FAA Adopts Operating Rules for Commercial UAS Use

New rules set stage for next phase of UAS operation in U.S. skies

The wait is over: nine months after a Congressionally-mandated deadline, the FAA has finally issued rules for the commercial operation of small unmanned aircraft systems (UAS, known familiarly as "drones") in the U.S. National Airspace System (NAS). The Order - which officially takes effect as of August 29, 2016 - adds a new Part 107 to the FAA's regulations to "allow for routine civil operation of small UAS in the NAS and to provide safety rules for those operations". The following is a brief summary of Part 107's requirements. (Important caveat: The new rules do not apply to either (a) the increasingly ubiquitous, noncommercial, hobbyist UAS users or (b) large UAS (i.e., UAS weighing 55 pounds or more). They also do not apply to UAS owned and operated by federal, state or local governments, as long as their use is not "commercial".)

Many readers may recall that last year the FAA adopted a process - known as the Section 333 Exemption process - to serve as an interim means for regulating commercial UAS use while the new rules were being developed. The new Part 107 constitutes those new rules. As a result, for the most part, the Section 333 Exemption process is no longer necessary. BUT, as discussed below, 333 authorizations remain in effect for their duration, and Part 107 provides for waivers similar to the Section 333 Exemption process. And, of course, under Section 333, the FAA can continue to grant permission to even more expansive operations if it so chooses

Under Part 107, those who wish to use UAS commercially will need to: (a) meet a long list of operating requirements that mirror the requirements imposed in the Section 333 Exemptions; (b) use a pilot holding a new authorization dubbed a "Remote Pilot in Command" certificate; and (c) register and mark their aircraft.

Operating Restrictions. As many observers had anticipated, the FAA has preserved in Part 107 many of the limits imposed through Section 333 Exemptions. For example, small commercial UAS will still be required to operate below 400 feet. Their pilots will still have to maintain visual line-of-sight (VLOS). And they cannot operate over people who are not directly involved in the flight operation and not under a covered structure. (You can find more details about operating limits imposed by Section 333 Exemptions in our previous posts.) But Part 107 operations will differ from Section 333 Exemptions in notable ways, permitting:

• Transporting property, subject to a number of limitations. The transport must occur wholly within the bounds of a state. The UAS performing the transport cannot be piloted from a moving vehicle (except in "sparsely populated" areas) and cannot carry any hazardous materials. And the FAA has made clear that it will not be offering waivers of the "visual line of sight" rules (more on waivers below) when the transportation of property is involved. Additionally, it's worth noting again that the new rules apply only to small UAS, i.e., aircraft that weigh less than 55 pounds including any property or package being transported.
• "Civil twilight" operations, i.e., flights beginning a half-hour before official sunrise and lasting up to a half-hour after official sunset.
• Operation from a moving vehicle, but only in "sparsely populated" areas. While that should greatly expand the possible range of operations for flights in such areas, bear in mind that the term "sparsely populated" is not defined in the FAA's rules. Instead, it is "fact-dependent" on the population density, proximity of buildings, congestion and the like within the UAS's flight path

Pilot Requirements. Perhaps one of the biggest hurdles facing would-be commercial UAS operators has been the requirement that a licensed pilot control the UAS. Having to hire a pilot licensed for manned aircraft to handle the controls has been a disincentive. No longer. The FAA has created a new crewmember position - "Remote Pilot in Command" - for Part 107 operations. Each small UAS flying pursuant to Part 107 will have to be under the command of a Remote Pilot in Command before and during the flight; he or she will have final authority, and responsibility, for the operation.

Rather than require the Remote Pilot in Command to have the same kind of license required of manned-aircraft pilots, the FAA has created an alternate airman's certificate for UAS operations. The new certification - a "remote pilot certificate with a small UAS rating" - will be easier to obtain than, and won't require the same knowledge as, certificates for manned flights. The basic qualifications for the new certificate are relatively simple: UAS pilots will have to be at least 16 years old and be able to speak, read, write and understand English.

There will be two separate paths to certification, one for those without any prior pilot certification and one for pilots already certified under the FAA's standard (Part 61) processes. Would-be UAS pilots starting from scratch will need to pass a TSA background check and an aeronautical knowledge test covering a wide range of flight-related areas (including, among several others, applicable UAS regulations, equipment maintenance, the effects of weather on UAS, airport rules and emergency procedures). Pilots who already hold Part 61 certificates (a universe extending from commercial pilots all the way to recreational pilots) will still have to obtain a remote pilot certificate with a small UAS rating, but that will require only either an online course on UAS rules and principles or a demonstration of proficiency via a test.

