Part 48


11 Big Problems with the FAA’s Mandatory Drone Registration

  • The DOT’s Announcement Can Be Viewed Here.
  • The FAA’s request for comments is here.
  • The underlying FAA report of drone sightings is located here.
  • The Academy of Model Aeronautics responded to the report with an analysis located here.

Second Update: An individual took the time and responded to this post. I posted my reply at the bottom.

 

Update: Just to clarify, my point is not to “troll” the FAA, I think geofencing will produce far better results by preventing problems as opposed to pointing to who might have done it after something has happened. The uneducated new recreational flyers are the ones I believe causing the problems. Having manufacturers voluntarily “lock” the drones until an unlock access code is provided after an introductory ground school would produce better results. One way to sweeten the pot is not just provide “how to fly safely” video tutorials but also “how to get that awesome shot” tutorials. Education, not enforcement is a better strategy. If anyone higher-up in the FAA is reading this, please contact me so I can help you promote safety in the national airspace. 🙂

 

Note: The FAA DID publish their drone registration regulations. I wrote an in-depth article on Why the FAA’s Drone Registration Requirements Are ILLEGAL

 

Oklahoma City is where aircraft registration gets processed. The aircraft registration process still involves carbon copy forms, which must be filled out perfectly and sent in for an aircraft to be registered. They are extremely, I mean extremely, picky on registration based upon my experience. (If you need help with registration, contact me.) If the paperwork is completed correctly, they will send you back an “N” registration which is required to be displayed on the aircraft. The reason for the “N” is the aircraft is tied to the country it operates in. (Think of license plates where the state is listed on the plate.) N = United States, C or CF = Canada, XA, XB, or XC = Mexico, B= China, JA= Japan, SU= Egypt, etc. The complete list is here at 4-1-1.  So N12345 is a U.S. registered aircraft while XA12345 is a Mexican registered aircraft.

 

Current Registration Requirements for Drones:

Commercial drone operators are required to obtain a 333 exemption or fly under Part 107. The exemptions being given out say, “All aircraft operated in accordance with this exemption must be identified by serial number, registered in accordance with 14 CFR part 47, and have identification (N−Number) markings in accordance with 14 CFR part 45, Subpart C. Markings must be as large as practicable.” This is in addition to the manned aircraft which are registering with the FAA.  This is currently ONLY for commercial drones while recreational drones are not required to register their drones.

 

Proposed Registration:

“The Department of Transportation is reviewing whether the FAA has the authority to require drones be registered at their point of sale, Transportation Secretary Anthony Foxx told CBS News on Friday.”[1]

 

Furthermore, Senator Feinstein’ s “Consumer Drone Safety Act’’ requires “that a consumer drone be detectable and identifiable to pilots and air traffic controllers, including through the use of an identification number and a transponder or similar technology to convey the drone’s location and altitude[.]”[2]

 

Moreover, Cory Booker’s Commercial UAS Modernization Act prohibits the operations of commercial small unmanned aircraft “unless the owner has registered the aircraft under section 3(a) of the Commercial UAS Modernization Act.”[3]

 

In the FAA’s explanations in the Notice of Proposed Rulemaking (“NPRM”) regarding unmanned aircraft it said, “The FAA’s statute, [49 U.S.C. 44101], prohibits the operation of an aircraft unless the aircraft is registered. Pursuant to this statutory prohibition, this proposed rule would require small unmanned aircraft to be registered with the FAA using the current registration process found in 14 CFR part 47.” The NPRM later showed the proposed rule, “No person may operate a civil small unmanned aircraft system for purposes of flight unless[,] . . . [t]he small unmanned aircraft being operated has been registered with the FAA . . . .”[4]

 

Just today NBC announced, “The federal government will announce a new plan requiring anyone buying a drone to register the device with the U.S. Department of Transportation[.]”[5] Just FYI, the DOT supervises the FAA which explains why they are involved.

 

The clear trajectory of all this is that commercial drone aircraft will be required to be registered and possibly also recreational aircraft. This presents interesting problems so let’s dive into the facts.

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Sales:

Bloomberg indicated that “Amazon is selling more than 10,000 drones a month[.]”[6] 3DR “is expected to top $40 million in sales in 2015, which would roughly translate to about 53,000 units”[7] and in 2014, “DJI sold about 400,000 units–many of which were its signature Phantom model–and is on track to do more than $1 billion in sales this year, up from $500 million in 2014.”[8]

 

On top of the drone sales, manned aircraft have been sold and already use some of the N numbers. For 2012, it was estimated that there were 209,034 aircraft in general aviation.[9]

 

The Proposed Laws and Regulations Intersecting with the Forecasted Sales.

Let’s get into the math. Let’s assume that all drones have to be registered. How many different combinations are possible?

 

“All U.S. civil aircraft registration numbers are prefixed by an N. The registration number, apart from the N prefix, is made up of one to five symbols, the last two of which may be alphabetical. This alphabetical suffix must be preceded by at least one numerical symbol. The lowest possible number is N1. A zero never precedes the first number. For example: N1 through N99999, all symbols are numeric. N1A through N9999Z, single alphabetical suffix. N1AA through N999ZZ, double alphabetical suffix. Note: To avoid confusion with the numbers zero and one, the letters O and I are never used as alphabetical suffixes.”[10]

 

This is how the math works out. Yes, I had to go to my friend who is an actuary to help with this. 🙂 Here is what he said:

For 1 symbol: 1 through 9 can be used so= 9
For 2 symbols: (1 thru 9) and (digits 0-9 and 24 letters)= 9×34=306

For registration numbers of length three or more we have to break it into cases:
Case I: The next-to-last symbols is a NUMBER
Case II: The next-to last symbol is a LETTER
And we remember the rule that a letter can not precede a number.

For 3 symbols:
Case I: (1 thru 9) and (digits 0-9) and (digits 0-9 and 24 letters)= 9x10x34=3060
Case II: (1 thru 9) and (24 Letters) and (24 letters)= 9x24x24=5184

For registration numbers of length 4 or 5 we remember that only the last two symbols can be letters

For 4 symbols:
Case I: (1 thru 9) and (digits 0-9) and (digits 0-9) and (digits 0-9 and 24 letters)= 9x10x10x34= 30600
Case II: (1 thru 9) and (digits 0-9) and (24 Letters) and (24 letters)= 9x10x24x24=51840

For 5 symbols:
Case I: (1 thru 9) and (digits 0-9) and (digits 0-9) and (digits 0-9) and (digits 0-9 and 24 letters)= 9x10x10x10x34 = 306000
Case II: (1 thru 9) and (digits 0-9) and (digits 0-9) and (24 Letters) and (24 letters)= 9x10x10x24x24= 518400

 

Adding up all possibilities gives 915,399 total possible registration numbers.

 

The reason for the 34 is 10 numbers + 25 letters. The letters I and O cannot be used because they can be confused with the numbers 1 and 0.

 

Further compounding this problem is “A Certificate of Aircraft Registration issued under this paragraph expires three years after the last day of the month in which it is issued.” 14 CFR 47.40(a)(3).

 

Moreover, it is easier to register a drone than transfer registration. If you crash the drone, you’ll have crazy headaches trying to transfer registration of the N-number to the new drone as opposed to just registering a new N number.

 

At this pace, we are going to run out of N numbers in the future.

Proposed Solutions

  • Open up the first 3 spaces to allow also the use of letters. (The FAA must go through the rule making process for this but it is unclear how this would work with the FMRA).
  • Require re-registration of a drone every year. (Currently it is every 3 years as per regulation. This needs to be changed via the rule making process but still the FMRA might cause problems.)
  • Make the N number registration transfer easy so people just don’t keep registering drones. (This can be solved by some type of internet portal as opposed to the difficult paper process now.
  • Add an additional 6th space or 7th (still must go through the rule making process)

next


Why the FAA’s Drone Registration Requirements Are ILLEGAL

This article lays out an in-depth discussion as to the three big reasons why the FAA’s FAR Part 48 drone registration regulations are illegal and should be struck down by a court. The registration regulations are currently being challenged in the D.C. Circuit Court of Appeals by John Taylor and I am assisting him with the lawsuit.

 

Key Point of the Rule:

Persons owning small unmanned aircraft, whether intended to be used as model aircraft or as other than model aircraft, are required to register those aircraft with the FAA[.]” “This rule applies to all owners of small unmanned aircraft which weigh more than 0.55 pounds and less than 55 pounds on takeoff.” It goes into effect Dec 21, 2015. If you do not comply, you could face civil penalties up to $27,500 and criminal penalties of $250,000[1] and/or imprisonment up to 3 years.[2]

 

While the electronic means of registration seems great and would be a wonderful thing for my commercial drone clients, the issue is NOT with the proposed regulations but (1) the apparent direct violation of Section 336 of the FMRA, (2) the improper use of the “good cause” bypass exception to the Administrative Procedures Act, and (3) the lack of statutory authority.

