Part 108 NPRM: Normalizing UAS BVLOS Operations

Beyond the Buzz Bonus Episode: Part 108 NPRM: Normalizing UAS BVLOS Operations  

Erin Roesler: 

The point of today is to first provide an overview of what 108 is, what it is not, who it will affect, what are some of the basic high-level operating rules and takeaways from what we’ve seen thus far. And then a few nuggets of what we think, as a test site, will be things that will definitely be in the final rule and what are some areas that will be open for debate, open for comment. And then what we can do to help. 

The purpose of this today is us to do our public servant civic duty as state of North Dakota employees and help you understand what is quite literally a nice light read of 731 pages. I understand a lot of people have probably already thrown this into a generated summary sheet, but I guarantee I have actually read all 700 pages in the last few days. It is a delightful read. But it is something that I think will be transformative for this industry and for our ecosystem here in North Dakota. So I am very happy to be here, happy to answer questions. I don’t promise to know all the answers, but test me as you will and we’ll see what page numbers I can come up with. 

So without further ado, Part 108, if you’re not aware, is really seeking to provide a clear, repeatable pathway for those beyond visual line of sight rules. Up until this point, and in fact in the preamble of the NPRM, it talks about how there are currently about 290 unique beyond visual line of sight operators or operations happening. And if you’re one of those, you know the pathway from conducting your 107 operations or however you’re conducting UAS operations to getting that beyond visual line of sight waiver or exemption is probably difficult to say the least. 

What Part 108 really seeks to do is provide that clear streamlined approach. There’s no more guessing game. There’s no more questions. If you want to do beyond visual line of sight operations, this is the rule set that you need to follow. So it’s providing that clear pathway that then applies not only to the operations but also manufacturers, who will be building aircraft that will be leveraged under this Part 108 rule set and have to also follow Part 108 as well. 

The third category of entities that’s affected by the rule is not operations or manufacturers, but a new category for the FAA, which is called the automated data service providers. If you’ve heard UTM, UAS traffic management, USS, 3P, 3PS, or a whole host of other terms to talk about an entity that’s offering services or infrastructure, software, technology that supports a drone and a drone operation, you are now falling under this new certificated part, which is Part 146. So entities that are providing that, which could be separate from a manufacturer and operator, or if you are an operator and went vertical and essentially developed your own data service, you would also be falling under this new certificated part, Part 146. 

So the rule set that was proposed is wide-reaching, as I said: operators, manufacturers, and the service providers. The types of operations that 108 will apply to include package delivery, including medical; agriculture, which includes aerial applications, so spraying pesticides or herbicides; aerial surveying, so pipeline inspection, oil line inspections, linear infrastructure, wide area infrastructure, all those fall under aerial surveying. Civic interest, also said another way, public safety: wildfires, emergency response, disaster response, those would all fall under a civic interest vein. Operations training is separate than if I am a package delivery company and I want to train my own employees. Operations training is really for if I am a flight school or an entity providing qualifications for personnel, pilots, or otherwise in the beyond visual line of sight vein. There is an operations training category as well. Demonstration could be manufacturers conducting demonstrations of products or third-party salesmen conducting demonstrations of various UAS. Recreation is acknowledging that there is right now a prohibition on recreation flying beyond the visual line of sight, and that would be permitted under 108 if you’re following the rule set. And the last category is flight testing. So, again, something that typically applies to manufacturers but could also apply to automated data service providers who need to gather data and prove out the safety case of whatever product, manufacturer, payload aircraft, or data service. 

As you look at the rule set, it has some pretty big categories of what it applies to and what it’s not. What you do not see on this list is the category of advanced air mobility. If there’s a passenger on board, you’re not going to see that permitted under Part 108. The FAA looked at what was going to be permissible under Part 108 and said Part 107 is probably one of the lowest risk operations. The next kind of low-risk operation the FAA allows in the NAS is Mosaic. Part 108 falls squarely in between Part 107 and Mosaic. So, if you’re familiar with Mosaic, it has a cap weight of 1,320 pounds. Part 108 also has that same weight cap of 1,320 pounds. However, since AAM is prohibited under Part 108, there’s no people on board, it is therefore a lower risk category than Mosaic. 

