NUBO (Part 108)

Beyond the Buzz (episode 3) - NUBO (part 108)  

September 10, 2024  

Erin Roesler:  

good morning, good afternoon, or good evening, wherever you’re joining us from. Today, welcome to Beyond the Buzz, our monthly deep dive into the evolving world of UAS, unmanned aircraft systems, and autonomous systems. 

This webinar is brought to you in collaboration with The Hive, our one-of-a-kind hybrid business accelerator and incubator that fosters innovation and growth in the UAS sector. I’m Erin Roesler, deputy executive director for the Northern Plains UAS Test Site. 

Each month, we’re going to pick a topic that’s critical to the understanding and advancement of UAS technologies and regulatory landscapes, aiming to clear the fog and move beyond mere buzzwords. So today, our focus is on Part 108, or now more formally known as NUO, normalizing UAS beyond visual line of sight operations, which is a pivotal piece of our ongoing conversation about the integration and safe operation of UAS in our skies. 

So, whether you’re an industry professional, a hobbyist, or simply curious about the future of aviation and autonomous systems, there’s something for you here. So let’s get started and deep dive into today’s topic. 

Today, we are going to be discussing normalizing UAS beyond visual sight operations, or otherwise known as NUO, but what a lot of the industry up until this point has been calling Part 108. If you hear either term, Part 108 or NUO, we’re talking about the same thing. 

Before we jump into NUO and Part 108, let’s first take a quick step back and look at how we get new rules in the first place. If you look at Part 11, it actually is the FAA’s general rulemaking procedures and process, and you can see there’s a variety of steps that we have to go through in order for us to arrive at a final rule. 

Currently, the industry is eagerly awaiting the notice of proposed rulemaking, or NPRM, that will be Part 108 or NUO. What the FAA is doing right now is gathering a wide variety of information and sources of information through programs, projects, exemptions, and procedures that will inform what that notice of proposed rulemaking will be. Then, ultimately, after that goes out for public comment, we’ll see those comments adjudicated or discussed and then published as a final rule. 

While we’re in the rulemaking process, the FAA can’t tell us exactly what the final rule or the proposed rule will look like. However, we do have a series of very key triggers and indicators of what the FAA is looking at and what might inform that NPRM. Those four things we have right now today are the UAS BVLOS ARC recommendations, a May 2023 FAA publication of policy questions that show us exactly what the FAA is thinking, a series of BVLOS exemptions that have been approved, and, finally, a few letters of acceptance that are starting to be issued from the FAA that indicate what it is thinking, particularly with regard to UTM services and third-party service providers. 

Of those four, let’s quickly look at each source. The first is the BVLOS ARC, the aviation rulemaking committee, which is actually an official part of the rulemaking process. The ARC was stood up by a charter that brings together industry to inform and produce a report to the FAA on a series of recommendations within the scope of its charter. 

The charter specifically for this BVLOS ARC tasked the committee with providing recommendations on performance-based regulatory requirements. This is important because it means there’s hopefully going to be a wider scope and wider variety of operations enabled by looking at a performance-based foundation. 

You’ll also see that it was limited in scope for some of the operations, at least for the BVLOS ARC activities, where the UAS operations are not under positive air traffic control. They could be in controlled airspace, but they’re not receiving air traffic control services. At a minimum, the BVLOS ARC also had to look at linear infrastructure inspections, aerial data gathering or survey operations, package delivery, and precision agriculture or crop-tending operations. 

The BVLOS ARC was published in May of 2022 and contained a series of considerations and narrative around market, environmental, privacy, and security concerns that gave insight into what the ARC committee looked at, considered, and discussed as a group to arrive at the list of recommendations they put forth to the FAA. At the end of that report, you’ll find the proposed regulatory text. 

Again, these are just recommendations, but if you’re trying to get a sneak peek at what NUO or Part 108 might look like, we know the FAA is heavily referencing the work done by the BVLOS ARC committee. This would be a great source of information to inform what NUO and Part 108 will look like. 

Next, in May of last year, we saw the FAA publish a list of questions on BVLOS policy. These questions, while not having the answers, did show the areas in which the FAA was inviting investigation and gathering more information. They also give us some insight into what the FAA is looking at when it comes to NUO and Part 108. 

You can see they first looked at detect-and-avoid systems, in particular those performance standards. They are looking at RTCA standards when it comes to DAA systems, and they are also looking at declarations of compliance with those associated DAA systems. 

