April 15, 2019 Submitted Electronically via regulations.gov The Honorable Elaine L. Chao Secretary, U.S. Department of Transportation 1200 New Jersey Avenue, SE Washington, D.C. 20590 The Honorable Daniel K. Elwell Acting Administrator, Federal Aviation Administration 800 Independence Avenue, SW Washington, D.C. 20591 Re:
Comments of the Commercial Drone Alliance on the Advance Notice of Proposed Rulemaking regarding Safe and Secure Operations of Small UAS (Docket No. FAA-2018-1086)
Dear Secretary Chao and Administrator Elwell: The safety, security, and efficiency benefits of commercial small unmanned aircraft systems (“UAS”) are great and expansive, but policymaking has lagged behind technology. The Commercial Drone Alliance (“CDA”)1 is committed to working with the federal government to integrate drones into our National Airspace System (“NAS”) safely and securely. Indeed, the CDA appreciates the common interest that the government, industry, and the general public all share in establishing reasonable limitations to protect against potential public safety and homeland security threats posed by UAS.
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The Commercial Drone Alliance is an independent non-profit organization led by key members of the commercial drone industry. The CDA 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 CDA works with policymakers at all levels of government to craft policies for industry growth and seeks to educate the public on the safe and responsible use of commercial drones to achieve economic benefits and humanitarian gains. A more detailed description of the CDA and its members is attached to these comments. 1
In that spirit, the CDA has supported the federal government’s desire to establish a comprehensive remote identification framework, as well as recent appropriately tailored counterdrone measures which have passed Congress, enabling certain federal agencies to mitigate drone threats. And we have hosted three events in the Domestic Drone Safety and Security Series to educate industry, the government, and other stakeholders on critical UAS security issues. The CDA now appreciates the opportunity to comment on the FAA’s Advance Notice of Proposed Rulemaking (“ANPRM”) regarding safe and secure operations of small UAS.2 The ANPRM seeks to compile information and input from stakeholders to help inform the efforts of the Federal Aviation Administration (“FAA”) “to assess options for reducing risks to public safety and national security associated with the further integration of UAS into the NAS, including options for additional rulemaking.”3 The CDA submits these comments to highlight important considerations, priorities, and principles that the FAA and other federal government stakeholders should take into account when evaluating potential additional rulemakings related to the ongoing integration of UAS into the NAS. In particular, the CDA believes: 1. The federal government should work expeditiously to further integrate UAS into the NAS safely and securely. We appreciate the continued work of the White House, Department of Transportation, FAA, and the national security agencies to do so. 2. Any additional UAS rulemaking must not unduly burden the nascent commercial UAS industry with unreasonable, onerous, unworkable or impractical regulations that lack any reasonable, demonstrable countervailing safety or security justification. a. The pending Notice of Proposed Rulemaking (“NPRM”) on operations over people is at odds with this fundamental principle in several critical respects.4 3. The FAA should expeditiously publish an NPRM related to the designation of fixed site facilities and move swiftly to finalize the corresponding regulations.
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84 Fed. Reg. 3732 (February 13, 2019) (“the ANPRM”). 84 Fed. Reg. at 3734. See CDA’s Comments on the NPRM regarding Operations over People, filed in Docket FAA-2018-1087. 2
4. A comprehensive remote UAS identification system is essential to establishing reasonable controls to protect against potential safety and security threats posed by UAS. Since remote ID rulemaking is a gating item for any rules enabling expanded operations, the FAA should move expeditiously to publish an NPRM on remote ID of UAS. 5. While we are generally supportive of expanding counter-UAS authorities to certain state and local law enforcement entities, we also believe that any counter-UAS legislation must not interfere with lawful commercial UAS operations or otherwise handicap the commercial UAS industry. I.
