CDA Comment to OOP NPRM

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 Notice of Proposed Rulemaking regarding the Operation of Small Unmanned Aircraft Systems over People (Docket No. FAA-2018-1087)

Dear Secretary Chao and Administrator Elwell: The Commercial Drone Alliance (“CDA”)1 appreciates the opportunity to comment on the Notice of Proposed Rulemaking regarding the operation of small unmanned aircraft systems (“UAS”) over people (“the NPRM”). 2

The CDA submits these comments to highlight our

significant concerns with the proposed regulations, which – if left unaddressed – will prevent the commercial UAS industry from growing and providing the countless public benefits of expanded UAS operations.

1

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 CDA and its members is attached to these comments.

2 84 Fed. Reg. 3856 (February 13, 2019).

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Such a result would be at odds with the Trump Administration’s goal of promoting the continued development, integration, and beneficial use of UAS. Indeed, just last month, U.S. Transportation Secretary Elaine Chao emphasized the tremendous potential of UAS and the need for regulatory mechanisms that enable, rather than stymie, new technologies that support safety and efficiency. Secretary Chao stated: “Unmanned aerial vehicles – a.k.a. “drones” – are proving immensely valuable in public and private sector applications and have tremendous potential to do much more. . . . Old government ways of doing things too often have stymied innovations that could improve transportation safety, mobility and accessibility.

The department is coming to grips with this and moving ahead to provide a clear path for new technologies to be vetted ….”3 In this spirit, since 2017, the Administration’s laudable UAS Integration Pilot Program (“IPP”) has brought state, local, and tribal governments together with private sector entities, including certain CDA members, to accelerate safe UAS integration, including flights over people, beyond the remote pilot’s visual line of sight, and for package delivery.4 Congress has also repeatedly emphasized the tremendous potential of expanded UAS operations, including operations over people, to enhance commercial and academic use, spur economic growth, and improve emergency response efforts.5 Unfortunately, absent the modifications discussed below with respect to the prohibition on flights over moving vehicles, the singular focus on kinetic energy impact standards, the failure to recognize sophisticated operators for more expanded operations, and the narrow definition of “direct participant”, the regulations for operations over people proposed in the NPRM will do precisely the opposite.

3

Chao, Elaine L. “Paving the Way for Innovation in Transportation.” Austin American-Statesman March 12, 2019, available at https://www.statesman.com/opinion/20190312/chao-paving-way-for-innovation-in-transportation.

4 https://www.faa.gov/uas/programs_partnerships/integration_pilot_program/ 5 See, e.g., FAA Reauthorization Act of 2018, Section 370: “It is the sense of Congress that— (1) beyond visual line of sight operations, nighttime operations, and operations over people of unmanned aircraft systems have tremendous potential— (A) to enhance both commercial and academic use; (B) to spur economic growth and development through innovative applications of this emerging technology; and (C) to improve emergency response efforts as it relates to assessing damage to critical infrastructure such as roads, bridges, and utilities, including water and power, ultimately speeding response time.”

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1. Summary Overview Night Operations.

The CDA agrees with the Federal Aviation Administration (“FAA”)

that the U.S. government must balance innovation with safety and security in any rulemaking for expanded UAS operations. The CDA believes that the NPRM’s proposed regulation expanding night UAS operations strikes an appropriate balance in that regard and would be a welcome step forward for the commercial UAS industry. The CDA therefore urges the FAA to finalize proposed Section 107.29, “Operation at Night”.

Operations Over People.

Many of the most critical UAS use cases require flights in

urban or suburban areas, i.e., where people are. The proposed regulations for operations over people (“OOP”) are far too restrictive and impose undue costs without any corresponding demonstrable safety or security benefit. If these proposed OOP regulations are finalized “as is”, there will be no meaningful or scalable expansion of commercial UAS operations, which would be limited to the smallest, lightest unmanned aircraft (“UA”) and narrowly-drawn operational areas.

Most of the significant public benefits resulting from such operations would remain

unrealized, and the expansion of the commercial UAS industry would be greatly curtailed.