So you have Part 107 down in the bottom corner of the risk continuum, low risk. Mosaic is the next one up. Part 108 falls squarely in between. And that’s where you see that under Part 108, as proposed, it would not allow advanced air mobility or air taxi type operations. Very similar to 107, 108 does say that operations are at or below 400 feet AGL in most cases. There are a few instances where above 400 feet would be permissible, for example if you are transitioning over some very rough terrain where the terrain changes in elevation quite rapidly, so very steep terrain, temporarily exceeding 400 feet AGL would be permissible. If you are maneuvering to avoid another aircraft in the airspace, going up to 450 feet AGL is permissible. In 107, we see that 400 feet is a waiver route, so a lot of operations have gotten a waiver in 107 above 400 feet. In the proposed rule set that is 108, there is not a list of regulations that are subject to waiver yet. A lot of times we see that in the final rule. This one could be one that is maybe waivable or altitudes above 400 feet might be allowed. However, there’s not a lot of justification in the preamble to really indicate that the FAA is or is not thinking that 108 will apply above 400 feet. So that is an unknown for whether 500 feet, 1,000 feet, or higher altitudes would be allowed under that rule set. 

What is apparent throughout the rule set though is that there is a drastic increase in FAA oversight and approval process. While the rule set is out there, you don’t need a waiver or a COA, so you don’t have to go through that process to the FAA, there is a lot of oversight on an operation, an operator, a manufacturer, and a service provider. You see that all the way down to if an operator is seeking to operate under this rule set, having FAA-approved not only procedures and process and a certificate but also where you’re going to fly, what routes you’re going to fly, so the takeoff and landing locations, whose personnel are authorized to conduct those operations. All of those are mandatory and approval requirements of Part 108. 

Also for 108 operations, we see the new terms of strategic deconfliction and conformance monitoring. Strategic deconfliction is something that happens pre-flight. Before I go flying, I’m going to either engage through software or right within my drone something that indicates not only for myself but to other users of the NAS where I intend to fly pre-flight. This is referred to as an operational intent volume. Whether it’s a box or a 3D geographic area, I map out that operational intent volume, submit that in, and that’s shared with other users of the NAS and deconflicted strategically to ensure that no one else is planning to fly in that same airspace at the same time as I want to fly. 

Then once I am flying under that operational intent volume, once I am in route and flying on that plan, if I deviate from that, I need to have some sort of conformance monitoring. If I go outside my little bubble, it’s not only going to alert me of, “Whoa, I went outside my bubble,” but also it’s going to alert other airspace users in that vicinity that someone flying in this airspace is not adhering to their operational intent volume. So strategic deconfliction and conformance monitoring are now minimum requirements for all operations under 108. 

In addition to that, if I am flying in airspace that is higher level controlled, so Class Bravo and Charlie airspace, or in more congested airspace, so in or around airports and higher population densities, which the FAA refers to in Category 5, I also have to have detect-and-avoid, some means to ensure that I am able to detect both cooperative and non-cooperative airspace users. So that means if I am a traditional pilot flying around and don’t have transponder, don’t have ADS-B, and I’m totally entitled to do that, in those certain classes of airspace and population densities, the UAS has to be able to detect that I’m flying around in that airspace. 

There’s a lot of different rules in 108. Overarching, there is a new operating rule set. Up until this point, we’ve had either I get to fly under 107 or I get to fly under Part 91. This does introduce a new operating rule set to fly under Part 108. So now we as a UAS operator have essentially three different flight rules that we can elect to operate under. They’re not interchangeable. I can’t go from flying 91 and halfway through the flight need to fly under 107. Doesn’t work that way. Pick which rules of the air you want to fly by. But Part 108 does introduce a new rules of the air. 