General Principles The CDA agrees with the FAA that in future rulemakings about UAS operations,
certification, and NAS integration, the U.S. government must balance innovation and the significant public benefits from expanded UAS operations with safety and security. The CDA generally supports performance-based standards and risk-based analyses for a UAS regulatory framework. Such a regulatory regime – unlike a prescriptive rules-based one – can provide the necessary flexibility for this rapidly evolving industry while addressing any safety and security concerns. However, it is critically important that any such UAS rulemaking not unduly burden the nascent commercial UAS industry with unreasonable, onerous, unworkable or impractical regulations that lack any reasonable, demonstrable countervailing safety or security justification. For example, a blanket prohibition against any unmanned aircraft (“UA”) operations over people in moving vehicles, as is proposed in the NPRM for operations over people (“OOP”), is a nonstarter for the commercial UAS industry; and the proposed singular focus on low kinetic energy impact thresholds, without accounting for, among other things, the likelihood or probability of an UA actually hitting a person or causing an injury, is a fundamental flaw which – if finalized – would restrict the OOP rule to only the lightest, smallest UAS with extremely limited commercial uses. Failure to achieve an appropriate balance would be very damaging to this industry, the American public, and the U.S. economy. It would essentially ensure that the commercial UAS industry in the United States is forced to operate, if at all, with extremely limited operational opportunities. Under such an unduly conservative framework, the American public would miss out on the safety, efficiency, and countless other public benefits that commercial UAS
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operations can provide. 5 In addition, it would also jeopardize the leadership position of the United States on UAS and airspace matters, as other countries move forward and enable expanded UAS operations and their safe integration into airspace. II. Specific Subjects In The ANPRM The ANPRM has specifically identified several subjects for potential future rulemakings including operational limitations such as stand-off distances, payload restrictions, altitude, airspeed and performance limitations, and critical UAS system design requirements.6 We do not believe additional operational limitations for authorized low-risk Part 107 UAS operations are necessary. For more complex operations, such as UAS operations beyond visual line of sight, additional operational limitations are appropriate. When drafting such rules, the FAA should take into account the operational history, performance capabilities, design, safety systems, and limitations of the UAS at issue, as well as the operational history and experience of the operator and remote pilot. For example, a reasonably sophisticated UAS with proven safety systems, a strong operational history, and made of non-rigid materials operated by an experienced remote pilot with a certain level of advanced training should not be subject to the same stand-off, payload, and other restrictions as the least sophisticated operator. A ‘one-size-fits-all’ stand-off distance, payload restriction, or other operational limitations are inappropriate for low-risk UAS operations, as the costs of such regulation would far exceed the benefits.
Moreover, such a benchmark would unnecessarily constrain sophisticated
commercial UAS operators and those who invest in enhanced training and safety equipment, and thereby impede, if not prevent, the realization of the many public benefits that such operations would otherwise provide to the American public and businesses.
It would also
disincentivize manufacturers and operators from undertaking enhanced training or developing safety systems and safety-enhancing design characteristics because no credit would be given for such safety-enhancing developments in terms of permitting additional expanded operations. In terms of Unmanned Traffic Management (UTM), the CDA believes UTM will be a key component of airspace structure, management, and coordination as more UAS operate in the 5 6
See CDA’s Comments on the NPRM regarding Operations over People, filed in Docket FAA-2018-1087. 84 Fed. Reg. at 3734-3736. 4
NAS. UTM will enable certain expanded commercial UAS operations and the scalability of such operations while also enhancing safety. Consequently, enabling industry-owned, cost-effective, and efficient UTM which prioritizes safety and balances privacy considerations will be a win-win for airspace users and the public. UTM efforts will be more successful if there are more UAS participating in the UTM systems. III. Additional Subjects Rulemaking for Designation of Fixed Site Facilities. Section 2209 of the FAA Extension, Safety and Security Act of 2016 (as amended by Section 369 of the FAA Reauthorization Act of 2018) requires the FAA to establish a procedure by which operators or proprietors of fixed site facilities can petition for a designation to prohibit or restrict the operation of UA in close proximity to such facilities. The corresponding NPRM was to have been published by March 31, 2019, with a final rule being promulgated within 12 months thereafter.7 This is a very important rule, which will benefit both the operators/proprietors of designated fixed site facilities and UAS operators. It will also greatly enhance UAS security efforts and further assist law enforcement and proprietors of fixed site facilities in identifying friend versus foe. Yet the deadline for publishing the NPRM has come and gone without any NPRM. Accordingly, the CDA urges the FAA to publish an NPRM related to the designation of fixed site facilities expeditiously.