In sum, the CDA’s principal concerns with the NPRM are: •

The prohibition on flights over people in moving vehicles must be eliminated because (i) it would significantly curtail the industry’s expansion in the United States, thereby preventing the implementation of many of the public benefit use cases without any demonstrable safety benefits, and (ii) it would constitute a de facto prohibition on UA flights over roads, which are ubiquitous in most of the areas where commercial UAS need to operate.

•

The NPRM’s risk analysis for operations over people is flawed because it fails to account for the likelihood or probability of a UA actually hitting a person or causing an injury.

•

The NPRM’s kinetic energy impact standards lack justification and are too low.

•

The singular focus of the NPRM’s pre-accepted means of compliance on kinetic energy disincentivizes advancements in UAS technology that would otherwise enhance safety.

•

The NPRM fails to properly weigh risks against benefits.

•

The NPRM does not broadly permit more expanded operations for sophisticated operators.

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•

The NPRM does not expand the definition of “direct participant”.

In order to enable the commercial drone industry to blossom and bring the full breadth of significant benefits of UAS to the American public, the CDA respectfully requests that the FAA modify the proposed regulations as discussed herein.

Failure to do so would effectively

surrender the United States’ leadership position on UAS and airspace matters, as other countries forge ahead to embrace and enable expanded UAS operations and their safe integration into airspace. Moreover, such a failure would consign the commercial UAS industry in the United States to many years of an overly restrictive regulatory regime and very limited operational opportunities, while the American public misses out on the safety, efficiency, and countless other public benefits that commercial UAS operations can provide.

2. The Public Benefits Of Expanded Commercial UAS Operations Are Significant UAS integration has had, and will continue to have, a significant positive economic impact in the United States, with the value of drone activity rising from $40 million in 2012 to a projected annual impact of $31 - $46 billion for U.S. GDP in 2026.6 The benefits of commercial UAS operations are substantial. Technology has advanced rapidly, and UAS are now powerful commercial tools that can provide enormous public benefits for safety and efficiency.

For

example, UAS can inspect and monitor industrial equipment, wind turbines, communications towers, parked aircraft and runways, energy facilities, railroad tracks, bridges, power lines, pipelines, and other critical infrastructure; assist with law enforcement, fire, accident, and natural disaster responses, and crop assessments, as well as search and rescue missions and newsgathering; and deliver supplies, products, life-saving medical equipment, and medicines, among countless other beneficial use cases.

While the benefits of commercial UAS use are endless, the industry is still developing and needs room to grow.

Whether for life-saving, public safety, commercial, critical

infrastructure inspection, security or any of countless other UAS applications, operators must be able to fly safely over people and moving vehicles. The current U.S. regulatory framework does not broadly permit such operations, however, which unnecessarily limits the ability of the 6

McKinsey & Company, Commercial drones are here: The future of unmanned aerial systems, available at:https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/commercial-drones-are-herethe-future-of-unmanned-aerial-systems 4

commercial UAS industry to provide some of its most compelling benefits. As a result, the CDA appreciates that the FAA has proposed regulations for UAS operations over people.

3. To Unleash These Benefits, A Common Sense Regulatory Framework Is Necessary The CDA believes it is absolutely imperative for the FAA to promulgate a final rule that enables expanded commercial UAS operations over people without being unduly restrictive or jeopardizing safety or security. The final OOP rule must enable real-world UAS operations while protecting safety and security. The proposed rule in the NPRM fails to achieve that balance in certain important respects. If the final rule – like the proposed rule – unnecessarily restricts or prohibits certain expanded UAS operations, imposes costs for little or no benefit, or otherwise relies on an overly conservative approach to safety risk assessments, the United States will surrender its leadership in innovation and aviation safety, and the American public will suffer the consequences. The commercial UAS industry will be compelled to seek other global markets to realize its full potential. This would be a massive loss for the American people, businesses in the U.S., and the U.S. economy.

The CDA therefore appreciates the FAA’s efforts to draft a proposed rule to begin broadly expanding commercial UAS operations.

We nonetheless have several significant

concerns with the proposed OOP regulations, which we outline below. We urge the FAA to address these concerns in any final rule. The stakes here are significant.

