Model Aircraft Rules (Part 101)


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

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FAA’s LAANC System-(Low Altitude Authorization & Notification Capability)

LAANC

Table of Contents

Quick Summary of LAANC:

“[T]he FAA is seeking to implement the Low Altitude Authorization and Notification Capability (LAANC) system. Using the LAANC system, the FAA will be able to grant near-real-time authorizations for the vast majority of operations. Implementation of the LAANC system is vital to the safety of the National Airspace System because it would (1) encourage compliance with 14 CFR 107.41 by speeding up the time to process authorization requests (2) reduce distraction of controllers working in the Tower, and (3) increase public access and capacity of the system to grant authorizations. LAANC is expected to dramatically reduce the incidence of noncompliant operations.” From the FAA’s notice in the Federal Register.

Who Benefits from LAANC?

Recreational flyers and non-recreational flyers near the 49 airports involved in the beta test. (See below which airports).

Recreational flyers who want to fly under the protections of Section 336 are required to provide prior notice of operation to “the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) when operating within 5 miles of an airport. Recreational flyers can do this by other means but it has been a pain for recreational flyers to find reliable phone numbers and emails of airport operators and ATC towers.

Non-recreational flyers who want an authorization to fly in Class B, C, D, or E at the surface airspace can do so by using the LAANC system. 107.41 requires you to have an authorization. Many have said that a simple phone call is legally good enough. Here is my response to that statement. Regardless of whether it is legal or not, how in the world are you going to prove you have an authorization, assuming you have a verbal one, if the FAA starts asking you if you have one?  The FAA order out of D.C. told air traffic controllers to direct people to the authorization portal and NOT verbally authorize flights. Do you really think the controller who talked to you on the phone is going to have an accurate memory when asked if he authorized you contrary to the order? Furthermore, not all of the phone numbers are recorded which means FOIA does not do anyone any good. (On top of that, the phone line recordings aren’t kept for a long time and there is a good chance you will get investigated AFTER the phone recordings are destroyed). If you record your conversation on a phone, you might be getting into trouble with state wiretapping laws (see two-party wiretapping laws). In short, if you don’t want to go the authorization portal method, this is a nice alternative.

So What Cannot be Submitted via LAANC?

Complex operations cannot go through LAANC. Complex operations would be operations near the airport (in the red no-fly zone on the airport facility maps) or where a waiver is involved (e.g. flying in controlled airspace under your night waiver). If you need help obtaining these more complex airspace authorizations or waivers, contact me. :)

In the same Federal Register notice, the FAA said, “These changes include new branding of the Web site portal DroneZone and improvements to the external customer experience. It’s expected that operations that are relatively simple will go through LAANC’s automated approval process while more complex operations that require a more thorough review by FAA subject matter experts (SME) will go through the FAA’s DroneZone electronic portal.”

Am I Forced to File Via LAANC for Non-Complex Operations? 

No, you can do LAANC or the methods we are currently using, by filing for an airspace authorizations or an airspace waiver.

What Companies Are UAS Service Suppliers for LAANC?

I can’t confirm everything but here is what I have found so far.

A total of “Fourteen companies are participating in the Low Altitude Authorization and Notification Capability (LAANC) process[.]” McNeal Testimony.

 

How Many Airports Will Participate in LAANC?

The FAA is planning on having 49 airports participate.   Greg McNeal wrote in Forbes that there would be 50 but it seems  Green Bay- Austin Straubel International Airport won’t be participating.  (Compare the Forbes article to the FAA’s latest post.)

LAANC-airports

What States Have The Participating LAANC Airports? 

LAANC-states

Problems I See With This Whole Situation:

  • LAANC does NOT tell us if it fixed the problem it is attempting to alleviate. Is the drone sighting report the FAA released going to identify and take out of the total number the authorized flights?  The FAA’s Federal Register post says LAANC is attempting to make things safer while citing the inflated drone sighting numbers. That’s funny. The FAA left in a ton of crummy data in their drone sightings reports so the numbers are inflated and there is no easy way to “clean” the sightings of the 14,334 COAs already issued.  The FAA gave us some big numbers without indicating how many of these “sighting” were lawful or not. What is the logical conclusion? The FAA just cited bad data as the justification for the LAANC system. There have been COAs granted to commercial flyers for over a year and I couldn’t find any indications the FAA “cleaned” the sightings.

How Does LAANC Relate to Unmanned Traffic Management (“UTM”) System?

LAANC is the Low Altitude part of the UTM. “UTM is how airspace will be managed to enable multiple UAS operations conducted beyond visual line-of-sight (BVLOS), where air traffic services are not provided.”

“Concurrently, the FAA and NASA have developed a joint UTM Research Plan to document research objectives and map out the development of UTM. NASA is conducting research at UAS test sites to further explore UTM capabilities that will accommodate rulemaking as it expands opportunities for UAS integration. The FAA expects that UTM capabilities will be implemented incrementally over the next several years.”

Resources:

FAA’s Concept of Operations for LAANC from February 2017 for “INFORMATION ONLY PURPOSES”

Keep in mind this was for only informational purposes. Things might have been changed.

1 Introduction

The Federal Aviation Administration (FAA) is responsible for implementing notification
and authorization (N&A) processes specific to operation of small unmanned aircraft
systems. See Pub. L. 112-95 § 336(a) (5) and 14 CFR § 107.41. From an Air Traffic
Control (ATC) and Air Traffic Management (ATM) perspective, notification of
unmanned aviation activity enables the Air Navigation Service Provider (ANSP) to
provide safe and efficient flight services to all aircraft in the NAS. From a regulatory and
safety perspective, notification of unmanned aviation operations provides a means of
traceability to (1) inform other NAS users, if needed, of unmanned aviation activity in the
vicinity of the airspace in which they are operating; (2) ensure operators are complying
and conforming to regulatory standards; and (3) identify and hold accountable those who
are responsible during accident/incident investigations.

1.1 Background

The FAA is in the process of determining its approach and business plan to integrate
model aircraft, UAS, and sUAS into the NAS. As part of that approach, the FAA is
dedicated to ensuring safety requirements are met for integration of unmanned aviation
into the NAS, where unmanned aircraft are able to operate safely in the same airspace
with manned aircraft. The FAA must ensure that integrated UAS operations meet
appropriate performance standards and access requirements. The FAA seeks to reduce
barriers to access and equitable access to airspace. The FAA’s challenge is to foster
equitable access for all users and providers while ensuring critical ATC technical and
safety requirements are met for NAS operations. In addition, the FAA seeks to foster a
competitive environment for providers of UAS and related services. As the FAA and
industry move toward integration of all types of UAS into the NAS, the FAA
promulgated 14 CFR part 107, which governs non-hobbyist operations of small UAS.
Part 107 contains a regulation that requires receipt of an authorization from the FAA
prior to operating in Class B, C, D, or the surface areas of Class E airspace. In addition,
Congress specified “model aircraft” may not endanger of the safety of the NAS, but are
otherwise exempt from aviation regulations as long as such aircraft are flown strictly for
hobby or recreational use, are operated in accordance with a community-based set of
safety guidelines, weigh no more than 55 pounds, are operated in a manner that does not
interfere with and gives way to manned aircraft, and, when flown within 5 miles of an
airport, the operator of the aircraft provides notification to the airport operator and the
airport ATC tower with prior notice of the operation. Pursuant to this framework, the
FAA requires model aircraft operators provide airport operators and the airport air traffic
control tower (when the air traffic facility is located at the airport) with prior notice of the
operation.

1.2 Problem Statement

The FAA has developed a UAS implementation plan that outlines the long term planning
for UAS integration. There is a limited strategy for identifying and inserting
technological capabilities into existing FAA systems that would enable safe sUAS
operations in accordance with established FAA rules as cited above. The current process
for meeting authorization and notification requirements of existing rules is manually
intensive and therefore costly. In addition, the time to approve authorization in this
manual state is inefficient, preventing some time critical commercial and public
operations (e.g. news, emergency response).

More automation is needed to support the growing demands for safe and efficient sUAS
operations in the NAS. The FAA has limited resources to respond to the need for
automation development to support sUAS. At the same time, industry has shown an
interest and capability to provide sUAS services as a critical element of future UAS
Traffic Management (UTM).

A critical element associated with such automation will be information sharing among the
various entities responsible for sUAS operations. However, currently there are no
conventions or standards for exchanging information between FAA and external entities
about sUAS operations. Given the many FAA systems that comprise the NAS and
associated support capabilities, conventions for the secure, safe, and orderly exchange of
sUAS-related information are needed to enable sUAS operations to scale safely and
quickly enough to meet the anticipated rapid growth in demand expected.

1.3 Purpose and Scope

The development of a fully functioning and streamlined, user friendly N&A capability is
complex and subject to a variety of inputs and coordination points across the UAS
community. This document will give stakeholders and leadership the necessary
contextual information to understand and provide input on the FAA’s Low Altitude
Authorization and Notification Capability (LAANC) development, demonstrations, and
fielding.

The LAANC demonstration effort is constrained by the following resources and
regulations:

– Policy: This project will leverage sending information to 3rd party systems,
allowing them to provide authorizations, and submit operational information back
to the FAA. This poses a number of policy and legal issues that will need to be
addressed along the way.
– Financial: The FAA will not be providing capital resources for the purchase or
acquisition of software programs or systems, or in conducting demonstrations of
proposed solutions. Existing systems in use at this time are expected to be adapted
to work according to requirements identified in the N&A effort outlined herein.

2 Current Operations & Shortfalls

Currently there is no means of automated authorization or notification between UAS
operators and ATC. This is because the FAA’s and ANSP’s notification information
needs with respect to UAS operations depend on a number of factors, including the type
of UAS operation being conducted, where it is conducted, what services (if any) are
required, what the UAS capabilities are, and more. Identifying and implementing
notification requirements appropriate to specific UAS operations would allow the FAA,
safety organizations, and regulators to process and access flight data in accordance with
their organizational needs and responsibilities.

Specific information requirements about a UAS operation may vary commensurate with
the risk of the operation. For example, ATC and/or the FAA may require more
information about the proposed UAS activity and more explicit procedures and
automated support for the delivery and handling of that information as the risk of the
operation increases. The basic information needs, though, should generally be consistent
across operations.

Non-hobbyist operators of sUAS must comply with 14 CFR part 107 (“Small Unmanned
Aircraft Systems”). The following general criteria illustrates the use cases1 for
identifying whether a given low altitude operation requires notification only or request
for ATC authorization.
a. To be considered a model aircraft operator, the operator must notify an Airport under
Public Law 112-95 § 336(a)(5):

 When the UAS is flown within five miles of an airport: the operator of the
model 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.
 Model aircraft operators flying from a permanent location within five miles of
an airport: the operator can establish a mutually agreed upon operating
procedure with the airport operator and the airport air traffic control tower
(when an air traffic facility is located at the airport).

b. For all sUAS operations under 14 CFR Part 107:

 No person may operate a small unmanned aircraft in Class B, Class C, or
Class D airspace or within the lateral boundaries of the surface area of Class E
airspace designated for an airport unless that person has prior authorization
from Air Traffic Control (ATC). Please refer to Appendix A to Attachment 1
for a description of airspace types.

Note: There is no requirement for authorization in Class G airspace, however notification
is required within five miles of an airport regardless of the airspace class in which the
airport resides.

2.1 Operational Shortfalls

The new FAA UAS rules introduced in 2016 address the requirements for operators of
sUAS. Recently, the FAA developed an initial set of requirements for both notification
and authorization, based on the premise that authorization be automated to the greatest
extent practicable. Those operational requirements were delivered under separate cover
and provided as information to stakeholders. The current operational shortfalls are
1 Specific scenarios for the above use cases can be found in Attachment 1 to this CONOPs. The scenarios
identified to date are not exhaustive, but instead are the first scenarios prioritized to be addressed with the
LAANC system. The FAA will continue to work with industry to identify additional scenarios and use
cases that will be addressed by LAANC as part of ongoing collaboration with industry.
inefficient processes for obtaining authorization or notifying ATC of operations, the
timeline required to obtain authorizations from FAA, and the growing backlog associated
with current processes.

