Part 108 and BVLOS Flight – When Will it Happen, and What Will it Look Like? From Law-Tech Connect, at the Energy Drones and Robotics Summit

Today kicked off the Energy Drone and Robotics Summit in Houston and the Law-Tech Connect Co-Located Event.  At Law-Tech Connect, a panel of experts provided an insider view on when the drone industry might see a Part 108 rule on BVLOS flight – and what that rule may look like.

Flight beyond visual line of sight (BVLOS) of the operator have the potential to dramatically expand commercial drone operations, improving the return on investment for customers and advancing the ecosystem by clarifying the technical requirements.  While former FAA Administrator Steve Dickson promised an NPRM on Part 108 and BVLOS flight by the end of 2022, the industry is still waiting for a formal announcement.

Moderated by USI CEO Josh Olds, the panel consisted of drone industry veterans: Don Berchoff, (Col USAF Ret.) & CEO, TruWeather Solutions; Rob Knochenhauer, Director of Regulatory Affairs, Censys Technologies; Mary-Caitlin Ray, Counsel, Crowell & Moring (Former Attorney, FAA); and Edwin Sanchez, CEO, VOTIX

Mary-Caitlin Ray may be one of the few people who read the entire 300+ pages of the BVLOS ARC recommendations package, released in March of 2022.  “The ARC was a thick read… and it made a whole slew of recommendations to the FAA,” said Ray.  “It is much broader than just BVLOS.  BVLOS is a huge gap, but there are other gaps as well.”

Ray points out four major directives outlined in the BVLOS ARC recommendations.

• Develop acceptable risk levels. “It’s intended to be a performance-based rulemaking,” says Ray.
• Increase in conspicuity (visibility) for drones – acknowledging that they can be tough to see, which creates a problem when you are talking about right of way. There would be pockets where drones might have priority over manned aircraft, where right now drones are always responsible for giving way.
• Develop rulemaking for pilot certification and operator certificates. “Operations control is a foundational issue for manned aircraft, but it hasn’t really been clarified for the unmanned industry,” Ray comments.
• Establish standards for the maintenance and repair of unmanned aircraft.  Ray explains that this point is relevant for Type Certification: manned aircraft must adhere to very specific standards of maintenance and repair to return to airworthiness.

“Overall, [the recommendation package] was a Herculean effort by the group – and assuming FAA moves forward with Part 108, it will lead to much greater integration of drones into the airspace.”

Asked when a BVLOS notice of proposed rulemaking (NPRM) may be released, Ray says that a number of factors come into play.  One of those factors is FAA Reauthorization.  The current FAA Reauthorization will expire in September of 2023: a draft of an FAA Reauthorization bill, the Securing Growth and Robust Leadership in American Aviation Act, was released by the House of Representatives last week.  The FAA Reauthorization package calls for an NPRM [on Part 108] 4 months after FAA Reauthorization, with a final run one year after that.  Ray points out it’s a very short time frame – and there is no guarantee that Congress will pass a timely FAA Reauthorization.  “I’m cautiously optimistic about a 2024 timeline… but I wouldn’t advise anyone to count on that,” she says.

Edwin Sanchez points out that while the US stalls on a rule, other countries are moving ahead.  “The government needs to be faster,” he says, “because the technology is moving fast, and we are falling farther and farther behind other countries…. There is a pressing need to do something.”

Don Berchoff doesn’t hold out much hope for a quick rule, recommending that companies pursue the options that are available now for expanding operations.  “It’s going to take longer because it always takes longer,” he says.  “Waivers are going to be the path of least resistance until that regulation is set.”

While government moves more slowly than industry, Rob Knochenhauer sees more reason for optimism.  “We’re in the open comment period for the BVLOS technical solutions,” he points out.  “There’s a lot of specific questions that are out for specific comment right now – and that feels like it could be a precursor for a rulemaking.  It feels like they are laying the groundwork – I think that there is a really vested interest in moving the needle on this.”

In addition to the current FAA docket seeking input on BVLOS operations, the “Increasing Competitiveness for American Drones Act of 2023” now proposed in the Senate would require the FAA to implement all of the recommendations from the ARC – and would also require the FAA to explain to Congress if they decide not to implement any of those recommendations.  “If this comes into law, we have a better idea of what Part 108 is going to look like –  because it’s going to look a lot like the ARC recommendations,” says Ray.

None of the participants think that a rule on Part 108 is imminent. “Congress likes to put a time line on it but it’s still a question of resources,” says Berchoff.