[Federal Register Volume 90, Number 150 (Thursday, August 7, 2025)]
[Proposed Rules]
[Pages 38212-38391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-14992]
[[Page 38211]]
Vol. 90
Thursday,
No. 150
August 7, 2025
Part III
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 36, 43, 45, et al.
Department of Homeland Security
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Transportation Security Administration
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49 CFR Parts 1540 and 1544
Normalizing Unmanned Aircraft Systems Beyond Visual Line of Sight
Operations; Proposed Rule
Federal Register / Vol. 90 , No. 150 / Thursday, August 7, 2025 /
Proposed Rules
[[Page 38212]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 36, 43, 45, 48, 89, 91, 107, 108, 119, 133, 135, 137,
and 146
[Docket No. FAA-2025-1908; Notice No. 25-07]
RIN 2120-AL82
DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1540 and 1544
RIN 1652-AA80
Normalizing Unmanned Aircraft Systems Beyond Visual Line of Sight
Operations
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation, and Transportation Security Administration (TSA),
Department of Homeland Security.
ACTION: Notice of proposed rulemaking (NPRM)
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SUMMARY: This action proposes performance-based regulations to enable
the design and operation of unmanned aircraft systems (UAS) at low
altitudes beyond visual line of sight (BVLOS) and for third-party
services, including UAS Traffic Management (UTM), that support these
operations. The FAA Reauthorization Act of 2024 directs the development
of this proposed rule. This proposed rule is necessary to support the
integration of UAS into the national airspace system (NAS). This
proposed rule is intended to provide a predictable and clear pathway
for safe, routine, and scalable UAS operations that include package
delivery, agriculture, aerial surveying, civic interest, operations
training, demonstration, recreation, and flight testing. TSA proposes
to make complementary changes to its regulations to ensure it can
continue to impose security measures on these operations under its
current regulatory structure for civil aviation.
DATES: Send comments on or before October 6, 2025.
ADDRESSES: Send comments identified by docket number FAA-2025-1908
using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/ and follow the online instructions for sending
your comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at (202) 493-2251.
Docket: Background documents or comments received may be read at
https://www.regulations.gov/ at any time. Follow the online
instructions for accessing the docket or go to the Docket Operations in
Room W12-140 of the West Building Ground Floor at 1200 New Jersey
Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Michelle Ferritto, ARM-100, Federal
Aviation Administration, 800 Independence Avenue SW, Washington, DC
20592; Phone: Phone: 844 359-6982; Email: [email protected].
SUPPLEMENTARY INFORMATION:
List of Abbreviations and Acronyms Frequently Used in This Document
AAM--Advanced Air Mobility
AC--Advisory Circular
ACAS--Airborne Collision Avoidance System
ADS--B Automatic Dependent Surveillance-Broadcast
AE--Associated Elements
AGL--Above Ground Level
API--Application Programming Interface
ARC--Aviation Rulemaking Committee
ASOS--Automated Surface Observing System
ASRS--Aviation Safety Reporting System
ATC--Air Traffic Control
ATM--Air Traffic Management
AWOS--Automated Weather Observing System
BVLOS--Beyond Visual Line of Sight
C2--Command-and-Control
CBI--Confidential Business Information
CFR--Code of Federal Regulations
CMSA--Conformance Monitoring for Situational Awareness
COA--Certificate of Waiver or Authorization
COMAT--Company Materials
ConOps--Concept of Operations
COS--Continued Operational Safety
DAA--Detect and Avoid
DOC--Declaration of Compliance
DOT--Department of Transportation
DSS--Discover and Synchronization Service
EASA--European Union Aviation Safety Agency
EC--Electronic Conspicuity
FAA--Federal Aviation Administration
FRIA--FAA-Recognized Identification Areas
FSDO--Flight Standards District Office
GA--General Aviation
GCS--Ground Control Station
GPS--Global Positioning Systems
HAZMAT--Hazardous Materials
HIRF--High Intensity Radiated Field
HME--Hazardous Materials Endorsement
HMR--Hazardous Materials Regulations
IBR--Incorporation by Reference
ICAO--International Civil Aviation Organization
IRFA--Initial Regulatory Flexibility Analysis
IUEI--Intentional Unauthorized Electronic Interaction
JARUS--Joint Authorities for Rulemaking on Unmanned Systems
LAANC--Low Altitude Authorization and Notification Capability
MAIS--Maximum Abbreviated Injury Scale
METAR--Meteorological Aerodrome Report
MIT/LL--Massachusetts Institute of Technology Lincoln Laboratory
MOA--Memorandum of Agreement
MOC--Means of Compliance
MOPS--Minimum Operational Performance Standards
MOSAIC--Modernization of Special Airworthiness Certification
NAICS--North American Industry Classification System
NAS--National Airspace System
NASA--National Aeronautics and Space Administration
nm--Nautical Miles
NOTAM--Notice to Airmen
NPRM--Notice of Proposed Rulemaking
NTSB--National Transportation Safety Board
NWS--National Weather Service
OMB--Office of Management and Budget
OpSpecs--Operation Specifications
OST--Office of the Secretary of Transportation
PAO--Public Aircraft Operation
PHMSA--Pipeline and Hazardous Materials Safety Administration
PNT--Positioning, Navigation, and Timing
POI--Principal Operations Inspector
RFA--Regulatory Flexibility Act
RPA--Rule of Particular Applicability
SAC--Special Airworthiness Certificate
SARPS--Standards and Recommended Practices
SBA--Small Business Administration
SDSP--Supplemental Data Service Provider
SMS--Safety Management System
SOH--State of Health
SORA--Specific Operations Risk Assessment
SPSO--Service Provider Standard Order
SRA--Safety Risk Assessment
STA--Security Threat Assessment
STEM--Science, Technology, Engineering, and Mathematics
sUAS--Small UAS
SUI--Simplified User Interaction
sXu--System X for sUAS
TAF--Terminal Area Forecast
TRACON--Terminal Radar Approach Control
TSA--Transportation Security Administration
TSO--Technical Standards Order
UA--Unmanned Aircraft
UAS--Unmanned Aircraft System
UAT--Universal Access Transceiver
UES--Universal Enrollment Service(s)
UFT--UTM Field Test
UPP--UTM Pilot Program
USS--Unmanned Aircraft System Service Supplier
USSP--U-Space Service Provider
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UTM--Unmanned Aircraft System Traffic Management
VLOS--Visual Line of Sight
VSL--Value of Statistical Life
VTOL--Vertical Takeoff and Landing
xTM--Extensible Traffic Management
Table of Contents
I. Executive Summary
A. Purpose of This Regulatory Action
B. Overview of Proposed Rule
C. Summary of the Costs and Benefits
II. Authority for This Rulemaking
A. Section 44807 Statutory Findings
B. Authority for Regulating Third-Party Services
C. Authority for Regulating Noise
III. Background
A. Related FAA and Department of Transportation (DOT) Actions
B. Use of Exemptions, Type Certificates, and Waivers
C. Beyond Visual Line of Sight Aviation Rulemaking Committee
D. BVLOS Operations and International Leadership
IV. UAS Integration Into the NAS
A. Enabling UAS BVLOS Operations
B. Need for Automated Data Service Providers
C. Definitions (Sec. 108.5)
V. Part 108 General Requirements (Subpart A)
A. Applicability (Sec. 108.1)
B. Reporting and Prohibitions
C. Recordkeeping (Sec. 108.40)
D. Reporting (Sec. 108.45)
VI. Conducting UAS BVLOS Operations (Subpart B)
A. Operating Unmanned Aircraft Under Part 108
B. General Operating Rules (Sec. 108.120)
C. ADS-B and Transponder Use (Sec. 108.160)
D. Area of Operations (Sec. 108.165)
E. Preflight Requirements (Sec. 108.170)
F. Operating Restrictions (Sec. 108.175)
G. Operation in Controlled Airspace (Sec. 108.180)
H. Operations Over People (Sec. 108.185)
I. Use of Strategic Deconfliction and Conformance Monitoring
(Sec. 108.190)
J. Operations Near Aircraft: Low Altitude Right-of-Way Rules
(Sec. 108.195)
K. Remote Identification of Unmanned Aircraft (Sec. 108.200)
L. Operation in Shielded Areas (Sec. 108.205)
M. Operations of Multiple Unmanned Aircraft (Sec. 108.210)
N. Careless and Reckless Operation (Sec. 108.125)
O. Manuals (Sec. Sec. 108.130 and 108.135)
P. Emergency Conditions (Sec. 108.215)
Q. Unmanned Aircraft Flight Restriction (Sec. 108.220)
VII. Personnel Requirements (Subpart C)
A. Approach to Personnel in Part 108
B. Personnel Roles and Responsibilities
C. Personnel Knowledge and Training (Sec. 108.315)
D. Medical Condition (Sec. 108.320)
E. Alcohol or Drugs (Sec. 108.325)
F. Duty and Rest (Sec. 108.330)
G. Security Threat Assessment for Certain Personnel (Sec.
108.335)
VIII. Permitted and Certificated Operations (Subparts D and E)
A. Requesting Operating Permits or Operating Certificates
(Sec. Sec. 108.400 and 108.500)
B. Permitted Operations
C. Certificated Operations
IX. Maintenance and Alterations (Subpart F)
A. Applicability
B. Persons Authorized To Perform Maintenance (Sec. 108.605)
C. Persons Performing Maintenance and Alterations (Sec.
108.605)
D. Unmanned Aircraft Maintenance (Sec. 108.610)
E. Life-Limited Parts (Sec. 108.615)
F. Unmanned Aircraft Batteries (Sec. 108.620)
G. Repairs and Alterations (Sec. 108.625)
H. Operations After Maintenance (Sec. 108.630)
X. Procedures for Unmanned Aircraft System Airworthiness (Subpart G)
A. Unmanned Aircraft System Airworthiness
B. Associated Elements (Sec. 108.5)
C. Applying for a Part 108 Airworthiness Acceptance
D. Means of Compliance (Sec. Sec. 108.705 and 108.710)
E. Compliance With Design, Test, Production, Noise, and
Airworthiness Requirements (Sec. 108.710)
F. Declaration of Compliance (Sec. 108.715)
G. Required Documents for Airworthiness Acceptance (Sec.
108.720)
H. Flight Data and Data Reporting (Sec. 108.725)
I. Quality Assurance System (Sec. 108.730)
J. Production Acceptance (Sec. 108.735)
K. Continued Operational Safety Program (Sec. 108.740)
L. Inspections and Audits (Sec. 108.745)
M. Design Changes (Sec. 108.750)
N. Repairs and Alterations (Sec. 108.755)
O. Record Retention (Sec. 108.760)
P. Rescission (Sec. 108.765)
XI. Design and Testing Requirements for Airworthiness Acceptance
(Subpart H)
A. General (Sec. 108.800)
B. Size, Weight, and Speed (Sec. 108.805)
C. Simplified User Interaction (Sec. 108.810)
D. Signal Monitoring and Transmission (Sec. 108.815)
E. Position, Navigation, and Timing (Sec. 108.820)
F. Collision Avoidance (Sec. 108.825)
G. Anti-Collision Lighting Requirements (Sec. 108.830)
H. Position Lighting Requirements (Sec. 108.835)
I. Power Generation, Storage, and Distribution System (Sec.
108.840)
J. Propulsion System (Sec. 108.845)
K. Fuel System (Sec. 108.850)
L. Fire Protection (Sec. 108.855)
M. Software (Sec. 108.860)
N. Electronic Hardware (Sec. 108.865)
O. Systems and Equipment (Sec. 108.870)
P. Cybersecurity (Sec. 108.875)
Q. Associated Elements Design and Performance Requirements
(Sec. 108.880)
R. Suitability and Durability of Materials (Sec. 108.885)
S. Operating Environment Conditions (Sec. 108.890)
T. Lightning Protection (Sec. 108.895)
U. Flight Data Recorder (Sec. 108.900)
V. Flight Data Analysis (Sec. 108.905)
W. Noise (Sec. 108.910)
X. Placards (Sec. 108.915)
Y. Identification and Marking (Sec. 108.920)
Z. Additional Design and Performance Requirements for
Operational Purposes (Sec. 108.925)
AA. Testing
XII. Corresponding Regulatory Updates
A. Updates to Noise Requirements
B. Updates to Other Operating Rules
XIII. Part 146: Automated Data Service Providers
A. Introduction
B. Legal Authority to Regulate Automated Data Service Providers
C. BVLOS ARC Recommendations
D. Overview of Proposed Part 146
E. Subpart A--General
F. Subpart B--Certificate
G. Subpart C--Service Authorizations
H. Subpart D--Certificated Service Providers
I. Subpart E--Authorized Service Requirements
J. Subpart F--Due Process
K. Proposed Advisory Circulars
XIV. Regulatory Notices and Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
H. Regulations Affecting Intrastate Aviation in Alaska
XV. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
C. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
D. Executive Order 13609, Promoting International Regulatory
Cooperation
E. Executive Order 14192, Unleashing Prosperity Through
Deregulation
XVI. Incorporation by reference
XVII. Privacy
XVIII. Additional Information
A. Comments Invited
B. Confidential Business Information
C. Electronic Access and Filing
D. Small Business Regulatory Enforcement Fairness Act
I. Executive Summary
A. Purpose of This Regulatory Action
This action proposes performance-based regulations for the design
and operation of unmanned aircraft systems (UAS) beyond visual line of
sight (BVLOS) and for third-party services that support these
operations, including UAS Traffic Management (UTM). The purpose of this
proposed rule is to enable the expansion of BVLOS UAS operations for
commercial and recreational purposes at low altitudes in the national
airspace system (NAS).\1\ To
[[Page 38214]]
date, the Federal Aviation Administration (FAA) has allowed some such
operations through individualized exemptions and waivers to existing
regulations. This NPRM leverages lessons learned from individual
exemptions and waivers to create the repeatable, scalable regulatory
framework FAA proposes here that would allow for wide-scale adoption of
UAS technologies. This proposed rule would be the next phase of
integrating UAS into the NAS and provide a predictable and clear
pathway for operators to conduct expanded operations safely. Further,
this proposed rule's Automated Data Service requirements would provide
clarity for manufacturers and service providers producing UAS and
offering key enabling services, such as UTM, to UAS operators. FAA
anticipates that this proposed rulemaking will allow operators to
conduct a variety of operations, including package delivery,
agriculture, aerial surveying, civic interest (to include wildfire
recovery, wildlife conservation, and public safety), flight training,
demonstration, flight testing, and recreation.
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\1\ Pursuant to 5 U.S.C. 553(b)(4), FAA has provided a summary
of this proposed rule in the docket for 2120-AL82, available at
www.regulations.gov.
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Since the promulgation of 2016's operating requirements for small
UAS in part 107, FAA has sought to incorporate more complex operations
(e.g., larger, and more automated aircraft operating BVLOS of the
operator) safely into the NAS through appropriate regulatory means. In
June 2021, FAA chartered the UAS BVLOS Aviation Rulemaking Committee
(ARC), soliciting recommendations to support a regulatory framework
reflective of the technological capabilities of UAS. In March 2022, the
ARC provided FAA with recommendations on how BVLOS operations could be
safely integrated into the NAS.
Further, in May of 2024, Congress passed FAA Reauthorization Act of
2024 (Public Law [Pub. L.] 118-63). Section 930 of Public Law 118-63
directs the FAA Administrator to issue a notice of proposed rulemaking
(NPRM) and subsequent final rule establishing a performance-based
regulatory pathway for UAS to operate BVLOS. In addition, section 932
directs the FAA Administrator to establish procedures to approve third-
party service suppliers of UTM. As part of its ongoing efforts to
integrate UAS operations into the NAS, and pursuant to 49 U.S.C. 44807,
the FAA Administrator is proposing to amend FAA regulations to adopt
specific rules for BVLOS operations of UAS in the NAS.
Based on its experience over the past few years with enabling
limited BVLOS operations through exemption or waiver and with the
comprehensive set of recommendations from the UAS BVLOS ARC, FAA has
developed the framework proposed in this rule to enable routine and
scalable BVLOS operations in the NAS. This proposed framework would
accommodate technologies as they evolve and mature using a performance-
based regulatory framework.
In addition, the Transportation Security Administration (TSA) is
proposing revisions to its regulations to ensure that the decision to
regulate these UAS operations under part 108 does not inadvertently
create a security gap under TSA regulations. Under this proposal, which
has been developed in consultation with FAA, TSA would continue to
ensure the security of the national airspace by imposing appropriate
security requirements. TSA notes that in the sections of this preamble
related to package delivery operations, TSA has included a request for
comment regarding potential security program applicability in a final
rule. This request for comment relates to a broader set of activities
than package delivery operations. While FAA and TSA are issuing a joint
proposed rulemaking, the agencies intend to concurrently issue separate
final rules.
B. Overview of the Proposed Rule
This proposed rule would establish requirements for conducting UAS
BVLOS operations in United States airspace. FAA anticipates many,
though not all, operations under proposed part 108 will be commercial.
This action would normalize certain low altitude UAS operations and
expedite the introduction of BVLOS UAS operations in the NAS while
ensuring the safety and efficiency of United States airspace. This
proposed rule is the next step in integrating UAS into the NAS, which
FAA anticipates would provide safety, societal, and economic benefits.
Section II of this preamble details the legal authority for this
rulemaking, while section III of this preamble provides a background of
prior rulemakings and policy efforts FAA has undertaken to allow UAS
operations in the United States. Section IV of this preamble describes
the approach FAA has proposed to integrate BVLOS UAS operations,
including the novel approaches to authorizing aircraft and personnel
proposed under part 108 and the framework for third-party service
suppliers proposed by part 146. Section V of this preamble describes
the operational requirements applicable to all BVLOS operations
conducted under part 108. These general operating requirements include
the administrative requirements for the two tiers of operational
authorization, permits and certificates, as discussed in section VIII
of this preamble. Section VI of this preamble outlines FAA's approach
for airspace management, including requirements for strategic
deconfliction, detect and avoid (DAA), operations in uncontrolled and
controlled airspace, operations over people, operations of multiple
aircraft, and other conditions for safe operation.
This rule proposes a novel structure for operations personnel, as
discussed in section VII of this preamble. Under this proposal, FAA
would not require airman certificates but would require each operator--
both permitted and certificated--to have an operations supervisor
responsible for the overall safety of the operation. In addition, FAA
proposes that operators must have qualified flight coordinators, who
are individuals responsible for monitoring and, if necessary,
intervening in an operation to ensure safe conditions. Whereas the
operations supervisor has operational control over the entire
operation, the flight coordinator(s) would have tactical oversight of
individual aircraft.
FAA anticipates that the operations conducted under part 108 would
have a variety of operational personnel positions and therefore does
not propose to require any additional operations personnel positions.
All operators would be responsible for identifying the necessary
operations personnel to ensure the safety of the operation, in addition
to ensuring that the operations personnel have the necessary knowledge
and skills for their role. In this manner, responsibility is tied to
the company operating the UAS rather than an individual that has
limited control of the actual operation and can be removed from their
position if necessary.
As noted above, section VIII of this preamble describes the permit
and certificate structure proposed by this rule. Permitted operations
would allow operators to conduct certain BVLOS operations using a
streamlined approach under a permit issued by FAA. The permit structure
would allow package delivery, agricultural operations, aerial
surveying, civic interest, unmanned aircraft (UA) operations training,
flight test, demonstration, and recreational operations, though subject
to certain limitations on size, number of aircraft, and other operating
requirements. Those operators conducting higher risk
[[Page 38215]]
threshold operations, due to size, weight, speed, or other parameters,
would instead need to seek operational certification. Obtaining an
operating certificate would allow for more complex package delivery,
agricultural operations, aerial surveying, and civic interest
operations than operating under an operating permit. Certificated
operations would receive greater oversight from FAA but would also be
able to use larger aircraft, have more aircraft, and have more
flexibility to operate over people. Operations conducted under an
operating certificate would require operators to develop a safety
management system (SMS) and a training program for operations
personnel.
Maintenance personnel would not be certificated under this proposed
rule. Section IX of this preamble details the requirements for
maintenance and maintenance personnel. Maintenance standards for these
aircraft would be set by the manufacturer and be based on industry
adopted consensus standards, and personnel that maintain them would be
required to be competent in their duties and receive the training
required by the manufacturer to perform those duties.
Sections X and XI of this preamble lay out the proposal for the new
airworthiness acceptance process developed to allow for an efficient
approval process of part 108 UAS, while maintaining the integrity of
the NAS and the safety of the public. Using industry consensus
standards, this action would establish a regulatory process for
airworthiness acceptance of a UAS, consisting of a UA and its
associated elements (AE), where the UA weighs not greater than 1,320
pounds (including anything attached to, or carried by the UA). Proposed
part 108 would include new operational requirements for UA with
airworthiness acceptance, enabling routine BVLOS operations without
waivers or exemptions.
Section XII of this preamble discusses corresponding changes to
related regulations in other parts of title 14 of the Code of Federal
Regulations (CFR) including a noise regulatory approach for UAS
operating under proposed part 108.
Finally, this action would create a defined regulatory approval
pathway for third-party services and providers of those services--first
to approve services that support UTM, and then eventually, to approve
services that support extensible traffic management (xTM). FAA broadly
defines all those service providers--be it third-party service
suppliers or services self-provided by the operators--as Automated Data
Service Providers.\2\
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\2\ The term Extensible Traffic Management (xTM) is used to
refer to cooperative service environments in general and is
comprised of UTM, AAM, etc. FAA further discusses these concepts in
its Urban Air Mobility (UAM) Version 2.0 Concept of Operations
(ConOps) (Apr. 26, 2023), available at www.faa.gov/sites/faa.gov/files/Urban%20Air%20Mobility%20%28UAM%29%20Concept%20of%20Operations%202.0_1.pdf.
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As further discussed in section XIII of this preamble, FAA would
create a new part 146 to establish the process by which FAA would
regulate automated data service providers as well as their automated
data services. The purpose of part 146 is to provide a regulatory
framework for appropriate government oversight of automated data
services that support aircraft operations, especially those conducted
under part 108. At the same time, the framework is designed to be
flexible enough to accommodate the natural evolution and development of
the technologies and systems on which these services are based. Through
proposed part 146, FAA would authorize automated data service providers
certificated under part 146 to provide services that would manage UAS
traffic and information necessary for safe and efficient operation in
the airspace. The provision of such services would be crucial, given
the projected increase in numbers of UAS operating in the NAS once part
108 is finalized. Under this proposal, strategic deconfliction and
conformance monitoring services provided under part 146 would be key to
the successful integration of UAS into the NAS and would be a
requirement for several categories of UAS BVLOS operations under
proposed part 108.
C. Summary of the Costs and Benefits
The benefits of the proposed rule are the economic, safety, and
health values that would result from scaled BVLOS operations. These
benefits derive from the increase in regulatory certainty and
efficiency, and framework for scaled operations, that proposed rule
would provide. FAA evaluates the benefits of the proposed rule
qualitatively. Compared with operations under the current regulatory
framework, this proposed rule may result in incremental costs to comply
with requirements for design, production, and operations. There may
also be cost implications to becoming certificated to provide automated
data services. FAA provides potential unit costs and example total
costs.
However, given that the proposed rule includes requirements that
mirror current BVLOS exemptions while also proposing several new
requirements to mitigate risks inherent in expanded BVLOS operations,
incremental costs are few, and benefits would likely exceed costs. See
section XIV.A of this preamble for more information.
II. Authority for This Rulemaking
FAA's authority to issue rules on aviation safety is found in title
49 of the United States Code (U.S.C.). subtitle I, Sec. 106 describes
the authority of FAA Administrator. Subtitle VII, Aviation Programs,
describes in more detail the scope of FAA's authority.
This rulemaking is issued under the authority described in subtitle
VII part A, subpart iii, Sec. 44807, Special authority for certain
UAS, which permits FAA Administrator \3\ to use a risk-based approach
to determine if certain UAS may operate safely in the NAS. Section
44807(b) provides a list of factors that the FAA Administrator must
consider when determining which types of UAS may operate safely in the
NAS, including size, weight, speed, operational capability, proximity
to airports and populated areas, operation over people, operation
within visual line of sight (VLOS), or operation during the day or
night. Section 44807(b) further requires the FAA Administrator to
consider whether an airman certificate under Sec. 44703, a type,
production, airworthiness, or design and production certificate under
section 44704 of chapter 447, or a Certificate of Waiver or
Authorization (COA) is required. Per Sec. 44807(c), when the FAA
Administrator determines that certain UAS may operate safely in the NAS
per that section, ``the Administrator shall establish requirements, or
a process to accept proposed requirements, for the safe and efficient
operation of unmanned aircraft systems in the national airspace
system.''
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\3\ See section 927 of FAA Reauthorization Act of 2024, Public
Law 118-63.
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In addition, FAA Reauthorization Act of 2024 (section 930 of Pub.
L. 118-63) amended chapter 448 of title 49 of the U.S.C. by adding
section 44811 to require the FAA Administrator to establish
performance-based regulations for UAS to be used for BVLOS operations.
The FAA Administrator must, at a minimum, establish acceptable risk
levels for BVLOS operations; standards for remote pilots or UAS
operators; an approval or acceptance process for UAS which may leverage
special airworthiness certificates (SAC) or a manufacturer declaration
of compliance (DOC) process; operating rules for UAS that are approved
or accepted; protocols of
[[Page 38216]]
networked information; and safety of manned aircraft operating in the
NAS. However, Sec. 44811 does not require the FAA Administrator to
rescope any ongoing rulemaking efforts. This regulation is within the
scope of these authorities.
The FAA Reauthorization Act of 2018 (Pub. L. 115-254), which
adopted 49 U.S.C. 44808, requires FAA to conduct rulemaking to
authorize the carriage of property by small UAS for compensation or
hire within the United States. FAA intends this proposal will also
address that requirement. Furthermore, this rulemaking is promulgated
pursuant to 49 U.S.C. 40103(b)(1) and (2), which directs FAA to issue
regulations: (1) to ensure the safety of aircraft and the efficient use
of airspace; and (2) to govern the flight of aircraft for purposes of
navigating, protecting, and identifying aircraft, and protecting
individuals and property on the ground. In addition, 49 U.S.C.
44701(a)(5) charges FAA with promoting safe flight of civil aircraft by
prescribing regulations FAA finds necessary for safety in air commerce
and national security.
On June 6, 2025, the President issued Executive Order No. 14307,
Unleashing American Drone Dominance, which directs that ``the Secretary
of Transportation, acting through the Administrator of the FAA, shall
issue a proposed rule enabling routine BVLOS operations for UAS for
commercial and public safety purposes.\4\ A final rule shall be
published within 240 days of the date of this order, as appropriate.''
FAA is publishing this proposed rule to fulfill that directive.
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\4\ 90 FR 24727.
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A. Section 44807 Statutory Findings
To determine whether certain UAS may operate safely in the NAS
pursuant to 49 U.S.C. 44807, the Administrator must find that the
operation of the UAS would not create a hazard to users of the NAS or
the public. The Administrator must also determine whether a certificate
under 49 U.S.C. 44703 (``Airman certificates'') or section 44704
(``Type certificates, production certificates, and airworthiness
certificates, and design and production organization certificates''),
or a certificate of waiver or certificate of authorization, is required
for the operation of the UAS subject to this proposed rule. Using a
risk-based approach, the Administrator has determined that UAS
operations under this proposed rule would operate safely in the NAS;
the individual findings required by section 44807 are as follows.
1. Hazard to Users of the NAS or the Public
Section 44807(b)(1) requires the Administrator to determine which
types of UAS operations, because of their size, weight, speed,
operational capability, proximity to airports and populated areas,
operation over people, and operation within or BVLOS, or operation
during the day or night do not create a hazard to users of the NAS or
the public.
The hazards to the NAS and the public from BVLOS UAS operations are
twofold: the collision risk posed to other users of the NAS (including
manned aviation and other UAS), and the risk of collision debris or a
faulty UAS posed to persons and property on the ground. Here, these
safety concerns would be mitigated by the provisions of this rule. The
risks to other NAS users and to persons and property on the ground
would be mitigated by the airworthiness acceptance process, the
personnel regulations, the general operating rules, and the specific
operating rules for operating permits and operating certificates. The
risks to other NAS users are further mitigated with the use of
strategic deconfliction and conformance monitoring. In addition, the
risks to people and property on the ground are mitigated through the
designation of population density categories (and the corresponding
restrictions on certain operations to certain population density
categories), the general prohibition of operations over open-air
assemblies, and the hazardous material carriage restrictions.\5\
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\5\ This rulemaking uses the definition of hazardous material as
defined in 49 U.S.C. 5102(2) and 49 CFR 171.8.
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Accordingly, the Administrator has found that the UAS operations
subject to this proposed rule would not create a hazard to users of the
NAS or the public. FAA invites comments on this finding.
2. Certificate Requirements
In addition, 49 U.S.C. 44807(b)(2) requires the Administrator to
determine whether the UAS operations subject to this proposed rule pose
a safety risk sufficient to require airworthiness certification or
airman certification.
i. Airworthiness Certification
The Administrator has determined that airworthiness certification
should not be required for the UAS subject to this proposed rule. As
discussed in section X of this preamble, the proposed airworthiness
acceptance regulatory framework would prevent incidents like loss of
flight or control stemming from factors such as structural integrity,
software and hardware functionality, performance attributes, and
operational factors. Specifically, the proposed design and performance
standards require the UAS to handle all expected flight and ground
stresses during its operations without compromising the UAS's safe
operation.
From a risk perspective, FAA considers UAS operations under
proposed part 108 fall between part 107 small UAS and aircraft with a
SAC.\6\ Part 108, which encompasses BVLOS operations, presents higher
risks than part 107 due to the potential for airspace conflicts with
other users, operation of larger aircraft, operation over densely
populated areas, and riskier operational use cases such as package
delivery. The intrinsic risks associated with routine BVLOS operations
of UAS require mitigations beyond what is required under part 107.
Conversely, the SAC process would require a higher level of initial FAA
oversight than would be necessary for BVLOS operations envisioned under
part 108, because it would require FAA to conduct an airworthiness
inspection of each UAS produced. Proposed part 108 airworthiness
acceptance requirements described in section X aim to mitigate those
risks and promote the safety of people on the ground and other airspace
users. FAA determined the requirements proposed in section X are
appropriate for UA without passengers or crew where airworthiness
certification under 14 CFR part 21 is more appropriate to ensure the
safety of those on board those aircraft.
---------------------------------------------------------------------------
\6\ FAA has proposed changes to the SAC process to enable
enhancements in safety and performance and to increase privileges
under a number of sport pilot and light-sport aircraft rules in the
Modernization of Special Airworthiness Certification notice of
proposed rulemaking, 88 FR 47650 (July 24, 2023).
---------------------------------------------------------------------------
Consequently, the regulatory and certification demands for BVLOS
operations are more stringent than those for part 107 but less so than
for light-sport aircraft. This intermediate positioning supports a
balance between flexibility and safety. Therefore, the Administrator
finds, pursuant to Sec. 44807(b)(2), that airworthiness certification
would be unnecessary for the UAS subject to this proposed rule. FAA
invites comments on this finding.
ii. Airman Certification
The Administrator has also determined that airman certification
[[Page 38217]]
should not be required because certification is not consistent with the
envisioned UAS and operations subject to this proposed rule. On manned
aircraft, the pilot is responsible for operational control and safety
of flight from the flightdeck. Pilot responsibilities on the flightdeck
are constructed around pilot control, including seeing and avoiding
other aircraft, interacting with air traffic control (ATC), and
monitoring instruments and displays. With the increasing autonomy of
UAS, particularly those anticipated for use under this proposal, the
role of the pilot has and will continue to decrease. The UAS industry
has increasingly come to rely on technology, rather than human
interaction or intervention, to ensure safe operation. Industry
reliance on technology rather than human interaction is driven in part
by the fact that UAS do not carry responsible persons that can control
and ensure the safety of flight from within the aircraft.
As discussed herein, the proposed personnel provisions serve to
provide personnel with the knowledge, training, and skills to operate
the anticipated UAS safely under this proposed rule. In addition, other
mitigating provisions of this rule would ensure that the risk posed by
the UAS is offset by the design requirements (section XI of this
preamble) and general operating requirements (section VI of this
preamble) that further mitigate risk as operations increase in
complexity. Therefore, the Administrator finds, pursuant to 49 U.S.C.
44807(b)(2), that airman certification would be unnecessary for the UAS
and operations subject to this proposed rule. FAA invites comments on
this finding.
B. Authority for Regulating Third-Party Services
Section 932 of FAA Reauthorization Act of 2024, Public Law 118-63,
directs the FAA Administrator to establish procedures, including
rulemaking, to approve third-party service suppliers. Those would
include suppliers of UTM services to support the safe integration and
commercial operation of UAS. In accordance with this provision, the
Administrator must ensure, to the maximum extent practicable, that
industry consensus standards are included as an acceptable means of
compliance for third-party services. Consistent with this direction
from Congress, FAA proposes to regulate third-party service suppliers
and the use of third-party services.
FAA also has authority to regulate air agencies under chapter 447
of title 49, U.S.C. FAA may issue certificates to air agencies (49
U.S.C. 44702) as well as ``examine and rate'' air agencies (49 U.S.C.
44707). Congress defined air agencies to include certain aviation
schools (Sec. 44707(1)), repair stations (Sec. 44707(2)), and ``other
air agencies the Administrator decides are necessary in the public
interest'' (Sec. 44702(3)). FAA proposes to regulate automated data
service providers that support aircraft operations using a distributed
computational system under this authority to regulate air agencies.\7\
Regulation of these automated data service providers is necessary in
the public interest. In 49 U.S.C. 40101(d), Congress identified the
following matters for FAA to consider as being in the public interest:
``assigning, maintaining, and enhancing safety and security'' and
``encouraging and developing civil aeronautics, including new aviation
technology.'' Enabling automated data services to mitigate the
potential risk that BVLOS operations could pose to the NAS would
enhance aviation safety and aid in the development of new aviation
technology.
---------------------------------------------------------------------------
\7\ 49 U.S.C. chapter 447.
---------------------------------------------------------------------------
For further discussion on the legal authority of third-party
services and FAA rulemaking procedure for regulating such services, see
section XIII.B of this preamble.
C. Authority for Regulating Noise
In 49 U.S.C. 44715, FAA has the responsibility to ``protect the
public health and welfare from aircraft noise.'' This responsibility
came with broad authority to adopt regulations and noise standards to
carry out this mandate. Historically, FAA has applied the part 36 noise
certification regulations when the agency issued type certificates as
provided in Sec. 44715(a)(3).
However, FAA has authority to apply noise standards for aircraft
with or without type certificates. As such, FAA is proposing in this
rule to exercise that authority and use a regulatory approach for UAS
operating under part 108 that would apply noise requirements as part of
airworthiness acceptance.
For further discussion on the legal authority of FAA to regulate
noise as part of the airworthiness acceptance process, see section
XII.A of this preamble.
D. Transportation Security Administration Authority
The security of the nation's transportation systems is vital to the
economic health and security of the United States. Ensuring
transportation security while promoting the movement of legitimate
travelers and commerce is a critical counter-terrorism mission assigned
to TSA.
Following the attacks of September 11, 2001, Congress created TSA
under the Aviation and Transportation Security Act (ATSA) and
established the agency's primary federal role to enhance security for
all modes of transportation. The scope of TSA's authority includes
assessing security risks, developing security measures to address
identified risks, and enforcing compliance with these measures. TSA has
broad regulatory authority to issue, rescind, and revise regulations as
necessary to carry out its transportation security functions.\8\
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\8\ See, e.g., 49 U.S.C. 114(l)(1), 44903(b).
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III. Background
A. Related FAA and Department of Transportation (DOT) Actions
FAA began developing its regulatory framework for UAS in 2012 after
Congress passed the FAA Modernization and Reform Act of 2012 (Pub. L.
112-95). Section 333 of Public Law 112-95 directed the Secretary of
Transportation to determine which types of UAS do not create a hazard
to users of the NAS or the public or pose a threat to national
security. Based on such findings, Congress directed the Secretary to
establish requirements for the safe operation of such UAS. Since the
passage of Public Law 112-95, FAA has been incorporating limited UAS
operations into the NAS using a phased, incremental, and risk-based
approach to enable UAS operations through narrowly tailored
regulations, individual grants of regulatory relief through FAA
exemptions and waivers, and by authorizations based on discrete
statutory authorities. Understanding the steps FAA has already taken to
integrate UAS into the NAS is critical to understanding why these
proposed regulations to enable scaled BVLOS operations is the
appropriate next step in this phased approach.
1. Registration and Marking Requirements for Small Unmanned Aircraft
On December 16, 2015, FAA published the Registration and Marking
Requirements for Small Unmanned Aircraft interim final rule
(Registration Rule).\9\ The Registration Rule, which established 14 CFR
part 48, enabled a simplified, web-based registration
[[Page 38218]]
system for small UA,\10\ as an alternative to the registration
requirements found in 14 CFR part 47. The Registration Rule required
all small UAS owners to register under the existing part 47 or 48 by
March 31, 2016.
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\9\ Registration and Marking Requirements for Small Unmanned
Aircraft interim final rule, 80 FR 78645 (Dec. 16, 2015).
\10\ ``Small UAS'' is defined in 14 CFR 1.1 as an unmanned
aircraft weighing less than 55 pounds on takeoff, including
everything that is on board or otherwise attached to the aircraft.
---------------------------------------------------------------------------
The Registration Rule also established marking requirements for
small UA. In accordance with that rule, all small UA must display a
unique identifier. Each small UA operated in accordance with part 107
must display a unique registration number, visible on inspection of the
small UA.
2. Operation and Certification of Small Unmanned Aircraft Systems
On June 28, 2016, FAA and DOT jointly published the Operation and
Certification of Small Unmanned Aircraft Systems final rule (the 2016
Final Rule) establishing 14 CFR part 107.\11\ Part 107 created a
regulatory structure allowing small UAS to operate within specified
parameters without requiring airworthiness certification, exemption, or
waiver. Part 107 established operational rules for certain routine
civil operation of small UAS in the NAS in a safe manner. To mitigate
risk to people and property on the ground and to other users of the
airspace, the 2016 Final Rule established operating limitations for
small UAS such as limiting operations to daylight and civil twilight,
within confined areas, and within visual line-of-sight. The 2016 Final
Rule also established airspace restrictions, remote pilot
certification, visual observer requirements, and operating limitations.
Finally, the 2016 Final Rule included a waiver provision \12\ allowing
individual operators to deviate from certain specifically identified
operating limitations if FAA found the applicant could safely conduct
the proposed operation under the terms of the COA.
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\11\ Operation and Certification of Small Unmanned Aircraft
Systems final rule, 81 FR 42064 (Jun. 28, 2016).
\12\ See 14 CFR 107.200 and 107.205.
---------------------------------------------------------------------------
3. Operation of Small Unmanned Aircraft Systems Over People
Published by FAA on January 15, 2021, the Operation of Small
Unmanned Aircraft Systems Over People final rule \13\ allowed routine
operations over people in accordance with part 107 and routine
operations at night under certain conditions without a waiver or
exemption. Under regulations implemented by the rule, the requirements
for routine operations over people vary depending on the level of risk
that operations of small UA present to people on the ground. In the
Operation of Small Unmanned Aircraft Systems Over People final rule,
FAA established four categories of permissible operations over people
based on the risk of injury they present: Category 1, Category 2,
Category 3, and Category 4. Under this rule, operations over people (in
accordance with the categories) are permitted with small UA that have
an airworthiness certificate.
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\13\ Operation of Small Unmanned Aircraft Systems over People
final rule, 86 FR 4314 (Jan. 15, 2021). Operation of Small Unmanned
Aircraft Systems Over People; Delay of Effective Date; Correction
final rule, 86 FR 11623 (Feb. 26, 2021); Operation of Small Unmanned
Aircraft Systems Over People; Delay; Withdrawal; Correction final
rule, 86 FR 3630 (Mar. 10, 2021).
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4. External Marking Requirement for Small Unmanned Aircraft
The External Marking Requirement for Small Unmanned Aircraft
interim final rule (External Marking Rule, 2019) was published on
February 13, 2019.\14\ The External Marking Rule requires small UA
owners to display the unique identifier assigned by FAA upon completion
of the registration process (registration number) on an external
surface of the aircraft. Small UA owners are no longer permitted to
enclose the FAA-issued registration number in a compartment on the
aircraft, such as inside of a battery compartment.
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\14\ External Marking Requirement for Small Unmanned Aircraft
interim final rule, 84 FR 3669 (Feb. 13, 2019).
---------------------------------------------------------------------------
5. Remote Identification of Unmanned Aircraft
The Remote Identification of Unmanned Aircraft final rule (Remote
ID Final Rule) was published on January 15, 2021.\15\ The Remote ID
Final Rule requires that UA broadcast certain identification, location,
and performance information while in-flight. The remote identification
of UA is necessary to ensure public safety and the safety and
efficiency of the NAS. Remote identification provides airspace
awareness to FAA, national security agencies, law enforcement entities,
and other government officials. The broadcasted information can be used
to distinguish compliant airspace users from those potentially posing a
safety or security risk. The Remote ID Final Rule applies to UA flown
for both recreational and commercial purposes. It allows operators to
request authorization to operate without remote identification for
aeronautical research and other limited purposes. UA manufactured for
operation in the NAS are subject to the production requirements of the
Remote ID Final Rule. There are limited exceptions in the Remote ID
regulations that allow manufacturing UA without remote identification,
including home-built UA and United States Government UA, amongst
others.
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\15\ Remote Identification of Unmanned Aircraft final rule, 86
FR 4390 (Jan. 15, 2021); Remote Identification of Unmanned Aircraft;
Delay final rule, 86 FR 13629 (Mar. 10, 2021).
---------------------------------------------------------------------------
6. Modernization of Special Airworthiness Certification Notice of
Proposed Rulemaking and the Safety Continuum
On July 24, 2023, FAA published the Modernization of Special
Airworthiness Certification (MOSAIC) NPRM.\16\ The MOSAIC NPRM proposed
enabling enhancements in safety and performance and would increase
privileges under several sport pilot and light-sport aircraft rules.
The proposed language in the MOSAIC NPRM would also expand the types
and characteristics of aircraft that sport pilots may operate. The
proposed changes would increase the suitability of light-sport category
aircraft for flight training, limited aerial work, and personal travel.
As the MOSAIC NPRM notes, FAA is updating the requirements for light-
sport aircraft due to a developed understanding about the purposes and
flexibilities of light sport aircraft. This development is framed in
the context of the safety continuum. As noted in the MOSAIC NPRM, FAA
bases the rigor of certification requirements and operational
limitations on a safety continuum that looks at public exposure to risk
for each aircraft and operation. As the risk increases due to increased
operating privileges and aircraft capability, so do the requirements
and corresponding rigor of requirements and procedures for aircraft and
airman certification.\17\
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\16\ Modernization of Special Airworthiness Certification notice
of proposed rulemaking, 88 FR 47650 (Jul. 24, 2023).
\17\ 88 FR 47653.
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The safety continuum represents the targeted level of safety
because of FAA regulation, guidance, and oversight, which changes based
on risk and societal expectations of safety. FAA uses the safety
continuum to determine the appropriate level of regulatory oversight
for a variety of aircraft, from small UAS to large transport category
aircraft. The differing targeted level of safety balances the needs of
the flying public, applicants, and operators while facilitating both
the advancement of safety and the encouragement of technological
innovation.
[[Page 38219]]
Light-sport aircraft appear at the low end of the safety continuum
for manned operations because of its aircraft design and recreational
use. As a result, there is less FAA oversight. Given there is no pilot
nor passengers on board UAs, FAA has decided UA operations involve less
risk and should fall lower on the safety continuum than light sport
aircraft. Therefore, UAS operations under parts 107 and 108 are
positioned on the lower end of the safety continuum and FAA is
proposing a level of oversight for part 108 operations are positioned
between the oversight for part 107 small UAS and MOSAIC aircraft. The
reasons for this placement and for more information as to risk, please
see section III.A of this preamble.
B. Use of Exemptions, Type Certificates, and Waivers
The intent of this proposed rule is to provide a predictable,
stable, and transparent regulatory construct that enables scaled BVLOS
operations. Presently, UAS operators looking to conduct BVLOS
operations require some level of regulatory relief by way of exemption
or waiver.
1. Exemptions for UAS BVLOS operations
The exemption process has proven to be a useful tool for FAA to
enable operations that cannot be conducted under part 107, particularly
for operations using UA weighing 55 pounds or more.\18\ However,
operating by exemption often requires navigating a labyrinth of
regulations designed for both manned and unmanned aviation to determine
from which regulations exemption should be sought to operate UAS BVLOS.
Each exemption is specific to the operation that the petitioner is
pursuing, but typically the exemptions include relief from certain
requirements of parts 91 and 135 that are not compatible with UAS
operations. This section describes the history of using the exemption
process for UAS operations and what the exemption process requires.
This background is intended to help draw out how this rulemaking will
move UAS operations from the limits of ``enablement though exemption'',
which requires case-by-case assessment and contributes to the current
``patchwork'' of rules and exemption precedents that today's operators
rely on, to ``enablement by rule'', in which a right-size regulatory
framework could streamline how FAA enables operation, manufacture, and
supporting services of BVLOS UAS.
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\18\ The 55 lb. weigh limit for UAS operating under part 107 is
not waivable under Sec. 107.205.
---------------------------------------------------------------------------
In the early 2010s, prior to the development and implementation of
the regulatory framework of part 107 (the 2016 Final Rule), FAA relied
on the flexibility provided in section 333 of Public Law 112-95 to
allow certain UAS operations in the NAS by way of the FAA exemption
process. Under the section 333 authority, the Secretary of
Transportation was granted the authority to determine if an
airworthiness certificate was necessary for safe operation of a UAS.
While this statutory flexibility permitted FAA to issue thousands of
exemptions, the regulatory framework resulting from the 2016 Final Rule
created a much more stable, transparent, and scalable system for early
civil UAS operations and this process of evolving from operation by
exemption to operation by rule is a precursor to FAA's objectives
through this proposed rule.
Section 347 of the FAA Reauthorization Act of 2018 (Pub. L. 115-
254) granted the Secretary the authority to determine, using a risk-
based approach, which UAS may operate safely in the NAS. Congress
further extended this discretionary authority to determine if an
airworthiness certificate was necessary and clarified that the
Secretary may determine if an airman certificate under section 44703
was necessary. This authority, codified at 49 U.S.C. 44809, was further
extended in the FAA Reauthorization Act of 2024.\19\ The FAA
Reauthorization Act of 2018 also established an additional avenue for
limited recreational operations under 49 U.S.C. 44809.
---------------------------------------------------------------------------
\19\ Per updates to 49 U.S.C. 44807 as provided by Sec. 927 of
FAA Reauthorization Act of 2024 (Pub. L. 118-63), the authority to
determine if certain UAS are safe for operation the NAS rests with
the Administrator the of FAA rather than with the Secretary of
Transportation.
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Section 44807 grants the Administrator of FAA the authority to use
a risk-based approach to determine if certain UAS may operate safely in
the NAS on a case-by-case basis. The requirements for petitioning for
an exemption are codified in 14 CFR part 11. Under 14 CFR 11.15, a
petition for exemption is a request to FAA by an individual or entity
(``petitioner'') asking for relief from the requirements of a
regulation. Under 14 CFR 11.81, petitioners must include the following
information in their petitions for exemption: name, mailing address,
and other contact information (such as email or fax number); the
specific section or sections of 14 CFR from which they are seeking
exemption; the extent of relief that is being sought and the reason for
seeking relief; the reasons why granting this request would be in the
public interest, that is, how this exemption would benefit the public
as a whole; the reasons why granting the exemption would not adversely
affect safety, or how the exemption would provide a level of safety at
least equal to that provided by the rule from which exemption is
sought; a summary that FAA can publish in the Federal Register that
states the rule from which the exemption is sought along with a brief
description of the nature of the exemption sought; any additional
information, views, or arguments available to support the exemption
request; and, if a petitioner wants to exercise the privileges of their
exemption outside of the U.S., the reason why the petitioner needs to
do so.
FAA recommends that the petitioner review all FAA guidance to
ensure that the petition includes all necessary information, if
relevant, including concept of operations, operations manual, emergency
procedures, checklists, maintenance manual, training program, flight
history (hours, cycles, accidents), and a safety risk analysis.\20\ The
safety risk analysis is required for all complex operations for any
proposal that includes, but is not limited to, flight over or in the
proximity of people, flight beyond visual line of sight, operation of
multiple UAS, operations from a moving vehicle, package delivery, part
135 operations, or ground speeds. Guidance for the safety risk analysis
can be found in FAA Order 8040.4, Safety Risk Management Policy, and
FAA Order 8040.6, UAS Safety Risk Management Policy.
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\20\ FAA, Section 44807: Special Authority for Certain Unmanned
Aircraft Systems (Mar. 20, 2024), available at www.faa.gov/uas/advanced_operations/certification/section_44807.
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FAA has issued thousands of exemptions using the 49 U.S.C. 44807
authority described herein.\21\ Many of
[[Page 38220]]
these exemptions permit the use of UAS for agricultural operations,
including thousands of exemptions enabling agricultural operations with
UAS over 55 pounds. Agricultural spraying operations comprise the vast
majority of exemptions for UAS above 55 pounds, with over 1,700
operator certificates issued for agricultural operations at the time of
publication of this proposed rule. FAA-issued exemptions also include
advanced UAS operations reflected in four precedent-setting exemptions
issued in fall of 2023 expanding BVLOS operational capabilities and
supporting the Unmanned Traffic Management Operational Evaluation.\22\
FAA has also issued several exemptions for UAS operators operating
under part 135. Upon obtaining their exemption(s), operators must then
seek operational approval, typically by obtaining an operating
certificate under 14 CFR part 135 or 137, depending on the operation
type.
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\21\ Prior to the finalization of the 2016 Final Rule, FAA had
granted numerous exemptions to unmanned aircraft operators for
purposes such as experimental operations, agricultural operations,
BVLOS and other various use-case applications. These exemptions were
granted with minimal Part 61 pilot certification requirements to the
remote pilot-in-command. Examples include unmanned aircraft
agricultural operations only requiring the remote pilot-in-command
to possess a private pilot certificate or even in later cases a
minimum of remote pilot certificate, as opposed to similar
operations with manned aircraft that require a commercial pilot
certificate. The 2016 Final Rule obviated the need for exemptions
for this particular relief for UA under 55 pounds with the
establishment of a part 107 remote pilot certificate but did not
extend to UA weighing 55 pounds or more. The first exemption to
substitute a part 61 commercial pilot certificate with a part 107
remote pilot certificate with additional training requirements under
these circumstances was to DroneSeed Co., Exemption No. 17936. FAA
subsequently issued several grants of exemption allowing the use of
a remote pilot certificate for commercial operations with UA above
55 pounds, although requiring a second-class medical certificate. In
November 2022, FAA issued a grant of exemption to Amazon Prime Air
permitting them to conduct BVLOS operations with a UA weighing 55
pounds or more and requiring the pilot-in-command to hold a part 107
remote pilot certificate with a third-class medical certificate,
Exemption No. 18601B.
\22\ See Phoenix Air Unmanned, LLC, Exemption No. 20973,
Regulatory Docket No. FAA-2023-1827, available at
www.regulations.gov/document/FAA-2023-1827-0009; uAvionix
Corporation, Exemption No. 21097, Regulatory Docket No. FAA-2022-
0921, available at www.regulations.gov/document/FAA-2022-0921-0013;
Zipline International, Inc. Exemption No. 19111B, Regulatory Docket
No. FAA-2020-0499, available at www.regulations.gov/document/FAA-2020-0499-0033; UPS Flight Forward, Exemption No. 18339D, Regulatory
Docket No. FAA-2019-0628, available at www.regulations.gov/document/FAA-2019-0628-0029.
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Exemptions are issued on a case-by-case basis and each exemption
petition is individually assessed by FAA. This process can be time and
resource-intensive for operators. This proposed rule is intended to
level the playing field for operators by offering a well-defined and
purpose-built set of regulations for the operation, manufacture, and
supporting services for BVLOS UAS operations. Furthermore, this
proposed rule should foster innovation and growth among U.S. businesses
in this market and simultaneously allow these businesses to serve a
larger U.S. customer base.
2. Type Certification for UAS
Furthermore, FAA also allows UAS manufacturers to pursue type
certification for their UAS. However, the type certification process
was not designed for UAS, which have shorter expected lifespans than
manned aircraft, do not carry people, and are redesigned easily and
often by manufacturers. As such, the type certification pathway may not
be the most appropriate path for most of the operational uses
envisioned for these aircraft. Like the exemption process, operators
using a type certificated UAS must then seek operational approval,
typically under 14 CFR part 135 or 137 depending on the operation type.
3. Current Use of Waivers for UAS
In addition, FAA continues to use the flexibility of the waiver
process in issuing waivers for more complex operations under part 107.
FAA has issued thousands of waivers since the 2016 Final Rule. Since
the Operation of Small Unmanned Aircraft Over People final rule
eliminated the need for most night waivers, the most common types of
waivers granted in recent years have been for altitude limitations,
BVLOS operations, operation of multiple UA, and operations over people.
Waivers are processed faster than exemptions and submission and
approval of them has improved as UAS operators have become more
familiar with the appropriate safety cases. FAA recognizes the
flexibility that comes with waivers and, as noted in various sections
below, many of the proposed requirements of part 108 are subject to
waiver.
C. Beyond Visual Line of Sight Aviation Rulemaking Committee
On June 8, 2021, FAA established the UAS Beyond Visual Line-of-
Sight Operations ARC with the goal of providing recommendations to FAA
for performance-based regulatory requirements to normalize safe,
scalable, and economically viable UAS BVLOS operations that are not
receiving the provisioning of Air Traffic Management (ATM)
services.\23\ This ARC took a holistic approach in recommending a
performance-based regulatory framework for BVLOS operations.
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\23\ FAA, UAS Beyond Visual Line-of-Sight Operations Aviation
Rulemaking Committee, Aviation Rulemaking Committee Charter (Jun. 8,
2021), available at www.faa.gov/regulations_policies/rulemaking/committees/documents/media/UAS%20BVLOS%20ARC%20Charter%20(eff.%206-
8-2021).pdf.
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FAA requested that, at a minimum, the ARC's recommendations clearly
address requirements to support the following concept of operations
(ConOps): long-line linear infrastructure inspections, industrial
aerial data gathering, small package delivery, and precision
agriculture aircraft operations, including crop spraying. The ARC did
not specifically address aircraft or operations carrying passengers or
crew, nor did it address the integration of operations for which ATM
services are being provided.
The ARC's final report was submitted to FAA on March 10, 2022.\24\
In this report, the ARC provided an extensive list of recommendations
to FAA. Overall, the ARC recommended that FAA set an acceptable level
of risk for UAS that is consistent across all types of operations being
performed. The ARC also recommended a series of modifications to the
right-of-way rules in Low Altitude Shielded Areas (within 100 feet of a
structure or critical infrastructure as defined in 42 U.S.C. 5195c) and
in Low Altitude Non-Shielded Areas (below 400 feet above ground level
(AGL)) to accommodate UAS operations. The ARC's report provided
comprehensive recommendations that the UAS industry argued would enable
BVLOS operations by regulation, including package delivery by UAS, in a
safe and economically viable manner. In addition, it provided
recommendations for developing a regulatory approach to enable the use
of third-party services to support UAS BVLOS operations.\25\ As
discussed throughout this preamble, FAA considered the recommendations
provided by the BVLOS ARC in developing this proposed framework.
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\24\ Unmanned Aircraft Systems Beyond Visual Line of Sight
Aviation Rulemaking Committee Final Report (``BVLOS ARC Report'')
(Mar. 10, 2022), available at www.faa.gov/regulations_policies/rulemaking/committees/documents/index.cfm/document/information/documentID/5424.
\25\ Section XIII of this preamble discusses the ARC
recommendation regarding third-party services in greater detail.
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D. BVLOS Operations and International Leadership
Establishing a regulatory framework for BVLOS operation that
enables several valuable use cases would establish the U.S. as a global
leader in UAS operations. Home of the Wright Brothers and the Chicago
Convention, the U.S. has long been a leader in aviation and has claimed
many firsts in this industry including the first powered airplane, the
home of the pilot who flew the first solo transatlantic flight, and the
first pilot to break the sound barrier.\26\ For UAS, however, the
[[Page 38221]]
United States has strong peers competing for leadership in this space.
Globally, several countries have taken significant steps to enable
BVLOS operations including China, the United Kingdom, Ireland,
Australia, Japan, and Rwanda.\27\ Key to other countries' successes is
that these other countries have provided the UAS industry with a clear
regulatory framework that facilitates the scaling of BVLOS operations.
---------------------------------------------------------------------------
\26\ Vaughn College, Greatest First Flights in Aviation History
in Honor of Aviation History Month (Nov. 14, 2019), available at
www.vaughn.edu/blog/greatest-first-flights-in-aviation-history-in-honor-of-aviation-history-month/.
\27\ Commercial Drone Alliance, U.S. Global Leadership in
Aviation at Stake: Scaled BVLOS UAS Operations Around the World
(Nov. 27, 2024).
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There are several recent examples of countries advancing the
integration of UAS operations into their airspaces, including BVLOS
operations. In June of 2023, Canada's Minister of Transport announced
standardized BVLOS rules for small and medium drones.\28\ In 2021, the
European Aviation Safety Administration (EASA) adopted three
regulations that together create the conditions necessary for both
drones and manned aircraft to operate safely and has begun the gradual
implementation of U-space, a type of airspace designated for safely
integrated operation of manned and unmanned aircraft.\29\ The U-space
approach provides cooperative airspace for manned and unmanned aircraft
where the manned aircraft are equipped with technology to enable
sharing airspace with the UAS. Australia and the EU have also published
guidance for BVLOS operators seeking to fly using the specific
operations risk assessment (SORA) framework developed by the Joint
Authorities for Rulemaking on Unmanned Systems (JARUS).\30\ In
Shenzhen, China, a commercial drone company made over 100,000 drone
deliveries in 2022, demonstrating UAS logistics at scale.\31\ In
Rwanda, UAS are regularly deployed to transport blood and medicines to
hospitals in remote regions and these programs have existed as early as
2016.\32\
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\28\ Minister of Transport Announces Canada's first proposed
drone safety regulations for beyond visual line-of-sight operations,
Transport Canada (Jun. 23, 2023), available at www.canada.ca/en/
transport-canada/news/2023/06/minister-of-transport-announces-
canadas-first-proposed-drone-safety-regulations-for-beyond-visual-
line-of-sight-operations.html.
\29\ Drones: Commission adopts new rules and conditions for
safe, secure and green drone operations, Directorate-General for
Mobility and Transportation, European Commission (Apr. 22, 2021),
available at transport.ec.europa.eu/news-events/news/drones-
commission-adopts-new-rules-and-conditions-safe-secure-and-green-
drone-operations-2021-04-22_en.
\30\ See European Aviation Safety Agency, Specific Category--
Civil Drones, available at www.easa.europa.eu/en/domains/drones-air-
mobility/operating-drone/specific-category-civil-
drones#Registration%20of%20drone%20operators; see also Civil
Aviation Safety Authority. Beyond visual line of sight operations,
available atwww.casa.gov.au/drones/flight-authorisations/beyond-
visual-line-sight-operations#HowtorenewyourBVLOSflightapproval.
\31\ See Zeyi Yang, Food delivery by drone is just part of daily
life in Shenzhen, MIT Technology Review (May 23, 2023), available at
www.technologyreview.com/2023/05/23/1073500/drone-food-delivery-shenzhen-meituan.
\32\ See World Economic Forum, Medicines from the sky: how
drones can save lives (Apr. 21, 2020), available at www.weforum.org/stories/2020/04/medicines-from-the-sky-how-a-drone-may-save-your-life/; see also World Economic Forum, Medicine from the Sky:
Opportunities and Lessons Learned from Drones in Africa (Mar. 2021),
available atwww3.weforum.org/docs/WEF_Medicine_from_the_Sky_2021.pdf.
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Foreign commercial aviation authorities (CAAs) enabling BVLOS
operations through their own regulatory frameworks have fostered
attractive environments for U.S. companies to expand their operations
abroad. Today, U.S. companies are performing BVLOS operations abroad
including in Italy, the U.K., Rwanda, and Japan.\33\ An overarching
goal of this proposed rule is to encourage U.S. UAS companies to
expand, innovate, and thrive domestically. A robust domestic UAS BVLOS
operating environment could spur technological innovation, bolster U.S.
aerospace manufacturing, provide services like package delivery to
large swaths of the public, create skilled jobs, and secure the U.S. as
a leader for UAS BVLOS operations, UTM, and UAS manufacturing.
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\33\ Italy Chosen For Amazon Prime Air Service In Late 2024,
Intrieste (Oct. 20, 2023), available at www.intrieste.com/2023/10/20/italy-chosen-for-amazon-prime-air-service-in-late-2024/; Jack
Daleo, Google's Wing to Use Drones to Fly Blood Between London
Hospitals, Flying Magazine (Sep. 17, 2024), available at
www.flyingmag.com/modern/googles-wing-to-use-drones-to-fly-blood-between-london-hospitals/; Jack Daleo, Rwanda launches nationwide
drone delivery service with Zipline, Freight Waves (Dec. 15, 2022),
available at www.freightwaves.com/news/rwanda-launches-nationwide-drone-delivery-service-with-zipline; Skydio Secures Nationwide BVLOS
Approval for Remote Drone Operations In Japan, Skydio (Jun. 6,
2023), available at www.skydio.com/blog/nationwide-bvlos-approval-for-remote-drone-operations-in-japan.
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Due to the relatively low cost of highly capable UAS technology,
hundreds of thousands \34\ of new operators have entered the aviation
community. This significant increase in the volume of UAS and UAS
operators, as well as the rapid advancement of UAS technologies, has
created significant opportunities--and challenges--for the integration
of UAS into the United States airspace. These UAS in the NAS pose new
challenges and risks but safety remains paramount for FAA. Through
research, industry partnerships and feedback, and regulatory changes,
FAA has made steady progress toward integrating UAS operations of
varying complexity in the NAS in a safe, timely, and equitable manner.
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\34\ FAA, Drones by the Numbers, available at www.faa.gov/uas.
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In proposing this rule, FAA fully expects that the scope and
frequency of UAS operations in the NAS would increase as BVLOS
operations become normalized. FAA also appreciates that this proposal
would open a new range of opportunities and possible concepts of
operations for local communities interested in leveraging the benefits
of UAS. FAA emphasizes that it is important for community leaders,
local elected officials, and operators to ensure that the general
public is informed and engaged in early planning discussions and that
the individuals involved in planning the operation have a clear plan
for how they will respond to the public's interest, questions, and
concerns about operations occurring in local communities. FAA will
support community leaders, local elected officials, and operators with
responding to the public in its role as a regulator and encourages
localities and operators to leverage best practices for community
engagement in introducing UAS operations.\35\
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\35\ For more information regarding legal considerations
applicable to state and local regulation of UAS, please see FAA and
DOT's 2023 Fact Sheet, available at www.faa.gov/sites/faa.gov/files/State-Local-Regulation-of-Unmanned-Aircraft-Systems-Fact-Sheet.pdf.
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IV. UAS Integration Into the NAS
A. Enabling UAS BVLOS Operations
FAA has long intended to develop a regulatory framework for more
advanced UAS operations, enabling the more complex operations that
industry has successfully demonstrated at small scale using waivers and
exemptions. Waivers, exemptions, and other authorizations, such as
operations conducted at UAS Test Sites or through the Integration Pilot
Program \36\ and BEYOND \37\ initiatives, have safely enabled numerous
BVLOS operations including infrastructure inspection, package delivery,
and surveillance. These operational advancements have occurred within
the existing aviation regulatory framework, one that did not imagine
the types of technologies that could, at a minimum, replace the human
eye or that could coordinate operations through decentralized
automation platforms. To realize the
[[Page 38222]]
next phase in UAS operations, FAA proposes a new set of regulations
specific to UAS.
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\36\ Available at www.faa.gov/uas/programs_partnerships/completed/integration_pilot_program.
\37\ Available at www.faa.gov/uas/programs_partnerships/beyond.
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UAS technology, as well as the various systems that support it, has
advanced faster than the regulatory framework. Having clear regulations
and guidance about how to operate BVLOS is essential for future
integration of UAS. This rule proposes requirements for airworthiness
acceptance, operating requirements, and a framework for automated data
service providers to enable scalable, repeatable, and safe BVLOS
operations.
The airworthiness and operating requirements would reside in part
108 of title 14 of the CFR, a new part that represents FAA's commitment
to a regulatory framework that permits increasingly complex UAS
operations while building on the knowledge gleaned from existing rules.
The proposed requirements for automated data service providers would
reside in new part 146. This proposed framework would provide assurance
that operations can be conducted safely, but also within the
appropriate position on the safety continuum. As discussed throughout
this rule, FAA recognizes that type certification may not be the most
appropriate regulatory regime for the safe operation of proposed part
108 aircraft, nor may the airman certification structure of manned
aviation be appropriate for these types of operations.
Proposed part 108 would enable UAS BVLOS operations through design,
procedural, and operational requirements. Operations traditionally
accomplished through manned aviation could be executed more safely and
at greater scale than currently conducted. In this context, UAS, using
programmed paths managed by third-party services, operating BVLOS, can
offer alternatives to manned aircraft to perform the same function
safely. UAS can supplement tasks that would otherwise be accomplished
by surface transportation or individuals, which could have a positive
impact on safety. A UA can fly over crops distributing pesticide or
fertilizer without the need for a person to fly a full-sized aircraft
low to the ground and risk an accident or pilot exposure to chemicals.
Enabling BVLOS operations could have a transformative impact on
logistics. Life-saving medicine, equipment, or even human organs can be
transported rapidly between points, without having to contend with
traffic congestion, or requiring a pilot to fly a helicopter into a
high-risk situation. Local regulatory authorities can use UAS to
inspect the underside of bridges or check the integrity of the railroad
tracks that crisscross the wide expanse of the United States, both more
efficiently and more safely than is possible without UAS. UAS-based
collection and analytics can inspect more energy production,
transmission, and storage infrastructure per day compared to a manual,
ground-based inspection, which significantly increases the opportunity
to detect and remedy leaks and other issues.
Through the proposed airworthiness acceptance process, operational
and personnel frameworks, and standards for automated data service
supply, the level of risk proposed in this rulemaking would be
equivalent to the level of acceptable risk in part 107, but for more
complex aircraft and operations. Part 107 notably did not require any
airworthiness certification or design standards, instead fixing the
weight at 55 pounds and relying on operating limitations to ensure safe
operation. In the 2016 Final Rule, FAA acknowledged the biggest
concerns for risk were the inability of a pilot to maintain safe
separation from other aircraft and the possibility of a loss of control
in flight due to a failure of the control link. The risk-based approach
in part 107 has proven to be safe and effective for operations
conducted within VLOS.
As we have seen through existing operations that we have enabled
through exemptions and waivers, the existing technological tools to
enable these operations are generally already available, and need only
a repeatable, scalable regulatory framework that would allow the
various potential benefits that UAS BVLOS operations could provide to
be realized. This can also be seen through the new and novel approaches
FAA has seen implemented through special programs such as BEYOND. Under
existing systems, operators can equip a UAS with technology that will
detect other aircraft, both manned and unmanned, and program it to
avoid other aircraft in a consistent, safe manner. Similarly, should a
mechanical malfunction occur, the technology is able to avoid impacting
people through pre-programmed flight responses. This use of technology,
in combination with management of the areas within which the UAS
operates, helps mitigate the risks involved in these operations, as
described in this preamble.
The regulations under this proposal would also ensure that
operators address and manage cybersecurity risks. To that end, this
proposed rule would require cybersecurity policies be in place for most
operators. The security of computers and networked systems is an
overarching goal. Operators under proposed part 108, with the limited
exception of recreational operators, would be required to assess and
monitor cybersecurity risks continuously and take appropriate
precautions to protect their operations from being compromised on an
ongoing basis.
The part 107 framework for small UAS operations prioritized
individual responsibility for operations, placing the burden of safe
operations on the remote pilot in command. While there is merit in this
approach, it does not always align with the way UAS are used,
especially in a BVLOS operation. This proposed rule would place
responsibility at a corporate level, utilizing flexible approaches to
training, operations personnel duty assignment, and development of
manuals, while also providing the flexibility to allow operators to
make risk-based decisions to conduct operations safely. Under this
proposed rule, the person exercising control over the operation would
not be certificated by FAA. Instead, FAA proposes to require an
operations supervisor who would act on behalf of the company and be
responsible for the overall safety and security of the operation,
including ensuring that operations are conducted within the parameters
of the applicable requirements and that personnel are appropriately
trained for their role. The position would also demand knowledge of the
relevant regulatory requirements, as well as company procedures and the
specific requirements associated with the UA used in their operations.
In addition, this rule proposes the utilization of flight coordinators,
if required by the aircraft design, who would have more direct
involvement in the operation of a UA and would similarly require
training in safe operation.
This proposed rule is designed to assess and manage risks to people
and property on the ground and other users in the NAS while allowing
the growth of UAS operations. The main factors considered in assessing
the risks are the industry-consensus standards that inform the design
of the UAS, the weight, speed, and size of the UA, the environment it
is operating in or over, technological mitigations to include strategic
deconfliction, conformance monitoring, and DAA capabilities, and what,
if anything, it is transporting.
Under proposed part 108, many types of operations would take place
over people. One significant risk factor for these operations would
depend on the number of people the UA is operating over. Proposed part
108 would address a variety of operating environments. To
[[Page 38223]]
present an accurate and consistent picture of population, FAA is
proposing the use of LandScan, a Federally sponsored and freely
accessible set of population data. LandScan provides a basis for
operational categories to allow complex operations over areas with
increased population density, with both technological and operational
requirements to ensure continued safety.
In proposed part 108, operations would be conducted primarily below
400 feet AGL (unless authorized by the Administrator to go higher), and
this rule would establish new requirements to allow for safe operations
BVLOS in this more integrated airspace. UAS operating under part 108
would be required to yield right of way to traffic broadcasting their
position using Automatic Dependent Surveillance-Broadcast (ADS-B) Out
equipment. Under proposed part 108, strategic deconfliction would be
required for operations over certain populated areas, and operations in
controlled airspace would require strategic deconfliction, conformance
monitoring, and the ability to detect cooperative and non-cooperative
aircraft in certain airspace classifications. Operators would need to
be aware of factors such as the location, weather, obstacles, and other
traffic to ensure safe operation, even as they may not be physically
present at the flight operation.
As discussed in section III.A.5 of this preamble, FAA is
approaching airworthiness in the context of a safety continuum that
considers exposure of the public to risk for each aircraft and
operation. Whereas traditional manned aircraft generally require a type
certification or special airworthiness certification to operate in the
NAS, FAA is proposing a process that would ensure public safety while
also being mindful of the level of appropriate rigor associated with
the operational envelope of UA operating under proposed part 108. While
type certification is appropriate for manned operations, it does not
necessarily follow that the time, resources, or requirements for type
certification are appropriate to allow safe operation of UAS under
proposed part 108. With airworthiness acceptance and industry consensus
standards, FAA is proposing a process that will provide a more time and
resource appropriate avenue to allow more complex UAS operations while
appropriately mitigating risk. FAA is also proposing changes that will
streamline compliance with UAS noise requirements. FAA recognizes that
a fast and efficient process is critical as the UAS technology is
constantly changing. A particular model of UAS may only be produced for
a matter of months before substantial changes occur and a new version
is produced. A lengthy approval process would not only slow
advancement, but the costs would be greater to implement design
improvements. Thus, the airworthiness acceptance, as proposed under
part 108, will allow the use of industry consensus standards and a
streamlined acceptance process.
Likewise, FAA proposes a streamlined approach for operations. An
operator would apply for authorization to operate using a UA that holds
an airworthiness acceptance. Proposed part 108 has a two-level
framework that manages risk in an efficient manner: permits and
certificates. A smaller-scale operator can apply for an operating
permit, which could be issued with sufficient oversight in a prompt and
efficient manner. For those operators wanting to expand by operating
larger aircraft in size or number, operating over larger concentrations
of people, or conducting higher risk or more complex operations, an
operating certificate would be required. This certificate would be more
akin to operating certificates in traditional aviation and would entail
a higher level of interaction with FAA for both issuance and oversight
of the certificate.
FAA further proposes new part 146 to create requirements for the
standards and establish FAA oversight of automated data service
providers. As part 108 enables UAS BVLOS operation, data is critical to
the safe and effective operation of these aircraft, as the ability to
operate BVLOS is predicated on the fidelity and assurance of the data.
To support the operational and airworthiness requirements of part 108,
FAA proposes part 146 to enable those providing these services to
obtain certification and defines minimum performance standards for
those services using industry consensus standards. Proposed part 146 is
essential for laying the groundwork for the next step for UAS
operations and providing a service approval pathway that could be used
to support other types of operations, both manned and unmanned, in the
future. This proposal would ensure operators have options in the
services that they use depending on their needs, while being assured
that they meet a standard that will keep the public safe. And by
keeping the regulation flexible, and allowing operators to choose the
service they need, future technological innovations would be recognized
while allowing choice by the part 108 operators and competition among
the part 146 service providers.
B. Need for Automated Data Service Providers
An automated data service provider is a person or company who
provides an automated data service using a distributed computational
system to support or manage aircraft operations, promoting safety and
efficiency of the operation. Automated data service providers may or
may not be directly involved in the aircraft operation but would
nonetheless support the operation before or during its flight.
Automated data service providers would add an important layer of safety
and risk mitigation benefits to the operating requirements proposed in
this rulemaking. To realize those benefits to scale, FAA proposes to
regulate automated data service providers and their services under
proposed part 146.\38\
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\38\ See section XIII of this preamble for further discussion on
FAA's proposal to regulate automated data service providers and
authorize their services.
---------------------------------------------------------------------------
Not all automated data services and providers of those services
would be subject to proposed part 146. Only those that provide services
to support an aircraft operators' ability to comply with an FAA
requirement by promoting the safety and efficiency of the operation
would be subject to part 146. FAA would not, nor intends to, regulate
an entity that does not fall under its purview; as such, providers of
automated data services that are not provided to support an aircraft
operators' ability to comply with an FAA requirement or do not impact
NAS safety nor efficiency would not be enabled through proposed part
146.\39\
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\39\ Strategic deconfliction is one example of an automated data
service that would be promulgated under proposed part 146. Strategic
deconfliction would significantly scale UAS BVLOS operations under
proposed part 108. Using strategic deconfliction, a UAS operator can
strategically deconflict flight paths, thereby operate safely in the
NAS. In contrast, automated data services providers providing fleet
management services to aircraft operators would not be regulated
under proposed part 146. Fleet management services are used by
operators to fulfill a business need, not a safety objective, thus
would not be regulated under proposed part 146. For a detailed
discussion on the scope and applicability of automated data services
and providers of those services under proposed part 146, see section
XIII.E of this preamble.
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FAA selected the term ``automated data service provider'' to avoid
confusion with terms used to describe services provided by FAA's Air
Traffic Organization, which are not subject to this rulemaking. In
addition, in presentations and discussions, FAA personnel and industry
stakeholders have also used terms such as ``third-party service
suppliers'' and ``UTM
[[Page 38224]]
service providers.'' The term automated data service provider is
intended to cover both of those terms. The selected term would also
include persons and companies that self-provision their own services
(often referred to as vertically integrated companies), as well as
persons and companies that provide distributed services dependent on
ground-based sensors or equipment--sometimes referred to as
Infrastructure-as-a-Service. In addition, the term ``automated data
service providers,'' and part 146 in general, may apply to companies
that are new to aviation and market a specific product to UAS
operators, such as mobile network operators that have a UAS-specific
command-and-control (C2) link offering.\40\
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\40\ Under proposed part 146, all these terms referring to UTM
servicers or third-party servicers and the providers of such
services would fall within the umbrella term of automated data
service provider. Whether the automated data services are self-
provided or outsourced to a third-party, any entity that provides
automated data services to support an aircraft operation complying
with an FAA regulation would be subject to proposed part 146
regulations.
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Automated data services may fulfill a variety of purposes,
including mitigating risk, depending on their exact functionality. For
example, automated data services that provide strategic coordination
for UAS operations reduce the risk of midair collision between UA,
thereby reducing the risk of harm to people and property due to falling
debris from that midair collision. Other kinds of automated data
services may support operators' DAA responsibilities, including by
providing surveillance information or avoidance maneuvering
instructions that could be more comprehensive or accurate than those
the operators may provide using their own systems. Automated data
services may also help operators avoid controlled flight into terrain,
or loss of control, by providing operators with specialized data before
and during flight operations to manage a variety of risk factors.
FAA recognizes that it might not be feasible for some UAS operators
to provide all the services and functionality necessary to meet BVLOS
safety requirements in-house. This could be for a variety of reasons,
including resource and technical knowledge constraints. Automated data
services may provide a cost-effective, safe, and scalable means for
those UAS operators to meet some of the regulatory requirements in part
108. As a result, automated data services that meet the minimum
requirements proposed in this rule would provide a viable set of
alternative solutions to ensure operational safety and regulatory
compliance without placing undue restrictions or responsibilities on
UAS operators.
FAA expects that automated data service providers will deploy
services to meet emerging demands and capabilities, some of which are
yet to be developed. These services may be based on emerging industry
standards that will develop to meet market demands. Recognizing the
rapid pace of technological change, FAA proposes a flexible regulatory
structure designed to enable the recognition of new services as future
standards are designed. Section XIII of this preamble provides the
framework for regulating automated data service providers and their
services.
C. Definitions (Sec. 108.5)
FAA proposes to add several definitions in Sec. 108.5 that are
unique to operations conducted under proposed part 108. FAA is
proposing definitions for AE, C2 link, conformance monitoring, DAA,
flight coordinator, ground control station, hazardous material, life-
limited part, operational intent, operations personnel, package
delivery, safe distance, strategic deconfliction, strategic conflict
detection, strategic conflict resolution, and target average
conformance. These terms have specific meanings and usage in part 108
that may be unfamiliar to readers, or their usage in part 108 is
specifically important to the new UAS framework. These definitions
would help the public understand the context of how these terms are
used and identify their specific usages throughout part 108. FAA
invites comments on the use of the terms and the associated language
used in the definitions, as well as if any definitions are not needed,
or if any definitions should be added to the list. Discussion and
further context for the definitions included in this section can be
found in the pertinent sections of the preamble.
V. Part 108 General Requirements (Subpart A)
Currently, most UAS operations in the United States fall under part
107, which applies to small UAS operated within VLOS of the remote
operator. Since larger and more complex UAS operations are not covered
by part 107, nor are operations permitted beyond VLOS under part 107
without a waiver, UAS operators continue to rely on requesting
regulatory exemptions and waivers to allow them to conduct such
operations. While FAA has utilized the flexibility of the existing
structure broadly to permit increasingly complex and advanced UAS
operations, the current regulatory framework impedes full integration
of all operations into the U.S. airspace. FAA seeks to fulfill its
regulatory responsibility of ensuring the safety and efficiency of the
NAS by facilitating the increased integration of UAS into the NAS and
realizing UAS operational benefits. Therefore, FAA proposes to enable
complex UAS operations, specifically those conducted BVLOS of the
operator, under the proposed structure of part 108.
FAA understands that expanding UAS operations may introduce certain
safety risks to the NAS. As part of addressing those safety risks,
proposed part 108 would require new sets of processes and guidelines
for UAS BVLOS operations, including requirements for UAS operators and
maintenance personnel.
Under this proposed rule, FAA would require all UAS operators to
obtain either an operating permit or an operating certificate to
conduct their UAS operations under this part. Operators without an
operating permit or certificate would not be allowed to operate under
proposed part 108. Under this proposed rule, whether a UAS operator
applies for a part 108 operating permit or an operating certificate
would depend on the scale and overall risk of their UAS operation. FAA
expects that presenting UAS operators with those two options would
cultivate a flexible approach for operators to obtain the necessary
credentials to then be able to comply with the requirements of this
proposed part.\41\
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\41\ See section VIII of this preamble for the process of
obtaining a part 108 operating permit or certificate.
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Under this proposed rule, FAA would require operators who wish to
conduct BVLOS operations using an operating permit to comply with
subpart D of part 108. Likewise, operators who wish to conduct BVLOS
operations using an operating certificate would be required to comply
with subpart E of proposed part 108. For a discussion on the
distinction between part 108 operating permits versus operating
certificates, see section VIII of this preamble.
Regardless of whether an operator holds an FAA-issued operating
certificate or an FAA-issued operating permit, the proposed rule would
require all part 108 operators to comply with the applicable operating
rules under subpart B. Subpart B of proposed part 108 would prescribe
the general rules of engagement that each operator would need to abide
by in order to conduct UAS BVLOS operations under part 108, including
preflight operating
[[Page 38225]]
requirements and regulations related to operating BVLOS over people. A
further discussion on general operating rules is contained in section
VI.B of this preamble. Lastly, proposed part 108 would also prescribe
operating personnel requirements under subpart C, aircraft maintenance
and alterations requirements under subpart F, and general procedural
requirements--which includes inspection requirements and prohibitions
against engaging in fraudulent or deceptive practices--under subpart A
of the proposed part.\42\
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\42\ For subpart A, General, see section V of this preamble; for
subpart C, Operations Personnel, see section VII of this preamble;
for subpart F, Maintenance and Alterations, see section IX of this
preamble.
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A. Applicability (Sec. 108.1)
Proposed Sec. 108.1 states that the requirements in proposed part
108 would apply to any person \43\ who wishes to conduct UAS BVLOS
operations in the NAS. Regarding operator requirements, as proposed in
Sec. 108.1(a), the requirements of part 108 would apply to any person
who (1) conducts, or intends to conduct, UAS BVLOS operations in U.S.
airspace; (2) requests FAA issuance of an operating permit or an
operating certificate; (3) performs maintenance on a UAS under an
operating permit or certificate issued in accordance with this proposed
part; (4) is involved in the design, manufacture, or production of UAS
to be operating in accordance with part 108; (5) requests FAA
airworthiness acceptance of a UAS in accordance with subparts G and H
of this part; or (6) submits a voluntary consensus standard for
acceptance or approval by FAA as a means of compliance for any
provision of part 108.
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\43\ Per 14 CFR 1.1, a person is described as an individual or
an entity, including a corporation, company, association,
governmental entity, etc.
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In addition to noting who part 108 would apply to, FAA is also
proposing specific exclusions from part 108 to delineate between the
different regulations that UAS could be operated under. As proposed in
Sec. 108.1(b), part 108 would not be applicable to any persons who
choose to conduct UAS operations under 14 CFR part 107 or part 91.
In addition, UAS operations conducted under the recreational flyer
provisions of 49 U.S.C. 44809 would not be subject to this rulemaking.
FAA anticipates that certain operations such as agricultural, package
delivery, aerial surveying, photography, and flight testing currently
conducted under waivers or exemptions to 14 CFR part 107, 91, or 135
would transition to the operations under part 108 when their exemptions
expire, and a reasonable transition can occur. For operations that
would not fall within the proposed operating requirements of part 108,
FAA believes those operators who are currently complying with FAA
requirements to conduct safe and efficient UAS operations may continue
to do so in accordance with their existing framework. Proposed part 108
is not intended to fulfill the need for every type of operation related
to UAS but rather would expand the types of operations that can be
conducted under existing FAA regulations.
FAA considered whether it would be appropriate to amend part 107 or
to add an additional subpart to proposed part 108 to provide a
regulatory path for certain VLOS operations with aircraft weighing 55
pounds or greater with less automation than envisioned for
airworthiness acceptance under this proposed part. Ultimately, FAA
determined that adding a VLOS subpart to proposed part 108 would
unnecessarily complicate the rule, as the risk mitigations under this
proposed part rely on minimal human intervention to manage risk for
BVLOS operations of larger aircraft with more complex operations.
Operation of larger VLOS aircraft is a different risk set than what is
being addressed in proposed part 108 and including it would add
significant complexity to the structure of this proposed rule.
In addition, at this time FAA has also opted out of expanding the
VLOS rules under part 107 to add UAS weighing 55 pounds or greater
because doing so could unnecessarily delay this proposed rule. The 55-
pound limit within part 107 functions as a significant risk mitigation
in VLOS UAS operations and increasing the weight threshold would
require FAA to either develop new risk mitigation measures or have
sufficient data to establish that operations can be safely conducted at
a higher weight threshold with no additional risk mitigation measures.
Also, FAA is unable to gauge the public's need or desire for VLOS
operations of aircraft weighing 55 pounds or greater where the operator
cannot, or would be seriously disadvantaged to, meet the airworthiness
or operational requirements proposed for part 108. While FAA
anticipates that there may be business cases in which manually operated
UA equal to or exceeding 55 pounds may be the best option, FAA expects
these cases to be limited in number based on current operations.
Further, FAA's intention with proposed part 108 is to create a
regulatory framework for greatly expanded UAS operations with new and
more capable UA, not to create a retrofit model for existing UAS with
limited lifespans. Nevertheless, FAA recognizes that there are many
existing UAS weighing 55 pounds or greater that are currently operating
under an exemption to part 91 and those types of operations will be
able to continue as they always have. FAA invites comments on whether
there is a need or desire to expand part 107 for VLOS UAS operations
weighing 55 pounds or greater. FAA also considered updating the
relevant part 91 regulations \44\ that are not currently in alignment
with operations of a UA and are frequently the cause of exemptions
needed for operators choosing to operate under that part. FAA, however,
has opted out of updating part 91 in this way because doing so could
unnecessarily prolong this rulemaking. In addition, FAA is unsure how
great the need would be for part 91 exemptions after the framework for
part 108 is put into place. Finally, FAA invites comments on the
assumptions above related to parts 91 and 107, and areas where FAA may
be lacking information.
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\44\ FAA has granted relief from several regulations within 14
CFR; notably, from Sec. Sec. 91.7(a), 91.109(a), 91.119(b),
91.119(c), 91.121, 91.151(a), 91.151(b), 91.209(a)(1), 91.403(b),
91.405(a), 91.407(a)(1), 91.409(a)(1), 91.409(a)(2), 91.417(a),
91.417(b), among other sections of part 91.
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It is important to note that, while proposed part 108 enables the
operation of UA BVLOS, there is no prohibition from operating within
VLOS under proposed part 108, so long as all the regulatory
requirements are met. To illustrate this, an aircraft weighing less
than 55 pounds that is to be operated within VLOS would have several
options for which part they could operate under. They could operate
under part 107, proposed part 108, part 91, or 49 U.S.C. 44809. Each
regulation has its own set of unique requirements and allowances. An
operator would have to meet all relevant requirements associated with
the regulatory part they choose to operate under.
Proposed part 108 is not intended to be used for carriage of
people. The risk mitigations provided by this part are not sufficient
for passenger carriage nor were they designed with carriage of people
in mind. To that end, FAA proposes in Sec. 108.1(b)(4) that UA
operated under part 108 are not permitted to carry a person. Operations
contemplating carriage of people would appropriately occur under other
regulatory parts, such as 14 CFR parts 91 or 135.
[[Page 38226]]
B. Reporting and Prohibitions
1. Reproduction or Alteration (Sec. 108.10)
FAA expects that all parties affected by this proposed rulemaking
would comply with FAA requirements when conducting UAS BVLOS operations
under proposed part 108. Engaging in fraudulent or deceptive practices
would be prohibited under proposed part 108, as it is under all
existing FAA regulations.\45\
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\45\ As proposed in the Falsification, Reproduction, Alteration,
Omission, or Incorrect Statements notice of proposed rulemaking (89
FR 8560), FAA intends to use a comprehensive prohibition on
fraudulent or deceptive practices that covers all FAA regulations.
If that rule becomes final, proposed Sec. 108.10 would be
redundant.
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Proposed Sec. 108.10(a) would prohibit anyone from making any
fraudulent or intentionally false statement to any information
submitted to FAA to show compliance with proposed part 108. Persons
would be prohibited from fraudulently reproducing or altering an FAA-
issued operating certificate or permit. If anyone were to engage in
fraudulent or deceptive practices, proposed Sec. 108.10(b) would
enable FAA to issue penalties to those persons for their violations.
Those penalties could include issuing a denial to applications for part
108 operating permits, part 108 operating certificates, certificates of
waiver or authorizations, or declarations of compliance. Under the
proposed rule, FAA may also penalize violators by suspending or
revoking any permit, certificate, authorization, DOC, or similar that
were already issued or accepted by FAA. Lastly, anyone violating this
provision may also be subject to civil penalties.
2. Prohibition on Interference With Unmanned Aircraft Operations
Personnel (Sec. 108.15)
Proposed Sec. 108.15 would prohibit anyone from assaulting,
threatening, intimidating, or interfering with operations personnel of
a UA in the performance of their duties regarding the operation of a
UA. This requirement would be necessary to protect the safety and
efficiency of the NAS. Bad actors who interfere with UAS operations may
endanger public safety, or any persons or property--both in the air or
on the ground--which is anathema to FAA's obligation to ensure the safe
and efficient use of the NAS. FAA notes that nothing in this
requirement would preclude law enforcement, emergency services, the
intelligence community, military personnel, or FAA personnel executing
their authorized duties from intervening in operations in the interests
of national security, emergency response, or oversight and surveillance
necessary for the safety of the NAS.
3. Inspection, Testing, and Demonstration of Compliance (Sec. 108.20)
To ensure operations are conducted in accordance with existing
rules and limitations, and FAA's statutory oversight
responsibilities,\46\ Sec. Sec. 108.20(a)(1) and (2) proposes that an
operator would need to have their authorization to operate and
identification readily accessible when operating and present it to any
of the following: FAA, the National Transportation Safety Board (NTSB),
and law enforcement officers. This measure would ensure that all
operators are appropriately authorized, enhancing the safety and
security of airspace operations. This requirement would set the stage
for obligations aimed at maintaining operational integrity and
oversight. This mandate would hold the operator accountable for
unauthorized access and operation of UAS, which could result in
incidents or accidents. The proposed requirement that operators have
their authorization and identification on hand is so that government
personnel would be able to verify that the operation is authorized and
that qualified personnel are in control. This would ensure that
operations are conducted efficiently and in compliance with regulatory
standards.
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\46\ See 49 U.S.C. 44701(a)(2)(A).
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Section 108.20(a)(3) further proposes that an operator would need
to make available, upon request of FAA or any authorized representative
of the NTSB, any document, record, or report required to be kept under
the regulations of 14 CFR chapter I. By ensuring that all relevant
documents, records, and reports are readily available for inspection,
government representatives would be able to monitor compliance with
established safety standards and regulations. This oversight would be
essential for identifying potential areas of non-compliance or safety
risks that could jeopardize the safety of operations. Utilizing these
documents as part of regular and ad-hoc inspections would allow for a
proactive approach to safety management, enabling the early detection
and resolution of safety issues before they lead to accidents or
incidents.
In the aftermath of an incident, the availability of comprehensive
documentation is important for thorough investigations conducted by the
NTSB or other relevant authorities. These documents would provide a
detailed account of operational procedures, maintenance records,
personnel qualifications, and other factors that might contribute to
understanding the root causes of an incident. Access to such
information supports developing effective recommendations to prevent
future occurrences, thereby improving overall safety standards.
Section 108.20(b) proposes that each operator of UAS would be
required to, upon request, allow FAA to make or witness any test or
inspection of the UAS, including any aspect of the operation of a UAS,
and if applicable, the automated data services utilized, to determine
compliance with this part, including access to the operations area for
the aircraft. This proposed requirement is consistent with FAA's
exercise of its authority to ensure operational safety in the NAS. In
circumstances in which FAA were to identify a safety issue that
warrants review of the operation, this proposed requirement would
permit FAA review of all applicable information to make any appropriate
determinations about the safety of the operation.
The ability for FAA to perform inspections without prior notice
would ensure that operators consistently adhere to the highest
standards of safety as a fundamental practice, not just when an
inspection is anticipated. This continuous state of readiness and
compliance would safeguard not only the operators and their assets, but
also the public potential hazards.
Moreover, these inspections would serve as a feedback loop. They
would allow FAA to observe operational practices, the state of
equipment, and adherence to regulations. Such inspections would promote
transparency and accountability. By allowing FAA access to conduct
these evaluations, operators would demonstrate their commitment to
operating within existing limitations and requirements. This openness
would build trust among stakeholders, including regulatory bodies, the
public, and other airspace users.
Section 108.20(c) proposes that each employee of, or person used
by, the operator who is responsible for maintaining the operator's
records would need to make those records available to FAA. Making
records accessible to FAA would allow for thorough audits and reviews
that can verify compliance with safety standards, operational
procedures, and maintenance practices. These records would include, but
would not be limited to, logs of operational procedures, maintenance
and repair
[[Page 38227]]
records, safety assessments, and employee training records and any
other record relating to compliance.
Requiring records to be available for inspection would encourage
operators to maintain accurate and comprehensive documentation of their
operations. This practice would support continuous improvement by
facilitating regular reviews and updates to safety practices based on
insights gained from record analysis.
As part of FAA's safety oversight framework, this proposal would
require individuals holding an FAA airworthiness acceptance to make
available evidence of such acceptance and any other requisite documents
upon request. It would ensure that aircraft operating within FAA's
regulatory jurisdiction meet the safety standards, thereby protecting
the public, enhancing the integrity of the aviation industry, and
fostering continuous improvement in aviation safety.
Section 108.20(d) proposes that failure by any operator to make
available to the Administrator upon request, the certificate,
operations specifications, or any required record, document, or report
would be grounds for suspension of all or any part of the operator's
permit or certificate.
4. Aviation Safety Reporting System: Prohibition Against Use of Reports
for Enforcement Purposes (Sec. 108.25)
Proposed Sec. 108.25 would prohibit FAA from using reports
submitted to the National Aeronautics and Space Administration (NASA)
under the Aviation Safety Reporting System (ASRS) in any enforcement
action against part 108 operators. This prohibition would not apply,
however, in cases where the information submitted to NASA concerns
accidents or criminal offenses, which are wholly excluded from ASRS.
ASRS was originally created to collect aviation safety event
information from pilots, mechanics, air traffic controllers, and other
users of the NAS. Under part 107, UAS pilots operating within the VLOS
may also use ASRS to report safety events.
The prohibition in proposed Sec. 108.25 against FAA using ASRS
data in enforcement actions would be very similar to how such reports
are protected and used for part 91 pilots, part 107 UAS pilots, and
other airspace users who are subject to various portions of FAA
regulations. FAA and NASA have recognized the benefit of having
accurate, candid, and timely reports of unsafe (or potentially unsafe)
conditions in the NAS. Such data and reports are vital for proactive
and generative safety assurance, enabling FAA to identify leading
indicators of increasing risk prior to an accident or incident. As FAA
stated in Advisory Circular (AC) 00-46F, ``the effectiveness of this
program in improving safety depends on the free, unrestricted flow of
information from the users of the NAS.'' FAA is concerned that, without
such a prohibition on enforcement actions, pilots, UAS operators and
other NAS users would be disincentivized from making safety reports,
including acknowledging unintentional or honest mistakes, for fear of
being penalized by FAA.
5. Base of Operation and Operator Identification (Sec. Sec. 108.30 and
108.35)
FAA proposes in Sec. Sec. 108.30(a) and (b) that each operator
would be required to maintain a principal base of operations in the
United States and would be required to provide FAA with a physical
address. This physical address would serve as the primary point of
contact for FAA, though (per proposed Sec. 108.30(d)) the operator may
perform operations at locations other than the principal base of
operations, as authorized by FAA. Further, per proposed Sec.
108.30(c), the operator would need to notify FAA at least 30 days prior
to changing their principal base of operations. However, recreational
operators would not be required to submit a principal base of
operations, in accordance with proposed Sec. 108.475(f)(3).
Recreational operators would only be required to submit a physical
address.
By ensuring that all operators supply a physical address, FAA would
have the ability to accomplish prompt and cost-effective service of
process and service of other safety-critical or time-sensitive
documents, including notices of proposed civil penalties, orders of
suspension or revocation, and emergency orders of suspension or
revocation. In addition, as this proposed rule would only apply to
operations conducted within the United States, FAA finds it necessary
that the physical base of operations is also located in the United
States. While part 47 aircraft registration does require the aircraft
owner to provide a mailing address, FAA is including this requirement
for a principal base of operations in proposed part 108 because it is
important for FAA to know the primary location where the operator will
be conducting operations to conduct inspections. The address required
for part 47 is the owner's mailing address, which may or may not be
where the UA is located or from which it is operated.
In addition, FAA proposes in Sec. 108.35(a) that an operator would
not be able to operate or advertise services of a UA under part 108
using a business name other than what is listed on the operating permit
or operating certificate. If the operator were to operate under a d/b/
a, the business names would need to be provided on the application and
listed on the permit or certificate to be valid. Furthermore, in
proposed Sec. 108.35(b), no person would be able to operate a UA under
part 108 unless the identity of the operator is displayed on the UA in
a manner acceptable to FAA. In addition to the registration number, FAA
proposes that an operator would need to include the company name or
trademark on the exterior of the aircraft for ease of identity in the
case of a lost aircraft or off-site landing. FAA also encourages the
addition of contact information in the form of a phone number, QR code,
or other method to enable people who may come across the UA be able to
report the sighting easily.
These proposed requirements in Sec. 108.35 would be consistent
with FAA practices for other commercial operations and would ensure FAA
has sufficient information to contact the operator as necessary,
including in instances where a UA is destroyed and access to remote ID
or other electronic systems is not possible, or FAA has other reason to
contact the operator. In addition, as with other regulations applicable
to commercial operations, the proposed prohibition on advertising under
a different name would ensure that the people using the operator have
the assurance that the company is operating within the regulatory
framework established by FAA and would ensure FAA can appropriately
link the operator who is advertising with the approval for the
operation.
C. Recordkeeping (Sec. 108.40)
FAA proposes in Sec. 108.40 to require each operator under
proposed part 108 to maintain records for each aircraft used in part
108 operations, each required operations personnel used in part 108
operations, any mechanical irregularities for the UA and its AE, any
maintenance or alterations performed on the UA or its AE, and all
initial and recurrent training taken by each person required to receive
training under proposed part 108. The operator would also be expected
to provide FAA access to the records upon request, either
electronically or in paper form.
For aircraft records, FAA proposes under Sec. 108.40(a) that
operators would need to include a current list of UA used in the
permitted or certificated operation, the total time in service of each
UA, and the status of any life-limited parts. FAA and industry rely
[[Page 38228]]
heavily on current aircraft status and past aircraft servicing and
inspections to determine airworthiness of an aircraft. FAA would
therefore require these records to be kept by the operator under this
part.
FAA further proposes in Sec. 108.40(a)(3) that an operator who
performs a flight under this proposed rule would need to maintain
records of each flight, including the date, time, and duration of the
flight; the aircraft registration number; the type of operation (e.g.,
package delivery); the flight path including destination, origin, and
altitude(s); the name of the designated operations personnel assigned
to each flight; and landing locations if different from origin and
destination locations. FAA is proposing this recordkeeping to ensure
the availability of information critical to incident or accident
investigations. By requiring the operator to maintain these, FAA and
operator would have historical data to determine root causes of
occurrences, incidents, or accidents.
Proposed Sec. Sec. 108.40(a)(3)(vii) and 108.40(a)(3)(viii)
include operation type-specific recordkeeping requirements for package
delivery and agricultural operators. Under proposed Sec.
108.40(a)(3)(vii), FAA would require package delivery operators to keep
a record of the pickup points and delivery locations for each
operation. FAA is proposing this requirement in addition to
destination, origin, and landing locations because some UA do not
physically land to pick up or deliver packages and it would be critical
for FAA to know who the customers or warehousers are and where they are
located in the event of an incident or accident investigation. Under
proposed Sec. 108.40(a)(3)(viii), FAA would also require the operators
performing agricultural operations to keep a record of the name and
address of each person for whom agricultural UA services were provided,
the date of the service, and the name and quantity of the substance
dispensed be kept as a record by the operator. The rationale for this
additional requirement is that the agricultural operator may be
contracted to provide services to one or more customers, and it is
important for FAA to know who these customers are and where they are
located in the event of an incident or investigation. Oftentimes, FAA
does not discover non-compliance, accidents, or incidents involving
aircraft until after the flight has been completed. By requiring these
detailed records to be kept by the operator, FAA and operator would
have historical data to look back on to determine root causes to
occurrences, incidents, or accidents.
Because personnel are a key contributor to how any permit or
certificate holder conducts safe operations, FAA proposes in Sec.
108.40(b) that each operator would need to maintain records on each
person required for the safe operation of the UAS used in its
operations, including their full name, qualifications in sufficient
detail to determine the individual's ability to participate in part 108
operations, current duties and date of duty assignment, and information
relating to an individual's release from employment for cause. In
addition, for operators holding an operating certificate, the operator
would also need be required to maintain records on the date and times
of operations personnel assigned work shifts, the length of the rest
period prior to each duty period for each of the required personnel,
and the total hours on duty per calendar day for each of the required
operations personnel which, as discussed in VII.F, would require a
minimum of 10-hour rest periods and maximum 14-hour duty days. This
information would be valuable in understanding if persons are fit for
duty and appropriately qualified. In addition, this information would
be beneficial to FAA for continued surveillance purposes.
FAA proposes in Sec. 108.40(c) that operators would need to
provide logs for personnel to record mechanical irregularities. Having
this log would allow personnel to view current and previous
discrepancies for corrections and airworthiness of the aircraft. FAA
further proposes that operations personnel would be required to enter,
or to have entered, in the log each mechanical irregularity for the UA
and their AE that comes to the person's attention. For operators to
ensure that faulty or inoperative equipment is addressed per
manufacturers' maintenance instructions, operations personnel would
need to create a log of the faulty item should it come to their
attention. This log would ultimately be used by both maintenance
personnel for correction and operations personnel for determining
overall UA airworthiness. In addition, when entering a log of
mechanical irregularity, FAA proposes that personnel who take
corrective action concerning a reported or observed failure or
malfunction would need to enter, or need to have entered, the action
taken in the log. This would ensure that any person(s) responsible for
determining UA airworthiness can decide the UA's overall operational
status.
Further, FAA proposes that, under Sec. 108.40(d), the operator
would be required to maintain records of the UA inspection status for
each maintenance or alteration activity to the UA or its AE. It is
important for anyone operating the UA to be able to determine when the
last inspections were performed and the status of all the required
inspections as outlined in the manufacturer's maintenance instructions.
In addition, persons performing maintenance on the UA would be required
under proposed Sec. 108.40(d)(1) to make a record of that activity,
including a description of the work performed, the date of completion
of the work, the identification of the person who performed the
maintenance, and a return to service approval. These requirements would
additionally help persons responsible for airworthiness determination
to ensure proper airworthiness status of the UA by showing a complete
log of all work performed.
FAA proposes in Sec. 108.40(d)(2) that operators would not need to
comply with the logging and documenting requirements of proposed Sec.
108.40 for removal and replacement of UA batteries designed for
frequent, toolless replacement if the operator has other means of
tracking battery use, life, and performance. Some UA designs
necessitate the removal of the aircraft batteries on every flight for
charging. Aircraft designed this way are expected to have an easy,
toolless feature that prevents the battery from being installed
improperly and ensures that the battery is secure. Therefore, all of
the information generally required for other maintenance entries may
not be needed in these cases and may become overly burdensome if
required for every flight. However, FAA recognizes that batteries are
essential to most UA operations and does propose that operators would
still need a way to track battery use, life, and performance.
FAA also proposes in Sec. 108.40(d)(3) that operators would not
need to comply with the logging and documenting requirements of Sec.
108.40 for removal and replacement of UA components that are designed
for toolless removal and installation, such as removable rotors which
may be necessary to remove for UA storage, so long as the operator has
procedures for ensuring that any part that is removed is inspected for
serviceability prior to being reinstalled and: (1) the parts are
reinstalled on the same aircraft; (2) the parts are not subject to time
limits; or (3) the operator has other means of tracking installations
and use. Through current experience, FAA understands that UA often have
various removable parts that are frequently removed and replaced
without being deemed faulty. These typical parts are removed for
[[Page 38229]]
reasons such as storage or repositioning of the UA. FAA does not intend
to overburden an operator with logging and documenting parts that the
manufacturer has designed to be normally removed and reinstalled. So
long as operators have procedures for ensuring parts are removed,
inspected, and reinstalled, FAA has concluded that safety would not be
affected by not requiring logging and documenting normal removal and
reinstallation of parts.
Personnel training is of great importance, as it ensures
appropriate qualification, competency, and proficiency of a person
performing their duties. To understand each person's qualification,
competency, and proficiency, proposed Sec. 108.40(e) would require the
operator to keep a record showing personnel training. Initial and
recurrent training records are important because they show a person's
baseline qualifications and continuing proficiency. In addition to
requiring recordkeeping of all initial and recurrent training,
operators would additionally need to maintain records on initial and
recurrent training on handling hazardous materials and for agricultural
operations. As described in section VIII.C 9, these types of operations
would have additional knowledge requirements to address the use of
agricultural products. In addition, these training records would give a
snapshot of company policies and procedures at the time that the
training occurred. This may be of importance when reviewing archival
records for root cause of non-compliance or a safety incident.
FAA proposes that the records required by Sec. 108.40(e) would
need to contain the person's name, the date of hire or start of a
related job function, the most recent training completion date, a
description, copy, or reference to training materials used to meet the
training requirement, the name and address of the organization
providing the training, and a copy of the certification issued when the
individual was trained, which would show that training has been
completed satisfactorily. All of this documentation would help not only
the operator to have a complete description of the training event for
tracking, scheduling of future training, and archival documentation for
non-compliances, but also would help FAA to determine continued
compliance.
Finally, this proposal would include minimum retention periods. FAA
recognizes that operators may struggle to keep track of old records and
the necessity for archival data from those records becomes unnecessary
and non-applicable as time goes on. FAA therefore proposes that UA
records, mechanical irregularity records, and maintenance records would
need to be kept either for the life of the aircraft, or for 24 months,
as applicable. Records of the total time in service of each UA and the
status of any life-limited parts must be kept for the life of the
aircraft as they establish important history for the UA that must be
maintained. Records of each flight performed, must be retained for a
period of 24 months. Personnel records must generally continue to be
maintained as long as the employee is employed and continue until 12
months after the person has separated from the company, to include any
training performed or received, however, duty and rest records only
have to be maintained for 3 months. Records of mechanical
irregularities and maintenance performed must also be retained for a
period of 24 months.
In addition, personnel and training records would need to be
retained for 12 months following the separation of the personnel from
the operator. This amount of time would be sufficient for these records
to be useful. FAA does not want to impose on an operator record filing
that, after years of retention, may create faulty, inundated databases
with records that have not shown to be of concern within the previous
12 months. FAA proposes that initial and recurrent training records
required by Sec. 108.315, initial and recurrent training records
required by Sec. 108.440(b), initial and recurrent training records
required by Sec. 108.570(a) and records received for agricultural
operations required by Sec. Sec. 108.445(i)-(j) and 108.575(g) would
need to be retained under the proposed above requirements for 12 months
after separation.
Finally, FAA proposes that operators holding an operating
certificate would need to retain records in proposed Sec. 108.40(b)(5)
concerning the date and times of operations personnel assigned work
shifts, the length of the rest period prior to each duty period for
each of the required operations personnel, and the total hours on duty
per calendar day for each of the required operations personnel for a
period of 3 months. Information contained in these records are related
to individual flights. FAA would use this type of data during routine
surveillance inspections to determine individual flight compliance with
regulations. FAA does however recognize the burden that would be
imposed on an operator should records for multiple flights be required
to be kept for long periods at a time. Operator databases would be
overloaded with data. During routine surveillance, FAA typically
reviews samplings of this type of data to determine overall compliance.
FAA does not see the need to retain lengthy archival data concerning
individual flights.
D. Reporting (Sec. 108.45)
FAA has a duty to ensure the safety of the NAS. To do so, FAA needs
to be aware of accidents, incidents, and precursor safety events and
occurrences in the NAS. The reporting requirements proposed in Sec.
108.45 are intended to capture a diverse set of data ensuring that FAA
can appropriately track and monitor the safety of UAS operations under
this part.
In Sec. 108.45(a)(1), FAA proposes that each operator would be
required to report aggregate flight data to FAA. This data would
include the total number of flight hours operated for each individual
UA, including the specific make, model, or series of aircraft and the
associated FAA registration number. This data would be helpful for
three reasons. First, it would support FAA's safety oversight
functions. By collecting flight data, FAA would gain insights into UAS
operations. This information would help FAA identify potential risks,
and areas for improvement. Second, this data would be useful in
identifying trends that could otherwise lead to accidents or incidents.
Monitoring flight hours would allow FAA to track usage patterns and
identify any anomalies or excessive usage. This would also aid in
preventing accidents due to overuse or fatigue-related issues. Third,
reporting flight data would ensure compliance with regulations by
enabling FAA to verify that operators are adhering to their operational
limits.
In Sec. 108.45(a)(2) FAA proposes requiring operators to provide
flight data to the manufacturer or permit and facilitate flight data
collection by the manufacturer to ensure continued operational support
for the operator. Traditionally, these data collection systems are
already voluntarily implemented within the industry to analyze flight
data to aid in the identification of safety issues with the UA design.
FAA envisions that this could be accomplished by submitting the data
log file to support both Sec. 108.725 and Sec. 108.905. In Sec.
108.45(b), FAA proposes requiring each operator to report the
registration and serial numbers of each aircraft used in part 108
operations. This report would need to be made in a form or manner
acceptable to the Administrator. FAA notes in proposed Sec. 108.45(b)
that this reporting can be combined with the flight data reporting
required under
[[Page 38230]]
proposed Sec. 108.45(a). Requiring this reporting allows FAA to easily
determine an operator's compliance with Sec. 108.115 as well as to
ensure ongoing regulatory compliance.
In Sec. 108.45(c), FAA proposes that operators would be required
to submit a monthly interruption report summary to FAA when there is an
occurrence related to an unplanned or precautionary landing away from
the normally designated landing location or where the planned UAS route
is altered due to known or suspected mechanical difficulties or
malfunctions. By analyzing these occurrences, FAA would gain insights
into common failure modes. This information would inform maintenance
practices and would help improve reliability--including potential
changes that the manufacturer may need to make or that can be addressed
through revisions to industry consensus standards. Aggregated reports
would allow FAA to assess the overall health of a growing and diverse
fleet of UAS. This would inform regulatory decisions, training
programs, and safety best practices, among other outcomes. Taken
together, these reporting requirements would serve as essential tools
for maintaining safety, compliance, and operational efficiency.
FAA further proposes that operators certificated under subpart E
would be mandated under Sec. 108.45(d)(1) to report to the UA
manufacturer any failure, malfunction, or defect that results in a
momentary or permanent loss of control or communication of the UAS if
it has endangered, or may endanger, the safe operation of the UA. Under
the proposed rule, operators would also have to provide such reports to
FAA upon request. FAA's intent for this proposed requirement is that
this information could be used by the manufacturer to monitor and
identify negative trends affecting the safe operation of the UA and its
AE. Reporting reliability issues to the UAS manufacturer would provide
a vital source of data to help detect and mitigate potential hazards
and improve aircraft design. Safety reporting can provide precursor
data before a hazard leads to a more significant event. By analyzing
these events, industry may be able to avoid future incidents or
accidents.
Operators would need to include specific details in their reports,
including the date, aircraft identification and nature of the failure.
Furthermore, FAA proposes in Sec. 108.45(d)(1) that service difficulty
reports would also need to include identification of a part or system
involved, which aids in pinpointing root causes and assessing overall
system reliability. FAA also proposes in Sec. 108.45(d)(1) requiring
operators to indicate the apparent cause of the failure, malfunction,
or defect. This could include factors such as wear, cracks, a design
deficiency, or a personnel error on the part of the operator.
Regardless of what the cause is, understanding the root cause would
inform better preventive measures. To assist manufacturers in
determining the best course to address a service difficulty report, FAA
also proposes in Sec. 108.45(d)(1) that operators would need to report
any corrective actions taken.
The service difficulty reporting requirements for operators to
report to automated data service providers in proposed Sec.
108.45(d)(2) would substantially mirror those discussed in proposed
Sec. 108.45(d)(1), albeit with several notable exceptions. The
requirement to make service difficulty reports related to service usage
would apply to all users of a service, not just operational certificate
holders. Because the operational use of automated data services is new,
FAA wants to enable greater information exchange between users and
service providers when the failure, malfunction, or defect of an
authorized service has endangered or may endanger the safe operation of
the aircraft. This proposed rule would require that users report
details of the apparent failure of an automated data service, which
could include operational or functional issues including notification
of a contingent state, interface issues, data issues, time delay/
latency issues, or the operational response to information or alerts
from a service. FAA intends for this to be broad so that users and
service providers alike can recognize a range of issues, including
systemic incorrect usage of a service that may be due to ambiguities in
documentation, design, or other factors.
Prompt reporting of service difficulties of not later than 7 days
after the occurrence would enable manufacturers and automated data
service providers to play a proactive role in assessing and mitigating
potential safety risks. By reporting to the aircraft manufacturer or
the automated data service providers, operators would contribute to a
broader understanding of real-world performance and reliability. This
feedback would inform design improvements, corrective actions, and
other sets of standards upon which the airworthiness acceptance and
service authorization rely. Therefore, in proposed Sec. 108.45(h)(4),
FAA proposes that reporting under (d)(1) and (d)(2) would need to occur
no later than 7 days after the occurrence.
FAA proposes several security-related reporting requirements in
Sec. 108.45(e). Any security breach where an operator loses control of
the UAS would need to be reported to FAA. This would include
unauthorized control that may be careless in nature or perpetrated by a
malicious agent, regardless of if that individual is an employee or an
outsider. Furthermore, an operator would need to report unauthorized
access to the operator's facilities, including areas where UAS are
loaded, hazardous materials are stored, or goods are prepared for
transport. Finally, an operator would need to report unauthorized
access to the operator's networks, devices, or data, regardless of its
impact on UAS operations' integrity, accuracy, or reliability. In the
report for any incident, the operator would need to include the date
and time of the incident, the nature and scope of the incident,
identification of any vulnerabilities that led to loss of control or
unauthorized access, and corrective actions taken. These security-
related reporting requirements would work in conjunction with similar
requirements FAA proposes for aircraft manufacturers (sections X and
XI) and automated data service providers (section XIII). Reporting
security incidents would ensure that potential threats are identified
and addressed promptly and contributes to national security by
preventing misuse of UAS technology. Reporting would allow FAA to
investigate breaches, assess vulnerabilities, and implement corrective
measures. It also would help prevent future incidents. Reporting such
breaches helps safeguard critical data and maintain public trust.
FAA proposes in Sec. 108.45(f) that part 108 UAS operators report
any deviation from this part in the event of an emergency within 10
days, excluding Saturdays, Sundays, and federal holidays. While
emergencies may necessitate deviations from standard procedures,
reporting these deviations would ensure transparency and accountability
on the part of the operator, and may provide insights into operational
challenges that could inform changes in training or operational
policies.
FAA proposes in Sec. 108.45(g) that operators must report to FAA
any operation of a UA that involves damage to property, other than the
UA, which exceeds $500, and for any malfunction or failure of any
system that leads to operations into an unauthorized area. Note that
these reports are in addition to the reporting of aircraft accidents
and
[[Page 38231]]
serious incidents required under 49 CFR 830. FAA chose not to add a
duplicative reporting requirement as FAA would also receive these
notifications in due course through that regulatory process. FAA
intends to use the data both to track overall safety performance and to
establish and update relevant safety policies for ongoing BVLOS UAS
operations under the rule. Reports under proposed Sec. 108.45(g) would
need to include the date, time, and location of the event, as well as a
description of the event (including operational factors including
whether use, failure, malfunction, or defect of an automated data
service provider was a factor) and any known contributing factors. FAA
proposes requiring reports within 10 days of the event. This would be
consistent with the corresponding reporting requirement in proposed
Sec. 107.20.
Finally, FAA proposes in Sec. 108.45(h) reporting timeframes for
each reporting requirement enumerated under proposed Sec. 108.45.
Under the proposed rule, flight data and UA registration and serial
numbers (Sec. Sec. 108.45(a) and 108.45(b)) would need to be provided
to FAA at least once each calendar month. FAA intends to provide an
automated interface to facilitate the collection of this data and
anticipates that most manufacturers and operators will incorporate
automation to comply with this request, so that data collection could
be as frequent as near real-time, weekly, or any other frequency that
is at least once a month. As this is a new requirement, FAA invites
comments on the impact this might have on operators, including
potentially less-burdensome alternatives.
Summaries of occurrences under interruption reports (Sec.
108.45(c)) would need to be provided no later than the end of the 10th
day of the following month in which the occurrence took place, which
would be consistent with other similar requirements in other
regulations.\47\ Service difficulty reports (Sec. 108.45(d)) would
need to be submitted 7 days after the occurrence, with additional
information provided as needed to supplement the initial report which
is also consistent with similar requirements.\48\ Security occurrences
(Sec. 108.45(e)) would need to be reported no later than 96 hours
after the occurrence, with supplemental information after the initial
report as needed, which would be a new requirement but is being
proposed as a 96-hour requirement due to the nature of the information.
Emergency conditions and event reporting (Sec. Sec. 108.45(f) and (g))
would need to be submitted within 10 days of the deviation or event,
respectively.
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\47\ See, e.g., 14 CFR 135.417, 14 CFR 121.705, 14 CFR 91.1417.
\48\ See, e.g., 14 CFR 135.415, 14 CFR 121.703, 14 CFR 125.409.
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Lastly, in considering appropriate reporting requirements for
operations under part 108, FAA is considering requiring UA operators to
report to FAA all aircraft traffic targets received by their UA
operating under this part. This would include reporting ADS-B targets
used to meet Sec. 108.195 and part 89 compliant remote ID received by
the operator's UA. The latter remote ID reporting requirement would
have required additional aircraft reception capability that is not
explicitly required by the proposed part 108 rule. This reporting
requirement would allow FAA to have a more comprehensive awareness of
operations within airspace used by part 108 operators. It would allow
FAA to better respond to governmental or public inquiries about UAS
operations as low altitude UAS operations increase in scale. However,
the presumed additional cost to meet the reporting requirement for the
UA manufacturer, part 108 operator, and FAA is considerable. FAA
requests comment on whether FAA should require this traffic target
reporting, and if so, what type of general time latency would be
appropriate for FAA to require.
VI. Conducting UAS BVLOS Operations (Subpart B)
Subpart B of proposed part 108 prescribes the general operating
requirements for all operators conducting operations under proposed
part 108. To conduct UAS BVLOS operations in the NAS under this
proposed rule, FAA would require part 108 operators to comply with all
applicable requirements of this part. As noted in proposed Sec.
108.100(a), this rule would establish two pathways for operation under
part 108, operating permits and operating certificates. Subpart B
applies to operations conducted under an operating permit (subpart D)
and operations conducted under an operating certificate (subpart E).
Further description of the operating permits and certificates can be
found in section VIII of this preamble and personnel requirements can
be found in section VII of this preamble.
This rule proposes requirements for BVLOS operations conducted
within the United States, using risk-based criteria that permit further
evolution of operations than currently allowed in existing regulations.
The below section lays out FAA's reasoning and proposed requirements
for a BVLOS operating framework, while this section describes the
overall requirements applicable to all BVLOS operations envisioned
under this rule.
Proposed part 108, like part 107, would have specific risk
mitigation and hazard reduction provisions that would facilitate
integration. The requirement for all part 108 operations to have a
means to avoid manned aircraft broadcasting their position using ADS-B
Out equipment would extend to Class G airspace, providing additional
collision risk reduction compared with the strategic mitigations
provided through the regulatory requirements of part 107. In addition,
UAS would be required to have anti-collision lighting that conforms to
an industry standard to ensure that they are visible to manned
aircraft.
To meet the requirements of proposed part 108, operations under
this proposed part would require the use of a registered aircraft
(section VI.A.2) with an airworthiness acceptance received in
accordance with subparts G and H of part 108, with an exception for
flight testing. The UA and its AE would be required to be equipped with
aircraft lighting (section VI.A) and be in safe condition for operation
(section VI.B). This rule proposes to permit operations in both
uncontrolled (section VI.F) and controlled airspace (section VI.G),
with operations limited to 400 feet AGL and below. Access to controlled
airspace would depend on the operator holding an approved method for
strategic deconfliction and conformance monitoring, as discussed in
section VI.I.
This rule also proposes a set of criteria by which operators could
operate over people (section VI.H). These criteria would rely on a
population distribution data set called LandScan USA, developed by the
Oak Ridge National Laboratory, and define categories and criteria for
operation. This rule would continue to prohibit operations over open-
air assemblies.
In order to enable operations in controlled airspace and over
people, this rule also proposes requirements for strategic
deconfliction (section VI.I), changes to right-of-way rules (section
VI.J), and Remote ID performance (section VI.K). These three proposed
requirements would provide a framework for the kind of shared, dynamic
environment FAA anticipates this proposed rulemaking could enable. In
addition, this rule sets requirements for shielded operations (section
VI.L), which would permit BVLOS operations within 50 feet of an
obstacle or a structure or other designated areas, without further
authorization. The
[[Page 38232]]
proposed rule would permit operations with multiple UA (section VI.M).
Finally, this rule proposes requirements to prohibit careless or
reckless operation (section VI.N), manuals (section VI.O), and
emergency conditions (section VI.P).
A. Operating Unmanned Aircraft Under Part 108
As explained in section X of this preamble, FAA is proposing that a
UA operating under this rule would be required to have an airworthiness
acceptance rather than an airworthiness certification. Because an
individual UA evaluation by FAA would not take place, FAA would
additionally require under proposed Sec. 108.720(a)(1) that the
manufacturer develop limitations for the UAS to be operated as
specified in the manufacturer's UAS operating instructions. This
requirement would ensure that operators do not exceed the
manufacturer's operational limits on the UA, which could lead to UA
failure. Under this proposed rulemaking, manufacturers would develop
and test UA to meet consensus standards for FAA airworthiness
acceptance. Manufacturers would need to demonstrate that the UAS design
may be safely used in BVLOS operations in accordance with FAA-accepted
consensus standards.
Accordingly, to operate under proposed part 108, operators would be
required to use a UA that holds an airworthiness acceptance, as noted
in proposed Sec. 108.105(b), except for UA operated under the flight
test permit of proposed Sec. 108.470. These UA and AE would need to be
in condition for safe operation and, per proposed Sec. 108.105(a),
meet the equipage requirements of subpart H, further described in
section XI. These equipage requirements to meet proposed Sec.
108.105(c) would provide the assurance that the aircraft would be able
to operate safely, including the fidelity of the AE, suitability and
durability of materials, and lighting requirements.
1. Aircraft Lighting (Sec. 108.110)
Using an anti-collision lighting system or position lights on UA
would provide a means for a manned aircraft pilot to observe UA. As
such, FAA has proposed in Sec. 108.110 that aircraft lighting would be
required for operations under part 108. Proposed Sec. 108.110(a) would
require operators to use an anti-collision lighting system during all
flight operations, day or night, except when in the interest of safety,
as discussed below. To comply with proposed Sec. 08.110(a), the anti-
collision lighting system would need to meet the requirements of
proposed Sec. 108.830. In addition, proposed Sec. 108.110(b) would
require operators use lighted position lights during all operations at
night when operating a UA that is equipped with position lights per the
requirements of proposed Sec. 108.835.
An anti-collision light is designed to minimize the risk of
collision with other aircraft while airborne. Anti-collision lighting
usually consists of white pulsating strobe-type lights. The bright
flash of an anti-collision light is typically the first visual a pilot
has at night of another aircraft, allowing pilots to take appropriate
actions to avoid collisions. Under this proposal, anti-collision lights
would be required during all operations, as the use of the anti-
collision lights can always provide awareness of an aircraft operation
prior to and during flight.
As stated in Sec. 108.110(c), this proposal would also permit the
flight coordinator to reduce the intensity of, or turn off, the anti-
collision lighting if they determine that, because of operating
conditions, it would be in the interest of safety to do so. FAA
anticipates that there may be situations, primarily during takeoff and
landing, where the flight coordinator may want to either reduce the
intensity of or turn off the anti-collision lighting due to close
proximity with the flight coordinator or other persons on the ground.
Allowing the flight coordinator to reduce the intensity of or turn off
the anti-collision lighting during takeoff and landing would help to
maintain the flight coordinator's full night vision adaptation, which
generally takes 30 minutes after exposure to bright lights. If the
flight coordinator were to lose their night vision adaptation from
exposure to the anti-collision light, they might no longer be able to
ensure that the takeoff or landing area is clear for operations.
The primary purpose of requiring lighted position lights on UA
during night operations is to enhance the visibility of these aircraft
to other airspace users. This requirement would help prevent midair
collisions and ensure safe distance between aircraft, particularly in
areas of high traffic density or when operating in proximity to manned
aircraft. Position lights would make it easier for pilots of manned
aircraft and other UA operators to see and track UA, thereby
facilitating better situational awareness and decision-making in
flight.
Enforcing the use of lighted position lights at night would align
with existing regulations for manned aircraft, promoting a consistent
and predictable environment for all airspace users. This requirement
would ensure that UA are visible to other pilots and air traffic
control, thereby supporting safer coexistence and minimizing the risk
of incursions or airspace violations.
2. Registration (Sec. 108.115)
Per 49 U.S.C. 44101, all aircraft operated in the NAS must be
registered with FAA. No person is allowed to operate a UA unless it has
been registered by its owner, unless the aircraft meets a limited
exception from registration.\49\ There are currently two ways to
register a UAS. Part 47, which broadly applies to all aircraft,
including UA, and part 48, which provides an alternate route to
register a small UA, defined as those weighing less than 55 pounds.
Since part 108 would cover operations of UA weighing greater than 55
pounds, part 48 could not be used for all part 108 operations without
making significant changes to part 48. FAA has determined that it is
appropriate for UA operated under part 108 to follow the existing
registration structure set out in part 47. Though small UA may operate
under part 108, FAA is proposing that all aircraft conducting part 108
operations would be required to follow the registration procedures of
part 47, as proposed in Sec. 108.115(a). As a result, FAA is proposing
to amend Sec. 48.1, Applicability, to require small UA that operate
under 108 to use the registration procedures of part 47.
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\49\ Section 48.105 Registration: Small unmanned aircraft
intended exclusively for limited recreational operations adds an
exception to the general registration requirement for small UA for
recreational flyers. In those cases, a Certificate of Aircraft
Registration issued in accordance with Sec. 48.110 constitutes
registration for all the small UA used exclusively for operations in
compliance with 49 U.S.C. 44809 owned by the individual identified
on the application.