The FAA has established a process for commercial sUAS operators, operating under 14
CFR Part 107 to request a waiver of operation or authorization. A manual form has been
created that allows operators to enter data into the FAA’s system. The data is forwarded
to a review directorate in FAA. The FAA quotes, “The FAA will strive to complete
review and adjudication of waivers and airspace authorizations within 90 days; however,
the time required for the FAA to make a determination regarding waiver/airspace
authorization requests will vary based on the complexity of the request.” Because the
FAA’s current process depends on a manual review of every request, the time to
complete the request is lengthy and costly. Because the review is manual, there is already
a backlog in completing the review of requested waivers and authorizations.
Since late 2015, the FAA has registered more than 500,000 hobbyist sUAS operators,
with that number expected to grow significantly. The number of sUAS flights is
expected to increase dramatically as the new rules expand to enable new types of
operations and are further clarified regarding where and how sUAS flights can be
conducted. Operators will be seeking ways to fly safely while complying with the
governing rules. Processes and electronic systems supporting these rules and associated
sUAS operations are needed now.

2.2 Technology Gap

Technologically, UAS operators and the FAA need a streamlined, efficient, solution to
enable notification and authorization. At this time, the primary ways in which UAS
operators and ATC communicate for the purpose of notification and authorization is
through submission of a web form on the FAA website, which then uses other forms of
communication to process the data. The FAA is seeking to close the gap of manual versus
automated data transfer and authorizations by defining and establishing a technological
solution that will allow for data exchange between operators and ATC. A demonstration
of an initial solution is envisioned as the first step in closing this technology gap.

3 Guiding Principles

3.1 LAANC

Low Altitude Authorization and Notification Capability (LAANC) is the broad term for
an enterprise capability to automate to the maximum extent possible the ability for FAA
to grant authorization to CFR Part 107 operators under 14 CFR 107.41 and to allow for
model aircraft operators to notify ATC of planned operations within 5 miles of an airport
as described at Pub. L. 112-95 § 336. LAANC major elements include the FAAs
provision of authenticated map data for use in determining authorization, the use of third
part providers (TPP) to provide services to operators, and the ability for multiple TPP to
provide services. Generally, LAANC should encourage participation of operators in
creating an environment of inclusiveness and ease of use.

3.2 Notification

Notifications resulting from model aircraft operators under Pub. L. 112-95 § 336 are the
result of data sent from UAS operators to ATC to provide situational awareness about
operation events planned in a particular airspace. Notifications are those transactions sent
one way from UAS operator to ATC.

3.3 Request for Authorization

A request for authorization will contain data from a small UAS operator to a third party
provider (TPP) providing key parameters about an operation. The FAA may approve or
deny such requests in accordance with 14 CFR 107.41.

3.4 Authorization

Authorizations are the result of data sent from the TPP and by extension ATC, to an
operator regarding a specific request received asking permission to operate in a particular
airspace, operating under CFR Part 107 rules.

3.5 Remote Pilot Operator & UAS Operations in Airspace

The term “PIC” is specific to the person who is ultimately responsible for the operation
and safety during flight. The term “FAA” refers to the agency, or an unspecified entity
within the agency, as well as the ANSP. The term “ANSP” is a specific individual who
manages flight traffic on behalf of the FAA.

3.6 Use cases and scenarios

Scenarios for the existing use cases identified to date do not represent an exhaustive list
of notification and authorization challenges that will be addressed by implementation of
LAANC system or initial demonstrations. The urgent need for an initial LAANC solution
to enable time sensitive operations and expedite the authorization process has required
prioritization of scenarios that will guide stakeholders in development of an initial
demonstration event. The FAA will focus efforts to establish requirements for the
LAANC system using the scenarios referenced in Attachment 1. Through workshops and
continued collaboration with industry, the FAA will solicit and develop additional use
case scenarios to be prioritized as the LAANC demonstration and implementation effort
progresses.

3.7 Collaboration between Industry and FAA

It is expected that the FAA will work with industry partners to establish the LAANC, and
conduct a successful proposed solution demonstration, with an understanding that no
decisions have been reached on the implementation of LAANC services.

3.8 Collaboration within Industry (Industry to Industry cooperation)

It is expected that industry stakeholders will collaborate with each other as well as the
FAA, through and within workshops, demonstration(s), data exchange partnerships, and
in the overall development of the LAANC nationwide solution.

4 Assumptions

Following are assumptions associated with LAANC. The assumptions include key
integration assumptions as well as those specifically applicable to the sUAS operations
described in this document:

1) Information on airspace class designations and airport locations will not be
provided via Application Programming Interface (APIs) associated with N&A
functions or web services. Due to the static nature of such data and public
availability, Third Party Providers (TPPs) are expected to obtain this information
outside of the N&A processes.

2) N&A APIs will be limited to the smallest function practicable (e.g., via “micro
web services”) to ensure scalability and flexibility. (I.e. one API per functional
requirement instead of one API that spans multiple functional requirements).

3) N&A APIs will be versioned to accommodate additional phased capability as that
capability is introduced.

4) Future LAANC capability will be provided through the FAA’s system wide
information management (SWIM). Interfaces to SWIM and exchange methods
will be established for operational connection in future efforts.

5) Operator’s registration numbers may be used as unique identifiers if required to
amend submitted approvals. For sUAS operators under 14 CFR part 107, unique
certification numbers will be used.

6) Responsibilities and requirements that are deemed to fall outside FAA’s scope
(operator side) are the responsibility of the operator and TPP. The FAA will not
assign responsibility to one or the other. In order to avoid undue dependency on
TPPs, these responsibilities are expected to be established by mutual agreement
between the parties.

7) All Hobbyist operators must comply with Part 101.41: (e) 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. This differs from Part 107 (see item 6)
in that the Part 101 requirement is based on a prescribed distance from an airport
rather than a particular airspace designation.

8) 14 CFR Part 107 operators must comply with Part § 107.41: Operation in certain
airspace. No person may operate a small unmanned aircraft in Class B, Class C,
or Class D airspace or within the lateral boundaries of the surface area of Class E
airspace designated for an airport unless that person has prior authorization from
Air Traffic Control (ATC).

9) LAANC will service the well informed/well intended operator and will actively
encourage participation in the FAA’s goal of ensuring safe NAS operations for all
aircraft types.

5 Implementation Alternative

A set of operational requirements for notification and authorization was delivered in 2Q
FY16. The FAA investigated several alternatives to achieving the requirements and in 4Q
FY16 issued a request for information (RFI) to industry to gain an understanding of the
state of industry with regard to this capability. Based on the results of that RFI, the FAA
is currently pursuing an alternative where the FAA provides for data exchange with
TPPs. In this alternative the FAA provides authenticated map data and TPPs provide
resulting authorization and notification data to the FAA via an API. All vendors provide
format of data in accordance with FAA needs. Any business model for fee collection
from operators is developed by individual TPPs. The FAA will retain a separate web
interface for authorization requests and notifications.

6 Description of Key Services

Automated notification is essential to facilitate sUAS operator submission of all required
flight information, retrieval of that information by ATC facilities and/or FAA, and
provision of feedback from ATC to the UAS operator if necessary. Operators submit
their notifications through a TPP interface or through the FAA’s web portal for
notification/authorization. Based on the Operator’s planned operating type, the
operating area, and altitude indicated by the UAS operator, the TPP indicates to the
operator whether ATC authorization is required (i.e., the operation, or portions of the
operation, will be in controlled airspace), whether they may operate without authorization
(i.e., the entire operation will be in uncontrolled airspace), or whether they will be
operating within 5 miles of an airport.

If ATC authorization is not required, and the operation is one in which the operator
would provide notification to an airport operator and airport air traffic control tower
(when an air traffic facility is located at the airport), the TPP forwards the notification to
the FAA, where the information is available for distribution to other appropriate airspace
users, and is stored for traceability and data analysis purposes. If ATC authorization is
required, the TPP uses FAA authoritative facility map information (UAS Facility Map;
UASFM) and approved FAA business rules to automatically determine whether a flight
can be authorized and forwards the authorization information to the FAA through an API.
Automatic authorizations are provided to the operator. The FAA internally makes that
information available to ATC at the affected airport(s). If such automatic authorization is
not possible, the operation will be denied the opportunity for reconsideration. If a
reconsideration is requested (e.g., a different altitude or time), the request is forwarded to
the appropriate ATC authorities that provide feedback electronically via the TPP to the
UAS operator. If the operation has been authorized, either by the TPP using authoritative
maps or by appropriate ATC entity, the UAS operator may operate within the parameters
authorized by the action. If the operation has been denied, the UAS operator may review
the reasons for denial and modify the proposed authorization request accordingly (e.g.,
choose a different start time, different operating area), and resubmit the request for
authorization.

Lead times for submitting a notification depend on whether ATC authorization is
required. For instance, if only notification is required, the UAS operator may submit the
notification shortly before commencing the operation. ATC may impose time restrictions
on the pre-notification process to ensure no hazards exist in the timeframe in which the
operation occurs. However, if ATC authorization is required for the operation, the UAS
operator is required to submit the request for authorization in accordance with the
directions ATC provides for the specific airspace. The minimum lead times for
submittal, as well as lead times for providing ATC feedback will be determined and
specified by the FAA.

The FAA anticipates the current process of manual direct coordination with FAA, which
could take 90 days to complete. That process is envisioned to remain in place as LAANC
is introduced and after LAANC is fully operational, and future demand on the manual
process is likely to decrease as a result.

6.1 Distribution of Notification Info to Other Airspace Users

As previously mentioned, all unmanned aviation flight information—regardless of
whether flights require ATC authorization—are submitted to the FAA via an interface
with the TPP.

Information dissemination could be facilitated by the same notification mechanism used
for ATC submission, or by other means. Regardless of how this is done, all NAS airspace
users must have access to information about planned and active UAS operating areas
relevant to them. Disseminating UAS activity to other airspace users ensures safety of
flight as UAS present additional safety concerns due to the ranges of UAS physical, flight
performance, and operational characteristics that vary significantly from manned aircraft.
This information could be disseminated via TPPs, where those TPPs share information
with each other, or could be done through FAA central distribution of collected
information. In either case, the data would be sanitized to remove proprietary, personal,
or secure information. Sanitized information would provide sufficient data to act and
avoid by other sUAS or manned aircraft in the area.

Users of the NAS vary considerably. In this context, NAS users include sUAS operators,
model aircraft operators, as well as general aviation (GA) airspace users and commercial
carriers. NAS users are required to review published notification information for relevant
UAS activity along their intended routes of flight. For this information to be accurate and
timely, UAS operators are responsible for adhering to regulations and following proper
N&A procedures. This includes ensuring that information accurately reflects their
proposed operation, and that operations do not occur outside of the parameters of their
notification.

Follow-on development work associated with the notification concept would include a
more accurate determination of the circumstances in which dissemination of information
to other airspace users about UAS operating areas is required. The FAA is responsible for
determining the process and mechanisms for routing, storing, and managing notification
information, and for distributing the most current information to other airspace users.

6.2 Use of Third Party Providers

The FAA is pursuing the provision of LAANC services using private TPPs to provide
services specific to sUAS operations. Such services would be accomplished through an
exchange of information between the FAA and the third party, whereby the third party
would be the primary interface to the operator. The third party would use authoritative
map information and business rules provided by the FAA to authorize sUAS operations
in an area, at a particular time, under a set of conditions. The following paragraphs
outline the operational requirements of the overall system.

The operational requirements call for an automated ATC N&A system or service that
would eliminate the need for operators to call ATC directly or make requests via the
FAA’s webpage, and would limit overall operator interaction with ATC. This requires the
system/service to incorporate the following information:

 Real-time information on airspace status (e.g., Controlled Airspace, Special Activity
Airspace)
 Available projected information on airspace status (e.g., Controlled Airspace, Special
Activity Airspace)
 UAS Facility Maps (UASFM) that indicate “pre-approved fly zones” and “areas that
require further ATC coordination”

– For each airport, ATC (in collaboration with the airport operator) would develop
UASFM.
– Within each grid on the map, ATC would identify maximum altitudes at which
flight is permitted without further coordination.
– Airspace at or below the maximum altitudes would be “pre-approved fly zones”
and airspace above the maximum altitudes would be “that require further ATC
coordination.”

 Other “areas that require further ATC coordination” designated outside of airportspecific
maps (e.g., areas in which sUAS operations are prohibited under 14 CFR
99.7 and/or Pub. L. 114-190 § 2209)

The operator may use the TPP’s system to determine the viability of his/her proposed
flight operation as a planning function. Based on the operator’s input for proposed
operating area, altitude, date, start time, and duration, the “Planner Tool” would
determine whether each proposed flight operation would be within one or more of the
following:

(a) Five miles of an airport, or within Class B, C, D, or Class E surface area;
(b) Any airport-specific “areas that require further ATC coordination”;
(c) Special Activity Airspace where operations are prohibited; and
(d) A “no-fly zone” (outside of airport-specific maps).

