FAA’s Long-Delayed Drone Certification and Operations Rule Disappoints

This morning, the Federal Aviation Administration released a copy of its final rule on Operation and Certification of Small Unmanned Aircraft Systems, which is to be published in the Federal Register shortly. Here are the FAA’s press release, Part 107 summary, and fact sheet.

In April 2015, CEI submitted comments on the proposed rule urging the FAA to reject excessively precautionary approaches that are likely to harm to nascent small unmanned aircraft system (UAS) industry, hobbyists, and students. Unfortunately, but as expected, the FAA largely kept its restrictive framework in place.

The rule contains restrictions, which will be found in a new Part 107 of Title 14 of the Code of Federal Regulations, which will apply to small UAS and their operators, including:

• No flying beyond visual line of sight from the operator.
• No flying after dark.
• No use of first-person camera to satisfy 14 C.F.R. § 91.113(b) “see-and-avoid” requirements.
• No use of “sense-and-avoid” automated technology to satisfy “see-and-avoid” requirements.
• No flying above 400 feet above ground level generally; although if flying above 400 feet AGL, the small UAS must remain within 400 feet of a structure.
• No flying if visibility from the operator is less than 3 miles.
• No flying multiple small UAS simultaneously (one-to-one operator/sUAS ratio).
• No flying unless the operator obtains a remote pilot airman certificate with a small UAS rating or is under direct supervision by someone who does.
• To obtain a remote pilot certificate, one must either already be a Part 61 non-student pilot or pass an aeronautical knowledge exam at an FAA-approved testing center.

In CEI’s April 2015 comments to the FAA, we expressed concerns over the legality of the proposed rule, unwarranted blanket bans on beyond-visual-line-of-sight, camera-based or sense-and-avoid “see-and-avoid” alternative compliance, and the importance of adopting an equivalent level of safety mechanism to allow alternative methods of compliance.

We do appreciate that the FAA is now attempting to comply with Congress’s FAA Modernization and Reform Act of 2012 UAS airspace integration mandates—albeit nine months after the statutory deadline—but their unwillingness to meaningfully engage with the non-paranoid calls into question their standing as an “expert agency.” Expert agencies are supposed to carry out impartial, fact-based implementations of Congress’s laws. They are not supposed to play into baseless moral panics.

As it stands, these rules effectively outlaw advanced UAS business models, including parcel delivery, large-scale infrastructure inspection, automated surveying, and others that have yet to be proposed. The FAA attempts to offer an olive branch by repeatedly noting that individuals and companies can apply for a certificate of waiver or authorization (COA) to attempt to gain approval for some of the outlawed operations. Of course, the COA process is extremely cumbersome and cannot support any of these more sophisticated business applications.

Fortunately, Congress can attempt to remedy the FAA’s Luddite position on small UAS by requiring the agency to develop some of the processes pro-innovation commenters recommended in 2015. But Congress should also plan to engage in aggressive oversight of the FAA, as the agency has now made clear it will need its hand held through every step of the process in order to preserve the rapid innovation that has characterized this emerging market.