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The web-based registration process under part 48 was designed as an
alternative streamlined system for the registration and marking of
small UA. Aircraft records created under part 48 only contain a minimal
amount of data, such as the owner's name, email address, physical
address, and phone number, the manufacturer and model of the UA, and
the standard remote identification serial number or remote
identification broadcast module serial number, if applicable. The part
48 database cannot house document images, such as transfers, security
conveyances, or airworthiness applications and certificates. Such
documents would likely be commonplace for part 108 UAS. Therefore, any
UAS operating under part 108 would be required to register under part
47 (e.g., an N-number), regardless of weight. To facilitate this,
[[Page 38233]]
FAA is also proposing to amend the applicability under part 48 to
restrict the registration of small UA operating under part 108, in
addition to small UA that hold an airworthiness certificate. UA
operating under part 107 may continue to be registered under the
requirements of part 48.
The aircraft registration requirements in part 47, along with the
requirements pertaining to the recording of aircraft title and security
documents in part 49, necessitate a filing and recording system for the
collection of ownership and financial interests in aircraft. FAA
Aircraft Registry is the official repository for all title and security
documents affecting an interest in aircraft and all airworthiness
applications and certificates. Contrary to part 48, part 47 does not
restrict the eligibility for aircraft registration based on aircraft
weight.
It is possible that a UA currently registered under part 48 could
obtain airworthiness acceptance under proposed part 108. However, to be
operated under part 108, the aircraft would need to be registered under
part 47. While it is not possible to transfer a part 48 registration to
part 47, due to the nature of the registrations and the necessary
information for each, a current part 48 registration holder could
cancel that registration and then submit a new application for a part
47 registration.
While FAA proposes to amend part 47 to apply its registration
requirements to part 108 operators, the Agency also considered allowing
registration under part 48 or even imposing registration requirements
in part 108 itself. If the registration requirements were implemented
under part 108, they would be tailored to the particularities of
operations under this rule. This could eliminate requests for
information that are not available to UAS operators and issuing proof
of registration other than a physical registration certificate. FAA
requests comment on a potential registration process tailored to UAS
operations under this part.
B. General Operating Rules (Sec. 108.120)
FAA proposes in Sec. 108.120(a) that operations conducted under
part 108 would need to be conducted with a UAS that is in a condition
for safe operation, including both the UA and the AE. Proposed Sec.
108.120(a) would prohibit an operator from initiating or continuing a
flight if they know or have reason to know that the UA or the AE are no
longer in a condition for safe operation. As noted in the 2016 Final
Rule, FAA considers safe operation to be essential to ensure overall
safety of flight. Determinations made of the overall condition of the
UAS include an evaluation based on the make, model, age, type and
completeness of continued maintenance and inspections of the aircraft
and AE. The varied designs of possible UAS mean that FAA cannot
prescribe every possible condition that could render a UAS unfit for
operation. An unsafe condition could include damage to the structure of
the UA, damaged or inoperative flight control systems, data link
failures, or damage to propulsion systems.
FAA proposes in Sec. 108.120(b) that operations conducted under
part 108 would need to be conducted in accordance with the
manufacturer's operating instructions or other procedures acceptable to
FAA. While the manufacturer's operating instructions would be the
authoritative source of the limits and capabilities associated with the
operation of the UA, as discussed in section X.G, FAA recognizes that
some operators may have additional operational considerations that may
require deviations from the operating instructions defined by the
manufacturer. In those circumstances, the operator may request
additional operational flexibility from FAA by demonstrating how the
operation could still be safely conducted. Possible permutations could
include different ratios of flight coordinator to aircraft operations
or operating environment conditions not considered by the manufacturer.
FAA proposes in Sec. 108.120(c) that, except for operations
conducted under a flight test permit under Sec. 108.470 or in
accordance with Sec. 108.555, operations conducted under part 108
would need to be conducted with properly installed and operational
instruments and equipment. The manufacturer, as required under proposed
Sec. 108.720, would develop a list of parts necessary for the safe
operation of the aircraft, or a list of equipment that is allowed to be
inoperative.
Finally, as proposed in Sec. 108.120(d), FAA proposes that persons
occupying this position would be directly responsible for, and be the
final authority as to, the safe and secure operation of all aircraft
under their purview. If a company has multiple operations supervisors,
each operations supervisor would only be responsible for the operations
of aircraft in their assigned responsibility. Similarly, FAA proposes
to require that the operations supervisor ensure that the operator
complies with all applicable regulatory requirements and its operations
manual. Accordingly, the operations supervisor should demonstrate skill
in ensuring safe operations and in management. This role would oversee
the entire operation, or where multiple operations supervisors are
used, their specific areas of responsibility. They must have knowledge
of all other roles involved, as well knowledge of the UA, the AE, and
flight plans. Though other personnel may be responsible for performing
individual safety-of-flight actions, both before and during flight, the
operations supervisor holds the overall responsibility and is the final
authority for safe operations. The operations supervisor would also be
responsible for ensuring that all applicable personnel are properly
trained and knowledgeable before an operation commences. FAA proposes
in Sec. 108.140 that operations conducted under part 108 would be
limited to a speed equal to or less than what is prescribed in the
manufacturer's operating instructions. The aircraft manufacturer is in
the best position to know the design limits for the aircraft that they
produce. FAA chose to use groundspeed because most small UAS lack the
equipment to determine true airspeed and generally rely on technologies
such as Global Positioning Systems (GPS) to determine UA speed.
However, this poses some challenges. If a UA has a strong tailwind, it
is possible that the true airspeed might be very low. As such, FAA
recognizes that some UA may need to operate at higher ground speeds to
maintain a minimum safe operating speed and FAA would provide relief
for an operator to exceed the stated groundspeed in the manufacturer's
operating instructions in those operating conditions.
FAA proposes in Sec. 108.140(b) that operations conducted under
part 108 would be limited to a weight equal to or less than specified
for the type of operating permit or operating certificate that the
operator is using for that operation. The weight would include the
weight of the UA as well as the weight of any items attached to or
carried by the UA. While part 108 would allow operations with varying
sizes of UA weighing not greater than 1,320 pounds, FAA has proposed
weight limitations associated with different types of operations to
further mitigate the risks associated with BVLOS operations. For
further information about the specific weight restrictions, see the
descriptions of permitted and certificated operations in section VIII.
FAA proposes in Sec. 108.145 that operations conducted under part
108 would not be allowed to be conducted in weather conditions other
than those described in the manufacturer's
[[Page 38234]]
operating instructions. In developing a UA for airworthiness acceptance
under part 108, manufacturers would be required to identify which
weather conditions the UA may safely operate in or ensure the UA has
the capability to identify and avoid those weather conditions for which
the UA is not designed to operate, per proposed Sec. Sec.
108.720(a)(1)(i) and 108.890. Operators therefore would need to ensure
the weather conditions do not exceed the design considerations and
limitations of the UAS used in the operation.
FAA also proposes in Sec. 108.145 that a UA that has frost, ice,
or snow adhering to the UA prior to takeoff, except as provided in the
manufacturer's operating instructions, would not be allowed to operate
under proposed part 108. As with manned aviation, frost, ice, and snow
can result in significant degradation of UA performance, including
controllability and changes in the weight of the aircraft. Barring any
significant mitigations identified by the manufacturer, FAA does not
find it in the interest of safety to allow any operations under these
conditions.
FAA proposes in Sec. 108.150(a) that operations conducted under
part 108 would be required to be conducted from locations that are pre-
designated and access-controlled and ensure any persons who are not
directly participating in the operation are safely segregated from
flight operations. This mitigation would reduce the risk posed by and
to non-participants during any stage of the operation. Restricting
access to only those involved in the operation would ensure appropriate
oversight for safety of flight.
In addition, FAA proposes in Sec. 108.150(b) that UA operated
under part 108 would need to be monitored and controlled from a
location that is physically located within the United States, including
its territories and inter-island operations when operating in United
States airspace. This would follow the same restriction that is present
in part 107. As discussed in the part 107 final rule, the International
Civil Aviation Organization (ICAO) recognizes UAS as aircraft and
therefore has applied existing standards and recommended practices
(SARPS) for aircraft to UAS. ICAO remains in the process of determining
how the SARPS can accommodate UAS, but presently, the ICAO SARPS are
quite restrictive for UAS. This proposed rulemaking would likely go
beyond what ICAO currently allows for UAS. As such, FAA would restrict
proposed part 108 to operations within United States airspace. Any
operations outside the United States would not fit within the
applicability of part 108. FAA considered adding an option to request
authorization to monitor and control UAS from outside the United
States. FAA seeks comment on whether it should expand the scope of
Sec. 108.150 to allow UAS to be monitored or controlled from outside
the United States.
Finally, FAA proposes in Sec. 108.150(c) that operators must
address physical security and seek to prevent unauthorized access to
the operation's facilities, including controlled access areas, as
applicable. An operator may use controlled access areas to protect
hazardous materials before those materials are loaded onto a UA, for
example. FAA also anticipates that, due to the size, scope, and
complexity of operations, the operator may have other areas they deem
sensitive and choose to utilize controlled access areas. FAA is
utilizing performance-based language in this proposed requirement to
provide operators flexibility with how controlled access areas are
designated.
FAA proposes in Sec. 108.155 that the operator would need to be
able to determine the location of each UA during flight operations. The
ability to determine the geographic location during operations and to
find the UA when it is has landed during normal, abnormal, and
emergency situations are important considerations for maintaining
situational awareness and safety of the operation. FAA anticipates that
most UAS will have software that will provide the operator with the
appropriate information to determine its location.
C. ADS-B and Transponder Use (Sec. 108.160)
FAA proposes in Sec. 108.160 that no operator would be allowed to
operate a UA with ADS-B Out equipment in transmit mode or with a
transponder in transmit mode under part 108. As previously discussed in
the Remote Identification of Unmanned Aircraft final rule (86 FR 4390,
January 15, 2021), the installation and use of ADS-B Out transmitters
on UA may negatively affect the safe operation of manned aircraft in
the NAS. The projected numbers of UA operations have the potential to
saturate available ADS-B frequencies, affecting ADS-B capabilities for
manned aircraft and potentially blinding ADS-B ground receivers.
Currently, operators conducting operations under part 107 cannot
operate a UA with ADS-B Out in transmit mode, per Sec. 107.53. FAA
also prohibits the use of ADS-B Out to meet the requirements of remote
identification, as per Sec. 89.125. The proposed restriction on ADS-B
equipment in Sec. 108.160 is consistent with FAA's existing
limitations.
D. Area of Operations (Sec. 108.165)
FAA proposes in Sec. 108.165 that all operators would be required
to obtain approval from FAA for the area of intended operations prior
to operation. Understanding potential risks, anticipating their impact
on both flight and ground operations, and mitigating those risks are
all critical to safe part 108 operations. Under this proposed
requirement, before beginning operations in a new area the operator
would identify known hazards, mitigate such hazards with proper
planning and effective controls, and plan for contingencies for any new
hazards identified during operations. In developing this proposal, FAA
utilized its ongoing experience with the authorization and oversight of
waiver and exemption holders. In proposed Sec. 108.165(a), FAA would
require operators to receive approval from FAA prior to beginning
operations in an area and would expect the operator to be responsible
for certain requirements as described below for those intended
operations. In requesting approval from FAA for a new operating
location, the operator would submit information to FAA that includes
the operating area boundaries, estimated number of daily operations,
and other operating characteristics as appropriate. FAA anticipates
that operators would report, and FAA would collect, this information
through the same portal as the application process uses for permit and
certificate oversight.
Proposed Sec. 108.165(b) would require the operator to designate
safe alternate landing areas that the UA can reach if it is unable to
complete the intended flight. Proposed Sec. 108.165(b) lists specific
requirements that landing areas would have to meet to satisfy the
proposed regulation. First, the safe alternate landing area would need
to avoid areas where overflight is prohibited. Second, the safe
alternate landing area would need to provide for a landing without
posing undue hazard to persons or property on the ground. FAA has
proposed these requirements to ensure that, in a situation when an
immediate landing is required, the operator is prepared with an area
that would not create a hazard to persons and property on the ground.
In the planning of these proposed alternate landing areas, it is
critical that operators understand that the need to land the UA in a
timely manner is paramount for circumstances such as emergencies or
abnormal events.
[[Page 38235]]
In Sec. 108.165(c), FAA proposes that the operator would be
required to designate appropriate takeoff, landing, and loading areas
that have restricted access to only those persons participating in the
operation and that are free of any obstructions that could pose a
hazard to persons who are not participating in the operation.
Designating appropriate takeoff, landing, and loading areas that have
restricted access would ensure that only authorized people have access
to the operating areas. This would keep unauthorized persons away from
operating areas and lower the risk to non-participants, who may not be
aware that an operation is in progress. In addition, FAA proposes that
takeoff, landing, and loading areas would need to be adequate for the
planned operation, considering such items as size, surface,
obstructions, and lighting. FAA anticipates operators to use UA of
various sizes and capabilities, which would also have performance
characteristics that may require takeoff, landing, and loading areas of
differing complexities. By requiring operators to ensure that these
areas are adequate, operators would be required to consider the
individual necessities of the UA and the operation.
FAA proposes in Sec. 108.165(d) that the operator would be
required to ensure adequate communications coverage and availability,
and appropriate lost link procedures. As discussed in section XI.D of
this preamble, a lost link or loss of control of the UA pose
significant risks to aviation safety. As part of the flight planning
for a new operational area, the operator would need to assess the
coverage area for C2 link system configuration utilized for the
intended operational area and verify operational status. The operator
would not be able to commence a UAS operation if a control link is
working improperly, whether due to a result of radio interference or
for some other reason. The operator would be expected to resolve any
radio interference or other spectrum complications prior to beginning
operations in that area.
Before beginning operations in a new area, FAA proposes in Sec.
108.165(e) that the operator would need to ensure that the planned
operations minimize risk to persons and property on the ground, as
appropriate, and consider terrain and obstacles that the operator
intends to overfly. FAA expects operators to plan for and be aware of
the number of persons and property on the ground around operations and
consider possible flight paths with the least presence of people and
moving vehicles, while also considering the terrain and human-made
obstacles the operator intends to overfly. The operator would be
required to verify the maximum height of obstructions. To accomplish
this, the operator could perform an area assessment or use a capable
third party to do so.
Further, as discussed in section VIII.C.5, Sec. 108.550(b)
proposes to also require certificated operators to perform a ground
risk assessment of pedestrians, vehicles, terrain, and man-made
obstacles.
E. Preflight Requirements (Sec. 108.170)
Ensuring the safe conduct of operations begins with determining
that the aircraft is in a safe condition for flight and reviewing
appropriate information concerning the operating environment. FAA has
proposed in Sec. 108.170 that operators would be required to meet
certain preflight requirements before conducting each operation under
part 108.
In Sec. 108.170(a), FAA proposes that, prior to operating under
part 108, the operator would need to ensure that the weather conditions
are appropriate for the intended operation, in accordance with the
aircraft limitations specified by the manufacturer, and that are
determined in a manner acceptable to FAA. This is because flying in
adverse weather conditions, or in weather conditions that the UA is not
designed to handle, may increase operational risk. Familiarity with
forecast weather conditions is an important part of the flight planning
process. Title 14 of the CFR contains requirements on the use of
weather information and the level of approval required for that
information for various operations. For example, within 14 CFR parts
121 or 135, there is a requirement to use weather reports or forecasts
from a source ``approved by the Administrator.''
Aviation weather currently provides surface weather observations
[e.g., Meteorological Aerodrome Report (METAR)] and forecasts [e.g.,
Terminal Area Forecast (TAF)] at and around many airports. These
observations and forecasts are typically only valid out to five miles
from the location where the observation was taken or around the airport
the TAF was generated for. To date, FAA's current sources ``approved by
the Administrator'' include, but are not limited to, Automated Surface
Observing System (ASOS), Automated Weather Observing System (AWOS), and
information provided by the National Weather Service (NWS).
Massachusetts Institute of Technology Lincoln Laboratory (MIT/LL)
reports \50\ from November 2017 note the sparseness of off-airport
observations of visibility, clouds and ceiling, and surface winds. The
report summaries state that: ``airport-specific weather information
(e.g., METAR, TAFs, etc.) do not readily translate to conditions at
remote launch locations, which may be 10-30 miles from the nearest
airport . . . the results show significantly less weather information
available to support low-altitude flight than for typical manned-flight
profiles.''
---------------------------------------------------------------------------
\50\ See MIT/LL, Preliminary UAS Weather Research Roadmap, ATC-
438 (November 2017), and MIT/LL, Preliminary Weather Information Gap
Analysis for UAS Operations, ATC-437 (November 2017).
---------------------------------------------------------------------------
FAA estimates that, for airspace below 400 feet only, around 3% of
the continental United States and 2% of Alaska airspace is covered by
an approved source of weather information, with most of that being on
or near airport environments. However, given that part 108 UAS
operations would operate primarily outside of this area of approved
observation coverage, those operations will need additional sources of
weather information to operate safely. FAA anticipates that some of
this weather information gap could be filled by third-party weather
providers or come from other non-traditional sources, such as locally
owned and operated devices.
As BVLOS UAS operations mature, they may require a more detailed
and definitive set of meteorological information to operate safely. For
BVLOS operations, the fidelity of the meteorological information would
need to be such that the operator can determine whether the vehicle can
safely operate within the manufacturer's limitations. Traditionally FAA
has required operators to use weather information that was from sources
approved or provided by FAA. However, for the reasons stated above,
this is not practical or appropriate for most UA operations, so FAA is
proposing to allow operators to obtain weather information in other
ways. This could include the use of weather services provided under an
automated data service provider construct under proposed part 146, or
through other sources found acceptable to the Administrator.
FAA proposes in Sec. 108.170(b) that the operator would need to be
familiar with any airspace and flight restrictions along the entire
route of flight, including the review of any applicable Notices to
Airmen (NOTAMs). Another important aspect of assessing the operational
environment is the consideration of airspace information to identify
any known flight restrictions along the
[[Page 38236]]
route. To comply with this requirement, FAA expects the operator to
assess the departure, enroute, and destination airspace; special use
airspace; NOTAMs; temporary flight restrictions; and UA flight
restrictions to ensure compliance with airspace rules and restrictions.
As stated in proposed Sec. 108.180 and further discussed in section
VI.G, UAS operations under this proposal would only be allowed in
controlled airspace under certain conditions and may be subject to FAA
authorization. If an operator did not assess this information prior to
conducting operations, operations could transverse through controlled
airspace and result in adverse events, such as disruptions to aircraft
receiving ATM services or loss of separation between controlled and
uncontrolled aircraft. Similarly, an operator would need to be familiar
with special use airspace, NOTAMs, and any ground hazards associated
with the flight. The operator would need to be aware of special use
airspaces to avoid conflict or potential national security issues with
the operations or events being conducted within those airspaces. In
addition, NOTAMs indicate the real-time and abnormal status of the NAS
impacting every user and concern the establishment, condition, or
change of any facility, service, procedure, or hazard in the NAS. These
impact UA operations as well as manned aircraft operations.
FAA proposes in Sec. 108.170(c) that the operator would need to
assess the population density category or categories to be overflown.
Obtaining this information in advance would allow the operator to
comply with proposed Sec. 108.185. For further discussion, see section
VI.H of this preamble.
FAA proposes in Sec. 108.170(d) that the operator would need to
identify the location of ground obstacles and hazards associated with
the specific flight operation being flown. Because part 108 UAS
operations are conducted at low altitudes, the operator would need to
be aware of structures, obstructions, and other hazards that may pose a
risk to the specific flight operation. Awareness of these ground
hazards would enable the flight coordinator to appropriately plan
around or avoid such hazards that may result in adverse events when
preparing to conduct the operation. Given the advances in geospatial
information systems, 3D mapping software, and publications, operators
should have access to sufficient information to be able to comply with
this requirement. FAA seeks comment on this assumption.
To comply with proposed Sec. 108.170(e), the operator would be
required to ensure that the UAS are in a condition for safe operation.
It is critical that all aircraft operated in the NAS, including UAS
operated under proposed part 108, are in a safe condition to minimize
risk. Being in a safe condition not only minimizes the risk for other
aircraft in the NAS, but also minimizes the risk for persons and
property on the ground.
FAA proposes in Sec. 108.170(f) that the operator would need to
ensure there are sufficient personnel available for the operation.
While there are no specific staffing requirements under this proposal,
an operator not having sufficient personnel necessary for their
individual operation could present a safety risk. Increased pressure to
``get the job done,'' and personnel taking on additional work beyond
their duty assignment, or lack of experience with certain duties, can
degrade the safety of the operation. Operations with insufficient
personnel may experience mistakes with potential undesired results in
any part of the operation. Task saturation or diversion of attention
could create gaps in monitoring the automated systems and over-reliance
on those systems. Incomplete knowledge and experience with those
systems could cause errors that could lead to an incident or accident
at various points during an operation.
FAA is proposing in Sec. 108.170(g) that, if required by Sec.
108.180 or Sec. 108.185, the operator would need to ensure that a
strategically deconflicted operational intent is accepted prior to
takeoff. As described in section VI.I of this preamble, strategic
deconfliction is a set of functions that aid in managing conflicts
between UAS operating under part 108.
FAA proposes in Sec. 108.170(h) that the operator would need to
ensure that there is enough available power or fuel, considering wind
and forecast weather conditions, for the UAS to operate for the
intended operational time, such that the UA can land without posing an
undue risk to aircraft or people and property on the ground, or the
reserve power recommended by the manufacturer, if greater, is
satisfied. A key aspect of preflight planning involves ensuring that
there is sufficient fuel or power to conduct the intended operation and
land safely. Since the amount of fuel or power necessary for an
operation may be impacted by wind and weather conditions, FAA proposes
requiring the flight coordinator to consider these conditions in making
the determination whether there is sufficient fuel or power to conduct
the intended operation. FAA considered establishing and enforcing a
standard flight time that the UAS would need to have in its power
reserve to land safely (e.g., 5 minutes, 10 minutes, etc.). However,
limitations should be relevant to the operation. As such, imposing a
standard time that a UAS needs to have in its power reserve may be
unreasonably burdensome for some UAS operations. The flight coordinator
would be better situated to determine what constitutes sufficient power
or fuel for their specific UAS operation.
FAA proposes in Sec. 108.170(i) that the operator would need to
ensure that operations would be conducted within the weight and balance
limitations defined by the aircraft manufacturer. Compliance with the
weight and balance limits of any UAS are critical to flight safety.
Operating above the maximum weight limitation compromises the
structural integrity of the UAS and adversely affects its performance.
Operators must be aware that, even while operating within center of
gravity limits, the UAS can be overloaded. Though the UAS manufacturer
may specify a maximum gross takeoff weight, and the operator would need
to comply with that limitation, there may be additional conditions that
affect overall takeoff performance such as high elevations, high
temperatures, and high humidity (high-density altitudes) that the
operator could consider in determining the weight for a specific
operation.
Conditions such as these may require a reduction in weight before a
flight is attempted. Operating with the center of gravity outside the
approved limits could result in control difficulty and unstable or
unknown flight characteristics. Operating within the center of gravity
would ensure the UA is operating in the most stable, balanced, and
predicted condition. As listed in section X of this preamble, under the
proposed process for airworthiness acceptance, the manufacturer would
need to provide weight and balance data. Therefore, because of the
effects of an out-of-balance or overweight condition, FAA proposes that
the operator should ensure that weight and balance will be calculated
and conducted within the limitations defined by the aircraft
manufacturer.
In Sec. 108.170(j), FAA proposes that, for the safety of the
operation, property, and people around the operation, the operator
would need to ensure that any object attached to, or carried by, the UA
is secure and does not adversely affect the flight characteristics or
controllability of the UA. If not directly
[[Page 38237]]
attached to the underside of the UA during transport or if lowered
during operations, the operator should be able to calculate weight and
balance with emphasis on a lateral center of gravity. If during
maneuvering forward airspeed is increased, light loads generally tend
to shift further aft and may become unstable. Any unstable load may
flutter, oscillate, or rotate, resulting in reduced aircraft control
and undue stress on the UA.
Finally, in proposed Sec. 108.170(k), the operator of a part 108
UA would need to ensure that their UA navigation and communication
systems are working properly. This is critical for ensuring that the
UAS operation can be conducted successfully.
F. Operating Restrictions (Sec. 108.175)
FAA proposes in Sec. 108.175 that an operator would not be allowed
to operate a UA under part 108 higher than 400 feet AGL unless the
operator is in Class G airspace and temporarily transiting steeply
changing terrain, is operating within a 400-foot radius of a structure
and does not fly higher than 400 feet above the structure's immediate
uppermost limit, or needs to maneuver up to 450 feet AGL temporarily in
order to avoid a collision.
Like part 107 and existing UAS exemptions and waivers, FAA proposes
to permit UA operating under proposed part 108 to operate up to 400
feet AGL. An altitude limitation provides a necessary barrier between
UA operations and most manned aircraft operations in the NAS. In
addition to the altitude limitation of 400 feet AGL, FAA would require
the altitude of the UA to be flown within a 400-foot radius of a
structure to not fly higher than 400 feet above the structure's
immediate uppermost limit when operating within the confines of a
structure. This limitation has the same reasoning as the buffer of 500
feet from manned aircraft in that manned aircraft must generally
maintain at least 500 feet from a structure. In addition, FAA would
permit operations to exceed 400 feet AGL if necessary to avoid a
collision.
This prohibition against close operation near obstacles and
structures is intended to mitigate the risk of collision. The operating
speed of manned aircraft is another factor that contributes to
collisions with structures or obstacles. For most manned aircraft, the
operating speed is much higher than the operating speed of a UAS.
FAA does not believe that an altitude above 400 feet AGL is
justified for part 108 UAS operations, except in the narrow
circumstances prescribed in this part. If allowed, higher altitude UA
operating in the NAS would potentially be unable to maintain adequate
separation from manned aircraft. If UAS were permitted to operate above
400 feet AGL, it could increase the risk of a collision between UAS and
non-equipped aircraft. At this time, FAA does not have sufficient data
to eliminate the 100-foot buffer between UA operating at 400 feet AGL
and below and manned aircraft generally occupying airspace 500 feet AGL
and above established in part 107. The United States aviation system is
designed to have sufficient safety margins, as well as redundancy in
risk mitigations. The 400-foot AGL maximum altitude proposed by this
rule upholds those principles.
The maximum operating altitude imposed by this rule is intended to
limit the height of the UA above the ground over which it is flying
AGL. It is incumbent upon the operator to maintain flight at or below
this maximum operating altitude. Lastly, during all operations, the UA
must be operated at an altitude that would not create a hazard to
persons or property. Operating at an altitude that would not create a
hazard to persons or property also means that the UA must be operated
at a distance from a structure or obstruction to not create a hazard to
persons or property.
FAA recognizes, however, that certain terrain may obstruct the
operator's ability to comply with this requirement to remain at or
below 400 feet AGL. For example, in areas with steep terrain, such as
open pit mines, gorges, and small canyons, it may be unsafe or
impractical for the aircraft to dive or climb rapidly to stay no more
than 400 feet above the terrain immediately below. Rather than require
operators to maintain a consistent altitude of 400 feet AGL or below,
FAA deems it would be more important for the operator to use their best
judgment in maintaining a safe altitude and reduce any operating safety
risks. FAA's primary objective is to ensure that UAS BVLOS operations
promote NAS safety and efficiency. As such, FAA proposes in Sec.
108.175(a)(1) that, in the interest of safety, the operator would be
able to operate higher than 400 feet AGL in situations where the
operator is briefly transiting steeply changing terrain.
In addition, FAA proposes in Sec. 108.175(a)(2) that an operator
may operate higher than 400 feet AGL when operating a UA within a 400-
foot radius of a structure and does not fly higher than 400 feet above
the structure's immediate uppermost limit. Manned aircraft are not able
to operate safely that closely to a structure, so the UAS operator
would be able to maintain separation.
FAA proposes in Sec. 108.175(a)(3) that the operator could
temporarily exceed 400 feet AGL if necessary to avoid a collision.
While it would remain incumbent upon the operator to be aware of any
obstructions that could pose a hazard, per Sec. 108.165(c)(2) and
maintain safe distance from other aircraft in line with the
requirements in Sec. 108.195, FAA acknowledges that there are
circumstances that may require the operator to temporarily climb to
avoid a collision. One example could be ascending above 400 feet AGL to
avoid hitting birds or other wildlife and then returning to 400 feet
AGL or below when the hazard has passed. FAA has proposed this section
to permit operators the leeway to exceed the 400 feet AGL limit in
Class G airspace in their operating area to the altitude and duration
necessary to avoid unexpected objects.
Class G airspace is considered uncontrolled airspace. Research
conducted by MITRE for FAA found that in Class G airspace, a drone with
no mitigations could be expected to collide with manned aircraft
between once every 10,000 flight hours in the most heavily used Class G
airspace, to once every 1 million flight hours in the least used Class
G airspace. The addition of mitigations under part 108, such as those
described above, would substantially lower the collision risk in Class
G airspace even further.
FAA proposes in Sec. 108.175(b) to make clear that operators would
be required to comply with certain other requirements like those that
apply to part 107 and recreational operators. Proposed Sec. 108.175(b)
provides that part 108 operations would need to comply with flight
restrictions and other conditions codified in 14 CFR 91.133, 91.137-
91.145, and 14 CFR 99.7. Flight restrictions are established under
certain circumstances to maintain the safety and security of the NAS.
Scenarios warranting the establishment of flight restrictions may
include responses to disaster areas such as wildfires and hurricanes,
protection of sensitive sites, major sporting events, and for emergency
and national security situations.
FAA proposes in Sec. 108.175(c) that operators should notify the
controlling agency for any operations planned within a military
operating area (MOA) or on and military training route (MTR). Operators
must always exercise extreme caution and remain vigilant of all MTRs
and or non-regulatory SUAs. While MOAs and MTRs do not rise to the
level of being classified as prohibited or
[[Page 38238]]
restricted areas, the potential for low level military operations are
higher in these areas and increased awareness and precautions are
warranted.
Finally, similar to the restriction found in part 107, FAA proposes
in Sec. 108.175(d) a provision that would prohibit any UAS operations
that interfere with operations and traffic patterns at airports,
heliports, seaplane bases, space launch and reentry sites or any
facilities used for VTOL aircraft landing and takeoffs. Airspace
designations as described in proposed Sec. 108.180(a) should help
ensure UA operations do not interfere with operations at airports
within controlled airspace. However, since many airports are within
uncontrolled airspace, this proposal would also cover uncontrolled
airspace where such operations could represent a higher likelihood of
an encounter with a part 108 operation during takeoff or landing.
G. Operation in Controlled Airspace (Sec. 108.180)
FAA proposes in Sec. 108.180(a) to enable routine BVLOS UAS
operations in certain areas within controlled airspace at or below 400
feet AGL when participating in strategic deconfliction and conformance
monitoring (as described further in this section, and in section VI.I).
Per proposed Sec. Sec. 108.180(c) and (d), airspace authorization
would only be required in those portions of Class B, Class C, or Class
D airspace, or within the lateral boundaries of the surface area of
Class E airspace designated for an airport, that FAA specifically
designates as requiring authorization. Operators would be able to
access the remaining portions of controlled airspace without an
airspace authorization.
Currently, operators authorized to conduct BVLOS operations via
exemptions or waivers must obtain an authorization from FAA to access
controlled airspace on a case-by-case basis. As FAA moves toward
enabling routine BVLOS operations, this process to authorize these
operations in controlled airspace needs to become more scalable and
less resource intensive.
One approach FAA considered is a process similar to the one FAA
uses for recreational and part 107 operators. Under that process,
operators can request authorization to access controlled airspace using
either FAADroneZone or a Low Altitude Authorization and Notification
Capability (LAANC) service provider. (See section XII.B.6 for
additional details about FAADroneZone and LAANC services). LAANC and
FAADroneZone collect data about the operator, including contact
information, location and altitude of operation, date of operation, and
time of operation. Once the operator has authorization through LAANC or
FAADroneZone, they usually do not have any other interaction with FAA
prior to accessing the airspace.
BVLOS operations in controlled airspace under proposed part 108
would present a different regulatory construct than part 107 or
recreational operations. An operator otherwise in compliance with part
108 would have other touchpoints with FAA that would provide the
minimum information that FAADroneZone and LAANC currently provide for
part 107 and recreational operations. For example, under this proposal,
a part 108 BVLOS operator in controlled airspace would be required to
participate in strategic deconfliction and conformance monitoring
services, as defined in section VI.I. As a result, FAA would not need
to rely on a system like FAADroneZone or LAANC to have the basic
informational touchpoint with part 108 operators. This would negate the
need for automated approvals. Instead, FAA could limit its interaction
to operators seeking to conduct higher risk, more complex operations
that require individual evaluation and coordination.
In Sec. 108.180, FAA proposes that operations at or below 400 ft
AGL in Class B, Class C, Class D airspace, or within the lateral
boundaries of the surface area of Class E airspace designated for an
airport, can occur without an exemption or waiver, except for in those
areas FAA specifically designates as requiring airspace authorization
(as provided in proposed Sec. Sec. 108.180(c) and (d)). FAA would
engage in a risk-based analysis to determine where BVLOS operations
cannot be conducted safely or cannot be conducted safely without prior
authorization. FAA anticipates these designations would be close to
airports and other areas in controlled airspace where uncoordinated UAS
operations could affect the safety of the NAS. The risk-based analysis
will include the potential for primary radar returns by larger UAs
enabled by proposed part 108. Under this proposal, operators would be
allowed to conduct part 108 BVLOS operations in all other portions of
Class B, Class C, Class D airspace, or within the lateral boundaries of
the surface area of Class E airspace designated for an airport without
prior FAA authorization, so long as the operators meet the minimum
operating requirements proposed in Sec. 108.180. This would present a
scalable approach to airspace access that focuses on those operations
that require special attention.
In many ways, airspace designations under proposed Sec. 108.180
would be similar to the UAS facility maps that part 107 and
recreational operators use to identify where airspace access
authorizations are available. The principal difference between those
maps and the process in proposed part 108 is that FAA would require
authorization in those places where advance coordination is mandated in
the interest of safety.
In addition, FAA proposes additional requirements to operate in
Class B and C under proposed part 108. The largest concentration of
manned aircraft operating at low altitude within the vicinity of an
airport occurs within Class B and C airspace. As a result, FAA
considers there to be a higher risk of a collision in this airspace. To
mitigate this risk, FAA proposes to require UA operating in Class B or
C airspace to be equipped with a DAA system that meets the requirements
in Sec. Sec. 108.825 and 108.195. FAA also proposes to require UA
operating in Class B or C airspace to detect and avoid manned aircraft
that are not broadcasting their position via ADS-B or an electric
conspicuity device. FAA recognizes that most aircraft operating in
Class B or C airspace are otherwise required to broadcast their
position via ADS-B or an electronic conspicuity device. Nonetheless,
under certain circumstances, aircraft could be operating in this space
without ADS-B or an electronic conspicuity device. For example, an
aircraft could be experiencing an equipment failure or could have
received authorization from ATC to deviate from these requirements. FAA
seeks comment on whether these requirements are appropriate mitigations
to address the risk of collision with manned operations in this
airspace and any information that provides more insight into if, and to
what extent, operations with ADS-B Out turned off happen in controlled
airspace below 500 feet.
Designated airspace requiring prior authorization would be compiled
annually in FAA Order JO 7400.[XX], which FAA would incorporate by
reference into Sec. 108.180. FAA would then publish periodic
designation updates for airspace requiring prior authorization in the
Federal Register and seek public comment through an NPRM. After
considering comments and making any appropriate adjustments, FAA would
publish the adopted designation updates in a final rule. At the end of
the year, FAA would apply the updates to FAA Order JO
[[Page 38239]]
7400.[XX+1] and then incorporate the new version of the Order by
reference. The currently incorporated version of FAA Order JO 7400.[XX]
would be available on FAA's website, along with any periodic updates.
In addition to making these designations available on its website, the
agency anticipates making electronic information available for service
providers to incorporate into their UAS information service offerings.
FAA further proposes in Sec. 108.180(a) to require operators to
conduct operations at 400 feet AGL or below and to use strategic
deconfliction and conformance monitoring services that meet the
requirements of Sec. 108.190 (see section VI.I). The purpose of these
requirements would be to mitigate the risk of collision with other
aircraft. FAA has identified several important risk reductions
associated with strategic deconfliction and conformance monitoring; the
functionality of both capabilities is described in greater detail in
section VI.I.
First, strategic deconfliction \51\ would reduce the risk of
collision between UA. By definition, controlled airspace exists over
and around airports which, in turn, serve major population centers.
Where there are greater concentrations of people, FAA anticipates that
there would be UA operating in closer proximity to people than in less
densely populated areas. Operators who provide a service to people in
urban environments may also be conducting more frequent operations than
those in more rural areas. Operators may also be limited in room to
maneuver in controlled airspace due to natural or human-made obstacles.
Given these additional challenges to operating in controlled airspace
in addition to the proximity and frequency of operations, FAA
determined that BVLOS operations would present an increased risk of
collision in these areas. FAA determined that improving operators'
situational awareness of other operations through strategic
deconfliction services would help reduce this risk.
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\51\ Strategic deconfliction is discussed in section VI.I.
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Second, using strategic deconfliction services would also help
reduce the risk of UA having near misses and engaging in avoidance
maneuvers to avoid each other. Controlled airspace is highly structured
and requires aircraft to operate in their designated areas to avoid
conflicts. ATC manages controlled airspace to maintain the structure
and separation necessary for the safety of the airspace. It is not
necessary, however, for FAA to provide these types of services for UA
operating at 400 feet AGL or below due to the extremely low likelihood
of interaction with manned aircraft. Strategic deconfliction would
provide the situational awareness for operators to understand where
other UA are operating or intend to operate. This would help provide
predictability and structure at 400 feet AGL and below that would help
reduce the risk that UA would have an unexpected encounter or near miss
that would require avoidance maneuvers. This would be particularly
helpful in areas with a high density of UAS operations, as it would
reduce the likelihood of a cascading set of uncoordinated maneuvers
that could introduce risk to both UAS and manned aircraft operating in
the area.
Third, using strategic deconfliction services would enable NAS
users to participate in a data exchange network that would benefit the
entire community of NAS stakeholders. Flight notification would allow
the operator to share relevant operational information with other data
exchange networks and users, including manned aircraft. For manned
aircraft operating at 400 feet AGL and below, this would provide
information that could help mitigate risk associated with BVLOS and
aircraft not broadcasting their position using ADS-B Out equipment
operating in the same airspace. For example, manned aircraft and UA
could use this information for operational prioritization. FAA
anticipates that the demand for UA operations in controlled airspace
around major metropolitan areas would continue to grow, causing
interactions between lower priority routine operations and higher
priority emergency or first responder operations (manned or unmanned)
to become more frequent. Universal exchange of information would
facilitate operational prioritization, to avoid preventable
interference with priority services.
In Sec. 108.180(a), FAA also proposes requiring conformance
monitoring in controlled airspace to help provide predictability,
structure, and the necessary situational awareness to reduce risk
associated with introducing UA operating BVLOS at 400 feet AGL or
below. Conformance monitoring would provide notice to users when a UA
does something unexpected or inconsistent with its previously indicated
operational plan. Conformance monitoring would make NAS-users aware of
BVLOS UA operating off-nominally.
Conformance monitoring would help reduce risk in several ways.
First, conformance monitoring would notify other users of off-nominal
conditions in the NAS that may require additional action to maintain
safe operations. Notification would provide situational awareness to
help NAS users react and adjust operational plans as necessary to
maintain safe operations. Second, conformance monitoring would provide
an operator important information about its own operations. A BVLOS
operator could use conformance monitoring to understand when off-
nominal conditions occur, allowing for real-time adjustment during the
operations. Third, operators, equipment manufacturers, service
providers, and regulatory agencies could use conformance monitoring
data to study and identify the causes of off-nominal operation.
Understanding why off-nominal operations occur and what their impact is
on safety would help FAA and other stakeholders improve safety and
efficiency for BVLOS operations at 400 feet AGL or below.
H. Operations Over People (Sec. 108.185)
Part 107 currently allows for operations over people; however, part
107 is limited to UA weighing under 55 pounds and includes restrictions
on how operations over people may be conducted. Under part 107,
operations over people may only be conducted over persons directly
participating in the operation or located under a covered structure or
inside a stationary vehicle that can provide reasonable protection from
a falling UA, or if the operation complies with categorical
requirements. The categorical eligibility requirements for operations
over people under part 107 are based on aircraft weight, compliance
with aircraft impact severity limits, and FAA-accepted DOC.
Currently, to operate a UA under part 107 over people, an operator
must either (1) operate in compliance with part 107 subpart D; (2)
request a waiver under part 107; or (3) obtain a type certificate. If
the UA weighs 55 pounds or more, the operator must obtain a 49 U.S.C.
44807 determination for the specific aircraft and operation and, at a
minimum depending upon location and type of operation, an exemption
that provides relief from several part 91 and part 61 regulations that
do not apply to UAS.
As noted in section III.A.2, the current part 107 process is
limited in scalability. Part 107 was developed for VLOS operations,
small UA, and individual pilots operating a single UA. As such, the
part 107 regulations allowing operations over people and related waiver
provision were crafted with this limited scale in mind. Proposed part
108, however, would allow for a much larger scale of operations, which
merits the proposed approach for operations over people.
[[Page 38240]]
A calculation based on population density can be used as a general
estimation for ground risk to people. As the population density
overflown increases, there is a corresponding increase in the risk of a
person being harmed by a UA crash. Since some portion of UAS operations
are expected to be driven by demand from the population nearby, such as
package delivery, FAA anticipates that increasing the required
mitigations as the overflown population increases would help mitigate
risks in a proportional fashion.
In Sec. 108.185(c), FAA is proposing five categories of ground
risk to people based on population density for part 108. The proposed
population categories seek to find a balance between risk and
increasing integration of UAS in the NAS. Though FAA strives to
establish performance-based regulations where possible, in this case,
prescriptive requirements are appropriate to ensure that is no
ambiguity when determining a population density level (i.e., one
operator's determination of population density level would not differ
from another's). This would ensure applied mitigations would be
consistent across operators. This would be especially important with
strategic deconfliction, which relies on all UA complying with the
requirement for it to mitigate risk successfully.
The categories would be defined by metrics that could be assessed
consistently by independent users and regulators. FAA proposes to use
the Oak Ridge National Laboratory's LandScan USA product as a source of
population location and density to assess population density for low-
risk UAS BVLOS operations considered under this rule. The LandScan data
is accessible in machine-readable format at no cost. FAA's proposal
would require the use of the appropriate LandScan data set to determine
population density, including proper selection of day or night data.
LandScan USA updates annually, which ensures accurate population
density data. FAA intends to provide guidance on the implementation of
new data published by LandScan following the annual update.
LandScan USA is partially based on census data and the data is
processed to reflect the estimated location of people during both day
and night. This publicly available data is free to access and can be
analyzed with common mapping software. FAA anticipates that UAS
operators, service providers, and other industry stakeholders may be
interested in developing specialty applications to process and share
the LandScan data.
FAA expects that there would be various methods to access this
data. Some operators may not choose to take on the determination
themselves and look to service providers for a ground risk assessment.
Some operators may fully automate this ground risk analysis into their
automated flight planning software. The LandScan website also offers a
viewing application. While the map on the LandScan website is not as
precise as the downloadable data, it can be useful in understanding the
general population density of an area. The LandScan website map does
not give exact population count nor measure distance, both necessary
for making a final decision about which population density category an
operation falls within. FAA is considering publishing a map, similar to
the UAS Facility Map for LAANC data, which would assist operators in
determining population density categories. FAA invites comments on
whether this would be helpful or desirable.
All operators would need to reach the same conclusion for the
population density category for any point in the NAS. This would ensure
that all operators in that area will enact the same minimum level of
mitigations. Knowing what mitigations other operators would be required
to employ would create certainty for an operator. As such, FAA is
proposing using the LandScan data to determine the population density
category for a specific place.
FAA considered including a ``shelter factor'' in the population
density determination to account for the protection offered by a
building. However, FAA decided to not include it in proposed Sec.
108.185. The static nature of the population density data does not
account for the ratio of time spent inside and outside of buildings,
nor does it account for abnormal events which could cause people to go
outside unexpectedly. In addition, the ability of a building to protect
its occupants from a falling UA is not assumed, particularly with
larger and heavier UA.
Each population density category would have operational
restrictions. Each category level would build upon the prior level,
layering on mitigations as deemed appropriate for the additional risks
posed by increased population density. The requirements of each
category of operations over people would include the mitigation(s) for
that level and all the mitigations of numerically lower levels, with
the exception of Categories 2 through 5 not having to follow the
Category 1 requirement to stay away from people. For example, an
operation in Category 4 airspace would need to comply with the
mitigations of Category 2 and 3 as well as the Category 4 mitigations.
For operations in Categories 3, 4, and 5, FAA intends to address the
ground risk over areas of increasing population density by requiring
the use of strategic deconfliction that meets the requirements of Sec.
108.190.
The following descriptions of the five categories of population
density describe why certain mitigations would be required at
increasing levels of density. The mitigations would be layered on at
increasing category levels, such that a higher-level area would require
the mitigations applied at all lower levels (with the exception of
category 1's mitigation), plus additional mitigation(s) at that level.
This graduated approach to risk management is designed to
proportionally add safety mitigations to reduce risk of harm to people
on the ground.
1. Category 1 Operations
FAA proposes in Sec. 108.185(c)(1) that Category 1 areas would be
those with few to no people, defined as being farther than 1 statute
mile from any LandScan USA cell which contains 10 or more people. In
addition, any operations that are unable to comply with the
requirements for Category 2 would be limited to this category. This
would be the lowest category with the fewest number of mitigations
being applied to the operation. As a result, Category 1 would be the
most restrictive in terms of location regarding flights over higher
population density. While all part 108 operations would be allowed to
operate in Category 1 airspace, those permitted operations that would
be limited to Category 1 would be ones that pose a higher risk to
persons and property on the ground. As such, it is critical to operate
in airspace over areas with very low population densities.
2. Category 2 Operations
FAA proposes in Sec. 108.185(c)(2) that under Category 2, the
operational area would cover locations where people are expected near
the flight path, but at low densities, such as rural areas found near
farms. This would be defined as being within 1 statute mile of a
LandScan USA cell which contains 10 or more people. In areas of this
level of population density, operations would be more likely to be
targeted toward mission types which overfly fields and infrastructure,
such as agricultural and inspection missions, which generally have
fewer people than areas in which
[[Page 38241]]
package delivery would be likely to be more prevalent.
Because of the increased risk to the overflown population compared
to Category 1, FAA proposes to preclude Category 2 operations from
using radio frequency devices that operate in accordance with 47 CFR
parts 5 and 15 in their C2 systems. These radio frequency devices
operate on specific radio frequency spectrum allocations in a manner in
which all users have equal access. As such, systems and equipment that
use that spectrum should expect harmful radio frequency interference
anytime during use. This harmful interference could prevent the UA from
staying in its intended flight area or from being directed by an
operator to perform avoidance maneuvers from other traffic.
The likelihood of the harmful interference would be expected to
increase commensurate with increasing overflown population since many
household consumer electronics operate on these same radio frequencies.
Because of this, FAA proposes to manage the risks associated with
spectrum interference of the C2 link by precluding operators from
relying on radio frequency devices that are susceptible when in
Category 2 operations.
3. Category 3 Operations
FAA proposes in Sec. 108.185(c)(3) that Category 3 operational
areas would include areas of moderate population, such as developments
and single-family homes, which are often located within a few miles of
small, higher density areas such as shopping centers or schools.
Specifically, proposed Category 3 would be defined as being within 1
statute mile of a LandScan USA cell which contains 25 or more people.
Package delivery operations under this proposal would drive portions of
the quantity of UAS missions to higher population density levels.
Because Category 3 operations would be conducted over a population
density greater than that of Category 2, FAA proposes to increase the
mitigations in these areas to enhance and further protect associated
ground risks. Therefore, FAA is proposing an additional mitigation for
Category 3 and higher categories: the requirement to use a strategic
deconfliction capability. Simulations have shown that using strategic
deconfliction, a process of reserving segments of an intended path for
the time the UAS is expected to occupy it, can reduce UA-UA collisions
drastically when nearly all operators in the same area comply (see
section VI.I for extensive discussion and rationale for this
requirement).
FAA found that strategic deconfliction dramatically reduces the
likelihood of ground-based injuries or fatalities by reducing the
likelihood of collision between UA. However, since Category 1 and 2
operations would be limited to areas that already have very low
population densities, the likelihood of ground-based injury or fatality
would already be low. Fewer simultaneous BVLOS operations would be
expected in such areas, and any falling debris would be much more
likely not to fall on a person. Therefore, FAA determined that there
would be marginal additional safety benefit to requiring use of
strategic deconfliction when operating above Category 1 and Category 2
areas. By contrast, Category 3 areas are expected to include suburban
developments where operations such as package delivery and
infrastructure inspection would be more likely to occur, thus there
would be an increased risk to people outside at certain times of day if
strategic deconfliction is not required.
4. Category 4 Operations
FAA proposes in Sec. 108.185(c)(4) that Category 4 operational
areas would include areas such as shopping centers and multifamily
housing. This would be defined as being within 0.5 statute mile of a
LandScan USA cell which contains 100 or more people. FAA anticipates
that many Category 4 areas of operations may be of higher risk to
persons and property, as these areas allow for flight over increasingly
populated areas. As referenced in section IV of this preamble, FAA
would consider the UA airworthiness acceptance to meet an acceptable
level of reliability for all operations under this proposal. Therefore,
operational reliability remains a mitigating risk factor for any higher
risk operation.
FAA proposes that operators would be required to obtain an
operating certificate to operate in Category 4 operating areas, subject
to certain limitations depending on the type of operation. As further
described in section VI.O of this preamble, operations conducted with
an operating certificate would be required to have specific manuals and
procedures accepted and approved by FAA. This requirement would involve
FAA evaluation to ensure specific practices and procedures are taking
place in an effective and safe manner. In addition, operations
conducted with an operating certificate would require a level of
routine FAA surveillance to ensure that these practices and procedures
continue to meet the specific standard. With this added level of
initial and continued oversight, along with the limitations on the
types of operation that can be conducted under a certificate in
Category 4 areas, risk under Category 4 would continuously be evaluated
and mitigated.
5. Category 5 Operations
FAA proposes in Sec. 108.185(c)(5) that Category 5 operational
areas would include locations like major metropolitan downtown areas.
Category 5 would be defined as being within 0.5 statute mile of a
LandScan USA cell that contains 2,500 or more people. In mitigating
risk in what FAA considers the highest ground risk category, FAA
proposes that the UA would need to be equipped with a DAA system that
meets the requirements in proposed Sec. 108.825 and Sec. 108.195, and
additionally can detect and avoid aircraft that are not broadcasting
their position via ADS-B or an electric conspicuity device. At this
level of ground risk, the system would need to be agnostic to the
intruder aircraft's equipage and would need to detect all airborne
aircraft. Requiring a DAA capable of detecting all airborne traffic
would ensure that persons on the ground would be protected from any
potential debris from an airborne collision. Due to the high volume of
persons on the ground in an area designated as Category 5, the
potential for persons to be impacted by fallen debris or large pieces
of aircraft would be greater should an airborne collision occur. By
requiring a DAA system capable of detecting all aircraft, the risk of
collision would greatly be reduced, which also further reduces the
likelihood of hazards to persons on the ground.
FAA welcomes comments and information that provides more insight
into if, and to what extent, ADS-B Out off operations happen in dense
urban areas below 500 feet. In addition, FAA has issued some operators
authorizations to operate in mode C veils without transmitting ADS-B
Out, however, FAA does not have sufficient data on how often, or if,
ADS-B Out operations are conducted below 500 feet AGL, nor on the
necessity of such operations.
6. Operations Over Open-Air Assemblies
In addition to the population density categories, proposed Sec.
108.185(b) would prohibit all UA operations over open-air assemblies of
persons unless specifically authorized by FAA. FAA has determined that
the likelihood of impact with persons would greatly
[[Page 38242]]
increase should a UA have an airborne collision or failure during
operations over open-air assemblies of persons. Generally, open-air
assemblies are areas of large gatherings of persons, but other areas
can also be considered open-air assemblies. FAA considers open-air
assemblies of persons on a case-by-case basis. For example, in an FAA
legal interpretation, FAA determined that a picnic area, if it is
sufficiently populated, could be an open-air assembly of persons, as
could a beach.\52\
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\52\ See FAA Legal Interpretation addressed to Banner Tow USA
(March 3, 2010).
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Based on the high probability of injury to persons in the event of
a malfunction or operator error, FAA proposes that the safest means to
protect open-air assemblies of persons would be to prohibit all
operations from operating over open-air assemblies of persons, unless
otherwise authorized by FAA. This would also prohibit transient
operations over open-air assemblies of persons. Given the low altitude
of operations, higher potential UA weight, and minimal options for
maneuverability should an airborne collision or failure occur,
sustained operations would likely impact persons directly below. During
transient operations, the UA's current direction of flight would likely
be the trajectory for impact. A UA failure with a forward momentum may
create a larger debris field with a trajectory directly into the open-
air gathering. Furthermore, UA intended for operation under this
proposed rule may weigh 1,320 pounds, significantly greater than the 55
pounds permitted for certain transient operations under part 107. The
risk associated with transient operations and the potential for
greatest impact is something that cannot be broadly mitigated at this
time and must be evaluated on a case-by-case basis.
I. Use of Strategic Deconfliction and Conformance Monitoring (Sec.
108.190)
FAA proposes in Sec. 108.190(a)(1) to require part 108 operators
conducting their operations in controlled airspace to use approved
capabilities for strategic deconfliction and conformance monitoring. In
addition, under proposed Sec. 108.190(a)(2), part 108 operators flying
over a population density of Category 3 or higher would be required to
use an approved capability for strategic deconfliction. Operators may
meet these respective requirements by opting into using an authorized
automated data service provided by an appropriately certificated
service provider under proposed part 146, or by receiving their own
part 146 certificate and authorization so that the operator can self-
provision the service. This is so long as the service provision meets
part 146 requirements to provide reasonable and non-discriminatory
access to airspace and adhere to other procedural requirements for all
users of the service.\53\ For further discussion on part 146, see
section XIII of this preamble.
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\53\ FAA emphasizes that automated data service providers do not
have the authority to provide operators with access to the NAS, as
that authority resides solely within FAA. However, certain
services--such as strategic deconfliction--have the capability to
coordinate its user's operational intent with others in the network,
therefore may block that space for a specific time, which may
inadvertently result in non-equitable treatment of aircraft
operators. FAA has established a priority of operations schema,
providing guidance to operators in identifying priorities of
operations, and providing an indication of whether conflicts can
exist among operations at the same priority level. FAA's priority
schema, for applicable services, is addressed in AC 146-1, available
in the public docket for comment.
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1. Description of Strategic Deconfliction and Conformance Monitoring
In proposed Sec. Sec. 108.190(b) and (c), FAA sets forth
performance-based requirements for performing strategic deconfliction
and conformance monitoring.\54\ FAA proposes in Sec. 108.190(b) that
having a strategic deconfliction capability--required in both
controlled airspace and when flying over a population density of
Category 3 or higher--would mean being able to perform strategic
conflict detection and resolution prior to takeoff, and in relation to
other UA operations that are discoverable at that time, as well as
being able to maintain a target average conformance to all operational
intents that are utilized by the operator.
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\54\ FAA derived definitions for strategic deconfliction and
conformance monitoring, as well as several terms used in the
regulatory text, from ASTM F3548-21, Standard Specification for UAS
Traffic Management (UTM) UAS Service Supplier (USS)
Interoperability, which is an industry consensus standard.
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The first requirement for strategic deconfliction is a preflight
function; it is the ability to perform strategic conflict detection
prior to takeoff and in relation to other UA operations that are
discoverable at that time.\55\ This capability would check the
operator's operational intent against conflicts with other discoverable
operational intents.\56\ In addition to detecting conflicts, through
the ability for strategic conflict resolution, strategic deconfliction
provides the operator with an opportunity to adjust their operational
intent (for example, by following a different path, flying at a
different altitude, or departing at a different time) until a conflict-
free route is found.
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\55\ See proposed Sec. 108.190(b)(1).
\56\ In proposed Sec. 108.5, FAA defines operational intent as
a volume-based representation encapsulating the intended flight path
for a UAS operation and comprising one or more overlapping or
contiguous 4-dimensional volumes defined by length, height, width,
and a beginning and ending time.
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The second requirement for strategic deconfliction is to achieve a
target average conformance when operating the UA in accordance with the
operational intent. A target average conformance is a lagging indicator
of how safely and efficiently the operator flew the strategically
deconflicted routes. The operator's automated data service provider
would support this function by calculating how often the operator
stayed within its operational intents and then notifying the operator
if the value were to fall below an established threshold.\57\
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\57\ This calculated value would be provided by the automated
data service provider on a recurring basis for the duration of the
flight operation and is generally represented as a percentage.
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UAS operators and service providers would not be required to report
the target average conformance value to FAA on an ongoing basis.
However, FAA would be able to verify these values through compliance
and safety assurance activities via the operator-reported data in
accordance with proposed Sec. 108.45 in any instance of failure,
malfunction, or defect in an authorized service. Furthermore, FAA may
verify these values by inspecting records maintained by the operator's
automated data service provider certificated under part 146, in
accordance with Sec. 146.330.
In addition to strategic deconfliction, UAS operated in controlled
airspace would also be required to have a conformance monitoring
capability provided by an automated data service provider certificated
under proposed part 146.\58\ FAA proposes in Sec. 108.190(c) that this
capability would need to include two specific functions. The first
function would be to provide time-sensitive alerts to operations
personnel whenever the UA exits its operational intent, consistent with
criteria or parameters established prior to takeoff. The second
function would be to communicate information to other airspace users
and FAA about the alert--via means acceptable to FAA.\59\
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\58\ A service providing conformance monitoring for a UAS
operation is required to also provide strategic deconfliction for
the operation. This is further discussed in AC-146, available in the
docket for this proposed rulemaking.
\59\ When communicating information about alerts to FAA, FAA
generally anticipates that only alerts that result in safety
concerns would need to be communicated immediately to the Agency.
For example, alerts regarding operational intents transitions from a
conforming to a nonconforming state may not pose a safety concern
because the non-conformance is expected and may only be temporary
until conformance is re-established. Such alerts would not need to
be communicated to FAA immediately. However, alerts regarding
operational intents transitions to a contingent state may pose a
safety concern; such alerts are considered time-sensitive and would
need to be communicated to FAA immediately. Further guidance on
information regarding alerts that need to be communicated to FAA,
including FAA criteria for identifying those alerts, is discussed in
AC-146, available in the docket associated with this rulemaking.
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[[Page 38243]]
An alert to the operator of a non-conformant UA would help the
operator gain and maintain situational awareness of their aircraft by
notifying the operator of the need to take action to bring the UA back
into the approved operational intent. Making the alert available to
other NAS users would enable further collision risk reduction by making
impacted operators of nearby UAS and manned aircraft aware of the off-
nominal operation, allowing those operators to determine their best
course of action to avoid a collision.\60\ Finally, making the alert
available to FAA would enable FAA to maintain the safety of aircraft
operations in controlled airspace.
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\60\ FAA anticipates that manned aircraft may choose to
participate in the UTM network to maintain situational awareness of
UAS operations nearby. Manned aircraft who choose to do so would be
able to receive alerts, provided they subscribe to receive push
notifications for a given area of interest.
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Proposed Sec. 108.190(d) states that, unless otherwise authorized
by FAA, operators would need to meet the requirements in Sec. Sec.
108.190(b) and (c) by using a service provider certificated under
proposed 146 with the appropriate service authorization. Operators
could choose to either self-provision the necessary services described
above by applying for and receiving their own certificate and
corresponding service authorization under proposed part 146 or use
another certificated service provider to provide the service for them.
These options are meant to strike the optimal balance between ensuring
airspace safety, while providing a degree of flexibility to UAS
operators. Some operators may choose to build their own service that
includes features uniquely suited to their own needs, while other
operators may prefer to shop across an open and competitive marketplace
of qualified services. Overall, FAA anticipates automated data service
providers would offer a range of products with various price points and
additional value-added features for UAS operators.
2. Requiring Use of Strategic Deconfliction and Conformance Monitoring
In 2022 and 2023, in response to BVLOS ARC recommendation TP
2.2,\61\ FAA contracted with Johns Hopkins University Applied Physics
Laboratory to conduct extensive simulation-based research of UAS
interactions using USS to provide strategic deconfliction to determine
the safety benefit of the functionality and to inform FAA policy about
its use, including for this rulemaking. The simulation environment
represented commonly expected UAS mission profiles, vehicle behavior,
airspace restrictions and variations in population density. In total,
the Applied Physics Laboratory conducted more than 450,000 airspace
simulations representing nearly 94 million UAS flight hours, the
research showed midair collisions between UAS were about 100 times less
likely to occur when strategic deconfliction was used by all UAS,
compared with simulations in which UAS did not use strategic
deconfliction.\62\ The use of strategic deconfliction resulted in a
corresponding two-order-of-magnitude decrease in the rates of ground-
based injuries or fatalities when simulated over a wide range of
locations and variations in population density.\63\ However, with 75
percent of UAS participating in strategic deconfliction, the midair
collision rate decreased by only about half. This is a significantly
higher number of midair collisions, which occurs because non-
participating UAS would follow routes that would intersect with
operational intents, resulting in collisions in some instances.
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\61\ ARC recommendation TP 2.2 states: ``FAA and NASA should
conduct a study to determine what level of aircraft operations in a
defined volume of the airspace would trigger the need for mandatory
participation in federated or third-party services.'' The ARC
recommendation further mentioned that an ``interoperable safety
services such as strategic deconfliction'' is an example of one of
these services.
\62\ Johns Hopkins Applied Physics Laboratory, Initial Safety
Criticality Assessment of Unmanned Aircraft System Traffic
Management (UTM) Strategic De-Confliction and Impacts to Beyond
Visual Line of Sight Operations (2022) (provided in docket).
\63\ See Zanlongo, S., Ground Risk Assessment Report for Urban
UTM Operations, AOS-23-1252 Version 1 (2023) (provided in docket).
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Separate from this research, the ASTM International USS
Interoperability Workgroup conducted a series of analyses between 2020
and 2023 to characterize the safety benefit of strategic deconfliction
services. The three independent modeling efforts yielded similar
results indicating significant reduction in collision risk for UAS
using strategic deconfliction, compared with using no strategic
deconfliction. ASTM International published this safety case framework
for strategic deconfliction in appendix X4 of the Standard
Specification for UTM UAS Service Supplier Interoperability \64\ with a
representative safety analysis resulting in a 97.9% reduction in midair
collisions using strategic deconfliction. This is within the same order
of magnitude of the collision risk reduction found in FAA's research
with Johns Hopkins University. The combined results from FAA and ASTM
workgroup analyses--that were conducted separately and used different
approaches--provide a strong body of evidence that requiring the use of
strategic deconfliction is highly effective at reducing midair
collisions between UAS.
---------------------------------------------------------------------------
\64\ Standard Specification for UAS Traffic Management (UTM) UAS
Service Supplier (USS) Interoperability, ASTM F3548-21 (2022),
www.astm.org/f3548-21.html.
---------------------------------------------------------------------------
The strategic deconfliction model is less effective if there is not
an inflight means, such as conformance monitoring, to verify that UAS
are flying within their operational intents. The Applied Physics
Laboratory research indicated that deviations outside of those
operational intents could increase collision risk with another UAS,
even if it is operating in its own strategically deconflicted
operational intents nearby.\65\ Separately, conformance monitoring
capabilities have been demonstrated in the UTM Pilot Program (UPP) and
UTM Field Test (UFT) scenarios to be effective at further reducing
collision risk, especially if the UAS did not have DAA that could
recognize and maneuver away from other UAS.\66\
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\65\ Zanlongo, S., Conformance Monitoring Assessment Report for
Urban UTM Operations, AOS-23-1253 Version 1 (2023) (provided in
docket).
\66\ FAA, UTM Field Test (UFT) Final Report (Nov. 6, 2023),
www.faa.gov/uas/advanced_operations/traffic_management/UFT-Final-Report.pdf.
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Furthermore, beginning in the fall of 2023, FAA established the UTM
Key Site Operational Evaluation in North Texas. This initiative
establishes partnerships with operators and UAS Service Suppliers (USS)
\67\ and works with suitable participants in attaining the necessary
exemptions to operate BVLOS at a key site. As discussed further in
section XIII, USS are UAS-specific automated data service providers and
form a crucial component
[[Page 38244]]
in the development of the UTM ecosystem. FAA anticipates that USS will
coalesce into networks that provide all manner of services necessary
for full integration of UAS including, but not limited to, strategic
deconfliction and conformance monitoring services.
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\67\ An automated data service provider that fulfills the
strategic deconfliction or conformance monitoring functions, whether
self-provisioned by the operator, or deployed by another person, is
referred to as a USS, a provider of particular type of UAS services
to the UTM ecosystem.
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FAA has learned through data collection and observation of the UTM
Key Site Operational Evaluation that industry can effectively self-
govern many aspects of standing up and running a USS Network.\68\ This
effectiveness was a result of industry committing to adhere to an
interoperability standard, in this case ASTM F3548-21, which has a
performance target and feedback mechanism for operators. This self-
governance included mechanisms for the automated data service providers
to measure and track each operator's conformance rate over time. It
also provided opportunities for operators whose conformance rate was
too low to come into compliance with the expected performance target.
As part of this industry-led initiative, FAA would issue a letter of
acceptance to an automated data service provider, who has been paired
with a UAS operator, if the pair has successfully demonstrated that
their automated data service is effective in managing UA to UA
collision risk.\69\
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\68\ Per the UTM Concept of Operations v2.0 (Mar. 2, 2020),
www.faa.gov/sites/faa.gov/files/2022-08/UTM_ConOps_v2.pdf, USS
Network is an amalgamation of USSs connected to each other,
exchanging information on behalf of subscribed operators. The USS
Network shares operational intent data and other relevant details
across the network to ensure shared situational awareness for UTM
participants.
\69\ Each FAA-issued letter of acceptance to an automated data
service provider compliments an FAA waiver or exemption issued to
the UAS operator paired with that same provider. While the waiver or
exemption issued to the UAS operator highlight the operational
conditions or limitations the operator needs to abide by to deviate
from FAA's requirements, the letter of acceptance documents FAA's
analysis of industry's self-governance documents and the automated
data service's testing results.
---------------------------------------------------------------------------
Based on the success observed, FAA issued 2 letters of acceptance
to automated data service providers in July 2024--one to Zipline and
another to Wing. In the letter of acceptance issued to the automated
data service providers, FAA highlighted its findings that using
strategic deconfliction is a safe and effective means of managing
collision risk among UA flying simultaneously, by multiple operators,
and in the same area. In addition, FAA took the opportunity from this
industry-led initiative to develop a streamlined regulatory approval
process of certain automated data services. The UAS industry has
expressed to FAA the need for approving certain automated data
services, in this case strategic deconfliction, to scale their UAS
BVLOS operations safely. As a result, FAA proposes the creation of part
146 in this rulemaking, allowing UAS operators to scale their BVLOS
operations, given a service's proven safety benefit. For a further
discussion FAA's proposal for regulating automated data services
providers, and their services--such as strategic deconfliction or
conformance monitoring--see section XIII of this preamble.
3. Alternatives Considered
FAA considered requiring the use of strategic deconfliction and
conformance monitoring for all UAS operations but settled on proposing
that strategic deconfliction would only be required when operating a UA
in controlled airspace or over a population density of Category 3 or
higher and that conformance monitoring would only be required when
operating a UA in controlled airspace. In making this determination,
FAA considered comments received in response to a May 2023 Federal
Register notice regarding UAS BVLOS operations (BVLOS FRN) \70\ that
included FAA-funded simulation research into the effectiveness of
strategic deconfliction at reducing collision risk between UAS and
insights gained from the UTM Key Site Operational Evaluation.
---------------------------------------------------------------------------
\70\ 88 FR 33855 (May 3, 2023).
---------------------------------------------------------------------------
In the BVLOS FRN, FAA asked the public about requiring UAS BVLOS
operations to use services providing strategic deconfliction and
conformance monitoring in any airspace. Many of the comments argued
that such a requirement was not proportionate to the underlying risk of
collision between UA in sparsely populated areas. Commenters argued
that the likelihood of collision between UA in such areas would be
lower because fewer UA are likely to be operating simultaneously and in
proximity to each other. Commenters also argued that, in the event of a
collision, it would be unlikely that falling debris would cause
property damage or injuries to people on the ground in sparsely
populated locations. Commenters also emphasized that, because
conformance monitoring relies on a real-time network connection to send
alerts, the function may not be implementable in remote parts of the
United States with poor cellular connectivity, especially if
alternative C2 link options were not available. FAA agrees with the
commenters, and therefore has proposed requiring strategic
deconfliction only in controlled airspace, or when flying over a
population density of Category 3 or higher, and conformance monitoring
only in controlled airspace.
FAA also considered the approach recommended by the BVLOS ARC,
which was to not require strategic deconfliction or conformance
monitoring, but rather to allow their use via a service if an operator
chose to do so. However, FAA has determined that, without a requirement
for all operators in certain environments to perform strategic
deconfliction, there would be only a marginal safety benefit. As
discussed earlier, strategic deconfliction is most effective when all
UAS in a given area are participating in the function.
FAA also considered permitting operators to find their own way to
manage collision risk with other UAS. This would provide operators with
a variety of solutions, which might include manual coordination with
other operators; use of emergent collision avoidance technology
predicated on detecting other UAS; or use of an automated data service
provider certificated under part 146. However, FAA found that while it
would be desirable to provide maximum flexibility, such an approach
would have decreasing safety benefits because operators may not be
aware of each other's operations. Further, there is not yet a
demonstrated operationally validated solution for tactical collision
avoidance between UAS.\71\ FAA seeks comments on whether the UAS-to-UAS
collision risk is appropriate for the nature of proposed operations
when the operator is using strategic deconfliction or conformance
monitoring through a part 146 certificated entity.
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\71\ The RTCA minimum operational performance standards (MOPS)
for Airborne Collision Avoidance System X for sUAS (ACAS sXu)
provide an algorithmic means of alerting and avoiding other drones,
but require a sufficient means of detecting other drones that has
not been standardized.
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J. Operations Near Aircraft: Low Altitude Right-of-Way Rules (Sec.
108.195)
FAA's system of right-of-way is based on the foundational principle
of ``see-and-avoid,'' a concept based on aircraft maneuverability,
piloting skillset, physical limitations of VLOS, and the conspicuity of
other aircraft to determine right-of-way. This is the basis of
Sec. Sec. 91.113 and 91.115, as well as other part 91 requirements
such as cloud clearances, visibility minimums, aircraft lighting for
night operations, and other associated design and flight requirements.
FAA has taken this consistent approach into account in
[[Page 38245]]
developing right-of-way rules for proposed part 108.
Under FAA's approach to right-of-way, the aircraft with right-of-
way can continue their flight unimpeded, while the other aircraft gives
way. The proposed changes to the right-of-way structure envisioned
under part 108 would maintain that principle, updating the existing
requirements under part 91 to accommodate this new entrant. Under
proposed Sec. 108.195 and the proposed amendments to Sec. 91.113, UA
operating under part 108 would be required to yield to all manned
aircraft broadcasting their position using ADS-B or electronic
conspicuity equipment, and those operating in specific locations.
Specifically, manned aircraft operating in a Category 5 population
density area as described in proposed Sec. 108.185, operating in Class
B or C airspace as described in proposed Sec. 108.180(b), or departing
from or arriving at an airport or heliport would have right-of way over
the UA.
The BVLOS ARC made several proposals related to right-of-way in
their final report. These included allowing for ``detect-and-avoid'' (a
technology-based approach to ``see-and-avoid''), giving UA right-of-way
in shielded areas, giving UA right-of-way over non-cooperative
aircraft, and giving cooperative manned aircraft right-of-way over UA.
``Cooperative'' in this context meaning aircraft broadcasting their
position using ADS-B Out equipment or electronic conspicuity equipment.
FAA is proposing to adopt the BVLOS ARC's recommendations related to
giving UA right-of-way in shielded areas, giving manned aircraft
broadcasting their position using ADS-B Out equipment or electronic
conspicuity equipment right-of-way over part 108 UA, and giving part
108 UA right-of-way over manned aircraft who are not broadcasting. FAA
has decided not to update Sec. 91.113 based on the BVLOS ARC's
proposal related to ``detect-and-avoid'' at this time. This change
would require further updates to part 91, affecting legacy aviation in
a manner that is out of scope of this rulemaking effort.
Proposed Sec. 108.195(a) states that UA operating under part 108
would be required to yield right-of-way to all aircraft departing from
or arriving at an airport or heliport or equipped and broadcasting
their position using ADS-B Out equipment that meets the performance
requirements of Sec. 91.227. FAA acknowledges that ADS-B Out systems
may occasionally fail to meet the performance requirements of Sec.
91.227. Therefore, FAA expects DAA standards would include performance
requirements for the UAS so that the system can avoid aircraft when
ADS-B Out equipment exhibits performance deficiencies.
In addition to ADS-B Out equipment that meets Sec. 91.227, FAA
would allow for an electronic conspicuity device that broadcasts a
signal on Universal Access Transceiver (UAT)/978 MHz and that would
also provide a means for the manned aircraft operator to retain their
right-of-way over the UA. FAA anticipates that equipment that is able
to broadcast limited ADS-B information, including aircraft location,
would make manned aircraft electronically conspicuous to UA that are
already listening for that signal. A portable device would be capable
of fulfilling this requirement. FAA does not foresee this limited-
information broadcast to fulfill the full requirements of ADS-B
equipment that must comply with Sec. 91.227. Instead, it would only be
used to make UA aware of the presence of a manned aircraft that the UA
must yield to.
FAA considered mandating ADS-B Out for all operations below 500
feet for manned aviation operators but decided that was not tenable due
to the additional cost and burden that would impose. However, FAA plans
to define new requirements for a portable low-cost electronic
conspicuity (EC) device that could be used by manned aviation operators
solely to retain right-of-way over a part 108 UA. This could be in the
form of a new Technical Standing Order (TSO), or another form of
approved specification issued by FAA, but FAA invites comment on the
best way to enable this technology. The specification would allow for
the device to be battery-powered and easily moved between aircraft,
which would minimize costs for an owner of multiple aircraft and for a
pilot of different rental airplanes by only having to purchase one
device. This EC device could use its own antenna or attach to an
external antenna and broadcast the aircraft's identification and
location repeatedly, informing nearby receivers of the location of a
manned aircraft that would need to be avoided by UAS. This EC device
would be useable in any manned aircraft, including fixed-wing,
rotorcraft, balloons, and ultralight vehicles, without expensive
installations or reliance on onboard electrical systems.
FAA also considered requiring part 108 UA to monitor and perform
separation for aircraft that are broadcasting their position over a
networked connection, such as the internet. This could enable a
technological solution on the manned aircraft side where the pilot of a
manned aircraft could use something as simple as an app on their cell
phone that was low cost, or free to provide right-of-way retention.
However, research into this as a viable solution has not yet occurred
and the concept is still too new to incorporate into a rulemaking
proposal without significant interest. However, FAA notes that the
section 906 of FAA Reauthorization Act of 2024 requires the Comptroller
General to conduct a study of technologies and methods that may be used
by operators of UAS to DAA manned aircraft that may lawfully operate
below 500 feet AGL and that are not equipped with a transponder or ADS-
B Out equipment or not otherwise electronically conspicuous. This type
of technology, which might not rely on transponder or ADS-B equipment,
could potentially be one way of meeting the intent of this study.
Therefore, FAA seeks comments on whether FAA should consider an added
equipage requirement in the final rule for UA in the event that such a
technological solution could be delivered before the rule is
implemented.
It is important to note that, per proposed Sec. 108.195(b), FAA
states that UA would be required to remain at a safe distance from
aircraft to which the UA would be required to yield the right of way.
FAA is also proposing an amendment to Sec. 91.113 to reference
proposed Sec. 108.195 (for more discussion, refer to section
XII.B.5.ii). The right of way rule would not apply for UA operations in
shielded areas, as specified in proposed Sec. 108.205. When conducting
operations in shielded areas, FAA proposes that UA would have the
right-of-way over all manned aircraft. As noted above and further
discussed in the following section VI.L, this is motivated by the fact
that manned aircraft are extremely unlikely to be operating in shielded
areas. Also discussed previously in section VI.H, the existing
framework for avoiding collisions has been predicated on conditions
largely specific to manned aircraft operations. To enable BVLOS
operations, this proposed rule considers how to fulfill those functions
in the context of strategic deconfliction, right of way requirements,
and DAA. Strategic deconfliction requirements, referring to the
preflight planning that ensures that the routes taken by all UA in a
given area do not conflict, was discussed in section VI.I, while the
proposed right of way requirements to increase conspicuity was
discussed in section VI.J.
In proposed Sec. 108.195(b), FAA further proposes that operators
would need to use a method acceptable to the Administrator for
determining safe
[[Page 38246]]
distance that statistically mitigates the risk of a collision to a
remote event. FAA anticipates that an acceptable standard would require
the ability to calculate and verify separation distances with manned
aircraft in order to determine proximity, have a means to measure the
performance of the equipment used to determine separation, and ensure
that the assumptions used in the separation distances are appropriate
and comparable to the types of operations intended to be conducted. FAA
also expects that any such safe distance used would place no undue
tactical burden on other aircraft such that a UA operating BVLOS may
cause a potential safety hazard for a manned aircraft by trying to
avoid the UA. The minimum safe distance used would need to be based on
the balance of the technological capability of the systems and the
interaction with the manned aircraft.
The first criteria, calculating and verifying separation, could be
met by the operator having DAA technology installed on their aircraft
that meets the design and performance requirements set out in a
relevant industry consensus standard that has been accepted by FAA
pursuant to the process described below. At the time of this preamble,
FAA has reviewed DAA and associated calculation methodologies in
reports from MIT/LL, the DAA standards proposed by ASTM Committee F38
on UAS, and RTCA Airborne Collision Avoidance System (ACAS) standards.
Based on this, FAA anticipates that industry has many means to be able
to calculate the separation distance of a UA to manned aircraft in
tactical DAA mitigation strategies. FAA looks to industry and other
stakeholders to recommend any further industry consensus-based
standards as a means to be able to show FAA their tactical DAA
separation calculations.
The second criteria, to measure the performance of the equipment
used to determine separation, could be achieved with design and
development compliance to the RTCA ACAS sXu or other DAA design
standards for GPS systems for tactical mitigation, as well as
connectivity to strategic deconfliction networks for strategic
mitigation. In current part 107 BVLOS waiver operations, operators have
used both strategic and tactical DAA systems, which generate associated
performance data for their operation. Strategic DAA has consisted of
lowering the estimated aircraft encounter rates through preflight
planning that avoided known traffic areas, pre-launch holds when
traffic approached the launch area, and early or strategic pre-DAA or
separation to avoid an encounter and maintain a safe distance.
Operators have been able to demonstrate meaningful increases in
separation distances from other aircraft using tactical DAA systems,
such as radar, cameras, and ADS-B In systems, when compared to what
would have been the closest point of approach without the DAA or
separation system detecting and avoiding the other aircraft. FAA
expects that this same level of performance in part 108 BVLOS
operations would allow for scalable integration of more expansive
operations.
The third criteria, using appropriate assumptions for separation
distances, could be met by operators utilizing a DAA technology that is
validated for the operation expected for their aircraft and supported
by appropriate flight data sets for the intended operations. In the
process of validating DAA technology, FAA expects that a manufacturer
of a UA would comply with a DAA industry consensus standard for design
requirements. The operator could review the operations manual of the UA
to understand the aircraft's DAA tactical abilities and how the
aircraft may be used safely within their expected BVLOS operations. FAA
expects that an industry consensus standard would utilize a
standardized means of performance validation.
K. Remote Identification of Unmanned Aircraft (Sec. 108.200)
FAA proposes in Sec. 108.200(a)(1) that, unless otherwise
authorized by FAA, no person would be able to operate a UA under part
108 unless the UA meets the requirements for standard remote
identification. In addition, in proposed Sec. 108.200(a)(2), FAA
provides that the UA is not required to broadcast the control station
location as required under Sec. 89.305 (b) and (c) if the unmanned
aircraft is being operated without a flight coordinator in accordance
with 108.310. In addition, in Sec. 108.200(a)(3) FAA proposes that the
UA would be required to broadcast a remote identification operational
status message that indicates whether the UA is being operated BVLOS, a
status which indicates that the unmanned aircraft is being operated
without a flight coordinator in accordance with 108.310, if applicable,
and the takeoff location of the unmanned aircraft. FAA is also
proposing that the broadcast range would need to be optimized to enable
other aircraft to use the remote identification signal for situational
awareness. FAA also proposes in Sec. 108.200(a)(3) an update to the
minimum performance requirements for standard remote identification:
when the UA operational status is set to BVLOS, the performance (range)
of the broadcast would need to be sufficient to allow the UA to remain
a safe distance from other aircraft. This proposal is intended to
enable operators of other aircraft to identify UA that are operating
BVLOS so the aircraft can remain separated by a safe distance. This may
require higher performance levels for the equipment used to transmit
the standard remote ID broadcast from the UA than what is typically
used for aircraft operating under part 107. FAA seeks feedback from
members of the general aviation (GA) community as to what would be a
sufficient distance that the signal would need to be broadcast for GA
aircraft to have enough time to maneuver.
FAA proposes in Sec. 108.200(b) that the standard remote
identification UA used for part 108 operations under this part would be
required to meet the requirements of an FAA-accepted means of
compliance for standard remote identification that includes the
operational status message element described in this section. FAA notes
that the currently accepted remote identification means of compliance
(RID-ASTM-F3586-22-NOA-23-01), which is based primarily on ASTM
standards F3586-22 and F3411-22a, already voluntarily contains
provisions for up to 16 unique operational status indications. FAA has
concluded the addition of a BVLOS operational status indication can be
implemented without a significant impact to existing users of remote
identification.\72\ FAA does not anticipate this provision will
introduce any additional difficulty for manufacturers when producing UA
equipped with remote identification for airworthiness acceptance under
part 108. FAA also does not currently intend to impose any additional
broadcast requirements on aircraft operated outside of part 108 as part
of this rulemaking, so aircraft currently operating that are compliant
with standard remote identification using the only currently accepted
remote identification means of compliance, using a broadcast module, or
operating under an FAA-Recognized Identification Areas (FRIA) would not
be impacted. But FAA welcomes comments on whether other operating
rules, such as part 107, should also be updated to include a broadcast
operational status message requirement.
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\72\ See 87 FR 49520, 88 FR 77895.
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For the airworthiness acceptance of remote identification systems
installed on UA operated under part 108, FAA is
[[Page 38247]]
proposing a new Sec. 89.511 for production requirements for UA
produced under an airworthiness acceptance issued under part 108.
Currently, production of standard remote identification UA is under
either Sec. 89.510 for UA produced under a design approval or
production approval issued under part 21 or Sec. 89.515 for UA without
design approval or production approval issued under part 21. FAA is
proposing a new Sec. 89.511 for UA produced under an airworthiness
acceptance issued under part 108. This new section would require the
remote identification system installed on UA operating BVLOS under part
108 to meet the airworthiness acceptance requirements under part 108
rather than the requirements in Sec. 89.515, which are intended for UA
produced without any airworthiness requirements, such as those operated
under part 107 or 49 U.S.C. 44809. The proposed amendment to Sec.
89.511 also requires conforming amendments to Sec. Sec. 89.505 and
89.515. As such, FAA is proposing amendments to Sec. Sec. 89.505 and
89.511.
L. Operation in Shielded Areas (Sec. 108.205)
As discussed in section VI.J, FAA has proposed allowing part 108 UA
to have right-of-way while conducting operations in shielded areas. In
Sec. 108.205, FAA proposes defining shielded areas as areas within 50
feet of certain infrastructure, to include power lines and substations,
railroads, bridges, and pipelines, when permission from the facility or
infrastructure owner is obtained. In addition, FAA is reserving the
right to designate any other area as shielded, as appropriate. It is
important to note that proposed Sec. 108.205 would prohibit UA being
operated in shielded areas where manned aircraft are expected to
operate.
The proposed use of both infrastructure and protected facilities to
create shielded airspace for UAS is intended to enable a broad range of
BVLOS UAS operations. Manned aviation must follow the altitude and
obstacle requirements of Sec. 91.119, and only in certain instances
can manned aircraft intentionally come closer to infrastructure and
terrain features than 500 feet. This creates an opportunity for UAS,
which can operate closer to obstacles and structures without having the
increased risk that would result from manned aircraft attempting to
conduct the same operations. Part 108 UA are expected to mostly be
smaller than manned aircraft and would therefore be able to navigate
more nimbly. This, combined with the lack of humans on board the UA,
reduces the risk in shielded operations when compared to manned
aircraft.
Traditionally, close-up inspection by manned aircraft (fixed-wing
or helicopter) has been the method used by electrical transmission and
pipeline utilities to inspect and maintain these lines. By allowing the
use of UAS to perform these types of operations, FAA anticipates that
the risks associated with these operations would be reduced. But in
determining if the UA operation should be considered shielded, FAA must
consider the remote possibility of a helicopter air ambulance,
helicopter, manned agricultural aircraft, or another type of manned
aircraft operating close to infrastructure and in the same area as the
UA. FAA has concluded that requiring permission from the infrastructure
owner for an operation to be considered shielded would be the best way
to deconflict these types of activities, since they would be in the
best position to know what types of operations are being conducted.
However, it should be emphasized that this in no way provides an
infrastructure owner the ability to control the airspace over their
infrastructure and any non-shielded operations can still occur without
said permission. Furthermore, it should be noted that this is in
addition to the requirements proposed in Sec. 108.180 for gaining
access to controlled airspace, if required.
With this, FAA finds that the requirement of a 50-foot limit from
structures is consistent with the risk accepted based on prior waivers
granted and recommendations made from industry. This 50-foot limit
would support numerous operations, including building, bridge, and
other infrastructure inspection. A 50-foot limit also strikes a balance
between allowing an adequate distance away from infrastructure for the
safety of the UA and general camera and imaging equipment capabilities,
while also providing an appropriate safety margin from other potential
manned aircraft operations. In addition, powerline inspection can
benefit from the 50-foot limit due to electrical and magnetic field
metrics that require minimum UA standoff distances when operating
within the vicinity of powerlines. Manned operations should be
operating far enough away from powerlines that a 50-foot limit should
provide enough of a separation distance from the UA operating under
part 108 and manned aviation operations in the vicinity of the UA
operation. In time, the definition of a shielded area may expand beyond
what has been defined for linear infrastructure. To support the
flexible application of shielded operations, FAA proposes to permit
additional shielded operations through an authorization under Sec.
108.205.
Operations that propose an operating area within 50 feet of certain
infrastructure that do not have permission of the facility or
infrastructure owner, do not qualify to fly under the designation of
shielded operations. This is to limit operations that may leverage the
removal of DAA compliance and strategic deconfliction to be able to
conduct operations in areas where the risk of the operation of the
aircraft is mitigated based on location, speed, and closeness of the UA
to the infrastructure being inspected. The 50-foot offset granted under
shielded operations under this rule is meant to provide enough distance
for a UA to conduct operations without impeding on other operations in
the vicinity of the infrastructure being inspected.
While FAA has defined the specific infrastructure sites of
powerlines and substations, railroads, bridges, and pipelines as the
qualifying infrastructure, FAA recognizes there are additional
structures that could be included in this definition and requests
comments on the list.
M. Operations of Multiple Unmanned Aircraft (Sec. 108.210)
The technological ability for one individual person to manipulate
multiple aircraft simultaneously is unique to the UAS environment. FAA
recognizes that broader applicability of controlling or monitoring
multiple UA per person, or groups of persons, is an important
consideration in scaling UAS operations to greater commercial and
societal benefit, while also recognizing that this scenario presents
greater complication to the operational environment. To ensure there is
no safety gap as a result of these differences, FAA has proposed Sec.
108.210 to provide allowance for the operation of multiple UA. Proposed
Sec. 108.210(a) states that operators would only be able to conduct
operations at a UA to flight coordinator ratio of 1:1, except in
accordance with a method acceptable to the Administrator. FAA expects
that industry consensus standards would be developed, and later
accepted by FAA, which would meet this industry need. FAA would also
evaluate proposals from operators related to operating multiple UA on a
case-by-case basis. Such an evaluation is already occurring with
current UAS operations, including those with package delivery operators
and agricultural UAS operators, as part of FAA's review of exemption
petitions
[[Page 38248]]
and waivers. Factors that FAA considers when making such determinations
currently include the technology used and the operational procedures in
place. FAA anticipates using similar factors when making case-by-case
decisions under part 108. Proposed Sec. 108.210(b) states that flight
coordinators would not be allowed to be responsible for operations of
more UA than what the flight coordinator is reasonably capable of
handling during normal, abnormal, and emergency conditions, determined
in a method acceptable to FAA. How to determine the number of UA a
flight coordinator is capable of handling would be addressed in any
consensus standard that may be developed, or FAA would determine this
number at the time of evaluation. Proposed Sec. 108.210(c) states that
flight coordinators would not be allowed to be responsible for
operations of more UA than specified in the manufacturer's operating
instructions, which highlights that there may be a difference between
the ratio identified in the manufacturer's operating instructions and
the ratio at which an operation can be conducted by an operator. The
ratio identified in the manufacturer's operating instructions would
consider the ability of the technology and system capability, but it
would not be able to fully account for the specific operating
conditions, individual company procedures, and human factors for any
given operator. In addition to the parameters set by the operating
instructions, the operator may consider human factors, weather
conditions, the category of operating over people, the strategic
deconfliction and DAA technologies utilized by the operator, and other
relevant information when developing a method acceptable to the
Administrator. Being responsible for a UA would include, but would not
be limited to, operating or monitoring the UA.
Furthermore, this proposal will only outline the allowed 1:1
operations under part 108, but it will not list an allowable ratio of
flight coordinators to a specific number of part 108 UA for any given
operation. FAA expects there to be a great deal of variety among part
108 UA designs. As such, the manufacturer of these multiple UA systems
would be in the best position to design the maximum number of aircraft
to be operated at one time by a single flight coordinator under optimal
conditions. Conversely, FAA understands that operators may not hold
optimal training commensurate with the expected operation or plan to
operate in fully optimal conditions. Therefore, the ratio of aircraft
to flight coordinator would be determined based on the UA design
characteristics and FAA's review of the operation. FAA recognizes that
there is significant interest in the industry in being able to operate
1:many at scale to facilitate further UAS integration. However, at this
time there is limited industry standardization, and the variances of
aircraft design and operational considerations are too great to be able
to codify a singular set of parameters to enable 1:many operations. FAA
invites public comment on how 1:many operations could be safely
standardized and expanded in the regulations beyond 1:1.
Current 1:many operations have mostly consisted of package delivery
operations under parts 107 and 135. In addition, ``swarm'' operations
have been granted waivers under Sec. 107.35 for drone light shows and
other entertainment purposes. In many operational use-cases, there may
be opportunities to use 1:many operations for the benefit of
agriculture, surveillance, infrastructure inspection, and many other
operations, as described by the BVLOS ARC in March 2022 (for more
information on the BVLOS ARC, see section III.C0).\73\
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\73\ Unmanned Aircraft Systems Beyond Visual Line of Sight
Aviation Rulemaking Committee Final Report, (Mar. 10, 2022),
available at www.faa.gov/regulations_policies/rulemaking/committees/documents/media/UAS_BVLOS_ARC_FINAL_REPORT_03102022.pdf.
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N. Careless and Reckless Operation (Sec. 108.125)
Existing FAA regulations such as Sec. 91.13 prohibit a person from
operating an aircraft in a careless or reckless manner that may
endanger the life or property of another. These regulations also
prohibit any object being dropped from an aircraft in flight if doing
so would create a hazard to persons or property.
FAA proposes Sec. 108.125(a) to ensure that UAS would not be
operated under part 108 in a careless or reckless manner. Proposed
Sec. 108.125(b) would also prohibit allowing an object to be dropped
from a UA in a manner that would create an undue hazard to persons or
property. In Sec. 108.125(c), FAA proposes that part 108 UA would not
be able to be operated in such a way that creates a collision hazard
with property of another, vehicles, persons, structures, other UA, or
aircraft with one or more people on board. As the primary mission of
FAA is the safety of the NAS and the public, operation of a UA in a
manner that could cause damage to property or injury to persons would
be unequivocally prohibited, whether the cause is intent, lack of skill
or training, faulty equipment, or recklessness. This is consistent with
other FAA regulations and is critical to ensuring a safe NAS. FAA notes
that, for purposes of research and development, UA are sometimes
intentionally collided into structures and objects, but that
intentional testing is not considered to be ``careless and reckless''
if done with appropriate safety mitigations and intent and does not
injure people nor damage another person's property.
O. Manuals (Sec. Sec. 108.130 and 108.135)
In Sec. 108.130(a), FAA is proposing that operators would need to
ensure that certain documents are available and readily accessible
during relevant operations. These documents would include the
manufacturer's provided UAS operating instructions (as described in
proposed Sec. 108.720), the manufacturer's provided UAS maintenance
instructions (also described in proposed Sec. 108.720), the
manufacturer's provided UAS configuration and control document (also
described in proposed Sec. 108.720), and the company operations
manual, as proposed in Sec. 108.135. These documents would provide the
operator's personnel with the UA's operational procedures and
limitations, emergency and abnormal procedures, operations policies,
methods and procedures for maintenance, accepted configurations, and
general company policies. These documents would be necessary for the
safe operation of the UA and for safety of overall operations.
In addition, FAA proposes in Sec. 108.130(b) that the operator
would need to ensure that all personnel have access to the documents
that pertain to their duties and responsibilities during the
performance of their duties. Depending on the duties required, some
manuals could be quite extensive. Requiring personnel to have access to
pertinent documents would allow personnel to immediately reference
relevant information during operations, rather than commit an entire
manual to memory. In addition, emergency, abnormal, or procedures that
are used infrequently should be verified by manual reference so as not
to omit any important step or process.
In Sec. 108.135(a), FAA proposes that each operator would be
required to prepare and keep current a manual setting forth the
operator's procedures and policies acceptable to FAA, which would be
essential to standardize processes and ensure uniformity in tasks
performed during operations. A company operations manual aids personnel
in following established
[[Page 38249]]
processes and procedures consistently. This consistency facilitates
improved efficiency and reduces errors. A company operations manual
would also be an essential resource for new personnel. It would provide
a structured overview of operations, policies, and regulatory
requirements that need to be followed.
In Sec. 108.135(b), FAA proposes that the company operations
manual may be in the form of one or more documents if the appropriate
portions of the manual, as well as changes and additions, are always
made available and accessible to the operator's personnel when such
personnel are performing their assigned duties. Operators should have
the flexibility to decide which manuals or sections of manuals would be
issued to personnel depending on their duties. This would enable the
operator to take smaller sections from large manuals and provide their
personnel information related to their specific work functions, rather
than information not relevant to their tasks. To ensure that all
operations are conducted consistently with what is written, personnel
should have a reliable and updated manual to enable him or her to
perform his or her mission properly. Having access to applicable
documents would also help to improve safety by reducing the risk of
incidents through appropriate procedures or work instructions.
Under proposed Sec. 108.135(c), FAA would require the manual be
made available to FAA upon request. As part of FAA oversight,
surveillance, and continued operational safety (COS), operators would
need to make the manual available for review to ensure the manual meets
the requirements of the proposed rule and is not contrary to any
applicable Federal regulations, the operator's operating certificate or
permit, or operations authorizations, as would be required under
proposed Sec. 108.135(d). This would also provide FAA with an
opportunity to verify the operation complies with its manual.
In addition, FAA proposes in Sec. 108.135(e) that information and
instructions contained in the manual must be displayed clearly and be
retrievable in the English language. For ease of obtaining information
during time-critical moments such as emergencies, manuals would need to
be printed in a clearly legible format or in electronic format that
displays in a way that is clearly visible in all lighting situations.
In maintaining the universal language standard in aviation, FAA
proposes that the manual should be retrievable in the English language.
FAA proposes in Sec. 108.135(f) that the manual revision status
would need to be controlled in such a way a person can immediately
ascertain the information is the most current. Personnel should be able
to ensure that all documentation related to operations, processes, and
policy is accurate, up-to-date, and compliant with relevant
regulations. While FAA is not proposing a requirement for a specific
revision format, one way to meet the revision requirement would be to
have a document revision history template that includes the current
date, the name of the person who made the changes in the revision
history template and a description of what changes were made in each
revision. A list of effective pages could also be included for easy
reference to manual holders to verify that the manual is up to the
current revision.
Under proposed Sec. 108.135(g), FAA would require that company
manuals must include certain items and procedures in order to
standardize important aspects of an operation. First, FAA proposes in
Sec. 108.135(g)(1) that a company manual would need to include the
name of the personnel required by Sec. 108.135 who are authorized to
act for the operator, their assigned area of responsibility, and their
duties, responsibilities, and authority. By requiring these personnel
to be spelled out in the manual, other persons working for the company
would be better able to understand the operational control and
structure of the company as it directly relates to responsibility of
the operation. In addition, FAA proposes in Sec. 108.135(g)(2) that
the manual contain a list of operations personnel positions required
and the responsibilities of each role. By making this a requirement,
employees would have a means to understand their roles and
responsibilities as they relate to the operation. FAA also proposes in
Sec. 108.135(g)(3) requiring the company operations manual to include
preflight procedures, in order to ensure that all personnel conduct the
same process.
FAA recognizes that not all UA are alike. Loading of a UA may be
done differently from aircraft to aircraft. Some UA may have external
pods, some UA may have a means to attach loads to the exterior of the
UA, and some may have an internal bay used to store payloads. Given
that not every UA is loaded in the same manner, FAA proposes in Sec.
108.135(g)(4) that the manual would need to contain procedures for
ensuring aircraft weight and balance has been accounted for.
As further described in section VI of this preamble, FAA proposes
in Sec. 108.135(g)(5) that operators would need to have procedures in
their manual on how to notify FAA after an accident has occurred.
Because this rule is flexible in how an operator divides the duties and
responsibilities for operations personnel, this proposal would not
require that the flight coordinator be the individual making
notification in the event of an accident, but rather allows the
operator to determine which individual would make that notification.
FAA therefore proposes that the company manual would need to include
company procedures for complying with accident notification
requirements.
FAA proposes in Sec. 108.135(g)(6) that the company manual would
need to include procedures for ensuring the appropriate operations
personnel know the current condition of the UA in order to determine
the airworthiness status of the UA. FAA anticipates this could be
accomplished in a number of ways, such as the use of a logbook or
through the use of electronic messaging or automation. As discussed in
sections VI.A and VI.E, preflight and determination of condition of
safe flight is paramount for ensuring safety of the operation.
Therefore, this proposal would require operators to include procedures
to determine the airworthiness status of the UA prior to flight and to
communicate that status to appropriate personnel.
FAA proposes in Sec. 108.135(g)(7) that operators would need to
have procedures for complying with the recordkeeping and report
requirements as required by proposed Sec. Sec. 108.40 and 108.45. In
proposed Sec. Sec. 108.40 and 108.45, FAA would require that specific
records be retained by the operator and that the operator would need to
make necessary reports of certain records to FAA. FAA understands that
not all operators would utilize the same recordkeeping or reporting
databases. FAA anticipates that some operators may store records
electronically, while others may store them in hard copy form. In
addition, because operator records play a significant role in showing
regulatory compliance to FAA, efficient and effective recordkeeping and
reporting by an operator would help to ensure that compliance is
continuously maintained. FAA therefore would require that operators
develop and publish those procedures within the company operations
manual.
FAA proposes in Sec. 108.135(g)(8) that the manual would include
procedures for access to and use of UA maintenance procedures and
inspection criteria. FAA recognizes that not all operators would
utilize the same methods of dispersing these procedures to applicable
personnel. For example, one operator
[[Page 38250]]
may choose to provide procedures in hard copy format while another may
choose to provide the procedures via electronic form. In order to
ensure that the applicable personnel receive and follow current
maintenance and inspection procedures, FAA proposes that operators
would need to include a procedure in the company operations manual for
their access and use.
FAA proposes in Sec. 108.135(g)(9) that the manual would also need
to contain procedures for developing and implementing emergency
procedures. The company manual should include information that the
operations personnel need to develop and implement procedures for what
to do in the case of various emergencies.
FAA proposes in Sec. 108.135(g)(10) that a company operations
manual includes procedures for the retrieval of aircraft that fail to
return to their intended landing location. By making this requirement,
FAA can ensure that operators are constantly aware of the location of
each UA and how to retrieve a UA that does not return to its intended
landing location.
FAA proposes in Sec. 108.135(g)(11) that the manual also contain
aircraft loading procedures, as applicable. FAA considers the proper
loading of a UA to be critical to safe operation as operations are
expected to be conducted over people and roads. Objects dropped from a
UA could pose a serious hazard. Similarly, improperly secured or
distributed loads may result in a loss of control of the UA and also
result in a hazard. Including loading procedures in the manual ensures
all operations personnel have access to this critical information.
Finally, FAA would require in Sec. 108.135(g)(12) that operators
include procedures for the identification and disposition of hazardous
materials in their company operations manual, including procedures
designed to avoid potential injury to employees and persons and
property. FAA also believes that proper identification of hazardous
materials in an operator's system can help to prevent such materials
from being improperly offered to (shipped on) traditional carriers.
Therefore, FAA proposes Sec. 108.135(g)(12) to ensure that UAS
operators are aware of the hazardous materials in their operation
including hazardous materials that may be installed in the UA. For
example, a large lithium battery that powers the UA should be
identified to ensure that employees are aware that there are hazardous
materials present within their operation.
P. Emergency Conditions (Sec. 108.215)
FAA proposes under Sec. 108.215(a) that an operator would be able
to request deviation authority from any FAA authorizations or
limitations during emergency conditions if the conditions necessitate
operations for the protection of life or property and a deviation is
necessary for the expeditious conduct of those operations. This is
intended to be for humanitarian needs where there is time to ask for
authorization, but not time to perform the necessary administrative
paperwork that would be needed to allow the operation through standard
procedures. If conditions arise requiring emergency operations--for
example, search and rescue missions or missions supporting first
responders' operations--FAA could authorize operators to deviate from
existing FAA authorizations or limitations in support of that emergency
operation. Ensuring public and aviation safety is FAA's primary
mission, and allowing deviations in the interest of safety would align
with FAA's mission.
In addition, FAA proposes in Sec. 108.215(b) that an operator may
deviate from any rule under part 108, to the extent required, if the
deviation necessitates immediate action to meet an in-flight emergency.
The provision of a deviation authority in emergency situations is akin
to a similar requirement for traditional aviation, Sec. Sec. 91.3(b)
and (c). Unforeseen circumstances can occur during operations and may
require the operator to act immediately and deviate from FAA
regulations in order to address the safety concern. If such a situation
arises in which an operator needs to deviate from the proposed
regulations, the operator may do so in the interest of public and
aviation safety.
Nonetheless, as proposed in Sec. Sec. 108.45 and 108.215(c),
operators who deviate from FAA requirements during emergency conditions
would be required to send a written report of that deviation to FAA
upon FAA's request. Operators would be required to submit documentation
describing the deviation and the nature of the emergency to FAA upon
request. This would ensure that FAA stays informed of the incidents
that could affect safety in the NAS and would allow FAA to determine if
the deviation was warranted.
Q. Unmanned Aircraft Flight Restriction (Sec. 108.220)
FAA proposes in Sec. 108.220 that no person would be allowed to
operate a UA within a UA flight restriction established in accordance
with part 74 of this chapter, except as prescribed in part 74. This
would align part 108 with a concurrent rulemaking titled Designation--
Restrict the Operation of an Unmanned Aircraft in Close Proximity to a
Fixed Site Facility, which is proposing these flight restrictions. FAA
anticipates that the NPRM for part 74, while separate, will be issued
at, or near, the same time as this preamble and proposes these changes
to remain consistent with that proposal. If the NPRM for part 74
receives comments that lead to changes that affect this requirement,
appropriate changes will be made to this section as well.
VII. Personnel Requirements (Subpart C)
A. Approach to Personnel in Part 108
1. Tailoring Personnel Requirements to Part 108 Operations
FAA issues airman certificates to accommodate the varied personnel
roles within manned aviation, to include pilots, air traffic
controllers, and other roles. 49 U.S.C. 44703. The regulations that
stem from this authority were developed and envisioned for manned
aviation, and, in 2018, Congress recognized that traditional airman
certification may not provide the necessary flexibility for UAS
operations. Therefore, Congress granted the Administrator authority to
determine if airman certificates are necessary for the safe operation
of UAS. 49 U.S.C. 44807(b)(2). FAA is proposing to exercise this
discretionary authority by not requiring airman certificates under part
108 operations. As subsequently discussed in more detail, FAA has
determined that the UAS proposed for use under part 108 and the related
operations would be varied in ways that make a centralized airman
certification impracticable (e.g., the varied UAS and operations could
not be subject to a singular, regulated training program).
FAA has determined that it would not require the certification of
airmen to operate a UA under this proposed regulation, instead pivoting
to a model predicated on corporate responsibility for the safety of the
entire operation. FAA is proposing a personnel structure that better
reflects the types of aircraft and operations being currently conducted
with UAS, along with expectations about how UAS operations may continue
to evolve. Under this proposed rule, an operator would have an
operations supervisor, who serves in a supervisory role with strategic
oversight of and responsibility for the operation, while the flight
coordinator role, if necessitated by aircraft design, would be
responsible for the tactical safety of the operation. This proposed
[[Page 38251]]
structure reflects the technological capabilities and interfaces of UAS
that are expected to conduct operations under part 108, which are both
managed and operated within the airspace in significantly different
ways to manned aircraft and UAS operated under part 107. Many UAS are
heavily automated and may soon be fully autonomous, and do not require
constant pilot interaction as manned aircraft do.
Pursuant to 49 U.S.C. 44807(b)(2),\74\ FAA has determined that an
airman certificate should not be required for the relevant personnel
conducting operations under the provisions of part 108. This rulemaking
proposes to shift responsibility for some aspects of the safe operation
of UAS under proposed part 108 from humans to systems and from
individuals to organizations. In this proposed structure, the operator
would be responsible for ensuring the safety of the operation. Among
other things, the operator would be responsible for maintenance and
alterations, ground handling, loading and unloading of aircraft, and
emergency procedures and protocols, even though individuals may
accomplish those tasks. While individuals would remain accountable for
their actions, the operator would ultimately be responsible for the
conduct of their operations personnel. In considering this issue, FAA
examined the safety and economic implications of not requiring an
airman certificate. This proposal would promulgate a framework to
ensure that personnel possess the appropriate knowledge, skills, and
training to conduct the BVLOS operations covered in this proposal
safely. Therefore, as discussed below, FAA proposes personnel
requirements tailored to the UAS that would provide adequate safety for
BVLOS operations under part 108.
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\74\ In pertinent part, 49 U.S.C. 44807(b)(2) charges the
Administrator with determining whether a certificate under Sec.
44703 is required for the operation of UAS identified under Sec.
44807(b)(1). Sec. 44703 promulgates the authority for the issuance
of airman certificates.
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In manned aircraft, the pilot in command is the primary person
responsible for operational control and safety of flight from the
flightdeck.\75\ They are responsible for tasks, including performing
preflight inspections of the aircraft, controlling the aircraft, seeing
and avoiding other aircraft, and complying with instructions from ATC,
in addition to numerous other tasks built specifically around pilot
control. However, the increasingly autonomous nature of UAS anticipated
for use under this proposal provide alternate pathways to meet the
purposes of those regulatory requirements currently applicable to
pilots.
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\75\ See pilot in command as defined in 14 CFR 1.1, stating, in
pertinent part, that the PIC is the person who has final authority
and responsibility for the operation and safety of the flight.
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In addition, this proposal accommodates the industry's increasing
reliance on technology rather than human interaction, including the
fact that UAS use systems of monitored automation and control. For
example, the design standards of subpart H propose requirements for
position, navigation, and timing and UAS must be designed to avoid
aircraft in accordance with proposed Sec. 108.195.\76\ These
functions, when done in a traditional aircraft, are completed manually
by a pilot. Under part 108, these functions, and many of the proposed
operating requirements, would be predicated on technology and systems
of programming rather than human interaction. An operator under this
proposed rule would be responsible for managing the required systems
associated with the UA and the operation that will replace traditional
airmen roles in aviation. This responsibility would extend to all
operations, overseeing personnel, training, maintenance, ground
handling, administrative functions, and maintaining a secure facility
and operations areas.
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\76\ See proposed Sec. Sec. 108.820 and 108.825, see generally
section XI of this preamble.
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Among other things, FAA considered the lack of standardization in
the industry, which means that operations using one type of UA are
likely to be very different from those conducted with a UA from another
manufacturer, both in the context of distinct handling characteristics
of the UA and the operations to be performed. For example, the
proficiencies required of an agricultural operation will be different
from the proficiencies required of a package delivery operation. FAA
found that developing a common set of knowledge and skills that could
be tested for the variety of UA was impracticable and likely would not
be adequate to ensure safe operations. Rather than create a new airman
certificate for part 108 operations, which would necessitate developing
standards for qualification, training and proficiency, FAA proposes to
require operators to assume the responsibility to ensure personnel have
the appropriate knowledge, training, and skills necessary to oversee
and manage the technology and systems required for automated UAS BVLOS
operations.
FAA surveyed its experience with modifying airman certification
requirements during the exemption process for UAS BVLOS operations. FAA
has regularly employed the discretionary authority of 49 U.S.C. 44701
to modify airman certification requirements to allow operators to
conduct UAS BVLOS operations through exemptions.\77\ Some of these
operators have argued to FAA that certification does not add any value
or benefit to operations, due to added administrative burden and costs
associated with certification relative to the knowledge and skills that
have little relevance to the operation of a UAS. Similarly, operators
that were held to a part 107 remote pilot certificate have explained
that they still needed to provide the specific knowledge necessary to
conduct safe operations because the part 107 knowledge test only covers
basic concepts. While the ARC did contemplate the establishment of a
new remote pilot certificate, it did point out that UAS provide lower
cost ways for people to access the NAS than crewed aircraft, lowering
barriers to entry for individuals and companies of a wider income
strata to take advantage of this access. According to the ARC, at the
highest level, the costs associated with training and becoming a
certificated remote pilot are far less than becoming a part 61
certificated pilot, providing individuals a more affordable path into
aviation. This has a further positive impact on science, technology,
engineering, and mathematics (STEM), employment, and technology
transfer.\78\
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\77\ See section III.B of this preamble for additional
discussion on BVLOS exemption history.
\78\ See BVLOS ARC Report, page 270.
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As discussed further in section VII.A, the proposed rule's approach
provides operators with flexibility to assign personnel to the most
appropriate roles and responsibilities for the safety and efficiency of
their specific operations. The proposed rule addresses personnel
through organizational responsibility and operational requirements.
Specifically, this proposal contains performance-based and scalable
personnel regulations that cover various potential roles, including
management positions, flight coordinators, ground handling personnel,
package handling, maintenance personnel, aircraft programmers,
information technology staff, and other site-specific personnel
depending on the complexity of the operation. Because FAA anticipates
the UA operating under part 108 will be varied, the proposed rule would
also require operators to tailor personnel training and qualification
to the specific
[[Page 38252]]
UA and its operating environment. The UAS industry has pursued a
variety of configurations and systems, both to support the specific
design of their UAS and in pursuit of proprietary technological
solutions. For example, current UAS designs exhibit diverse user
interfaces, from programs that function on mass-produced tablets or
cellphones, with others in a closed-loop system with control stations
and software specific to the design. There are currently no common
interface standards developed by industry, and as such FAA finds that
this training and qualification process will reflect the current varied
direction undertaken by industry.
The variety of anticipated UA also extends to the UA's AE.
Accordingly, given the varying AE needed to comply with proposed part
108, FAA anticipates that companies may employ software, hardware, or
information technology personnel, as well as communications and
satellite experts. For example, as discussed in section XIII, part 108
operations could include complex interactions with third-party service
providers integral to safe BVLOS operations, and specialized personnel
may be required to handle these system-level requirements. Depending on
the operation type, the operator could also be responsible for multiple
aircraft operating at the same time, and therefore personnel may need
to be trained and qualified on the technological systems that enable
simultaneous flights.
This proposed rule would promulgate a framework involving permitted
operations and certificated operations. Permitted operations would be
restricted to smaller aircraft and possess limited operating privileges
with less direct FAA oversight, while operators conducting more complex
certificated operations would enter a closer structured oversight
relationship with FAA. When operators conduct BVLOS operations
consistent with proposed part 108 requirements, including proposed
personnel regulations, FAA anticipates that both permitted and
certificated operations could be safely conducted without an airman
certificate.
FAA acknowledges that this proposal departs from the existing
airman regulations for manned aircraft operations and from FAA's
approach to small UAS operations under part 107. Through part 107, FAA
created a new small-UAS-specific airman certificate called a remote
pilot certificate with a small UAS rating. In doing so, FAA recognized
and addressed the shared characteristics of operating a small UAS under
a remote pilot's command. However, there are fundamental differences
between the existing part 107 and proposed part 108. Under part 107,
most of the operators are hobbyist, recreational, and individual flyers
who are less likely to know and understand the necessary regulations
(e.g., airspace designations, operations over people) without a testing
requirement to do so. Therefore, it is important to verify that part
107 operators understand these important restrictions. Thus, the
prerequisite for a part 107 Remote Pilot Certificate is a knowledge
test focusing on regulations and basic aviation knowledge and does not
include a skills test like traditional manned pilot certificates under
part 61. Moreover, because the part 107 regulations restrict all
operations to visual line of sight, with specific conditions for
operating over people and at night, operations are fairly limited in
what they can achieve unless the operator holds a waiver or exemption.
As a result, part 107 operations are primarily designed for individuals
(i.e., the remote pilot). Accordingly, FAA's approach to mitigating
risks of part 107 operations is focused on the remote pilot's knowledge
of the regulations, and less on the remote pilot's overall skills and
reliability of the specific UA.
Despite their size, small UA operated under part 107 are much like
traditional aircraft in that they rely heavily on user input and hand
flying. These circumstances are dissimilar to the heavier, diverse, and
more autonomous UAS that are reliant on technology and programming to a
greater degree as envisioned under part 108. To account for these
differences, this proposal would reassign most functions performed by
pilots in traditional, manned aircraft, and similar or analogous
functions performed by remote pilots under part 107 to technology and
autonomous systems. As noted above, part 108 would require UAS to be
designed to avoid most other aircraft (Sec. 108.825). Similarly, this
proposal would require UAS to have a simplified user interaction (Sec.
108.810), which is anticipated to greatly reduce the level of human
interaction and, therefore, limit potential user errors to ensure safe
flight.
2. Operator Responsibility for Personnel
Given the shift from human controlled UA to systems-controlled UA
intended to be operated under this rulemaking, FAA proposes to shift
certain operating responsibilities from individuals to organizations.
This proposed ``corporate responsibility model'' requires operators to
satisfy the regulatory requirements for safe operation, which include
ensuring that the personnel they employ meet the requirements in
subpart C of part 108. FAA contends that holding operators primarily
responsible for the safety of their operations would better address how
part 108 operations are expected to occur and the associated risks,
which are driven less by individual reactive decision-making and more
by management of technology and systems, policies, personnel, security,
and other matters that operators must develop and oversee to meet this
proposal's requirements.
Rather than prematurely define the appropriate roles and
responsibility structures for emerging technologies and operations, the
proposal would establish performance-based regulations that ensure part
108 operators meet or exceed management, knowledge, and training,
standards for all personnel. These regulations would accommodate the
position that the operator would be best positioned to conduct all
knowledge and skills training and ensure employee qualification because
they would understand the intricacies of their operations as it applies
to their specific UA and the corresponding personnel requirements.
Similarly, the proposal recognizes that the operator would be best
situated to tailor knowledge, qualifications, and training regimes to
the type of UA and AE being used, as well as the operational procedures
in place. Thus, FAA has determined that the operator should be
responsible for holistically managing its operations personnel,
providing adequate training to ensure appropriate proficiency.
Consistent with this approach, FAA would expect an operator company to
take appropriate corrective measures to address issues with an
individual's performance issues if and when they arise. While FAA would
retain the authority to take enforcement actions against an individual
where a regulatory violation occurs by assessing a civil penalty, FAA
expects the operator to proactively address potential issues as the
authority within the corporate responsibility framework. If FAA finds
that an operator company is not managing its workforce effectively,
placing the operation or the public at an unsafe level of risk, FAA
could take appropriate enforcement against the operator up to and
including revocation of their operating permit or certificate.
As noted above, it is anticipated that BVLOS operations under
proposed part 108 would likely involve more people than part 107
operations and have different configurations and roles of
[[Page 38253]]
personnel than manned operations. These BVLOS operation roles could
include a variety of positions, including management, flight
coordinators, ground handling personnel, package handling personnel,
maintenance personnel, aircraft programmers, information technology
staff, and other site-specific personnel depending on the complexity of
the operation. FAA considered certificating each type of personnel
involved in the control of a UA under part 108 operations but concluded
that operator certification was sufficient given the risk profile and
standard operations observed for the types of operation conducted under
proposed part 108. Further, FAA is not in a position at this time to
reasonably anticipate the array of business models and personnel
preferences given the variety of operations that would be facilitated
under this rule.
Moreover, each individual person would likely have a diminished
role when compared to airman analogues in manned aviation. As explained
above, FAA anticipates part 108 operations to be mostly to fully
autonomous, with many functions previously performed by manned aircraft
pilots built into the technology and systems. While in manned aircraft,
the use of autopilot systems and self-governing technology is becoming
more commonplace, the ultimate control and responsibility for the
safety of flight rests solely on the pilot. The pilot can always take
direct control and maneuver the aircraft as desired or needed, and the
pilot cannot rely on anyone outside of the aircraft to intercede
control. With respect to controlling a UA during operations, an
operator could utilize multiple personnel and combine their efforts to
carry out successful and safe flight. For example, an operator could
use personnel designated just for UA preflight preparation and checks,
while other personnel perform the tracking and monitoring of the UA in
flight (see section VI.B). Similarly, an operator may have payload
operators with specialized training on loading packages onto specific
UA. Some personnel could be removed from the proximity of the flight
operations, and even switched during flight without degrading safety.
These positions could vary depending on the type of operation and the
UA and would generally require only narrow insight into the operation
as a whole. FAA contends that these varying roles and responsibilities,
which could significantly change from operator to operator, are not
amenable to a certificate process that would yield few benefits beyond
the safety mitigations proposed in these personnel regulations and the
other requirements of part 108. Instead, the proposed rule would
require operators to satisfy the performance standards described herein
to develop and use qualified personnel with the knowledge, training,
and skills to conduct operations safely.
B. Personnel Roles and Responsibilities
While this proposed framework acknowledges a variety of roles could
be necessary to meet the operational requirements proposed in this
rule, this proposed rule explicitly regulates two roles: the operations
supervisor and flight coordinator. The general personnel categories and
requirements intend to extend flexibility to operators, given the
variability in possible business purposes and operations. Operators
would be required to develop procedures and policies that would clearly
state the roles and responsibilities necessary for the planned
operations in their company operations manual \79\ as part of the
application process for both permitted and certificated operations.
Upon submission of the application, which will include the manual, FAA
would evaluate the operations personnel framework, which would be
required to be included by proposed Sec. Sec. 108.135(g)(1) and (2),
necessary for safe operation. FAA would consider how the framework
outlined in the company operations manual meets requirements for the
roles and responsibilities specific to the operation, as proposed in
Sec. 108.300(b). For certificated operators, FAA would also consider
the training program, as proposed in Sec. 108.540, which would also be
included in the certificated operator's application, as proposed in
Sec. 108.505(b).
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\79\ Proposed Sec. 108.135 would require each operator to
prepare and keep current a company operations manual that sets forth
the operator's procedures and policies acceptable to the
Administrator. See also Sec. Sec. 108.405 and 108.505.
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1. Operations Supervisor (Sec. 108.305)
As proposed in Sec. 108.305(a), FAA would require each operator to
have at least one operations supervisor. The operations supervisor
would be directly responsible for, and be the final authority as to,
the operation of all UA (see proposed Sec. 108.120(d)). FAA proposes
that the operations supervisor would maintain individual responsibility
for operations in the company to ensure regulatory compliance. This
position would also be a point of contact for FAA. FAA expects that
this role would be similar to a director of operations in manned
aviation, with the responsibility of ensuring that persons in the
company comply with the regulations and any authorizations or
limitations associated with an operating permit or certificate.
In this proposal, FAA contends that persons occupying this position
would need expansive knowledge of aviation safety standards and safe
operating practices, as well as those policies and procedures specific
to the operator and the operations. Therefore, the proposed rule
accounts for specific areas of expertise necessary for the operations
supervisor. In proposed Sec. 108.305(a), FAA proposes to require that
the person serving in the role of an operations supervisor be qualified
through training, experience, or other expertise (e.g., UAS military
experience, academic background). As further discussed in section
VII.C, FAA has proposed training requirements that would apply to all
personnel, including the operations supervisor. FAA anticipates that
each company will tailor the training to fit their particular
operational profile, which would include the specific procedures as
detailed in their application for operating permit (proposed Sec.
108.405(b)) or operating certificate (proposed Sec. 108.505(b)).
In proposed Sec. 108.305(b), FAA proposes that the operator would
be required to inform FAA of any change in personnel assigned as
operations supervisor within 10 days of any such change. Because FAA
anticipates that the operations supervisor will be a primary point of
contact in many cases between the operator and FAA, having this
information available in an expeditious fashion is necessary for
maintaining appropriate oversight of the operator.
To ensure operation supervisors possess the requisite level of
specialized knowledge to successfully carry out their duties, FAA
proposes Sec. 108.305(c). In proposed Sec. 108.305(c)(1), the
operations supervisor would be required to be knowledgeable of the
company policies and procedures. Because FAA is approaching the
requirements of personnel from a perspective of corporate
responsibility, FAA finds it necessary for the operations supervisor to
be able to represent the company with full knowledge of the company's
policies and procedures to facilitate safe and regulatorily compliance
operations.
In proposed Sec. 108.305(c)(2), FAA proposes that the operations
supervisor must have a full understanding of aviation safety standards
and safe operating practices, the practices for maintaining a secure
facility and operations, and the regulatory
[[Page 38254]]
requirements of part 108. FAA would expect the operations supervisor to
understand the high-level information necessary to maintain the safety
of the operation, similar in manner to a Director of Operations under
14 CFR parts 121 and 135. FAA envisions this role would be tailored to
the operational parameters of the company. For example, some
organizations may require the operations supervisor to maintain
significant and direct interaction with operations; others may task the
operations supervisor with overseeing a multi-state operational
environment, provided there are sufficient safeguards to ensure the
operations supervisor is directly responsible for, and the final
authority as to, the safe and secure operation of all UA.\80\ In
addition, some companies may choose to employ multiple people in the
operations supervisor role, depending on company needs and the scale of
the operation.
---------------------------------------------------------------------------
\80\ See proposed Sec. 108.120(d).
---------------------------------------------------------------------------
2. Flight Coordinator (Sec. 108.310)
The second personnel position that would be regulated (if required
by aircraft design in the manufacturer's operating instructions for UA
operation) is that of a flight coordinator. Section 108.310 proposes
the requirements for flight coordinators. As explained in section XI.C,
UA operating under this proposal would exhibit highly automated
features and functions. Direct manual control (e.g., handheld joystick
controllers) would not be permitted,\81\ and any user interaction would
be mediated by an automated control system that enables flight
coordinators to execute simple commands, such as changes in airspeed,
altitude, and heading. This is in contrast to operations under part 107
where the safety case largely relies on the actions of an individual
(the remote pilot in command) who is primarily responsible for the
safety of the operation \82\ and no requirement for automation exists.
Accordingly, FAA chose the term ``flight coordinator'' rather than
``pilot'' to avoid confusion and to reinforce that the flight
coordinator would not share the exact same roles and responsibilities
traditionally given to pilots (both manned aviation pilots and part 107
remote pilots).
---------------------------------------------------------------------------
\81\ See proposed Sec. 108.810(a).
\82\ See 14 CFR 107.19.
---------------------------------------------------------------------------
In addition, this proposed rule acknowledges that a person directly
controlling or monitoring a UA in flight may not be necessary unlike
other circumstances where pilots are required for operations (e.g., a
pilot inputting manual operations in an airplane, or a remote pilot
manually moving a joystick in small UAS operations). The proposal would
accommodate fully automated flight, and thus, in accordance with the
manufacturer's operating instructions, the flight coordinator role may
not require consistent action. However, for this to be the case, a UA
design would have to be fully automated and be able to handle both
normal operations and emergency situations autonomously. For UA that
are not fully autonomous, the flight coordinator would provide direct
oversight and monitoring of UAS flights but may not be actively
controlling the flight. In those circumstances, the flight coordinator
would instead be responsible for overseeing the technology and systems
that ensure safe operation of autonomous flight.
Proposed Sec. 108.310(a) would require the operator to designate a
flight coordinator prior to each flight where a flight coordinator is
required by the manufacturer's operating instructions. FAA proposes in
Sec. 108.310(b) that no operator may allow a person to direct the
flight of a UAS unless they are appropriately qualified and authorized
by the operator as a flight coordinator. As further discussed in the
following section VII.C, FAA anticipates that operators will develop
training requirements appropriately tailored to the personnel
requirements consistent with the requirements in Sec. 108.315 that
best fit the needs of the company and its operational profile. The
operator would thus be responsible for ensuring that the flight
coordinator understands the appropriate procedures to conduct the
operation. While the operator must assign a flight coordinator prior to
each flight, FAA recognizes there may be a situation where the flight
coordinator must handoff control to another flight coordinator (e.g.,
an emergency medical situation). Therefore, proposed Sec. 108.310(c)
would require the operator to maintain appropriate handoff procedures
if necessary to transfer control from one flight coordinator to another
while the flight is in operation.
As previously discussed in section VI.A.1 of this preamble, FAA
notes that though the UAS envisioned for use under part 108 are highly
automated, the flight coordinator would be required to take appropriate
actions, within the limitations of the UAS design, to prevent the UA
from posing an undue hazard to other people, aircraft, or property, as
proposed in Sec. 108.310(d)(1). Proposed Sec. 108.310(d)(2) would
further require the flight coordinator to maintain situational
awareness of the UA and to otherwise direct the UA if necessary to
comply with the requirements of part 108, again within the limitations
of the UAS design. If the flight coordinator is overseeing more than
one flight, subject to operating requirements and approval, they must
have the skills and training needed to conduct 1:many operations.
