January 15, 2021

The Federal Aviation Administration (FAA) has published a final rule regarding the operations of certain small unmanned aircraft systems (referred to hereinafter as “UAS” or “drones”) over people, including those drones that may be used for inspection purposes on construction projects.

Overall, this final rule amends the FAA’s regulations at 14 CFR 107 by permitting the routine operation of small UAS at night or over people under certain conditions without a waiver.  The applicable conditions vary depending on the level of risk the drone operations present to people on the ground.  The FAA is finalizing 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 Category 1, operators will be permitted to fly drones weighing 0.55 pounds or less over people.  Category 2 is intended to provide flexibility for operators who wish to conduct operations over people using unmanned aircraft that weigh more than 0.55 pounds.  The requirements specific to Category 2 have three parts: (a) the drone must be designed, upon impact with a person, not to result in an injury as severe as the injury that would result from a transfer of 11 feet-pounds of kinetic energy from a rigid object; (b) the drone must not have exposed rotating parts that could lacerate human skin; and (c) the drone must not have an FAA-identified safety defect. Category 3 under the final rule allows for a higher injury threshold than Category 2 but also limits an individual’s exposure to the risk of injury through operational limitations.  Like Category 2, the requirements specific to Category 3 have three parts: (a) the drone must be designed, upon impact with a person, not to result in an injury as severe as the injury that would result from a transfer of 25 feet-pounds of kinetic energy from a rigid object; (b) the drone must not have exposed rotating parts that could lacerate human skin; and (c) the drone must not have an FAA-identified safety defect.  The rule also includes operating requirements like those listed for Category 2 operations with certain additional operating limitations.  Specifically, Category 3 operations are generally prohibited over open-air assemblies of human beings and are only permitted if: (1) the operation is within or over closed- or restricted-access sites and everyone within that site has been notified that a drone may fly over them; or (2) the drone does not maintain sustained flight over a person not directly participating in the operation or located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling drone. Category 4 under this final rule allows drones that have been issued an FAA airworthiness certificate to operate over people in accordance with 14 CFR 107, so long as the operating limitations specified in the approved Flight Manual or as otherwise specified by the FAA Administrator do not prohibit operations over human beings. 

The final rule includes provisions regarding remote pilot testing/training requirements and drone inspection, testing, and compliance.  14 CFR 107 previously required initial small UAS remote pilot applicants and small UAS remote pilots to complete either an initial aeronautical knowledge test or a recurrent aeronautical knowledge test within the previous 24 calendar months prior to operating a covered drone. This final rule revises these regulations to require recurrent training instead of a recurrent aeronautical knowledge test.  The rule maintains the provision that people who hold a part 61 pilot certificate (other than holders of a student pilot certificate) and have completed a flight review within the previous 24 calendar months may continue to complete either initial training or recurrent training.

This final rule is generally effective on March 16, 2021.

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