FAA Seeks Comments on Possible New Regulations Aimed at Enhancing Safety and Security In the Operation of Small Unmanned Aircraft Systems

In 2016, the Federal Aviation Administration (FAA) published a rule governing the operation and certification of small unmanned aircraft systems (UAS).1 Recognizing ongoing improvements in technology and increased interest in operation of UAS within the confines of Part 107, the FAA has now issued an Advance Notice of Proposed Rulemaking (ANPRM) to gather data and comments to inform and assist in the FAA’s efforts to craft regulations aimed at reducing risks to public safety and national security that are associated with the further integration of UAS into the national airspace.2 The ANPRM is the second of a pair of notices issued by the FAA on February 13, 2019, which concern the operation of small UAS.3  Comments are due to the FAA on or before April 15, 2019.

The following is a discussion of the topics on which the FAA is interested in hearing public input.

Stand-Off Distances

First, the FAA is interested in balancing the unique capabilities of small UAS to operate in places in which manned aircraft cannot maneuver, with the safety and security concerns that arise when a small UAS is operated too closely to sensitive locations or large groups of people.  Currently, Part 107 does not require small UAS to maintain any specific “stand-off distance,” which is defined as the amount of physical space that must be maintained between a small UAS and the closest person or object.

The FAA is now considering modifying Part 107 to address and require stand-off distances in certain circumstances, especially in light of the FAA’s proposed amendments to §107.39 to allow certain small UAS to operate over people under specific conditions, and is seeking public comment on the following questions:

  1. If the FAA were to establish specific stand-off distances for small UAS operations, what should those stand-off distances be?
  2. If the FAA were to establish stand-off distances only for certain types of small UAS operations – such as night operations, operations in controlled airspace under air traffic control authorization, or beyond-visual-line-of-sight operations – which operations should require them, and what should the distance be?
  3. Should any type of operation be excluded from stand-off distance requirements?
  4. How would a horizontal or vertical stand-off distance requirement help reduce hazards to public safety and national security?
  5. What are the incremental costs of requiring a stand-off distance as compared with the costs of current operations?
  6. Is additional instrumentation necessary to meet stand-off distance requirements?
  7. Is additional training or testing necessary to meet stand-off distance requirements?

Altitude, Airspeed, and Other Performance Limitations

Next, the FAA is interested in balancing the robust performance capabilities of small UAS – such as their speed, capacity for altitude, and maneuverability – with the potential hazards posed to other aircraft or persons on the ground when small UAS are operating in close proximity to buildings, large gatherings, or law enforcement activities.  Currently, Part 107 imposes a maximum groundspeed of 87 knots and maximum altitude of 400 feet above ground level or the uppermost limit of a structure.   However, the FAA’s new proposed rules regarding small UAS operations would establish performance-based requirements that would allow small UAS to operate over people if the manufacturer can demonstrate that an impact with a person would not result in an injury of certain severity levels depending on the circumstances of the operations, as well requiring that the UAS must not have exposed rotating parts that could lacerate human skin.  Recognizing that there are new uses and capabilities of small UAS as technology improves, the FAA is considering the following issues to assess possible additional performance limitations, such as airspeed and altitude, to mitigate potential hazards to public safety and national security:

  1. What operating and performance limitations should the FAA impose for small UAS, if any?
  2. If operating or limitations should be established for only certain types of small UAS operations, which type of operations should be included and what should the limitations be?
  3. How would additional operating or performance limitations help reduce risks to public safety or national security?
  4. What types of small UAS operations would be affected by establishing additional operating or performance limitations?
  5. What are the incremental costs of altitude, airspeed, and other performance limitations?

Unmanned Traffic Management (UTM) Operations

The FAA is considering the need and practicability of unmanned traffic management (UTM) operations to optimize flight paths, improve public safety, and reduce national security risks, such as by increased communication between operators on planned and actual flight paths, de-confliction capability, and additional information sources.

To that end, the FAA is seeking comment regarding the following issues:

  1. How can additional information sharing (e.g., intended flight path, operational boundary) via UTM help reduce risks to public safety and national security?
  2. What types of small UAS operations should be subject to UTM requirements, and what factors should give rise to the requirements?
  3. For small UAS subject to UTM requirements, what type of information should be available to the general public or security personnel?
  4. What are the initial, nonrecurring investment costs associated with establishing a UTM architecture, and what are the annual recurring operational and maintenance costs?
  5. Would additional testing or training be required for a remote pilot to safely operate a small unmanned aircraft subject to UTM requirements?