FAA also notes, however, that the anticipated highly automated UA
may include varying systems, controls, and operational characteristics.
To ensure safety, flight coordinators must have experience with the
specific make and model of UA that will be used during operations,
which would provide familiarity with the UA's distinct features (e.g.,
flight dynamics, responsiveness under different conditions, and control
input procedures). Because acquired knowledge of a UA's specific
features is prone to decay over time, this actual experience must be
recently acquired and maintained to ensure appropriate familiarity with
the UA. However, FAA has determined that this experience need not be
extensive, considering the automation requirements and simplified user
controls that would be required in proposed subpart H. For these
reasons, in proposed Sec. Sec. 108.310(e), (f), and (g), FAA proposes
certain competency and recency requirements. Specifically, FAA proposes
a minimum of 5 hours of initial supervised flight experience in the
specific make and model of UA in Sec. 108.310(e) and recency within 12
calendar months under Sec. 108.310(f) in order to qualify to serve as
a flight coordinator. This 5-hour requirement mirrors the 5 hours of
experience required of a flight engineer under 14 CFR 63.37. FAA
recognizes that the duties of a UAS flight coordinator are not
completely synonymous with those of a manned flight engineer, but notes
that the basic principles of flight responsibility are similar: (e.g.,
monitoring critical aircraft systems, understanding/coordinating
emergency procedures) such that a mirrored 5 hours is an appropriate
time of flight experience. FAA seeks comment on whether the 5-hour
experience requirement is sufficient for UA operations under part 108.
FAA proposes that this operating experience would be directly
supervised by persons who have the foundational level of knowledge
about the operation and the UA to intervene in an emergency situation
or correct a possible erroneous action by the person seeking to be a
qualified flight coordinator.\83\ FAA finds these persons
[[Page 38255]]
to be a fully qualified flight coordinator, an operations supervisor,
or a person qualified and designated by the operator to ensure
operations personnel are appropriately trained (e.g., a person
providing training program). FAA notes that this operating experience
would not be required to be to be conducted in an actual operation; in
other words, the person may count 5 hours of operational experience in
a training scenario to the five hours. This would be how a certificate
holder would stand up an initial cadre of flight coordinators upon the
inception of an operator; because Sec. 108.310(a) would require a
fully qualified flight coordinator where it is required by the
manufacturer, the person would need to obtain their supervised
operating experience prior to initiating actual operations to be fully
qualified. This would be conducted through the training/preparation
before actual operations begin. Because permit holders \84\ would not
be required to have a training program, the operations supervisor would
supervise the initial cadre of flight coordinators. In either
certificated or permitted operations, should a fully qualified flight
coordinator be the designated supervisor, the flight coordinator could
obtain their operating experience in actual operations with the fully
qualified flight coordinator as the designated flight coordinator for
that operation.
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\83\ FAA notes that ``direct supervision'' must provide the
ability to conduct these actions when necessary and may include
unobstructed visual sight of the flight coordinator's actions,
active communication, etc.
\84\ Under proposed Sec. 108.475(k), recreational permit
operators would not be required to comply with the experience
requirements set forth in proposed Sec. 108.310. Therefore, the
supervised operating experience 5-hour requirement would not apply
and is not contemplated in this section.
---------------------------------------------------------------------------
Table 1 illustrates who could directly supervise the operating
experience in both the initial cadre (i.e., no flight coordinators
exist for that operator yet) and during the regular course of business
(i.e., the operator has a flight coordinator but is qualifying
additional ones).
Table 1--Supervisory Personnel
------------------------------------------------------------------------
Certificated Permitted
operators: direct operators: direct
supervision may be supervision may be
conducted by: conducted by:
------------------------------------------------------------------------
Initial Cadre of Flight 1. Operations 1. Operations
Coordinator(s). supervisor. Supervisor.
2. Person
designated by
operator to
ensure personnel
are trained.
Flight Coordinators Established 1. Fully Qualified 1. Fully Qualified
in the Regular Course of Flight Flight
Business. Coordinator. Coordinator.
2. Operations 2. Operations
Supervisor. Supervisor.
3. Person
designated by
operator to
ensure personnel
are trained.
------------------------------------------------------------------------
After the flight coordinator is initially qualified, the person
must maintain proficiency by serving as a flight coordinator for at
least 5 hours of operating experience of a UA of the same make and
model in the previous 12 calendar months. In the event of a lapse in
recency, FAA proposes in Sec. 108.310(g) that the flight coordinator
must requalify in order to serve in their role as the flight
coordinator. FAA expects these experience requirements and intervals
would be reasonable and provide sufficient familiarity with the UAS to
ensure the safe oversight of the operation.
3. Other Roles
FAA places responsibility on the operator to identify all needed
personnel to meet the requisite safety standards given the operations
this proposal seeks to facilitate. FAA anticipates that operations
personnel categories under this part would include, but would not be
limited to, seven general categories of personnel roles. The breadth of
possible operational needs may require individuals outside of the roles
listed below. Those roles would be specific to the operation and
required for safe operation, but they would not necessarily fit any of
the following categories. FAA identified these categories based on data
and information gathered from waivers and exemptions the agency has
granted to date. FAA acknowledges it cannot foresee every specific role
that may be required by future operations. As a result, FAA invites
comments on these seven personnel categories and seeks feedback on the
types of personnel that may be necessary for BVLOS operations. FAA
discussed two categories previously, the operations supervisor and
flight coordinator, and the remaining categories include (but are not
limited to) those described in table 2:
Table 2--Personnel Roles and Responsibilities
----------------------------------------------------------------------------------------------------------------
Personnel role Responsibility Proposed regulation(s)
----------------------------------------------------------------------------------------------------------------
Operations Supervisor................ Directly responsible Sec. 108.300(a)(1), Sec. 108.305
for and final
authority as to the
operation of all UA..
Flight Coordinator................... Direct and monitor the Sec. 108.300(a)(2), Sec. 108.310
UA, and, if necessary,
intervene during UA
flight to ensure safe
operations.
UA Maintenance or Alterations........ Determine the Sec. 108.300((a)(3)
performance of the UA,
determine whether the
UA is in a condition
for safe operation,
and perform
maintenance and
repairs on the UA.
Ground Handling...................... Retrieve UA from Sec. 108.300(a)(4)
storage, set UA up for
operations, power on
the UA, perform
physical handling of
the UA and
corresponding
equipment.
Loading and Unloading of the UA...... Act as payload Sec. 108.300(a)(5)
operators or package
operators, conduct UA
loading and unloading
activities, maintain
knowledge pertaining
to carriage of
hazardous materials.
Servicing or Upkeep of Systems Maintaining and Sec. 108.300(a)(6)
(including AE). repairing systems such
as ground control
stations, interface
equipment, fleet
management system, C2
links, and any
components necessary
for operation but not
part of the UA.
[[Page 38256]]
Establishing Flight Paths, Emergency Understand automation Sec. 108.300(a)(7)
Procedures, and Operational of UA, input system
Parameters. parameters, set up
operations software,
programming of system
elements (while not in-
flight).
----------------------------------------------------------------------------------------------------------------
While this proposed rule would allow operators to tailor personnel
design to fit the needs of their operations, including by consolidating
roles in individual employees when appropriate, this flexibility cannot
come at the expense of safety. Accordingly, in proposed Sec.
108.300(b), FAA proposes that an operator may not allow a person to
perform multiple roles concurrently if doing so could affect the safety
of operations.
C. Personnel Knowledge and Training (Sec. 108.315)
FAA proposes to require operations personnel to have general and
aircraft-specific aviation knowledge and skills as it relates to their
respective roles. The permit and certificate holders would be
responsible for appropriately training their personnel. However,
because FAA anticipates that operators will build their workforce in a
variety of configurations to support their diverse operations, FAA does
not propose to require all training for every person involved in the
operation. Instead, this proposed rule would allow operators the
flexibility to tailor training for appropriate personnel (as determined
by the manufacturer's instructions and the operator's policies and
procedures) to ensure they have the aviation and aircraft-specific
knowledge and skills necessary for safe operations, and, more
specifically, to use the specific aircraft and to support other
operation elements. Certificate holders, as further described in
section VIII.C, would be required to develop and implement a training
program in accordance with proposed Sec. 108.540, and to include the
training program in their application for the certificate, as proposed
in Sec. 108.505(b)(10). FAA does not propose to require that permit
holders would need to submit a training program for FAA approval,
noting that the expected smaller scope of permitted operations and
fewer number of personnel would naturally result in a less complex
structure and does not necessitate that more formalized approach.
1. General Aviation Knowledge and Training
Proposed Sec. 108.315 would set forth the general personnel
knowledge and training requirements. First, in Sec. 108.315(a), FAA
proposes that each operator would be required to ensure that all
operations personnel have completed the applicable training under part
108 and that the operations personnel have the knowledge and skills
required to conduct their duties specific to their areas of
responsibility. While FAA would mandate the inclusion of certain
subject matter areas dependent on the personnel role, there would be no
prescriptive hours or manner of training requirements. In addition, if
there are changes to the UAS utilized or to an operator's operational
procedures, FAA expects that updated training would be administered
accordingly. To note, FAA would not be responsible for providing such
training required under proposed Sec. 108.315; rather, the specific
operator would provide the training tailored to their operations and
required personnel or ensure they have received appropriate training.
Specifically, if the operator uses an outside source or contractor, the
operator is still responsible for ensuring the course content meets the
need.
As mentioned, FAA would require general knowledge and skills
training relevant to their areas of responsibility covering certain
subject matter areas proposed inSec. 108.315(b). Specifically, FAA
finds 19 subject matter areas warranting inclusion in the training
program where the personnel would directly deal with matters within
that subject area in their role. However, an operator would be
responsible for ensuring personnel have applicable knowledge and skill
required to conduct their duties safely, therefore, an operator is free
to include all subject matter areas in a training program for all
personnel, even when a subject area may not pertain to a specific role
(i.e., the regulation sets a training curriculum floor, but an operator
may choose to include subject areas beyond that). The following
preamble text discusses the significance of each subject matter area
requirement. Because the regulation would apply the subject area as
applicable to the personnel's area of responsibility, FAA also provides
discussion for each subject area on the personnel roles expected to
receive the subject area training.
In proposed Sec. 108.315(b)(1), operations personnel would be
required to receive general knowledge and skills training on the
applicable regulations relating to flight operations, such as UA speed,
altitude limitations, and equipment requirements associated with
operations over people and in controlled airspace. As discussed in
section VI, the proposed rule would establish general operating rules
governing all operations envisioned under part 108 (e.g., areas of
operations, preflight requirements and emergency conditions, aircraft
lighting, aircraft registration). To ensure that personnel, first,
understand what those regulations would require and, second, do not
violate them through ignorance, FAA proposes that all operations
personnel would have general knowledge and skills training related to
part 108's general operating rules.
In proposed Sec. 108.315(b)(2), FAA proposes that operations
personnel would receive general knowledge and skills training on how to
determine the classification of specific airspace and what the
requirements are for operating in that airspace. Through training,
personnel would become knowledgeable on flight restrictions affecting
UA operations. Training would also include how to determine which areas
are prohibited or restricted. This subject area would be applicable to
any personnel involved in flight planning, specifically including the
operations supervisor and the flight coordinator.
In proposed Sec. 108.315(b)(3), FAA proposes that operations
personnel would receive general knowledge and skills training on the
effects of weather on UA performance and aviation weather sources.
Knowledge of weather is necessary for safe operation of a UA. For
example, space around buildings, smokestacks, and trees, which is safe
during clear weather, could easily become hazardous in a windy
situation. Accordingly, personnel should understand the effect that
different types of weather have on the performance of their specific UA
and how to react to that weather. Personnel must be trained in how to
utilize the manufacturer's flight manual to reference the weather
conditions specific UA may or may not withstand. Lastly, FAA proposes
that personnel also be trained on their knowledge of official sources
that they can use to
[[Page 38257]]
obtain weather information and predictions in order to plan the
operation of the UAS. Training in this subject area would be applicable
to any personnel involved in flight planning, specifically including
the operations supervisor and the flight coordinator.
In proposed Sec. 108.315(b)(4), FAA proposes that operations
personnel would receive general knowledge and skills training on crew
resource management. As discussed previously, FAA anticipates the BVLOS
operations under proposed part 108 to increase in shared responsibility
and in the number of personnel involved, as compared to typical part
107 operations. Therefore, UAS operations personnel must understand how
to function in a team environment, known as crew resource management,
because operations allowed by this proposed rule would typically
involve a diverse team of personnel. At a minimum, the operations
supervisor would need knowledge and skills associated with crew
resource management to effectively oversee operations and comply with
the management responsibilities outlined in Sec. 108.305 however most
operations personnel would likely benefit from this training. Because
of the separation between the flight coordinator, ground control
stations, ground personnel and possibly other personnel, communication
across a team environment is critical to the success of each UA flight.
In proposed Sec. 108.315(b)(5), FAA proposes that operations
personnel would receive general knowledge and skills training on the
operator's communications procedures. Operational communication
procedures training emphasizes clear and concise communication, both
internally between operations personnel and externally with
stakeholders (e.g., law enforcement, FAA and NTSB representatives, and
other airspace users). The ability to effectively exchange information
during routine and unexpected situations is crucial, as most operations
rely on various personnel performing different tasks such as package
loading or maintenance work. To ensure the status of these specific
tasks during an operation is communicated effectively, FAA contends
that operators would need to train most personnel on company
communication procedures.
In proposed Sec. 108.315(b)(6), FAA proposes that operations
personnel would receive general knowledge and skills training on the
operator's safe distance criteria. This is important because the means
of maintaining a safe distance may vary from one operation to another.
FAA also anticipates that any DAA systems used may not specifically
measure system performance in the same manner. As such FAA expects that
each operator will tailor their personnel training to the specific DAA
technology that they use. Operations supervisors and flight
coordinators would need to be trained on safe distance criteria, as
would any operations personnel responsible for ensuring that the AE and
other systems are functioning within the specified parameters of the
technology (e.g., programming or technical experts).
In proposed Sec. 108.315(b)(7), FAA proposes that operations
personnel would receive general knowledge and skills training on the
principles of strategic deconfliction and conformance monitoring.
ProposedSec. 108.190 sets forth the requirements for the use of
strategic deconfliction and conformance monitoring, which is a system
designed to manage UA traffic to integrate and separate UA in the NAS,
allowing for more complex BVLOS operations. Flight coordinators and
operations supervisors must be informed on the requirements for the use
of strategic deconfliction and conformance monitoring, specifically to
understand system limitations and that it is not a replacement for
flight coordinator responsibility to take actions to avoid other
aircraft.
In proposed Sec. 108.315(b)(8), FAA proposes that operations
personnel would receive general knowledge and skills training on
determining the performance of UA. This would include training on the
weight and balance of the UA to determine impacts on performance. A
UA's design limitations are meant to keep it within safe operating
parameters, and if a UA is loaded such that the maximum takeoff weight
is exceeded, or the balance of the UA is not within those design
limitations, then a catastrophic failure could result. To operate
safely, flight coordinators, package loaders, and potentially other
personnel, such as personnel involved in the decision on what products
to offer for delivery, would require knowledge and understanding of
fundamental aircraft performance issues, which should include (but is
not limited to) load balancing and weight distribution, determining
maximum takeoff and landing weights, and understanding available power
for the operation with computations based on current atmospheric
conditions.
In proposed Sec. 108.315(b)(9), FAA proposes that operations
personnel would receive general knowledge and skills training on the
physiological effects of drugs and alcohol. Many prescription and over-
the-counter medications, as well as alcohol, can significantly reduce
an individual's cognitive ability to process and orient situational
awareness and initiate corrective action when necessary. Accordingly,
all operations personnel need to understand how drugs and alcohol can
impact their ability to perform their duties safely.
In proposed Sec. 108.315(b)(10), FAA proposes that operations
personnel would receive general knowledge and skills training on
aeronautical decision-making and judgment. Even though this proposal
would limit the flight of UA to operations at or below 400 feet AGL,
manned aircraft will still operate in the same airspace as UA such as
(e.g., takeoff and landing, low altitude operations, emergency
situations). In addition to contending with manned aircraft, operations
personnel may encounter unexpected weather, UA system failures,
inflight route changes and other unplanned situations. Accordingly, the
flight coordinator and the programming and technical experts would need
to understand the aeronautical decision-making and judgment processes
so that they can anticipate, plan, and manage any seen and unforeseen
circumstances.
In proposed Sec. 108.315(b)(11), FAA proposes that operations
personnel would receive general knowledge and skills training on
airport and heliport operations. These operations are a critical and
complex piece of the NAS. Within the bounds of an area designated as an
airport or heliport, there are typically higher volumes of manned air
traffic conducting departure and arrival operations (e.g., takeoff and
landing), which creates a higher workload environment. Having an
understanding through knowledge and skills training regarding these
operations would greatly reduce any unnecessary increases in complexity
and workload increases to both the UA and manned aircraft operations.
This training would seek to ensure that UA flight operations personnel
(i.e., those personnel whose roles involve the airborne parts of the UA
operation) are fully aware of how manned aircraft conduct operations
within the bounds of an airport and be able to identify any airborne
hazards while reducing potential conflicts.
In proposed Sec. 108.315(b)(12), FAA proposes that operations
personnel would receive general knowledge and skills training on
operation at night to ensure familiarity with the risks and appropriate
mitigations for nighttime operations. Night operations occur in low
visibility without natural light, which can make it harder for pilots
of manned aircraft to identify other aircraft
[[Page 38258]]
or UA. FAA contends that training on this proposal's UA mitigations for
night operations, such as aircraft lighting and usage, and other areas
like physiological factors and aircraft and airport lighting, would be
vital to ensure safe operation during the night. Accordingly, FAA
expects that operators conducting night operations would provide the
appropriate knowledge and skill training for personnel with roles in
those operations to ensure safety and to reduce the risk to other
aircraft in the NAS.
In proposed Sec. 108.315(b)(13), FAA proposes that operations
personnel would receive general knowledge and skills training on the
assignment and transfer of control of a UAS. Seamless handoff
procedures are crucial for safe UAS operation. Clear communication
during these transitions ensures all personnel share a complete
understanding of the UAS's status and any potential issues, preventing
confusion and loss of situational awareness. This is especially
critical in emergencies, where a smooth and practiced transfer of
control to the appropriate personnel is essential to maintain safe
operation and avoid potential harm to people or property. This subject
area would be applicable to any personnel involved in flight planning,
specifically the operations supervisor and the flight coordinator.
In proposed Sec. 108.315(b)(14), FAA proposes that operations
personnel would receive general knowledge and skills training in BVLOS
strategic and tactical risk mitigation strategies and approaches.
Strategic risk mitigation is typically associated with planning that
occurs before the flight occurs, such as holding flights from taking
off if there are manned aircraft operations in the near vicinity.
Tactical risk mitigation is generally associated with technologies that
are employed during flight, such as DAA equipment and sensors. This
training would apply to both general principles and items specific to
their operation. Having an overall understanding through knowledge and
skill training of BVLOS risk mitigation strategies and approaches would
help an operator and its personnel ensure positive control of the UA at
all times. Operations supervisors and flight coordinators would need to
be trained on strategic and tactical risk, as would any operations
personnel responsible for ensuring that the AE and other systems are
functioning within the specified parameters of the technology (e.g.,
programming or technical experts).
In proposed Sec. 108.315(b)(15), FAA proposes that operations
personnel would receive general knowledge and skills training on multi-
aircraft operations (where an operator seeks to conduct a part 108
operation with multiple UAs), contingency management, and recovery
procedures. Operations supervisors and flight coordinators would need
training on how to manage and fly multiple drones at once (1-to-many
operations) and understand the specific systems and rules involved if
those operations are conducted. To the extent technology improves and
allows for even larger drone fleets, the training would likely get more
intricate. For example, pilots delivering packages with many UA would
need different training than those using UA for inspections.
In proposed Sec. 108.315(b)(16), FAA proposes that operations
personnel would receive general knowledge and skills training on the C2
system of the UAS. Different operations personnel must have a strong
understanding of the core functions of the C2 system. For flight
coordinators, this includes how it transmits commands (flight path,
maneuvers) and receives telemetry data (battery level, signal strength,
UA health) between the ground control station (GCS) and the UA. Knowing
the limitations and potential vulnerabilities of the C2 system is also
important for operations supervisors and technical staff, including
factors like range (maximum distance for reliable communication),
interference (potential signal disruptions from other electronics), and
redundancy (backup systems in case of primary C2 failure).
In proposed Sec. 108.315(b)(17), FAA proposes that operations
personnel would receive general knowledge and skills training on
contingency management and recovery procedures. A risk of UAS
operations is the possibility that during flight, the operations
supervisor or flight coordinator may become unable to directly control
the UA due to a failure of the C2 system that connects the UA and the
GCS. Training in contingency management and aircraft recovery would
prepare operations supervisors, flight coordinators, and those
personnel establishing flight paths, emergency procedures, and
operational parameters to handle unexpected situations, and promote the
safe, efficient, and responsible recovery of UA that may have
experienced landing at an unintended location.
In Sec. 108.315(b)(18), FAA proposes that operations personnel
would receive general knowledge and skills training on population
density considerations. As further discussed in section VI.H,
operations over people are subject to specific operating requirements.
In this proposed rule, operators would need to abide by the categories
determined by calculations derived from the Oak Ridge National
Laboratory's LandScan data in order to operate over people.
Understanding these restrictions and considerations is critical for
operations planning personnel responsible for planning operations and
flight coordinator personnel.
In proposed Sec. 108.315(b)(19), operations personnel would
receive general knowledge and skills training on ATC procedures. In
order to operate safely near an airport or heliport, operations
personnel would need to have knowledge of airport operations and air
traffic control procedures, so that the UA does not interfere with
either of those operations. In addition, for operators that operate in
controlled airspace, knowledge of ATC procedures is critical for
understanding the operating environment and what to expect of manned
aircraft operations. Finally, knowledge of communication procedures is
also important so that the operator can understand how to communicate
with ATC and when it is appropriate. This information is appropriate
for operations supervisors, flight coordinators, and those personnel
establishing flight paths, emergency procedures, and operational
parameters.
FAA expects that the permit or certificate holder will include
other aeronautical or operational knowledge and skill areas as they see
fit. This list is not exhaustive. An operator is responsible for
ensuring that all of their operations personnel must have the knowledge
required to operate safely, regardless of whether it is included in the
previous 19 items.
2. Aircraft-Specific Knowledge and Training
While Sec. 108.315(b) would require generalized knowledge and
skill training, as applicable, FAA finds it necessary to require
knowledge and skill training specific to the make and model of the UA
to be used in the operation. Therefore, proposed Sec. 108.315(c) would
require operations personnel to have knowledge and skills training
specific to the make and model of UA to be operated relevant to their
areas of responsibility that covers certain subject areas (similar to
Sec. 108.315(b)). Specifically, FAA finds 12 specific subject matter
areas warranting inclusion in the training program where the personnel
would directly deal with matters within that subject area in their
role.\85\ The following preamble
[[Page 38259]]
discusses the significance of each subject matter area requirement, and
the personnel roles expected to receive the subject area training.
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\85\ Because the operator would be responsible to ensure
personnel have the applicable knowledge and skill required to
conduct their duties safely, pursuant to proposed in Sec.
108.315(a), the operator is free to include all specific subject
matter areas, or unlisted subject matter areas, for all personnel if
the operator found it would best equip their personnel with
operational proficiency.
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In Sec. 108.315(c)(1), FAA proposes that the relevant operations
personnel would receive make-and-model knowledge and skills training on
the general and operating limitations of the UA used in the operation.
As noted herein, FAA anticipates that there will be a variety of
aircraft permissible for use under this proposed rule. Familiarity with
the specifics of the operator's particular UAS, including any
limitations that might affect its ability to complete its flight
safely, is a basic tenet of safe operation. FAA anticipates that the
operations supervisor and flight coordinator roles would require such
training, though it may be appropriate to include other personnel
depending on the specific operations.
In Sec. Sec. 108.315(c)(2) and (3), FAA proposes that the relevant
operations personnel would need to receive make-and-model knowledge and
skills training on the UA's system setup and configuration and normal
and abnormal procedures. While FAA anticipates that most operations
would be automated to the extent that personnel need not interfere with
an operation, certain operations personnel would need to be familiar
with the normal and abnormal procedures associated with the UA. These
personnel should be able to discern deviations from standard operating
procedures, which can help identify any problems or mishaps before they
become significant. FAA expects that the operator's training materials
would be specifically tailored to the aircraft used in their operation.
If significant problems or mishaps do arise, FAA proposes in Sec.
108.315(c)(4) that the relevant operations personnel would receive
make-and-model knowledge and skills training on emergency procedures
specific to the UA used in operation. Such training would provide
relevant personnel with the knowledge and skills to address those
abnormal circumstances that require personnel to intervene in UA
operations (e.g., initiating an immediate landing or return-to-home).
FAA anticipates that training in these subjects would be appropriate
for operations personnel that must collaborate to plan and execute
flight operations, including operations supervisors, flight
coordinators, and those personnel responsible for servicing or upkeep
of systems, including AE, and establishing flight paths, emergency
procedures, and operational parameters.
To further support the expected use in various commercial
operations, in proposed Sec. Sec. 108.315(c)(5)-(6), FAA proposes that
the relevant operations personnel would receive make-and-model
knowledge and skills training in ground handling and loading,
respectively. While these subjects are not applicable to all potential
operations under a permit or certificate, an operator would need to
ensure that relevant operations personnel are sufficiently trained in
the particulars of these functions: for example, attaching payload or
spraying substances. FAA anticipates that personnel responsible for
ground handling and loading and unloading of the UA would require such
training, though it may be appropriate to include other personnel
depending on the specific operations.
No matter how well an aircraft is designed, if it is not maintained
properly, it will degrade the reliability of the aircraft and the
safety of the operation. This includes not only repairing components as
they become damaged, but regular inspections to verify condition of the
aircraft and related systems. FAA anticipates that the UA operating
under part 108 will vary significantly, which would, in turn,
necessitate succinct knowledge about the maintenance and inspection
dynamics for the make and model of UA. Therefore, FAA proposes to
require in Sec. 108.315(c)(7) that the relevant operations personnel
receive make-and-model knowledge and skills training in maintenance and
inspection procedures for the operation's UAS. FAA anticipates that
personnel responsible for UA maintenance or alterations, and for
servicing or upkeep of systems, including AE, would require such
training, though it may be appropriate to include other personnel
depending on the specific operations.
In Sec. 108.315(c)(8), FAA proposes that the relevant operations
personnel would need to receive make-and-model knowledge and skills
training on preflight procedures. These preflight procedures would
likely include inspecting the UA to ensure it is in safe condition for
operation and that the AE supporting the operation are in appropriate
working order (e.g., diagnostics scans show as normal). These more
programmatic functions would be further supported by the proposed make-
and-model knowledge and skills training on navigation systems, DAA
procedures, and lost-link procedures, as proposed in Sec. Sec.
108.315(c)(9), (10), and (11), respectively. FAA contends that such
training should provide responsible operations personnel with the
knowledge and skills to use systems that facilitate deconfliction and
safe distance. Training that emphasizes how to identify, use, and
troubleshoot, if appropriate under the approval determined by part 146,
would be an essential component for safe operation. FAA anticipates
that ground handling personnel and personnel responsible for UA
maintenance or alterations, and for servicing or upkeep of systems,
including AE, would require such training, though it may be appropriate
to include other personnel depending on the specific operations.
As noted in Sec. 108.210 and discussed in section VI.M, FAA is
proposing that flight coordinators may only operate UA at a 1:1 ratio,
though this provision is subject to waiver. However, when an operator
is authorized to operate at a higher ratio and intends to do so, FAA
proposes in Sec. 108.315(c)(12) that the relevant operations
personnel, including operations supervisors and flight coordinators,
would receive make-and-model knowledge and skills training on the
operation of multiple aircraft.
3. Currency
In Sec. 108.315(d), FAA proposes that both general and make-and-
model knowledge and skills training, i.e., the training proposed in
Sec. Sec. 108.315(b) and (c), would be routinely required for
operations personnel with relevant responsibilities. Accordingly, to
comply with these regulations, the operator would have to ensure that
operations personnel receive the appropriate training at least every 24
months. Knowledge of rules, regulations, and operating principles
erodes over time, particularly if the person is not required to recall
such information on a frequent basis. FAA also notes that even
personnel who regularly conduct UAS operations may not fully retain
knowledge or proficiency elements that they may not use during their
regular operations. For example, a flight coordinator who conducts
operations only in Class G airspace may not retain the knowledge that
they need ATC authorization to conduct operations in Class B, C, or D
airspace. Similarly, if regular operations are never interrupted by
abnormal circumstances that require operations personnel to use
emergency procedures, these personnel may not retain the knowledge and
skills necessary to navigate these critical moments. FAA proposes a
recurrent training frequency because that have
[[Page 38260]]
been used as the method of ensuring the appropriate retention of
knowledge and skills for decades. FAA seeks comment on whether a
different frequency, or another method for ensuring knowledge and skill
retention would be more appropriate.
In Sec. 108.315(d), FAA also proposes to provide a structure that
allows training to be provided up to 1-month before or after the month
in which it is due without changing the renewal date. This 3-month
training window would encourage personnel to not wait until the end of
their training window to avoid the perceived penalty of ``losing''
time. The 3-month training window would also allow personnel to
complete training in the month after it is due without penalty to
provide flexibility in unforeseen circumstances when the person cannot
complete the training by the subsequent base month. This is commonly
referred to as a ``grace period.'' \86\ Note that this would not have
the effect of changing the next due date as the person will be
considered to have taken the training during the month it was due
(i.e., a person's ``base month''). As stated in the proposed
regulation, the person will be considered to have taken the training in
the month it was due, so as not to encourage last-minute training or
extending the training date. For example, if a person originally
completed their training in January 2026, they would be required to
receive the recurrent training in January 2028 (and may elect to
receive training in December 2027). However, due to an unforeseen
circumstance or emergency, the person could not complete the training
until February 15, 2028. Upon completing the training on February 15,
2028, the person's next training month would be January 2030. The
person could continue to participate in operations during that 15-day
period. Conversely, if the person did not complete the training until
March 2028, the person would not be considered qualified from February
1, 2028, until the training was completed in March (i.e., unable to
perform the personnel position) and would be in violation of Sec.
108.315 for those operations conducted after January 2028. Once the
person completes the training, their new base month would be in March.
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\86\ FAA has provided flexibility of a ``grace period'' in this
manner elsewhere in the regulations: see, e.g., Sec. 135.323.
---------------------------------------------------------------------------
The subject matter, training, and testing requirements described
above apply to both permitted operators and certificated operators.
However, for certificated operations, FAA proposes in Sec. 108.540
that their training be documented in a program acceptable to FAA. FAA
expects that the additional services that certification will enable for
an operator (flight over higher population densities, interstate
operations, etc.) will add scale and complexity to the operation.
Therefore, through review and acceptance of the certificated operator's
training program, FAA seeks to have greater oversight to ensure the
level, scope, and rigor of the knowledge and training provided.
Finally, FAA is not requiring operations personnel to demonstrate a
minimum level of flight proficiency to a specific standard as part of
the requirements of Sec. 108.315 (e.g., a ``check flight'' or
practical test). Rather, FAA proposes minimum operating experience and
recency of flight experience requirements as proposed in Sec. 108.310.
FAA invites comments on the following:
The proposed performance-based training and testing of
personnel under a corporate responsibility model.
The proposed areas of knowledge in Sec. 108.315,
including comments addressing whether additional areas of knowledge
should be trained.
FAA's proposal to not require a minimum level of flight
proficiency to a specific standard as part of the requirements of Sec.
108.315.
D. Medical Condition (Sec. 108.320)
This proposed rule would not require operations personnel to hold a
part 67 issued airman medical certificate. However, FAA recognizes the
possibility that operations personnel may have a medical condition that
could interfere with the safe operation of the UA or safe execution of
operations personnel duties. Accordingly, in proposed Sec. 108.320,
FAA proposes to prohibit a person from serving in an operations
personnel position if that person knows or has reason to know that they
have a physical or mental condition that would interfere with the safe
operation of a UA or make the person unable to perform duties of their
position. Consistent with the proposed rule's emphasis on operator
responsibility and control over operations consistent with the
requirements of this proposal, FAA also proposes in Sec. 108.320 to
similarly prohibit operators from using a person in an operations
personnel position if the operator knows or has reason to know that the
person has a physical or mental condition that would interfere with the
safe operation of the UA or make the person unable to safely perform
duties of their position.
Proposed Sec. 108.320 is similar to 14 CFR 107.17, which applies
to small UAS operations, and to 14 CFR 61.53(b), which applies to
operations that do not require a medical certificate.\87\ FAA notes
that this proposal's analogous prohibitions extend beyond the direct
operation of a UA to circumstances where a medical condition would
jeopardize the safe performance of other operations personnel duties.
In other words, proposed Sec. 108.320 would apply to all personnel
positions (e.g., ground handlers, maintenance personnel, etc.), not
only a flight coordinator. As explained in section VII.B, the proposed
rule's personnel requirements would allow operators to develop an
operations personnel framework appropriate for the complexity and scale
of their operations with FAA review and oversight. More specifically,
Sec. 108.300(b) would require operators to identify operations
personnel required for safe operation of the UAS and its AE.
Accordingly, FAA has determined that medical conditions that would make
any person unable to perform the duties of their operations personnel
position would raise risks to operation safety, and the proposed rule
makes explicit that the prohibition includes such circumstances.
---------------------------------------------------------------------------
\87\ See 14 CFR 61.23(b).
---------------------------------------------------------------------------
Operations personnel are responsible for knowing their physical and
mental conditions, and they must evaluate whether those conditions
allow safe participation in UAS operations and the performance of their
duties. If a person serving in an operations personnel position is
unsure about the limitations of a physical or mental condition, they
should consult with a physician. In addition, operations personnel
should, if appropriate, take steps to inform the operator of medical
conditions in accordance with company policy. Considering the dual
responsibility that persons and operators share with respect to medical
conditions and safety, operators should develop and adhere to corporate
policies that govern reporting and monitoring known medical conditions
and potential signs of medical conditions that could interfere with
safe operations and the performance of operations personnel duties.
As stated in the final rule adopting part 107, the primary reason
for medical certification is to determine if the airman has a medical
condition that is likely to manifest as subtle or sudden incapacitation
that could cause a pilot to lose control of the aircraft, or impair the
pilot's ability to ``see and avoid.'' \88\
[[Page 38261]]
While FAA anticipates that a wide range of UAS operations could be
diversely affected by different conditions, FAA anticipates the UA to
be operated under this proposal to be highly autonomous with built in
redundancies and preprogrammed commands such that certain medical
anomalies that would typically disqualify a person from receiving a
part 67 medical certificate could actually safely operate a certain UA.
For example, a person who is incapable of moving their fingers would
not be able to operate a UA with a control station interface that
relies on manual manipulation using the fingers, such as a keyboard and
a mouse. However, that person may be able to interact with a control
station operated through voice controls, or other assistive
technologies, safely. While FAA has not established a list of
disqualifying medical conditions under Sec. 108.320, FAA expects
operators to use reasoned judgment and knowledge of their operations in
developing and adhering to policies that mitigate the risk of medical
conditions.
---------------------------------------------------------------------------
\88\ 81 FR 42159.
---------------------------------------------------------------------------
FAA has determined that traditional FAA medical certification via
part 67 is not warranted for operators subject to this proposed rule.
Part 108 UAS operations present a lower risk than manned operations, in
part because the operations do not involve passengers onboard the
aircraft that could be injured in the event of an accident. This
proposed rule also includes operational requirements that reduce
reliance on human capacities, and prescriptive medical standards are
thus not as critical as they are for individuals exercising pilot
privileges on a manned aircraft. For example, proposed Sec. 108.825
would require UA to be designed to ``see and avoid'' most other
aircraft, and proposed Sec. 108.810 would require simplified flight
controls that permit only limited human interaction during a UA's
flight. As another example, proposed Sec. 108.170(k) would require
operators to ensure that a UA's navigation and communication systems
are working properly prior to conducting an operation. These
operational requirements and limitations render it unlikely that a
flight coordinator's impairment would cause the loss of UA navigation
to its original destination (or emergency landing destination).
FAA also considered changing ``would'' to ``may'' in Sec. 108.320
(``. . . the person has a physical or mental condition that would
interfere with the safe operation. . .'') to clarify that a physical or
mental condition need not be certain to trigger the prohibition.
``Would'' conveys definiteness of knowledge about the causal
relationship between a medical condition and interference with safe
operations or safe performance of operations personnel duties. By
contrast, ``may'' expresses possibility, and thus the use of ``may'' in
these provisions would enlarge the prohibition to include medical
conditions that could impact safety but where causation is less
certain. FAA declined to adopt this change in part to maintain
consistency across similar provisions in the regulations. However, FAA
invites comment on whether ``may'' should be adopted in the final rule.
FAA also invites public comment as to whether an airman medical
certificate should be required for operations personnel, specifically
for flight coordinators, and the costs and benefits of requiring an
airman medical certificate.
E. Alcohol or Drugs (Sec. 108.325)
Despite the enhanced autonomy that FAA anticipates will
characterize flight operations, operations personnel would continue to
perform essential roles under proposed part 108. Among other things,
operations personnel would be responsible for programming, monitoring,
and intervening in UA operations, as needed; maintaining and repairing
UA and certain AE elements; and the safe handling, loading, and storage
of packages, which may include hazardous materials. These functions
would require operations personnel to make decisions and exercise
judgment in the regular course of business and in emergency situations.
Alcohol and drugs can compromise judgment, reaction times, and
decision-making, which could have serious consequences even in the
context of mostly autonomous UA operations. Accordingly, FAA has
determined that operations under proposed 108 must be free from the
influence of alcohol and certain drugs to mitigate the risks associated
with impairment.
Part 91, which contains the general operating and flight rules,
sets forth general alcohol and drug use prohibitions in Sec. 91.17 and
Sec. 91.19, which are cross-referenced in Sec. 107.27 for small UAS.
Likewise, proposed Sec. 108.325 would require operations personnel and
operators to comply with alcohol and drug use prohibitions mirroring
those currently in place in parts 107 and 91 of FAA's regulations.
The purpose of these regulations is to ensure that the safety of
UAS operations is not impeded by alcohol or drug use. Proposed Sec.
108.325(a) would specifically prohibit serving or attempting to serve
in an operations personnel position within 8 hours of consuming an
alcoholic beverage, while under the influence of alcohol, while using
any drug that affects the person's faculties in any way contrary to
safety, or while having an alcohol concentration of 0.04 or greater in
a blood or breath specimen. Moreover, as proposed in Sec. 108.325(b),
persons who are serving, ready to serve, or immediately available to
serve \89\ in an operations personnel position would need to submit to
alcohol or drug testing upon an appropriate request by a law
enforcement officer. These proposed requirements align with the exiting
alcohol or drugs rules for operators under part 91.\90\ Under Sec.
108.325(c), operations personnel would be required to submit the
results of certain alcohol or drug tests in their possession, or
authorize the release of the same, to FAA if FAA has a reasonable basis
to believe that the person has violated Sec. 108.325(a) and the
Administrator makes a request for such results. Proposed Sec.
108.325(d) would prohibit operators from allowing or continuing to
allow a person to serve in an operations personnel position in
violation of these requirements. To note, paragraph (d)(1) would
require the operator to have actual knowledge that the person is in
violation of Sec. 108.325(a). ``Actual knowledge'' in this context
means information an employer becomes aware of that an operations
person has used alcohol or controlled substances based on the
employer's direct observation of the employee, information provided by
person's familiar with the employee, a traffic citation for driving
while under the influence of alcohol or controlled substances, an
employee's admission of alcohol or controlled substance use, or the
results of reasonable suspicion testing resulting from observation of
employee behavior or physical characteristics sufficient to warrant
such testing in accordance with Sec. 108.325(b). Direct observation as
used in this instance means either direct observation of alcohol or
controlled substances use. As used in this section, ``traffic
citation'' means a ticket, complaint, or other document charging
driving while under the influence of alcohol or controlled substances.
In addition, the operator
[[Page 38262]]
may not permit a person to serve in an operations personnel position
when the person refuses to, first, test upon request of a law
enforcement officer in accordance with proposed Sec. 108.325(b) or,
second, furnish or authorize the release of test results requested by
the Administrator in accordance with Sec. 108.325(c).
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\89\ The moniker of ``immediately available'' is intended to
cover personnel that may only perform operations on a temporary,
short term, or standby basis (e.g., listed as a backup flight
coordinator if the assigned flight coordinator becomes
incapacitated). This is different from being ``ready to serve,''
which would mean the operations personnel is preparing to imminently
begin their assigned duty.
\90\ See 14 CFR 91.17(a) and (c) (the drug and alcohol
regulations proposed in part 108 for UAS operations personnel would
align with the drug and alcohol regulations for a part 91
crewmember).
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F. Duty and Rest (Sec. 108.330)
FAA defines fatigue in AC 117-3 as a physiological state of reduced
mental or physical performance capability resulting from lack of sleep
or increased physical activity that can reduce a crew member's
alertness and ability to operate an aircraft or perform safety related
duties safely. Further, FAA states that the primary contributor to
fatigue is lack of proper sleep and the root-cause for crew member
fatigue may be a combination of scheduling and crew members not
obtaining the proper amount of rest during their assigned sleep
opportunity. FAA states that fatigue can lead to weakness, lack of
energy, lethargy, depression, lack of motivation, sleepiness, decreased
alertness and situational awareness, and poor decision-making skills.
Finally, FAA states that fatigue decreases a person's ability to
perform cognitive tasks and increases variability in performance as a
function of time on task.\91\
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\91\ FAA AC 117-3, Fitness for Duty (Oct. 11, 2012).
---------------------------------------------------------------------------
The importance of alertness, situational awareness, and decision
making is not relinquished even though part 108 operations personnel
would not perform the traditional role of a crew member onboard the
aircraft. Flight coordinators would still be responsible for monitoring
a UA and controlling and initiating emergency actions or issuing
commands to the aircraft during flight as necessary. Should a situation
arise during an operation that would require immediate flight
coordinator input, the alertness, situational awareness, and decision
making of the flight coordinator would be crucial to ensure a safe
outcome as unforeseen events typically happen quickly without warning.
FAA also recognizes that all operational personnel play an important
part in the overall operation of the UA. Personnel may perform such
delegated duties as conducting preflight checks of the UA for the
flight coordinator, loading the UA, or assembling the UA prior to
operations. In performing such functions, the same importance of
alertness, situational awareness, and decision making is necessary to
ensure the overall safe outcome of an operation.
Fatigue in manned aviation has led to events such as procedural
errors, unstable approaches, lining up with the wrong runway, landing
without proper clearances, and overall poor decision making. Though
this proposed rule is for highly autonomous UA operations, FAA
anticipates similar parallels in operational errors with manned
aircraft that have stemmed from fatigue.
FAA has previously determined that if a person has had
significantly less than 8 hours of sleep in the past 24 hours, he or
she is more likely to be fatigued.\92\ In parts 121 and 135, FAA
generally requires a minimum of a 10 consecutive hour rest period
preceding flight time. Because FAA views less than 8 hours of sleep as
being the point for increased fatigue, a minimum of 10-hour rest period
would leave time to complete duty and initiate an 8-hour rest period
with an hour prior to the next duty report time. Therefore, FAA
proposes in Sec. 108.330 that operations personnel would be limited to
a maximum 14-hour duty day and a maximum 50-hour work week. In
addition, required operations personnel would be required to take a
minimum 10-hour consecutive rest period which is free of all
responsibility for work or duty on behalf of the operator within the 24
hours prior to reporting for duty. In addition, FAA proposes that
required operations personnel would be required to receive a minimum of
one day of continuous rest, which would be free of all responsibility
for work or duty on behalf of the operator, per week, each week in
which the operator schedules them for duty. As addressed in proposed
Sec. 108.475(f)(6), the provisions of Sec. 108.330 would not be
applicable to recreational permit holders.
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\92\ Flightcrew Member Duty and Rest Requirements final rule, 77
FR 330 (Jan. 4, 2012).
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G. Security Threat Assessment for Certain Personnel (Sec. 108.335)
Pursuant to TSA recommendation, FAA proposes in Sec. 108.335 to
require that certain covered persons who are engaged in BVLOS
operations undergo up to a Level 3 security threat assessment (STA)
conducted by TSA. Covered persons would include those who perform the
functions of an operations supervisor; perform the functions of a
flight coordinator; have unescorted access to the UAS; have unescorted
access to the cargo loaded for transport on the UAS; or have unescorted
access to the control or the flightpath of the UAS. As is the nature of
their functions and access, such persons naturally play a critical role
in the security and integrity of the operations. An individual with bad
intent performing such functions could cause great harm to the public
by using UAS to conduct attacks or strikes on civilian populations or
transporting prohibited cargo over residential or urban areas where no
guardrails exist to restrict where the UAS travels. TSA administers
such vetting requirements among similarly situated surface, maritime,
and aviation transportation workers. FAA believes, and TSA concurs,
that similar requirements are advisable for these proposed part 108 UAS
operations.
A Level 3 STA includes a check of criminal history, immigration,
and intelligence-related databases and watchlists, as codified at 49
CFR 1572.103-107.
Applicants would most likely visit a TSA enrollment center to
provide identification verification documents needed for the
assessment. TSA may develop other processes in the future to permit the
submission of information electronically for this population. Details
regarding such alternative processes would be included in a final rule
resulting from this NPRM or in a future rulemaking more broadly related
to vetting programs promulgated by TSA. The proposed rule text accounts
for this potential by stating the individuals must follow the
enrollment procedures approved by TSA. Finally, any individual who is
adversely affected by security vetting may seek redress from TSA using
the procedures and standards codified at 49 CFR part 1515.
The proposed rule also references the information TSA requires
applicants to provide for vetting (which TSA has set forth in 49 CFR
1572.9), and the applicant's ongoing responsibilities to maintain an
STA (which TSA has described in 49 CFR 1572.11). In addition, TSA notes
that it is required by law under 6 U.S.C. 469 to collect fees to
recover all vetting costs, and applicants submit those fees to TSA
during the enrollment process. The fees for the Level 3 STA are set
forth in TSA regulation 49 CFR 1572, subpart E. Finally, any individual
who is adversely affected by security vetting may seek redress from TSA
using the procedures and standards codified at 49 CFR part 1515.
FAA believes this STA proposal is necessary to ensure the security
of these operations and could help mitigate the risk of a person who
poses a security threat from serving in a position that impacts the
flight of the UAS.
TSA and FAA invite comment on this STA proposal from all affected
parties.
[[Page 38263]]
Based on the data and information received, TSA and FAA may determine
that the scope of the affected population or the breadth of the STA
should be expanded or decreased for certain covered persons. In light
of the potential security risks of these operations, including foreign
ownership and operation, TSA and FAA are also interested in whether the
scope of individuals who must be vetted should be expanded to include
individuals who have ownership or control of the corporate entity
conducting BVLOS operations. For instance, TSA imposes STA requirements
for individuals who are proprietors, general partners, officers,
directors, or owners of an indirect air carrier under 49 CFR 1548.16.
Finally, including the overarching vetting requirement in 14 CFR
part 108 rather than TSA's regulations is consistent with other vetting
conducted for airmen certificate holders. While TSA's regulations
govern the vetting process itself, it is the FAA that denies or revokes
a certificate based on TSA vetting. FAA and TSA, however, welcome
comments on whether TSA should incorporate the overarching requirement
into 49 CFR chapter XII, subchapter C, rather than in the FAA's
regulations under 14 CFR part 108.
VIII. Permitted and Certificated Operations (Subparts D and E)
Under this proposal, FAA would require UAS operators to obtain an
FAA-issued operating permit or operating certificate to conduct BVLOS
operations. The rule proposes two categories of operating authorization
delineated by risk: permitted and certificated operations. Permitted
operations represent a lower level of risk due to their limited
complexity and scope. Permitted operations include package delivery,
agriculture, aerial surveying, civic interest, UA operations training,
demonstration, recreational, flight tests, and other operations as
approved by FAA. Permitted operations would have limitations on the
size of the aircraft, number of aircraft in the fleet, and capacity to
operate over people, depending on the type of permit. Under this
proposal, operators would be required to hold separate permits for each
category of operation, renew their permit(s) every two years, and
obtain approval from FAA for their area(s) of intended operations.
Certificated operations would allow more complex operations, with
larger aircraft, fleet, and greater flexibility to operate over people
under this proposed rule. Certificated operations would include package
delivery, agriculture, aerial surveying, civic interest, and other
operations as approved by FAA. As the operations allowed under a
certificate would be more advanced than those under a permit, FAA
oversight would be more significant and involved than with a permit.
Operators would also be required to hold a communication assessment
plan to ensure safety of communication links and ground risk, develop a
SMS, submit to validation tests before FAA, obtain approval from FAA
for the area of intended operations, and establish and implement a
training program for their personnel.
FAA may issue authorizations and limitations as part of the
operating permits and certificates, and in conjunction with any waivers
or deviations granted. However, FAA is not proposing a requirement to
use Operation Specifications (OpSpecs) in the regulations. FAA finds
that defining the system that FAA uses to document authorizations and
limitations in the regulations would not be needed because such a
system would govern the conduct of FAA rather than the regulated
community. Instead, FAA intends to produce guidance to industry and FAA
inspector workforce on the expectation of how authorizations and
limitations will be issued and managed for permit and certificate
holders.
The following sections articulate proposed requirements for this
operating framework, addressing the manner and form in which
applications would be submitted, the specific authorizations and
limitations of the various categories of operation, and the process for
denials of application and suspensions or revocations of the permit or
certificate.
For most of the categories of permitted operations and certificated
operations, one of the limitations would be the maximum weight of the
UA, including anything carried by or attached to the UA. FAA has
included weight limits on UA in both part 107, which has a 55-pound
weight limit, and exemptions, which have specific weight limits
determined by the type of operation being conducted under the exemption
and the UA being used. The highest maximum weight for a part 108 UA
would be 1,320 pounds, per proposed Sec. 108.800(b)(3).\93\ The basis
for the highest maximum weight being 1,320 pounds is the BVLOS ARC
recommendations and JARUS limitations based on maximum kinetic energy.
However, as discussed in subsequent sections, not all permitted
operations nor all certificated operations would be allowed to use UA
with a maximum weight of 1,320 pounds. Instead, for many of the
categories of permitted and certificated operations, there are lower
maximum weight limits. While the reasons for each category's specific
weight limitation are detailed in their respective sections, the
guiding principle in selecting the weight limitations was a spectrum of
risk. The level of risk varied not only because of the type of
operation but because of the other associated mitigations, such as
population density. In order to translate a relatively abstract concept
like risk into specific weight limits, FAA utilized two limitations on
weight: the 55 pounds limit for part 107 operations and the proposed
1,320 pounds overall limit for part 108 UA. This rule proposes three
weight limits for the various categories of permitted and certificated
operations (55 pounds, 110 pounds, and 1,320 pounds) to give structure
to the spectrum of risk. FAA welcomes comments on this approach, as
well as on the specific weight limits adopted for the various
categories of permitted and certificated operations. In particular, FAA
requests comments, with supporting data as available, on allowing
operations with aircraft between 110 pounds and 1,320 pounds at higher
population densities than proposed in this preamble.
---------------------------------------------------------------------------
\93\ FAA has proposed allowing that the 1,320 pounds limit in
Sec. 108.800(b)(3) could be subject to waiver if a manufacturer
chooses to seek the ability to manufacture a part 108 UA over 1,320
pounds, specific to permitted agricultural, UA operations training,
demonstrations, and other operations as determined by FAA.
---------------------------------------------------------------------------
A. Requesting Operating Permits or Operating Certificates (Sec. Sec.
108.400 and 108.500)
FAA proposes to create two avenues for operators to conduct
operations under part 108. These two paths proposed are operating
permits and operating certificates. To conduct operations under part
108, operators would have to obtain either an operating permit or an
operating certificate from FAA. This proposal creates a mechanism by
which FAA authorizes each operation, which would mean FAA has reviewed
the application and issued the permit or certificate, as appropriate.
Whether issued a part 108 operating permit or certificate, operators
would have to comply with the applicable performance requirements
proposed under part 108 as well as any operating limitations imposed by
FAA or the manufacturer.
Operating permits, proposed under subpart D of part 108, may be
issued for eight possible purposes: package delivery, agriculture,
aerial surveying, civic interest, operations training,
[[Page 38264]]
demonstrations, recreational activity, and flight tests. FAA believes
that these categories represent the majority of UAS operations in the
NAS. FAA anticipates that most operators would likely seek an operating
permit. Alternatively, an operator may seek an operating certificate,
which places additional requirements for compliance on the operator in
exchange for increased operating privileges. Operating certificates may
be requested for four purposes: package delivery, agriculture, aerial
surveying, and civic interest operations. Operators conducting flight
training, demonstrations, recreational activity, and flight tests would
be required to obtain operating permits, as operating certificates
would not exist for those purposes. FAA recognizes that operators may
request operating permits or certificates for UAS operations other than
those categories listed in this proposed rule. As such, FAA may
authorize operators to conduct their requested operation on a case-by-
case basis pursuant to Sec. 108.400(c) for operating permits and Sec.
108.500(c) for operating certificates.
FAA has sufficient safety data to normalize complex UAS operations
for the proposed type of operations listed under Sec. 108.400(a) and
Sec. 108.500(a), based on the exemption and waiver requests that FAA
has evaluated from operators seeking to conduct those specific
operations. Using lessons learned from market needs, as well as the
evaluation and issuance of FAA waivers and exemptions, FAA was able to
categorize and establish limits for each of the proposed types of UAS
operation. FAA did so by assessing the individual risk associated with
each type of operation.
For situations where the regulation allows operators to request
authorization from FAA to operate beyond the limitations stated in the
regulations, FAA may place additional conditions and limitations on the
operating permit or the operating certificate, considering any added
risk associated with each requested type of UAS operation. FAA would
also impose appropriate conditions and limitations for any other UAS
operation not listed in this proposed rule and requested under Sec.
108.400(c). FAA would apply conditions and limitations consistent with
the level of risk posed by the proposed operation, as it does with
existing waivers and exemptions.
FAA anticipates that there may be types of UAS operations that do
not meet those specified in Sec. 108.400(a). While FAA invites
comments on any additional types of operations that should be included
in the rule, FAA further proposes in Sec. 108.400(c) that FAA may
approve other operations proposed by an operator that do not fit into
the types defined in this proposal. However, FAA emphasizes that this
flexibility would not be a license to exceed the limitations for a type
of operation already defined in Sec. 108.400(a). FAA would not accept
a request for an operating permit for operations listed in proposed
Sec. 108.400(a) in an attempt to exceed the restrictions already
placed by FAA on any of the operating categories. For example, if an
operator intends to conduct package delivery operations under a permit
utilizing a UA with a gross weight of more than 55 pounds, the operator
would not be able to petition FAA for a special operating permit
because package delivery operating permits are limited to a gross
weight of 55 pounds or less. Section VII.B proposes conditions and
limitations for each type of operation.
FAA proposes under Sec. 108.400(e) to limit each operator to
holding only one operating permit per category of UAS operation. This
limitation is necessary to ensure that operators would not compound
their FAA-issued operating permits to exceed the restrictions FAA has
already placed for each type of operations. For example, part 108
operating permits for package delivery operations would be limited to a
fleet size of 100 UA. Likewise, a single operator would not be able to
obtain two package delivery operating permits in hopes of doubling the
size of their UAS fleet. Operators who would want to exceed that
operation size limitation would have to work with FAA to obtain a part
108 operating certificate, which would not have a fleet size limit. As
such, FAA believes these limitations would facilitate compliance with
FAA requirements.
The only exception to this limitation would be a part 108 operating
permit issued for flight test operations. Flight test permits would be
issued to UAS manufacturers who want to develop UAS for airworthiness
acceptance under proposed part 108. Those UAS manufacturers would need
to test their UAS to validate the UAS's performance. Manufacturers may
want to test more than one UAS for more than one of the UAS operations
listed. As such, FAA proposes to except them from being limited to a
single operation.
1. Application Submission (Sec. Sec. 108.405 and 108.505)
Prior to conducting UAS BVLOS operations under proposed part 108,
operators would need to obtain either an FAA-issued operating permit or
an FAA-issued operating certificate. To do so, operators would be
required to apply for either the operating permit or the operating
certificate depending on the type and scale of their UAS operation.
Under proposed part 108, FAA would review and evaluate all applications
received for operating permits or operating certificates in order to
determine whether applicants meet the minimum performance requirements
to comply with and operate under proposed part 108.
FAA would require operators to submit their application for an
operating permit under proposed Sec. 108.405, or an operating
certificate under proposed Sec. 108.505, in a form and manner
acceptable to the Administrator. Each applicant would need to describe
the operation they seek to conduct under proposed part 108. The
application would include questions, data, and documentation requests
that verify the applicant's ability to operate in compliance with the
applicable requirements of this part. This is proposed to be an online
application system. Operators applying for part 108 operating permits
would be required to submit the following information in their
application package, as required under proposed Sec. 108.405: \94\
---------------------------------------------------------------------------
\94\ Further discussion on requirements for an operator's base
of operation and recordkeeping requirements, see section V.C of this
preamble. For further discussion on intended area(s) of operation
and operator's company manuals, see sections VI.D and VI.O of this
preamble.
---------------------------------------------------------------------------
(1) The operator's name and contact information, which would
comprise of the operator's name (including name of individual who
serves as the point of contact), physical address, email address, and
telephone number.
(2) Address for principal base of operations, if different from the
address provided for contact information, in accordance with proposed
Sec. 108.30.
(3) Name of the individual(s) who serve as operations supervisor,
in accordance with proposed Sec. 108.305.
(4) The intended type of UAS operation, in accordance with proposed
Sec. 108.400(a).
(5) The intended area(s) of operation(s), in accordance with
proposed Sec. 108.165.
(6) Company manual(s) as required under proposed Sec. 108.405.
(7) A recordkeeping process as required under proposed Sec.
108.40.
(8) Operator reporting procedures, as required under proposed Sec.
108.45.
(9) The type(s) of unmanned aircraft to be used in operations that
comply with the requirements of proposed Sec. 108.105.
[[Page 38265]]
(10) Additional information the Administrator may determine is
necessary to evaluate the application.
In addition, operators applying for a certificate for package
delivery operations would also be required to provide documentation of
their citizenship status. FAA requests comment on what documentation
should be provided, including whether the level of documentation should
be similar to that provided in other certification contexts. From a
policy perspective, it is FAA's intent that this proposed regulatory
pathway for scaled BVLOS operations benefits U.S. companies and
encourages growth in their domestic operations. FAA considered
proposing application of this requirement to permitted package delivery
operations but determined that it may not be necessary in all
circumstances given the anticipated smaller scope of these operations.
However, FAA requests comment on whether or not permitted package
delivery operations should also provide their citizenship status as
part of their application, especially in consideration of the DOT
regulatory requirement that exists for new certificate applicants in 14
CFR 204.3(e) which requires a sworn affidavit stating that the
applicant is a citizen of the United States.
Under this proposed rule, operators applying for a part 108
operating certificate would be required to submit the same information
in their application package as those required by applicants for part
108 operating permits. Applicants for operating certificates would need
to identify which type of UAS operations they intend to operate as
found under proposed Sec. 108.500(a). UAS operations that do not fall
under one of four categories listed in proposed Sec. 108.500(a) could
be authorized by FAA, subject to any limitations issued by FAA in
conjunction with the certificate.
Because UAS operations under an operating certificate could be
larger in scale and therefore could have larger impacts on the safety
and efficiency of the NAS, FAA would require applicants for operating
certificates to substantiate their application by proving their ability
to conduct their proposed operation safely. As such, FAA proposes in
Sec. 108.505(b) that applicants for a part 108 operating certificate
would need to provide additional information, as well as undergo
additional steps, to complete their application package. Proposed
additional requirements for applicants for part 108 operating
certificates include: \95\
---------------------------------------------------------------------------
\95\ See section VIII.C of this preamble for further discussion
on a part 108 operating certificate assessment plan, training
program, SMS, hazardous materials program, inoperative equipment
requirement, and duty and rest requirements.
---------------------------------------------------------------------------
(1) A training program, as required under proposed Sec. Sec.
108.540 and 108.315.
(2) Communication and ground risk assessments, as required under
proposed Sec. 108.550.
(3) SMS, as required under proposed Sec. 108.560.
(4) A hazardous materials program, as required under proposed Sec.
108.570.
(5) Procedures permitting the use of any inoperative equipment, per
proposed Sec. 108.555.
(6) Plan for complying with duty and rest requirements, per
proposed Sec. 108.330.
(7) For those operators proposing to engage in package delivery,
documentation of their citizenship status.
Requiring applicants to verify their ability to comply with the
applicable requirements of the proposed part 108 operating permit or
operating certificate they seek would assist FAA in properly evaluating
and qualifying operators to ensure that they would be able to conduct
complex BVLOS operations without compromising the safety or efficiency
of the NAS. The operator's application package would be evaluated to
determine whether to grant or deny an applicant's request for a part
108 operating permit or operating certificate. FAA would evaluate that
information to also ensure that the operator is capable of conducting
the operation they seek to conduct.
Under proposed Sec. 108.405, FAA would evaluate operating permit
applications for completion and may request additional information or
documentation, as needed, to supplement the application. In addition to
reviewing and verifying the applicant's identification and the intended
area(s) for operations, FAA may also review the applicant's operating
and maintenance procedures, personnel qualifications, manuals, and
record-keeping procedures. By evaluating the information submitted as
part of the application, FAA would be able to assess and determine
whether the applicant for a part 108 operating permit is sufficiently
capable and qualified to conduct the operation they seek to conduct
under part 108 without compromising NAS safety or efficiency.
In contrast to evaluating an application for part 108 operating
permits, applications for operating certificates under proposed Sec.
108.505 would involve a process similar to part 135 certification,
which involves a collaborative effort between the applicant and FAA to
review manuals, training programs and operational authorizations.
Similar to part 135 certification, FAA would assign a certificate
management team to the operator, and evaluations of applications for
operating certificates would necessitate regular communication between
FAA and the applicant. As a part of this engagement with FAA, the
applicant would also be required to demonstrate their capability to
meet all the requirements listed under proposed Sec. 108.505(b). FAA
anticipates that the communication and demonstration would be an
iterative process, which could require multiple instances of
communication between FAA and the applicant, depending on the
completeness of the application and the complexity of the operation(s).
FAA may also request additional information or documentation from the
applicant, as needed, to supplement their permit or certificate
application.
If FAA approves the application for the requested operation, FAA
would then issue the applicant the operating permit or operating
certificate, as requested. The following section will discuss FAA
issuance of a part 108 operating permit or operating certificate in
greater detail.
2. Duration (Sec. Sec. 108.410 and 108.510)
Section 108.410 proposes that permits would have a set duration of
24 calendar months. Since permitted operations would receive less FAA
surveillance, an expiration date for permits is necessary to
periodically verify the operators' continued ability to meet regulatory
requirements through an application process. Certificated operators
would not have an expiration date as FAA would conduct routine and
frequent surveillance on those operations to verify continued
regulatory compliance. For both operating permits and certificates, FAA
would retain its ability to suspend or revoke an operating permit or
certificate in accordance with proposed Sec. Sec. 108.420 and 108.520.
FAA proposes in Sec. 108.510 that, unless suspended or revoked, an
operating certificate issued under part 108 would remain in effect
until the operator surrenders it to FAA, or the operator fails to meet
the requirements of proposed Sec. 108.530, as discussed in further
detail below. As explained in section VIII.A, the process of obtaining
and maintaining a certificate would require continued collaboration
between the operator and FAA. As such, FAA
[[Page 38266]]
would continue to remain informed on the operator's characteristics,
qualifications, and whereabouts through regular surveillance--including
whether the operator is still active and in good standing. As such, it
is unnecessary to include an expiration date for part 108 operating
certificates. Similarly, under this proposal, FAA would retain its
ability to suspend or revoke any part 108 operating certificate issued
if FAA were to determine that the operator does not meet the
requirements of part 108.
In contrast, FAA proposes under Sec. 108.410 that, unless
suspended or revoked by FAA, an operating permit issued under this part
would remain in effect for a duration of 24 months. Once issued, an
operating permit would expire on the last day of the month 24 months
from the date in which it was issued. For example, if a permit was
issued on March 15 of 2027, the permit would expire March 31, 2029.
Operators intending to continue operating under a permit would need to
apply for a new permit before the expiration of their existing permit
in a form and manner acceptable to the Administrator. FAA proposes to
allow operators to submit the application for their new part 108
operating permit up to 120 days in advance of the expiration date
listed on their existing operating permit. Applications received and
approved for a new permit within this period would be valid for a
period of two (2) years beyond the expiration date listed in their
existing operating permit.
The proposed 24-month period would be in line with letters of
authorization (LOAs), exemptions, certain waivers, and air agency
operating certificates that FAA approves. In addition to beneficially
verifying the safety of operations in the NAS on a recurring basis, 24
months would also provide operators under a part 108 permit with the
opportunity to assess the practicability of their operation on a
recurring basis. This proposal also allows the permit holder the option
to surrender the permit at any time if the operation is or becomes
unfeasible, or if for some reason the operator can no longer comply
with the operating requirements of the permit.
FAA further proposes in Sec. Sec. 108.410(d) and 108.510(b) that
permits and certificates are not transferable. However, in accordance
with Sec. Sec. 108.425 and 108.525, FAA proposes that companies that
undergo name changes, mergers, and acquisition may be eligible to have
the permits or certificate information updated to reflect the new
company information, subject to review and oversight by FAA that the
operation remains largely unchanged.
3. FAA Issuance of Operating Permits or Operating Certificates
(Sec. Sec. 108.415 and 108.515)
As noted in section VIII.A, FAA would evaluate each application
received and may request additional information or documentation, as
needed, to supplement the application. If FAA were to determine that an
applicant for an operating permit or an operating certificate is able
to comply with the applicable requirements under proposed part 108, FAA
would issue the requested operating permit or certificate, as
applicable.
As set forth in Sec. Sec. 108.415 and 108.515, FAA would include
all of the following information in an FAA-issued operating permit or
certificate: the operator's name and the location of their principal
base of operations; type of UAS operation; the permit or certificate
number and effective date, as applicable; and the expiration date (for
permits). While each FAA-issued permit under part 108 would be limited
to one kind of UAS operation, FAA may authorize an applicant for a part
108 operating certificate to conduct multiple kinds of operation under
a single operating certificate.
The information contained in the permit would provide evidence of
the operator's identity as well as the parameters of their operating
privileges. Those parameters would include the location of the
operation, the date and duration of the issued permit, and whether
there are any operating restrictions placed on the permit--e.g.,
operating over certain population densities or the size limit of the
operator's UA fleet. FAA would be able to use this information when
doing surveillance to verify whether the operator is indeed authorized
to conduct their BVLOS operations, and in doing so, is indeed complying
with FAA regulations. FAA would conduct surveillance and oversight
similar to that conducted for part 91 and 107 operations, with more
robust interactions for certificated operators, as discussed in section
VIII.C. In addition to conducting routine surveillance of part 108
operations, FAA would act on reports of violations to conduct further
investigations.
Similar to part 108 operating permits, the information comprised in
each FAA-issued operating certificate would outline the parameters FAA
places on each operator for safely conducting their requested
operation. The information would be used to identify the operator as
well as provide the operator with evidence of their FAA-issued
authorization to conduct UAS operations in accordance with FAA
regulations. Through routine surveillance of part 108 operators, FAA
would be able to determine that the operator complies with the
regulatory requirements of part 108, in addition to additional
oversight if necessitated by reports. FAA relies on many sources to
further investigate complaints, such as accounts from witnesses, video,
and reports from Federal, State, and local law enforcement agencies.
Unlike operating permits, operating certificates, as described in
the proposed rule, would remain active, unless otherwise suspended or
revoked by FAA, returned to FAA by the operator, or the recency of
operations had lapsed. As stated earlier, FAA expects the process of
obtaining an operating certificate to be a collaboration between the
operator and the Agency. UAS operations conducted using an operating
certificate are expected to be more complex and larger in scale than
permitted operations. As such, the certification process would include
a cooperative effort and constant communication between FAA and the
operator. This means FAA would remain informed on the operator's
characteristics, qualifications, and whereabouts, including whether the
operator is still active and in good standing. Section VIII of this
preamble discusses the differences between part 108 permits or
certificates in greater detail.
Operating permits and certificates issued under part 108 do not
constitute all the approvals that may be needed to transport property
for compensation. Operators intending to transport property by air for
compensation may be considered an ``air carrier'' engaged in ``air
transportation'', both of which are defined in 49 U.S.C. 40102 and may
require economic authority from the Office of the Secretary (OST). In
limited instances, operators whose operations are wholly within the
geographic limits of a single State, transporting no more than a de
minimis volume of passengers or property moving as part of a continuous
journey to or from a point outside the State, may be considered as not
engaging in air transportation and thus not requiring economic
authority. However, these determinations are case specific.\96\
Operators proposing to
[[Page 38267]]
transport property by air for compensation may wish to consult with OST
prior to conducting such operations to determine whether economic
authority is required. OST has established a streamlined process for
issuing economic authority to UAS operators.\97\ To assist in ensuring
an efficient Departmental process for these operators, FAA is proposing
in this rule to require that these operators include documentation of
their citizenship status in the application process under proposed
Sec. 108.505(b)(16) for certificated operations.
---------------------------------------------------------------------------
\96\ See Consent Order, Scott Air LLC d/b/a Island Air Express
Violations of 49 U.S.C. 41101 and 41712, DOT-OST 2012-0002 (Dec. 28,
2012) (Holding that an airline flying routes exclusively within
Alaska constituted interstate transportation because it had a public
website, 1-800 phone number, and had reservations connected to
routes to other states) accessible at www.transportation.gov/sites/dot.gov/files/docs/Scott%20Air%2C%20LLC%20dba%20Island%20Air%20Express%20Consent%20Order%202012-12-16.pdf.
\97\ See Notification to UAS Operators Proposing to Engage in
Air Transportation notification of procedures, 83 FR 18734 (Apr. 30,
2018).
---------------------------------------------------------------------------
The general purpose of obtaining economic authority is to enable
operations for common carriers and air carriers by providing Federal-
level requirements to meet instead of being subject to state
regulations that may differ in various states of operation. These
Federal requirements include insurance that protects the operator and
the overflown public from unintentional damages. Maintaining those
requirements is within the Department's scope of authority and in the
public interest. Accordingly, should such operations constitute air
transportation and require economic authority given by the DOT, the
operating permit or certificate issued under part 108 would meet the
statutory requirements for air carriers and air carrier certificates
contained in chapters 411, 417, and 447 of 49 U.S.C. Specifically, FAA
has identified Sec. Sec. 41701, 41702, 41707, 41708, 41709, 41711,
41712(a), 44702(a), 44705, 44711(a)(4), and 44713(a) as statutes that
would apply to operators conducting air transportation under part
108.\98\ FAA welcomes comments on the application of chapters 411, 417,
and 447 to interstate package delivery operations conducted under part
108.
---------------------------------------------------------------------------
\98\ This list is not exhaustive, but it notes the statutory
obligations that FAA has noted as being specifically applicable to
part 108 package delivery operators. Operators would also need to
comply with DOT regulations related to air carriers, including
economic authority and liability insurance. See 14 CFR chapter II,
subchapter A.
---------------------------------------------------------------------------
In sum, the Department as a whole will, as part of this proposal,
continue to align economic authorities with safety and operational
authorities. Because the requirements for obtaining economic authority
are provided explicitly in the statute, those rules will apply to UAS
air carrier operations in the same way that they apply to all other air
carrier operations. Nothing in the proposed rule will exempt entities
wishing to carry or deliver property by UAS from the statutory rules
set forth in 49 U.S.C. 41101-02, 40101(a)(15), and 41703.
Table 3--Statutory Requirements and Corresponding Proposed Regulations
------------------------------------------------------------------------
Statutory provisions Proposed regulations
------------------------------------------------------------------------
49 U.S.C. 41701........................ Sec. 108.565.
49 U.S.C. 41702........................ Sec. 108.120(a).
49 U.S.C. 41708........................ Sec. 108.45.
49 U.S.C. 41709........................ Sec. 108.20; Sec. 108.40.
49 U.S.C. 44702(a)..................... Sec. 108.505.
49 U.S.C. 44705........................ Sec. 108.405; Sec. 108.180;
Sec. 108.185; Sec.
108.505; Sec. 108.515; Sec.
108.565.
49 U.S.C. 44711(a)(4).................. Sec. 108.500; Sec. 108.565.
49 U.S.C. 44713(a)..................... Sec. 108.625; Sec. 108.745.
------------------------------------------------------------------------
The Department also notes that foreign civil aircraft, as defined
in 49 U.S.C. 41703 and 14 CFR 375.1, may only be navigated in the
United States when authorized by the Secretary of Transportation, e.g.,
under 14 CFR part 375, pursuant to a foreign air carrier permit under
49 U.S.C. 41301 and 41302, or pursuant to an exemption from the permit
requirement. 49 U.S.C. 41703 prohibits foreign operators from
conducting for-hire intrastate or interstate air transportation
operations (i.e., cabotage) unless the foreign operator is authorized
for an emergency exemption under 49 U.S.C. 40109(g). Foreign civil
aircraft operators may be licensed by DOT to engage in package delivery
operations in foreign air transportation pursuant to applicable
bilateral aviation agreements by virtue of a DOT-issued foreign air
carrier permit under 49 U.S.C. 41301 and 41302, or pursuant to a DOT-
issued exemption from the permit requirement. In terms of other
commercial air operations conducted solely within the United States,
foreign civil aircraft operators are in general limited to non-air
transportation/non-package delivery operations under 14 CFR part 375,
whereby DOT may authorize an operator to conduct aerial surveying or
agricultural and industrial operations performed in the United States.
As with the 2016 rule, the Department only will authorize foreign-
registered UAS and foreign civil UAS operators in the United States if
it determines that such operations are recognized under international
agreements or via findings of reciprocity, and that approval would be
consistent with the statutory parameters in Sec. 41703. The concept of
reciprocity has a long-standing tradition in international relations,
and it has been the long-standing policy of DOT to require a finding of
reciprocity before allowing commercial air operations or air
transportation to, from, or, as applicable, within the United States.
Operators of foreign civil aircraft may wish to consult with DOT prior
to conducting such operations to determine what authorization is
required.
4. Denials, Revocation, and Suspensions (Sec. Sec. 108.420 and
108.520)
Under proposed part 108, FAA would have the ability to deny,
suspend, or revoke a part 108 operating permit or certificate. FAA
proposes that it would be able to deny an application for a permit or
certificate if FAA finds that operators are not properly or adequately
equipped or are not able to conduct safe operations. Further, FAA
proposes that it would be able to revoke or suspend an existing
operating permit or certificate if any of the conditions in proposed
Sec. 108.420 or Sec. 108.520 are present.
First, FAA would be able to deny an application or suspend or
revoke an existing permit or certificate if FAA were to find that the
operator does not meet the requirements of part 108. It is critical
that operators under part 108 comply with all applicable requirements
to ensure the safety of the NAS and persons and property on the ground.
Providing FAA with these grounds for a denial, suspension, or
revocation would
[[Page 38268]]
ensure an enforcement mechanism for violations.
Second, FAA may deny an application or suspend or revoke an
existing permit or certificate if FAA were to conclude that the
applicant is not properly or adequately equipped or is not able to
conduct safe operations under this part. This would include those
applicants who are unable to conduct safe operations due to financial
reasons. For example, an inability to conduct safe operations due to
financial reasons may stem from not being able to afford insurance
coverage due to damages incurred in an accident involving the UAS or
from the operator declaring bankruptcy.
FAA would also be able to deny an application or suspend or revoke
an existing operating permit or certificate if the Administrator were
to find that the operator previously held any FAA-issued permit or
certificate that was revoked. Similarly, FAA would be able to deny an
application for a permit or certificate or suspend or revoke an
existing operating permit or certificate if the operator filled or
intended to fill a management position with an individual who exercised
control over an operator, or an individual who held the same or a
similar position with an operator, whose permit or certificate was
revoked or is in the process of being revoked, so long as that
individual materially contributed to the circumstances resulting in the
revocation.
In addition, FAA would be able to deny an application for a permit
or certificate, or suspend or revoke an existing operating permit or
certificate, if an individual who would have control over the operator,
or a substantial ownership interest in the operator, had the same or
similar control or interest in an operator whose permit or certificate
was revoked, or is in the process of being revoked, so long as that
individual materially contributed to the resulting revocation. Finally,
FAA would be able to deny an application for a permit or certificate or
suspend or revoke an existing operating permit or certificate if the
operator engaged in any violation of the rule.
Any of these actions may provide FAA with reason to believe that
the operating permit or certificate holder, or applicant for an
operating permit or certificate, may participate in future violations
or non-compliances with FAA regulations. As with any aviation incident
or accident, FAA has the authority to conduct investigations into
possible violations of 49 U.S.C. subtitle VII (Aviation Programs), part
A (Air Commerce and Safety) provisions or regulations and orders issued
under that part. When FAA becomes aware of any potential regulatory
violation, including violations or non-compliances with FAA
regulations, FAA performs an investigation to determine whether a
regulatory violation occurred. The investigation is conducted in
accordance with agency guidance, such as FAA Orders 8900.1 and 2150.3.
After the investigation is complete, FAA Flight Standards Service
determines the proper action to take based on the guidance in the
above-described FAA Orders. However, FAA would holistically evaluate
each applicant with a basis for denial to determine if it has reason to
believe it should not issue a permit or certificate. As such, these
actions would not require FAA to deny an application or suspend or
revoke an existing operating permit or certificate. However, this
requirement ensures that FAA would have the authority to deny, suspend,
or revoke operating permits or certificates when there is an operator
or applicant that may threaten public or aviation safety.
5. Amendments (Sec. Sec. 108.425 and 108.525)
Under proposed Sec. Sec. 108.425 and 108.525, FAA would be able to
amend any operating permit or certificate it has issued under part 108
if FAA were to determine that safety in air commerce or public interest
requires or allows for the amendment. Similarly, an operator would be
able to submit a request to amend their operating permit or operating
certificate under proposed Sec. 108.425 or Sec. 108.525, as
applicable.
Operators would be able to submit a request to change any of the
information submitted in accordance with Sec. 108.405--for operating
permits--or Sec. 108.505--for operating certificates. Those changes
would include, but would not be limited to, changes to the operator's
name, address, and type of UAS operation. However, this would not
include the ability to transfer a certificate from one legal entity to
another. As described in Sec. Sec. 108.410 and 108.510, permits and
certificates are not transferable. However, companies that undergo name
changes, mergers, and acquisition may be eligible to have the permits
or certificate information updated to reflect the new company
information, subject to review and oversight by FAA that the operation
remains largely unchanged.
Any changes submitted to FAA would be reviewed in accordance with
Sec. 108.425 or Sec. 108.525, as applicable. FAA may decide to grant
the amendments--which would then warrant the issuance of an updated
permit or certificate. However, if FAA were to determine that it is in
the interest of public or aviation safety to deny the operator-
requested amendment, then FAA would proceed with issuing a denial. When
FAA proposes to issue an order amending, suspending, or revoking all or
part of any certificate, the procedure in Sec. 13.19 of part 14 would
apply.
Sections 108.425(d) and 108.525(d), would provide operators an
opportunity to petition FAA's decision to deny an amendment request
that was initiated by the operator. FAA would require operators to
submit those petitions within 30 days of receiving FAA amendment or
denial of an operator's request to an amendment. Providing operators
with the opportunity to appeal FAA's decisions would ensure that
operators receive due process. Thirty days should provide operators
with sufficient time to submit requests to appeal FAA decisions.
FAA understands that changes to an operation are inevitable over
time. It would be the responsibility of the operator to ensure that FAA
is informed of any changes in operations or business plan. Similarly,
FAA understands that NAS characteristics may change over time and may
include stakeholders that do not currently exist. As the entity
responsible for the safety and efficiency of the NAS, FAA has to remain
vigilant in making decisions that would not compromise that safety or
efficiency. This responsibility would include decisions to amend, or
requests to amend, any permits or certificates issued by FAA.
B. Permitted Operations
In order to provide simple, rapid access to commencing operations
for smaller scale and lower-risk operations, FAA is proposing an
expedited path for authorization to operate with part 108 operating
permits. Under this proposed rule, FAA would require that a permit be
obtained for UA operations training, flight testing, demonstration, and
recreational operations beyond visual line of sight. FAA would also
provide a path to a permit for package delivery, agricultural use,
aerial surveying, and civic interest, though operators would also be
able to obtain a certificate for those types of operations.
Though the operating permit requires less time to obtain and has
fewer requirements than an operating certificate, FAA still must ensure
the safety of the public when issuing operating permits. Because this
proposal would not require airman certification for individuals to
operate a UA, FAA must ensure that the responsibility of
[[Page 38269]]
the operation rests with either an individual or an entity that will be
held accountable for complying with the requirements of an issued
permit. FAA would require that any person or company wanting to conduct
a specific operation performed under this proposal would be required to
obtain either an operating permit or an operating certificate.
As further discussed in section VIII.B.1 of this preamble, a permit
holder would be required to designate an operations supervisor who is
directly responsible for and the final authority for every operation of
all UA allowed to fly in the NAS under the permit and in accordance
with the proposed regulations. FAA considered requiring all persons
conducting operations under this proposal to obtain an operator
certificate rather than having an operating permit option. However, FAA
finds that certain operations, as described in this section, are lower
risk, could occur under the operating permit, and do not require the
complex process of obtaining an operating certificate.
FAA proposes in Sec. 108.400(a) that operations under a permit
would be limited to eight specific purposes: package delivery,
agricultural, aerial surveying, civic interest, UA operations training,
demonstration, flight test, and recreational. Each of these categories
has distinct risk associated with them. For example, agricultural use
may involve the use of chemicals, while package delivery operations
would be more likely to interact with the public. By categorizing these
specific operations through an authorized permit, FAA would be able to
mitigate the associated risks with tailored authorizations and
limitations.
Finally, FAA proposes that operators could request authorizations
to exceed various limitations proposed in certain permit sections of
part 108. Each authorization granted to an operational provision could
include special conditions and limitations imposed by FAA. Combined
with the requirements and limitations described below, FAA anticipates
that operations under an authorized permit would be conducted in a
manner that would allow for safe operation.
1. Active Aircraft Limits, Weight Limits, and Population Density Limits
FAA anticipates that permitted operations would have less oversight
than certificated operations under the proposed framework. The less
oversight of permitted operations would be balanced with having more
operational limitations than what limitations would be imposed on
certificated operations. For permitted operations, FAA proposes a
three-pronged approach to risk mitigations. Each type of operation
under permit is limited in some combination of weight of aircraft,
number of active aircraft, and permissible population densities over
which operations can take place.
FAA has used a spectrum to determine the appropriate limitations
for each type of permit, considering a combination of the weight,
population density restrictions, and number of active aircraft allowed
per permit. FAA proposes to limit larger aircraft to lower population
densities, while also limiting the fleet size per permit to vary levels
of active aircraft, dependent on the operation, (other than
recreational operations, which are limited to one active aircraft, and
flight test permits, which have no limits on the number of active
aircraft). ``Active aircraft'' refers to the number of UA that are
actively being used in operations and are listed on the operating
permit application, per proposed Sec. 108.105. This would not preclude
an operator from having extra ``backup'' drones that could be
operationalized in the case an active aircraft got damaged or put out
of commission. In other words, this does not imply limits on the number
of UA owned or registered in an operator's possession.
The limit of one active aircraft for recreational permits is based
on the different regulatory requirements for operators holding
recreational permits. As discussed in section VIII.B, the operating
requirements for recreational permits are tailored to the more limited
operations anticipated under this proposed rule, including limiting the
distance the UA may be flown, and exceptions from personnel, manual,
and general operating rules.
At the other end of the spectrum for proposed permitted operations,
flight test permits would not have an active aircraft limit. This is
supported by two mitigations in particular. First, flight test permit
holders must be qualified UA manufacturers or accredited educational
institutions. Second, flight test operations can only be conducted over
Category 1 population densities, the most restrictive of the population
density categories under proposed part 108.
For the remaining six types of operating permits, FAA proposes set
a limit of 100 active aircraft for permitted package delivery, 25
active aircraft for permitted aerial surveying and civic interest, and
10 active aircraft for permitted agricultural, UA operations training,
and demonstration operations. The proposed limit on the number of
active aircraft is intended to manage the size of the operations
allowed under permit. FAA is also attuned to the scope of operations
and the appropriate levels of oversight which aviation safety
inspectors provide based on risk, which was considered in proposing
these active aircraft limits. Given that the proposed operating permit
structure has less FAA oversight and fewer regulatory requirements than
the proposed operating certificate structure, FAA proposes to use
active aircraft limits as a risk mitigation to ensure that operations
remain the appropriate size for this oversight and regulatory model.
FAA acknowledges that there is no existing precedent for such fleet
sizes. FAA has not implemented active aircraft limits on a large scale
for UAS operations previously. FAA requests comments on the use of
specific active aircraft limits for each type of permitted operation,
as opposed to a consistent limit for most commercial operations. In
addition, FAA requests comments on the specific proposed active
aircraft numbers. In particular, FAA requests comments on if certain
types of operations based on their complexity, geographical scale, or
other factors warrant different active aircraft limits. FAA also
solicits comments regarding the maximum economically feasible size and
scope of operations under the proposed limits including estimated
numbers of employees, operating locations or bases of operations, and
geographic area. Detailed explanations of each active aircraft limit
are located in sections VIII.B.4 through VIII.B.9.
FAA also considered proposing a generally consistent number of
allowed active aircraft depending on the type of operation while
determining whether differentiating between types of operations would
be appropriate. As such, FAA considered setting the active aircraft
limit to 25 for all operations. Ultimately, FAA determined that
variable limits was a more appropriate way of limiting the size of
operation to ensure sufficient operator oversight and appropriate level
of safety for each different type of operation, while also allowing the
different types of operations to have sufficient number of aircraft to
be economically viable. FAA invites comment on the concept of a
generally consistent active aircraft limit for permitted operations.
FAA also welcomes comments, including supporting data, on whether FAA-
proposed limits of active aircraft are appropriate in order to support
the operations that would be conducted under that type of permit.
As noted previously in this section, FAA is proposing three weight
[[Page 38270]]
categories for both permitted and certificated operations, with the
applicable weight category depending on the type of operation. The
highest weight limit, 1,320 pounds, is supported by JARUS Specific
Operations Risk Assessment (SORA) and the BVLOS ARC recommendations, as
further discussed in section XI.B. of this preamble. It also aligns
with the weight limit that has been traditionally used for light-sport
aircraft as defined in 14 CFR 1.1.
The other two proposed weight limitations are 55 pounds and 110
pounds. 55 pounds is consistent with the weight restriction in part
107, while 110 pounds is consistent with FAA's experience of approving
operations with UAS over 55 pounds through exemptions. The specific
weight restrictions associated with each type of operating permit are
described in the following sections (section VIII.B.4-VIII.B.11).
Under proposed part 108, no permitted operations would be able to
be conducted over Category 4 or Category 5 population densities. In
addition to this broad limitation, FAA proposes to set various limits
on population densities over which permitted operations may operate.
FAA proposes that the permitted operations that are allowed to have UA
up to 1,320 pounds would be able to only operate over Category 1 areas.
Permitted operations that are allowed to have UA up to 110 pounds would
be able to operate over Category 3 population densities and below, with
certain exceptions for civic interest if in an emergency situation. FAA
proposes these limits to ensure the permitted operations, with their
reduced oversight and regulatory requirements, would be appropriately
limited in scope compared to the certificated operations that have more
robust training programs, communication and ground risk assessments,
and safety management systems to mitigate the risks associated with
operations in more densely populated areas.
The following sections discuss the specific weights and population
limits associated with the permitted operations, as shown in table 4.
Table 4--Limitations on Permitted Operations by Operation Type
----------------------------------------------------------------------------------------------------------------
Maximum weight Maximum population Additional
Permit type (pounds) Operation size density limitations
----------------------------------------------------------------------------------------------------------------
Package delivery................. 55 100 aircraft....... Cat 3.............. No hazmat.
Agricultural..................... 1,320 10 aircraft........ Cat 1.............. No dispensing over
people.
Aerial surveying................. 110 25 aircraft........ Cat 3..............
Civic interest................... 110 25 aircraft........ Cat 3.............. Must be under
contract to
Federal/State/
local/Tribal
government.
UA operations training........... 1,320 10 aircraft........ Cat 1..............
Demonstrations................... 110 50 aircraft........ Cat 2..............
Flight test...................... 1,320 No limit........... Cat 1..............
Recreational..................... 55 1 aircraft......... Cat 3..............
----------------------------------------------------------------------------------------------------------------
2. Display of Permit (Sec. 108.430)
FAA proposes that operators would be required to display their FAA-
issued operating permit pursuant to Sec. 108.430. FAA would require
operators to provide evidence of a valid permit for the operation being
conducted and that is available at the point of aircraft operations
control. Current FAA-issued waivers and exemptions require that all
operational documents be present at the location where the operation is
taking place. Given the use of digital systems, operators should be
easily able to produce the operating permit evidence necessary to FAA
or to a Federal, State, or local law enforcement officer. Further,
requiring that an operator have an operating permit readily available
ensures that the permit holder has the operational conditions of the
permit accessible for reference. FAA proposes the permit can be in
paper form but may be kept on an electronic device that displays the
permit legibly and may not be altered by any person that has it stored
on a device.
3. Cybersecurity (Sec. 108.435)
FAA understands that integrating low-altitude UAS BVLOS operations
into the NAS may create conditions conducive to new and innovative
safety and security threats. In security organizations, a threat is
generally regarded as anything that can exploit a vulnerability and
obtain, damage, or destroy an asset, and this threat can be either
accidental or intentional. Accidental threats usually arise when
operators unintentionally violate regulations through ignorance or
negligence. Intentional threats arise when persons engage in criminal
or malicious activity. Threats from malicious actors are particularly
nefarious, but both accidental and intentional threats can exploit
vulnerabilities with impacts to both safety and security.
FAA anticipates that proposed part 108 operations may introduce
vulnerabilities, particularly regarding cybersecurity. Various
cybersecurity threats include unauthorized access to a facility's
hardware, software, control station or other AE, insufficient
protections or protocols regarding employee network access, or cyber-
attacks by malicious actors. FAA anticipates that UAS operating under
this proposed rule would rely on complex technologies that connect the
UA to various systems and services, enabling remote control,
communications, data transmission, and other functions. These UAS would
thus be susceptible to many of the same cybersecurity risks as other
connected technologies. In general, cybersecurity threats may be
evaluated by examining the combination of intent, capability, and
opportunity. Intent and capability are outside FAA's control, but
opportunity can be mitigated against by protecting vulnerabilities. FAA
has determined that operators must address the elements listed above to
cover the many vulnerable access points that could introduce
cybersecurity threats. This proposed rule already includes some
requirements to mitigate these threats, including proposed Sec.
108.150(c), which would require operators to develop and implement
physical security policies and processes, including preventing
unauthorized access to the operation's facilities and protecting other
controlled access areas. Sec. 108.875, which would require UA
manufacturers to protect the UAS from intentional unauthorized
electronic interactions.
To address these cybersecurity risks, FAA proposes to require
operators to develop and implement cybersecurity
[[Page 38271]]
policies and processes to protect networks, devices, and data from
unauthorized access. These policies would ensure integrity, accuracy,
and-reliability of operations. In Sec. 108.435(b)(1) through (4), FAA
proposes that certificated operators must, at minimum, include
processes for: protecting software, hardware, and network computing
infrastructure necessary to protect operations from unauthorized
access; \99\ ensuring the operator's employee network access privileges
are limited to those necessary to fulfill normal job duties; ensuring
access privileges are turned off/removed for former employees;
preparing for, responding to, and mitigating the impact of cyber-
attacks; collecting and analyzing data to measure the effectiveness of
the cybersecurity policy and processes; and any other processes the
operator deems necessary to implement effective cybersecurity
protections. FAA is utilizing performance-based language in this
proposed requirement to provide operators flexibility with how
controlled access areas designated.
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\99\ www.nist.gov/cyberframework/quick-start-guides.
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4. Package Delivery Operations (Sec. 108.440)
FAA proposes several threshold requirements to distinguish
permitted package delivery from package delivery conducted with an
operating certificate. These distinguishing factors would be limited to
Category 3 population densities and lower (as set forth in Sec.
108.440(h)), lower volume of operations, and smaller UAS. These factors
are discussed in more detail in the following paragraphs.
Similar to part 107 operations, FAA proposes to prohibit permitted
operators from transporting hazardous materials unless operating in
accordance with 49 CFR 175.9(b), as set forth in Sec. 108.400(d).
Transportation of hazardous materials would be allowed under
certificated package delivery operations. However, FAA requests comment
on whether and how a permitted operator seeking to transport hazardous
materials may be appropriate. FAA is particularly interested in the
limited scenarios when operators would seek relief to transport
hazardous materials (e.g., in support of a disaster response) and what
types of conditions and limitations the operators believe would
sufficiently ensure an acceptable level of safety.
FAA notes that permitted operators operating under 49 CFR 175.9(b)
are not subject to the prohibition from transportation of hazardous
materials. 49 CFR 175.9(b) provisions apply to certain special aircraft
operations. These operations are distinct from package transportation
and delivery. For example, 49 CFR 175.9(b)(1) allows hazardous
materials to be loaded and carried in hoppers or tanks of aircraft
certificated for use in aerial seeding, dusting spraying, fertilizing,
crop improvement, or pest control to be dispensed during such an
operation. FAA seeks to provide clarity that Sec. 175.9(b) operations
are not considered package delivery operations and are not subject to
the prohibition on permitted operators transporting hazardous
materials. In addition, FAA notes that while 49 CFR 175.9 also includes
provisions for rotorcraft external load operations (see 49 CFR
175.9(a)), those operations are not provided the same exceptions as 49
CFR 175.9(b) operations.\100\
---------------------------------------------------------------------------
\100\ See 76 FR 3381.
---------------------------------------------------------------------------
Though FAA does not propose to authorize a permit holder for
package delivery from transporting hazardous materials, they may
inadvertently receive a package for delivery that contains hazardous
materials. Hazardous material packaging regulations require marking and
labeling to be included on the outside of a package for identification
purposes.\101\ Persons loading packages in permitted operations would
be required to have adequate knowledge and understanding of the marking
and labeling associated with hazardous materials in order to reject a
package for transportation. Misidentifying a package or ignorance of
the contents, which may contain hazardous materials may result in UA
fires, contamination, or personal injury. Accordingly, FAA proposes in
Sec. 108.440(b) that package delivery permit holders would be required
to ensure that any personnel assigned duties and responsibilities for
the handling or carriage of packages have initial and recurrent
training in the recognition of hazardous materials and complete
hazardous materials recognition training every 24 calendar months.
Requiring this training to be conducted every 24 calendar months would
be consistent with requirements listed under parts 135 and 121
hazardous material training.\102\
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\101\ 49 CFR part 172.
\102\ 14 CFR 135.501 and 121.1001.
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As proposed elsewhere in this preamble, permitted package delivery
operators would be limited in operational scope to enable streamlined
approval of lower-risk part 108 operations. One reason these operations
would be lower risk is that transporting hazardous materials would be
prohibited (will-not-carry operations). In addition, compared with
will-not-carry certificated package delivery operators, permitted
package delivery operations would be much more limited in size and
scope, which would also serve to limit the associated risks. Therefore,
FAA believes requiring an approved hazardous materials training program
(as proposed for certificated package delivery operations) is overly
burdensome. However, FAA believes that attending a hazmat recognition
training course and obtaining a certificate of completion achieves the
goals of an approved hazardous materials training program without being
burdensome. FAA notes that if a permitted package delivery operator
wishes to transport hazardous materials, they may do so as a
certificated package delivery operator.
One way that FAA proposes a permitted package delivery operator
would obtain initial and recurrent training is by taking an FAA
training course or an equivalent training acceptable to the
Administrator. FAA intends to offer a free online course that would
inform permitted package delivery operators about hazardous materials
to help ensure they do not inadvertently transport or offer hazardous
materials. For example, the FAA course would focus on what is
considered a hazardous material and what hazardous materials
communication markings and labels are (to ensure these packages are
rejected and not transported), as well as highlighting some
considerations if the permitted operator wishes to ship hazardous
materials by an authorized carrier. While this course would provide
effective methods of ensuring that the permitted package delivery
operator is aware of hazardous materials transportation considerations,
it would always be the responsibility of each permitted package
delivery operator to ensure they do not transport hazardous materials
or offer hazardous materials. Alternatively, a permitted package
delivery operator may take a different course or training acceptable to
the Administrator. For example, FAA may accept alternative training
from a permitted operator who took hazardous material training that
meets the requirements in 14 CFR part 135, subpart K or general
awareness training in 49 CFR 172.704(a)(1) in the preceding 24 months.
Following completion of any initial and recurrent training, the
permitted package delivery operator should prepare training records in
[[Page 38272]]
accordance with Sec. 108.40(e)(1). FAA proposes that each permitted
operator would be required to take recurrent training every two years,
which mirrors the proposed recurrent training requirements for part 108
certificated package delivery operators. Lastly, FAA notes that this
training may support other forms of hazardous materials knowledge,
including for part 107 operations. While FAA is not proposing to
require this training for part 107 operations, other operators may take
this training as an additional means to understand hazardous materials
transportation requirements.
FAA proposes in Sec. 108.440(c) that, for package delivery
permitted operations, operators would be required to ensure that the
payload in, on, or suspended from the UA is properly secured and does
not adversely affect the flight characteristics or controllability of
the UA. An unsecure payload could shift or disconnect partially,
interfering with UA devices or flight characteristics, which may cause
shifts in center of gravity and controllability issues. In addition, an
unsecure payload could disconnect fully, causing hazard to persons or
property on the ground as it releases from the UA. To avoid any hazard
to the UA's controllability and flight characteristics and to persons
and property on the ground, FAA proposes in Sec. 108.440(c) that
operators would be required to ensure payloads are properly secured and
do not adversely affect the flight characteristics or controllability
of the UA. Generally, this is expected to be specified by the UA
manufacturer as the manufacturer is the systems designer and testing of
the payload securing device would be completed by the manufacturer. The
payload system should be addressed in the manufacturer's operating
instructions for each UAS receiving an airworthiness acceptance as
further described in section X of this preamble.
FAA proposes in Sec. 108.440(d) that operators would be required
to provide notification to each delivery customer that provides the
customer information about the delivery method and instructs the
customer to remain clear of the UA during delivery by a distance
sufficient to minimize the risk of injury. FAA anticipates this may be
done through means such as electronic means during the order process
prior to delivery, or other means that ensure information is adequately
provided to the customer. Because BVLOS package delivery operations may
not have operator personnel at the site of delivery, a UA delivering a
package close to the ground, possibly with exposed spinning rotor
blades, may create a hazard to persons should a person come in contact
with the UA. By requiring information about the delivery method to be
disseminated, FAA can ensure the consumer would have an adequate
understanding of the risk associated with the intended operation. This
would allow the operator to conduct a delivery as planned while the
customer retains awareness of the specific parameters of the individual
delivery in order to reduce the likelihood of injury.
Under proposed Sec. 108.440(e), FAA would require that the
operator ensure delivery areas are free of any obstructions that could
pose a hazard. Delivery area obstruction information is important to a
UA operation because obstructions in the delivery area could damage the
UA and increase risk for persons or property on the ground. UA
operators should always ensure that not only delivery areas, but any
area used for takeoff and landing are free of any obstructions or
hazards. FAA anticipates that an operator may accomplish this by in-
person visits to an area, customer provided data, onboard cameras used
during flight, detailed topography mapping, geospatial data mapping,
and other technology that would ensure familiarity to avoid obstacles
and hazards.
FAA is proposing in Sec. 108.440(f) that operations for package
delivery would have to be conducted with fewer than 100 active
aircraft. FAA based this proposed limit for active aircraft on its
experience with operations that have been conducted under current UAS
exemptions. These operations under exemptions have consistently begun
with small numbers of aircraft and incrementally increased in scale, to
include operations using 100 aircraft. FAA's intention with this
proposal is to ensure that permitted operations are designed to be
smaller in scale but remain economically viable, with an active
aircraft number that allows for UAS being prepared for delivery with
their packages, those in transit to their destinations, and those
returning from delivery and being recovered. This is an upper limit,
and the responsibility would ultimately lie with the operations
supervisor to ensure safety is maintained during all phases of their
operations. Package delivery operations, which are expected to
typically have multiple UA departing from a single hub station with
monitoring oversight by few persons, would be manageable by operations
personnel as these numerous UA would likely be visible on a single
computer display with very little interaction by a human. In addition,
FAA has observed that there is generally a correlation for battery-
powered UA between the weight of the UA and the maximum distance
possible for the UA to travel. As UA used for package delivery
permitted operations are limited to 55 pounds, this correlation would
suggest a more limited maximum distance than would be expected for
larger UA. Accordingly, though there will be significantly more UA
allowed under package delivery permits, the UA would be limited in how
far they could get from the departure location. This in turn would
minimize the scope of what a flight coordinator has to monitor in terms
of geography. This expectation supports allowing more active aircraft
under a package delivery permit than would be allowed under other forms
of part 108 permits.
Due to the proposed limitations on the size of the operations under
a permit, FAA proposes to place controls on how an operator is defined.
For the purposes of delineating operator size under a permit, an
operator would include those operations directly under the control of
the operator, including operations conducted through lease agreements
with other persons, subcontractors, or subsidiaries. This is intended
to prevent companies from working around the size limitations by
setting up shell companies, lease arrangements, or other arrangements
which would increase the risk of their operations while avoiding moving
to a certificated operation.
Under this proposal, FAA would limit package delivery permitted
operations to Category 3 population densities and below, as described
in section VI.H, to reduce the risk to individuals and property.
Categories 4 and 5 population densities would include areas such as
shopping centers, multifamily housing, and cities. FAA has proposed in
Sec. 108.185 to limit Category 4 and 5 operations to certificate
holders as the mitigations associated with an operating certificate
provide the level of safety equal to the increased risk. Certificated
package delivery operations could occur in Category 4 and 5 population
density areas provided the operator meets the requirements of proposed
Sec. 108.565. FAA anticipates that package delivery permit holders
would conduct most of their deliveries within housing developments and
areas with single-family homes. Further, agricultural, UA operations
training, and flight testing permitted operations would be limited to
population density Category 1. Those permitted operations would be
limited to lower population density categories due to associated
increased risks such as carriage of hazardous chemicals, and training
and testing which have a higher
[[Page 38273]]
potential for operator error or in-flight malfunctions. The same risks
do not apply to package delivery operations under a permit and
therefore, FAA proposes that package delivery operations with a permit
may utilize population density categories 3 and below.
Per the discussion in the paragraph regarding package delivery
operations in section VIII.A.3, the operator may be considered an ``air
carrier'' engaged in ``air transportation'' and may require economic
authority from the OST. See section VIII.A.3 for more discussions on
this topic.
As discussed in section XII.B.6.vi, this rule would eliminate
package delivery entirely as an option under part 107. The feasibility
of performing extensive package delivery operations with aircraft that
are limited to line of sight and prohibited from operating over people
is very limited. In addition, part 107 package delivery operations that
adhere to the restrictions of that part without waiver or exemption are
simply not feasible and unnecessarily encumber limited Agency
resources. Furthermore, the scale these types of operations are
considering would go far beyond what was contemplated under the part
107 rule. FAA anticipates that many of the package delivery operations
currently being conducted under part 107 would shift to permitted
operations under part 108, necessitating a change to more capable and
reliable UAS but largely keeping the same footprint as the 2016 rule
anticipated.
In addition, FAA proposes in Sec. 108.440(g) that package delivery
permitted operations would need to be conducted with a UA having a
combined gross weight of UA and payload no greater than 55 pounds.
Package delivery operations using an operating permit are proposed to
be conducted with fewer of the operating requirements, such as training
programs, SMS, and DAA systems (for Category 5) than package delivery
with an operating certificate. For package delivery permitted
operations, a UA weighing greater than 55 pounds would pose a greater
risk to human beings should an unplanned landing occur than a small UA
would. Fifty-five pounds is consistent with the limit placed on part
107 operators. Without this additional standardization as required by
certificated operations, FAA believes that risk to persons and property
on the ground would increase with a UA weighing greater than 55 pounds
as the standardization under certificated operations is meant to
mitigate risk associated with the increased population density.
Finally, FAA proposes in Sec. 108.440(i), that prior to conducting
package delivery operations under a part 108 operating permit, the
operator must contact TSA to request and obtain a limited security
program equivalent to 49 CFR 1544.101(g). FAA finds it necessary to
levy this requirement given the national security implications arising
from UAS package delivery operations. FAA only proposes to apply this
requirement to package delivery operations at this time and notes TSA
has requested comment on imposing additional security requirements on
other part 108 operations. FAA may adjust this requirement as
appropriate to conform to applicable security requirements.
TSA has joined this proposed rulemaking to ensure that TSA's
security requirements are appropriately applied to UAS operations that
would be permitted or certificated by the FAA under part 108. TSA's
proposed amendments are limited to the addition of definitions relevant
to UAS operations in 49 CFR part 1540 and two revisions to 49 CFR part
1544 to clarify that these operations are within the scope of its
requirements. In addition, the FAA is proposing including in 14 CFR
108.440(i) a requirement for operators to ensure they have obtained a
security program from TSA before conducting UAS operations under this
proposed rule. Under this requirement, operators are advised that FAA
approval is not sufficient. TSA approval is also required.
These proposed requirements are intended to avoid any unintended
consequences regarding the security of UAS operations under proposed
part 108, consistent with TSA's responsibility for aviation security
and the need to ensure the security of UAS operations as recognized in
both E.O. 14305 and E.O. 14307. The types of security risks UAS
operations pose to the public are described in E.O. 14305, which states
that ``criminals, terrorists, and hostile foreign actors have
intensified their weaponization of these technologies, creating new and
serious threats to our homeland.'' Specifically, the E.O. notes that
``[d]rug cartels use UAS to smuggle fentanyl across our borders,
deliver contraband into prisons, surveil law enforcement, and otherwise
endanger the public.''
The proposed text would ensure that the decision to regulate these
UAS operations under part 108 does not inadvertently create a security
gap under TSA regulations.\103\ Under this proposal, which has been
developed in consultation with TSA, TSA will continue to ensure the
security of the national airspace by imposing appropriate security
requirements. The proposed text would require UAS operators authorized
under part 108 to request a TSA security program. The revisions to
TSA's regulation would permit TSA to issue a limited program to these
operations under 49 CFR 1544.101(g). The proposal is consistent with
TSA's regulatory structure, which has long required certain operators
regulated under part 119 to request, and maintain compliance with, a
TSA-approved security program before conducting operations (both
domestic and foreign carriers operating to/through/from the United
States).
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\103\ In the absence of the text, this proposed rule might have
created uncertainty regarding the applicability of 49 CFR part 1544,
potentially resulting in a separate TSA rulemaking proceeding while
this more comprehensive rulemaking remained pending. Having
concluded that an additional concurrent rulemaking could result in
confusion and uncertainty, the agencies decided to work together on
this limited issue as the most appropriate path forward.
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The proposed text would clarify that under applicable TSA
regulations, UAS operators must seek a ``limited program'' under 49 CFR
1544.101(g). The general requirements for a security program are listed
in TSA's regulations at 49 CFR part 1544. TSA develops standard
security programs that meet these requirements. Operators can request
amendments to the standard security program to address specific
operational issues, and TSA can approve these amendments to the extent
they maintain the required level of security. In addition, TSA has
broad statutory authority to grant exemptions from applicable
requirements.\104\
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\104\ See 49 U.S.C. 114(q).
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TSA is considering additional changes to security program
applicability and requirements in a final rule. While some operations
will not require any additional security requirements beyond vetting,
in a final rule TSA may expand the applicability of security program
requirements to cover more than package delivery operations. TSA is
requesting comment on the scope of operations for which a limited
security program should be required, in addition to the requirement for
vetting. For instance, TSA could choose to regulate all permitted and
certificated BVLOS UAS operations, with limited exceptions for certain
non-package delivery operations based on (1) UAS size; (2) intended use
of the UAS; (3) capabilities of the UAS, including payload; (4)
location of operation centers and range of UAS; (5) planned areas of
operation; and (6) fleet size.
[[Page 38274]]
Similarly, recreational operations permitted under part 108 may be
appropriate for an exemption from such requirements given the size,
weight, and range limits associated with those operations.
TSA notes that an expanded security program applicability in the
final rule could include any of a range of security program
requirements, such as (for instance) requirements to appoint a Security
Coordinator and to comply with security directives and emergency
amendments to security programs. TSA anticipates developing model
language appropriate to the different types of operations that will be
permitted by FAA under part 108. For example, under the existing
regulatory requirements in 49 CFR 1544.101(g), TSA could require the
following security measures as applicable:
Preventing or deterring the carriage of any unauthorized
weapons, explosives, incendiaries, and other destructive devices,
items, or substances.
Controlling cargo that it accepts for transport on an
aircraft in a manner that:
[cir] Prevents the carriage of any explosive, incendiary, and other
destructive substance or item in cargo onboard an aircraft.
[cir] Prevents unescorted access by persons other than an
authorized aircraft operator employee or agent, or persons authorized
by the airport operator or host government.
Either verifying that the chain of custody measures for
screened cargo are intact before loading such cargo on aircraft or
ensuring that the cargo is re-screened in accordance with TSA's
requirements.
Designating a Security Coordinator at the corporate level
that must serve as the operator's primary contact for security-related
activities and communications with TSA.
Implementing control functions with respect to each
aircraft operation sufficient to:
[cir] Prevent unauthorized access to areas controlled by the
aircraft operator under an exclusive area agreement in accordance with
49 CFR 1542.111 of this chapter.
[cir] Prevent unauthorized access to each aircraft.
[cir] Conduct a security inspection of each aircraft before placing
it into operations if access has not been controlled in accordance with
the aircraft operator security program and as otherwise required in the
security program.
[cir] Prevent unauthorized access to the operational area of the
aircraft while loading or unloading cargo.
Training individuals with security-related duties.
Such requirements would also ensure UAS operators could avail
themselves of existing procedures in TSA's regulations to modify their
programs to appropriately address their operational environment while
maintaining the level of security determined necessary by TSA.\105\
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\105\ See, e.g., 49 CFR 1544.101.
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TSA anticipates that many of the larger operators that will seek
approval to conduct part 108 operations may already be subject to a TSA
security program. TSA would work with these operators to determine
whether they need a new program or could modify their TSA-approved
program. TSA has also historically adapted its requirements to meet the
needs of smaller and seasonal operators and would continue to apply
this flexibility for UAS operations approved under part 108, while also
ensuring the security risks identified above are being appropriately
addressed. TSA and FAA request comments on the proposed text and will
work jointly on adjudicating comments relevant to TSA's proposed text
in this NPRM. Because FAA is held to the final rule deadline
established by E.O. 14307, TSA will have to meet that deadline as well
in co-adjudicating the security-related comments and developing its
relevant final rule sections.
5. Agricultural Operations (Sec. 108.445)
FAA proposes in Sec. 108.445(a) that, except for certificated
operations, no operator would be allowed to conduct agricultural
operations involving aerial seeding, dusting, spraying, fertilizing,
crop improvement, or pest control with a UA under part 108 without, or
in violation of, an agriculture permit issued under part 108.
Substances used in agricultural aircraft operations can contaminate
soil and water resources and cause health risks to the general public.
To ensure the safety of such operations, FAA is proposing in Sec.
108.445(g) that no person would be allowed to dispense an economic
poison or cause an economic poison to be dispensed from an aircraft,
for a use other than that for which it is designed and registered,
contrary to any safety instructions or use limitations on its label, or
in violation of any Federal, State or local law or regulation of the
United States. Further, because of the associated risks, FAA is
therefore proposing in Sec. 108.445(f) that no operator would be
allowed to dispense, or cause to be dispensed, from an aircraft, any
material or substance in a manner that creates a hazard to persons or
property on the ground.
In Sec. 108.445(h) FAA proposes the same relief from the
requirements in proposed Sec. 108.445(e) as is currently allowed under
part 137 for operators dispensing economic poisons for experimental
purposes when under the supervision of a Federal or State agency
authorized by law to conduct research in the field of economic poisons
or when operating under a U.S. Department of Agriculture permit issued
pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. 136). Operations conducted for agricultural purposes require
fundamental knowledge and skills such as identifying and loading of
pesticides, dispensing substances with wind drift, and effects of
economic poisons and agricultural chemicals on persons, animals, and
plants. Dispensing economic poisons and agricultural chemicals from a
UA poses an inherent risk to persons and property on the ground. In
Sec. 108.445(f), FAA proposes that the operator would not be allowed
to dispense, or cause to be dispensed, from an aircraft, any material
or substance that creates a hazard to persons or property on the
surface. These materials and substance may include products intended
for use in purposes such as plant nourishment, soil treatment,
propagation of plant life, activities affecting agriculture,
horticulture, or forest preservation, but not including the dispensing
of live insects in a manner that creates a hazard to persons or
property on the ground.
In addition, FAA further proposes in Sec. 108.445(i) that
operators conducting agricultural aircraft operations under an
operating permit would need to have and keep current a comprehensive
training program that is tailored for their proposed operation, in
addition to the training required by Sec. 108.315. Proposed Sec.
108.445(i) provides minimum knowledge requirements for the training,
including a survey of the area to be worked, safe handling and storage
of economic poisons, the proper disposal of used economic poison
containers, the general effects of economic poisons and agricultural
chemicals on plants, animals, and persons (with emphasis on those
normally used in the areas of intended operations), the precautions to
be observed in using agricultural chemicals and economic poisons,
primary symptoms of poisoning of persons from economic poisons, the
appropriate emergency measures to be taken, the location of poison
control centers, performance capabilities and operating limitations of
the aircraft to be used, and
[[Page 38275]]
safe flight and application procedures. By requiring a training program
that includes the tailored areas described above, any additional risk
associated with an individual operation would be further reduced.
FAA proposes in Sec. 108.445(b) that agricultural aircraft
operations would need to be conducted with fewer than 10 aircraft
directly under the control of the operator, including those held
through lease agreements or subsidiaries. Agricultural UA operations,
though conducted in areas of overall lower risk to persons and
property, would be a more complex operation as it relates to
operational supervisor oversight. For example, package delivery
operations typically have multiple UA departing from a single location
and returning to that same location point, providing for a more
controlled oversight environment as the operational supervisor has
direct access to the UA, persons, and packages on the ground before and
after flight. Conversely, UA agricultural operations currently require
personnel to reposition a UA to a specific location for agricultural
treatment. While on location, those personnel typically conduct several
duties to mitigate any hazards, including preflight site surveys,
loading substances on the aircraft, and continuous monitoring of the
operational area for persons. As discussed in section VIII.B.4, FAA has
observed a correlation between the weight of a UA and distance that the
UA can travel from the departure location. As agricultural permitted
operations would be able to use larger UA, FAA is cognizant that the
larger UA could cover greater distances than smaller UA. As the UA
could be located in a larger circumference, in turn increasing the
scope that the flight coordinator has to monitor, it is prudent for FAA
to limit the number of active aircraft to 10 or fewer. FAA has also
based this limit on its experience with existing exemptions that limit
agricultural operations to smaller numbers of UA being controlled at
one time in comparison to package delivery exemptions, which typically
allow a greater number of active UA. As a result, FAA believes that
limiting the number of UA under a permitted agricultural aircraft
operation would reduce the ancillary risk of such an operation.
FAA proposes in Sec. 108.445(c) that operations conducted under an
agricultural permit would also be limited to UA weighing no more than
1,320 pounds. Currently, FAA has issued hundreds of exemptions for UAS
agricultural operations, weighing up to 1,125 pounds,\106\ with an
average weight of approximately 500 pounds. Larger UA typically fly
longer missions due to increased battery power and require larger or
longer takeoff and landing areas. Longer flight durations and larger or
longer takeoff and landing areas require more attention by the operator
for preflight and operational oversight. To ensure these operations
fall within the expected risk parameters of permitted operations, FAA
would allow agricultural operations up to 1,320 pounds under permit,
though subject to limiting operations to only Category 1.
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\106\ Pyka, Inc. Grant of Exemption No. 20445.
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Agricultural aircraft operations today typically take place in
sparsely populated areas and directly over non-populated areas, close
to the ground while dispensing and close to structures. Should a UA
collide with the ground or a structure, persons may become vulnerable
to the associated hazard from any substance on the aircraft. FAA
intends to limit agricultural UA operations to lower categories of
operations over people (as further discussed in section VI.H) to
mitigate any risks associated with persons and property on the ground.
FAA therefore proposes in Sec. 108.445(e) that part 108 agricultural
aircraft operations with a permit would be limited to Category 1
population density areas, unless otherwise authorized by the
Administrator. As discussed above, dispensing economic poisons and
agricultural chemicals from a UA poses an inherent risk to persons and
property on the ground.
6. Aerial Surveying Operations (Sec. 108.450)
Operators conducting photography, videography, mapping, inspection,
and patrolling with UAS are currently doing so either under the
confines of part 107 VLOS operations, under a waiver to proposed Sec.
107.31, or by relief granted through an exemption allowing for aircraft
weighing more than 55 pounds or BVLOS operations. FAA proposes in Sec.
108.450(a) that operators would be able to conduct photography,
videography, mapping, inspection, and patrolling under an operating
permit.
Aerial surveying operations would be limited by proposed Sec.
108.450(b) to operations with fewer than 25 active UA, either directly
under the operator's control, through lease agreements, or
subsidiaries. Due to the complexity of these operations under a permit,
such as operations being conducted from different locations at any
given time, FAA finds that a higher limit than 25 active UA for aerial
surveying operations would be detrimental to operational control
oversight, as the risk with the operator's management oversight
increases with multiple individual operations in different areas.
Consistent with the discussion in section VIII.B.4, the correlation
between UA weight and maximum distance supports the active aircraft
limit of 25 UA for aerial surveying permitted operations. As discussed
subsequently, the weight limit for aerial surveying permitted operation
UA is greater than that of package delivery, but less than that of
agricultural operations. In addition, FAA has considered the proposed
allowed population density for the aerial surveying permitted
operations in setting the active aircraft limit at 25 UA. Aerial
surveying permitted operations are allowed to conduct operations at
higher population densities than demonstration permits but are limited
to a lower population density than package delivery operations.
FAA proposes in Sec. 108.450(c) those operations conducted for
purposes such as photography, videography, mapping, inspection, or
patrolling with an aerial surveying permit would also be limited to a
UA with a combined total weight of less than 110 pounds, including
anything attached to or carried by the UA. Higher-weight aircraft
typically fly lengthier missions due to increased battery power or fuel
quantity and require larger or longer takeoff and landing areas due to
increased size and takeoff and landing speeds directly related to
weight. More extended operations and larger or longer takeoff and
landing areas would require greater attention to the operator's
preflight planning, oversight, and additional risk mitigations to
maintain safe operations as the overall complexity of the operation
increases. FAA proposes to limit aerial surveying operations to less
than 110 pounds. FAA has similarly issued waivers for operations with
UA weighing more than 55 pounds. FAA does not however, anticipate a
significant need for UA heavier than 110 pounds for purposes of aerial
surveying since applications for waivers with UA greater than 110
pounds for these purposes are not requested frequently. Furthermore,
FAA can mitigate risk associated with aerial surveying by limiting the
UA's weight.
In addition, FAA proposes in Sec. 108.450(d) that aerial surveying
operations would be limited to Category 3 population density areas or
lower, in accordance with Sec. 108.185. Further, Sec. 108.185 also
generally limits permitted operations to categories 3 or lower, as
lower population densities correlate to a
[[Page 38276]]
lower risk to persons and property on the ground. FAA anticipates that
aerial surveying operations would occur in a multitude of population
densities due to the various purposes of missions, such as
newsgathering. However, because of the lower weight and because aerial
surveying operations are typically conducted within the confines of a
defined area or areas, FAA proposes that a Category 3 population
density would provide an acceptable level of safety.
7. Civic Interest Operations (Sec. 108.455)
Under Sec. 108.455, FAA proposes to allow certain civic interest
operations to be conducted under a permit. For the purposes of this
rule, civic interest operations would be operations performed by an
entity contracted to a Federal, State, local, or Tribal government for
purposes including forest and wildlife conservation (including wildfire
recovery, wildlife conservation, and tracking climate change) and
operations in support of public safety (including fire, accident, and
disaster response). In addition, FAA proposes that, when operating in
support of a government entity, the operator must coordinate and
deconflict operations with the law enforcement or government emergency
management agency responsible for incident response in advance and
throughout the duration of the operation.
Civic interest operations conducted under part 108 operating
permits and certificates would only apply to civil aircraft operations.
PAO would continue to be governed under the statutory provisions for
public aircraft as set forth in 49 U.S.C. 40102(a)(41) and 40125 and be
required to comply with applicable `all-aircraft' operating
requirements as set forth in 14 CFR part 91. In other words, PAO
operators can continue to operate as PAO under part 91 pursuant to the
terms of their valid COA. These provisions provide the legal basis for
PAO in the United States. FAA has issued an AC \107\ that provides
information to determine whether government or government-contracted
aircraft operations conducted within the territory of the United States
are public or civil aircraft operations under the statutory definition
of ``public aircraft.'' The civic interest category would not replace
the use of PAO, but rather would provide other options for operators
that do not wish to operate as PAO or cannot meet all the PAO
requirements for the type of operation being conducted.
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\107\ Available at www.faa.gov/documentLibrary/media/Advisory_Circular/AC_00-1.1B.pdf.
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FAA proposes in Sec. 108.455(b) that operations conducted under a
civic interest permit would be limited to operations with fewer than 25
aircraft either directly under the operator's control, through lease
agreements, or subsidiaries. Civic interest operations usually would
occur in response to government safety response and support. As these
operations could occur on short notice and in unpredictable operational
areas, FAA does not consider it appropriate to increase the overall
complexity of the operation by allowing for greater amounts of active
aircraft. FAA therefore proposes to limit the number of active aircraft
per operator, thus reducing the overall risk associated with the
operation. Consistent with the discussion in section VIII.B.4, the
correlation between UA weight and maximum distance supports the active
aircraft limit of 25 UA for civic interest permitted operations. As
discussed subsequently, the weight limit for civic interest permitted
operation UA is greater than that of package delivery, but less than
that of agricultural operations. In addition, FAA has considered the
proposed allowed population density for the civic interest permitted
operations in proposing to set the active aircraft limit at 25 UA,
which would be the same as aerial survey. Civic interest permitted
operations would be allowed to conduct operations at higher population
densities than demonstration permits but would be limited to a lower
population density than package delivery operations.
In addition, FAA proposes in Sec. 108.455(c) that UA operating
under a civic interest permit would not be allowed to have a combined
gross weight of aircraft and payload of more than 110 pounds. Similar
to the weight limit proposed for aerial surveying operations, larger
aircraft typically have increased battery power, allowing for longer
missions, and require larger or longer takeoff and landing areas due to
increased size and takeoff and landing speeds directly related to
weight. Longer duration operations and larger or longer takeoff and
landing areas require more attention by the operator to the amount of
preparation and preflight planning of operations.
FAA is proposing that operations at a gross weight of 110 pounds or
less would be limited to Category 3 population density areas or lower.
The additional mitigations of Category 3 (i.e., the strategic
deconfliction requirements of Sec. 108.190), combined with the lower
weight, provide sufficient assurance to operate in more densely
populated areas. As discussed above, larger UA may fly longer
operations and may require larger or longer takeoff and landing areas,
increasing the complexity of the operation and the necessary oversight
by the operator.
Finally, FAA recognizes that certain life-saving missions with UA,
such as search and rescue-related missions in disaster or hard to reach
areas, would be in the interest of the general public. FAA does not
intend to limit those life-saving operations and recognizes the
necessity of the expeditious and precise support that civic interest UA
operations could have on short-notice relief. FAA therefore proposes in
Sec. 108.455(f) that civic interest operations may be conducted over
any population density to the extent necessary to safeguard lives in
imminent threat. While FAA does not propose to define how this is
determined, it is expected for these to be rare events associated with
disasters and other unforeseen emergency situations where the use of
the UAS could help save lives. In these situations, the added risk to
persons and property on the ground is offset by the life-saving nature
of the operation. However, FAA emphasizes that this should not be
construed as routine and everyday occurrences and it is still the
responsibility of the operator to exercise good judgment and conduct
any and all operations in the best interest of safety to everyone
involved, as well as to comply with the prohibition on careless and
reckless flight.
8. UA Operations Training (Sec. 108.460)
The overall purpose of UA operations training is to acquire and
hone basic airmanship skills. While the UA operations in this proposal
would be mostly autonomous, the systems used for monitoring and
controlling the UA would use software that provides a means to
configure the autopilot system as well as providing an in-flight means
of monitoring and controlling aspects of the UAS. These systems can
range from straightforward user interfaces to complex arrangements
requiring advanced training to program and operate the system. FAA
recognizes that some UAS operators would benefit from training by a
third party. For example, a UAS manufacturer may be in the best
position to train persons on the intricacies and details of the UAS
before an operator's first use of that system. Therefore, FAA proposes
in Sec. 108.460 that persons operating under a UA operations training
permit could perform UAS operations training services for any type of
operation authorized under this part. This would
[[Page 38277]]
not apply to operators conducting their own training programs. UA
operations training provided by an operator to their own operations
personnel could be conducted under the same permit or certificate they
hold for their operations without holding a separate UA operations
training permit under this section.
FAA is proposing that a UA operations training permit would be
exclusively used for training purposes, rather than other types of
revenue operations. As such, no person would be able to use a UA
operations training permit in lieu of obtaining the required permit for
another type of operation conducted under proposed subpart D.\108\
However, this would not preclude a UA operations training company
providing training under a UA operations training permit, while the
company personnel being trained are conducting operations under a
different type of permit. But the general expectation is that UAS
operations training would be conducted in a training environment and
not during revenue operations. For example, if a company that
specialized in UAS training held a UA operations training permit, that
company could train personnel who are employed by a different operator
that holds an agricultural operations permit. That company could
perform ``on-site'' training with the agricultural operator while
actual agricultural operations were being performed. The training
elements of the operation would be accomplished under the training
permit, and associated limitations, and the agricultural elements of
the operation would be conducted under the agricultural permit. The
training company personnel could demonstrate flight path techniques,
maneuvering, etc., over the fields. However, the operator holding the
UA operations training permit would not be able to use their own
personnel to conduct actual agricultural dispensing operations under
the UA operations training permit. Rather, they could observe the
agricultural operations being performed by personnel of the operator
with the agricultural operations permit and provide guidance and advice
as part of the training.