Registration/Marking Requirements. Requirements for registering and marking your UAS remain the same as under the Section 333 Exemption process: all commercial UAS (and, for that matter, hobbyist UAS) must be registered with the FAA. In December 2015, the FAA opened its online registration system to hobbyist users (hobbyists had not previously been required to register) and then expanded the system in March of this year to include commercial users (who had previously been required to use an old school paper-based registration system). The new rules don't do anything to change that system.

The same is true of the marking requirements: unlike manned aircraft, which are required to keep a series of documents onboard at all times, UAS don't really have the space or need for most of them (such as the full operating manual). But operators are still required to display their registration number on their UAS. This can be done, according to the FAA, using "a permanent marker, label, or engraving, as long as the number remains affixed to the aircraft during routine handling and all operating conditions and is readily accessible and legible upon close inspection." You can also write it internally, such as in a battery compartment.

With the new rules now in place, what becomes of authorizations issued pursuant to the Section 333 Exemption process? Those authorizations were issued on a case-by-case basis, with each applicant demonstrating (among other things) how it intended to use UAS. In some cases, the resulting authorization permitted operations beyond what are now permitted under the new Part 107 rules. All of the Section 333 Exemption authorizations had their own expiration dates.

Going forward, operators holding Section 333 Exemption authorizations may continue to operate pursuant to them, at least until they expire. That may be desirable in situations where the outstanding authorization permits operations otherwise barred by the new rules; it may also be desirable to operators who would prefer not to take the time just now for their pilots to get a remote pilot certificates with small UAS rating. Alternatively, Section 333 Exemption holders can choose to operate pursuant to the Part 107 rules.

One particularly interesting aspect of the new rules is a set of provisions (gathered in new Subpart D of Part 107) specifically inviting requests for waivers of various operating requirements. The new Part 107 rules are intended to integrate the lowest-risk UAS operations into the NAS as quickly as possible. But the FAA recognizes that the UAS universe is developing rapidly, and higher-risk operations outside the scope of the new rules may prove both safe and useful. To encourage such operations - and also in the interest of gathering data that can inform future rulemaking - the FAA is inviting, perhaps even encouraging, the submission of requests for "certificates of waiver".

Such waivers will be available with respect to any of nine of the new Part 107 operating requirements. The nine waivable rules are listed in Section 107.205; they include non-line-of-sight operations (except for flights transporting property), operating from a moving vehicle, and operating over people. Waiver applicants will have to provide a detailed description of the proposed operation and a demonstration that the operation can be conducted safely. In other words, having just adopted a laundry list of UAS operating rules, the FAA is opening the door for innovators to operate outside those rules. It's not quite the system described by Barbossa in Pirates of the Caribbean (where certain provisions of the supposed pirates' code were "more what you'd call 'guidelines' than actual rules"), but it may prove to be the next best thing.

The Section 333 Exemption process enabled the FAA to see (and analyze the implications of) each new commercial use for UAS - because each applicant for an exemption had to describe in detail how it planned to use UAS. But now, with Part 107 rules permitting UAS operation without any prior description or registration of the use, the FAA won't have that easy access to how UAS are being used by U.S. businesses. The waiver process adopted by the FAA should help fill that gap, and keep the FAA abreast of what's going on at the cutting edge of the UAS world. And that, in turn, should give the FAA a sense of where its rules should go in the future. In that regard, the waiver process will complement the FAA's Focus Area Pathfinder Initiative, a program in which the FAA, along with industry partners, is exploring incremental expansion of UAS operation in the NAS in a number of "focus areas". Those areas include UAS operations over populated areas (particularly for newsgathering), operation outside direct line of sight in rural areas (for, e.g., improved agricultural operations), and beyond visual line-of-sight operations in rural/isolated areas (for, e.g., inspection of rail system infrastructure).

We've entered the next stage of the FAA's planned incremental approach to integrating UAS into the NAS. The FAA has effectively normalized the authorization of commercial small UAS operations, opening the door to a dramatic increase in the numbers of users. By providing for waiver requests that may allow operations beyond-line-of-sight and other currently-prohibited operations, the FAA has afforded a wide range of industries the opportunity to take advantage of the many capabilities that small UAS offer going forward. Over the next few years, the FAA will be collecting data from pilot reports of errors, reviews of waiver decisions, and tests conducted at test sites scattered around the country, providing it with more and better information on which it may rely in continuing to expand the use of UAS.