FAA Releases New Commercial Drone Regulations, Section 333 Exemption Holders Get "Grandfathered" Compliance Status

Today, the Federal Aviation Administration (“FAA”) announced the finalization of its long-awaited Final Rule governing routine commercial operation of unmanned aircraft systems weighing 55 lbs. or less.  The new 14 C.F.R. Part 107 will become effective 60 days from the date of its publication in the Federal Register, which is likely to happen this week or next.

Below is an explanation of how the new Part 107 will affect entities that have already received a Section 333 exemption, followed by a summary of the new operational requirements and restrictions:
 
Section 333 Exemption Holders Get Best of Both Worlds: “Grandfathered” Compliance Status and the Option to Take Advantage of the New Rules
 
In the Final Rule, the FAA was careful to protect Section 333 exempt entities from the burden of complying with an additional layer of regulations.  Instead, Section 333 exemption holders will be “grandfathered” into compliance, as explained by the FAA below:
 
“The FAA clarifies that current section 333 exemptions that apply to small UAS are excluded from part 107. The FAA has already considered each of these individual operations when it considered their section 333 exemption requests and concluded that these operations do not pose a safety or national security risk.
 
The FAA recognizes, however, that there may be certain instances where part 107 is less restrictive than a section 333 exemption. Therefore, under this rule, a section 333 exemption holder may choose to operate in accordance with part 107 instead of operating under the section 333 exemption. This approach will provide section 333 exemption holders time to obtain a remote pilot certificate and transition to part 107. Operations that would not otherwise fall under part 107 may not take advantage of this option. For example, an operation with a section 333 exemption that does not fall under part 107, such as an operation of a UAS weighing more than 55 pounds, would not have the option of operating in accordance with part 107 rather than with its section 333 exemption.
 
Additionally, when section 333 exemptions come up for renewal, the FAA will consider whether renewal is necessary for those exemptions whose operations are within the operational scope of part 107, which also includes those operations that qualify for a waiver under part 107. The purpose of part 107 is to continue the FAA’s process of integrating UAS into the NAS. If a section 333 exemption is within the operational scope of part 107, there may be no need for the agency to renew an exemption under section 333. Because the FAA’s renewal considerations will be tied to the outstanding section 333 exemptions’ expiration dates, a 3-year transition period is not necessary. This will not affect those section 333 exemptions that are outside of the operational scope of part 107 or where a part 107 waiver would not be considered.”  
(Final Rule, Pages 83-84.)
 
Thus, for Section 333 exemption holders, the result is the best of both worlds.  On the one hand, Section 333 exempt entities are not required to modify their current commercial drone operations to comply with the new regulations.  On the other hand, if a Section 333 exempt entity identifies an opportunity to perform certain operations under less stringent restrictions promulgated in the new Part 107, it may “choose to operate in accordance with part 107 instead of operating under the section 333 exemption.”
 
Here is the FAA’s Summary of the new operational limitations, Pilot in Command and certification responsibilities, and aircraft requirements:
 
 
New Operational Limitations under Part 107:
  • Unmanned aircraft must weigh less than 55 lbs. (25 kg). 
  • Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer. 
  • At all times the small unmanned aircraft must remain close enough to the remote pilot in command and the person manipulating the flight controls of the small UAS for those people to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. 
  • Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle. 
  • Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting. 
  • Must yield right of way to other aircraft. 
  • May use visual observer (VO) but not required. 
  • First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways. 
  • Maximum groundspeed of 100 mph (87 knots). 
  • Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure. 
  • Minimum weather visibility of 3 miles from control station. 
  • Operations in Class B, C, D and E airspace are allowed with the required ATC permission. 
  • Operations in Class G airspace are allowed without ATC permission. 
  • No person may act as a remote pilot in command or VO for more than one unmanned aircraft operation at one time. 
  • No operations from a moving aircraft. 
  • No operations from a moving vehicle unless the operation is over a sparsely populated area. 
  • No careless or reckless operations. 
  • No carriage of hazardous materials.
  • Requires preflight inspection by the remote pilot in command. 
  • A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS. 
  • Foreign-registered small unmanned aircraft are allowed to operate under part 107 if they satisfy the requirements of part 375. 
  • External load operations are allowed if the object being carried by the unmanned aircraft is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft. 
  • Transportation of property for compensation or hire allowed provided that- o The aircraft, including its attached systems, payload and cargo weigh less than 55 pounds total; 
    • The flight is conducted within visual line of sight and not from a moving vehicle or aircraft; and 
    • The flight occurs wholly within the bounds of a State and does not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession. 
  • Most of the restrictions discussed above are waivable if the applicant demonstrates that his or her operation can safely be conducted under the terms of a certificate of waiver.
 