4. The Prohibition On Flights Over People In Moving Vehicles Must Be Eliminated Proposed Section 107.105 is a blanket prohibition on flights over people in moving vehicles. This prohibition is a non-starter for the commercial UAS industry. It would significantly curtail the industry’s expansion in the United States and preclude the implementation of many of the public benefit use cases without any demonstrable safety benefits.

The Preamble refers to a situation where a UA collides with a motorcyclist or the potential for a collision to distract the driver of a moving vehicle as apparent justifications for this

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blanket prohibition.7 However, the NPRM does not account for the de minimis risk of such an occurrence happening. Nor does it recognize that motorcyclists and automobile drivers already face greater, more frequent risks every day while driving from much larger and, in certain cases, much faster objects such as other motor vehicles (including large trucks), wildlife (e.g., deer, birds), and even items falling off a vehicle or truck in front of the vehicle or motorcycle. Nor does the NPRM recognize that motor vehicles provide the vehicle occupants with substantial protection from a UA, just as people are protected under a covered structure or inside a stationary vehicle (both of which a UA can currently fly over, under Part 1078). Nor does it consider that, in many cases (such as UAS delivery), the UA will replace some of these other risks from the road, leading to an overall increase in societal safety. Nor does it evaluate whether a UA flying over a moving vehicle is any more likely to strike a vehicle than a disabled UA flying near the vehicle.

Nor does it account for the fact that drivers are taught about

handling distractions and indeed face distractions every day from other vehicles, horns/sirens, pedestrians, wildlife, and cell phone use, among other things. There is nothing unique about the extremely low probability distraction that a UA might cause if it is disabled and strikes a vehicle that should warrant a complete prohibition on flights over moving vehicles. To date, the CDA is not aware of any confirmed motor vehicle accidents in the United States as a result of being hit by a UA. The proposed regulations permit operations over people, including non-participants and unsheltered people, under certain circumstances.9 Why would such an operation be safe, but not one over that same person protected in a moving vehicle?

There is no reasonable

justification for such a distinction, much less a demonstrable safety or security one. Unless and until there is sufficient data demonstrating that operating over a road is riskier than operating over people, if a system is approved to operate over people, it should be approved to operate over moving vehicles.

The proposed prohibition on flights over moving vehicles also amounts to a de facto prohibition on UAS flights over roads because it would be difficult, if not impossible, for most UAS operators to know precisely when and where a vehicle will be on a particular road.

7 8 9

84 Fed. Reg. at 3889.

14 C.F.R. 107.39.

See generally 14 C.F.R. Part 107, Proposed Subpart D (“Operations Over Human Beings�).

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Because roads and motor vehicles are so common and widespread in many areas where UAS operators need to fly, this proposed prohibition will effectively prevent the development of the commercial UAS industry and the implementation of the vast majority of beneficial use cases, thereby denying the public and businesses the countless, important safety and economic benefits of commercial UAS operations. As explained above, there is simply no justifiable basis for prohibiting all UA flights over moving vehicles.

The CDA acknowledges that the NPRM proposes to add the prohibition on operations over moving vehicles to the list of Part 107 regulations which are subject to waiver.

That

opportunity does not resolve these concerns, however. Waivers take time and resources from both the UAS operator and the FAA to prepare, review, and process. Because this prohibition goes to the core of most commercial UAS operations, it is very likely that the FAA will be inundated with thousands of waiver requests for operations over moving vehicles.

This will

stretch the FAA’s resources even more at a time when it is already juggling many other programs, waiver petitions, and rulemakings/implementation, while at the same time delaying, if not preventing, the commercial UAS industry from providing the American public and American businesses with the significant benefits of UAS operations. Simply put, the current waiver process is not the answer for addressing this fundamental prohibition. As the DOT Inspector General reported, the FAA had approved only about 10% of the more than 18,900 waiver requests it had received as of May 2018, and almost 90% of small UAS operators reported that the FAA’s “waiver processing was too slow.”

The CDA therefore urges the FAA to remove this prohibition from any final rule that is promulgated.