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\108\ For example, an operator who seeks to conduct agricultural
operations would not be able to seek a UA operations training permit
to conduct agricultural operations under the guise of UA operations
training.
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FAA proposes in Sec. 108.460(b) that UA and objects carried by the
UAS operated under a UA operations training permit would not be able to
exceed 1,320 pounds, which is the maximum limit for part 108 UAS under
proposed Sec. 108.805 without an authorization from the Administrator.
For more details on UA weights under different types of permits, please
refer to the introductory language of section VIII.A.1.
FAA proposes in Sec. 108.460(c) that operations would have to be
conducted with fewer than ten active aircraft, either directly under
the operator's control, through lease agreements, or subsidiaries,
unless otherwise authorized by FAA. As discussed in section VIII.B.4,
FAA has considered the correlation between UA weight and maximum travel
distance when proposing active aircraft limits. As the UA weight limit
for training permits is 1,320 pounds, FAA has decided it is prudent to
limit the number of active aircraft to fewer than ten because the
larger aircraft could travel further than small aircraft and would
therefore place an increased burden on the flight coordinator. This
aligns with agricultural operations permits under proposed part 108,
which would be allowed the same number of active aircraft as training
permits for the same proposed weight. As described with other permitted
operations above, FAA finds that increasing the number of active
aircraft above 10 increases the risk associated with the operation and
management oversight of an operation that may require additional review
and oversight by FAA. Therefore, operators wanting to provide training
with more than 10 active UA would have to request this authority,
provide FAA with any information requested, and comply with any
additional imposed limitations. FAA does not anticipate that operations
with more than 10 aircraft would rise to the level of needing the
additional oversight and controls that becoming a certificated
operation would entail. This would provide FAA with flexibility to
authorize more UAS through an individualized risk-based approach. FAA
seeks comment on whether the public and potential operators agree with
this approach.
FAA proposes in Sec. 108.460(d) to limit permitted UA operations
training with larger aircraft to Category 1 areas, unless otherwise
authorized by FAA. Larger UA may be able to operate for longer
durations or require larger takeoff and landing areas, increasing the
complexity of the operation. Given that the purpose of this permit is
to train persons unfamiliar with either the UAS, operating environment,
or policies of the operator, FAA finds it appropriate to mitigate
ground risk by restricting operations to the lowest population
densities proposed by this rule and as further discussed in section
VI.H.
9. Demonstrations (Sec. 108.465)
In Sec. 108.465, FAA proposes that operations for aerial
performances, air races, air shows, sales demonstrations, exhibition,
and the practice and preparations for these events would be conducted
using a demonstration operations permit. FAA currently authorizes and
approves waivers and relief granted through exemptions for such
purposes. A streamlined regulatory process for UA conducting such
operations would benefit the general public and FAA.
Demonstrations with UA are an essential aspect of UA operations, as
manufacturers need to demonstrate new UA to the public. In addition,
individuals will continue to demonstrate operations such as aerial
performances and airshows and have the need to practice those
operations before an event.
FAA proposes that demonstration purposes would be limited to
operations with fewer than 50 active UA, unless otherwise authorized by
FAA. While FAA has proposed active aircraft limits of fewer than 25 UA
for similarly sized permits (see sections VIII.B.6-7), FAA has
determined that an active aircraft limit of fewer than 50 is
appropriate for demonstration permits because they would be limited to
a lower population density than aerial surveying operations or civic
interest operations. For general manufacturer demonstration purposes,
FAA does not foresee an operational circumstance that would require
demonstrating 50 or more UA at a time. In addition, FAA finds that a
higher allowance of UA for demonstration operations would be
detrimental to operational control oversight, as the risk with the
operator's management oversight increases with multiple individual
operations in different areas. However, FAA recognizes that different
demonstrations may necessitate greater flexibility, and FAA therefore
proposes that operations of 50 or more UA for demonstration purposes
could occur with FAA authorization. Separate authorization would allow
for FAA to ensure an acceptable level of safety for each operation.
As discussed in section VI.M, in proposed Sec. 108.210, operations
conducted under part 108 would be limited to a UA-to-Flight Coordinator
ratio of 1:1, except in accordance with a method acceptable to the
Administrator. Demonstration operations with UA typically involve the
operator showing system capabilities, UA performance, and maneuvers,
and operating at a greater than 1:1 ratio would increase the overall
[[Page 38278]]
risk of the operation. FAA does recognize that an operation may require
a demonstration by a flight coordinator to take place with more than
one UA. For example, an aerial display may include multiple UA
performing an in-sync lighted demonstration. In this scenario, FAA
would have the ability to authorize such operations. This authorization
would ensure that FAA has evaluated that an operation does not
adversely affect safety.
FAA proposes that aircraft operated under a demonstration permit
would not be allowed to have a combined gross weight of UA and payload
greater than 110 pounds, unless otherwise authorized by FAA, consistent
with the proposed requirements in Sec. 108.800(b)(3). Further, FAA
also anticipates UA manufacturers may want to demonstrate UA that have
a weight greater than 110 pounds as this rule also allows for
authorization from FAA for operations with UA weighing greater than 110
pounds.
UA operated for demonstration purposes typically perform a flight
in close proximity to persons to show the UAS capabilities. FAA
therefore finds that, by limiting the weight of the UA for
demonstration purposes, should an incident occur, the risk associated
with a UA weighing no greater than 110 pounds would further be reduced.
However, FAA recognizes that operators with a demonstration permit may
need to demonstrate a UA heavier than 110 pounds to fully exhibit its
capabilities. FAA would therefore have the ability to authorize those
operations to ensure that the operation does not adversely affect
safety.
FAA proposes that demonstration operations with a permit would be
limited to Category 2 density areas or lower as further described in
section VI.H of this preamble. FAA believes that operations in these
areas would not have an adverse effect on safety as mitigations require
the use of specific equipment for obstacle and aircraft detection and
avoidance. FAA does not see the need for demonstration operations to
occur in higher population density areas as purposes for demonstration
typically take place in front of persons in lower density population
locations for aerial performances. However, if operators seek to
conduct demonstrations in higher density areas, they may seek
authorization from FAA. In addition, with the lower density of persons
in these areas and the lower weight proposed in this section, FAA
believes that risk to persons and property on the ground would be
further reduced.
Finally, FAA proposes in Sec. 108.465(e) that, regardless of the
categorization of population density in the operating area, operations
would need to be conducted at least 500 feet from any persons. Given
the dynamic operating environment of many demonstration flights--e.g.,
light shows or demonstrations of the full capabilities of a UA for a
prospective buyer--FAA finds it appropriate to require an additional
setback distance to protect spectators from any inadvertent operational
deviations.
10. Flight Test Operations (Sec. 108.470)
FAA proposes to authorize flight testing under a permit in Sec.
108.470, a necessary condition to conduct the development testing
required under proposed Sec. 108.930, functional reliability testing
required under proposed Sec. 108.935, and production acceptance
testing required under proposed Sec. 108.735, as discussed in sections
X.J and XI.AA. Flight testing operations have a higher risk due to new
aircraft testing and new equipment and software, which require greater
attention to the mission as operators focus more on how a UAS performs
during early flights. Flight testing operations would be used to
understand how a UAS is performing. If further adjustments or
corrections need to be made, the risk increases with operations over
persons as the testing is a vetting process that could introduce error
and failure. Should a mistake or failure occur, persons on the ground
would be susceptible to the associated hazard.
Section 108.470(a) proposes that no operator would be allowed to
conduct operations involving flight tests of new aircraft designs,
modifications, or other development-related operations with a UA under
part 108 without, or in violation of, a flight test permit issued in
accordance with this subpart. FAA recognizes that flight testing
operations carry an increased level of risk, stemming from the testing
of new aircraft, equipment, and software. These elements may require
applicants to assess the performance of UA or AE during initial
flights. The issuance of a flight test permit enables applicants to
conduct operations aimed at research and development, as well as the
verification of design, functionality, limitations, and reliability
testing. Importantly, this permit would allow for operations under part
108 without the requirement for an experimental airworthiness
certificate.
Section 108.470(b) proposes that flight test permit operations
would only be allowed to be conducted by UA manufacturers qualified
under subpart G, or by accredited educational institutions. The purpose
of this requirement is to allow only applicants seeking airworthiness
acceptance to be granted a flight test permit for development of UAS
designed for operations under part 108. FAA does not intend to create a
parallel path for experimental airworthiness certification, nor does
FAA intend for this provision to allow operators to obtain a flight
test permit for recreational use.
Allowing accredited educational institutions to obtain flight test
permits would benefit the fields of aviation and aerospace. These
institutions are often at the forefront of technological innovation and
research, playing a role in advancing UAS technology. By granting them
access to flight test permits, it would not only facilitate this
research but would also encourage innovation within the academic
community.
Accredited educational institutions typically possess the necessary
infrastructure, expertise, and oversight to conduct flight testing
operations safely. This would ensure that such activities are carried
out in a controlled environment, minimizing potential risks to public
safety, and ensuring the integrity of national airspace.
Section 108.470(c) proposes limiting flight test permitted
operations to Category 1 population density areas or lower, in
accordance with Sec. 108.185, unless otherwise authorized by FAA. The
purpose of this limitation is to mitigate the hazards associated with
flight test of new design, software, and equipment. FAA acknowledges
the importance of minimizing public exposure to these potential
hazards. The development and testing of aviation technologies
inherently involve uncertainties and risks, particularly when
introducing novel designs or sophisticated software that have not yet
been extensively evaluated in operational environments. These risks can
range from system malfunctions or failures to unforeseen interactions
with the operational environment, which could potentially lead to
incidents or accidents.
FAA's approach to mitigating these risks involves carefully
managing the exposure of the public to potential hazards during the
critical phases of testing and evaluation. By limiting flight tests to
controlled environments or specific conditions, FAA aims to prevent any
adverse outcomes that could arise from untested or under-tested
technologies. This precautionary measure would ensure that any
potential safety issues are identified and
[[Page 38279]]
addressed in a controlled setting, away from densely populated areas or
critical infrastructure, thereby safeguarding public safety.
Section 108.470(d) proposes that, under a flight test permit, the
UA and anything attached to or carried by the UA would not be allowed
to have a combined total weight greater than 1,320 pounds, unless
otherwise authorized by FAA. Testing of all UA designs is necessary and
therefore the weight limit must include the maximum allowable weight
for any type of part 108 operations. As previously discussed, the
population density associated with flight testing permits is very low,
which greatly reduces the risk to persons and property on the ground.
FAA has therefore proposed allowing higher-weight UA under a flight
test permit. As further discussed in VI.A, FAA proposes in Sec.
108.800(b)(3) to limit UA operating under part 108 to no greater than
1,320 pounds max gross takeoff weight, unless otherwise authorized by
FAA. This weight limit would be consistent with the safety continuum
considered for operations of BVLOS UAS.
In order to permit the full spectrum of flight testing necessary to
meet the requirements in subparts G and H, FAA proposes in Sec.
108.470(e) that Sec. 108.105(b), which requires that the UA have an
airworthiness acceptance, would not apply to operations conducted under
a flight test permit. FAA recognizes the unique nature of flight
testing, in which failures can occur as part of the iterative design
and development process. Given this context, airworthiness acceptance
is not required for aircraft engaged in such testing activities. This
approach is based on the understanding that flight testing is
inherently designed to identify and push the boundaries of what is
currently possible, including testing and validating the limitations of
new designs, software, and equipment.
11. Recreational (Sec. 108.475)
While FAA expects the primary uses of operations conducted under
part 108 will be commercial, FAA anticipates that individuals will want
to fly UAS BVLOS recreationally. FAA does not want to omit recreational
operations from this rule when a framework can be developed to formally
ensure safe and secure BVLOS operations. FAA proposes to require non-
commercial or recreational operators wishing to conduct operations
under this proposal to receive a recreational operating permit. The
recreational operating permit and associated requirements under this
proposed rule would govern part 108 recreational operations. FAA,
therefore, would require that no operator may conduct recreational
operations with a UA under this part without, or in violation of, a
recreational permit.
As previously discussed, the main purpose of this proposed rule is
primarily for commercial purposes, however, FAA anticipates that there
will be persons wanting to operate UA recreationally that would not be
possible under part 107. FAA anticipates commercial operations under
this rule will be conducted mostly over higher population densities
with a specific mission and route in mind. FAA does not find it prudent
to oversaturate that airspace with additional recreational operations.
Therefore, FAA will limit recreational operations to Category 3
population densities or lower. Further, FAA will limit the maximum UA
weight under a recreational permit to not more than 55 pounds, which
includes anything attached to or carried by the aircraft. To further
reduce ground risk with recreational operations, FAA chose to limit the
maximum weight in alignment with part 107.
FAA proposes to limit operations with a recreational permit to a
maximum distance of 10 nautical miles from the operator. FAA does not
anticipate recreational operators will have the need to operate at
great distances from the operator. FAA does not have previous data on
recreational BVLOS operational distances with UA. As such, FAA chose a
10 nm maximum distance to ensure a smaller operational footprint. This
maximum distance would also help manage the operational risk of
unforeseen battery depletion, a risk that under other operational
permits would be managed by the corporate entity through their company
operations manual (which is not required under the recreational
permit).
FAA also proposes to limit recreational operations to one UA
operated by an operator at a time because of the complexity and
workload of operating more than one UA at a time. While this rule does
not prohibit ownership of multiple UAS by an individual, operations
conducted under a recreational permit would be limited to the operation
of one UA at a time. Per proposed Sec. 108.475(f), recreational permit
operators would need not comply with the requirements under part 108
for company operations manuals, experience requirements, base of
operations, and operations supervisor requirements, the requirement to
develop and implement a cybersecurity plan, and duty and rest
requirements. By limiting operations to one UA operated by one
operator, the complexity of the operation would be reduced by
maintaining focus on one single UA by one single operator. FAA proposes
this one person to one UA limitation to further reduce risk to persons
on the ground as overall attention rests with only one UA by one
operator.
Lacking a commercial organizational structure, operators holding a
recreational permit do not fit cleanly into the roles delineated in
section VII.B. However, the recreational permit holder would need to
fulfill responsibilities typically assigned to the operator, the
operations supervisor, and the flight coordinator.
C. Certificated Operations
Under this proposal, FAA would require that operations conducted
with a UA for purposes of package delivery, agriculture, aerial
surveying, and civic interest that are not conducted utilizing an
operating permit, as described in section VIII.B of this preamble,
would require an operating certificate issued by FAA. Unlike permitted
operations, which also include permits for UA operations training,
demonstration, flight test, and recreational operations, FAA proposes
to limit certificated operations to only package delivery, agriculture,
aerial surveying, and civic interest. Operations conducted for UA
operations training, demonstration, flight test, and recreational
purposes are generally more appropriate in areas with lower population
densities, as a lower population density provides inherent risk
mitigation should an in-flight occurrence happen. Further, FAA does not
anticipate a significant need for UA operations training,
demonstration, flight test, or recreational flights to be conducted in
higher population density areas. However, FAA proposes that any type of
operation that are not package delivery, agriculture, aerial surveying,
and civic interest, can be authorized by FAA, subject to any
limitations issued by FAA in conjunction with the certificate.
The requirements under proposed part 108 and any authorizations and
limitations will be the governing constraints for certificated
operations FAA uses to mitigate operational risk. Therefore, FAA
proposes that operations under an operating certificate would need to
be conducted in compliance with the requirements of part 108 and in
accordance with any authorizations and limitations issued by FAA.
FAA considered creating a fifth category of operating certificates
for
[[Page 38280]]
larger UA carrying cargo. This would have been distinct from the
package delivery operating certificate due to the size of the UA and
how the operations would be allowed to occur. As discussed further in
section VIII.C.8, FAA has proposed a limit of 110 pounds on package
delivery certificated operations due to the close proximity of package
delivery to customers and customers' homes. FAA did contemplate that
there might be an interest in having larger aircraft operate between
two controlled areas. However, FAA has not yet processed any waivers or
exemptions related to this type of operation. FAA lacks information on
how industry might conduct this type of activity and therefore could
not determine the appropriate risk mitigations for this type of
activity. However, FAA welcomes comments on the inclusion of a cargo
transportation operating certificate, particularly on what such a
certificate may be used for, how it would differ from package delivery,
and what risk mitigations would be appropriate.
1. Recency of Operations (Sec. 108.530)
Proposed Sec. 108.530 prescribes the requirements for operator's
recency of operation. Operations under an operating certificate are
potentially at a higher risk level than permitted operations due to the
allowable size and scope of the operation. FAA proposes in Sec.
108.530(a) that certificated operations under this part must have been
conducted within the preceding 12 calendar months, or the operator
would be required to receive authorization from FAA to resume
operations, as proposed in Sec. 108.530(b). Continued operations
throughout a calendar year allow an operator to maintain a certain
amount of proficiency with operations, as daily adherence to company
manuals, procedures, authorization, and regulatory compliance allows it
to become routine. In addition, FAA surveillance would be regularly
conducted for active operations. Given the highly autonomous nature of
operations conducted under this proposal, FAA feels that proficiency
with the overall operation for recency requirements are different than
in manned aircraft operations as referenced in Sec. 119.63.
Specifically, operations under proposed part 108 would require less
hands-on aircraft controlling and focus more on UA observing and
operational management. Therefore, a longer period of time could elapse
between operations. Further, FAA proposes that FAA may require
inspections or reexaminations to determine whether the operator remains
properly and adequately equipped and able to conduct a safe operation.
FAA anticipates that scenarios may arise that would warrant FAA
involvement prior to continued operations such as a certificate holder
with little operating experience who has not conducted operations after
initial certification.
2. Cybersecurity (Sec. 108.535)
As discussed in section VIII.B.3, FAA has proposed that operators
must develop and implement cybersecurity policies and processes. Highly
automated systems are integral to UAS operations, and this reliance on
these systems can, if not properly protected, result in a significant
vulnerability. In Sec. 108.535, FAA proposes to require operators
conducting operations under a certificate to meet the same performance
standards as permitted operators proposed in Sec. 108.435. Like
permitted operators, FAA proposes that operators would need to develop
and implement cybersecurity policies and processes, which are identical
to those proposed for permitted operations.
In Sec. Sec. 108.535(b)(1) through (4), FAA proposes that
certificated operators must, at minimum, include processes for:
protecting software, hardware, and network computing infrastructure
necessary to protect operations from unauthorized access; \109\
ensuring the operator's employee network access privileges are limited
to those necessary to fulfill normal job duties; ensuring access
privileges are turned off/removed for former employees; preparing for,
responding to, and mitigating the impact of cyber-attacks; collecting
and analyzing data to measure the effectiveness of the cybersecurity
policy and processes; and any other processes the operator deems
necessary to implement effective cybersecurity protections. FAA is
utilizing performance-based language in this proposed requirement to
provide operators flexibility with how controlled access areas
designated.
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\109\ NIST Quick Start Guide available at www.nist.gov/cyberframework/quick-start-guides.
---------------------------------------------------------------------------
3. Training Program (Sec. 108.540)
Proposed Sec. 108.540 prescribes the requirements for a training
program. In Sec. 108.540(a), FAA proposes that certificated operators
be required to establish and implement a training program, acceptable
to the Administrator, which meets the requirements of subpart C of
proposed part 108. Generally, an acceptable training program would
ensure that all operations personnel are adequately identified,
defined, trained, and evaluated in the performance of their assigned
duties. Paragraph (a) also specifically references the requirements of
proposed Sec. 108.315 to ensure operations personnel understand they
would be required to meet the recurrent training of Sec. 108.315(d)
remain proficient in each UA, position, and type of operation in which
they serve.
The program would include the initial and recurrent training that
ensures operations personnel remain proficient in each aircraft,
position, and type of operation in which they serve. Rather than
prescribe a specific structure that includes instructors and examiners,
this proposed rule would allow an operator to design a training program
to fit and support its organizational structure and personnel plan.
This flexibility would accommodate the wide variety, scope, and
different levels of training that could be appropriate for any given
operation. However, the proposal would require the operator to include
how all required operations personnel will be trained, not just core
operations personnel like operations supervisors and flight
coordinators.
In proposed Sec. 108.540(b), FAA would require an operator to
ensure that the training facilities, personnel, training material,
forms, instructions, and procedures are appropriate and current.
However, it is important to note that FAA would not require an operator
to provide this training ``in-house.'' As noted in proposed Sec.
108.540(c), an operator is free to develop and conduct its own training
or to contract out the training using third-party persons, or any mix
thereof, so long as the operator has evaluated the course, found it
appropriate, and provided adequate information to FAA to independently
evaluate adequacy when submitted with the certificate application in
accordance with proposed Sec. 108.505(b)(10). In addition, the
training could consist of online courses, hands-on practical courses,
instructor-led courses, or any other methods deemed appropriate.
Regardless of who provides the training, the operator is ultimately
responsible for providing training that meets the requirements of this
proposed rule.
In proposed Sec. 108.540(d), FAA proposes that an operator be
required to designate a person or persons who are responsible for
ensuring that operations personnel are appropriately trained.
Importantly, because the designated person(s) would be required to
certify as to the proficiency and knowledge of the operations personnel
being trained or evaluated, they must also be qualified to determine
such matters. The designated person(s) would also be responsible for
ensuring that the operations personnel
[[Page 38281]]
records are accurate and maintained. The proposal would not require
that this training role be the only responsibility of the designated
person(s). Instead, FAA would simply require they be identified within
the company and fulfill the requirements of the role. In addition,
while this proposed rule would not require operators to have
traditional positions like instructors and examiners on staff, FAA
acknowledges that this structure can be beneficial for some operations.
FAA encourages operators, especially those without a proven training
program, to consider adopting instructional elements of training
programs used by successful traditional air carriers.
As noted above, the training program must be acceptable to the
Administrator. As proposed in Sec. 108.540(e), FAA may order an
operator to change its accepted training program if it finds that the
program, its structure, or other elements are not adequate. In
response, an operator may file a petition to reconsider within 30 days
of receiving notice, which would stay the order until FAA renders a
final decision. However, if an emergency requires an action in the
interest of safety, FAA may require immediate changes to a training
program after providing a statement of its reasons. This proposed
approach would preserve FAA's authority and continuing role in
identifying and addressing potential deficiencies that could affect
safety, which in turn would allow FAA to ensure that operators refine
their training regimen considering changes in technology, policy, and
other matters, as needed.
Finally, as proposed in Sec. 108.540(f), FAA describes how an
operator may file a petition for reconsideration for any changes
requested by the Administrator under paragraph (e).
4. Validation Tests (Sec. 108.545)
The certification process is designed to preclude certification of
applicants who are unwilling or unable to comply with the regulations,
or to conform to safe operating practices. FAA, therefore, proposes
that each operator with an operating certificate must show that they
can conduct operations safely and in compliance with applicable
regulatory standards. FAA proposes in Sec. 108.545 that an operator
can accomplish this through validation testing.
First, under proposed Sec. 108.545(a)(1), an operator would be
required to conduct a validation test during the application process
for an operating certificate. In Sec. 108.545(a)(2), FAA proposes
requiring validation testing for the addition of a new make or model of
aircraft if an aircraft of the same make and model or similar design
has not been previously validated in the operation. Requiring a
validation test for this scenario ensures that an operator is capable
of conducting operations with new aircraft using new or existing
policies and procedures. FAA proposes in Sec. 108.545(a)(3) requiring
validation testing for special performance or unique operational
authorizations as determined by the administrator such as new equipment
or operational technology. Validation testing ensures operators are not
only capable of, for example, utilizing the equipment, but also
proficient, qualified, and familiar with all aspects of it. FAA
proposes in Sec. 108.545(a)(4) requiring validation testing for an
operator wishing to conduct operations with multiple UA by one flight
coordinator. This type of validation testing will ensure proficiency of
the flight coordinator but also verify that workload management is not
affected during an operation.
Proposed Sec. 108.545(a) allows FAA to authorize deviations to the
requirement for validation testing. FAA will determine whether
validation testing is required. Validation testing may not be required
in all instances. For example, FAA may look at the operator's prior
experience and the complexity of the change. This allows FAA to
exercise discretion.
Finally, FAA proposes in Sec. 108.545(b) that all validation tests
must be conducted under the appropriate operating and maintenance
requirements of part 108 that would apply if the applicant were fully
certificated. This would ensure that the other safety mitigations in
part 108 will apply to the validation test and will allow FAA to
observe an operator performing as they would during an authorized
operation. Prior to obtaining an operating permit or certificate, FAA
would issue a temporary permit or certificate to allow any required
validation tests to occur. FAA would issue this temporary permit or
certificate during the application process prior to the validation
tests, unless FAA authorizes a deviation that allows the operator to
forego validation tests per proposed Sec. 108.545(a).
5. Communication and Ground Risk Assessments (Sec. 108.550)
FAA expects any operator that operates under a part 108 operating
certificate for a BVLOS operation to maintain a robust C2 analysis of
the area of operations, per proposed Sec. 108.550(a). While C2 is an
important element to every operation, this extra C2 assessment
requirement would be limited to certificated operations due to the
greater potential impact of a loss of C2 in operations that could be
conducted at that much larger scale. In addition, aircraft are expected
to be designed with safety features that minimize the impacts of C2
loss, further minimizing the impacts on smaller operations, as
discussed in section XI design requirements. Based on current research
and operational approvals of BVLOS operations, FAA has seen C2 metrics
that include, but are not limited to, link accessibility, latency of
link, and operational processes in the event of lost link. FAA expects
that work performed by industry consensus standards bodies will refine
the key metrics for C2 over time. For BVLOS operations, an operator
would need to be aware of the potential for link to their aircraft to
not be available due to interferences and other reasons along the
predicted flight path. In addition, FAA expects that BVLOS flights
could at times experience intermittent lost link. As such, the operator
would need to do an assessment of how link latency and intermittent
lost link may impact the safety of their operation and produce
mitigation protocols in these instances to maintain a low-risk
operation. FAA looks to industry and other stakeholders for additional
comment on what additional metrics should be considered in a C2
assessment, which are expected to be documented in a to-be-developed
industry consensus standard.
Without mitigations, the size and complexity envisioned for
certificated operations would increase operational risk. FAA would
reduce and mitigate the increased risks through the certification
process proposed in this rule. FAA proposes that protection of persons
on the ground in a certificated operation could be reduced further by
ensuring operators are familiar with the areas of operation and create
their own mitigations which are acceptable to FAA. FAA therefore
proposes in Sec. 108.550(b) that certificated operations would have to
be conducted in accordance with a ground risk assessment plan
acceptable to FAA that includes pedestrian and moving vehicle analysis
and considers terrain and human-made obstacles that the operator
intends to overfly.
6. Inoperative Equipment (Sec. 108.555)
FAA is proposing in Sec. 108.555 that no person would be able to
conduct an operation under this part with a UAS with inoperative
equipment or equipment that has failed its initial performance checks
unless all of the following requirements are met. First,
[[Page 38282]]
the inoperative equipment would need to be not indicated as necessary
by the manufacturer of the UA pursuant to the manufacturer's operating
instructions and must not be required by subpart H of part 108 or
required for the specific type of operation being conducted. Second,
the inoperative equipment would need to be removed from the UA,
deactivated, or otherwise determined not to interfere with the safe
operation of the UA. Third, a determination would need to be made by a
person who is authorized by the operator to perform maintenance on the
UA that the inoperative equipment does not constitute a hazard to the
UA. Finally, information identifying the inoperable equipment would
need to be made available to the appropriate operations personnel.
All aircraft equipment is meant to perform a specific function
during flight. FAA also recognizes that installed equipment will
eventually fail on an aircraft if not earlier replaced. However, not
all installed equipment performs a function that is critical to the
safe operation of the aircraft. Under this proposed rule, FAA does not
want to limit an operator from operating a UA with inoperative
equipment if the equipment deemed inoperative is not necessary for safe
operation or required for a particular operation. FAA therefore
proposes, in Sec. 108.555, that certificated operators may conduct
operations with a UA that has inoperative equipment or equipment that
has failed its initial performance checks if the inoperative equipment
is not required to be operational by the manufacturer or is not
required by any other part of this proposed rule. The manufacturer must
determine and indicate, under proposed Sec. Sec. 108.720(a)(v) and
108.870, which items of equipment are essential for the safe operation
of the UA. However, FAA is proposing to limit this operational
flexibility to certificated operations, as the increased oversight and
other mitigations described throughout the proposed rule would provide
a sufficient level of assurance of the safety of the operation.
Furthermore, FAA proposes that any inoperative equipment would need to
be removed from the UA, deactivated, or otherwise determined not to
interfere with the safe operation of the UA. The appropriate method can
be predetermined by the manufacturer and included in the operating
instructions or be determined by the operator. However, FAA will also
require that a determination is made by a person authorized by the
operator to perform maintenance on the UA that the inoperative
equipment does not constitute a hazard to the UA. This requirement
ensures that someone inspects the inoperative equipment to determine
the cause of the inoperative functionality to determine if safe
operations may be continued after removal or deactivation. FAA proposes
that information regarding the inoperative equipment be made available
to the appropriate operations personnel for their situational awareness
and decision making as it pertains to future operations.
7. Safety Management System (Sec. 108.560)
A safety management system (SMS) is a formal approach for an
organization to manage risk and ensure the effectiveness of safety risk
controls. An SMS includes procedures, practices, and policies for
safety risk management.\110\ In the Safety Management Systems for
Domestic, Flag, and Supplemental Operations Certificate Holders final
rule dated January 8, 2015,\111\ FAA stated that requiring an SMS is an
effort to continuously improve safety by filling gaps through improved
management practices. The UAS industry is constantly growing and
technologically advancing, and FAA anticipates this will continue to be
the case. In addition, FAA recognizes that operations under this
proposal are a new concept compared to traditional manned aviation
operations. Though FAA has developed the policy under this proposal to
mitigate risks, FAA also sees the benefit of an SMS for operations
within a rapidly growing industry. FAA therefore proposes in Sec.
108.560(a) that certificated operations under part 108 would need to
develop, implement, and keep current an SMS that meets the requirements
of 14 CFR part 5.\112\
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\110\ FAA Order 8000.369C, Safety Management System.
\111\ Safety Management Systems for Domestic, Flag, and
Supplemental Operations Certificate Holders final rule, 80 FR 1307
(Jan. 8, 2016).
\112\ Organizations with a sole individual performing all
necessary operations functions in the conduct and execution related
to the safe operation of the unmanned aircraft are not required to
comply with the following provisions of 14 CFR part 5: Sec. Sec.
5.21(a)(4), 5.21(a)(5), 5.21(c), 5.23(a)(2), 5.23(a)(3), 5.23(b),
5.25(b)(3), 5.25(c), 5.27(a), 5.27(b), 5.71(a)(7), 5.93, and
5.97(d).
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In part 5, FAA has outlined the SMS process to ensure that the four
major components (safety policy, safety risk management, safety
assurance, and safety promotion) are included and developed in such a
manner to ensure that the SMS is fully functioning. FAA proposes that a
part 108 certificated operator's SMS would need to meet the
requirements of part 5 in order to incorporate the benefits of SMS into
part 108 operations.
FAA proposes an exception to certain part 5 requirements in Sec.
108.560(b) for certificate holders with a sole individual performing
all necessary operations functions under part 108. Those certificate
holders would not be required to comply with the following provisions
of part 5: Sec. Sec. 5.21(a)(4), 5.21(a)(5), 5.21(c), 5.23(a)(2),
5.23(a)(3), 5.23(b), 5.25(b)(3), 5.25(c), 5.27(a), 5.27(b), 5.71(a)(7),
5.93, and 5.97(d). As discussed in the Safety Management System final
rule (89 FR 33068), these particular regulations would be impractical
or illogical for single pilot operations when implementing SMS.
Per proposed Sec. 108.560(c), operators would be required to make
available to FAA, upon request, all necessary information and data that
demonstrates that the operator has an SMS that meets the requirements
set forth in part 5. This would ensure that FAA has enough information
to verify that an operator has a sufficient SMS.
8. Package Delivery Operations (Sec. 108.565)
In Sec. 108.565, FAA proposes regulations for package delivery
certification, as well as requirements for interstate package delivery
operations. Currently, FAA approves package delivery operations with UA
through existing part 135 rules, as these are currently the only
regulations pertaining to transportation of property with smaller
aircraft. However, part 135 does not address UA operations. In
developing this rulemaking, FAA is creating a pathway specific to UAS
operations, with the appropriately tailored requirements for UAS
package delivery. For existing package delivery operations, FAA exempts
package delivery operators from numerous part 135, 61, and 91
regulations, as these parts were originally developed for manned
aircraft. FAA therefore proposes in part 108 a series of regulations
that will allow package delivery operations in the NAS without
requiring exemptions.
FAA proposes in Sec. 108.565(b) that package delivery operations
conducted with an operating certificate would be required to ensure
that the payload in, on, or suspended from the UA is properly secured
and does not adversely affect the flight characteristics or
controllability of the UA. An unsecure payload could shift or
disconnect partially, interfering with UA devices or flight
characteristics, which may cause shifts in center of gravity and
controllability issues. In addition, an unsecure payload could
disconnect
[[Page 38283]]
fully, causing hazard to persons or property on the ground as it
releases from the UA. To avoid any hazard to the UA's controllability
and flight characteristics and to persons and property on the ground,
FAA proposes in Sec. 108.565(b) that operators would be required to
ensure payloads are properly secured and do not adversely affect the
flight characteristics or controllability of the UA. Generally, this is
expected to be specified by the UA manufacturer as the manufacturer is
the systems designer and testing of the payload securing device would
be completed by the manufacturer. The payload system should be
addressed in the manufacturer's operating instructions for each UAS
receiving an airworthiness acceptance as further described in section X
of this preamble.
In Sec. 108.565(c), FAA proposes that UA for package delivery with
an operating certificate must not have a combined total weight,
including anything attached or carried by the aircraft, of greater than
110 pounds. With certificated operations, operators may conduct
services over all population densities, as further described in section
V.H. One of the main concerns with any UA operations is protection of
persons on the ground and reduction of ground risk. In conducting
package delivery operations, the UA will most likely be operating
within the higher population density area for longer periods of time,
as the delivery requires slowing the UA, descending, and making the
delivery, then climbing back to altitude and transitioning back to
cruise flight for a return to base. To mitigate the associated risk to
persons on the ground, FAA proposes to limit the weight of the UA to
110 pounds for certificated package delivery operations. Should a loss
of flight occur during certificated package delivery operations, FAA
anticipates that a 110-pound maximum weight UA would provide for an
acceptable level of risk with ground contact. FAA's experience with
granting exemptions for UAS weighing above 55 pounds for package
delivery operations \113\ demonstrates that these operations, within
the appropriate operational framework and mitigations, can be safely
conducted. In addition, the design requirements proposed in this
preamble would mitigate additional risks, particularly related to loss
of control in flight or unplanned landings. FAA anticipates package
delivery aircraft may increase in size and weight if there are rapid
advances in industry concepts. However, the operational profile of
package delivery contains aircraft that are routinely operating into
uncontrolled delivery locations at altitudes very close to the ground
and over populated areas. As such, the risk profile is very different
compared to other types of part 108 operations. Therefore, FAA is
proposing to place higher restrictions on the size of aircraft
performing these types of operations. The 110-pound maximum limit is
similar to current package delivery UA operations that are primarily
conducted with UA at or under 110 pounds under existing exemptions.
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\113\ FAA Exemption No. 18601A (Sept. 26, 2022), available at
www.regulations.gov/docket/FAA-2019-0573.
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Further, FAA proposes in Sec. 108.565(d) that operators must
ensure that the delivery area is free of any obstructions that could
pose a hazard. Since operations will be conducted BVLOS and in close
proximity to customers and other people on the ground, operators must
ensure safe operations at the delivery site. FAA anticipates that this
may be done by use of onboard cameras, in-person site visits, or other
technology with the capability of ensuring safe entry and exit to the
area. By ensuring the delivery area is free of any obstructions or
hazards, FAA can further reduce risk to persons and property during
delivery.
Additionally, in order to continue to protect persons on the ground
within the delivery area, FAA proposes in Sec. 108.565(e) that the
operator must ensure each delivery customer is provided information
about the delivery method that minimizes the risk of injury. Though
this proposed rule includes mitigations to ensure safety of the flight
and operational area, FAA finds it appropriate to also ensure that
customers are aware of the dangers and hazards associated with an
active delivery. FAA anticipates that operators may provide this
information electronically or by other acceptable means that operators
may convey to the customer.
FAA proposes in Sec. 108.565(f), that prior to conducting package
delivery operations under a part 108 certificate, the operator must
contact the TSA and request and obtain a limited security program
equivalent with 49 CFR 1544.101(g). FAA finds it necessary to levy this
requirement given the national security implications arising from UAS
package delivery operations. FAA only proposes to apply this
requirement to package delivery operations at this time and notes TSA
has requested comment on imposing additional security requirements on
other part 108 operations. FAA may adjust this requirement as
appropriate to conform to applicable security requirements.
TSA has joined this proposed rulemaking to ensure that TSA's
security requirements are appropriately applied to UAS operations that
would be permitted or certificated by the FAA under part 108. TSA's
proposed provisions are limited to the addition of definitions relevant
to UAS operations in 49 CFR part 1540 and two revisions to 49 CFR part
1544 to clarify that these operations are within the scope of its
requirements. In addition, the FAA is proposing including in 14 CFR
108.565(f) a requirement for operators to ensure they have obtained a
security program from TSA before conducting UAS operations under this
proposed rule. Under this requirement, operators are advised that FAA
approval is not sufficient. TSA approval is also required.
These proposed requirements are intended to avoid any unintended
consequences regarding the security of UAS operations under proposed
part 108, consistent with TSA's responsibility for aviation security
and the need to ensure the security of UAS operations as recognized in
both E.O. 14305 and E.O. 14307. The types of security risks UAS
operations pose to the public are described in E.O. 14305, which states
that ``criminals, terrorists, and hostile foreign actors have
intensified their weaponization of these technologies, creating new and
serious threats to our homeland.'' Specifically, the E.O. notes that
``[d]rug cartels use UAS to smuggle fentanyl across our borders,
deliver contraband into prisons, surveil law enforcement, and otherwise
endanger the public.''
The proposed text would ensure that the decision to regulate these
UAS operations under part 108 does not inadvertently create a security
gap under TSA regulations.\114\ Under this proposal, which has been
developed in consultation with TSA, TSA will continue to ensure the
security of the national airspace by imposing appropriate security
requirements. The proposed text would require UAS operators authorized
under part 108 to request a TSA security program. The revisions to
TSA's regulation would permit TSA to issue a limited program to these
operations under 49 CFR
[[Page 38284]]
1544.101(g). The proposal is consistent with TSA's regulatory
structure, which has long required certain operators regulated under
part 119 to request, and maintain compliance with, a TSA-approved
security program before conducting operations (both domestic and
foreign carriers operating to/through/from the United States).
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\114\ In the absence of the text, this proposed rule might have
created uncertainty regarding the applicability of 49 CFR part 1544,
potentially resulting in a separate TSA rulemaking proceeding while
this more comprehensive rulemaking remained pending. Having
concluded that an additional concurrent rulemaking could result in
confusion and uncertainty, the agencies decided to work together on
this limited issue as the most appropriate path forward.
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The proposed text would clarify that under applicable TSA
regulations, UAS operators must seek a ``limited program'' under 49 CFR
1544.101(g). The general requirements for a security program are listed
in TSA's regulations at 49 CFR part 1544. TSA develops standard
security programs that meet these requirements. Operators can request
amendments to the standard security program to address specific
operational issues, and TSA can approve these amendments to the extent
they maintain the required level of security. In addition, TSA has
broad statutory authority to proactively grant exemptions from
applicable requirements.\115\
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\115\ See 49 U.S.C. 114(q).
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TSA is considering additional changes to security program
applicability and requirements in a final rule. While some operations
will not require any additional security requirements beyond vetting,
in a final rule TSA may expand the applicability of security program
requirements to cover more than package delivery operations. TSA is
requesting comment on the scope of operations for which a limited
security programs should be required, in addition to the requirement
for vetting. For instance, TSA could choose to regulate all permitted
and certificated BVLOS UAS operations, with limited exceptions for
certain non-package delivery operations based on (1) UAS size; (2)
intended use of the UAS; (3) capabilities of the UAS, including
payload; (4) location of operation centers and range of UAS; (5)
planned areas of operation; and (6) fleet size. Similarly, recreational
operations permitted under part 108 may be appropriate for an exemption
from such requirements given the size, weight, and range limits
associated with those operations.
TSA notes that an expanded security program applicability in the
final rule could include any of a range of security program
requirements, such as (for instance) requirements to appoint a Security
Coordinator and to comply with security directives and emergency
amendments to security programs. TSA anticipates developing model
language appropriate to the different types of operations that will be
permitted by the FAA under part 108. For example, under the existing
regulatory requirements in 49 CFR 1544.101(g), TSA could require the
following security measures as applicable:
Preventing or deterring the carriage of any unauthorized
weapons, explosives, incendiaries, and other destructive devices,
items, or substances.
Controlling cargo that it accepts for transport on an
aircraft in a manner that:
[cir] Prevents the carriage of any explosive, incendiary, and other
destructive substance or item in cargo onboard an aircraft.
[cir] Prevents unescorted access by persons other than an
authorized aircraft operator employee or agent, or persons authorized
by the airport operator or host government.
Either verifying that the chain of custody measures for
screened cargo are intact before loading such cargo on aircraft or
ensuring that the cargo is re-screened in accordance with TSA's
requirements.
Designating a Security Coordinator at the corporate level
that must serve as the operator's primary contact for security-related
activities and communications with TSA.
Implementing control functions with respect to each
aircraft operation sufficient to:
[cir] Prevent unauthorized access to areas controlled by the
aircraft operator under an exclusive area agreement in accordance with
49 CFR 1542.111 of this chapter.
[cir] Prevent unauthorized access to each aircraft.
[cir] Conduct a security inspection of each aircraft before placing
it into operations if access has not been controlled in accordance with
the aircraft operator security program and as otherwise required in the
security program.
[cir] Prevent unauthorized access to the operational area of the
aircraft while loading or unloading cargo.
Training individuals with security-related duties.
Such requirements would also ensure UAS operators could avail
themselves of existing procedures in TSA's regulations to modify their
programs to appropriately address their operational environment while
maintaining the level of security determined necessary by TSA.\116\
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\116\ See, e.g. 49 CFR 1544.101.
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TSA anticipates that many of the larger operators that will seek
approval to conduct part 108 operations may already be subject to a TSA
security program. TSA would work with these operators to determine
whether they need a new program or could modify their TSA-approved
program. TSA has also historically adapted its requirements to meet the
needs of smaller and seasonal operators and would continue to apply
this flexibility for UAS operations approved under part 108, while also
ensuring the security risks identified above are being appropriately
addressed. TSA and FAA request comments on the proposed text and will
work jointly on adjudicating comments relevant to TSA's proposed text
in this NPRM. Because FAA is held to the final rule deadline
established by E.O. 14307, TSA will have to meet that deadline as well
in co-adjudicating the security-related comments and developing its
relevant final rule sections.
Per the discussion in the paragraph regarding package delivery
operations in section VIII.A.3, the operator may be considered an ``air
carrier'' engaged in ``air transportation'' and may require economic
authority from the Office of the Secretary. See section VIII.A.3 for
more discussions on this topic.
9. Hazardous Materials (Sec. 108.570)
In Sec. 108.570, FAA proposes regulations to enable the safe
transportation of hazardous materials under part 108 for certificated
package delivery operations.\117\ Currently, the primary means for UAS
operators to transport packages containing hazardous materials in air
commerce is as a part 135 air carrier. Part 135 air carriers must have
an FAA-approved hazardous materials training program and an FAA-
accepted hazardous materials manual. FAA issues each operator an
Operations Specification permitting or prohibiting the acceptance,
handling, and transportation of hazardous materials in commerce.\118\
These requirements apply regardless of whether a certificate holder
transports hazardous materials or does not transport hazardous
materials. Hazardous materials requirements are function-based and
scale to the scope and complexity of a certificate holder's operation.
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\117\ This rulemaking uses the definition of hazardous material
as defined in 49 U.S.C. 5102(2) and 49 CFR 171.8.
\118\ See 14 CFR part 135 subpart K (training program
requirements) and 14 CFR 119.49(c)(12) (Operations Specifications).
Parts 135.21 and 135.23 establish the requirements for hazardous
materials manuals, including the exception that certificate holders
who use only one pilot are not required to have a hazardous
materials manual.
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Hazardous materials training requirements apply equally in UAS and
non-UAS operations. Hazardous materials training requirements focus on
[[Page 38285]]
ground-based job functions associated with any item for transport on
board an aircraft, as well as the personnel who perform or directly
supervise these functions. These job functions include acceptance,
rejection, handling, storage incidental to transport, packaging of
company material (COMAT), and loading. Recurrent training would be
required every two years.
In 2017, FAA published AC 121-40, 14 CFR part 121 and Part 135
Dangerous Goods Transportation Operations, to help support the
hazardous materials manual and training program. Ultimately, AC 121-40
promotes the safe and efficient transportation of hazardous materials.
UAS applicants have successfully used this AC during the part 135
precertification process and FAA continues to encourage UAS applicants
and operators, including those in package delivery operations subject
to this proposed rulemaking, to use this AC.
To account for novel UAS-related considerations associated with
certificate holder systems and the transportation of hazardous
materials, FAA requests UAS certificate holder applicants seeking a
will-carry authorization to conduct a safety risk assessment (SRA). An
SRA, which is part of a SMS program, is a systematic process that
involves identifying, analyzing, and controlling hazards and risks.
The SRA determines what the potential risk mitigations should be to
eliminate or control identified risk and promotes employee awareness
regarding hazards, aids in identifying personnel and property at risk,
determines existing control measures and their adequacy to prevent
injuries, and prioritizes hazards and their control measures. An SRA
ensures that the certificate holder properly assesses the additional
risks that may be present with these UAS operations and that they
develop appropriate risk mitigations to reduce the risk to an
acceptable level.
Ultimately, when issuing an operations specification for the
carriage of hazardous materials, FAA limits UAS certificate holders to
the types and amounts of hazardous materials specified in their
accepted hazardous materials manual and approved hazardous materials
training program. A UAS certificate holder may request a modification
to the types and quantities of hazardous materials they are authorized
to transport by submitting an updated hazardous materials training
program and manual to receive an updated operations specification. This
is different than a will-carry non-UAS certificate holders, as their
operations specification only identify that they are authorized to
accept, handle, and transport hazardous materials; it is not limited to
a list of types and quantity of hazardous materials. Thus, in this
preamble, FAA proposes that the authorization for a will-carry package
delivery operation be aligned with current UAS certificate holder
operations specifications in that the authorization will be limited to
the type and quantity of hazardous materials that an operator can
accept, handle, and transport.
Any person \119\ (including a UAS certificate holder) who offers or
transports hazardous materials in commerce must comply with the
Hazardous Materials Regulations (HMR).\120\ This includes requirements
such as training, loading, hazardous communication, packaging, and
segregation. FAA notes that the HMR were originally promulgated for
hazardous materials transportation inside of cargo compartments,
typically on type-certificated aircraft. Therefore, the HMR does not
necessarily account for the unique hazards associated with UAS
transportation.\121\ FAA believes that this rulemaking and its
certification and operational standards will be relevant to future HMR
amendments specific to UAS.
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\119\ The HMR defines a person in 49 CFR 171.8 as ``an
individual, corporation, company, association, firm, partnership,
society, joint stock company; or a government, Indian Tribe, or
authority of a government or Tribe, that offers a hazardous material
for transportation in commerce, transports a hazardous material to
support a commercial enterprise, or designs, manufactures,
fabricates, inspects, marks, maintains, reconditions, repairs, or
tests a package, container, or packaging component that is
represented, marked, certified, or sold as qualified for use in
transporting hazardous material in commerce. This term does not
include the United States Postal Service or, for purposes of 49
U.S.C. 5123 and 5124, a department, agency, or instrumentality of
the government.''
\120\ 49 CFR parts 171-180.
\121\ For example, the HMR generally require a hazardous
materials package to be designed, constructed, maintained, filled,
its contents so limited, and closed, so that under conditions
normally incident to transportation there will be no identifiable
release of hazardous materials into the environment, the
effectiveness of the package will not be substantially reduced, and
there will be no hazardous materials adhering to the outside of the
package during transport; however, the conditions normally incident
to transportation may not account for the unique characteristics of
UAS transportation.
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FAA notes that section 933 of the 2024 FAA Reauthorization Act
requires the Secretary to use a risk-based approach to establish the
operational requirements, standards, or special permits necessary to
approve or authorize an air carrier to transport hazardous materials by
unmanned aircraft systems providing common carriage under part 135 or
under successor authorities, as applicable, based on the weight,
amount, and type of hazardous material being transported and the
characteristics of the operations subject to such requirements,
standards, or special purposes UAS.
In addition, paragraph (d) of section 933 requires the Secretary to
make necessary conforming amendments to the HMR under parts 173 and 175
to implement this risk-based approach to the carriage of hazardous
materials via UAS by air carriers. Any comments to this NPRM involving
revisions to the HMR, would have to be considered by PHMSA in a
separate rulemaking. FAA seeks comments on the types of operational
requirements and standards that could facilitate air carriers
transporting hazardous materials by UAS in a risk-mitigated manner.
Currently, most UAS certificate holders transport small packages.
Most hazardous materials transported by these certificate holders are
excepted from HMR requirements, under certain conditions, due to their
perceived lower risk, especially when transported as a single
consignment over a relatively short distance from certificate holder
ground personnel. UAS operators who cannot meet the HMR requirements
must apply for and obtain a special permit from PHMSA in accordance
with 49 CFR part 107, subpart B. Special permit applications should
demonstrate an equivalent level of safety to the requirements in the
HMR for which the applicant is seeking relief. This is also true if a
UAS operator wishes to obtain relief from other HMR requirements, such
as shipping papers, pilot notifications, markings, labels, and
packaging requirements. Currently, FAA is unaware of any special
permits seeking relief from the HMR to better enable hazardous
materials transport onboard UAS.
Prior to the issuance of the first part 135 UAS certificate holder,
14 CFR part 133 certificate holders were the only operators in the NAS
transporting cargo, including hazardous materials, outside an airframe.
When rotorcraft transport hazardous materials as external loads, the
HMR requires the certificate holder to apply for and obtain an approval
\122\ (i.e., a special permit) from the PHMSA Associate Administrator.
In addition, part 133 certificate holders must also produce a plan for
approval by their Principal Operations Inspector (POI) to mitigate the
hazards created by such cargo. This requirement is supported by a 2009
legal interpretation, FAA's Office
[[Page 38286]]
of the Chief Counsel stated that ``the transport of hazardous
materials, especially forbidden hazardous materials, in external load
operations creates `a hazard to persons or property on the surface.''
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\122\ 49 CFR 175.9(a).
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Having an additional emphasis on safety evaluation is important
when hazardous materials are transported outside of an airframe.
However, FAA does not propose a similar mechanism in this preamble.
Instead, as discussed elsewhere in this preamble, similar safety
components can be accomplished with an SRA acceptable to the
Administrator that provides, but does not require, coordination with
another agency. This ultimately will make the authorization process
more expeditious and less burdensome on the part 108 package delivery
operator.
Lastly, FAA notes that part 133 certificate holders are only
authorized to drop cargo from above ground level in the event of an
emergency; currently, there are no authorized transportation modes that
allow dropping cargo from above ground level as a part of regular
operations. As discussed elsewhere in this preamble, this is one reason
why FAA is proposing to require a specific authorization when a will-
carry part 108 package delivery operator wishes to deliver or unload
hazardous materials by releasing or dropping such materials from above
ground level.
With respect to small UAS operations,\123\ part 107 was promulgated
in 2016; however, part 107 prohibits the carriage of hazardous
materials via small UAS. This prohibition is not subject to waiver. In
the part 107 final rule, FAA stated ``that the carriage of hazardous
materials poses a higher level of risk than the carriage of other types
of property. . . [and] the transport of hazardous materials, especially
forbidden hazardous materials, in external load operations creates a
hazard to persons or property in the surface.'' \124\ Therefore, FAA
did not authorize the carriage of hazardous materials under part 107
because part 107 did not include airworthiness requirements, and part
107 operators are not required to have hazardous materials training
programs or manuals. Part 107 operators who wish to transport hazardous
materials must petition FAA for a regulatory exemption to Sec. 107.36.
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\123\ 14 CFR 1.1 defines a small UAS as an unmanned aircraft
weighing less than 55 pounds on takeoff, including everything that
is on board or otherwise attached to the aircraft.
\124\ 81 FR 42076.
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Working from the baseline of the part 107 prohibition on the
carriage of hazardous materials and part 135 air carrier certification
requirements, the BVLOS ARC issued two hazardous materials-specific
recommendations in their March 2022 Final Report. These recommendations
include allowing UAS to transport hazardous materials and including an
exception (for specific quantity and types) to all applicable HMR
requirements. The rationale for this recommendation specified that the
exception could match the types and quantities of hazardous materials
provided in 49 CFR 175.10(a), which applies to hazardous materials
carried by passengers or crewmembers in their carry on or checked
baggage. However, FAA does not have the regulatory authority to revise
the HMR; this authority is delegated to PHMSA.
FAA acknowledges that the HMR have mostly been developed for
traditional aircraft operations. The transportation of hazardous
materials has almost exclusively been conducted in cargo compartments
with well-defined capabilities and almost all passengers and crew fly
on type certificated aircraft.\125\ Similarly, 14 CFR requires that
trained crewmembers are onboard aircraft to detect, assess, and
mitigate emergencies caused or aggravated by hazardous materials. This
involves using onboard detection systems and what crewmembers,
passengers, or supernumeraries see, hear, or smell onboard an aircraft.
However, not all UAS are expected to be able to as readily detect or
mitigate hazardous materials-related events, which is why it is
necessary to ensure that any hazardous materials operations by UAS
provide an equivalent level of safety as compared to transportation by
traditional aircraft.
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\125\ See 14 CFR 25.855 and 25.857 for current cargo and baggage
compartment requirements on transport category aircraft.
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The HMR requirements were originally designed for manned
operations. Therefore, UAS capabilities and operator-specific
mitigations are relevant to the overall risk characterization of part
108 hazardous materials transport. This is especially relevant given
the wide array of operating environments and the means of transport and
delivery currently used in UAS operations. The variety of these
environments and means of transport/delivery are only expected to
increase with part 108 operations. With payload capacity expected to
increase significantly under part 108 and the types of hazardous
materials also expected to grow beyond common consumer items, FAA does
not believe it is in the interest of regulatory flexibility or safety
to provide specific hazardous material types or quantity allowances for
UAS operations. Instead, as noted elsewhere in this preamble, FAA
believes that an operation-specific analysis should be conducted by the
operator (via an SRA acceptable to the Administrator) to ensure that
all appropriate hazards are considered and addressed to ensure the safe
transportation of hazardous materials in commerce. However, FAA is open
to future regulatory development and industry partnerships to develop
broader-based performance-based approaches proportionate to the risk.
i. FAA Authorization To Permit or Prohibit Accepting, Handling, and
Transporting of Hazardous Materials
FAA proposes to enable part 108 hazardous materials transportation
in a safe and efficient manner. Currently, FAA lacks sufficient data to
conclude what types of hazardous materials should be authorized for
package delivery transportation for all part 108 operations. As such,
the most efficient and effective way to authorize this transportation
is to individually assess the risks for the types and amounts of
hazardous materials that each part 108 certificated operator wants to
transport in the context of their overall operation and system design.
Thus, as detailed in this preamble, FAA proposes that when a part 108
package delivery certificated operator wants to transport hazardous
materials, they will be able to obtain a will-carry authorization by
having an accepted hazardous materials manual, approved hazardous
materials training program, and SRA acceptable to the Administrator.
The specific proposal is detailed further in this preamble.
As noted in the aircraft airworthiness section, proposed part 108
aircraft would not be type-certificated. Meanwhile, the HMR are
promulgated on the understanding that hazardous materials, in air mode,
are transported on type-certificated aircraft intended to protect crew,
passengers, and supernumeraries onboard. If there are releases of
hazardous materials onboard type certificated aircraft, those releases
are usually confined to aircraft cargo compartments; trained crew or
other ground personnel would mitigate the release.
Proposed part 108, as an enabling regulation, is intended to
establish a safety framework that can be tailored to any individual
part 108 package delivery certificated operation--from small and simple
to large and complex.
FAA proposes enabling regulations to allow for the transportation
of hazardous materials under part 108 for
[[Page 38287]]
package delivery certificated operations. Hazardous materials cannot be
authorized merely as a function of hazard class, division, packaging
group, or package quantity, especially as part 108 proposes to utilize
non-type certificated UAS and given the wide array of aircraft,
operators, and operations within the proposed part 108 domain.
Therefore, these proposed enabling regulations scale to all part 108
package delivery service certificated operators.
FAA has previously stated that a ``certificate holder's hazardous
materials program constitutes the foundation for safely transporting
dangerous goods by air.'' \126\ Current hazardous materials
requirements, including operations specification, hazardous materials
manuals, and hazardous materials training programs, have been proven to
readily scale to all types of operators, including UAS certificate
holders. These requirements are an efficient means of ensuring
personnel are trained in the functions they are performing or directly
supervising; therefore, FAA proposes similar requirements for part 108
certificate holders transporting hazardous materials in package
delivery certificated operations.
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\126\ FAA, AC 121-40, 14 CFR part 121 and part 135 Dangerous
Goods Transportation Operations (Dec. 13, 2017).
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Proposed Sec. 108.570 regulates the transport of hazardous
materials. Package delivery operators, regardless of whether they
transport hazardous materials, must comply with the requirements by
creating safety policies, implementing procedures and programs for
personnel training, job function assignments and management roles,
handling and storage of hazardous materials, and recordkeeping. To
ensure an adequate level of safety by implementing requirements similar
to current part 135, FAA is taking an approach based on two transport
categories of hazardous materials: will-carry and will-not-carry. Part
108 package delivery certificated operators, regardless of their will
or will-not carry status, will need to be able to identify hazardous
materials based on hazard communication information and recognize that
they cannot transport hazardous materials without proper FAA
authorization. Therefore, FAA proposes that both will-carry and will-
not carry operators would need accepted hazardous materials procedures
and information (often colloquially referred to as an accepted
hazardous materials manual) and an approved hazardous materials
training program. However, will-carry operations would also need an SRA
acceptable to the Administrator to address the risk associated with the
transportation of hazardous materials.
These proposed requirements increase the level of safety to enable
the safe transportation of hazardous materials. FAA notes that the type
and amount of hazardous materials authorized will be specific to the
aircraft, operation, operating environment, and other relevant
considerations. Therefore, FAA is not proposing a blanket prohibition
on the carriage of hazardous materials analogous to Sec. 107.36 for
certificated package delivery operators. However, in the future, FAA
may propose data-informed, risk-based regulatory carve-outs for part
108 operators regardless of their aircraft, operation, or operating
environment. As new operations are established and more data is
collected, such an approach may be appropriate. As noted above, FAA is
also open to supporting the development of performance-based standards.
Currently, with the small numbers of UAS package delivery operators and
operations, limited data, and many unique factors relevant to each
operator, FAA believes that proposed requirements serve as an efficient
means to enable the transport of hazardous materials.
FAA proposes in Sec. 108.570(a) that certificated package delivery
operators seeking authorization to transport packages in air commerce
would need to obtain a will-carry or will-not-carry authorization from
FAA, which permits or prohibits the accepting, handling, and
transporting of hazardous materials. All required documents must be
submitted to FAA when obtaining the authorization. Specifically, FAA
proposes that to obtain a will-carry authorization, a certificated
package delivery operator must have an accepted hazardous material
procedures and instructions, an approved hazardous materials training
program, and an SRA acceptable to the Administrator. To obtain a will-
not-carry authorization, a certificated package delivery operator must
have an approved hazardous materials training program and an accepted
hazardous materials manual. When issuing the authorization, FAA will
review the submitted materials to ensure the applicant achieves
regulatory compliance, has properly assessed the unique UAS-related
risks associated with their operations, and has developed appropriate
risk mitigations to reduce the risk to an acceptable level.
FAA believes that the hazardous materials manual, training program,
and SRA are critical to designing a safety system that supports the
safe transportation of hazardous materials in the NAS. Hazardous
materials manual and training program requirements are established
requirements for current part 135 operations. Transportation of
hazardous materials under proposed part 108 certificated package
delivery operations are similar to part 135 operations. On-ground
hazardous materials requirements apply consistently, no matter the type
of transport vehicle; thus, as detailed in this preamble, FAA has
concluded that the hazardous materials manual and training program
requirements should also apply to part 108 certificated package
delivery operations. However, part 108 UA differ from traditional part
135 aircraft, with additional risks to carrying hazardous materials
because of UAS operations. Therefore, FAA is proposing that an
additional analysis (i.e., SRA) must be conducted to ensure that the
operations account for new hazards and risks to a specific operation.
These proposed requirements are further detailed below.
Lastly, as noted in the discussion of HMR requirements, all
operators who transport hazardous materials in commerce are subject to
the HMR. While a will-carry authorization allows hazardous materials to
be accepted, handled, and transported by the operator, the regulatory
requirements for these functions are detailed in the HMR; the operator
must ensure they also comply with these requirements. For example, 49
CFR 175.30 of the HMR requires the operators to inspect shipments.
However, if an operator cannot comply with any of the HMR requirements,
they may apply for and obtain a Special Permit from PHMSA (see part
107, subpart B); the will-carry authorization does not replace or
exempt an operator from obtaining a special permit from PHMSA when the
operator cannot perform any function not authorized in the HMR.
ii. Approved Hazardous Materials Training Program
FAA proposes that certificated package delivery operators must have
an approved hazardous materials training program. This proposed
requirement is like the current approved hazardous materials training
programs for part 135 certificate holders.
In the final rule that established part 135 hazardous materials
training program requirements (2120-AG75; 70 FR 58795), FAA stated:
A hazardous materials training requirement is a critical step
toward reducing the number of improperly prepared or undeclared
shipments. These requirements establish mandatory hazardous materials
training programs
[[Page 38288]]
with uniform standards.\127\ Hazardous materials training programs will
ensure that company personnel are trained to comply with the
requirements of the HMR, which they perform or directly supervise.\128\
In addition, each certificate holder must train each crewmember and
person performing or directly supervising any of the following job
functions involving any item for transport on board an aircraft: \129\
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\127\ 70 FR 58799.
\128\ 70 FR 58813.
\129\ 70 FR 58797.
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Acceptance;
Rejection;
Handling;
Storage incidental to transport;
Packaging of company materials; or
Loading.
Ultimately, these requirements ensure that personnel who are not
authorized to transport hazardous materials do not inadvertently do so.
Therefore, the training program for will-not-carry certificated package
delivery operators ensures that personnel are trained to recognize
hazardous materials packages, refuse them for acceptance, submit
incident reports, and submit discrepancy reports, as appropriate. There
is a significant safety benefit to the overall NAS in ensuring this
training is offered effectively. Hazardous materials, including COMAT,
can be offered for transportation by the UAS operator, and operator
personnel must comply with the appropriate regulations and operating
procedures. These training requirements also apply to will-carry
certificated package delivery operators and ensure that their personnel
know the appropriate requirements for their operations (e.g., what
packages to accept or reject). This means that the operator can scale
the overall scope of the training requirement based on their hazardous
materials operations.
Once undeclared hazardous materials are offered into
transportation, it can be very difficult for downstream operators to
know there may be improperly offered hazardous materials in their
system. FAA notes that the HMR requires hazardous materials training in
accordance with 49 CFR part 172, subpart H; however, this training only
applies to hazmat employees.\130\ Therefore, will-not-carry
certificated package delivery operations personnel are not subject to
the HMR training requirements. However, they are subject to FAA-
approved hazardous materials training requirements. In addition, FAA
continues to believe that the purpose of hazardous materials training,
as described, provides a safety benefit. For these reasons, FAA
proposes that certificated package delivery operators have an approved
hazardous materials training program.
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\130\ 49 CFR 171.8 defines a hazmat employee as a person who is
(i) employed on a full-time, part-time, or temporary basis by a
hazmat employer and who in the course of such full-time, part-time
or temporary employment directly affects hazardous materials
transportation safety; (ii) self-employed (including an owner-
operator of a motor vehicle, vessel, or aircraft) transporting
hazardous materials in commerce who in the course of such self-
employment directly affects hazardous materials transportation
safety; (iii) a railroad signalman; or (iv) a railroad maintenance-
of-way employee. Additionally, this term includes an individual,
employed on a full-time, part-time, or temporary basis by a hazmat
employer, or who is self-employed, who during the course of
employment: (i) loads, unloads, or handles hazardous materials; (ii)
designs, manufactures, fabricates, inspects, marks, maintains,
reconditions, repairs, or tests a package, container or packaging
component that is represented, marked, certified, or sold as
qualified for use in transporting hazardous material in commerce;
(iii) prepares hazardous materials for transportation; (iv) is
responsible for safety of transporting hazardous materials; and (v)
operates a vehicle used to transport hazardous materials.
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In addition, FAA also proposes various exceptions to certain
scenarios for the hazardous materials training requirement, similar to
those authorized for part 135 certificate holders, to ensure that part
108 certificated package delivery operators are afforded the same
regulatory flexibility as part 135 certificate holders. This includes
(1) flexibility in the period between a person's hire date or start of
a new job function that requires training and when training is
completed, (2) allowance for differences training, and (3) flexibility
in when recurrent training must be completed.
FAA proposes to allow a person to perform a Sec. 108.570(b) job
function between their hire date or start of a related job function and
completion of training for that function under the supervision of
another trained employee. FAA recognizes that a certain degree of
flexibility is required to ensure continuous package delivery
operations of hazardous materials between when a person is hired or
starts a related job function and when they complete FAA-approved
training program. This period can be as long as 30 days. Therefore, in
Sec. 108.570(h), FAA proposes to allow a person to perform a Sec.
108.570(b) job function under the direct visual supervision of a person
who is authorized by the operator to supervise that person and who has
successfully completed the operator's FAA-approved initial or recurrent
training program within the past 24 months. This exception is only
applicable from their hire date or start of a new job function up until
30 days, when training must be completed. In addition, in Sec.
108.570(i), FAA proposes that any operator using this exception must
retain a specific record for that person taking the exception.
In Sec. 108.570(j), FAA proposes to allow an operator who uses or
assigns a person to perform or directly supervise one of the Sec.
108.570(b) job functions to only train that person in its own policies
and procedures regarding those job functions when that person also
performs or directly supervises the same job function for another
package delivery operator, part 121 certificate holder, or part 135
certificate holder. This exception is sometimes also referred to as
``hazardous materials differences training.'' This exception is only
authorized when (1) the operator receives written verification that the
person has satisfactorily completed hazardous materials training for
the specific job function and (2) the package delivery operator, part
121 certificate holder, or part 135 certificate holder who trained the
person has the same authorization or equivalent operations
specifications regarding the acceptance, handling, and transport of
hazardous materials as the operator using this exception. FAA proposes
this exception because, without this exception, a person who performs a
similar job function for multiple operators or who changes employers
would be required to complete hazardous materials training for each
operator. FAA acknowledges that an operator's FAA-approved training
program may be similar to another operator's FAA-approved training
program when the two operators are authorized to conduct similar
hazardous materials operations (i.e., will-carry operator compared to
another will-carry operator). Therefore, by proposing this exception to
allow a part 108 package delivery operator to provide only differences
training when the person has successfully completed a similar FAA-
approved hazardous materials training program, FAA eliminates a
potentially overly burdensome requirement.
Lastly, in proposed Sec. 108.570(k), FAA provides some flexibility
in when recurrent training is required. Recurrent training would be
required every 24 months. However, to allow flexibility in operations
FAA proposes that if the training is completed in the month before or
after recurrent training is required, then the training is considered
complete in the month that training was originally due. However, if a
person completes recurrent training earlier than the month before it is
due, then the earlier month becomes the new training anniversary month.
[[Page 38289]]
iii. Accepted Hazardous Materials Procedures and Information
FAA proposes that certificated package delivery operators
transporting packages must have accepted hazardous materials procedures
and information (often referred to as an accepted hazardous materials
manual). This proposed requirement is like the current accepted
hazardous materials manuals for part 135 certificate holders.
As with the approved hazardous materials training program, FAA has
concluded that the accepted hazardous materials procedures and
information requirements have proven to ensure that all operator
personnel understand and follow procedures to ensure appropriate
compliance with hazardous materials acceptance (i.e., that will-carry
operators appropriately accept hazardous materials, and that will-not-
carry operators reject hazardous materials). Therefore, FAA proposes
that these requirements apply to certificated package delivery
operators.
FAA notes that certificated package delivery operators may have a
combined hazardous materials training program and hazardous materials
procedures and information. Likewise, the hazardous materials
procedures and information and hazardous materials training program, or
portions thereof, may be integrated into General Operations Manuals,
General Maintenance Manuals, or other relevant manuals. Furthermore,
FAA notes that the procedures and information requirement does not
apply to special aircraft operations, such as agricultural operations,
transporting hazardous materials in accordance with 49 CFR
175.9(b).\131\
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\131\ Nothing in this section is intended to remove the manual
content required as a condition of 49 CFR 175.9(b)(6) when hazardous
materials are to be dispensed or expended during flight for weather
control, environmental restoration or protection, forest
preservation and protection, flood control, avalanche control,
landslide clearance, or ice jam control purposes.
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iv. SRA Acceptable to the Administrator
FAA is also proposing that certificated package delivery operators
transporting hazardous materials (i.e., will-carry operators) submit an
SRA acceptable to the Administrator as a part of their authorization
request. This SRA would need to be inclusive of risks to people and
property on the ground resulting from the carriage of hazardous
materials.
An SRA is not a requirement for part 135 operators. However,
because of the unique and novel characteristics of part 108 UAS
transportation, the proposed hazardous materials training program and
hazardous materials procedures and information requirements, coupled
with HMR compliance, may not be sufficient to ensure that there is an
acceptable level of safety in the NAS or for people and property on the
ground. For example, shippers may not be aware of the transportation
conditions associated with UAS package delivery operations--or even
that their package will be transported by UAS. Conditions normally
associated with the traditional air cargo environment may not be normal
compared to individual operations in the UAS domain. A package attached
to the outside of a UAS airframe can be subject to weather and
atmospheric conditions such as precipitation, temperature, humidity,
and wind/airflow not necessarily experienced inside an aircraft, unit
load device, warehouse, or sort facility.
An SRA would account for many of these gaps because the
certificated package delivery operator will consider the risks
associated with hazardous materials transportation in their operations.
In addition, the SRA serves as a critical link between the 14 CFR and
49 CFR regulatory frameworks and the certificated package delivery
operator's unique operating environment. Therefore, FAA proposes to
require certificated package delivery operators transporting hazardous
materials to submit an SRA acceptable to FAA when seeking a will-carry
authorization.
The SRA should properly assess the unique UAS-related risks
associated with the certificated package delivery hazardous materials
operations and that they have developed appropriate risk mitigations to
reduce the risk to an acceptable level. Furthermore, an SRA should have
appropriate technical and scientific analysis to explain and address
these risks.
FAA notes that certificated package delivery operations will vary
depending on the types and quantities of hazardous materials being
transported per flight and operations. In addition, FAA lacks the data
to know the impact of different quantities and types of hazardous
materials on various aircraft systems. Therefore, it is imperative that
the operator, who knows their system and operations the best, conduct
the appropriate analysis to understand the risks they are introducing
into the NAS. In many cases, the safety of the operation will depend on
what the UAS is flying over, supplemental aircraft or operator carrier
mitigations, and the nature of the hazardous materials involved. For
example, aircraft systems (e.g., parachutes), operational
considerations (e.g., routing relative to people and property on the
ground), localized emergency response capability, the nature and
quantity of hazardous materials onboard, and novel mitigations to
contain hazardous materials (e.g., aircraft or operator supplemental
packaging or containers) are just some of the unique variables the SRA
may cover. For these reasons, FAA proposes to require the submission of
an SRA acceptable to FAA for a certificated package delivery operator
seeking a will-carry authorization to transport hazardous materials.
FAA has developed draft AC 108-XX, 14 CFR part 108 Unmanned
Aircraft systems (UAS) Carrying or Dropping Dangerous Goods Safety Risk
Assessment, to support the development of the SRA acceptable to the
Administrator, which is included in the docket. This AC focuses on the
requirements and considerations that a certificated package delivery
operator should make in developing an SRA acceptable to the
Administrator. FAA requests comment on this draft AC and will issue a
final version to coincide with the final rule's publication.
v. Authorization To Deliver or Unload Hazardous Materials by Releasing
or Dropping Such Materials Above Ground Level
In addition to a will-carry authorization, FAA proposes that will-
carry certificated package delivery operators seeking authorization to
intentionally release or drop hazardous materials as a form of delivery
must obtain an additional FAA authorization allowing them to do so. To
apply for and obtain this authorization, FAA proposes that an operator
would need to have a hazardous materials training program and hazardous
materials procedures and instructions and would need to submit an SRA
acceptable to FAA to ensure they account for the unique characteristics
for releasing or dropping hazardous materials above ground level.
Intentionally dropping hazardous materials as a part of routine
operations differs from the traditional method for unloading hazardous
materials from an aircraft. Before the development of UAS, except for
special aircraft operations in accordance with 49 CFR 175.9(b),
unloading hazardous materials from an aircraft has traditionally been
conducted by personnel physically removing the package from the
aircraft. However, UAS provides operational methods of unloading
packages, including hazardous materials packages, by releasing or
dropping from above ground level.
[[Page 38290]]
As these unloading methods are not traditional, UAS operators must
consider additional risks to ensure their operations are conducted
safely. These risks are not limited only to people and property on the
ground at the time of delivery, but to people handling the package,
such as a subsequent traditional air carrier. These risks are often
distinct from those identified in the considerations to accept, handle,
load, or transport the hazardous material in flight, which are proposed
in the will-carry authorization. Therefore, FAA believes that a will-
carry certificated package delivery operator should consider the unique
circumstances for intentionally dropping or releasing a package and
incorporate these considerations in their hazardous materials training
program, hazardous materials procedures and instructions, and SRA, as
proposed in obtaining their will-carry authorization. Specifically, FAA
proposes that certificated package delivery operators seeking this
authorization must ensure that their hazardous material training
program, hazardous materials procedures and instructions, and SRA
acceptable to the administrator be inclusive of risks to people and
property on the ground resulting from intentionally dropping or
releasing hazardous materials. The operators should also consider the
risks to other people who may subsequently transport or handle the
dropped package, such as traditional air carriers, ground
transportation carriers, and recipients. These considerations may be
incorporated in the hazardous materials training program, hazardous
materials procedures and instructions, and SRA acceptable to the
Administrator used to meet the will-carry authorization requirements,
as new versions for this authorization requirement, or a combination of
the two.
In addition, FAA believes that the SRA should include technical
information proportionate to the level of risk for each hazardous
material being dropped or released above ground level. The certificated
package delivery operator should fully understand the identified
hazards and develop appropriate risk mitigations. For additional
details on developing an SRA acceptable to the Administrator, see the
discussion on the draft AC in the SRA Acceptable to the Administrator
section.
FAA notes that this authorization would not be required for special
aircraft operations, such as agricultural operations, to release
hazardous materials during flight when operating in accordance with 49
CFR 175.9(b).
10. Agricultural Operations (Sec. 108.575)
Currently, agricultural operations using UA are conducted under 14
CFR part 137, which provides rules for conducting agricultural aircraft
operations. However, part 137 was written for traditional aircraft,
rather than UA. As such, there are provisions in part 137 that cannot
be met by UA operators. FAA has been issuing part 137 exemptions for
operators conducting agricultural operations with UA. The proposed
agricultural operations certificate will create regulations related to
agricultural aircraft operations that are specifically tailored to the
needs and risks of part 108 UAS.
In Sec. 108.575(a), FAA proposes that an operator conducting
agricultural operations with a part 108 UA that does not comply with
the requirements for agricultural permitted operations must obtain an
agricultural operating certificate. As described below, FAA believes
operations outside of the scope of an operating permit are of a higher
risk and would therefore benefit by the risk mitigations associated
with obtaining an operator certificate. FAA uses the same definition of
agricultural operations as is used in part 137.
In Sec. 108.575(b) and (c), FAA proposes to prohibit dispensing
operations directly over people and to limit operations to Category 3
population density areas or lower, as described in section VI.H. These
proposed requirements would be consistent with existing regulatory and
practical considerations for agricultural operations. Dispensing of
economic poisons and any other substance intended for treatment,
nourishment, propagation, pest control, preservation and pest control
may be hazardous to persons if applied directly overhead. FAA must
ensure the protection of persons not only in the air but on the ground,
and therefore would prohibit dispensing operations directly over
people, unless authorized by FAA. In addition, both manned and unmanned
agricultural operations typically take place in sparsely populated
areas over non-populated areas, operating close to the ground while
dispensing and close to structures. Should a UA collide with the ground
or a structure, persons may become vulnerable to the associated hazard
from material carried on the aircraft. However, by limiting an
agricultural operation to an area that is less likely to have persons
nearby, the vulnerability to persons greatly decreases. Unlike
agricultural operations conducted under a permit, which are limited to
population densities of Category 1, certificated agricultural
operations would be limited to Category 3 population densities as the
certification process enhances standardization and increased
operational reliability through accepted training and operational
manuals as well as ongoing FAA oversight.
FAA recognizes that individual states, counties, townships etc. may
have specific limitations or restrictions regarding agricultural
spraying that may be more restrictive than what is proposed in this
preamble. To that end, FAA proposes in Sec. 108.575(e) that
certificated agricultural operators may not dispense, or cause to be
dispensed from a UA, economic poisons for use other than for which it
is registered, contrary to any safety instructions or limitations as
described by the product label, or in violation of any law or
regulation of the United States. In addition, FAA proposes that
certificated agricultural operations comply with all safety
instructions or limitations on the product label as well as any
applicable laws or regulations of the United States.
In Sec. 108.575(f) FAA proposes the same relief from the
requirements in paragraph (e) as currently allowed under part 137 for
operators dispensing economic poisons for experimental purposes when
under the supervision of a Federal or State agency authorized by law to
conduct research in the field of economic poisons or when operating
under a permit U.S. Department of Agriculture issued pursuant to the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136).
In proposed Sec. 108.575(g) FAA would require that operators
conducting operations under an agricultural part 108 operating
certificate must have and keep current a comprehensive training program
that is tailored for their proposed operation. The training program
would need to contain, at a minimum, knowledge requirements consisting
of steps to be taken before starting operations, including survey of
the area to be worked, safe handling and storage of and the proper
disposal of used containers for those, the general effects of and
agricultural chemicals on plants, animals, and persons, with emphasis
on those normally used in the areas of intended operations; and the
precautions to be observed in using poisons and chemicals, primary
symptoms of poisoning of persons from, the appropriate emergency
measures to be taken, and the location of poison control centers,
performance capabilities and operating limitations of the aircraft to
be used and, safe flight and application procedures. FAA believes that
by requiring a training
[[Page 38291]]
program with the included above areas tailored to their operation, any
additional risk associated with an individual operation would be
further reduced.
Finally, FAA is proposing in Sec. 108.575(h) that no person may
supervise or participate in an agricultural unmanned aircraft operation
unless they have completed the operator's training program as required
in Sec. 108.575(g). As further described in section VII.A of this
preamble, FAA is not requiring airman certification for operations
conducted herein. Therefore, FAA would rely on the knowledge and skill
requirements discussed in section VII.C to ensure that adequate
knowledge and skill has been obtained prior to operation. Completion of
the training program should be comprehensive, and failure to achieve a
reasonable grade or average on the training program materials would
likely not demonstrate sufficient skill to conduct safe operations.
11. Aerial Surveying Operations (Sec. 108.580)
As described in section VIII.B.8, FAA recognizes the value of UA
operations conducted for the purposes of photography, videography,
mapping, inspecting, or patrolling. However, aerial surveying
operations with an operating permit would be limited to an aircraft
weight of no more than 110 pounds, a population density of Category 3
or lower, and fewer than 25 active aircraft.
FAA recognizes that operators may want to operate with UA for
aerial surveying operations weighing more than 110 pounds, with a
greater number of active aircraft, or in an area with a greater
population density than what is allowed under permitted operations. To
ensure these operations may still be safely conducted, FAA finds that
risk is best managed through the standardization and continued
oversight of the certification process. With the advancement of
technology and UA design, FAA anticipates many variants, sizes, and
weights of UA performing aerial surveying functions, and FAA proposes
that the certification process could provide the appropriate safeguards
to facilitate those operations. FAA also understands that operators for
aerial surveying purposes may maintain 25 or more active UA for their
operation, and therefore does not propose a limit on the number of
active aircraft an operator may hold when operating under a certificate
that permits aerial surveying operations.
FAA proposes to enable a pathway for aerial surveying operations to
be conducted in higher than Category 3 population densities through the
certification process. However, as operating weight increases, so does
the overall risk to people on the ground. FAA therefore proposes in
Sec. 108.580(b) that aerial survey operations conducted with a UA
weighing more than 110 pounds be limited to Category 4 population
density areas, or lower. FAA believes that greater risk of higher
weight UA, increased number of active aircraft, and higher population
density category operations, can be mitigated by the certification
process, which requires FAA evaluation, observations, and continued
surveillance. An operating certificate adds various levels of risk
mitigation such as FAA accepted training programs, and continued FAA
oversight.
12. Civic Interest Operations (Sec. 108.585)
As described in section VIII.B.7, civic interest operations are
operations conducted under contract for government agencies, law
enforcement, and public safety entities using UA for various purposes,
including forest and wildlife conservation (including wildfire
recovery, wildlife conservation, and tracking climate change) and
operations in support of public safety (including fire, accident, and
disaster response). In addition, FAA proposes that, when operating in
support of a government entity, the operator must coordinate and
deconflict operations with the law enforcement or government emergency
management agency responsible for the incident response in advance and
throughout the duration of the operation.
Whereas permitted operations for civic interest are limited to
fewer than 25 active aircraft, FAA proposes that operations conducted
under a civic interest operating certificate would not be limited to a
specific number of UA. Management oversight of an operation would be
accomplished through an operating certification process, which ensures
continued FAA oversight and would reduce risk as the entire operation
is under initial and continued scrutiny of FAA by virtue of the
operating certificate.
As with permitted operations, FAA proposes in Sec. 108.585(b) that
civic interest operations must be conducted by an entity contracted to
a Federal, State, local, Tribal, or territorial government to be
considered civic interest. These operations would be civil operations,
and would not fall under the public aircraft operations statute, as
further discussed in section VIII.B.7.
To further mitigate the risk associated with operations with these
larger UA, FAA proposes in Sec. 108.585(c) that operations conducted
with UA with a gross weight of more than 110 pounds would be limited to
Category 4 population density areas or lower. Operations within a
population density of greater than Category 4 greatly increases the
risk to persons on the ground as the area of operation becomes more
saturated with people. FAA does not anticipate a need for civic
interest certificated operation with a UA weighing more than 110 pounds
to occur within greater than Category 4 population densities. However,
this requirement would be subject to relief per the Administrator's
authorization, should an operator make a proposal that would provide
sufficient assurance that these operations could be safely conducted
over a higher population density. Operations of aircraft weighing 110
pounds or less could operate in any population density. Notwithstanding
the population density restrictions of this section and proposed Sec.
108.185, FAA would allow operations to be conducted over any population
density to the extent necessary to safeguard lives in imminent threat.
Given the potential nature of these types of operations, FAA believes
that an incremental increase in ground risk would be justified in life-
saving operations.
IX. Maintenance and Alterations (Subpart F)
A. Applicability
In subpart F, FAA proposes rules for the maintenance and
alterations of UAS operating under this part. This covers the persons
authorized to perform maintenance and alterations, the performance of
maintenance on the UAS, life-limited parts, batteries, repairs and
alterations, and operations after maintenance or alterations.
This FAA proposes to exclude from the applicability of this subpart
the maintenance or alterations of automated data service provider
equipment approved under part 146 of this chapter, the maintenance or
alteration of a UA and its AE that is operated and maintained in
accordance with parts 43 and 91 of this chapter, and the maintenance or
alterations of AE not under the direct control of the operator.
B. Persons Authorized To Perform Maintenance (Sec. 108.605)
Part 107 does not prescribe any maintenance requirements; however,
the operational framework for proposed part 108 is predicated on the
reliability
[[Page 38292]]
of the UAS. Moreover, UAS operating under this part would be more
technologically complex than most UAS operating under part 107. Because
proposed part 108 would be operationally expansive by allowing larger
UA to operate BVLOS in the NAS, UA reliability is a paramount risk
mitigation. Having a structured system of maintenance ensures that the
UAS is maintained to a standard that enhances its reliable and safe
operation. Accordingly, as stated in proposed Sec. 108.600(a), subpart
F prescribes the maintenance and alterations requirements for UAS
operating under part 108.
FAA recognizes that the UAS may include AE that are not under the
direct control of the operator, and FAA does not intend to make
operators responsible for the maintenance of those AE elements. It is
anticipated that most, if not all, of the AE outside the control of the
operator are likely under the control of an automated data service
provider, who would be responsible for maintaining the AE they use to
provide services under proposed part 146. In addition, there may be
other AE not under the direct control of the operator that is not
addressed in the manufacturer's maintenance instructions in proposed
Sec. 108.720, such as the infrastructure provided by a cellular
company providing data connectivity to the aircraft in flight or
network servers provided by an online hosting platform that is
providing the flight control software platform. It would be
unreasonable to leverage an additional maintenance requirement on the
UA operator to maintain that equipment. Therefore, the proposed
maintenance requirements do not include requirements for the operator
to maintain AE not under the operator's direct control. Furthermore,
the maintenance and alterations for UAS that are operated and
maintained in accordance with parts 43 and 91 of this chapter would be
governed under those rule parts, and the requirements of part 108
likewise would not apply.
C. Persons Performing Maintenance and Alterations (Sec. 108.605)
Similar to the approach for operations personnel, FAA is not
proposing certification requirements for maintenance personnel for UAS
operating under this part for numerous reasons. The lower risk nature
of the operations, the variability of aircraft design and
characteristics in the industry, the move to design that is more
heavily dependent on automation and software programming, and the rapid
change and innovation in this field would all make it difficult for FAA
to create a one-size-fits-all knowledge and skills certification
process for those performing maintenance and alterations on these UAS.
Though this proposal would not require certification, FAA recognizes
that properly trained and qualified personnel that perform maintenance
and alterations are vital to ensuring the continued airworthiness of
the aircraft. Therefore, in Sec. 108.605, FAA proposes requiring the
operator to ensure that personnel performing maintenance and
alterations on the operator's UAS are qualified, through basic skills
and knowledge obtained in accordance with the training requirements in
Sec. 108.315, to perform the assigned maintenance task or alteration
using the manufacturer's maintenance instructions. In addition to being
qualified, FAA proposes that the operator must also specifically
authorize a person to perform the maintenance or alterations on the
aircraft.
FAA considered creating a new type of repairman certificate
specifically for UAS, but for the reasons stated above found that this
would be unnecessary and impractical at this time. As discussed in
section VII, FAA has determined that airman certification is not
necessary for relevant personnel conducting operations under the
provisions of part 108. As with the proposed personnel requirements,
FAA proposes that responsibility for maintenance rests with the
operator, which in most cases would be a company.
D. Unmanned Aircraft Maintenance (Sec. 108.610)
Under proposed Sec. 108.610(a), the operator must ensure its
employees who perform maintenance on a UAS use the methods, techniques,
and practices prescribed in the UAS manufacturer's maintenance
instructions that are required by Sec. 108.720(a). Further, the
operator is obligated to ensure the UAS is in a condition for safe
operation. In addition, as stated in proposed Sec. 108.610(b), the
operator would need to inspect the UAS in accordance with the
manufacturer's inspection criteria found in the manufacturer's
instructions.
The person performing maintenance would be required to use the
methods, techniques, and practices prescribed in the manufacturer's
maintenance instructions provided at the time of purchase of the UAS by
the operator. Though this rule would not require the person performing
maintenance to hold a mechanic or repairman certificate, it is
incumbent on the operator to ensure that maintenance occurs in a manner
that keeps the UAS in a condition for safe operation under part 108.
The operator must also have the UAS inspected according to the
requirements in the maintenance instructions. Improperly performed
maintenance or lack of inspections at the required intervals could
result in loss of control and a subsequent crash of the UA.
FAA has long relied on maintenance providers' compliance with the
information provided by the aircraft manufacturer to ensure aircraft
remain in a condition for safe operation. For UAS operated under this
part, FAA similarly expects maintenance requirements would be
prescribed by the manufacturer in the maintenance instructions required
by Sec. 108.720(a). The UAS manufacturer is in the best position to
know how to service and maintain the UA and its directly associated AE.
In addition, under proposed Sec. 108.40 and Sec. 108.45, FAA would
prescribe standards for maintenance record keeping and service
difficulty and interruption reporting. The purpose of maintenance is to
ensure continued safe operation by systematically inspecting the UAS
for damage and deterioration; inspecting or replacing, as required,
flight essential parts; and testing its system for proper operation.
These maintenance functions have been shown to enhance the reliability
of aircraft in other forms of aviation.
The BVLOS ARC final report stated that ``risk is mitigated when the
UAS configuration matches the original design (or as revised) and when
required actions (inspections, replacements, and repairs) have been
accomplished.'' In line with this ARC statement, FAA proposes to
require in Sec. 108.720(a)(2) that manufacturers develop operating and
maintenance instructions that include identification of flight
essential parts and their associated inspection criteria or life
limits. It is important that the maintenance instructions include the
inspection criteria to ensure the operator proactively finds wear or
damage, and repairs or replaces the part before a failure can occur.
Further, the maintenance instructions must include life limits for
parts so that a part can be proactively replaced before it becomes worn
or damaged and a failure can occur. Timely inspection or replacement of
flight essential parts will further enhance reliability and mitigate
risk. Under proposed Sec. 108.610(b), operators would be required to
follow the manufacturer's inspection criteria.
In addition, under proposed Sec. 108.610(c), each operator of a
UAS would be required to have all
[[Page 38293]]
inoperative equipment and items not in a condition for safe operation
repaired as prescribed in the manufacturer's maintenance instructions
prior to operating the aircraft. Safety is predicated on all equipment
functioning as designed. Operators certificated under the more
stringent requirements of proposed subpart E would have more robust FAA
oversight and certification and be able to operate with some
inoperative equipment per proposed Sec. 108.555, as discussed in
section VIII.C.6 of this preamble.
E. Life-Limited Parts (Sec. 108.615)
Identifying, tracking, replacing, and disposing of life-limited
parts once they have reached their service life limit is a cornerstone
of safety in aviation and is just as crucial for UAS. FAA proposes in
Sec. 108.615 that an operator cannot operate a UA with parts that have
exceeded their life limit. Further, in order to operate a UA, the
operator must track the status of life-limited parts and replace them
at any manufacturer-determined interval. An operator will be expected
to comply with replacement intervals to ensure that the UA stays in a
condition for safe operation.
As with other forms of aviation, once a life-limited part has
reached the end of its life cycle, it must be properly dispositioned to
ensure that it will not be reintroduced into service. This replacement
and disposition process would require the operator to track the status
of each life-limited part installed on the UA to ensure that the life
cycle of the part is not exceeded, as stated in proposed Sec.
108.615(b). Any tracking would need to uniquely identify the part and
its removals and reinstallations. This proposal would further require
the part to be dispositioned in a manner in which its status is clear
to anyone who may come into possession of the part. This could be
accomplished in several ways as provided in Sec. 108.615(c),
including: a method that uniquely identifies the part and its status,
such as a tag, record, document, or other marking, made or attached to
the life-limited part; physically separating the part from good parts;
or even mutilating or destroying the part to prevent its reinstallation
onto another aircraft. Tracking the status of life-limited parts is
essential to ensure compliance with the replacement intervals of life-
limited parts and preventing possible catastrophic failures by use of a
part outside of its life limit. For the same reasons, if the part is
sold, transferred, or given to someone else, the life-limited parts
status must be clearly identified as described in proposed Sec.
108.615(d).
F. Unmanned Aircraft Batteries (Sec. 108.620)
Many UA use batteries as a primary power source and do not have
onboard generators to recharge the batteries in-flight. While this is
starting to emerge in manned aviation as well, use of batteries as a
primary power source is much more prevalent in the UAS industry. Most
UA do not have any backup or reserve power source should the batteries
fail. This poses some unique considerations about needing to ensure the
health and status of the batteries.
Battery-powered UA often use lithium batteries as an inflight power
source. Lithium batteries have a greater risk of fire and swelling than
other technologies due to their internal chemistry. Operating a lithium
battery at or beyond its limits can lead to greater internal
resistance, which can lead to more heat, resulting in a thermal runaway
cycle with increasing temperature escalation. As lithium batteries age,
their energy capacity and ability to deliver power decreases with time
and usage. Per proposed Sec. 108.620, operators would be required to
implement a battery monitoring program to ensure that each battery's
state of health (SOH) is not compromised. Operators would benefit from
having an SOH battery monitoring program because the program would lead
to removing compromised batteries from service before failure while
maximizing the service life of the batteries.
Proposed paragraph (b) would require that operators remove from
service any batteries that experience significant degradation or
inadequate levels of performance to prevent any safety of flight
issues. Batteries that are significantly degraded or depicting
inadequate levels of performance may significantly reduce the UA's
range and ability to perform emergency actions. Operators unable to
conduct a flight to a safe landing location due to a depleted battery
that is degraded or not adequately performing would not be in
compliance with this section. It is the operator's responsibility to
determine at what point the battery meets these criteria and remove the
battery from service prior to creating a safety of flight issue. Most
charging systems for batteries have built-in monitoring that provide
this functionality automatically, so FAA does not anticipate that this
will be a heavy burden to implement.
G. Repairs and Alterations (Sec. 108.625)
Unlike other forms of aviation, FAA is proposing that part 108
repair and alteration data be authorized only by the manufacturer.
Under proposed Sec. Sec. 108.740 and 108.750, the manufacturer is
responsible to maintain the continued operational safety for the
products they produce and must have access to the design data for any
repairs and alterations made to the UA to ensure that aircraft design
integrity remains in compliance to the standards. Further, as required
in Sec. 108.755, the manufacturer of the UAS that has received
airworthiness acceptance must authorize any repair or alteration. As
recommended by the BVLOS ARC, this approach mitigates risk by ensuring
the UAS remains in a configuration that meets the original or revised
design requirements. For this concept to work, an operator that wants
to perform a repair or alteration to the aircraft must either reference
standard information already provided by the manufacturer in the
maintenance instructions or ask the manufacturer to provide or approve
repair data for the specific repair or alteration. An operator could
develop their own repair or alteration, but the operator would need to
have the manufacturer review the data and determine that the aircraft
would remain in compliance with subparts G and H.
Software updates to UA, whether individual aircraft or an entire
fleet, are also considered alterations. Under this proposed construct,
it is the manufacturer's responsibility to ensure the software updates
have been thoroughly tested and maintain the aircraft's COS as
described in section X.K. This does not include configuring user-
interface items or end-user flight parameters per the software provided
by the manufacturer. Proper configuration and setup are still the
responsibility of the UA operator.
It is important to note that, consistent with the definition of
``maintenance'' in 14 CFR 1.1, under proposed Sec. 108.625(b) the
simple replacement of parts or assemblies with identical, or
alternative parts or assemblies identified by the manufacturer, is not
considered a repair or alteration. As such, the requirements of
proposed Sec. 108.625 would not apply.
H. Operations After Maintenance (Sec. 108.630)
As with other forms of aviation, FAA is proposing in Sec.
108.630(a) that, after any maintenance or alteration, an operator can
only operate the UAS after that UAS is approved for return to service
by a person that the operator has authorized. In addition, the operator
must ensure the record of the maintenance actions as provided for in
Sec. 108.40 is completed prior to operation
[[Page 38294]]
of the UAS, as further detailed in section V.
Further, when a maintenance or alteration action has been
accomplished that may have appreciably affected the flight
characteristics or substantially affected the safe operation of a UAS,
paragraph (b) proposes that an operational check of the UAS would need
to be conducted prior to operation. The operational check could include
power-on systems based self-checks, ground-based checks, short takeoff
and hover checks, or full flight checks, depending on the nature of the
repair or alteration and the assurance needed to ensure the repair or
alteration was completed satisfactorily. Under proposed paragraph Sec.
108.630(c), where the operational check would include a flight, it must
not be conducted over people or moving vehicles. This helps to mitigate
risk to persons and property should anything go wrong during the
flight. These return-to-service operational checks would be conducted
under the operator's existing permit or certificate.
X. Procedures for Unmanned Aircraft System Airworthiness (Subpart G)
A. Unmanned Aircraft System Airworthiness
FAA proposes a regulatory framework for determining the
airworthiness of unmanned aircraft for proposed part 108 operations.
There is a need to establish a new risk-based airworthiness process for
UAS intended to be operated BVLOS under proposed part 108. Under this
new process, called airworthiness acceptance, the UAS would meet
performance-based design, production, and airworthiness requirements by
using a means of compliance (MOC) that would consist of consensus
standards accepted or approved by FAA and would show it is in a
condition for safe operation. To receive airworthiness acceptance under
proposed part 108 airworthiness framework, FAA would require a
manufacturer to submit a DOC that its UAS design conforms to the
design, test, production, and airworthiness requirements of subparts G
and H of part 108 and is in a condition for safe operation. An operator
would only be authorized to use a UAS that has an airworthiness
acceptance.
FAA considered the safety continuum when developing requirements
associated with an airworthiness acceptance. The safety continuum is
one way FAA established the appropriate level of safety based on risk
presented by the aircraft and its operational profile. The proposed
requirements for part 108 are intended to balance the needs of the
flying public, manufacturers, and operators with the societal
expectation of safety.
FAA considered utilizing part 107 for these operations but found it
to be insufficient due to the lack of mitigations to ensure the safety
of routine BVLOS operations and only addressing small UAS. Part 107
does not have regulatory requirements that ensure the airworthiness of
the UA. Unlike part 107, which only allows limited BVLOS operations
under the terms of a waiver with substantial operating limitations, 108
allows for routine BVLOS operations over populations of persons on the
ground without the use of visual observers or waivers. Airworthiness of
the UA becomes a factor in assuring the safety of those on the ground.
Consequently, FAA considers the level of FAA oversight and FAA scrutiny
of part 107 UAS to be insufficient for the scope and risk of part 108
operations. Therefore, FAA proposes an airworthiness acceptance process
to help mitigate that risk with UAS design standards.
FAA considered the BVLOS ARC's recommendation to develop an
airworthiness framework for UAS that closely resembles special
airworthiness certification of light-sport category aircraft under part
21 using industry consensus standards. In their final report, the UAS
BVLOS ARC recommended FAA create a new process for qualification of UA
with a mass and speed of up to 800,000 ft-lb of kinetic energy, which
is representative of the existing light sport aircraft category,
considering maximum weight and airspeed limits. Existing light sport
aircraft have an upper weigh limit of 1,320 pounds (600 kilograms),
which is approximately 800,000 ft-lbs. of kinetic energy when flying at
their maximum speed of 120 knots. At an equivalent weight, light sport
aircraft pose a higher risk based solely on the fact that people are
always on board and any loss of control event may result in at least
one fatality, regardless of what is below the aircraft. This contrasts
with part 108 where a loss of control event may result in a fatality on
the ground but is mitigated by operating limitations tied to population
density of the overflown area and airworthiness requirements. Further,
under proposed part 108, larger UA would have different operating
limitations than smaller UA. Though FAA used the BVLOS ARC
recommendations in developing a maximum weight for UA operating under
part 108, design and operation limits were set in such a way that they
are appropriate for the qualitative risk for UAS under the proposed
rule as compared to that of existing light sport category aircraft.
Further discussion on maximum size, weight, and speed can be found in
section XI.B.
Based on the ARC's recommendations, FAA considered creating a new
UAS SAC for proposed part 108 operations, which would have consisted of
two categories based on the risks associated with the operating
environment and the mass and speed of the UA, one for small UA
(Category 1), and one for UA weighing not greater than 1,320 pounds
(Category 2). By creating two categories, FAA would have established a
process for issuing SACs to UAS based on existing part 21 procedures to
enable BVLOS operations under part 108, depending on the operators'
CONOPS. This approach would have created a means to differentiate the
eligibility of classes of aircraft based on the risk posed by these
operations, such as whether the UA will be operated over people or the
size of the UA. The SAC process would require a higher level of initial
FAA oversight than would be necessary for part 108, because it would
require FAA to conduct an airworthiness inspection of each UAS
produced. As discussed earlier, there are no crew members or passengers
on board, and ground risk is mitigated, in part, by operating
limitations tied to population density of the overflown area. The
proposed airworthiness acceptance would appropriately mitigate ground
risk associated with a UA failing in flight by imposing performance-
based design standards that would increase the reliability of a UAS
eligible to operate under part 108. Therefore, FAA considers that the
level of FAA oversight and FAA scrutiny for a special airworthiness
certification may not be necessary for the scope and risk of part 108
operations.
The proposed airworthiness regulations under part 108 aim to
prevent loss of flight or loss of control incidents stemming from
factors such as structural integrity, software and hardware
functionality, performance attributes, and operational factors. The
proposed design and performance standards would require the UAS to
withstand all expected flight and ground loads during its operations
without compromising the UAS's safe operation.
Implementing design and manufacturing processes to consensus
standards in the development and production of UAS systems and
components is necessary to minimize the likelihood of loss of UA
performance or critical functionality.
[[Page 38295]]
Accordingly, the UAS's design and manufacture under this proposal is
intended to appropriately address these risks.
FAA therefore proposes utilizing an airworthiness acceptance
process, adding subparts G and H of part 108, specifying the
requirements for design, performance, testing, production, and FAA
acceptance of part 108 UAS.
B. Associated Elements (Sec. 108.5)
To further enhance safety and operational efficiency within the
NAS, FAA proposes regulating UA's AE along with the UA itself as part
of the airworthiness acceptance process. AE plays a critical role in
UAS operations. FAA proposes defining AE, in Sec. 108.5, as those
elements that are not directly affixed to a UA and are necessary to
interact with the UA for safe flight during all normal, abnormal, or
emergency flight operations.
AE is a widely used term and encompasses a wide range of
components, such as ground control station, pilot interface equipment,
Fleet Management systems, and cloud-based computing solutions. It also
includes C2 links, which cover direct radio as well as internet and
cellular/satellite communications. Equipment for launch and recovery,
ground-based radars and radios, and third-party services such as
weather and weather monitoring are also considered AE. Third-party
services may also need to comply with proposed part 146. Depending on
the level of interaction with the UAS, additional equipment such as
battery chargers, landing pads, markers, and specialized containers or
``hangar boxes'' for data transfer and software updates may qualify as
well.
Section 108.880 addresses the proposed AE design and performance
requirements. The specific requirements of this section will be
discussed in section XI.Q. As proposed in Sec. 108.720, the
manufacturer would be required to provide a list of all acceptable
configurations of UA and AE, which would allow operators and regulators
to identify the requirements and standards necessary for each
component, reduce the likelihood of system failures, and improve the
overall safety of UAS operations.
C. Applying for a Part 108 Airworthiness Acceptance
For purposes of the proposed part 108 airworthiness acceptance
framework, the manufacturer would include any person or entity who is
taking responsibility for the final design and production of the UAS.
``Manufacturer'' as the term is used in this proposed rule would
encompass both the producers of UAS and the integrators who combine
various parts, assemblies, or materials, regardless of whether these
are sourced domestically or internationally. For part 108 purposes,
manufacturers would include integrators and any person or entity
responsible for ensuring compliance to the standards of subparts G and
H of part 108. It would be their responsibility to demonstrate that
every material, part, component, assembly, or system within a UAS meets
the standards of subparts G and H, regardless of whether they were
produced in-house or supplied by a third party.
1. Eligibility for Airworthiness Acceptance (Sec. 108.700)
Section 108.700(b) proposes eligibility requirements for
airworthiness acceptance. All manufacturers would be required to meet
the eligibility requirements prior to submitting a DOC. Proposed Sec.
108.700(b)(1) states that for the manufacturer to be eligible to apply
for a UAS airworthiness acceptance, the UAS must be manufactured in the
U.S., or be manufactured in a country with a Bilateral Airworthiness
Agreement addressing UAS or a Bilateral Aviation Safety Agreement with
associated Implementation Procedures for Airworthiness addressing UAS;
or an equivalent airworthiness agreement. As discussed in section X.L,
FAA would retain oversight authority under part 108 through audits and
inspections. Without the UAS being manufactured in the U.S. (barring
instances where there are agreements with foreign entities), FAA cannot
efficiently fulfill its oversight responsibilities, as access may be
withheld or limited. Appropriate oversight is necessary to ensure the
safety of the NAS.
FAA is also considering leveraging its broad statutory authority to
ensure the safety of the NAS to specifically regulate the operation of
foreign-manufactured UAS looking to operate in the NAS. FAA is asking
for specific public comment on whether there should be any particular
manufacturing restrictions on foreign manufacturers intending to
manufacture UAS under this rule, such as manufacturing outsourced by a
foreign manufacturer to a U.S. manufacturer or a U.S. manufacturer's
production of a UAS using foreign designs or parts from a covered
country. FAA is also asking for comment on whether there should be any
particular restrictions on the operation of foreign-manufactured UAS by
private entities beyond those already provided in law. If there should
be restrictions on the foreign-manufacture or design of UAS, or on the
operation of foreign-manufactured UAS, please provide suggestions for
implementing the restrictions. Also, what security risks do foreign-
manufactured UAS present to U.S. national interests when operated in
the NAS.
FAA would rely on a manufacturer's airworthiness DOC as evidence of
compliance with the requirements of subparts G and H, therefore the
manufacturer's authorized representative or agent must have knowledge
of the requirements and what the attestations in the DOC mean. Under
proposed Sec. 108.700(b)(2), any authorized representative or agent,
who is responsible for signing and certifying the statements in the
DOC, of the manufacturer would be required to be trained and certified
to make the declaration. FAA expects industry to develop and implement
training and certification to enable manufacturers to fully understand
FAA regulatory requirements and policies applicable to airworthiness
acceptance of UAS and the means necessary to meet applicable
requirements. Proposed Sec. 108.700(b)(2) would require fulfillment of
this training to be eligible to submit a DOC. Further, training must be
conducted by an organization that trains and certifies quality
assurance staff in accordance with FAA-accepted consensus standards. To
demonstrate completion of a training program for manufacturers and
manufacturer's authorized representatives or agents who sign
declarations of compliance, FAA would expect the training providers to
issue a certificate of completion as evidence of compliance with part
108.
2. Submitting a Declaration of Compliance (Sec. Sec. 108.710)
Section 108.710(a) proposes that a manufacturer requesting
airworthiness acceptance would be required to submit a DOC that meets
the requirements of Sec. 108.715. The DOC is an application for
airworthiness acceptance and a means to attest to FAA that the
manufacturer has demonstrated compliance with all UAS design,
production, test, and airworthiness requirements of part 108 using FAA-
accepted or approved MOC. A manufacturer's submission of a DOC would be
necessary to obtain airworthiness acceptance by FAA for the specific
UAS make, model, series and serial number listed on the DOC. This would
mean that each UA would need to obtain airworthiness acceptance.
The manufacturer would do this by submitting a DOC via an
electronic form available on FAA's website. Recognizing that multiple
identical UA will be
[[Page 38296]]
manufactured in a single production run, FAA proposes to provide
manufacturers with the ability to efficiently submit DOC documentation
for up to 500 UA at once through an online portal; paper applications
would not be accepted. A web-based tool would be the only method
available for applying for airworthiness acceptance. The web-based tool
would securely transmit the completed application and related
documents, if required, to the appropriate FAA office for processing.
FAA acceptance of a manufacturer's DOC establishes airworthiness
acceptance, which is necessary for eligibility to obtain an operations
permit or certificate to conduct operations under part 108. FAA would
accept the manufacturer's DOC as an attestation that compliance to the
applicable requirements has been shown. If additional information is
required, the proposed record retention requirements of Sec. 108.760
require manufacturers to make available any supporting information used
to demonstrate compliance, which may include information supporting
compliance with the requirements of subparts G and H, upon request by
FAA. This would include a manufacturer's technical data substantiating
compliance for FAA review.
D. Means of Compliance (Sec. Sec. 108.705 and 108.710)
Proposed Sec. 108.710(b) requires a manufacturer seeking
airworthiness acceptance for a UAS to comply with subparts G and H of
part 108 using a MOC, consisting of voluntary consensus standards, that
would be accepted or approved by FAA. FAA uses the term ``MOC'' to
refer to the means the manufacturer uses to show that its UAS is
designed, produced, and tested to conduct the manufacturer designated
operation(s) under part 108.
Rather than using prescriptive requirements, FAA proposes
manufacturers use voluntary consensus standards as an MOC to meet
performance based UAS design test, production and airworthiness
requirements of subparts G and H.\132\
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\132\ FAA Order 8000.376, Development and Use of Voluntary
Consensus Standards (Mar. 4, 2024).
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An accepted MOC would provide an acceptable manner by which a UAS
manufacturer can comply with specific provisions of part 108, subparts
G and H, with the exception of noise requirements. An accepted MOC is
reviewed by FAA, no objections are found, and its use is communicated
to the public. An approved MOC would provide an acceptable manner by
which a UAS manufacturer would comply with part 36 noise requirements.
FAA approves, rather than accepts, an MOC for part 36 noise
requirements to maintain consistency with FAA's practices used in noise
certification for other aircraft, including FAA's approvals of
equivalent noise testing procedures. FAA's approval of noise standards
is necessary to verify that the standard meets FAA's obligations
pursuant to 49 U.S.C. 44715 to limit aircraft noise.
Similarly, FAA's acceptance of voluntary consensus standards for
design and production requirements allows FAA to determine if the
standard meets the applicable requirements of subparts G or H. Using
voluntary consensus standards accepted or approved by FAA would be the
only means to show compliance to the requirements of subparts G and H,
except for the noise and cybersecurity carve outs mentioned in section
X.E of this preamble. Voluntary consensus standards are developed by
industry organizations, in meetings open to all interested parties, and
often with input from FAA. The standards produced by consensus
standards bodies therefore are based on input from a broad range of
perspectives.
FAA intends for industry to develop consensus standards that serve
as the MOC for the specified UAS design, test, production, and
airworthiness requirements to obtain airworthiness acceptance. To
propose a consensus standard as an MOC to the requirements of subparts
G and H of part 108, proposed Sec. 108.705(a)(1) allows a voluntary
consensus standards body to submit a voluntary consensus standard to
FAA for acceptance as a means of compliance for satisfying a
requirement of subpart G or H of this part. This would be done in a
manner acceptable to FAA. Once a consensus standard is submitted to FAA
for acceptance, Sec. 108.705(a)(2) proposes that, if FAA determines
the applicant's proposed MOC satisfies the requirements of subparts G
and H, FAA would notify the applicant it has accepted the MOC. To
inform the public which MOCs are available to them for demonstrating
compliance with the requirements of subparts G and H of part 108, Sec.
108.705(a)(3) proposes FAA would publish a notice in the Federal
Register announcing acceptance of the standard to the public as
proposed or with modification. This notice would provide an opportunity
to the public to comment on the specific details of the MOC and to
propose alternatives or enhancements to the standard for FAA review and
acceptance. If FAA receives comments on the MOC, FAA will adjudicate
any comments received and publish a final notice of its acceptance of
the MOC, with any accepted modifications. For purposes of compliance
with part 36, voluntary consensus standards bodies may develop
corresponding noise consensus standards. To increase the likelihood of
FAA's approval of the noise consensus standards, voluntary consensus
standards bodies are encouraged to seek FAA's feedback throughout the
standards development process. The process for submitting an MOC to FAA
and notifying the voluntary consensus standards body for noise would
parallel the general process for submitting a MOC for Sec. 108.705, in
a manner acceptable to FAA. To inform the public which MOCs are
available to them for demonstrating compliance with the noise
requirements, Sec. 108.705(b)(3) proposes FAA would publish a notice
of availability in the Federal Register announcing approval to the
public and will make the noise consensus standards available on
FAA.gov.
FAA's review and acceptance or approval process of an MOC is not
intended to restrict industry's ability to develop consensus standards,
but rather enables FAA to confirm that an industry-developed consensus
standard for UAS design, operation, production, maintenance, or
airworthiness complies with the proposed performance-based regulatory
requirements of subparts G and H. Further, FAA seeks input on whether
FAA should develop MOCs that could be used in lieu of consensus
standards developed by voluntary consensus standards bodies.
E. Compliance With Design, Test, Production, Noise, and Airworthiness
Requirements (Sec. 108.710)
Determining compliance with consensus standards is essential to
enable airworthiness acceptance of a UAS for operations under part 108.
Accordingly, FAA is proposing in Sec. 108.710 that the UAS would need
to be designed, tested, and produced to the requirements in subparts G
and H, and this compliance must be determined by individuals who have
been appropriately trained in making those determinations.
Section 108.710(b) proposes that a manufacturer would need to have
a UAS that meets the design, test, production, and airworthiness
requirements specified in subparts G and H using MOC approved or
accepted by FAA. For the design, testing, production, and airworthiness
requirements, these MOC would be voluntary consensus standards accepted
[[Page 38297]]
by FAA. Manufacturers demonstrating compliance with part 36 would use
either an FAA-approved noise consensus standard or other methods listed
in proposed Sec. 36.0. In addition, manufacturers would comply with
cybersecurity requirements by using an FAA-accepted standard, which
would not be required to be submitted by a voluntary consensus standard
body. FAA would approve industry standards for compliance with part 36
noise requirements. However, FAA would accept industry standards for
the remaining airworthiness requirements of this rule. Consensus
standards must either be accepted or approved by FAA to be used as an
MOC under the proposed rule. This is further explained in section X.E
of this preamble.
A manufacturer would only submit an airworthiness DOC for FAA
acceptance after the manufacturer has ensured their UAS meets all
applicable part 108 requirements. The DOC requirement is intended to
ensure that a UAS entering the airspace has met applicable
airworthiness standards and that the manufacturer would be able to
provide the necessary support for the UAS.
This proposal would further require development of training to
enable the manufacturer to fully understand the regulatory requirements
and policies applicable to the airworthiness acceptance of part 108 UA
and the means necessary to meet applicable requirements. In view of the
criticality of this need and FAA's primary reliance on the
manufacturer's DOC, Sec. 108.710(c) proposes that only individuals who
have been trained on determining compliance with the applicable FAA-
accepted or approved consensus standards would be able to make the
determination that the UAS meets those consensus standards and
therefore the requirements of proposed part 108. This proposed
requirement emphasizes the necessity for individuals involved in
determining compliance with design, test, production, and airworthiness
requirements, such as engineers, quality assurance professionals, and
maintenance experts tasked with making compliance findings, to undergo
training. The training required for Sec. 108.710(c) is different than
what was discussed earlier in Sec. 108.700(b). The training in
proposed Sec. 108.700(b) is meant for the individual signing the DOC
so they understand the DOC process and the responsibilities included
with submitting a DOC. In contrast, the training in Sec. 108.710(c)
would include a comprehensive explanation of the specific requirements
of applicable consensus standards, and methodologies for accurately
assessing compliance with these standards. FAA considers that training
would reduce the number of inaccurate DOCs submitted. Without full
knowledge and awareness of the specific requirements of subparts G and
H and the MOC with these requirements, a manufacturer's agent or
representative would not be able to ensure the accuracy of a DOC. FAA
proposes training to ensure UAS manufacturers and those individuals
determining compliance with design, testing and production requirements
are fully aware of the regulatory requirements and methods of
compliance increasing the integrity of the DOC system.
F. Declaration of Compliance (Sec. 108.715)
The DOC serves as the manufacturer's attestation that the UAS
complies with the applicable requirements through use of FAA-accepted
or approved MOCs. FAA proposes in Sec. 108.715(a) to require a
manufacturer submit a DOC for acceptance by FAA in a form or manner
acceptable to FAA. The DOC would require the manufacturer to identify
the specific UAS, designate the operation the UAS is designed to
conduct, attest that the required documentation exists, demonstrate
accountability, and declare compliance.
Proposed Sec. 108.715(b)(7) through (16) would require the
manufacturer to attest to the applicable compliance requirements of
subparts G and H and part 89 (Remote Identification of UA). Proposed
Sec. Sec. 108.715(b)(1) through (6), 108.715(b)(10), and (14) are
discussed below. The specific compliance requirements for paragraphs
(7) through (9), (11) through (13), (15), and (16) is explained more
fully in section V of this preamble. FAA considers these attestations
to be foundational for submission of a DOC for airworthiness
acceptance.
1. Identification
Per proposed Sec. 108.715(b)(1), a manufacturer would provide
their name and contact information on the DOC. This contact information
would include physical address, telephone, and email address and would
ensure that FAA knows who the responsible entity is and how to contact
them in case a noncompliance or a safety issue arises that requires FAA
to visit the manufacturer or the manufacturer's facility to resolve the
issue.
2. Make/Model/Series/Serial Number
Per proposed Sec. 108.715(b)(2), the DOC would identify the UAS by
make, model, series, serial number, and date of manufacture to ensure
the appropriate configuration is declared compliant and tracked by the
manufacturer. The UA serial number must be compliant with the Remote
Identification of Unmanned Aircraft, Design and Production serial
number requirements of Sec. 89.505. Maintaining a consistent UAS make,
model, and serial number configuration from flight test through
production is necessary to ensure the UAS on the DOC complies with the
requirements of subparts G and H of part 108. Operators would also
benefit from knowing which specific UAS make, model, series, and serial
number have received airworthiness acceptance, which is necessary for
obtaining an operating permit or certificate.
3. Designated Operation
Section 108.715(b)(3) proposes that manufacturers seeking
airworthiness acceptance for their UAS would need to designate any part
108 operational purpose the UAS is designed to conduct. The operational
purpose should be stated in the UAS operating instructions as required
by Sec. 108.720(a)(1). The manufacturer is in the best position to
determine if the UA has sufficient structural integrity, performance,
and capability to conduct any permitted or certificated operations of
Sec. 108.400 and Sec. 108.500. This proposed requirement is necessary
to ensure UAS designated to conduct part 108 operations are designed
and constructed to the appropriate consensus standards. Failure to
establish and validate adequate material strength, UA performance, and
design properties to accommodate a designated operation could cause
loss of functionality or structural failure resulting in loss of
aircraft control.
4. Consensus Standards
As stated in section X.E of this preamble, the MOC to the specified
UAS design, production, and airworthiness requirements are industry
consensus standards accepted or approved by FAA. Proposed Sec.
108.715(b)(4) through (6) would require the manufacturer to specify
FAA-accepted or approved consensus standards or cybersecurity standard
used to determine compliance on their DOC. FAA must understand which
requirements the UAS was manufactured under to address any
noncompliance or safety issue that may arise. Further, as proposed in
Sec. 108.745, FAA retains authority to conduct a review of the
manufacturer's technical data substantiating compliance. Having a
listing of FAA-accepted or approved consensus standards used to design,
test, and produce the UAS will ensure
[[Page 38298]]
application of the appropriate standards.
5. Documents
To ensure UAS are operated and maintained appropriately and are in
the proper configuration, manufacturers of UAS would be required to
declare in Sec. 108.715(b)(10) they will, upon request, make available
to any registered owner, the NTSB, or FAA the documents specified in
Sec. 108.720. Proposed Sec. 108.720 would require the manufacturer to
prepare operating instructions, maintenance instructions, and a
configuration control document and make them available to registered
owners, NTSB, and FAA upon request. FAA intends for industry to develop
consensus standards acceptable to FAA to serve as a MOC to these
document requirements. The specifics of these documents and who they
are made available to are described further in section X.G of this
preamble.
6. Regulator Access
Proposed Sec. 108.715(b)(14) requires manufacturers to state in
their DOC that, at the request of FAA, they will provide unrestricted
access to their facilities, to all data, documentation, and allow FAA
to witness any tests necessary to determine compliance with Sec.
108.715 or other applicable requirements of chapter I of title 14, or
other information as requested by FAA. The DOC, when signed by the UA's
manufacturer, would provide consent to FAA inspection of its
facilities, and constitutes an assertion that the information contained
in the document is true. To fulfill its oversight responsibilities, FAA
may require access to a manufacturer's facilities or any data for the
purpose of auditing compliance with applicable standards. This access
enables FAA to take those actions necessary to verify unsafe conditions
have been properly addressed or respond to a UA accident or incident.
The affirmative requirements are proposed in Sec. 108.745. These
requirements are more fully described in section X.L of this preamble
regarding inspections and audits.
7. Accountability for Persons Submitting Declarations of Compliance
Given the criticality of a manufacturer's DOC in obtaining
airworthiness acceptance, FAA is proposing requirements that
individuals making compliance declarations are trained in the use of
consensus standards. Proposed Sec. 108.715(c) would require the DOC to
be signed by the manufacturer's authorized representative or agent who
is certified and trained on the requirements associated with the
issuance of a DOC by an organization that trains and certifies quality
assurance staff in accordance with a consensus standard that has been
accepted by FAA.
This proposal would require development of training to enable the
manufacturer to fully understand the regulatory requirements and
policies applicable to the airworthiness acceptance of part 108 UA and
the means necessary to meet applicable requirements. A manufacturer
meeting the training and certification requirements of proposed Sec.
108.700(b)(2) for eligibility to submit an airworthiness DOC would
satisfy the requirements of proposed Sec. 108.715(c). By requiring
these parties to be appropriately trained, the airworthiness acceptance
process can ensure integrity in its risk-based approach. These proposed
training and certification requirements of Sec. 108.715(c) would be
necessary for manufacturers to create a DOC account and submit
declarations of compliance for the specific UAS make, model, and serial
number.
Section 108.715(d) proposes that, if the manufacturer has
demonstrated compliance with the testing requirements and other
requirements of subpart G of part 108, FAA will accept the DOC and
notify the manufacturer that FAA has accepted their DOC. FAA acceptance
of a manufacturer's DOC means the UAS has received airworthiness
acceptance. Unlike airworthiness certificates issued by FAA under 14
CFR part 21, FAA will not be issuing paper documentation to accept the
airworthiness of the UAS. FAA will utilize electronic means to convey
acceptance to the manufacturer. Once accepted, FAA will make details of
the UAS with airworthiness acceptance available on its website to aid
operators in selecting UAS with FAA airworthiness acceptance. This
information would be useful to operators who wish to conduct BVLOS
operations under proposed part 108 operating requirements. UAS with
airworthiness acceptance would be eligible for part 108 operations
either under a permit or certificate.
G. Required Documents for Airworthiness Acceptance (Sec. 108.720)
To ensure that operations supervisors, flight coordinators,
maintenance personnel, and other interested parties have the necessary
information to conduct UAS BVLOS operations in the airspace safely,
Sec. 108.720 proposes that manufacturers seeking airworthiness
acceptance would be required to prepare a series of documents. Under
this proposal, FAA would require operating instructions (proposed Sec.
108.720(a)(1)), maintenance instructions (proposed Sec.
108.720(a)(2)), and a configuration control document (proposed Sec.
108.720(a)(3)) for each UAS. FAA expects industry consensus standards
bodies to propose standards as the MOC for the development of these
documents. In addition, Sec. 108.720(b) proposes that manufacturers
would need to make these documents available to any registered owner,
the NTSB, or FAA upon request for any UAS with an airworthiness
acceptance. The detailed requirements for these documents are described
below.
Proposed Sec. 108.720(a)(1) would require manufacturers to prepare
operating instructions for each UAS when submitting a DOC for FAA
airworthiness acceptance. Under proposed Sec. 108.720(a)(1)(i),
operating instructions would contain procedures and limitations to
accommodate all operating conditions likely to be encountered in the
UAS's intended operations, including normal, abnormal, and emergency
procedures. FAA expects these operating limitations would address
certain weather phenomena such as freezing precipitation, takeoff, or
landing crosswind limits, hot or cold weather procedures, and other
conditions likely to be encountered during its intended operation. FAA
also expects any controlled airspace limitations would be included. A
UAS operated in environments beyond the limits of its design could lead
to loss of control of the UA leading to an incident or accident.
Operating instructions that include normal, abnormal, and emergency
procedures would ensure the flight coordinator is informed on how to
operate the UAS and knows the steps necessary to respond to changing
conditions affecting the safe operation of the UAS, reducing the
likelihood of human error. Instructions and limitations that apply to
all operations using the UAS would not need to be repeated for
designated part 108 operations.
Proposed Sec. 108.720(a)(1)(ii) would require manufacturers to
list all the manufacturer-designated operations, as defined in
Sec. Sec. 108.400 and 108.500, that may be safely conducted using the
UAS, including all AE, in the operating instructions. This requirement
would ensure that an operator knows which operations the UAS is
designed for and that those operations can be conducted within the safe
operating limitations of the UAS. This would inform operations
supervisors and flight coordinators
[[Page 38299]]
which operations are within the capabilities of the UAS.
Proposed Sec. 108.720(a)(1)(iii) would require the manufacturer to
designate the ratio of UA to flight coordinators that has been designed
and validated during flight testing under subpart H of part 108. This
allows the operations supervisor to know the maximum ratio of flight
coordinator to number of aircraft which the UAS is designed to support.
Operational limitations on operating permits and certificates may
ultimately reduce this ratio but may not increase it. According to
proposed Sec. 108.210(a), the default operating limitation is an
operator may only conduct operations at a UA-to-flight coordinator
ratio of 1:1. An operator would need to seek a higher ratio, up to the
maximum UA to flight coordinator ratio designated by the manufacturer
in the operating instructions, during the permitting or certification
process. Furthermore, an operator may only conduct operations at a UA-
to-flight coordinator ratio equal to or less than what the manufacturer
has specified in the operating instructions as proposed in Sec.
108.210(c).
Proposed Sec. 108.720(a)(1)(iv) states that the UAS operating
instructions would need to include the following statement from the
manufacturer: ``No determination has been made by FAA whether the noise
levels of this aircraft are or should be acceptable for operation in
any location.'' This statement, consistent with the proposed revisions
of Sec. 36.1581, would provide operators with awareness that they are
solely responsible for compliance with any operational noise abatement
procedures and requirements for the locations where the UA is operated.