 

 

1. The Violation of Section 336

Section 336 of the FAA Modernization and Reform Act of 2012 says:

IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft[.]” The key word here is “any” and the major take away is that it prevents the promulgation of new rules or regulations, not the using of already existing regulations (i.e. Part 47 and § 91.203).The FAA believes that model aircraft operators are now subject to 91.203 which requires the drone to be registered prior to operation in the national airspace.

 

FAA responded to the Section 336 prohibition allegation in the registration rule document:

The FAA disagrees with the comments asserting that the registration of model aircraft is prohibited by section 336 of Public Law 112-95. While section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements. As previously addressed, Public Law 112-95 identifies model aircraft as aircraft and as such, the existing statutory aircraft registration requirements implemented by part 47 apply.

 

This action simply provides a burden-relieving alternative that sUAS owners may use for aircraft registration. Model aircraft operated under section 336 as well as other small unmanned aircraft are not required to use the provisions of part 48. Owners of such aircraft have the option to comply with the existing requirements in part 47 that govern aircraft registration or may opt to use the new streamlined, web-based system in part 48.”’[3]

Alternative or a New Regulation?

If this is a “burden-relieving alternative[,]” why does the rule seeks to amend the non-alternative current rules in Part 1, § 45.1, § 47.2, § 47.3, § 47.7, § 91.203, § 375.11, and § 375.38? This rule is a new rule coupled with multiple regulations being amended so as to harmonize the new rule in Part 48.

 

One key point is that this is being codified in Part 48 of the Code of Federal Regulations which brings us squarely back to the issue of the prohibition on the creation of rules or regulations.

What Does Section 336 Actually Prohibit?

If it is “not a complete bar on rulemaking[.]” what is it a bar actually on? It has to be a bar on something and it would be completely ludicrous to interpret it as a bar on nothing. The FAA’s interpretation is that it is a bar on “some” rulemaking, just not “any.” The scope of “some” is completely unclear.

 

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“Any” = “Some?”

Context is king. “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.[4] We must not seek the FAA’s interpretation of this statute, but Congress’ meaning of the FMRA.

 

Let’s look at the word “any” used elsewhere in Sections 331-336 of the FMRA and replace “any” with the FAA’s interpretation of “some” and see what happens.

“[E]nsure that any [some] civil unmanned aircraft system includes a sense and avoid capability[,]”[5]

“[I]ncorporation of the plan into the annual NextGen Implementation Plan document (or any [some] successor document) of the Federal Aviation Administration.”[6]

IN GENERAL.—Notwithstanding any [some] other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.”[7]

“[W]hich types of unmanned aircraft systems, if any [some], as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security[,]”[8]

“[O]utside of 5 statute miles from any [some] airport, heliport, seaplane base, spaceport, or other location with aviation activities.”[9]

IN GENERAL.—Notwithstanding any [some] other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any [some] rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft,”[10]

“[T]he aircraft is operated in a manner that does not interfere with and gives way to any [some] manned aircraft[.]”[11]

 

Using the redefined “any” causes havoc on the reading of the text. The context of all those sections using “any” used it just as if they would have used the word “all.”

 

Though not as contextually persuasive as Sections 331-336, 14 CFR § 1.3 Rules of Construction differs from the FAA’s interpretation, ‘“a person may not * * *” mean[s] that no person is required, authorized, or permitted to do the act prescribed[.]”’ Why did I bring up § 1.3? Because that rule of construction applies to 91.203 which is going to be the regulation cited against individuals flying their drones unregistered, “no person may operate a civil aircraft unless it has within it the following: The FAA’s interpretation of Section 336 “may not promulgate any[,]” meaning some rules or regulations, is different than their interpretation of 91.203 “no person may[,]” meaning all persons, which is currently being used against one individual, Skypan, and will be used against any future individuals who choose to not register their drone prior to operation.

 

Does Any Mean Any Any Time?

The Second Federal Circuit Court of Appeals has said:

As the Supreme Court has frequently observed, use of the word “any” in statutory text generally indicates Congress’s intent to sweep broadly to reach all varieties of the item referenced. See, e.g., United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (quoting Webster’s Third New International Dictionary 97 (1976) in concluding that, ‘[r]ead naturally, the word `any’ has an expansive meaning, that is, `one or some indiscriminately of whatever kind'”); accord HUD v. Rucker, 535 U.S. 125, 131, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (same); Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) (noting that “Congress made [the phrase at issue] even broader when it chose the expansive word `any’ to precede the list” (internal quotation marks omitted)). The Court most recently applied this principle in interpreting the phrase “`any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air'” in the Clean Air Act. Massachusetts v. EPA, ___ U.S. ___, 127 S.Ct. 1438, 1460, 167 L.Ed.2d 248 (2007) (quoting 42 U.S.C. § 7602(g)) (ellipsis and emphases in original). It concluded that “[o]n its face,” the quoted language “embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word `any.[12]

 

The United States Supreme Court has said:

‘[A]ny’ can and does mean different things depending upon the setting. Compare, e. g., United States v. Gonzales, 520 U. S. 1, 5 (1997) (suggesting an expansive meaning of the term “`any other term of imprisonment'” to include state as well as federal sentences), with Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 542-546 (2002) (implying a narrow interpretation of the phrase ‘any claim asserted’ so as to exclude certain claims dismissed on Eleventh Amendment grounds). To get at Congress’s understanding, what is needed is a broader frame of reference, and in this litigation it helps if we ask how Congress could have envisioned the . . . clause actually working. . . . See, e. g., New Jersey Realty Title Ins. Co. v. Division of Tax Appeals of N. J., 338 U. S. 665, 673 (1950) (enquiring into ‘the practical operation and effect’ of a state tax on federal bonds).[13]

 

Contexts indicates that Congress practically intended that model aircraft would be free from the creation of rules or regulations. This is evidenced by sub-section (b) which says, “STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”[14] The only thing in all of Section 336 that could even be read to limit the FAA is the language “may not promulgate[.]”

 

Buttressing that, sub-section (c) defines “model aircraft” more narrowly than the definition of unmanned aircraft in Section 331 which indicates that it is a “special” sub-classification of the broad classification of unmanned aircraft. This all points to Congress intending to mean any any time it is used in Section 331-336.

 

In conclusion, the United States Supreme Court, while acknowledging that any could mean different things, it is generally to be taken as a broad sweep of the category, unless context indicates otherwise. Furthermore, context indicates that sub-section (b) and (c) both look at (a) as providing something special that unmanned aircraft (non-model and public aircraft) do not get.

 

2. Good Cause Bypass Exception to the Administrative Procedures Act Requirements

5 U.S.C. § 553 says,

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply—

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

 

14 CFR § 11.11 echoes,

A final rule with request for comment is a rule that the FAA issues in final (with an effective date) that invites public comment on the rule. We usually do this when we have not first issued a [proposed rule] . . . , because we have found that doing so would be impracticable, unnecessary, or contrary to the public interest. We give our reasons for our determination in the preamble. The comment period often ends after the effective date of the rule. A final rule not preceded by an [proposed rule] is commonly called an ‘immediately adopted final rule.’

 

So unless the proposed regulation falls into the good cause bypass exception, it has to go through the rule making process required by Congress. It is ubiquitously called “notice and comment.” To make it simple, unless bypassed, the FAA must publish the proposed rule in the Federal Register, the public is given an opportunity to comment on it, the FAA must digests the comments and then publish a final rule. There are many steps involved that are beyond the scope of this article, but if you want more info, I wrote a chapter on the FAA rule making process for the American Bar Association book located here.

 

The green arrow is where Part 48 was with the registration task force’s proposal on November 21, 2015. The blue arrow is where the current Part 107 commercial rule is located that was started back in 2009 and was only just published as a proposed rule in February of 2015 and became a final rule in August 29, 2016. The red arrow is  where the current registration rule, Part 48, is located in the rule making process.  The point I’m making is it bypassed all that stuff in the middle.

FAA registration rule making process

FAA registration rule making process

 

 

The FAA can only do this if it can show that going the notice and comment route is either “impracticable, unnecessary, or contrary to the public interest.

 

The FAA acknowledges the comments of individuals saying this violates the APA in pages 156-159 and points us back to the preamble (page 11) of the document.

