A Risk-Based Approach – The UAS BVLOS ARC Final Report
The long-awaited Unmanned Aircraft Systems (UAS) Beyond Visual Line of Sight (BVLOS) Aviation Rulemaking Committee (ARC) final report dropped on March 10, 2022. The almost 400 -page report comes nine months after the Federal Aviation Administration (FAA) chartered the ARC, and 3 months beyond its originally projected deadline. Here we break down the report into key elements, with analysis and predictions for the way ahead.
The Team & Process
The FAA chartered the ARC in June 2021, “to make recommendations to the FAA for performance-based regulatory requirements to normalize safe, scalable, economically viable, and environmentally advantageous UAS BVLOS operations that are not under positive air traffic control.” Emphasis items specifically included UAS BVLOS support to long-line linear infrastructure inspections, industrial aerial data gathering, small package delivery, and precision agriculture operations, including crop spraying.
A diverse team of experts gathered to tackle this herculean effort. Representatives came from academia and standards bodies; critical infrastructure owners and operators; infrastructure security; privacy groups; state, local, tribal, territorial interests – including environment and equity considerations; technology and network infrastructure interests; traditional aviation associations; and UAS associations.
These teams spent thousands of hours in meetings, working in two phases, divided into various groups and subgroups. Phase 1 focused on understanding the landscape and developing a pathway forward. It explored topics such as Safety; Environment and Community; Market Drivers and Regulatory Challenges.
Phase 2 focused on establishing a risk framework, building on Phase 1 inputs. During this Phase, the ARC made recommendations for UA with a resultant kinetic energy of up to no more than 800,000 ft.-lbs (representative of a Light Sport Aircraft or LSA) to conduct “fly to rule” BVLOS operations…without waivers.
Acceptable Level of Risk
The ARC focused on safety and societal benefits as its guiding principles. While safety may be an obvious focal point for a potential aviation rule, societal benefit got a lot of play. Why? To justify a risk-based approach which deviates from the typical “regulate to prevent the worst case scenario” mindset of crewed aviation.
Jon Damush, CEO of Iris Automation and ARC member explained, “This is probably the first time in aviation where risk has become two dimensional in terms of probability and consequence. With crewed aviation, the consequence of an accident is dire because souls are on board. With UAS, that is not the case. Until now, we’ve never been able to consider the question ‘What is an acceptable level of risk?’.”
The ARC answered this question by recommending a consistent acceptable level of risk (ALR) across all types of UAS operations, encapsulated in a regulatory framework supported by an Operation Risk Matrix and an Automation Matrix. These both use qualitative and quantitative approaches to assess air and ground risks to enhance compliance and reduce risks to an acceptable level.
The Operation Risk Matrix defines risk levels based on a number of factors, including strategic and technical mitigation and the UAS’ kinetic energy, as applied to an operation. The Risk Levels are 1, 2A/2B and 3 (highest level of risk). Strategic mitigations reduce risk prior to flight. Technical mitigations reduce risk in flight.
* The FAA may permit submission of alternative MOCs by applicants, when compliance to a specific standard is not requested for interoperability issues.
The Automation Risk Matrix describes the acceptable ranges of autonomous UAS operations and prescribes the operator qualifications necessary to conduct them:
- AFR Level 1 – a manual system (“human in the loop”) where direct monitoring and human interface are necessary and intended for the vast majority of flight.
- AFR Level 2 – a system with increased automation (“human on the loop”) in which human remote pilots are responsible for the flight of assigned aircraft, and are expected to directly monitor and maintain situational awareness for the flight(s) under their control.
- AFR Level 3 – extensive automation, similar to existing on-demand delivery operations (“human over the loop”); may not require human intervention to operate successfully, but may accommodate human supervision and intervention; used to support substantially scaled 1-to-many operations,
- AFR Level 4 – a state of ultimate automation (“human out of the loop”), handled completely by the automation, with no human intervention.
This approach provides operator flexibility to meet those ALRs through qualitative or quantitative methods, or a hybrid approach. It footstomps rules based on the risks of operations based on UA capability, size, weight, performance, and characteristics of the operating environment, not the purpose of the operation.