In order to fly under those rules, I have to have as an operator an operating permit or certificate. Rewind a year ago, the best guess, and based upon the BVLoss ARC recommendations, we were anticipating to see a new rating on your remote pilot license. Right now, if you have a remote pilot license and flip it over on the back, it says small UAS rating. We anticipated that we would also see a new rating that would say BVLOS or beyond visual line of sight rating. That’s not the case. Part 108 does not introduce any new pilot requirements. It does put all the onus on the operator. 

That would be a company or an entity, could be a single person, but it is on the entity, the operator, to meet the requirements as per their operating permit or their operating certificate. Generally speaking, a permit is easier to achieve, but it will only get you privileges to fly in lower risk airspace, lower risk environments, with some confinement on weight or scale of your operations. You can’t fly a fleet of 200 aircraft. You might be limited to a fleet of 25 or 100 based upon your operating permit. 

An operating certificate would be wider, so it has applicability in more congested airspace, more complex airspace, higher population densities, and less of those restrictions on the aircraft weight or number of aircraft that my company can operate. But in order to get that operating certificate, I have to have a little bit more rigor to my company, a little bit higher maturity in order to get that operating certificate. 

For either an operating permit or an operating certificate, there are kind of three categories of things that I need to prove to the FAA in order to get a permit or certificate. First being personnel. As I said, no new pilot requirements. However, it does introduce two new personnel terms. The first being an operation supervisor, the second being a flight coordinator. 

An operation supervisor is intended to oversee the operation clients for the company, and flight coordinator is kind of like the new pilot. It’s acknowledging that as autonomy and AI have gotten more and more advanced with these UAS systems, the word pilot isn’t quite appropriate anymore because the stick skills a traditional pilot would have might not be appropriate. You might not have, for a particular aircraft design, a human in the loop, on the loop, or outside of the loop. And so really it is the role of a flight coordinator that is overseeing whatever level of autonomy that drone has. They still have the ability to intervene and execute decisions for the same flight, but it’s probably not the same level of intervention that a traditional pilot, or what we think the pilot has up until this point. So the FAA elected to use the term flight coordinator. 

The second category of things that you have to prove out with a permit or certificate is the airworthiness of the aircraft. Most of this onus is on the manufacturer. Yes, an airworthiness certificate is not required for Part 108. However, airworthiness acceptance is, and it is not quite as difficult as an airworthiness certificate. But don’t think it’s as easy as 107. In order for a manufacturer to get airworthiness acceptance, they have to first and foremost have procedures for airworthiness acceptance: conformance to industry accepted standards, building out their internal quality management, quality control processes and procedure, cybersecurity, data management. All those are requirements that a manufacturer must have in place. In addition, they’ll have to go through design and testing requirements. All that is a prerequisite to actually submit to the FAA to get that airworthiness accepted for a particular aircraft. 

Then also on the operator, once I buy a particular aircraft that has an airworthiness acceptance under Part 108, I’m not just good to go either. I have to adhere to and cannot deviate from the manufacturer’s guidelines on the design, performance, maintenance, alterations, etc. It’s very akin to light sport aircraft, with the exception of rather than getting experimental at the end of that, it is airworthiness acceptance. 

The third category is the procedures, and the procedures do change between an operating permit and operating certificate. But both do have the baseline, which you’ll see in the difference in the bullets: cybersecurity and data management. That’s a minimum requirement for both, whether it’s an operating permit or an operating certificate. 

An operating certificate then, getting more privileges, I have to prove out a higher level of maturity and rigor to the FAA. So training program validation tests, communication assessment, that means C2. When I do an operation I have to have an entire C2 analysis of that flight to ensure that I am going to be able to maintain my link integrity for the planned flight operation. Ground risk assessment, which it actually points to Landsat data, but not only just terrain obstacles but then in addition to population densities, taking that into account in my ground risk assessment. A SMS system that aligns to Part 5. Inoperative equipment. Something’s probably going to break on my UAS at some point, no matter how well it’s designed. So I have to have a minimum equipment list, set another way. So for those that come from traditional aviation know exactly what that means, but minimum equipment list meaning: if something is inoperative, what’s acceptable to be inoperative and what’s not acceptable to be inoperative? And if it is acceptable, how do I placard and still continue the operation in a safe way, and for how long can I do that? That’s all requirements in the inoperative equipment procedures. 