If a proposed model aircraft flight operation is outside five miles of an airport, then ATC
notification is not required. Similarly, if a proposed sUAS flight operation will occur only
in Class G airspace, then 14 CFR part 107 does not require ATC authorization. If ATC
notification and/or authorization is not required, the operator (or designee) may
nonetheless voluntarily submit their proposed flight information through the TPP
interface. If no airspace restrictions exist, the system will provide confirmation to the
operator that the flight information has been received.

If the operation requires ATC notification or authorization, the operator (or designee)
must submit their proposed flight information via the system’s Flight Information
Submittal Tool. If the operation is within an airport-specific “area that requires further
ATC coordination” and outside of Special Activity Airspace where operations are
prohibited (in the vicinity of the airport), the system will automatically deliver
acknowledgement or authorization regarding the operation. Conversely, if the operator
(or designee) submits their proposed flight information, and the operation is within an
airport-specific “area that requires further coordination” or within Special Activity
Airspace where operations are prohibited (in the vicinity of the airport), the system will
automatically deliver a message denying the operation. Small UAS operators who operate
in accordance with part 107 will have the opportunity to further discuss their request to
operate in controlled airspace with ATC.

7 Overarching Roles & Architecture

There are five major roles defined for the concept; Operator, Third Party Provider, FAA
Processor, FAA ATC, and FAA Map Provider. The high level interaction among the
roles is described in section 7.6.

7.1 UAS Operator

Operators are people or organizations that are external to the FAA and that must follow
the rules outlined in 14 CFR part 107, Pub. L. 114-190 § 336, or a certificate of
authorization the FAA has issued to them under Pub. L. 114-190 § 333. .
Operators will submit required UAS operations information to a third party either via an
operator interface or possibly in bulk (for multiple planned Part 107 flights). Information
requirements are being developed at this time.

 

OperatorType of RequestThird Party ResponseFAA Response
Operators providing notification pursuant to Pub. L. 112-95 Section 336NotificationAcknowledgeNone
Part 107 sUAS OperatorAuto Authorization  “Fly without Further Coordination”AuthorizedAcknowledge and provide authorization message
Part 107 sUAS OperatorAuto ResponseNot-AuthorizedNone: state “Further Coordination Required”
Part 107 sUAS OperatorAuto ResponseNot-AuthorizedNone; Clarify the request involves “Special Activity Airspace”
Part 107 sUAS OperatorManual Authorization “No-Fly Zone” DiscussionAcknowledged and Sent to FAASecondary Contact (Direct Contact with Operator)
Operators providing

notification pursuant

to Pub. L. 112-96

§ 336

Notification “No-Fly”AcknowledgeProvide statement to

operator that the

operation could

interfere with other

operations in the

NAS and/or at an

airport

7.2 Third Party Provider

Third Party providers (TPPs) will provide Notification and Authorization communication
services on behalf of the FAA. TPPs are expected to be private entities, such as
corporations. They provide the primary interface to the operator via system application
software that is likely to include mobile applications. Each TPP will use only FAA
sources such as authorized UASFM, Special Use Airspace (SUA), TFRs, NOTAMs, data
to automatically provide, where feasible, confirmations of notification and authorizations
to UAS operators. Each TPP will obtain Environmental Systems Research Institute
(ESRI) based Geographic Information Systems (GIS) map data
(www.uas.faa.opendata.arcgis.com) from a designated repository, managed by the FAA
aeronautical information service organization (AJV-5) , and will maintain current map
data in accordance with FAA-provided notification of new map data availability.
The TPP will manage communications and messaging with the operator and with the
FAA. As an example, the TPP will provide standard messages to the operator based on
the determination made (e.g. “operation is authorized”). The TPPs will manage and store
all the records of authorization and notification requests in protected areas based on
SORN (Systems of Records Notices) requirements. The TPP will send authorization and
notification records (and or mapped data) to the FAA for display to ATC. Finally, the
TPP will manage Part 107 operator secondary requests for authorization once automatic
denial has been provided.

The level of governance for TPPs has not been determined. All interfaces to the FAA
where a TPP is exchanging information with the FAA will be tested, proven, controlled
and securely managed. There is currently no plan by the FAA to “authorize” or certify a
provider. However, a mechanism might be developed whereby the services provided by
a TPP will be monitored for performance and to collect metrics (e.g. numbers and types
of authorizations processed and associated error rates).

7.3 Air Navigation Service Provider (ANSP)/FAA Processor

In the operating concept, the FAA will provide a standard gateway for processing
messages between third party providers and FAA end users (e.g. ATC or Service
Centers). The FAA will also provide processing services to display information to meet
the FAA users’ needs. The gateway serves as a routing function for display and storage.

7.4 FAA ATC

In the operating concept, air traffic control personnel at a facility (or at a centralized
location) will have an ability to see authorizations, notifications, and waivers as
processed by a third party provider and sent to ATC.2 TPP will not be able to process
waivers, but will have an ability to allow the operator to enter the waiver information for
FAA review. Processing of authorizations may be accomplished at a centralized location
or at individual facilities. If processing of authorizations occurs at a centralized location
(e.g., FAA regional service centers), ATC personnel at affected facilities will have
situational awareness of the authorizations and notifications and will be provided with an
ability to override requested operational actions. ATC personnel will have the ability to
review all actions (Authorizations, Notifications, Waivers) affecting their respective
airspace and will have the ability to reject, accept, acknowledge, or perform additional
review. The method(s) of providing authorization, notification, and waiver information
to ATC personnel has not been determined. Early implementation may be accomplished
by email, or internet access if internet access is available. Operational procedures
detailing the interaction of ATC with the authorization and notification system have not
been determined.

7.5 FAA Map Provider and Special Instructions

In the operating concept, the FAA will provide the UASFM data to be used in
determining authorization and notification. Map data will be made available through
automation. The FAA mapping organization will provide map data on a periodic basis,
initially on a 56 day update cycle, using ESRI standard formats and functionality, with a
long term goal of providing real-time updates. The mapping organization will also
collect available information on other airspace limitations imposed by existing
NOTAMS, TFRs or regulation.

 


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Latest posts by Jonathan Rupprecht (see all)

Section 333 Exemption vs. Part 107 vs. Public COA vs. Blanket Public COA

section-333-exemption-vs-part-107-public-COA-toolbox.jpg

A common question I receive is “which certification, authorization, exemption, etc. is right for me? There are so many choices.” If this question accurately reflects where you are in life, you are in the right place.

 

There is much confusion on this issue because of the of the different terms, their locations in the law, and the reasons why the different methods of getting a drone airborne legally were created. You need to think of each of these different terms like it was a tool. Each tool was designed to fix certain problems at a certain point in time.

 

Hopefully, this article will bring to light the main differences between the different methods. Keep in mind that the different methods listed below are only SOME of the methods. I picked the most popular methods of getting airborne legally but there are other alternatives to the ones listed.

 

Please keep in mind that this article is designed to compare and contrast SOME of the major provisions and is NOT an exhaustive study on all the issues.  In other words, you should not rely on this article for legal advice because there are many issues in play. This is for educational purposes only.

 

Table of Contents

I. Graph Comparing Aircraft, Pilot, Airspace, and Operational Requirements

II. Part 107

III. Section 333 

IV. Airworthiness Certificates

V. Public COA

Example of a 333 Exemption

Example of a Blanket COA

Example of a Public “Blanket” COA (Version 1.0 ~ Mid-Late 2016)

Example of a Public “Blanket” COA (Version 1.2)

 

I. Graph Comparing Aircraft, Pilot, Airspace, and Operational Requirements

Please keep in mind these are the major points and not ALL of the points in contrast. If I put everything down, the table would get messy and hard to read.

 Aircraft RequirementsPilot RequirementsAirspace RequirementsTypes of Operations
Part 107Under 55lbs.Remote Pilot Certificate with SUAS RatingClass G, unless authorized or waivedDaylight, visual line of sight, 400ft AGL(unless within 400ft of a structure), not over people, etc.
Section 333As Required in the ExemptionPart 61 Certificate (Sport, Recreational, Private, Commercial, ATP, but not Student). Driver’s license or 3rd class medical.Within “Blanket” COA or Standards COA RequirementsAs defined by the exemption. Can be over 55lb+ or beyond visual line of sight.
Special Airworthiness Certificate (Experimental Category)Experimental Special Airworthiness Certificate.Part 61 Certificate (Sport, Recreational, Private, Commercial, ATP, but not Student).Within Standard COA RequirementsR&D, Showing Compliance with Regulations, Crew Training, Exhibition, Air Racing, Market Surveys. See Section 21.191.
Special Airworthiness Certificate (Restricted Category)Previously type certificated or manufactured & accepted by an Armed Force of the United States.Part 61 Certificate (Sport, Recreational, Private, Commercial, ATP, but not Student).Within Standard COA RequirementsAgriculture, forest and wildlife conservation, aerial surveying patrolling, weather control, aerial advertising,  or any other operation specified by the FAA. See Section 21.25.
Standard Airworthiness CertificateNo small unmanned aircraft has this certification
Public “Blanket” COA (Version 1.2)Under 55lbs.Self-CertifyClass G & at or below 400ft AGL. Beyond 5/3/2 airport distance requiresments.Section 40102(a)(41) & 40125(a)(2) and within public “blanket” COA limitations.
Public COASelf-CertifySelf-CertifySelf-Certify49 USC §§ 40102(a)(41);  40125
Part 101Under 55lbs unless certified through a community-based organization (CBO) safety program.CBO standardsNotification required to manager and tower if within 5 miles of an airport.Hobby or recreational only. Does not interfere and gives way to manned aircraft. Within CBO  safety guidelines. Cannot endanger safety of national airspace system.

 

 

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This graphic compares the four most popular methods of getting airborne. The  FAA has delegated some of the standard setting to the remote pilot in command (purple) or the FAA determined the standard by which the remote pilot must follow (grey).

part-107-101-333-exemption-publicc-coa-comparison


II. Part 107

This part of the regulations went into effect on August 29, 2016. Prior to 107, we were operating predominately under a Section 333 exemptions.

 

For many, Part 107 is the best solution; however, there are particular operations which cannot be done under just Part 107 or a Part 107 waiver such as over 55-pound and heavier operations, crop dusting operations, beyond visual line of sight property transport or moving vehicle in a congested area property transport, etc.   If you are needing help with any of those, contact me.

 

For operations, that cannot be completed under Part 107, a Section 333 exemption could be a good alternative, but not always the best. The idea I want to to take away is that there are different tools for different problems. Some operators can have multiple tools in their toolbox to accomplish their missions depending on the particular facts. For example, a fire department could have 107 remote pilots, a section 333 exemption, and a public COA all at the same time. The problem at hand determines which tool you would pull out of the toolbox.

 

III. Section 333 Exemption

This basically is a legal Frankenstein created using the FAA’s authority given in Section 333 of the FAA Modernization and Reform Act of 2012, Part 11’s exemption process, and the Part 91 waiver process. The first exemptions came out in September 2014 and were the backbone of the commercial drone industry till Part 107 came out which had far less restrictive requirements. See an Example of a 333 Exemption

 

From September 2014 -November 2016, we saw multiple versions of the exemptions which morphed and changed over time. For example, the early exemptions had restrictions requiring the pilot to keep a 25% battery reserve, it then changed to 30%, and then a 5 minute reserve which goofed over the cinematographers who originally worked with the FAA to craft the 333 exemptions! Why did it hurt cinematographers? Because if their large heavy lift drones had a flight time of 15 minutes, under the original exemptions they would be required to keep a 25% battery reserve (3.75 minutes) while under the newer restrictions it is 5 minutes which results in a loss of available flight time.

 

In November 2016, the FAA unilaterally updated over 5,000 to all have the same set of restrictions. One wonders how that was not arbitrary and capricious.

 

The two most problematic restrictions for the 333 exemption operators were the 500ft “bubble” around the drone of which non-participating people and property must stay out of and the requirement to operate under a certificate of authorization.