 

The FAA’s justifications for the good cause exception were not completely clear on which of the three justifications categories they fall into so I attempted to categorize them from pages 11-20. I was unclear as to where most of the “impracticable” justifications should go and made a good faith effort to represent the FAA’s position accurately because I’m assuming they didn’t throw in non-exception factual justifications.

  • Impracticable
    • “Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.”[15]
    • The Registration Branch can’t handle the influx of Part 47 registrations soon to come in by the FAA now requiring all drones over 250 grams to be registered prior to operation.[16]
    • Part 47 registration was not designed for drones.[17]
    • Part 47 registration will cost the FAA 775 million over the next 5 years.[18]
    • Waiting longer for the notice and comment is impracticable.[19]
  • Unnecessary
    • Drones are already considered aircraft and all aircraft are required to be registered.[20]
    • Congress has directed the FAA to ensure safety of aircraft and airspace.[21]
    • No one would object because it “relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”[22]
  • Contrary to the Public Interest
    • FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold.[23]
    • Individuals are commercially operating without authority.[24]
    • The FAA lists multiple stories on drone sightings.[25]
    • The FAA lists two tables of drone reports from 2014 and 2015.[26]
    • The FAA details 7 stories of drone reports.[27]
    • Commercial drone sales will “rapidly accelerate” to 11 million by 2020.[28]
    • Many individuals are new and have no clue of the national airspace.[29]

 

Governing Authority

We are going to look at case law where applicable that will explain the good cause exception from 5 U.S.C. 553 and we will also look to the Federal Aviation Regulations, Part 11, which “applies to the issuance, amendment, and repeal of any regulation for which FAA (“we”) follows public rulemaking procedures under the Administrative Procedure Act (“APA”) (5 U.S.C. 553).[30]

 

This is an excerpt from my American Bar Association book chapter on FAA rule making which deals specifically with these areas. Keep in mind I’m not going through the footnotes and trying to correct all the supra’s.

 

Airworthiness Directives are subject to the rulemaking process as described elsewhere in this chapter. The FAA has an Airworthiness Directives Manual[31] which explains these three good cause exceptions that will now be discussed.

  1. When Notice and Comment is Impracticable

            “This exception can be used when an urgent and unsafe condition exists that must be addressed quickly, and there is not enough time to carry out Notice and Comment procedures without compromising safety.”[32] The manual goes on to say the urgency must be explained and the time to give individuals to comply with the AD must reflect the urgency.[33] “For example, it would make little sense to say immediate action is necessary to prevent a landing gear failure and then allow 60 days compliance time to resolve the unsafe condition.[34] Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.’”[35] In Air Transport Association of America vs. the Department of Transportation,[36] the FAA’s penalty enforcement action was vacated by the U.S. Supreme Court because:

 

[T]he FAA is foreclosed from relying on the good cause exception[, from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).[37]

 

  1. When Notice and Comment Is Unnecessary

 This type of direct final rule is in effect a “final rule with request for comments. [The FAA’s] reason for issuing [this type of] direct final rule without an NPRM is that [the FAA] would not expect to receive any adverse comments, and so an NPRM is unnecessary.”[38] The FAA plans “the comment period to end before the effective date” so if there are any adverse comments, it can withdraw the final rule and issue an NPRM.[39] If the FAA publishes a rule, but a legitimate adverse comment comes up, the FAA will publish in the Federal Register a notification of withdrawal, part or whole, of the previous direct final rule.[40]  The FAA can then either publish a new direct final rule with the comments taken into account or publish a NPRM.[41]

 

Other unnecessary situation are when: (1) no one in the U.S. would be affected by the regulation and (2) the FAA makes “minor corrections, clarifications, and editorial changes.”[42]

 

  1. When Notice and Comment Is Contrary To the Public Interest

Generally, this exception is coupled with either the impracticable or unnecessary exception. This exception’s purpose “is to excuse an agency from the Notice requirement if providing advance Notice would defeat the purpose of the agency action. For example, issuing advance Notice that the government is contemplating financial controls could cause public reactions so excessive that the financial system could be placed in jeopardy.”[43]

 

The Federal Circuit Court of Appeals for DC said,

Generally, the “good cause” exception to notice and comment rulemaking, see 5 U.S.C. § 553(b)(3)(B), is to be “narrowly construed and only reluctantly countenanced.” Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C.Cir.1992) (quoting New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980)). The exception excuses notice and comment in emergency situations, Am. Fed’n of Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981), or where delay could result in serious harm. See Hawaii Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir.1995).[44]

 

Simply put, impracticable means you have no time (emergency), unnecessary means uncontested, and contrary to public interest is where the public would be harmed rather than benefited by the publication of the rule.

 

In light of the above, I will address the factual justifications for the bypass point by point.

 

Impracticable (Emergency)

The DC Circuit Court of Appeals examined this bypass carefully a 2014 case.

Impracticability is an “inevitably fact-or-context dependent” inquiry. See Mid-Tex Elec. Coop. v. FERC, 822 F.2d 1123, 1132 (D.C.Cir.1987). In the past, we have approved an agency’s decision to bypass notice and comment where delay would imminently threaten life or physical property. See, e.g., Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.Cir.2004) (upholding assertion of good cause when rule was “necessary to prevent a possible imminent hazard to aircraft, persons, and property within the United States”); Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C.Cir.1981) (noting the case was one of “life-saving importance” involving miners in a mine explosion); see also Jifry, 370 F.3d at 1179 (observing the good-cause exception should be invoked only in “emergency situations … or where delay could result in serious harm” (emphasis added)).[45]

  • Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.”[46]
    • The FAA had data as far back as 2014 on drone reports which the FAA believes shows an “immediate proliferation.” The AUVSI Economic Report published in March 2013 said, “we used 100,000 unit sales per year as a conservative benchmark.” The FAA did not publish any rule till December 14, 2015. This is almost 3 years after the AUVSI report and around 1-2 years after the FAA started gathering drone sightings. “But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).[47]
  • The Registration Branch can’t handle the influx of Part 47 registrations soon to come in by the FAA now requiring all drones over 250 grams to be registered prior to operation.[48]
    • Once again, the 2014 drone reports have been around for 1-2 years and the 2013 AUVSI report for almost 3 years. The reports cannot be used for justification for immediate implementation when the FAA and DOT waited. Waiting around till a problem becomes an emergency is bad public policy because it allows agencies to sidestep the comment period that was designed to put the public on notice and give the public a means of communicating their grievances.
  • Part 47 registration was not designed for drones.[49]
    • I don’t know why this is cited as a justification for impracticability or contrary to public interest.
  • Part 47 registration will cost the FAA 775 million over the next 5 years.[50]
    • I don’t know why this is cited as a justification for impracticability or contrary to public interest.
  • Waiting longer for the notice and comment is impracticable.[51]
    • Why? The idea behind implacability is this is an emergency, not an inconvenience. When someone call 911, does anyone expect 911 to say, “Yes, we can help you. We first need to create a taskforce on how to solve this problem, the taskforce will propose solutions to us, we will call you and let you know, and then we will be over there one week later.”

Unnecessary (Uncontested.)

  • Drones are already considered aircraft and all aircraft are required to be registered.[52]
    • That is what the United States Code, Code of Federal Regulations, the FAA and the NTSB say; however, while they have no problem with this rule, 99% of the model aircraft flyers out there will oppose this. 14 CFR § 11.13 says, “Our reason for issuing a direct final rule without [notice and comment] is that we would not expect to receive any adverse comments, and so an [notice and comment] is unnecessary. However, to be certain that we are correct, we set the comment period to end before the effective date. If we receive an adverse comment or notice of intent to file an adverse comment, we then withdraw the final rule before it becomes effective and may issue an [notice and comment].” The unnecessary exception is for no contest type of regulations. If this regulation was narrowly tailored to only the Section 333 guys who have to register anyways, this rule would have 99% of the commercial guys supporting it and it would be completely unnecessary to do notice and comment.
  • Congress has directed the FAA to ensure safety of aircraft and airspace.[53]
    • Congress most likely won’t contest this, but the model aircraft guys will; therefore, it still doesn’t fall into unnecessary because it is contested.
  • No one would object because it “relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”[54]
    • Only the Section 333 guys currently are required to do this and would not contest this rule. Hidden in this proposed regulations is that 14 CFR 91.203 registration requirement now applies to all aircraft above 250 grams. 91.203 requires the Part 47 route which is difficult. What is happening is the FAA is now “activating” a regulation that has laid dormant to model aircraft individuals and using that now activated difficult regulation as a justification to fall into the unnecessary. Here is the problem with that argument, 99% of the model aircraft community does not even know 91.203 now applies to them; therefore, you can’t have a rule being uncontested if the individuals affected don’t even know what is going on! The whole idea behind the Federal Register Act of 1934 and the Administrative Procedures Act was to keep the public informed.

