The Commercial Drone Alliance appreciates this opportunity to meet and discuss the FAA's proposed rulemaking on Operations of Small Unmanned Aircraft Over People (“OOP rule”), which will address the performance-based standards and means-of-compliance for operation of small unmanned aircraft systems (UAS) over people not directly participating in the operation, under a covered structure or inside a stationary vehicle (“flights over people”). This rule would provide important relief from certain operational restrictions implemented in Part 107, the FAA’s final rule governing Operation and Certification of Small UAS.
The Commercial Drone Alliance is an industry-led, 501(c)6 non-profit association representing commercial drone end users and the broader commercial drone ecosystem. Our goals are to help reduce barriers to enable the emergence of drone technology, and to work with the federal government and other stakeholders to facilitate UAS integration into the National Airspace in a way that is safe and secure.
UAS Industry: Significant Potential For U.S. Economy
We are in the early days of deploying UAS commercially on a broad scale. If we can overcome regulatory barriers, the potential held by UAS is unlimited. Estimates vary, but by all measures the economic impact is enormous: a recent PricewaterhouseCoopers report estimated the global market value of UAS-powered solutions at more than $127 billion by 2020. The FAA recently estimated that by the new decade, 11 million commercial drones will have been sold in the United States alone.
To get there, however, our nation’s regulatory framework must keep pace. Part 107 was an important step forward, and the UAS Integration Pilot Program is an important effort as well. But to promote American competitiveness and enable innovation to succeed, we must continue to move UAS rulemaking forward rapidly.
Flights Over People: Essential to Countless UAS Applications
To realize the safety and efficiency benefits of UAS, companies need to be able to fly in urban and suburban environments, where people are. To respond to disasters, they may need to fly near cities. To provide delivery services, they may need to fly over neighborhoods. To inspect electrical infrastructure and its connections, they may need to fly over workers and these same neighborhoods. Countless UAS use cases, with their associated safety and efficiency benefits, rely on the ability to fly over people.
To account for this reality, the FAA must move beyond the current confined operating envelope. Regulations that unduly restrict will have the counter-effect of encouraging individuals with a need to flout the rules; this results in various degrees of implementation and safety suffers as a result. The FAA’s OOP rulemaking must enable real-world operations while protecting safety.
Flights Over People: A Proper Risk-Based Analysis
As the FAA crafts the OOP rule, the agency must consider risk factors broadly and appropriately. For example, in addition to considering the kinetic energy of a small UAS hitting a person, regulators must consider the risks inherent in the dangerous tasks that UAS operations would replace. Thus, when considering the risks of flying a UAS over a film set, the agency must also consider the much larger risk of flying a helicopter over people for the same purposes. In essence, when denying or delaying reasonably safe operations of UAS, the agency inadvertently promotes the oftentimes more dangerous and arguably less efficient prior alternative (in effect, “saying ‘no’ to UAS is saying ‘yes’ to the alternative”). When considering the risks of a construction company flying lightweight UAS over an active worksite to inspect a structure or an infrastructure company inspecting its towers, the agency must balance that risk against the hazards faced by the worker who would otherwise have to climb a tall ladder, or scale the roof of a building to conduct the same visual inspection. In other words, the OOP rule should recognize that some UAS operations over people will increase safety both inside and outside of the aviation system. These comparative safety benefits should be considered when evaluating the overall risk for operations over people. If risk can be appropriately compared, and the use of UAS decreases overall risk, then the UAS application should be readily approved.
Moreover, in considering the risk to people on the ground, the FAA must incentivize safety in its rulemakings. This means the agency must factor more than just kinetic energy into its analysis. The framework proposed by the Micro-Aviation Rulemaking Committee (Micro ARC) for flights over people, which the FAA had initially used as its starting point for the OOP rule, focuses solely on kinetic energy. Focusing on kinetic energy alone as an indicator of overall risk is the wrong approach and will lead to an absurd rule that does not reflect real-world risks, and disincentives advancements in UAS technology that would otherwise increase safety.
The FAA must factor in operational and technical mitigations in addition to kinetic energy. Adding safety equipment and technology to a UAS – for example, reducing kinetic energy transfer, propeller guards, parachutes, or padding – inevitably adds some weight (and therefore the kinetic energy potential), but they also substantially minimize the prospect of injury. Furthermore, improving reliability and system integrity can dramatically decrease the likelihood of encountering such an impact. Under the Micro-ARC analysis, any additional weight is penalized, even if it results in a safer vehicle that would otherwise have a reduced likelihood of occurrence or lessened the impact. As the industry evolves, we have an excellent opportunity to incentivize innovation, whether it is through improving system reliability, providing parachutes, propeller guards, an audible warning system, or some other new technology that will make UAS safer. An OOP rule that fails to provide these incentives will be considered another half measure and will represent a lost opportunity for innovation and global leadership in the UAS space.
