FAA Sends “Flights Over People” NPRM to OIRA

Backyards, open fields, and waterways.  These are common places where you might see an unmanned aircraft system (UAS) in flight.  Of course, it’s no accident that such spaces are where many flights take place, as they are relatively risk-free.   Operators can fly their UAS with little-to-no concern about those on the ground.  But UAS flights over people pose certain safety risks.  To date, the Federal Aviation Administration (FAA) has been hesitant to permit UAS operators to fly over people—indeed, the FAA’s Small Aircraft Rule (Part 107) currently prohibits commercial operation of small UAS over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle.  But the regulatory landscape for UAS flights over people may soon change. 

The FAA recently sent the “Flights over People” Notice of Proposed Rulemaking (NPRM) to the White House Office of Information and Regulatory Affairs (OIRA) for review.  The NPRM addresses performance-based standards and means-of-compliance for operating small UAS directly over people.  Although the NPRM is based on the recommendations the Aviation Rulemaking Committee (ARC) released last April, the FAA likely will not implement those recommendations to the letter. 

The ARC’s proposals divide small UAS into four categories based on the weight of the UAS, the risk of serious injury if the UAS crashed into a person, and whether the UAS is intended to fly over crowds.  Each category imposes different standards and restrictions on UAS operations. 

• Category 1: These small UAS may operate over people if the weight (including accessories/payload, e.g., cameras) is 250 grams or less.  These UAS present low risk of injury and thus no performance standards or operational restrictions are necessary. 
• Category 2: Small UAS in this category weigh more than 250 grams, but still present a 1% or less chance of serious injury (AIS level 3 or greater) to a person upon impact.  These UAS may operate over people if the manufacturer certifies to the FAA that the UAS does not, in the most probable failure modes, exceed the typical or likely impact energy threshold.  Additionally, the operator must comply with the manufacturer’s operator manual for the small UAS and the small UAS must be operated at a minimum distance of 20 feet above people’s heads, or 10 feet laterally away from, people.
• Category 3: Small UAS in this category weigh more than 250 grams and cause less than a 30% chance of serious injury to a person upon impact.  These small UAS may operate over people if the manufacturer certifies to the FAA that the UAS does not, in the most probable failure modes, exceed the typical or likely impact energy threshold. These UAS may never fly over crowds or dense concentrations of people.  They may only operate over people if: (1) the operation is conducted over a closed- or restricted-access work site with the permission of the site’s owner or operator; or (2) overflight of people is limited to those who are transient or incidental to the operation.  Operators also must comply with the operator manual and maintain specified minimum set-off distances from people.
• Category 4: Small UAS in this category weigh more than 250 grams, cause less than a 30% chance of serious injury to a person upon impact, and involve sustained flight over crowds and/or dense gatherings of people.  Operators must develop a risk-mitigation plan specific to the operation due to the UAS’ prolonged flight over large groups.  This plan must be adopted in accordance with industry-consensus standards for conducting risk mitigation.  ARC further recommended that operators engage with third parties to address concerns about flying the UAS.  Operators also must comply with the operator manual and maintain specified minimum set-off distances from people.

The ARC recommended that industry develop consensus performance standards for Category 2, 3, and 4 operations over people.  Once developed, manufactures may self-certify that they comply with these standards.  Category 1 manufacturers must either include a label on the product’s retail package certifying the weight of the UAS or submit a declaration to the FAA.  Manufacturers of category 2, 3, and 4 small UAS must declare that the small UAS meets applicable standards, submit that declaration to the FAA, and label the product retail packaging in accordance to industry standards. 

The ARC also recommended that the FAA consider less burdensome requirements for operators of Category 1 UAS, specifically, changing airman certification requirements to allow online testing to satisfy knowledge requirements, and eliminating in-person visits and background checks.

OIRA will review the NPRM before the FAA releases it for comment.  Notably, OIRA takes meetings on items it reviews.  Therefore, those seeking to shape the final NPRM should take the opportunity to meet with OIRA.  Wiley Rein can assist with such meetings.