 

Early on, the 333 exemptions did not come with COAs and people had to apply for them. The FAA quickly learned the error of that and created the “blanket” COA which was issued to all the 333 exemption holders upon approval. The FAA updated the “blanket” COA over time from 200ft AGL to 400ft AGL.  But here is the problem why the certificate of authorization was the second biggest problem, the “blanket” COA sis good for operations outside of 5 NM from a towered airport, 3NM from an airport with an instrument approach procedure, or 2NM from an airport, heliport, glider port, etc.  This made operations in cities or near them almost impossible because you would have to apply for a new COA, because the “blanket” COA would not work, and the wait 6 months +. The jobs would go to the illegal operators.

 

IV. Airworthiness Certificates

The FAA has been charged with maintaining the safety of the national airspace system and protecting people on the ground. One of the ways the FAA ensures safety is by certifying the aircraft to make sure it is airworthiness (it won’t fall out of the sky and kill people). This process which was originally designed for manned aircraft has been used for unmanned aircraft successfully.

 

There are two types of airworthiness certificates: (1) standard and (2) special.  To date, no small unmanned aircraft has obtained a standard airworthiness certificate, but I know some companies are in the process of trying to obtain them for their aircraft. There have been some special airworthiness certificates given out in the experimental and the restricted categories.

 

Obtaining an airworthiness certificate is time-consuming. A major reason it is rarely used today is an operator could just go the Section 333 exemption route or the Part 107 route which allow the pilot in command to determine the airworthiness of the aircraft. However, there are some instances where a special airworthiness certificate could be more beneficial than the 333 exemption or Part 107. It just depends on the facts of the intended operations. Different tools in the toolbox.

 

One point to mention is that an unmanned aircraft would not just need an airworthiness certificate but also a COA as well for the operations to be in compliance with the regulations.

 

V. Public COA

This method is only available for government agencies. The agency has to be fulfilling certain specific governmental functions under certain conditions for the operator to get the ability to self-certify their own pilot, aircraft, maintenance, and medical standards. The FAA is very strict on the missions and requirements because it does not want government agencies to run commercial types of missions or non-government missions under a public COA which is far less restrictive than other methods.

 

A government operator obtains a public COA by first sending the FAA a declaration letter outlining that the agency and its intended missions fall within the public aircraft statutes, the FAA reviews the declaration letter to determine if it is sufficient, the FAA gives the agency access to the COA portal to file a COA application, the government agency files the COA application, the FAA reviews the COA application and either approves, denies, or asks for more information.  The agency then operates under the public COA and the Federal Aviation Regulations.

 

When the 333 exemption method was getting into full swing,  public aircraft operators noticed that the Section 333 process seemed quicker and the “blanket” COAs that were being given out were for the entire United States, except for certain areas, while the public COAs were mission. aircraft, and location specific. This was a no brainer so government agencies started obtaining 333 exemptions because they were less restrictive than the public COAs.

 

Other government agencies were upset and wanted a similar deal to the 333 exemption’s blanket COA so the FAA created the “blanket” public COA which is basically a frankensteined version of a public COA, a section 333 exemption, and the blanket COA.

Agencies were happy for a while but caught on that the Section 333 exemptions were evolving to be less restrictive while the blanket public COA stayed the same. For example, the blanket public COA requires the pilot to have a private, commercial, or ATP certificate to operate near certain types of airports while the 333 exemptions required as little as a sport certificate. Additionally, when Part 107 came out, the public blanket COAs still said that the pilot had to have passed the private pilot knowledge exam to fly in most of Class G airspace while a government operator could have their pilots obtain a remote pilot certificate by passing a remote pilot knowledge exam which is easier than a private pilot knowledge exam!

 

This is why few government agencies today go for a public COA or public blanket COA; however, there are sometimes when a public COA is the best solution for the mission but that is fact specific. Different tools for different problems.

 

Conclusion

I outlined a brief summation of some of the major points above. There are all sorts of little contrasts between each of the different methods. If you are needing help with obtaining a tool to put in your toolbox (waiver, authorization, exemption, public COA, etc.), contact me. Paying for 30 minutes of my time can save you lots and lots of headache, time, and money. We can outline a game plan for your operations in  30 minutes so you can stop wasting time reading and focus on achieving your goals of operating a drone to save time, money, or lives.

Stop wasting time and contact me to schedule a phone call. :)

If you interested in learning more, I have put below an:

Example of a 333 Exemption

Example of a Blanket COA

Example of a Public “Blanket” COA (Version 1.0)

Example of a Public “Blanket” COA (Version 1.2)

 

Want to receive this entire article, including the graph above, in a PDF so you can read it later? Simply sign up for my drone newsletter and you’ll receive the link to download the PDF in your email.

 

 

Example of a 333 Exemption

Dear Section 333 Exemption Holder:
This letter is to inform you that we are amending your exemption that authorizes unmanned aircraft operations under Section 333.1 It explains the basis for our decision, describes its effect, and lists the revised Conditions and Limitations.
The Federal Aviation Administration (FAA) has determined that good cause exists for not publishing a summary of the petition in the Federal Register because this amendment to the exemption would not set a precedent, and any delay in acting on this petition would be detrimental to the petitioner. The unmanned aircraft authorized in the original grant are comparable in type, size, weight, speed, and operating capabilities to those in this petition.

 

Additionally, the FAA has finalized the first operational rules for routine commercial use of small unmanned aircraft systems (sUAS) (part 107, Operation and Certification of Small Unmanned Aircraft Systems). The new rule, which went into effect August 29, 2016, offers safety regulations for sUAS weighing less than 55 pounds that are conducting non-hobbyist operations. The vast majority of operations authorized under previously-issued exemptions under Section 333 have been addressed by part 107; now that part 107 is in effect, these operations do not necessitate an exemption. However, your Section 333 exemption remains valid until it expires. You may continue to fly following the Conditions and Limitations in your exemption and under the terms of a Certificate of Waiver or Authorization (COA). If your operation can be conducted under the requirements in part 107, you may elect to operate under part 107; however, if you wish to operate under part 107, you must obtain a remote pilot certificate and follow the operating rules of part 107. For more information, please visit: http://www.faa.gov/uas/.

 

The Basis for Our Decision
The FAA has previously issued a grant of exemption for relief from §§ 61.23(a) and (c), 61.101(e)(4) and (5), 61.113(a), 61.315(a), 91.7(a), 91.119(c), 91.121, 91.151(a)(1), 91.405(a), 91.407(a)(1), 91.409(a)(1) and (2), and 91.417(a) and (b) of Title 14, Code of Federal Regulations (14 CFR). That exemption allows the operators to operate UAS to perform aerial data collection or aerial data collection and closed-set filming and television production.
The FAA has revised the Conditions and Limitations issued in exemptions authorizing unmanned aircraft operations under Section 333 since the petitioner’s previous grant of exemption to those found in Exemption No. 15005 to Thomas R. Guilmette (see Docket No. FAA-2015-5829). Also in Exemption Nos. 13465A to Kansas State University (see Docket No. FAA-2014-1088), 11433A to Cape Productions (see Docket No. FAA-2015-0223), 11213 to Aeryon Labs, Inc. (see Docket No. FAA-2014-0642), 11062 to Astraeus Aerial (see Docket No. FAA−2014−0352), 11109 to Clayco, Inc. (see Docket No. FAA−2014−0507), 11112 to VDOS Global, LLC (see Docket No. FAA−2014−0382), the FAA found that the enhanced safety achieved using a sUAS with the specifications described by the petitioner and carrying no passengers or crew, rather than a manned aircraft of significantly greater proportions, carrying crew and flammable fuel, gives the FAA good cause to find that the UAS operation enabled by this exemption is in the public interest.

 

Our Decision
The FAA has modified the Conditions and Limitations to address aircraft, training, tethered operations, aircraft registration, and flight operations near persons, vessels, vehicles, and structures. Additionally, in previous exemptions, the FAA limited UAS operations to outside 5 nautical miles of an airport reference point (ARP) as denoted in the current FAA Airport/Facility Directory (AFD) or for airports not denoted with an ARP, the center of the airport symbol as denoted on the current FAA-published aeronautical chart unless a letter of agreement (LOA) with that airport’s management is obtained or otherwise permitted by a COA issued to the exemption holder. The FAA has removed that condition. In order to maintain safety in the vicinity of airports in Class B, C, or D airspace, the petitioner must apply to the Air Traffic Organization (ATO) for a new or amended COA. The FAA has determined that the justification for the issuance of Section 333 exemptions remains valid and is in the public interest. Therefore, under the authority contained in 49 U.S.C. 106(f), 40113, and 44701, delegated to me by the Administrator, the operator is granted an amendment to its exemption from 14 CFR §§ 61.23(a) and (c), 61.101(e)(4) and (5), 61.113(a), 61.315(a), 91.7(a), 91.119(c), 91.121, 91.151(a)(1), 91.405(a), 91.407(a)(1), 91.409(a)(1) and (2), and 91.417(a) and (b), to the extent necessary to allow the petitioner to conduct UAS operations. This exemption is subject to the Conditions and Limitations listed below.The list of affected docket numbers is included in Appendix A. The operator shall add this amendment to all previously-issued exemption(s). Without the original exemption and all subsequent amendments, this amendment is not valid.

 

Conditions and Limitations
The Conditions and Limitations within the previously-issued grant of exemptions have been superseded, and are amended as follows. Failure to comply with any of the Conditions and Limitations of this grant of exemption will be grounds for the immediate suspension or rescission of this exemption.

  1. 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.
  2.  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.
  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.
  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.
  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.
  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.
  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.
  8. 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.
  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.
  10. The operator is responsible for maintaining and inspecting the UAS to ensure that it is in a condition for safe operation.
  11. 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.
  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.
  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.
  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.
  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.
  17. 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.
  18. 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.
  19.  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.
  20. 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.
  21. 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 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.
  23. 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.
  25. 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 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.
  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.

29. 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 must be reported to the National Transportation Safety Board (NTSB) in accordance with its UAS accident reporting requirements. For 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, 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.

Unless otherwise specified in this exemption, the UAS, the UAS PIC, and the UAS operations must comply with all applicable parts of 14 CFR including, but not limited to, parts 45, 47, 48, 61, and 91. 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.

 

Example of a Blanket COA

A. General.

1. The approval of this COA is effective only with an approved Section 333 FAA Grant of Exemption.
2. A copy of the COA including the special limitations must be immediately available to all operational personnel at each operating location whenever UAS operations are being conducted.
3. This authorization may be canceled at any time by the Administrator, the person authorized to grant the authorization, or the representative designated to monitor a specific operation. As a general rule, this authorization may be canceled when it is no longer required, there is an abuse of its provisions, or when unforeseen safety factors develop. Failure to comply with the authorization is cause for cancellation. The operator will receive written notice of cancellation.

B. Safety of Flight.

1. The operator or pilot in command (PIC) is responsible for halting or canceling activity in the COA area if, at any time, the safety of persons or property on the ground or in the air is in jeopardy, or if there is a failure to comply with the terms or conditions of this authorization.

See-and-Avoid
Unmanned aircraft have no on-board pilot to perform see-and-avoid responsibilities; therefore, when operating outside of active restricted and warning areas approved for aviation activities, provisions must be made to ensure an equivalent level of safety exists for unmanned operations consistent with 14 CFR Part 91 §91.111, §91.113 and §91.115.
a. The pilot in command (PIC) is responsible:

-To remain clear and give way to all manned aviation operations and activities at all times,
-For the safety of persons or property on the surface with respect to the UAS, and
-For compliance with CFR Parts 91.111, 91.113 and 91.115

b. UAS pilots will ensure there is a safe operating distance between aviation activities and unmanned aircraft (UA) at all times.

c. Visual observers must be used at all times and maintain instantaneous communication with the PIC.

d. The PIC is responsible to ensure visual observer(s) are:

-Able to see the UA and the surrounding airspace throughout the entire flight, and
-Able to provide the PIC with the UA’s flight path, and proximity to all aviation activities and other hazards (e.g., terrain, weather, structures) sufficiently for the PIC to exercise effective control of the UA to prevent the UA from creating a collision hazard.

e. Visual observer(s) must be able to communicate clearly to the pilot any instructions required to remain clear of conflicting traffic.

2. Pilots are reminded to follow all federal regulations e.g. remain clear of all Temporary Flight Restrictions, as well as following the exemption granted for their operation.
3. The operator or delegated representative must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone,
except operations in the Washington DC Special Flight Rule Area may be approved only with prior coordination with the Security Operations Support Center (SOSC) at 202-267- 8276. Such areas are depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/. Additionally, aircraft operators should beware of and avoid other areas identified in Notices to Airmen (NOTAMS) which restricts operations in proximity to Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, the Washington DC Metro Flight Restricted Zone, Military or other Federal Facilities.
4. The unmanned aircraft will be registered prior to operations in accordance with Title 14 of the Code of Federal Regulations.