The statute requires nothing less, and further delay with
respect to this rulemaking will only serve to delay the implementation of, and realization of benefits from, such a rule. Rulemaking or Policy for Remote ID.
The CDA believes that establishing a
comprehensive remote identification system is essential to establishing reasonable controls to protect against potential safety and security threats posed by UAS. Universal UAS remote identification for UA weighing 250 grams or more is necessary to ensure that federal, state and local agencies have a means of distinguishing between cooperative (authorized) UAS and noncooperative UAS. The national security and law enforcement agencies have made clear that appropriate regulations covering remote ID must be finalized before a significant expansion of UAS operations can be undertaken in the NAS. The CDA likewise understands the importance of this issue for expanded UAS operations, and, to that end, we have been very active
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Section 369 of the FAA Reauthorization Act of 2018. 5
advocating for a remote ID rule – from participating on the UAS ID and Tracking Aviation Rulemaking Committee (ARC) in 2017, to dissenting from the final ARC Report Section 6.1, to co-hosting the Domestic Drone Safety and Security Series (the most recent meeting of which occurred earlier this month). Accordingly, since such a rulemaking or policy is a gating item for innovation and expanded UAS operations, the CDA urges the FAA to move expeditiously to publish an NPRM for remote ID of UAS. In terms of the substance of any such rule, the CDA strongly believes that remote identification requirements should apply to all UA weighing 250 grams or more.
Such a
threshold has many compelling attributes. It is simple, familiar, adaptable, and enforceable, each of which promotes compliance, which in turn promotes the safety and efficiency of the NAS. It is also comprehensive, properly encompassing the majority of UA except for very small and unsophisticated UA, thereby supporting robust UTM systems.
Moreover, it is an
applicability threshold which is future-proofed to accommodate technological developments without the need to constantly revisit the threshold levels. In sum, a basic weight threshold of 250 grams or more is the easiest and most logical way to ensure that UAS remote ID requirements bear some reasonable relationship to the aviation, public safety, and security risks presented, and its simplicity will help promote compliance. The lack of a low weight-based threshold for any UAS remote ID requirement would greatly undermine the value, benefits, and utility of UAS remote ID, not to mention jeopardize the safety of the airspace and comprehensiveness of any future UTM. Counter-UAS Initiatives. Counter-UAS systems can help to enhance the safety and security of UAS operations, and avoid significant system disruptions and inconvenience. As noted above, the CDA has supported recent appropriately tailored measures enabling law enforcement to mitigate drone threats, including counter-UAS authority granted to the Department of Defense and the Department of Energy in the 2017 and 2018 National Defense Authorization Acts, and, more recently, to the Department of Justice and the Department of Homeland Security in the 2018 FAA Reauthorization Act. While the CDA is generally supportive of expanding counter-UAS authorities to certain state and local law enforcement entities, the CDA also believes that any counter-UAS legislation, regulation or policy must not interfere with lawful commercial UAS operations or otherwise handicap the commercial UAS industry.