5. The FAA’s Risk Analysis For Operations Over People Is Flawed It is a fundamental and dispositive flaw that the FAA’s NPRM risk analysis does not account for the likelihood or probability of a UA hitting a person or causing an injury.10 Instead, it is based solely on the severity of an impact with a person when a collision occurs and the

10

84 Fed. Reg. at 3874-75.

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resulting transfer of kinetic energy from a rigid object.

The risk analysis assumes that there is

a 100% probability of a collision with a person, which would never be the case in real-world operations, as the FAA recognizes: “A one hundred percent chance that each of these events [necessary for a UA to cause an injury] would occur is impossible.”12 This is a fundamental flaw with the proposed OOP rule, which results in proposed regulations that are overly conservative and unnecessarily restrictive. Any final rule for OOP must account for the likelihood of a UA actually hitting a person.

The lack of a risk-based component with the likelihood of a hazard occurring is also inconsistent with the FAA’s Safety Risk Management Policy (“SRMP”). A critical step in the SRMP is to analyze the specific hazard’s safety risk, which is the “function of the severity and likelihood of the hazard’s potential outcomes. . . . Likelihood is the estimated probability or frequency, in quantitative or qualitative terms, of the outcome(s) associated with a hazard. It is an expression of how often an outcome of a hazard is predicted to occur in the future.”13 For example, the likelihood of a UA hitting a person in a rural environment would be very different from the likelihood of hitting a person in an urban environment. Even in day-to-day society, people accept certain types and levels of risk because the benefits to themselves and society are substantial, while the risk of potential harm actually occurring is sufficiently remote. But, the “risk analysis” in the NPRM disregards the critical “likelihood” part of a safety risk analysis and therefore leads to kinetic energy impact thresholds that are far too low and would severely limit OOP under this proposed rule to only the lightest, smallest UAS with extremely limited commercial uses and within very narrow operational areas.

This flaw must be addressed by accounting for the probability of a UA hitting a person in any final OOP rule. As part of the new rules, the CDA suggests that the FAA adopt an easier, consistent risk assessment framework that non-standard operations can use, such as the JARUS-SORA process.

11

See also Public Comment of ASSURE on this NPRM (“ASSURE Comment”), at 28 (“The current NPRM does not include any casualty expectation metrics. The entire safety case of the NPRM is based solely [] upon the severity of the impact when a collision occurs.”).

12 84 Fed. Reg. at 3874.

13 Order 8040.4B, Safety Risk Management Policy (May 2, 2017) at Ch. 2, ¶ 2(c).

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6. The FAA’s Kinetic Energy (“KE”) Impact Standards Lack Justification And Are Too Low The NPRM’s performance‐based metrics set out two KE impact standards: the UA will not cause injury to a person that is equivalent to, or greater than, the severity of injury caused by a transfer of 11 ft‐lbs (for Category 2 operations) or 25 ft‐lbs (for Category 3 operations) of KE upon impact from a rigid object.14 These two standards are flawed, however, in that they lack sufficient justification and are overly conservative.

The 11 ft-lbs and 25 ft-lbs standards were derived from two existing KE impact thresholds “that analyze public safety risk from commercial space launches, government space launches, and aircraft operations at national test ranges,” and that “presume all kinetic energy from a rigid object would transfer to a person upon impact.” 15 The 11 ft-lbs standard is “consistent with existing commercial space regulations” and “longstanding Range Commander’s 16

Council (RCC) standards.”

Those types of operations and space vehicles, however, are very

different from UA. They involve heavy, metallic fragments, whereas most commercial UA do not. They are rigid, whereas most UA are flexible and thereby absorb energy.

The comments of ASSURE on this NPRM explain these critical differences and the implications of them: “Commercial Space uses these kinetic energy values for largely rigid objects following destruction of a vehicle in conjunction with a casualty expectation probability to assess safety. While this approach makes sense for commercial space applications, the use of the impact kinetic energy values alone does not make sense for sUAS because sUAS don't break apart in-flight (in the majority of cases) and hit people as inelastic, metallic fragments like missiles and spacecraft that generate metallic debris when detonated or are broken up in flight. sUAS fall as complete objects and they absorb tremendous amounts of energy during impact due to their flexibility.”

