This letter provides a response to your request for clarification concerning “what constitutes the not-to-exceed takeoff weight” for purposes of operations conducted in accordance with 14 CFR part 107-Small Unmanned Aircraft Systems. Specifically, you quote the definition of “small unmanned aircraft” codified at§ 107.3, which states a small unmanned aircraft is one “weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.” Your request for clarification presents an example of a small unmanned aircraft that weighs 54 pounds prior to inflation of the helium envelope. You further state, “the helium envelope provides 30 pounds (ignoring the weight of the helium) of ‘positive’ buoyancy” and ask whether the small unmanned aircraft in such a case weighs 54 pounds or 24 pounds at takeoff.
In the Operation and Certification of Small Unmanned Aircraft Systems, 81FR42064 (June 28, 2016), the FAA finalized its definition of “small unmanned aircraft” to include aircraft that weigh less than 55 pounds on takeoff The FAA noted other regulations use the term “on takeoff’ to mean the “total takeoff weight.” Id. at 42086 (referring to the definitions of “large aircraft,” “light-sport aircraft,” and “small aircraft” codified at 14 CFR § 1.1, because those definitions use the phrase “maximum takeoff weight” or “maximum certificated takeoff weight”). Based on the plain meaning of§ 107.3, therefore, the small unmanned aircraft you describe would weigh at least 54 pounds on takeoff; the operator of the small UAS would need to consider the weight of the helium on board the aircraft in determining the total weight. The FAA intended to apply part 107 to operations of small UAS that present only a minor risk to people. In promulgating part 107, the FAA stated the measurement of weight on takeoff ensures a risk-based application of part 107 to the most suitable category of low risk small UAS operations; in this regard, “in the event of a crash, a heavier aircraft can do more damage to people and property on the ground than a lighter aircraft.” 81 FR at 42086. As a result, in accordance with direction from Congress, the FAA stated that part 107 applies only to operations of small unmanned aircraft that weigh less than 55 pounds on takeoff. Pub. L. 112-95 § 331(6) (Feb. 14, 2012). The FAA clarified, “it is the total mass of the small unmanned aircraft that is important; the manner in which that mass is achieved is irrelevant.” 81 FR at 42086. As a result, the weight of the small unmanned aircraft on takeoff refers to the aircraft’s total mass.
I understand your desire to use “positive buoyancy” as a means of decreasing the weight of the small unmanned aircraft. For purposes of§ 107.3 and Public Law 112-95 § 331(6), however, the FAA does not consider such buoyancy in the determination of empty weight, or takeoff weight. In this regard, the FAA considers the weight of the gas on the small unmanned aircraft when determining the weight of the aircraft on takeoff. This conclusion that positive buoyancy does not affect the weight of the aircraft on takeoff is consistent with the plain language of § 107 .3, as the definition of “small unmanned aircraft” therein does not mention buoyancy or other principles that may apply to lighter than-air aircraft. The FAA’ s airship design criteria define a maximum heaviness, and a maximum lightness, which takes into account the buoyancy of the gas on board.
However, these values are used for aircraft certification purposes in determining airship performance rather than the design weight. The FAA currently uses empty weight of the airship, without buoyancy, to define the weight of an airship. 1
While the aforementioned discussion is relevant to the definition of “small unmanned aircraft” under part 107, it does not indicate the FAA should decline to consider positive buoyancy in other contexts. For example, while the definition of “small unmanned aircraft” is not subject to waiver, if an applicant seeks to apply for a waiver of an operational restriction under part 107, subpart D, the risk mitigation strategy could include how the buoyancy of a small unmanned aircraft assists in ensuring safety. As such, this interpretation is limited to the definition of small unmanned aircraft under part 107.
We appreciate your patience and trust that the above responds to your concerns. If you need further assistance, please contact my staff at (202) 267-3073. This letter has been prepared by Katie Inman, Operations Law Branch, Office of the Chief Counsel and coordinated with the General Aviation and Commercial Division of the Flight Standards Service.
Lorelei D. Peter Assistant Chief Counsel for Regulations, AGC-200
Applicability. This chapter provides guidance regarding the applicability of part 107 to civil small UA operations conducted within the NAS. However, part 107 does not apply to the following: 1. Model aircraft that are operated in accordance with Part 101 Subpart E, Model Aircraft), which applies to model aircraft meeting all of the following criteria:
• The aircraft is flown strictly for hobby or recreational use; • The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; • The aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community based organization; • The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; • When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control (ATC) tower (when an air traffic facility is located at the airport) with prior notice of the operation; • The aircraft is capable of sustained flight in the atmosphere; and • The aircraft is flown within Visual Line of Sight (VLOS) of the person operating the aircraft.
2. Operations conducted outside the United States; 3. Amateur rockets; 4. Moored balloons; 5. Unmanned free balloons; 6. Kites; 7. Public aircraft operations; and 8. Air carrier operations
To integrate small UAS operations into the NAS, this rule will create a new part in title 14 of the CFR: Part 107. The regulations of part 107, which are tailored to address the risks associated with small UAS operations, will apply to small UAS operations in place of certain existing FAA regulations that impede civil small UAS operations. Specifically, for small UAS operations, the requirements of part 107 will generally replace the airworthiness provisions of part 21, the airman certification provisions of part 61, the operating limitations of part 91, and the external load provisions of part 133. However, part 107 will not apply to all small UAS operations. For the reasons discussed below, part 107 will not apply to: (1) air carrier operations; (2) international operations; (3) public aircraft operations; (4) certain model aircraft; and (5) moored balloons, kites, amateur rockets, and unmanned free balloons. Additionally, part 107 will allow current holders of an exemption issued under section 333 of Public Law 112-95 to continue operating under the terms of their exemption rather than under part 107.
1. Transporting Property for Compensation (Air Carrier Operations) The NPRM proposed to allow transportation of property provided it is not done for compensation. The reasoning for the limitation on accepting payment or compensation for such transport is that, in general, when someone is transporting persons or property by air for compensation, that person may be considered an “air carrier” by statute and would then be required to obtain OST economic authority and additional FAA safety authority. See 49 U.S.C. 41101 (noting that an air carrier may provide air transportation only if the air carrier holds a certificate issued under this chapter [chapter 411-Economic Regulation of Air Carrier Certificates]
Because the traveling and shipping public have certain expectations of safety and consumer protection when payment is exchanged for carriage, air carriers are subject to both economic and safety regulations to mitigate the risks to persons or non-operator-owned property on the aircraft, including statutory requirements for liability insurance coverage. The Department sought comment on whether the rule should go further—that is, whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule, e.g., the ban on flights over uninvolved persons, the requirements for line of sight, and the intent to limit operations to a confined area. The Department also sought comment on whether a special class or classes of air carrier certification should be developed for UAS operations.
Commenters including NAAA, International Brotherhood of Teamsters, and ALPA supported the proposed prohibition on carrying property for compensation. These commenters generally asserted that allowing air carrier operations at this time would be premature. NAAA stated that a more stringent regulatory regime, including certification of the safety of a small UAS for air carrier operations, should be developed before air carrier operations are permitted. The International Brotherhood of Teamsters stated that weakening the regulations before “package delivery technologies” are proven safe and reliable could endanger not only the public but also the warehouse and operational staff involved in the loading and maintenance of small UAS. ALPA stated that until there is a demonstrated safety record for UAS air carrier operations, the Department should not authorize such operations.
