On April 21, 2021, the Federal Aviation Administration (“FAA”) took the next step toward what it calls the “further integration of Unmanned Aircraft (UA) in the National Airspace System.” However, that description somewhat understates the impact of FAA’s action. By amending 14 C.F.R. Part 107 to allow previously prohibited operation over unrelated populations and moving vehicles, both during the day and at night, FAA may have opened the flood gates to UA without adequate consideration of their impacts on underlying populations.
Specifically, FAA has divided UA into categories based upon size, construction and regulatory requirements.
Category 1 applies to UA .55 lbs. or less that also contain no rotating parts that could cause lacerations, and must be able to use a system for communicating with FAA called “Remote ID.” Categories 2 and 3 allow UA weighing more than .55 lbs. to fly over people if they meet certain eligibility criteria, although they may not fly over open-air assemblies or people in general unless those populations are aware in advance, or are part of the UA operation itself. Finally, in order to qualify for Category 4, the UA must have a relevant operating certificate under 14 C.F.R. Part 21 (see Final Rule, Executive Summary, 86 Fed.Reg. 4314, 4316).
FAA received more than 900 comments in response to publication of a Notice of Proposed Rulemaking on February 13, 2019. 86 Fed.Reg. 4319. Most involved safety concerns, including: (1) lack of enforceability of the limiting conditions imposed by the Rule; (2) lack of safety data supporting the Rule; (3) lack of redundancy in safety infrastructure; and (4) unskilled remote pilots.
As anticipated, FAA dismissed those concerns based on the expectation that the “benefits” of the new Rule would exceed its costs, 86 Fed.Reg. 4318, and acknowledged only some costs related to the training of remote pilots. Benefits, on the other hand, are purported to include: (1) facilitation of innovation and growth across a variety of sectors of the economy such as construction, infrastructure and insurance. Moreover, FAA foresees a potential increase in operations because operators of UA, with some exceptions for Category 3, would not need to avoid flying over people or clear an area before operating. 86 Fed.Reg. 4318. Although FAA acknowledges some safety risk resulting from the increase in operations over people, it relies on the application of the proposed restrictions in every category to mitigate that risk. 86 Fed.Reg. 4318.
Safety, however, while critically important, is not the only potential issue raised by the Final Rule. What is notably missing from FAA’s analysis is any mention of privacy or noise concerns. Obviously, the increased opportunity to fly over people implicates both, as the 900 public comments confirm.
Finally, FAA argues that, although risk may increase with increased operations and dispersion of aircraft, based on its issuance of 175 waivers from prior restrictions, none resulted in injuries to persons or property worth more than $500,000 on the ground. 86 Fed.Reg. 4321. While the conclusion is apparently correct as a mathematical extrapolation, it fails to acknowledge the increased chances of an accident resulting from vastly increased numbers of UA occupying the National Airspace System, or the potential of far greater damage from each such incident.
Of course, only the passage of time will reveal the true impact of these rule changes. The best the public can do is stay tuned for the ultimate result.