“The ATD test results and subsequent analysis strongly suggested that RCCbased thresholds are overly conservative because they do not accurately represent the collision dynamics of elastically-deformable sUAS with larger contact areas in comparison to the metallic debris analysis methods for high speed missiles on the national test ranges.”

14 15 16

See Proposed Sections 107.115, 107.120.

84 Fed. Reg. at 3873-74.

84 Fed. Reg. at 3873.

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“The performance‐based metrics called out in the NPRM appear inconsistent with the actual human injury experienced during [Post Mortem Human Surrogate] testing whether the impact is from a wood block or a sUAS at substantially higher impact kinetic energy levels.”17 Given the critical differences between commercial space vehicles/missiles and UA, the KE impact thresholds for commercial space have no relevant application to UAS, much less to be the codified thresholds in an historic OOP rule.

ASSURE conducted additional FAA-funded research as part of Task 14 to evaluate human injury related to UA impacts with the non‐participating public. ASSURE explained that the two proposed thresholds are roughly the “same energy of the fastest pitch thrown in 10U or 12-14 year old boys Little League Baseball, respectively,” and then pointed out that a baseball is rigid and not flexible (but tennis balls and UA are flexible).18 Based on that and other research, ASSURE raised serious concerns in its comments about the NPRM’s proposed 11 ft‐lbs and 25 ft‐lbs KE impact thresholds being too low and off by a factor of at least ten: “[T]hese limits are overly conservative in achieving these goals” of limiting the injury risk to the non-participating public and limiting the fatalities to the participating public.19 The CDA fully agrees with that view.

The 11 ft-lbs and 25 ft-lbs KE thresholds are far too low and not necessary to adequately protect public safety or security.

The implications of such overly conservative thresholds for the commercial UAS industry are massive. If the FAA finalizes the proposed OOP rule on this point as written, there are no commercially viable UAS that will be capable of meeting the Category 2 KE impact standard and only a few UAS will be capable of meeting the Category 3 KE impact standard. ASSURE confirms as much in its comment: “Using this means of compliance, there will be no aircraft with a commercially viable payload that can meet the §107.115 Category 2 Operations in the NPRM and as such this NPRM will do nothing to expand the operations of the sUAS in the U.S.”20 Even the FAA’s own analysis assumes that, out of the thousands of commercially viable UAS models that are currently out in the market, only “15 existing models may satisfy the 17 18 19 20

ASSURE Comment, at 4-5.

Id. Id., at 5.

Id., at 33.

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performance-based requirements of the rule for Category 2 and Category 3 small UAS operations over people with little or no modification.”21 Such a result will stop the commercial UAS industry from expanding and prevent it from delivering the countless benefits of UAS operations to the American public.

Moreover, to the extent the codification of such overly conservative thresholds in a finalized OOP rule would guide the FAA’s analysis in future rulemakings, certifications or other advanced approvals for expanded UAS operations, it would result in overly restrictive future rules as well. Consequently, these overly conservative proposed thresholds must not be used as precedent or benchmarks for UA impact analyses in other contexts. They would set such a low impact threshold and fail to differentiate the least sophisticated operator from more sophisticated operators (e.g., with substantial operational experience, enhanced pilot training, and advanced safety equipment) or even those who operate under Part 135 with typecertificated UAS.

Simply put, if, despite the concerns and flaws noted above, the FAA

determines to finalize these overly conservative thresholds as part of a Part 107 OOP rule, it should not use those same thresholds as precedent, benchmarks or guideposts for any rule or policy covering other expanded UAS operations, including those under Part 135.

If the KE impact thresholds for Category 2 and Category 3 operations over people are not significantly increased in the final rule, the benefits and expansion of commercial UAS operations over people will simply not be realized.