Other commenters, including FAST Robotics, NBAA, and Small UAV Coalition argued that the FAA should permit such operations. Life Drone argued that the final rule should allow small UAS to deliver “medical AED units” to emergency and remote locations where there is little or no risk of interference with the NAS. MAPPS requested a “geospatial exemption” to allow companies to obtain air carrier services for various geospatial sensors owned by those other than the small UAS operator.
The Small UAV Coalition, Matternet, and the Information Technology and Innovation Foundation opposed the prohibition on the basis that allowing a company to use a small UAS to transport property in furtherance of the company’s own business, but not for compensation, is an arbitrary distinction. Matternet and the Small UAV Coalition argued that there is no safety or economic rationale to justify allowing property transport for business purposes but not for compensation. The Information Technology and Innovation Foundation asserted that the safety of goods transported by UAS does not depend on whether the UAS operator receives payment. This commenter further stated that “[the] goal should be to optimize both safety and commercial value when it comes to the integration of UAS into the NAS,” but the prohibition on air carrier operations places “unnecessary restrictions on commercial activity.”
Matternet noted that UAS analysis shows that over 80% of goods intended for delivery by UAS will be in the range of two kilograms or less, and that the total weight of the small UAS, including payload, will therefore be 6 kilograms or less. Thus, Matternet argued, the safety risks associated with manned air carrier operations—where the aircraft weighs considerably more and has significant fuel capacity, and where the operation could impact people both on the aircraft and on the ground—do not exist for unmanned air carrier operations. Google and the Consumer Electronics Association also pointed out that most UAS cargo delivery will consist of relatively low-weight items that create minimal safety concerns.
Google argued that UAS cargo operations are very similar to operations that require external payloads, such as sensors or cameras, and then noted that FAA has already authorized several small UAS operators to carry such external payloads. Amazon and American Farm Bureau Federation similarly noted that there are circumstances in which FAA already permits certain commercial operations (e.g., aerial work operations, crop dusting, banner towing, ferry or training flights, and some transport of persons or property for compensation) without requiring an air carrier certificate, and a similar carve-out should be established for low-risk transport using small UAS.
Pointing to the low risks associated with the transport of property by small UAS under the operating limitations of the proposed rule, Amazon, Matternet, American Farm Bureau Federation, and Michigan Farm Bureau stated that an air carrier certification is not necessary for small UAS air carrier operations. If, however, the Department determines that some type of air carrier certification is required by statute, those four commenters, the Small UAV Coalition, and Continental Mapping suggested that the Department develop an alternative certification process that is tailored to small UAS operations.
NBAA and UPS stated that FAA can ensure safe operations by defining performance-based standards to enable transport of property for compensation. For example, UPS suggested weight limitations for small UAS involved in transporting property. AUVSI said risks could be mitigated by compliance with industry standards for design and build that would normally occur through the aircraft certification process. Aviation Management noted that small UAS should be permitted to transport property if they have received approval to do so—i.e., through compliance with an advisory circular or with an industry standard for design and build, such as one developed by ASTM. The Consumer Electronics Association and Small UAV Coalition pointed out that companies that want to transport property by UAS for compensation have powerful business incentives to ensure safe, efficient, and complete operations.
Other commenters, including NetMoby, FAST Robotics, and Planehook Aviation Services, LLC (Planehook Aviation), said that a special class of air carrier certification should be required for UAS to transport property for payment. Planehook Aviation stated that, at a minimum, FAA should create a “common carriage certification” that mirrors the care and safety requirements for manned aviation under 14 CFR part 119.
The Department has reviewed the comments and legal authorities that govern the transport of property for compensation and has determined that it is appropriate to allow some limited operations involving the transport of property for compensation to be done under the other provisions of part 107, as analyzed below. As noted earlier, in general when someone is transporting persons or property by air for compensation, that person may be considered an “air carrier” by statute and would then be required to obtain economic authority from the Office of the Secretary and additional FAA safety authority. Historically, the FAA has also required, through regulation, that certain commercial operators who may be transporting people or property for compensation wholly within a State, and thus not triggering the statutory requirements for air carriers, be certificated and comply with heightened safety requirements, based on the Administrator’s authority in § 44701(a)(5) to prescribe regulations that are necessary for safety in air commerce. The rationale for this is that even aircraft operating wholly within a State could be operated in such a manner that directly affects, or may endanger safety in foreign or interstate air commerce.
In contrast, the FAA has also recognized that some commercial operations should not be subject to these heightened operator certification requirements and should be allowed to operate under the general operating rules of 14 CFR part 91. Some examples of this include student instruction, sightseeing flights conducted in hot air balloons, and non-stop flights conducted within a 25-statute mile radius of the airport of takeoff for the purpose of conducting parachute operations, as well as certain helicopter flights conducted within a 25-mile radius of the airport of takeoff.45 These exceptions are narrow and well-defined, and must be conducted in accordance with operating limitations set forth in § 119.1(e) and 14 CFR part 91.
In light of our experience with certification of other commercial operations, and with particular attention to the safe integration of new technologies, applications that are emerging, and limited nature of the transportation that could occur given the operating limits of the final rule, the Department has determined that a similar exception from air carrier operations for unmanned aircraft involving limited transport of property for compensation is appropriate. As adopted, the final rule provides immediate flexibility for remote pilots to engage in the limited carriage of property by small UAS, provided that the operations are conducted within a confined area and in compliance with the operating restrictions of 14 CFR part 107. It does not, however, allow individuals or corporations, acting as “air carriers,” to engage in “air transportation” as those terms are defined in 49 U.S.C. 40102.46 As technology develops in the future, the Department will evaluate the integration of more expansive UAS air carrier operations into the NAS and will propose further economic and safety regulations if warranted.
In order to not be considered “air transportation,” first, the transport must occur wholly within the bounds of a state. It may not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession, as this is defined by statute as interstate air transportation and would otherwise trigger the Department’s statutory requirements for air carrier operations. Thus, remote pilots may not offer or conduct “air transportation,” in which goods move across State or national borders. By statute and regulation, individuals seeking to carry more than a de minimis volume of property moving as part of a continuous journey over state, territorial, or international boundaries are considered by the Department of Transportation to be “air carriers” engaging in “air transportation.”The assessment of whether an operator is engaging in “air transportation” is specific to the facts and circumstances of each case. Generally, the Department looks to how the transportation is being marketed and offered to customers, whether the transporting entity has existing aviation economic authority, and the extent to which the people or goods are being transported as part of an inter- or multi-State network. Second, as with other operations in part 107, small UAS operations involving the transport of property must be conducted within visual line of sight of the remote pilot. While the visual-line-of-sight limitation can be waived for some operations under the rule, the restriction is a critical component of the Department’s finding that these part 107 operations do not warrant further safety or economic authority at this time. The visual-line-of-sight restriction limits the area of operation to a circle with only about a 1-mile radius around the remote pilot in command, depending on the visibility conditions at the time of the operation. This limited area of operation mitigates the safety concerns that underlie the additional requirements that the FAA normally imposes on commercial operators under part 119. Operating within visual line of sight of the remote pilot is also critical to the Department’s finding that these operations are so limited such that at this time, they could not be considered air transportation, or part of a broader network of interstate commerce warranting economic authority to ensure adequate protection of consumers’ interests at this time. Accordingly, any waivers that the FAA may grant to the visual-line-of-sight provisions of part 107 will not allow the operation to transport property for compensation or hire beyond visual line of sight.