They’re looking at the well-clear boundary, starting with 2,000 feet horizontal and 250 feet vertical. We’re also seeing that the DAA systems that include third-party services or associated elements had some questions around them. They also looked at the use of UTM and UTM-like services, both of which fall into the category of how to operate or certify third-party services, maybe agnostic of an operator. 

Lastly, they had a series of questions on detecting AOA between two UAS, and then the final series of questions was on BVLOS operations in the shielded environment, defined as within 100 feet of a vertical structure. 

The third area of information is a series of exemptions approved in fall of 2023. There were four exemptions that were approved. They were petitions for exemptions, and they weren’t the only exemptions in the queue, but these four were specifically chosen because they fell into one of three buckets: linear infrastructure inspection, package delivery, and third-party services. 

Phoenix Air on M was the linear infrastructure inspection exemption specifically chosen because it fell into that bucket. UPS Flight Forward and Zipline fit into the package delivery bucket. The fourth exemption was for an operator, UAVionix, but in particular because of the third-party services it leveraged with Vantis. The Vantis services were applied and useful in BVLOS enabling capacity, so they were then looked at for third-party services. 

Vantis wasn’t the only ground-based radar used. Of these four exemptions, UPS Flight Forward also utilized ground-based radar, but it wasn’t really being provided as a third-party service and doesn’t really fit into that bucket. So the UAVionix exemption is unique in that it is the only one of the four that really looks at third-party service applicability. 

The fourth area of information is a series of letters of acceptance that we’re starting to see come out from the FAA. This is only within the last couple of months that we’ve started to see more and more of these letters. They’re coming out from a wide variety of programs, but mostly they’re coming in with UTM and UTM-like services, particularly third-party services, because right now there is not a way for a third-party service or third-party system to be certified to support a UAS operation. Those rules don’t exist yet. 

However, acknowledging that, the FAA has started to look at processes by which to at least acknowledge them, and that is happening through these letters of acceptance. This is huge for the UAS industry because it is the first time you’re starting to see that decoupling of third-party services from a UAS operator. 

We saw this with the UTM-like services approved in the Dallas-Fort Worth area, where the FAA recently authorized multiple operators to leverage this service to conduct operations in the same airspace. It’s a deconfliction service from drone-to-drone, or UAS-to-UAS, operations. So it was a recognized third-party service to safely manage those drone-to-drone interactions. 

We’re also seeing these letters of acceptance come out for third-party services in the BVLOS capacity, recognizing the UTM-like services in supporting BVLOS by separating the operator from the service provider. In this case, operators who leverage those systems can almost get a safety credit when they’re seeking their BVLOS waiver or exemption. 

These letters of acceptance are starting to show some of the minimum standards, qualifications, system performance, and capabilities that the FAA is looking at, particularly for third-party services and UTM-like services to support BVLOS operations. 

So we have the BVLOS ARC report, the request for public comments from the FAA on BVLOS policy, the BVLOS exemptions, and the letters of acceptance. Those are all the pieces of information informing this notice of proposed rulemaking. 

We’re anticipating NUO or Part 108 to appear in early 2025, so it’s just around the corner. But that doesn’t mean we’ll see the final rule right after that. However, if we look at the FAA rulemaking language, we know Congress and industry are pushing hard for the FAA to move from the notice of proposed rulemaking to a final rule in 20 months. We’re hoping and eagerly awaiting that to occur. 

At least getting the notice of proposed rulemaking out in early 2025 is what we’re all waiting for and anticipating to see. So all the sources of information — the BVLOS ARC, the exemptions, and the letters of acceptance — provide a lot of information. The next series of slides will boil it down and present the Northern Plains UAS Test Site’s best educated guess on what we think NUO and Part 108 will look like. 

First, looking at the BVLOS ARC report, while it has over 70 recommendations, we’re looking at four key areas that are really informing what we think will be in that final rule. The first is special licensing for BVLOS operations. This is new and distinct for UAS, where we’re starting to see or anticipating operating certificates. We’ll talk more about this in the following slides. 

What’s important is that we have not really seen this to date. We have Part 137 and Part 135 as they exist today, but they were built for traditional aviation and assume that there is a pilot on board the aircraft when you apply for a Part 137 or Part 135 operator certificate. That doesn’t fit as cleanly for UAS operations. 

We’re anticipating a new set of operator certificates baked right into Part 108 or NUO, tailored to the unique aspects of UAS. 

The next set of recommendations is similar to that performance-based set of rules. We’re also looking to see established acceptable levels of risk, acknowledging that while that acceptable level of risk needs to stay consistent, there are different ways to reach it, particularly when looking at the operating environment. 