Manufacturers would also be required to indicate in the operating
instructions that the aircraft has demonstrated compliance with part 36
and provide the demonstrated noise levels of the aircraft. Both
statements are consistent with the requirements in proposed Sec.
36.1581(h).
Proposed Sec. 108.720(a)(1)(v) states that the UAS operating
instructions would need to include a list of the parts and installed
equipment necessary for the operation of the aircraft, or a list of
equipment that is allowed to be inoperative. This information is
necessary to ensure operators comply with proposed Sec. 108.555 and to
keep operators informed about the operational status of their systems.
Proposed Sec. 108.720(a)(2) would require the manufacturer to
develop maintenance instructions that include procedures necessary to
ensure continued safe operation of the UA and its AE, including, but
not limited to, inspection criteria, repairs, and life limits. FAA
expects manufacturers would develop maintenance instructions that
detail the necessary steps to perform maintenance tasks, such as
replacing a battery, or to inspect a propeller for damage or wear.
Maintenance instructions may contain tasks and procedures to conduct
maintenance, inspections, tests, and checks that includes various
elements of the UA, such as the airframe, motor, propeller, rotor,
systems, and AE as applicable. These procedures are necessary to ensure
the continued safe operation of the UAS.
Established maintenance and inspection intervals or life limits
would ensure no component, part, or system of the UAS is used beyond
its established service life, reducing the likelihood of failure.
Service life would be established based on demonstrated capabilities.
Extending beyond defined service life could result in a loss of flight
or unrecoverable loss of UA control. Examples of unrecoverable loss of
UA control could include loss of control, flyaway, or inability to
maintain safe distance.
Inspection criteria typically include a schedule for performing
maintenance and inspections, expressed in time in service, calendar
time, number of system operations, or any combination thereof. By
incorporating these elements into the maintenance instructions, the
manufacturer ensures the operator of the UAS is informed on maintenance
actions necessary to ensure the continued safe operation and that
components are properly maintained, inspected, and managed throughout
the lifecycle of the UAS. This proactive approach to maintaining the
UAS contributes to the overall safety and operational reliability of
the UA, reducing the likelihood of accidents or incidents caused by
component wear or failures.
While it is the manufacturer's responsibility to ensure all
combinations of components of the UAS have been thoroughly evaluated to
function together as a system, it is also the operator's responsibility
to ensure that the chosen configuration of the aircraft conform to the
configuration control document. By providing a configuration control
document with the UAS, the manufacturer would identify all allowable
configurations of the UAS. This information would ensure flight
coordinators are operating a UAS in the proper configuration for a
particular operational purpose. Therefore, to ensure flight
coordinators are operating a UAS in the appropriate configuration for a
given operational purpose, proposed Sec. 108.720(a)(3) would require
manufacturers to create a Configuration Control Document that defines
all acceptable configurations of both the UA and its AE. To satisfy
this requirement, FAA expects manufacturers to create and maintain a
document defining all acceptable configurations of both the UA and the
AE. This configuration control document should identify all hardware by
part number, identify all software by version number, and define
acceptable combinations if multiple options exist. Unevaluated and
untested combinations of UAS components may introduce unexpected
reliability or safety risks. Configuration control also would support
COS objectives by allowing an expedited survey of the fleet to identify
additional configurations which may demonstrate an unsafe condition.
See section X.K of this preamble for further discussion regarding COS.
Proposed Sec. 108.720(b) would require the operating instructions,
maintenance instructions, and configuration control document to be made
readily available by a manufacturer to any registered owner, the NTSB,
or FAA, if requested. This requirement would ensure that operators have
the information necessary to operate the UAS safely and perform any
required maintenance. Further, the NTSB and FAA should have the ability
to review these documents to ensure compliance of UAS and verify
airworthiness acceptance, especially in the event of a safety incident
or accident.
H. Flight Data and Data Reporting (Sec. 108.725)
Under this proposal, in Sec. 108.725(a), manufacturers of the UAS
that has received airworthiness acceptance would be required to develop
and maintain a system dedicated to the collection of flight data across
all models of UAS produced by that manufacturer. This system would
actively capture and securely store flight information, encompassing,
but not limited to the data required in Sec. 108.45(a)(2) which would
include make, model, series, serial number, flight duration, altitude,
speed, location, and any incidents or anomalies recorded during flight
operations. The implementation of such a data collection system would
serve as a cornerstone for enhancing safety, facilitating detailed
post-flight analyses, and fostering continuous improvement.
Traditionally, these data collection systems are already voluntarily
implemented within the industry to analyze flight data and identify
safety
[[Page 38300]]
issues during developmental testing and to conduct accident
investigations. Many manufacturers collect and store the information
FAA proposes, driven by a blend of internal performance monitoring and
engineering practices. By requiring this practice, FAA proposal not
only aligns with current industry standards but also ensures uniformity
of data collection across all manufacturers.
Under proposed Sec. 108.725(b), manufacturers of the UAS that has
received airworthiness acceptance would be required to preserve records
of flight data for a period no less than two (2) years subsequent to
the data's acquisition. This retention policy would support
investigations in the event of incidents or anomalies, ensuring
regulatory compliance, and supporting the ongoing enhancement of safety
protocols. While UAS might be operational for periods extending beyond
two (2) years, FAA anticipates configuration adjustments, software
updates, and system advancements will render data older than two years
obsolete. These changes are likely to render historical flight data
less reflective of the current state and capabilities of the fleet.
Therefore, a two (2) year retention period is considered both practical
and sufficient for maintaining relevant and actionable flight data
records and balancing interests in data retention.
Section 108.725(c) proposes, to safeguard the privacy and security
of flight data; manufacturers of the UAS that has received
airworthiness acceptance would need to implement security measures.
These measures would need to ensure the confidentiality and integrity
of the collected data. The implementation of such security measures is
essential for protecting sensitive information from unauthorized access
or breaches. Any developed flight data standards would consider these
security measures.
Manufacturers of the UAS that have received airworthiness
acceptance would be required to grant FAA access to the collected
flight data upon request under proposed Sec. 108.725(d). This
requirement would ensure that FAA has the necessary information to
perform comprehensive safety analyses, engage in regulatory oversight,
and respond promptly to concerns or inquiries. Section 108.725(d) also
proposes the collected flight data would be provided to FAA in a manner
acceptable to FAA. Providing access to data in a format compatible with
FAA systems would streamline the process of data review and facilitates
effective communication between manufacturers and FAA, contributing to
the overall safety and efficiency of the national airspace. FAA expects
to provide guidance on acceptable methods for providing data.
I. Quality Assurance System (Sec. 108.730)
Section 108.730 proposes the UAS would need to be designed,
produced, and tested under a manufacturer-established and documented
quality assurance system to ensure that each UAS produced conforms to
its design and is in a condition for safe operation. Establishing and
documenting a quality assurance system would ensure that UAS meet
applicable design, production, and airworthiness requirements and are
manufactured and tested in accordance with identified consensus
standards in a consistent manner. Meeting the proposed quality
assurance requirements, using applicable FAA-accepted consensus
standards, would mitigate the likelihood of using obsolete design
drawings or procedures, improper materials or manufacturing techniques,
and inadequate testing procedures that could result in the UAS not
conforming to its design and jeopardize the safe operation of the UAS.
A well-documented quality assurance system would allow manufacturers or
third-party auditors to verify that the UAS is produced in accordance
with established procedures and suitable for operations in the NAS.
A single defect or error in production or maintenance can have
significant consequences, including equipment failure, accidents,
property damage, and even loss of life. A robust quality assurance
program helps to identify and prevent potential issues before they
occur. Such a quality assurance program could include regular
inspections, testing, and monitoring of aircraft and components to
ensure that they meet established quality and safety requirements of
FAA-accepted consensus standards.
A quality assurance system should include items such as product
configuration control, training, document control, change control,
supplier control, and material control as well as inspections, audits,
and identification and handling of nonconforming material. The quality
assurance system could also include a quality assurance record, which
is the permanent record of quality assurance for each UA produced by
the UAS manufacturer. While retaining its ability to inspect the
manufacturer's facility and quality assurance system under proposed
Sec. 108.745, FAA would rely on a manufacturer's DOC and the MOC cited
within as primary evidence of compliance to the requirements of Sec.
108.730 for a quality assurance system.
J. Production Acceptance (Sec. 108.735)
Prior to airworthiness acceptance and sale to an operator, the
manufacturer must conduct a production acceptance inspection and
perform testing for each UAS produced. Section 108.735(a) and (b)
proposes each manufacturer inspect and test each UAS produced under
manufacturer-established and documented production acceptance
procedures to demonstrate the UAS has no hazardous operating
characteristics or design features; and is in a condition for safe
operation. Inspection and testing are essential in validating the UAS
conformance to design standards. Performing inspection and testing
under a documented production acceptance procedure would verify that
each aircraft does not have any unforeseen hazardous flight
characteristics and would ensure that the UAS was properly constructed.
This inspection and testing would ensure no product is introduced into
the NAS before all safety issues are thoroughly addressed, thereby
preventing deployment of potentially unsafe systems. Further, this
inspection and testing would ensure that the UA's structure is of
sufficient strength for its intended operations and that the interface
with its AE is performing as intended. FAA recognizes that flight
testing every UA produced may not be necessary for every manufacturer
and production system, therefore FAA invites comment on when a
documented production acceptance procedure may allow for an evaluation
that does not include flight test to ensure the aircraft is in a
condition for safe operation.
Manufacturers would need to obtain an operating permit for flight
testing purposes prior to conducting any production testing in the NAS,
per proposed Sec. 108.470.
As stated in proposed Sec. 108.715(b)(3), the manufacturer
designates in the airworthiness DOC the specific part 108 operations
the UAS is designed to conduct. The production acceptance inspection
and test procedures required by proposed Sec. 108.735(c) would need to
further demonstrate that the UAS has been designed and constructed to
conduct any permitted or certificated operations of proposed Sec. Sec.
108.400 and 108.500 that the manufacturer designates. Production
acceptance inspection and testing would validate that each UAS is
capable of safely conducting a manufacturer-designated part 108
operation.
As part of the proposed production acceptance procedure, the UAS
[[Page 38301]]
manufacturer would conduct an inspection of the UAS to ensure that the
UAS complies with the applicable standards and is in a condition for
safe operation. A UAS that is not in a condition for safe operations
would not be eligible for airworthiness acceptance.
The inspection would be conducted prior to submission of the
airworthiness DOC, as required in Sec. 108.715(b)(13). The goal of the
inspection would be to identify issues of non-compliance that have the
potential to affect the safe operation of the UAS prior to it being
sold to an operator. To ensure the UAS complies with the applicable
standards used to demonstrate compliance with subparts G and H of part
108, FAA would expect this inspection to include a review of the
records and documents required for airworthiness acceptance.
FAA expects the inspection to include a review of the maintenance
instructions, operating instructions, and configuration control
documentation required in proposed Sec. 108.720(a)(1) through (3) for
completeness and accuracy. As part of this inspection, the manufacturer
should verify that the maintenance inspection instructions are
available for the UAS and that they apply to the make, model, series,
and serial number of the UA being inspected. In addition, the
manufacturer would confirm that the aircraft maintenance records show
compliance with all applicable UAS manufacturer's safety bulletins at
the time of declaration and a verification that the maintenance
instructions include procedures for reporting in-service safety issues
to support proposed Sec. 108.740, as described in section X.H of this
preamble, Flight Data and Data Reporting, in a manner acceptable to
FAA. For a UAS that has a type-certificated product or article
installed, the inspection would ensure any applicable Airworthiness
Directives for that product or article are complied with by the UAS
manufacturer before submitting an airworthiness DOC. Finally, the
manufacturer would review the configuration control documentation to
ensure the UAS's make, model and serial number conform to the
manufacturer's approved configuration, as required by proposed Sec.
108.720(a)(3).
FAA anticipates that industry would develop acceptable and
appropriate consensus standards to comply with the performance-based
requirements in proposed Sec. 108.735. Production acceptance
procedures would allow a UAS buyer to receive a complete UAS that
conforms to the manufacturer's design data and would provide the
manufacturer with an opportunity to detect and fix any missing, broken,
misaligned, or improperly installed components or systems and would
ensure all documents required by proposed Sec. 108.720 are complete
and accurate.
K. Continued Operational Safety Program (Sec. 108.740)
In the context of part 108, COS is an oversight program consisting
of audits, evaluations, education, and accident/incident
investigations, used to ensure UAS in-service continue to meet the
safety requirements, standards, and regulations for airworthiness
acceptance. A COS program is the method a manufacturer uses to support
in-service safety following production acceptance and entry into
service of a UAS.
FAA considers the implementation of a COS program by UAS
manufacturers essential to maintaining the safety of part 108 UAS, the
NAS, and people that may be impacted by UAS operations on the ground.
Therefore, proposed Sec. 108.715(b)(11) proposes that a manufacturer
must declare that it will support the UAS by implementing and
maintaining a documented COS program as required in proposed Sec.
108.740.
Proposed Sec. 108.740(a) requires the manufacturer to implement
and maintain a documented COS program as declared in the DOC. This COS
program would need to be in accordance with the specified FAA-accepted
consensus standard.
Section 108.740(b) proposes that the COS program would need to
address monitoring and resolution of in-service safety issues and
identified non-compliance with subparts G and H of part 108. This must
include provisions for the issuance of safety bulletins from the
manufacturer to all owners and include a process for notifying FAA and
all owners of the UA model at issue of safety issues and noncompliance,
including their planned resolution. This must also include a process
for providing advance notice to FAA and all owners of the UAS in
question of a discontinuance or provider change of the COS program,
which is essential for ensuring uninterrupted coverage for a
manufacturer's fleet in service. FAA anticipates that the notification
of safety issues to the owners could be achieved through means such as
a manufacturer's website or through a product registration process with
the manufacturer.
A well-documented COS program would be utilized by the manufacturer
to effectively monitor and resolve in-service safety-of-flight issues.
When such monitoring identifies a safety issue, manufacturers would be
required to take appropriate action to resolve those issues, such as
the issuance of safety bulletins to address unsafe conditions for their
products.
Lastly, proposed Sec. 108.740(c) would require manufacturers of
the UAS that has received airworthiness acceptance to report any
identified hazard involving their UAS models to FAA within 10 calendar
days of the manufacturer becoming aware of the hazard. Such reports
should include pertinent flight data to aid in the investigation and
mitigation of potential safety risks, thereby enhancing the safety of
UAS operations. While FAA is proposing that operators will be reporting
incidents and accidents to the manufacturer, analysis of that flight
data by a manufacturer may reveal previously unidentified hazards.
The combined requirements in proposed Sec. 108.740 would
facilitate communication of safety-of-flight issues to the community
and would enable subsequent owners and operators to address safety-of-
flight issues. Reporting safety-of-flight issues would also assist FAA
in discovering product hazards, compliance issues, and identifying
risks of injury. A manufacturer of the UAS that has received
airworthiness acceptance reporting would be a timely and effective
source of information because manufacturers often learn of potential
product safety problems at an early stage of the product's life cycle.
Following a discovery of noncompliance, FAA proposes in Sec.
108.740(b)(3) the manufacturer of the UAS that has received
airworthiness acceptance must develop a process for notifying FAA and
all owners of all safety issues and noncompliance, including their
planned resolution. The notification to FAA would describe the nature
of the noncompliance and how the manufacturers of the UAS that has
received airworthiness acceptance plans to address it.
Notification to owners of that UAS is a critical step in ensuring
COS. Such notification could take the form of a notice on a
manufacturer's website, electronic notification to owners who have
registered the UAS with the manufacturer of the UAS that has received
airworthiness acceptance, or an update to the software used for the
UAS, which advises the operator of the change in status. Manufacturers
should exercise diligence to ensure the intended audience receives
communications involving any safety-of-flight issues that would impact
the UA part 108 operations.
Routine BVLOS operations of UAS of various sizes and capabilities
for various
[[Page 38302]]
operational purposes are likely to reveal safety issues related to
design, maintenance, and training that require resolution to ensure the
safety of the NAS. Manufacturers supporting their UAS designs through
implementation of a COS program are more likely to identify potential
safety issues and implement effective strategies for resolving the
safety issue before becoming prevalent throughout the fleet of UAS,
increasing the overall safety of the NAS.
L. Inspections and Audits (Sec. 108.745)
While FAA would rely on a manufacturer's DOC as evidence of
compliance to the design, production, test, and inspection requirements
of subparts G and H of part 108, FAA proposes in Sec. 108.745(a) that
each manufacturer of the UAS that has received airworthiness acceptance
must, upon request, allow FAA to inspect its facilities, technical
data, reports, any manufactured UA in their possession, and any other
necessary information to verify compliance with this subpart. While FAA
will rely on the DOC, there may be circumstances, such as incidents or
accidents, that warrant FAA to closely review the manufacturer's
facilities or information. This access enables FAA to take the actions
necessary to verify unsafe conditions have been properly addressed or
respond to an accident or incident. In addition, this access enables
FAA to ensure compliance with the part 108 airworthiness requirements.
Section 108.745(b) further proposes that any manufacturer of the
UAS that has received airworthiness acceptance must allow FAA to
witness tests to determine compliance with part 108. Due to the rapidly
evolving nature of the UA industry, consensus standards may require new
test methodologies. In an effort to verify that the methods of
compliance (in this case, tests) meet the airworthiness requirements,
FAA may require access to, among other things, witness these tests,
evaluate their results, conduct oversight, and audit compliance with
applicable standards.
Section 108.745(c) proposes that any manufacturer of the UAS that
has received airworthiness acceptance must submit to independent
inspections or audits by voluntary consensus standards bodies, or their
delegates, who is standard the manufacturer used in submittal of the
DOC, in accordance with an FAA-accepted MOC. Further, Sec. 108.745(d)
proposes that the manufacturer of the UAS that has received
airworthiness acceptance must, upon request, make available the results
of any independent inspections or audits to FAA.
While FAA retains the ability to inspect and witness tests,
independent inspections and audits by voluntary consensus standards
bodies are also necessary. Independent inspections or audit programs
ensure provisions of the consensus standard comply with regulatory and
procedural requirements. Submitting to independent audits ensures
standards being used as MOCs are being applied in a way intended by the
voluntary consensus standards bodies. Independent audits also allow a
voluntary consensus standards body to assess the accuracy and
effectiveness of standards being used as an MOC. If shortfalls are
found in the standards themselves or in the way they are being used,
the voluntary consensus standards bodies will have the information
needed to effectively update their standards to ensure compliance with
the regulations are being satisfactorily demonstrated.
By providing an impartial evaluation of a manufacturer's practices,
and adherence to regulatory standards, these audits unveil insights
into risk management, potential inefficiencies, and areas for
improvement. This provides assurance that manufacturers comply with the
requirements of subparts G and H. Independent audits enhance the
quality of declarations of compliance and safeguard the interests of
all stakeholders, which contributes to the overall safety of flight
operations. Providing access to the results of these independent audits
and inspections to FAA ensures that FAA can take any necessary
corrective action regarding either an accepted standard or an
airworthiness acceptance.
M. Design Changes (Sec. 108.750)
Incorporating new design elements may require a change to the UA or
AE design that already has FAA airworthiness acceptance. Section
108.750(a) proposes that only the manufacturer of the UAS that has
received airworthiness acceptance may make design changes to the UAS.
Design changes are considered changes to the technical data that
defines the UAS design, configuration, or performance. It is possible
that a manufacturer would become aware of the need for design changes
from a variety of sources (such as incidents, accidents, market
surveys, etc.). The manufacturer must evaluate proposed design changes
for effects on compliance prior to implementation of the design change.
FAA expects voluntary consensus standards organizations to develop
standards to provide a process for demonstrating that the change and
areas affected by the change comply with the applicable requirements of
part 108. Only the manufacturer has the necessary UAS technical data to
determine compliance with the design, production, and test requirements
of subparts G and H and is the entity that submitted the DOC with those
requirements.
Any design change must result in a configuration that is shown to
be compliant to the requirements of this part. To ensure design changes
to the UAS are implemented properly by the manufacturer, proposed Sec.
108.750(b) states any design change to a UAS with FAA airworthiness
acceptance would need to have demonstrated compliance with the
requirements of subparts G and H using an MOC.
Proposed Sec. 108.750(c) requires all documentation affected by
the design change be updated to maintain control of the configuration
following the design change. Affected documentation should include the
operating instructions, maintenance instructions, and the configuration
control document. The manufacturer of the UAS that has received
airworthiness acceptance should evaluate the level of the design change
and determine how any planning, implementation, and supporting
documentation will be affected by the change.
N. Repairs and Alterations (Sec. 108.755)
Section 108.755(a) proposed that the manufacturer of the UAS that
has received airworthiness acceptance must authorize any repair or
alteration under Sec. 108.625. The manufacturer is expected, pursuant
to proposed to proposed Sec. 108.755(b), to evaluate the details of
any proposed repair or alteration for effects on compliance with the
applicable requirements of subparts G and H and must not authorize any
repair or alteration that does not result in continued compliance with
the applicable requirements. FAA maintains that under part 108, the
manufacturer is uniquely positioned as the entity with comprehensive
knowledge of the system and access to proprietary information, making
them the only qualified entity to confirm that conformance to subparts
G and H remains intact. This approach guarantees that any repairs or
alterations uphold the UA's airworthiness by consistently adhering to
the requirements specified in subparts G and H. Further, requiring the
manufacturer of the UAS that has received airworthiness acceptance to
authorize repairs or alterations could also act as a deterrent to the
operator in making beneficial modifications or using third-party
components that might improve performance or cost-efficiency
[[Page 38303]]
but result in non-compliance with regulatory requirements. FAA invites
comments on this approach and suggestions for potential alternatives.
Where a UAS undergoes a repair or alteration that affects the
flight characteristics or demonstrated reliability, FAA proposes Sec.
108.755(c) to ensure a UAS is tested in accordance with the testing
requirements of subpart H. FAA anticipates that certain repairs and
alterations will necessitate comprehensive testing, whereas others may
demonstrate compliance through alternative means, such as analysis or
bench testing. For example, a repair to a damaged fuselage or wing
assembly may have different testing requirements then a software
alteration.
Since the effects of a repair or alteration can vary, FAA cannot
list all possible repairs and alterations that will affect the flight
characteristics or reliability. However, a repair or alteration that
does affect flight characteristics or reliability could fail to conform
with subpart G and H. FAA expects industry to identify when additional
developmental and function and reliability testing would be necessary
to demonstrate compliance with subparts G and H in any MOC proposed for
FAA acceptance.
O. Record Retention (Sec. 108.760)
Section 108.760(a) proposes that each manufacturer who submits a
DOC would need to retain and make available to FAA, upon request, all
supporting information used to demonstrate compliance with the
requirements of subparts G and H. Supporting information may include,
but would not be limited to, relevant documentation such as test plans,
test results, compliance data, flight logs, and any other technical
data used to show compliance.
Technical data could consist of the drawings and specifications
necessary to define the configuration and the design features of the
UAS, information on dimensions, materials, software, and processes
necessary to define the structural strength of the UAS, the list of
flight essential parts including maintenance and inspection
instructions or life limits, and any other data necessary to determine
airworthiness or noise characteristics. In the event of a safety issue,
or if FAA initiated an action to address a compliance issue, this
information would be critical to determine the cause, scope, and
severity of the safety issue or non-compliance.
Section 108.760(b) further proposes that any manufacturer who
submits a DOC for a UAS must retain the information described in
proposed Sec. 108.760(a) for two (2) years following the cessation of
support for the COS of the UAS listed on the DOC. The ability to access
detailed records, particularly regarding compliance and configuration
control, enables swift identification and resolution of potential
safety concerns or compliance issues. By providing FAA with access to
this data, any investigation, audit, or review can be conducted more
efficiently, ensuring rapid responses to emerging safety concerns, and
maintaining the safety of the NAS. The 2-year retention policy conforms
to the precedent set forth with FAA's Operations of Small Unmanned
Aircraft Systems Over People final rule published January 15, 2021,
which required a person who submits a DOC to retain and make available
to FAA all supporting information used to demonstrate compliance for
two years after the cessation of production in Sec. 107.165. Since FAA
expects UAS with airworthiness acceptance under part 108 will be used
more than two (2) years following the end of production, FAA proposes
for part 108 that the record retention period would extend two years
from when the UAS is no longer supported by the manufacturer's COS
program.
P. Rescission (Sec. 108.765)
Compliance is an ongoing process. As such, FAA maintains its
authority to continuously evaluate that an MOC satisfies the applicable
regulatory requirements and may, as a result of an audit, data
analysis, reports from operators, or other information, rescind
acceptance of an MOC.
Use of voluntary consensus standards bodies' processes to develop
MOC to performance-based regulations provides both FAA and industry
with a means to rapidly adapt to changing technology and better respond
to market conditions while continuing to enable safe operations within
the NAS. However, there is no assurance that a MOC, once accepted, will
continue to enable safe operations within the NAS. As such, Sec.
108.765(a) proposes a regulatory provision allowing FAA to rescind a
MOC.
Under this proposal, FAA would exercise its authority to rescind
its acceptance of a MOC if FAA determines that a MOC does not meet any
or all of the requirements of subparts G and H. FAA does not anticipate
exercising this option frequently, as FAA typically collaborates with
industry in the development of acceptable standards. If FAA determines
a standard no longer meets the requirements of this rule, FAA would
rescind the acceptance of the MOC by publishing a notice of rescission
in the Federal Register. An identified safety issue, stemming from a
MOC that is deficient, could lead to a non-compliance resulting in UAS
incidents or accidents. Therefore, FAA finds it critical that a process
for rescinding acceptance of a MOC is included in proposed 108 rule to
ensure all FAA-accepted MOC provide the most comprehensive methods of
complying with the requirements of subparts G and H. Rescinding a MOC
for any potential hazard or noncompliance with subparts G and H does
not automatically lead to rescinding the airworthiness acceptance of a
UAS, resulting in the UAS being ineligible for flight operations. The
decision to rescind a MOC depends on the potential effects on safety of
flight, and each case will be handled individually. If a MOC proves
insufficient, FAA may proceed by rescinding airworthiness acceptances
which relied on the rescinded MOC for compliance. In addition,
manufacturers of UAS whose airworthiness acceptance have been
rescinded, based on a rescission of a MOC, can revise their design to
comply with an FAA-accepted MOC and submit a new DOC.
As routine BVLOS operations under part 108 occur, FAA may receive
information of a safety issue or non-compliance through audits, data
analysis, reports, from UAS operators and manufacturers, or other
sources. To ensure UAS with airworthiness acceptance continue to meet
design and performance requirements, FAA proposes procedural rules to
govern rescission of FAA airworthiness acceptance. Section 108.765(b)
identifies the reasons FAA may rescind a manufacturer's airworthiness
acceptance for any non-compliance or safety concern related to the
design, manufacture, or performance of any UAS declared compliant with
subpart G and subpart H. Proposed Sec. 108.765(c) states that the
proposed rescission process would include FAA notifying the
manufacturer of the UAS that has received airworthiness acceptance of
the proposed rescission. Section 108.765(c)(1)-(4) proposes that the
notice would set forth the Agency's basis for the proposed rescission
and provide the manufacturer 30 calendar days to submit evidentiary
information to refute the proposed rescission. FAA would initiate
rescission of an airworthiness acceptance if the manufacturer's UAS no
longer complies with the design and performance requirements of subpart
G and subpart H, or if FAA finds any information provided by the
manufacturer on their
[[Page 38304]]
DOC is no longer true. The objective of the proposed rescission is to
inform the manufacturer of the safety issue or non-compliance, provide
FAA's basis for the proposed rescission, and provide an opportunity for
the manufacturer to resolve it. An unresolved safety issue or non-
compliance has the potential to cause incidents or accidents leading to
possible injury. A manufacturer of the UAS that has received
airworthiness acceptance who fails to resolve or respond to FAAs
proposed rescission will have their FAA airworthiness acceptance
rescinded, which rescinds airworthiness acceptance of the UAS. A UAS
with a rescinded airworthiness acceptance is no longer eligible to
conduct part 108 operations; therefore, it is in the manufacturer's
best interest to either refute or resolve the non-compliance or safety
issue within the 30-day period proposed in Sec. 108.765(c)(2) to the
satisfaction of FAA to avoid rescission of the airworthiness acceptance
of the UAS. The 30-day period is established based on public comment to
the Operations Over People rule, and FAA has determined the same
rationale applies here.
Section 108.765(d) would also propose an emergency rescission
process for an FAA airworthiness acceptance. Prior to rescission of
airworthiness acceptance, FAA would typically initiate the notification
process in Sec. 108.765(c) with the manufacturer of the UAS that has
received airworthiness acceptance. However, if FAA determines that an
emergency exists and public safety requires an immediate rescission of
an airworthiness acceptance, FAA would be able to exercise its
authority under 49 U.S.C. 46105(c) to issue an emergency order
rescinding an airworthiness acceptance.
Under these circumstances, rescission would go into effect
immediately, without FAA initiating the notification process or the
rescission procedures previously described. The order would remain in
effect until the basis for issuing the order no longer exists. However,
an emergency order would be considered a final agency decision; as
such, a manufacturer may appeal the decision.
XI. Design and Testing Requirements for Airworthiness Acceptance
(Subpart H)
A. General (Sec. 108.800)
Subpart H includes FAA's proposal related to defining performance-
based design, production, and airworthiness requirements for UAS
operating under this part. Subpart H is intended to provide clear
direction to voluntary consensus standards bodies regarding consensus
standards they will propose as a MOC to meet regulatory requirements.
FAA expects that this would facilitate more rapid development of these
consensus standards. It would also result in more accurate and
comprehensive consensus standards that are better able to address the
design, production, and airworthiness requirements for airworthiness
acceptance of UAS.
To receive airworthiness acceptance under part 108, the
manufacturer would be required to comply with all the requirements in
subparts G and H. The only way for a manufacturer to ensure compliance
with the airworthiness design and performance requirements in part 108
would be to comply with a consensus standard developed by a voluntary
consensus standards body and accepted by FAA as a MOC. For compliance
with noise requirements, manufacturers would be able to comply through
FAA-approved consensus standards or other procedures specified in part
36. Manufacturer compliance with the performance-based design,
production, and airworthiness requirements proposed in subparts G and H
is necessary to ensure the safety of a wide range of UAS that may be
accepted under this proposal. FAA expects that compliance with these
proposed requirements would reduce the occurrence of loss of flight and
loss of control, resulting in UA that are safe for their intended
operations. Loss of flight means a UA's inability to complete its
flight as planned, up to and through its originally planned landing.
Loss of flight includes scenarios where the UA experiences controlled
flight into terrain, obstacles, or any other collision, or a loss of
altitude that is severe or non-reversible. Loss of control means an
unintended departure of an aircraft from controlled flight. It includes
control reversal or an undue loss of longitudinal, lateral, and
directional stability and control. It also includes an upset or entry
into an unscheduled or uncommanded attitude with high potential for
uncontrolled impact with terrain. A loss of control means spin, loss of
control authority, loss of aerodynamic stability, divergent flight
characteristics, or similar occurrence, which could generally lead to
crash. These definitions for ``loss of flight'' and ``loss of control''
are consistent with airworthiness criteria used during the Durability
and Reliability type certification process.\133\
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\133\ Airworthiness Criteria: Special Class Airworthiness
Criteria for the Matternet, Inc. M2 Unmanned Aircraft and
Airworthiness Criteria: Special Class Airworthiness Criteria for the
Percepto Robotics, Ltd. Percepto System 2.4 Unmanned Aircraft.
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FAA proposes Sec. 108.800 which identifies the purpose of subpart
H and identifies what UAS are eligible for airworthiness acceptance. To
be eligible for airworthiness acceptance, as proposed in Sec.
108.800(b), the UAS would need to meet three criteria. First, the UAS
would need to meet the requirements of subparts G and H of part 108.
Second, the UA would not be able to be an airship. Third, the UA cannot
be designed to allow for any person on board during operations.
The first criteria is self-explanatory in that the UAS needs to
meet the requirements of subparts G and H. This requirement mitigates
common hazards associated with UAS operations and ensures a design that
can operate safely in the NAS. This also ensures that the UAS complies
with the noise standards applicable to that UAS.
Subpart H would not allow for airships to be eligible for
airworthiness approval under part 108. This is because UA operating
under part 108 would be required to cede right-of-way to other aircraft
which are broadcasting ADS-B Out, per proposed Sec. 108.195. The low
speed and relatively long response times to control inputs make it
unlikely that an airship would be able to maintain safe separation by
avoiding detected aircraft. Finally, subpart H does not allow an
aircraft to be designed for carriage of crew or passengers. FAA wished
to preclude any manufacturer from using part 108 to circumvent the
experimental airworthiness certification process, under part 21, for
passenger carrying aircraft. If a person is aboard the aircraft, the
determination and mitigation of risk changes significantly. To allow
for operations as written in this part while maintaining the level of
design and operational rigor defined in part 108, no person can be
allowed on a UA operating under part 108.
B. Size, Weight, and Speed (Sec. 108.805)
FAA proposes Sec. 108.805 which identifies size, weight, and speed
design limitations for UA. To be able to obtain an airworthiness
acceptance the UA design would need to meet three criteria. First, the
UA's wingspan or lateral span would not be able to exceed a lateral
span of 25 feet. Second, the UA would not be able to exceed a maximum
weight of 1,320 pounds (600 kilograms) gross weight, including anything
attached to or carried by the aircraft. Third, the UA would not be able
to
[[Page 38305]]
exceed 87 knots ground speed during normal operations.
When determining the size of UA that can safely operate in the NAS,
the risk to persons and property on the ground, or ground risk, must be
considered. The ground risk of an aircraft is determined by assessing
the combination of aircraft reliability and consequence of failure. To
limit the maximum consequence of failure, the total crash area of the
aircraft must be limited. A maximum wingspan or lateral span of 25 feet
was selected to limit the number of people within a potential crash
area, thereby limiting ground risk. FAA is leveraging industry
standards such as ASTM F3442/F3442 and RTCA MOPS for ACAS sXu when
selecting the 25 feet maximum wingspan or lateral span. This span would
provide consistent boundaries when defining DAA parameters.
As discussed in section X.A, FAA considered the BVLOS ARC
recommendation and part 107 operations when determining weight and
speed design limits for airworthiness acceptance under part 108. The
maximum gross weight of an aircraft, including anything attached to or
carried by the aircraft, operating under part 108 would be set at 1,320
pounds (600 kilograms), within the BVLOS ARC recommendations and JARUS
limitations based on maximum kinetic energy.\134\ Likewise, under part
107, UAS maximum operational speed is limited to 87 knots or less
during normal operations. Positive service experience under both part
107 and under BVLOS operating exemptions has been gained for aircraft
operating at ground speeds up to 87 knots. Based on this experience,
and lacking data on the effects of increased speeds, FAA has determined
87 knots or less would be an appropriate limitation for UAS operating
under part 108. A manufacturer may seek regulatory relief from any of
these UA criteria.
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\134\ JAR-DEL-SRM-PDRA-05, Pre-Defined Risk Assessment, PDRA-05,
for Aerial Work Operations.
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C. Simplified User Interaction (Sec. 108.810)
Simplified user interaction (SUI) aims to make flying safer,
simpler, and more accessible by using automation to simplify UA
operation for flight coordinators while maintaining safety. SUI
automates the tasks that are most error prone, need constant practice,
and can distract the flight coordinator. This automated approach offers
safety and economic benefits.
SUI is intended to streamline operations, reduce loss of control
incidents, and eliminate the need for advanced flight training. Based
on granted exemptions and VLOS operations under part 107, FAA
recognizes the increased use of SUI by industry through these existing
operating approvals.\135\ The proposed SUI requirements leverage
current design practices to further automate UAS operations. FAA is
embracing these technologies as the next path forward in integrating
UAS into the NAS.
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\135\ Exemption 18339D, 19111B, 19398A, 21097, and 22003.
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Proposed Sec. 108.810 would require design and performance
requirements for UAS to exhibit highly automated features and
functions. This requirement is necessary for BVLOS as it would enhance
the safety of UAS operations by replacing direct manual control of the
UA with automated controls. Flight controller access is limited to
high-level inputs, which are implemented by the automated control
system of the UA. SUI is especially important for enabling one-to-many
flight operations as the task of actively controlling multiple aircraft
simultaneously would require exceptional piloting skill.
This requirement for SUI features would not permit ``pilot in the
loop'' designs that rely on manual control where the flight coordinator
is responsible for providing inputs through devices such as rudder
pedals, a stick, yoke, or throttles, to include hand controllers with
joysticks that are popular among hobbyists. Pilot in the loop controls
such as push buttons, knobs, and touch screens would only be permitted
to enable the flight coordinator to execute simple commands, such as
changes in airspeed, altitude, and heading. Proposed Sec. 108.810(a)
would require consistent and predictable controllability, stability,
and maneuverability using automated flight controls, not relying on
manual flight control inputs. This consistency and predictability
should be demonstrated through repeatable, smooth transitions between
turns, climbs, descents, and level flight throughout the flight
envelope and operating environment limits. Designs that demonstrate
consistency and predictability throughout the flight envelope will
enable accurate assessment of performance and reliability during
testing. Further, proposed Sec. 108.810(a) would require that
controllability, stability, and maneuverability be met at all flight
and ground loading configurations within the UA's prescribed weight
limits. Changes to flight and ground load configurations, such as
changes to attitude, releasing payload, transitioning from VTOL to
forward flight, should not cause UA controllability, stability, and
maneuverability to be inconsistent or unpredictable. Furthermore, the
UAS's automated flight envelope and path protection systems should be
taken into consideration when analyzing (including test conditions)
compliance to the controllability and maneuverability requirements. The
UA should have the necessary flight stability to prevent loss of flight
during normal, abnormal, and emergency procedures shown by natural or
artificial means, or a combination of both. Some examples of abnormal
or emergency scenarios include collision avoidance, aborted missions,
power system failures, and forced landings.
Proposed Sec. 108.810(b) would require UA designs that are
resistant to operation outside of the flight design envelope during any
phase of flight. To be resistant to operations outside of the flight
design envelope, the UAS should have the capability to maintain dynamic
stability, regardless of external forces, under all foreseeable
conditions, including failure conditions. Designs that would allow an
aircraft to operate beyond its demonstrated limits could result in loss
of control which could jeopardize the continued safe flight and landing
of the UA.
Proposed Sec. 108.810(c) would require prevention of loss of
control of the UA due to degradation or nonavailability of external
services, systems, operator input, or signals. The UAS should have
capabilities and necessary features to control the aircraft in the case
of a loss of external services, such as third-party services, used in
communicating, controlling, or providing system inputs to the UA. The
design must incorporate contingencies accounting for loss of services
or functions that ensure safety of the NAS and people on the ground.
Proposed Sec. 108.810(d) would require the UAS to have a means to
discontinue flight as soon as practicable without creating a safety
hazard. An operator may need to discontinue or suspend a flight for a
variety of reasons such as unexpected weather conditions, a system
malfunction, or the presence of other hazards such as a flock of birds
or an aircraft near, or intersecting, the route of flight.
Discontinuing or suspending a flight may include options such as an
immediate landing, a return flight to the UA's point of departure, a
diversion to an alternate landing site, a course change, or in-place
hover until any hazards have passed. The UAS should be equipped with
features that allow for the flight controller to
[[Page 38306]]
interrupt, abort, or command an emergency landing during all phases of
flight. This capability to discontinue flight must provide the ability
to have the aircraft take appropriate action as soon as practicable
while maintaining safety and not creating a possible additional safety
hazard. The capability of discontinuing flight would ensure that
potential damage to other aircraft, property, or people is prevented
should an adverse situation arise, such as erroneous behavior of the
UA. The flight discontinuation capability would allow for the UA to be
redirected by the operator, in the event of an emergency, as when
called upon by national and local airspace governing agencies.
To prevent a safety hazard associated with unnecessary landings,
any design which discontinues flight should prevent inadvertent
activation. It should also be designed such that false positives,
incorrectly entered data, and other human errors do not cause
inadvertent activation.
D. Signal Monitoring and Transmission (Sec. 108.815)
Proposed Sec. 108.815(a) would require that the UA be designed so
that it can receive from and transmit to AE all information that is
required for continued safe flight and operation. The ability of a UA
to engage in two-way communication with its AE is important for the
safety of flight operations. This bidirectional flow of information
enables real-time flight adjustments, which can be essential given the
dynamic nature of the NAS. It allows UAs to respond promptly to changes
in air traffic, no-fly zones, or adverse weather conditions. Continuous
communication also permits remote monitoring and control by flight
coordinators, who can proactively address potential issues, maintaining
the UA's optimal condition and preventing safety hazards. Maintaining a
two-way communication between UA and AE is foundational to ensuring
their responsiveness, adaptability, and full control throughout the
flight. Examples of such information may include position and location
information, weather data, or aircraft health status.
Proposed Sec. 108.815(b) would require the UAS design to execute a
safe predetermined action in the event of a link timeout. During lost
link events it is important for the UA to respond with an appropriate
safe predetermined action, thereby minimizing risks to other users of
the NAS during flight operations. This requirement ensures that the UA
is equipped to handle such disruptions safely and efficiently. The
operating instructions in proposed Sec. 108.720 would address all
options and capabilities of the UA for contingency responses. In the
proposed MOC to these requirements, FAA expects industry to define and
standardize safe predetermined actions such as return to home, loiter,
continue flight, etc. a UA could execute during a link timeout event.
There may be multiple acceptable safe predetermined actions, but the
predetermined actions should be standardized based on the category of
permitted or certified operation. Further, FAA also expects industry to
define the link timeout metric as part of any proposed MOC, as it may
be variable based on the type of permitted operations and associated
ground and air risks. As part of this link timeout metric, FAA expects
both uplink and downlink timeouts to be addressed.
E. Position, Navigation, and Timing (Sec. 108.820)
Proposed Sec. 108.820 states that the UA would need to be capable
of sustaining position, navigation, and timing with accuracy to
maintain a safe distance from other aircraft in the airspace in which
the UA operates. Position, navigation, and timing (PNT) work together
as an integrated system to support safe UA operation within the NAS. A
UA typically determines its position by receiving signals from
satellites or ground-based systems, navigates by calculating its path
and movements relative to that position, and uses precise timing to
synchronize these processes. Accurate PNT is necessary for effective
conformance monitoring or collision avoidance systems.
PNT data from a UA supports the safe coordination of airspace with
other users of the NAS. Discrepancies in the UA's navigational data can
complicate the process of deconflicting airspace, increasing the risk
of close encounters with other NAS users. Furthermore, inaccuracies may
lead other users, particularly those utilizing UTM systems, to
underestimate the proximity of a UA, potentially resulting in unsafe
situations. The UAS must further represent its PNT with a minimal
margin of error because a UAS that incorrectly represents its position
poses a heightened risk of colliding with other aircraft or obstacles.
By ensuring PNT accuracy, a UA can maintain safe distance from other
NAS users and facilitates a well-coordinated flight environment.
F. Collision Avoidance (Sec. 108.825)
Proposed Sec. 108.825 will require all UAS obtaining airworthiness
acceptance to have the capability to avoid aircraft in accordance with
proposed Sec. 108.195. Proposed Sec. 108.195 provides the operating
requirements for avoiding collisions with aircraft departing from or
arriving at an airport or heliport or equipped and broadcasting their
position using ADS-B Out or electronic conspicuity equipment.
Typically, a collision avoidance system should incorporate two
aspects. First, the ability to identify a hazard should have the
fidelity and range to identify heading, position, and airspeed for
aircraft with sufficient time to allow action to be taken to maintain
safe distance. Second, the UA should have flight performance
characteristics throughout its documented flight envelope and operating
environment limitations that are sufficient to maintain safe distance
from those aircraft.
Providing a means of detecting aircraft is an important component
in avoiding midair collisions. Any procedures associated with collision
avoidance must be contained in the operating instructions required by
Sec. 108.720(a)(1).
G. Anti-Collision Lighting Requirements (Sec. 108.830)
Proposed Sec. 108.830(a)(1) and (2) would require installation of
anti-collision lighting, which, when illuminated, must be visible for
at least 3 statute miles when operating at night. This intensity is
aligned with current manned aviation practices and based on positive
history in manned aviation, this intensity supports collision avoidance
with aircraft not equipped with ADS-B Out. This requirement also aligns
with the anti-collision lighting requirement in 107.29(b) for small UA.
Proposed Sec. 108.830(a)(3) would require that the anti-collision
lights need to have a flash rate, colors, and fields of coverage that
enhance visibility. Establishing flash rates, colors and fields of
coverage would enhance the visibility of UA for other aircraft
operating in the NAS. FAA is proposing that these parameters remain
performance-based so adequate adjustments to the parameters can be made
as technology develops to enhance visibility.
Consensus standards bodies should define consistent parameters for
anti-collision lights to identify UAS operating in the airspace,
distinguish from other lights in the area such as cell phone towers and
streetlights, and allow for a safe distance to be maintained. These
lights would serve as a key safety feature to increase the visibility
of UA to other aircraft, pilots, and air traffic controllers in the
vicinity. This enhanced visibility helps to prevent midair collisions,
close encounters, and
[[Page 38307]]
other incidents that could endanger both UA and manned aircraft
operating in the same airspace. By providing a clear indication of the
UA's presence, position, and trajectory, lighted anti-collision
lighting enables other airspace users to maintain safe distance.
Section 108.830(b) proposes the design may allow for the
deactivation or reduction of intensity of the anti-collision lights in
accordance with proposed Sec. 108.250(c). Allowing the operator to
deactivate or adjust the intensity of anti-collision lighting is based
in safety. In diverse UAS operational environments, full-intensity
lighting can, at times, be counterproductive. For instance, in foggy
conditions, intense lighting may cause glare, posing risks to other
pilots. Similarly, during specialized operations like nighttime flights
in populated areas or near wildlife, a deactivation or reduction of
intensity can prevent undue disturbances.
H. Position Lighting Requirements (Sec. 108.835)
Section 108.835 proposes that UA with a lateral span of at least 96
inches would need to be equipped with position lights that meet certain
specifications or would need to have operating instructions that
include a limitation prohibiting night operations. Position lights
serve a key role in ensuring an aircraft's visibility, allowing other
airspace users to accurately discern its location, orientation, and
trajectory during night hours. Without these lights, the risk of
collisions increases, as the ability for visual identification and
spatial awareness among pilots and operators can be compromised. The
requirements proposed in Sec. 108.835 are consistent with manned
aviation requirements and would ensure UAS position lighting standards
match all other aircraft in the NAS.
Section 108.835(a) proposes that, to ensure their effectiveness,
the installation of left and right position lights would be required on
both sides of the aircraft. These lights would need to be positioned as
far apart as possible to maximize their visibility. When the aircraft
is in its normal flying position, the red light would be on the left
side, while the green light would be on the right side. This
arrangement would help pilots and other airspace users identify the
aircraft's direction and orientation during flight. FAA suggests that
for UA with a lateral span of less than 96 inches it would be
impractical to differentiate red and green position lights from each
other, complicating the determination of the direction of travel. This
could limit a pilot of a manned aircraft's reaction time, potentially
not allowing adequate time for corrective measures to prevent a
collision. FAA invites comments related to the lateral span lighting
proposal.
In addition to the left and right position lights, Sec. 108.835(a)
proposes to require a white light mounted on the aft portion of the
aircraft or on the wingtip. The rear position light enhances the
aircraft's visibility from behind, ensuring that other airspace users
can maintain proper situational awareness and avoid potential
collisions.
By adhering to these positioning and color requirements, which are
common to most aircraft operating in the NAS, part 108 aircraft can
contribute to a safer, more coordinated, and efficient operational
environment for all users in the airspace. Section 108.835(b) proposes
that, if an aircraft is not equipped with position lights, an operating
limitation prohibiting night operations would need to be included in
the operating instructions in proposed Sec. 108.720(a)(1).
Implementing such a limitation in the operating instructions ensures
clear communication of operational boundaries. This operating
limitation aims to maintain a high standard of safety in night flying
conditions, safeguarding not only the UA but also the overall airspace
for other users.
I. Power Generation, Storage, and Distribution System (Sec. 108.840)
The power generation, storage, and distribution system in a UAS
plays an important role in its overall functionality and safety. This
includes powering essential flight control systems, navigation aids,
communication devices, associated elements, and any payload-specific
equipment. The integrity of this system is vital for continuous, safe
flight operations, as it ensures that all components receive the
necessary power to function correctly throughout the flight. Therefore,
proposed Sec. 108.840(a) would require that the UAS be designed to
provide power for all connected electrical loads.
Proposed Sec. 108.840(b) would require that the power generation,
storage, and distribution system be able to ensure that no single
failure or malfunction of this system would result in loss of flight or
loss of control. This requirement emphasizes the necessity for an
electrical system designed with redundancies and safeguards to prevent
or minimize the impact of failures or malfunctions. By ensuring the
reliability of the power system, the UAS is better equipped to maintain
safe operation, even in the face of unexpected failures, thereby
preventing loss of flight, loss of control, or compromising safety.
J. Propulsion System (Sec. 108.845)
Section 108.845(a) proposes that the propulsion system would need
to have the necessary reliability, durability, and endurance for safe
flight without failure, malfunction, or excessive wear, throughout the
expected life cycle of the propulsion system. A propulsion system
failure or malfunction can lead to a sudden loss of thrust or lift,
which is essential for maintaining the aircraft's forward motion and
altitude. Failure of the propulsion system could result in loss of
flight or loss of control. A reliable propulsion system with the
durability and endurance throughout the expected life cycle reduces
loss of flight occurrences and ensures safety of persons and property
on the ground and other NAS users.
Section 108.845(b) proposes that the propulsion system would need
to be designed not to exceed safe operating limits under normal
operating conditions. Normal operating conditions and operating limits
would be defined by the manufacturer in the UAS operating instructions.
Operating limits that cannot be influenced by the flight coordinator,
such as the maximum rotational speed of a motor, need to be determined
by the manufacturer and imposed as a limit in the design of the UAS,
though they may not need to appear in the operating instructions. This
minimizes the risk of catastrophic failures due to overstressed
components or systems.
Section 108.845(c) proposes the propulsion system must be designed
so that a loss of power or a power failure does not lead to a loss of
control of the UA. This ensures the UA design has a contingency for
loss of power and will not result in a failure which could jeopardize
the safety of the UA and surrounding environment, such as asymmetric
thrust.
FAA is not proposing prescriptive propulsion requirements to
promote continued development, innovation, and improved efficiency of
UA propulsion systems. FAA anticipates that voluntary consensus
standards bodies would develop new consensus standards for various
categories of propulsion systems.
K. Fuel System (Sec. 108.850)
Section 108.850(a) proposes that, if the UAS is equipped with a
fuel system, the fuel system design would need to provide a means for
the safe removal or isolation of fuel from the rest of the UA. To
prevent fuel leaking or fuel
[[Page 38308]]
contamination, and to provide a means for safely handling and
transporting the UA on the ground, it must be possible to either remove
all fuel onboard or ensure it is safely isolated within tanks or lines
in such a way that the fuel system minimizes the risk of fire. Section
108.850(b) proposes that UA would need to be designed to retain fuel,
preventing leaking or fluid buildup, under all likely operating
conditions. This will reduce the likelihood of a fire by not
introducing the fuel to an ignition source. Proposed Sec. 108.850(c)
would require the UA to have ventilation and drainage where flammable
fluid or vapor may exist. Proper system design accounting for fuel
retention, ventilation, and drainage prevents the accumulation of
flammable fluids or vapors. Changes in temperature, pressure, aircraft
attitude, or acceleration loads are all examples of potential causes of
leaking or pressure build-up, either of which could be a source of
fire. By adhering to these requirements, potential fuel-related
incidents such as leaks or spills that could result in fires or
explosions are effectively minimized.
L. Fire Protection (Sec. 108.855)
Proposed Sec. 108.855 would require the incorporation of design
features that can sustain both static and dynamic deceleration loads
without resulting in structural damage to the fuel or electrical system
components or their attachments. In the event that the UA has a hard
landing or crashes, the design must ensure that such an event will not
result in structural damage to components of the UA likely to
contribute to a post-event fire as the deceleration load shifts.
Examples of components that must meet Sec. 108.855 include fuel tanks,
fuel lines and fittings, batteries, wiring harnesses, or wiring attach
points. Fuel and electrical system crashworthiness involve designing
and testing these systems to demonstrate fuel remains safely contained
and sources of electrical current remain safely separated from the fuel
as loads shift. This would ensure that fuel leaks do not reach
potential ignition sources and that electrical power does not become an
ignition source, resulting in a post-incident fire. By actively
implementing such design features, the risk of fire-related incidents
is significantly reduced, enhancing the overall safety of the UA during
operation, and protecting lives and property on the ground, or
safeguarding from other hazards, in the event of an accident.
M. Software (Sec. 108.860)
Proposed Sec. 108.860(a) would require that all software that may
affect the safe operation of the UA function properly and have
dependability. Dependability means the software code produces the
consequences for which it was written, without adverse effects, in the
manufacturer defined environment. Essential components and functions of
the UA, such as propulsion, flight control, navigation, and DAA, are
controlled by software. Due to software's influence over essential
components, it is important to minimize the occurrence of software
errors to ensure its dependability. Therefore, software should be
designed, verified, and implemented according to standards that confirm
it dependably fulfills its intended purpose.
Proposed Sec. 108.860(b) would also require manufacturers to
track, control, and document any changes made to the software
throughout the life cycle of the UAS within a configuration management
system. A configuration management system for software is a set of
practices and tools designed to manage and track changes in software
development, ensuring consistency, control, and traceability of each
version of software components. Such a configuration management system
would enable manufacturers to maintain the integrity and consistency of
the software. In addition, proposed Sec. 108.860(c) would require
manufacturers to capture and record any defects or modifications made
to the software within a problem reporting system. A problem reporting
system is a structured tool that facilitates the identification,
documentation, and tracking of issues or defects. Such a problem
reporting system would allow for a comprehensive overview of the
software's status, thereby facilitating continuous improvement efforts.
Thorough and continuing software development significantly reduces
software errors, ultimately contributing to a safer and more reliable
UAS operations and facilitates continuous improvement efforts.
N. Electronic Hardware (Sec. 108.865)
Proposed Sec. 108.865(a) would require all electronic hardware in
the UAS to perform its intended functions within the manufacturer-
defined operating and environmental limitations. This requirement would
ensure consistent system performance and safety by requiring that all
electronic components operate effectively within their specified
parameters, under typical usage scenarios. This predictability is
essential for system integrity, as it allows for the accurate
assessment and management of risks associated with electronic system
failures, which could otherwise compromise the safety of the UA.
Operating limitations may include the boundaries of conditions
under which the electronic systems are designed to function, including
variables like voltage, current, and data processing requirements.
These limitations ensure that the hardware can handle the demands of
its operational tasks without failure. Operational environment
limitations consider external factors such as temperature, humidity,
vibration, and electromagnetic interference that the UAS may be exposed
to during UA operation. By proposing that electronic hardware withstand
both sets of limitations, FAA would ensure that UAS would be able to
operate safely and reliably in diverse conditions, from the physical
stresses of flight to variations in weather and electromagnetic
environments.
Section 108.865(b) proposes that electric hardware must be designed
and installed so they do not have an adverse effect on the safe
operation of the UA. An adverse effect on safety would be those effects
that could negatively impact the safety and airworthiness of the UA. An
example of potential adverse effects includes the disruption of signal
integrity through electromagnetic interference, which could stem from
improper shielding or placement of electronic components. Such
interference could degrade the performance of navigation and
communication systems, leading to loss of flight or loss of control. By
establishing design and installation standards that mitigate these
risks, this ensures continued safe UAS operations, even in the presence
of potential sources of electronic interference.
O. Systems and Equipment (Sec. 108.870)
Section 108.870(a) proposes that a UAS would need to have all
systems and equipment necessary for safe flight, considering any
systems or equipment necessary to operate the UAS in the intended
airspace class or required for the operation. This requirement is
determined by the class of airspace in which the manufacturer intends
the UAS to operate and any specific operational demands. For example,
Sec. 108.180(b) proposes avoiding collisions with aircraft not
broadcasting their positions using ADS-B Out. Similarly, Sec.
108.185(d)(5)(ii) which proposes the same requirement as Sec. 108.180,
but when operating over Category 5 population densities. This
[[Page 38309]]
provision ensures that UAS are prepared and capable of navigating and
operating safely within their designated operational environments,
accounting for the complexity and variability of NAS requirements.
Different classes of airspace have varying levels of traffic density,
airspace restrictions, and safety considerations which may require
unique equipment. By ensuring UAS are adequately equipped for their
intended operational environment, this regulation aims to minimize
risks of collision and ensure efficient use of airspace.
Section 108.870(b) proposes that installed systems and equipment
would need to perform their intended function within the operating
limitations and environmental limitations for which the aircraft is
designed. FAA emphasizes that systems and components should be
evaluated to ensure that any potential failure or malfunction will not
compromise the UA's control. This holistic assessment approach
safeguards against systemic vulnerabilities that could lead to
operational failures. FAA expects systems and components within those
systems to be considered separately and in relation to each other. As
with electronic hardware, systems and equipment would need to perform
throughout the intended operating and environmental limitations. The
same reasoning given in electronic hardware for why both types of
conditions need to be accounted for is valid here.
Section 108.870(c) proposes that no probable failure shall result
in a hazardous outcome. This requirement is meant to prevent unsafe
outcomes stemming from individual component failures. Probable failure
conditions are those failure conditions anticipated to occur one or
more times during the entire operational life of each UAS.\136\ These
are not hypothetical or highly unlikely failures but are considered
within the realm of possibility based on historical data, engineering
analysis, and operational experience. Probable failures could arise
from a range of sources, including wear and tear, manufacturing
defects, design limitations, and other impacts.
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\136\ JARUS SORA v 2.5.
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It is important to prevent such failures from leading to a hazard
such as a loss of flight or control. UAS, like all aircraft, rely on a
complex interplay of systems and components to operate safely and
effectively. A failure in one of these systems--be it navigation,
propulsion, communication, or control--could jeopardize the UA's
ability to maintain flight or be controlled, leading to potentially
unsafe outcomes. This could include unintended entry into restricted
airspace, collisions, or uncontrolled descent, each posing significant
risks to public safety, property, and the integrity of national
airspace.
The proposed requirement set forth in Sec. 108.870(c) is designed
to ensure that UAS are engineered and maintained to a standard where
probable failures do not compromise the UA's core operational
capabilities. This could involve robust design practices, thorough
testing and evaluation of components and systems, and regular
maintenance and inspection routines. The objective is to identify and
mitigate risks associated with probable failures, ensuring that a
single probable failure does not lead to a hazardous outcome.
In implementing this requirement, manufacturers should consider
redundancy, fault tolerance, and fail-safe mechanisms in the design and
operation of UAs. Redundancy involves the inclusion of systems or
components that prevent loss of functional capabilities in the event of
a failure. Fault tolerance refers to the ability of a system to
continue operating properly in the event of a failure. Fail-safe
mechanisms are designed to bring the aircraft to a safe state in the
event of a failure.
P. Cybersecurity (Sec. 108.875)
To maintain the security and airworthiness of UAS equipment,
systems, and networks, proposed Sec. 108.875 would require that UAS
equipment, systems, and networks, addressed separately and in relation
to other systems, be protected from unauthorized electronic
interactions.
Intentional Unauthorized Electronic Interaction (IUEI) refers to
``a circumstance or event with the potential to affect the aircraft due
to human action resulting from unauthorized access, use, disclosure,
denial, disruption, modification, or destruction of information or
aircraft system interfaces. Note that this includes malware and the
effects of external systems on aircraft systems but does not include
physical attacks or electromagnetic jamming.'' \137\ An adverse effect
on safety would be those effects that could impact the safety and
airworthiness of the UA and its operation. Protecting against IUEI
involves systematically preventing, avoiding, and mitigating malicious
interference with aircraft systems. Unauthorized interference with a
UAS could have both safety and security impacts.
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\137\ See FAA Order 8110.107B, Monitor Safety/Analyze Data, page
2-2 (October 13, 2023).
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Cybersecurity protection efforts must be informed by standards
acceptable to FAA. For cybersecurity, there may be acceptable standards
produced by entities other than voluntary consensus standards bodies.
Cybersecurity standards and guidelines, such as the Cybersecurity
Framework developed by National Institute of Standards and Technology
(NIST), typically promote protection by utilizing a risk assessment
that demonstrates how security and safety risks associated with IUEI
are identified and assessed. The risk assessment identifies which
equipment, systems and networks require protection from IUEI. If a
cybersecurity risk is identified that can adversely affect the safety
of the UAS, the manufacturer can then develop mitigation plans and
provide them to the operator. This would ensure a comprehensive and
consistent approach to maintaining the safety of the UA's equipment,
systems, and networks tailored to the risks commensurate with UAS. FAA
expects that a standard with similar requirements to the NIST
Cybersecurity Framework would be found acceptable as a MOC for
cybersecurity. FAA invites comments on cybersecurity standards for UAS.
Q. Associated Elements Design and Performance Requirements (Sec.
108.880)
Section 108.880(a) proposes that each associated element would need
to be designed to perform its intended function under all operating
conditions specified in the UAS operating instructions. The intended
function includes both aircraft performance and ability to successfully
complete the operation for which the aircraft was designed, such as
small package delivery or agricultural operations. Both the AE, as well
as the UA itself, must be designed such that the UA operates as
intended in all expected operating conditions, whether those conditions
are encountered by the UA or the AE. The operating instructions need to
include operating limitations of the UAS that address operational
environment conditions, adverse weather, collision avoidance,
cybersecurity, lightning, hazardous materials, weight, and balance.
Operating instructions need to also include normal and abnormal
procedures likely to be encountered in the intended operations. The UA
and AE must be integrated in such a way that the AE does not introduce
additional safety hazards in the NAS. By ensuring the AE can perform
its intended function throughout its expected range of operating
conditions, the proposed rule would mitigate these
[[Page 38310]]
potential hazards. For example, if AE includes a launcher, the
acceleration force imparted on the UA should not exceed its design
limit. In addition, as proposed in Sec. 108.880(b), any probable
failure or malfunction of the AE or any of its components must not
result in a hazard. For the purposes of this proposed rule, a hazard
would be any condition that could foreseeably cause or contribute to an
incident or accident. These situations must be mitigated to provide for
safe operation of the UA.
Proposed Sec. 108.880(c) requires that the AE would be designed to
continuously monitor, display, and transmit information required for
safe flight and operation. This may include, but would not be limited
to, parameters related to energy storage, propulsion, detection
systems, flight safety, signal strength, as well as flight and
navigation information like airspeed, heading, altitude, and location.
FAA expects an acceptable MOC to identify the relevant information that
will be displayed for the designated operational purpose.
To reduce the likelihood of human error when conducting any
manufacturer-designated operation, the human-machine interface should
be considered in the development of the AE because AE is typically the
interface between humans and the UAS. Monitoring and displaying the
status of critical parameters to the flight coordinator would enable
successful and efficient management of the UA's flight. These design
features would contribute to a more reliable, safe, and secure
operation, ultimately promoting the successful integration of UAS into
the NAS.
R. Suitability and Durability of Materials (Sec. 108.885)
Proposed Sec. 108.885 would require the suitability and durability
of materials used in the UAS to account for the effects of all
operational and operating environment conditions expected during
operation. Materials used for aircraft components and structures would
need to meet the loads and stresses of all operations within the UA's
flight envelope for the life of the UA or defined maintenance interval.
The UA should be designed and manufactured with materials that permit
its structure and components to withstand those stresses likely to be
encountered. Such stresses could result from wind gusts, temperature
extremes, humidity extremes, or ground handling. Adhering to material
specifications and considering the most adverse conditions during
design would prevent structural failures, which could lead to loss of
flight or loss of control, throughout its operational life.
S. Operating Environment Conditions (Sec. 108.890)
Proposed Sec. 108.890(a) would require that the UAS have design
characteristics to accommodate operating environment conditions likely
to be encountered during its intended operations. Aircraft systems and
structures may not function as intended if operating conditions are not
accounted for in an aircraft's design. Such environmental conditions,
such as variations in temperature, wind, rain, ice, and humidity, may
alter the safe operation of a UA. Therefore, if operations are intended
in these conditions, the UA design would be required to account for
them. This proposed requirement is necessary to enable UA to be
properly designed and constructed to conduct safe ground and flight
operations in the specific operating environments for which the
aircraft is designated to operate in. UA systems or structure unable to
accommodate the environment in which it is operating may lead to loss
of flight or loss of control.
Under proposed Sec. 108.890(b) in lieu of the requirements of
Sec. 108.890(a), the UAS would be required to have the capability to
identify and avoid or exit those conditions the UA is not designed to
operate. This requirement is intended to restrict flight into known
environmental conditions in which the UA is not designed to operate.
This requirement also is intended to either prevent inadvertent flight
into such conditions or provide a means for detecting those conditions
for which the UA is not designed to operate. These requirements along
with the operating instructions ensure the flight coordinator is
informed about the environmental conditions in which the UAS can be
utilized.
T. Lightning Protection (Sec. 108.895)
Proposed Sec. 108.895 would require a UA to either incorporate
design characteristics that protect the UA from loss of flight or
control due to lightning strikes or have an operating limitation that
explicitly prohibits flight operations in weather conditions that are
conducive to lightning activity. The latter would apply when the
manufacturer did not demonstrate during developmental testing that the
UA can withstand lightning strikes. Lightning strikes present a
significant hazard to the UAS, capable of causing immediate loss of
flight or loss of control. By ensuring that UAS are inherently designed
with lightning protection features, this requirement aims to safeguard
against the primary risks associated with lightning, such as electrical
system failures, ignition hazards, and structural damage.
Recognizing the diverse range of UA designs and operational
capabilities, the proposed regulation offers an alternative for cases
where it is not feasible for the manufacturer to demonstrate lightning
protection. In such instances, the UA would be subject to an operating
limitation, listed in the operating instructions, that explicitly
prohibits flight operations in weather conditions conducive to
lightning activity. This approach provides a flexible regulatory
framework that accommodates the technical and economic constraints of
developing lightning-protected UAS while ensuring that safety remains
the paramount consideration. By restricting operations in potentially
hazardous weather conditions, this operating limitation serves as a
precautionary measure to minimize the risk of lightning strike
incidents.
U. Flight Data Recorder (Sec. 108.900)
Incidents and accidents may result in serious injury or fatality
for persons on the ground or onboard other aircraft. Fundamental to
ensuring further incidents or accidents are mitigated is the ability to
determine root cause and implement any necessary corrective actions.
The inability to determine root cause and implement corrective actions
may lead to further incidents and accidents with the same unidentified
cause.
Therefore, proposed Sec. 108.900(a) would require that the UA,
GCS, or both, be equipped with a flight data recording system. This
regulation works in tandem with the flight data requirements in Sec.
108.725. This system must capture and record onboard system and data
from initial powerup through shutdown. This proposed requirement would
ensure that a system captures relevant data to recreate the flight and
determine the root cause of incidents and accidents. In addition, Sec.
108.900(b) requires the recorded data to be in a standardized format
and readily accessible to FAA and NTSB, and readable without requiring
proprietary software. This is to help ensure data integrity in the
event of an investigation and to support regulatory analysis and
oversight.
The data must be readily accessible to FAA or NTSB to provide
relevant information for engineers, technicians, maintenance crews, and
operators to identify root causes and resolve safety of flight issues.
By analyzing this data, the manufacturer, operator, and FAA can
efficiently determine the root cause of
[[Page 38311]]
failures and monitor the UA's overall health. Furthermore, the
retrievability and standardization of the data enables the NTSB to
better analyze and investigate UA accidents. This comprehensive
approach to data recording and accessibility ensures that relevant
information, including system inputs, outputs, data bus logs, signal
strength indicators, and sensor data, could be utilized in determining
root cause.
V. Flight Data Analysis (Sec. 108.905)
Section 108.905 proposes that a UAS would need to be designed to
capture and record all flight data necessary for trend analysis,
failure identification, and root cause analysis. Designing a UAS to
capture and record flight data is important for ensuring safety and
reliability. The manufacturer of the UAS that has received
airworthiness acceptance is responsible for ensuring continuing
operational safety of their UAS designs. Access to the flight data
identified in this section enables the manufacturer to perform a
detailed analysis of incidents, identifying trends and root causes of
failures, which is essential for developing preventive measures and
improving design. It supports ongoing regulatory compliance,
facilitates acceptance processes, and enhances operational efficiency
by enabling trend analysis and targeted maintenance strategies.
Moreover, analyzing flight data can inform training programs. These
training programs would serve to reduce operator errors and increase
the overall safety of UAS operations.
Such data collection and analysis not only improves safety and
reliability but also builds stakeholder confidence by demonstrating a
commitment to rigorous safety standards. As UAS operations become more
integrated into the NAS, the ability to proactively manage and mitigate
risks by leveraging comprehensive data analysis is indispensable. This
approach would ensure that UAS technology evolves in a manner that
prioritizes the safety of both the UAS and the NAS.
W. Noise (Sec. 108.910)
This proposal would apply 14 CFR part 36 noise standards to part
108 UA.\138\ Specifically, Sec. 108.910 would require UA seeking
airworthiness acceptance under part 108 to demonstrate compliance with
part 36. The changes to part 36 propose the methods of compliance that
would be available to a UA that does not conform to a type certificate.
A manufacturer could demonstrate compliance using an FAA-approved
industry consensus standard or, where there are no noise consensus
standards, using current part 36 procedures that are appropriate for
the UA or a combination of requirements approved by FAA appropriate for
the UA.
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\138\ For further discussion on proposed changes to FAA noise
requirements and the applicability of 14 CFR part 36, see section
XII.A of this preamble.
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This approach would provide flexibility in the methods of
compliance for UA. It considers different procedures and pathways, in
addition to the traditional noise certification process in part 36,
that will provide for more streamlined compliance for UA requesting an
airworthiness acceptance. The methods of compliance for the noise
requirements are discussed in more detail in section XII.A, Updates to
Noise Requirements.
X. Placards (Sec. 108.915)
Section 108.915 proposes that the UAS would be required to display
all placards necessary for safe handling and operation. Placards
providing safety information related to hazmat marking, no-step, no
hand hold, danger propeller, etc., relay vital information to operators
and maintenance personnel. This requirement contributes to the safety
of the personnel working with the UA, including first responders and
third parties, while also helping to protect the aircraft from damage
due to improper handling. The dimensions of the placard and its text
would need to be adjusted based on the UA's size, ensuring legibility.
FAA understands the broad range of size of aircraft that may be
produced under this part and expects industry to develop standards to
accommodate the different designs while ensuring this safety
information is properly displayed.
Y. Identification and Marking (Sec. 108.920)
Proposed Sec. 108.920 would require UA to comply with 14 CFR part
45, which provides aircraft marking requirements. Part 45 marking
requirements would not be required for the control station or any other
associated element of the UAS. Section 45.11 of 14 CFR requires a
fireproof data plate inside the aircraft to ensure that critical
information about the aircraft's construction and operation is
available in case of an emergency. The data plate contains information
such as the aircraft's manufacturer, model number, and serial number.
It may also include information about the aircraft's fuel capacity,
electrical system, and other important details. In the event of an
accident or emergency, first responders and investigators need accurate
and reliable information about the aircraft's construction and
operation to help determine the cause of the incident and to take
appropriate actions to mitigate any hazards.
As part 45 of title 14 CFR was implemented before regulation of
part 108 UAS, several sections of that part need to be updated to
accommodate part 108 UAS. FAA proposes to add Sec. 45.1(a)(4) to make
part 45 apply to UA operated under part 108. In addition, FAA proposes
modifying Sec. 45.10 by adding Sec. 45.10(a)(3) to allow for the
marking of UA operated under part 108.
Proposed Sec. 45.11 would add a new paragraph to require UA
manufacturers under subparts G and H of part 108 to mark each aircraft
with a fireproof identification plate. Proposed Sec. 45.11(i) would
provide three requirements for the fireproof identification plate,
which are all consistent with markings for other aircraft. First, the
plate would need to include the information found in Sec. 45.13 using
an approved method of fireproof marking. Second, the plate would need
to be secured in a manner that it will not likely be defaced or removed
during normal service or lost or destroyed by accident. Third, the data
plate should be securely attached to the exterior of the UA fuselage,
ensuring it remains legible and easily readable from the ground when
the aircraft is not being operated. This placement facilitates
straightforward identification and inspection by individuals on the
ground, including first responders who can view the number without
handling the aircraft.
To facilitate compliance with regulations and ensure safe
operation, proposed Sec. 45.13(a)(8) would require that the data plate
clearly display the ``Part 108'' designation, if applicable, which
would differentiate the aircraft from part 107 and part 91. This
information will be valuable to both operators and regulators in
determining where the aircraft is authorized to operate and provide
consistency and uniformity in marking requirements across products in
the NAS. FAA proposes to redesignate Sec. 45.13 (a)(8) to Sec. 45.13
(a)(9).
Part 45 also has specific requirements for the size of markings on
different types of aircraft. The size of the markings depends on the
type of aircraft, the purpose of the marking, and the location of the
marking on the aircraft. For example, FAA requires that aircraft
registration markings, including the unique N-number, be at least 12
inches tall on large aircraft, such as commercial airliners. This is to
ensure that the markings are easily visible and legible from a
distance, and can be read
[[Page 38312]]
by air traffic controllers, pilots, and other aircraft personnel. On
smaller aircraft, such as GA or private aircraft, FAA requires that the
registration markings be at least three inches tall.
As proposed in Sec. 45.29 (b)(4), the registration number of the
UA would need to be displayed with 12-inch markings on the external
surface if the surface is large enough for 12-inch markings. If the
external surface is not large enough for 12-inch markings, then the
manufacturer must use 3-inch markings. FAA recognizes that not all
aircraft operating under part 108 can comply with these requirements
due to size. Proposed Sec. 45.29 (i) states that, if the size of the
aircraft does not allow for 3-inch markings, marks as large as
practicable would need to be placed on the largest surface. The marks
would need to be maintained in a condition that is legible, affixed to
the UA in such a way that it will remain affixed for the duration of
each operation, and displayed on an external surface of the UA.
Z. Additional Design and Performance Requirements for Operational
Purposes (Sec. 108.925)
In addition to the other design and performance requirements in
Sec. Sec. 108.800 through 108.920, the UAS would need to be designed
and constructed to conduct any manufacturer-designated operation as
outlined in Sec. 108.400 and 108.500 safely. Whether the UA is being
used for package delivery, agricultural dispensing, inspecting
powerlines, or any other type of operation, there are specific hazards
involved with specific operations that manufacturers are responsible
for accounting for in their UAS designs. Proposed Sec. 108.925(a)
would require that the UAS be designed to account for any operational
and environmental conditions and hazards not addressed under Sec. Sec.
108.800 through 108.920 for any manufacturer-designated permitted or
certificated operations as defined in Sec. Sec. 108.400 and 108.500.
The purpose of this requirement is to capture the unique additional
design requirements associated with the specific manufacturer
designated permitted or certificated operations. This proposed
performance requirement is necessary to ensure that aircraft are
designed and constructed to withstand foreseeable flight and ground
loads associated with those manufacturer-designated operations. Failure
to establish and validate adequate material strength and design
properties to accommodate these permitted and certificated operations
could cause structural failure resulting in loss of UA control or
introduce hazards to persons on the ground due to the nature of the
operations.
Section 108.925(b) proposes that, for operations involving the
carriage of hazardous materials, the UA or airborne transport container
or tanks would be required to have sufficient structural integrity to
contain the hazardous material without allowing leakage or release of
the material in the event of a hard landing or crash. Containment of
hazardous materials is especially important upon a hard landing or
crash where the likelihood of leakage or release is greatest. Hazardous
materials, if leaked or released, have the potential to cause immediate
harm to health or property. Without proper containment, the public
could be harmed, and first responders could be exposed to materials
that could hinder their operations or require specialized equipment or
procedures to mitigate.
AA. Testing
FAA is proposing a structured test and evaluation process that
manufacturers would be required to follow to validate their UAS designs
and demonstrate reliable design for the operational purpose. Testing
would include both the UA and any AE for each UAS make and model. The
proposed structured testing process is expected to be accomplished in
two phases. Phase one is developmental testing, as required by proposed
Sec. 108.930, which is intended to validate a manufacturer's UAS
design for compliance with the design and performance requirements of
part 108, subpart H from initial ground testing, through first flight,
and eventual compliance demonstration for each new make and model of
UAS. Phase two would be function and reliability testing, required by
proposed Sec. 108.935, which is intended to demonstrate the
manufacturer's UAS design has the necessary reliability to operate
BVLOS in the NAS for the designated purpose without creating a hazard
to persons on the ground or other airspace users.
FAA expects that voluntary consensus standards bodies would propose
developmental and reliability testing standards. Once accepted by FAA,
these testing standards would serve as a MOC with the testing
requirements of this proposed rule and would address parameters to be
evaluated prior to safe introduction of the UAS into the NAS. Testing
standards would also address any test, analysis, and simulation
necessary to validate alterations, repairs, or changes in design to a
UAS with airworthiness acceptance. These testing standards should
entail a comprehensive evaluation of the UA's performance across its
flight envelope and throughout all intended operational parameters. The
intent of this testing is to verify and validate the expected
performance of the UAS and to ensure the design and materials used in
the UAs construction offer the necessary strength and durability for
all operations as designated by the manufacturer. For example, to
ensure that aircraft electrical and electronic systems will continue to
operate safely without interruption, failure, or malfunction, an
aircraft to be used for powerline inspection would be tested in a
representative High Intensity Radiated Field (HIRF) environment
expected in service.
Pursuant to proposed Sec. Sec. 108.105(b) and 108.470(a), before
commencing any tests outlined in this section, the manufacturer would
be required to possess a valid flight test permit.
1. Developmental Testing (Sec. 108.930)
Developmental testing is the phase of design maturation when the
manufacturer will validate their proposed UAS design complies with the
requirements of subpart H. Proposed Sec. 108.930(a) would require a
manufacturer to conduct flight testing of the UAS to achieve or
validate compliance with design and performance requirements of subpart
H in an operationally representative environment and throughout the
flight envelope. Developmental testing is necessary to ensure a design
has been adequately validated prior to locking the configuration of the
UAS and conducting function and reliability testing. Configuration
lockdown refers to the process of finalizing and securing the design,
settings, and options of a system, software, or AE to prevent
unauthorized changes. This ensures the system design remains consistent
and operates as intended by preventing modifications to its
configuration during testing.
Flight testing is required to validate end-to-end functionality of
the UAS in an operationally representative environment. This ensures
that all components of the UAS work harmoniously under expected
operational scenarios, including those that may only be theoretical or
may not be fully replicable in simulated environments. Further flight
testing should include testing of the aircraft at the margins of design
and performance to validate the design and determine appropriate
limitations.
FAA recognizes manufacturers may use simulation, analysis,
component tests, ground tests, flight tests, or a
[[Page 38313]]
combination thereof, to show compliance with this subpart. Therefore,
Sec. 108.930(b) proposes analysis may be used in combination with
flight testing to validate compliance with this subpart. For certain
components or systems and some designated operations, methods other
than flight testing may prove to be more accurate. FAA wants to allow
for use of these other methods if appropriate.
If simulation is used in an analysis to validate compliance during
testing, FAA also proposes in Sec. 108.930(b) that the simulation must
be validated using an FAA-accepted MOC. Validated simulations ensure
accuracy and fidelity providing a reliable representation of real-world
scenarios by showing that the simulation accurately predicts the
outcome of physical testing. This reliability is essential for safety,
as it ensures that any derived models or conclusions accurately mirror
real-world conditions and responses, minimizing the risk of unforeseen
issues or discrepancies when applied in actual operations. Once
validated, the manufacturer can use simulations for derivative models
that fit within the simulation's parameters. Recognizing the critical
safety implications, FAA expects consensus standards bodies to develop
acceptable standards that include provisions for developing and
validating simulations. A manufacturer would rely on these standards as
acceptable means of demonstrating compliance with the requirements of
subpart H.
Section 108.930(c) proposes that, before proceeding to function and
reliability testing, the manufacture ensures the UAS configuration has
no hazardous operating characteristics or design features and is safe
for the intended operation. This step ensures that the aircraft is
fully prepared for reliability assessments, and that no product is
introduced into the NAS before all safety issues are thoroughly
addressed. Such diligence ensures that the UAS meets the required
safety standards, thereby preventing premature deployment of
potentially unsafe systems.
In addition, Sec. 108.930(d) proposes developmental testing would
be required to validate that any probable failure of the UAS will not
result in a loss of flight or loss of control of the UA. Probable
failures, such as those related to propulsion systems, C2 link, GPS,
flight control components with a single point of failure, the control
station, and any AE identified by the manufacturer should be evaluated
for compliance with this requirement. All components of the UAS used
for testing should be operated in accordance with the UAS operating
instructions and each test should occur at the critical phase and mode
of flight, using the highest UA-to-flight coordinator ratio. UAS with
fail-safe design features demonstrated through acceptable developmental
testing standards reduce the likelihood of incidents and accidents by
ensuring no probable failure of the UAS results in loss of flight or
loss of control of the UA. This demonstrated functionality is necessary
to show a UAS design has an acceptable level of safety to be operated
for the manufacturer-designated purpose.
2. Function and Reliability Testing (Sec. 108.935)
Proposed Sec. 108.935(a) would require each manufacturer to
perform function and reliability testing for each UAS make, model, and
configuration. This requirement is intended to demonstrate that the
specific configuration of each make and model produced by a
manufacturer has the necessary reliability to conduct operations in the
NAS for the manufacturer-designated purpose. Each serial number or
ranges of serial numbers of a particular make and model would not
require reliability testing. Once a particular make, model, and
configuration has demonstrated compliance with function and reliability
testing requirements, compliance with Quality Assurance Sec. 108.730
and Production Acceptance Sec. 108.735 requirements ensure each serial
number of a particular make, model, and configuration produced by a
manufacturer complies with the requirements of subpart H.
Section 108.935(b) proposes each UAS make, model and configuration
complete no less than 150 failure-free flight test hours. A failure-
free flight test is one where the UAS is operated and flown without
experiencing any failures that could lead to a loss of flight, loss of
control, non-conformance with UAS traffic management, loss of safe
distance, or results in an unplanned landing. An unplanned landing is
one that was previously unscheduled during the test or is necessitated
due to failures that result in loss of function or redundancy for safe
operation.
The occurrence of any of these outcomes resulting from a probable
UAS failure condition increase the likelihood of an incident or
accident which could result in injury or property damage. The minimum
of 150 flight hours is based 14 CFR 21.35(f)(2) requirements, which are
the flight test requirements for part 21 certificated aircraft. By
demonstrating a UAS design does not have any of these occurrences over
a minimum of 150 flight hours, the manufacturer would show their UAS
has the necessary reliability to be operated in the NAS, increasing the
likelihood of a safe operation.
Only UAS with acceptable reliability, demonstrated though
acceptable means, would achieve airworthiness acceptance, which is
necessary to operate in the NAS. FAA expects function and reliability
testing to be conducted in accordance with consensus standards accepted
by FAA.
Section 108.935(c) proposes testing must be conducted in an
operationally representative environment, as defined in Sec. Sec.
108.400 and 108.500, and as designated by the manufacturer. Before
entering the NAS, the UAS must establish a baseline for function and
reliability in its operational environment. Function and reliability
testing within the representative environment of the intended
operations properly demonstrates that baseline before entering the NAS.
This further ensures the manufacturer's designated UAS operational
purpose may be conducted safely and reliably. FAA expects any voluntary
consensus standards to encompass a specified minimum number of
operational cycles for both UA and AE. The primary objective is to
verify that the UAS reliability meets the expected minimum performance
characteristics. Any supplementary design features needed for specific
operations should be rigorously evaluated to confirm their reliability
and suitability for the intended purposes. In addition, design features
should demonstrate the appropriate reliability for the flight and
ground loads expected in service. A UAS that is unable to withstand the
ground loads expected in service, such as crew handling, loading,
unloading, or servicing could fail due to unexpected fatigue and wear
resulting in loss of flight or loss of control.
To ensure UAS designs continue to have acceptable reliability
following the completion of testing proposed in Sec. 108.935(b), Sec.
108.750(b) proposes the manufacturer of the UAS that has received
airworthiness acceptance must demonstrate compliance with the
requirements of subparts G and H of this part for any design change to
a UAS. Without this requirement, a design change such as replacing an
existing servo actuator or speed controller with a new manufacturer's
part number would likely have an effect on flight characteristics of
the UA, thereby affecting its reliability. Only through thorough
function and reliability flight testing of the new design can the
[[Page 38314]]
demonstrated reliability of the UAS be maintained. Industry is well-
suited to determine best practices for evaluating a design change that
would have an effect on the demonstrated reliability of the UAS.
Therefore, FAA expects industry to develop consensus standards to
determine the appropriate number of function and reliability flight
testing hours necessary to ensure any changes in design are thoroughly
evaluated and the new UAS configuration continues to have no hazardous
operating characteristics or design features; and is in a condition for
safe operation.
XII. Corresponding Regulatory Updates
A. Updates to Noise Requirements
In the MOSAIC NPRM, FAA proposed to amend the applicability of 14
CFR part 36 to include noise requirements for aircraft that do not
conform to a type certificate.\139\ Specifically, FAA proposed to add
Sec. 36.0 to address such aircraft. This separation of Sec. 36.0 from
the remainder of part 36 was intended to keep the requirements of
aircraft requiring a type certificate clearly separated from those
which do not.
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\139\ See 88 FR 47650.
---------------------------------------------------------------------------
This proposal extends the MOSAIC NPRM's Sec. 36.0 approach to UAS
as part of airworthiness acceptance under part 108. Similar to the
proposal in MOSAIC, manufacturers would demonstrate compliance with
part 36 noise requirements through either FAA-approved noise consensus
standards or other methods provided for in Sec. 36.0. Under proposed
part 108, manufacturers would attest to compliance with part 36 as
proposed in subparts G and H of part 108.
1. Noise Certification Background
Pursuant to its authorizing legislation in 49 U.S.C. 44715, FAA has
the responsibility to ``protect the public health and welfare from
aircraft noise.'' This responsibility came with broad authority to
adopt regulations and noise standards to carry out this mandate. When
promulgated in the 1970s, the statute mandated that noise regulations
be created and required the application to aircraft seeking new type
certificates. At that time, FAA applied the part 36 noise certification
regulations when the agency issued type certificates. This represented
the provision in 44715(a)(3) that acts as the ``floor'' for FAA's duty
to exercise its authority. The agency's much broader authority over
aircraft noise remains discretionary.
The MOSAIC NPRM proposed an expansion of applicability of part 36
to aircraft that had not received type certificates. FAA explained that
it had initially determined that there was little value in assessing
the noise from aircraft that did not receive type certificates as the
aircraft were low in number and in many cases may have been a single
aircraft of its kind. More recently, FAA found there were larger
numbers of these aircraft operating that did not conform to a type
certificate, overtaking those historical presumptions. As such, FAA
indicated in MOSAIC that it could no longer justify the exclusion of
these aircraft, including light sport aircraft in 14 CFR 21.190 and
some experimental aircraft subcategories under 14 CFR 21.19, and their
noise impact on communities under its statutory responsibility. The
MOSAIC NPRM provided an opportunity to recognize and address the noise
created by these aircraft. The NPRM explained that the proposed
expansion of the applicability of part 36 to these aircraft
acknowledges that noise certification was part of the overall
certification scheme for aircraft and appropriate for modernization.
FAA has the statutory obligation to regulate noise under 49 U.S.C.
44715, and discretionary authority to apply noise standards for
aircraft with or without type certificates. FAA is proposing to use a
similar noise regulatory approach for UAS operating under part 108 as
FAA proposed for MOSAIC aircraft. In both cases, these aircraft would
not have type design certificates, but rather special airworthiness
certificates (i.e., MOSAIC) or an airworthiness acceptance (as proposed
in this rule).
FAA proposes to approach regulating noise for part 108 aircraft in
the same manner that FAA proposed regulating noise for light sport
aircraft in the MOSAIC NPRM. Like the MOSAIC proposal for light sport
aircraft, this proposed rule does not call for type certification of
aircraft to be operated under part 108. The regulatory approach for
noise that was proposed in the MOSAIC NPRM, described herein, is being
considered for this rulemaking. As described in section III.A.6, FAA
uses the safety continuum to determine the appropriate level of
regulatory oversight over a variety of aircraft. Because FAA finds that
proposed part 108 operations falls between part 107 operations and
light sport aircraft operations on the safety continuum, and because
these two classes of aircraft similarly would not have type
certificates, FAA is proposing to extend the MOSAIC regulatory
framework to part 108 operations as it applies to noise. FAA requests
comments on its proposed use of the MOSAIC approach for regulating
noise to UA operating under part 108. FAA also requests comments and
feedback on other possible approaches that could be taken for FAA to
use its discretionary authority to regulate, or not regulate, noise
produced by UA operating under proposed part 108.
In comparison to conventional aircraft operating from airports and
in the NAS, UAS will frequently operate in closer proximity to noise
sensitive areas. These UAS operations may occur with a higher tempo of
operations and with noise signatures that tend to be time-varying and
disruptive to persons on the ground. Operations using these UAS were
not contemplated when FAA initially promulgated its noise regulations.
Even though these aircraft would not go through a traditional type
certification process, FAA acknowledges that these aircraft and their
potential noise impact on communities are within its statutory
responsibility.
When FAA adopted part 107 in 2016, which allowed certain small UAS
operations without requiring airworthiness certification or any
exemption, waiver, or certificate of authorization, FAA chose not to
apply the noise certification standards of part 36. This decision was
based on the limited aircraft size and restricted operating environment
prescribed in part 107.
Since the promulgation of part 107, several UAS models have
demonstrated compliance with part 36, with several more UAS models
currently in the process. In addition, there has been a significant
increase in the number of UAS and UAS operators and a rapid advancement
of UAS technologies.
Experience with UAS operations has revealed that these aircraft
operations are significantly different from those of the conventional
aircraft. These different operations include package delivery or
infrastructure inspection. The UAS aircraft are expected to operate at
lower altitudes and in much closer proximity to persons that are not
participating in the flight but who are exposed to its effects.
Further, these aircraft are of unconventional design and incorporate
newer technologies, such as distributed propulsion, electric battery
power, and unique VTOL capabilities. Researchers have not yet
determined how these new features and unique noise characteristics
affect people's responses to their noise. The current noise limits and
test criteria in part 36 do not consider these characteristics or
operating environments because the standards and regulations were
written to address traditional manned aircraft designs. For these
reasons and as UAS operations
[[Page 38315]]
expand significantly and as airworthiness standards are developed, such
as those for vehicles operating under proposed part 108, FAA sees the
need to propose noise regulations for these UA.
2. Noise Certification: Current Status
The primary emphasis in noise certification is on controlling
aircraft noise. That is done by assessing noise at its source, the
aircraft itself, rather than its operations generally. For traditional
aircraft, this assessment occurs when noise is measured at the time of
type certification. Through the creation of noise limits for various
aircraft types and the development of measurement procedures and
methods that are relevant to day-to-day operation, FAA meets its
primary statutory obligation to protect the public health and welfare
by assessing the noise profiles of aircraft as they are developed and
by setting a defined noise limit with which an aircraft must not exceed
before it is given a type certificate and permitted to operate. The
limits are set based on weight, design, and means of propulsion. There
are a set of standards and limits for fixed wing small airplanes, one
for jets, one for helicopters, and one for tiltrotors. As new aircraft
designs are developed, FAA gathers the appropriate data to determine
what is acceptable for noise production by the aircraft type to fulfill
the agency's statutory responsibilities. These standards, limits, and
their adoption into regulations are how FAA meets its obligation to
protect public health and welfare from aircraft noise and how that
obligation is appropriately and consistently administered.
Traditionally, noise certification has been required only for
aircraft that conform to a type certificate, though it is considered an
airworthiness characteristic of an individual aircraft. As discussed
earlier, the expansion of the domestic fleet to include routine
operations of UAS that are not type certificated has caused FAA to
consider its statutory responsibility regarding these aircraft and
address noise from both type certificated and non-type certificated
aircraft. As is required by FAA's statutory mandate, the existing
limits and procedures for noise certification have been developed in a
manner that considers the economic reasonableness, technological
practicability, and appropriateness for the aircraft to which it would
apply.\140\ These criteria also guided the expansion of the noise
requirements proposed here.
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\140\ 49 U.S.C. 44715(b).
---------------------------------------------------------------------------
Currently, noise certification is a performance-based two-step
process used to test an individual aircraft (or model) using the
procedures of part 36. The first step is to measure the noise levels
created by an aircraft at different operating points. The second step
is to determine whether the noise levels measured during testing are at
or below the regulatory noise limit, demonstrating that the aircraft
complies with part 36. Since it does not require any specific
technology or equipment be installed on an aircraft, part 36 functions
as a performance standard; the test shows that as configured, an
aircraft is below or above the regulatory limit. Notably, the noise
regulation process does not itself create operational restrictions.
This overall proposed modernization of airworthiness qualifications
and categories in part 21 and airworthiness acceptance in part 108
present a unique opportunity for FAA to modernize its noise
responsibilities within the framework of the various aircraft
certification and airworthiness processes that allow operation with or
without type certificates. FAA is aware that type certification has
long been avoided in part to skirt the noise regulations.
As noise requirements would expand to cover aircraft that do not
have type certificates, FAA is open to consideration of different
procedures and paths that will both meet its statutory obligations and
allow for more streamlined compliance for those UAS receiving
airworthiness acceptance. Those compliance mechanisms are proposed in
Sec. 36.0. Nothing about these proposed regulations may be interpreted
to alter the current noise certification limits or test requirements
for type-certificated aircraft.
3. Applicability to Part 108
Proposed Sec. 36.0 would apply to all aircraft for which an
applicant seeks an airworthiness acceptance in accordance with part
108. Proposed Sec. 36.0(a) lists the compliance requirements for
aircraft that do not conform to a type certificate. Section 36.0(a)(1)
contains the language that was proposed in the MOSAIC NPRM. This
proposal would add Sec. 36.0(a)(2) and require that the noise
regulations of part 36 apply at the time an applicant submits an
application for airworthiness acceptance of an aircraft. Further, as
described in section IX.G, Repairs and Alterations, if there would be
any repairs or alterations to a UAS with airworthiness acceptance, the
proposal would require that the UAS maintain compliance with the
requirements of subparts G and H of part 108, including compliance with
the part 36 requirements.
This proposal would include all the requirements proposed in MOSAIC
for this section in Sec. 36.0(b)(1). It would also identify the
aircraft subject to these requirements. This proposal would add Sec.
36.0(b)(2) and require that for UAS going through an airworthiness
acceptance process under part 108, the applicant must be able to
document their compliance with part 36 prior to submitting the DOC
required in Sec. 108.715(b). First, an applicant would demonstrate the
UAS, usually in its noisiest operating configuration, does not exceed
the noise limit specified for an aircraft of its kind and weight, which
is specified in part 36, the applicable consensus standard, or the
requirements determined by FAA to be appropriate for the aircraft. The
number that results from the test is called the aircraft's noise level
and it must be no louder than the applicable noise limit required by
part 36. The second part of demonstrating compliance concerns the test
procedures and analyses that may be required (depending on the
aircraft), and documenting that they conform to the requirements in
part 36 for the aircraft. FAA anticipates that this provision would be
applicable to certain UAS that may be similar to aircraft covered by an
existing appendix in part 36. Those UAS may choose to comply with the
applicable appendix.
Proposed Sec. Sec. 36.0(c) and (d) would provide options to
demonstrate compliance with part 36 requirements ranging from using
part 36 appendices applicable for aircraft design when the design fits
into existing categories, using FAA-approved noise consensus standards
when they are available, or a combination of requirements as approved
by FAA. FAA has previously acknowledged that existing part 36 standards
and procedures may not be adequate to address noise certification of
certain types of UA.\141\ When no appropriate noise standards exist in
part 36 for an aircraft, FAA has developed limits and procedures that
apply to an individual aircraft model, in the form of rules of
particular applicability (RPA) as an interim approach to noise
certificate aircraft before a generally applicable standard is
developed. FAA has been gaining knowledge and experience on UAS noise
through working with stakeholders, including industry, academia, and
NASA. Further, FAA has
[[Page 38316]]
been actively engaged at ICAO and working with noise experts from other
civil aviation authorities in developing a generally applicable,
internationally harmonized noise standard for UAS designs. Once such
standard is developed at ICAO into Annex 16, FAA expects to go through
the regulatory process to incorporate that standard into part 36 if it
is deemed appropriate. A general noise standard for UAS is unlikely to
be available until after the publication of this proposal.
---------------------------------------------------------------------------
\141\ Noise Certification Standards: Matternet Model M2 Aircraft
final rule; rule of particular applicability, 87 FR 55878 (Sept. 12,
2022).
---------------------------------------------------------------------------
As proposed in the MOSAIC NPRM, Sec. 36.0(c) lists the first
method of compliance that would be available to an aircraft that does
not conform to a type certificate: the use of a noise consensus
standard. FAA expects the industry to develop noise consensus standards
for use by manufacturers of aircraft and by individuals. Before a
consensus standard could be used to demonstrate compliance with part 36
for an aircraft that does not conform to a type certificate, the
standard would have to be approved by FAA and based on part 36 noise
limits. FAA expects that any consensus standards would not be limited
to physical measurements of noise taken during test flights. They might
instead be based on empirical data or analytical modeling if the
underlying noise prediction methods are found to be robust.
In evaluating new noise consensus standards to be used to
demonstrate compliance with Sec. 36.0 for part 108 UAS, FAA expects to
consider the following factors, which are similar to the factors
described in the MOSAIC NPRM:
(1) The methods in the standard, whether based in physical noise
testing or through validated and/or generally accepted noise prediction
methods, are environmentally responsible, economically reasonable,
technologically practicable, and appropriate for the aircraft to which
it would apply (see 49 U.S.C. 44715(b)(4));
(2) The standard must consider developments in other associated
fields (such as research programs into quantification and control of
aircraft noise) and participation by stakeholders;
(3) The noise levels generated from using the prediction methods
must be within 90 percent of confidence limits and must be within +/-3
A-weighted decibels (dBA) when compared to results from using the full
noise measurement procedures in the corresponding appendix of part 36
or an FAA-published RPA for a UAS; and
(4) The standard must clearly document all assumptions used in the
development, validation, results, and limitations of the methods
presented.
FAA expects that these factors would be different in certain
regards from what was described in the MOSAIC NPRM because these
consensus standards would address a relatively new technology that is
designed and operates differently than a traditional manned aircraft.
In particular, the third factor uses a +/-3 dBA difference in the
confidence limit instead of the +/-2 dBA proposed in MOSAIC. This
difference accounts for the evolving prediction methods for UAS.
Further, under this third factor, the consensus standard would be
compared to the prediction methods either in part 36 or in an FAA-
adopted RPA for UA, whereas under MOSAIC, the consensus standard would
only be compared to the procedures in the applicable appendix in part
36.
A modeling-based consensus standard would be expected to reduce the
cost of noise compliance. Not only would there not be a need to
physically test every model (or aircraft), but consensus standards
would also allow manufacturers to use the predictive capabilities of
those standards to guide and support aircraft design decisions in
earlier phases, avoiding costly redesign or modifications.
Accordingly, proposed Sec. 36.0(c) would allow the use of a
consensus standard for an aircraft that does not conform to a type
certificate when the standard has been approved by FAA, and FAA finds
that the standard is appropriate for the aircraft and applies to the
specific design. FAA anticipates that manufacturers of aircraft will
work to develop such noise consensus standards as an added value for
their products, and to facilitate compliance with noise requirements at
an early stage.
If there is no approved noise consensus standard available and
appropriate to the UA, another means of demonstrating compliance with
part 36 would be required. As proposed in MOSAIC, Sec. 36.0(d) lists
the methods of compliance with part 36 available for an aircraft that
does not have an applicable noise consensus standard. The first
determination is whether the aircraft is found by FAA for noise
purposes to be the same as or sufficiently similar to a type-
certificated aircraft covered by Sec. 36.1. If it is the same or
similar, FAA expects to document this determination as part of its
existing noise certification process. As with MOSAIC, in proposed Sec.
36.0(d)(1)(i) for part 108 UA, if FAA finds there is such a type-
certificated aircraft, then the applicant for airworthiness acceptance
may choose to retest its aircraft using the same part 36 standards that
apply to the type-certificated aircraft, or adopting the noise levels
for the type-certificated aircraft that are the same or sufficiently
similar in design to the aircraft when the aircraft has not been
altered to result in an acoustical change. FAA expects that Sec.
36.0(d)(1)(ii) only would apply where the UA would be the same or
sufficiently similar in design to a type certificated aircraft such
that the noise levels are the same. The part 108 aircraft would need to
be able to demonstrate the same noise levels as the type-certificated
aircraft.
Alternatively, if FAA finds that the applicant's aircraft is not
the same or similar to an aircraft noise certificated under Sec. 36.1,
the applicant would be able to demonstrate noise compliance using the
noise requirements determined by FAA to be appropriate for the
aircraft. This provision, proposed Sec. 36.0(d)(2), is intended to
allow the agency the maximum flexibility in finding an acceptable
combination of requirements that are appropriate for the aircraft
presented. FAA would be able to build a noise compliance basis for an
aircraft using parts of current regulations in part 36, regulations in
part 36 that are no longer used for new certifications, accepted noise
compliance standards that are not published in part 36 (such as those
applicable to single aircraft model), and portions of accepted noise
consensus standards. The noise limits established in part 36 would
still apply, but the method of compliance would consist of tests or
analyses that work for a particular aircraft, while allowing for the
whole of the noise compliance basis to be assessed according to the
statutory mandate for economic reasonableness and technological
practicability. This kind of flexibility is not available under Sec.
36.1 for type-certificated aircraft. It is designed to assist
applicants for airworthiness acceptance, especially for new aircraft
designs that do not fit neatly into historical categories.
As an example, FAA has adopted RPA to provide requirements for
specific aircraft.\142\ Those noise requirements have included
modifications to the part 36 test procedures, reference conditions, and
noise limits for the specific aircraft. FAA may provide similar noise
requirements for aircraft under part 108.
---------------------------------------------------------------------------
\142\ FAA has published several in the Federal Register. The
first: Noise Certification Standards: Matternet Model M2 Aircraft,
87 FR 55878 (Sept. 12, 2022). Several have followed, as listed here:
www.faa.gov/about/office_org/headquarters_offices/apl/aee/noise/uas_noise_certification.
---------------------------------------------------------------------------
[[Page 38317]]
4. Exceptions to Noise Applicability
Section 36.0(e) provides exceptions from demonstrating compliance
with the requirements of part 36 for certain aircraft. Paragraphs
(e)(1)-(3) were proposed as part of the MOSAIC NPRM. FAA does not
anticipate that these paragraphs would apply to part 108 UAS because
these exceptions are specific to aircraft with certificates under part
21.
For purposes of part 108, FAA proposes in Sec. 36.0(e)(4) that UAS
designed and used exclusively for agricultural UA operations under part
108 would be excepted from meeting the noise requirements of part 36.
Certain aircraft that historically have been designated exclusively for
agricultural aircraft operations (as defined in 14 CFR 137.3), have
been excepted from the requirements of part 36 (see Sec. 36.1(a)),
subject to some conditions. FAA is proposing to extend this exception
in part 36 for agricultural operations for part 108 UA that are
specifically designed for these operations and have an airworthiness
acceptance that limits the purpose and use of these aircraft to
agricultural operations. As agricultural operations occur largely over
non-populated or rural areas, the imposition of noise standards would
not result in enough public benefit to justify imposing the costs of
compliance.
FAA requests comment on whether any other categories of aircraft
should or should not be subject to part 36 noise requirements,
including any technical or economic data that support the comment.
The process of noise certification for an aircraft that does not
conform to a type certificate is intended to be simpler, with lower
costs for manufacturers and owners that introduce significant
alterations to their aircraft. The traditional processes of
demonstrating compliance to noise requirements can be complex,
requiring technical skills and experience with acoustic measurement
that most aircraft owners do not have. Conducting such testing using
accredited professional services can also be expensive. Moreover, the
best noise performance is often achieved by informed decisions early in
the design process rather than by later design additions or
modifications. Like the noise certification basis for type-certificated
aircraft, FAA must approve the applicable noise compliance standards
for an aircraft before it is tested, or the applicant risks the tests
and data being deemed unusable for demonstrating compliance with part
36. But the addition of consensus standards and the application of
other methods of demonstrating compliance proposed here are all
intended to create a simpler, less restrictive process while
maintaining FAA's mandate to protect the public health and welfare.
5. Other Changes to Noise Certification
As in the MOSAIC NPRM, FAA proposes to amend other sections of part
36 (i.e., Sec. 36.1) to include references to aircraft that do not
conform to a type certificate where the requirements would apply.
The MOSAIC NPRM proposed to amend Sec. 36.3, Compatibility with
airworthiness requirements, by breaking the applicability into two
paragraphs for type-certificated aircraft and aircraft that do not
conform to a type certificate. This proposal would add a new paragraph
(c) to specifically address part 108 UAS. This new paragraph would
maintain the requirements currently in Sec. 36.3, but tailor the
requirements to the airworthiness acceptance process that is described
in subparts G and H of part 108. No changes to the existing
requirements of the section are proposed.
Building on the MOSAIC proposal, Sec. 36.1501, Procedures, noise
levels, and other information, would be amended by adding a sentence
indicating that the operating instructions for aircraft under part 108
would have to include the noise levels achieved during airworthiness
acceptance. This proposal would be consistent with the requirements for
other aircraft subject to part 36. No changes to the existing
requirements of the section are proposed.
This proposal also builds on the MOSAIC NPRM proposal to amend
Sec. 36.1581, Manuals, markings, and placards, by adding a new
paragraph (h) to describe the requirements for an aircraft that does
not conform to a type certificate. This proposal would add text to the
introductory language in paragraph (h) indicating that for aircraft
subject to part 108, compliance with part 36 must be documented as
described in Sec. 108.720. A parallel requirement is in proposed Sec.
108.720(a)(1), which would require that the operating instructions
include the statements of compliance required under Sec. 36.1581(h).
As proposed, the operating instructions would include a statement that
the aircraft has demonstrated compliance with part 36 and the
demonstrated noise levels of the aircraft. In addition, paragraph (h)
also would state that no operating limitations are prescribed as part
of part 36 certification, and that part 36 does not affect any
operating limitations designated for an aircraft by other regulations.
The actual operating limitations statement is included in the new
paragraph (h) because the current paragraph of Sec. 36.1581 where it
appears applies only to type-certificated aircraft.
B. Updates to Other Operating Rules
1. Part 43--Maintenance, Preventive Maintenance, Rebuilding, and
Alteration
FAA proposes to amend the applicability in Sec. 43.1 to provide
that part 43 does not apply to aircraft being operated under part 108.
As with part 107, the regulations proposed in part 108 would govern
maintenance and alterations of UAS receiving airworthiness acceptance
and conducting operations within the United States under part 108. As
such, the maintenance and alteration requirements in part 43 would not
apply to these UAS. However, the maintenance and alterations for UAS
that are operated under part 91 are maintained in accordance with part
43 of this chapter as applicable, and the requirements of part 108
likewise would not apply.
2. Part 45--Identification and Registration Marking
FAA is proposing changes to the applicability of part 45 as well as
conforming amendments to Sec. Sec. 45.10, 45.11, 45.13, and 45.29.
These additions are fully discussed in section X.Y of this preamble.
3. Part 48--Registration and Marking Requirements for Small Unmanned
Aircraft
FAA proposes to amend the applicability of part 48 in Sec. 48.1 to
provide that part 48 does not apply to aircraft being operated under
part 108. This change is fully discussed in section VI.A.2 of this
preamble.
FAA is also proposing to change the requirement in 14 CFR
48.110(a)(7) to allow the serial number of a remote identification
broadcast module to be listed on more than one Certificate of Aircraft
registration only when the applicant information required in Sec. Sec.
48.110 (a)(1)-(a)(4), is the same on all Certificates of Aircraft
Registration. This change will allow remote identification broadcast
modules to be more easily shared between small unmanned aircraft owned
by the same person or entity. This change primarily affects owners of
unmanned aircraft that are issued a certificate of aircraft
registration pursuant to Sec. 48.100 for small unmanned aircraft
operated for
[[Page 38318]]
any purpose other than exclusively limited recreational operations.
Currently, owners of small unmanned aircraft operated for any purpose
other than exclusively limited recreational operations must delete and
then re-enter the remote identification serial number information on a
Certificate of Aircraft Registration when a remote identification
broadcast module is moved from one small unmanned aircraft to another
owned by the same person or entity. This change will eliminate this
burden, while still ensuring that the remote identification broadcast
information can be associated with the registered owner or entity.
4. Part 89--Remote Identification
FAA is proposing the addition of Sec. 89.511 as well as conforming
amendments to Sec. 89.505 and Sec. 89.515. These additions are fully
discussed in section VI.K of this preamble.
5. Part 91--General Operating and Flight Rules
i. Applicability
FAA proposes to amend the applicability of Sec. 91.1 to describe
that, except as provided in Sec. 108.180, part 91 does not apply to
aircraft being operated under part 108. As with part 107, the
regulations proposed in part 108 would govern operations of UAS
conducted BVLOS within the United States. As such, the requirements in
part 91 would not apply to those operations. However, corresponding
changes to Sec. Sec. 91.113 and 91.225 are needed, as discussed below,
to accommodate the proposed updates to right of way requirements for
aircraft operations under part 91.
ii. Right-of-Way Rules: Except Water Operations
FAA proposes to amend Sec. 91.113 to inform operators operating
under part 91 of the new right-of-way construct proposed with the
issuance of part 108. Specifically, that a UA conducting operations
under part 108 of this chapter would have the right-of-way over other
aircraft in flight unless the other aircraft is operating in a Category
5 population density area as described in Sec. 108.185, operating in
Class B or C airspace as described in Sec. 108.180(b), or departing
from or arriving at an airport or heliport. Manned aircraft also have
right-of-way if they are equipped and broadcasting their aircraft's
location using ADS-B Out equipment that meets the requirements of Sec.
91.227, or electronic conspicuity equipment that meets the performance
requirements of Sec. 108.195(a)(2)(ii). FAA proposes to make these
conforming updates in part 91 to establish that the change to the
right-of-way rules is generally applicable. For further discussion on
the proposed changes to right-of-way requirements, see section VI.J.
iii. Automatic Dependent Surveillance-Broadcast (ADS-B) Out Equipment
and Use
FAA further proposes to amend Sec. 91.225 to except ADS-B Out
equipment from operating in the transmit mode when operated solely to
meet the conspicuity requirements as proposed in the revised Sec.
91.113 and proposed Sec. 108.195. As discussed in section VI,
equipment operated per proposed Sec. 91.225(f)(3) will not meet the
requirements of ADS-B Out equipment operated to comply with either
Sec. 91.225 or Sec. 91.227, nor is it intended to be used for air
traffic. The equipment operated to meet conspicuity requirements would
only be used to make a UA aware of the presence of a manned aircraft
that the UA must yield to. Therefore, FAA is proposing that the use of
this equipment would be at the discretion of the individual operator.
6. Part 107--Small Unmanned Aircraft Systems
i. Applicability
FAA proposes amending Sec. 107.1(b)(3) by removing the reference
to section 333 of Public Law 112-95. Section 333 was replaced by 49
U.S.C. 44807 in the 2018 FAA Reauthorization Act. The last exemptions
issued under section 333 were issued in 2018 and had 2-year durations,
therefore expiring in 2020. As there are no longer any section 333
exemptions, it is unnecessary to include the reference in the
regulation any longer.
FAA proposes amending Sec. 107.1(b)(4) by striking the words
``that has been issued an airworthiness certificate.'' This simplifies
the applicability of part 107 by simply referencing aircraft that are
operating under part 91, whether or not they have an airworthiness
certificate. This amendment accounts for any aircraft that are
operating under part 91 with a determination made under 49 U.S.C. 44807
that an airworthiness certificate is not needed for the operation.
FAA proposes adding Sec. 107.1(b)(5) to state that part 107 does
not apply to the operation of UAS BVLOS operations. As proposed part
108 is specifically intended to cover all BVLOS operations, it is
logical to explicitly state that BVLOS operations would not be covered
by part 107, in order to avoid any confusion.
FAA proposes adding Sec. 107.1(b)(6) to state that part 107 does
not apply to the carriage of property or packages by aircraft for
compensation or hire. This amendment to Sec. 107.1 would reflect the
proposed amendments to part 107 rules relating to air carriers. For
more information, refer to section XII.B of this preamble.
ii. Aviation Safety Reporting Program
FAA proposes to add Sec. 107.8, which would prohibit FAA
Administrator from using reports submitted to NASA under the Aviation
Safety Reporting Program (or information derived therefrom) in any
enforcement action except information concerning accidents or criminal
offenses, which are wholly excluded from the Aviation Safety Reporting
Program. As discussed in section V.B.4, adding this prohibition to part
107 would be consistent with how such reports are protected and used
for part 91 pilots and other airspace users who are subject to FAA
regulations. FAA and NASA have recognized the benefit of having
accurate, candid, and timely reports of unsafe (or potentially unsafe)
conditions in the NAS, and this would create that same consistency
within part 107.
iii. Prohibition on Interference With a Remote Pilot in Command
FAA proposes to add Sec. 107.10, which would codify that no person
may assault, threaten, intimidate, or interfere with a remote pilot in
command or visual observer in the performance of their duties regarding
the operation of a UA. As discussed in section V.B.2, this requirement
is necessary to protect the safety or efficiency of the NAS. Bad actors
who interfere with UAS operations may endanger public safety and
persons or property--both in the air or the ground--which is anathema
to FAA's obligation to ensure the safe and efficient use of the NAS.
iv. Updates to Certain Areas Within Controlled Airspace at or Below 400
Feet AGL
FAA proposes to amend Sec. 107.41 to enable the same access to
certain areas within controlled airspace at or below 400 feet AGL as
part 108 operators. Under this amendment, airspace authorization would
only be required in those portions of Class B, Class C, or Class D
airspace or within the lateral boundaries of the surface area of Class
E airspace designated for an airport that FAA specifically designates
as requiring authorization.
Currently, operators under part 107 must obtain an authorization
from FAA to access any area within controlled airspace on a case-by-
case basis. This is accomplished by using either
[[Page 38319]]
FAADroneZone or a LAANC service provider.
LAANC and FAADroneZone collect data about the operator, including
contact information, location and altitude of operation, date of
operation, and time of operation. Once the operator has authorization
through LAANC or FAADroneZone, they usually do not have any other
interaction with FAA prior to accessing the airspace. FAA is currently
reviewing the requirement to collect this data considering no air
traffic services are being given to UAS operating 400' AGL and below.
Designated airspace requiring prior authorization would be compiled
annually in FAA Order JO 7400.[XX], which FAA would incorporate by
reference into Sec. 107.41. FAA would then publish periodic
designation updates for airspace requiring prior authorization in the
Federal Register and seek public comment through an NPRM. After
considering comments and making any appropriate adjustments, FAA would
publish the adopted designation updates in a final rule. At the end of
the year, FAA would apply the updates to FAA Order JO 7400.[XX+1] and
then incorporate the new version of the Order by reference. The
currently incorporated version of FAA Order JO 7400.[XX] would be
available on FAA's website, along with any periodic updates. In
addition to making these designations available on its website, the
agency anticipates making electronic information available for service
providers to incorporate into their UAS information service offerings.
Finally, FAA recognizes that, under certain circumstances, it could
need to designate additional controlled airspace as requiring
authorization, on an immediate or temporary basis. Accordingly, FAA
proposes that, to maintain safety or security of aircraft operations,
the Administrator may designate additional controlled airspace as
requiring authorization under this section.
v. Technical Amendment To Remove Airspace Waiver
FAA is also proposing a technical amendment to Sec. 107.205 that
would eliminate paragraph (h) of that section and no longer allow the
waiver of Sec. 107.41 (Operation in certain airspace). Section 107.41
generally prohibited small UAS from operating in controlled airspace
unless authorized by ATC. FAA made that provision waivable because it
anticipated that among the many requests to operate in controlled
airspace, there would be some premised on the technical capabilities of
the small UAS operation and that the safety analysis would prove
burdensome to ATC. However, since the rule, FAA made it possible for
small UAS operators to easily and efficiently request for authorization
to operate in controlled airspace online (e.g., LAANC or FAADroneZone)
and for FAA to grant or deny the authorizations without overly taxing
ATC. As a result, FAA has the ability to process all small UAS airspace
authorization requests through these online tools without having to use
the waiver process. Indeed, FAA no longer uses the waiver process for
this purpose. For that reason, FAA is proposing to make this technical
amendment to eliminate a provision that is no longer used that may
cause confusion for small UAS operators.
vi. Updates to Rules Governing BVLOS and Operations for Compensation or
Hire
FAA proposes to amend Sec. 107.1 to remove the applicability of
part 107 to the operation of UAS beyond the VLOS of the operator. Since
part 108 will be the rule set that governs the operation of UA BVLOS of
the operator, it no longer makes sense to provide waivers to the part
107 rules for this type of activity. Any relief sought should be done
under the auspices of part 108.
FAA proposes to further amend Sec. 107.1 and Sec. 107.205 to
restrict the carriage of any property or packages by aircraft for
compensation or hire. This had previously been allowed under part 107
in limited circumstances, primarily as long as the delivery was within
line of sight of the remote pilot in command. Coupled with other
restrictions in part 107, such as the prohibitions from operating over
people and the restrictions on the carriage of hazmat, this was not
intended to be a widespread activity and was not intended for large
commercial ventures. The risk structure of part 107, which does not
require any type of UAS design assurance, nor any form of operator
qualifications, does not align with the risks posed with large
commercial ventures. Therefore, FAA intends to remove the applicability
for the carriage of property or packages by aircraft for compensation
or hire from part 107 and restrict that activity to part 108, which is
more risk appropriate. Part 108 will require all UA to have design
assurance and an airworthiness acceptance issued by the manufacturer of
the aircraft. Furthermore, the operator will have to attest to their
capability to conduct safe operations and receive either an operating
permit or operating certificate to conduct operations. Operators will
also have to receive approvals for each area they intend to operate in,
which will give FAA more visibility of where operations are occurring
and provide for better ability to oversee these types of activities.
7. Part 119--Certification: Air Carriers and Commercial Operators
FAA proposes to amend the applicability of Sec. 119.1 to describe
that part 119 does not apply to aircraft operated under part 108. When
promulgating part 107, FAA noted that the time was not then appropriate
for creating a process for air carriers for UAS operations.\143\As
discussed in the 2016 Final Rule, the Department has continued to
assess if the requirements for air carriers are appropriate for UAS
operations, including the need for air carrier certificates issued
under part 119 and the operating regulations of part 135 or part 121.
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\143\ 81 FR 42036, 42076 (June 28, 2016).
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In developing the proposed regulations for part 108, FAA concluded
that it is not necessary to include part 108 operations within part
119, as proposed part 108 incorporates the relevant aspects of part 119
in a manner that is appropriate for UAS that can be operated under this
part. For more details, please refer to section IX.B.1.
8. Part 133--Rotorcraft External-Load Operations
FAA proposes to amend the applicability of Sec. 133.1 to state
that part 133 does not apply to aircraft operated under part 108. Part
133 prescribes the requirements for external load rotorcraft
operations. As with part 107 operations, FAA has determined that the
requirements for external load operations are not analogous to part 108
operations. The proposed design requirements of part 108, combined with
the operational limitations proposed in part 108 obviate the associated
risk of external load operations.
9. Part 135--Operating Requirements: Commuter and on Demand Operations
and Rules Governing Persons on Board Such Aircraft
FAA proposes to amend the applicability of Sec. 135.1 to state
that part 135 does not apply to aircraft operated under part 108. Part
108 is a fully contained set of operating requirements necessary for
the safe conduct of BVLOS operations in the United States. Therefore,
the operating requirements in part 135 would not be applicable to these
operations and would only result in confusion if applied to part 108
BVLOS operations. In addition, BVLOS UA operations currently being
[[Page 38320]]
conducted under part 135 are expected to transition to part 108 within
a reasonable timeframe after the rule becomes effective. FAA
understands that, to make that transition, existing operators will need
time to update their fleets with UA that conform to the airworthiness
requirements of the rule and meet other regulatory obligations.
However, FAA does not intend for these operations to continue under
part 135 for an indefinite amount of time.
10. Part 137--Agricultural Aircraft Operations
FAA proposes to amend the applicability of Sec. 137.1 to state
that part 137 does not apply to aircraft operated under part 108. As
further discussed in sections VIII.B and VIII.C, this rule proposes
requirements for agricultural operations conducted with UAS. These
proposed requirements are specific to the operating profile of UAS,
unlike the regulations in part 137, which were developed and
implemented for traditional manned aviation. In the course of issuing
exemptions from various part 137 regulations for UAS, FAA has
determined what the appropriate requirements are for UAS agricultural
operations, as captured in this proposed part 108, and thus it is not
necessary to apply the requirements of part 137 to these types of
operations. In addition, BVLOS UA operations currently being conducted
under part 137 are expected to transition to part 108 within a
reasonable timeframe after the rule becomes effective. FAA understands
that, to make that transition, existing operators will need time to
update their fleets with UA that conform to the airworthiness
requirements of the rule and meet other regulatory obligations.
However, FAA does not intend for these operations to continue under
part 137 for an indefinite amount of time.
XIII. Part 146: Automated Data Service Providers
A. Introduction
FAA recognizes the pressing need to enable UTM services, which help
manage risks for BVLOS UAS operations.\144\ Facilitating the use of
automated data services is an important step in realizing UTM services
that could optimize NAS safety, security, and efficiency. Through this
rulemaking, FAA proposes to create a regulatory framework that would
enable the development, growth, and continued innovation of automated
data services, beginning with those in support of the UTM ecosystem.
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\144\ The term ``UTM'' refers to a set of automated data
services provided by a federated, distributed network of providers
and an all-encompassing framework for managing multiple UAS
operations. UTM system relies on NAS users and service providers to
provide the services that collectively form the UTM ecosystem. The
ecosystem will eventually include services for flight planning,
communications, collision avoidance, and weather, among other
capabilities.
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Data automation is a method of data management that relies on
technology to collect, process, analyze, and transform raw data into
usable information. Typically, automated data service providers use a
distributed computational system--essentially a network--to gather raw
data, process it, and then provide it in a usable format to the data
recipient or user. FAA proposes a new part 146 to regulate those
providers who use data automation systems to support certain UTM
services necessary for BVLOS operations. The automated data service
providers subject to regulation under proposed part 146 may, or may
not, be directly involved in the aircraft operation. Nonetheless, they
would provide flight services to help operators conduct their
operations safely and efficiently. As such, FAA anticipates that most
BVLOS operations would rely on automated data services to meet
operational requirements proposed in part 108. Other operators may also
rely on automated data service to fulfill their operational
requirements, which are further discussed later in this proposed
rule.\145\
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\145\ See section XIII.F.3 for a further discussion on the
breakdown of operations that may be supported via automated data
services provided through part 146.
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Automated data services may fulfill a variety of purposes depending
on their exact functionality. Nonetheless, as discussed later in this
preamble, FAA is only interested in automated data services that
support operators in fulfilling their operational obligation without
compromising the safety or efficiency of the NAS. In other words, only
automated data services that are used by operators to mitigate
additional risk that may be introduced in the NAS as a result of their
aircraft operation would be subject to this rulemaking, i.e., part 146
requirements.
FAA anticipates many benefits from enabling the provision of
automated data services. For example, automated data services that
provide strategic deconfliction of UAS operations would reduce the risk
of midair collision between UA, thereby reducing the risk of harm to
people and property on the ground. Other kinds of automated data
services may support operators' DAA responsibilities, which would
include providing surveillance information or avoidance maneuvering
instructions. Automated data services may also help operators avoid
flight into terrain or dangerous weather, or loss of flight control, by
providing operators with specialized data before and during flight
operations to manage a variety of risk factors. These data service
providers will play an important role in addressing safety concerns and
in mitigating risk inherent in BVLOS operations. Because of this key
role, these data service providers warrant FAA oversight to help ensure
the continued safety and efficiency of the airspace.
Some stakeholders may be more familiar with the concept of
automated data service provider under other names. For example,
``third-party service provider'', ``UAS service supplier (USS)'', or
``Supplemental Data Service Provider (SDSP)'' are concepts familiar to
many stakeholders active in the UA industry. This is because operators
often outsource complex data functions that support unmanned flight
operations to these third parties with the appropriate technological
expertise, equipment, and scaled networks. Under proposed part 146, all
these services and providers of those services that would fall within
the umbrella term automated data service provider.
Whether the automated data services are self-provided or outsourced
to a third-party, any entity that provides an automated data service
which FAA requires to be certified under part 146 would be subject to
proposed part 146 regulations.\146\ As stated earlier, not every
automated data service provider would necessarily fall within the scope
of proposed 146. Only those that provide the automated data services to
support an aircraft operators' ability to comply with an FAA regulation
would be subject to part 146. Put simply, if an operator is using the
automated data service provider to do something for which FAA requires
a certified service provider, then the provider, as well as the
automated data service that the operator uses, will be subject to part
146 requirements. For example, an entity providing strategic
deconfliction services for BVLOS operations in
[[Page 38321]]
controlled airspace under part 108 would be subject to proposed part
146. This is because certificated strategic deconfliction is a
requirement for those operations. Conversely, an entity providing
automated data services to monitor the temperature of perishable cargo
such as food deliveries or blood samples would not be subject to part
146 requirements. This is because though important to the operator,
monitoring this is not an aviation safety or efficiency concern
regulated by this chapter. And as proposed in this rule, FAA would
require automated data services to be services that promote NAS safety
and efficiency, as well as support an operator's ability to comply with
an FAA requirement, to fall within the scope of part 146. Services that
meet these requirements would be eligible, but not required, to obtain
a 146 certificate, if the service they offer is not required to be
provided by a 146 certified provider.
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\146\ By mentioning self-provisioned automated data services,
FAA means automated data provided in-house by the operator to
support their own aircraft operations. In this scenario, the
operator would still be subject to undergoing the part 146
certification and service authorization process to provide their own
automated data service. FAA is taking this approach to ensure that
any automated data service introduced into the NAS, regardless of
the service being provided by a third-party vendor or self-
provisioned by the operator, that FAA must first vet the service.