For these reasons, this rule will also not allow the operation of a small UAS from a moving vehicle if the small unmanned aircraft is being used to transport property for compensation or hire. Allowing operation from a moving vehicle could allow the remote pilot in command to significantly expand the area of operation, raising the same safety and economic concerns as operations conducted beyond visual line of sight.
Third, the provisions of part 107 limit the maximum total weight of the small unmanned aircraft (including any property being transported) to under 55 pounds. This limits the size and weight of any property transported by the unmanned aircraft. Additionally, other provisions of the final rule require the remote pilot to know the unmanned aircraft’s location; to determine the unmanned aircraft’s attitude, altitude and direction; to yield the right of way to other aircraft; and to maintain the ability to see-and-avoid other aircraft. In the aggregate, the provisions of the final rule are designed to create an integrated framework and strike a balance that, on the one hand, allows limited transportation of property for compensation, but, on the other hand, ensures safety in the NAS and the opportunity to evaluate more expansive carriage of property that would require both OST economic authority and additional FAA safety authority.
Fourth, the FAA notes that the carriage of hazardous materials poses a higher level of risk than the carriage of other types of property. For example, in the context of external load operations conducted under 14 CFR part 133, the FAA has found, that “the transport of hazardous materials, especially forbidden [by PHMSA] hazardous materials, in external load operations creates a hazard to persons or property in the surface.”48 Because the carriage of hazardous materials poses a higher level of risk, part 107 will not allow the carriage of hazardous materials.
Based on these operational limits, the Department at this time does not view the limited transport of property for compensation that could occur via a small UAS that is operated within visual line of sight of the remote pilot to constitute “interstate air transportation.” The final rule, therefore, creates a new exception under 14 CFR part 119 for these operations authorized by part 107. This approach will encompass the vast majority of transportation by small UAS that could be conducted under part 107, including many of the specific scenarios suggested by commenters, without requiring the Department to design and develop a new infrastructure for issuance and administration of a new air carrier economic and safety licensing regime.
We note that while the operations permitted by this rule do not rise to the level of air transportation, they are still considered to be commercial operations. Thus as discussed in the next section, if a person does not satisfy U.S. citizenship requirements, he or she must seek authority under 14 CFR part 375 before conducting these operations.
2. International Operations and Foreign-Owned Aircraft The International Civil Aviation Organization (ICAO) has recognized that UAS are aircraft, and as such, existing standards and recommended practices (SARPs) that apply to aircraft apply to UAS. ICAO currently is reviewing the existing SARPs to determine what modifications, if any, need to be made to accommodate UAS. In the U.S., however, UAS may operate with DOT authorization, under the authority of section 33349 of Public Law 112-95, in a much less restrictive manner than current ICAO SARPs require. Thus, the FAA proposed to limit the applicability of part 107 to small UAS operations that are conducted entirely within the United States. Persons who wish to conduct operations outside of the United States would be able to do so, provided they seek and obtain the proper authorization from the requisite foreign civil aviation authority.
In addition, based on the ICAO framework and the current review that ICAO is conducting, the FAA proposed to limit the rule to operations of U.S.-registered UAS. Under 49 U.S.C. 44103 and 14 CFR 47.3, an aircraft can be registered in the United States only if it is not registered under the laws of a foreign country and meets one of the following ownership criteria: • The aircraft is owned by a citizen of the United States; • The aircraft is owned by a permanent resident of the United States; • The aircraft is owned by a corporation that is not a citizen of the United States, but that is organized and doing business under U.S. Federal or State law and the aircraft is based and primarily used in the United States; or • The aircraft is owned by the United States government or a State or local governmental entity.
In proposing this requirement, the FAA noted that existing U.S. international trade obligations, including the North American Free Trade Agreement (NAFTA), cover certain kinds of operations known as specialty air services. Specialty air services are generally defined as any specialized commercial operation using an aircraft whose primary purpose is not the transportation of goods or passengers, including but not limited to aerial mapping, aerial surveying, aerial photography, forest fire management, firefighting, aerial advertising, glider towing, parachute jumping, aerial construction, helilogging, aerial sightseeing, flight training, aerial inspection and surveillance, and aerial spraying services. The FAA invited comments on whether foreign-registered small unmanned aircraft should be permitted to operate under part 107, or recognized as specialty air services under international trade obligations.
With respect to limiting UAS operations under part 107 to operations within the United States, the National Agricultural Aviation Association (NAAA), DJI, and another commenter supported the limitation, but sought clarification and additional guidance material on what steps individuals may need to complete to obtain the proper authorization from foreign civil aviation authorities and the FAA to operate outside the United States.
Article 8 of the Chicago Convention specifies that no unmanned aircraft “shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization.” Article 8 also calls on States to undertake “to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft.” In accordance with this obligation, the provisions of part 107 set forth the necessary authorizations for operations conducted by U.S. citizens only within the United States. For those seeking to operate outside the United States, special authorization from the foreign civil aviation authority will be required. Thus, remote pilots wishing to conduct operations over another country’s airspace should review that country’s statutes, regulations, and guidance for clarification about how to operate in its airspace.
The Small UAV Coalition sought clarification regarding whether UAS operations over water and beyond 12 nautical miles from the U.S. coast could be conducted under part 107, provided the operations are within U.S. flight information regions and not over the territory of a contracting member state.
Until such time as agreements are reached with other countries, the FAA has determined that operations will be restricted to the land areas, internal waters, and territorial sea of the United States. U.S. flight information regions that are more than 12 nautical miles from the coast of the United States do not satisfy these criteria, and as such, part 107 will not apply to operations in those areas. Planehook Aviation argued that the rule should be consistent with applicable articles of the Chicago Convention, which, as noted previously, deal with unmanned aircraft operations and the safe separation from manned civil aircraft operations.
As discussed earlier, ICAO has recognized that existing SARPs that apply to aircraft apply to UAS. ICAO currently is reviewing the existing SARPs to determine what modifications, if any, need to be made to accommodate UAS and in fact, recently amended the standard contained in paragraph 3.1.9 of Annex 2 (Rules of the Air). This standard requires that “[a] remotely piloted aircraft shall be operated in such a manner as to minimize hazards to persons, property or other aircraft and in accordance with the conditions specified in Appendix 4.” That appendix sets forth detailed conditions ICAO Member States must require of civil UAS operations for the ICAO Member State to comply with the Annex 2, paragraph 3.1.9 standard.
Consistent with the recent amendment to 3.1.9 of Annex 2, the provisions of part 107 are designed to minimize hazards to persons, property or other aircraft operating within the United States. Given the on-going evaluation of the SARPs by ICAO, this rule will, for the time being, limit the applicability of part 107 to small UAS operations that are conducted entirely within the United States. The FAA envisions that operations in international and foreign airspace will be dealt with in a future FAA rulemaking as ICAO continues to revise and more fully develop its framework for UAS operations to better reflect the diversity of UAS operations and types of UAS and to distinguish the appropriate levels of regulation in light of those differences. Transport Canada stated that there is a discrepancy between the proposed rule’s description of U.S. territorial waters extending to 12 nautical miles from the U.S. coast, and text in 14 CFR 91.1 that makes reference to “waters within 3 nautical miles of the U.S. Coast.”