Operating in a dense, congested, heavily trafficked area versus a remote rural area of North Dakota requires widely different strategic and tactical mitigations. We’re expecting to see that circle out throughout the NUO rule in reaching an acceptable level of risk. 

Similarly, we’re also looking at how that acceptable level of risk will drive the nature in which a UAS needs to be certified, potentially seeing different levels of certification or acceptability within aircraft design. The fourth category is the levels of autonomy. 

Again, there are different levels of acceptance on how autonomous or human-in-the-loop a UAS and an operation can be, but that is probably driven by the operating environment while still maintaining ultimate safety within the operations. These are the four key areas we’re looking at when we think about NUO. 

I mentioned before that the BVLOS ARC report does have proposed regulatory text, so I’ve pulled out some excerpts and added some contextual and visualizations to help display graphically for us today. This is possibly what we think NUO or Part 108 could look like. 

I’m going to start by saying I had those key recommendations from the ARC report, and I’ve displayed them a little differently as we walk through the next series of slides because it helps frame things in a way that makes more sense for those of us used to reading Part 107 and seeing the applicability, definitions, limitations, pilot requirements, operating requirements, and rules of the air. 

We took a stab at doing that with what we think, at least as our best educated guess, NUO could look like. The first area, and the new area, is those remote operating certificates. As I mentioned briefly before, an operating certificate is required for certain flight operations for compensation or hire. 

How do we know what that is? If you go back to Part 119, it lists all the different operations that may or may not require an operating certificate, which ones do not, and then, if it does require an operating certificate, which operating certificate is required and the qualifications to receive it. That’s all fine and great, but Part 119 was originally written with the assumption that there was a pilot on board the aircraft. 

That changes the readings and wording we see within Part 119 and the subsequent operating certificates, whether that be Part 137 or Part 135 or even 121 and 125. In summary, there are two main types of operating certificates: air carrier and commercial operator certificates. 

What we’re anticipating to see with NUO is a tailored version of an air carrier or commercial operating certificate specific to UAS operations. Rather than going to Part 119 and seeing the equivalent or a list of all the different operations that may or may not require an operating certificate, we’re expecting to see that equivalent list mirrored within Part 108. 

From that list, we’ll know whether we need an operating certificate and what type of operating certificate our operation will need. Rather than going to those other subsequent parts, whether that be Part 121, 135, or even 137, we’re expecting to see Parts 121, 135, and 137 mirrored within Part 108 so that if I do read through that list of operations and find that I need to have my operation adhere to an operator certificate, I can go right into Part 108 and see the requirements around that operating certificate. 

What does that mean? It means if I follow the rules of Part 108 or NUO and I’m qualified with my appropriate level of risk and have my processes and everything, then I don’t need to go to Part 121 or 135 or 137 as a UAS operator needs to today. I just need to follow the part within Part 108 that now contains my operating certificate. 

A remote operating certificate just gets us started. If I have that operating certificate, then what? I still need a qualified pilot to operate on behalf of my company. I still need to have an approved aircraft, and I still need to follow the rules of the air. Let’s look at those three parts in the subsequent slides. 

First up is the remote pilot certificate. We’re anticipating to see, under Part 108 or NUO, the issuance of a remote pilot certificate with a new rating. If you look at your current remote pilot certificate, you will see that it is a remote pilot with a small unmanned aircraft rating. We’re expecting to see that the remote pilot certificate issued under Part 108 will be with a BVLOS rating. 

The requirements to get that BVLOS rating might actually be as simple as a knowledge test. However, we would then expect to see more of the training and qualifications and requirements levied on that operating certificate. Just because I have my remote pilot certificate with that BVLOS rating, in order for me to actually exercise the privileges of that certificate, I will have to go through the additional qualifications and training that my company or associated operating certificate levies on me. 

That means I can anticipate more tailored requirements because my operating certificate can take into consideration my operating environment, my aircraft, the type of operations, and the CONOPS, ultimately meaning the nature in which I’m qualified to do an operation allows me to conduct the operation more safely. We’re really excited to see that if this is truly the methodology the FAA adopts, this will be a really big step forward for the UAS industry. 

If we have an operating certificate and a pilot with a BVLOS rating operating under that, what about my aircraft? We’re anticipating to see that aircraft certification standards will be driven by an operational environment, meaning it is performance-based. 

If we look at the BVLOS ARC as a source of information, there are four operational environments defined or proposed within the recommendations: level 1, level 2A, level 2B, and level 3. They’re based upon the risks that can be strategically mitigated. 

In level 1, air and ground risk are strategically mitigated. In level 2A, only air risk is strategically mitigated. In level 2B, only ground risk is strategically mitigated. In level 3, neither air nor ground risk is strategically mitigated. 