Payload Restrictions

The FAA also is considering whether to impose additional restrictions on the payload of a small UAS.  In particular, the FAA is interested in curtailing the potential for small UAS to circumvent existing measures to promote national security or prevent the introduction of hazards to the public safety.

For these reasons, the FAA is seeking comment on the following questions:

  1. Should the prohibition from carrying hazardous materials be expanded to include other types of payloads or installed equipment that could pose a threat to public safety or national security?
  2. Should the FAA consider rulemaking to restrict the use of certain types of small UAS payloads or installed equipment? If so, under what conditions should the restrictions take effect, and should there be exceptions in the event of certain other conditions such as location, time, population density, or purpose?
  3. What types of operations would be affected if additional restrictions are place on the type of payloads and equipment that can be installed on a small UAS, and would any costs or lost revenues be associated with those restrictions?

Small UAS Critical System Design Requirements

Finally, the FAA is interested in preventing dangers that could arise in the event of the failure of a critical system on a small UAS that could result in the loss of control of the aircraft and harm to people and property on the ground. One way to address this concern is to require the use of redundancy to mitigate the risk of critical single-point system failures.  For instance, a small UAS with only one battery could crash if that single battery failed, but a small UAS that is built with a redundant power system, such as with multiple batteries or a back-up system, would be able to maintain safe flight in the event of a single battery failure.

Part 107 currently does not require system redundancies or otherwise prescribe design standards.  However, the FAA may condition the grant of waiver from certain operational limitations on the use of equipment with redundant systems.

To more formally address these concerns and codify policy regarding redundancy, the FAA is seeking comment on the following subjects:

  1. For small UAS operations beyond the visual line of sight of the remote pilots, should the FAA establish design requirements such as redundancy for systems critical to safety of flight?
  2. For small UAS operations over people that exceed the safety threshold indicated in the related NPRM (which, therefore, would require a waiver to operate over people), should the FAA establish design requirements such as redundancy for systems critical to safety of flight?
  3. Are there other types of small UAS operations beside those beyond the visual line of sight and operations over people for which the FAA should establish design requirements to address public safety and national security risks?
  4. What are the benefits and costs to incorporate redundant systems critical to safety of flight that exceed the safety threshold set forth in the above-mentioned NPRM?


The FAA is seeking public input to assist it in making changes aimed at enabling the integration of small UAS operations into the national airspace, while ensuring the safety of aircraft and efficient use of airspace.  This AMPRM is meant to work in concert with the FAA’s Operation of Small Unmanned Aircraft Systems over People NPRM, as well as the FAA’s yet-to-be published rulemaking regarding remote identification of small UAS.   Of note, the FAA does not intend to promulgate the Operation of Small UAS over People final rule until remote identification rulemaking is finalized.  Clearly, the FAA recognizes that it is imperative to keep up with the advances in UAS technology and UAS commercial uses, while also ensuring safety and national security, and has adopted an approach to new regulations that will be heavily influenced by the various industry stakeholders.

As the FAA moves forward with its three rulemaking initiatives, we would be happy to assist stakeholders who are interested in submitting comments for the FAA’s consideration.

Disclaimer: This publication is made available for educational purposes only and is not intended as legal advice. If you have questions about any matters in this publication, please contact the author(s) directly.  General inquiries may be directed to info@nullcondonlaw.com.

1 14 C.F.R. § 107 (2016).  A small unmanned aircraft is defined as an unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.  14 CFR § 107.3.  A small unmanned aircraft system is defined as a small unmanned aircraft and its associated elements (including communication links and the components that control the aircraft) that are required for the safe and efficient operation of the aircraft in the national airspace system.  Id.

2 Safe and Secure Operations of Small Unmanned Aircraft Systems, 84 Fed. Reg. 3732 (Feb. 13, 2019).  An ANPRM is different from a Notice of Proposed Rulemaking (NPRM) in that an ANPRM is used by an agency to obtain public participation and input prior to the agency formally proposing a regulatory change.

3 On February 13, 2019, the FAA issued a related NPRM to amend its rules applicable to small UAS.  Among other things, the proposed rule would allow operations of small UAS over people in certain conditions and operations of small UAS at night without obtaining a waiver.  See Operation of Small Unmanned Aircraft Systems Over People, 84 Fed. Reg. 3856 (proposed Feb. 13, 2019) (to be codified at 14 C.F.R. pt. 107).  A further discussion of this NPRM can be found here.