Julie Garland, CEO of Ireland-based Avtrain, “It is good to see the move toward a risk based approach and the aspiration to scale to routine BVLOS flights, rather than Proof of Concept. We have proven the concept over and again! Now is the time for scale.” Garland was pivotal to the creation of the Future Mobility Campus Ireland (FMCI), Skyports and Shannon Group consortium, called FMCI Air. FMCI established Ireland’s first drone air taxi service and routine beyond visual line of sight (BVLOS) drone operations.
The need for BVLOS operational flexibility led to recommended modifications to the right of way rules and conspicuity requirements for UAS.
According to the Report, conspicuity, technology that can help pilots, UA users and air traffic services be more aware of what is operating in surrounding airspace, could include strobe or other lighting features. These requirements could be established by Means of Compliance (MOC), through a standards development organization (SDO).
The biggest change would be in the Right of Way rules. The ARC suggested modifying the See and Avoid & Well Clear requirements in Part 91.113 (b) to allow a range of sensing methodologies and to clarify adequate separation.
FAR § 91.113(b) would be amended as follows:
General. When weather conditions permit, regardless of whether an operation is conducted under instrument flight rules, visual flight rules, or automated flight rules, vigilance shall be maintained by each person operating an aircraft so as to detect and avoid other aircraft. When a rule of this section gives another aircraft the right-of-way, the pilot shall give way to that aircraft and may not pass over, under, or ahead of it unless able to maintain adequate separation.
In the suggested language above, the word ‘detect’ has been substituted for the word ‘see’ to allow the use of other sensing methods beyond human visual capabilities. ‘Well clear’ has been removed and replaced with ‘adequate separation’ to allow for different levels of separation for different situations, consistent with ‘performance based’ approaches. This also constitutes a paradigm shift from determining collision risk based on a volume of airspace, to an approach based on acceptable level of collision risk appropriate for the airspace.
Perhaps even more controversial, the ARC recommended that in Low Altitude Shielded Areas (within 100’ of a structure or critical infrastructure as defined in 42 U.S.C. § 5195c) and Low Altitude Non-Shielded Areas (below 400’, over crewed aircraft are not equipped with an ADS-B Out), the UA would have the right of way over crewed aircraft.
According to Damush, this was hotly debated. In his opinion, “Big sky is not a good enough safety approach.” The U.S. still experiences on average four mid-air collisions a year, even with ACAS and pilot eyes-on.
On the other hand, Jackie Dujmovic, CEO of Australia-based Hover UAV, which has a robust BVLOS Hub and has been conducting BVLOS operations for a while, believes that this type of equitable access to airspace constitutes positive progress for the industry.
Richard Podolski, Director of UAV Flight Operations for Canadian-based Volatus Aerospace agrees. “The BVLOS ARC is recommending amending 91.113 to allow UA right of way within 100′ of a structure. Canadian Regulations have been utilizing this approach and already have regulations from 2019 allowing (901.25) operation 100 feet above / 200′ beside a building/structure. Examples like this have opened up a significant amount of growth in the Canadian industry and poses little or no risk to uncrewed aircraft. There are more examples where UAS is the lowest risk activity taking place, such as flying 50′ AGL, clearly the ground is far more dangerous to a crewed aircraft than a drone is at this height. The regulations need to reflect this.”
The thinking here is that UA-General Aviation (GA) encounters remain unlikely in shielded airspace because crewed aircraft typically do not conduct operations near obstacles. For the non-shielded change, existing regulations prohibit a significant portion of helicopters and non-agricultural GA aircraft from operating at low altitudes except for takeoff or landing.
Even so, the UA would still need to yield way to Non-Shielded Low Altitude Areas (i.e., below 400’ AGL) to crewed aircraft equipped with ADS-B or Traffic Awareness Beacon Systems (TABS) broadcasting their position.