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To that end, in addition to the Section 2209 and remote ID items discussed above, the CDA proposes the following guiding principles around any expansion of counter-UAS authorities to state and local authorities or additional Federal agencies. Avoid Interference With Authorized UAS Operations: Any additional counter-UAS legislation, regulation or policy must include procedural safeguards to ensure that any mitigating actions are both justified and proportionate to the perceived threat. It should require that the relevant agencies exercise due care to avoid incidental damage to innocent third-party manned or unmanned aircraft, communications, equipment, facilities or services, and should provide a reasonable evidentiary standard to determine if a UAS poses a threat. Moreover, whenever possible, relevant agencies should be required to make reasonable efforts to provide notice to a UAS operator before taking action, so that authorized and compliant UAS operators have an opportunity to discontinue potentially offending or non-compliant behavior. Tailor Counter-UAS Authorities Narrowly: Any additional counter-UAS legislation, regulation or policy must be appropriately tailored, enabling law enforcement to mitigate or confront drone threats but avoiding unintended consequences that may restrict innovation, adversely affect authorized commercial drone flights, threaten privacy, civil rights, or civil liberties, or otherwise cause harm. Moreover, the category of situations in which counter-UAS technology may be used must be limited to venues where the potential threat to people and property is high, such as airports, mass gathering events, and private fixed site facilities including those described in Section 2209. Require Mandatory Training for Personnel Engaged in Counter-UAS Activities: To help ensure that the deployment of counter-UAS technologies does not adversely affect authorized drone flights, threaten privacy, civil rights, or civil liberties, or otherwise cause harm, any new counter-UAS legislation, regulation or policy must include substantial training and qualification requirements on the safe and authorized deployment of counter-UAS technology for all agency personnel engaged in counter-UAS activities. Establish Clear Criteria for Evaluating Counter-UAS Systems:
Any additional
counter-UAS legislation, regulation or policy should establish a clear conceptual framework for evaluating the safety and efficacy of counter-UAS systems and considering, among other things, the system’s ability to operate safely and selectively, and its compatibility with the safe integration of lawful commercial UAS into the NAS. 7
Incorporate Data and Privacy Protections: While it is critical that law enforcement has access to data when necessary, it is also critical that any counter-UAS authority remains appropriately tailored and, in line with general privacy and legal principles and constitutional protections, available to officials only on an as-needed basis. Commercial UAS store a large variety of confidential business information, which may include trade secrets. Additionally, UAS are commonly operated by multi-purpose devices such as smart phones and laptops, which often store data unrelated to the operation of the UAS. Any additional counter-UAS legislation, regulation or policy must include appropriate safeguards to protect and prohibit access to such data. Work with Industry to Develop a Known Operator System: Known operator or user programs such as the Transportation Security Administration’s Pre-Check and Global Entry programs have supported the government’s ability to identify legitimate threats while promoting public trust and improving efficiency. A similar “known operator” system would enable the government to maintain a database of authorized commercial UAS operations, which would help the relevant agencies and public safety officials with threat discrimination. Require Transparency for Agency Counter-UAS Policies: To help prevent misuse or overuse of counter-UAS authority delegated to state and local entities, counter-UAS legislation and regulations should include requirements for agencies to develop written policies on when, where, and how counter-UAS technology may be deployed. To ensure that all stakeholders have the ability to provide helpful input, any such legislation or regulations should require state and local agencies to invite public comments and work with industry in their development of agency guidance and policies. The CDA urges the FAA and other federal government stakeholders to be informed by these principles as additional counter-UAS legislation, regulations or policy are being developed. IV. Conclusion The CDA appreciates the opportunity to submit these comments on the ANPRM. We look forward to working with the Administration, the FAA, other federal government stakeholders to craft legislation, regulations, and policies for the safe and secure expansion of the commercial UAS industry and the realization of the enormous public benefits of such operations. We thank you for your consideration of the CDA’s comments. 8
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. Commercial Drone Alliance Members AiRXOS, a GE company American Fuel and Petrochemical Manufacturers (AFPM) American Robotics ANRA Technologies Apple AT&T
DroneUp Ford Motor Company National Association of Tower Erectors (NATE) Nightingale Security ParaZero Security Industry Association (SIA)
Cape Center for Robot Assisted Search and Rescue (CRASAR) Choctaw Nation of Oklahoma CNN Crown Castle Digital Global Systems DII
SkySafe SRC/Gryphon Sensors Talon Aerolytics uAvionix Uber WarnerMedia WhiteFox Defense Technologies Wing Aviation
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