Part 108: Next Steps Now that public comments are closed, here’s what’s next for this era-defining regulation. By Mark Huber The 60-day public comment period for Part 108, the FAA’s proposed rule for beyond visual line of sight (BVLOS) operations by unmanned aircraft systems (UAS), ended Oct. 6. Nearly 3,100 comments were submitted, and their breadth and depth suggest that much work remains to be done to address operational, safety, and technical concerns raised by the draft rule. The vertical aviation community, including VAI and its members, had plenty to say about the FAA’s Notice of Proposed Rulemaking (NPRM) for BVLOS. The association submitted 19 pages of comments on the proposed rule, and more than 100 VAI members endorsed those comments or resubmitted them to the FAA. To ensure its comments would be comprehensive and reflective of its members’ operational environments, VAI reached out to its member-led industry advisory councils for their perspectives and also consulted extensively with other aviation groups, particularly those focused on low-altitude operations. “VAI’s main priority has been to ensure members’ voices are part of the discussion by encouraging them to submit comments to the FAA on Part 108 and share how BVLOS would directly impact their operations. We’re grateful that many members did so,” says Amber Harrison, VAI director of regulatory affairs and the association’s lead on Part 108. “It’s so important to demonstrate to regulators that VAI is a vital link connecting them with the people, companies, and industry they oversee.” VAI’s Concerns As part of their detailed comments to the FAA, VAI addressed concerns about the safety implications of the draft rule, particularly in the areas of right-of-way, low-altitude operations, and shielded areas: “While the NPRM is an important step towards advancing BVLOS operations, we believe its current form requires revision. … Unless revised appropriately, Part 108 will create—not mitigate—the potential for midair collision and resulting casualty.” Right-of-way. As VAI noted in its comments, “The proposed modification of existing right-of-way rules disregards the original intent of [14 CFR] 91.113, eliminates the safeguards provided by the rule, and overlooks the operational reality of the 400 feet and below ecosystem.” The association went on to note that “as written, 91.113 provides a clear and understandable framework that all pilots understand. Right-of-way determinations can be made nearly instantaneously, giving time for pilots to appropriately respond.” Under current rules, the most maneuverable aircraft yields the right-of-way to aircraft that are less capable of moving to avoid. In contrast, pilots of manned aircraft under the new rules would have to execute a complicated decision tree to determine right-of-way, including taking into consideration the population density of the area being overflown. This complex process would take place in real time as other aircraft are encountered, adding significantly to pilot workload. Rather than “creating a new subsection with an automatic UAS right-of-way and a complicated decision tree of exceptions,” as outlined in the proposed rule, VAI suggests that UAS should be integrated into the current right-of-way hierarchy in the same manner as other aircraft categories, as listed in 91.113(d). VAI also suggests that, as UAS are the more maneuverable aircraft, they should always yield right-of-way to manned aircraft. Low-altitude operations. VAI was particularly vocal about the disparities between the airspace conditions presented in the NPRM and those reported by its operator members, many of whom conduct the majority of their operations at low altitudes. For example, in the proposed rule, the FAA proposes that UAS operating within a 400-ft. radius of a structure may operate higher than 400 ft. agl (but no higher than 400 ft. above the structure’s uppermost limit), observing, “Manned aircraft are not able to operate safely that closely to a structure, so the UAS operator would be able to maintain separation.” In their public comments, VAI responded: “The FAA’s foundational claim that manned aircraft do not operate within 400 feet of structures is dangerously incorrect. This assertion disregards decades of real-world helicopter operations in infrastructure inspection, firefighting, air medical, agriculture, and law enforcement. Such a mischaracterization is not a minor analytical oversight; it fundamentally undermines the very safety analysis upon which the NPRM is built. A regulatory framework premised on false assumptions cannot satisfy FAA’s statutory duty to ensure the safety of the [National Airspace System].” VAI’s Harrison also points out that allowing drones to fly at 400 ft. above structures could place them at high altitudes where pilots may not be expecting to encounter them. Shielded operations. In the NPRM, the FAA proposed that UAS operating in “shielded areas”—within 50 ft. of structures—would have right-of-way over manned aircraft and their detect-and-avoid requirements would be relaxed. In its comments, VAI noted that “in just a small sampling of our utility helicopter operator members, we identified more than 40,000 annual flight hours conducted within 400 feet of structures, with more than 25,000 of those hours conducted within 50 feet of structures—areas that this NPRM proposes to designate as ‘shielded.’ ” VAI joined with other leading aviation organizations in providing the FAA with a “Manned Aviation Statement of Alignment Regarding Part 108,” which focused on critical issues including requirements for right-of-way and detect and avoid, electronic conspicuity and ADS-B, airspace access and enforcement, and data transparency and supporting analysis. Here are some key takeaways from that document: • Manned aircraft should always have right-of-way over UAS • UAS must have detect-and-avoid technology that enables them to avoid manned aircraft, and the capabilities and operation of detect-and-avoid technology must be adequately defined • Specific mechanisms must be developed to enforce the 400-ft. agl ceiling for UAS operations, and the FAA should provide specific enforcement protocols for altitude violations • The authorized data service providers (ADSPs), charged with oversight and deconfliction of UAS traffic, should be audited by the FAA. See below, “Part 108: The Vertical Aviation Community Responds,” to read more perspectives from those who manufacture and operate helicopters and UAS. VAI’s Next Steps VAI is continuing to work diligently to achieve the best possible outcome for the vertical aviation community while advocating for the advancement of simplified but effective BVLOS rules. “We’re engaging with Congress, the FAA, and others relevant to this rulemaking process to make sure that our position is known,” says Harrison. “The question is not whether we want BVLOS to become operationalized in the US airspace,” she says. “VAI is absolutely in favor of that. The question that needs to be answered—and that the draft rule did not answer to our satisfaction—is how to achieve that goal in a busy, complex airspace and still maintain its current safety and efficiency.” VAI is also working with state and local partners to influence the final rule. “At the state level, we’re staying involved in conversations about how emerging technologies will be integrated into the airspace,” says Katia Veraza, VAI assistant director of state government affairs and regional relations. VAI has reached out to its contacts in the National Association of State Aviation Officials (NASAO) about issues in the proposed rule. “Before the Part 108 comment deadline, state aviation directors within NASAO met regularly to go over the proposed rule and share feedback,” says Veraza. “VAI joined those discussions, shared our concerns about right-of-way, and provided draft comments to several state aviation directors to help raise awareness of the industry’s perspective. “There’s also the Multistate Collaborative, a group of more than 30 state aviation directors that meets regularly and hosts industry days to hear from stakeholders. Their goal is to prepare for the integration of advanced air mobility in their states, including electric vertical takeoff and landing aircraft, urban air taxis, and drones, through coordinated policies and shared strategies,” Veraza continues. “This group also submitted comments on Part 108, and during their most recent industry day in Oklahoma, VAI participated in discussions on right-of-way and other key topics.” The final Part 108 rule could be out as early as February, as directed by the “Unleashing American Drone Dominance” executive order signed this past June, but most industry observers consider that timeline unrealistic. Given the number of questions raised by the FAA within the proposed rule and the complexity of issues raised in the initial comment period, Harrison thinks there is a possibility of a second NPRM and public comment period. “There’s so much in this rule that will take years to come to fruition,” says Harrison. “In a way, the NPRM has shown how much of this technology—detect and avoid, the automated data service providers, ADS-B at low altitudes—has yet to be figured out. You could look at the NPRM as the industry’s to-do list: these are our tasks to complete to bring BVLOS operations to the NAS.” She encourages VAI members to continue to share their stories. “We continue to work closely with Congress, state agencies, and the FAA to communicate how these regulations could affect the vertical flight industry. By sharing their experiences and helping to present a unified message, our members play a key role in strengthening VAI’s advocacy efforts and ensuring the industry’s concerns are heard.” Part 108: The Vertical Aviation Community Responds The Part 108 draft rule was eagerly anticipated by the vertical aviation community. Normalizing BVLOS operations for UAS will be a commercial boon for the drone industry while also affecting foundational airspace rules. Realizing the complexity of the FAA’s task, everyone was curious to see the agency’s vision of how this could be safely and efficiently accomplished. Here’s what some manufacturers and operators, of both helicopters and UAS, said in their public comments. Airbus Helicopters Airbus called for more specificity about how UAS operations would be conducted under Part 108, especially considering the impact of the proposed changes on long-standing airspace rules. “The NPRM outlines new ways of operating in low-altitude airspace that are significantly different and more complicated than current methods. However, process and guidance on how some of these operations will work in practice are lacking. The FAA is asking industry to demonstrate on a case-by-case basis how its operations will be conducted safely while considering appropriate industry standards. This approach makes the FAA’s job harder and creates the risk of implementing different, potentially conflicting, solutions in the same airspace. While Airbus supports the use of industry consensus standards, we are concerned that there is not a process defined to ensure the appropriate levels of safety are maintained. It is critical that the FAA provide the guidance documents that are needed to accompany the NPRM, particularly for Part 108, in order to ensure consistent application of the standards.” EagleNXT UAS manufacturer EagleNXT argued for performance-based standards for UAS design requirements. The company said in its comments that performance-based standards would allow drone manufacturers “to demonstrate compliance through statistical reliability, architectural design choices, and safety analyses without unnecessary weight or cost penalties” and also noted that the draft requirement for “no single failure shall result in loss of flight or control” and fully redundant power systems simply is not technically or economically feasible for small UAS that weigh less than 55 lb., advocating instead for a “risk-based framework, scaling redundancy requirements according to maximum kinetic energy or operational risk category.” It added that “many current BVLOS missions—such as agricultural mapping in rural areas, linear inspections along pipelines or power lines in unpopulated areas, and training flights in controlled sites—present significantly lower risk than cargo or urban operations. A one-size-fits-all framework would create unnecessary burdens and restrict the scalability of these disparate beneficial use cases.” Iowa Department of Transportation The Iowa Department of Transportation called out the proposed rule for focusing on long-distance UAS flights and therefore