 

Contrary to the Public Interest (Public Would Be Harmed Rather than Benefited by Notice and Comment)

  • FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold.[55]
    • See below.
  • Even commercial guys are operating without authority.[56]
    • Yes, unfortunately that is the case. Many are doing so because they feel the FAA is unjustifiably regulating this area or the Section 333 restrictions are unreasonable. This is why it is extremely important for the FAA and DOT to work within the restrictions of Section 336 and the APA so as to not add fuel to the fire.
  • The FAA lists multiple stories on drone sightings.[57]
    • See the next one.
  • The FAA details 7 stories of drone reports.[58]
    • Out of the 7 stories, 4 of them resulted in the individual being identified without mandatory drone registration, 2 would have never even been remedied by drone registration, and only 1 would have been helped by mandatory drone registration. I’m not sure why these stories were put in here other than to maybe illustrate that education on the front end could have possibly prevented all 7 and in 1 of the stories, the individual could have been identified by registration alone. These facts don’t translate into justifying the good cause exception for notice being against the public interest. Maybe this was used as a justification for impracticability? Even so, there are 7 stories and this does not constitute an emergency.
  • The FAA lists two tables of drone reports from 2014 and 2015.[59]
    • The court’s review of agency rulemaking is highly deferential, limited to determining “whether the agency has considered the relevant factors and articulated a ‘rational connection between the facts found and the choice made.’”[60] The AMA responded to the drone sightings in a report that brings into question the facts being used for justification. https://www.modelaircraft.org/gov/docs/AMAAnalysis-Closer-Look-at-FAA-Drone-Data_091415.pdf It is not clear how many of the sightings of drones are in locations they should not be or how many are seen in areas where they could fly under the FAA’s own guidance documents.
    • Furthermore, compounding the problem is that the FAA has not clearly come out and stated that under AC 91-57, AC 91-57A, FMRA Section 336, and 2014 Model Interpretation and many other areas listed online, that flying a drone near an airport is “illegal.” The lack of clarity leads everyone to believe that this is completely prohibited, and there has been no clarification by the FAA on this common misconception. Therefore, people report drones flying in places they could be flying in accord with the FAA guidance which causes the drone sightings to be inflated and unreliable for rule making.
  • Commercial drone sales will “rapidly accelerate” to 11 million by 2020.[61]
    • See above.
  • Many individuals are new and have no clue of the national airspace.[62]
    • This is a problem and should be remedied according to the APA and getting Congress to change Section 336.

 

 3. Lack of Statutory Authority

This is a major point. If you study out all the statutes where the U.S. Congress delegated authority to the FAA to registered aircraft, you’ll notice they are only give power to register – aircraft. They were never given power to register people anywhere. The statutes always say register and aircraft. Let this sink in. This is a “Do not go pass go” situation. Before we even get to the discussion of 336 and the APA’s good cause exception the FAA needs to answer this.

You don’t even have to own an aircraft to register. The FAA’s own Marke Gibson said he didn’t even own an aircraft but registered. [63]

 

Proposed Solutions for the FAA:

  • Get Congress to pass an amendment to Section 336 so the regulations will not be in violation of it.
  • Go the notice and comment route with the regulations. Don’t skip this because it is inconvenient.
  • Publish a document that has everything a drone pilot needs to know in ONE place. There are multiple things being said in multiple places. Certain parts of the regulations apply and other parts do not. It needs to be listed in one place if individuals are going to be educated; otherwise, it is far easier to just fly than try and figure out what is actually required of you. See my blog post where I discuss further. I had to actually create a chart in my drone book, Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them, of all the do’s and do not’s because they are scattered all over.
  • Go through the drone reports and do your best to “clean up” the data. The data is lacking and because the whole flying near airports misconception has not been full clarified, the data is over inflated and inaccurate. Seek to implement quality controls on the data gathering and properly classify and represent it.
  • Reach out to highly-viewed social media celebrities to collaborate with in educating the community.

 

Why Am I Proposing These?

My fear is this rule will “delegitimize” the FAA and DOT in the eyes of many drone flyers.

Why?

Hope this helps guys. Fly safe. J

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[1] 18 U.S.C. 3571

[2] 49 U.S.C. 46306

[3] Page 155.

[4] United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988)

(citations omitted).

[5] Section 332(a)(2)(A)(ii).

[6] Section 332(a)(2)(I).

[7] Section 333(a).

[8] Section 333(b)(1).

[9] Section 334(c)(2)(C)(v).

[10] Section 336(a).

[11] Section 336(a)(4).

[12] Cohen v. JP Morgan Chase & Co., 498 F. 3d 111, 117-18  (2nd Cir. 2007).

[13] Nixon v. Missouri Municipal League, 541 US 125, 132-33 (2004).

[14] Section 336(b).

[15] Page 19.

[16] Page 18.

[17] Page 18.

[18] Page 18.

[19] Page 19.

[20] Page 11.

[21] Pages 11-12.

[22] Page 20.

[23] Page 12.

[24] Page 12.

[25] Pages 12-13.

[26] Pages 13-14.

[27] Page 14-16.

[28] Page 17.

[29] Page 17.

[30] 14 C.F.R. 1.1.

[31] Fed. Aviation Admin., FAA-IR-M-8040.1C, Airworthiness Directives Manual (2010) [hereinafter “AD Manual”], available at http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/66ddd8e1d2e95db3862577270062aabd/$FILE/FAA-IR-M-8040_1C.pdf

[32] Id. at 15.

[33] See id.

[34] See

[35] Id.

[36] Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369 (D.C. Cir. 1990), vacated without opinion and

remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).

[37] Id. at 379.

[38] 14 C.F.R. § 11.13.

[39] Id.

[40] See 14 C.F.R. § 11.31(c).

[41] See id.

[42] AD Manual, supra note 302, at 15.

[43] AD Manual, supra note 302, at 15.

[44] Jifry v. FAA, 370 F. 3d 1174, 1179 (D.C. Cir. 2004).

[45] Sorenson Communications Inc. v. FCC, 755 F. 3d 702, 706 (D.C. Cir. 2014).

[46] Page 19.

[47] Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369, 378 (D.C. Cir. 1990), vacated without opinion and

remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).

[48] Page 18.

[49] Page 18.

[50] Page 18.

[51] Page 19.

[52] Page 11.

[53] Pages 11-12.

[54] Page 20.

[55] Page 12.

[56] Page 12.

[57] Pages 12-13.

[58] Page 14-16.

[59] Pages 13-14.

[60] Jifry v. FAA, 370 F. 3d 1174, 1180 (D.C. Cir. 2004).

[61] Page 17.

[62] Page 17.

[63] At 27:47 https://www.youtube.com/watch?v=fOeoHJZdwuw


4 Big Updates to Many FAA Section 333 Exemptions

faa-section-333-exemption-updated5,529 FAA Section 333 Exemption were updated  (36 pages of docket numbers) with a blanket exemption amendment. This is great news as it provides many exemptions with new capabilities which were not possible before.  The FAA has slowly been updating things such as when they updated the blanket COA and when they changed the format of the “stock 333” around 3/7/2016.

Note: this update is only for those listed on those 36 pages who already had an exemption granted. If your petition for exemption was never granted, this does NOT apply to you. This is only for those who obtained an exemption.

Also, make sure you sign up for the newsletter below. I’m rewarding my newsletter subscribers with important information first before I publish things on social media.

 

Important Points of the FAA Section 333 Exemption Update

Don’t want to read? Listen or watch the video while you are doing something! 

 

1. Registration Under Part 48

Many can now register via Part 48 or Part 47. Some of the older 333’s were ONLY Part 47. This is great as the Part 47 registration method is a pain to do. Please remember that the Part 48 registration database is being challenged in the D.C. Circuit Court of Appeals by John Taylor. I’m helping him with the case and I think there are good reasons why the regulations were illegal and should be thrown out. See my article explaining why the regulations were illegally created. If John Taylor is successful, the registration database will be thrown out.

2. “Super List” of UA

The FAA created a giant list of approved aircraft. The FAA became tired of granting 333 exemption amendment requests to add aircraft. To solve this once and for all, the FAA approved the exemption holder for whatever was on the list. The FAA just kept updating the list over time and this met the needs of many; however, if you were granted an exemption prior to around May 2015, you most likely did not have the “super list” provision in your 333 exemption. The super list is specifically listed in docket FAA-2007-3330. Keep checking it as it is continually being updated to add on new aircraft. You should print it out and keep it with you as part of your operating documents.  Make sure your aircraft is located on it!