C. Reporting Requirements

1. Documentation of all operations associated with UAS activities is required regardless of the airspace in which the UAS operates. NOTE: Negative (zero flights) reports are required.
2. The operator must submit the following information through mailto:[email protected] on a monthly basis:

a. Name of Operator, Exemption number and Aircraft registration number
b. UAS type and model
c. All operating locations, to include location city/name and latitude/longitude
d. Number of flights (per location, per aircraft)
e. Total aircraft operational hours
f. Takeoff or Landing damage
g. Equipment malfunctions. Reportable malfunctions include, but are not limited to the following:

(1) On-board flight control system
(2) Navigation system
(3) Power plant failure in flight
(4) Fuel system failure
(5) Electrical system failure
(6) Control station failure

3. The number and duration of lost link events (control, performance and health monitoring, or communications) per UA per flight.
4. Incident/Accident/Mishap Reporting After an incident or accident that meets the criteria below, and within 24 hours of that incident, accident or event described below, the proponent must provide initial notification of the following to the FAA via email at  [email protected] and via the UAS COA On-Line forms (Incident/Accident).

1. All accidents/mishaps involving UAS operations where any of the following occurs:

a. Fatal injury, where the operation of a UAS results in a death occurring within 30 days of the accident/mishap
b. Serious injury, where the operation of a UAS results in: (1) hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received; (2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose); (3) causes severe hemorrhages, nerve, muscle, or tendon damage; (4) involves any internal organ; or (5) involves second- or third-degree burns, orany burns affecting more than 5 percent of the body surface.
c. Total unmanned aircraft loss
d. Substantial damage to the unmanned aircraft system where there is damage to the airframe, power plant, or onboard systems that must be repaired prior to further flight
e. Damage to property, other than the unmanned aircraft.

2. Any incident/mishap that results in an unsafe/abnormal operation including but not limited to

a. A malfunction or failure of the unmanned aircraft’s on-board flight control system (including navigation)
b. A malfunction or failure of ground control station flight control hardware or software (other than loss of control link)
c. A power plant failure or malfunction
d. An in-flight fire
e. An aircraft collision involving another aircraft.
f. Any in-flight failure of the unmanned aircraft’s electrical system requiring use of alternate or emergency power to complete the flight
g. A deviation from any provision contained in the COA
h. A deviation from an ATC clearance and/or Letter(s) of Agreement/Procedures
i. A lost control link event resulting in

(1) Fly-away, or
(2) Execution of a pre-planned/unplanned lost link procedure.

3. Initial reports must contain the information identified in the COA On-Line Accident/Incident Report.
4. Follow-on reports describing the accident/incident/mishap(s) must be submitted by providing copies of proponent aviation accident/incident reports upon completion of safety investigations.
5. Civil operators and Public-use agencies (other than those which are part of the Department of Defense) are advised that the above procedures are not a substitute for separate accident/incident reporting required by the National Transportation Safety Board under 49 CFR Part 830 §830.5.
6. For other than Department of Defense operations, this COA is issued with the provision that the FAA be permitted involvement in the proponent’s incident/accident/mishap investigation as prescribed by FAA Order 8020.11, Aircraft Accident and Incident Notification, Investigation, and Reporting.

D. Notice to Airmen (NOTAM). A distant (D) NOTAM must be issued when unmanned aircraft operations are being conducted. This requirement may be accomplished:

a. Through the operator’s local base operations or NOTAM issuing authority, or
b. By contacting the NOTAM Flight Service Station at 1-877-4-US-NTMS (1-877-487- 6867) not more than 72 hours in advance, but not less than 24 hours prior to the operation, unless otherwise authorized as a special provision. The issuing agency will require the:

(1) Name and address of the pilot filing the NOTAM request
(2) Location, altitude, or operating area
(3) Time and nature of the activity.
(4) Number of UAS flying in the operating area.

AIR TRAFFIC CONTROL SPECIAL PROVISIONS
A. Coordination Requirements.

1. Operators and UAS equipment must meet the requirements (communication, equipment and clearance) of the class of airspace they will operate in.
2. Operator filing and the issuance of required distance (D) NOTAM, will serve as advance ATC facility notification of UAS operations in an area.
3. The area of operation defined in the NOTAM must only be for the actual area to be flown for each day defined by a point and the minimum radius required to conduct the operation.
4. Operator must cancel NOTAMs when UAS operations are completed or will not be conducted.
5. Coordination and de-confliction between Military Training Routes (MTRs) is the operator’s responsibility. When identifying an operational area the operator must evaluate whether an MTR will be affected. In the event the UAS operational area overlaps an MTR, the operator will contact the scheduling agency 24 hours in advance to coordinate and de-conflict. Approval from the scheduling agency is not required. Scheduling agencies are listed in the Area Planning AP/1B Military Planning Routes North and South America, if unable to gain access to AP/1B contact the FAA at email address [email protected] with the IR/VR routes affected and the FAA will provide the scheduling agency information. If prior coordination and de-confliction does not take place 24 hours in advance, the operator must remain clear of all MTRs.

B. Communication Requirements. When operating in the vicinity of an airport without an operating control tower, announce your operations in accordance with the FAA Aeronautical Information Manual (AIM) 4-1- 9 Traffic Advisory Practices at Airports without Operating Control Towers.
C. Flight Planning Requirements.

Note: For all UAS requests not covered by the conditions listed below, the exemption holder may apply for a new Air Traffic Organization (ATO) Certificate of Waiver or
Authorization (COA) at https://oeaaa.faa.gov/oeaaa/external/uas/portal.jsp This COA will allow small UAS (55 pounds or less) operations during daytime VFR conditions under the following conditions and limitations:
(1) At or below 400 feet AGL; and
(2) Beyond the following distances from the airport reference point (ARP) of a public use airport, heliport, gliderport, or seaport listed in the Airport/Facility Directory, Alaska Supplement, or Pacific Chart Supplement of the U.S. Government Flight Information Publications.

a) 5 nautical miles (NM) from an airport having an operational control tower; or
b) 3 NM from an airport having a published instrument flight procedure, but not
having an operational control tower; or
c) 2 NM from an airport not having a published instrument flight procedure or an
operational control tower; or
d) 2 NM from a heliport

 

D. Emergency/Contingency Procedures.

1. Lost Link/Lost Communications Procedures:

a. If the UAS loses communications or loses its GPS signal, the UA must return to a pre-determined location within the private or controlled-access property and land.
b. The PIC must abort the flight in the event of unpredicted obstacles or emergencies.

2. Any incident, accident, or flight operation that transgresses the lateral or vertical boundaries defined in this COA must be reported to the FAA via email at [email protected] within 24 hours. Accidents must be
reported to the National Transportation Safety Board (NTSB) per instructions contained on the NTSB Web site: www.ntsb.gov

AUTHORIZATION
This Certificate of Waiver or Authorization does not, in itself, waive any Title 14 Code of Federal Regulations, nor any state law or local ordinance. Should the proposed operation conflict with any state law or local ordinance, or require permission of local authorities or property owners, it is the responsibility of the operator to resolve the matter. This COA does not authorize flight within Special Use airspace without approval from the scheduling agency. The operator is hereby authorized to operate the small Unmanned Aircraft System in the National Airspace System.

Example of a Public “Blanket” COA  (Version 1.0 ~ Mid-Late 2016)

I. STANDARD PROVISIONS

A. General.

The review of this activity is based upon current understanding of Unmanned Aircraft System (UAS) operations and their impact on the National Airspace System (NAS).This Certificate of Waiver or Authorization (COA) will not be considered a precedent for future operations. As changes in, or understanding of, UAS operations occur, the associated limitations and conditions may be adjusted.

All personnel engaged in the operation of the UAS in accordance with this authorization must read and comply with the conditions, limitations, and provisions of this COA.

A copy of the COA including the special limitations must be immediately available to all operational personnel at each operating location whenever UAS operations are being conducted.

This COA may be canceled at any time by the Administrator, a person authorized to grant the authorization, or a representative designated to monitor a specific operation. As a general rule, this authorization may be canceled when it is no longer required, when there is an abuse of its provisions, or when unforeseen safety factors develop. Failure to comply with the authorization is cause for cancellation. All cancellations will be provided in writing to the proponent.

During the time this COA is approved and active, a site safety evaluation/visit may be accomplished to ensure COA compliance, assess any adverse impact on ATC or airspace, and ensure this COA is not burdensome or ineffective. Deviations, accidents/incidents/mishaps, complaints, etc. will prompt a COA review or site visit to address the issue. Refusal to allow a site safety evaluation/visit may result in cancellation of the COA. Note: This section does not pertain to agencies that have other existing agreements in place with the FAA.

Public Aircraft Operations are defined by statutes Title 49 USC §40102(a)(41) and §40125. All public aircraft operations conducted under a COA must comply with the terms of the statutes.

 

B. Airworthiness Certification.

The unmanned aircraft must be shown to be airworthy to conduct flight operations in the NAS. The proponent has made its own determination that the unmanned aircraft is airworthy. The unmanned aircraft must be operated in strict compliance with all provisions and conditions contained in the Airworthiness Safety Release (AWR), including all documents and provisions referenced in the COA application.

1. A configuration control program must be in place for hardware and/or software changes made to the UAS to ensure continued airworthiness. If a new or revised Airworthiness Release is generated as a result of changes in the hardware or software affecting the operating characteristics of the UAS, notify the UAS Integration Office via email at 9- [email protected] of the changes as soon as practical.

a. Software and hardware changes should be documented as part of the normal maintenance procedures. Software changes to the aircraft and control station as well as hardware system changes are classified as major changes unless the agency has a formal process accepted by the FAA. These changes should be provided to the UAS Integration Office in summary form at the time of incorporation.

b. Major modifications or changes, performed under the COA, or other authorizations that could potentially affect the safe operation of the system, must be documented and provided to the FAA in the form of a new AWR, unless the agency has a formal process, accepted by the FAA.

c. All previously flight proven systems, to include payloads, may be installed or removed as required and that activity must be recorded in the unmanned aircraft and ground control stations logbooks by persons authorized to conduct UAS maintenance. Describe any payload equipment configurations in the UAS logbook that will result in a weight and balance change, electrical loads, and or flight dynamics, unless the agency has a formal process, accepted by the FAA.

d. For unmanned aircraft system discrepancies, a record entry should be made by an appropriately rated person to document the finding in the logbook. No flights may be conducted following major changes, modifications or new installations unless the party responsible for certifying airworthiness has determined the system is safe to operate in the NAS and a new AWR is generated, unless the agency has a formal process, accepted by the FAA. The successful completion of these major changes, modifications or new installations must be recorded in the appropriate logbook, unless the agency has a formal process, accepted by the FAA.

2. The unmanned aircraft must be operated in strict compliance with all provisions and conditions contained within the spectrum analysis assigned and authorized for use within the defined operations area.

3. All items contained in the application for equipment frequency allocation must be adhered to, including the assigned frequencies and antenna equipment characteristics. A ground operational check to verify that the control station can communicate with the aircraft (frequency integration check) must be conducted prior to the launch of the unmanned aircraft to ensure any electromagnetic interference does not adversely affect control of the aircraft.

 

C. Safety of Flight.

1. The Proponent or delegated representative is responsible for halting or canceling activity conducted under the provisions of this COA if, at any time, the safety of persons or property on the ground or in the air is in jeopardy, or if there is a failure to comply with the terms or conditions of this authorization.

2. Sterile Cockpit Procedures.

a. No crewmember may perform any duties during a critical phase of flight not required for the safe operation of the aircraft.

b. Critical phases of flight include all ground operations involving:

1) Taxi (movement of an aircraft under its own power on the surface of an airport),

2) Take-off and landing (launch or recovery), and

3) All other flight operations in which safety or mission accomplishment might be compromised by distractions.

c. No crewmember may engage in, nor may any pilot in command (PIC) permit, any activity during a critical phase of flight which could:

1) Distract any crewmember from the performance of his/her duties, or

2) Interfere in any way with the proper conduct of those duties.

d. The pilot and/or the PIC must not engage in any activity not directly related to the operation of the aircraft. Activities include, but are not limited to: operating UAS sensors or other payload systems.

e. The use of cell phones or other electronic devices is restricted to communications pertinent to the operational control of the unmanned aircraft and any required communications with Air Traffic Control.