And then lastly, anything that would be type-certificate appropriate. If I’m going to apply for package delivery, I would have to have package handling and hazardous material type procedures in place. If I am doing aerial application, spraying pesticides or herbicides, I would have to have those procedures in place as appropriate. So all of those are prerequisites to going into my application package to get an operating permit or an operating certificate. 

Operating permit and operating certificate are different. Permit is intended to be for those lower-risk BVLOS operations. They might be limited in scope, scale, and weight of aircraft. Certificates are for those higher-risk BVLOS operations. In complex environments, higher population densities, higher weight categories, higher scalability and higher scope of operations. And you can see that the eligibility requirements, risk level, approval process, and oversight scales based upon a permit versus certificate. 

As for SMS and training, the differences are significant. Under an operating permit, SMS is not required, and the training expectations are just basic training requirements. The rule set calls out what are expected to be part of your training program, but it’s pretty basic and mirrors a lot of the same knowledge requirements you see under 107: aerospace, weather, aeronautical decision making, strategic deconfliction, conformance monitoring, etc. 

If you want to do all that under Part 108, you have an operating certificate. There, SMS is required, and there has to be a comprehensive training program which also has to be FAA approved. It’s part of that prerequisite to get the operating certificate. Once you apply for that certificate, that program is essentially your own training program and is an FAA approved training program. Deviation from that or election not to adhere to that is not an option. 

The documentation required for all Part 108 operations is going to be a drastic change from 107. Flight logs, maintenance logs, alterations, personnel records, cybersecurity aspects, any vulnerabilities or interference on your C2, the documentation, recording, and reporting to the FAA is going to be much different than what you would experience under 107 operations today. However, if you are well-versed in Part 135 or Part 121 in a traditional sense, you’re going to see the direct traceability from these requirements to those. We as the UAS industry are getting a lot of those privileges that Part 135 and Part 121 traditional air carriers get today. And to get those privileges, we have to adhere to something that looks a lot more like their minimum requirements, which includes documentation, reporting, and records. 

Airworthiness acceptance is the second box. A lot of this onus is on the manufacturers. It was a challenge for the BVLoss ARC at the time to really write strict standards on how to design requirements in rule that are future proof because we knew we were trying to come up with airworthiness requirements for aircraft that weren’t even conceptualized yet. This airworthiness acceptance, which again is very akin to light sport aircraft, is something that we think will be a little bit future proof. It has some basic fundamental steps to the process that the burden is on the manufacturer. However, that means the rule set will be a solid enough foundation to not prohibit new types of aircraft design from coming out and being invented. 

First and foremost is design and development. So on the manufacturer, if I am seeking airworthiness acceptance, which is a minimum requirement for any operator that is going to conduct operations under Part 108, the aircraft has to have airworthiness acceptance. The design and development probably follows industry consensus standards or some sort of means of compliance. I could write my own means of compliance, but leveraging industry consensus standards and those safety standards in order to do so. That could be traditional industry consensus standards. You can leverage some of the light sport design standards that are out there, or what we’re anticipating to see is a whole influx of new standards, design standards, specific for UAS. 

So once I design and develop my aircraft, I still have a lot of testing and validation. I can’t just say I developed a prototype of one. There are requirements on the testing and validation, conducting the flight testing, gathering that data, and then using that data to compare or build your documentation. So your compliance documentation, your procedures, your operating limitations, and your configuration control. All of that documentation then rolls up into your FAA acceptance package, which then the FAA reviews, approves, and ultimately issues your airworthiness acceptance. 