Under Presidential Proclamation 5928, the territorial sea of the United States, and consequently its territorial airspace, extends to 12 nautical miles from the baselines of the United States determined in accordance with international law. Thus, UAS operations that occur within 12 nautical miles from the baselines of the United States will be considered as operations occurring within the United States consistent with the applicability of part 107.
The FAA notes that this approach is consistent with part 91. While, as Transport Canada pointed out, § 91.1(a) refers to waters within 3 nautical miles of the U.S. Coast, the applicability of part 91 is not limited to the 3-nautical-mile area. Specifically, § 91.1(b) clarifies that certain part 91 regulations also apply to aircraft operations taking place between 3 and 12 nautical miles from the coast of the United States. Thus, the 12-nautical-mile metric used in this rule is consistent with the FAA’s agency practice (as codified in § 91.1(b)) and reflects the directive of Presidential Proclamation 5928.
With respect to operation of foreign-registered aircraft for non-recreational and non-hobby purposes, NBAA, NetMoby, and Planehook Aviation supported the Department’s decision not to include foreign-registered UAS in this rulemaking. DJI, however, recognized that the current statutory restrictions in 49 U.S.C. 44102(a)(1) impose constraints on who can register an aircraft in the United States. DJI urged the FAA to consider asking Congress either to drop the aircraft registration requirement for all small UAS altogether or to withdraw the citizenship requirement (including its limited exceptions) as part of the agency’s upcoming reauthorization.
Additionally, to the extent some of these operations could be conducted by foreign citizens using foreign-registered small UAS, DJI suggested that DOT evaluate whether existing agreements allow the use of small UAS and, to the extent they cannot be reasonably construed as including these aircraft, explore a diplomatic solution that would allow their use in U.S. airspace. Similarly, Textron Systems, Predesa, LLC, and the Aerospace Industries Association (AIA) suggested that FAA evaluate existing bilateral agreements and consider new bilateral agreements as the mechanism to permit foreign- registered UAS to operate in the United States. The Small UAV Coalition endorsed this approach as well and urged the Department to authorize the operation of specialty air services by foreign-owned small UAS in the United States.
In the NPRM, the FAA proposed to exclude foreign-registered aircraft from part 107 because the proposed rule included a registration component and foreign-registered aircraft may not be registered by the FAA. The FAA has since promulgated a separate interim final rule, titled Registration and Marking Requirements for Small Unmanned Aircraft50 (Registration Rule), to address the registration and marking of all small unmanned aircraft, including unmanned aircraft that will be subject to part 107. In the Registration Rule, the Department acknowledged that under 49 U.S.C. 41703, the Secretary may authorize certain foreign civil aircraft to be navigated in the United States only if: (1) the country of registry grants a similar privilege to aircraft of the United States; (2) the aircraft is piloted by an airman holding a certificate or license issued or made valid by the U.S. government or the country of registry; (3) the Secretary authorizes the navigation; and (4) the navigation is consistent with the terms the Secretary may prescribe.
A foreign civil aircraft is defined in 14 CFR 375.1 as (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. For those that fall within this definition and wish to operate under the provisions of part 107, they must first apply with the Office of the Secretary’s Foreign Air Carrier Licensing Division for permission to operate in the United States.
The Department only will authorize operations of foreign-registered UAS in the United States if it determines that such operations are recognized under international agreements or via findings of reciprocity, consistent with the statutory obligations under section 41703, and via the process as described below. The notion of reciprocity has a long-standing tradition in international relations and has been used in the realm of specialty air services for years. While there are many types of specialty air operations authorized under free trade agreements, it has been the long-standing policy of DOT to require a finding of reciprocity before allowing foreign-owned specialty air services to operate in the United States, even when the United States has no obligation under a trade agreement. The Department also will continue to review whether existing international agreements address the operation of UAS, and if not, what negotiations will need to occur to address these operations in the future.
With respect to the supply of specialty air services in the United States by foreign-owned or controlled entities, DOT may allow these operations to occur provided that the UAS are registered and the owners have provided proof of reciprocity by their homeland of the ability for U.S. investment in UAS operations. Additional conditions may be imposed as necessary to satisfy the statutory requirements of section 41703.
The FAA notes that, initially, all airmen operating under part 107 will be required to obtain a remote pilot certificate. Currently, ICAO has not adopted standards for the certification of pilots of unmanned aircraft that the FAA could rely on in determining whether it is obligated under international law to recognize a foreign-issued UAS-specific airman certificate. However, once an ICAO standard has been developed, this rule will allow the FAA to determine whether a foreign-issued UAS-specific airman certificate was issued under standards that meet or exceed the international standards, and therefore must be recognized by the FAA for purposes of operating a foreign-registered aircraft within the United States.
The FAA also notes that remote pilots of foreign-registered aircraft will need to comply with any applicable requirements imposed by their country of registration that do not conflict with part 107. For example, while part 107 will not require airworthiness certification, the small unmanned aircraft will need to obtain airworthiness certification if required to do so by its country of registration.
3. Public Aircraft Operations The FAA is not making any changes to the final rule regarding public aircraft operations because this rule applies to civil aircraft operations only. In the NPRM, the FAA explained that this rulemaking would not apply to “public aircraft operations with small UAS that are not operated as civil aircraft. This is because public aircraft operations, such as those conducted by the Department of Defense, the National Aeronautics and Space Administration (NASA), Department of Homeland Security (DHS) and NOAA, are not required to comply with civil airworthiness or airman certification requirements to conduct operations. However, these operations are subject to the airspace and air-traffic rules of part 91, which include the ‘see and avoid’ requirement of § 91.113(b).”52 The proposed rule did point out, however, that it “would provide public aircraft operations with greater flexibility by giving them the option to declare an operation to be a civil operation and comply with the provisions of proposed part 107 instead of seeking a COA from the FAA.” DJI generally supported the FAA’s approach to small UAS public aircraft operations. The Nez Perce Tribe—which also supported the proposal to give public aircraft operations the option to declare an operation to be a civil operation and comply with the provisions to proposed part 107—asserted that the proper statutory interpretation of “public aircraft” includes federally recognized Indian tribes. Conversely, NAAA stated that public aircraft operations should continue to be conducted under the COA process. One individual said proposed § 107.11 should be amended to indicate that public agencies may choose to voluntarily operate under part 107. The City of Arlington, Texas requested the ability to follow the small UAS rules, not the COA process. Aerial Services, Inc. also said that public entities should be allowed to operate like commercial operators, but only for research and instructional purposes. Under this rule, a public aircraft operation can continue to operate under a COA or can voluntarily operate as a civil aircraft in compliance with part 107. As stated in the NPRM, this rule will not apply to public aircraft operations of small UAS that are not operated as civil aircraft. These operations must continue to comply with the FAA’s existing requirement to obtain a COA providing the public aircraft operation with a waiver from certain part 91 requirements such as the “see and avoid” requirement of § 91.113(b).