What does that mean? Level 1, where we have strategic mitigations in both the air and ground risk aspect, probably means low-density airspace and a very low population density, or a rural environment. If only airspace is strategically mitigated, that could be a low-density airspace or 2B, whereas if only ground risk is mitigated, it could be a rural, unpopulated area. In level 3, it doesn’t mean you haven’t taken any strategic mitigations; it just means that in this particular case you’re not getting credit for air and ground risk being strategically mitigated. 

It could be a very high-density populated environment and heavily trafficked airspace. We look at those four operating environments, and from that, a series of requirements are driven. You first select whether it’s level 1, level 2A, 2B, or level 3, and then, again based on the BVLOS ARC report, we’re starting to see what the aircraft requirements are, what the maintenance requirements are, what some of the software, autonomy, subsystems, noise, and other associated element requirements are. 

This is performance-based rules in action. You start first with where you’re operating and what you can strategically mitigate out of the gate, and then from there it defines the rest of the requirements. That means it’s not one-size-fits-all. 

It’s acknowledging that if you are in that low-risk or low-population-density, low-airspace-traffic environment, you will have different requirements than someone operating downtown Dallas-Fort Worth over crowds of people. This is good news for the BVLOS industry if this is exactly what we see coming out in NUO. 

Our best educated guess, looking at the other sources of information, is that we anticipate this to be in some form visible within NUO. 

Okay, so I have my operating certificate, my pilots all have their BVLOS rating, I’ve selected my operating environment, and as we discussed, that’s going to drive my aircraft certification requirements, maintenance, software, noise, and associated elements. But what are now the rules of the air, or what rules do I need to follow when I need to go fly? 

This really introduces the last set of rules we’re anticipating to see within NUO, and it’s the rules of the air. We anticipate there will still be registration, there will still be a pre-flight requirement, hopefully one that will be either human or electronically needed, so that a preflight can be conducted in that BVLOS capacity. 

It’s going to have some rules for operations near other aircraft, near other UAS, near other traditional aircraft. We’re anticipating to see rules about operations over human beings, potentially, if it follows the BVLOS ARC recommendations, with a difference between transient operations, where I’m just quickly passing over human beings, versus sustained operations over human beings. 

Again, this goes back to that performance-based requirement for those operations. There’s a lot of guessing within this section, but the rules of the air are largely written, and it’s now finding a way in which BVLOS UAS operations can fit in and not disrupt the NAS, while complementing the existing rules of the air. 

What does this mean in summary? Again, our best guess is that we anticipate NUO to establish certification for third-party services. We’re going to see some rules around operator certificates. Those operating certificate requirements are going to replace the traditional Part 135 and 137. Then we’re anticipating everything else to derive from that operational environment, including the aircraft requirements, maintenance requirements, software, autonomy, noise, and all associated elements. Finally, we expect to see the BVLOS rules of the air. 

This is what we’re hoping will actually normalize UAS beyond visual line of sight operations and get us all to the point we’re waiting for, where BVLOS rules and BVLOS operations are happening by rule and not by waiver. 

What’s next? As I said, we’re anticipating the NPRM to come out in early 2025, and when it does, it will be open for public comment. We do anticipate this is going to be a bold move for really normalizing BVLOS operations for UAS. 

What we’re confident of is that the focus will stay on maintaining that balance between innovation and safety. We know that because of how the FAA has been presenting and briefing the anticipation of NUO within the last several months, and we know that has been its focus in this whole rulemaking process. We’re anticipating that to be integral to the actual NPRM language, and we know it’s also part of the rulemaking steps and procedures that the FAA has been following. 

Thank you for joining me today. If you have questions, we’re actually going to be hosting a live question-and-answer session in the upcoming days here. As you review, read, and watch this webinar, please reach out to us and ask us questions as we post the link to this video. 

Ultimately, thank you to each and every one of you for joining us today on another very enlightening session of Beyond the Buzz. It was a pleasure to talk with you and discuss what our ideas are for NUO and Part 108, and we hope that you found this discussion informative and engaging. 

A big thank you to our hosts at The Hive and to the Northern Plains UAS Test Site for always providing their invaluable insights and answers and the content to all your questions. But remember, the conversation doesn’t end here. We really encourage you to stay connected, keep learning, and join us again next month when we tackle another crucial aspect of UAS and autonomous systems. 

So check out our website, stay engaged on all our upcoming topics and events, and until next time, keep pushing the boundaries of innovation and safety in the skies. Bye.