket is UTM or UAS traffic management operations, They want to know who should have access to the information that is out there? How should it be paid for? How would it be used?
Then there’s a really interesting discussion around payload restrictions because then this goes back to the bomb threats and everything else. Is it, for instance, okay for the same payload to travel above a crowd as you are using above a mine in a private property situation. Are there reasons that there could be an exception for carrying explosives. For example, I’m here in the mountains we use dynamite to bust off avalanches and people are using drones to do that, but they’re carrying that explosive payload. Maybe there’s somebody would want to say I want to be able to use Dynamite for this specific purpose.
Then the last thing is a whole bunch of critical system design requirements and it’s what we need to worry about that can result in the loss of control the aircraft and then increases the risk of people on the property on the ground as well as other people in the air. This to me plays right into the operations over people, but this is stuff like redundancy and certification. All aircraft that operate today are certified by the by the FAA and they don’t want to go down that same rabbit hole because it’s incredibly expensive and because there’s going to be a lot of drones. There’s a lot of discussion about manufacturers certified compliance and this is also in the over people thing. How will they establish it? What’s the testing going to look like? The burden is going to be on the manufacturer. If you want to sell the bird that can do this and that you’re going to have to prove that you mitigated all the safety concerns. If you think about the parallel when you’ve submitted a waiver, it’s the same thing. How have you mitigated these risks? Which ones have you identified? They’re looking at things like redundancy.
There’s also bound to be questions about the command-and-control link and how to make that more secure. There was just a big paper that came out of the White House about tidying up the NAS and security issues. One of the things they hit on, and not specific to drones, but aviation, in general, was the whole issue of communication security. I would expect that to come up on the radar especially as you start to look at BVLOS. I say to people a lot of times if your idea of the future drones is this 3 lbs white plastic bird from DJI, you’re kind of missing the point. It’s the same thing with the rulemaking. These guys are looking beyond to doing more extended operations with bigger equipment. Everybody wants to go beyond visual line of sight, so this is all foundational to how you get to that.