Significant increases in the KE impact

thresholds can be implemented without adversely affecting public safety, as ASSURE points out in its comment, and the FAA should not finalize the proposed OOP rule without significantly raising the KE impact thresholds.22 7. The Pre-Accepted Means Of Compliance Fails To Incentivize Safety The singular focus of the pre-accepted means of compliance on KE is also misguided because it disincentivizes advancements in UAS technology that would otherwise enhance 21

FAA Notice of Proposed Rulemaking Regulatory Evaluation, Operations of Small Unmanned Aircraft Over People, at 12, available at https://www.regulations.gov/document?D=FAA-2018-1087-0003.

22 “The probability of a worst case collision of a sUAS in conjunction with the use of automotive injury performance‐based metrics to evaluate the worst case conditions will increase the number of sUAS commercial operations without increasing the safety risk to the non‐participating public.” ASSURE Comment, at 2.

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safety. The NPRM’s “pre-accepted means of compliance” for a UAS to be eligible for Category 2 or Category 3 operations is to conduct maximum powered flight tests and free fall failure mode tests to determine the maximum impact speed for the UA. The maximum impact speed and the UA’s weight are then put into an equation to calculate whether the UA meets the KE impact threshold levels.23 The pre-accepted means of compliance, however, does not account for the structural characteristics of the UA, which would have significant implications for the potential damage resulting from a collision with a UA, as the FAA itself and ASSURE recognize: This proposed means of compliance “does not take into account the effect of the small UA’s structural configuration or materials of construction during an impact with a person. It assumes that the total kinetic energy of the small unmanned aircraft would be transferred to the person upon impact. In reality, a small UA’s structural configuration, materials of construction, or other design features may reduce the amount of the total kinetic energy that is transferred to a person during an impact.

The use of energy absorbing materials, or an energy absorbing protective cage, may reduce the transfer of kinetic energy during an impact with a person.”24 “sUAS fall as complete objects and they absorb tremendous amounts of energy 25 during impact due to their flexibility.”

It also does not “credit” UA for having devices that may deploy and reduce the maximum impact speed. “This proposed means of compliance does not account for the use or testing of design features such as parachutes, ballistic recovery systems, or other deployable devices that, once deployed, create drag to reduce the maximum impact speed. . . . [C]ustom means of compliance addresses the potential use of such design features.” 26 In addition, the preaccepted means of compliance does not consider the reduced probability of any UA failure, much less of an impact. The failure to account for such UA characteristics and features, as well as the likelihood of a UA failure or UA impact (discussed earlier), is another significant flaw with the NPRM. Rather than focusing solely on KE, the FAA’s risk assessment should factor in operational and technological mitigations. Adding safety equipment and technology to a UA – 23

84 Fed. Reg. at 3877-78.

Draft FAA Advisory Circular (“AC”) 107-2A, Small Unmanned Aircraft System, at ¶¶ 8.9.1.11, 8.9.1.12; see also 84 Fed. Reg. at 3879.

25 ASSURE Report, at 4.

26 84 Fed. Reg. at 3875-76.

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e.g., parachutes – necessarily adds some weight to the UA (and therefore the KE potential), but it can also substantially mitigate the potential for injury. But, the FAA’s pre-accepted means of compliance and calculation penalize a UA for any additional weight, even if the additional weight results in a safer UA. In addition to technological mitigations, the OOP risk analysis should also give operators credit for operational safeguards, such as a comprehensive safety management system and flight proficiency training for pilots.

As the industry evolves, the FAA has the

opportunity to incentivize innovation, whether it is through parachutes, audible warning systems, energy absorbing or frangible systems, or some other new technology, that will make UAS even safer.

An OOP rule that fails to provide these incentives in its pre-accepted means of

compliance, or otherwise makes it confusing and unduly burdensome for manufacturers to use alternative custom means of compliance, will be considered a failure and result in less safety, rather than more.

The CDA acknowledges that the NPRM provides UAS manufacturers with an alternative, which is to develop their own custom means of compliance to present to the FAA.27 This is the route, for example, by which a manufacturer could seek credit for certain additional features such as parachutes. But, it is clear that developing a custom means of compliance will be a difficult, time-consuming, and costly process.