 

3. Flight Instruction is Allowed

Great job on doing this FAA! This will help promote safety and a culture of professionalism in the drone industry. I always made it a point to tell my flight students working on their private pilot certificates that their certificate was only a certificate allowing them to legally go out and accidentally kill themselves. It was really a license to learn, not to get cocky and start playing “Highway to the Danger Zone.” I instilled in them the need for safety. Additionally, flight instructors are role models for their students and we all know the drone community needs more pros, and less bros.

For a long time, only Kansas State had a 333 exemption that allowed flight instructing. The FAA has subsequently granted some 333 exemptions; however, all the older exemptions would have to petition for amendment to do instruction.

Why would this be beneficial? One example I know of is a large company that has protocols figured out and implemented for 333 exemption operations while they haven’t figured out how to operate under Part 107. Large battleships turn slowly. Another example is where a company has certain COA approvals for controlled airspace they obtained a long time ago. They would rather operate under those COAs than risk trying to obtain a newer airspace authorization. I can understand that. The FAA has been slow at things in the past; however, the FAA does seem to be making great strides in getting the airspace authorizations and waivers approved faster. The most recently granted night waivers were around 30 days from start to finish. One was super-fast at 13 days later; however, there are a few that are past 30 days waiting for the FAA. The one thing that is consistent is the different processors in the waiver and authorizations departments work at different paces.

 

4. Foreigners (Non-U.S. Citizens or Non-Permanent Residents)

The older 333 exemptions did not have a provision to allow the operation of foreign civil aircraft which is “(a) an aircraft of foreign registry that is not part of the armed forces of a foreign nation, or (b) a U.S.-registered aircraft owned, controlled or operated by persons who are not citizens or permanent residents of the United States.” See 14 CFR § 375.1 (emphasis mine). Now you can obtain a Foreign Aircraft Permit to allow a foreigner to operate under the 333.

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Things NOT Changed In the FAA Section 333 Exemption Update

Still Sport Certificate or Higher

Unfortunately, you still must have a sport certificate or higher. A 107 Remote Pilot Certificate or student certificate will NOT work. One thing you might want to consider is if you do have a sport license or higher, doing work in the 333 exemption only aircraft area because that area will have less competition. 55 pound and heavier operations cannot be done under Part 107 but can be done by a 333 exemption. It may be a smart business idea to start focusing on offering 55 pound and heavier services, such as when you need to use a 55 pound+ crop duster, a heavy rig drone for cinematography, etc. for the service. You might be able to command higher profit margins since there are few legal alternative options for clients.

 

Does NOT Extend Previous 333 Expiration Date

The exemption says, “This exemption terminates on the date provided in the petitioner’s original exemption or amendment most recently granted prior to the date of this amendment, unless sooner superseded or rescinded.” Big bummer. If you are interested in hiring me to renew your older 333, contact me.

Side by Side Comparison of the Different FAA Section 333 Exemption Provisions

Please keep in mind that I picked the latest stock 333 for comparison. The exemptions have morphed over the years so your 333 might differ from what is listed as a “stock 333.” Keep in mind that some of the provisions are the same but the number just changed.  Underlining and bold means something is new while bold and strikethrough means it was deleted.

Previous 

Updated 

Same1. The operator is authorized by this grant of exemption to use any aircraft identified on the List of Approved Unmanned Aircraft Systems (UAS) under Section 333 at regulatory docket FAA–2007–3330 at www.regulations.gov, when weighing less than 55 pounds including payload. Proposed operations of any aircraft not on the list currently posted to the above docket will require a new petition or a petition to amend this exemption.
Same2. If operations under this exemption involve the use of foreign civil aircraft the operator would need to obtain a Foreign Aircraft Permit pursuant to 14 CFR § 375.41 before conducting any commercial air operations under this authority. Application instructions are specified in 14 CFR §375.43. Applications should be submitted by electronic mail to the DOT Office of International Aviation, Foreign Air Carrier Licensing Division. Additional information can be obtained via https://cms.dot.gov/policy/aviation-policy/licensing/foreign-carriers.
6. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The exemption holder may use either groundspeed or calibrated airspeed to determine compliance with the 87 knot speed restriction. In no case will the UA be operated at airspeeds greater than the maximum UA operating airspeed recommended by the aircraft manufacturer.

 

 

3. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The operator may use either groundspeed or calibrated airspeed to determine compliance with the 87 knot speed restriction. In no case will the UA be operated at airspeeds greater than the maximum UA operating airspeed recommended by the aircraft manufacturer.
7. The UA must be operated at an altitude of no more than 400 feet above ground level (AGL). Altitude must be reported in feet AGL.

 

 

4. The UA must be operated at an altitude of no more than 400 feet above ground level (AGL). Altitude must be reported in feet AGL. This limitation is in addition to any altitude restrictions that may be included in the applicable COA.
23. Air Traffic Organization (ATO) Certificate of Waiver or Authorization (COA). All operations shall be conducted in accordance with an ATO-issued COA. The exemption holder may apply for a new or amended COA if it intends to conduct operations that cannot be conducted under the terms of the enclosed COA.5. Air Traffic Organization (ATO) Certificate of Waiver or Authorization (COA). All operations must be conducted in accordance with an ATO-issued COA. The exemption holder must apply for a new or amended COA if it intends to conduct operations that cannot be conducted under the terms of the enclosed COA.
8. The UA must be operated within visual line of sight (VLOS) of the PIC at all times. This requires the PIC to be able to use human vision unaided by any device other than corrective lenses, as specified on the PIC’s FAA-issued airman medical certificate or U.S. driver’s license.6. The Pilot in Command (PIC) must have the capability to maintain visual line of sight (VLOS) at all times. This requires the PIC to be able to use human vision unaided by any device other than corrective lenses, as specified on that individual’s FAA-issued airman medical certificate or valid U.S. driver’s license issued by a state, the District of Columbia, Puerto Rico, a territory, a possession, or the Federal Government, to see the UA.
9. All operations must utilize a VO. The UA must be operated within the VLOS of the PIC and VO at all times. The VO may be used to satisfy the VLOS requirement as long as the PIC always maintains VLOS capability. The VO and PIC must be able to communicate verbally at all times; electronic messaging or texting is not permitted during flight operations. The PIC must be designated before the flight and cannot transfer his or her designation for the duration of the flight. The PIC must ensure that the VO can perform the duties required of the VO.7. All operations must utilize a visual observer (VO). The UA must be operated within the visual line of sight (VLOS) of the VO at all times. The VO must use human vision unaided by any device other than corrective lenses to see the UA. The VO, the person manipulating the flight controls of the small UAS, and the PIC must be able to communicate verbally at all times. Electronic messaging or texting is not permitted during flight operations. The PIC must be designated before the flight and cannot transfer his or her designation for the duration of the flight. The PIC must ensure that the VO can perform the duties required of the VO. Students receiving instruction or observing an operation as part of their instruction may not serve as visual observers.
10. This exemption, the List of Approved Unmanned Aerial Systems (UAS) under Section 333 at regulatory docket FAA–2007–3330 at www.regulations.gov, and all documents needed to operate the UAS and conduct its operations in accordance with the conditions and limitations stated in this grant of exemption, are hereinafter referred to as the operating documents. The operating documents must be accessible during UAS operations and made available to the Administrator upon request. If a discrepancy exists between the conditions and limitations in this exemption and the procedures outlined in the operating documents, the conditions and limitations herein take precedence and must be followed. Otherwise, the operator must follow the procedures as outlined in its operating documents. The operator may update or revise its operating documents. It is the operator’s responsibility to track such revisions and present updated and revised documents to the Administrator or any law enforcement official upon request. The operator must also present updated and revised documents if it petitions for extension or amendment to this grant of exemption. If the operator determines that any update or revision would affect the basis upon which the FAA granted this exemption, then the operator must petition for an amendment to its grant of exemption. The FAA’s UAS Integration Office may be contacted if questions arise regarding updates or revisions to the operating documents8. This exemption, the List of Approved Unmanned Aircraft Systems (UAS) under Section 333 at regulatory docket FAA-2007-3330 at www.regulations.gov, all previous grant(s) of exemption, and all documents needed to operate the UAS and conduct its operations in accordance with the Conditions and Limitations stated in this exemption, are hereinafter referred to as the operating documents. The operating documents must be accessible during UAS operations and made available to the Administrator upon request. If a discrepancy exists between the Conditions and Limitations in this exemption, the applicable ATO-issued COA, and the procedures outlined in the operating documents, the most restrictive conditions, limitations, or procedures apply and must be followed. The operator may update or revise its operating documents as necessary. The operator is responsible for tracking revisions and presenting updated and revised documents to the Administrator or any law enforcement official upon request. The operator must also present updated and revised documents if it petitions for extension or amendment to this exemption. If the operator determines that any update or revision would affect the basis upon which the FAA granted this exemption, then the operator must petition for an amendment to its exemption. The FAA’s UAS Integration Office may be contacted if questions arise regarding updates or revisions to the operating documents.
11. Any UAS that has undergone maintenance or alterations that affect the UAS operation or flight characteristics, e.g., replacement of a flight critical component, must undergo a functional test flight prior to conducting further operations under this exemption. Functional test flights may only be conducted by a PIC with a VO and must remain at least 500 feet from other people. The functional test flight must be conducted in such a manner so as to not pose an undue hazard to persons and property.9. Any UAS that has undergone maintenance or alterations that affect the UAS operation or flight characteristics, e.g. replacement of a flight critical component, must undergo a functional test flight prior to conducting further operations under this exemption. Functional test flights may only be conducted by a PIC with a VO and essential flight personnel only and must remain at least 500 feet from all other people. The functional test flight must be conducted in such a manner so as to not pose an undue hazard to persons and property.
Same