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The emergence of automated data service providers presents FAA with
an opportunity to consider FAA's oversight role in a way that is
responsive to the pace of technological advances and the safety and
efficiency of the airspace. Recent and ongoing innovations in the
aviation market are expected to bring various benefits, but also
present corresponding risks. To keep pace with these technological
advances, while maintaining the safety and efficiency of the NAS, FAA
is taking an incremental approach toward regulating automated data
services. This proposed rule would focus on services that enable
operations under proposed part 108; however, it could be scaled to
support more complex unmanned and manned aircraft data services
including through future rulemaking(s) that enable services to support
operations by aircraft with a pilot on board. Automated data service
providers may eventually provide services that would support larger and
more complex aircraft operations, such as those that would support the
advanced air mobility (AAM) market.\147\ While FAA has considered how
automated data services can support operations under the
particularities of a part 108 operational paradigm developed for
unmanned aircraft operating in limited airspace areas and below 400
feet, it has not considered under what conditions these services could
be applied in established operational constructs for traditional manned
or AAM aircraft. Importantly, the services themselves are in a nascent
stage and will evolve quickly as part 108 operations increase. As the
automated data service industry matures, FAA will undoubtedly consider
ways to leverage the services to benefit other aviation sectors.\148\
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\147\ FAA Reauthorization Act of 2024 (Pub. L. 118-63, section
951) defines AAM as a transportation system that uses manned or
unmanned aircraft that is comprised of urban air mobility (the
movement of passengers or property by air between two points in
different cities or two points within the same city using an
airworthy aircraft that has advanced technologies, such as
distributed propulsion, vertical takeoff and landing, powered lift,
nontraditional power systems, or autonomous technologies; and has a
maximum takeoff weight of greater than 1,320 pounds), and regional
air mobility (the movement of passengers or property by air between
two points using an airworthy aircraft that has advanced
technologies, such as distributed propulsion, vertical takeoff and
landing, powered lift, nontraditional power systems, or autonomous
technologies; a maximum takeoff weight of greater than 1,320 pounds;
and is not urban air mobility).
\148\ For these reasons and more, which are discussed in the
following section of this preamble, FAA does not intend to limit
services provided by automated data service providers to those that
only support UAS operations, even if it is anticipated that proposed
part 146 would predominantly be used to support UAS BVLOS operations
under proposed part 108, at this time.
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There are inherent challenges associated with regulating technology
services. FAA recognizes that prescriptive requirements or technical
specifications could be outdated or obsolete before it can complete the
rulemaking process. To balance the need to enable innovative services,
maintain the safety and efficiency of the NAS, and be nimble enough to
accommodate rapid technological changes, FAA proposes flexible,
performance-based requirements that can evolve as technology advances
in this dynamic operating environment. FAA proposes a risk-based
regulatory approach that draws on FAA's long history and experience
managing risk in the NAS, but also incorporates novel elements
appropriate for the dynamic nature of the technology sector. For these
reasons and consistent with this proposed rule's overall approach, FAA
proposes to leverage the work and expertise of voluntary consensus
standard bodies as it evaluates the safety and effectiveness of
automated data service providers. FAA would rely on industry-led
consensus standards and capitalize on the adaptability they offer.
Parties applying to operate as an ADSP would still need to meet FAA
requirements and any public interest requirements.
Aircraft traffic management for BVLOS operations under proposed
part 108 is fundamentally distinct and separate from traditional ATM.
For traditional aviation, FAA engages in both ATC and ATM. The primary
responsibility of ATC is the separation of aircraft. They control
traffic in and around airports, in the terminal, and through en route
airspace. Controllers speak directly with pilots, notifying them of
traffic or weather statuses in their vicinity. Pilots depend on the
instructions they receive from ATC to travel safely and efficiently. In
contrast, air traffic managers facilitate a ``system approach'' to
managing traffic that considers the impact of individual actions on the
whole system. Managing disruptions in airspace capacity (for example
caused by bad weather, traffic overloads, or emergencies) requires
consideration of who or what may be impacted by events, and a
coordinated mitigation effort to ensure safety and efficiency in the
delivery of air traffic services. These services are critical to
ensuring the safety and efficiency of the NAS.
FAA has preliminarily concluded that the traditional model of ATM
is not proportional, relative to the low level of risk BVLOS operations
under part 108 would introduce to the NAS. This is especially true
because, as proposed, FAA places operational requirements as well as
aircraft airworthiness requirements--including SUI--on the UAS to
mitigate the inherent risk associated with conducting BVLOS operations
under part 108.\149\ Taking a risk-based approach, FAA does not propose
to manage either separation of aircraft or the system-wide efficiency
of part 108 operations through its ATC and ATM functions. Instead, to
address the likely risk these operations may pose to other emerging
entrants, traditional aviation, people and property on the ground, and
the overall efficiency of the NAS, FAA proposes to create a regulatory
framework under which operators can rely on automated data service
providers to aggregate and disseminate information about operations--
especially to appropriately deconflict BVLOS operations. Service
providers will still be subject to FAA oversight and review to ensure
their services are conducted adhering to principles the public has come
to expect from existing air traffic services, including the ability to
access public airspace.
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\149\ As stated earlier in this preamble, the aircraft
airworthiness requirements proposed under part 108 aim to prevent
loss of flight or loss of control incidents stemming from factors
such as structural integrity, software and hardware functionality,
performance attributes, and operational factors. The design and
performance standards would require the UAS to withstand all
expected flight and ground loads during its operations without
compromising the UAS's safe operation.
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Under this proposal, UTM would essentially be a federated network
of information to provide all users with
[[Page 38322]]
situational awareness of other operations in the airspace. Instead of
FAA playing a centralized role in separation and efficiency of UA
flights, the automated data service providers would provide information
that operators would need to deconflict and manage the efficiency of
their own operations. As a result, the term ``unmanned traffic
management'' may be a misnomer. More accurately, the UTM system FAA
proposes to adopt is better described as providing the information
operators need to manage their own operations safely and efficiently.
Moreover, FAA concluded that it would be neither practical nor
efficient for FAA to model UTM services on traditional ATM. First, FAA
could not effectively provide ATM-like services for UAS using existing
equipment and technologies. Air traffic surveillance systems were
designed to identify aircraft large enough to carry people on board. As
a result, radar and other surveillance systems do not reliably detect
UAS, which are usually significantly smaller than aircraft that
transport people. While other objects, such as birds, are sometimes
detected on radar, this is not consistent or predictable because the
efficacy of finding these objects depends on terrain and other local
conditions. As such, FAA surveillance systems are not suitable to
reliably track small and highly maneuverable objects such as UAS. These
systems were designed to help controllers identify, track, and separate
manned aircraft that primarily operate above 400 feet AGL. At lower
altitudes, differences in terrain can interfere with accurate radar
returns. For example, there are many areas within U.S. controlled
airspace that feature hills, valleys, mountains, and other natural
features that radar cannot penetrate. In addition, FAA surveillance
systems must filter out false targets generated by phenomena such as
trucks driving on bridges. Densely populated areas may also have man-
made structures that serve as obstacles interfering with the efficacy
of radar and other surveillance tools. In sum, FAA does not currently
have the minimum tools and technology to provide consistent or reliable
ATM-like services for UAS operating at 400 feet AGL and below.
Second, even if FAA could acquire the appropriate tools and
technology to identify and track UAS operating 400 feet AGL and below,
FAA would nonetheless face challenges staffing these operations.\150\
FAA could not add these responsibilities to existing air traffic
controllers because they would direct controllers' attention away from
managing the rest of the traffic in the NAS and could thereby introduce
a new hazard to traffic management for manned aircraft operating at
higher altitudes. Accordingly, to provide ATM-like services, FAA would
have to find a way to staff ATM operations at each of its 520 ATC tower
facilities and 147 Terminal Radar Approach Control (TRACON)
facilities.\151\ Such an increase in responsibilities would require an
exponential increase in the existing air traffic controller
workforce.\152\ FAA does not currently have the resources to
sufficiently support that effort.
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\150\ FAA is both the civil aviation authority and the air
navigation service provider (ANSP) for the United States. FAA has
statutory responsibilities to set standards and certify aircraft,
airmen, and facilities per sections 106(g) and 40101 of 49 U.S.C. In
addition, per 106(g) and 40103 of 49 U.S.C., FAA is responsible for
ensuring the safe and efficient use of navigable airspace. FAA
carries out its responsibilities by developing air traffic rules,
assigning the use of airspace, and controlling air traffic through a
complex network of air traffic control towers, terminal radar
approach control facilities, air route traffic control centers, and
flight service stations. Each day, FAA is responsible for serving
tens of thousands of commercial and private aircraft operating in 29
million square miles of airspace. Through its ATM system, FAA
coordinates the movements of these aircraft to ensure they operate
at safe distances from each other and to manage disruptions to
normal air traffic flow. FAA's ability to manage air traffic in the
airspace of the United States is predicated on the Agency knowing
who is operating in the airspace and, if necessary, on being able to
communicate with those airspace users. About 45,000 flights are
handled by FAA ATC per day. FAA estimates 858,000 commercial drones
will be registered by 2026; if 5% of those flew in a given day, and
ATC provided services to those flights, it would double the number
of flights covered.
\151\ Available at www.faa.gov/air_traffic/by_the_numbers.
\152\ Pang, Y., et al. Air Traffic Controller Workload Level
Prediction using Conformalized Dynamical Graph Learning (2023),
available at arxiv.org/pdf/2307.10559.pdf.
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Since ATM services are not tailored to the needs of UA operating in
the NAS,\153\ other types of services are necessary to ensure BVLOS
operations are safe and efficient. For the purposes of enabling BVLOS
operations proposed in this rule, UTM services would have to include
strategic deconfliction and conformance monitoring.\154\ In addition,
FAA will have to create conditions for stakeholders to innovate and
develop other technological solutions to enhance aircraft operations
and mitigate risk. For this type of crowd-sourced data or network to
work, everyone contributing data or other information services to the
UTM system must be reliable and consistent. All stakeholders must have
confidence that each service provider meets the same minimum standards,
and that there is no ``weak link'' in the interdependent system.
Proposed part 146 would meet this need by establishing the minimum
standards and oversight responsibilities necessary to enable a
successful, stakeholder-driven UTM system. FAA will also need to assess
the procedures and operations of networks to ensure that they are
consistent and adhering to FAA regulation and policy.
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\153\ Unlike the ATM system that is managed by FAA, the UTM
system relies on NAS users and service providers to provide the
services that collectively form the UTM ecosystem.
\154\ See proposed Sec. 108.190 regarding the requirements for
strategic deconfliction and conformance monitoring when conducting
certain operations under part 108.
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B. Legal Authority To Regulate Automated Data Service Providers
Prior to FAA Reauthorization Act of 2024, Public Law 118-63,
section 932, which directs FAA Administrator to establish procedures,
including rulemaking, to approve third-party service suppliers--
discussed in section II.B of this preamble--Congress has long focused
on directing FAA's incremental approach to regulating automated data
service providers and their services. First, Congress directed FAA to
develop a comprehensive plan for UAS integration in FAA Modernization
and Reform Act of 2012 (Pub. L. 112-95), codified at 49 U.S.C. 44802.
Subsequently, Congress updated section 44802 in the Reauthorization Act
of 2018, directing FAA to consider ``the potential use of UTM and other
technologies to ensure the safe and lawful operation of unmanned
aircraft in the NAS.'' \155\ Furthermore, Congress specifically
directed FAA to create a UTM Implementation Plan.\156\ Congress
contemplated that UTM systems would be ``privately operated'' and
directed FAA to ``outline the roles and responsibilities of industry
and government in establishing UTM services,'' while also ``recognizing
the primary private sector role in the development and implementation
of [. . .] future expanded UTM services.'' \157\ In addition, Congress
requested the development of safety standards related to UTM services
applicable to unmanned aircraft operations below 400 feet AGL.\158\
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\155\ See Public Law 115-254, 342(b)(1) (2018).
\156\ Id. at Sec. 376(c).
\157\ Id. at Sec. Sec. 360(b)(6) and 376(c)(2).
\158\ Id. at Sec. 376(d).
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Second, FAA has authority to regulate air agencies under chapter
447 of 49 U.S.C. Under statute, FAA may issue certificates to air
agencies (49 U.S.C.
[[Page 38323]]
44702) as well as ``examine and rate'' air agencies (49 U.S.C. 44707).
Congress defined air agencies to include certain aviation schools
(Sec. 44707(1)), repair stations (Sec. 44707(2)), and ``other air
agencies the Administrator decides are necessary in the public
interest'' (Sec. 44702(3)). FAA proposes to regulate automated data
service providers that support aircraft operations using a distributed
computational system under this authority to regulate air
agencies.\159\ Regulation of these automated data service providers is
necessary in the public interest. In 49 U.S.C. 40101(d), Congress
identified the following matters for FAA to consider as being in the
public interest: ``assigning, maintaining, and enhancing safety and
security'' and ``encouraging and developing civil aeronautics,
including new aviation technology.'' Enabling automated data services
to mitigate the potential risk that BVLOS operations could pose to the
NAS would enhance aviation safety and aid in the development of new
aviation technology.
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\159\ See 49 U.S.C. chapter 447.
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Lastly, and most recently, FAA Reauthorization Act of 2024 directs
FAA Administrator to establish procedures, including rulemakings, to
approve third-party service suppliers, including those who supply UTM
services to support the safe integration and commercial operation of
UAS.160 161 In accordance with this provision, FAA
Administrator must ensure, to the maximum extent practicable, that
industry consensus standards are included as an acceptable MOC in the
approval process for third-party services. Further, in establishing
this approval process, Congress directs FAA Administrator to ``define
and implement criteria and conditions for the approval and oversight of
third-party service suppliers that (A) could have a direct or indirect
impact on air traffic services in the NAS and (B) require FAA
oversight.'' \162\ In addition, the Administrator ``shall establish
procedures by which UAS can use the capabilities and services of third-
party service suppliers to support operations.'' \163\
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\160\ Per Sec. 932(f) of Public Law 118-63, third-party service
supplier means ``an entity other than FAA that provides a
distributed service that affects the safety or efficiency of the
national airspace system, including UAS service suppliers,
supplemental data service providers, and infrastructure providers,
such as providers of ground-based surveillance, command-and-control,
and information exchange to another party.'' FAA's proposal for
defining automated data service provider, who are also referred to
as third-party service suppliers, is in alignment with this
definition.
\161\ See Public Law 118-63, 932.
\162\ Id. at Sec. 932(c)(1).
\163\ Id. at Sec. 932(c)(2).
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In response to these congressional directions, FAA would establish
the regulatory framework and the requirements for regulating automated
data service providers as well as their service in proposed part 146.
Automated data service providers would be regulated as air agencies;
and FAA would rely on the use of industry standards, to the maximum
extent practicable, to develop requirements of those services.
C. BVLOS ARC Recommendations
In 2021, the BVLOS ARC issued recommendation TP 2.1, stating that
``FAA should adopt a regulatory scheme for third-party services to be
used in support of UAS BVLOS.'' The BVLOS ARC further recommended that
FAA issue certificates to ``third-party service providers'' (including
UTM service providers) that fall into one of seven categories based on
the functionality of the service that is being provided. At a high
level, proposed part 146 is based on this recommendation; however, the
specifics of part 146 differ from the ARC recommendations in a few key
areas.
The BVLOS ARC recommended that FAA follow a MOC and DOC approach
for certificating automated data services, similar to the process FAA
adopted for broadcast Remote Identification (ID) under 14 CFR part 89.
FAA agrees that some automated data service providers should be able to
use a DOC to comply with regulatory requirements; however, fundamental
differences between UTM services and remote identification mean that
FAA cannot rely wholly on the DOC process to address safety and
efficiency concerns.
FAA promulgated the Remote ID rule in response to concerns about
public safety and security. The remote identification data elements
provide information to government officials and other people on the
ground or in the air about UA operations. The information can be used
to distinguish compliant airspace users from those potentially posing a
safety or security risk. A failure of a broadcast Remote ID module
affects a single UAS, and such a failure is unlikely to cause an unsafe
condition beyond that which may already exist. In contrast, automated
data services may support or manage hundreds or thousands of UAS at
once. A service failure may have cascading impacts on other services
and on many UAS in different parts of the NAS. In this interdependent
system, a small failure could have outsized consequences. FAA does not
believe the DOC and MOC model is responsive to the type of risk an
automated data service failure could present to the UTM ecosystem. As a
result, FAA determined that in some, but not all, circumstances, the
potential consequences of failure demand a higher level of oversight
and scrutiny from FAA.
The BVLOS ARC also recommended that anyone should be able to apply
to FAA to receive an automated data service provider certification--
with minimal information about how the provider is structured. FAA
determined that such an approach is inconsistent with how the Agency
regulates other users. To determine that the automated data service
provider can reliably and consistently provide an automated data
service, FAA needs access to information about the automated data
service provider, its overall operating practices, and how the provider
addresses data management, cybersecurity, and quality systems, etc. As
such, FAA proposes to require automated data service providers obtain
part 146 certificates. As a part of the certification process, FAA
would establish procedures to verify the organizational capability of
that provider and their ability to comply with FAA requirements. These
proposed certification requirements are further discussed later in this
preamble.
Another BVLOS ARC recommendation was for FAA to create regulatory
text to recognize specific UTM services.\164\ Specifically, the ARC
recommended identifying the following service providers: networked
remote identification, strategic deconfliction, constraints services,
conformance monitoring, operational planning, C2, and DAA. Based on
previous experience, FAA is concerned that such an approach would
unintentionally hinder automated data service providers that wish to
innovate or provide a service that adds value but that does not fit
into one of those seven pre-defined categories. Accordingly, FAA does
not propose to limit automated data service providers to specific pre-
defined services. Instead, FAA would leverage the use of industry
standards and the safety objective of each automated data service's
standards to regulate automated data service providers under proposed
part 146.
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\164\ See BVLOS ARC Report, p. 157.
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D. Overview of Proposed Part 146
FAA proposes a new part 146, titled Automated Data Service
Providers, in title 14 of the CFR. This part would establish the
process by which FAA
[[Page 38324]]
would regulate automated data service providers as well as their
services and associated networks. The purpose of part 146 is to provide
a regulatory framework for appropriate government oversight of
automated data services that support aircraft operations. At the same
time, the framework is designed to be flexible enough to accommodate
the natural evolution and development of the technologies and systems
on which these services are based upon. Through proposed part 146, FAA
seeks to balance the need to ensure the safety and efficiency of the
airspace without impeding the development of new and innovative
services that could otherwise bring services that enhance the safety of
operations and offer new economic opportunities.
Under proposed part 146, a person may obtain a certificate and
authorization to provide automated data services using a distributed
computational system for the purpose of showing compliance with the
requirements under this chapter.\165\ While the certificate is meant to
address the service provider's holistic ability to provide automated
data services of a certain caliber, the service authorization is meant
to address the individual service's capability as well as the
provider's ability to provide that specific service--thereby
integrating the service into the NAS for it to be used by aircraft
operators. The person would need to submit an application to FAA for
review. If FAA determined that the person has met FAA's requirements,
FAA would then issue their requested part 146 certification and service
authorization. Under this proposed rule, FAA proposes the application
process for automated data services providers seeking part 146
certification and service authorization. FAA also proposes the
requirements automated data service providers would be required to
comply with to maintain their part 146 certificate. FAA anticipates the
creation of an electronic platform for processing applications under
proposed part 146. This platform for managing part 146 applicants and
automated data service providers would be available on FAA's website,
upon finalization of this rulemaking effort.
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\165\ As discussed later in this preamble, FAA would define a
distributed computational system to mean a system that relies on one
or multiple piece(s) of software, running simultaneously on one or
multiple computer(s), to provide a set of functions.
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To maximize flexibility without sacrificing safety, FAA proposes a
two-part approval process patterned after--but not identical to--other
FAA regulatory constructs. This process requires the data services
provider to obtain a certificate at the organizational level and then
obtain authorizations for the individual services it provides. This is
comparable to the way FAA regulates part 145 repair stations. Under
that construct, the organization must seek a certificate to operate as
a repair station but must also hold the specific ratings necessary to
perform a particular type of repair. Proposed part 146 is substantially
similar in that FAA would evaluate the service provider's
qualifications both at the organizational level and at the individual
service level. FAA proposes to categorize services into three levels--
Service Level 1, 2, or 3--which are described in greater detail in the
sections that follow.\166\
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\166\ See section XIII.F.3 of this preamble for further
discussion on the three service levels and their corresponding level
of oversight.
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The issuance of a certificate enables FAA to provide regulatory
oversight of the applicant--corporation, organization, etc.--that
intends to deploy the service. The certificate would indicate that the
applicant is capable of reliably providing data services of a specific
tier or service level. As part of the certification process, applicants
would be required to submit information proving their ability to comply
with the requirements of proposed part 146.\167\
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\167\ Per Sec. 146.115, the appropriate certification
information to submit to FAA would range from declarations of
compliance to providing substantial data and evidence proving the
applicant's capability to provide their service. This would depend
on the service level that the applicant is seeking certification
for.
---------------------------------------------------------------------------
The automated data service provider would also have to obtain an
FAA authorization to provide specific services. This construct enables
FAA to provide regulatory oversight over each service an applicant
seeks to introduce into the NAS. As part of the process for seeking
such authorization, the service provider would have to demonstrate why
their service is needed to support UAS operations. As a part of this
process, certificated service providers would also have to show that
any new service they seek to introduce into the NAS is designed in
accordance with an FAA-accepted industry consensus standard or
standards. This is because safety remains FAA's top priority; as a
result, FAA will not approve experimental or unproven technologies. FAA
must be reasonably confident that any service that will be introduced
into the NAS has been vetted and tested by industry and other
stakeholders to ensure that the technology is mature and interoperable
with other UTM technologies. Requiring services to meet applicable
standards is meant to streamline this process. By facilitating
collaboration--including but not limited to automated data service
providers and aircraft operators working together--FAA would be able to
confidently maintain the safety and efficiency of the NAS.
After FAA issues a part 146 certificate and authorizes a specific
service, the service provider may begin providing the service. Under
proposed part 146, FAA anticipates that most applicants would go
through the process of applying for a certificate just one time. Once
certificated as automated data service providers, those certificated
providers may seek additional service authorizations as they plan to
deploy additional services. In most situations, the certificated
service provider would not need to adjust their certificate. However,
if the certificated service provider seeks to provide services in a
higher category, they may need to upgrade their certificate. In this
scenario, FAA would not revisit the provider's certificate
holistically. Instead, FAA would only address the additional
requirements the provider would need to meet to obtain a higher-level
certificate.\168\
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\168\ For further discussion on the categories of service
levels, see section XIII.F.3 of this preamble.
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E. Subpart A--General
Subpart A of proposed part 146 lays out the general requirements
for complying with part 146. This proposed subpart describes the
framework under which FAA would regulate service providers and their
services. First time applicants would go through parallel FAA review
processes to determine that the service provider, as an organization,
and the services it seeks to provide meet FAA minimum requirements.
This subpart also proposes the applicability of part 146 and defines
common terms used. Lastly, this subpart discusses the proposed FAA
requirement that prohibits anyone from engaging in fraudulent or
deceptive practices in connection with proposed part 146.
1. Applicability (Sec. 146.1)
FAA proposes that part 146 would apply to anyone using or seeking
to use a distributed computational system to provide automated data
services to support an aircraft operator's ability to comply with FAA
regulatory requirements.\169\ FAA anticipates that
[[Page 38325]]
most part 146 providers would be third-party organizations that provide
their services under contract to operators. However, FAA does not refer
to these services broadly as ``third-party services'' because some
organizations may choose to provide these services in-house instead of
contracting with a third-party. For example, a UAS operator with an
operating component dedicated solely to providing an automated data
service to fulfil that company's need to support BVLOS operations would
be required to comply with part 146. For these reasons, part 146
requirements would apply to automated data services, irrespective of
whether they are provided in-house or by a third-party.
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\169\ A distributed computational system takes the commonly
accepted meaning in the software industry: a system that relies on
one or multiple pieces of software, running simultaneously on one or
multiple computer(s), to provide a set of functions.
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Proposed part 146 would exclude certain services that FAA regulates
through other means. This is because FAA does not intend for proposed
part 146 to replace, duplicate, or create redundancies with existing
certification, authorization, or approval programs. Specifically, part
146 would exclude those services FAA regulates as a part of the
aircraft certification process under 14 CFR part 21. Services that meet
a regulatory requirement for aircraft, airframe, or parts certification
in subchapter C would continue to be evaluated through existing
processes and regulations for their respective certifications.
Similarly, proposed part 146 would not apply to the requirements under
14 CFR subchapter J, including the requirements for regulating
navigational aids under that subchapter. Those services, which pertain
to ATC equipment and non-federal navigation systems, have an existing
approval process, and therefore would not be subjected to part
146.\170\
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\170\ AC 146-1, titled Automated Data Services, which is
included with this docket, provides additional guidance for the
limited subset of persons affected by this delineation.
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Additional exceptions to the applicability of proposed part 146
include services provided to airspace users through LAANC UAS USS. In
qualifying a USS to be a LAANC service provider, FAA uses its ``other
transaction'' acquisition authority to enter into a Memorandum of
Agreement (MOA) with such USS. Through an onboarding process with FAA,
LAANC service providers become qualified as well as agree to abide by a
set of documented terms and conditions regarding the technical
administration of the service and how it is administered to the
public.\171\ LAANC USS are fully responsible for the development and
operation of their software applications. Proposed part 146 would
create a redundant set of provisions for LAANC USS, and for this
reason, FAA proposes that services provided through LAANC would not be
subject to part 146 requirements.
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\171\ See 49 U.S.C. 106(l) and (m).
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FAA views this proposed rule as an incremental step toward
integrating UA and other emerging technologies into the NAS, with the
current primary objective of enabling routine UAS BVLOS operations. To
focus on this objective, FAA anticipates that part 146 will primarily
support proposed part 108 operations at this time. Accordingly, FAA
proposes to except the use of automated data services provided under
part 146 for aircraft operations with an onboard pilot in command.\172\
FAA added this exception because aircraft operations conducted with an
onboard pilot in command may not share operational environments, nor
the technology, of those that would scale operations under proposed
part 108. On the other hand, FAA anticipates that the technological
evolution of automated data services supporting proposed part 108
operations may easily transition to support aircraft operations, such
as AAM, given common technical environment and operator involvement of
such operations.\173\ FAA may revisit this decision to include the use
of automated data service under proposed part 146 to support manned
operations as aviation technology advances and automated data service
providers become essential to other types of NAS users. Under those
circumstances, FAA would engage in additional notice and comment
rulemaking to address specific issues associated with the new
technology.
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\172\ FAA recognizes that there may be a need to use automated
data service to support aircraft operations conducted outside of
part 108. FAA discusses this proposal further in section XIII.F.4 of
this preamble per the proposed requirements in Sec. 146.115.
\173\ See FAA's Urban Air Mobility (UAM) Version 2.0 Concept of
Operations, available at www.faa.gov/sites/faa.gov/files/Urban%20Air%20Mobility%20%28UAM%29%20Concept%20of%20Operations%202.0_0.pdf. This ConOps describes FAA's vision in potentially
implementing UAM--a subset of Advanced Air Mobility (AAM).
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Finally, FAA does not intend to use part 146 to regulate any
services that support general business functions. In addition to
promoting safety or efficiency of the NAS, only services used by
aircraft operators, enabling them to comply with FAA regulatory
requirements, would fall within proposed part 146. For example,
distributed computation system services that support general office
functions, such as payroll, accounting, or word processing would not
fall within proposed part 146. Nor would it apply to services that
manage an organization's ground transportation or non-aviation-related
supply chain services.
2. Definitions (Sec. 146.5)
Proposed part 146 would bring a new population of air agencies
under FAA's regulatory umbrella. These new organizations bring with
them concepts and terminology that have not historically been part of
FAA's lexicon. Accordingly, many of the terms frequently used in
proposed part 146 are not currently used in other FAA regulations. Many
of these terms relate to software engineering generally, or to
automated data service provisioning, capabilities, and specific
functions. Defining these terms will facilitate consistent use of a
common lexicon and thereby assist part 146 applicants or any persons
involved in providing or procuring automated data services. As such,
FAA proposes the following definitions in Sec. 146.5:
FAA proposes to define the term authorized services to mean those
services a certificated automated data service provider is authorized
to provide under part 146. FAA anticipates that authorized services
could include but are not limited to: strategic deconfliction services
for identifying flight path conflicts before takeoff and managing
collision risk between UA; conformance monitoring to provide time-
sensitive alerts so that the UAS operator maintains their flight path;
DAA services, which provide surveillance information or avoidance
maneuvering instructions to operators; or micro-weather forecasting
services that are not available from conventional NAS weather sources.
FAA proposes that automated data service provider means a person
using a distributed computational system to provide automated data
services that support aircraft operations. Automated data service
providers would encompass persons who provide their own services for
their own operations (often referred to as vertically integrated
companies) as well as persons who provide distributed services as a
third-party provider. FAA anticipates automated data service providers
will be comprised of companies, governmental entities, or other
organizations.
FAA proposes that a distributed computational system means a system
that relies on one or multiple piece(s) of software, running
simultaneously on one or multiple computer(s), to provide a set of
functions. Automated data services would be provided through these
systems to support aircraft
[[Page 38326]]
operations. An example of a distributed computational system is the
infrastructure used by an entity that provides strategic deconfliction
services to part 108 operators. In this example, the computer server
operated by the entity that supplies the information or data processing
to the part 108 operator is the distributed computational system.
FAA proposes that major update means a change to the software
version that includes substantial changes to the application
programming interface (API), or the features and functionality, such
that the new version is not backward compatible with previous versions.
Major updates include a new API endpoint or signature. They constitute
significant revisions and may fundamentally change what the service
does or how it supports operators. An aircraft operator who does not
make the required changes to support the new version of a major
software update would lose functionality of the service after the
update.
FAA proposes that minor update means a change to the software
version that changes the API, may include new features or
functionality, and remains backward compatible. As a minor update may
substantively change a service's features and functionality, users may
be required to make changes to their aircraft and AE to integrate the
minor version update properly. An aircraft operator who does not make
the required changes would remain unaffected by the minor software
update while operating on the older version.
FAA proposes that patch update means a change to the software
version that does not change the API and is used for backward-
compatible bug fixes and performance improvements. Patch updates often
improve performance, fix bugs, or address security vulnerabilities but
do not change the overall functionality or features of the service.
FAA proposes that third-party vendor means an entity that provides
a distributed software capability necessary for a certificated service
provider to meet the requirements of this part but for which the
certificated service provider does not have direct control over the
personnel, software code, or organizational processes. Examples of
third-party vendors, as defined by FAA in this part, would include
cloud storage providers, cloud database infrastructure providers, and
cloud-based network monitoring tools. When appropriate, certificated
service providers may leverage third-party vendors to develop, deploy,
update, or repair authorized services. The distinction between an
automated data service provider and a third-party vendor is significant
under part 146. Whereas the former is subject to regulatory oversight
by FAA because it directly affects the safety and efficiency of the
NAS, the latter refers more broadly to software and tools that entities
regularly rely on to provide business support functions that are not
aviation specific.
3. General Requirements (Sec. 146.10)
Proposed Sec. 146.10 establishes the framework under which FAA
would regulate automated data services as well as providers of those
services. That framework would consist of two primary regulatory
functions. The first would require entities providing automated data
services to obtain a certificate from FAA. The second would require
those certificated entities to obtain authorization from FAA to provide
individual services. Proposed Sec. 146.10 would lay the foundation for
the rest of part 146 by establishing the requirement that only
certificated entities can provide services and that those services they
provide require FAA authorization.
4. Falsification, Reproduction, Alteration, or Omission (Sec. 146.15)
For FAA to properly perform its oversight role, it must receive
candid and truthful communications from regulated parties. Proposed
Sec. 146.15 would require truthful and candid submissions in
applications, records, or reports used to comply with part 146. Failure
to do so by for example, purposefully falsifying, reproducing,
altering, omitting information from FAA could lead FAA to deny,
suspend, or revoke a certificate or authorization or issue a civil
penalty.
Automated data services must be properly and transparently
regulated as they support operations affecting the U.S. airspace's
safety and efficiency. FAA requires factual and accurate information to
effectively conduct regulation and ensure safety. As such, FAA
proposes, in Sec. 146.15(a), to prohibit the act of any fraudulent or
intentionally false entries in any application, record, or report made
under this part, as well as any reproduction or alteration of such
documents for fraudulent purposes. In addition, FAA proposes in Sec.
146.15(b) to prohibit persons from knowingly concealing a material fact
in any application or record used to show compliance with FAA
requirements. This would apply to applications and records related to
both provider certificates and service authorizations, and any other
information a person submits to FAA under proposed part 146.
Lastly, to hold persons accountable for actions specified in
proposed Sec. 146.15(a) and (b), FAA proposes in Sec. 146.15(c) that
any such fraudulent or prohibited act or omissions conducted with
regards to proposed part 146 to be subject to FAA penalties. Those
penalties include the suspension or revocation of any certificate,
approval, or authorization issued by FAA, a civil penalty, or the
denial of an application for part 146 certification and service
authorization. By enforcing penalties due to non-compliance with the
candor and truthfulness requirements, FAA anticipates that it would
increase compliance with the requirements proposed under part 146 and
therefore ensure the safety and efficiency of the U.S. airspace.
Of note, while proposed Sec. 146.15 authorizes FAA to take action
for a regulated party's failure to meet its duty of candor and
truthfulness in interactions with FAA, FAA may take certificate actions
for other reasons. All NAS participants play a role in ensuring safe
and efficient operations that are consistent with the public interest.
In the age of advanced aviation, those participants will notably
include automated data service providers who must, to contribute to a
safe and efficient airspace, comply with rules and be held accountable
for their actions. For that reason, it is worth highlighting that 49
U.S.C. 44709(b) authorizes FAA to amend, modify, suspend, or revoke any
part of certificate when it decides that safety in air commerce or air
transportation along with the public interest requires that action.
F. Subpart B--Certificate
Part 146 would establish a new type of air agency requiring an FAA-
issued certificate for certain automated data service providers that
support aircraft operations using a distributed computational system.
Many of the advanced UAS operations in this proposed rule would rely on
automated data services to help ensure the safety and efficiency of
those operations. Furthermore, these advanced UAS operations would rely
on the existence of an integrated and cooperative ecosystem of
services. FAA anticipates that the data service providers would provide
services to their specific end users, creating an information exchange
between those with privity of contract. However, to be successful, the
ecosystem would also have to rely on other data service providers
exchanging information continuously with each
[[Page 38327]]
other to provide operators with the information they need about the
operating environment for safe and efficient operations. Collectively,
the service providers would create a federated, non-centralized network
in which each data service provider contributes information that other
data service providers rely on to service their own individual users.
In this operating environment, as proposed, each provider would rely on
others in the network to provide accurate and reliable information;
together automated data service providers would be able to provide
accurate and reliable information to their users. Though the quality of
the network relies on these individual contributions, as peer
participants, the individual service providers have no authority to
hold one another accountable for providing accurate and reliable
information. To help address this problem, FAA proposes to set minimum
requirements to help ensure that only qualified automated data service
providers can participate in these networks. Proposed subpart B
establishes those requirements and describes how to obtain a
certificate to provide automated data services under proposed part 146.
1. Application (Sec. 146.100)
FAA proposes in Sec. 146.100 that each person seeking to be
certificated as an automated data service provider would be required to
submit an application in a form and manner acceptable to the
Administrator. The applicant would be required to provide all the
information identified in subpart B, which is described in the
following section of this preamble. FAA anticipates establishing a web-
based application process that applicants could use to provide their
materials electronically. FAA would provide instructions for submitting
an application in guidance or other reference materials.\174\
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\174\ AC 146-1, Automated Data Services, would provide
applicants with the process for obtaining a part 146 certification
and service authorization. This AC is available in this rulemaking
docket.
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2. Applicant Information (Sec. 146.105)
Proposed Sec. 146.105 would require the applicant to provide
general business information about the organization seeking a part 146
certificate.
Proposed Sec. 146.105(a) would require the applicant to submit the
name, address of principal place of business, telephone number, and
email address for the person seeking a certificate. FAA would use this
standard contact information to identify, locate, and communicate with
the organization. This information is necessary so that FAA can
expeditiously reach the service provider to conduct oversight
activities, as well as to follow up with requests for information when
reviewing certification and authorization requests.
Proposed Sec. 146.105(b) would require the applicant to submit
documentation related to their ownership structure. Corporate
applicants would provide information identifying anyone who owns five
percent or more of the total voting stock. If that stockholder is not
the sole beneficial owner, the applicant would also provide the name
and address of the beneficial owners. For purposes of this section,
stock owned directly or indirectly by an individual's spouse, child,
grandchild, or parent is attributed to the individual. This means that
the aggregate stock of the individual and any of these relatives would
be considered together for purposes of determining whether the
individual owned at least five percent of the stock. An individual
could not avoid the disclosure requirement in this paragraph by
distributing stock among the relatives identified in this section in an
effort to lower their ownership level below the reporting threshold.
For non-corporate entities, FAA requests information about anyone with
a financial interest in the organization.
An important part of determining whether an applicant is qualified
to hold a certificate is understanding who controls or influences the
organization and determining whether they are capable of complying with
FAA's proposed requirements. In the case of corporate entities, FAA
decided to set the voting stock ownership reporting requirement at 5
percent or more because it considers that anyone below the 5 percent
threshold is likely unable to exert control or influence over the
organization. This information serves several purposes. First, FAA
would use this information to determine whether the organization or one
of the beneficial owners thereof previously held an ownership or
management position with a part 146 certificated service provider. As
explained in the sections that follow, information related to
individuals or entities with ownership interests and individuals
holding management positions in the applicant's organization is
relevant to FAA's application evaluation. If any of these people
contributed materially to circumstances that resulted in FAA taking
adverse action against a previous certificated service provider, FAA
may deny the application.\175\ Requiring the applicant to identify the
individuals and entities that would exercise some kind of control over
the organization would help prevent an unqualified applicant from
disguising their ownership structure to ``reincarnate'' into a new
organization.
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\175\ See discussion of proposed Sec. 146.120 in section
XIII.F.5 of this preamble.
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Second, this (Ownership) information would help FAA understand
whether those exercising control over the organization were otherwise
unqualified because of prohibitions on their ability to do business in
the U.S.
Proposed paragraph (c) would require the applicant to provide the
name of an accountable executive that exercises authority over the
organization's operations. For purposes of this section, the term
accountable executive would take the same meaning as in 14 CFR 5.25. As
discussed later in this preamble, FAA proposes to require part 146
certificated service providers to incorporate certain SMS provisions
per the requirements in 14 CFR part 5. One such requirement is to
identify an accountable executive, per Sec. 5.25.
In paragraph (d) of this section, FAA would require the applicant
to demonstrate that they are authorized to conduct business in the
United States. If the individuals or entities exercising control over
the organization are prohibited or otherwise unable to do business in
the United States, FAA would not issue them a certificate. FAA is
cognizant that the automated data services contemplated under this rule
would contain a trove of digital information about American citizens,
patterns of life, and commercial activities that criminal organizations
and foreign adversaries could seek to exploit. The information FAA
seeks about authorization and ownership would help prevent someone
prohibited from doing business in the United States from disguising
themselves as a legitimate organization.
Proposed paragraph (e) would require applicants provide any other
relevant documentation the Administrator deems necessary to verify
their identity, corporate ownership, and authority to conduct business
in the United States. FAA would use this documentation to verify that
the certificated service provider is the person permitted to conduct
business in the United States. This information is also important
because FAA expects foreign U-Space and UTM companies to seek
reciprocal certification in the U.S. Under this provision, FAA would
provide a means to verify such applicants and determine whether they
are capable of doing business in the United States, if applicable.
[[Page 38328]]
3. Service Levels (Sec. 146.110)
FAA proposes a risk-based approach to the service provider
certification process that is based on the operation the provider seeks
to support. As stated earlier in this preamble, FAA developed the
proposed aircraft, personnel, and operational requirements to primarily
address the risk BVLOS operations could introduce to the NAS. These
requirements include important risk mitigations designed to help ensure
the safety and efficiency of the NAS, but also the safety and security
of people and property on the ground. FAA's oversight role in proposed
part 146 would be to help ensure that the automated data service an
operator uses to meet their part 108 requirements is provided by a
provider that is qualified by FAA. It follows, then, that FAA does not
intend for part 146 to provide a redundant set of provisions to
mitigate the risk already included in the proposed part 108
requirement. Instead, proposed part 146 would address the residual risk
that is not already addressed through part 108 provisions. Because
proposed part 108 operator and aircraft requirements provide for many
safety mitigations, part 108-compliant aircraft and operations
therefore pose a relatively small residual risk profile.\176\
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\176\ Consistent with this risk-based approach, operations
conducted under part 107 are considered lower risk than those under
part 108.
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FAA proposes to regulate part 146 service providers that support
part 108 operations in a way that is commensurate with the residual
risk these aircraft and operations are assumed to pose to the NAS.
Therefore, FAA proposes in Sec. 146.110(b)(1) to categorize services
that support part 108 operations as Service Level 1.\177\ FAA
anticipates, however, that some aircraft manufacturers and operators
may seek regulatory relief to deviate from the requirements in proposed
part 108. As discussed in the preceding paragraphs, FAA's balance of
risk mitigations depends on compliance with all of FAA's part 108
regulations. Operations that rely on regulatory relief may disrupt this
balance and, as a result, increase the residual risk associated with
those operations. As such, in proposed Sec. 146.110(b)(2), FAA would
identify these operations that require regulatory relief from part 108
as those that require services categorized as Service Level 2.\178\
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\177\ Subsequently, in proposed Sec. 146.115(a), FAA would
allow Service Level 1 providers to demonstrate compliance with the
applicable certificate requirements using a declaration of
compliance. Filing a declaration of compliance represents a
relatively low burden for the applicant to demonstrate compliance.
FAA determined that this lower burden would be an appropriate way to
address the residual risk compliant operations could pose. Proposed
Sec. 146.115(a) is discussed in more detail in the following
section.
\178\ Consistent with FAA's risk-based approach, FAA proposes
that this increase in risk warrants additional scrutiny and
verification of the service provider's applications. Accordingly,
FAA proposes in Sec. 146.115(b), discussed in more detail in the
following section, to require the service provider submit
documentation describing how the applicant meets the requirements.
This means that a Service Level 2 provider would not be able to rely
on a declaration of compliance. The increased risk profile would
mean that the application would have to submit documentation
describing what it will do to meet application requirements. Whereas
a Service Level 1 applicant could submit an attestation that they
comply, a Service Level 2 applicant would submit an attestation with
explanations explaining how they comply.
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Any services that do not meet the requirements of Service Levels 1
or 2 would fall within Service Level 3. Service Level 3 would be
reserved for operations with the highest level of residual risk--for
example BVLOS operations conducted outside 14 CFR part 108.\179\ FAA
anticipates that not all operators will seek to operate under proposed
part 108. In the absence of the proposed part 108 mitigations designed
to address risk associated with BVLOS operations, these operations may
present unmitigated risks to the NAS. As such, FAA proposes in Sec.
146.110(b)(3) to identify these services as Service Level 3. Under
these circumstances, FAA would reserve the right to apply the highest
level of review--including FAA oversight and regulatory requirements--
to an applicant's qualifications for Service Level 3
certification.\180\
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\179\ As stated earlier in this preamble, FAA proposes a risk-
based approach to the service provider certification process that is
based on the operation the provider seeks to support.
\180\ Consistent with FAA's risk-based approach, FAA would
require in proposed Sec. 146.115(c) that applicants for Service
Level 3 certification to submit documentation and supporting data
demonstrating that the applicant meet applicable requirements.
Whereas a Service Level 2 provider would be required to describe how
they meet the requirements, a Service Level 3 provider would have to
provide data that proves that they meet the requirements. FAA
anticipates that this could include technical specifications, test
results, and other data and documentation showing the effectiveness
of the applicant's system. Proposed Sec. 146.115(c) is discussed in
more detail in the following section.
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As part of the application process for part 146, applicants would
be required to identify the service level for which they seek
certification. Specifically, FAA proposes to require each applicant to
identify whether they seek certification for the provision of services
categorized as Service Levels 1, 2, or 3. This service level
identification is meant to guide applicants through the application
process for part 146 certification and subsequent service
authorization. By identifying their service level, the applicants would
then be prompted to substantiate their application package with the
appropriate certification requirements, per proposed Sec. 146.115
which is discussed further in the following section. Based on projected
demand for BVLOS operations, FAA anticipates that the majority of
applicants will seek a Service Level 1 certification, a modest number
of applicants will seek Service Level 2 certification, and few, if any,
applicants will seek a Service Level 3 certification. Though FAA does
not anticipate significant demand for Service Level 3 certificates, FAA
decided to propose this level to ensure that, as operations and support
services evolve, there would be a regulatory path in place to certify
providers of new or unforeseen capabilities.
Table 5 presents a summary of the provisions FAA proposes in Sec.
146.110, which describe the service levels and their corresponding
operational envelope. FAA proposes this risk-based framework to provide
a level of oversight that is proportionate to the complexity of the
operation supported by the automated data service provided under
proposed part 146. FAA seeks comment on this proposed framework for
categorizing service levels under part 146. Specifically, the Agency
invites comment to determine whether this triage of service levels--
based on mitigating any residual risk that may be added to the NAS due
to the aircraft operation--is the best way to incrementally introduce
automated data service providers as well as their services into the
NAS.
Table 5--Service Levels
------------------------------------------------------------------------
Service level Type of part 108 operations
------------------------------------------------------------------------
Level 1................................ Services to support part 108
operations without regulatory
relief.
Level 2................................ Services to support part 108
operations with regulatory
relief.
Level 3................................ Services that do not fall
within Service Levels 1 or 2,
that support operations that
are not conducted under part
108 of this chapter.
------------------------------------------------------------------------
4. Certification Requirements (Sec. 146.115)
Proposed Sec. 146.115 describes the necessary information
applicants need to submit to FAA to determine their qualification for
part 146 certification. After applicants identify their service level
for certification under proposed Sec. 146.110, applicants would then
be prompted under proposed Sec. 146.115 to substantiate their
application package
[[Page 38329]]
by submitting the appropriate qualification information, corresponding
to the identified service level.\181\ This substantiated information
the applicant provides must be submitted in a form and manner
acceptable to the Administrator, which would correspond with the
service level of each service. Under this construct, automated data
service providers applying for multiple service authorizations along
with their part 146 certificate would submit their certification
information to correspond to the highest service level they seek to be
certificated under.\182\
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\181\ As stated earlier in this preamble, FAA believes that
structuring this parallel application process supports FAA vision in
efficiently reviewing application for part 146 certification and
service authorization. Under this parallel process, applicants would
be able to undergo the application process in a more efficient
manner. This application structure would also reduce the likelihood
of expending unnecessary time and resources, by both FAA and the
applicant, on an application for a certificate without an associated
application for an automated service, only to later discover that
the applicant may not even be able to market or deploy the requested
service. For further discussion on subpart C, service authorization
requirements, see section XIII.G of this preamble.
\182\ FAA intends on publishing an AC titled Automated Data
Service Provider Certification and Service Authorization, AC 146-1,
to guide potential service providers through the application process
for part 146 certification and service authorization. This AC would
inform applicants on the proper information that would be required
to accompany their application, per the requested certificate
service levels (service level 1, 2, or 3) and specific service. FAA
invites public comments on this AC, which accompanies this proposed
rulemaking, and is available on FAA's docket.
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Proposed Sec. 146.115(a) would require applicants for a Service
Level 1 certificate to submit a DOC, attesting to their ability to meet
the requirements of subparts D and E of proposed part 146, both of
which are discussed in more detail below. As stated earlier, proposed
part 108 operations would have many existing mitigations in place,
therefore rendering Service Level 1 services appropriate to support
part 108 operations. FAA would allow Service Level 1 providers to
demonstrate their compliance with the applicable certificate
requirements using a DOC. Filing a DOC represents a relatively low
burden for the applicant to demonstrate compliance. FAA determined that
this lower burden would be an appropriate way to address the residual
risk that compliant part 108 operations could pose to the NAS. As such,
for providing Service Level 1 services, the applicant would be required
to establish their compliance with proposed part 146 requirements by
declaring to FAA that they have systems and processes in place that
meet the requirements of subparts D and E of proposed part 146. The
requirements for proposed subparts D and E are described in detail in
subsequent sections.
Proposed Sec. 146.115(b) would require applicants for a Service
Level 2 certificate to submit documentation to supplement the
declarations of compliance to FAA describing their ability to meet the
requirement of subparts D and E of proposed part 146. As stated
earlier, Service Level 2 services are those that may be used to support
part 108 operations that require the use of regulatory relief; such
operations may introduce additional risk to the NAS. As a result of
this increased risk, a service provider seeking to support such
operations would also have to substantiate their application. This
means the service provider would have to submit an application that
includes documentation describing what the applicant would do to meet
part 146 requirements. Whereas a Service Level 1 applicant would have
to submit an attestation stating that they comply with part 146
requirements, a Service Level 2 applicant would have to submit an
attestation explaining how they will comply with part 146 requirements.
For these reasons, FAA would require applicants for Service Level 2
certification to substantiate their application with a description of
how they will comply with part 146 requirements. To demonstrate their
ability to comply with subpart D, the applicant would be required to
provide a declaration as well as a description explaining how they are
able to comply with each requirement in that subpart. Similarly, to
demonstrate their ability to comply with subpart E, the applicant would
be required to provide a declaration as well as a description
explaining how they are able to comply with each requirement in that
subpart. The requirements for proposed subparts D and E are described
in detail in subsequent sections.
Lastly, applicants seeking a Service Level 3 certification would be
required to supplement their declarations of compliance with the
submission of certain documentation or supporting data to demonstrate
their ability to comply with subparts D and E of proposed part 146. FAA
would require providers of Service Level 3 services to significantly
substantiate their application package with evidentiary data to
demonstrate their capability to comply. Whereas a Service Level 1
provider would be required to declare they meet the requirements, and a
Service Level 2 provider would be required to declare and describe how
they meet the requirements, a Service Level 3 provider would have to
declare and provide data that proves they meet the requirements. FAA
anticipates that substantiating data could include technical
specifications, test results, and other data and documentation showing
the effectiveness of the applicant's system. The requirements for
proposed subparts D and E are described in detail in subsequent
sections.
Special provisions would apply to applicants seeking a proposed
part 146 certificate for the first time. Proposed Sec. 146.115(d)
would require anyone seeking a certificate for the first time to
simultaneously submit an application for their first service
authorization as well. Under this provision, FAA would issue a
certificate only to those applicants who demonstrate that they are
ready to provide services. FAA would not devote resources toward
issuing a certificate to an entity that is unprepared to begin
providing services.
As a global leader in aviation safety and efficiency, FAA is also a
strong proponent of international harmonization. In Sec. 146.115(e),
FAA proposes to provide an avenue for qualifying foreign-based
certificated service providers to operate in the United States.
Specifically, FAA proposes that a service provider who presents proof
of an authorization to provide automated data services from a country
with which the United States has a bilateral safety agreement covering
the provision of data services comparable to those in part 146, may be
deemed to meet the application requirements in Sec. 146.115.\183\
Proof of an authorization should include corporate documents
establishing ownership and control of the entity. For example, in 2022,
the European Aviation Safety Agency (EASA) began drafting regulations
for U-Space Service Providers (USSP) providing automated data services
in the European Union. Those regulations were effective as of 2023.
Under those regulations, USSP gain certification from any European
Union Member State or from EASA and deploy their services in U-Space
airspace regions authorized by their certificate. Reciprocity would
markedly simplify and streamline the introduction of foreign-based
certificated service providers into the U.S. airspace, while ensuring
FAA has sufficient oversight.
FAA would facilitate the creation of a reciprocal certification
process. FAA and many other civil aviation authorities already have
processes in place to recognize each other's certifications for
aircraft, avionics, and other systems through existing bilateral
aviation safety agreements. By way of a
[[Page 38330]]
similar bilateral aviation safety agreement, FAA may find a foreign-
based service provider's certification to be in alignment with part 146
requirements. That said, foreign qualification does not guarantee that
FAA would determine the foreign-based certificated service provider
meets all requirements in proposed part 146. FAA reserves the right to
consider the certificated foreign-based service provider's ability to
comply with all the proposed part 146 requirements.
By enabling the process of reciprocity, FAA would incentivize the
introduction of foreign-based services that have been proven
successful--so long as they meet all proposed requirements in part 146.
Proposed Sec. 146.115(e) would allow FAA to continue its global
harmonization efforts.
5. Evaluation of Application (Sec. 146.120)
Proposed Sec. 146.120 would establish the terms under which FAA
would evaluate a part 146 certificate application. Once an applicant
submits all the required information for part 146 certification,
proposed paragraph (a) would authorize FAA to review the application
and decide whether to approve or deny the application. To facilitate
the evaluation, proposed paragraph (a) would also allow FAA to request
supplemental information from the applicant at any time during the
application process.
Proposed paragraph (b) would authorize FAA to issue a part 146
certificate to an applicant that demonstrates they meet the
requirements for obtaining a certificate--these are identified in
proposed Sec. 146.115 and discussed in the preceding sections.
Paragraph (b) would also authorize FAA to place conditions or
limitations on the certificate as necessary.
Proposed paragraph (c) lists the bases on which FAA may deny a
request for a certificate, including:
(1) the applicant does not meet the requirements of proposed part
146;
(2) the applicant holds a part 146 certificate that is under
suspension or is in the process of being revoked or suspended;
(3) the applicant previously held a part 146 certificate that was
revoked;
(4) the applicant has filled or is intending to fill a management
position with an individual who exercised control over or who held the
same or a similar position with a certificated service provider under
this part whose certificate was revoked or suspended, or is in the
process of being revoked or suspended, and that individual materially
contributed to the circumstances resulting in the revocation or
suspension;
(5) an individual who will have control over or substantial
ownership interest in the applicant had the same or similar control or
interest in a certificated service provider whose certificate was
revoked or suspended, or is in the process of being revoked or
suspended, and that individual materially contributed to the resulting
revocation or suspension; or
(6) for failing to comply with other applicable legal requirements.
FAA is responsible for maintaining the safety and efficiency of the
NAS. If FAA believes that an applicant is not reliable or could
otherwise introduce a hazard into the NAS, then FAA would deny the
application. FAA would also look to ensure that an automated data
service provider from another country is authorized or is not otherwise
prohibited from conducting business in the United States. None of these
factors is dispositive; however, they provide valuable information for
FAA to consider when evaluating whether the applicant is willing and
able to comply with proposed part 146. Though FAA could deny the
application based on any of these factors, FAA maintains its discretion
to make its decision in the interest of safety.
6. Obligation to Update (Sec. 146.125)
To ensure that a certificate application is based on accurate and
relevant information, proposed Sec. 146.125 would require an applicant
to keep their materials up to date until they receive a decision from
FAA. This applicant may be an automated data service provider
submitting their application for FAA certification and service
authorization for the very first time, or they may be a certificated
service provider submitting an application to amend their part 146
certification. Under this provision, FAA would provide applicants with
the opportunity to amend their application prior to FAA issuing its
decision.
For example, an applicant may have a change in ownership structure;
or an applicant might upgrade their system in a way that changes the
way the system interfaces with other systems. In such instances,
proposed Sec. 146.125 would require the automated data service
provider to provide information about the change to FAA. In order to
make accurate decisions about an applicant's ability to comply with
proposed part 146, FAA must have the most current information available
at the time it makes its decision. As such, FAA would require the
applicant to report any changes to their application in a form and
manner acceptable to the Administrator. This is crucial for FAA to be
aware of the statuses and dealings of persons under the Agency's
purview. As such, FAA would require that the applicant, whether it be a
first time or returning applicant, to report their changes to FAA
within 10 days of being aware of the change. FAA anticipates that 10
days would provide the certificated provider or applicant with
sufficient time to report their changes to FAA.
7. Term of a Part 146 Certificate (Sec. 146.130)
Under proposed Sec. 146.130(a), a part 146 certificate would
remain valid until it is either surrendered by the service provider or
revoked or suspended by FAA. In other words, a certificate issued under
proposed part 146 would not have an expiration date. Nonetheless, FAA
may revoke or suspend a certificate if it finds that the certificated
service provider is not in compliance with FAA requirements.
FAA proposes for a part 146 certificate to remain in effect
indefinitely, with no requirement to renew or reissue the certificate
after a set time, because there is no safety basis for FAA to levy such
a requirement. Once a certificate is issued, the certificated service
provider has an ongoing obligation to maintain their certification;
this means they would be required by proposed part 146 to continue to
operate in ways consistent with the privileges of the certificate. This
includes maintaining an SMS, having change management procedures,
reporting certain off-nominal behaviors to FAA, and addressing service
difficulty reports from operators.\184\ The totality of these ongoing
certificate requirements places the certificated service provider in a
position of being responsible for proactively managing risk and
remaining accountable to FAA for compliance.
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\184\ FAA's proposed provisions for each of these requirements
are further discussed in section XIII.H of this preamble; the
corresponding regulatory text is in subpart D of proposed part 146.
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In practice, FAA expects to have ongoing contact with certificated
service providers through separate processes defined in subpart E as
authorized services go through routine software update cycles. For
example, certificated service providers would notify or seek approval
from FAA when making certain software updates, which is described in
subpart E. Such software update notifications, which would happen
periodically based on the service provider's deployment timeline
[[Page 38331]]
rather than arbitrary FAA-defined intervals, would give FAA
opportunities to verify continued compliance with the service
provider's certificate requirements. Conversely, an absence of software
update notifications over a long period--at least a year, given the
typical pace of software development lifecycles--may signal to FAA the
need to initiate an inspection under its regulatory authority to verify
whether the service provider complies with its certificate
requirements. This approach enables FAA to provide a risk-proportionate
degree of oversight and reduces unnecessary inspection and certificate
review activities when there is no evidence that may indicate a safety
or compliance issue.
A previously certificated automated data service provider that
seeks to offer services of a higher service level than allowed under
its original certificate (for example, seeking to provide Service Level
2 services, when it was certificated for Service Level 1 services)
would need to submit a new application for certification per the
provisions of proposed Sec. 146.130(b). However, the operator would
only need to provide information relevant to the new or amended
service. For example, if an automated data service provider is
initially certificated for Service Level 1 services and then decides
that it also wants to deploy Service Level 2 services, the automated
data service provider would need to submit only the necessary
information that is relevant for FAA to evaluate and determine whether
the automated data service provider is qualified to be certificated as
a Service Level 2 service provider, along with the associated level 2
service authorization request.
Lastly, proposed paragraph (c) would prohibit an automated data
service provider from transferring its certificate to another person
without FAA's express approval. This would include the prohibition of
transfers in the event an automated data service provider sells or
transfers its assets to another entity. In such cases, the new person
would be required to apply for a part 146 certificate; this allows FAA
to verify that the person meets part 146 requirements. FAA proposes to
prohibit the transfer of part 146 certificates from one organization to
another--including the transfer of a certificate in the event of
bankruptcy--without approval from the Administrator. By doing so, FAA
seeks to prevent the creation of loopholes, which could have allowed
persons to circumvent FAA application and evaluation process proposed
under part 146.
G. Subpart C--Service Authorizations
FAA proposes that an automated data service provider would have to
demonstrate its qualifications in two ways. The first would be by
obtaining a certificate, as discussed in the preceding subpart. The
second would be by obtaining FAA authorization to provide a specific
service or services. Subpart C proposes the requirements for obtaining
these service authorizations. The following sections describe the
process by which automated data service providers may request and be
issued an FAA service authorization under proposed subpart C of part
146.
1. Request for Authorization (Sec. 146.200)
Proposed Sec. 146.200 lays out the general requirements to obtain
an authorization to provide a service under proposed part 146. This is
to help ensure that a specific automated data service meets a defined
set of technical and performance capabilities based on an industry
consensus standard. The authorization process would also ensure that
the applicant is capable of providing that service in accordance with
part 146 requirements. To verify an applicant's ability to comply with
proposed service authorization requirements, FAA proposes in paragraph
(a) that any person seeking authorization to provide an automated data
service under part 146 would be required to submit the information
identified in subpart C in a form and manner acceptable to the
Administrator.
In addition, proposed paragraph (b) would prohibit anyone from
obtaining a service authorization without a valid service provider
certificate. This reiterates FAA's proposed requirement that only
service providers that already hold a certificate or service providers
applying to obtain a certificate, may apply for a service
authorization. For first-time applicants, this means that FAA processes
the certificate and the initial service authorization application
together. The process is designed to help ensure that FAA focuses its
resources on evaluating only those service providers with valid part
146 certificates (or in the process of applying for certificates).
In the subsequent sections of this preamble, FAA discusses the
proposed process for requesting a service authorization, the specific
requirements, and FAA's evaluations of those requests.
2. Authorization Requirements (Sec. 146.205)
Proposed Sec. 146.205 would establish the requirements for
obtaining a service authorization. The purpose of these requirements
would be to provide a minimum level of information FAA would need to
verify that the service is designed to meet minimum performance
requirements, and that the service provider is capable of providing the
service at its respective service level.\185\
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\185\ See sections XIII.F.3 and XIII.F.4 of this preamble for
the discussion on the various service levels and the information the
applicant would need to submit to FAA, per the identified service
level, in accordance with proposed Sec. Sec. 146.110 and 146.115.
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Proposed paragraph (a) provides an overview of the application
process. This paragraph establishes five principal steps an applicant
must take to apply for a service authorization under part 146. First,
the applicant must establish the minimum performance requirements for
the service they seek to provide. Proposed paragraph (b) describes how
to set those minimum performance requirements. Second, the applicant
must demonstrate that they are capable of meeting those minimum
performance requirements. Proposed paragraph (c) describes how the
applicant would do this. Third, the applicant must demonstrate that the
service meets the automated data exchange requirements and software
update requirements in proposed subpart E. Fourth, the applicant must
show that the service would support an aircraft operator's ability to
comply with an FAA operating requirement. Finally, the applicant must
demonstrate that the automated data service is designed in accordance
with a published industry consensus standard. These five principal
steps are discussed in more detail as follows.
i. Establish Minimum Performance Requirements
FAA is taking a flexible approach in regulating automated data
services. This includes allowing applicants to identify and establish
the minimum performance requirements for each automated data service
they seek to provide, within certain parameters. The minimum
performance requirements must be based on an industry consensus
standard and support compliance with FAA operating requirements.
Proposed paragraph (b) provides additional information on how to
establish the minimum performance requirements. Under that provision,
the applicant would be required to submit the following information.
First, the applicant must submit an overview describing the service
and its intended use. This would include identifying the service,
explaining what it does, and what kind of operations the service would
support. By requiring an
[[Page 38332]]
applicant to describe the automated data service and its intended use,
FAA would identify and verify the specific type of service the
applicant seeks to deploy. Using this information, FAA would be able to
determine whether the automated data service is within the scope of
services FAA may authorize under proposed part 146. If the service is
not within the scope of part 146, FAA could provide this feedback to
the applicant prior to them unnecessarily devoting additional resources
to the application.
Second, the applicant must provide FAA with all representations it
makes to service users regarding the capabilities, quality-of-service,
limitations, and responsibilities of the service provider and
responsibilities of the service user related to the authorized service.
Representations to service users refers to advertisements the automated
data service provider uses to procure business with aircraft operators
for the authorized service. FAA would use the service provider's
representations to service users to set baseline expectations for how
the service should perform. Other minimum requirements, such as
interoperability with other national systems and FAA regulations may
apply. FAA anticipates that users will rely on data services to meet
other requirements in FAA's regulations. Users--and by extension the
UTM ecosystem--rely on those representations to conduct BVLOS
operations safely and efficiently. As a part of the authorization
process, FAA would verify that the data service capabilities meet the
provider's safety and efficiency representations. FAA would need this
information to validate the service's capability and functionality
during the application process. FAA would also use these
representations to set the baseline at which it would hold the service
provider accountable for meeting its own minimum performance standards.
Third, the applicant must submit technical specifications
describing the service's system architecture and functionality. FAA
would use this information to understand the service and its functions,
as well as how it is represented as part of the UTM network--i.e., how
the service interacts with other automated data service providers or
participants of the UTM ecosystem. In addition, FAA would use the
technical specifications to perform these validation activities
regarding a service's function, capabilities, and limits, which are
discussed in the prior paragraph.
ii. Demonstrating Applicant's Capability
Proposed paragraph (c) of Sec. 146.205 requires the applicant to
submit specific data and documentation regarding their service to
demonstrate their capability of meeting the minimum performance
requirements established in paragraph (b) of Sec. 146.205. The way an
applicant demonstrates their capability and the type of data and
documentation would depend on the service level of the automated data
service, which must be submitted in a in a form and manner acceptable
to the Administrator. As such, in accordance with Sec. 146.115, the
applicant would be required to provide FAA with the following
information to demonstrate their ability to provide an automated data
service in accordance with proposed part 146 requirements.\186\
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\186\ Proposed Sec. 146.115 provides a breakdown of the type of
data and documentation an applicant needs to provide FAA for them to
adequately demonstrate their ability to provide a service at a
specific service level.
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For services categorized as Service Level 1, i.e., services to
support part 108 operations, the applicant would be required to provide
FAA the following three declarations: first, a declaration describing
the service's intended use; second, a declaration stating that the
applicant has records documenting all representations to service users
regarding the capabilities, quality-of-service, limitations, and
responsibilities of the service provider and service user related to
the service; and third, a declaration that the applicant has records
documenting the service's technical specifications, including its
system architecture and functionality. By making these declarations,
the applicant is affirming their understanding of part 146 requirements
and is attesting their continued obligation to comply with FAA
requirements for providing these services, as declared.
For services categorized as Service Level 2, i.e., services to
support part 108 operations requiring regulatory relief, the applicant
would be required to supplement their declarations with the provision
of a summary or description of the service they seek to deploy under
proposed part 146. This would include a description of the service and
its intended use; all representations to service users regarding the
capabilities, quality-of-service, limitations, and responsibilities of
the service provider and service user related to the authorized
service; and technical specifications of the service describing the
service's system architecture and functionality. By providing these
descriptions, the applicant is demonstrating to FAA their understanding
of how the service they seek to provide would support an aircraft
operation. They would also describe what the service user's roles and
responsibilities would be for continuing to use the service.
For services categorized as Service Level 3, i.e., services to
support aircraft operations beyond the scope of part 108, the applicant
would be required to supplement their declarations of compliance with
the provision of evidentiary data and documentation to FAA
demonstrating their capability to provide the service. The submission
of data or documentation includes providing FAA with a copy of service
provider's documentation describing the service and its intended use;
copy of the service provider's agreement containing all representations
of the service to the users regarding the service's capabilities,
quality-of-service, limitations, and responsibilities of the service
provider and the service user as it relates to the authorized service;
and a copy of the service provider's technical specifications of the
service's system architecture and functionality. These submissions
would include copies of the applicant's testing and evidentiary data of
the service's performance, in addition to providing evidence of the
applicant's capability to provide that Level 3 service. Because
services categorized as Service Level 3 may support aircraft operations
with a higher residual risk than part 108 operations, FAA would require
service providers supporting such operations to prove their capability
to support such operations. FAA would review the evidentiary data and
documentation of these services to verify that the results of those
services are capable of supporting complex BVLOS operations that are
beyond the scope of part 108.
iii. Demonstrating the Automated Data Service Meets Subpart E of
Proposed Part 146
To demonstrate that the automated data service meets FAA proposed
requirements in subpart E, applicants would be required to demonstrate
that their automated service meets the automated data exchange
requirements in proposed Sec. 146.400, as well as the software update
requirement in proposed Sec. 146.405. To do so, FAA would require
applicants to submit certain data and documentation to FAA for review.
Similar to the discussion in section XIII.G.2.ii of this preamble, the
type of data and documentation would depend on the service level of the
automated data service the applicant seeks to deploy. This in turn
would
[[Page 38333]]
prompt applicants to submit documentation commensurate to the
complexity of the aircraft operation the service would support. The
type of documentation each applicant would be required to provide is as
follows.
For services categorized as Service Level 1, i.e., services to
support part 108 operations, the applicant would be required to provide
FAA declarations, ensuring FAA that the applicant's automated data
services meet the automated data exchange requirements proposed in
Sec. 146.400. Those include declarations attesting that the automated
data service is interoperable, employs safeguards, contains an
authentication method, and uses a non-repudiation method. These
requirements are described in more detail in the sections that follow.
With regards to software updates, the applicant would be required to
submit declarations affirming that they have methodologies to verify
that their software updates would perform in accordance with Sec.
146.405.
For services categorized as Service Level 2, i.e., services to
support part 108 operations requiring regulatory relief, the applicant
would be required to supplement their declarations of compliance with
submissions of summaries or descriptions of how the applicant's
automated data service meets the automated data exchange requirements
proposed in Sec. 146.400. This would entail the submission of
documentation to FAA describing how the automated data service is
interoperable, employs safeguards, contains an authentication method,
and uses a non-repudiation method. Similarly, to demonstrate their
ability to comply with Sec. 146.405, the applicant would be required
to submit a summary describing the applicant's software updates and
testing methodology, assuring FAA that they are capable of releasing
software updates that would not adversely affect a person's ability to
operate safely in the airspace.
Lastly, for services categorized as Service Level 3, i.e., services
to support aircraft operations beyond the scope of part 108, the
applicant would be required to supplement their declarations of
compliance by providing evidentiary data and documentation
demonstrating that the automated data service meets the proposed
automated data exchange requirements of subpart E. This includes
providing FAA with copies of the automated data service's test results,
assuring that the automated data service has been proven to be
interoperable, employs safeguards, contains an authentication method,
and uses a non-repudiation method. Similarly, FAA would require the
applicant to submit data and documentation demonstrating that their
software updates and testing methodology can be released without
adversely affecting aircraft operations that would rely on their
service.
iv. Demonstrating the Automated Data Service Authorization Supports
Operator Compliance With FAA Regulations
To scope the type of automated data service that may be provided
under proposed part 146, FAA would require applicants to demonstrate to
FAA how the automated data service they seek to deploy would support
aircraft operator compliance with FAA regulations. As stated earlier in
this preamble, not every automated data service provider would need a
part 146 certificate. FAA would issue certificates for only those
automated data services that operators can use to meet a regulatory
requirement.
For example, under proposed part 108, operators who want to conduct
UAS BVLOS operations in certain controlled airspace would be required
to have capabilities in place for strategic deconfliction and
conformance monitoring as proposed in Sec. 108.180.\187\ Both
strategic deconfliction and conformance monitoring are automated data
services that may be provided under proposed part 146. In contrast, an
entity providing automated data services to monitor the temperature of
perishable cargo such as food deliveries or blood samples would not be
subject to part 146 requirements. This is because though important to
the operator, monitoring this is not an aviation safety or efficiency
concern regulated by this Chapter.
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\187\ See section VI.G of this preamble.
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v. Demonstrating the Automated Data Service Meets an Industry Consensus
Standard
Further, as stated in proposed Sec. 146.205(a)(5), basing an
automated data service on an industry consensus standard would
facilitate FAA's effort of ensuring that an automated data service
would support an aircraft operation--by either promoting its safety or
efficiency. This is due to the fact that standard setting organizations
are comprised of various stakeholders including aircraft operators,
manufacturers, and automated data service providers. By sheer
participation of these diverse audiences and the representation of
their viewpoints, FAA anticipates that it would promote innovative
development of automated data services that reflect an operational
need.\188\ FAA's approach to enabling BVLOS operations leverages
stakeholder engagement to help provide solutions to the challenges of
safely and efficiently integrating UAS into the NAS. As a key part of
this approach, service providers would have to show that any new
service they seek to introduce into the NAS is based on an industry
consensus standard or standards. FAA proposes this approach to find the
right balance between encouraging innovation and industry-led
solutions, while at the same time ensuring that the NAS does not become
a test bed for unproven technology. Safety remains FAA's top priority;
as a result, FAA will not approve experimental or unproven technologies
for unmitigated or routine use in the NAS. FAA must be reasonably
confident that any service that will be introduced into the NAS has
been independently vetted and tested by industry stakeholders to help
ensure that the technology is mature and interoperable with other UTM
technologies. FAA believes that requiring services to meet an industry
consensus standard or standards strikes the appropriate balance between
innovation and safety concerns.\189\
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\188\ Consensus standards bodies consist of potential automated
data service providers as well as users of those services, which
include aircraft operators, manufacturers, etc. Within this context,
service providers and service users would work together with FAA,
communicating industry needs for automated data services that would
promote the expansion of complex operations, while maintain the
safety and efficiency of operations in the NAS.
\189\ This approach is in line Congress' direction in the FAA
Reauthorization Act of 2024, Pub. L. 118-63, section 932. Per that
section, ``the Administrator shall ensure that, to the maximum
extent practicable, industry consensus standards, such as ASTM
International Standard F3548-21, titled `UAS Traffic Management
(UTM) UAS Service Supplier (USS) Interoperability', are included as
an acceptable means of compliance for third-party services.''
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3. Evaluation of Request (Sec. 146.210)
Proposed Sec. 146.210 describes the process FAA would use to
approve or deny a service authorization request. Proposed paragraph (a)
states that FAA would evaluate the information, materials, or any
supporting documentation submitted by the applicant seeking
authorization for deploying a specific automated data service. FAA
would review the applicant's submission to help ensure that they meet
the authorization requirements in proposed Sec. 146.205, which are
discussed in the preceding section. In addition, FAA may request
supplemental information during the application process to support its
evaluation process.
[[Page 38334]]
Proposed paragraph (b) would authorize FAA to issue an
authorization if the applicant meets the requirements in proposed Sec.
146.205. However, that authorization could come with conditions.
Proposed Sec. 146.210(b) would also authorize FAA to place limits or
conditions on the authorization to the extent necessary in the interest
of safety. FAA anticipates that there will be unknown variables
associated with the novel services that could be deployed by part 146
certificated automated data service providers. The authority to place
tailored limits or conditions on service authorizations would provide
FAA more flexibility to approve services, so long as appropriate
mitigations are in place. This serves to both enable innovation and
simultaneously protect the safety and efficiency of the NAS.
Proposed paragraph (c) would provide for FAA to deny a request for
authorization if one of several conditions is not met. These include if
the applicant does not hold a certificate (or is not simultaneously
applying for a valid certificate per proposed 146.115(d)), or the
applicant does not meet all of the requirements of proposed Sec.
146.205.
Proposed paragraph (d) would prohibit the transfer of an
authorization from one service provider to another. This provision
would ensure that a service continues to operate in accordance with its
minimum performance requirements, as the applicant would establish, per
Sec. 146.205(b). Per that requirement, the applicant for service
authorization is responsible for establishing the minimum requirements
of services they seek to deploy under part 146--so long as the services
meet certain baseline requirements proposed by FAA. Therefore, through
this provision, FAA would maintain the integrity of the automated data
service's capability and functionality, as established. In addition,
FAA would prohibit transfers of authorized automated data services in
the event the automated data service provider sells or transfers its
assets to another entity. In such cases, the new person would be
required to apply for a part 146 certificate and subsequent service
authorization to receive an FAA approval to operate under part 146.
This allows FAA to verify that the person with an FAA-issued service
authorization meets part 146 requirements. Lastly, by doing so, FAA
would prevent the creation of loopholes by prohibiting persons from
circumventing FAA application and evaluation processes as proposed
under part 146.
H. Subpart D--Certificated Service Providers
Proposed subpart D contains requirements for certificated service
providers to comply with once they have obtained a part 146
certificate. As stated earlier in the preamble, to operate under part
146, automated data service providers would be required to obtain a
certificate at the organizational level in accordance with subpart B,
and then obtain authorizations for the individual services it provides
in accordance with subpart C. To certificate the automated data service
provider at the organizational level, they must demonstrate to FAA that
they are capable of meeting the requirements of this subpart D of part
146. These subpart D requirements, which relate to cybersecurity,
quality management systems, training, reportable occurrences, and data
retention, are described in the sections that follow. Further, once
certificated, the automated data service provider has an ongoing
obligation to continue compliance with these requirements in order to
maintain their part 146 certification.
1. Minimum Requirements (Sec. 146.300)
Proposed Sec. 146.300 would establish the requirements applicable
to certificated service providers providing services regulated under
part 146. A certificated service provider would be required to remain
in compliance with these requirements in order to maintain their
certificate.
Unless otherwise authorized by the Administrator, proposed
paragraph (a) would require the certificated service provider to remain
in compliance with the terms of their certificate. Similarly, proposed
paragraph (b) would require the certificated service provider to comply
with the terms of an FAA-issued service authorization. These provisions
unequivocally establish the certificated service provider's legal
obligation to comply with the terms of their certificate and with
service authorizations on an ongoing basis. In addition, these
provisions provide a regulatory basis for FAA to bring an enforcement
action against the certificated service provider for failure to comply
with the terms of either the certificate, the service authorization, or
both. FAA does not foresee situations where the certificated service
provider is unable to comply with the terms of their part 146
certificate or service authorization. Nonetheless, FAA understands that
circumstances may occur when the automated data service provider may
request regulatory relief from those requirements. For this reason, FAA
proposes to allow certificated service providers to deviate from
complying with the terms of their certificate or authorization, if
authorized by the Administrator.
Proposed paragraph (c) would require a certificated service
provider to maintain their facilities, equipment, software, and data
necessary to comply with the terms of the certificate and service
authorizations issued under proposed part 146. Certificate requirements
would include cyber and data security requirements per proposed Sec.
146.305; quality management system requirements per proposed Sec.
146.310; change management requirements per proposed Sec. 146.315;
training requirements per proposed Sec. 146.320; reporting
requirements per proposed Sec. 146.325; record retention requirements
per proposed Sec. 146.330; automated service data exchange
requirements per proposed Sec. 146.400; and software update
requirements per proposed Sec. 146.405. Both the certificate and
service authorizations requirements are discussed in the sections that
follow.
FAA anticipates that many, if not all, certificated service
providers will rely on third-party vendors to support their operations
and, in some cases, service offerings. Proposed paragraph (d)(1)
explains that third-party services that are not specific to an aviation
safety function would not require FAA approval. For example, many
companies outsource their human resources and personnel recruiting
services to external parties. FAA does not expect these external
parties, or third-party vendors, to be held responsible for compliance
with proposed part 146 if their job function is not linked to any
services issued under proposed part 146.
In contrast, proposed paragraph (d)(2) would require the third-
party vendor to hold a service provider certificate and obtain a
service authorization if the vendor's service is specific to an
aviation safety function. For example, consider the scenario under
which a certificated service provider deems it necessary to outsource
some of their authorized services software maintenance responsibilities
to a third-party. This third-party could be providing a crucial
function in conducting the authorized service software updates, which
FAA would otherwise regulate under proposed Sec. 146.405 (described in
subsequent sections). To prevent creating loopholes or regulatory gaps
under which someone could outsource safety-critical responsibilities to
someone over which FAA does not exercise oversight, FAA would require
those vendors to also
[[Page 38335]]
comply with the certificate and service authorization requirements
issued under proposed part 146. In this way, FAA would ensure that
essential services affecting aviation safety remain subject to proposed
part 146. Proposed paragraph (d)(2) would help ensure that only those
entities who have demonstrated their capability to FAA under this
proposed part can introduce services--with the risks and mitigations
associated with them--into the NAS.
Proposed paragraph (e) would require that a certificated service
provider under this part to provide their automated data service to
users in a reasonable and non-discriminatory manner, as applicable. FAA
emphasizes that automated data service providers do not have the
authority to provide operators with access to the NAS, as that
authority resides solely within FAA. However, certain services--such as
strategic deconfliction--have the capability to coordinate its user's
operational intent with others in the network, and therefore may
prevent other operators from operating in that space for a specific
time. This may result in a certificated service provider's
anticompetitive treatment of the airspace. Under this provision, FAA
highlights that a certificated service provider must abstain from
providing its users with preferential treatment, thereby providing
reasonable and non-discriminatory access to the airspace.\190\
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\190\ As the regulatory entity responsible for the efficient use
of airspace under 49 U.S.C. 40103(b), requiring impartiality
facilitates FAA efforts in ensuring optimized use of the NAS.
Additionally, FAA recognizes the need to establish a priority of
operations schema, which would guide service providers as well as
operators in identifying priorities of operations and provide
guidance to service providers on resolving conflicts when they exist
among operators of the same priority level. FAA's priority schema,
for applicable automated data services, is addressed in AC 146-1,
which is available in the public docket for comment.
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Proposed paragraph (f) would require certificated service providers
to be authorized to conduct business in the U.S. and otherwise be in
compliance with applicable law, including but not limited to those
relating to data privacy and security. The purpose of this proposed
provision is to make clear that the certificates and authorizations
contemplated under proposed part 146 in no way override or supersede
other applicable legal requirements. FAA does not intend to affect any
legal obligation a service provider must abide by to operate in the
U.S. Under this proposed requirement, FAA would require any
certificated service provider to uphold their legal obligation to
remain in compliance with any applicable U.S. government laws and
regulations, not just those within FAA's purview. Those legal
obligations could include, but are not limited to, any laws or
regulations related to data privacy, security, use of spectrum, and
restrictions on import or export of technology.
2. Cybersecurity (Sec. 146.305)
Proposed Sec. 146.305 would require certificated service providers
to take certain actions to maintain their cybersecurity. FAA recognizes
that malicious attempts to disrupt the automated data service systems
regulated under proposed part 146 have the potential to impact the
safety and efficiency of the NAS. Bad actors may wish to disrupt
services with the intent of extorting a ransom, or simply to wreak
havoc and cause damage. Personal or proprietary information may be
sought for financial gain of the attacker. To prevent or mitigate the
occurrences of such events, it is in the interest of both FAA and all
involved entities to help ensure that appropriate cyber and data
securities are in place for all connected systems. Preventing and
mitigating negative outcomes from a malicious actor infiltrating
systems protects the safety and efficiency of the NAS by ensuring the
integrity and reliability of the information exchanged between service
providers and, ultimately, their users. As such, FAA proposes the
following requirements in Sec. 146.305 in order to mitigate risk to
the NAS associated with a service provider's vulnerability to potential
cyber or data security threats.\191\
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\191\ As a common industry practice, FAA would recognize ISO
27001:2022 as an acceptable means of compliance with proposed Sec.
146.305. An applicant may declare, describe, or present its
certification with this standard to show that it meets those
regulatory requirements--depending on the part 146 certification's
service level.
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Proposed paragraph (a) would require certificated service providers
to develop and implement cybersecurity policies and processes to
protect networks, devices, and data from unauthorized access and to
help ensure integrity, accuracy, and reliability of the services
provided to the customer or service user. By proposing this
cybersecurity policy requirement, FAA would facilitate protection and
mitigation against the aforementioned security threats. This would
include, but not be limited to, cyber threats that could adversely
affect the authenticity or integrity of data that could affect the
safety and efficiency of the NAS.
More specifically, under proposed paragraph (b), FAA would require
each certificated service provider under proposed part 146 to develop
the following cybersecurity policies for the protection of data,
including processes for:
(1) protecting software, hardware, and network computing
infrastructure necessary to protect the authorized service from
unauthorized access;
(2) ensuring the certificated service provider's employee access
privileges are limited to those necessary to fulfill normal job duties;
(3) preparing for, responding to, and mitigating the impact of
cyber attacks;
(4) collecting and analyzing data to measure the effectiveness of
the cybersecurity policy and processes; and
(5) revising the cybersecurity policy.
These proposed requirements are based on the Cybersecurity and
Infrastructure Security Agency's ``Secure by Design'' best practices.
FAA encourages service providers to engage in best practices for cyber
and data security; however, FAA determined that it was in the interest
of public and aviation safety, to propose these particular elements as
requirements. By proposing these requirements as performance-based
requirements, FAA believes it would encourage the continuous
improvement of the automated data service provider's cybersecurity
policy. FAA does not believe it would be effective to prescribe
cybersecurity requirements by rule because service providers must be
able to rapidly adjust cybersecurity measures to keep pace with the
pace at which new cybersecurity threats are introduced.\192\ FAA
anticipates that service providers may be able to demonstrate
compliance with this provision by relying on industry consensus
standards. For example, FAA would consider ISO 27001 to be one way, but
not the only way, to demonstrate compliance with proposed Sec.
146.305.
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\192\ Available at www.cisa.gov/securebydesign.
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3. Quality Management System (Sec. 146.310)
Proposed Sec. 146.310 would require certificated service providers
to have a quality management system in place to help ensure that the
provision of authorized services continue to meet the minimum
requirements of this proposed part on an ongoing basis. The safety and
efficiency of the NAS requires NAS participants to remain in compliance
with FAA requirements as well as improve their existing processes.
Quality management systems are regularly used in both the aviation
and software industries. An abundance of globally recognized standards
for quality management exists and may serve as resources. The proposed
[[Page 38336]]
requirements for a quality management system are intended to help
ensure certificated service providers have the processes and monitoring
systems in place to identify the risk of a service failure
preemptively--either those provided on their own or subcontracted
services--and have the means to manage that risk proactively. The
ultimate objective is for the certificated service providers to engage
proactively preventing failures that could introduce risk or hazards
into the NAS. As such, FAA would require certificated service provider
to have the following quality management system procedures for each
authorized service. These include procedures for an SMS per 14 CFR part
5; software update procedures; oversight procedures for third-party
vendors affecting the authorized services; testing and verification
procedures; and procedures receiving reports of any service
difficulties.
Proposed paragraph (a) would require each certificated service
provider to develop, implement, and document a quality management
system acceptable to the Administrator. By doing so, FAA would help
ensure that the services provided by the certificated service provider,
or any services provided by third-party vendors that the certificated
service provider relies on, has an appropriate method in place for
identifying and addressing risk proactively. FAA views having a quality
management system as a critical aspect to help ensure that each service
provider continues to provide services that are safe, reliable, and are
provided in accordance with the requirements of their FAA-issued
certificate and service authorizations.
Proposed paragraph (b) would require the certificated service
provider's quality management system meet certain provisions of FAA's
SMS regulations in 14 CFR part 5 to leverage its existing safety
management processes and principles into the quality management system
proposed under this part.\193\ FAA determined that applying existing
SMS requirements--that many aviation industry stakeholders are already
familiar with--would be a better approach than to create new quality
management requirements that would duplicate or potentially conflict
with existing safety management process or protocols.
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\193\ See 14 CFR part 5.
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FAA recognizes, however, that not every provision in 14 CFR part 5
could apply to automated data service providers. This is because many
of the provisions are tailored to aircraft operators and manufacturers.
Accordingly, proposed paragraph (b) would not require certificated
service providers to comply with Sec. Sec. 5.7, 5.9, 5.11, 5.13, 5.15,
5.27, and 5.71(c). Each of these part 5 provisions are tailored to
apply to aircraft manufacturers or operators and are provisions with
which part 146 certificated service providers could not comply. The
certificated service provider would have to comply with part 5
requirements, including but not limited to, documenting and
implementing a plan to address their safety policy, safety risk
management, safety assurance, and safety promotion.\194\ FAA
anticipates that it would provide additional guidance to assist
certificated service providers so they can familiarize themselves with
the core principles of SMS and implement compliant programs.
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\194\ For more information about SMS, see www.faa.gov/about/initiatives/sms.
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Proposed paragraph (c) would require the quality management system
to include a process for managing software updates in a way that
reduces the risk of introducing a hazard to the services authorized
under proposed part 146. Proposed Sec. 146.405--described in section
XIII.I.2 of this preamble--identifies specific provisions applicable to
each particular software update. In contrast, proposed Sec. 146.310(c)
directs the certificated service provider to have a procedure that
applies broadly at the organizational level. FAA anticipates that
certificated service providers will leverage industry best practices or
consensus standards to design and implement effective procedures to
comply with this proposed requirement.
Proposed paragraph (d) would require certificated service providers
to manage risk when they use third-party vendors for essential service
capabilities. FAA understands that certificated service providers will
almost always depend on third-party vendors for essential capabilities
such as cloud storage, databases, platform management, and other
software development tools. FAA does not propose to regulate those
other parties; however, FAA does propose to require the certificated
service provider to take appropriate steps to help ensure that the
services they rely on are performing correctly, as these services can
be essential to the overall functionality of the certificated service
provider's authorized automated data service. For instance, FAA expects
a certificated service provider to promptly update any third-party
vendor's software that they rely on to help ensure the software is
performing correctly, as outdated software could disrupt the certified
service provider's ability to maintain uptime for its users. As
previously expressed, a networked UTM ecosystem requires confidence
that each participant is delivering reliable services and can uphold
the high level of safety the public expects from anyone operating in
the NAS. For the overall UTM ecosystem to operate effectively and
efficiently, a certificated service provider must not only function
correctly but also ensure that the third-party vendor services they
depend on are also functioning correctly.
Proposed paragraph (d) would require certificated service providers
to monitor their third-party vendors' services to detect failures or
other performance issues that could adversely impact the certificated
service provider's ability to meet the requirements of this part. If
the certificated service provider's offering to users relies on
availability or performance of these third parties, the service
provider would need to be aware of issues with the third-party to be
able to appropriately inform users of potential system degradation or
downtime.
Proposed paragraph (e) would require the certificated service
provider to develop, implement, and document procedures to test and
verify that authorized services continue to meet requirements
applicable to those services. The processes must identify the frequency
of testing and the criteria the certificated service provider will
apply to determine whether those services comply with this part. The
certificated service provider must make all documentation of the
testing and verification under this section to the Administrator upon
request. FAA proposes these provisions for two reasons. The first is to
mandate that the certificated service provider remain vigilant in its
oversight of its own service. The second is to help ensure that FAA, in
discharging its own oversight responsibilities, has sufficient
documentation to determine whether the certificated service provider
remains in compliance.
Proposed paragraph (f) would require part 146 certificated service
providers to create a system so that their users could submit reports
about service issues that create or could create a risk to operations.
Specifically, certificated service providers would be required to have
a means for users to submit reports related to the failure,
malfunction, or defect in an authorized service when that problem has
endangered or may endanger the safe operation of an aircraft. FAA
acknowledges that the certificated service provider cannot monitor
every aspect of every service it provides at all times. For this
reason,
[[Page 38337]]
many of the provisions in this proposed rule are designed to create
systems to identify and bring problems to the certificated service
provider's attention without FAA's involvement. In essence, these
processes and procedures are force multipliers that allow the
certificated service providers to benefit from the vigilance and
observations of everyone who participates in or benefits from the
networked services. To this end, FAA wants to help assure users so they
can relay this information effectively and efficiently so that
certificated service providers can identify and address anomalies that
could affect the safe operation of UA.
To facilitate users reporting service problems, FAA proposes that
the certificated service provider make the reporting system easily
available to users and provide users with notice of the system.
Ultimately, FAA intends for certificated service holders to evaluate
and address, if appropriate, these reports in accordance with their SMS
(as required under proposed Sec. 146.310). However, FAA proposes that
the certificated service provider would be required to produce the
reports--as well as documentation showing corrective action, if any--in
response to a request from FAA.
4. Change Management (Sec. 146.315)
FAA proposes change management requirements to establish processes
by which a certificated service provider would successfully effectuate
changes within their organization. This would involve the process of
establishing a successful feedback loop within an organization to help
ensure that anyone working for a certificated service provider, whether
employed directly or under contract, have the same foundational
knowledge regarding their internal policies as it relates to the
provision of automated data services under proposed part 146. Change
management policies are designed to help ensure that a service provider
has a systematic process for developing and implementing a change to
their services. For example, consider a certificated service provider
that changes their software coding platform. If not implemented
properly within the organization that would include providing proper
training on this new coding platform, persons involved in maintaining
an automated data service's code may inadvertently affect the quality
of that service, thereby affecting the conformity or quality of the
authorized service as initially approved by FAA. A change management
policy would include provisions to avoid this outcome by making sure
that updates, amendments, or other changes a certificated service
provider applies to their authorized automated data service's software
or technology does not adversely affect the performance level of the
service under proposed part 146.
Accordingly, in proposed Sec. 146.315(a) FAA would require
certificated service providers to develop, implement, and document a
change management policy. Further, in proposed paragraph (b), FAA would
require certificated service providers to notify FAA, in writing, of
any change to its software or technology that may affect the provider's
ability to meet the authorized service requirements of part 146. FAA
recognizes that proposed paragraph (b) and proposed Sec. 146.405 both
require the certificated service provider to report software updates
and that, in certain circumstances, this reporting could be redundant.
Accordingly, proposed Sec. 146.315(b) would not apply when a
certificated service provider complies with the reporting requirements
of proposed Sec. 146.405.\195\
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\195\ For further discussion on this topic, see section XIII.I.2
of this preamble. In that section, FAA proposes that each
certificated service provider perform any software updates to their
authorized service in accordance with proposed Sec. 146.405, which
includes its own set of requirements for releasing software changes
and notifying FAA of those changes.
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Proposed paragraph (c) would allow FAA to review a certificated
service provider's change management documentation supporting a change
to their authorized service. The purpose of proposed paragraph (c) is
to help ensure that FAA, in discharging its own oversight
responsibilities, has sufficient documentation to determine whether the
certificated service provider remains in compliance with the
requirements of proposed part 146.
5. Training Program (Sec. 146.320)
Proposed Sec. 146.320(a) would require each certificated service
provider to establish a training program so that anyone who performs
functions related to the development or performance of authorized
services has the knowledge and skills necessary to help ensure the
certificated service provider's compliance with this part. The proposed
training requirement would apply both to the certificated service
provider's direct employees and to anyone else the certificated service
provider engages to perform these functions. FAA anticipates that many
certificated service provider's employees will have software industry
experience; however, they might not have extensive knowledge or
experience with aviation safety. To help bridge this potential
knowledge gap and ensure that personnel remain knowledgeable and
current with relevant aviation safety and efficiency topics, FAA
proposes that certificated service providers be required to provide
those individuals with initial and recurrent training.
To that end, FAA proposes in Sec. 146.320(b) the minimum training
topics that should be included in a certificated service provider's
training program. Specifically, FAA proposes that the training would
need to cover the following topics at a minimum: best practices in
distributed software development; applicable regulations and Advisory
Circulars relating to automated data service providers, airspace
classification, operating requirements, and flight restrictions;
aviation safety culture concepts; and best practices in the provision
of automated data services for aviation users.
Proposed Sec. 146.320(c) would require the training program to
include recurrent training elements for all applicable workers,
including individual contractors that impact the authorized service's
development and performance. Certificated service providers would be
required to provide this recurrent training at least once per calendar
year. Recurrent training would help individuals remain proficient in
their job duties--as it relates to the development and performance of
authorized automated data services.
6. Reportable Occurrences (Sec. 146.325)
FAA has an ongoing obligation to maintain the safety and efficiency
of the NAS. To do so, FAA needs to be aware of occurrences or incidents
that jeopardize NAS safety and efficiency. FAA proposes to require
certificated service providers to report certain events, specifically
those with an adverse effect on their services. This reporting
requirement is designed to inform FAA of accidents, incidents, and
precursor safety events and occurrences in the NAS.
Proposed Sec. 146.325 would require certificated service providers
to report the following incidents in a form and manner acceptable to
the Administrator: unscheduled service outages; security breaches that
result in unauthorized access to the certificated service provider's
networks, devices, or data, irrespective of whether it affects the
integrity, accuracy, or reliability of the services provided to the
service recipient; and any other occurrence that is specifically
identified as a reportable occurrence in the service provider's
certificate or service authorization.
[[Page 38338]]
Reportable occurrences constitute a vital data source that FAA and
certificated service providers may use for proactive and generative
safety assurance. This data would be helpful for multiple reasons,
including but not limited to providing crucial insights into the
reliability of authorized services that FAA uses to inform its safety
oversight functions. Automated data service providers are fairly new
participants in the NAS; this information would provide valuable
insight into the strengths and weaknesses of the aviation ecosystem as
FAA continues to work to integrate UAS into the NAS. In addition, FAA
would use the information to help with the iterative process of
identifying market trends and the direction UAS innovation is going.
This information helps FAA prepare today for the operations of
tomorrow. Lastly, through these reports, FAA would support FAA's safety
oversight functions.
7. Record Retention (Sec. 146.330)
Proposed Sec. 146.330 would require certificated service providers
to maintain certain records so that FAA can hold the provider
accountable for complying with part 146 requirements. Specifically,
proposed paragraph (a) would require each certificated service provider
to retain data and documentation submitted to FAA in support of their
certificate application for the duration of their certificate, plus an
additional 24 months. Proposed paragraph (b) would require each
certificated service provider to retain service specific information
for the duration of their service authorization, plus an additional 24
months. This service-specific information would include: (1)
documentation and data submitted to the Administrator in support of
their application for an authorized service; (2) records of testing
required under subpart E of this proposed part; \196\ (3) any service
difficulty or supplemental reports submitted to the certificated
service provider about a failure, malfunction, or defect in an
authorized service.
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\196\ As proposed in Sec. 146.405(c), FAA would require a
certificated automated data service provider to test any software
changes they want to apply to their automated data service prior to
releasing the updated service to their users. The certificated
service provider would be required to maintain records of this
testing--determining that the software changes were successful--in
accordance with proposed Sec. 146.330(a) for the duration of their
part 146 certificate, plus an additional 24 months.
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The proposed time periods for retaining service and certificate
information would provide FAA with access to crucial information,
particularly regarding organizational compliance and potential service
defects. With regards to the retention of documentation supporting the
certification and service authorization of the service provider, FAA
anticipates that this information is usually retained by the grantee
for the duration of their organization or service operation. This
information would be used to demonstrate proof of the certificated
service provider's part 146 certificate and service authorization, and
proof of compliance with FAA requirements in accordance with this
proposed part. With regards to retaining individual service testing or
difficulty reports, the proposed records retention requirement would
enable FAA to access historical records in the event of a service issue
that jeopardizes aircraft operation in the NAS. FAA understands that
aviation technology, including software development in support of these
automated data services, is evolving at an accelerated rate. The
accelerated technological evolution may cause a failed service update
or a service difficulty report. By requiring service providers maintain
such data for an additional 24 months past such incident(s), FAA would
be able to access historical data and identify potential safety
concerns or compliance issues that might not be readily apparent from
more recent documentation. In addition, through these records, any FAA
investigation, audit, or review could be conducted more efficiently,
ensuring rapid responses to emerging safety concerns, and maintaining
the safety of the NAS.
Proposed paragraph (c) would authorize the Administrator to request
the certificated service provider to retain additional data, as
necessary, in the interest of safety, efficiency, and fair access. FAA
proposes this provision because the regulations of automated data
service providers is a fairly new regulatory framework. As this
industry evolves, FAA may find it necessary to require the retention of
additional records, especially if they would be necessary for safety or
efficiency of the airspace. FAA seeks comments on what other kinds of
data would be crucial to require potential service providers to retain,
and the length of time that would be a sufficient retention period.
Further, FAA recognizes the value of certain information exchanged
between service providers to national security Departments and
Agencies. FAA seeks comments on what information may be shared
regarding operations and operators to help national security
Departments and Agencies to determine if they are being conducted
safely, securely, and responsibly. In addition, FAA seeks comments on
how this type of information could be shared with those national
security partners.
Proposed paragraph (d) would require certificated service providers
to keep records of the data exchanged with service users or other
airspace users. This would apply to all data exchanged, including but
not limited to server logs and notice of service downtime (these
information requirements are described in the discussion of proposed
Sec. 146.405(c) in the following sections). This proposed provision is
consistent with the data retention policies regarding FAA-provided air
traffic decision support tools, surveillance, and other equipment. Once
an automated data service has been authorized in accordance with this
proposed part, FAA would require certificated providers to maintain all
data exchanged with service users for a minimum of six months from the
time of the data exchange. This data retention period gives FAA enough
time to become aware of whether a safety related event occurred and to
gain access to the necessary data to investigate the incident. FAA
seeks comment on whether six months is sufficient time for FAA to
obtain and review records of data exchanged between service providers
and service users under this part.
Proposed Sec. 146.330(e) would require a certificated provider to
retain records of training given to its personnel for a minimum of two
(2) years following completion of that training. In the event of an
employer-employee separation, FAA would require the certificated
service provider to retain record of that employee's training for 12
months after their separation from employment. The certificated service
provider would be responsible for ensuring that its personnel have met
the training requirement under proposed part 146. To hold the
certificated service provider accountable for complying with these
requirements, FAA would need to review the training records--be it an
existing or previous employee for the automated data service provider.
Lastly, FAA proposes in Sec. 146.330(f) that if FAA requests any
of the required records retained under this proposed part, the
certificated service provider would be required to provide those
requested records to FAA within a reasonable timeframe after receiving
the request. FAA proposes this requirement so that in the event of an
FAA investigation or analysis, FAA may obtain the necessary information
to reassess a certificated service provider's
[[Page 38339]]
certificate or authorization. Further, under this provision, FAA could
effectively investigate and verify a certificated provider's compliance
with and conformance to their obligations under this part. In the event
of nonconformance based on an FAA inspection of the certificated
service provider's records, FAA could initiate the appropriate
suspension or revocation actions. FAA does not define a specific time
period in which to produce the records. What constitutes a reasonable
time would depend on the nature of the documentation, how it is kept,
and the volume of data stored. Nonetheless, FAA invites comments on
whether to require the production of records within a specific
timeframe after receiving a request, and if so, what would be
considered a reasonable timeframe to produce the required records.
I. Subpart E--Authorized Service Requirements
Proposed part 146 would create a regulatory framework to enable
automated data service providers to participate in a federated, non-
centralized network. One defining characteristic is for data shared in
this network to meet a minimum set of requirements so that the
information exchanged is accessible among data service providers or
individual users that rely on that data. And in certain cases, the
providers rely on each other in the network to holistically provide
accurate and reliable information.\197\
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\197\ FAA acknowledges that there are automated data service
providers, such as SDSP, whose services are only meant be shared
with its users. Such service providers would therefore not need to
share their data with other automated data service providers to
comply with proposed part 146. In contrast, automated data service
providers, such as USS, are expected to exchange information not
only with the service users, but also with similar automated data
service providers in the network for the services to function
optimally. FAA anticipates that information regarding each
individual service's characteristics and system architecture
services--e.g., a DAA service provided by an SDSP versus a strategic
deconfliction service provided by a USS--would be required to be
provided to FAA under proposed Sec. 146.205 for FAA to determine
whether to authorize the service under proposed part 146. FAA
clarifies, however, that all automated data services--be they
services provided by USS or SDSP--are required to meet the minimum
data exchange requirements of proposed Sec. 146.400 to comply with
proposed part 146 requirements.
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This type of industry-led and managed network has many benefits for
participants and end users; however, one significant drawback is that
service providers participate as peers without authority to hold one
another accountable for providing accurate and reliable information. To
remedy this problem, proposed subpart E would establish minimum
requirements applicable to authorized services. This would include
requirements for how each authorized service would exchange data as
well as the requirements for updating a data service through software
updates.
1. Authorized Service Data Exchange Requirements (Sec. 146.400)
The quality of the network depends on the quality of the data
exchanged within it. FAA proposes to set minimum requirements for the
authorized services that facilitate the exchange of that data. The
purpose of these requirements is to mitigate the risk of corrupted,
unreliable, or inaccurate data within the network. To that end,
proposed Sec. 146.400 would require services authorized under this
part to be interoperable, employ safeguards, use an authentication
method, and use a non-repudiation method. These requirements are
described in the paragraphs that follow.\198\
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\198\ In accordance with the terms in proposed subpart C of part
146, applicants would submit documentation to support their
compliance with these requirements. FAA anticipates that applicants
will choose to rely on industry consensus standards to meet these
requirements.
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Proposed paragraph (a), which addresses interoperability, would
require the certificated service provider to be able to exchange data
automatically and securely with both their service users or with other
certificated service providers when necessary for provision of the
service, irrespective of the user's or other provider's digital
platform.\199\ By requiring the interoperability of authorized
services, FAA would facilitate the use of common machine-readable data
formats and industry-accepted data transfer methods. Further, this
provision would facilitate the ability for separate systems to share
crucial information in a compatible manner, reducing friction and
information loss as data is exchanged between service users or other
certificated service providers.
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\199\ FAA recognizes that not all automated data services are
required to exchange their services with their users as well as
other automated data service providers. For example, automated data
service providers of strategic deconfliction services are required
to share their data with USSs in the network for the service to
function optimally. In contrast, automated data service providers
providing DAA services are only required to provide their services
to the service users or operators. FAA clarifies that this provision
is intended to explain whether the automated data services fall
under a USS or SDSP, the service must be provided and accessible to
all service recipient(s)--be it the end user only or the user as
well other automated data service providers in the network--for the
service to function optimally.
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Proposed paragraph (b) would require the certificated service
provider to employ safeguards and other measures to help ensure the
integrity, accuracy, and reliability of data exchanged with their own
service users or subscribers that may include other certificated
providers. This provision would help ensure data services that are
being provided or exchanged among certificated providers and service
users would contain true, accurate, and reliable information.
Safeguarding an authorized automated data service under proposed part
146 would make it so that the data received by an aircraft operator
would accurately reflect the information provided by the certificated
service provider. Similarly, the data transmitted back to the
certificated service provider would accurately reflect the correct
operator information. Safeguards that prevent interception,
modification, and retransmission of this data are critical to ensure
that false data, modified by an outside force, is not presented as the
genuine version. Otherwise, operators or service users may rely on
inaccurate or false data, which could compromise the aircraft
operation, and therefore the safety or efficiency of the NAS. For
example, if a UA that strayed from its intended flight path had its
location data intercepted, modified, and retransmitted such that the UA
appeared to be following its intended path, the operator may not be
aware of a flyaway event occurring, which could introduce a collision
risk.
Proposed paragraph (c) would require the certificated service
provider to use an access and authentication method that prevents
unauthorized access to or interference with data exchanged with service
users that may include other certificated service providers. This would
help ensure that the data exchanged under proposed part 146 is
protected from unauthorized access or interference and would help
prevent data from being manipulated by a malicious actor. While no data
security provisions are entirely impervious to bad actors, this
provision would assure service users or aircraft operators of a level
of protection from an external entity attempting to maliciously inject
erroneous data into their system.
Proposed paragraph (d) would require the certificated service
provider to use a validation and verification method that provides
assurance of the integrity and origin of the data exchanged with their
service users or subscribers. In the software development industry,
this concept is often referred to as ``non-repudiation'' and is often
implemented as message signing. While data authentication protects the
information,
[[Page 38340]]
non-repudiation would assure service users, or aircraft operators, that
the data exchanged is coming from a trusted source. This would allow
the service users to trust that a certificated automated data service
provider provided the data source. Through this provision, one can be
assured that the data exchanged has reached the intended user. In other
words, it provides assurance that the data user or the aircraft
operator is who they say they are, and the source of the data, or the
service provider, cannot deny they were the one who sent the data. This
provision facilitates the importance of establishing trust and
traceability from the service provider and service user.
Proposed paragraph (e) would require that a certificated service
provider under this part to provide their automated data service to
users in a reasonable and non-discriminatory manner, as applicable. FAA
emphasizes that automated data service providers do not have the
authority to provide operators with access to the NAS, as that
authority resides solely within FAA. However, certain services--such as
strategic deconfliction--have the capability to coordinate their user's
operational intent with others in the network, therefore may prevent
other operators from operating in that space for a specific time. This
may result in certificated service providers' non-equitable treatment
of the airspace. Under this provision, FAA highlights that a
certificated service provider must abstain from providing its users
with preferential treatment, thereby providing reasonable and non-
discriminatory access to the airspace.
2. Software Updates (Sec. 146.405)
An automated data service provider likely will update or change the
software that its service runs on many times over the lifetime of the
service. There could be a number of different reasons for this. A
service provider could decide to make changes to modernize or improve
the efficiency or quality of its service. Or, it could decide to offer
new services or add new features to existing services. In other
circumstances, the service provider might want to make remedial changes
to help ensure the security of their systems. For example, proposed
subpart D includes security requirements that include maintaining cyber
and data security processes, quality management systems, and change
management systems so it can identify potential vulnerabilities and
take remedial action in a timely manner. Usually, remedial action takes
the form of a software update to prevent the vulnerability from
interfering with the quality of the service or to prevent someone from
exploiting those vulnerabilities to the detriment of the users or the
network itself.
In addition to identifying vulnerabilities and appropriate
remediation(s), the service provider must also ensure that the software
update does not introduce any new vulnerabilities or exacerbate any
existing problems. Each time a service provider deploys an update to
correct an error, there is risk that it will not function properly. To
minimize this risk, which could potentially affect all participants in
the network, FAA proposes certain requirements related to the
development, testing, and deployment of software updates.
Proposed paragraph (a) would require a certificated service
provider to verify that prior to releasing any software changes to
their FAA-authorized service, those changes would not adversely affect
the person using the service. This provision would minimize the risk of
software updates inadvertently impacting the authorized services'
users, and therefore affecting their ability to operate safely in the
U.S. airspace. For purposes of this section, FAA proposes to describe
``person'' to include customers of the certificated service provider as
well as other airspace users or services that rely on exchanging data
with the authorized service.
Proposed paragraph (b) would require a certificated service
provider to use a generally accepted industry standard for assigning
version numbers to any software changes to their authorized automated
data service. As stated earlier, a certificated service provider may
perform a software update to their authorized service for a number of
reasons, including but not limited to, improving the efficiency or
quality of their authorized service. To track updates, software
developers assign version numbers to the updated version of the
software; those updates include performing a patch, minor update, or
major update.\200\ Currently, there are existing versioning standards
for software updates. Whenever software changes are made, software
developers assign version numbers to their software changes according
to those existing standards. Therefore, rather than establish new
versioning procedures, FAA intends on leveraging the use of existing
consensus standards for the maintenance of authorized automated data
services under proposed part 146.
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\200\ See proposed Sec. 146.405(f), discussed later in this
section of this preamble.
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Proposed paragraph (c) would require that a certificated service
provider conduct testing prior to releasing any software changes. This
is to verify that the changes do not adversely affect the authorized
service's ability to meet the requirements of proposed part 146.\201\
In addition, all documentation of testing and verification of software
changes must be readily available to FAA, and made available no later
than 24 hours after receiving a written request from FAA.\202\ FAA
anticipates certificated service providers will engage in best business
practices including documenting all of their product testing--in this
case, software update testing. FAA's main objective is to help ensure
the safety of each software change prior to introducing an updated
service into the NAS. FAA does not intend to impose an administrative
burden of requiring automated data service providers to provide FAA
with proof of each test conducted in accordance with this proposed
part. However, FAA retains its authority to require certificated
service providers to show proof of their software testing once they
receive a written request from FAA, in the interest of safety.
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\201\ Those requirements include the data exchange requirements
per proposed Sec. 146.400. In accordance with Sec. 146.400, FAA
proposes that each authorized service under proposed part 146
contains the following requirements: interoperability, safeguards,
authentication, and non-repudiation.
\202\ As proposed in Sec. 146.330(a)(2), record retention
requirements, FAA would require certificated service providers to
retain records of testing required under subpart E of part 146,
which would include software updates testing, for the duration of
the service provider's part 146 certificate plus an additional 24
calendar months.
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Lastly, FAA proposes that FAA may request the certificated service
provider to conduct additional testing or verification to demonstrate
that their authorized services meet the minimum performance
requirements of part 146. FAA would do so to verify that the testing
conducted is sufficient, and the software changes are safe to
introduce, or re-introduce, into the NAS. With regards to conducting
additional testing or verification, FAA would require those to be
conducted as soon as practicable after receiving an FAA written
request. For the sake of promoting flexible regulatory requirements,
FAA does not intend to set a specific timeframe for when the
certificated service provider should conduct their additional testing
or verification after receiving an FAA request. Instead, FAA
anticipates that each certificated service provider would conduct their
additional testing or
[[Page 38341]]
verification as soon as they are able to do so, to provide their
service users with their latest updates, therefore promoting their own
business ventures.
Proposed paragraph (d) would require certificated service providers
to provide reasonable notice to all service users prior to any software
change or anticipated service downtime as a result of the software
update. This notice would include the date, time, and expected downtime
duration of that service. Proposed paragraph Sec. 146.405(d)(2) would
require the service provider notify users in advance of a software
change in order for the user to have adequate time to determine if the
change to the service affects the user, and if so, make the required
adjustments due to the change. In addition, as proposed in Sec.
146.405(d)(3), each notice would provide a description of the software
change, including: (1) the version identifier; (2) an explanation
regarding the nature of the change; (3) identification of differences
in service features, functionality, or user experience; and (4)
explanation of any actions the user must take to ensure the authorized
service is performing as intended following the change. This
information would be crucial for service users to understand the scope
and impact of the software change and anticipated downtime duration as
well as whether the changes could affect operations.
In addition, proposed paragraph (d) would require certificated
service providers to keep a record of each software update or changes
under this section for not less than two years from the date the update
was released. FAA may rely on this information to investigate potential
non-compliances in the event of any service malfunction; this duration
would provide FAA with sufficient time to determine whether to take
enforcement action.
Rather than prescribe a set requirement for what would be
considered reasonable notice, each certificated service provider should
have a thorough understanding of their authorized service, and the
potential disruption that may take place in the event of a software
update. Apart from FAA notification requirements explained in the
following paragraph, in most cases the certificated provider would be
in the best position to determine what would be considered reasonable
notice regarding any scheduled downtime. Reasonable notice would allow
service users to properly evaluate the potential effects of the
downtime on their operations, as well as make any necessary operational
adjustments. FAA welcomes comment on whether there is a specific
timeframe that should be considered reasonable notice.
Proposed paragraph (e) would establish FAA notification
requirements for releasing software updates to automated data services
based on the type of software changes. These types of updates are--
patch, minor update, and major update.\203\ FAA proposes requirements
for these three types of service software updates commensurate with the
potential risk the update could present to the safety of the operation
that relies on that service. This potential risk would also depend on
the service level of the service that is undergoing a software update.
As such, proposed paragraph (f) would establish approval requirements
for releasing software updates. The proposed notification and FAA
approval processes are each explained in the paragraphs that follow.
---------------------------------------------------------------------------
\203\ Proposed definitions for path, minor, and major software
updates are in Sec. 146.5 and are discussed in this preamble in
section XIII.E.2.
---------------------------------------------------------------------------
First, patch updates are version changes to a software that address
bugs or performance improvements internal to the service. Patch updates
often improve performance, fix bugs, or address security
vulnerabilities. They do not change the overall functionality or
features of the service and the version is backward compatible. In
addition, the application programming interface (API) endpoint remains
unchanged. An API is a software feature that allows two different
applications to interface or ``talk to each other.'' The API endpoint
is the place where the API receives requests to access functionality
and data. Typically, the endpoint is a web address. In the case of a
patch update, the web address would not change.
Ultimately, service users can upgrade or downgrade from the patch
incrementally without having to make changes to how they use the
service. Regardless of the service level of the service undergoing the
patch update, because the software change would not alter the service's
functionality, API, and compatibility, FAA determined the risk to
aviation safety to be extremely low. For these reasons, patch updates
can be released by certificated service providers without the need for
providing prior notice to FAA, nor receiving an FAA approval for the
release of such update. As discussed in Sec. 146.405(d)(4) (in the
preceding paragraphs), FAA proposes to require certificated service
providers to document and maintain a record of the patch update for two
years.
Second, minor updates are version changes to software that add new
features and generally create a new API endpoint for that version. In
the case of an API endpoint update, typically the previous API endpoint
remains fully functional, which means that the user can continue to use
legacy functionality without doing anything, or they can upgrade and
take advantage of the new features or functionality. When the user
upgrades their service, per the software update, they may need to make
changes to their aircraft or its AE to properly integrate the minor
update. In either case, the service would typically maintain backward
compatibility with the aircraft or AE that is relying on the service.
This is important because, irrespective of whether the user chooses to
upgrade or not, backward compatibility means they would still be able
to access legacy functionality of the service.
Because minor updates may substantively change the features and
functionality of the service, FAA assesses the safety risk of these
software changes to be higher than those associated with patch updates.
This is because the minor update would change the service's API, and
therefore the service information may not be accessed the same way as
initially developed. This could lead to a service user's inability to
access information that may be necessary for the aircraft operation.
The impact of minor updates on the service's performance would also
depend on the service level of the service.\204\ Accordingly, FAA
proposes in Sec. 146.405(e)(1) that certificated service providers
must notify FAA--via a portal on FAA's website--prior to releasing a
minor update. Specifically, prior to releasing a minor update,
certificated service providers would be required to notify FAA at least
one (1) business day prior to release of a Service Level 1 service, at
least three (3) business days prior to release of a Service Level 2
service, and at least five (5) business days prior to release of a
Service Level 3 service. This provides FAA an opportunity to review
documents from the certificated service provider to help ensure that
the change to the service will continue to comply with its
authorization and will not create a new unsafe condition or hazard for
aircraft operators using the service.
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\204\ The higher the service level, the higher the residual risk
that may be introduced into the NAS because of the operation that
relies on that service.
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Finally, major updates would be significant revisions or a redesign
of the software. These changes are not backward compatible and
fundamentally change what the service does or how it works. Major
updates to
[[Page 38342]]
a software substantively change the API, which may result in a new API
endpoint or signature.\205\ FAA believes that these changes could
create hazards to safe operations and thus the risk is high enough to
warrant FAA approval. As a result, FAA proposes in Sec. 146.405(f) to
require certificated service providers to obtain FAA approval prior to
releasing a major software update to Service Level 2 or Service Level 3
services.\206\ This is because major updates would significantly change
the software, and therefore the service's features and functionality,
all of which could lead to compatibility issues between versions. The
effects and magnitude of the changes would be unknown until
tested.\207\
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\205\ An API signature is a method used to secure and
authenticate API communications.
\206\ Service Level 1 services are considered to pose the lowest
residual risk to the NAS as they support aircraft operations with
multiple mitigations in place, rendering changes to these services
as non-critical to safety of the operation. As such, FAA does not
consider major updates to service level 1 services to require FAA
approval prior to release. However, service level 1 service
providers are required to notify FAA at least five (5) business days
before releasing any major software updates.
\207\ AC-146-1, available in the docket associated with this
rulemaking, as proposed includes guidance to the public regarding
how to submit documentation to FAA requesting Agency approval prior
to releasing a major update to a service. This documentation may
include traceability matrices, and test results to FAA for major
updates to Service Levels 2 and 3.
---------------------------------------------------------------------------
In addition, because major updates would constitute such
significant changes to the software, FAA proposes in Sec. 146.405(g)
that, unless otherwise authorized by the Administrator, the
certificated service provider would be required to have procedures in
place to transition service users from the older software to the
updated one safely, rather than suddenly discontinuing the superseded
software versions. In order to transition safely, FAA proposes to
require the certificated service providers to: (1) maintain the most
recent previous version of the authorized service with full
functionality for a minimum of 60 days from the release date; and (2)
notify service users a minimum of seven (7) calendar days prior to
removing full functionality of the prior version of the authorized
service.
Nonetheless, FAA understands that there may be exceptions to
discontinuing superseded software versions as proposed in Sec.
146.405(g), especially with regards to maintaining a preceding version
of a service if it is no longer in operation. For this reason, FAA
proposes in Sec. 146.405(h) that the provision of Sec. 146.405(g)(1)
may not apply if the authorized service is provided by more than one
certificated provider, and the major software update would need to take
place in a coordinated, planned, or simultaneous manner to maintain its
interoperability.
For example, certain automated data services would need
interoperability to function optimally. As such, automated data service
providers that provide a specific service relying on interoperability
may need to update their software in a coordinated manner; this is to
guide their service users into using the latest version of the
automated data service. Through this coordinated effort of enrolling
their service users into using the latest version of their software,
the older version of the software would be rendered obsolete--
especially because all parties would be using the latest version. For
this reason, FAA determined to except automated data service providers
from maintaining the most recent previous version of the authorized
service with full functionality for a minimum of 60 days from the
release date. Nonetheless, a seven (7)calendar day minimum notice from
Sec. 146.405(g)(2) would be required under the proposal.
To clarify the proposed provisions for issuing notifications and
requesting approvals in accordance with this proposed section, FAA
summarizes the necessary requirements for patch, minor updates, and
major updates, depending on each service's service level in table 6.
Similar to the continuum framework of service levels and residual risk,
FAA developed this framework for notifying and approving software
updates to be proportional to the impact of software updates on the
authorized service. The rationale for this differentiation is to set
the level of FAA review (if any) proportional to the severity of
hazards that could be introduced by the update to the service. In most
cases, the certificated service provider need not wait for explicit
approval from FAA prior to issuing a software update. In many cases,
certificated service providers would issue software updates iteratively
to fix bugs, add features, or improve overall functionality (e.g., to
increase the total number of operators it could support
simultaneously). FAA also understands that cybersecurity
vulnerabilities must be addressed quickly and that undue delays could
be detrimental to users or the network. The required notification
interval enables FAA to prioritize how it manages changes to services,
with time to provide limited review as needed. In the event a potential
problem is identified, and in the event of a major software update to
Service Level 2 or Service Level 3 services, this notification
requirement would allow FAA to delay the release of the software update
while it conducts further review.
Table 6--Software Updates Notice, Approval, and Retention Requirements
----------------------------------------------------------------------------------------------------------------
Service level 1 Service level 2 Service level 3
----------------------------------------------------------------------------------------------------------------
Patch:
FAA Notification?................ No..................... No..................... No.
FAA Approval?.................... No..................... No..................... No.
--------------------------------------------------------------------------
Record Retention................. 2 years since update
--------------------------------------------------------------------------
Minor:
FAA Notification?................ at least 1 business day at least 3 business at least 5 business
prior to release. days prior to release. days prior to release.
FAA Approval?.................... No..................... No..................... No.
--------------------------------------------------------------------------
Record Retention................. 2 years since update
--------------------------------------------------------------------------
Major:
FAA Notification?................ at least 5 business N/A.................... N/A.
days prior to release.
[[Page 38343]]
FAA Approval?.................... No..................... Yes.................... Yes.
--------------------------------------------------------------------------
Record Retention................. 2 years since update
----------------------------------------------------------------------------------------------------------------
J. Subpart F--Due Process
FAA proposes subpart F of part 146 to define conditions under which
FAA may revoke or suspend the issuance of an automated data service
authorization. Proposed subpart F would also address stipulations for
reconsideration, including conditions under which an applicant may
petition FAA to reconsider the denial, suspension, or revocation of an
authorization issued under part 146. FAA does not intend for this
subpart to apply to the process of appealing FAA decisions to suspend
or revoke a part 146 certificate issued in accordance with this part.
FAA does not intend to create a redundant set of provisions with
regards to the Agency's appeal process. FAA has an existing set of
provisions for the process of appealing FAA initiated decisions to
modify an already issued certificate--including suspending or revoking
a part 146 certificate--in 14 CFR part 13. As such, the existing
process of appealing FAA decisions with regards to an FAA initiated
certificate action in 14 CFR part 13 would also apply to certificates
issued under part 146. Nonetheless, if FAA issued a decision to deny an
application for part 146 certification, including a denial to amend a
returning applicant's certificate's service level, the applicant may
petition FAA to reconsider such decision under proposed part 146.
1. Revocations and Suspension (Sec. 146.500)
Each certificate or authorization issued under this part is subject
to ongoing review by the Administrator. However, while FAA has an
existing set of provisions in part 13 of 14 CFR governing the process
of FAA initiated actions with regards to certificates issued under part
146, this process does not apply to automated data services
authorization issued under part 146. As such, FAA proposes in Sec.
146.500(a) that the Administrator may revoke or suspend an
authorization issued under this part upon a determination that the
certificated service provider is not in compliance with this part.
Certificated service providers in non-compliance may impact NAS safety
and efficiency. As the government authority responsible for maintaining
the safety and efficiency of the U.S. airspace, FAA has authority to
oversee compliance with FAA requirements. FAA may exercise this
authority to require certificated service providers to comply with the
proposed part 146 certification and service authorization requirements
in order to maintain their certificate or service authorization.
As an alternative to revoking a service authorization, FAA proposes
in Sec. 146.500(c) that the Administrator may suspend an automated
data service authorization issued under this part without prior notice
or opportunity to cure if the Administrator determines it is in the
interest of safety to immediately remove that service from
participating in the NAS. FAA recognizes that errors may occasionally
happen and could impact an operator's ability to conduct safe aircraft
operations. These errors could be a result of a service issue but also
could be a result of an operator's mistake. Rather than simply revoke
the certificated service provider's authorization, this provision
provides FAA with the ability to suspend the service authorization
while investigating the cause for error. Furthermore, it provides the
certificated service provider with the opportunity to remediate the
issue of non-compliance instead of having FAA exercise its revocation
authority. However, per proposed Sec. 146.500(b), if the certificated
service provider does not fix the problem of non-compliance, FAA could
revoke the certificated service provider's part 146 service
authorization in the interest of safety.
2. Petition to Reconsider (Sec. 146.505)
FAA endeavors to enable the integration of complex UAS operations
such as BVLOS operations in the NAS, while ensuring measures are in
place to integrate those operations safely. FAA wishes to engage NAS
stakeholders to enable more complex UAS operations in a safe,
efficient, and equitable manner. FAA believes it can do so by approving
technologies that enable complex UAS BVLOS operations. Because FAA's
highest priority is the safety and efficiency of the NAS, FAA also
intends to promote and enforce compliance with its regulations.
Balancing fairness with FAA's responsibility to enforce its
regulations, FAA proposes to offer automated data service providers
impacted by a revocation, suspension, or denial with the opportunity to
correct any identified insufficiencies with their service. However,
FAA's mission is to provide the world's safest, most efficient
airspace. If an automated data service provider jeopardizes NAS safety
or efficiency, FAA would exercise its oversight authority to prevent
them from adversely affecting the safety and efficiency of the NAS.
To that end, FAA proposes in Sec. 146.505(a) that any applicant or
service authorization holder may submit a petition to FAA to reconsider
its decision to deny, suspend, or revoke a part 146 service
authorization issued under this proposed part. Similarly, an applicant
may petition FAA to reconsider its decision to deny an application for
part 146 certification, including applications to amend the
certificate's service level. FAA proposes that such petitions must be
submitted by the applicant or certificated service provider in a form
and manner acceptable to the Administrator. Applications must be
submitted to FAA within 60 calendar days of FAA-issued denial of a
certificate, or FAA-issued denial, revocation, or suspension of a
service authorization issued in accordance with this part.
FAA proposes in Sec. 146.505(b) that the applicant or previously
certificated service provider's petition for reconsideration must
demonstrate that FAA issued the denial, revocation, or suspension in
error. Further, the petition to FAA must include one of the following
elements: a material fact exists that was not previously presented to
the Administrator; the Administrator relied on a material error of fact
in issuing the decision; or the Administrator did not correctly
interpret a law, regulation, or precedent. To issue its final decision,
FAA will consider the information in the submitted petition to
determine whether to withdraw or keep its decision issued in accordance
with proposed part 146.