3. See-and-Avoid.

a. Unmanned aircraft have no on-board pilot to perform see-and-avoid responsibilities; therefore, when operating outside of active restricted and warning areas approved for aviation activities, provisions must be made to ensure that an equivalent level of safety exists for unmanned operations. Adherence to 14 CFR Part 91 §91.111, §91.113 and §91.115, is required.

1) The PIC is responsible: To remain clear and give way to all manned aviation operations and activities at all times, For the safety of persons or property on the surface with respect to the UAS operation, For ensuring that there is a safe operating distance between aviation activities and unmanned aircraft (UA) at all times, and For operating in compliance with CFR Parts 91.111, 91.113 and 91.115

b. The PIC is responsible to ensure that any visual observer (VO):

1) Can perform their required duties,

2) Are able to see the UA and the surrounding airspace throughout the entire flight, and 3) Are able to provide the PIC with the UA’s flight path and proximity to all aviation activities and other hazards (e.g., terrain, weather, structures) sufficiently for the PIC to exercise effective control of the UA to prevent the UA from creating a collision hazard.

c. VO(s) must be used at all times and must maintain instantaneous communication with the PIC. Electronic messaging or texting is not permitted during flight operations. d. The use of multiple successive VO(s) (daisy chaining) is prohibited.

e. VO(s) must be able to communicate clearly to the PIC any instructions required to remain clear of conflicting traffic.

f. All VO(s) must complete sufficient training to communicate to the PIC any information required to remain clear of conflicting traffic, terrain, and obstructions, maintain proper cloud clearances, and provide navigational awareness. This training, at a minimum, must include knowledge of:

1) Their responsibility to assist PICs in complying with the requirements of:  Section 91.111, Operating Near Other Aircraft,  Section 91.113, Right-of-Way Rules: Except Water Operations,  Section 91.115, Right-of-Way Rules: Water Operations,  Section 91.119, Minimum Safe Altitudes: General, and  Section 91.155, Basic VFR Weather Minimums

2) Air traffic and radio communications, including the use of approved air traffic control/pilot phraseology

3) Appropriate sections of the Aeronautical Information Manual (AIM)

g. The Proponent must not operate in Restricted Areas, Prohibited Areas, Special Flight Rule Areas or the Washington DC Flight Restricted Zone. Such areas are depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/. Additionally, aircraft operators should beware of and avoid other areas identified in Notices to Airmen (NOTAMS) that restrict operations in proximity to Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, Military or other Federal Facilities unless approval is received from the appropriate authority prior to the UAS Mission. h. The unmanned aircraft will be registered prior to operations in accordance with Title 14 of the Code of Federal Regulations.

 

D. Reporting Requirements

1. Documentation of all operations associated with UAS activities is required regardless of the airspace in which the UAS operates. NOTE: Negative (zero flights) reports are required.

2. The Proponent must submit the following information on a monthly basis to [email protected] :

a. Name of Proponent, and aircraft registration number,

b. UAS type and model,

c. All operating locations, to include city name and latitude/longitude,

d. Number of flights (per location, per aircraft),

e. Total aircraft operation hours,

f. Takeoff or landing damage, and

g. Equipment malfunction. Required reports include, but are not limited to, failures or malfunctions to the:

(1) Control station (2) Electrical system (3) Fuel system (4) Navigation system (5) On-board flight control system (6) Powerplant

3. The number and duration of lost link events (control, performance and health monitoring, or communications) per UAS, per flight.

4. Incident/Accident/Mishap Reporting After an incident or accident that meets the criteria below, and within 24 hours of that incident, accident or event described below, the proponent must provide initial notification of the following to the FAA via email at mailto: 9-AJV-115- [email protected] and via the UAS COA On-Line forms (Incident/Accident).

a. All accidents/mishaps involving UAS operations where any of the following occurs:

1) Fatal injury, where the operation of a UAS results in a death occurring within 30 days of the accident/mishap

2) Serious injury, where the operation of a UAS results in:  Hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received;  A fracture of any bone (except simple fractures of fingers, toes, or nose);  Severe hemorrhages, nerve, muscle, or tendon damage;   Involving any internal organ; or  Involves second- or third-degree burns, or any burns affecting more than 5 percent of the body surface.

3) Total unmanned aircraft loss

4) Substantial damage to the unmanned aircraft system where there is damage to the airframe, power plant, or onboard systems that must be repaired prior to further flight

5) Damage to property, other than the unmanned aircraft.

b. Any incident/mishap that results in an unsafe/abnormal operation including but not limited to

1) A malfunction or failure of the unmanned aircraft’s on-board flight control system (including navigation)

2) A malfunction or failure of ground control station flight control hardware or software (other than loss of control link)

3) A power plant failure or malfunction

4) An in-flight fire

5) An aircraft collision involving another aircraft.

6) Any in-flight failure of the unmanned aircraft’s electrical system requiring use of alternate or emergency power to complete the flight

7) A deviation from any provision contained in the COA

8) A deviation from an ATC clearance and/or Letter(s) of Agreement/Procedures

9) A lost control link event resulting in Fly-away, or Execution of a pre-planned/unplanned lost link procedure. c. Initial reports must contain the information identified in the COA On-Line Accident/Incident Report.

d. Follow-on reports describing the accident/incident/mishap(s) must be submitted by providing copies of proponent aviation accident/incident reports upon completion of safety investigations.

e. Civil operators and Public-use agencies (other than those which are part of the Department of Defense) are advised that the above procedures are not a substitute for separate accident/incident reporting required by the National Transportation Safety Board under 49 CFR Part 830 §830.5.

f. For other than Department of Defense operations, this COA is issued with the provision that the FAA be permitted involvement in the proponent’s incident/accident/mishap investigation as prescribed by FAA Order 8020.11, Aircraft Accident and Incident Notification, Investigation, and Reporting.

E. Notice to Airmen (NOTAM).

1. A distant (D) NOTAM must be issued prior to conducting UAS operations. This requirement may be accomplished:

a. Through the proponent’s local base operations or NOTAM issuing authority, or

b. By contacting the NOTAM Flight Service Station at 1-877-4-US-NTMS (1- 877-487- 6867) not more than 72 hours in advance, but not less than 24 hours for UAS operations prior to the operation. The issuing agency will require the:

1) Name and address of the pilot filing the NOTAM request

2) Location, altitude and operating area

3) Time and nature of the activity. Note: The NOTAM must identify actual coordinates and a Radial/DME fix of a prominent navigational aid, with a radius no larger than that where visual line of sight with the UA can be maintained. The NOTAM must be filed to indicate the defined operations area and periods of UA activity. NOTAMs for generalized, wide-area, or continuous periods are not acceptable.

II. FLIGHT STANDARDS SPECIAL PROVISIONS Failure to comply with any of the conditions and limitations of this COA will be grounds for the immediate suspension or cancellation of this COA.

1. Operations authorized by this COA are limited to UAS weighing less than 55 pounds, including payload. Proposed operations of any UAS weighing more than 55 pounds will require the Proponent to provide the FAA with a new airworthiness Certificate (if necessary), Registration N-Number, Aircraft Description, Control Station, Communication System Description, Picture of UAS and any Certified TSO components. Approval to operate the new UAS is contingent on acknowledgement from FAA of receipt of acceptable documentation.

2. External Load Operations, dropping or spraying aircraft stores, or carrying hazardous materials (including munitions) is prohibited.

3. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The COA 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 operating airspeed recommended by the aircraft manufacturer.

4. The Proponent should conduct and document initial training at a specific training site that will allow for the conduct of scenario-based training exercises. This training should foster a high level of flight proficiency and promote efficient, standardized coordination among pilots, visual observers, and ground crew members. To ensure safety and compliance, the training site should be is well clear of housing areas, roads, nonparticipating persons, and watercraft. When the Proponent has determined that sufficient training scenarios have been completed to achieve an acceptable level of competency, the Proponent is authorized to conduct UAS public aircraft operations in accordance with Title 49 USC §§ Part 40125 at any location within the National Airspace System under the provisions of this COA.

5. The UA must be operated within visual line of sight (VLOS) of the Pilot in Command (PIC) and or the visual observer (VO) at all times. This requires the PIC and VO to be able to use human vision unaided by any device other than corrective lenses, as specified on their FAA-issued airman medical certificate or equivalent medical certification as determined by the government entity conducting the PAO. The VO may be used to satisfy the VLOS requirement as long as the PIC always maintains VLOS capability.

6. This COA and all documents needed to operate the UAS and conduct operations in accordance with the conditions and limitations stated in this COA are hereinafter referred to as the operating documents. The Proponent must follow the procedures as outlined in the operating documents. If a discrepancy exists within the operating documents, the procedures outlined in the approved COA take precedence and must be followed. The Proponent may update or revise the operating documents, excluding the approved COA, as needed. It is the Proponent’s responsibility to track such revisions and present updated and revised operating documents to the Administrator or any law enforcement official upon request. The Proponent must also present updated and revised documents if they petition for extension or amendment to this COA. If the Proponent determines that any update or revision would affect the basis upon which the FAA granted this COA, then the Proponent must petition for an amendment to this COA. The FAA’s UAS Integration Office (AFS−80) may be contacted if questions arise regarding updates or revisions to the operating documents.

7. The operating documents must be accessible during UAS operations and made available to the Administrator and/or law enforcement upon request.

8. 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 COA. 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. The Proponent is responsible for maintaining and inspecting the UAS to ensure that it is in a condition for safe operation.

10. 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.

11. The Proponent must follow the UAS manufacturer’s maintenance; overhaul, replacement, inspection, and life limit requirements for the aircraft and aircraft components.

12. Each UAS operated under this COA must comply with all manufacturer safety bulletins.

13. Government entities conducting public aircraft operations (PAO) involve operations for the purpose of fulfilling a government function that meet certain conditions specified under Title 49 United States Code, Section 40102(a)(41) & 40125(a)(2). PAO is limited by the statute to certain government operations within U.S. airspace. These operations must comply with general operating rules including those applicable to all aircraft in the National Airspace System. Government entities may exercise their own internal processes regarding aircraft certification, airworthiness, pilot, aircrew, and maintenance personnel certification and training. If the government entity does not have an internal process for PIC certification, an acceptable equivalent is that PIC shall hold

a. Either an airline transport, commercial or private pilot certificate if UAS operations are within 5 nautical miles (NM) from an airport having an operational control tower, an airport having a published instrument flight procedure, but not having an operational control tower, or 2 NM from an airport not having a published instrument flight procedure or an operational control tower, or 2 NM from a heliport. The PIC must also meet the flight review requirements specified in 14 CFR § Part 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.

b. For UAS operations outside of these locations the government entity may utilize a ground based training course and successful completion of a FAA written examination at the private pilot level or higher (or an FAA-recognized equivalent). The PIC must also hold a current 2nd Class FAA airman medical certificate or equivalent medical certification as determined by the government entity conducting the PAO.

14. The Proponent may not permit any PIC to operate unless the PIC demonstrates the ability to safely operate the UAS in a manner consistent with how the UAS will be operated under this COA, including evasive and emergency maneuvers and maintaining appropriate distances from persons, vessels, vehicles and structures. PIC qualification flight hours and currency must be logged in a manner consistent with 14 CFR § Part 61.51(b). Flights for the purposes of training the Proponent’s PICs and VOs (training, proficiency, and experience-building) and determining the PIC’s ability to safely operate the UAS in a manner consistent with how the UAS will be operated under this COA are permitted under the terms of this COA. However, training operations may only be conducted during dedicated training sessions. During training, proficiency, and experience-building flights, all persons not essential for flight operations are considered nonparticipants, and the PIC must operate the UA with appropriate distance from nonparticipants in accordance with 14 CFR § Part 91.119.

15. Pilots are reminded to follow all federal regulations (e.g. remain clear of all Temporary Flight Restrictions). Additionally, operations over areas administered by the National Park Service, U.S. Fish and Wildlife Service, or U.S. Forest Service must be conducted in accordance with Department of Interior/US Fish & Wildlife Service requirements. (See 50 CFR §§ Part 27.34 and FAA Aeronautical Information Manual Section 4, paragraph 7-4-6.)