Moreover, to the extent that the proposed OOP rule does consider kinetic energy as an indicator of risk, kinetic energy-based injury calculations must reflect how UAS impacts or collisions happen in the real world. The FAA should consider Dr. David Arterburn’s research at University of Alabama Huntsville, which, as stated in the Micro ARC Report:
“...UAS were found by ASSURE to deflect and tumble on impact, resulting in only an average 38% kinetic energy transfer during an impact, and therefore a significantly lower expected severity of injury compared to shrapnel impacts that were the basis of those prior estimates of harm, taken from studies of explosives and ordinance effectiveness.”
These findings speak directly to the inherent flaws in the simple kinetic energy approach that have been a large part of the discussion to date, and illustrate that reasonable alternatives need to be a part of the conversation.
Flights Over People: Incorporating Consent
When the FAA began authorizing commercial UAS flights under the “Section 333” framework, the FAA correctly recognized that rules for flying over people with their consent ought to be treated differently than flights over members of the public. Under the FAA’s Section 333 exemption framework, the FAA authorized nearly 500 companies to operate over people in a “closed set” filming context, where “participants” had consented to the risk of UAS over-flight. Participants were defined as people associated with the filming production that acknowledged and accepted the risks associated with the UAS operations. See FAA Order 8900.1, Volume 3, Chapter 8, Section 1, Issue a Certificate of Waiver for Motion Picture and Television Filming at ¶ 3-213(B)(1).
The first Section 333 Exemption ever issued by the FAA authorized flights directly over consenting people on a film set. See Condition and Limitation No. 15 in the FAA’s Section 333 Exemption issued to Astraeus Aerial (Docket No. FAA-2014-0352) (Sept. 25, 2014). In this Exemption issued by the FAA, and in every other Exemption issued thereafter, the FAA did not look primarily to kinetic energy as an indicator of overall risk posed by small UAS to people on the ground.
Similarly, in the first Part 107 waiver authorizing operations over people for closed set filming issued to CNN (Waiver No. 107W-2017-03321), the FAA approved the operation of any small UAS over people directly associated with the operation (so-called “Persons Authorized”) who receive a safety briefing including the potential risks and acknowledge and provide consent to those risks.
Key to this issue is the FAA’s definition of “directly participating” under Part 107. Under the current § 107.39, a UA may be operated over a person who is directly participating in the operation of the UAS. Under Part 107, however, the category of individuals deemed to be “directly participating” is narrower than the category of persons which historically qualified as participating persons in the context of issuing 333 Exemptions for closed-set filming, and it is narrower than the category of people deemed to be “Persons Authorized” in more recent Part 107 waivers authorizing operations over people in the context of closed set filming. In the Preamble to Part 107, the FAA clarified that the term “directly participating” only extends to UAS crewmembers operating the UAS:
The term ‘‘directly participating’’ refers to specific personnel that the remote pilot in command has deemed to be involved with the flight operation of the small unmanned aircraft. These include the remote pilot in command, the person manipulating the controls of the small UAS (if other than the remote pilot in command), and the visual observer. These personnel also include any person who is necessary for the safety of the small UAS flight operation. For example, if a small UAS operation employs a person whose duties are to maintain a perimeter to ensure that other people do not enter the area of operation, that person would be considered a direct participant in the flight operation of the small UAS. Anyone else would not be considered a direct participant in the small UAS operation. 81 FR 42128 (June 28, 2016).
Under this narrow definition of a “participant,” personnel engaged in related activities that the UAS is being used to assist are nonparticipants, just as if they were any other member of the general public. For example, workers on a job site where a UAS is being flown overhead to perform some type of inspection are considered nonparticipants, and the UA cannot be operated over them. In many scenarios it is difficult or simply impossible to control the movement of all people on the ground.
The FAA’s OOP rule should therefore broaden the definition of a “direct participant” to not limit the operations to high risk or test-like applications and include personnel engaged in related activities that the UAS is being used to assist. Similar to the approach taken by the FAA with the closed-set filming Exemptions and in more recent Part 107 waivers authorizing operations over people in a controlled-access location like a film set, the OOP rule must provide flexibility to permit flights over people that are aware of, and have consented to, the UAS flight. Under the Section 333 framework and in recent Part 107 waivers, companies took extra operational steps for safety – including preparing a special manual with company operating procedures to ensure safety -- and were then allowed to fly any authorized vehicle under 55 pounds directly over participating people. The FAA’s OOP rule must allow for the same operational flexibility in similar contexts, using the previous approvals as a guide.
About The Commercial Drone Alliance
The Commercial Drone Alliance is an industry-led, 501(c)(6) non-profit association that is dedicated to supporting commercial drone industry market growth. The Alliance brings together commercial drone end-users, manufacturers, service providers, and vertical markets including oil and gas, precision agriculture, construction, security, communications technology, infrastructure, newsgathering, filmmaking, and more.
The Alliance aims to educate and collaborate with lawmakers at all levels of government on the benefits of commercial drones, technologies that enable safe flight, and continued growth of the commercial drone industry.