Federal Aviation Administration Implements New Rules Regarding Drone Use, Effectively Expanding the Ability to Operate Drones Without the Need for a Certificate of Authorization

Flying somewhat under the radar (bad pun not intended), the Federal Aviation Administration (“FAA”) approved new rules that went into effect at the end of December 2020 allowing drone operators to fly a broader range of missions without the need to obtain a certificate of authorization (“COA”).  These new regulations will have the force and effect of allowing school and community college districts to expand their existing drone operations.

The FAA’s new rules have expanded certain types of drone operations under Part 107 of Title 14 of the Code of Federal Regulations.  “Part 107,” as the rules are commonly referred to, was first put into place in June 2016 and significantly expanded the type of operations drone users could undertake without obtaining a COA, a complicated and sometimes costly process.  As a result, many school and community college districts began to use drones as part of their general operations (mainly security and aerial photography), as well as in student curriculum/course offerings.

As originally adopted in 2016, Part 107 prohibited certain types of flight operations without receiving special exemptions from the FAA.  The new rules implemented by the FAA expand permitted operations under Part 107 without the need to obtain these special exemptions.  The new rules include the following:

The “Remote Identification Rule”

Remote identification rules govern requirements for drones regarding their capability to provide identification, location, and performance information during flight.  There are three ways to comply with the remote identification rules.  The first and second methods of remote identification include broadcasting identifying information to all those on the ground, while the third method provides alternative allowances for drones operating without remote identification.

The first method is to operate a drone that broadcasts identification, location, and performance information of the drone and control station.  The second method for compliance is to operate a drone with a remote identification broadcast module attached for the duration of its flight.  The broadcast module broadcasts identification, location, and take-off information, and may be a separate device that is either attached to the drone or a feature built into the drone itself.  The third method of compliance allows for the operation of drones without any remote identification equipment at all, where the drone is operated in specific FAA-recognized identification areas. Unless operating under an exception to the remote identification operating requirements, a person operating an unmanned aircraft without remote identification must always operate within visual line of sight and within an FAA-recognized identification area.  Educational institutions are amongst those “persons” eligible to request establishment of FAA-recognized identification areas.

Rules for Operations Over Assemblies of People

One of the main limitations to drone operations that previously existed under Part 107 was a strict prohibition against flights over people.  Under the new rules, this limitation has been drastically eroded.

The FAA additionally implemented rules governing the use of drones over open-air assemblies of people, such as athletic and other outdoors school events.  These new permitted uses are divided into four different categories, based on the specifications of the drone in operation.

Category 1 operations over people are permitted for drones that both weigh 0.55 pounds or less at the time it takes off and do not contain any exposed rotating parts that could lacerate human skin on impact with a human being.  Pilots alone are responsible for determining whether their drone qualifies under Category 1.

Category 2 provides performance-based eligibility and operating requirements when conducting operations over people using drones that weigh more than 0.55 pounds but do not have an airworthiness certificate.  To be eligible for Category 2 operations, drones cannot be capable of causing injury to a human being that is equivalent to or greater than the severity of injury caused by a transfer of 11 foot-pounds (ft-lbs) of kinetic energy upon impact from a rigid object, cannot contain any exposed rotating parts that could lacerate human skin on impact with a person, and cannot contain any safety defects.

Category 3 operations are prohibited over open-air assemblies of human beings and are only permitted if the operation is within or over closed- or restricted-access sites and everyone within that site has been notified that a small unmanned aircraft may fly over them; or the small unmanned aircraft does not maintain sustained flight over a person not directly participating in the operation or located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.  Under Category 3 operations, the drone must not be capable of causing an injury that is more severe than an injury caused by a transfer of 25 ft-lbs of kinetic energy from a rigid object, cannot contain any exposed rotating parts that could lacerate human skin on impact with a person, and cannot contain any safety defects.  Drone operators must also provide notice to persons of a small unmanned aircraft flying above to comply with Category 3 operations.

For compliance with the requirements of Categories 2 and 3, applicants are required to submit a declaration of compliance in which the applicant declares it has used an FAA-accepted means of compliance to demonstrate that the drone satisfies the injury severity limit and exposed rotating parts prohibitions identified therein. The person or entity that submits a declaration of compliance or a means of compliance shall additionally be required to maintain certain records.

Category 4 permits small unmanned aircraft issued an airworthiness certificate to operate over people so long as the operating limitations are specified in an approved Flight Manual or as otherwise specified.

Nighttime Operations

The FAA implemented rules regarding the nighttime operation of drones.  To operate at night, the drone pilot must have completed a current initial knowledge test or recurrent training, as applicable, to ensure familiarity with the risks and appropriate mitigations for nighttime operations.  Additionally, drones must have lighted anti-collision lighting that has a flash rate sufficient to avoid a collision and that is visible for at least three (3) miles.

Overall, the new allowances provided by the FAA address some of the more common complaints that drone operators raised for operators under Part 107, particularly the use of drones over groups or gatherings of persons.  These new rules will likely have the effect of expanding the use of drones generally, including by school and community college districts in their general operations and academic programs.  If you have been considering such a program, now may be the time to pitch to your agency’s decision makers that operations have become that much easier to conduct without the necessity of obtaining costly and/or time consuming COAs.

The authors give special thanks to Nathaniel Rosilez for his assistance with legal research on this post.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2021 Atkinson, Andelson, Loya, Ruud & Romo

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