But airworthiness acceptance should not be viewed as something that is one and done. There is ongoing conformance and monitoring that has to occur as the aircraft are then bound to operate in the confines of those manufacturer limitations. This is one part of the NPRM I did find interesting. There’s not a speed limit in here. There’s not a weather limit in here. You don’t see those as part of the operating rules. What you do see is weather limits are as per manufacturer guidance. Speed limits are as per manufacturer operating limits. That’s what you see instead. 

There may be an aircraft that, I don’t know, their max speed is five knots, and for that aircraft operating under that operating permit, that is truly their max speed. Doesn’t matter if it can go 10 knots, 50 knots, 100 knots. That is what their limitation is under the operating rule. There is an interesting proposed ruling here which I would encourage people to comment on because it goes back to the manufacturer. It says, manufacturer, if you’re developing an aircraft, that aircraft cannot exceed 87 knots ground speed, which is a really big challenge. I think I understand why the FAA proposed it. They have the justification on it, and they’re actively seeking comments on that. So there is an upper-bound limitation for a manufacturer not to invent and get an airworthiness acceptance for an aircraft that has a max speed greater than 87 knots ground speed. 

And then there’s also the ongoing compliance. Just because you have airworthiness acceptance, gathering data back from the operations that are being conducted, so if you sell 50 of these aircraft out there, continuing to gather the data back on those aircraft and then providing that back as the continued operational safety of your aircraft design is a requirement under Part 108 as well. 

Configuration control is a big issue. They wanted a configuration lock, but technology changes and gets better. If you want to upgrade and all of a sudden you start over for amendments, did that change? It’s proposed that it’s a little bit more flexible. It’s not 100 percent locked down where you’re restarting over. However, it may require an amendment to your airworthiness acceptance. You can also, as it reads, have some configurations that are maybe modifiable that would be allowable within your airworthiness acceptance. So different payload packages, like a box to carry packages, and they’re swappable, those could all essentially be possibly permitted under the same airworthiness acceptance for the aircraft based upon the aircraft’s documentation that is provided as part of that acceptance package. 

The area that is a little bit more open is on the software. It has more aspects on the data management, software versioning, and some acknowledgements that minor changes or patches would be acceptable, but full major changes would require some additional documentation, not a reset but some documentation that would have to go back to the FAA. 

The last category is actually very interesting because even though we’re dubbing this the Part 108 NPRM, that also introduces Part 146. Part 146 is for automated data service providers, and I think this will honestly revolutionize a lot of the UAS industry. Up until this point, if you were a service provider, UTM, USS, 3PS, your service had no way to really get certified, acknowledged, approved by the FAA agnostic of a very specific operator. The only way Vantis really could get acknowledged and accepted by the FAA is when an operator went in and petitioned for a waiver or an exemption to do their operations. 

About two years ago, the FAA started to gather data on how they would certificate service providers by introducing a new program called the Near-Term Approval Process, NTAP. Service providers were accepted into that program, completed the four phases, and were issued a letter of authorization at the end. Vantis was one of them. Wing and Zipline were also two others that received LOAs through that process. But that now is replaced by a new Part 146 rule. This is a huge opportunity for service providers to be certified independent of an operator or an operation. 

The service provider aspect of things is any automated service that could contribute to beyond visual line of sight. So it could be a weather service, strategic deconfliction, DAA. All of those would be services that could then be certified under Part 146. But for an operation under 108 to leverage a service that provides detect-and-avoid, deconfliction services, or conformance monitoring, that service must be certified under Part 146. 

This is really going to separate 108 operations and manufacturers from immature operators into mature operators. You’re going to see this in the service provider aspect as well, that there’s going to be a lot of entities that have been operating these services that will not be able to meet the proposed Part 146 requirements unless they really increase the maturity and robustness of their organization. 

The requirements to become an automated data service provider are, first and foremost, adhering to industry consensus standards and interoperability standards. We have to talk to other services that are out there. They have to implement quality management systems, cybersecurity policy and procedures, data management procedures, change management procedures, software versioning control, and then conduct operational and test verification and validation of all their different services as well as versionings of their service moving forward. 