New Remote Pilot in Command Certification and Responsibilities under Part 107
 
  • Establishes a remote pilot in command position. 
  • A person operating a small UAS must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command). 
  • To qualify for a remote pilot certificate, a person must: 
    • Demonstrate aeronautical knowledge by either: 
      • Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center; or 
      • Hold a part 61 pilot certificate other than student pilot, complete a flight review within the previous 24 months, and complete a small UAS online training course provided by the FAA. 
  • Be vetted by the Transportation Security Administration. 
  • Be at least 16 years old. 
  • Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application. 
  • Until international standards are developed, foreign-certificated UAS pilots will be required to obtain an FAA-issued remote pilot certificate with a small UAS rating.
A remote pilot in command must: 
 
  • Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the rule. 
  • Report to the FAA within 10 days of any operation that results in at least serious injury, loss of consciousness, or property damage of at least $500. 
  • Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is in a condition for safe operation. 
  • Ensure that the small unmanned aircraft complies with the existing registration requirements specified in § 91.203(a)(2). 
A remote pilot in command may deviate from the requirements of this rule in response to an in-flight emergency.
 
The finalization of the new rule marks the most significant step to date toward the implementation of the federal government’s plan to integrate safe commercial drone operations into the national airspace system.  Check in here for updates on the implementation of Part 107 in the coming months.

Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 

On the one hand, Title II, Unmanned Aircraft Systems Reform Act, § 2142, preempts states and other political subdivisions from enacting or enforcing “any law, regulation, or other provision having the force and effect of law relating to . . . operation . . . of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology, requirements, purposes of operation. . .”  Such a broad brush approach appears to entirely displace efforts at the state level, such as proposed SB 868 in California, authorizing the California Department of Transportation (“Caltrans”) “to adopt reasonable rules and regulations governing the conditions under which remote piloted aircraft may be operated for the purpose of protecting and ensuring the general public interest and safety. . .”  SB 868 is set for hearing April 5.  See also, AB 1724 that would require “a person or public or private entity that owns or operates an unmanned aircraft, to place specific identifying information or digitally stored identifying information on the unmanned aircraft.”  

On the other hand, § 2142(b) purports not to preempt state or local authority “to enforce federal, state or local laws relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of unmanned aircraft systems” with the caveat that such local enforcement is only allowable “if such laws are not specifically related to the use of an unmanned aircraft system for those illegal acts.”  See also, § 2142(c) proposing to extend the immunity from preemption to “common law or statutory causes of action,” “if such laws are not specifically related to the use of unmanned aircraft systems.”  In other words, it would seem that operators of UAS must comply with existing laws relating to “nuisance, etc.,” but cannot be subject to new laws enacted specifically to govern the misdeeds of UAS.  
 
Finally, Congress seeks to compensate for this resulting regulatory void in other sections of the legislation, although the legislation is perhaps most notable for its exceptions from those regulatory attempts.  For example, in § 2101, Congress articulates a “privacy policy” which mandates that “the operation of any unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects and protects personal privacy consistent with federal, state, and local law.”  At the same time, Congress put the responsibility for enforcement into the hands of the Federal Trade Commission, and its complex administrative procedures.  See § 2103.  
 
Further, in § 2015, the legislation establishes a convention of industry stakeholders to “facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft.”  However, the impact of that mandate is somewhat diluted by the fact that the FAA will have two years to develop the required identification standards during which time UAS can operate freely and unidentified.  In addition, § 2124 of the legislation establishes “consensus aircraft safety standards” whereby the FAA is mandated to “initiate a collaborative process to develop risk based, consensus industry airworthiness standards related to the safe integration of small unmanned aircraft systems into the national airspace system.”  This section of the FAA Reauthorization is to be codified at § 44803 of the Federal Aviation Act.  However, as with other sections of the legislation, FAA is relieved of its responsibility by a time lapse of one year to “establish a process for the approval of small unmanned aircraft systems make and models based upon safety standards developed under subsection (a).”  Finally, § 2126(b), amending into the Act § 44806, goes even further by granting to the FAA Administrator the power to use his or her discretion to exempt operators from the regulations, thus allowing certain persons to operate unmanned aircraft systems “(1) without an airman certificate; (2) without an airworthiness certificate for the associated unmanned aircraft; or (3) that are not registered with the Federal Aviation Administration.”
 
In short, the breadth of the legislation is too vast to be fully evaluated here.  Suffice it to say, that, given the exclusion of state and local authorities from the arena of drone regulation, and the long delays inherent in the rulemaking set forth in the proposed legislation, it will be some time before cognizable regulations exist to manage the rapidly growing UAS traffic in the United States.  
 

Amazon Prime Air

Amazon has announced it will use unmanned aircraft systems to deliver packages.  But how soon?  Westlaw Journal Aviation quoted Barbara Lichman and Paul Fraidenburgh today in an article entitled “The FAA’s recent notice and Amazon drone delivery.”