K. Proposed Advisory Circulars
FAA proposes to publish the AC 146-1, Automated Data Services, to
provide guidance to automated data service providers seeking
certification and
[[Page 38344]]
authorization to provide a service in accordance with proposed part
146. AC 146-1 would provide guidance for automated data service
providers, including guidance for applying for part 146 certification,
and the use of certain standards as a means to comply with proposed
part 146 requirements.\208\ AC 146-1 would also provide guidance for
demonstrating capability to be granted FAA authority to provide an
authorized automated data service in accordance with proposed part 146.
Lastly, AC 146-1 would provide guidance on the materials to provide to
FAA in relation to automated data services data exchange requirements
and software update semantics.
---------------------------------------------------------------------------
\208\ See, e.g., ISO 23629-12.
---------------------------------------------------------------------------
As part of this guidance, FAA would reference the use of certain
automated data services that may be used by operators to comply with
FAA operating requirements. These services would be used to mitigate
any residual risks associated with an ongoing operational need. These
automated data services may be based on published industry consensus
standards as a whole or may represent certain aspects of a standard (or
standards). To guide the public through the process of leveraging the
use of these services to comply with FAA requirements, FAA would issue
appendices to AC 146-1. Each appendix would comprise a service provider
standard order (SPSO), which would represent one way but not the only
way to demonstrate compliance with the performance-based regulations
under proposed part 146. A list of appendices, comprising each SPSO
that FAA anticipates publishing in association with this rule follows:
1. Appendix A, SPSO-1a: Strategic Deconfliction (Strategic Conflict
Detection & Resolution, and Aggregate Conformance Monitoring).
2. Appendix B, SPSO-2a: Conformance monitoring FAA seeks comments
on whether additional guidance or procedures are needed to expand
operations using automated data service providers.
XIV. Regulatory Notices and Analyses
A. Regulatory Impact Analysis
Executive Orders 12866 (``Regulatory Planning and Review'')
requires agencies to regulate in the ``most cost-effective manner,''
and to make a ``reasoned determination that the benefits of the
intended regulation justify its costs.'' The Office of Management and
Budget has determined that this proposed rulemaking is a significant
regulatory action as defined in section (3)(f)(4) of Executive Order
(E.O.) 12866. Accordingly, the following sections provide analysis of
the regulatory impact of the proposal, including the applicable
baseline, potential costs and benefits, and uncertainties.
1. Baseline for the Analysis
The baseline for the analysis includes the existing regulatory
framework and practices for conducting BVLOS operations, the affected
entities and operations under this framework, and existing risks of
these activities.
i. Regulatory Framework
As described in section III, FAA currently authorizes BVLOS and
larger and more complex operations through waivers and exemptions. Part
107 provides safety regulations for small UAS weighing less than 55
pounds. Waiver authority in part 107 accommodates new technologies and
unique circumstances if the Administrator finds that proposed operation
can be conducted safely in terms of the waiver. The waiver application
generally must outline how the operator intends to conduct the
operation safely, including risk mitigation strategies, and FAA
includes terms and conditions in the waiver issued.\209\
---------------------------------------------------------------------------
\209\ Part 107 waivers issued, and the sections waived, are
available at www.faa.gov/uas/commercial_operators/part_107_waivers/waivers_issued.
---------------------------------------------------------------------------
Part 107 only applies to UAS that weigh less than 55 pounds at
takeoff. Not only is there a maximum weight, but there is also a
limitation on what rules can be waived.\210\ To fly a UA that exceeds
the maximum weight limit of part 107 or obtain relief from the
nonwaivable provisions of part 107, the UA operator must petition for
an exemption. The exemption petition must describe how the operator
will safely conduct the operation, and FAA will include conditions and
limitations in the exemption issued. In addition, an exemption requires
justification on how the petition is in the public interest and when
precedent setting, petitions for exemptions are made available for
public notice and comment in the Federal Register. FAA publishes the
petitions for exemptions and the decision document in response to those
requests to the public docket.\211\
---------------------------------------------------------------------------
\210\ Types operations that are waivable under part 107 include
operations from a moving vehicle (Sec. 107.25), daylight (Sec.
107.29), VLOS (Sec. 107.31), with visual observers (Sec. 107.33),
multiple small UAS (Sec. 107.35), yielding right of way (Sec.
107.37(a)), over people (Sec. 107.39) and in other airspaces (Sec.
107.41) and removing certain other limitations (Sec. 107.51).
\211\ These dockets are available at www.regulations.gov.
---------------------------------------------------------------------------
ii. Affected Entities and Operations
The proposed rule would affect certain UA manufacturers and
operators, and entities seeking authorization to provide automated data
services. Manufacturers of UA used in BVLOS operations would have new
requirements. UA operators would be able to apply to conduct BVLOS
operations for the following activities: package delivery, agriculture,
aerial surveying, civic interest,\212\ UA operations training,
demonstration, recreation, and flight testing. Companies that provide
data, processing capacity, or other software support for UAS could
become an automated data service provider.
---------------------------------------------------------------------------
\212\ Includes forest and wildlife conservation, including
wildfire recovery, wildlife conservation, and tracking climate
change, and operations in support of public safety, including fire,
accident, and disaster response.
---------------------------------------------------------------------------
Previously granted waivers and exemptions provide insight on the
potentially affected entities.\213\ There are 9 operators with
exemptions that currently authorize BVLOS operations for UA over 55
pounds, including in package delivery operations and operations to
support infrastructure inspection.\214\ There are also approximately
230 additional (unique) operators that hold waivers indicative of BVLOS
operations with UA up to 55 pounds.\215\ These entities span a wide
range of industry categories, such as agriculture, mapping,
photography, and conservation. There are also about 30 U.S.-based
manufacturers of the UA used under these waivers and exemptions.\216\
Current LOAs provide information on entities that may provide automated
data services. Table 7 summarizes the potentially affected entities.
Table 8 shows the number of part 119 UAS package delivery
[[Page 38345]]
operators operating under part 135 through exemptions. Table 9 shows
BVLOS operations tracked within FAA's partnership programs.
---------------------------------------------------------------------------
\213\ FAA has also denied requests for waivers and exemptions.
The extent to which these denials represent entities that would
continue to pursue acceptable BVLOS terms and conditions is unclear.
\214\ The docket numbers are: FAA-2023-1827 and FAA-2022-0124;
FAA-2022-0921; FAA-2019-0628; FAA-2020-0499; FAA-2019-0573; FAA-
2018-0835; FAA-2022-0268; FAA-2020-0620; FAA-2021-0746.
\215\ For this analysis, the waived sections include: Sec. Sec.
107.31, 107.33, 107.35, and 91.113. Based on waivers as of January
1, 2024.
\216\ Based on waivers of Sec. 107.31 from May 2023 to May 2024
and the current exemptions for BVLOS.
Table 7--Potentially Affected Entities \1\
------------------------------------------------------------------------
Category Count
------------------------------------------------------------------------
Operators \1\.................................. 239
Manufacturers \1\.............................. 30
Automated data service providers............... \2\ 2
------------------------------------------------------------------------
\1\ Based on waivers and exemptions for BVLOS operations as of May 2024.
\2\ As described in section VII.I.2, FAA has issued LOAs associated with
an operational waiver or exemption for strategic deconfliction service
provision to two entities. Automated data services will be required
for certain BVLOS operations.
Table 8--UAS Package Delivery Operators
------------------------------------------------------------------------
Operator Location of operations \1\
------------------------------------------------------------------------
Drone Express............... NC.
DroneUp, LLC................ Dallas/Fort Worth, TX.
Causey Aviation Unmanned.... NC.
Zipline..................... Salt Lake City, UT, with expansion plans
in progress for Dallas/Fort Worth, TX and
Seattle, WA.
Amazon...................... Phoenix, AZ and Tolleson, CA.
UPS Flight Forward, Inc..... Winston-Salem, NC.
Wing Aviation, LLC.......... Primarily in TX and VA, with expansion
plans.
------------------------------------------------------------------------
Source: FAA (see: https://www.faa.gov/uas/advanced_operations/package_delivery_drone).
\1\ Current operations are limited by the need for case-by-case
environmental assessments which take about one year. By the final
rule, FAA anticipates having a nationwide assessment which will expand
locations.
Table 9--BVLOS Flights, 2024 \1\
------------------------------------------------------------------------
Category Count \2\ Hours
------------------------------------------------------------------------
Environmental survey.............. 6 3
Infrastructure inspection (linear) 583 192
Infrastructure inspection (non- 197 44
linear)..........................
Package delivery.................. 80,955 9,309
Public safety..................... 4,337 526
Research.......................... 103 18
-------------------------------------
Total......................... 86,181 10,092
------------------------------------------------------------------------
Source: FAA data (includes BEYOND and Partnership for Safety Program,
exemptions, and waivers).
\1\ Operational BVLOS flights (with and without observers) and flights
using multiple UA.
\2\ Count of single leg (one-way) flights.
Additional examples of BVLOS operations in these categories that
have developed under the current regulatory structure include the
following: \217\
---------------------------------------------------------------------------
\217\ Industry materials provided to the Office of Information
and Regulatory Affairs, Office of Management and Budget, available
at: www.reginfo.gov.
---------------------------------------------------------------------------
Routine and supplemental inspections. For example, BNSF
Railway began inspecting 150-mile segments of railway track in New
Mexico by late 2015.
Three state Departments of Transportation (KS, ND, NC)
were in FAA's Integrated Partnership Program. OH DOT, with partners, is
developing SkyVision, a ground-based detect and avoid system.
After Hurricane Milton in FL, Florida Power and Light used
UAS to assess damage. Georgia Power implemented a pilot program
utilizing drones for comprehensive aerial inspections.
Public safety agencies employ UAS for search and rescue
operations, disaster response and recovery, law enforcement,
firefighting, and traffic accident and crime scene investigation.
The proposed rule may also attract new operators, manufacturers,
and automated data service providers compared to operating under the
existing framework. For example, some entities may find the proposed
rule requirements easier to navigate compared to describing how they
will operate safely in a waiver or exemption request. Other entities
may commence operations due to increased demand for BVLOS services. The
types of affected entities are also likely to expand as technologies
and use cases develop over time. In addition, entities holding waivers
and exemptions from rules other than part 107 (e.g., agricultural
operation under part 137) may be able to operate under part 108.\218\
Finally, part 91 operators not equipped with ADS-B Out or EC equipment
may be affected in terms of losing right-of-way to UAS.
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\218\ Exemptions for UAS that provide relief from provisions
within 14 CFR part 137 reflect UAS which are too heavy to fly under
part 107. Since proposed rule permits heavier aircraft, these
operators may transition to operate under part 108.
---------------------------------------------------------------------------
iii. Risks
The greatest risks posed by current BVLOS operations include
collision with manned aircraft, UA, and structures on the ground, that
could result in property damage and fatalities or injuries to persons
on the ground.\219\ While there are risks under the existing
[[Page 38346]]
part 107 framework,\220\ the BVLOS ARC found that there have been no
fatalities and only one serious injury attributable to BVLOS operations
under pilot programs.\221\
---------------------------------------------------------------------------
\219\ See, e.g., comments from the National Agricultural
Aviation Association and the Helicopter Association International on
petition to amend Exemption No. 18601, available at
www.regulations.gov/document/FAA-2019-0573-0078.
\220\ See, e.g., NTSB accident report ERA24LA079, available at
data.ntsb.gov/carol-main-public/basic-search.
\221\ BVLOS ARC Report, at 11 (Mar. 10, 2022).
---------------------------------------------------------------------------
Commenters on current exemptions have also described considerations
related to noise, privacy, and security from BVLOS operations, and
impacts on the environment from package delivery operations.\222\ For
example, as FAA summarized, some commenters expressed concerns with the
annoyance, stress, and emotional or physical discomfort caused by
increased auditory and visual noise attributed to UA operations and UA
intrusions on personal space. Other commenters were concerned with
noise pollution, stating that UAs make an irritating noise, and that
this would multiply as other companies begin or increase operating.
These concerns continue to be present. In 2024, residents in College
Station, Texas expressed concern regarding noise levels associated with
drone deliveries to the City Council; the Mayor then wrote a letter to
FAA regarding the operator's request to expand the service.\223\ The
letter acknowledged that the operator's intent to use a newer quieter
drone should have a positive effect on the perceived noise levels.
---------------------------------------------------------------------------
\222\ See, e.g., summary of comments regarding intrusiveness and
privacy and environmental concerns on Exemption No. 18601, available
at www.regulations.gov/document/FAA-2019-0573-0059.
\223\ City of college Station, Letter to FAA Regarding Amazon
Drones (Jul. 15, 2024), available at www.cstx.gov/news/archived_news/letter_to_f_a_a_regarding_amazon_drones.
---------------------------------------------------------------------------
iv. Uncertainties
A key uncertainty in the baseline for the analysis is the extent to
which BVLOS operations are constrained by the current regulatory
framework versus other factors that may affect each use case including
technological, logistical, and financial considerations. That is,
industry growth is occurring in the absence of the rule. For example,
with its part 135 certification, DroneUp states it will have
authorization to fly BVLOS up to five miles allowing a 300% increase in
serviceable households and will continue to work with FAA to expand
operations.\224\ Flytrex also states its service is growing fast and it
is working to expand operations while adhering to the latest
regulations.\225\ Seven UAS operators have now obtained part 135
certification to operate as air carriers (as shown in table 8) and FAA
has received additional applications. Similarly, there is uncertainty
regarding operational risks that would emerge with continued BVLOS
operations via waivers and exemptions.
---------------------------------------------------------------------------
\224\ DroneUp, DroneUp Secures FAA Part 135 Certification,
Revolutionizing Drone Delivery for All (Dec. 3, 2024), available at
www.droneup.com/news/part135.
\225\ See generally, FlyTrex, available at www.flytrex.com/.
---------------------------------------------------------------------------
2. Impact of the Rule
As described in the baseline, FAA is already approving BVLOS
operations, and operations using UA over 55 pounds, through waivers and
exemptions. With the proposed rule, FAA would be codifying streamlined
processes for these approvals that it has developed over the past few
years. The proposed rule would provide a repeatable and consistent
process in regulation and would eliminate the need for individual
waivers and exemptions.
For manufacturers, the proposed rule relies on industry consensus
standards for UA design. Once developed and approved, however, the
proposed rule would require operations under part 108 to use UA that
meet the standards. This may represent an incremental cost to operators
(depending on the price differential with current UA) and a market
opportunity for US manufacturers. The proposed rule would provide
certainty for manufacturers in both the standards and requirement for
US manufactured UA.
For operations, there may be little incremental impact because the
proposed rule codifies existing processes. For example, FAA streamlined
the approval process for part 137 agricultural operators to operate UA
over 55 pounds. Agricultural operators typically operate in visual line
of sight but with heavier UA needed for agricultural tasks,
specifically spraying pesticides and herbicides. Proposed part 108
provides for permitted or certificated (depending on the overflown
population density) agricultural operations with UA over 55 pounds,
replacing the streamlined exemption process. Similarly, for package
delivery, the process for initial part 119 UAS operators operating
under part 135 originally took years whereas more recent operators have
obtained certification much quicker. Proposed part 108 would reflect
this more recent experience and provide a dependable process. FAA has
also streamlined the process for police departments (and other
emergency services) to obtain a waiver to use detect and avoid
technology to operate UA BVLOS; the proposed rule provides regulatory
structure to eliminate the need for these waivers.
For automated data services, the proposed rule again relies on
industry consensus standards. Once approved, however, the proposed rule
would establish requirements for use of such services, which represents
a cost for operators and a new market for providers. The main impact of
the proposed rule in this sector relates to low altitude deconfliction
of UA. While there has not been a need yet for these services because
of the limited operations with multiple operators in the same
geographic area, there is a need for this deconfliction with scaled
BVLOS operations. The proposed rule provides a regulatory structure
under which service providers can operate at scale; as of June 2025,
FAA and industry are testing this technology at one location.
3. Benefits
The benefits of the proposed rule are the incremental values that
result from the increased integration of UAS into the NAS, specifically
BVLOS operations. These benefits would derive from increased regulatory
certainty and efficiency in the process for initiating and continuing
applicable operations under the proposed rule, such that benefits
accrue sooner compared to the current process for enabling these
operations. The proposed regulatory framework is also likely to enable
a scale of operations not achievable under the current approach. For
example, the BVLOS ARC found that regulatory changes are necessary to
support industry growth. FAA Reauthorization Act of 2024 (and 2018), as
well as the Agency's own experience trying to tailor existing
regulations to UAS operations are also indicative of industry
constraints under the existing framework. The proposed rule may also
result in benefits that would not occur under the current process, such
as those associated with an automated data service provider
certification and service authorization.
i. Types of Benefits
The BVLOS ARC identified broad categories of societal benefits that
may be achieved through BVLOS operations including economic, safety,
and health (table 10). These categories represent incremental impacts
of BVLOS operations in general, and the magnitude of benefits would
depend on the extent to which operations scale
[[Page 38347]]
under the rule compared to the existing regulatory framework.
Table 10--Categories of Benefits of UAS BVLOS Operations
------------------------------------------------------------------------
Category Description
------------------------------------------------------------------------
Economic................. Use cases that provide an economic benefit
such as cost savings and expanded market
opportunities.
Safety................... Operations that result in improved safety
such as replacing risk in manned aviation
operations and public safety use cases or
monitoring the perimeter of a large critical
infrastructure facility.
Health................... Operations could potentially lead to
opportunities to improve both individual and
community health, such as delivery of
vaccines or important medications.
------------------------------------------------------------------------
Source: BVLOS ARC Report (March 2022).
a. Economic Benefits
Economic benefits arise from the range of use cases through new and
expanded market opportunities and cost savings. For example, to the
extent that sales of various products or services increase under the
rule above and beyond what would occur under the current regulatory
framework (i.e., not simply offsetting existing sales), this represents
new economic activity and thus benefits. The rule will also increase
the market for and providers of automated data services.
New economic activity may also enhance health and the availability
of services to growing communities. Enabling BVLOS operations could
also have a transformative impact on logistics and a variety of
infrastructure inspections. Automated data services may provide a cost-
effective, safe, and scalable means for those UAS operators to meet
some of their regulatory requirements. FAA anticipates that a market
would develop to provide these services following the implementation of
this rule.
b. Safety Benefits
Safety benefits would accrue to the extent that a variety of
operations could be executed more safely, and on a greater scale than
currently conducted. As shown in table 9, many operations, such as
infrastructure inspections are already being conducted with UAS beyond
VLOS. The proposed rule may amplify these operations beyond or sooner
than what would occur under the existing framework. Safety benefits
could accrue through modifying existing activity, such as replacing
traditional methods (e.g., manned aviation or truck delivery) with UAS,
or through new activity (additional public safety operations).
For example, for package delivery, safety benefits are influenced
largely by how many of the UA operations would be replacing traditional
delivery methods, and how many would be in addition to traditional
delivery methods. A delivery that replaces traditional delivery methods
can be expected to result in significant safety increases. As discussed
above, FAA has not observed any fatalities due to BVLOS UAS use, but
traffic fatalities remain a leading cause of death in the United States
so substitution toward UA and away from delivery trucks is likely to
lead to a reduction in fatalities.
Conversely, if the flights represent new sales, then there would be
minimal impact on safety benefits. In addition, though there have been
no observed fatalities due to BVLOS UAS operations, it is conceivable
that a dramatic increase in the number of operations could reveal such
a risk. However, it is also possible that the processes and standards
laid out in proposed part 146 would result in lower risk with greater
adoption due to network effects such as UAS sharing data and well-
defined roles and rules.
Similarly, in agriculture, the potential for incremental aviation
safety benefits \226\ depends on the extent to which those operators
still conducting manned operations switch to UAS. The proposed rule
would not obligate any changes. Manned aircraft also have larger yields
and operators may not have any incentive to switch to a fleet of UAS if
they do not have the capital to buy multiple UAS.
---------------------------------------------------------------------------
\226\ Based on data from NTSB Accident and Incident Database/
Incidents from FAA Accidents and Incident Database (A/IDS), in 2024
there were 13 fatal accidents, eight (8) accidents resulting in
serious injury, and eight (8) accidents resulting in minor injuries
among agricultural operations under part 137.
---------------------------------------------------------------------------
The ARC also identified that UAS operated BVLOS could result in
benefits to include monitoring critical infrastructure. Critical
infrastructure is also an area where unauthorized UA pose a security
threat. Benefits would be attributable to the rule to the extent that
more such operations, or more timely operations, are enabled through
the permitted or certificated process under the rule.
c. Health Benefits
BVLOS operations could have a transformative impact on logistics
such as for the timely delivery of health care products (e.g.,
medications). Benefits would accrue to the extent that such services
reach a greater percentage of the population compared to under the
existing framework. Further, these benefits could especially impact
rural communities where health access is limited.
ii. Magnitude of Benefits
Estimating the magnitude of benefits of the rule would require
forecasting BVLOS operations and associated impacts with and without
the rule and estimating the value of the incremental changes. Because
BVLOS operations are still developing under the existing regulatory
framework and the regulatory environment represents only one potential
impediment to scaling these operations, there is substantial
uncertainty in doing so. FAA currently does not identify BVLOS
operations separately in its UAS forecast; \227\ with the completion of
a final rule, part 108 activity can be specifically identified in
future forecasts.
---------------------------------------------------------------------------
\227\ Available at www.faa.gov/data_research/aviation/aerospace_forecasts/unmanned_aircraft_systems.pdf.
---------------------------------------------------------------------------
Nonetheless, industry has commissioned studies to estimate the
benefits of UAS, including BVLOS operations, that foresee values in the
hundreds of millions of dollars. These studies illustrate the
motivation behind desired investments in BVLOS technologies. Benefits
attributable to the rule would be the portion of this value, if
achieved, that can be directly tied to removing regulatory impediments
through the rule.
Given the uncertainty, FAA has not quantified the benefits of the
rule. Indeed, societal values may also change over time, in either
direction, since the range of logistical and environmental outcomes
have only been experienced on a limited or pilot scale. Technological
or changes on other
[[Page 38348]]
fronts may also affect the future and values.
With this caveat, the studies show how benefits may scale under
specific scenarios. For example, one study of package delivery
operations \228\ showed that in five years, in a single U.S.
metropolitan area, UAS delivery could recover up to $582.5 million per
year in total time savings for consumers; \229\ generate up to $284,000
per year in new annual sales for a participating local business; \230\
assist as many as 66,000 residents who lack access to a vehicle and
22,000 with mobility challenges to obtain their prescription
medication; avoid up to 294 million miles per year in road use and up
to 580 car crashes per year; and reduce up to 113,900 tons of carbon
dioxide emissions per year.\231\
---------------------------------------------------------------------------
\228\ Virginia Tech Office of Economic Development and the Grado
Department of Industrial and Systems Engineering, Measuring the
Effects of Drone Delivery in the United States (2020), available at
vtechworks.lib.vt.edu/items/ab84e0fb-a204-44e9-a51b-99e237d60293.
\229\ In communities with greater distances between commercial
centers and residences, consumers may benefit more through time
saved whereas in denser communities with high costs of living,
consumers may benefit more from the value of time saved.
\230\ See Measuring the Effects of Drone Delivery in the United
States, supra at n. 228 (2020) (Local business included restaurants,
pharmacies, retail businesses that use traditional parcel delivery,
and retailers of smaller items who currently do not offer delivery).
\231\ The BVLOS ARC Report also references a study by Levitate
Capital that provides estimates of the market for drones by use case
and notes impacts of limitations on BVLOS, see infra n. 237.
---------------------------------------------------------------------------
For this scenario, FAA would value reduced fatalities and injuries
resulting from car crashes using the value of statistical life (VSL)
and the Maximum Abbreviated Injury Scale (MAIS).\232\ For example,
reduction in the risk of one fatality generates benefits equal to the
VSL (approximately $12.5 million). Reduction in the risk of serious
injury generates benefits equal to the fraction of the VSL associated
with MAIS level 3 (.105), or approximately $1.3 million (.105 x $12.5
million). Similarly, the value of reduced emissions can be estimated
using the social cost of greenhouse gases.\233\
---------------------------------------------------------------------------
\232\ U.S. Department of Transportation, Treatment of the Value
of Preventing Fatalities and Injuries in Preparing Economic Analyses
(2021), https://www.transportation.gov/resources/value-of-a-statistical-life-guidance.
\233\ E.g., the value of the reduced emissions cited would be
$19.6 million annually based on a value of $190 per metric ton in
2020 and a 2 percent discount rate; see EPA Report on the Social
Cost of Greenhouse Gases: Estimates Incorporating Recent Scientific
Advances, table ES-1, available at www.epa.gov/environmental-economics/scghg.
---------------------------------------------------------------------------
These results are specific to the three representative metropolitan
areas (Christiansburg, VA; Austin, TX; and Columbus, OH) chosen to
represent cities with varying population densities and transportation
challenges. They also reflect existing drone capabilities as well as
assuming drone delivery can match or exceed existing delivery services
for cost and convenience. Therefore, the extent to which the results
can be extrapolated more widely or the extent to which implementation
will occur in the absence of the rule is uncertain.
Zipline also provides references to studies of the positive health
impact of its UAS package delivery operations in foreign
countries,\234\ suggesting the potential for gains in rural areas of
the United States. Zipline also asserts its flights reduce the carbon
emissions of deliveries by 97 percent compared to gas cars. Again,
based on the social costs of greenhouse gases, the value of reduced
emissions could be significant. As with the previous study, the
ultimate adoption and extent to which it would not occur in the absence
of the rule is uncertain.
---------------------------------------------------------------------------
\234\ See www.regulations.gov/document/FAA-2024-1317-0004.
---------------------------------------------------------------------------
The magnitude of benefits shown in these examples would be reduced
by any disbenefits from increased risks that accompany new or scaled
BVLOS operations, including noise, annoyance, and privacy intrusions,
as well as any increased safety risks from drone interactions with
manned aviation or persons and property on the ground. Technological
advancements and rule requirements may alleviate the potential for some
effects (e.g., deconfliction and avoidance reducing potential for
collisions) but not all (e.g., increased operations enabled by quieter
drones may increase annoyance from flying objects). Again, given the
limited scale of BVLOS deployment to date, the extent to which existing
concerns and any early incidents can be extrapolated under the rule is
uncertain.
In summary, benefits would be attributable to the proposed rule to
the extent BVLOS operations are constrained under the current
regulatory framework or accrue sooner under the proposed rule. For
example, the BVLOS ARC maintained that regulatory predictability and
certainty are important to provide the marketplace with stability.
Though granting individual exemption petitions may enable UAS operators
to meaningfully scale operations,\235\ the pace may be much accelerated
under a rulemaking framework. Realizing benefits sooner is significant
considering the social rate of time preference (e.g., discounting
future benefits by 3 percent annually). New entrants due to increased
demand for BVLOS services under the simplified regulatory structure
would also represent new economic activity attributable to the proposed
rule. Subtracted from these positive impacts would be any negative
values from any increases in risks that accompany new or scaled BVLOS
operations.
---------------------------------------------------------------------------
\235\ See www.regulations.gov/document/FAA-2024-1317-0004.
---------------------------------------------------------------------------
iii. Uncertainties
The key uncertainty in the analysis of benefits is the rate and
extent to which affected entities and new entrants take advantage of
the proposed rule to increase BVLOS operations. Uncertainty also
relates to the effectiveness of the proposed requirements in not
increasing risks in the NAS.\236\ In the event of any accidents or
incidents (e.g., encounters with manned aircraft), reactions could slow
growth of BVLOS operations to a pace more similar to that under the
current regulatory framework. There are also uncertainties with respect
to the impacts of different use cases. For example, one study noted
that ``instead of accelerating the retirement of surveying and mapping
professionals, drones have proven to be practical tools that enhance
the quantity and quality of services that existing professionals
provide.'' \237\
---------------------------------------------------------------------------
\236\ The role of SMS in reducing risks.
\237\ See Levitate Capital, The Future of the Drone Economy
(Dec. 2020), available at levitatecap.com/levitate/wp-content/uploads/2020/12/Levitate-Capital-White-Paper.pdf.
---------------------------------------------------------------------------
Given uncertainties regarding the extent of new economic activity,
associated effects such as impacts on emissions are also uncertain. For
example, reductions in emissions would be driven by using electrically
powered UA instead of gasoline or diesel-powered land vehicles.\238\
The electricity would still result in some emissions being created, as
it must be generated. The quantity of those emissions depends on the
type of power generation plant used to produce electricity, which in
turn depends on the location of the UAS being charged. However, power
generation facilities are generally more efficient than vehicle engines
at extracting energy from fuel and can implement more rigorous
filtering of exhaust, and so the emissions would potentially be reduced
regardless of the location.
---------------------------------------------------------------------------
\238\ While UA are powered by batteries, the batteries are
rechargeable which occurs through the electric grid.
---------------------------------------------------------------------------
[[Page 38349]]
Finally, there is also uncertainty with respect to some of the less
desirable impacts of drones, including noise, annoyance, and privacy
impacts, and the effect of any increases in reducing the magnitude of
benefits or realizing the economic gains. A variety of factors and the
ultimate BVLOS deployment scenarios will influence the magnitude of
these effects.
4. Costs
The proposed rule may result in incremental costs to comply with
requirements for design and production, and operations compared to
under the existing regulatory framework. The sections below discuss
these considerations as well as the cost implications to become an
automated data service provider.
i. Design and Production
The proposed rule would establish performance-based design,
production, and airworthiness requirements for part 108-compliant UAS.
Voluntary consensus standards bodies would then develop consensus
standards for FAA acceptance or approval that they will propose as a
MOC to meet regulatory requirements. Manufacturers can then design and
produce UA in compliance with the consensus standards. Manufacturers
must also comply with requirements for: finding of compliance, DOC,
quality assurance system, operational safety program, production
acceptance testing, COS program, flight test data storage,
developmental testing, function and reliability testing, cybersecurity
protection, airworthiness acceptance application, inspections and
audits, and documenting design changes.
FAA reviewed conditions placed on existing manufacturers of UAS for
BVLOS to identify the extent to which the proposed requirements would
represent incremental requirements.\239\ Since the consensus standards
are not yet available, the extent of any design changes is uncertain.
However, as reflected in current exemptions, manufacturers already
update and revise designs for new technology and capabilities.\240\ The
designs of UAS used by existing part 135 operators conducting package
delivery also may not need any major design changes. For example, some
proposed standards reflect existing requirements for those operators
(e.g., anti-collision lights).
---------------------------------------------------------------------------
\239\ See e.g., dockets FAA-2019-0573, FAA-2020-0499, and FAA-
2022-0268.
\240\ See e.g., a December 2023 petition to amend exemption to
enable operation of the operator's latest drone system in commercial
package delivery operations, available at www.regulations.gov/document/FAA-2019-0573-0079.
---------------------------------------------------------------------------
Many other proposed requirements also reflect existing processes
and procedures, for example, quality assurance, production inspection
and testing, cybersecurity,\241\ and manuals and instructions.
242 243 Others likely involve only minimal expenditure. For
example, submitting a DOC, required for each individual UA manufactured
in accordance with a MOC, could be done in batches of up to 500
aircraft at a time in a few minutes of time.
---------------------------------------------------------------------------
\241\ See, e.g., the security protocol DJI drones provide to
prevent hijacking by third parties, available at enterprise.dji.com/data-security.
\242\ See e.g., the previously referenced petition, available at
https://www.regulations.gov/document/FAA-2019-0573-0079.
\243\ The Skydio production process includes inspection and
flight testing of every UA, available at www.youtube.com/watch?v=NHumG_QsFZ0.
---------------------------------------------------------------------------
Some requirements may result in incremental expenditures depending
on the extent to which manufacturers are not already performing similar
activities. Table 11 describes these proposed requirements and
potential cost considerations. For example, FAA assumes that the
incremental cost associated with data storage comes entirely from the
cost of renting a server to hold the data. Because the data can be
gathered automatically, FAA assumes that the cost of gathering the data
will be minimal. However, with respect to airworthiness acceptance,
existing processes have included type certification, special
airworthiness certification, and obtaining FAA approval for any changes
to the type of UA used.\244\ Therefore, the proposed process for
airworthiness acceptance may not represent an incremental level of
expenditure (and may represent a cost savings compared to existing
processes).\245\
---------------------------------------------------------------------------
\244\ See e.g., www.regulations.gov/document/FAA-2019-0628-0052,
www.regulations.gov/document/FAA-2023-1827-0012, and
www.regulations.gov/document/FAA-2024-1317-0004.
\245\ There is significantly less FAA involvement in proposed
process. From an airworthiness perspective, the time and effort
required to develop issue papers, negotiate airworthiness
requirements, and approve and witness test plans and reports would
be notably reduced. These steps are typically part of establishing
the certification basis, which can take several years (and has for
an existing manufacturer). In contrast, under the proposal, there
would be no need for negotiated compliance, as manufacturers design
their systems to meet accepted industry consensus standards. This
approach results in cost savings for both FAA and the applicant.
Table 11--Potential Incremental Costs: Manufacturers
------------------------------------------------------------------------
Unit cost
Category Description information
------------------------------------------------------------------------
Airworthiness acceptance.... Documentation of MOC Potential cost
with accepted or saving compared to
approved consensus type certification
standards. or special
airworthiness
certification; No
data available.
COS program................. Monitoring and Dependent on number
resolution of in of designs; No data
service safety available.
issues and
identified non-
compliance.
Data storage................ Storage of model $6,000 per year.\1\
flight data for 2
years.
------------------------------------------------------------------------
COS = continued operational safety.
MOC = means of compliance.
\1\ Based on $500 monthly costs. See, e.g.: www.liquidweb.com/products/dedicated/ dedicated/.
For example, data storage costs for the 30 manufacturers may cost
in the range of $180,000 annually ($0.2 million annualized using
discount rates of 3 and 7 percent over a 5-year period). FAA does not
have data on COS program costs which may depend on the manufacturer's
size. However, large manufacturers may already be implementing COS as
standard practice. FAA requests comments and data relevant to UA
manufacturers.
ii. Operations
Operators must apply for an operating permit or operating
certificate. Applications for an operating permit must include a
description of the type and area of operations, company manual,
recordkeeping plan, and reporting procedures. Applications for an
operating certificate must include a description of the type and area
of operations, company manual, recordkeeping plan, reporting
procedures, training program, communications and ground risk
assessment, SMS, hazardous materials program, inoperable equipment
plan, and rest and duty plan. Operating
[[Page 38350]]
permits must be renewed every two years while operating certificates
will not need renewal. In addition, the proposed requirements include
strategic deconfliction capability and conformance monitoring (for
certain operations), alerting capability, validation testing
(certificated operators), mandatory staff positions, STAs of covered
persons, and security programs under 49 CFR part 1544.
FAA reviewed conditions placed on existing operators to conduct
BVLOS operations to identify the extent to which the proposed
requirements would represent incremental requirements. To large extent,
the proposed requirements reflect conditions in existing waivers and
exemptions. For example, existing waivers require specific approved UA,
UA performance standards (e.g., anti-collision lighting
specifications), specific personnel (including qualifications and TSA
vetting), operations manuals, tracking revisions to manuals, training
of personnel involved in UAS operations, notifications of operations,
and maintenance requirements and logs. Existing part 135 certificate
holders conducting package delivery operations under exemptions have
similar existing requirements, as well as hazardous materials
procedures and training.\246\ Similarly, part 135 certificate holders
are already required to develop and implement an SMS under part
5.247 248 Other requirements may be different but not
represent incremental expenditures (e.g., existing staff taking on a
required position such as operations supervisor) or minimal (e.g.,
strategic deconfliction and conformance monitoring costs).
---------------------------------------------------------------------------
\246\ For example, requirements include: personnel positions and
qualifications, manuals, training, notifications, strategic
deconfliction conformance monitoring, ground risk assessment,
communications service monitoring and lost link procedures, UA
maintenance requirements, and recordkeeping and reporting (see
www.regulations.gov/document/FAA-2019-0573-0078 and
www.regulations.gov/document/FAA-2019-0573-0079).
\247\ Proposed rule includes exceptions from the part 5 elements
of: safety policy, including employee reporting of safety hazards or
issues; safety accountability and authority; designation and
responsibilities of required safety management personnel;
coordination of emergency response planning; safety performance
monitoring and measurement, including a confidential employee
reporting system; safety communication; and records.
\248\ FAA has also required SMS as condition for waiver (see
https://www.faa.gov/sites/faa.gov/files/107W-2024-00828_Eric_Schwartz_CoW.pdf).
---------------------------------------------------------------------------
However, some requirements may result in one time and recurring
expenditures, depending on the operator. Table 12 describes these
proposed requirements and potential cost considerations.
Table 12--Potential Incremental Costs: Operators
------------------------------------------------------------------------
Unit cost
Category Description information
------------------------------------------------------------------------
Operations manual updates... Updates would Dependent on company
include the size and
personnel required operations; $500 (8
and their duties hours) to $1,850
and (32 hours).\1\
responsibilities,
and procedures for
complying with the
recordkeeping and
reporting
requirements.
SMS (certificated operations Develop, implement, Scalable based on
only). and keep current an size and
SMS (14 CFR part 5) complexity; $8,100-
\1\. $41,180 one-time,
$4,730-$42,580
annual.\3\
Limited TSA security program Program to prevent Costs will vary
(package delivery or deter carriage depending on the
operators). of unauthorized specific security
packages and program. Components
unauthorized access could include chain
to operations. of custody and
operational
controls, security
coordination,
training, and
reporting.
Vetting/STAs................ Covered persons must There is an
undergo TSA STA, up opportunity cost of
to a Level 3 STA, time to undergo
prior to assuming vetting (estimated
certain security- at approximately
sensitive duties. 1.5 hours), and an
estimated initial
enrollment fee of
$87, in-person
renewal fee of $76,
online renewal of
$51, and
comparability
determination fee
of $30. For a Level
2 STA (which is not
proposed), the
initial in-person
enrollment and in-
person renewal fee
is $66, the online
renewal fee is $41,
and the comparable
STA fee is $30.\4\
------------------------------------------------------------------------
SMS = safety management system; STA = security threat assessment.
\1\ Based on the extent of changes needed and an average wage rate
increased to account for benefits ($64/hour). Average wage based on
the mean for Aerospace Engineering and Operations Technologists and
Technicians ($39.08; updated to $39.74 for inflation using the
Consumer Price Index for All Urban Consumers) divided by the percent
of total employer costs of employee compensation represented by wages
(62%) to account for benefits (38%). Wages and benefits information
available at: https://www.bls.gov/oes/2023/may/oes173021.htm and
https://www.bls.gov/news.release/ecec.t04.htm#ect_table4.f.1.
\2\ Except the following 14 CFR part 5 requirements: Sec. Sec.
5.21(a)(4), 5.21(a)(5), 5.21(c), 5.23(a)(2), 5.23(a)(3), 5.23(b),
5.25(b)(3), 5.25(c), 5.27(a), 5.27(b), 5.71(a)(7), 5.93, and 5.97(d).
\3\ Estimates reflect part 135 certificate holders with 1-9 crewed
aircraft based on the regulatory impact analysis accompanying the SMS
final rule (89 FR 33068 published 4/26/24; table 26). FAA does not
have data specific to UA operations. One-time costs reflect gap
analysis, SMS development, training, documentation, and other (e.g.,
safety promotion) activities; annual costs reflect data collection and
analysis, SMS review and evaluation, software, training,
documentation, and other (e.g., ongoing safety promotion) activities.
\4\ TSA estimates the time and fees based on the methodology and fees
from the TSA Security Vetting of Certain Transportation Workers NPRM.
See NPRM: Surface Vetting Preliminary Regulatory Impact Analysis and
Initial Regulatory Flexibility Analysis, Document ID TSA-2023-0001-
0004, p. 73 (May 25, 2023) available at https://www.regulations.gov/document/TSA-2023-0001-0004. For example, they estimate approximately
1.5 hours of time and an initial enrollment fee of $87 for a Level 3
STA. These costs may change over time.
For example, if all 239 operators (nine exemption holders and 230
unique waiver holders) incur initial expenditures for manual updates
equal to the high estimate in table 11 and annual expenditures equal to
the low estimate, one-time costs would be $488,769 and annual costs
would be $122,192 ($0.2 million annualized using discount rates of 3
and 7 percent over a 5-year period). Similarly, if the four exemption
holders that are currently not part 135 certificate holders or
otherwise have already implemented SMS become certificated operators
under part 108, one-time SMS costs could be in the range of $66,160 and
annual costs in the range of $75,700 ($0.1 million annualized using
discount rates of 3 and 7 percent over a 5-year period) based on the
midpoint of the cost ranges in table
[[Page 38351]]
12. However, for any new certificated operators conducting package
delivery, these costs would be offset by not incurring costs to obtain
a part 135 certificate.\249\
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\249\ As it stands today, operating under part 135 requires a
lengthy exemption process for UAS operators because they cannot
comply with the regulations as written. As a result, they must
identify and document all exemptions that they need, and FAA must
issue the exemptions before they can issue an operating certificate.
FAA and the few UAS operators currently operating under part 135
have spent substantial resources on this process. Because it is new
and novel, these costs may not be exemplary of those that future
applicants would incur in the absence of the rule. However, the cost
savings associated with the streamlined provisions contained in part
108 are likely significant.
---------------------------------------------------------------------------
In addition, operators must use part 108-compliant UA. The extent
to which the proposed rule affects price levels of UA compared to under
existing waivers and exemptions is unknown, but likely to change with
industry growth over time. Operators must also use strategic
deconfliction and conformance monitoring capabilities provided by an
automatic data service provider in certain airspace and over certain
populations. Therefore, in some cases, operators would need to either
become certificated to provide services with those capabilities or
obtain the service from some other certificated automated data service
provider.
Finally, to obtain the benefits from scaling operations, operators
would incur costs from business expansion and increased risks not
mitigated by the proposed rule requirements (e.g., potential insurance
cost increases, replacement parts, replacement UA). FAA does not have
data to estimate these costs.
iii. Automated Data Service Provision
The proposed rule would not require that any entities become
automated data service providers. However, because operators must
obtain strategic deconfliction and conformance monitoring capability
from an automated data service provider to operate in controlled
airspace, or a capability for strategic deconfliction to operate over
Category 3, 4, or 5 population densities, one or more automated data
service providers will be needed for certain BVLOS operations under the
proposed rule. Entities choosing to become an automated data service
provider must: obtain a certificate for one of three service levels
(Level 1, 2, or 3, depending on the complexity of the operation that
the automated data service supports), including documentation how it
meets applicable proposed part 146 requirements, provide cyber and data
security, develop and implement an SMS, have a change management
process, have a training program, report incidences, retain records,
meet data exchange requirements including non-repudiation, and meet
software update requirements for versioning, testing, user
notification, and FAA notification and approvals, depending on service
levels.
Many of the proposed requirements represent standard business
practices among data and software providers (e.g., records of data
exchanged with service users). However, some proposed requirements may
result in one-time and recurring expenditures, depending on the entity.
Table 13 describes these proposed requirements and potential cost
considerations. FAA does not have data on the incremental costs of non-
repudiation services and seeks comment on this issue.
Table 13--Potential Incremental Costs: Automated Data Service Providers
------------------------------------------------------------------------
Unit cost
Category Description information
------------------------------------------------------------------------
SMS......................... Develop, implement, Scalable based on
and document an SMS size and
(14 CFR part 5) \1\. complexity, $8,100-
$28,140 one-time
and $540-$10,940
annually.\2\
Non-repudiation............. Services must use a No data.
validation and
verification method
that provides
assurance of the
integrity and
origin of the data
exchanged with the
user.
Training.................... Includes best Dependent on company
practices in size, $1,400 per
distributed person annually.\3\
software
development;
applicable
regulations and ACs
relating to
automated data
services, airspace
classification,
operating
requirements, and
flight
restrictions;
aviation safety
culture concepts;
and best practices
in the provision of
automated data
services for
aviation users.
------------------------------------------------------------------------
AC = Advisory Circular.
\1\ Except the following 14 CFR part 5 requirements: Sec. Sec. 5.7,
5.9, 5.11, 5.13, 5.15, 5.27, and 5.71(c).
\2\ Estimates reflect part 21 type and production certificate holders
with 1-99 employees based on the regulatory impact analysis
accompanying the SMS final rule (89 FR 33068 published 4/26/24; table
24). FAA does not have data specific to potential automated data
service providers.
\3\ Estimated based on time (20 hours) valued at average loaded hourly
wage rate ($58) plus $250 course cost based on typical training
courses to obtain part 107 UA pilot license (e.g., www.flyingmag.com/best-drone-pilot-course/). FAA does not have data specific to training
for automated data service providers.
For example, entities choosing to become automated data service
providers could incur costs to develop and implement an SMS if they
have not already done so under FAA's SMS voluntary program or required
under part 5 (part 135 certificate holders and aircraft design and
manufacturers holding a type certificate and production certificate for
the same product). SMS costs could be in the range of $28,000 one-time
and $11,000 annually for a company of 99 employees ($0.02 million
annualized using discount rates of 3 and 7 percent over a 5-year
period). For the same size company, training costs could be in the
range of $138,600 annually (99 x $1,400; $0.1 million annualized using
discount rates of 3 and 7 percent over a 5-year period). Total industry
costs would depend on the mix of sizes and types of potential automated
data service providers. For example, for an existing part 135
certificate holder (e.g., conducting package delivery under an
exemption) to become an automated data service provider, incremental
costs would not include SMS. Also, due to the airspace and population
density around their typical operating environments, agricultural
operators are not likely to require use of these services. FAA requests
comments regarding the likely use and provision of automated data
services.
[[Page 38352]]
iv. Uncertainties
The key uncertainty in the analysis of costs relates to the
incremental nature of the proposed requirements (i.e., compared to
existing practices in a wide variety of industries and BVLOS operations
via waivers and exemptions). This uncertainty affects who is likely to
take advantage of BVLOS in the future (including, for operators,
through a permit or certificate) affecting both benefits and costs.
Also, impacts of the proposed rule that are dependent on consensus
standards are uncertain because the standards are currently not
available. In addition, changes in response to the proposed rule may
lower unit costs through industry-developed solutions aimed at cost-
effective compliance (similar to tools developed to assist with a part
5 compliant SMS). Entities with scaled operations (i.e., certificated)
may also be cost-effective service providers for individual operators
(i.e., compared to continuing under a permit).
Finally, there is uncertainty with respect to the impact on part 91
operators not equipped with ADS-B or EC equipment. These operators may
incur costs to add equipment or as a result of loss of right-of-way.
However, right-of-way impacts would be very site and situation specific
and thus very difficult to estimate.
5. Comparison of Benefits and Costs
FAA is unable to quantify the benefits of the proposed rule.
However, existing studies are indicative of the types and potential
magnitude of benefits. When considered in the context of the myriad of
potential applications and locations nationwide, FAA anticipates that
the benefits from scaled BVLOS are significant. To the extent risks of
scaled operations are successfully mitigated, and the scale or pace of
scaling could not occur under the existing framework, benefits are
attributable to the proposed rule. Given that the proposed rule
includes requirements that mirror current BVLOS exemptions, while also
proposing new requirements to mitigate risks inherent in expanded BVLOS
operations, there are few incremental costs, and FAA anticipates that
the benefits would likely exceed costs.
6. Alternatives
FAA does not have data to quantify the benefits and costs of the
alternatives to the proposed rule. Table 14 provides qualitative
evaluation of the potential impacts. For design and manufacturing, FAA
considered requiring a special airworthiness certification rather than
proposed airworthiness acceptance. Section X.A. describes the
differences in these two approaches. FAA determined the alternative
would not increase safety. As noted in table 14, the proposed approach
may represent cost savings compared to obtaining special airworthiness
certification. For example, under the alternative, the applicant would
need to host FAA airworthiness inspection and document review. The
alternative would also increase Agency costs, including to inspect
aircraft and review documentation.
For operations, FAA considered requiring package delivery operators
to obtain a part 119 air carrier certificate and certificating each
type of personnel involved in the control of a UA. Section VIII.A.1
describes the differences between obtaining an air carrier certificate
and the proposed permits and certificates for UAS operators. Section
VII.A.1 discusses the differences regarding personnel between manned
aviation and UAS, and FAA's rationale for selecting the proposed
approach. FAA determined that these alternatives would have little
impact on safety and would increase costs. The extra administrative
process and structure in these alternatives is not optimized to UAS,
necessitating a lot of waivers and exemptions. Waivers and exemptions
lead to additional costs without affecting benefits.
For automated data service providers, FAA considered a traditional
ATM model approach and different approaches discussed by the BVLOS ARC.
FAA determined that these alternatives would potentially increase risks
in the NAS and the ATM model would increase FAA costs.
Table 14--Alternatives
------------------------------------------------------------------------
Impact on benefits
Alternative Description and costs
------------------------------------------------------------------------
Design and Production:
Special airworthiness Resemble Increase FAA costs
certification. certification of and potentially
light-sport manufacturers'; no
category aircraft change in safety
under part 21 using (benefits).
industry consensus
standards, FAA
inspection of every
UAS.
Operations:
Part 119 certification Require package Increase costs for
for package delivery. delivery operators new package
to obtain a part delivery operators
119 air carrier (no impact on
certificate. existing); no
change in safety
(benefits).
Personnel certification. Certificating each Increase operator
type of personnel costs; marginal
involved in the safety assurances.
control of a UA.
Automated Data Service
Provision:
Air traffic management.. FAA manage Increase FAA costs;
separation of UAS potentially
and system-wide increase risks to
efficiency of part the NAS.
108 operations.
BVLOS ARC MOC and DOC for Unclear impact on
recommendations. certification; costs; potential
requiring minimal increase in risks.
information on
provider; and
recognizing
specific UTM
services.
------------------------------------------------------------------------
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94
Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat.
857, Mar. 29, 1996), and the Small Business Jobs Act of 2010 (Pub. L.
111-240, 124 Stat. 2504 Sept. 27, 2010), requires Federal agencies to
consider the effects of the regulatory action on small business and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
FAA and TSA are publishing this Initial Regulatory Flexibility
Analysis (IRFA) to aid the public in commenting on the potential
impacts to small entities from this proposal. FAA and
[[Page 38353]]
TSA invite interested parties to submit data and information regarding
the potential economic impact that would result from the proposal. FAA
and TSA will consider comments when making a determination or when
completing a Final Rule.
C. Regulatory Flexibility Analysis
An IRFA must contain the following:
(1) A description of the reasons why the action by the agency is
being considered;
(2) A succinct statement of the objective of, and legal basis for,
the proposed rule;
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and
(6) A description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes, and
which minimize any significant economic impact of the proposed rule on
small entities.
1. Reasons the Action Is Being Considered
As described elsewhere in this preamble, the proposed rule
addresses the rapid advancement of UAS technology, and the lack of
regulation which specifically addresses, allows, and ensures the safety
of operations with said technology when operated BVLOS or at large
scale. This is discussed in section IV.A of this preamble.
2. Objectives and Legal Basis of the Proposed Rule
As described elsewhere in this preamble, the objective of the
proposed rule is to allow UAS to operate for commercial and
recreational purposes beyond the VLOS of operators and at low altitudes
in the NAS. This is done with the intent to enable a greater number and
size of operations while still ensuring the safety of the NAS. Section
I.A of this preamble discusses this in greater detail. The legal
authority for the proposed rule is described in section II of this
preamble.
3. Description and Estimate of the Number of Small Entities
FAA used the definition of small entities in the RFA for this
analysis. The RFA defines small entities as small businesses, small
governmental jurisdictions, or small organizations. In 5 U.S.C. 601(3),
the RFA defines ``small business'' to have the same meaning as ``small
business concern'' under Sec. 3 of the Small Business Act. The Small
Business Act authorizes the Small Business Administration (SBA) to
define ``small business'' by issuing regulations.
SBA has established size standards for various types of economic
activities, or industries, under the North American Industry
Classification System (NAICS). These size standards generally define
small businesses based on the number of employees or annual receipts.
Table 15 shows the SBA size standards for example industrial
classification codes relevant for the proposed rule. Note that the SBA
definition of a small business applies to the parent company and all
affiliates as a single entity.
Table 15--Small Business Size Standards: BVLOS Operations
------------------------------------------------------------------------
NAICS code Description Size standard
------------------------------------------------------------------------
Exemptions:
336411.............. Aircraft 1,500 employees.
Manufacturing.
334511.............. Search, Detection, 1,350 employees.
Navigation,
Guidance,
Aeronautical, and
Nautical System and
Instrument
Manufacturing.
481111.............. Scheduled Passenger 1,500 employees.
Air Transportation.
481211.............. Nonscheduled 1,500 employees.
Chartered Passenger
Air Transportation.
482111.............. Line Haul Railroads.. 1,500 employees.
492110.............. Couriers and Express 1,500 employees.
Delivery Services.
459999.............. All Other $11.5 million.
Miscellaneous
Retailers.
541370.............. Surveying and Mapping $19.0 million.
(except Geophysical)
Services.
Waivers: \1\
221210.............. Natural Gas 1,150 employees.
Distribution.
236115.............. New Single-family $45.0 million.
Housing Construction
(Except For-Sale
Builders).
327211.............. Flat Glass 1,100 employees.
Manufacturing.
333111.............. Farm Machinery and 1,250 employees.
Equipment
Manufacturing.
334511.............. Search, Detection, 1,350 employees.
Navigation,
Guidance,
Aeronautical, and
Nautical System and
Instrument
Manufacturing.
334516.............. Analytical Laboratory 1,000 employees.
Instrument
Manufacturing.
336411.............. Aircraft 1,500 employees.
Manufacturing.
423990.............. Other Miscellaneous 100 employees.
Durable Goods
Merchant Wholesalers.
481219.............. Other Nonscheduled $25.0 million.
Air Transportation.
512110.............. Motion Picture and $40.0 million.
Video Production.
513120.............. Periodical Publishers 1,000 employees.
541330.............. Engineering Services. $25.5 million.
541370.............. Surveying and Mapping $19.0 million.
(except Geophysical)
Services.
541519.............. Other Computer $34.0 million.
Related Services.
541990.............. All Other $19.5 million.
Professional,
Scientific and
Technical Services.
611310.............. Colleges, $34.5 million.
Universities and
Professional Schools.
711219.............. Other Spectator $16.5 million.
Sports.
------------------------------------------------------------------------
NAICS = North American Industrial Classification System.
\1\ Based on a sample of 25 waivers.
[[Page 38354]]
Under exemptions, FAA identified three entities that may be small
operators (one of which is also a manufacturer, and two of which also
operate under a waiver). Under waivers, to estimate the number of small
entities, FAA examined 51 randomly selected waivers to obtain a sample
of 25 entities for which business data could be obtained.\250\ Of the
51 waivers examined, 12 represent individuals, 3 represent government
entities, 11 represent entities under the SBA for which no data could
be obtained, and 25 represented entities under the SBA for which NAICS
and information to compare to the size standard could be determined. Of
the sample of 25, 72 percent (18 entities) represent small entities
under the SBA. If this ratio holds for the whole population of 232
among waivers and exemptions, 166 would be small entities (72 percent x
229 waivers = 165 + 1 unique small entity under an exemption = 166).
---------------------------------------------------------------------------
\250\ FAA used the following process: first, it assigned each
entry a random value using the RAND function in Excel and sorted by
the random value. It then examined each entry in sequence and
removed individuals and governmental entities. For remaining
entries, a Google search of NAICS code, revenue and employee count
data was performed. If any of these data could not be found, the
entry was discarded. If the data could be found, the entry was
included in the sample. This process was repeated until 25 entries
were added to the sample.
---------------------------------------------------------------------------
As described in section XIV.A, approximately 30 U.S.-based
manufacturers may be affected by proposed rule (table 16 shows the SBA
size standards for the manufacturers). FAA used a similar process as
for waivers (see footnote 30) to obtain data for a sample of 15. Five
manufacturers are also operators under an exemption. Ten of the
entities in the sample may be small businesses under the SBA. Thus, if
this ratio holds for the population of manufacturers, a total of 20
manufacturers (10 x 2) may be small businesses.
Table 16--Small Business Size Standards: Manufacturers \1\
------------------------------------------------------------------------
NAICS code Description Size standard
------------------------------------------------------------------------
333310.................. Commercial and 1,000 employees.
Service Industry
Machinery
Manufacturing.
335311.................. Power, Distribution 800 employees.
and Specialty
Transformer
Manufacturing.
336411.................. Aircraft 1,500 employees.
Manufacturing.
459999.................. All Other $11.5 million.
Miscellaneous
Retailers.
518210.................. Computing $40 million.
Infrastructure
Providers, Data
Processing, Web
Hosting, and Related
Services.
541370.................. Surveying and Mapping $19 million.
(except Geophysical)
Services.
541512.................. Computer Systems $34 million.
Design Services.
541513.................. Computer Facilities $37 million.
Management Services.
541715.................. Research and 1,000 employees.
Development in the
Physical,
Engineering, and
Life Sciences
(except
Nanotechnology and
Biotechnology) 11.
------------------------------------------------------------------------
NAICS = North American Industrial Classification System.
\1\ Based on a sample of 15 manufacturers.
No entities are currently operating as an automated data service
provider, as the rules defining an automated data service provider do
not currently exist.
4. Projected Reporting, Recordkeeping and Other Compliance
Requirements,
Section XIV.E, of this preamble details the recordkeeping and
reporting requirements of proposed rule. Section XIV.A discusses other
compliance requirements and costs. For this analysis, if FAA assumes
that all entities are certificated, they will incur costs from updating
their operator manual and from implementing SMS. FAA uses the highest
costs for both these categories, as shown in table 17.
Table 17--Screening-Level Compliance Costs: Operators
------------------------------------------------------------------------
Cost
Requirement \1\
------------------------------------------------------------------------
Operations manual updates...................................... $1,850
SMS............................................................ 42,580
--------
Total........................................................ 44,430
------------------------------------------------------------------------
\1\ See table 12 for details.
Under these costs, only 12 percent of entities could face costs
greater than 2 percent of estimated revenues. These are all small
entities. Extrapolating to the whole population, and including
exemptions, FAA would estimate that 28 small entities could face costs
greater than 2 percent of revenues. However, this method assumes all
operators will be certificated. The intent of the rule is to allow
smaller operations to conduct business under a permit, which does not
involve SMS costs. These small entities are likely to qualify for a
permit, and thus are unlikely to be required to meet the certificated
requirements. Furthermore, it is unlikely that an entity would choose
to obtain a certification if they would face significant adverse
impacts. Thus, FAA relies on permitted costs.
Under the cost for a permit rather than a certificate, entities
would face only the operations manual update cost. Under these costs,
no entities would face costs greater than 2 percent of estimated annual
revenue. Thus, FAA estimates that, among operators, small entities will
not face significant adverse impacts under proposed rule.
Manufacturers face costs as described in section XIV.A.3. As
described in table 10, the only cost which can be estimated is the data
storage cost, which is estimated to be $6,000 per year per
manufacturer. Under this estimate, no manufacturers would face costs
greater than 2 percent of estimated annual revenue. This includes
manufacturers that are also operators, which face the $6,000 data
storage cost as well as the $44,430 certificated operator costs
described in table 11.
There are not any currently operating automated data service
providers. Because no entities are currently operating as automated
data service providers, no extant entities would be required to comply
with this rule. As such, any entity that opts to become an automated
data service provider will have done so because it perceives the
benefit to be greater than the cost. Nonetheless, entities will need
the services of an automated data service provider to operate in
certain locations and over certain population densities under proposed
rule. However, the costs and potential impacts from use of third-party
automated data service providers cannot be determined until a market
for such services develops.
5. All Federal Rules That May Duplicate, Overlap, or Conflict
There are no relevant Federal rules that may duplicate, overlap, or
conflict with proposed rule.
[[Page 38355]]
6. Significant Alternatives Considered
As described in section X.A, FAA considered an alternative for
determining UA airworthiness based on existing part 21 procedures to
enable BVLOS operations under part 108. Section X.A describes the
alternative and rationale for the approach in proposed rule. Proposed
rule approach may also lessen any adverse impacts on small
manufacturers. As described in section XIV.A.5, FAA considered
requiring package delivery operators to obtain an air carrier
certificate under part 119, and as described in section VII.A, FAA
considered requiring personnel certification. In comparison to these
alternatives, proposed approach may lessen any adverse impacts on small
operators. FAA also considered two alternatives to proposed
requirements for automated data service providers. These alternatives,
and the rationale for selecting proposed rule, are described in section
XIII.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
FAA and TSA recognize that many other countries have adopted
standards with regard to UAS manufacture, operation, and provisioning
of automated data services in their respective airspace that may or may
not align with this new framework. FAA will leverage Bilateral Aviation
Safety Agreements, or equivalent agreements, to acknowledge
commensurate standards that enable foreign commerce and reduce
unnecessary obstacles. FAA and TSA invite comments on this approach and
any additional information that would support future alignment.
D. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or Tribal government or the private sector to incur direct costs
without the Federal government having first provided the funds to pay
those costs. FAA determined that proposed rule will not result in the
expenditure of $187,000,000 or more ($100,000,000 adjusted for
inflation using the most current Implicit Price Deflator for the Gross
Domestic Product) by State, local, or Tribal governments, in the
aggregate, or the private sector, in any one year.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that agencies consider the impact of paperwork and other information
collection burdens imposed on the public. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
This action contains the following proposed amendments to the
existing information collection requirements previously approved under
OMB Control Numbers 2120-0663, Service Difficulty Reports, and 2120-
0705, Hazardous Materials Program Requirements. As required by the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), FAA has submitted
these proposed information collection amendments to OMB for its review.
This action contains the following new information collection
requirements; (1) for part 108 MOC and DOC (OMB Control Number 2120-
XXXX), (2) part 108 operators (OMB Control Number 2120-XXXX), and (3)
for automated data service providers certificated under part 146 (OMB
Control Number 2120-XXXX). As required by the Paperwork Reduction Act
of 1995 (44 U.S.C. 3507(d)), FAA has submitted these new proposed
information collections to OMB for its review.
1. Part 108 Permitted and Certificated Operators
Summary: This collection includes application and ongoing burdens
for both permitted and certificated operators. Unless otherwise
specified, burdens under subparts A, B, C, and F apply to both
permitted and certificated operators. Burdens under subpart D apply
only to permitted operators (or applicants thereof). Burdens under
subpart E apply only to certificated operators (or applicants thereof).
DOT requests that this information collection approval include all
information that is either required to be reported, kept as record, or
disclosed for any operator operating under part 108. This collection
would also be used in instances where an operator is seeking
authorization to deviate from certain regulations where available
pursuant to the regulatory text.
Use: These collections will be used to permit or certificate
operators safely and to provide adequate oversight to promote safety
assurance.
Respondents (including number of): Permitted and certificated
operators under part 108. FAA estimates there be over 200 operators
within the first three years after part 108 goes into effect.
Frequency: Permit applications are to be submitted every 24 months.
Certificate applications are one-time collections that remain valid so
long as the operator maintains currency. Ongoing recordkeeping,
disclosing, and most reporting requirements are to be provided as
needed. Reporting requirements under Sec. Sec. 108.45(a) and (b) are
to be provided to FAA once every 12 months. Information provided to
obtain an authorization to deviate from any operating regulation which
permits such a deviation would be provided on an ad hoc basis.
Annual Burden Estimate: FAA estimates that complying with the
reporting, recordkeeping, and disclosing requirements to be imposed on
permitted and certificated operators under proposed part 108 will cost
annually, on average, $1,013,479 in wages during each of the first
three years of the rule's effectiveness.\251\ In cases where
authorization to deviate is sought, FAA estimates that such
[[Page 38356]]
application for authorization would take one (1) hour.
---------------------------------------------------------------------------
\251\ FAA estimated labor burdens as follows: for general
recordkeeping and reporting tasks, FAA used Bureau of Labor
Statistics (BLS) wage rate data for ``Aircraft Mechanics and Service
Technicians'', job series 49-3011 (estimated nominal wage rate of
$36.66 per hour with a load factor of 1.51 to account for benefits)
available at www.bls.gov/oes/current/oes_nat.htm; for tasks
requiring legal expertise, FAA used BLS data on ``Lawyers'', job
series 23-1011, in the Management of Companies and Enterprises
industry (estimated nominal wage rate of $114.12 per hour with a
load factor of 1.51 to account for benefits) available at
www.bls.gov/oes/current/oes231011.htm; for expertise on training
programs, FAA used BLS data on commercial pilots, job series 53-2012
(estimated nominal wage rate of $66.35 per hour with a load factor
of 1.51 to account for benefits) available at www.bls.gov/oes/current/oes532012.htm.
---------------------------------------------------------------------------
2. Part 108 Means of Compliance and Declaration of Compliance
Summary: This information collection includes collections that are
required by FAA for voluntary consensus standards bodies proposing a
means of compliance for UAS that can operate under part 108, as well as
manufacturers of UAS that can operate under part 108 manufactured to
standards set by an accepted or approved MOC and manufactured pursuant
to a DOC. The purpose of this collection of information is to help FAA
ensure that UAS operated under part 108 meet the minimum performance
requirements of proposed rule. The MOC and DOC concepts are critical
components of the framework of proposed rule to ensure UAS meet the
performance-based requirements for BVLOS operations.
Use: This collection will be used to collect standards to be used
as a MOC for part 108 UAS manufacturers, if accepted or approved by
FAA. This collection will also be used to collect information and
artifacts for DOC in accordance with a MOC that will be submitted by
the UAS manufacturers. This collection will also be used for additional
disclosing, recordkeeping, and reporting requirements that are imposed
on manufacturers of the UAS that has received airworthiness acceptance.
Respondents (including number of): Respondents to this collection
for the MOC will be voluntary consensus standards bodies. Respondents
for DOC (and any additional paperwork burdens on manufacturers) will be
manufacturers of UAS that are designed and built to operate under part
108. There are 35 elements that would require a MOC in subparts G and H
of proposed rule. There will need to be at least one FAA-accepted (or
FAA-approved) MOC for each of these 35 elements. Therefore, FAA
estimates at least 35 MOC will be approved within the first three years
upon part 108 going into effect. There will be ongoing burdens on
manufacturers of the UAS that have received airworthiness acceptance;
FAA anticipates that there will be approximately 30 manufacturers that
produce at least one UAS manufactured under a DOC and thus charged with
the associated ongoing paperwork reduction act burdens.
Frequency: Collections are required on an ``as needed'' basis. It
is envisioned that submissions for MOC approval will occur as needed as
voluntary consensus standards bodies develop adequate standards ready
for approval by FAA. Each individual UA manufactured in accordance with
a MOC requires its own DOC, but submissions will be ``one-time'' for
each DOC. To mitigate excess burden caused by repetitive submissions,
submissions for DOCs can be made in batches of up to 500 aircraft at a
time. Under Sec. 108.760, all supporting documentation for the DOC
must be retained by the manufacturer for two (2) years following the
cessation of support for the COS of the UAS listed on the DOC. If the
manufacturer makes any design changes, they must demonstrate that those
design changes demonstrate compliance with the MOC under Sec.
108.750(b). Flight data required to be kept as record under Sec.
108.725 shall be kept by the manufacturer of the UAS that has received
airworthiness acceptance for a minimum of two (2) years.
Annual Burden Estimate: 241 hours annually (on average), and
$226,591 annually from costs (including labor).\252\
---------------------------------------------------------------------------
\252\ FAA estimated labor burdens using BLS statistics including
rates for Aerospace Engineering Operations Technologists and
Technicians, job series 17-3021 and 17-2011 (estimated wage rate of
$39.08 per hour with a load factor of 1.51 to account for benefits
for an aeronautical technician for general tasks and estimated wage
rate of $64.74 per hour with a load factor of 1.51 for an
aeronautical engineer for tasks requiring engineering subject matter
expertise) available at www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------
3. Part 146 Automated Data Service Providers
Summary: Proposed part 146 provides a regulatory framework for
appropriate government oversight of automated data services that
support aircraft operations. DOT requests this information collection
approval include all information that is either required to be
reported, kept as record, or disclosed by any automated data service
provider. This includes the information that a service provider must
submit to FAA to become authorized and certificated. This also includes
information that the service provider must provide to FAA on an ongoing
or as-needed basis, and disclosures to their user base.
Use: These collections will be used to authorize and certify
automated data service providers and provide adequate oversight of
these services to promote safety assurance.
Respondents (including number of): Respondents for this collection
are the automated data service providers. FAA cannot estimate without
speculating the number of automated data service providers that will
enter this market.
Frequency: Authorization and certification are one-time
collections. Reporting requirements are as-needed.
Annual Burden Estimate: FAA estimates the paperwork burden on
service providers to be commensurate with the service level they are
offering--service suppliers with offerings in higher service levels are
required to provide more information to FAA as part of their
applications, and therefore are estimated to have larger paperwork
burdens.\253\ FAA estimates that Service Level 1 service providers will
have a burden of (approximately) $365 in their first year to obtain
their certificate and first service authorization. FAA estimates that
Service Level 2 service providers will have a burden of (approximately)
$800 in their first year to obtain their certificate and first service
authorization. FAA estimates that Service Level 3 service providers
will have a burden of (approximately) $1,824 in their first year to
obtain their certificate and first service authorization. These would
be one-time expenses; obtaining additional authorizations to offer
additional services would also have one-time costs that would be in
line with the costs for the first authorization and would also be
dependent on service level. However, for simplicity, the PRA analysis
assumes 1 service authorization per entity. FAA estimates that data
exchange and recordkeeping requirements for service providers of any
service level will cost approximately $6,000 per year to account for
data storage.\254\ FAA estimates a de minimis net burden for required
notifications to customers, such as alerting a service provider's
customer base of a software update, noting that these are already
customary and usual business practices.
---------------------------------------------------------------------------
\253\ FAA estimated labor burdens using BLS statistics including
rates for Project Management Specialist within ``Executive
Secretaries and Executive Administrative Assistants'', job series
43-6011, in the Computing Infrastructure Providers, Data Processing,
Web Hosting, and Related Services industry group (estimated nominal
wage rate of $55.74 per hour and a load factor of 1.51 to account
for benefits) available at www.bls.gov/oes/current/oes436011.htm.
\254\ See, e.g., https://www.liquidweb.com/products/dedicated/.
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4. Hazardous Materials Program Requirements (OMB Control No. 2120-0705)
Summary: This current OMB Control Number accounts for the
information collected from 14 CFR part 121, 135, and 145 operators
associated with hazardous materials-specific regulatory requirements.
This includes information collection from hazardous materials
procedures and information, training programs, and notification
requirements. Proposed part 108 includes similar requirements for part
[[Page 38357]]
108 permitted and certificated package delivery operators to be
included in this collection.
Use: This collection is used to authorize, certify, and ensure
compliance with hazardous materials-specific requirements associated
with proposed part 108 operators and existing part 121, 135, and 145
operators.
Respondents (including number of): Respondents for this collection
are proposed part 108 operators and existing part 121, 135, and 145
operators. FAA does not estimate an increase in total respondents.
While FAA estimates an increase in part 108 certificated package
delivery operator respondents, this increase is offset by a subsequent
decrease in part 135 certificate holder respondents. In addition, FAA
does not currently estimate any part 108 permitted package delivery
operators but still accounts for these respondents to allow for an
increase as new entrants emerge.
Frequency: Certificate applications are one-time collections that
remain valid so long as the operator maintains currency but are
submitted for additional review with any change. Training reporting and
recordkeeping are created and updated initially and every 24 months
following employee recurrent training.
Increase in Annual Burden Estimate: FAA estimates an overall
increase of two (2) annual burden hours. The increase accounts for
proposed requirement in Sec. 108.570(l) for a part 108 certificated
package delivery operator to develop and submit an SRA as a part of the
will-carry Sec. 108.570(a) authorizations. The other proposed
increases in annual burden for part 108 certificated package delivery
operators are offset by the subsequent decrease in annual burden for
part 135 certificate holders. In addition, there is no annual burden
estimated for part 108 permitted package delivery operators because FAA
does not estimate any part 108 permitted package delivery operator
respondents.\255\ However, FAA will account any annual burden for part
108 permitted package delivery operators as new entrants emerge.
---------------------------------------------------------------------------
\255\ FAA would estimate the increased burden using BLS data
Occupational Employment and Wages, May 2023. Cargo and Freight
Agents NAICS Code 43-5011 available at www.bls.gov/oes/current/oes435011.htm. Hourly wage rate is $25.22. For private industry, BLS
data shows that 34% of compensation is from benefits available at
www.bls.gov/news.release/ecec.t04.htm#ect_table4.f.1. Therefore, to
account for benefits: $25.22 * 1.34 = $33.79.
---------------------------------------------------------------------------
5. Service Difficulty Reports (OMB Control No. 2120-0663)
Summary: This current OMB Control Number accounts for the
information collected as part of a service difficulty report. Under
proposed Sec. 108.45(d), certificated operators would have to report
to the unmanned aircraft manufacturer any failure, malfunction, or
defect in an unmanned aircraft system that causes momentary or
permanent loss of control or communication of the unmanned aircraft if
it has endangered, or may endanger, the safe operation of the unmanned
aircraft.
Use: Under the existing Information Collection Number 2120-0663,
service difficulty report information is collected, collated by FAA,
and used to determine service performance of aeronautical products.
Regulations calling for the submission of Service Difficulty Reports
enhance air safety by collecting additional and timelier data pertinent
to critical aircraft or aeronautical components. Under proposed rule,
this information would be directly reported to the manufacturer (and
not FAA) so that the manufacturer can address this critical user
feedback without delay and analyze the service performance of their own
aeronautical products.
Respondents (including number of): Respondents for this collection
are proposed part 108 certificated operators, in addition to those
respondents already accounted for in OMB Information Collection Number
2120-0663.
Frequency: Service difficulty reports would be submitted on an as-
needed basis.
Increase in Annual Burden Estimate: Information collection Number
2120-0663 estimates that each service difficulty report takes .667
hours to produce and submit. FAA believes that this a good estimate of
the time that it would take for the service difficulty reports required
under proposed Sec. 108.45(d). This proposed regulation only applies
to certificated operators, not permitted operators, and FAA does not
have the information needed to estimate the number of certificated
operators, nor the information to estimate the number of service
difficulty reports that would be submitted by that pool of respondents
each year for the first three years of the rule. For these reasons, FAA
cannot yet estimate the total increase in burden.
FAA is soliciting comments to--
(1) Evaluate whether proposed information requirement is necessary
for the proper performance of the functions of FAA, including whether
the information will have practical utility;
(2) Evaluate the accuracy of FAA's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of collecting information on those who are
to respond, including by using appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Individuals and organizations may send comments on the information
collection requirement to the address listed in the ADDRESSES section
at the beginning of this preamble by [INSERT DATE XX DAYS AFTER
PUBLICATION IN THE Federal Register]. Comments also should be submitted
to the OMB, Office of Information and Regulatory Affairs, Attention:
Desk Officer for FAA, New Executive Office Building, Room 10202, 725
17th Street NW, Washington, DC 20053.
F. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to ICAO SARPS
to the maximum extent practicable. FAA has reviewed the corresponding
ICAO SARPS and has identified no differences with these proposed
regulations.
G. Environmental Analysis
FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6f for regulations and involves
no extraordinary circumstances because it is in an NPRM. TSA has
concluded that this action is covered by categorical exclusion number
A3(a) and (d) in DHS Instruction Manual 023-01-001-01, Revision 01,
Implementation of the National Environmental Policy Act (NEPA), which
guides TSA compliance with NEPA.
H. Regulations Affecting Intrastate Aviation in Alaska
Section 1205 of FAA Reauthorization Act of 1996 (110 Stat. 3213)
requires the Administrator, when modifying 14 CFR regulations in a
manner affecting intrastate aviation in Alaska, to consider the extent
to which Alaska is not served by transportation modes other than
[[Page 38358]]
aviation, and to establish appropriate regulatory distinctions. Because
this proposed rule would apply to UAS operations for various
applications expected in Alaska (e.g., aerial surveying, civic
interest, etc.), it could, if adopted, affect intrastate aviation in
Alaska. FAA, therefore, specifically requests comments on whether there
is justification for applying proposed rule differently in intrastate
operations in Alaska.
XV. Executive Order Determinations
A. Executive Order 13132, Federalism
FAA and TSA have analyzed this proposed rule under the principles
and criteria of Executive Order 13132, Federalism. FAA and TSA have
determined that this action would not have a substantial direct effect
on the States, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government, and, therefore, would not have
federalism implications.
B. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Consistent with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments,\256\ and FAA Order
1210.20, American Indian and Alaska Native Tribal Consultation Policy
and Procedures,\257\ FAA ensures that Federally Recognized Tribes
(Tribes) are given the opportunity to provide meaningful and timely
input regarding proposed Federal actions that have the potential to
affect uniquely or significantly their respective Tribes. At this
point, FAA has not identified any unique or significant effects,
environmental or otherwise, on Tribes resulting from this proposed
rule.
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\256\ 65 FR 67249 (Nov. 6, 2000).
\257\ FAA Order No. 1210.20 (Jan. 28, 2004), www.faa.gov/documentLibrary/media/1210.pdf.
---------------------------------------------------------------------------
C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
FAA and TSA analyzed this proposed rule under Executive Order
13211, Actions Concerning Regulations that Significantly Affect Energy
Supply, Distribution, or Use. FAA and TSA have determined that it would
not be a ``significant energy action'' under the Executive Order and
would not be likely to have a significant adverse effect on the supply,
distribution, or use of energy.
D. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation, promotes international regulatory cooperation to meet
shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. FAA and TSA have
analyzed this action under the policies and agency responsibilities of
Executive Order 13609 and have determined that this action would have
no effect on international regulatory cooperation.
E. Executive Order 14192, Unleashing Prosperity Through Deregulation
This proposed rule, if finalized as proposed, is expected to be an
E.O. 14192 deregulatory action as it is an enabling rule.
XVI. Incorporation by Reference
This NPRM proposes to incorporate by reference the final version of
FAA Order JO 7400.[XX], currently available in draft form. A detailed
discussion of the Order is located in section VI of this preamble.
During the comment period of this NPRM, FAA Order JO 7400.XX, the draft
of FAA Order JO 7400.[XX] will be posted in the public docket for this
rulemaking at https://www.regulations.gov/.
In addition, ANSI/CTA-2063-A, which appears Sec. 89.505 in the
proposed amendatory text of this document, was previously approved for
that section. No change is proposed to the incorporation by reference
(IBR) material.
XVII. Privacy
With regard to the information persons may submit in accordance
with this proposed rule's requirements, FAA conducted a privacy impact
assessment (PIA) under section 522(a)(5) of division H of the FY 2005
Omnibus Appropriations Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8,
2004) and section 208 of the E-Government Act of 2002, Public Law 107-
347, 116 Stat. 2889 (Dec. 17, 2002). The PIA found that proposed
regulatory requirements that affect privacy include: Application
information, training, and personnel information, UAS ownership data,
and UAS location data.
As part of the PIA, FAA analyzed the effect this proposed rule
might have on collecting, storing, and disseminating personally
identifiable information of the public and UAS operators. FAA also
examined and evaluated protections and alternative information-handling
processes in developing proposed rule to mitigate potential privacy
risks. A copy of the draft PIA is posted in the docket for this
rulemaking.\258\
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\258\ Upon finalization, PIAs are posted on the Department of
Transportation's Privacy Program page, available at
www.transportation.gov/individuals/privacy/privacy-impact-assessments#Federal%20Aviation%20Administration%20(FAA).
---------------------------------------------------------------------------
Any vetting conducted by TSA and the security threat assessments
proposed in this NPRM are covered by a current Department of Homeland
Security system of records titled, ``Department of Homeland Security/
Transportation Security Administration--002 Transportation Security
Threat Assessment System of Records.'' This system of records allows
TSA to collect and maintain records related to security threat
assessments, employment investigations, and evaluations that TSA
conducts on certain individuals for security purposes. For example,
individuals who apply for a Transportation Worker Identification
Credential or a Hazardous Materials Endorsement must undergo a security
threat assessment, and records associated with the assessment are
covered by this system.
XVIII. Additional Information
A. Comments Invited
FAA is managing the docket for this rulemaking. FAA and TSA invite
interested persons to participate in this rulemaking by submitting
written comments, data, or views. The most helpful comments reference a
specific portion of the proposal, explain the reason for any
recommended change, and include supporting data. To ensure the docket
does not contain duplicate comments, commenters should submit only one
time if comments are filed electronically, or commenters should send
only one copy of written comments if comments are filed in writing.
FAA will file in the docket all comments it receives, as well as a
report summarizing each substantive public contact with FAA personnel
concerning this proposed rulemaking. Before acting on this proposal,
FAA and TSA will consider all comments they receive on or before the
closing date for comments. FAA and TSA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. FAA and TSA may change this proposal in
light of the comments it receives.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal
[[Page 38359]]
information the commenter provides, to https://www.regulations.gov, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at https://www.dot.gov/privacy.
B. Confidential Business Information and Sensitive Security Information
(SSI)
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this preamble contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this preamble, it is important that
you clearly designate the submitted comments as CBI. Please mark each
page of your submission containing CBI as ``PROPIN.'' FAA will treat
such marked submissions as confidential under the FOIA, and they will
not be placed in the public docket of this preamble. Submissions
containing CBI should be sent to the person in the FOR FURTHER
INFORMATION CONTACT section of this document. Any commentary that FAA
receives which is not specifically designated as CBI will be placed in
the public docket for this rulemaking.
Comments containing sensitive security information should be
appropriately marked as containing such information and submitted by
mail to the address listed in the FOR FURTHER INFORMATION CONTACT
section. FAA will not place comments containing SSI in the public
docket and will handle them with applicable safeguards and restrictions
on access.
C. Electronic Access and Filing
A copy of this preamble, all comments received, any final rule, and
all background material may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of
this proposed rule will be placed in the docket. Electronic retrieval
help and guidelines are available on the website. It is available 24
hours each day, 365 days each year. An electronic copy of this document
may also be downloaded from the Office of the Federal Register's
website at https://www.federalregister.gov and the Government
Publishing Office's website at https://www.govinfo.gov. A copy may also
be found at FAA's Regulations and Policies website at https://www.faa.gov/regulations_policies.
Copies may also be obtained by sending a request to FAA, Office of
Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or
by calling (202) 267-9677. Commenters must identify the docket or
notice number of this rulemaking.
All documents FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.
D. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA and TSA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. A small entity with questions regarding this
document may contact its local FAA official, or the person listed under
the FOR FURTHER INFORMATION CONTACT heading at the beginning of the
preamble. A small entity with questions for TSA may contact Craig
Mosford, Industry Engagement Manager-Airports, Policy, Plans, and
Engagement (PPE), Transportation Security Administration, at
[email protected]. To find out more about SBREFA on the
internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects
14 CFR Part 36
Agriculture, Aircraft, Noise control.
14 CFR Part 43
Aircraft, Aviation safety, Maintenance, Preventive maintenance,
Rebuilding, and Alteration, Reporting and recordkeeping requirements.
14 CFR Part 45
Aircraft, Exports, Signs and symbols.
14 CFR Part 48
Aircraft, Reporting and recordkeeping requirements, Signs and
symbols.
14 CFR Part 89
Incorporation by reference, Remote identification of unmanned
aircraft, Reporting and recordkeeping requirements.
14 CFR Part 91
Air traffic control, Aircraft, Airmen, Aviation safety, Reporting
and recordkeeping requirements, Security measures.
14 CFR Part 107
Aircraft, Airmen, Aviation safety, Incorporation by reference,
Security measures.
14 CFR Part 108
Aircraft, Airmen, Aviation safety, Incorporation by reference,
Reporting and recordkeeping requirements, Security measures.
14 CFR Part 119
Administrative practice and procedure, Air carriers, Aircraft,
Aviation safety, Charter flights, Reporting and recordkeeping
requirements.
14 CFR Part 133
Aircraft, Aviation safety, Reporting and recordkeeping
requirements.
14 CFR Part 135
Aircraft, Airmen, Aviation safety, Reporting and recordkeeping
requirements.
14 CFR Part 137
Agriculture, Agricultural aircraft operations, Aircraft, Aviation
safety, Reporting and recordkeeping requirements.
14 CFR Part 146
Automated data service providers, Aviation safety, Computer
technology, Data Exchange, Reporting and recordkeeping requirements.
49 CFR 1540
Air carriers, Airports, Aviation safety, Law enforcement officers,
Reporting and recordkeeping requirements, Security measures.
49 CFR 1544
Air carriers, Aircraft, Airmen, Airports, Arms and munitions,
Aviation safety, Explosives, Freight forwarders, Law enforcement
officers, Reporting and recordkeeping requirements, Security measures.
The Proposed Amendment
In consideration of the foregoing, FAA proposes to amend chapter I
of title 14, Code of Federal Regulations, and TSA proposes to amend
chapter XII of title 49, as follows:
Title 14--Aeronautics and Space
PART 36--NOISE STANDARDS: AIRCRAFT TYPE AND AIRWORTHINESS
CERTIFICATION
0
1. The authority citation for part 36 continues to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 106(g), 40113,
44701-44702, 44704, 44715;
[[Page 38360]]
sec. 305, Pub. L. 96-193, 94 Stat. 50, 57; E.O. 11514, 35 FR 4247, 3
CFR, 1966-1970 Comp., p. 902.
0
2. Add Sec. 36.0 to read as follows:
Sec. 36.0 Applicability; aircraft that do not conform to a type
certificate.
(a) General applicability. Except as provided in paragraph (e) of
this section,
(1) For an aircraft described in Sec. 21.190, Sec. 21.191, Sec.
21.193(h), or part 22 of this chapter, that does not conform to a type
certificate, the requirements of this part apply at the time of
application for a first airworthiness certificate, or when an aircraft
previously issued an airworthiness certificate incorporates an
alteration that would result in an acoustical change.
(2) For an aircraft described in part 108 of this chapter that does
not conform to a type certificate, the requirements of this part apply
at the time of application for an airworthiness acceptance.
(b) Compliance requirements. Compliance with this part requires--
(1) For an aircraft described in Sec. 21.190, Sec. 21.191, Sec.
21.193(h), or part 22 of this chapter that does not conform to a type
certificate,
(i) A determination that the applicable noise limits specified in
this part are not exceeded for any configuration, flight profile, or
reference condition required for an aircraft to demonstrate compliance;
and,
(ii) When applicable, a determination that any test procedures and
analyses contained in a related appendix to this part have been met for
any configuration, flight profile, or reference condition required.
(2) For aircraft described in part 108 of this chapter, the
applicant, prior to submitting the declaration of compliance required
in Sec. 108.715, must document that:
(i) The applicable noise limits required by this part are not
exceeded for any configuration, flight profile, or reference condition
required for an aircraft to demonstrate compliance; and,
(ii) When applicable, any test procedures and analyses contained in
a related appendix to this part have been met for any configuration,
flight profile, or reference condition required.
(c) Use of a noise consensus standard. An aircraft that does not
conform to a type certificate may demonstrate compliance using a noise
consensus standard that meets the following conditions:
(1) The noise consensus standard has been approved by FAA; and
(2) The noise consensus standard has been determined by FAA to be
appropriate for the aircraft and applicable to the aircraft's specific
design.
(d) No noise consensus standard available. For an aircraft that
does not conform to a type certificate, and for which no noise
consensus standard has been approved or determined by FAA to be
appropriate for the aircraft, the following apply:
(1) Aircraft similar to a type-certificated aircraft. An aircraft
that is determined by FAA for noise purposes to be the same as or
sufficiently similar in design to a type-certificated aircraft
described in Sec. 36.1 may demonstrate compliance with this part by--
(i) Using the same requirements as the type-certificated aircraft
that is the same or sufficiently similar in design to the aircraft; or
(ii) Adopting the noise levels for the type-certificated aircraft
that is the same or sufficiently similar in design to the aircraft when
the aircraft has not been altered to result in an acoustical change.
(2) Aircraft with no similar type-certificated aircraft. If FAA
determines that for noise purposes, there is no type-certificated
aircraft of the same or sufficiently similar design described in Sec.
36.1, an applicant may demonstrate compliance with this part using the
noise requirements determined by FAA to be appropriate for the
aircraft.
(e) Exceptions. The following aircraft that do not conform to a
type certificate are excepted from demonstrating compliance with the
requirements of this part:
(1) Aircraft issued an experimental airworthiness certificate in
accordance with Sec. 21.191(a) through (h) or (k) of this chapter;
(2) Aircraft which, if type-certificated, would not be required to
demonstrate compliance with this part;
(3) Aircraft issued an experimental airworthiness certificate in
accordance with Sec. 21.191(i)(1) of this chapter on or before January
31, 2008, for the purpose of operating a light-sport aircraft; and
(4) Aircraft designed for agricultural unmanned aircraft operations
under part 108 of this chapter that are issued an airworthiness
acceptance for the purpose and exclusive use of agricultural aircraft
operations.
0
3. Amend Sec. 36.1 by adding reserved paragraph (a)(6) and paragraph
(a)(7) to read as follows:
Sec. 36.1 Applicability and definitions.
(a) * * *
(6) [Reserved]
(7) Aircraft that do not conform to a type certificate, in
accordance with Sec. 36.0.
* * * * *
0
4. Revise Sec. 36.3 to read as follows:
Sec. 36.3 Compatibility with airworthiness requirements.
(a) Each applicant for certification under this part must
demonstrate that:
(1) For type certificated aircraft, that the aircraft complies with
the airworthiness regulations in this chapter that constitute the type
certification basis of the aircraft under all conditions in which
compliance with this part is shown; or
(2) For aircraft without a type certificate, that the aircraft
complies with all airworthiness requirements in this chapter applicable
to the design of the aircraft under all conditions in which compliance
with this part is shown.
(b) Each applicant for certification under this part must show that
any procedure used to demonstrate compliance with this part, and any
procedure and information for the flight crew developed under this
part, are consistent with the requirements of paragraph (a)(1) or (2)
of this section.
(c) Each applicant for airworthiness acceptance under part 108 of
this chapter must:
(1) demonstrate that the aircraft complies with all airworthiness
regulations in this chapter applicable to the design of the aircraft
under all conditions in which compliance with this part is shown.
(2) show that any procedure used to demonstrate compliance with
this part, and any procedure and information for the operator developed
under this part, are consistent with the requirements of paragraph
(c)(1) of this section.
0
5. Amend Sec. 36.1501 by revising paragraph (a) to read as follows:
Sec. [thinsp]36.1501 Procedures, noise levels and other information.
(a) All procedures, weights, configurations, and other information
or data employed for obtaining the certified noise levels prescribed by
this part, including equivalent procedures used for flight, testing,
and analysis, must be developed by the applicant and approved by FAA.
For type certificated aircraft, noise levels achieved during type
certification must be included in the aircraft's approved flight
manual. For aircraft without a type certificate, noise levels achieved
during airworthiness certification must be included in the Pilot's
Operating Handbook. For aircraft subject to part 108 of this chapter,
the noise levels declared during airworthiness acceptance must be
included in the operating instructions.
* * * * *
[[Page 38361]]
0
6. Amend Sec. 36.1581 by adding paragraph (h) to read as follows:
Sec. [thinsp]36.1581 Manuals, markings, and placards.
* * * * *
(h) For aircraft subject to Sec. 36.0, no noise operating
limitations are prescribed under this part, and this part does not
affect any operating limitations for these aircraft described elsewhere
in this chapter. Noise compliance with this part must be documented as
specified in Sec. 21.190(e), Sec. 21.191, or Sec. 108.720 of this
chapter, as applicable. The noise information must:
(1) State that the aircraft has demonstrated compliance with this
part;
(2) Include the demonstrated noise levels of the aircraft; and
(3) Include the following statement: No determination has been made
by FAA whether the noise levels of this aircraft are or should be
acceptable for operation in any location.
PART 43--MAINTENANCE, PREVENTIVE MAINTENANCE, REBUILDING, AND
ALTERATION
0
7. The authority citation for part 43 continues to read as follows:
Authority: 42 U.S.C. 7572; 49 U.S.C. 106(f), 106(g), 40105,
40113, 44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.
0
8. Amend Sec. 43.1 by adding paragraph (b)(4) to read as follows:
Sec. 43.1 Applicability.
* * * * *
(b) * * *
(4) Any aircraft that is operated under part 108 of this chapter.
* * * * *
PART 45--IDENTIFICATION AND REGISTRATION MARKING
0
9. The authority citation for part 45 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40103, 40113-40114, 44101-
44105, 44107-44111, 44504, 44701, 44708-44709, 44711-44713, 44725,
45302-45303, 46104, 46304, 46306, 47122.
0
10. Amend Sec. 45.1 by adding paragraph (a)(4) to read as follows:
Sec. 45.1 Applicability.
* * * * *
(a) * * *
(4) a part 108 airworthiness acceptance.
* * * * *
0
11. Amend Sec. 45.10 by revising paragraph (a)(2) and adding paragraph
(a)(3) to read as follows:
Sec. 45.10 Marking.
* * * * *
(a) * * *
(2) For export to the United States under the provisions of an
agreement between the United States and another country or jurisdiction
for the acceptance of products and articles; or
(3) Under part 108, subpart G and H of this chapter; and
* * * * *
0
12. Amend Sec. 45.11 by adding paragraph (i) to read as follows:
Sec. 45.11 Marking of products.
* * * * *
(i) Unmanned aircraft. A manufacturer of an unmanned aircraft
complying with subparts G and H of part 108 of this chapter must mark
each aircraft by attaching a fireproof identification plate that--
(1) Includes the information specified in Sec. [thinsp]45.13 using
an approved method of fireproof marking;
(2) Must be secured in such a manner that it will not likely be
defaced or removed during normal service, or lost or destroyed by
accident; and
(3) Must be secured to the aircraft fuselage exterior so that it is
legible and readable from the ground when the unmanned aircraft is not
being operated.
0
13. Amend Sec. 45.13 by:
0
a. Revising paragraph (a) introductory text;
0
b. Redesignating paragraph (a)(8) as paragraph (a)(9), and
0
c. Adding a new paragraph (a)(8).
The revision and addition read as follows:
Sec. 45.13 Identification data.
(a) The identification required by Sec. 45.11 (a) through (c) and
(i) must include the following information:
* * *
(8) Part 108 designation, if any.
* * * * *
0
14. Amend Sec. 45.29 by revising paragraph (b) introductory text and
adding paragraph (b)(4) to read as follows:
Sec. 45.29 Size of marks.
* * * * *
(b) Height. Except as provided in paragraph (h) of this section,
the nationality and registration marks must be of equal height and on--
* * *
(4) Part 108 aircraft must be at least 12 inches high except that:
(i) If the external surface is not large enough for 12-inch
markings, marks must be at least 3 inches in height.
(ii) If the size of an unmanned aircraft does not allow for 3-inch
markings, marks as large as practicable shall be placed on the largest
external surface.
* * * * *
PART 48--REGISTRATION AND MARKING REQUIREMENTS FOR SMALL UNMANNED
AIRCRAFT
0
15. The authority citation for part 48 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40113-40114,
41703, 44101-44103, 44105-44106, 44110-44113, 44809(f), 45302,
45305, 46104, 46301, 46306.
0
16. Amend Sec. 48.1 by revising paragraph (c) to read as follows:
Sec. 48.1 Applicability.
* * * * *
(c) Small unmanned aircraft intended to be operated under part 108
of this chapter, issued an airworthiness certificate, operated outside
of the territorial airspace of the United States, or registered through
a trust or voting trust, must be registered in accordance with subparts
A and B of part 47 of this chapter and satisfy the identification and
registration marking requirements of subparts A and C of part 45 of
this chapter.
0
17. Amend Sec. 48.110 by revising paragraph (a)(7) to read as follows:
Sec. 48.110 Application.
* * * * *
(a)(7) For any unmanned aircraft equipped with a remote
identification broadcast module, the serial number issued by the
manufacturer of the remote identification broadcast module in
accordance with the design and production requirements of part 89 of
this chapter. An applicant may submit the serial number of more than
one remote identification broadcast module as part of the application
for aircraft registration under Sec. 48.105. The serial number of a
remote identification broadcast module provided in this application
must not be listed on more than one Certificate of Aircraft
Registration at the same time unless the applicant information in
paragraphs (a)(1) through (a)(4) of this section is the same.
* * * * *
PART 89--REMOTE IDENTIFICATION OF UNMANNED AIRCRAFT
0
18. The authority citation for part 89 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40101(d), 40103(b), 44701,
44805, 44809(f); Section 2202 of Pub. L. 114-190, 130 Stat. 629.
0
19. Amend Sec. 89.305 by amending the introductory paragraph as
follows:
[[Page 38362]]
Sec. 89.305 Minimum message elements broadcast by standard remote
identification unmanned aircraft.
Except as provided in Sec. 108.200 for operations conducted under
part 108 of this chapter, a standard remote identification unmanned
aircraft must be capable of broadcasting the following remote
identification message elements:
* * * * *
0
20. Revise Sec. 89.505 to read as follows:
Sec. 89.505 Serial Numbers.
Serial number required. No person may produce a standard remote
identification unmanned aircraft under Sec. 89.510, Sec. 89.511, or
Sec. 89.515 or a remote identification broadcast module under Sec.
89.520, unless the producer assigns to the unmanned aircraft or remote
identification broadcast module a serial number that complies with
ANSI/CTA-2063-A. ANSI/CTA-2063-A, Small Unmanned Aerial Systems Serial
Numbers (September 2019) is incorporated by reference into this section
with the approval of the Director of the Office of the Federal Register
under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is
available for inspection at FAA's Office of Rulemaking (ARM-1), 800
Independence Avenue SW, Washington, DC 20590 (telephone 202-267-9677)
and is available from Consumer Technology Association (CTA), 1919 South
Eads Street, Arlington, VA 22202, [email protected], 703-907-7600 or at
https://www.cta.tech. It is also available for inspection at the
National Archives and Records Administration (NARA). For information on
the availability of this material at NARA, visit www.archives.gov/Federal-register/cfr/ibr-locations or email [email protected].
0
21. Add Sec. 89.511 to read as follows:
Sec. 89.511 Production requirements for unmanned aircraft produced
under an airworthiness acceptance issued under part 108 of this
chapter.
No person may produce an unmanned aircraft for operation in the
airspace of the United States under an airworthiness acceptance issued
under part 108 of this chapter unless:
(a) All applicable requirements of part 108 of this chapter are
met; and
(b) The unmanned aircraft is designed and produced to meet the
minimum performance requirements for standard remote identification of
unmanned aircraft established in Sec. 89.310 in accordance with an
FAA-accepted means of compliance.
0
22. Amend Sec. 89.515 by amending the section heading and the lead-in
paragraph as follows:
Sec. 89.515 Production requirements for unmanned aircraft without
design approval or production approval issued under part 21 of this
chapter or airworthiness acceptance under part 108 of this chapter.
Except as provided in Sec. 89.510 and Sec. 89.511, after
September 16, 2022, no person may produce an unmanned aircraft for
operation in the airspace of the United States unless--
* * * * *
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
23. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(f), 40101, 40103, 40105, 40113, 40120,
44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716,
44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508,
47528-47531, 47534; Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703
note); Sec. 828 of Pub. L. 118-63, 138 Stat. 1330 (49 U.S.C. 44703
note); articles 12 and 29 of the Convention on International Civil
Aviation (61 Stat. 1180), (126 Stat. 11).
0
24. Amend Sec. 91.1 by revising paragraph (a) and adding paragraph (g)
to read as follows:
Sec. 91.1 Applicability.
(a) Except as provided in paragraphs (b), (c), (e), (f), and (g) of
this section and Sec. Sec. 91.701 and 91.703, this part prescribes
rules governing the operation of aircraft within the United States,
including the waters within 3 nautical miles of the U.S. coast.
* * * * *
(g) Except as provided in Sec. 108.180 of this chapter, this part
does not apply to any aircraft governed by part 108 of this chapter.
0
25. Amend Sec. 91.113 by adding paragraph (h) to read as follows:
Sec. 91.113 Right-of-way rules: Except water operations.
* * * * *
(h) Unmanned aircraft. An unmanned aircraft conducting operations
under part 108 of this chapter has the right-of-way over other aircraft
in flight unless--
(1) That aircraft is operating in a Category 5 population density
area as described in Sec. 108.185 of this chapter;
(2) That aircraft is operating in Class B or C airspace as
described in Sec. 108.180(b) of this chapter;
(3) That aircraft is departing from or arriving at an airport or
heliport; or
(4) That aircraft is equipped and broadcasting their aircraft's
location using--
(i) ADS-B Out equipment that meets the requirements of Sec.
91.227; or
(ii) electronic conspicuity equipment that meets the performance
requirements of Sec. 108.195(a)(2)(ii) of this chapter.
0
26. Amend Sec. 91.225 by revising paragraph (f) to read as follows:
Sec. 91.225 Automatic Dependent Surveillance-Broadcast (ADS-B) Out
equipment and use.
* * * * *
(f) Except as prohibited in paragraph (h)(2) of this section, each
person operating an aircraft equipped with ADS-B Out must operate this
equipment in the transmit mode at all times unless--
(1) Otherwise authorized by FAA when the aircraft is performing a
sensitive government mission for national defense, homeland security,
intelligence or law enforcement purposes and transmitting would
compromise the operations security of the mission or pose a safety risk
to the aircraft, crew, or people and property in the air or on the
ground; or
(2) Otherwise directed by ATC when transmitting would jeopardize
the safe execution of air traffic control functions; or
(3) The equipment is operated in accordance with Sec. 108.195 of
this chapter and operated solely to meet the conspicuity requirements
in Sec. 91.113(h)(2).
PART 107--SMALL UNMANNED AIRCRAFT SYSTEMS
0
27. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 106(f), 40101 note, 40103(b), 44701(a)(5),
46105(c), 46110, 44807.
0
28. Amend Sec. 107.1 by revising paragraphs (b)(3) and (4) and adding
paragraphs (b)(5) and (6) to read as follows:
Sec. 107.1 Applicability.
* * * * *
(b) * * *
(3) Any operation that the holder of an exemption issued in
conjunction with a determination under 49 U.S.C. 44807 elects to
conduct pursuant to the exemption, unless otherwise specified in the
exemption;
(4) Any operation that a person elects to conduct under part 91 of
this chapter with a small unmanned aircraft system;
(5) Operation of unmanned aircraft systems beyond the visual line
of sight of the operator; or
(6) Carriage of property or packages by aircraft for compensation
or hire.
0
29. Add Sec. 107.8 to read as follows:
[[Page 38363]]
Sec. 107.8 Aviation Safety Reporting Program: Prohibition against use
of reports for enforcement purposes.
The Administrator of FAA will not use reports submitted to the
National Aeronautics and Space Administration under the Aviation Safety
Reporting Program (or information derived therefrom) in any enforcement
action except information concerning accidents or criminal offenses
which are wholly excluded from the Program.
0
30. Add Sec. 107.10 to read as follows:
Sec. 107.10 Prohibition on interference with a remote pilot in
command or visual observer.
No person may assault, threaten, intimidate, or interfere with a
remote pilot in command or visual observer in the performance of their
duties regarding unmanned aircraft operations.
0
31. Revise Sec. 107.41 to read as follows:
Sec. 107.41 Operations in certain airspace.
(a) No person may operate an unmanned aircraft under this part in
Class B, Class C, or Class D airspace or within the lateral boundaries
of the surface area of Class E airspace designated for an airport
unless all the following conditions are met:
(1) The unmanned aircraft is operated 400 feet above ground level
or below;
(2) The unmanned aircraft is operated in compliance with this part.
(b) No person may conduct operations under this section in any
airspace designated by the Administrator as requiring prior
authorization, except in accordance with that authorization.
(c) An operator may deviate from any provision of this section
under the terms of an authorization issued by the Administrator.
(d)(1) A list of airspace designated by the Administrator as
requiring prior authorization prior to operating under this section can
be found in FAA Order JO 7400.[XX], Unmanned Aircraft System Airspace
Designations, dated [TBD]. FAA Order JO 7400.[XX] is incorporated by
reference with the approval of the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The approval to
incorporate by reference FAA Order JO 7400.XX is effective [Month, XX,
202X], through [Month, XX, 202X+1]. This IBR material is available for
inspection at FAA and at the National Archives and Records
Administration (NARA). Contact FAA at: Rules and Regulations Group,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591, (202) 267-8783. An electronic version of FAA
Order JO 7400.[XX] is available on FAA's website at www.faa.gov/air_traffic/publications. For information on the availability of this
material at NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email [email protected].
(2) Before updating FAA Order JO 7400.[XX], FAA will publish any
proposed changes to designated airspace, in full text, as proposals in
the Federal Register, unless there is good cause to forgo notice and
comment rulemaking, followed by publication of associated final rules
in the Federal Register. FAA will then integrate these updates into the
next edition of FAA Order JO 7400.[XX]. FAA will request that the
Director of the Federal Register approve the IBR of the next edition of
the order as of [MM/DD/YYYY+1].
(e) Unmanned aircraft systems operations are prohibited from flying
in Security Sensitive Airspace, unless authorized.
Sec. 107.205 [Amended]
0
32. Amend Sec. 107.205 by removing the last sentence in paragraph (a)
and removing and reserving paragraphs (c) and (h).
0
33. Add part 108 to subchapter F to read as follows:
PART 108--OPERATIONS OF UNMANNED AIRCRAFT SYSTEMS BEYOND VISUAL
LINE OF SIGHT
Subpart A--General
Sec.
108.1 Applicability.
108.5 Definitions.
108.10 Reproduction or alteration.
108.15 Prohibition in interference with unmanned aircraft operations
personnel.
108.20 Inspection, testing, and demonstration of compliance.
108.25 Aviation safety reporting program: prohibition against use of
reports for enforcement purposes.
108.30 Base of operations.
108.35 Operator identification.
108.40 Operator recordkeeping requirements.
108.45 Operator reporting requirements.
Subpart B--Operating Rules
Sec.
108.100 General.
108.105 Unmanned aircraft.
108.110 Unmanned aircraft lighting.
108.115 Registration.
108.120 General operating requirements.
108.125 Careless or reckless operation.
108.130 Manuals and instructions.
108.135 Company operations manual.
108.140 Aircraft performance.
108.145 Weather conditions.
108.150 Operating location.
108.155 Unmanned aircraft tracking.
108.160 ADS-B and transponder use.
108.165 Area of operations.
108.170 Preflight requirements.
108.175 Operating restrictions.
108.180 Operations in controlled airspace.
108.185 Operation over people.
108.190 Use of strategic deconfliction and conformance monitoring.
108.195 Operation near aircraft; low altitude right-of-way rules.
108.200 Operational status broadcast.
108.205 Operation in shielded areas.
108.210 Operation of multiple unmanned aircraft.
108.215 Emergency conditions.
108.220 Unmanned aircraft flight restriction.
Subpart C--Operations Personnel
Sec.
108.300 General.
108.305 Operations supervisor.
108.310 Flight coordinator.
108.315 Personnel knowledge and training.
108.320 Medical condition.
108.325 Alcohol or drugs.
108.330 Duty and rest requirements.
108.335 Security threat assessment for certain personnel.
Subpart D--Permitted Operations
Sec.
108.400 Operations under a permit.
108.405 Applications for operating permits.
108.410 Duration of permits.
108.415 Issuance of an operating permit.
108.420 Denial, suspension, or revocation of operating permits.
108.425 Amendment of permits.
108.430 Display of permit.
108.435 Cybersecurity.
108.440 Package delivery operations.
108.445 Agricultural operations.
108.450 Aerial surveying operations.
108.455 Civic interest operations.
108.460 Unmanned aircraft operations training.
108.465 Demonstration operations.
108.470 Flight test operations.
108.475 Recreational permit operations.
Subpart E--Certificated Operations
Sec.
108.500 Operations under a certificate.
108.505 Applications for operating certificates.
108.510 Duration of certificates.
108.515 Issuance of an operating certificate.
108.520 Denial, suspension, or revocation of operating certificates.
108.525 Amendment of certificates.
108.530 Recency of operations.
108.535 Cybersecurity.
108.540 Training program.
108.545 Validation tests.
108.550 Communication and ground risk assessments.
108.555 Inoperative equipment.
108.560 Safety management system.
108.565 Package delivery operations.
108.570 Hazardous materials.
108.575 Agricultural operations.
108.580 Aerial surveying operations.
108.585 Civic interest operations.
Subpart F--Maintenance and Alterations
Sec.
108.600 General.
108.605 Persons performing maintenance and alterations.
108.610 Unmanned aircraft maintenance.
108.615 Life-limited parts.
[[Page 38364]]
108.620 Unmanned aircraft batteries.
108.625 Repairs and alterations.
108.630 Operation after maintenance or alterations.
Subpart G--Procedures for Unmanned Aircraft System Airworthiness
Acceptance
Sec.
108.700 Airworthiness acceptance generally.
108.705 Means of compliance.
108.710 Compliance with design, test, production, noise, and
airworthiness requirements.
108.715 Declaration of compliance.
108.720 Documents.
108.725 Flight data.
108.730 Quality assurance system.
108.735 Production.
108.740 Continued operational safety program.
108.745 Inspections and audits.
108.750 Design changes.
108.755 Repairs and alterations.
108.760 Record retention.
108.765 Rescission.
Subpart H--Design and Testing Requirements for Airworthiness Acceptance
Sec.
108.800 General.
108.805 Size, weight, and speed.
108.810 Simplified user interaction.
108.815 Signal monitoring and transmission.
108.820 Position, navigation, and timing.
108.825 Collision avoidance.
108.830 Anti-collision lighting.
108.835 Position lighting.
108.840 Power generation, storage, and distribution system.
108.845 Propulsion system.
108.850 Fuel system.
108.855 Fire protection.
108.860 Software.
108.865 Electronic hardware.
108.870 Systems and equipment.
108.875 Cybersecurity.
108.880 Associated elements design and performance requirements.
108.885 Suitability and durability of materials.
108.890 Operating environment conditions.
108.895 Lightning protection.
108.900 Flight data recorder.
108.905 Flight data analysis.
108.910 Noise.
108.915 Placards.
108.920 Identification and marking.
108.925 Additional design and performance requirements for specific
operational purposes.
108.930 Developmental testing.
108.935 Function and reliability testing.
Authority: 49 U.S.C. 106(f), 40101 note, 40103(b), 44701(a)(5),
46105(c), 46110, 44807.
Subpart A--General
Sec. 108.1 Applicability.
(a) Except as provided in paragraph (b) of this section, this part
applies to any person who--
(1) Conducts, or intends to conduct, unmanned aircraft system
beyond visual line of sight operations in the U.S. airspace;
(2) Requests FAA issuance of an operating permit or certificate to
operate an unmanned aircraft system in accordance with this part;
(3) Performs maintenance on an unmanned aircraft system that has
received an airworthiness acceptance issued in accordance with this
part;
(4) Designs, manufactures, or produces an unmanned aircraft system
for operation under this part;
(5) Holds or applies for airworthiness acceptance of an unmanned
aircraft system in accordance with subparts G and H of this part; or
(6) Submits a voluntary consensus standard for acceptance or
approval by the Administrator as a means of compliance for any
provision of this part.
(b) This part does not apply to any of the following:
(1) Unmanned aircraft operation conducted in accordance with part
107 of this chapter.
(2) Unmanned aircraft operation conducted in accordance with part
91 of this chapter.
(3) Unmanned aircraft systems operation conducted under the
provisions of 49 U.S.C. 44809.
(4) An aircraft with any person on board during operations.
Sec. 108.5 Definitions.
The following definitions apply to this part. If there is a
conflict between the definitions of this part and the definitions
specified in Sec. 1.1 of this chapter, the definitions in this part
control for the purposes of this part:
Associated Elements means those elements that are not directly
affixed to an unmanned aircraft and are necessary to interact with the
unmanned aircraft for safe flight during all normal, abnormal, or
emergency flight operations.
Command and Control Link means the command and control data link
which connects the unmanned aircraft and the ground control station for
the purposes of managing the flight.
Conformance monitoring means the real-time ability to determine
whether an unmanned aircraft is flying in accordance with its
operational intent, and to share situational awareness data with
relevant airspace users when off-nominal or contingent situations
occur.
Detect and avoid means the ability for an unmanned aircraft system
to see, sense, or detect aircraft or other hazards and to make a flight
adjustment to avoid a collision hazard.
Flight coordinator means an individual who monitors an unmanned
aircraft system operating under this part and that can control,
initiate emergency actions, or issue commands to the unmanned aircraft
during flight.
Ground control station means the associated element that
communicates with and controls the unmanned aircraft.
Hazardous material means a material as defined in 49 U.S.C. 5102(2)
and 49 CFR 171.8.
Life-limited part means any part for which a mandatory replacement
limit is specified by the manufacturer of the unmanned aircraft and is
documented in the maintenance instructions.
Operational intent means a volume-based representation of airspace
encapsulating the intended flight path for an unmanned aircraft
operation, comprising one or more overlapping or contiguous 3-
dimensional volumes of airspace combined with a beginning and ending
time for each volume.
Operations personnel means a person who is performing a safety
function employed by, or used by, an operator under this part.
Operator means a person that conducts operations under this part.
Package delivery means the delivery of goods, materials, or
supplies from a business or commercial location to a residential or
business end user.
Safe distance means the minimum distance that is necessary to avoid
a collision hazard with another aircraft.
Strategic deconfliction means the use of an interoperable strategic
conflict detection and resolution capability to mitigate the risk of
collision between participating unmanned aircraft.
Strategic conflict detection means the process of identifying
overlapping operational intents among unmanned aircraft.
Strategic conflict resolution means the process of resolving
overlapping operational intents among unmanned aircraft.
Target average conformance means the process of monitoring an
operator's ability to fly in accordance with its operational intents
over a defined period of time.
Sec. 108.10 Reproduction or alteration.
(a) No person may make or cause to be made--
(1) Any fraudulent or intentionally false record or report that is
required to be made, kept, or used to show compliance with any
requirement under this part.
(2) Any reproduction or alteration, for fraudulent purpose, of any
permit, certificate, authorization, record, or
[[Page 38365]]
report required or issued under this part.
(b) The commission by any person of an act prohibited under
paragraph (a) of this section is a basis for any of the following:
(1) Denial of an application for an operating permit or
certificate.
(2) Denial of a waiver.
(3) Denial of a declaration of compliance.
(4) Suspension or revocation of any permit, certificate, waiver,
airworthiness acceptance, declaration of compliance issued, or similar
held by that person.
(5) A civil penalty.
Sec. 108.15 Prohibition on interference with unmanned aircraft
operations personnel.
No person may assault, threaten, intimidate, or interfere with the
operations personnel of an unmanned aircraft in the performance of
their duties related to unmanned aircraft operations.
Sec. 108.20 Inspection, testing, and demonstration of compliance.
(a) An operator of an unmanned aircraft system must--
(1) Have the authorization to operate and identification readily
accessible when operating.
(2) Present the operating authorization and identification for
inspection upon a request from any of the following:
(i) The Administrator.
(ii) An authorized representative of the National Transportation
Safety Board.
(iii) Any Federal, State, or local law enforcement officer.
(3) Make available, upon request, to the Administrator or any
authorized representative of the National Transportation Safety Board
any document, record, or report required to be kept under the
regulations of this chapter.
(b) The operator of an unmanned aircraft system must, upon request,
allow the Administrator to witness any test or make inspection of the
unmanned aircraft system, including--
(1) Any aspect of the operation of an unmanned aircraft system;
(2) Access to the operations area for the unmanned aircraft; and
(3) If applicable, the automated data services utilized to
determine compliance with this part.
(c) Each employee of, or person used by, the operator who is
responsible for maintaining the operator's records must make those
records available to the Administrator.
(d) Failure by any operator to make available to the Administrator
upon request any required record, document, or report is grounds for
suspension of all or any part of the operator's permit or certificate.
Sec. 108.25 Aviation safety reporting program: prohibition against
use of reports for enforcement purposes.
The Administrator will not use reports submitted to the National
Aeronautics and Space Administration under the Aviation Safety
Reporting Program (or information derived therefrom) in any enforcement
action, except information concerning accidents or criminal offenses,
which are wholly excluded from the program.
Sec. 108.30 Base of operations.
(a) Each operator must maintain a principal base of operations in
the United States and submit that information in accordance with Sec.
108.405 or Sec. 108.505, as appropriate.
(b) If different from the principal base of operations, the
operator shall provide a U.S. physical address that shall serve as the
primary point of contact for correspondence with FAA.
(c) At least 30 days before changing the location of its principal
base of operations, an operator must provide written notification to
the Administrator.
(d) An operator may perform operations at locations other than the
principal base of operations, as authorized by the Administrator.
Sec. 108.35 Operator identification.
(a) Unless otherwise authorized by the Administrator, an operator
may not operate or advertise services of an unmanned aircraft under
this part using a business name other than a business name listed on
the operating permit or certificate.
(b) No operator may operate an unmanned aircraft under this part
unless the identity of the unmanned aircraft operator is displayed on
the exterior of the unmanned aircraft in a manner acceptable to the
Administrator.
Sec. 108.40 Operator recordkeeping requirements.
Each operator shall keep records of the items listed in paragraphs
(a) through (e) of this section per the timelines specified in
paragraph (f) of this section and must provide access or copies to the
Administrator upon request in a manner acceptable to the Administrator.
(a) Unmanned Aircraft. Each operator must maintain records on each
unmanned aircraft used in operations under this part, including:
(1) The total time in service of each unmanned aircraft.
(2) The status of any life-limited parts.
(3) Records of each flight performed under this part which
includes--
(i) The time, date, and duration of the flight;
(ii) The unmanned aircraft registration number;
(iii) The type of operation;
(iv) The individual flight paths of each flight including origin,
destination, and altitude(s);
(v) The name of the designated operations personnel assigned to
each flight;
(vi) Landing locations (if different from takeoff origin or
destination locations);
(vii) For package delivery operations, the pickup points and
delivery locations for the flight; and
(viii) For agricultural operations, the name and address of each
person for whom agricultural unmanned aircraft services were provided,
the date of the service, and the name and quantity of the material
dispensed.
(b) Personnel. Each operator shall maintain records on each
operations personnel required by the company operations manual and used
in operations under this part, including--
(1) The full name of the individual;
(2) The individual's qualifications in sufficient detail to
determine their ability to participate in operations under this part;
(3) The individual's current duties and the date of assignment to
those duties;
(4) Any information concerning the individual's release from
employment for cause; and
(5) For operators holding an operating certificate pursuant to
subpart E of this part--
(i) The dates and times of operations personnel assigned work
shifts,
(ii) The length of the rest period prior to each duty period for
each of the required operations personnel, and
(iii) Total hours on duty per calendar day for each of the required
operations personnel.
(c) Mechanical Irregularities. Each operator shall provide a log
for operations personnel to record mechanical irregularities for the
unmanned aircraft and its associated elements.
(1) Each operations person shall enter, or cause to be entered,
each mechanical irregularity in the log for the unmanned aircraft and
its associated elements that comes to the person's attention.
(2) Each operations personnel who takes corrective action
concerning a reported or observed failure or malfunction for the
unmanned aircraft or its associated elements shall enter, or have
entered, the action taken in the log.
[[Page 38366]]
(d) Maintenance. Each operator shall ensure that it maintains
records of the unmanned aircraft inspection status and for each
maintenance or alteration activity to the unmanned aircraft or its
associated elements.
(1) The records must include the current inspection status of the
unmanned aircraft and, for each maintenance or alteration activity
performed by operations personnel on the unmanned aircraft or its
associated elements, a record that includes--
(i) A general description of the work performed;
(ii) The completion date of the work;
(iii) The identification of the person performing, or who
performed, the work; and
(iv) The approval for return to service.
(2) An operator need not comply with the requirements of paragraph
(d)(1) of this section for the removal and replacement of unmanned
aircraft batteries designed for frequent, toolless swapping if the
operator has other means of tracking battery use, life, and
performance.
(3) An operator need not comply with the requirements of paragraph
(d)(1) of this section for the removal and replacement of unmanned
aircraft components that are designed for toolless removal and
reinstallation if the operator has procedures for ensuring that any
part that is removed is inspected for serviceability prior to being
reinstalled and--
(i) The parts are reinstalled on the same unmanned aircraft; or
(ii) The parts are not subject to time limits; or
(iii) The operator has other means of tracking installation and
use.
(e) Training. Each operator must maintain a record of all initial
and recurrent training taken by each person required to receive
training under this part.
(1) The record shall contain, at a minimum:
(i) The person's name and assigned job function,
(ii) The date of hire or start of a related job function,
(iii) The most recent training completion date,
(iv) A description, copy, or reference to training materials used
to meet the training requirement,
(v) The name and address of the organization providing the
training, and
(vi) A copy of the certification issued when the individual was
trained, which shows that a test has been completed satisfactorily.
(2) Training records required to be kept under this section
include:
(i) Records of the initial and recurrent training required under
Sec. 108.315.
(ii) Records of the initial and recurrent training for the
recognition of hazardous materials required under Sec. 108.440.
(iii) Records of the initial and recurrent hazardous materials
training taken by each person who performs or directly supervises a job
function specified in Sec. 108.570(b).
(iv) Records of the training received for agricultural operations
in accordance with the training required under Sec. Sec. 108.445(i)
and 108.575(g).
(f) Timeframes. Records required under this paragraph shall be kept
per the following timeframes.
(1) Unmanned Aircraft. Records required under paragraphs (a)(1) and
(2) of this section must be maintained for the life of the unmanned
aircraft. Data required under paragraph (a)(3) of this section must be
maintained for a minimum of 24 months.
(2) Personnel. Records required under paragraphs (b)(1) through (3)
of this section must be maintained for the length of employment of that
individual plus 12 months after separation. Data required under
paragraph (b)(4) of this section must be maintained for 12 months after
the separation from employment of that individual. Records required
under paragraph (b)(5) of this section must be maintained for three (3)
months.
(3) Mechanical Irregularities. Records required under paragraph (c)
of this section must be maintained for a minimum of 24 months.
(4) Maintenance. Records required under paragraph (d) of this
section must be maintained for a minimum of 24 months.
(5) Training. Records required under paragraph (e) of this section
must be maintained for the length of employment of that individual plus
12 months after separation.
Sec. 108.45 Operator reporting requirements.
(a) Flight Data. The operator must maintain a flight data
collection system that collects data related to the usage and
reliability of the unmanned aircraft.
(1) The operator must report to FAA aggregate flight data
consisting of the total number of flight hours operated for each
unmanned aircraft, including the make/model/series and registration
number, used in operations under this part, in a form and manner
acceptable to the Administrator.
(2) The operator must share, or allow the aircraft manufacturer to
collect, data related to the unmanned aircraft reliability for each
aircraft operated by the operator. At a minimum, that data must consist
of:
(i) Make, model, series, and serial number,
(ii) Flight duration,
(iii) Altitude,
(iv) Speed,
(v) Location, and
(vi) Any incidents or anomalies encountered during flight
operations.
(b) Unmanned Aircraft. Each operator must report to FAA the
registration and serial numbers of each unmanned aircraft used in
operations under this part, in a form and manner acceptable to the
Administrator. Compliance with this requirement can be combined with
the reporting of flight data under paragraph (a) of this section, as
applicable.
(c) Interruption reports. Each operator shall provide FAA a summary
of occurrences, in a form and manner acceptable to the Administrator,
that resulted in--
(1) An unplanned or precautionary landing away from the normally
designated landing location; or
(2) A change or diversion in the unmanned aircraft's planned route
caused by a known or suspected mechanical difficulty or malfunction.
(d) Service difficulty reports. (1) Each operator certificated
under subpart E of this part shall report to the unmanned aircraft
manufacturer any failure, malfunction, or defect in an unmanned
aircraft system that causes momentary or permanent loss of control or
communication of the unmanned aircraft if it has endangered, or may
endanger, the safe operation of the unmanned aircraft. The information
must contain:
(i) The date.
(ii) The affected unmanned aircraft, including the type and
manufacturer's serial number.
(iii) The nature of the failure, malfunction, or defect.
(iv) Identification of the part and system involved, including
available information pertaining to designation of the major component.
(v) Apparent cause of the failure, malfunction, or defect (e.g.,
wear, crack, design deficiency, or personnel error).
(vi) The corrective actions taken.
(2) Each operator who uses an authorized service approved under
part 146 of this chapter shall report to the automated data service
provider any failure, malfunction, or defect in an authorized service
if it has endangered or may endanger the safe operation of the unmanned
aircraft. The information must contain:
(i) The date and time.
(ii) The affected unmanned aircraft, including the type and
identification number.
[[Page 38367]]
(iii) The nature of the failure, malfunction, or defect.
(iv) Identification of the authorized service involved, including
its version.
(v) Apparent cause of the failure, malfunction, or defect (e.g.,
contingent State, interface issue, data issue, time delay/latency
issue, operational response).
(vi) The corrective actions taken.
(3) Operators must also provide the reports, information, and data
associated with paragraphs (d)(1) and (2) to FAA upon request.
(e) Security Occurrences. Each operator shall report to FAA the
following security incidents in a form and manner acceptable to the
Administrator:
(1) A security breach that results in loss of control of the
unmanned aircraft;
(2) A security breach that results in unauthorized access to the
operator's facilities, aircraft, loading areas, hazardous materials, or
goods to be transported; and
(3) A security breach that results in unauthorized access to the
operator's networks, devices, and or data irrespective of whether it
affects the integrity, accuracy, or reliability of unmanned aircraft
operations.
(4) The information must contain:
(i) The date and time of the incident.
(ii) The nature and scope of the incident.
(iii) Identification of any vulnerabilities that led to loss of
control or unauthorized access.
(iv) The corrective actions taken.
(5) Operators must also provide other pertinent information and
data associated with the security breach to FAA upon request.
(f) Emergency conditions. Each operator who, under the provisions
of Sec. 108.215, deviates from a rule of this part shall, within 10
days after the deviation, excluding Saturdays, Sundays, and Federal
holidays, provide a report of the aircraft operation and a description
of the deviation and reasons for it, in a manner acceptable to the
Administrator.
(g) Event reporting. Operators must report to the Administrator, in
a form and manner acceptable to the Administrator, any operation of an
unmanned aircraft involving damage to any property, other than the
unmanned aircraft, that exceeds $500, and any malfunction or failure of
any system that leads to operations into an unauthorized area. The
report shall contain, at a minimum--
(1) The date, time, and location of the event;
(2) Description of the event, including operational and
environmental factors, including whether use, failure, malfunction, or
defect of an automated data service provider was a factor; and
(3) Description of the known contributing factors for the event.