 

 

10. The operator is responsible for maintaining and inspecting the UAS to ensure that it is in a condition for safe operation.
Same11. Prior to each flight, the PIC must conduct a pre-flight inspection and determine the UAS is in a condition for safe flight. The pre-flight inspection must account for all potential discrepancies, e.g. inoperable components, items, or equipment. If the inspection reveals a condition that affects the safe operation of the UAS, the aircraft is prohibited from operating until the necessary maintenance has been performed and the UAS is found to be in a condition for safe flight.
Same as 14 and 15.12. The operator must follow the UAS manufacturer’s maintenance, overhaul,

replacement, inspection, and life limit requirements for the aircraft and aircraft

components. Each UAS operated under this exemption must comply with all

manufacturer safety bulletins.

3. PIC certification: Under this exemption, a PIC must hold either an airline transport, commercial, private, recreational, or sport pilot certificate. The PIC must also hold a current FAA airman medical certificate or a valid U.S. driver’s license issued by a state, the District of Columbia, Puerto Rico, a territory, a possession, or the Federal Government. The PIC must also meet the flight review requirements specified in 14 CFR § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.13. PIC certification: Under this grant of exemption, a PIC must hold either an airline transport, commercial, private, recreational, or sport pilot certificate. The PIC must also hold a current FAA airman medical certificate or a valid U.S. driver’s license issued by a state, the District of Columbia, Puerto Rico, a territory, a possession, or the Federal government. The PIC must also meet the flight review requirements specified in 14 CFR § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.
4. PIC qualifications: The PIC must demonstrate the ability to safely operate the UAS in a manner consistent with how it will be operated under this exemption, including evasive and emergency maneuvers and maintaining appropriate distances from persons, vessels, vehicles, and structures before operating non-training, proficiency, or experience-building flights under this exemption. PIC qualification flight hours and currency may be logged in a manner consistent with 14 CFR § 61.51(b), however UAS pilots must not log this time in the same columns or categories as time accrued during manned flight. UAS flight time must not be recorded as part of total time.14. PIC qualifications: The PIC must demonstrate the ability to safely operate the UAS in a manner consistent with how it will be operated under this exemption, including evasive and emergency maneuvers and maintaining appropriate distances from persons, vessels, vehicles, and structures before conducting student training operations. Flights for the pilot’s own training, proficiency, or experience-building under this exemption may be conducted under this exemption. PIC qualification flight hours and currency may be logged in a manner consistent with 14 CFR § 61.51(b), however, UAS pilots must not log this time in the same columns or categories as time accrued during manned flight. UAS flight time must not be recorded as part of total time.
15. Training: The operator may conduct training operations when the trainer/instructor is qualified as a PIC under this exemption and designated as PIC for the entire duration of the flight operation. Students/trainees are considered direct participants in the flight operation when manipulating the flight controls of a small UAS and are not required to hold any airman certificate. The student/trainees may be the manipulators of the controls; however, the PIC must directly supervise their conduct and the PIC must also have sufficient override capability to immediately take direct control of the small UAS and safely abort the operation if necessary, including taking any action necessary to ensure safety of other aircraft as well as persons and property on the ground in the event of unsafe maneuvers and/or emergencies for example landing in an empty area away from people and property.
Same

 

16. Under all situations, the PIC is responsible for the safety of the operation. The PIC is also responsible for meeting all applicable Conditions and Limitations as prescribed in this exemption and ATO-issued COA, and operating in accordance with the operating documents. All training operations must be conducted during dedicated training sessions and may or may not be for compensation or hire. The operation must be conducted with a dedicated VO who has no collateral duties and is not the PIC during the flight. The VO must maintain visual sight of the aircraft at all times during flight operations without distraction in accordance with the Conditions and Limitations below. Furthermore, the PIC must operate the UA not closer than 500 feet to any nonparticipating person without exception.
Same17. UAS operations may not be conducted during night, as defined in 14 CFR § 1.1. All operations must be conducted under visual meteorological conditions (VMC). Flights under special visual flight rules (SVFR) are not authorized.
Same18. The UA may not be operated less than 500 feet below or less than 2,000 feet horizontally from a cloud or when visibility is less than 3 statute miles from the PIC.
Same19. For tethered UAS operations, the tether line must have colored pennants or streamers attached at not more than 50 foot intervals beginning at 150 feet above the surface of the earth and visible from at least 1 mile. This requirement for pennants or streamers is not applicable when operating exclusively below the top of and within 250 feet of any structure, so long as the UA operation does not obscure the lighting of the structure.
Same20. For UAS operations where GPS signal is necessary to safely operate the UA, the PIC

must immediately recover/land the UA upon loss of GPS signal.

Same21. If the PIC loses command or control link with the UA, the UA must follow a predetermined route to either reestablish link or immediately recover or land.
22. The PIC must abort the flight operation if circumstances or emergencies that could potentially degrade the safety of persons or property arise. The PIC must terminate flight operations without causing undue hazard to persons or property in the air or on the ground.22. The PIC must abort the flight operation if unpredicted circumstances or emergencies that could potentially degrade the safety of persons or property arise. The PIC must terminate flight operations without causing undue hazard to persons or property in the air or on the ground.
Same23. The PIC is prohibited from beginning a flight unless (considering wind and forecast weather conditions) there is enough available power for the UA to conduct the intended operation and to operate after that for at least five minutes or with the reserve power recommended by the manufacturer if greater.
24. All aircraft operated in accordance with this exemption must be registered in accordance with 14 CFR part 47 or 48, and have identification markings in accordance with 14 CFR part 45, Subpart C or part 48. For applicability and implementation dates of part 48 see 80 FR 78594 (Dec. 16, 2015).24. All aircraft operated in accordance with this exemption must be registered in accordance with 14 CFR part 47 or 48, and have identification markings in accordance with 14 CFR part 45, Subpart C or part 48.
Same25. Documents used by the operator to ensure the safe operation and flight of the UAS and any documents required under 14 CFR §§ 91.9 and 91.203 must be available to the PIC at the Ground Control Station of the UAS any time the aircraft is operating. These documents must be made available to the Administrator or any law enforcement official upon request.
26. The UA must remain clear and give way to all manned aviation operations and activities at all times.26. The UA must remain clear of and give way to all manned aircraft at all times.
27. The UAS may not be operated by the PIC from any moving device or vehicle.27. The UAS may not be operated by the PIC from any moving device or vehicle.
28. All flight operations must be conducted at least 500 feet from all persons, vessels, vehicles, and structures unless when operating:

a. Over or near people directly participating in the operation of the UAS. People directly participating in the operation of the UAS include the PIC, VO, and other consenting personnel that are directly participating in the safe operation of the UA.

b. Near but not over people directly participating in the intended purpose of the UAS operation. People directly participating in the intended purpose of the UAS must be briefed on the potential risks and acknowledge and consent to those risks. Operators must notify the local Flight Standards District Office (FSDO) with a plan of activities at least 72 hours prior to flight operations.

c. Same

d. Same

28. All flight operations must be conducted at least 500 feet from all persons, vessels, vehicles, and structures unless when operating:

a. Over or near people directly participating in the operation of the UAS. People directly participating in the operation of the UAS include the student manipulating the controls, PIC, VO, and other consenting personnel that are directly participating in the safe operation of the UA.

b. Near but not over people directly participating in the intended purpose of the UAS operation. People directly participating in the intended purpose of the UAS (including students in a class not manipulating the controls of the UAS), who must be briefed on the potential risks and acknowledge and consent to those risks. Operators must notify the local Flight Standards District Office (FSDO) with a plan of activities at least 72 hours prior to flight operations.

c. Near nonparticipating persons: Except as provided in subsections (a) and (b) of this section, a UA may only be operated closer than 500 feet to a person when barriers or structures are present that sufficiently protect that person from the UA and/or debris or hazardous materials such as fuel or chemicals in the event of an accident. Under these conditions, the operator must ensure that the person remains under such protection for the duration of the operation. If a situation arises where the person leaves such protection and is within 500 feet of the UA, flight operations must cease immediately in a manner that does not cause undue hazard to persons.

d. Near vessels, vehicles, and structures. Prior to conducting operations the operator must obtain permission from a person with the legal authority over any vessels, vehicles or structures that will be within 500 feet of the UA during operations. The PIC must make a safety assessment of the risk of operating closer to those objects and determined that it does not present an undue hazard.