However, this rule will provide greater flexibility to public aircraft operations because it allows small UAS public aircraft operations to voluntarily opt into the part 107 framework. In other words, a remote pilot may elect to operate his or her small UAS as a civil rather than a public aircraft and comply with part 107 requirements instead of obtaining a COA. With regard to Nez Perce’s assertion that aircraft operated by federally recognized Indian tribes are public aircraft, that issue is beyond the scope of this rule.
The FAA also disagrees with NAAA’s comment that public aircraft operations should all be required to obtain a COA. As discussed in III.J.1 of this preamble, the FAA has found that small UAS operations conducted within the parameters of part 107 will not create a hazard to users of the NAS or pose a threat to national security. Consequently, there will be no adverse safety or security impact by the FAA providing public entities with an option to conduct their small UAS operations under part 107.
NASA stated that the proposed rule should be written to specifically authorize NASA small UAS use without a COA because “it is incorrect to infer that NASA’s high aviation certification standards do not meet the rigors of civil standards.” NASA asserted that the proposed rule conflicts with statutory authority and does not align with the current FAA/NASA memorandum of agreement for the operation of small UAS.
The Department of Defense Policy Board on Federal Aviation (DOD) also supported operations without a COA, “commensurate with civil provisions.” DOD suggested several changes to language in the preamble regarding the option for government entities to conduct a civil UAS operation under part 107. DOD argued that “public operator statutory authorities” need to be preserved and the regulation needs to “enable operations without a COA commensurate with civil provisions.”
To that end, DOD stated that the FAA should clarify that public agencies currently operating under memoranda of agreement or understanding will be authorized to continue operating in that manner even where provisions of part 107 are more restrictive in nature. DOD also asked that the FAA explicitly exclude aircraft operating under a COA from the applicability of part 107. Finally, DOD recommended that the FAA further amend § 107.1 to clarify that part 107 does not apply to aircraft operated by or for the National Defense Forces of the United States, but could be used as an alternative means of compliance.
These comments are largely beyond the scope of the proposed rulemaking. The proposed rule addressed only civil small UAS operations. As stated above, the NPRM would enable remote pilots of public aircraft to opt into the civil framework for small UAS operations, but does not address public aircraft operations beyond that. In response to NASA, the FAA points out that under this rule, NASA may operate small UAS without a COA as long as it complies with part 107. With regard to DOD’s suggestions, there is no need to amend part 107 because § 107.1 expressly limits the applicability of part 107 to civil small UAS. After the effective date of this rule, the FAA does not anticipate issuing a public aircraft operations COA that is less flexible than the regulations promulgated in this rule, provided that all the circumstances are identical to that available to a civil operator.
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million. One commenter suggested that the FAA should designate a special status for public UAS operating in a civil capacity that exempts them from visual-line-of-sight and daylight-only operation limitations. However, this is unnecessary because public aircraft operations are not required to be conducted as civil aircraft subject to part 107. Thus, a public aircraft operation that does not wish to comply with part 107 can operate under the existing public-aircraft framework rather than under part 107.
Agreeing that the proposed rules should not apply to small UAS operations by DOD, NASA, NOAA, DHS or FAA, one individual stated that the proposed rule should apply to “second and third tier public agencies not directly tied to constant aeronautical activities, testing and research.” Two other individuals stated that any commercial rules for small UAS should apply to both private and public sectors.
This rule will allow any public agency, regardless of the “tier” of operations, to choose to operate a small UAS as a civil aircraft under part 107. The Association for Unmanned Vehicle Systems International (AUVSI) recommended that the FAA modify the current limitation in § 107.11 concerning “civil” aircraft to include “public aircraft” as well. This is necessary, AUVSI asserted, because some current operation rules for manned aircraft (such as those found in part 91) apply to both “public aircraft” and “civil aircraft.”
The FAA disagrees. This rulemaking applies to civil aircraft only. Expanding its application to public aircraft is beyond the scope of the proposed rule. The Next Gen Air Transportation Program at North Carolina State University indicated that proposed § 107.3 needs a definition of “civil operation.” The commenter asked how a public agency declares a civil operation. The commenter also implied that part 107 does not make clear that there would be no adverse safety effects from allowing public aircraft operations under part 107.
Twelve members of the Wisconsin Legislature signed a joint letter stating that “[t]he NPRM states public entities must get a Certificate of Waiver or Authorization because they are not ‘exempt’ from restrictions in the proposed rules. However, the proposed rules allow public entities to ‘declare an operation to be a civil operation’ and therefore operate commercially and be exempted from flight restrictions.” The members also stated that the FAA has not “promulgated, clarified or made public its rules, policies, and legal opinions on public versus commercial UAS.”
The Wisconsin Society of Land Surveyors stated that “government agencies have been getting a head start on the market, at the expense of the private sector, by obtaining certificates to perform UAS services that are commercial in nature,” and “[a]s a result, government and universities are conducting operational missions, developing markets and cultivating clients.” This commenter concluded that there “should not be unfair competitive advantages granted to government or university UAS vis-à-vis the private sector.”
These comments reflect some misunderstanding of public aircraft operations in general and the FAA’s role in such operations. The authority to conduct a public aircraft operation is determined by statute (49 U.S.C. 40102(a)(41) and 40125). The FAA has no authority to prohibit a qualified government entity from conducting public aircraft operations, manned or unmanned. Consequently, many of the FAA’s regulations, such as aircraft certification and pilot requirements, do not apply to public aircraft operations. Some of the general operating rules apply to all aircraft operations, public aircraft and civil, and that is where the need for COAs affects public aircraft operations of UAS. For example, all aircraft must comply with 14 CFR 91.113, and UAS require a conditional waiver of that regulation in order to operate in the NAS; the conditions are specified in the COA.
Qualified governmental entities may choose to operate a public aircraft operation as long as they do so within the limits of the public aircraft statute. Under this rule, they may choose to operate their UAS as a civil aircraft instead, and operate under the civil regulations. Government entities have always had the option to do this with their manned aircraft; in some cases, government entities may be required to operate under civil regulations if their operations do not comply with the public aircraft statute. The new UAS regulations do not change this option or the requirements of the public aircraft statute.
“Civil aircraft” is already a defined term in 14 CFR 1.1, which defines a civil aircraft as an aircraft that is not a public aircraft. The definition of public aircraft in part 1 is a restatement of the requirements in the public aircraft statute sections cited above. Government entities that qualify to conduct public aircraft operations but choose to operate instead under civil rules must comply with the same requirements as civil entities; no special notice is required. If an operation is commercial, it is civil by definition, but not all civil operations are commercial. Operations for a commercial purpose are prohibited by the public aircraft statute. The public aircraft statute requires that public aircraft operations have a governmental function and not have a commercial purpose. In short, a government entity may choose to conduct a public aircraft operation within the restrictions of the public aircraft statute (and certain civil regulations applicable to all aircraft operating in the NAS), or it may choose to conduct a civil operation and comply with the requirements of the applicable regulations in 14 CFR.
Under the definitions in 49 U.S.C. 40102(a)(41), a university may qualify to conduct a public aircraft operation if it meets the statutory criteria as a part of the government of the State or a political subdivision of the state. A determination of whether a public university meets these criteria is made by individual states. Operations of aircraft by these universities are subject to the same requirements as other public aircraft operations. The ability to conduct a public aircraft operation is determined by statute and cannot be changed by the FAA. The FAA has not given an “unfair competitive advantage” or showed favoritism to any entity by declaring their operations public aircraft operations because it has no authority to do otherwise under the statute. The FAA does review the operations submitted by UAS proponents to ensure that, as described, they meet the requirements of the public aircraft statute.