16. The presence of observers during flight operations, other than initial or recurrent pilot in-command and visual observer training is authorized given compliance with the following provisions:

a. Observers will receive a safety briefing that addresses the mission intent, safety barriers, non-interference with UAS mission personnel, and emergency procedures in the event of an incident or accident.

b. Observers will be directed to, and contained within, a specific observation point that minimized the risk of injury and ensures that they do not interfere with the UAS mission.

c. Observers must have a valid Federal Aviation Administration (FAA) second-class medical certificate issued under 14 CFR part 67; an FAA-recognized equivalent is an acceptable means of demonstrating compliance with this requirement.

d. Proponent will ensure that observers do not engage in conversations, discussions, or interviews that distract any crewmember or mission personnel from the performance of his/her duties or interfere in any way with the proper conduct of those duties.

e. Proponent will limit the number of observers to that which can be adequately monitored and protected by personnel and resources onsite.

f. Operation will be conducted in compliance with ALL of the existing provisions, conditions and mitigations of this COA.

17. UAS operations may only be conducted during the daytime and may not be conducted during night, as defined in 14 CFR § Part 1.1. All operations must be conducted under visual meteorological conditions (VMC). Flights under special visual flight rules (SVFR) are not authorized.

18. 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.

19. If the UAS loses communications or loses its GPS signal, the UA must return to a predetermined location within the defined operating area.

20. The PIC must abort the flight in the event of emergencies or flight conditions that could be a risk to persons and property within the operating area.

21. 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 than five minutes.

22. Documents used by the Proponent to ensure the safe operation of the UAS and any documents required under 14 CFR § Part 91.9 and Part 91.203 must be available to the PIC at the UAS Ground Control Station any time the aircraft is operating. These documents must be made available to the Administrator or any law enforcement official upon request.

23. The UA must remain clear and give way to all manned aviation operations and activities at all times.

24. The UAS may not be operated by the PIC from any moving vehicle unless the government entity conducting PAO has determined that such operations can be conducted without causing undue hazard to persons or property and has presented such safety procedures to the FAA. Safety procedures include, but not limited to, emergency procedures, lost link procedures, and consideration of terrain and obstructions that may restrict the ability to maintain visual line of sight. Operations must also comply with all applicable federal, state and local laws pertaining to operations from a moving vehicle.

25. All flight operations must be conducted at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures.

III. AIR TRAFFIC CONTROL SPECIAL PROVISIONS

A. Coordination Requirements.

1. Compliance with Standard Provisions, E. Notice to Airmen (NOTAM) satisfies the coordination requirement. Operator must cancel NOTAMs when UAS operations are completed or will not be conducted.

2. Coordination and de-confliction between Military Training Routes (MTRs) is the Proponent’s responsibility. When identifying an operational area, the Proponent must evaluate whether an MTR will be affected. In the event the UAS operational area overlaps (5 miles either side of centerline) an MTR, the operator will contact the scheduling agency in advance to coordinate and de-conflict. Approval from the scheduling agency is not required.

B. Communication Requirements. When operating in the vicinity of an airport without an operating control tower the PIC will announce operations on appropriate Unicom/CTAF frequencies alerting manned pilots of UAS operations.

C. Flight Planning Requirements. This COA will allow small UAS (55 pounds or less) operations during daytime VMC conditions only within Class G airspace under the following limitations:

1. At or below 400 feet AGL, and

2. Beyond the following distances from the airport reference point (ARP) of a public use airport, heliport, gliderport, or water landing port listed in the Airport/Facility Directory, Alaska Supplement, or Pacific Chart Supplement of the U.S. Government Flight Information Publications:

a. 5 nautical miles (NM) from an airport having an operational control tower, or

b. 3 NM from an airport having a published instrument flight procedure, but not having an operational control tower, or

c. 2 NM from an airport not having a published instrument flight procedure or an operational control tower, or

d. 2 NM from a heliport.

3. The PIC is responsible for identifying the appropriate ATC jurisdiction nearest to the area of operations defined by the NOTAM.

D. Procedural Requirements. This COA authorizes the Proponent to conduct UAS flight operations strictly within a “defined operating area” as identified under the required provision of Section E. Notice to Airmen (NOTAM) of this COA.

1. A “defined operating area” is described as a location identified by a Very High Frequency Omnidirectional Range (VOR) Radial/Distance Measuring Equipment (DME) fix. This location must have a defined perimeter that is no larger than that where visual line of sight with the UA can be maintained and a defined operational ceiling at or below 400’ Above the Ground (AGL).

2. UAS operations must remain within this “defined operating area”. The Proponent will discover and manage all risks and associated liabilities that exist within the defined operating area and all risks must be legitimately mitigated to assure the safety of people and property.

3. The UAS must remain within visual line of sight of the PIC and/or VO(s) at all times. The PIC and VO(s) must be positioned such that they can maintain sufficient visual contact with the UA in order to determine its attitude, altitude, and direction of flight. The PIC is responsible to ensure that the UA remains within the defined operating area. “Out of Sight”, or “Behind the Obstruction” flight operations are prohibited.

E. Emergency/Contingency Procedures.

1. Lost Link Procedures:

a. In the event of lost link, the UA must initiate a flight maneuver that ensures timely landing of the aircraft. Lost link airborne operations shall be predictable and the UA shall remain within the defined operating area filed in the NOTAM for that specific operation. In the event that the UA leaves the defined operating area, and the flight track of the UA could potentially enter controlled airspace, the PIC will immediately contact the appropriate ATC facility having jurisdiction over the controlled airspace to advise them of the UASs last known altitude, speed, direction of flight and estimated flight time remaining and the Proponent’s action to recover the UA.

b. Lost link orbit points will not coincide with the centerline of published Victor airways.

c. The UA lost link flight track will not transit or orbit over populated areas.

d. Lost link programmed procedures must de-conflict from all other unmanned operations within the operating area.

2. Lost Visual Line of Sight: If an observer loses sight of the UA, they must notify the PIC immediately. If the UA is visually reacquired promptly, the mission may continue. If not, the PIC will immediately execute the lost link procedures.

 3. Lost Communications: If communication is lost between the PIC and the observer(s), the PIC must immediately execute the lost link procedures.

IV. AUTHORIZATION This Certificate of Waiver or Authorization does not, in itself, waive any Title 14 Code of Federal Regulations, nor any state law or local ordinance. Should the proposed operation conflict with any state law or local ordinance, or require permission of local authorities or property owners, it is the responsibility of the University of Kentucky to resolve the matter. This COA does not authorize flight within in Restricted Areas, Prohibited Areas, Special Flight Rule Areas or the Washington DC Federal Restricted Zone (FRZ) without pre-approval. The University of Kentucky is hereby authorized to operate the Unmanned Aircraft System in the National Airspace System.

 

Public “Blanket” COA (Version 1.2)

STANDARD PROVISIONS
A. General.
The review of this activity is based upon current understanding of Unmanned Aircraft
System (UAS) operations and their impact on the National Airspace System (NAS).This
Certificate of Waiver or Authorization (COA) will not be considered a precedent for future
operations. As changes in, or understanding of, UAS operations occur, the associated
limitations and conditions may be adjusted.
All personnel engaged in the operation of the UAS in accordance with this authorization
must read and comply with the conditions, limitations, and provisions of this COA.
A copy of the COA including the special limitations must be immediately available to all
operational personnel at each operating location whenever UAS operations are being
conducted.
This COA may be canceled at any time by the Administrator, a person authorized to grant
the authorization, or a representative designated to monitor a specific operation. As a
general rule, this authorization may be canceled when it is no longer required, when there is
an abuse of its provisions, or when unforeseen safety factors develop. Failure to comply
with the authorization is cause for cancellation. All cancellations will be provided in writing
to the proponent.
During the time this COA is approved and active, a site safety evaluation/visit may be
accomplished to ensure COA compliance, assess any adverse impact on ATC or airspace,
and ensure this COA is not burdensome or ineffective. Deviations,
accidents/incidents/mishaps, complaints, etc. will prompt a COA review or site visit to
address the issue. Refusal to allow a site safety evaluation/visit may result in cancellation of
the COA. Note: This section does not pertain to agencies that have other existing
agreements in place with the FAA.
Public Aircraft Operations are defined by statutes 49 USC §40102(a)(41) and §40125.All
public aircraft operations conducted under a COA must comply with the terms of the
statutes.
B. Airworthiness Certification.
The unmanned aircraft must be shown to be airworthy to conduct flight operations in the
NAS. The proponent has made its own determination that the unmanned aircraft is
airworthy. The unmanned aircraft must be operated in strict compliance with all provisions
and conditions contained in the Airworthiness Safety Release (AWR), including all
documents and provisions referenced in the COA application.
1. A configuration control program must be in place for hardware and/or software changes
made to the UAS to ensure continued airworthiness. If a new or revised Airworthiness
Release is generated as a result of changes in the hardware or software affecting the
operating characteristics of the UAS, notify the UAS Integration Office via email at 9-
[email protected] of the changes as soon as practical.
a. Software and hardware changes should be documented as part of the normal
maintenance procedures. Software changes to the aircraft and control station as well
as hardware system changes are classified as major changes unless the agency has a
formal process accepted by the FAA. These changes should be provided to the UAS
Integration Office in summary form at the time of incorporation.
b. Major modifications or changes, performed under the COA, or other authorizations
that could potentially affect the safe operation of the system, must be documented
and provided to the FAA in the form of a new AWR, unless the agency has a formal
process, accepted by the FAA.
c. All previously flight proven systems, to include payloads, may be installed or
removed as required and that activity must be recorded in the unmanned aircraft and
ground control stations logbooks by persons authorized to conduct UAS
maintenance. Describe any payload equipment configurations in the UAS logbook
that will result in a weight and balance change, electrical loads, and or flight
dynamics, unless the agency has a formal process, accepted by the FAA.
d. For unmanned aircraft system discrepancies, a record entry should be made by an
appropriately rated person to document the finding in the logbook. No flights may
be conducted following major changes, modifications or new installations unless the
party responsible for certifying airworthiness has determined the system is safe to
operate in the NAS and a new AWR is generated, unless the agency has a formal
process, accepted by the FAA. The successful completion of these major changes,
modifications or new installations must be recorded in the appropriate logbook,
unless the agency has a formal process, accepted by the FAA.
2. The unmanned aircraft must be operated in strict compliance with all provisions and
conditions contained within the spectrum analysis assigned and authorized for use
within the defined operations area.
3. All items contained in the application for equipment frequency allocation must be
adhered to, including the assigned frequencies and antenna equipment characteristics. A
ground operational check to verify that the control station can communicate with the
aircraft (frequency integration check) must be conducted prior to the launch of the
unmanned aircraft to ensure any electromagnetic interference does not adversely affect
control of the aircraft
C. Safety of Flight.
1. The proponent or delegated representative is responsible for halting or canceling
activity conducted under the provisions of this COA if, at any time, the safety of
persons or property on the ground or in the air is in jeopardy, or if there is a failure to
comply with the terms or conditions of this authorization.
2. Sterile Cockpit Procedures.
a. No crewmember may perform any duties during a critical phase of flight not
required for the safe operation of the aircraft.
b. Critical phases of flight include all ground operations involving:
1) Taxi (movement of an aircraft under its own power on the surface of an airport),
2) Take-off and landing (launch or recovery), and
3) All other flight operations in which safety or mission accomplishment might be
compromised by distractions.
c. No crewmember may engage in, nor may any pilot in command (PIC) permit, any
activity during a critical phase of flight which could:
1) Distract any crewmember from the performance of his/her duties, or
2) Interfere in any way with the proper conduct of those duties.
d. The pilot and/or the PIC must not engage in any activity not directly related to the
operation of the aircraft. Activities include, but are not limited to: operating UAS
sensors or other payload systems.
e. The use of cell phones or other electronic devices is restricted to communications
pertinent to the operational control of the unmanned aircraft and any required
communications with Air Traffic Control.
3. See-and-Avoid.
a. Unmanned aircraft have no on-board pilot to perform see-and-avoid responsibilities;
therefore, when operating outside of active restricted and warning areas approved
for aviation activities, provisions must be made to ensure that an equivalent level of
safety exists for unmanned operations. Adherence to 14 CFR Part 91 §91.111,
§91.113 and §91.115, is required.
1) The PIC is responsible:
(a) To remain clear and give way to all manned aviation operations and
activities at all times,
(b) For the safety of persons or property on the surface with respect to the
UAS operation,
(c) For ensuring that there is a safe operating distance between aviation
activities and unmanned aircraft (UA) at all times, and
(d) For operating in compliance with CFR Parts 91.111, 91.113 and 91.115
2) The PIC is responsible to ensure that any visual observer (VO):
(a) Can perform their required duties,
(b) Are able to see the UA and the surrounding airspace throughout the entire
flight, and
(b) Are able to provide the PIC with the UA’s flight path and proximity to
all aviation activities and other hazards (e.g., terrain, weather,
structures) sufficiently for the PIC to exercise effective control of the
UA to prevent the UA from creating a collision hazard.
3) VO(s) must be used at all times and must maintain instantaneous communication
with the PIC. Electronic messaging or texting is not permitted during flight
operations.
4) The use of multiple successive VO(s) (daisy chaining) is prohibited.
5) VO(s) must be able to communicate clearly to the PIC any instructions required
to remain clear of conflicting traffic.
6) All VO(s) must complete sufficient training to communicate to the PIC any
information required to remain clear of conflicting traffic, terrain, and
obstructions, maintain proper cloud clearances, and provide navigational
awareness. This training, at a minimum, must include knowledge of:
(a) Their responsibility to assist PICs in complying with the requirements of:
· Section 91.111, Operating Near Other Aircraft,
· Section 91.113, Right-of-Way Rules: Except Water Operations,
· Section 91.115, Right-of-Way Rules: Water Operations,
· Section 91.119, Minimum Safe Altitudes: General, and
· Section 91.155, Basic VFR Weather Minimums
(b) Air traffic and radio communications, including the use of approved air
traffic control (ATC)/pilot phraseology
(c) Appropriate sections of the Aeronautical Information Manual (AIM)
b. The proponent must not operate in Restricted Areas, Prohibited Areas, Special
Flight Rule Areas or the Washington DC Flight Restricted Zone. Such areas are
depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/.
Additionally, aircraft operators should beware of and avoid other areas identified in