In its discussion of the custom means of

compliance under the proposed rule in draft Advisory Circular 107-2A, the FAA emphasized: “Applicants should carefully consider the additional time and effort that could be necessary to coordinate a new or alternative means of compliance when scheduling their projects.”28 The lengthy and costly custom means of compliance is no substitute for a rule that already accounts for the technological and operational mitigations, as well as the design and structural characteristics, of the UA. Accordingly, the CDA urges the FAA to finalize a pre-accepted means of compliance that accounts for such mitigations and UA characteristics.

The final rule should also address two additional points related to the demonstration and declaration of compliance. First, it should make clear that the demonstration and declaration of compliance is the responsibility of the manufacturer. Second, it should include a safe harbor clearly delineating that certain types of modifications (e.g., the use of a different sensor or 27 28

See Proposed Sections 107.125, 107.135.

Draft FAA AC 107-2A, at ¶ 8.11.1.

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camera payload) would not constitute a modification requiring a new declaration of compliance.

It would be reasonable for the FAA to require that the manufacturer or operator maintain a log of each such modification that was subject to the safe harbor provision. These changes would help manufacturers and operators better understand who is responsible for declarations of compliance and when such declarations are necessary, while at the same time reducing the likelihood that the FAA will be inundated with a large volume of requests for review of proposed custom means of compliance that are not necessary from a safety or security perspective.

8. The Proposed OOP Rule Fails To Properly Weigh Risks Against Benefits The FAA’s OOP risk analysis appears to be based on a view that there should be no incremental additional risk to the airspace, even where broader societal benefits are significant.

Such a narrow view is misguided.

The risk-benefit calculus should account for the risks associated with the activities that commercial UAS operations would replace. For example, when analyzing the risks of operating a UA to inspect a bridge or wind turbine or to assess the extent of a toxic gas release, the FAA should consider the much larger risk of having people climb or rappel on such infrastructure to conduct such inspections or having people directly enter the toxic gas area to conduct the assessment. The National Academies of Sciences, Engineering, and Medicine have also urged the federal government to consider risk factors and benefits more broadly.29 Indeed, one of their principal conclusions in a study about the risks of UAS integration into the NAS is that the federal government must consider safety benefits more broadly, recognizing that some UAS operations will increase safety both inside and outside the aviation system.30 The FAA has taken broader societal benefits into account in other rulemaking contexts.

For example, in 2005 the FAA withdrew an ANPRM about child restraint devices on aircraft.

The FAA concluded that it would not mandate the use of child safety seats on aircraft because its analyses showed that, if compelled to buy another airline ticket for that child, families might choose instead to drive. Then FAA Administrator Blakey stated: “[I]f requiring extra airline 29

National Academies of Sciences, Engineering, and Medicine. 2018. Assessing the Risks of Integrating Unmanned Aircraft Systems (UAS) into the National Airspace System. Washington, DC: The National Academies Press. https://doi.org/10.17226/25143.

30 Id. 14

tickets forces some families to drive, then we’re inadvertently putting too many families at risk.”31 Put another way, “[a]s a result, there would be a net increase in transportation injuries and fatalities as families opt, for economic reasons, to drive rather than fly to their destinations.”32 The FAA should likewise adopt a risk analysis framework that considers benefits to society more broadly in this OOP rulemaking. Failure to make this part of the risk-benefit calculus would lead to results where the FAA essentially favors the more dangerous and arguably less efficient alternative in lieu of reasonably safe UAS operations. The FAA should not subscribe to such a myopic view of benefits.

Focusing on kinetic energy alone as an indicator of overall risk – as the proposed OOP rule does – is the wrong approach and does not reflect real-world risks. Comparative safety benefits should be considered when evaluating the overall risk for operations over people. If risks can be appropriately compared, and the use of UAS decreases overall risk, then the UAS operation should be permitted. In its current form, the OOP rule evaluates risk too narrowly, which will preclude many societally beneficial UAS operations that would otherwise reduce overall risk.