The FAA has made public its policies and opinions on all public aircraft matters, manned and unmanned. The FAA has also published Advisory Circular 00-1.1A, Public Aircraft Operations, dated February 12, 2014. That document is available on the FAA website. Matters of legal interpretation that have been presented to the FAA for its opinion are available as part of the FAA Office of the Chief Counsel’s interpretation database.
4. Model Aircraft The NPRM proposed that part 107 would not apply to model aircraft that satisfy all of the criteria specified in section 336 of Public Law 112-95. Section 336(c) defines a model aircraft as an “unmanned aircraft that is – (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” Subsection 336(a) specifically prohibits the FAA from promulgating rules regarding model aircraft that meet all of the following statutory criteria: • The aircraft is flown strictly for hobby or recreational use; • The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; • The aircraft is limited to not more than 55 pounds unless otherwise certificated through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; • The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and • When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation.
Because of the statutory prohibition on FAA rulemaking regarding model aircraft that meet the above criteria, the NPRM proposed that model aircraft meeting these criteria would not be subject to the provisions of part 107. However, although section 336(a) exempts certain model aircraft from FAA rulemaking, section 336(b) explicitly states that the exemption in section 336(a) does not limit the FAA’s authority to pursue enforcement action against those model aircraft that “endanger the safety of the national airspace system.” The FAA proposed to codify this authority in part 101 by prohibiting a person operating a model aircraft from endangering the safety of the NAS.
The FAA received approximately 2,850 comments on the model-aircraft aspect of the NPRM. Many of these commenters, including NAMIC, Horizon Hobby, LLC (Horizon Hobby), Skyview Strategies, Inc. (Skyview Strategies), the Academy of Model Aeronautics (AMA) and many individuals, supported excluding model aircraft operations from the provisions of part 107. DJI, Aviation Management, and UAS America Fund, LLC (UAS America Fund) recommended that the FAA expand the model-aircraft exception from the requirements of part 107 and adopt more lenient regulatory standards for recreational uses of small UAS that do not comply with all of the criteria specified in section 336. UAS America Fund suggested that the final rule make a special allowance for small UAS operations that do not meet all of the criteria of section 336(a) but are conducted for educational or other salutary purposes.
Conversely, NAAA, the Transportation Trades Department AFL-CIO (TTD), A4A, the American Chemistry Council, the Information Technology and Innovation Foundation, the Southwest Airlines Pilots’ Association (SWAPA) and a number of individual commenters advocated for greater regulation and oversight of all model aircraft operations. Many of these commenters felt that the risks associated with recreational and non-recreational UAS operations are the same, and thus, there should be no difference in how these operations are regulated. A number of commenters also expressed concern that recreational and hobby use of UAS could pose a significant safety hazard and that additional regulations should be imposed to mitigate this hazard. For example, NAAA asserted that “[t]he majority of UAS incidents that occurred in recent years have been by UAS operated as model aircraft . . . including two in 2014 where [agricultural] operators were harassed by model aircraft in Idaho and Illinois.” Green Vegans argued that failure to regulate model aircraft operations may have an adverse impact on the environment.
Section 336 of Public Law 112-95 specifically prohibits the FAA from issuing any new rules with regard to model aircraft that satisfy the statutory criteria specified in that section. Accordingly, the FAA cannot impose additional regulations on model aircraft that meet the criteria of section 336 nor can the FAA make those aircraft subject to the provisions of part 107. However, with regard to the request that the FAA apply the terms of section 336 to other operations, the FAA agrees with NAAA, TTD, A4A and other commenters who pointed out that, from a safety point of view, there is no difference between the risk posed by recreational operations, operations used for salutary purposes, and non-recreational/non-salutary operations. There is no data indicating that a small UAS operation whose operational parameters raise the safety risks addressed by part 107 would become safer simply as a result of being conducted for recreational or salutary purposes rather than commercial purposes. As such, the FAA declines the request to apply the terms of section 336 beyond the statutory criteria specified in that section.
The Air Line Pilots Association, International (ALPA) and the Kansas State University Unmanned Aircraft Systems Program (Kansas State University UAS Program) stated that if model aircraft operations are being added to part 101, then the title of part 101 should be changed to reflect that part 101 now encompasses those operations. AMA, Horizon Hobby, Skyview Strategies, and numerous individuals noted that the statutory text of section 336 also applies to “aircraft being developed as model aircraft,” and these commenters asked the FAA to add the pertinent statutory text to the model-aircraft provisions of part 101.
As the commenters pointed out, the statutory language of section 336 applies not just to aircraft that are operated as model aircraft but also to “aircraft being developed as a model aircraft.”55 Accordingly, the FAA has added this statutory language to the regulatory text of § 101.41. The FAA also agrees with ALPA and the Kansas State University UAS Program and has updated the title of part 101 to indicate that this part will now include model aircraft operations that are operated under section 336.
AMA and a number of individual commenters supported the proposed inclusion of the section 336 criterion concerning nationwide community-based organizations into the regulatory text of part 101. A number of other commenters raised concerns about having to comply with safety guidelines issued by a community-based organization and having to operate within the programming of such an organization. The Permanent Editorial Board of the Aviators Model Code of Conduct Initiative stated that the FAA should demonstrate the efficacy of using community-based safety guidelines to regulate model aircraft operations prior to using such an approach. DJI and the Stadium Managers Association, Inc. stated that it is unclear what makes an organization a nationwide community-based organization within the meaning of section 336. DJI went on to ask the FAA to provide guidance as to what criteria the agency will look for in recognizing a nationwide community-based organization. The Washington Aviation Group and Green Vegans suggested that the FAA identify, or seek comments to identify, a single set of community-based safety guidelines and incorporate those guidelines by reference into proposed part 101 and make them available on the FAA’s website.
Section 336 of Public Law 112-95 includes a specific list of criteria that must be satisfied in order for the section 336 exception to apply. One of these criteria is that “the [model] aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”56 Because compliance with a community-based set of safety guidelines and operating within the programming of a nationwide community-based organization is one of the statutory criteria that must be satisfied in order for section 336 to apply, the FAA has retained this provision.
The FAA notes, however, that those model aircraft operations that do not wish to comply with a community-based set of safety guidelines and operate within the programming of a nationwide community-based organization will be able to simply conduct their operations under part 107. Part 107 was designed to impose the minimal burden necessary to ensure the safety and security of a small UAS operation. As discussed in the Regulatory Impact Assessment that accompanies this rule, the out-of-pocket cost for someone who wishes to operate under part 107 will be less than $200. With regard to comments asking for additional clarity as to what makes an organization a nationwide community-based organization under section 336, the FAA notes that this issue is beyond the scope of this rule. The FAA is currently engaged in a separate regulatory action titled Interpretation of the Special Rule for Model Aircraft,57 (Interpretive Rule) in which the FAA is interpreting the statutory provisions of section 336 and explaining how those provisions apply to model aircraft operations. The FAA published this interpretation for public comment in June 2014 and has since received over 33,000 public comments. The FAA is currently considering the issues raised by these commenters and will issue a final Interpretive Rule that reflects its consideration of the comments. Because the FAA is considering the specific meaning of section 336 provisions in a separate regulatory action, in order to avoid duplication, the FAA limited the scope of the model-aircraft component of this rulemaking simply to codifying the FAA’s enforcement authority over model-aircraft operations that endanger the safety of the NAS. As such, issues concerning the specific meaning of section 336 (such as what makes an organization a nationwide community-based organization) are beyond the scope of this rule.