placing unnecessary burdens on short-range UAS operations. “Unfortunately, the rules as proposed are clearly designed for advanced and longer-distance flights. BVLOS requirements for separation technologies, aircraft, permits, training, security, record keeping and reporting far exceed a Return on Investment (ROI) for the Iowa DOT’s costs, time, equipment and people to make participation practical.” Iowa suggested that the draft rule be modified to provide short-range operators with a variety of relief measures, including simplified rules for short-distance flights in sparsely populated areas, allowing the use of existing UAS with manual controls, and the development of an approval process for emergency, short-range BVLOS flights up to 2 miles. Metro Aviation Air ambulance operator Metro Aviation took issue with the adequacy of detect-and-avoid provisions in the draft rule. “This NPRM assumes that the Remote ID Final Rule is sufficient for providing broadcast identification, location, and performance information from a UAS and that this Remote ID transmission enhances safety. In fact, the lack of regulation on the transmitted strength of the Remote ID signal has led to virtually undetectable Remote ID transmissions. This information is made clear in the ASSURE A11L.UAS.91: Small Unmanned Aircraft (sUAS) Traffic Analysis report, where more than two-thirds of all UAS were only detected within a 1-mile range. This detection range is insufficient for an aircraft to receive data directly and change course to avoid a collision. At typical helicopter speeds, a detection at a 1-mile range would give an aircraft less than 30 seconds to detect, inform a pilot, and for the pilot to react appropriately to avoid a conflict.” Robinson Helicopter Co. In comments submitted under his signature, David Smith, president and CEO of Robinson Helicopters, endorsed VAI’s concerns, adopting and submitting them as Robinson’s own. He also pointed out the NPRM’s “inaccurate assumptions” about low-altitude conditions and its changes to the right-of-way rules. And he was critical of the rule’s reliance on industry consensus standards for UAS certification. “As proposed, the rule relies on inaccurate assumptions about the low-altitude environment, would unravel aircraft-to-aircraft avoidance procedures by undermining long-standing right-of-way frameworks. … While we support the use of industry standards at the appropriate level and at significant maturity, we believe that industry consensus standards do not yet exist that adequately cover this class of air vehicles. Further, we do not believe that industry consensus standards can be developed in the absence of FAA rulemaking participation. There are too many conflicts of interest and too many improper financial motives to allow industry-authored consensus rulemaking to be the backbone of this important high-profile new industry that has significant safety implications.” US Department of Agriculture The US Department of Agriculture (USDA), which runs the US Forest Service, expressed serious concern that the draft rule, as written, could impede aerial firefighting. “Part 108, as currently written, appears to ignore manual flight control and provides only a regulatory pathway for autonomous BVLOS operations. While this profile would support strategic level overwatch and incident logistics, it would completely shut down operations at a tactical level. While the agency can leverage Part 91, Public Aircraft Operations (PAO), it should be noted that implementation of this framework will cripple all public safety-oriented programs that serve within the tactical deployment of assets. “The Part 108 rule, as written, has concerning verbiage regarding right-of-way rules under 400 feet AGL. Within emergency services, this is the operational environment of low-level helicopters and tactical retardant dropping fixed-wing aircraft. The proposed FAA rationale that universal electronic conspicuity where all aircraft will share position data would reduce the need for complex right-of-way changes. Currently available electronic conspicuity as well as the integrated data systems within disconnected environments are not logical from an expenditure perspective, [are] unproven, and [are] non-standardized.” Ventura County Fire Department The Ventura County (California) Fire Department makes extensive use of UAS for fire mapping and search-and-rescue missions. It notes that the draft rule does not provide a clear transition path for organizations already flying BVLOS under granted Part 107 waivers. “The final rule must include a provision to grandfather existing Part 107 BVLOS waivers. These waivers represent proven-safe operations and should be renewable under Part 108, provided the operational circumstances have not changed.” ZIPLINE Zipline designs, manufactures, and operates UAS that deliver medical supplies, health-care goods, food, and other consumer products. The company already has logged over 115 million autonomous flight miles. Regarding airspace integration, Zipline advocates for manned aircraft right-of-way over unmanned but proposes allowance of “network remote identification, instead of broadcast remote identification, to enable greater situational awareness” and “requir[ing] all manned aircraft to equip with ADS-B Out or a compliant electronic conspicuity device, so that unmanned aircraft can effectively yield right of way to manned aircraft.” It notes the technical limitations of broadcast remote identification, as allowed for in the rule, as opposed to network remote ID. “Unfortunately, the proposal does not consider the severe technical limitations of broadcast remote ID’s reliance on unlicensed and unprotected spectrum. Zipline’s operational experience finds the air-to-air detection range of compliant broadcast remote ID can be less than 100 feet when flying above suburban locations where 2.4 GHz spectrum is already saturated by Wifi-connected devices. There is no allowance in 14 CFR Part 89, or in the Federal Communications Commission (FCC) Part 15 service rules, to increase the output signal strength of broadcast remote identification transmitters. Therefore, there is no technically achievable way for an operator to meet the requirement.” Mark Huber is an aviation journalist with more than two decades of experience in the vertical flight industry.