The ARC also recommended amending visual line of sight aircraft operations to include Extended Visual Line of Sight (EVLOS). This would allow operations where a remote pilot in charge (RPIC) does not see the UAS, but a trained crewmember has situational awareness of the airspace around the UAS. Dujmovic’s Australia already has this in place (See previous IUS coverage here: https://insideunmannedsystems.com/getting-nods-north-south-on-bvlos-inspections/)
The ARC made several other related regulatory amendment suggestions to support the proposed Operating and Right of Way Rules ranging from training of crewed pilots on uncrewed flight operations to increase situational awareness, to UA preflight actions and amending minimum safe altitudes.
Aircraft and Systems
The key takeaway here is the ARC recommendation for a new ‘BVLOS’ Rule which would include a process for qualification of uncrewed aircraft and systems up to 800,000 ft-lb of kinetic energy in accordance with the Operating Environment Relative Risk Matrix (see chart below).
So far, no UA operator has attained airworthiness certification (approving how the UA is designed, produced and supported). In fact, it takes GA years to obtain these approvals. To date, UAS, operations occur by waiver, since no one has yet achieved type (design) and production (manufacture) certificates, let alone airworthiness certificates. Part 135 approvals have occurred because the FAA has waived the certified aircraft requirement. However, with that waiver comes restrictions and limitations that challenge commercial scaling. For example, every operator needs to reapply for any changes, such as change in concept of operation, location or aircraft to be used.
The Report suggests a complete overhaul of this process for UAs, based (again) on risk and not a one-size fits all approach. “Qualification of UA should follow a risk continuum, aligned with the Risk Framework,” the Report says, “with the goal of meeting the acceptable level of risk (ALR). Outside of traditional certification, the FAA should accept a statement or declaration of compliance to an FAA-accepted means of compliance.”
For small UAS, the Report suggests, no airworthiness certificate should be necessary. A production certificate would not be required either, similar to the process used for LSA. Under this construct, the FAA could choose to review and accept certain applicant’s quality systems. However, applicants would not be required to gain acceptance or approval of the UA system or changes to the UA system.
(Note: this is from page 89)
Relatedly, the ARC recommended a slew of other updates including that such a new BVLOS rule should address:
- Maintenance, Repair, and Modifications of UA. (NOTE – See table pg. 94-97)
- Software qualifications for UA and associated elements (AEs) (NOTE – See Table pgs. 100-101)
- UA noise certification requirements appropriate to the operating environment.
- A process for qualification of the associated elements of an uncrewed aircraft system. (Note – See pg. 104 chart)
- Who must make a declaration of compliance. (See pg. 105 chart)
- A new Special Airworthiness Certification for the UAS category under Part 21 in higher relative-risk operating environments with UA 25,000-800,000 ft-lbs., Special Airworthiness Certification (SAC) should be required under Part 21 instead of a Type Certificate.
- A Repairperson Certification for the UAS Category to perform inspection, maintenance, and repair of UAS holding SAC under this proposed rule.
- Allowing third party test organizations to audit compliance similar to Europe.
The ARC recommended another rule, this one under the 14 CFR, to govern UAS BVLOS Pilot and Operator certification requirements and operating rules.
The overarching concept is that the FAA should align BVLOS qualification and certification requirements to the categories described in the Automation Matrix AFR Levels above. For AFR Level 1, a modified Part 107 could allow for limited BVLOS operations to be conducted under a Remote Pilot certificate with Small UAS rating (e.g. during EVLOS or “shielded” operations).
For AFR Levels 2 through 4, BVLOS operations could be conducted under a Remote Pilot certificate with BVLOS rating by way of two new Operating Certificates:
- Remote Air Carrier Certificate: to authorize common carriage of property by UAS. An applicant is engaged in common carriage if the applicant “holds out” to the public (by advertising or other means) to transport persons or property from place to place for compensation or hire.
- Remote Operating Certificate: To authorize commercial operations not involving common carriage such as: Noncommon carriage (operation for compensation or hire that does not involve a holding out to others); Operations in which cargo is transported without compensation or hire; Operations not involving the transportation of cargo; or Private carriage.