With regard to Washington Aviation Group and Green Vegans’ suggestions that the FAA codify a single set of community-based safety guidelines and incorporate those guidelines by reference into part 101, the FAA notes that this suggestion is also beyond the scope of this rule. However, even if the scope of this rule was broad enough to reach this issue, the language of section 336(a)(2) is not limited to a single set of community-based safety guidelines, nor is it limited to community-based safety guidelines that exist today. Accordingly, the FAA cannot incorporate a single definitive set of safety guidelines into the regulatory text of part 101.
The NextGen Air Transportation Program at NC State University stated that § 101.41 should be amended to include a requirement to operate at locations approved by a nationwide community-based organization. Another commenter suggested that the FAA clarify that the programming of nationwide community-based organizations is interpreted to include location. Colorado Ski Country USA said the FAA should add a provision that prohibits recreational UAS operations within the airspace above “Places of Public Accommodation” without prior approval from the Place of Public Accommodation.
As discussed previously, the scope of the model-aircraft component of this rulemaking is limited simply to codifying the FAA’s enforcement authority over model-aircraft operations that endanger the safety of the NAS. Accordingly, these suggestions are beyond the scope of this rule.
A number of commenters, including ALPA, NAAA, and the International Air Transport Association, supported the FAA’s proposal to codify a prohibition on model aircraft operations endangering the safety of the NAS. NAAA emphasized that the FAA should “continue to utilize every tool possible to ensure model aircraft are operating safely in the NAS.”
The Small UAV Coalition, the Airports Council International – North America, and the American Association of Airport Executives asked the FAA to clarify what actions would endanger the safety of the NAS. AMA argued that enforcement of the “endangering the safety of the NAS” provision should not affect other airman certificates that may be held by a model aircraft operator. AMA and several other commenters also argued that the FAA is not permitted to oversee general safety issues involving model aircraft. These commenters suggested narrowing the “endangering the safety of the NAS” provision to make it analogous to 14 CFR 91.11, which prohibits interference with a crewmember.
Subsection 336(b) explicitly states that the FAA has authority to pursue enforcement action “against persons operating model aircraft who endanger the safety of the national airspace system.” Because the scope of the FAA’s enforcement authority is explicitly specified in section 336(b), the FAA has decided to finalize the proposed prohibition on model aircraft operators endangering the safety of the NAS. To do otherwise and artificially narrow the FAA’s statutory enforcement authority over section 336 operations would be contrary to Congressional intent because Congress has explicitly specified, in section 336(b), the scope of the FAA’s enforcement authority over model aircraft operations.
With regard to examples of actions that may endanger the safety of the NAS, the FAA notes that this is an issue that is being addressed by the Interpretive Rule.58 Because the issues addressed by the Interpretive Rule have been subject to extensive public input (33,000 plus comments) and because addressing those issues here would be duplicative, the FAA will defer discussion of what qualifies as endangering the safety of the NAS to the Interpretive Rule. Finally, with regard to AMA’s suggestion that enforcement of the “endangering the safety of the NAS” provision should not affect other airman certificates that may be held by a model aircraft pilot, the FAA notes that determination of the remedy that it may seek in specific enforcement cases is beyond the scope of this rulemaking. Many commenters, including Skyview Strategies, AMA, the Experimental Aircraft Association, and numerous individuals, reiterated arguments that were raised in the comments filed on the Interpretive Rule. These commenters restated arguments such as: (1) considering model aircraft to be “aircraft” would effectively make those aircraft subject to manned-aircraft regulations; (2) the Interpretive Rule interprets the phrase “hobby or recreational use” too narrowly; (3) the Interpretive Rule does not properly interpret Congressional intent; (4) model aircraft operations should not be subject to any airspace restrictions; (5) requiring notification when operating within 5 miles of an airport is too burdensome; and (6) the interpretation of “visual line of sight” within the Interpretive Rule would prohibit the use of first-person-view devices. AMA and the Small UAV Coalition argued that the FAA must address and adjudicate the 33,000 plus comments that were made on the Interpretive Rule and resolve the issues and concerns presented before moving forward in finalizing the small UAS Rule.
Because these are all issues that have been commented on (in much greater detail) and are currently being considered as part of the Interpretive Rule, considering these issues in this rule would be duplicative. Accordingly, the FAA declines to address these issues here as they are currently the subject of a separate regulatory action.
The FAA also declines the suggestion that it issue the final Interpretive Rule prior to finalizing this rule. The FAA is currently working as quickly as possible to issue the final Interpretive Rule. Because the model-aircraft component of this rulemaking simply codifies the FAA’s statutory authority over section 336 operations and because delaying this rulemaking would prejudice non-model small UAS operations, the FAA declines to withhold this rule until issuance of the final Interpretive Rule.
AMA and Horizon Hobby asked the FAA to add regulatory text that would exempt model aircraft operations and aircraft being developed as model aircraft from the regulatory provisions of parts 21, 43, 45, 47, 61, and 91. These commenters also noted the revision that the NPRM proposed to make in § 91.1(e) and expressed concern that this revision may make model aircraft subject to the provisions of part 91. Skyview Strategies asked the FAA to rewrite the guidance that it recently issued to law enforcement agencies concerning model aircraft that may be operated unsafely.
As discussed previously, the proposed rule was limited simply to codifying the FAA’s statutory enforcement authority over model aircraft operations. Because the FAA did not propose making any changes to its existing regulations with regard to section 336 operations, those changes are beyond the scope of this rulemaking. Similarly, the FAA did not propose to make any changes to its existing enforcement guidance as part of this rulemaking, and those changes are also beyond the scope of this rule.
With regard to the revision that the NPRM proposed in § 91.1(e), this revision does not expand the scope of part 91. Specifically, the NPRM proposed to move the regulatory text concerning existing exceptions to part 91 applicability for moored balloons, kites, unmanned rockets, and unmanned free balloons into a newly created subsection (§ 91.1(e)). The NPRM then proposed to add an extra exception (also in § 91.1(e)) to part 91 applicability for small UAS operations governed by part 107, because the purpose of this rulemaking is, in part, for the regulations of part 107 to replace the regulations of part 91 as the governing regulations for small UAS operations. Because this additional exception for part 107 operations is the only substantive change that the NPRM proposed to the applicability of part 91, finalizing this exception would not expand the scope of part 91. Accordingly, this rule will finalize § 91.1(e) as proposed in the NPRM.
Two commenters disagreed with one aspect of the proposed definition of model aircraft, namely that the aircraft must be capable of sustained flight in the atmosphere. These commenters argued that the proposed requirement was more burdensome than requirements imposed on some manned aircraft operations. However, section 336(c)(1) specifically defines a “model aircraft” in pertinent part as an aircraft that is “capable of sustained flight in the atmosphere.” Because the definition of “model aircraft” is specified in statute, this rule will finalize the statutory definition in the regulatory text of part 101.
