As was recently reported in Robinson+Cole’s Data Privacy + Cybersecurity Insider, the Federal Aviation Administration (FAA) issued two Final Rules for unmanned aircraft systems (UAS), i.e., drones: (1) requiring Remote Identification (Remote ID Rule), and (2) authorizing small UAS (weighing less than 55 pounds) to fly over people and at night under certain conditions (Operations Over People and at Night Rule). While both new Rules are relevant to the real estate development and construction industry, the Operations Over People and at Night Rule has particular significance, offering many benefits.
The Remote ID Rule requires all UAS, whether flown for recreational or commercial purposes, to broadcast identification, location, and performance information. This can be achieved by using either a UAS with built-in capabilities, or one to which a remote-identification-broadcast module may attach. (Or, if operating a UAS without Remote ID, the device may be used only at specific FAA-recognized identification areas.) Remote identification will provide the FAA and other administrative agencies with an awareness of which UAS are using the United States’ airspace, and with the ability to distinguish compliant airspace users from those potentially posing a safety or security risk.
Addressing a different aspect of safety, the Operations Over People and at Night Rule modifies the existing rules that do not permit small UAS to operate at night or over people without a waiver. As of this writing, the FAA has granted almost 5,000 “Part 107 waivers” since it first began authorizing exceptions to otherwise prohibited uses of small UAS in January 2017. (The prohibitions have included exceeding 400 feet above ground level, flying beyond visual line of sight, flying over people, and flying at night.) While the waiver procedure has been manageable, eliminating paperwork and waiting periods should accelerate the use of UAS for business.
Although the Operations Over People and at Night Rule contains various ancillary requirements and limitations interspersed throughout (such as prohibiting or limiting sustained flight over open-air assemblies), its primary mandates are straightforward. It automatically permits UAS operations over people, so long as the operation meets the requirements of one of four operational categories. These categories are divided based on weight of the device (Category 1 involves devices weighing 0.55 pounds or less), and to what extent the device would cause injury to a person struck by 11 foot-pounds (Category 2) or 25 foot-pounds (Category 3) of kinetic energy, with the blanket prohibition against “any exposed rotating parts that could lacerate human skin on impact with a human being” and devices with safety defects. Category 4 permits operations over people for small UAS that have been issued an airworthiness certificate under part 21, “so long as the operating limitations specified in the approved Flight Manual, or as otherwise specified by the Administrator, do not prohibit operations over human beings.” Operations over people include over moving vehicles, so long as (1) the small UAS is within or over a closed- or restricted-access site where any human being located inside a moving vehicle within the closed- or restricted-access site is on notice that a small unmanned aircraft may fly over them; or (2) otherwise the small UAS must not maintain a sustained flight.
That part of the Operations Over People and at Night Rule permitting night operations updates the initial Remote Pilot knowledge test to include an operation-at-night knowledge area, and replaces the requirement that remote pilots complete an in-person recurrent test every 24 calendar months with online recurrent training that offers night operations instruction. The rule allows routine operations of small UAS at night under two conditions: (1) the remote pilot must complete a current initial-knowledge test or recurrent training, and (2) the device must have lighted anti-collision lighting visible for at least three (3) statute miles and an operational flash rate sufficient to avoid a collision.
With this new flexibility, the use of UAS can be expanded significantly. During construction of buildings in densely populated areas, they can be used to track the project’s progress, e.g., solidity of the structures, how aesthetically pleasing they are developing, and where they are moving out of the plan. UAS also can be used for safety inspections, observing general employee conduct and monitoring for trespassing or theft. The added ability to use drones at night permits after-dark surveillance through the use of FLIR (Forward Looking InfraRed) and other night-vision imaging utilities. With UAS remaining cheaper to fly than manned aircrafts, faster than human surveyors, and more agile than 24-hour security officers, the FAA’s Operations Over People and at Night Rule offers a boost to the real estate development industry.
Copyright © 2021 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XI, Number 25