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.

Buchalter Wins Historic Grant of Exemption for Client Picture Factory, Inc.'s Drone Filming and Photography Operations - First Ever in Midwest

In a landmark decision for film and production companies, the Midwest of the United States, and the unmanned aircraft systems industry, Buchalter Nemer’s Aviation and Aerospace Practice Group made history last week when it secured a Grant of Exemption issued by the Federal Aviation Administration authorizing film and production company Picture Factory, Inc. to operate camera-mounted drones for the purpose of aerial filming and photography.  Picture Factory, Inc. is the first production company in the Midwest to receive a Grant of Exemption allowing commercial filming operations using drones in U.S. airspace.

“We’re proud to offer yet another cutting-edge way to give our clients unique perspectives and moving camera shots from places otherwise impossible to reach,” said Craig Peterschmidt, co-founder of Picture Factory.
 
The FAA’s Grant of Exemption was issued in response to Picture Factory’s Petition for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012, which provides a procedure for expedited authorization of commercial operations using unmanned aircraft systems weighing no more than 55 pounds.  Picture Factory was represented by attorney Paul Fraidenburgh in Buchalter’s Orange County, California office.  Mr. Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.
 

FAA Releases Proposed Rules for Commercial Drones; White House Launches Drone Privacy Policy

On February 15, 2015, the Federal Aviation Administration published its highly anticipated Notice of Proposed Rulemaking (NPRM) on the Operation and Certification of Small Unmanned Aircraft Systems (applicable to UAS weighing 55 lbs. and less).  The proposed rules would add a new Part 107 to Title 14 Code of Federal Regulations to allow for routine civil operation of small UAS in the National Airspace System (NAS).  Although a lengthy comment and revision period is expected to delay finalization of the regulations for another 18-24 months, Section 333 of the FAA Modernization and Reform Act of 2012 will continue to provide a procedure for expedited authorization of commercial small UAS operations in the interim.  The final Part 107 will serve as the foundation for a multi-billion dollar UAS industry in the United States. 

Highlights of the New UAS Rules

UAS Operator Certification – No Pilot’s License Required.  Unlike commercial UAS operations conducted today under Section 333, manned aircraft pilots will no longer enjoy a regulatory monopoly under the proposed rules.  Instead, the FAA has announced an Operator Certification program that would require operators to pass an initial aeronautical knowledge test at an FAA-approved testing center, be over the age of 17, be vetted by TSA, and obtain an unmanned aircraft operator certificate with a small UAS rating.  Similar to existing pilot airman certificates, this certification would never expire so long as the operator passes a recurrent aeronautical knowledge test every 24 months.  Although this significant policy shift was expected, it is a welcome sigh of relief for the UAS community, which has broadcasted a consistent message to the FAA that the skills required to pilot manned aircraft are not the same skills needed for the safe operation of UAS.  The FAA expressly agreed, stating that the existing operator restrictions “impose an unnecessary burden for many small UAS operations.”
 
Operational Parameters – No Preapproval for Operations in Class G Airspace.  Under the proposed rule, small UAS would be prohibited from operating in Class A airspace and would require prior approval from Air Traffic Control to operate in Class B, C, or D airspace, or within the lateral boundaries of the surface area of Class E airspace designated for an airport.  Significantly, no preapproval would be required for operations in uncontrolled (Class G) airspace.  Additionally, operations will be limited to a maximum airspeed of 87 knots (100 mph) at a maximum altitude of 500 feet above ground level, and within the visual line of sight of the operator.
 
Commercial Package Delivery and Amazon Prime Air.  The FAA is well-aware of Amazon’s plans to use UAS to deliver packages to the consumer’s doorstep within 30 minutes of receiving an online order.  The knee-jerk analyzers of the proposed Part 107 widely perceived the new rules as a serious blow to Amazon’s Prime Air program because it prohibits the use of UAS to transport people or property “for compensation.”  However, a more careful analysis of the FAA’s 195 page NPRM reveals that Amazon is inching closer to its goal.  Specifically, the NPRM states that it would not prohibit “operations by corporations transporting their own property within their business under the other provisions of this proposed rule,” and requests comments on “whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule, e.g., the ban on flights over uninvolved persons, the requirements for line of sight, and the intent to limit operations to a constrained area.”  This means that a factory, for example, could be fully-automated with UAS lifting packages off of conveyor belts and loading them onto trucks.  It also begs the question: what if Amazon takes an end-run around the prohibition on delivering packages “for compensation” by offering free delivery?  Look for a more thorough exploration of this issue during the 60 day rulemaking comment period.
 
No Airworthiness Certification.  In a victory for UAS manufacturers, the FAA will not require preapproval of the UAS design prior to the use of the aircraft in flight operations.  This will promote innovation in the industry and remove what might have become a significant barrier to entry for small/startup UAS manufacturers.
 
Micro UAS Classification.  The FAA is considering adopting a separate set of operational parameters for a “Micro UAS,” class of aircraft, which the FAA has preliminarily defined as aircraft weighing no more than 4.4 lbs., composed of frangible materials that yield on impact so as to present a minimal hazard to any person or object that the aircraft collides with, that will not exceed a speed of 30 knots, and that will be limited entirely to class G airspace away from an airport.  According to the FAA, “No knowledge test would be required in order to obtain an unmanned aircraft operator certificate with a micro UAS rating; instead, the applicant would simply submit a signed statement to the FAA stating that he or she has familiarized him or herself with all of the areas of knowledge that are tested on the initial aeronautical knowledge test.”  Significantly, the Micro UAS would be permitted to fly directly over people not involved in the flight operation.
 
No Visual Observer Required.  The proposed rules would allow the UAS operator to conduct solo operations without the aid of a Visual Observer (VO).  This is a welcome departure from the FAA’s previous requirement of including a VO in operations conducted under Section 333 exemptions.
 
International Operations Excluded to Reduce Operational Limitations.  The International Civil Aviation Organization (ICAO) has issued strict standards and recommended practices (SARPS) directed at UAS operations.  The FAA has limited the scope of Part 107 to apply only to UAS operations conducted entirely within the United States as a way to avoid the imposition of ICAO’s strict standards on domestic UAS operations.  “While we embrace the basic principle that UAS operations should minimize hazards to persons, property or other aircraft, we believe that it is possible to achieve this goal with respect to certain small UAS operations in a much less restrictive manner than current ICAO standards require,” states the FAA’s summary of the proposed rule.  Look for the FAA to address international UAS operations in a future rulemaking.
 
White House Launches Drone Privacy Policy
 
No sooner did the FAA announce its proposed Part 107 than the White House’s issuance of a Presidential Memorandum titled, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.”  The memorandum announces a new federal privacy initiative aimed at taking steps to ensure that the integration of UAS into the NAS is completed with an eye toward limiting and protecting the information gathered by federal agencies using UAS technology.
 
Continuing Importance of Section 333
 
As drone technology continues to disrupt new industries, the importance of Section 333 petitions as the sole avenue for conducting commercial operations has become increasingly clear.  Though the FAA’s release of its comprehensive set of regulations is a significant landmark for the industry, the rules are not expected to be finalized before 2016 (and more likely 2017).  Until then, Section 333 will remain the holy grail for drone operators who plan to conduct commercial operations in the foreseeable future.
 
Attorney Paul Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.

Unmanned Aircraft Systems Video Blog

Paul Fraidenburgh discusses unmanned aircraft systems and Petitions for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012.  Watch Here.