The Aircraft Owners and Pilots Association (AOPA) and The Permanent Editorial Board of the Aviators Model Code of Conduct Initiative suggested that the FAA take additional steps to issue clear and definitive guidance for recreational operators and to encourage manufacturers to include information on this FAA guidance in their packaging materials. AOPA further stated that the FAA should work with AOPA and remote control aircraft groups “to conduct education outreach, and publish guidance to help pilots file timely reports of reckless UAS operations.”
The FAA agrees with AOPA and The Permanent Editorial Board of the Aviators Model Code of Conduct Initiative that guidance and education would greatly assist model aircraft operators. To that end, the FAA has partnered with AMA, AUVSI, AOPA and the Small UAV Coalition on an education campaign titled “Know Before You Fly,” which is designed to educate prospective users about the safe and responsible operation of model aircraft.59 As pointed out by the commenters, education and outreach efforts will enhance the safety of the model aircraft community and, just like it did with the “Know Before You Fly” campaign, the FAA will consider partnering with interested stakeholders in future education and outreach efforts.
The FAA is also currently taking the steps suggested by AOPA and The Permanent Editorial Board of the Aviators Model Code of Conduct Initiative to issue clear and definitive guidance for recreational operators. Specifically, the FAA is working on drafting and issuing a final Interpretive Rule that addresses the issues raised by commenters. The agency has also issued an updated AC 91-57A, which is the main advisory circular for model aircraft operations.
5. Moored Balloons, Kites, Amateur Rockets, and Unmanned Free Balloons Moored balloons, kites, amateur rockets, and unmanned free balloons are currently regulated by the provisions of 14 CFR part 101. Because they are already incorporated into the NAS through part 101, the NPRM proposed to exclude them from the provisions of part 107. The FAA did not receive any comments objecting to this aspect of the NPRM and, as such, this rule will, as proposed, exclude part 101 operations from the applicability of part 107.
The FAA did, however, receive several comments asking for clarification as to which types of operation are subject to part 101. The NextGen Air Transportation Program at NC State University and three individuals asked whether tethered powered unmanned aircraft meet the definition of unmanned free balloons and kites, which are subject to part 101.
FAA regulations define a balloon as “a lighter-than-air aircraft that is not engine driven, and that sustains flight through the use of either gas buoyancy or an airborne heater.”60 A kite is defined as “a framework, covered with paper, cloth, metal, or other material, intended to be flown at the end of a rope or cable, and having as its only support the force of the wind moving past its surfaces.”61 Based on these definitions, a small unmanned aircraft that uses powered systems for actions such as propulsion or steering is not a balloon or kite subject to part 101.62
A commenter asked whether unmanned moored airships and blimps are subject to part 101. In response, the FAA notes that an airship is defined as “an engine-driven lighter-than-air aircraft that can be steered.”63 Conversely, as discussed previously, the definition of “balloon” excludes aircraft that are engine-driven. Because an airship is not a balloon or kite, a moored unmanned airship is not encompassed by part 101. With regard to blimps, an engine-driven blimp would be considered an airship, which is not subject to part 101.
6. Current Treatment of UAS and Grandfathering of Section 333 Exemption Holders The FAA currently accommodates non-recreational small UAS use through various mechanisms, such as special airworthiness certificates, exemptions, and COAs. However, the FAA recognizes that many holders of exemptions issued under section 333 of Public Law 112-95 (section 333 exemptions) may wish to take advantage of part 107 when it goes into effect. On the other hand, some section 333 exemption holders may prefer to continue operating under the terms and conditions of their exemptions. Therefore, the FAA will allow any section 333 exemption holder to either continue operating under the terms and conditions of the exemption until its expiration, or conduct operations under part 107 as long as the operation falls under part 107.
Approximately 40 commenters criticized the framework currently regulating small UAS operations as slow, cumbersome, and inefficient. These commenters expressed concern that the current framework is having an adverse effect on UAS development in the United States.
The FAA anticipates that this rulemaking will alleviate many of the concerns commenters raised with the existing UAS framework. Under this rule, many operations that would previously require exemptions and COAs will now fall under the purview of part 107, which generally does not require an exemption or a COA prior to operation.
Some commenters, including the American Petroleum Institute and the Consumer Electronics Association (CEA), encouraged the FAA to acknowledge that existing permitted commercial uses of small UAS are unaffected by the rule. The American Petroleum Institute stated that such acknowledgement is necessary to avoid unintended consequences and preserve the expectation and business interests of current authorization holders.
CEA stated that the FAA should either grandfather-in existing exemptions or afford existing exemptions a 3-year transition period in recognition of the hard work and expense each exemption represents. The commenter further recommended that, if the FAA chose a 3-year transition period, and if no renewal was sought, then the exemption would terminate 3 years after the new rules became effective. However, if a petitioner sought renewal of the exemption, the commenter recommended that the exemption remain valid until final action by the FAA on the renewal application. CEA noted that, to the extent that the new rules are 83 more permissive than existing exemptions, operators should be permitted to rescind their exemption and operate under the new rules. The FAA clarifies that current section 333 exemptions that apply to small UAS are excluded from part 107. The FAA has already considered each of these individual operations when it considered their section 333 exemption requests and concluded that these operations do not pose a safety or national security risk. The FAA recognizes, however, that there may be certain instances where part 107 is less restrictive than a section 333 exemption. Therefore, under this rule, a section 333 exemption holder may choose to operate in accordance with part 107 instead of operating under the section 333 exemption. This approach will provide section 333 exemption holders time to obtain a remote pilot certificate and transition to part 107. Operations that would not otherwise fall under part 107 may not take advantage of this option. For example, an operation with a section 333 exemption that does not fall under part 107, such as an operation of a UAS weighing more than 55 pounds, would not have the option of operating in accordance with part 107 rather than with its section 333 exemption. Additionally, when section 333 exemptions come up for renewal, the FAA will consider whether renewal is necessary for those exemptions whose operations are within the operational scope of part 107, which also includes those operations that qualify for a waiver under part 107. The purpose of part 107 is to continue the FAA’s process of integrating UAS into the NAS. If a section 333 exemption is within the operational scope of part 107, there may be no need for the agency to renew an exemption under section 333. Because the FAA’s renewal considerations will be tied to the outstanding section 333 84 exemptions’ expiration dates, a 3-year transition period is not necessary. This will not affect those section 333 exemptions that are outside of the operational scope of part 107 or where a part 107 waiver would not be considered.
Future exemptions may be issued to provisions of part 107 that do not allow for a waiver. These exemptions may also be issued pursuant to section 333. Small UAS remote pilots holding an exemption for a provision contained in part 107 will not be excluded from the other part 107 requirements if the exemption specifies that part 107 provisions that are not waived or exempted still apply. A commenter asked whether there will be a grace period for individuals already operating small UAS to comply with the requirements of part 107, or whether those individuals will be required to stop operating until they can complete those requirements.
As stated above, a person currently operating under a section 333 exemption will not need to immediately comply with part 107. Additionally, a person currently operating on the basis of a part 61 pilot certificate other than student pilot would, as discussed below, be eligible to obtain a temporary remote pilot certificate upon satisfying the prerequisites specified in this rule. The temporary remote pilot certificate will authorize its holder to operate under part 107.