The examination for both ratings would consist of a knowledge test on relevant areas. This training could include progressive paths and online versions. Practical training and qualifications would be also required for most commercial 1-to-many operations, based on specific UA systems, use cases, and operational restrictions. (Note – see pg 118 chart) Threshold requirements should be set for these such as 1:5 for 1-to-many operations at AFR Level 2, and a threshold value of 1:20 for 1-to-many operations at AFR Level 3.
Operating requirements for BVLOS drone deliveries would be similar to Part 135 and include:
- Recordkeeping, inspections and reporting;
- Flight, operating and maintenance manuals;
- Crew qualifications and duty limitations;
- Crewmember qualification, upgrade and currency training;
- Aircraft requirements;
- Airplane Performance Operating Limitations;
- Maintenance, preventive maintenance, and alterations;
- Hazardous Materials Training (if/when applicable).
Additional requirements for agricultural ops would be brought forward from Part 137:
- Certificate application, issuance and revocation;
- An additional written knowledge test that covers the unique aspects of agricultural remote aircraft operations such as site surveys, aircraft performance capabilities, chemical handling and dispensing, and the effects of economic poisons and agricultural chemicals;
- A practical examination that includes applicable aerial maneuvers at the aircraft’s maximum takeoff/load weight;
- General operating rules and aircraft and dispensing requirements;
- Operations near airports and over congested areas; and
- Record keeping.
The ARC also wants the FAA to create a new Designated Position of Remote Flight Operations Supervisor under the Remote Air Carrier certificate and the Remote Operating certificate for 1-to-many UAS BVLOS flights. This person would exercise operational control and ultimate responsibility for 1-to-many BVLOS flights conducted under their supervision, based on the AFR level.
Other topics covered included:
- Developing tailored medical qualifications for UAS pilots and other crew positions that consider greater accessibility and redundancy options available to UAS. tailored medical qualifications for UAS pilots and other crew members that reflect the reduced physical requirements for flying UA.
- Expressly authorizing RPICs of a UA to operate for compensation or hire.
- Allow only appropriately vetted UAS operators that are approved by the relevant authority to conduct operations deemed to be a higher security risk per Section 2209 of the FAA Extension, Safety, and Security Act of 2016.
- Provide an exception to the restrictions and requirements for carriage of specified quantities of hazardous materials for delivery by holders of a Remote Air Carrier or Remote Operating Certificate, to allow carriage of limited quantities.
Third-Party UAS Service Providers (3PSP)
The ARC also recommended the FAA adopt a non-mandatory regulatory scheme for third party service providers (3PSP) to be used in support of UAS BVLOS operations. These 3PSP could be used in a variety of ways to provide technical or strategic mitigations for the AFR.
A regulatory approach for accepting a MOC for 3PSPs must first be established. The ARC says the FAA and NASA should conduct a study to determine what level of aircraft operations in a defined volume of the airspace might trigger the need for mandatory participation in federated or third party services.
But Wait…There’s More
With 400 pages of single-spaced text, there’s a lot of other ground the Report covered – everything from environmental recommendations, to spectrum, cybersecurity, counter-UAS and even network Remote ID.
Lisa Ellman, Partner at Hogan Lovells and the Executive Director of the Commercial Drone Alliance says, “This ARC report represents a watershed moment for the future of American aviation – whether we embrace the future of aviation, and allow society to reap the benefits of drone services, or whether we get left behind relative to our global peers. The many societal benefits of UAS cannot be fully realized without a regulatory structure that enables safe, expanded, efficient, and scalable BVLOS operations.”
While the global industry and the FAA mulls over this Report, the ARC hopes that the Administration will provide an interim pathway to enable BVLOS operations, pending finalization of any future BVLOS Rule. This could take the form of an interim, expedited pathway to small-scale BVLOS operations that do not present significant impacts on the environment. In the meantime, the FAA will likely continue the waiver and exemption process. It might even consider these proposals as a basis for approval. And so the walk continues, in the “crawl, walk, run” that is the UAS regulatory process.