There’s a lot of rigor, a lot of operational maturity that is required to now offer a service provider. But at the end, you also have to allow FAA oversight and validation of that service before it can be offered and essentially certificated under Part 146. 

If I have any comment on 146, it is for anyone that has said Vantis was overengineered and overly robust, 146 just proves them wrong. I would say today Vantis currently hits 90 to 95 percent of the requirements that are proposed in 146, which is a huge relief off of our team’s shoulders. But it really illustrates the level of rigor that the other service providers in this area will have to overcome in order to become certificated under Part 146. 

No one gets grandfathered in automatically. Everyone is going to have to get certificated under Part 146. The other interesting aspect of Part 146 is that it has three different service levels within this part. Service levels one and two talk about offering services for operations that are being conducted under Part 108. Service level three, which has more robust requirements, is for services that are being offered for operations that occur under other rule sets, could be 107, and even though the NPRM doesn’t call it out specifically, it’s alluding to operations under Part 91. 

So as a service provider, I’m not just limited in scope to 108. Part 146 is a larger aperture. It says, if you want to offer detect-and-avoid services to 108 operations, you only have to meet levels one or two. But if you want to offer detect-and-avoid services to other airspace users, other airspace users that are operating under Part 91, you have to meet level three. So it’s a big incentive for service providers because it opens up their market. My market in developing a service and a product isn’t just those operations under 108; 146 also expands to helping operations under Part 91 as well. 

Where are we at today? The 731 pages dropped August 7th officially. Next steps in the process: read the NPRM. I pulled out a couple spots where I think it would be really worth reading if you’re not going to read all 700 pages. But you’re highly encouraged to submit your comments. Comments are due October 6th. When you’re submitting your comments, the more solution-oriented you can be, the more data-driven, the better the comment is going to be. This is really going to provide information that will help the FAA make an informed rule. 

I’d also add: don’t just add the areas of the NPRM that you’re unhappy with. Add the areas that you’re happy with, because if there are areas where you go, “Wow, this is great. The FAA knocked it out of the park. They should not change this. This as a proposed rule should go right to final rule,” add that in the comments as well because if they don’t have that comment out there, they don’t know. The FAA doesn’t know. So it’s equally important to not only complain about areas that you feel are unfit, but also reinforce those areas that are good proposed rules so that way we have those out there and the FAA has those records and the comments to support their final rulemaking decision. 

The FAA does call out that there are currently about 290 unique operators operating BVLOS under a waiver or exemption today, and it says that those operations are expected to continue until the expiration of their waiver or exemption, at which point they anticipate a large majority of them then moving under Part 108. That said, some of those waivers and exemptions may be operations being conducted under Part 91, and those operations may continue. Part 108 may not be the rule set for them because they’re either at higher altitudes or different airspaces or for different operational privileges, and Part 91 might still be the rule set for them to continue. 

Part 146 is a huge opportunity for service providers. The FAA cites two letters of acceptance, and our team was discussing earlier that we are aware of three letters of acceptance the FAA has issued: Wing, Zipline, and Vantis. We don’t know if there are any others, but that is what it calls out in the NPRM. They only cite three. The letter of acceptance isn’t the first going forward. It just indicates who the entities are that have been in the space and have gone through that rigor with at least the FAA. 

So, where are we at today? The 731 pages dropped August 7th officially. Next steps in the process: read the NPRM, submit comments by October 6th, and make those comments solution-oriented and data-driven. There is an opportunity for approvals ahead of final rule. The FAA has said it intends to take a similar approach to Part 107, where waivers ahead of rule were used, and that it wants to approve operations ahead of rule here as well. 

This is a major step, and we want to help position North Dakota and this ecosystem, which is already very well suited for Part 108, so that when 108 gets finalized we are seamlessly ready to go. We’re here to help, whether with comments, interpretation, or positioning for compliance. So with that thank you.