Same29. All operations shall be conducted over private or controlled-access property with permission from a person with legal authority to grant access. Permission will be obtained for each flight to be conducted.
30. Any incident, accident, or flight operation that transgresses the lateral or vertical boundaries of the operational area as defined by the applicable COA must be reported to the FAA’s UAS Integration Office within 24 hours. Accidents and incidents must be reported to the National Transportation Safety Board (NTSB) in accordance with 49 CFR § 830.5 per instructions contained on the NTSB Web site: www.ntsb.gov.30. Any incident, accident, or flight operation that transgresses the lateral or vertical boundaries of the operational area as defined by the applicable COA must be reported to the FAA’s UAS Integration Office within 24 hours. Accidents must be reported to the National Transportation Safety Board (NTSB) in accordance with its UAS accident reporting requirements.
SameFor operations conducted closer than 500 feet to people directly participating in the intended purpose of the operation, not protected by barriers, the following additional conditions and limitations apply:

31. The operator must have an operations manual that contains at least the following items, although it is not restricted to these items.

a. Operator name, address, and telephone number.

b. Distribution and Revision. Procedures for revising and distributing the operations manual to ensure that it is kept current. Revisions must comply with the applicable Conditions and Limitations in this exemption.

c. Persons Authorized. Specify criteria for designating individuals as directly participating in the safe operation of the UAS. The operations manual must include procedures to ensure that all operations are conducted at distances from persons in accordance with the Conditions and Limitations of the exemption.

d. Plan of Activities. The operations manual must include procedures for the submission of a written plan of activities.

e. Permission to Operate. The operations manual shall specify requirements and procedures that the operator will use to obtain permission to operate over property or near vessels, vehicles, and structures in accordance with this exemption.

f. Security. The manual must specify the method of security that will be used to ensure the safety of nonparticipating persons. This should also include procedures that will be used to stop activities when unauthorized persons, vehicles, or aircraft enter the operations area, or for any other reason, in the interest of safety.

g. Briefing of persons directly participating in the intended operation. Procedures must be included to brief personnel and participating persons on the risks involved, emergency procedures, and safeguards to be followed during the operation.

h. Personnel directly participating in the safe operation of the UAS Minimum Requirements. In accordance with this exemption, the operator must specify the minimum requirements for all flight personnel in the operating manual. The PIC at a minimum will be required to meet the certification standards specified in this exemption.

i. Communications. The operations manual must contain procedures to provide communications capability with participants during the operation. The operator can use oral, visual, or radio communications as along as the participants are apprised of the current status of the operation.

j. Accident Notification. The operations manual must contain procedures for notification and reporting of accidents in accordance with this exemption. In accordance with this exemption, the operating manual and all other operating documents must be accessible to the PIC during UAS operations.

32. At least 72 hours prior to operations, the operator must submit a written Plan of Activities to the local FSDO having jurisdiction over the proposed operating area.

The Plan of Activities must include at least the following:

a. Dates and times for all flights. For seasonal or long-term operations, this can include the beginning and end dates of the timeframe, the approximate frequency (e.g., daily, every weekend), and what times of the day operations will occur. A new plan of activities must be submitted prior to each season or period of operations.

b. Same

c. Make, model, and serial or N-Number of each UAS to be used.

d. Same

e. Same

f. Same

g. A description of the flight activity, including maps or diagrams of the area over which operations will be conducted and the altitudes essential to accomplish the operation. In accordance with this exemption, the Plan of Activities and all other operating documents must be accessible to the PIC during UAS operations. A new Plan of Activities must be submitted should there be any changes to items (a) through (g).

32. At least 72 hours prior to operations, the operator must submit a written Plan of Activities to the local FSDO having jurisdiction over the proposed operating area. The Plan of Activities must include at least the following:

a. Dates and times for all flights. For seasonal or long-term operations, this can include the beginning and end dates of the timeframe, the approximate frequency (e.g. daily, every weekend, etc.), and what times of the day operations will occur. A new plan of activities must be submitted prior to each season or period of operations.

b. Name and phone number of the on-site person responsible for the operation.

c. Make, model, and serial or FAA registration number of each UAS to be used.

d. Name and certificate number of each UAS PIC involved in the operations.

e. A statement that the operator has obtained permission from property owners.Upon request, the operator will make available a list of those who gave

permission.

f. Signature of exemption holder or representative stating the plan is accurate.

g. A description of the flight activity, including maps or diagrams of the area over which operations will be conducted and the altitudes essential to accomplish the operation.

 

How do I check my docket to see if I have this FAA Section 333 exemption amendment?

  1. Go to regulations.gov
  2. Type in your name.
    1. On the left hand side you can narrow your search by typing in the Agency section “FAA.”
  3. Find one of the pieces of paperwork you filed.
  4. Click the Open Docket Folder at the top left.
  5. Search your docket for the newest entry. It should be labeled “U.S. DOT/FAA – Decision/Amendment.”
  6. Click it and print out the PDF to keep with you as part of your operating documents.

 

Conclusion

This will help some of the older 333 exemptions holders be more flexible in their operations.  Please take the time to carefully read the restrictions as they apply to you. If you need help understanding the provision, you need to renew your older 333, or you want a Part 107 waiver or authorization, contact me.

 

Interested in flying under Part 107 instead of the Section 333 Exemption? Check out these resources!


FAA Issued Important Clarification on Registering Commercial and Recreational Drones

 

faa-section-333-exemption-updated(March 22, 2016) Many of us have multiple drones and typically have one or two birds we typically fly. Good news is you do NOT need to register your recreational or commercial drones if they are being operated only indoors OR they are not being operated at all. This means you can save $5 and not register your Phantom 2 vision sitting in the back of your attic, closet, or garage. Remember recreational drone operators get one registration they apply to all their drones while commercial operators register each drone.

The FAA explained this in a recent letter dated March 2, “A small unmanned aircraft owner need only register aircraft operated in the national airspace system (NAS). See 14 C.F.R. §§ 47.3(b) and 48.15. Thus, you need not immediately register those small unmanned aircraft that you do not anticipate flying for two to three years. As long as you complete the registration process provided by either, 14 C.F.R. part 47 or 14 C.F.R. part 48 prior to operation of your small unmanned aircraft in the NAS, you will be in compliance with aircraft registration requirements. See 14 C.F.R. §§ 47.3(b), 48.5(a) and 48.15.”

Keep in mind that if you are going to register at some point in the future, you should consider going the Part 47 paper based method as the Part 48 registration process is currently being challenged by John Taylor in a lawsuit in the D.C Circuit Court of Appeals. (I’m helping him).  There is a good chance the drone registration regulations will be struck down as violating the Administrative Procedures Act and Section 336. A more detailed analysis is here. Save yourself the potential headache of re-registering your drone under Part 47 if the Part 48 registry is struck down as invalid and just register via Part 47.


Three Recent Changes to 333 Exemption Amendments

 

The FAA started posting amendments on 3/7/2016 which are different from what the FAA has been previously doing. In the past, the FAA was granting amendments to petitions to add aircraft or to add on closed-set TV/movie filming. This created a super backlog because many of the petitioners were repeats. The granted amendments specifically incorporate by referencing a large list (“List of Approved Unmanned Aerial Systems”) of aircraft that have been approved in other exemptions.  There is a total of 1120 aircraft in the list. Some drones you would expect to be in there are NOT (Inspire 1 Pro & Phantom 4), while other drones you would NOT expect to be in there are listed (Inspire 2).

What does this mean for businesses with a petition pending?

This is great news for individuals with pending petitions because this means the processing times will start to DECREASE.

What does this mean for those who already have exemptions?