(h) Timeframes. Each report required under this section must be
provided as follows:
(1) Flight Data. Aggregate flight data must be provided to FAA, and
unmanned aircraft reliability data must be provided to the
manufacturer, or allow the manufacturer to access the data, at a
minimum of once each calendar month.
(2) Unmanned Aircraft. A list of unmanned aircraft registration and
serial numbers used in operations must be provided to FAA a minimum of
at least once each 12 calendar months.
(3) Interruption reports. A summary of occurrences must be provided
no later than the end of the 10th day of the following month in which
the occurrence took place.
(4) Service difficulty reports. Reports of failures, malfunctions,
or defects must be submitted to the manufacturer not later than seven
(7) days after the occurrence. When additional information becomes
available, including information from other persons, operators must
submit it as a supplement to the first report.
(5) Security Occurrences. Reports of security-related occurrences
must be submitted to FAA not later than 96 hours after the occurrence.
When additional information becomes available, including information
from other persons, operators must submit it as a supplement to the
first report within a reasonable timeframe.
(6) Emergency Conditions. Reports of deviations from the
regulations due to emergency conditions must be submitted to FAA within
10 days of the deviation.
(7) Event reporting. Reports of events required under paragraph (g)
of this section must be submitted to FAA not later than 10 days after
the event.
Subpart B--Operating Rules
Sec. 108.100 General.
(a) Operations under this part require:
(1) Applying for and operating under the provisions of an operating
permit issued by the Administrator under the provisions of subpart D of
this part; or
(2) Applying for and operating under the provisions of an operating
certificate issued by the Administrator under the provisions of subpart
E of this part.
(b) No operator may advertise or otherwise offer to perform an
operation subject to this part unless that operator holds the
appropriate operating certificate or permit under this part to conduct
that operation.
Sec. 108.105 Unmanned aircraft.
(a) The unmanned aircraft and its associated elements must be in
condition for safe operation.
(b) Unmanned aircraft used under this part must have received an
airworthiness acceptance in accordance with subparts G and H of this
part, except for operations under a flight test permit pursuant to
Sec. 108.470.
(c) Unmanned aircraft used under this part must meet the equipage
requirements of subpart H of this part.
Sec. 108.110 Unmanned aircraft lighting.
(a) Unmanned aircraft must be equipped with an anti-collision
lighting system that meets the requirements of Sec. 108.830. Except as
provided in paragraph (c) of this section, the anti-collision lights
must be used during all flight operations.
(b) If an unmanned aircraft is equipped with position lights per
the requirements of Sec. 108.835, the operator must use the lighted
position lights during any night operations.
(c) The flight coordinator may reduce the intensity of, or turn off
the unmanned aircraft lighting, if the flight coordinator determines
that, because of operating conditions, it would be in the interest of
safety to do so.
Sec. 108.115 Registration.
No operator may operate a civil unmanned aircraft under this part
unless the unmanned aircraft has an effective U.S. registration
certificate issued to its owner as required pursuant to part 47 of this
chapter.
Sec. 108.120 General operating requirements.
(a) Operations must be conducted with an unmanned aircraft, and
associated elements, that are in a condition for safe operation. If the
operator knows or has reason to know that the unmanned aircraft, or
associated elements, are no longer in a condition for safe operation,
the operator may not initiate or continue the flight.
(b) Operations must be conducted in accordance with the
manufacturer's operating instructions or other procedures acceptable to
the Administrator.
(c) Except for operations conducted under a flight test permit
under Sec. 108.470 or in accordance with Sec. 108.555, operations
must be conducted with properly installed and operational instruments
and equipment that are identified as being required by the
manufacturer's operating instructions.
[[Page 38368]]
(d) The operations supervisor, as required under Sec. 108.305, is
directly responsible for, and is the final authority as to, the safe
and secure operation of all unmanned aircraft under their purview and
ensuring that the operator complies with all applicable regulatory
requirements and the company operations manual, as required under Sec.
108.135.
Sec. 108.125 Careless or reckless operation.
(a) No person may operate an unmanned aircraft in a careless or
reckless manner that endangers the life or property of another.
(b) No person may allow an object to be dropped from an unmanned
aircraft in a manner that creates an undue hazard to persons or
property of another.
(c) No person may operate an unmanned aircraft in a manner that
creates a collision hazard with persons, an aircraft with one or more
persons on board, vehicles, structures, other unmanned aircraft, or the
property of another.
Sec. 108.130 Manuals and instructions.
(a) Operators shall ensure that the following documents are
available and readily accessible during relevant operations:
(1) The manufacturer's operating instructions as provided in Sec.
108.720(a)(1).
(2) The manufacturer's maintenance instructions as provided in
Sec. 108.720(a)(2).
(3) The manufacturer's configuration and control document as
provided in Sec. 108.720(a)(3).
(4) The company operations manual.
(b) The operator must ensure that all operations personnel have
access to the documents that pertain to their duties and
responsibilities during the performance of their duties.
Sec. 108.135 Company operations manual.
(a) Each operator shall prepare and keep current a company
operations manual that sets forth the operator's procedures and
policies acceptable to the Administrator.
(b) The company operations manual may be in the form of one or more
documents.
(c) The manual must be made available to the Administrator upon
request.
(d) The manual must not be contrary to any applicable Federal
regulations, the operator's operating certificate or permit, or any
authorizations held.
(e) The information and instructions contained in the manual must
be displayed clearly and be retrievable in the English language.
(f) The revision status must be controlled in such a way a person
can immediately ascertain the information is the most current.
(g) The manual must address the following--
(1) The operations personnel required under Sec. 108.300 and their
assigned area of responsibility, duties, responsibilities, and
authority;
(2) The number and positions of operations personnel required for
safe operations under Sec. 108.300 and their responsibilities;
(3) Preflight procedures;
(4) Unmanned aircraft weight and balance procedures;
(5) Accident notification procedures;
(6) Procedures for determining and communicating unmanned aircraft
condition to appropriate operations personnel;
(7) Procedures for complying with the recordkeeping and reporting
requirements as required under Sec. Sec. 108.40 and 108.45;
(8) Access to and use of unmanned aircraft maintenance procedures
and inspection criteria;
(9) Procedures for developing and implementing emergency
procedures;
(10) Procedures for the retrieval of unmanned aircraft that fail to
return to their intended landing location;
(11) Unmanned aircraft loading procedures, as applicable; and
(12) Procedures for the identification and disposition of hazardous
materials.
Sec. 108.140 Aircraft performance.
(a) Operations must be conducted at a speed equal to or less than
those prescribed in the manufacturer's operating instructions, unless
operating conditions exist that require a higher minimum safe speed.
(b) Operations must be conducted at a weight equal to or less than
specified for the type of permit or certificate operated in accordance
with this part.
Sec. 108.145 Weather conditions.
Operations must not be conducted in weather conditions, or with
frost, ice, or snow adhering to the unmanned aircraft prior to takeoff,
other than as provided in the manufacturer's operating instructions.
Sec. 108.150 Operating location.
(a) Operations must be conducted from locations that are pre-
designated and access-controlled and ensure any persons who are not
directly participating in the operation are safely segregated from
flight operations.
(b) All operations of unmanned aircraft under this part must be
monitored and controlled from a location that is physically located
within the United States.
(c) Each operator must develop and implement physical security
policies and processes, including, but not limited to, processes for
preventing unauthorized access to the operation's facilities as
described in paragraph (a), and protecting other controlled access
areas, as applicable.
Sec. 108.155 Unmanned aircraft tracking.
The operator must be able to determine the geographic location and
altitude of each unmanned aircraft at all times during flight
operations.
Sec. 108.160 ADS-B and transponder use.
Unless otherwise authorized by the Administrator, operations must
not be conducted--
(a) With Automatic Dependent Surveillance-Broadcast Out equipment
in transmit mode; or
(b) With a transponder in transmit mode.
Sec. 108.165 Area of operations.
For each operating area, the operator is responsible for all of the
following:
(a) Obtaining approval from FAA, in a manner acceptable to the
Administrator, for the area of intended operations prior to beginning
initial operations in the area.
(b) Designating safe alternate landing areas that the unmanned
aircraft can reach if it is unable to complete its intended flight
operation. The alternate landing areas must meet all of the following
conditions:
(1) Avoid areas where overflight is not permitted.
(2) Provide for a landing without undue hazard to persons or
property on the ground.
(c) Designating appropriate takeoff, landing, and loading areas
that are--
(1) Access-restricted to only persons participating in the
operation;
(2) Free of any obstructions that could pose a hazard; and
(3) Adequate for the operation, considering such items as size,
surface, obstructions, and lighting.
(d) Ensuring adequate communications coverage and availability, and
appropriate lost link procedures.
(e) Ensuring that the planned operations minimize risk to persons
and property on the ground as appropriate and consider terrain and
obstacles that the operator intends to overfly.
Sec. 108.170 Preflight requirements.
Prior to operating an unmanned aircraft under this part, the
operator must--
[[Page 38369]]
(a) Ensure weather conditions are appropriate for the intended
operation, are determined in a manner acceptable to the Administrator,
and are in accordance with the unmanned aircraft limitations specified
by the manufacturer;
(b) Be familiar with any airspace and flight restrictions along the
entire route of flight;
(c) Ensure the population density to be overflown complies with
Sec. 108.185;
(d) Identify the locations of ground obstacles and hazards;
(e) Ensure the unmanned aircraft system is in a condition for safe
operation;
(f) Ensure there are sufficient personnel for the operation;
(g) If required by Sec. 108.180 or Sec. 108.185, ensure that a
strategically deconflicted operational intent is accepted by the
automated data service provider prior to takeoff;
(h) Ensure the reserve power recommended by the manufacturer is
satisfied, and that there is enough available power or fuel,
considering wind and forecast weather conditions, for the unmanned
aircraft system to operate for the intended operational time with
sufficient reserves such that the unmanned aircraft can land without
posing an undue risk to unmanned aircraft or people and property on the
ground;
(i) Ensure that operations will be conducted within the weight and
balance limitations defined by the unmanned aircraft manufacturer;
(j) Ensure that any object attached to, or carried by, the unmanned
aircraft is secure and does not adversely affect the flight
characteristics or controllability of the unmanned aircraft; and
(k) Ensure the unmanned aircraft navigation and communication
systems are working properly.
Sec. 108.175 Operating restrictions.
(a) No operator may operate an unmanned aircraft under this part
higher than 400 feet above the ground level unless the operator is
operating in class G airspace and--
(1) Is temporarily transiting steeply changing terrain;
(2) Is operating an unmanned aircraft within a 400-foot radius of a
structure and does not fly higher than 400 feet above the structure's
immediate uppermost limit; or
(3) Is temporarily maneuvering up to 450 feet above the ground
level to avoid a collision.
(b) An operator operating under this part must comply with the
provisions of Sec. Sec. 91.133, 91.137 through 91.145, and 99.7 of
this chapter.
(c) Operators should notify the controlling agency for any
operations planned within a military operating area (MOA) or on a
military training route (MTR). Operators must always exercise extreme
caution and remain vigilant of all MTRs and or non-regulatory SUAs.
(d) No operator may operate an unmanned aircraft under this part in
a manner that interferes with operations or traffic patterns at any
airports, heliports, seaplane bases, space launch facilities, or any
facilities used for VTOL aircraft landing and takeoffs.
Sec. 108.180 Operation in controlled airspace.
(a) Requirements. Unless otherwise authorized by the Administrator,
no operator may operate an unmanned aircraft under this part in Class
B, Class C, or Class D airspace or within the lateral boundaries of the
surface area of Class E airspace designated for an airport unless all
the following conditions are met:
(1) The operation is conducted at 400 feet above ground level or
below.
(2) The operation is conducted using an approved method for
strategic deconfliction and conformance monitoring in accordance with
the requirements of Sec. 108.190.
(b) Detect and avoid. Unless otherwise authorized by the
Administrator, no operator may operate an unmanned aircraft under this
part in Class B or C airspace unless the unmanned aircraft system is
able to detect and avoid an aircraft not broadcasting its location in
accordance with the requirements of Sec. 108.195(a)(2) or Sec. 91.225
of this chapter.
(c) Prohibition. No operator may conduct operations under this
section in any airspace designated in paragraph (d) of this section
without an authorization issued by the Administrator.
(d) Airspace Designations.
(1) Any operator operating under this part must obtain
authorization from the Administrator prior to accessing airspace
designated in FAA Order JO 7400.[XX], Unmanned Aircraft System Airspace
Designations.
(2) To maintain operational safety or security, the Administrator
may prohibit, on a temporary basis, any operator from conducting
operations under this section in certain airspace without an
authorization issued by the Administrator.
(e) Incorporation by reference.
(1) The incorporation by reference of FAA Order JO 7400.[XX],
Unmanned Aircraft System Airspace Designations, dated [TBD] was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. The approval to incorporate by
reference FAA Order JO 7400.XX is effective [Month, XX, 202X] through
[Month, XX, 202X+1]. This incorporation by reference material is
available for inspection at FAA and NARA. Contact FAA at: Rules and
Regulations Group, Federal Aviation Administration, 800 Independence
Avenue SW, Washington, DC 20591, (202) 267-8783. An electronic version
of FAA Order JO 7400.XX is available on FAA's website at www.faa.gov/air_traffic/publications. For information on the availability of this
material at NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email [email protected].
(2) Before updating FAA Order JO 7400.[XX], FAA will publish any
proposed changes to designated airspace, in full text, as proposals in
the Federal Register, unless there is good cause to forgo notice and
comment rulemaking, followed by publication of associated final rules
in the Federal Register. FAA will then integrate these updates into the
next edition of FAA Order JO 7400.[XX]. FAA will request that the
Director of the Federal Register approve the IBR of the next edition of
the order as of [MM/DD/YYYY+1].
Sec. 108.185 Operation over people.
(a) Prohibition. No operator may operate an unmanned aircraft under
this part over people except in accordance with the requirements of
this section, unless otherwise authorized by the Administrator.
(b) Open-Air Assemblies. Unless otherwise authorized by the
Administrator, no operator may operate an unmanned aircraft under this
part over open-air assemblies of persons.
(c) Operating categories. The requirements under this section
depend on the highest category of population density over which an
operation is taking place. Categories 1 through 5 are calculated using
the appropriate day or night data from Oak Ridge National Laboratory's
LandScan USA population distribution data as of August 1st of each year
determined as follows:
(1) Category 1: Farther than 1 statute mile from any cell of 10
people or higher.
(2) Category 2: Within 1 statute mile of a cell of 10 people or
higher, and not within a Category 3, 4, or 5 area.
(3) Category 3: Within 1 statute mile of a cell of 25 people or
higher, and not within a Category 4 or 5 area.
(4) Category 4: Within 0.5 statute miles of a cell of 100 people or
higher, and not within a Category 5 area.
(5) Category 5: Within 0.5 statute miles of a cell of 2,500 people
or higher.
[[Page 38370]]
(d) Operating requirements. All operations over people must avoid
operating where such operations may cause undue hazard to people on the
ground. In addition, the following requirements apply:
(1) Category 1: Operations must be conducted at least 50 feet away
from any exposed, non-participating persons, unless otherwise
authorized by the Administrator.
(2) Category 2: Operations must not be conducted using a command
and control link that utilizes radio frequency devices operating in
accordance with 47 CFR part 15.
(3) Category 3: Operators must:
(i) Meet the requirements of Category 2 operations; and
(ii) Conduct the operation using an approved method for strategic
deconfliction in accordance with the requirements of Sec. 108.190.
(4) Category 4: Operators must:
(i) Meet the requirements of Category 3 operations; and
(ii) Hold an operating certificate in accordance with subpart E.
(5) Category 5: Operators must:
(i) Meet the requirements of Category 4 operations; and
(ii) Ensure that the unmanned aircraft system is able to detect and
avoid an aircraft not broadcasting its location in accordance with the
requirements of Sec. 108.195(a)(2).
Sec. 108.190 Use of strategic deconfliction and conformance
monitoring.
(a) Unless otherwise authorized by the Administrator, the following
operations must be conducted with strategic deconfliction:
(1) Operations in controlled airspace pursuant to Sec.
108.180(a)(2).
(2) Operations in a Category 3 or higher operating category
pursuant to Sec. 108.185.
(b) Unless otherwise authorized by the Administrator, operations in
controlled airspace pursuant to Sec. 108.180(a)(2) must be conducted
with conformance monitoring.
(c) A strategic deconfliction capability must meet the following
requirements:
(1) Perform strategic conflict detection and resolution prior to
takeoff, and in relation to other unmanned aircraft operations that are
discoverable at that time; and
(2) Maintain a target average conformance to all activated
operational intents.
(d) A conformance monitoring capability must meet the following
requirements:
(1) Provide immediate alerts to operations personnel when the
unmanned aircraft exits its operational intent, consistent with
criteria or parameters established prior to takeoff; and
(2) Communicate information to other airspace users and FAA about
the alert in paragraph (d)(1) of this section via a means acceptable to
the Administrator.
(e) Unless otherwise authorized by the Administrator, the
requirements in paragraphs (a) and (b) must be achieved through
operational use of an authorized service provided by an appropriately
certificated automated data service provider under part 146 of this
chapter.
Sec. 108.195 Operation near aircraft; low altitude right-of-way
rules.
(a) Unless operating in a shielded area as specified in Sec.
108.205, each operator of an unmanned aircraft must yield the right-of-
way to all aircraft--
(1) departing from or arriving at an airport or heliport; or
(2) equipped and broadcasting their aircraft's location using--
(i) ADS-B Out equipment that meets the design and performance
requirements of Sec. 91.227 of this chapter; or
(ii) Electronic conspicuity equipment that broadcasts a signal on
Universal Access Transceiver Operating on the Radio Frequency 978
Megahertz, containing the following information, in a message format
that meets the requirements of Sec. 91.227 of this chapter. For the
purposes of this paragraph, the definitions from Sec. 91.227 are used:
(A) An indication of the aircraft's latitude and longitude
(B) An indication of the aircraft's geometric altitude
(C) An indication of the aircraft's velocity
(D) An indication of the aircraft assigned ICAO 24-bit address,
except when the pilot has not filed a flight plan, has not requested
ATC services, and is using a TSO-C154c or TSO-C154d self-assigned
temporary 24-bit address
(E) A Navigation Integrity Category value of less than 0.5 nm
(F) A System Design Assurance value of <1 x 10[supcaret]-3 per
flight hour
(G) A Source Integrity Level (SIL) value of <1 x 10[supcaret]-3 per
flight hour or sample
(b) When yielding right-of-way, the unmanned aircraft may not pass
over, under, or ahead of the aircraft being yielded to unless at a safe
distance. Safe distance must be determined in accordance with a method
acceptable to the Administrator.
Sec. 108.200 Operational status broadcast.
(a) Remote Identification. Unless otherwise authorized by the
Administrator, no operator may operate an unmanned aircraft under this
part unless all the following requirements are met:
(1) Standard remote identification. The unmanned aircraft must meet
the requirements for a standard remote identification unmanned aircraft
under part 89 of this chapter.
(2) Message Elements. The unmanned aircraft must be capable of
broadcasting the message elements required under Sec. 89.305 of this
chapter except that the control station location as required under
Sec. 89.305(b) and (c) is not required if the unmanned aircraft is
being operated without a flight coordinator in accordance with Sec.
108.310.
(3) Additional operational message elements. In addition to the
message elements required under paragraph (a)(2) of this section, the
unmanned aircraft remote identification message must include the
following message elements:
(i) A status which indicates whether the unmanned aircraft is being
operated beyond visual line of sight.
(ii) A status which indicates that the unmanned aircraft is being
operated without a flight coordinator in accordance with Sec. 108.310,
if applicable.
(iii) The takeoff location of the unmanned aircraft.
(4) Range of broadcast. The remote identification message including
the operational status must be broadcast from the unmanned aircraft at
a range sufficient to provide situational awareness to others in the
vicinity of the unmanned aircraft.
(b) Means of compliance. A standard remote identification unmanned
aircraft used for operations under this part must meet the requirements
of an FAA-accepted means of compliance for standard remote
identification that includes the operational status message element
described in this section.
Sec. 108.205 Operation in shielded areas.
No operator may operate an unmanned aircraft as a shielded
operation except in areas where no manned aircraft are expected to
operate. Shielded areas include--
(a) Areas within 50 feet of powerlines and substations, railroad
tracks, bridges, and pipelines, when permission from the infrastructure
owner is obtained; or
(b) Any other area designated by the Administrator.
Sec. 108.210 Operation of multiple unmanned aircraft.
(a) An operator may only conduct operations at an unmanned
aircraft-to-flight coordinator ratio of 1:1, except in
[[Page 38371]]
accordance with a method acceptable to the Administrator.
(b) When operations are conducted at an unmanned aircraft-to-flight
coordinator ratio greater than 1:1 in accordance with paragraph (a) of
this section, an operator may not allow a flight coordinator to
operate, monitor, or otherwise be responsible for the operations of
more unmanned aircraft than the flight coordinator is capable of
handling during normal, abnormal, and emergency conditions, determined
in a method acceptable to the Administrator.
(c) Pursuant to paragraph (a) of this section, an operator may only
conduct operations at an unmanned aircraft-to-flight coordinator ratio
equal to or less than what the manufacturer has specified in the
operating instructions.
Sec. 108.215 Emergency conditions.
(a) An operator may request deviation authority from FAA from any
current authorizations or limitations for the protection of life or
property if those conditions necessitate the expeditious conduct of
those operations.
(b) In an in-flight emergency requiring immediate action, the
flight coordinator may deviate from any rule of this part to the extent
required to meet that emergency.
(c) The operator must comply with the reporting requirements in
Sec. 108.45(f) of this part following any emergency deviation.
Sec. 108.220 Unmanned aircraft flight restriction.
No operator may operate an unmanned aircraft under this part within
an unmanned aircraft flight restriction established in accordance with
part 74 of this chapter, unless allowed pursuant to part 74, as
appropriate.
SUBPART C--Operations Personnel
Sec. 108.300 General.
(a) Operations personnel includes persons identified by the
operator in the company operations manual as persons required for the
safe operation of the unmanned aircraft and its associated elements,
including, but not limited to, performing the following roles or
tasks--
(1) Operations supervisor;
(2) Flight coordinator;
(3) Unmanned aircraft maintenance or alterations;
(4) Ground handling;
(5) Loading and unloading of the unmanned aircraft;
(6) Servicing or upkeep of systems, including associated elements,
or
(7) Establishing flight paths, emergency procedures, and
operational parameters.
(b) No operator may allow a person to perform multiple roles
concurrently if doing so could affect the safety of the operation.
Sec. 108.305 Operations supervisor.
(a) Each operator must have one or more persons serving in the role
of an operations supervisor who is qualified through training,
experience, or expertise.
(b) The operator must notify FAA within 10 days of any change in
personnel assigned to the operations supervisor position.
(c) The person who serves as the operations supervisor must--
(1) Be knowledgeable of the company policies and procedures; and
(2) To the extent of their responsibilities, have a full
understanding of the following material with respect to the operation--
(i) Aviation safety standards and safe operating practices;
(ii) Practices for maintaining a secure facility and operations
area; and
(iii) The regulatory requirements of this part.
Sec. 108.310 Flight coordinator.
(a) If the manufacturer's operating instructions require a flight
coordinator, the operator must designate a flight coordinator prior to
each flight.
(b) No operator may allow a person to direct an unmanned aircraft
during flight unless that person is appropriately qualified and
authorized by the operator as a flight coordinator, except as provided
in paragraph (e) of this section for the purpose of obtaining operating
experience.
(c) The operator may transfer control from one flight coordinator
to another flight coordinator during flight if the operator has
appropriate handoff procedures in its company operations manual.
(d) Operations personnel assigned as flight coordinator must--
(1) Take appropriate actions to prevent the unmanned aircraft from
posing undue hazard to people, aircraft, or property, within their
control; and
(2) Maintain situational awareness of the unmanned aircraft and
direct the unmanned aircraft to maintain compliance with the applicable
provisions of this chapter.
(e) No operator may allow a person to serve as a flight coordinator
of any unmanned aircraft under this part unless that person has at
least 5 hours of operating experience in the specific make and model of
unmanned aircraft to be operated. The operating experience must be
acquired under the direct supervision of--
(1) A fully qualified flight coordinator;
(2) An operations supervisor; or
(3) A person qualified and designated by the operator to ensure
operations personnel are appropriately trained.
(f) No operator may allow a person to continue to serve as a flight
coordinator of any unmanned aircraft unless, within the preceding 12
calendar months, that person has served as the flight coordinator for
at least 5 hours of operating experience of an unmanned aircraft of the
same make and model in which that person is to serve.
(g) If a flight coordinator's recency of experience lapses, they
must be requalified by the operator prior to performing the duties of a
flight coordinator for that make and model of unmanned aircraft.
Sec. 108.315 Personnel knowledge and training.
(a) Each operator must ensure that all operations personnel have
completed the applicable training required under this part and that
they possess the knowledge and skills required to conduct their duties
specific to their areas of responsibility safely.
(b) All operations personnel must have general knowledge and skills
training relevant to their areas of responsibility that covers the
following subject areas, as applicable:
(1) Regulations relating to flight operations under this part.
(2) Airspace classification, operating requirements, and flight
restrictions affecting unmanned aircraft operations.
(3) Aviation weather sources and effects of weather on unmanned
aircraft performance.
(4) Crew resource management.
(5) Communication procedures.
(6) Safe distance criteria.
(7) Principles of strategic deconfliction and conformance
monitoring.
(8) Determining the performance of unmanned aircraft.
(9) Physiological effects of drugs and alcohol.
(10) Aeronautical decision-making and judgment.
(11) Airport and heliport operations.
(12) Operations at night.
(13) Assignment and transfer of control.
(14) Beyond visual line of sight operation strategic and tactical
risk mitigation strategies and approaches.
(15) Multi-aircraft operations.
(16) Command and control system characteristics, functionality, and
spectrum considerations.
[[Page 38372]]
(17) Contingency management and UA recovery procedures.
(18) Population density considerations.
(19) Air traffic control procedures.
(c) All operations personnel must have knowledge and skills
training specific to the make and model of unmanned aircraft to be
operated relevant to their areas of responsibility that covers the
following subject areas, as applicable:
(1) Unmanned aircraft general and operating limitations.
(2) System configuration and setup.
(3) Normal and abnormal procedures.
(4) Emergency procedures.
(5) Ground handling.
(6) Loading.
(7) Maintenance and inspection procedures.
(8) Preflight procedures.
(9) Navigation systems appropriate to the operation.
(10) Detect and avoid procedures.
(11) Lost link procedures.
(12) Operations of multiple unmanned aircraft.
(d) The training required under paragraphs (b) and (c) of this
section must have been accomplished within the previous 24 calendar
months for any operations personnel to conduct the assigned
responsibilities in the listed subject areas. If such training is
completed in the calendar month before or after the month in which that
training is required, the person is considered to have completed it in
the calendar month in which it was required.
Sec. 108.320 Medical condition.
No person may serve or attempt to serve, and no operator may allow
or continue to allow a person to serve, in an operations personnel
position if the person or the operator knows or has reason to know the
person has a physical or mental condition that would interfere with the
safe operation of the unmanned aircraft or make the person unable to
perform the duties required of their position safely.
Sec. 108.325 Alcohol or drugs.
(a) No person may serve or attempt to serve in an operations
personnel position--
(1) Within 8 hours after the consumption of any alcoholic beverage;
(2) While under the influence of alcohol;
(3) While using any drug that affects the person's faculties in any
way contrary to safety; or
(4) While having an alcohol concentration of 0.04 or greater in a
blood or breath specimen. Alcohol concentration means grams of alcohol
per deciliter of blood or grams of alcohol per 210 liters of breath.
(b) During any period in which a person is serving, ready to serve,
or immediately available to serve in an operations personnel position,
the person must, on request of a law enforcement officer, submit to a
test to indicate the alcohol concentration in the blood or breath, or
the presence of any drugs in the body, when--
(1) The law enforcement officer is authorized under State or local
law to conduct the test or to have the test conducted; and
(2) The law enforcement officer is requesting submission to the
test to investigate a suspected violation of State or local law
governing the same or substantially similar conduct prohibited by
paragraph (a) of this section.
(c) Whenever FAA has a reasonable basis to believe that a person
may have violated paragraph (a) of this section and on request of the
Administrator, that person must furnish to FAA the results of any
alcohol or drug test in their possession taken within 4 hours after
serving or attempting to serve in an operations personnel position, or
authorize any clinic, hospital, or doctor, or other person or entity to
release the results to FAA.
(d) No operator may allow or continue to allow a person to serve in
an operations personnel position when--
(1) The operator has actual knowledge that the person is in
violation of paragraph (a);
(2) The person refuses to test in accordance with paragraph (b) of
this section; or
(3) The person refuses to furnish or authorize the release of test
results requested by the Administrator in accordance with paragraph (c)
of this section.
Sec. 108.330 Duty and rest requirements.
(a) Operations personnel are limited to a maximum 14-hour duty day,
and to a maximum 50-hour duty week.
(b) Operations personnel must take a minimum 10-hour continuous
rest period within the 24 hours prior to reporting for duty.
(c) Operations personnel must receive a minimum of one day of
continuous rest, free of all responsibility for work or duty on behalf
of the operator, per week, each week in which the operator schedules
them for duty.
Sec. 108.335 Security threat assessment for certain personnel.
(a) Except as provided in paragraph (c) of this section, a covered
person described in paragraph (b) of this section must undergo a
Transportation Security Administration (TSA) security threat assessment
(STA) consistent with the standards set forth in 49 CFR 1572.103
through 1572.107 and the procedures in 49 CFR 1572.9 through 1572.11,
before conducting the described functions or allowed the specified
access. A covered person is excepted from completing a new STA if they
hold an STA or security clearance TSA deems comparable to the STA
required in this paragraph.
(b) For purposes of this section, a covered person is an
individual:
(1) Who performs the functions of an operations supervisor
described in Sec. 108.305;
(2) Who performs the functions of a flight coordinator described in
Sec. 108.310;
(3) With unescorted access to the aircraft;
(4) With unescorted access to the cargo loaded for transport on the
aircraft; or
(5) Who has access to the control, or the flightpath, of the
aircraft.
(c) Applicants for operating permits or certificates must make a
positive declaration in their application that covered persons have
successfully completed the STA required in paragraph (a)(1) or (b) of
this section and provide documentation substantiating such declaration.
(d) The covered person must renew their TSA STA according to the
renewal life cycle of their selected mode of vetting.
(e) If the covered person does not renew the STA, or if TSA revokes
the covered person's STA, the applicant must remove that person from
the position and update their application accordingly.
(f) Failure to remove a covered person who does not hold a valid
TSA STA consistent with this section may result in revocation of the
operating permit or operating certificate, as applicable.
(g) A covered person may seek redress for an adverse STA using the
procedures
Subpart D--Permitted Operations
Sec. 108.400 Operations under a permit.
(a) Operators may conduct the following operations using an FAA-
issued operating permit in accordance with this subpart:
(1) Package delivery.
(2) Agriculture.
(3) Aerial surveying.
(4) Civic interest.
(5) Unmanned aircraft operations training.
(6) Demonstration.
(7) Recreational.
(8) Flight test.
[[Page 38373]]
(b) Operators must conduct operations under an operating permit in
compliance with the requirements of this part and in accordance with
any authorizations and limitations associated with that permit.
(c) The Administrator may authorize any other type of operation
that does not fall under one of the categories listed in paragraph (a)
of this section.
(d) Operators are prohibited from transporting hazardous materials
as defined in 49 CFR 171.8 with an operating permit unless operating in
accordance with 49 CFR 175.9(b).
(e) Except for flight test permits, an operator may only hold one
permit per type of operation listed in paragraph (a) of this section.
(f) Operators are limited to the types of operations that are
prescribed by the manufacturer in the operating instructions in
accordance with Sec. 108.720.
Sec. 108.405 Applications for operating permits.
(a) An applicant for an operating permit must provide an
application for an operating permit to FAA in a form and manner
acceptable to the Administrator.
(b) The applicant must describe the operation it seeks to conduct
under this part. The application includes questions, data, and
documentation requests that verify the applicant's ability to operate
in compliance with the applicable requirements of this part. The
application must include the following:
(1) The applicant's name and contact information (physical address,
email address, telephone number, and name of individual who serves as
the point of contact).
(2) Address of the principal base of operations, if different from
the address provided for contact information, in accordance with Sec.
108.30.
(3) Name of the individual(s) who serve(s) as operations
supervisor, in accordance with Sec. 108.305, unless operating under a
recreational permit in accordance with Sec. 108.475.
(4) The intended type of UAS operation(s), in accordance with Sec.
108.400(a).
(5) The intended area(s) of operations, in accordance with Sec.
108.165.
(6) Company manual(s), as required under Sec. 108.135.
(7) A recordkeeping process as required under Sec. 108.40.
(8) Operator reporting procedures, as required under Sec. 108.45.
(9) The type(s) of unmanned aircraft to be used in operations, that
comply with the requirements of Sec. 108.105.
(10) Additional information the Administrator may determine is
necessary to evaluate the application.
Sec. 108.410 Duration of permits.
(a) Unless surrendered, suspended, or revoked earlier, a permit
issued under this part expires at the end of the 24 months from the
month in which it is issued.
(b) Applications for new permits must be made in a form and manner
acceptable to the Administrator and submitted sufficiently in advance
to allow adequate processing times to prevent lapses of approval.
(c) Application for new permits may be made up to 120 days in
advance of the expiration date of the exiting permit. New permits
issued during this time period will be valid for a period of 2 years
beyond the expiration date of the existing permit.
(d) Permits issued under this part are non-transferrable.
Sec. 108.415 Issuance of an operating permit.
(a) The Administrator will evaluate an application for an operating
permit and may request additional information, documentation, or
demonstration as needed, to supplement the application.
(b) FAA will issue the operating permit if the Administrator finds
the applicant has demonstrated its ability to comply with the
applicable requirements of this part through the application process.
(c) An FAA-issued operating permit includes the following
information:
(1) The operator's name.
(2) The location of the operator's principal base of operations.
(3) The permit number.
(4) The effective date of the permit.
(5) The expiration date of the permit.
(6) Type of operation.
Sec. 108.420 Denial, suspension, or revocation of operating permits.
An application for an operating permit may be denied, or an
operating permit may be suspended or revoked, if the Administrator
finds that--
(a) The applicant or operator does not meet the requirements of
this part;
(b) The applicant or operator is not properly or adequately
equipped or is not able to conduct safe operations under this part;
(c) The applicant or operator previously held an operating permit,
operating certificate, or any other FAA certificate which was revoked;
(d) The applicant or operator intends to fill or fills a key
management position listed in Sec. 108.300 with an individual who
exercised control over or who held the same or similar position with an
operator whose permit or certificate was revoked, or is in the process
of being revoked, and that individual materially contributed to the
circumstances causing revocation of the certificate or permit or
causing the revocation process of the certificate or permit;
(e) An individual who will have control over or have a substantial
ownership interest in the operator had the same or similar control or
interest in an operator whose certificate was revoked, or is in the
process of being revoked, and that individual materially contributed to
the circumstances causing revocation or causing the revocation process;
or
(f) The applicant or operator engaged in any violation of this
part.
Sec. 108.425 Amendment of permits.
(a) The Administrator may amend any permit or any FAA
authorizations and limitations issued under this part if--
(1) The Administrator determines that, under 49 U.S.C. 44709 and
part 13 of this chapter, safety and public interest requires the
amendment; or
(2) The operator applies for the amendment and the Administrator
determines that safety and public interest allows the amendment.
(b) When the Administrator proposes to issue an order amending,
suspending, or revoking all or part of any certificate, the procedure
in Sec. 13.19 of this chapter applies.
(c) The operator may request to amend an operating permit issued
under this part by revising an application submitted in accordance with
Sec. 108.405.
(d) Within 30 days of receiving an amendment initiated by the
Administrator, or a denial of an operator's application for amendment,
the operator may petition the Administrator to reconsider the amendment
or denial.
Sec. 108.430 Display of permit.
No operator may operate an unmanned aircraft under this subpart
unless evidence of having a valid permit under which the operation is
conducted is available at the point of unmanned aircraft operations
control and presented upon the request of the Administrator or any
Federal, State, or local law enforcement officer.
Sec. 108.435 Cybersecurity.
(a) Each operator must develop and implement cybersecurity policies
and processes, in order to protect networks, devices, and data from
unauthorized access and to ensure integrity, accuracy, and reliability
of the operations.
(b) The cybersecurity policy required under this section must
include, at a minimum, processes for--
[[Page 38374]]
(1) Protecting software, hardware, and network computing
infrastructure necessary to protect operations from unauthorized
access;
(2) Ensuring the operator's employee network access privileges are
limited to those necessary to fulfill normal job duties;
(3) Preparing for, responding to, and mitigating the impact of
cyber-attacks; and
(4) Ensuring access privileges are turned off and removed for
former employees.
(c) The operator must review the cybersecurity policies at least
annually and revise or update as necessary to reflect changing
circumstances.
Sec. 108.440 Package delivery operations.
(a) Except as provided in subpart E, no operator may conduct
package delivery operations with an unmanned aircraft under this part
without, or in violation of, a package delivery permit issued in
accordance with this subpart.
(b) Operators performing package delivery under this subpart must
ensure any person performing or directly supervising any of the
following job functions involving any item for transport on board an
unmanned aircraft: acceptance, rejection, handling, storage incidental
to transport, packaging of company materials, or loading--
(1) Has initial and recurrent training in the recognition of
hazardous materials acceptable to the administrator; and
(2) Completes hazardous materials recognition training every 24
calendar months.
(c) Operators must ensure that the payload in, on, or suspended
from the unmanned aircraft is properly secured and does not adversely
affect the flight characteristics or controllability of the unmanned
aircraft.
(d) The operator must provide information about the delivery method
to each customer and provide the customer instructions to remain clear
of the unmanned aircraft during delivery by a distance sufficient to
minimize the risk of injury.
(e) The operator must ensure proposed delivery areas are free of
any obstructions that could pose a hazard.
(f) Package delivery operations must be conducted with fewer than
100 active unmanned aircraft, including those directly under the
control of the operator, or conducted through lease agreements with
other persons, subcontractors, or subsidiaries.
(g) The unmanned aircraft, and anything attached to or carried by
the unmanned aircraft, must not have a combined total weight greater
than 55 pounds.
(h) Operations are limited to Category 3 population density areas
or lower, in accordance with Sec. 108.185.
(i) Operators must request and obtain a limited security program
from the Transportation Security Administration under 49 CFR
1544.101(g) before conducting unmanned aircraft system operations.
Sec. 108.445 Agricultural operations.
(a) Except as provided in subpart E in this part, no operator may
conduct agricultural operations involving aerial seeding, dusting,
spraying, fertilizing, crop improvement, or pest control with an
unmanned aircraft under this part without, or in violation of, an
agriculture permit issued in accordance with this subpart.
(b) Operations must be conducted with fewer than 10 active unmanned
aircraft either directly under the control of the operator, through
lease agreements with other persons, subcontractors, or subsidiaries.
(c) Unmanned aircraft and anything attached to or carried by the
unmanned aircraft must not have a combined total weight greater than
1,320 pounds.
(d) Dispensing operations must not be conducted directly over
people, unless otherwise authorized by the Administrator.
(e) Operations are limited to Category 1 population density areas,
in accordance with Sec. 108.185, unless otherwise authorized by the
Administrator.
(f) No operator may dispense, or cause to be dispensed, from an
unmanned aircraft, any material or substance in a manner that creates a
hazard to persons or property on the surface.
(g) No operator may dispense, or cause to be dispensed, from an
unmanned aircraft, any economic poison that is registered with the U.S.
Department of Agriculture under the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 135-135k)--
(1) For a use other than that for which it is registered;
(2) Contrary to any safety instructions or use limitations on its
label; or
(3) In violation of any Federal, State, or local law or regulation.
(h) Paragraph (g) of this section does not apply to any person
dispensing economic poisons for experimental purposes under--
(1) The supervision of a Federal or State agency authorized by law
to conduct research in the field of economic poisons; or
(2) A permit from the U.S. Department of Agriculture issued
pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. 135 and 135k).
(i) Operators conducting agricultural operations under this subpart
must have and keep current a comprehensive training program that is
tailored for their proposed operation and contains, at a minimum:
(1) Steps to be taken before starting operations, including survey
of the area to be worked.
(2) Safe handling and storage of economic poisons and the proper
disposal of used containers for those poisons.
(3) The general effects of economic poisons and agricultural
chemicals on plants, animals, and persons, with emphasis on those
normally used in the areas of intended operations; and the precautions
to be observed in using poisons and chemicals.
(4) Primary symptoms of poisoning of persons from economic poisons,
the appropriate emergency measures to be taken, and the location of
poison control centers.
(5) Performance capabilities and operating limitations of the
unmanned aircraft to be used.
(6) Safe flight and application procedures.
(j) Operators must ensure that all operations personnel supervising
or participating in an agricultural unmanned aircraft operation have
satisfactorily completed the operators training program required
pursuant to paragraph (i) of this section.
Sec. 108.450 Aerial surveying operations.
(a) Except as provided in subpart E, no operator may conduct
photography, videography, mapping, inspecting, or patrolling operations
with an unmanned aircraft under this part without, or in violation of,
an aerial surveying permit issued in accordance with this subpart.
(b) Operations must be conducted with fewer than 25 active unmanned
aircraft either directly under the control of the operator, through
lease agreements with other persons, subcontractors, or subsidiaries.
(c) Unmanned aircraft and anything attached to or carried by the
unmanned aircraft must not have a combined total weight greater than
110 pounds.
(d) Operations are limited to Category 3 population density areas
or lower, in accordance with Sec. 108.185.
Sec. 108.455 Civic interest operations.
(a) Except as provided in subpart E of this part, no operator may
conduct operations in support of civic interest with an unmanned
aircraft under this part without, or in violation of, a civic
[[Page 38375]]
interest permit issued in accordance with this subpart. Civic interest
operations consist of--
(1) Forest and wildlife conservation, including wildfire recovery,
wildlife conservation, and tracking climate change; and
(2) Operations in support of public safety, including fire,
accident, and disaster response where the operator has coordinated and
deconflicted operations with the law enforcement or government
emergency management agency responsible for the incident response in
advance and throughout the duration of the operation.
(b) Operations must be conducted with fewer than 25 active unmanned
aircraft either directly under the control of the operator, through
lease agreements with other persons, subcontractors, or subsidiaries.
(c) Unmanned aircraft and anything attached to or carried by the
unmanned aircraft must not have a combined total weight greater than
110 pounds.
(d) Operations must be conducted by an entity contracted to a
Federal, State, local, Tribal, or territorial government for the
performance of the civic interest operation.
(e) Operations are limited to Category 3 population density areas
or lower, in accordance with Sec. 108.185, unless otherwise authorized
by the Administrator.
(f) Notwithstanding the restrictions in paragraphs (e) of this
section and Sec. 108.185, operations may be conducted over any
population density to the extent necessary to safeguard lives in
imminent threat.
Sec. 108.460 Unmanned aircraft operations training.
(a) No operator may conduct unmanned aircraft operations training
with an unmanned aircraft under this part without, or in violation of,
an unmanned aircraft operations training permit issued in accordance
with this subpart except that an unmanned aircraft operations training
related to another permit type may be conducted under that permit. If
unmanned aircraft operations training is conducted under a permit for
another type of operation, the requirements of that permit apply to the
unmanned aircraft operations training in the same manner and to the
same extent as they apply to the operation itself.
(b) Unmanned aircraft and anything attached to or carried by the
unmanned aircraft must not have a combined total weight greater than
1,320 pounds, unless otherwise authorized by the Administrator.
(c) Operations must be conducted with fewer than 10 active unmanned
aircraft either directly under the control of the operator, through
lease agreements with other persons, subcontractors, or subsidiaries,
unless otherwise authorized by the Administrator.
(d) Operations are limited to Category 1 population density areas,
in accordance with Sec. 108.185, unless otherwise authorized by the
Administrator.
Sec. 108.465 Demonstration operations.
(a) No operator may conduct aerial performances such as air races,
air shows, sales demonstrations, and exhibitions or the practice and
preparations for related events, with an unmanned aircraft under this
part without, or in violation of, a demonstration permit issued in
accordance with this subpart.
(b) Operations must be conducted with fewer than 50 active unmanned
aircraft, unless otherwise authorized by the Administrator.
(c) Unmanned aircraft and anything attached to or carried by the
unmanned aircraft must not have a combined total weight greater than
110 pounds, unless otherwise authorized by the Administrator.
(d) Operations are limited to Category 2 population density areas
or lower, in accordance with Sec. 108.185, unless otherwise authorized
by the Administrator.
(e) Operations must be conducted at least 500 feet away from any
non-participating persons, unless otherwise authorized by the
Administrator.
Sec. 108.470 Flight test operations.
(a) No operator may conduct operations involving flight tests of
new unmanned aircraft designs, modifications, or other development-
related operations with an unmanned aircraft under this part without,
or in violation of, a flight test permit issued in accordance with this
subpart.
(b) Flight test operations may only be conducted by unmanned
aircraft manufacturers qualified under subpart G of this part or
accredited educational institutions.
(c) Operations are limited to Category 1 population density areas,
in accordance with Sec. 108.185, unless otherwise authorized by the
Administrator.
(d) Unmanned aircraft and anything attached to or carried by the
unmanned aircraft must not have a combined total weight greater than
1,320 pounds, unless otherwise authorized by the Administrator.
(e) Section 108.105(a) does not apply to operations conducted under
a flight test permit.
Sec. 108.475 Recreational permit operations.
(a) No person may conduct non-commercial or recreational operations
with an unmanned aircraft under this part without, or in violation of,
a recreational permit issued in accordance with this subpart.
(b) Operations are limited to Category 3 population density areas
or lower, in accordance with Sec. 108.185.
(c) Unmanned aircraft and anything attached to or carried by the
unmanned aircraft must not have a combined total weight greater than 55
pounds, unless otherwise authorized by the Administrator.
(d) Flights must not exceed 10 nautical miles from the flight
coordinator.
(e) Operations must be conducted with only one active unmanned
aircraft.
(f) Operations under a recreational permit do not have to comply
with the following provisions of this part--
(1) The requirement to hold a company operations manual pursuant to
Sec. Sec. 108.130(a)(4) and 108.135;
(2) The experience requirements specified in Sec. 108.310(e) and
(f);
(3) The requirement to have a principal base of operations pursuant
to Sec. 108.30, except that the operator shall provide a permanent
mailing address (including ZIP code), or if the permanent mailing
address includes a post office box number, then the person's current
residential address;
(4) The requirement to designate an operations supervisor pursuant
to Sec. 108.305;
(5) The requirement to develop and implement cybersecurity policies
pursuant to Sec. 108.435; and
(6) The duty and rest requirements of Sec. 108.330.
Subpart E--Certificated Operations
Sec. 108.500 Operations under a certificate.
(a) Operators can conduct the following operations using an FAA-
issued operating certificate in accordance with this subpart:
(1) Package delivery.
(2) Agriculture.
(3) Aerial surveying.
(4) Civic interest.
(b) Operators must conduct operations with an operating certificate
in compliance with the requirements of this part and in accordance with
any authorizations and limitations associated with that certificate.
(c) Any type of operation that does not fall under one of the
categories
[[Page 38376]]
listed in paragraph (a) of this section can be authorized by the
Administrator, subject to any limitations issued by the Administrator
in conjunction with the certificate.
(d) Operators may only conduct operations for the types of
operations that are prescribed by the manufacturer in the operating
instructions in accordance with Sec. 108.720.
Sec. 108.505 Applications for operating certificates.
(a) An applicant for an operating certificate must provide an
application for an operating certificate to FAA in a form and manner
acceptable to the Administrator.
(b) The applicant must describe the operation it seeks to conduct
under this part. The application includes any questions, data,
demonstration, and documentation requests from FAA that verify the
applicant's ability to operate in compliance with the applicable
requirements of this part. The application must address the following:
(1) The applicant's name and contact information (physical address,
email address, and telephone number).
(2) Address of the principal base of operations, if different from
the address provided for contact information, in accordance with Sec.
108.30.
(3) Name of the individual who serves as operations supervisor, in
accordance with Sec. 108.305.
(4) The intended type of UAS operations, in accordance with Sec.
108.500(a).
(5) The intended area(s) of operation, in accordance with Sec.
108.165.
(6) Company manual(s), as required under Sec. 108.135.
(7) A recordkeeping plan as required under Sec. 108.40.
(8) Operator reporting procedures, as required under Sec. 108.45.
(9) The type(s) of unmanned aircraft to be used in operations that
comply with the requirements of Sec. 108.105.
(10) A training program, as required under Sec. Sec. 108.540 and
108.315.
(11) Communication and ground risk assessments, as required under
Sec. 108.550.
(12) Safety management systems, as required under Sec. 108.560.
(13) Hazardous materials procedures, information, and training
program, as required under Sec. 108.570.
(14) Procedures permitting the use of inoperative equipment,
pursuant to Sec. 108.555.
(15) Plan for complying with duty and rest requirements, pursuant
to Sec. 108.330.
(16) For those operators proposing to engage in package delivery,
documentation of their citizenship status.
(17) Additional information the Administrator may determine is
necessary to evaluate the application.
Sec. 108.510 Duration of certificates.
(a) Unless suspended or revoked, an operating certificate issued
under this part is effective until the operator surrenders it to FAA,
or the operator fails to meet the requirements of Sec. 108.530.
(b) Operating certificates issued under this part are non-
transferrable.
Sec. 108.515 Issuance of an operating certificate.
(a) The Administrator will evaluate each application for an
operating certificate and may request additional information,
documentation, or demonstration as needed, to supplement the
application.
(b) An applicant may be issued an operating certificate if the
Administrator--
(1) Finds that the applicant has demonstrated their ability to
comply with the applicable requirements of this part; and
(2) Determines the applicant is properly and adequately equipped
and can conduct safe operations.
(c) An FAA-issued operating certificate includes all the following
information:
(1) The operator's name.
(2) The location of the operator's principal base of operations.
(3) The certificate number.
(4) The effective date of the certificate.
(5) Type(s) of operations.
(d) An operator may be authorized to conduct multiple types of
operations under a single operating certificate issued under this
subpart.
Sec. 108.520 Denial, suspension, or revocation of operating
certificates.
An application for an operating certificate may be denied, or an
operating certificate may be suspended or revoked, if the Administrator
finds that--
(a) The applicant or operator does not meet the requirements of
this part;
(b) The applicant or operator is not properly or adequately
equipped or is not able to conduct safe operations under this part;
(c) The applicant or operator previously held an operating permit,
operating certificate, or any other FAA certificate which was revoked;
(d) The applicant or operator intends to or fills a key management
position listed in Sec. 108.300 with an individual who exercised
control over or who held the same or similar position with an operator
whose permit or certificate was revoked, or is in the process of being
revoked, and that individual materially contributed to the
circumstances causing revocation of the certificate or permit or
causing the revocation process of the certificate or permit;
(e) An individual who will have control over or have a substantial
ownership interest in the operator had the same or similar control or
interest in an operator whose certificate was revoked, or is in the
process of being revoked, and that individual materially contributed to
the circumstances causing revocation or causing the revocation process;
or
(f) The applicant or operator engaged in any violation of this
part.
Sec. 108.525 Amendment of certificates.
(a) The Administrator may amend any certificate or any FAA
authorizations and limitations issued under this part if--
(1) the Administrator determines that, under 49 U.S.C. 44709 and
part 13 of this chapter, safety in air commerce and the public interest
requires the amendment; or
(2) the operator applies for the amendment and the Administrator
determines that safety in the public interest allows the amendment.
(b) When the Administrator proposes to issue an order amending,
suspending, or revoking all or part of any certificate, the procedure
in Sec. 13.19 of this chapter applies.
(c) The operator may request to amend an operating certificate
issued under this part by revising an application submitted in
accordance with Sec. 108.505.
(d) Within 30 calendar days of receiving an amendment initiated by
the Administrator, or a denial of an operator's application for
amendment, the operator may petition the Administrator to reconsider
the amendment or denial.
Sec. 108.530 Recency of operation.
(a) Unless otherwise authorized by the Administrator, no operator
may conduct an operation for which it is authorized to perform under
their certificate unless the operator has conducted that operation
within the preceding 12 calendar months.
(b) If an operator does not conduct an operation for which it is
authorized within 12 calendar months, the operator must receive
authorization from FAA to resume operations. In providing authorization
to resume operations, FAA may require inspections or reexaminations to
determine whether
[[Page 38377]]
the operator remains properly and adequately equipped and able to
conduct a safe operation.
Sec. 108.535 Cybersecurity.
(a) Each operator must develop and implement cybersecurity policies
and processes, in order to protect networks, devices, and data from
unauthorized access and to ensure integrity, accuracy, and reliability
of the operations.
(b) The cybersecurity policy required under this section must
include, at a minimum, processes for--
(1) Protecting software, hardware, and network computing
infrastructure necessary to protect operations from unauthorized
access;
(2) Ensuring the operator's employee network access privileges are
limited to those necessary to fulfill normal job duties;
(3) Preparing for, responding to, and mitigating the impact of
cyber attacks;
(4) Ensuring access privileges are turned off and removed for
former employees.
(c) The operator must review the cybersecurity policies at least
annually and revise or update as necessary to reflect changing
circumstances.
Sec. 108.540 Training program.
(a) Each operator must establish and implement a training program,
acceptable to the Administrator, that satisfies the requirements of
subpart C of this part and submitted in accordance with Sec.
108.505(b)(10). The training program must include initial and recurrent
training in accordance with Sec. 108.315 that ensures operations
personnel remain proficient in each unmanned aircraft, position, and
type of operation in which they serve.
(b) The operator must ensure the training facilities, personnel,
training material, forms, instructions, and procedures used to conduct
the training required by this part are appropriate and current.
(c) The training facilities, personnel, training material, forms,
and instructions required under this section may be satisfied using
contracted personnel or services.
(d) The operator must designate a person or persons who are
responsible for ensuring, and qualified to determine, operations
personnel are appropriately trained. The designated person must certify
as to the proficiency and knowledge of the operations personnel being
trained or evaluated and that certification be made a part of the
operations person's record in accordance with Sec. 108.45.
(e) If the Administrator finds that revisions are necessary for the
continued adequacy of a training program that has been accepted, the
operator must, after notification by the Administrator, make any
changes in the program deemed necessary by the Administrator.
(f) Within 30 calendar days after the operator receives a notice
pursuant to paragraph (e) of this section, the operator may file a
petition to reconsider the notice with the Administrator. The filing of
a petition to reconsider stays the notice pending a decision by the
Administrator. If the Administrator finds that there is an emergency
that requires immediate action in the interest of safety, the
Administrator may, upon a statement of the reasons, require a change
effective without stay.
Sec. 108.545 Validation tests.
(a) Each operator must show they can conduct operations safely and
in compliance with applicable regulatory standards. Unless otherwise
authorized by the Administrator, validation tests are required--
(1) During the application process for authority to conduct
operations for an operating certificate under this subpart;
(2) For the addition of a new make or model of an unmanned aircraft
if an unmanned aircraft of the same make and model or similar design
has not been previously validated in operations under this part;
(3) For special performance or unique operational authorizations as
determined by the Administrator; and
(4) For demonstrations of operations of unmanned aircraft-to-flight
coordinator ratio greater than 1:1, in accordance with Sec. 108.210.
(b) All validation tests must be conducted under the appropriate
operating and maintenance requirements of this part that would apply if
the applicant were fully certificated.
(c) Validation tests may be performed under a temporary
authorization issued by the Administrator for the purposes of
conducting validation testing.
Sec. 108.550 Communication and ground risk assessments.
(a) Operations under this subpart must be conducted in accordance
with a communication assessment acceptable to the Administrator that
includes a command and control analysis for the area of operations, to
include coverage and availability, a monitoring plan, and lost link
procedures. This communication assessment must be submitted in
accordance with Sec. 108.505(b)(11).
(b) Operations under this subpart must be conducted in accordance
with a ground risk assessment acceptable to the Administrator that
includes pedestrian and moving vehicle analysis and consider terrain
and human-made obstacles that the operator intends to overfly. This
ground risk assessment must be submitted in accordance with Sec.
108.505(b)(11).
Sec. 108.555 Inoperative equipment.
(a) No operator may conduct an operation under this part with an
unmanned aircraft system with inoperative equipment or equipment that
has failed its initial performance checks unless all the following
requirements are met:
(1) The inoperative equipment is not--
(i) Indicated as necessary by the manufacturer of the unmanned
aircraft pursuant to the manufacturer's operating instructions;
(ii) Required by subpart H of this part; or
(iii) Required for specific operations under this part.
(2) The inoperative equipment is removed from the unmanned
aircraft, deactivated, or otherwise determined not to interfere with
the safe operation of the unmanned aircraft.
(3) A determination is made by a person who is authorized by the
operator to perform maintenance on the unmanned aircraft that the
inoperative equipment does not constitute a hazard to the unmanned
aircraft.
(4) Information identifying the inoperable equipment is made
available to the appropriate operations personnel.
(b) The operator's procedures permitting the use of inoperative
equipment must be submitted in accordance with Sec. 108.505(b)(14).
Sec. 108.560 Safety management system.
(a) General. Operators authorized to conduct operations as a
certificated operator under this subpart must develop, implement, and
keep current a safety management system that meets the requirements of
part 5 of this chapter. This safety management system must be submitted
in accordance with Sec. 108.505(b)(12).
(b) Exceptions. Organizations with a sole individual performing all
necessary operations functions in the conduct and execution related to
the safe operation of the unmanned aircraft are not required to comply
with the following provisions: Sec. Sec. 5.21(a)(4) and (5), 5.21(c),
5.23(a)(2) and (3) and (b), 5.25(b)(3) and (c), 5.27(a) and (b),
5.71(a)(7), 5.93, and 5.97(d) of this chapter.
(c) Availability. An operator must make available to the
Administrator, upon request, all necessary information
[[Page 38378]]
and data that demonstrates that the operator has a safety management
system that meets the requirements set forth in part 5 of this chapter.
Sec. 108.565 Package delivery operations.
(a) Except as provided in subpart D of this part, no operator may
conduct package delivery operations with an unmanned aircraft under
this part without, or in violation of, a package delivery certificate
issued in accordance with this subpart.
(b) Operators must ensure that the payload in, on, or suspended
from the unmanned aircraft is properly secured and does not adversely
affect the flight characteristics or controllability of the unmanned
aircraft.
(c) The unmanned aircraft, and anything attached to or carried by
the unmanned aircraft, must not have a combined total weight greater
than 110 pounds.
(d) The operator must ensure proposed delivery areas are free of
any obstructions that could pose a hazard.
(e) The operator must provide information about the delivery method
to each customer and provide the customer instructions to remain clear
of the unmanned aircraft during delivery by a distance sufficient to
minimize the risk of injury.
(f) Operators must request and obtain a limited security program
from the Transportation Security Administration under 49 CFR
1544.101(g) before conducting UAS operations.
Sec. 108.570 Hazardous materials.
(a) Each operator conducting package delivery operations under this
subpart must receive from the Administrator--
(1) An authorization permitting, or prohibiting, the acceptance,
handling, and transporting of hazardous materials; and
(2) An authorization to unload hazardous materials by releasing or
dropping such materials above ground level if the operator wishes to
conduct this type of operation.
(b) Each operator conducting package delivery operations under this
subpart must have procedures and information to assist each person
performing or directly supervising any of the following job functions
involving any item for transport on board an unmanned aircraft:
(1) Acceptance of an item for transport.
(2) Rejection of an item for transport.
(3) Handling of an item for transport.
(4) Storage incidental to transport.
(5) Packaging of an item for transport.
(6) Loading of an item for transport.
(c) The procedures and information required in paragraph (b) of
this section must include--
(1) Procedures for identifying packages that are marked or labeled
as containing hazardous materials or that show signs of containing
undeclared hazardous materials;
(2) Procedures for rejecting packages that do not conform to the
Hazardous Materials Regulations in 49 CFR parts 171 through 180 or that
appear to contain undeclared hazardous materials;
(3) Procedures for complying with the hazardous materials incident
reporting requirements of 49 CFR 171.15 and 171.16, and discrepancy
reporting requirements of 49 CFR 175.31;
(4) Procedures for complying with paragraph (d) of this section;
and
(5) For an operator with an authorization in paragraph (a)(1) of
this section to permit the acceptance, handling, and transportation of
hazardous materials, the procedures and information must also include--
(i) Procedures to ensure that packages containing hazardous
materials are properly offered and accepted in compliance with 49 CFR
parts 171 through 180;
(ii) Procedures to properly handle, store, package, load, and carry
packages containing hazardous materials on board an unmanned aircraft
in compliance with 49 CFR parts 171 through 180;
(iii) Procedures to properly handle, package, and transport
aircraft replacement parts, consumable materials, or other items
regulated by 49 CFR parts 171 through 180; and--
(iv) Procedures for compliance with the notice requirements of 49
CFR 175.33.
(d) The operator must ensure each person authorized in subpart F of
this part to maintain, repair, and alter the unmanned aircraft is
notified of whether any materials they handle are hazardous materials.
(e) Each operator conducting package delivery operations under this
subpart must establish and implement a hazardous materials training
program approved by the Administrator. The training program must be
designed to ensure that each person performing or directly supervising
any of the job functions listed in paragraph (b) of this section is
trained to comply with all applicable requirements of this subpart,
including hazardous materials package recognition, and 49 CFR parts 171
through 180.
(f) Each operator conducting package delivery operations under this
subpart must provide initial hazardous materials training and recurrent
hazardous materials training to each person performing or directly
supervising any of the job functions specified in paragraph (b) of this
section.
(g) No person, including independent contractors, subcontractors,
and direct employees of the operator, may perform or directly supervise
the job functions listed in paragraph (b) of this section on behalf of
the operator unless that person has satisfactorily completed the
initial operator's hazardous materials training program within 30 days
from the date of hire or start of a related job function, and recurrent
training every 24 calendar months thereafter.
(h) A person who has not yet satisfactorily completed the required
initial operator's hazardous materials training program within 30 days
from the date of hire or start of a related job function listed in
paragraph (b) of this section, may perform those job functions for not
more than 30 days from the date of hire or start of a related job
function, if the person is under the direct visual supervision of a
person who is authorized by the operator to supervise that person and
who has successfully completed the operator's FAA-approved initial or
recurrent training program within the past 24 months.
(i) Each operator using a person under the exception in paragraph
(h) of this section must maintain a record for that person. The records
must be available upon request at the location where the trained person
performs or directly supervises the job function specified in paragraph
(b) of this section. The record must include--
(1) A signed statement from an authorized representative of the
operator authorizing the use of the person in accordance with the
exception;
(2) The date of hire or change in job function;
(3) The person's name and assigned job function;
(4) The name of the supervisor of the job function; and
(5) The date the person is to complete hazardous materials training
in accordance with the operator's approved hazardous materials training
program.
(j) An operator that uses or assigns a person to perform or
directly supervise a job function specified in paragraph (b) of this
section, when that person also performs or directly supervises the same
job function for another package delivery operator under this subpart,
part 121 certificate holder, or part 135 certificate holder, need only
train that person in its own policies and
[[Page 38379]]
procedures regarding those job functions, if all of the following are
met:
(1) The operator using this exception receives written verification
from the person designated to hold the training records representing
the other package delivery operator, part 121 certificate holder, or
part 135 certificate holder that the person has satisfactorily
completed hazardous materials training for the specific job function
under the other package delivery operator, part 121 certificate holder,
or part 135 certificate holder's FAA approved hazardous material
training program.
(2) The package delivery operator, part 121 certificate holder, or
part 135 certificate holder who trained the person has the same part
108 authorization in paragraph (a) of this section, equivalent part 121
operations specification, or equivalent part 135 operations
specifications regarding the acceptance, handling, and transport of
hazardous materials as the operator using this exception.
(k) A person who satisfactorily completes recurrent hazardous
materials training in the calendar month before, or the calendar month
after, the month in which the recurrent training is due, the subsequent
calendar renewal month will remain the same. If the person completes
this training earlier than the month before it is due, the month of the
completion date becomes their new anniversary month.
(l) Each operator must develop and maintain processes to conduct
safety risk assessments, as outlined in Sec. 5.55 of this chapter, in
support of an authorization or amendments thereto, permitting the
acceptance, handling, and transportation of hazardous materials in
paragraph (a)(1) of this section and, when appropriate, the
authorization in paragraph (a)(2) of this section. Safety risk
assessments must be submitted to FAA and be acceptable to the
Administrator. Safety risk assessments must also be inclusive of risks
to people and property on the ground resulting from the carriage of
hazardous materials.
Sec. 108.575 Agricultural operations.
(a) Except as provided in subpart D of this part, no operator may
conduct agricultural operations with an unmanned aircraft under this
part without, or in violation of, a certificate issued in accordance
with this subpart. Agricultural operation means the operation of an
aircraft for the purpose of--
(1) Dispensing any economic poison;
(2) Dispensing any other substance intended for plant nourishment,
soil treatment, propagation of plant line, or pest control; or
(3) Engaging in dispensing activities directly affecting
agriculture, horticulture, or forest preservation, but not including
the dispensing of live insects.
(b) Dispensing operations must not be conducted directly over
people, unless otherwise authorized by the Administrator.
(c) Operations are limited to Category 3 population density areas
or lower, in accordance with Sec. 108.185, unless otherwise authorized
by the Administrator.
(d) No operator may dispense, or cause to be dispensed, from an
unmanned aircraft, any material or substance in a manner that creates a
hazard to persons or property on the surface.
(e) No operator may dispense, or cause to be dispensed, from an
unmanned aircraft, any economic poison that is registered with the U.S.
Department of Agriculture under the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 135 and 135k)--
(1) For a use other than that for which it is registered;
(2) Contrary to any safety instructions or use limitations on its
label; or
(3) In violation of any Federal, State, or local law or regulation.
(f) Paragraph (e) of this section does not apply to any operator
dispensing economic poisons for experimental purposes under--
(1) The supervision of a Federal or State agency authorized by law
to conduct research in the field of economic poisons; or
(2) A permit from the U.S. Department of Agriculture issued
pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. 135 and 135k).
(g) Operators conducting agricultural operations under this subpart
must have and keep current a comprehensive training program that is
tailored for their proposed operation and contains, at a minimum--
(1) Steps to be taken before starting operations, including survey
of the area to be worked;
(2) Safe handling and storage of economic poisons and the proper
disposal of used containers for those poisons;
(3) The general effects of economic poisons and agricultural
chemicals on plants, animals, and persons, with emphasis on those
normally used in the areas of intended operations; and the precautions
to be observed in using poisons and chemicals;
(4) Primary symptoms of poisoning of persons from economic poisons,
the appropriate emergency measures to be taken, and the location of
poison control centers;
(5) Performance capabilities and operating limitations of the
unmanned aircraft to be used; and
(6) Safe flight and application procedures.
(h) Operators must ensure that all operations personnel supervising
or participating in an agricultural unmanned aircraft operation have
completed the operator's training program required pursuant to
paragraph (g) of this section.
Sec. 108.580 Aerial surveying operations.
(a) Except as provided in subpart D of this part, no operator may
conduct photography, videography, mapping, inspecting, or patrolling
operations with an unmanned aircraft under this part without, or in
violation of, an aerial surveying certificate issued in accordance with
this subpart.
(b) Operations at a gross weight of more than 110 pounds are
limited to Category 4 population density areas or lower, in accordance
with Sec. 108.185, unless otherwise authorized by the Administrator.
Sec. 108.585 Civic interest operations.
(a) Except as provided in subpart D of this part, no operator may
conduct operations in support of civic interest with an unmanned
aircraft under this part without, or in violation of, a civic interest
certificate issued in accordance with this subpart. Operations in the
civic interest operations consists of--
(1) Forest and wildlife conservation, including wildfire recovery,
wildlife conservation, and tracking climate change; and
(2) Operations in support of public safety, including fire,
accident, and disaster response where the operator has coordinated and
deconflicted operations with the law enforcement or government
emergency management agency responsible for the incident response in
advance and throughout the duration of the operation.
(b) Operations must be conducted by an entity contracted to a
Federal, State, local, Tribal, or territorial government for the
performance of the civic interest operation.
(c) Operations at a gross weight of more than 110 pounds are
limited to Category 4 population density areas or lower, in accordance
with Sec. 108.185, unless otherwise authorized by the Administrator.
(d) Notwithstanding the restrictions in paragraph (c) of this
section and
[[Page 38380]]
Sec. 108.185, operations may be conducted over any population density
to the extent necessary to safeguard lives in imminent threat.
Subpart F--Maintenance and Alterations
Sec. 108.600 General.
(a) This subpart prescribes rules for the maintenance and
alterations of unmanned aircraft systems operating under this part.
(b) This subpart does not apply to--
(1) The maintenance or alterations of automated data service
provider equipment approved under part 146 of this chapter;
(2) The maintenance or alteration of an unmanned aircraft and its
associated elements that is operated and maintained in accordance with
parts 43 and 91 of this chapter; or
(3) The maintenance or alterations of associated elements not under
the direct control of the operator.
Sec. 108.605 Persons performing maintenance and alterations.
No person may perform maintenance or alteration to an unmanned
aircraft system with an airworthiness acceptance until the operator
has--
(a) Determined the person is qualified, through basic skills and
knowledge obtained in accordance with Sec. 108.315 to perform the
maintenance or alteration; and
(b) Authorized the person to perform the maintenance or alteration.
Sec. 108.610 Unmanned aircraft maintenance.
(a) Each operator authorizing or performing maintenance on unmanned
aircraft system must ensure the methods, techniques, and practices
prescribed in the unmanned aircraft manufacturer's maintenance
instructions, as provided in Sec. 108.720(a)(2), are used and ensure
the unmanned aircraft system remains in a condition for safe operation.
(b) Each operator of an unmanned aircraft must have the unmanned
aircraft system inspected in accordance with the methods, and at the
intervals, prescribed in the unmanned aircraft manufacturer's
inspection criteria in the maintenance instructions.
(c) Except as provided in Sec. 108.555, prior to operating the
unmanned aircraft system each operator of an unmanned aircraft system
must have any inoperative equipment and any items not in a condition
for safe operation repaired as prescribed in the manufacturer's
maintenance instructions.
Sec. 108.615 Life-limited parts.
(a) No person may operate an unmanned aircraft with parts installed
that have exceeded the life limits specified in the manufacturer's
maintenance instructions.
(b) The operator must track the status of life-limited parts using
a system that uniquely identifies the part and tracks the associated
life-limiting factor of the part, through removals and reinstallations.
(c) When a life-limited part is removed that has reached its life
limit or is not intended to be re-installed, the operator must
disposition the part in a manner that clearly identifies the part's
life-limited status or prevents its reinstallation. This includes, but
is not limited to the following:
(1) Any method that uniquely identifies the part and its status,
such as a tag, record, document, or other marking, that is made or
attached to the life-limited part.
(2) Segregation of the life-limited part by physically storing it
separately from other parts that are eligible for installation.
(3) Mutilation of the life-limited part that renders the part
beyond economical repair and incapable of being reworked to appear to
be in a condition for safe operation.
(d) An operator who removes a life-limited part and later sells or
otherwise transfers that part must transfer the part with the tag,
record, document, or other marking that clearly identifies the life-
limited status of the part, unless the part is mutilated before it is
sold or transferred.
Sec. 108.620 Unmanned aircraft batteries.
(a) Each operator using batteries as a required in-flight power
source must have a battery monitoring program.
(b) Operators must remove from service any batteries that indicate
significant degradation or inadequate levels of performance.
Sec. 108.625 Repairs and alterations.
(a) The operator must accomplish repairs or alterations to unmanned
aircraft systems under this part in accordance with procedures
authorized by the manufacturer as provided in Sec. 108.755.
(b) The replacement of parts or assemblies with identical or
alternative parts or assemblies specified by the manufacturer is not
considered a repair or alteration for the purposes of this section.
Sec. 108.630 Operation after maintenance or alterations.
(a) No person may operate any unmanned aircraft system that has
undergone maintenance or alteration unless--
(1) The unmanned aircraft system has been approved for return to
service by a person authorized by the operator; and
(2) The operator ensures the maintenance record entry required by
108.40(d) is completed.
(b) No person may operate an unmanned aircraft system that has been
maintained or altered in a manner that may have appreciably changed the
flight characteristics or substantially affected the operation of the
unmanned aircraft system until an operational check of the unmanned
aircraft has been performed and it is found to be in a condition for
safe operation.
(c) Flights performed as part of an operational check under
paragraph (b) may be conducted under the operator's existing permit or
certificate but must not be conducted over people or moving vehicles.
Subpart G--Procedures for Unmanned Aircraft System Airworthiness
Acceptance
Sec. 108.700 Airworthiness acceptance generally.
(a) Purpose. This subpart prescribes procedures and standards for
airworthiness acceptance of unmanned aircraft systems under this part.
(b) Eligibility. To be eligible to apply for airworthiness
acceptance, the manufacturer--
(1) Must be a manufacturer of an unmanned aircraft system in--
(i) The United States; or
(ii) A country with which the United States has a Bilateral
Airworthiness Agreement addressing unmanned aircraft systems or
Bilateral Aviation Safety Agreement with associated Implementation
Procedures for Airworthiness addressing unmanned aircraft systems, or
an equivalent airworthiness agreement; and
(2) The manufacturer's authorized representative or agent must be
trained and certified on the requirements associated with the
declaration of compliance by an organization that certifies and trains
quality assurance staff in accordance with an FAA-accepted consensus
standard.
Sec. 108.705 Means of compliance.
(a) Means of compliance generally.
(1) A voluntary consensus standards body may submit a voluntary
consensus standard to FAA for acceptance as a means of compliance for
satisfying a requirement of this subpart or subpart H of this part
other than requirements pertaining to noise.
(2) If the Administrator determines the voluntary consensus
standards
[[Page 38381]]
body's proposed means of compliance satisfies the requirements of this
subpart and subpart H of this part for which it has been submitted, the
Administrator will notify the voluntary consensus standards body that
the means of compliance has been accepted.
(3) The Administrator will publish a document in the Federal
Register announcing the acceptance of the means of compliance, as
proposed or with modification, to the public.
(b) Means of compliance for noise.
(1) A voluntary consensus standards body may submit a voluntary
consensus standard to FAA for approval as a means of compliance for
satisfying the applicable noise requirements of this part and part 36
of this chapter.
(2) If the Administrator determines the voluntary consensus
standards body's means of compliance satisfies the requirements of part
36 of this chapter, the Administrator will notify the voluntary
consensus standards body that the means of compliance for noise is
approved.
(3) The Administrator will publish a document in the Federal
Register announcing approval of the noise means of compliance to the
public.
Sec. 108.710 Compliance with design, test, production, noise, and
airworthiness requirements.
(a) To seek airworthiness acceptance for an unmanned aircraft
system, a manufacturer must comply with this subpart and subpart H of
this part and must submit a declaration of compliance to the
Administrator that meets the requirements of Sec. 108.715.
(b) To receive airworthiness acceptance, an unmanned aircraft
system must meet the following requirements:
(1) Except as otherwise provided in this section, the requirements
of this subpart and subpart H of this part must be met through the use
of an FAA-accepted means of compliance.
(2) The noise requirements of part 36 of this chapter and this part
may be met by either the use of an FAA-approved means of compliance or
other applicable methods specified in part 36.
(3) The cybersecurity requirements of Sec. 108.875 may be met
either by the use of an FAA-accepted means of compliance or by any
other standard acceptable to the Administrator for purposes of meeting
the requirements of that section.
(c) The individual who determines compliance with the applicable
consensus standards must be trained to determine whether a
manufacturer's unmanned aircraft system demonstrates compliance with
the provisions of any applicable FAA-accepted or approved consensus
standards.
Sec. 108.715 Declaration of compliance.
(a) To apply for airworthiness acceptance, a manufacturer must
submit a declaration of compliance for FAA acceptance in a form or
manner acceptable to the Administrator.
(b) A declaration of compliance must include the following:
(1) The manufacturer's name, physical address, telephone number,
and email address.
(2) The unmanned aircraft make, model, series, serial number, and
date of manufacture.
(3) The operations the manufacturer has specified may be safely
conducted using the unmanned aircraft system.
(4) The means of compliance used to determine the unmanned aircraft
system's compliance with design, test, production, and airworthiness
requirements of this subpart and subpart H of this part.
(5) The means of compliance for noise or other method of compliance
specified in part 36 of this chapter used for compliance used to
determine the unmanned aircraft system's compliance with noise
requirements.
(6) The standard used, if another standard acceptable to the
Administrator is used to meet the cybersecurity requirements of Sec.
108.875.
(7) A declaration that the unmanned aircraft system meets the
requirements of Sec. 108.710.
(8) A declaration that the determination required by paragraph
(b)(7) of this section was made by an individual who meets the
requirements of Sec. 108.710(c).
(9) A declaration that the unmanned aircraft system conforms to the
manufacturer's design data and that the manufacturer used a quality
assurance system that meets the requirements of Sec. 108.730.
(10) A declaration that the manufacturer will make available to any
registered owner, the National Transportations Safety Board, or the
Administrator the documents specified in Sec. 108.720 upon request.
(11) A declaration that the manufacturer will support the unmanned
aircraft systems after airworthiness acceptance by implementing and
maintaining a documented continued operational safety program as
required in Sec. 108.740.
(12) A declaration that the manufacturer will monitor and correct
safety-of-flight issues through the issuance of safety bulletins
following airworthiness acceptance.
(13) A declaration that the manufacturer has inspected the unmanned
aircraft system in accordance with Sec. 108.735.
(14) A declaration that at the request of the Administrator, the
manufacturer will provide unrestricted access to its facilities and to
all data and documentation and allow the Administrator to witness any
tests necessary to determine compliance with this section or other
applicable requirements of this chapter, or other information as
requested by the Administrator.
(15) A declaration that the manufacturer has established and will
maintain a quality assurance system that meets the requirements of
Sec. 108.730.
(16) A declaration that the unmanned aircraft system complies with
subpart F of part 89 of this chapter.
(c) The declaration of compliance must be signed by the
manufacturer's authorized representative or agent who is trained and
certified on the requirements associated with the declaration of
compliance by an organization that certifies and trains quality
assurance staff in accordance with an FAA-accepted means of compliance.
(d) If the manufacturer has successfully met the applicable
requirements of this subpart and subpart H of this part, the
Administrator will accept the declaration of compliance and notify the
manufacturer of the acceptance.
Sec. 108.720 Documents.
(a) The manufacturer of an unmanned aircraft system with, or
seeking, an airworthiness acceptance must prepare and retain the
following documents.
(1) Operating instructions that include but are not limited to:
(i) Procedures and limitations to accommodate environmental
conditions likely to be encountered in the unmanned aircraft system's
intended operations, including normal, abnormal, and emergency
procedures.
(ii) A listing of the manufacturer-designated operations, as
defined in Sec. Sec. 108.400 and 108.500, that may be safely conducted
using the unmanned aircraft system.
(iii) The manufacturer-designated ratio of unmanned aircraft to
flight coordinator.
(iv) A statement that the aircraft has demonstrated compliance with
part 36 of this chapter, the demonstrated noise levels of the aircraft,
and the following statement: ``No determination has been made by the
Federal Aviation Administration whether the noise levels of this
aircraft are or should be acceptable for operation in any location.''
[[Page 38382]]
(v) A list of parts and installed equipment necessary for the safe
operation of the aircraft, or a list of equipment that is allowed to be
inoperative.
(2) Maintenance instructions that include procedures necessary to
ensure continued safe operation, including but not limited to
inspection criteria, repairs, and life limits, of the unmanned aircraft
and its associated elements.
(3) A configuration control document that defines all acceptable
configurations of both the unmanned aircraft and associated elements.
(b) The manufacturer of an unmanned aircraft system with an
airworthiness acceptance must make these documents readily available to
any registered owner, the National Transportation Safety Board, or the
Administrator upon request.
Sec. 108.725 Flight data.
Each manufacturer of an unmanned aircraft system with an
airworthiness acceptance must:
(a) Establish and maintain a flight data collection system for all
unmanned aircraft system models produced subject to the requirements of
this part. This system must include the capture and storage of flight
data provided by the aircraft operator per Sec. 108.45(a)(2).
(b) Retain flight data records for a minimum of 2 years after the
collection of the data.
(c) Implement adequate security measures to protect the
confidentiality and integrity of collected flight data.
(d) Upon request from the Administrator, provide access to the
collected flight data in a manner acceptable to the Administrator.
Sec. 108.730 Quality assurance system.
The unmanned aircraft system must be designed, produced, and tested
under a manufacturer-established and documented quality assurance
system that demonstrates each unmanned aircraft system produced
conforms to its design and is in a condition for safe operation.
Sec. 108.735 Production.
Each manufacturer must inspect and test each unmanned aircraft
system under manufacturer-established and documented production
procedures to demonstrate that--
(a) The unmanned aircraft system has no hazardous operating
characteristics or design features;
(b) The unmanned aircraft system is in a condition for safe
operation; and
(c) The unmanned aircraft can safely conduct any permitted or
certificated operations in Sec. Sec. 108.400 and 108.500 for which the
unmanned aircraft is intended, as designated by the manufacturer.
Sec. 108.740 Continued operational safety program.
(a) Each manufacturer of an unmanned aircraft system that has
received airworthiness acceptance must implement and maintain a
documented continued operational safety program.
(b) The continued operational safety program must include--
(1) Requirements monitoring for, identifying, and resolving in-
service safety issues or noncompliance with this subpart and subpart H
of this part, including implementing any airworthiness directives
pertaining to type-certificated products or appliances, if installed;
(2) Provisions for the issuance of safety bulletins;
(3) A process for notifying the Administrator and all owners of the
unmanned aircraft system of all safety issues, including their planned
resolution; and
(4) A process for providing advance notice to the Administrator and
all owners of unmanned aircraft system of a continued operational
safety program discontinuance or provider change.
(c) A manufacturer of an unmanned aircraft system that has received
airworthiness acceptance must report any identified hazard involving
its unmanned aircraft system models to the Administrator within 10
calendar days, accompanied by the relevant flight data.
Sec. 108.745 Inspections and audits.
Each manufacturer, with a valid flight test permit or who submits a
declaration of compliance, of an unmanned aircraft system for
airworthiness acceptance must:
(a) Upon request, allow the Administrator to inspect its
facilities, technical data, reports, any manufactured unmanned aircraft
system in its possession, and any other necessary information to
determine compliance with this part.
(b) Upon request, allow the Administrator to witness any tests to
determine compliance with this part.
(c) Submit to independent inspections or audits conducted by the
voluntary consensus standards body, or its delegate, that submitted a
means of compliance the manufacturer used to meet the requirements of
this subpart and subpart H of this part.
(d) Upon request, make available to the Administrator results from
independent inspections and audits completed under paragraph (c) of
this section.
Sec. 108.750 Design changes.
(a) Only the manufacturer of the unmanned aircraft system that has
received airworthiness acceptance may make design changes to the
unmanned aircraft.
(b) The manufacturer must demonstrate compliance with the
requirements of this subpart and subpart H of this part for any design
change to an unmanned aircraft system that has received airworthiness
acceptance.
(c) Each manufacturer of the unmanned aircraft system that has
received airworthiness acceptance must update all documentation
affected by the design change, including the operating instructions,
maintenance instructions, and configuration control document required
by Sec. 108.720.
Sec. 108.755 Repairs and alterations.
Each manufacturer of an unmanned aircraft system with an
airworthiness acceptance must do the following:
(a) Authorize any repair or alteration under Sec. 108.625.
(b) Ensure the repaired or altered unmanned aircraft system
continues to comply with the requirements of this subpart and subpart H
of this part.
(c) Conduct testing required by Sec. Sec. 108.930 and 108.935 for
any repair or alteration that affects the flight characteristics or
demonstrated reliability.
Sec. 108.760 Record retention.
(a) Retention requirement. Each manufacturer of an unmanned
aircraft system that has received airworthiness acceptance must retain
and make available to the Administrator, upon request, all supporting
information used to demonstrate compliance with the requirements of
this subpart and subpart H of this part.
(b) Duration. Each manufacturer who submits a declaration of
compliance for an unmanned aircraft system must retain the information
described in paragraph (a) of this section for as long as it supports
the continued operational safety of the unmanned aircraft system listed
on the declaration of compliance and for 2 years following any
cessation of support for the continued operational safety program.
Sec. 108.765 Rescission.
(a) Rescission of Means of Compliance. The Administrator may
rescind its acceptance of a means of compliance if the Administrator
determines that a means of compliance does not meet any of the
requirements of this subpart and subpart H of this part.
(b) Rescission of Airworthiness Acceptance. The Administrator may
[[Page 38383]]
rescind airworthiness acceptance for an unmanned aircraft system if the
Administrator determines the unmanned aircraft system presents safety
concerns related to design or performance, or if the manufacturer of
the unmanned aircraft system that has received airworthiness acceptance
has not complied with the requirements of this subpart and subpart H of
this part.
(c) Notification of Rescission of Airworthiness Acceptance. The
Administrator will notify the manufacturer of the unmanned aircraft
system that has received airworthiness acceptance of proposed
rescission in the following manner:
(1) The Administrator will issue notice setting forth the Agency's
basis for proposed rescission.
(2) The manufacturer of the unmanned aircraft system that has
received airworthiness acceptance will have 30 calendar days to submit
evidentiary information to refute proposed rescission.
(3) The Administrator will consider the manufacturer's response to
proposed rescission, and may request any necessary additional
information, stay rescission, or issue a notice rescinding the
declaration of compliance.
(4) If the Administrator does not receive the response from the
manufacturer of the unmanned aircraft system that has received
airworthiness acceptance within 30 calendar days from the date of the
issuance of proposed notice, the Administrator may issue a notice
rescinding the declaration of compliance.
(d) Emergency rescission of airworthiness acceptance. (1) If the
Administrator determines an emergency exists and public safety requires
an immediate rescission of airworthiness acceptance, the Administrator
may issue an order rescinding a declaration of compliance without
initiating the process in paragraph (c) of this section.
(2) The rescission would remain in effect until the basis for
issuing the rescission no longer exists.
Subpart H--Design and Testing Requirements for Airworthiness
Acceptance
Sec. 108.800 General.
(a) Purpose. This subpart prescribes design and performance
standards for airworthiness acceptance of unmanned aircraft systems
under this part.
(b) Eligibility. To be eligible for airworthiness acceptance, an
unmanned aircraft system must--
(1) Meet the requirements of subpart G and this subpart,
(2) Not be an airship; and
(3) Not be designed to allow for any person on board during
operations.
Sec. 108.805 Size, weight, and speed.
The unmanned aircraft must, unless otherwise authorized by the
Administrator--
(a) Have a wingspan or lateral span not to exceed 25 feet (7
meters);
(b) Not have a combined total weight greater than 1,320 pounds (600
kilograms), including anything attached to or carried by the aircraft;
and
(c) Be limited not to exceed 87 knots ground speed.
Sec. 108.810 Simplified user interaction.
The unmanned aircraft system must possess simplified user
interaction design features during all phases of flight that meet the
following:
(a) The unmanned aircraft must be consistently and predictably
controllable, stable, and maneuverable with automated flight controls,
without manual flight control being necessary or available, at all
flight and ground loading configurations within the unmanned aircraft's
prescribed weight limits.
(b) The unmanned aircraft must be resistant to operation outside of
the flight design envelope.
(c) The unmanned aircraft must not lose control due to the
degradation or nonavailability of external services, systems, operator
input, or signals.
(d) The unmanned aircraft system must have the ability to
discontinue the flight as soon as practicable and in a manner that does
not create a safety hazard.
Sec. 108.815 Signal monitoring and transmission.
(a) The unmanned aircraft must be designed to receive from and
transmit to the associated elements all information required for safe
flight and operation.
(b) The unmanned aircraft must be designed to execute a safe
predetermined action when reaching the link timeout.
Sec. 108.820 Position, navigation, and timing.
The unmanned aircraft system must be capable of sustaining
position, navigation, and timing with accuracy to maintain safe
distance in the airspace in which the unmanned aircraft operates.
Sec. 108.825 Collision avoidance.
The unmanned aircraft system must be designed with the capability
to avoid aircraft as required in accordance with Sec. 108.195.
Sec. 108.830 Anti-collision lighting.
(a) Anti-collision lights must--
(1) Be installed on the aircraft.
(2) Have intensities that, when operating at night, are visible for
at least 3 statute miles; and
(3) Have flash rate, colors, and fields of coverage to enhance
visibility.
(b) Consistent with operating requirements in Sec. 108.110, the
design may allow for the deactivation or reduction of intensity of the
anti-collision lights.
Sec. 108.835 Position lighting.
If the unmanned aircraft has a wingspan or lateral span equal to or
greater than 96 inches, the unmanned aircraft must--
(a) Be equipped with position lights that include a red light on
the left side of the aircraft, a green light on the right side of the
aircraft, spaced laterally as far apart as practicable, and a white
light facing aft, located on an aft portion of the aircraft or on the
wing tips; or
(b) Have operating instructions that include a limitation
prohibiting night operations.
Sec. 108.840 Power generation, storage, and distribution system.
(a) The unmanned aircraft system must be designed to provide power
for all connected electrical loads.
(b) No single failure or malfunction of the unmanned aircraft power
generation, storage, and distribution system shall result in a loss of
flight or loss of control.
Sec. 108.845 Propulsion system.
(a) The propulsion system must possess the necessary reliability,
durability, and endurance for safe flight without failure, malfunction,
or excessive wear, throughout the expected life cycle of the propulsion
system.
(b) The propulsion system must be designed not to exceed safe
operating limits under normal operating conditions.
(c) The propulsion system must be designed so that a loss of power
or a power failure does not lead to loss of control of the unmanned
aircraft.
Sec. 108.850 Fuel system.
If equipped, the unmanned aircraft fuel system must:
(a) Provide a means to remove or isolate the fuel stored in the
system from the rest of the aircraft safely.
(b) Be designed to retain fuel under all likely operating
conditions.
(c) Have ventilation and drainage where flammable fluid or vapor
may exist.
Sec. 108.855 Fire protection.
The unmanned aircraft must be designed to sustain static and
dynamic deceleration loads without causing
[[Page 38384]]
structural damage to the fuel or electrical system components or their
attachments.
Sec. 108.860 Software.
(a) All software that may affect the safe operation of the unmanned
aircraft system must function properly and have dependability.
(b) All software changes made throughout the life cycle of the
unmanned aircraft system must be tracked, controlled, and documented
through a configuration management system.
(c) All software defects and modifications must be captured and
recorded through a problem reporting system.
Sec. 108.865 Electronic hardware.
(a) Unmanned aircraft system electronic hardware must perform its
intended function throughout the intended operating and environmental
limitations.
(b) Unmanned aircraft system electronic hardware must be designed
and installed so their operation does not have an adverse effect on the
safe operation of the unmanned aircraft.
Sec. 108.870 Systems and equipment.
(a) The unmanned aircraft system must have all systems and
equipment necessary for safe flight, taking into account any systems or
equipment necessary to operate the unmanned aircraft in the intended
airspace class or that are required for the operation.
(b) Installed systems and equipment must perform their intended
function within the intended operating and environmental limitations.
(c) No probable failure shall result in a hazard.
Sec. 108.875 Cybersecurity.
The unmanned aircraft system equipment, systems, and networks,
addressed separately and in relation to other systems, must be
protected from unauthorized electronic interactions.
Sec. 108.880 Associated elements design and performance requirements.
(a) Each associated element, addressed separately and in relation
to the unmanned aircraft and any other associated elements, must be
designed to perform its intended function under all operating
conditions specified in the unmanned aircraft system operating
instructions.
(b) Any probable failure or malfunction of an associated element or
component thereof must not result in a hazard.
(c) The associated element must be designed to continuously
monitor, display, and transmit information required for safe flight and
operation.
Sec. 108.885 Suitability and durability of materials.
The suitability and durability of materials used in the unmanned
aircraft system must account for the effects of all operational and
environmental conditions expected in service.
Sec. 108.890 Operating environment conditions.
(a) The unmanned aircraft must have design characteristics to
accommodate environmental conditions likely to be encountered during
its intended operations; or
(b) The unmanned aircraft system must have the capability to
identify and avoid or exit those environmental conditions in which the
unmanned aircraft is not designed to operate.
Sec. 108.895 Lightning protection.
(a) The unmanned aircraft system must be capable of maintaining
continued flight and control in the event of a lightning strike; or
(b) The operating instructions must include an operating limitation
explicitly prohibiting flight operations in weather conditions that are
conducive to lightning activity.
Sec. 108.900 Flight data recorder.
(a) The unmanned aircraft system must be equipped with a flight
data recorder system that captures and records onboard systems and
flight data from initial power up through shutdown.
(b) The recorded data must be in a standardized format and readily
accessible to the Administrator or National Transportation Safety
Board, and readable without requiring proprietary software.
Sec. 108.905 Flight data analysis.
The unmanned aircraft system must be designed to provide the
manufacturer of the unmanned aircraft system that has received
airworthiness acceptance with captured and recorded data from flight
operations in order to conduct trend analysis, failure identification,
and root cause analysis.
Sec. 108.910 Noise.
The unmanned aircraft must meet the applicable noise requirements
of part 36 of this chapter.
Sec. 108.915 Placards.
The unmanned aircraft system must display all placards necessary
for safe handling and operation.
Sec. 108.920 Identification and marking.
The unmanned aircraft identification and registration marking must
comply with the requirements of part 45 of this chapter.
Sec. 108.925 Additional design and performance requirements for
specific operational purposes.
(a) The unmanned aircraft system must be designed to account for
any operational and environmental conditions and hazards, for any
manufacturer-designated permitted or certificated operations as defined
in Sec. Sec. 108.400 and 108.500.
(b) For unmanned aircraft designed for the carriage of hazardous
materials, the unmanned aircraft or transport container must have
sufficient structural integrity to contain the hazardous material
without allowing leakage or release of the material in the event of a
hard landing or crash.
Sec. 108.930 Developmental testing.
(a) Each manufacturer must conduct flight tests of the unmanned
aircraft system to achieve or validate the design and performance
requirements of this subpart in an operationally representative
environment and throughout the flight envelope.
(b) Analysis may be used in combination with flight testing to
validate compliance with this subpart. Any simulations used for testing
must be validated using an FAA accepted means of compliance.
(c) Before proceeding with function and reliability testing under
Sec. 108.935, the manufacturer must ensure the unmanned aircraft
system's configuration has no hazardous operating characteristics or
design features and is safe for the intended operation.
(d) Testing must validate that a probable failure of the unmanned
aircraft system will not result in a loss of flight or control of the
unmanned aircraft.
Sec. 108.935 Function and reliability testing.
(a) Each manufacturer must perform function and reliability testing
for each unmanned aircraft system make, model and configuration.
(b) The make, model, and configuration of each unmanned aircraft
system must perform at least 150 flight hours without experiencing any
failure leading to--
(1) Loss of flight,
(2) Loss of control,
(3) Non-conformance with unmanned aircraft system traffic
management,
(4) Loss of safe distance; or
(5) Results in an unplanned landing.
[[Page 38385]]
(c) Testing must be conducted in an operationally representative
environment, of Sec. Sec. 108.400 and 108.500, as designated by the
manufacturer.
PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS
0
34. The authority citation for part 119 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40102, 40103,
40113, 44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904,
44906, 44912, 44914, 44936, 44938, 46103, 46105; sec. 215, Pub. L.
111-216, 124 Stat. 2348.
0
35. Amend Sec. 119.1 by adding paragraph (e)(12) to read as follows:
Sec. 119.1 Applicability.
* * * * *
(e) * * *
(12) Unmanned aircraft system operations conducted under part 108
of this chapter.
PART 133--ROTORCRAFT EXTERNAL-LOAD OPERATIONS
0
36. The authority citation for part 133 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702.
Sec. 133.1 [Amended]
0
37. Amend Sec. 133.1 by adding the words ``or 108'' after the words
``part 107'' in the introductory text.
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT
0
38. The authority citation for part 135 continues to read as follows:
Authority: 49 U.S.C. 106(f), 40113, 41706, 44701-44702, 44705,
44709, 44711-44713, 44715-44717, 44722, 44730, 45101-45105; Pub. L.
112-95, 126 Stat. 58 (49 U.S.C. 44730)
Sec. 135.1 [Amended]
0
39. Remove the period at end of paragraphs (a)(1) and (a)(7) and in its
place add the phrase ``, except when those operations are conducted
under the provisions of part 108 of this chapter.''
PART 137--AGRICULTURAL AIRCRAFT OPERATIONS
0
40. The authority citation for part 137 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 44701-44702.
Sec. 137.1 [Amended]
0
41. Amend Sec. 137.1 by adding the phrase ``Except for aircraft
subject to part 108 of this chapter,'' at the beginning of the
introductory text of paragraph (a).
0
42. Add part 146 to subchapter H of chapter I to read as follows:
PART 146--AUTOMATED DATA SERVICE PROVIDERS
Subpart A--General
Sec.
146.1 Applicability.
146.5 Definitions.
146.10 General requirements.
146.15 Falsification, reproduction, alteration, or omission.
Subpart B--Certificate
Sec.
146.100 Application.
146.105 Applicant information.
146.110 Service levels.
146.115 Certification requirements.
146.120 Evaluation of application.
146.125 Obligation to update.
146.130 Terms.
Subpart C--Service Authorizations
Sec.
146.200 Request for authorization.
146.205 Authorization requirements.
146.210 Evaluation of request.
Subpart D--Certificated Service Providers
Sec.
146.300 Minimum requirements.
146.305 Cyber and data security.
146.310 Quality management system.
146.315 Change management.
146.320 Training program.
146.325 Reportable occurrences.
146.330 Record retention.
Subpart E--Authorized Service Requirements
Sec.
146.400 Authorized service data exchange requirements.
146.405 Software updates.
146.500 Revocations and suspension.
146.505 Petition to reconsider.
Subpart F--Due Process
Sec.
146.500 Revocations, Emergency Suspensions, and Requests for
Reconsideration.
146.505 Petition to reconsider.
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103(b),
44701(a)(5), 44702, 44707, 46105(c), 46110, 44802. Pub. L. 115-254
sec. 342, sec. 360, sec. 376. Pub. L. 118-63 sec. 932.
Subpart A--General
Sec. 146.1 Applicability.
(a) General. This part applies to anyone who seeks a certificate to
provide automated data services that support aircraft operations using
a distributed computational system for the purpose of showing
compliance with requirements in this chapter.
(b) Exceptions. This part does not apply to--
(1) Services used to comply with requirements in part 21 of this
chapter;
(2) Services used to comply with requirements in subchapter J of
this chapter;
(3) Services that are provided through the Low Altitude
Authorization and Notification Capability (LAANC); and
(4) Services provided to aircraft with an onboard pilot in command.
Sec. 146.5 Definitions.
The following definitions apply to this part. If there is a
conflict between the definitions of this part and the definitions
specified in Sec. 1.1 of this chapter, the definitions in this part
control for purposes of this part:
Authorized services means those services a certificated automated
data service provider is authorized to provide under this part.
Automated data service provider means a person using a distributed
computational system to provide automated data services that support
aircraft operations.
Distributed computational system means a system that relies on one
or multiple piece(s) of software, running simultaneously on one or
multiple computer(s), to provide a set of functions.
Major update means a change to the software version that includes
substantial changes to the application programming interface (API), or
the features and functionality, such that the new version is not
backward compatible with previous versions.
Minor update means a change to the software version that changes
the application programming interface (API), may include new features
or functionality, and remains backward compatible.
Patch update means a change to the software version that does not
change the application programming interface (API) and is used for
backward-compatible bug fixes and performance improvements.
Third-party vendor means a person that provides a distributed
software capability that is necessary for a certificated service
provider to meet the requirements of this part but for which the
certificated service provider does not have direct control over the
personnel, software code, or organizational processes.
Sec. 146.10 General requirements.
A person may obtain a certificate to provide automated data
services using a
[[Page 38386]]
distributed computational system for the purpose of showing compliance
with the requirements under this chapter. Only those automated data
services authorized in accordance with subpart C of this part may be
used to show compliance with requirements under this chapter.
Sec. 146.15 Falsification, reproduction, alteration, or omission.
(a) Prohibited acts. No person may make or cause to be made any
fraudulent or intentionally false entry in--
(1) Any application under this part (including in any document used
in support of that application);
(2) Any record or report that is made, kept, or used to show
compliance with any requirement under this part;
(3) Any reproduction, for fraudulent purpose, of any application
(including any document used in support of that application), record,
or report under this part; or
(4) Any alteration, for fraudulent purpose, of any application
(including any document used in support of that application), record,
or report under this part.
(b) Prohibited omissions. No person may, by omission, knowingly
conceal or cause to be concealed, a material fact in--
(1) Any application made under this part (including in any document
used in support of that application); or
(2) Any record or report that is made, kept, or used to show
compliance with any requirement under this part.
(c) Penalties. The commission by any person of an act prohibited
under paragraphs (a) or (b) of this section is a basis for any one or
any combination of the following:
(1) Suspending or revoking any certificate, approval, or
authorization issued by FAA and held by that person.
(2) A civil penalty.
(3) The denial of a certificate, approval, or authorization.
Subpart B--Certificate
Sec. 146.100 Application.
Any person seeking to obtain a certificate to provide automated
data services using a distributed computational system to comply with
requirements under this chapter must submit the information identified
in this subpart in a form and manner acceptable to the Administrator.
Sec. 146.105 Applicant information.
(a) Contact information. The applicant must provide the name,
address of principal place of business, telephone number, and email
address for the person seeking a certificate.
(b) Ownership structure.
(1) Corporate applicants must submit documentation identifying the
name and address of each stockholder who owns 5 percent or more of the
total voting stock of the corporation, and if that stockholder is not
the sole beneficial owner of the stock, the name and address of each
beneficial owner. An individual is considered to own the stock owned,
directly or indirectly, by or for a spouse, children, grandchildren, or
parents.
(2) Non-corporate applicants must submit documentation identifying
the name and address of each person having a financial interest in the
entity.
(c) Accountable executive. The applicant must provide a name,
address, telephone number, and email address for the accountable
executive, as defined in part 5 of this chapter.
(d) Authorization to do business. The applicant must provide
documentation demonstrating its authority to conduct business in the
United States.
(e) Other. The applicant must provide any other relevant
documentation the Administrator deems necessary to verify the entity's
identity, corporate ownership, and authority to conduct business in the
United States.
Sec. 146.110 Service levels.
(a) General. An applicant may be certificated at a service level
described in this section.
(b) Service levels.
(1) Level 1: Services that support operations conducted under part
108 of this chapter and does not rely on regulatory relief to operate
under that part.
(2) Level 2: Services that support operations conducted under part
108 of this chapter but rely on regulatory relief to operate under that
part.
(3) Level 3: Services that are neither Service Level 1 nor Service
Level 2, supporting operations that are not conducted under part 108 of
this chapter.
Sec. 146.115 Certification requirements.
(a) Service Level 1. An applicant seeking a Service Level 1
certificate must provide, in a form and manner acceptable to the
Administrator--
(1) a declaration of compliance that the applicant meets all
applicable requirements in subpart D of this part; and
(2) A declaration of compliance that the applicant meets the
requirements to provide at least one authorized level 1 service in
accordance with subpart E of this part.
(b) Service Level 2. An applicant seeking a Service Level 2
certificate must provide, in a form and manner acceptable to the
Administrator--
(1) A declaration of compliance and documentation describing how
the applicant meets all applicant requirements in subpart D of this
part; and
(2) A declaration of compliance and documentation describing how
the applicant meets the requirements to provide at least one authorized
level 2 service in accordance with subpart E of this part.
(c) Service Level 3. An applicant seeking a Service Level 3
certificate must provide, in a form and manner acceptable to the
Administrator--
(1) A declaration of compliance, documentation, and supporting data
demonstrating that the applicant meets all applicable requirements in
subpart D of this part;
(2) A declaration of compliance, documentation, and supporting data
demonstrating that the applicant meets the requirements to provide at
least one authorized level 3 service in accordance with subpart E of
this part; and
(3) Documentation and supporting data demonstrating that the
applicant's service meets the reliability, availability, latency, or
other quality of service metrics necessary to provide the service.
(d) Initial applicants. An applicant seeking an initial certificate
must also submit an application for authorization to provide at least
one service, in accordance with subpart C of this part. The
Administrator will issue a certificate to provide services only to
applicants that can obtain approval to provide at least one authorized
service.
(e) Foreign-qualified applicants. An applicant submitting proof of
an active authorization to provide data services from a country that
the United States has a bilateral aviation safety agreement covering
automated data services comparable to those in this part, may be deemed
to meet the application requirements in this section.
Sec. 146.120 Evaluation of application.
(a) Evaluation. The Administrator will evaluate the information the
applicant submits and any other relevant information to determine
whether the applicant meets the minimum qualifications of this part.
The Administrator may request that the applicant provide supplemental
information at any time during the application process.
(b) Issuance. Except as provided in paragraph (c) of this section,
the Administrator may issue a person who meets the requirements of this
part a
[[Page 38387]]
certificate to use a distributed computational system to provide
automated data services that the applicant demonstrated it was
qualified to provide, as described in Sec. 146.115. The Administrator
may place limits or conditions on the certificate as are necessary in
the interest of safety.
(c) Denial. FAA may deny an application for a certificate under
this part if FAA finds that--
(1) The applicant does not meet the requirements of this part;
(2) The applicant holds a certificate under this part that is under
suspension or is in the process of being revoked or suspended;
(3) The applicant previously held a certificate under this part
that was revoked;
(4) The applicant fills or intends to fill a management position
with an individual who exercised control over or who held the same or a
similar position with a certificated service provider under this part
whose certificate was revoked or suspended, or is in the process of
being revoked or suspended, and that individual materially contributed
to the circumstances resulting in the revocation or suspension;
(5) An individual who will have control over or substantial
ownership interest in the applicant had the same or similar control or
interest in a certificated service provider whose certificate was
revoked or suspended, or is in the process of being revoked or
suspended, and that individual materially contributed to the
circumstances resulting in the revocation or suspension; or
(6) For failure to comply with other applicable legal requirements.
Sec. 146.125 Obligation to update.
A person seeking an initial or amended certificate under this part
has an ongoing obligation to update information submitted during the
application process until the Administrator either grants or denies the
application. The applicant must report this updated information to the
Administrator within 10 days of becoming aware of the change in a form
and manner acceptable to the Administrator.
Sec. 146.130 Terms.
(a) Duration. A certificate issued under this section remains valid
until surrendered by the holder, or until revoked or suspended by FAA.
(b) Application to provide additional services. A certificated
service provider seeking to provide services for additional service
levels must apply in accordance with the provisions of this subpart,
except that the applicant need only submit information relevant to the
new or amended service level.
(c) Non-transferable. No certificate issued under this section may
be transferred to another organization without the Administrator's
express approval. For the purposes of this section, a change in
ownership structure in Sec. 146.105(b) constitutes a transfer that
requires the Administrator's express approval.
Subpart C--Service Authorizations
Sec. 146.200 Request for authorization.
(a) General. Any person seeking authorization to provide an
automated data service using a distributed computational system under
this part, must submit the information identified in this subpart in a
form and manner acceptable to the Administrator.
(b) Certificate required. No person may obtain authorization to
provide services under this part without being in compliance with a
certificate issued under subpart B of this part.
Sec. 146.205 Authorization requirements.
(a) Requirements. An applicant seeking to provide an authorized
service under this part must--
(1) Establish the minimum performance requirements for the service,
in accordance with paragraph (b) of this section;
(2) Demonstrate that the applicant is capable of meeting the
minimum performance requirements, in accordance with paragraph (c) of
this section;
(3) Demonstrate that the service meets the requirements of subpart
E of this part, in accordance with paragraph (d) of this section;
(4) Demonstrate that the service supports an aircraft operator's
ability to comply with requirements in this chapter; and
(5) Demonstrate that the service is designed in accordance with an
industry consensus standard or consensus standards.
(b) Establishing minimum performance requirements. An applicant
establishes the minimum performance requirements for the service by
submitting data and documentation in a form and manner acceptable to
the Administrator that includes--:
(1) An overview describing the service and its intended use;
(2) All representations to service users regarding the
capabilities, quality-of-service, limitations, and responsibilities of
the service provider and service user related to the authorized
service; and
(3) Technical specifications describing the service's system
architecture and functionality.
(c) Demonstrating applicant's capability. In a form and manner
acceptable to the Administrator, the applicant must demonstrate that
they are capable of meeting the minimum performance requirements as
follows:
(1) An applicant seeking authorization to provide a level 1 service
must provide, in a form and manner acceptable to the Administrator, a
declaration of compliance that the applicant meets all applicable
requirements of paragraph (b) of this section.
(2) An applicant seeking authorization to provide a level 2 service
must provide, in a form and manner acceptable to the Administrator, a
declaration of compliance and documentation describing how the
applicant meets all applicable requirements of paragraph (b) of this
section.
(3) An applicant seeking authorization to provide a level 3 service
must provide, in a form and manner acceptable to the Administrator, a
declaration of compliance, documentation, and supporting data
demonstrating that the applicant meets all applicable requirements of
paragraph (b) of this section.
(d) Demonstrate that the service meets the requirements of subpart
E of this part. In a form and manner acceptable to the Administrator,
the applicant must demonstrate that their automated data service meets
the software updates and data exchange requirements of subpart E of
this part as follows:
(1) An applicant seeking authorization to provide a level 1 service
must provide, in a form and manner acceptable to the Administrator, a
declaration of compliance that the service meets the requirements in
subpart E of this part.
(2) An applicant seeking authorization to provide a level 2 service
must provide, in a form and manner acceptable to the Administrator, a
declaration of compliance and documentation describing how the service
meets the requirements in subpart E of this part.
(3) An applicant seeking authorization to provide a level 3 service
must provide, in a form and manner acceptable to the Administrator, a
declaration of compliance, documentation, and supporting data
demonstrating that the service meets the requirements in subpart E of
this part.
[[Page 38388]]
Sec. 146.210 Evaluation of request.
(a) Evaluation. The Administrator will evaluate the information the
applicant submits and any other relevant information to determine
whether the applicant meets the requirements of Sec. 146.205. The
Administrator may request that the applicant provide supplemental
information at any time during the evaluation process.
(b) Authorization. Except as provided in paragraph (c) of this
section, the Administrator may authorize the applicant to provide a
requested service if the applicant meets the requirements of Sec.
146.205. The Administrator may place limits or conditions on the
authorization as are necessary in the interest of safety.
(c) Denial. FAA may deny a request for authorization for a service
under this part if FAA finds that--
(1) The applicant does not hold a valid certificate under this
part; or
(2) Does not meet all requirements of Sec. 146.205.
(d) Non-transferable. No authorization to provide services issued
under this section may be transferred to another organization without
the Administrator's express approval.
Subpart D--Certificated Service Providers
Sec. 146.300 Minimum requirements.
(a) Certificate. Unless otherwise authorized by the Administrator,
a certificated service provider providing services under this part must
comply with the terms of the certificate issued under subpart B of this
part.
(b) Authorized services. Unless otherwise authorized by the
Administrator, a certificated service provider providing services under
this part must comply with the terms of the authorization issued under
subpart C of this part.
(c) Facilities, equipment, software, and data. A certificated
service provider must maintain the facilities, equipment, software, and
data necessary to meet the minimum requirements required to comply with
the terms of the certificate and service authorizations in this part,
except as provided in paragraph (d) of this section. Those requirements
include the following:
(1) Cyber and data security requirements in accordance with Sec.
146.305.
(2) Quality management system requirements in accordance with Sec.
146.310.
(3) Change management requirements in accordance with Sec.
146.315.
(4) Training requirements in accordance with Sec. 146.320.
(5) Reporting requirements in accordance with Sec. 146.325.
(6) Record retention requirements in accordance with Sec. 146.330.
(7) Automated service data exchange requirements in accordance with
Sec. 146.400.
(8) Software update requirements in accordance with Sec. 146.405.
(d) Third-party vendor. A certificated service provider may rely on
services provided by a third party to meet the requirements of this
part if:
(1) The service is not specific to an aviation safety function; or
(2) The third party holds a certificate and service authorization
under this part.
(e) Impartiality. A certificated service provider under this part
must provide their service to users in a reasonable and non-
discriminatory manner, as applicable.
(f) Compliance with applicable laws. A certificated service
provider providing services under this part must be authorized to
conduct business in the United States and otherwise be in compliance
with applicable law, including but not limited to those relating to
data privacy and security.
Sec. 146.305 Cybersecurity.
(a) Cybersecurity policy required. A certificated service provider
must develop and implement cybersecurity policies and processes to
protect networks, devices, and data from unauthorized access and to
ensure integrity, accuracy, and reliability of the services provided to
the customer.
(b) Contents of policy. The cybersecurity policy required under
this section must include processes for--
(1) Protecting software, hardware, and network computing
infrastructure necessary to protect the authorized service from
unauthorized access;
(2) Ensuring the certificated service provider's employee access
privileges are limited to those necessary to fulfill normal job duties;
(3) Preparing for, responding to, and mitigating the impact of
cyber attacks;
(4) Collecting and analyzing data to measure the effectiveness of
the cybersecurity policy and processes; and
(5) Revising the cybersecurity policy.
Sec. 146.310 Quality management system.
(a) General. A certificated service provider must develop,
implement, and document a quality management system acceptable to the
Administrator to ensure that the services provided by the certificated
service provider, or any third-party vendor's services that the
certificated service provider relies on, meet the minimum requirements
of this part.
(b) Safety management system. The quality management system must
meet the requirements of part 5 of this chapter; except the
certificated service provider is not required to comply with the
following provisions: Sec. Sec. 5.7, 5.9, 5.11, 5.13, 5.15, 5.27, and
5.71(c) of this chapter.
(c) Software update procedures. A certificated service provider's
quality management system must include a process for managing software
updates that reduces the risk of introducing a hazard into the services
authorized under this part, including but not limited to the
requirements in Sec. 146.405.
(d) Third-party vendor requirements. A certificated service
provider must develop, implement, and document a process to monitor
services provided by third parties, to detect failures or other
performance issues that would adversely impact the certificated service
provider's ability to meet the requirements of this part.
(e) Testing and verification.
(1) A certificated service provider must develop, implement, and
document procedures to test and verify that the authorized services
continue to meet the requirements of this subpart. The procedures must
include the frequency of testing and the criteria the certificated
service provider will apply to determine whether those services comply
with this part.
(2) A certificated service provider must make all documentation of
its testing and verification procedures available to the Administrator
upon request.
(f) Service difficulty reports. A certificated service provider
must--
(1) Have a readily available means to accept reports about the
failure, malfunction, or defect in an authorized service that has
endangered or may endanger the safe operation of an aircraft;
(2) Notify their users of that means to submit these reports; and
(3) Upon request, provide to the Administrator these reports,
related data, and documentation of any corrective actions taken by the
certificated service provider.
Sec. 146.315 Change management.
(a) General. A certificated service provider must develop,
implement, and document a change management policy to ensure updates,
amendments, or other changes to its software and technology do not
adversely affect the performance level of the authorized services it
provides under this part.
(b) Notice. A certificated service provider must notify FAA in
writing of any change to its software or technology
[[Page 38389]]
that may affect the certificated service provider's ability to meet the
authorized service requirements of this part, except as provided in
Sec. 146.405.
(c) Review. The Administrator may review the change management
documentation supporting any change to a service authorized under this
part.
Sec. 146.320 Training program.
(a) General. A certificated service provider must establish a
training program to ensure anyone who performs, either directly or
under contract, functions related to the development or performance of
authorized services has the knowledge and skills necessary to ensure
the organization's compliance with this part.
(b) Topics. The training program must cover, at a minimum--
(1) Best practices in distributed software development;
(2) Applicable regulations and Advisory Circulars relating to
automated data services, airspace classification, operating
requirements, and flight restrictions;
(3) Aviation safety culture concepts; and
(4) Best practices in the provision of automated data services for
aviation users.
(c) Recurrence. The training program must include recurrent
training elements that are provided not less than once per calendar
year.
Sec. 146.325 Reportable occurrences.
A certificated service provider must report the following incidents
in a form and manner acceptable to the Administrator--
(a) An unscheduled service outage;
(b) A security breach that results in unauthorized access to the
certificated service provider's networks, devices, or data irrespective
of whether it affects the integrity, accuracy, or reliability of the
services provided to the service recipient; and
(c) Any other occurrence specifically identified in a certificate
or authorization issued under subparts B or C of this part.
Sec. 146.330 Record retention.
(a) Certificate. A certificated service provider must retain data
and documentation submitted to the Administrator in support of their
application for certification for the duration of their certificate
plus an additional 24 months.
(b) Authorized Service. A certificated service provider must retain
the following for the duration of their service authorization plus an
additional 24 months:
(1) Documentation and data submitted to the Administrator in
support of service authorization.
(2) Records of testing required under subpart E of this part.
(3) Service difficulty reports and supplemental reports submitted
to the certificated service provider about the failure, malfunction, or
defect in an authorized service.
(c) Additional Information. The Administrator may request that the
certificated service provider retain certain additional information, as
necessary, in the interest of safety, efficiency, and fair access.
(d) Authorized service data exchange. The certificated service
provider must preserve and maintain all data exchanged with customers
or other airspace users as a part of providing an authorized service
under this part for a minimum of 6 months from the time of the data
exchange.
(e) Training.
(1) The certificated service provider must retain records of
training given to its personnel for a minimum of 2 years following
completion of training.
(2) In the event of a personnel-employer separation, the
certificated service provider must retain records of the individual's
training for 12 months after the separation from employment.
(f) Audits and Inspection. The certificated service provider must
provide records kept under this part to the Administrator within a
reasonable time after a request.
Subpart E--Authorized Service Requirements
Sec. 146.400 Authorized service data exchange requirements.
(a) Interoperability. Services authorized under this part must be
able to exchange data automatically and securely with both the user and
other authorized service providers when necessary for provision of the
service, irrespective of the user's or other provider's digital
platform.
(b) Safeguards. Services authorized under this part must contain
safeguards and other measures to ensure the integrity, accuracy, and
reliability of the data exchanged with the user including, but not
limited to, those required in this section.
(c) Authentication. Services authorized under this part must use an
access and authentication method that prevents unauthorized access to
or interference with data exchanged with the user.
(d) Non-repudiation. Services authorized under this part must use a
validation and verification method that provides assurance of the
integrity and origin of the data exchanged with the user.
(e) Equitability. A certificated service provider under this part
must provide their service to users in a reasonable and non-
discriminatory manner, as applicable.
Sec. 146.405 Software updates.
(a) General. Prior to releasing changes to an authorized service's
software, a certificated service provider must verify that the change
does not adversely affect a person's ability to operate safely in the
airspace. For the purposes of this section, a person includes the
certificated service provider's customer as well as other airspace
users or services that rely on data exchanges with the authorized
service.
(b) Versioning. The certificated service provider must use a
generally accepted industry standard for assigning version numbers to
software changes.
(c) Testing required.
(1) Prior to releasing any software change, the certificated
service provider must conduct testing to verify that the change does
not adversely affect the authorized service's ability to meet the
requirements of this part.
(2) A certificated service provider must make all documentation of
the testing and verification under this section available to the
Administrator as soon as possible, but in no case later than 24 hours,
after receiving a written request from the Administrator.
(3) The Administrator may request that a certificated service
provider conduct additional testing or verification to demonstrate that
authorized services meet the performance requirements of this part. A
certificated service provider must conduct the testing or verification
as soon as practicable after receiving a written request from the
Administrator.
(d) User notification.
(1) The certificated service provider must provide reasonable
notice to all users prior to any anticipated downtime, including the
date, time, and expected duration of the downtime.
(2) Prior to releasing changes to an authorized service's software,
including patch updates, the certificated service provider must provide
reasonable notice to enable the user to evaluate potential effects on
operations and make necessary operational adjustments.
(3) User notice must provide a description of the change,
including--
(i) Providing the new version identifier;
(ii) Explaining the nature of the change;
[[Page 38390]]
(iii) Identifying differences in features, functionality, or user
experience; and
(iv) Explaining any actions the user must take to ensure the
authorized service meets the required performance levels following the
change.
(4) The certificated service provider must keep a record of each
update under this section for not less than two years from the date the
update was released, including the information required by paragraph
(d)(2) of this section.
(e) FAA notification. The certificated service provider must
provide notice of minor and major updates to software used to deliver
an authorized service in a form and manner acceptable to the
Administrator as follows:
(1) Minor update:
(i) Service Level 1: the certificated service provider must notify
the Administrator at least one business day prior to release;
(ii) Service Level 2: the certificated service provider must notify
the Administrator at least 3 business days prior to release;
(iii) Service Level 3: the certificated service provider must
notify the Administrator at least 5 business days prior to release.
(2) Major update: Service Level 1: the certificated service
provider must notify the Administrator at least 5 business days prior
to release.
(f) FAA approval required. The certificated service provider must
obtain approval in a form and manner acceptable to the Administrator
prior to releasing the major updates to software used to deliver an
authorized service at Service Levels 2 and 3.
(g) Discontinuing superseded software versions. Unless otherwise
authorized by the Administrator, when releasing a major update to an
authorized service, the certificated service provider must--
(1) Maintain the most recent previous version of the authorized
service with full functionality for a minimum of 60 days from the
release date; and (2) Notify customers a minimum of 7 calendar days
prior to removing full functionality of the prior version of the
authorized service.
(h) Exceptions. Paragraph (g)(1) of this section does not apply if
a set of authorized services provisioned by more than one automated
data service provider must be updated in a coordinated, planned, or
simultaneous manner in order to maintain interoperability.
Subpart F--Due Process
Sec. 146.500 Revocations, Emergency Suspensions, and Requests for
Reconsideration.
(a) Revocation. The Administrator may revoke a service
authorization issued under this part to preserve the safety in air
commerce and the public interest.
(b) Process. Except as provided in paragraph (c) of this section,
the Administrator will follow the following procedure to revoke a
service authorization:
(1) The responsible FAA office notifies the authorization holder in
writing of the proposed revocation.
(2) The written notification sets a reasonable period (but not less
than 7 days) within which the authorization holder may submit written
information, views, and arguments on the revocation.
(3) After considering all material presented, the responsible FAA
office notifies the certificate holder of the revocation decision or
withdrawal of the proposed revocation.
(4) If the responsible FAA office decides to revoke the service
authorization, it becomes effective within 15 days after the
authorization holder receives notice of the decision unless the FAA
issues an emergency suspension under paragraph (c) of this section or
the certificate holder petitions for reconsideration under Sec.
146.505.
(c) Emergency suspension of a service authorization. The FAA may
immediately suspend a service authorization if it finds that an
emergency exists requiring immediate action to ensure safety in air
commerce or transportation that makes the procedures set out in this
section impracticable or contrary to the public interest, notifying the
authorization holder:
(1) Of the immediate suspension of the service authorization
effective on the date the notification is sent.
(2) Of the basis for the FAA's finding that an emergency exists
requiring immediate action with respect to safety in air transportation
or air commerce or that makes it impracticable or contrary to the
public interest to stay the effectiveness of the emergency suspension.
Sec. 146.505 Petition to reconsider.
(a) General.
(1) Any applicant for service authorization or the holder of a
service authorization provider may submit a petition in a form and
manner acceptable to the Administrator within 60 calendar days of an
application denial, revocation, or emergency suspension of an
authorization issued under this part.
(2) Any applicant or certificated service provider may submit a
petition in a form and manner acceptable to the Administrator within 60
calendar days of a denial of a certificate issued under this part.
(b) Error. The petition must demonstrate that the Administrator
issued their decision in error, resulting in the denial of an
application for a certificate or authorization, or the revocation, or
suspension of an authorization, by showing one of the following:
(1) A material fact exists that was not previously presented to the
Administrator.
(2) The Administrator relied on a material error of fact.
(3) The Administrator did not correctly interpret a law,
regulation, or precedent.
(c) Decision. The Administrator will consider the information
submitted under this section and determine whether to withdraw the
denial, revocation, or suspension, as applicable.
Title 49--Transportation
Chapter XII--Transportation Security Administration, Department of
Homeland Security
Subchapter C--Civil Aviation Security
PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES
0
43. The authority citation for part 1540 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-
44914, 44916-44918, 44925, 44935-44936, 44942, 46105.
0
44. Amend Sec. 1540.5 by adding, in alphabetical order, the terms
``unmanned aircraft'' and ``unmanned aircraft system'', to read as
follows:
Sec. 1540.5 Terms used in this subchapter.
* * * * *
Unmanned aircraft means an aircraft that is operated without the
possibility of direct human intervention from within or on the
aircraft.
Unmanned aircraft system (UAS) means an unmanned aircraft and
associated elements (including communication links and the components
that control the unmanned aircraft) that are required for the operator
to operate safely and efficiently in the national airspace system.
PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL
OPERATORS
0
45. The authority citation for part 1544 continues to read as follows:
[[Page 38391]]
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.
0
46. Amend Sec. 1544.1 by revising paragraph (a)(1) to read as follows:
Sec. 1544.1 Applicability of this part.
(a) This part prescribes aviation security rules governing the
following:
(1) The operations of aircraft operators holding operating
certificates under 14 CFR part 119 for scheduled passenger operations,
public charter passenger operations, private charter passenger
operations; the operations of aircraft operators holding operating
certificates under 14 CFR part 119 operating aircraft with a maximum
certificated takeoff weight of 12,500 pounds or more; UAS operators
permitted or certificated under 14 CFR part 108; and other aircraft
operators adopting and obtaining approval of an aircraft operator
security program.
* * * * *
0
47. Amend Sec. 1544.101 by revising paragraph (g) to read as follows:
Sec. 1544.101 Adoption and implementation.
* * * * *
(g) Limited program: In addition to paragraph (d) of this section,
if applicable, TSA may approve a security program after receiving a
request by an aircraft operator holding a certificate under 14 CFR part
119, other than one identified in paragraph (a), (b), (d), or (f) of
this section, or a UAS package delivery operator permitted or
certificated under 14 CFR part 108. The aircraft operator must--
* * * * *
Proposed amendments to title 14 CFR chapter I issued under
authority provided by 49 U.S.C. 106(f), 40103(b), 44701(a)(5),
44807, 44808, 44811, and Sec. 932 of Pub. L. 118-63 in Washington,
DC.
Bryan Bedford,
Administrator, Federal Aviation Administration.
Proposed amendments to 49 CFR chapter XII issued under authority
provided by 49 U.S.C. 114, 44901, and 44903.
Ha Nguyen McNeill,
Acting Administrator, Transportation Security Administration.
[FR Doc. 2025-14992 Filed 8-6-25; 8:45 am]
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