9. Any Final Rule Must Continue To Permit More Expanded Operations For Sophisticated Operators The proposed rule seeks to encompass a variety of potential UAS operators. However, it does not provide more sophisticated commercial operators with any opportunities for expanded operations except through waivers. It is critically important that the final rule continue to allow for these waivers and more sophisticated operations, and the CDA suggests creating a common risk-based framework for operators and FAA assessors to use, such as the JARUSSORA. This is essentially a one-size-fits-all proposed rule, and, as a result, it does not credit sophisticated commercial operators who have more equipped UA or enhanced operator training to reduce certain risks with a proven track record of safety. Such operators are willing to invest in their UAS operations and enhanced safety, but the proposed rule does not incentivize them to

31 32

FAA Announces Decision on Child Safety Seats, FAA Press Release, August 25, 2005.

Notice of Withdrawal, 70 Fed. Reg. 50226 (August 26, 2005).

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do so with any opportunity for expanded operations. At a minimum, the final rule must expedite the review of waivers and exemptions in a straightforward way. Establishment of a “known operator” program for those operators meeting certain heightened qualifications (e.g., in terms of aircraft reliability, equipment for detect-and-avoid, enhanced operator training), as the CDA has long advocated, would help to address this issue.

10. The FAA Should Expand The Definition Of “Direct Participant” Part 107 currently prohibits a UA from operating over an unsheltered human being that is not “directly participating” in the operation of the UA.33 The Preamble to Part 107 provides the following guidance on the term “directly participating”: “The term ‘directly participating’ refers to specific personnel that the remote pilot in command has deemed to be involved with the flight operation of the small unmanned aircraft. These include the remote pilot in command, the person manipulating the controls of the small UAS (if other than the remote pilot in command), and the visual observer. These personnel also include any person who is necessary for the safety of the small UAS flight operation. For example, if a small UAS operation employs a person whose duties are to maintain a perimeter to ensure that other people do not enter the area of operation, that person would be considered a direct participant in the flight operation of the small UAS. Anyone else would not be considered a direct participant in the small UAS operation.”34 Under this narrow definition, personnel engaged in related activities for which the UAS is being used are non-participants, and the rules apply to them as if they were a member of the general public. By way of example, a worker on a construction site over which a UA is being flown to conduct an inspection is considered a non-participant, and the UA cannot be operated over him or her. Obviously, this greatly restricts the ability to conduct UAS operations over the site. In many situations, it is too difficult or simply impossible to control the movement of all people on the ground.

Any final OOP rule resulting from this NPRM should therefore broaden the definition of a “direct participant” to encompass personnel who are necessary for, or otherwise directly participating in, activities being supported by the UAS operation, and who: (1) have knowledge of the UAS operation; and (2) have consented to overflight of the UA. This approach would 33 34

14 C.F.R. § 107.39(a).

81 Fed. Reg. 42128 (June 28, 2016).

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align with the approach taken by the FAA for several years in the context of issuing Section 333 Exemptions for closed-set filming, under which flights over “participating persons consenting to be involved and necessary for the filming production,” were not prohibited. To this point, the CDA is not aware of any safety incidents or personal injuries resulting from UA flights over closed-set locations.

11. Conclusion The CDA appreciates the opportunity to provide its comments on the NPRM, including the concerns detailed above: •

The prohibition on flights over people in moving vehicles must be eliminated.

•

The NPRM’s risk analysis for operations over people is flawed. It should take into account the likelihood or probability of a UA actually hitting a person or causing an injury.

•

The NPRM’s kinetic energy impact standards lack justification and are too low.

•

The singular focus of the NPRM’s pre-accepted means of compliance on kinetic energy disincentivizes advancements in UAS technology that would otherwise enhance safety.

•

The NPRM fails to properly weigh risks against benefits.

•

The NPRM does not broadly permit more expanded operations for sophisticated operators.

•

The NPRM does not expand the definition of “direct participant”.

The CDA urges the FAA to address these concerns in any final rule. We thank you for your consideration of CDA’s comments.

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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) SkySafe SRC/Gryphon Sensors Talon Aerolytics uAvionix Uber WarnerMedia WhiteFox Defense Technologies Wing Aviation

Cape Center for Robot Assisted Search and Rescue (CRASAR) Choctaw Nation of Oklahoma CNN Crown Castle Digital Global Systems DII

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