Unfortunately, the amendments are being given out ONLY for those that asked for the amendments, and it is not being retroactively applied to everyone. This means you will have to petition for amendment to add this exemption. This will cause a temporary surge in amendments while at the same time cleaning out the petitions for amendment already pending.

The amendment also clarified how operators are to log their flight time. It says, “PIC qualification flight hours and currency may be logged in a manner consistent with 14 CFR § 61.51(b), however UAS pilots must not log this time in the same columns or categories as time accrued during manned flight. UAS flight time must not be recorded as part of total time.” This means it is wise to keep a separate logbook for your drone flight time. Fortunately, there is a drone logbook that I created that is COA, 333, and FAR compliant to help drone operators meet this need. http://www.amazon.com/Drone-Operators-Logbook-Jonathan-Rupprecht/dp/1519653603

Another interesting note is that it will allow drone operators to fly with drones registered via the Part 48 online registration process. Currently, the FAA is planning on opening up this process to commercial operators on March 31st.  Keep in mind that the Taylor v. FAA lawsuits are challenging the FAA on their drone registration regulations (I’m working on those cases), and there are good grounds that the Part 48 registration regulations could be held to be invalid because the FAA didn’t create the regulations according to how Congress told them to. In other words, you are going to have to register AGAIN if the court throws out Part 48. Save yourself the potential pain of reregistering and go the Part 47 paper based registration route until that case gets settled.

There are other changes but I wanted to give everyone a quick update on these three points since these are immediately applicable. If you already have a 333 and are interested in trying to get your exemption quickly amended for this “Blanket” aircraft amendment or do the Part 47 paper-based registration, please don’t hesitate to reach out to contact me.


The Drone Registration Committee Turned in Their Recommendations to the FAA. Now What?

I’m not going to cover the legal issues with drone registration that I made in the previous blog post. I will only briefly discuss (1) the recommendations, (2) a few potential problems with the recommendations, and (3) what happens next in the rulemaking process.

The aviation rule making committee’s recommendations on drone registration can be viewed here.

(1) Summary of the Recommendations.

UAS Registration Task Force Aviation Rulemaking Committee Recommendations Summary
What category of UAS is covered by the registration requirement?UAS that weigh under 55 pounds and above 250 grams maximum takeoff weight, and are operated outdoors in the NAS.
Do owners need to register each individual UAS they own?No. The registration system is owner-based, so each registrant will have a single registration number that covers any and all UAS that the registrant owns.
Is registration required at point-of-sale?No. Registration is mandatory prior to operation of a UAS in the NAS.
What information is required for the registration process?Name and street address of the registrant are required.

Mailing address, email address, telephone number, and serial number of the aircraft are optional.

Is there a citizenship requirement?No.
Is there a minimum age requirement?Yes. Persons must be 13 years of age to register.
Is there a registration fee?No.
Is the registration system electronic or web-based?The system for entry of information into the database is web-based and also allows for multiple entry points, powered by an API that will enable custom apps to provide registry information to the database and receive registration numbers and certificates back from the database. Registrants can also modify their information through the web or apps.
How does a UAS owner prove registration?A certificate of registration will be sent to the registrant at the time of registration. The certificate will be sent electronically, unless a paper copy is requested, or unless the traditional aircraft registration process is utilized. The registration certificate will contain the registrant’s name, FAA-issued registration number, and the FAA registration website that can be used by authorized users to confirm registration information. For registrants who elect to provide the serial number(s) of their aircraft to the FAA, the certificate will also contain those serial number(s). Any time a registered UAS is in operation, the operator of that UAS should be prepared to produce the certificate of registration for inspection
Does the registration number have to be affixed to the aircraft?Yes, unless the registrant chooses to provide the FAA with the aircraft’s serial number. Whether the owner chooses to rely on the serial number or affix the FAA-issued registration number to the aircraft, the marking must be readily accessible and maintained in a condition that is readable and legible upon close visual inspection. Markings enclosed in a compartment, such as a battery compartment, will be considered “readily accessible” if they can be accessed without the use of tools.

(2) Potential Problems.

Inability for Non-Government Parties to Check.

If registration data is hidden from the public, then how does one check on the recreational individual to make sure they are compliant? It seems that only law enforcement will have access to this database to protect people’s privacy. Local AMA fields won’t have a way to validate compliance.

Validation of the Name and Address.

How does the FAA validate the name and address submitted? If the data that is put in is bad, then the data coming out will be bad. An individual could just put in a false name or address and no one could check unless they went to his address or somehow obtained his driver’s license. Remember that the whole point of registration is to track down the negligent or bad individuals who use a drone. Bad individuals most certainly won’t provide a name and address, unless they were on a one-way mission like the Paris attack. Law enforcement would just run the check and find the false name and false address in the database to match the false name and false registration on the registration paperwork. The FAA will have to go one step further and require that the drone operator be required to (1) possess a valid form of government ID and (2) present it to law enforcement upon request. This will make things harder because the individual will then have to assume an identity and obtain a fake ID, unless he is going on a one-way mission. Remember that Section 336 of the FAA Modernization and Reform Act of 2012 that I talked about in the previous blog post prevents the creation of new regulations affecting model aircraft but does not prevent the FAA from using already existing regulations. 14 CFR 61.3(a) says:

(a) Required pilot certificate for operating a civil aircraft of the United States. No person may serve as a required pilot flight crewmember of a civil aircraft of the United States, unless that person: . . .

 (2) Has a photo identification that is in that person’s physical possession or readily accessible in the aircraft when exercising the privileges of that pilot certificate or authorization. The photo identification must be a:

(i) Driver’s license issued by a State, the District of Columbia, or territory or possession of the United States;

(ii) Government identification card issued by the Federal government, a State, the District of Columbia, or a territory or possession of the United States;

(iii) U.S. Armed Forces’ identification card;

(iv) Official passport . . . .

(l)Inspection of certificate. Each person who holds an airman certificate, medical certificate, authorization, or license required by this part must present it and their photo identification as described in paragraph (a)(2) of this section for inspection upon a request from:

(1) The Administrator;

(2) An authorized representative of the National Transportation Safety Board;

(3) Any Federal, State, or local law enforcement officer; or

(4) An authorized representative of the Transportation Security Administration.

The problem with trying to apply this section to recreational flyers is that 61.3(a) applies to individuals with a “pilot certificate” and 61.3(l) applies to individuals who hold an “airman certificate, medical certificate, authorization, or license[.]”

Updating Address. What happens when you move? How many days do you have before you must update your address in the system?

14 CFR 61.60 says, “The holder of a pilot, flight instructor, or ground instructor certificate who has made a change in permanent mailing address may not, after 30 days from that date, exercise the privileges of the certificate unless the holder has notified in writing the FAA, Airman Certification Branch, P.O. Box 25082, Oklahoma City, OK 73125, of the new permanent mailing address, or if the permanent mailing address includes a post office box number, then the holder’s current residential address.

Once again, this regulation applies to individuals with pilot certificates.

(3) So What Happens Now in the Rule making Process?

Here are two graphical depictions of the FAA’s internal and external rule making process. There are many little steps in the external rule making process that are not covered for brevity’s sake. The red arrow stands for where the registration regulations are and the blue arrow depicts where the commercial drone regulations are.

internal rulemaking process

external rulemaking process

As you can see, we have a long way to go before any drone registration regulations can come out. To give you an idea of how long the rulemaking process takes, the rulemaking process for the commercial drone regulations (Red Arrow) were started in 2009 and the proposed regulations were only published in February of this year. I estimate that the proposed commercial drone regulations (Red Arrow) will not become final for 1-3 years from now. As of today, I checked the DOT’s significant rulemaking report for November and the proposed commercial drone regulations have not even left the FAA to the DOT.

Regarding the registration regulations (Blue Arrow), I don’t have enough information to guestimate but here is a quote from my upcoming book which will discuss the FAA rulemaking process, “In 2001, before the U.S. House of Representatives Sub-Committee on Aviation, Dr. Dillingham testified on the FAA’s rulemaking efforts in response to congressional mandates or NTSB recommendations between fiscal year 1995 and fiscal year 2000.   He said that after the FAA published an NPRM, the ‘FAA took a median time of approximately 2-½ years to complete the rulemaking, although 20 percent of the rules took 10 years or longer to complete.’”[1]

Hopefully, this clears up any questions you have regarding when this regulation is expected to come out. It does not look like the registration regulations will be cleared for take-off prior to Christmas.

[1] U.S. Gov’t Accountability Office, GAO-01-950T, Incomplete Implementation Impaired FAA’s Reform Efforts 1, 3 (2001).