Notices to Airmen (NOTAMS) that restrict operations in proximity to Power Plants,
Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes,
National Parks, The Disney Resorts, Stadiums, Emergency Services, Military or
other Federal Facilities unless approval is received from the appropriate authority
prior to the UAS Mission.
c. The unmanned aircraft will be registered prior to operations in accordance with Title
14 of the Code of Federal Regulations.
D. Reporting Requirements
1. Documentation of all operations associated with UAS activities is required regardless
of the airspace in which the UAS operates. NOTE: Negative (zero flights) reports are
required.
2. The proponent must submit the following information on a monthly basis to
UAS COA On-Line:
a. Name of proponent, and aircraft registration number,
b. UAS type and model,
c. All operating locations, to include city name and latitude/longitude,
d. Number of flights (per location, per aircraft),
e. Total aircraft operation hours,
f. Takeoff or landing damage, and
g. Equipment malfunction. Required reports include, but are not limited to, failures or
malfunctions to the:
1) Control station
2) Electrical system
3) Fuel system
4) Navigation system
5) On-board flight control system
6) Powerplant
3. The number and duration of lost link events (control, performance and health
monitoring, or communications) per UAS, per flight.
4. Incident/Accident/Mishap Reporting
After an incident or accident that meets the criteria below, and within 24 hours of that
incident, accident or event described below, the proponent must provide initial
notification of the following to the FAA via email at mailto: 9-AJV-115-
[email protected] and via the UAS COA On-Line forms (Incident/Accident).
a. All accidents/mishaps involving UAS operations where any of the following occurs:
1) Fatal injury, where the operation of a UAS results in a death occurring within 30
days of the accident/mishap
2) Serious injury, where the operation of a UAS results in:
(a) Hospitalization for more than 48 hours, commencing within 7 days from the
date of the injury was received;
(b) A fracture of any bone (except simple fractures of fingers, toes, or nose);
(c) Severe hemorrhages, nerve, muscle, or tendon damage;
(d) Involving any internal organ; or
(e) Involves second- or third-degree burns, or any burns affecting more than 5
percent of the body surface.
3) Total unmanned aircraft loss
4) Substantial damage to the unmanned aircraft system where there is damage to
the airframe, power plant, or onboard systems that must be repaired prior to
further flight
5) Damage to property, other than the unmanned aircraft.
b. Any incident/mishap that results in an unsafe/abnormal operation including but not
limited to
1) A malfunction or failure of the unmanned aircraft’s on-board flight control
system (including navigation)
2) A malfunction or failure of ground control station flight control hardware or
software (other than loss of control link)
3) A power plant failure or malfunction
4) An in-flight fire
5) An aircraft collision involving another aircraft.
6) Any in-flight failure of the unmanned aircraft’s electrical system requiring use
of alternate or emergency power to complete the flight
7) A deviation from any provision contained in the COA
8) A deviation from an ATC clearance and/or Letter(s) of Agreement/Procedures
9) A lost control link event resulting in
(a) Fly-away, or
(b) Execution of a pre-planned/unplanned lost link procedure.
c. Initial reports must contain the information identified in the COA On-Line
Accident/Incident Report.
d. Follow-on reports describing the accident/incident/mishap(s) must be submitted by
providing copies of proponent aviation accident/incident reports upon completion of
safety investigations.
e. Civil operators and Public-use agencies (other than those which are part of the
Department of Defense) are advised that the above procedures are not a substitute
for separate accident/incident reporting required by the National Transportation
Safety Board under 49 CFR Part 830 §830.5.
f. For other than Department of Defense operations, this COA is issued with the
provision that the FAA be permitted involvement in the proponent’s
incident/accident/mishap investigation as prescribed by FAA Order 8020.11,
Aircraft Accident and Incident Notification, Investigation, and Reporting.
E. Notice to Airmen (NOTAM).
A distant (D) NOTAM must be issued when unmanned aircraft operations are being
conducted unless notification of UAS operations will compromise the safety of the public
agency. This requirement may be accomplished:
1. Through the proponent’s local base operations or NOTAM issuing authority, or
2. By contacting the NOTAM Flight Service Station at 1-877-4-US-NTMS (1-877-487-
6867) not more than 72 hours in advance, but not less than 24 hours for UAS operations
prior to the operation. The issuing agency will require the:
a. Name and address of the pilot filing the NOTAM request
b. Location, altitude and operating area
c. Time and nature of the activity.
Note: The NOTAM must identify actual coordinates and a Radial/DME fix of a prominent
navigational aid, with a radius no larger than that where visual line of sight with the UA
can be maintained. The NOTAM must be filed to indicate the defined operations area and
periods of UA activity. NOTAMs for generalized, wide-area, or continuous periods are not
acceptable.
3. Due to the immediacy of some tactical operations, it is understood by the Federal
Aviation Administration that this NOTAM notification may be reduced to no less than
30 minutes prior to these operations.
FLIGHT STANDARDS SPECIAL PROVISIONS
Failure to comply with any of the conditions and limitations of this COA will be grounds for
the immediate suspension or cancellation of this COA.
1. Operations authorized by this COA are limited to UAS weighing less than 55 pounds,
including payload. Proposed operations of any UAS weighing more than 55 pounds will
require the proponent to provide the FAA with a new airworthiness Certificate (if
necessary), Registration, Aircraft Description, Control Station, Communication System
Description, Picture of UAS and any Certified TSO components. Approval to operate the
new UAS is contingent on acknowledgement from FAA of receipt of acceptable
documentation.
2. External Load Operations, dropping or spraying aircraft stores, or carrying hazardous
materials (including munitions) is prohibited.
3. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The COA
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 operating airspeed recommended by the aircraft manufacturer.
4. The proponent shall conduct and document initial training at a specific training site that will
allow for the conduct of scenario-based training exercises. This training should foster a high
level of flight proficiency and promote efficient, standardized coordination among pilots,
visual observers, and ground crew members. To ensure safety and compliance, the training
site should be well clear of housing areas, roads, non-participating persons, and watercraft.
When the proponent has determined that sufficient training scenarios have been completed
to achieve an acceptable level of competency, the proponent is authorized to conduct UAS
public aircraft operations in accordance with Title 49 USC §§ Part 40125 at any location
within the National Airspace System under the provisions of this COA.
5. The UA must be operated within visual line of sight (VLOS) of the Pilot in Command
(PIC) and or the visual observer (VO) at all times. This requires the PIC and VO to be able
to use human vision unaided by any device other than corrective lenses, as specified on
their FAA-issued airman medical certificate or equivalent medical certification as
determined by the government entity conducting the PAO. The VO may be used to satisfy
the VLOS requirement as long as the PIC always maintains VLOS capability.
6. This COA and all documents needed to operate the UAS and conduct operations in
accordance with the conditions and limitations stated in this COA are hereinafter referred to
as the operating documents. The Proponent must follow the procedures as outlined in the
operating documents. If a discrepancy exists within the operating documents, the
procedures outlined in the approved COA take precedence and must be followed. The
proponent may update or revise the operating documents, excluding the approved COA, as
needed. It is the proponent’s responsibility to track such revisions and present updated and
revised operating documents to the Administrator or any law enforcement official upon
request. The proponent must also present updated and revised documents if they petition for
extension or amendment to this COA. If the proponent determines that any update or
revision would affect the basis upon which the FAA granted this COA, then the proponent
must petition for an amendment to this COA. The FAA’s UAS Integration Office (AFS−80)
may be contacted if questions arise regarding updates or revisions to the operating
documents.
7. The operating documents must be accessible during UAS operations and made available to
the Administrator and/or law enforcement upon request.
8. 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 COA. Functional test
flights may only be conducted by a PIC with a VO and essential ground crew, 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. The proponent is responsible for maintaining and inspecting the UAS to ensure that it is in a
condition for safe operation.
10. 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.
11. The proponent must follow the UAS manufacturer’s maintenance; overhaul, replacement,
inspection, and life limit requirements for the aircraft and aircraft components.
12. Each UAS operated under this COA must comply with all manufacturer safety bulletins.
13. Government entities conducting public aircraft operations (PAO) involve operations for the
purpose of fulfilling a government function that meet certain conditions specified under
Title 49 United States Code, Section 40102(a)(41) & 40125(a)(2). PAO is limited by the
statute to certain government operations within U.S. airspace. These operations must
comply with general operating rules including those applicable to all aircraft in the National
Airspace System. Government entities may exercise their own internal processes regarding
aircraft certification, airworthiness, pilot, aircrew, and maintenance personnel certification
and training.
14. The Proponent may not permit any PIC to operate unless the PIC demonstrates the ability to
safely operate the UAS in a manner consistent with how the UAS will be operated under
this COA, including evasive and emergency maneuvers and maintaining appropriate
distances from persons, vessels, vehicles and structures. PIC qualification flight hours and
currency must be logged in a manner consistent with 14 CFR § Part 61.51(b). Flights for
the purposes of training the proponent’s PICs and VOs (training, proficiency, and
experience-building) and determining the PIC’s ability to safely operate the UAS in a
manner consistent with how the UAS will be operated under this COA are permitted under
the terms of this COA. However, training operations may only be conducted during
dedicated training sessions. During training, proficiency, and experience-building flights,
all persons not essential for flight operations are considered nonparticipants, and the PIC
must operate the UA with appropriate distance from nonparticipants in accordance with 14
CFR § Part 91.119.
15. Pilots are reminded to follow all federal regulations (e.g. remain clear of all Temporary
Flight Restrictions). Additionally, operations over areas administered by the National Park
Service, U.S. Fish and Wildlife Service, or U.S. Forest Service must be conducted in
accordance with Department of Interior/US Fish & Wildlife Service requirements. (See 50
CFR §§ Part 27.34 and FAA Aeronautical Information Manual Section 4, paragraph 7-4-6.)
16. The presence of observers (i.e. spectators) during flight operations, other than initial or
recurrent pilot-in-command and visual observer training is authorized given compliance
with the following provisions:
a. Observers will receive a safety briefing that addresses the mission intent, safety barriers,
non-interference with UAS mission personnel, and emergency procedures in the event
of an incident or accident.
b. Observers will be directed to, and contained within, a specific observation point that
minimized the risk of injury and ensures that they do not interfere with the UAS
mission.
c. Proponent will ensure that observers do not engage in conversations, discussions, or
interviews that distract any crewmember or mission personnel from the performance of
his/her duties or interfere in any way with the proper conduct of those duties.
d. Proponent will limit the number of observers to that which can be adequately monitored
and protected by personnel and resources onsite.
e. Operation will be conducted in compliance with ALL of the existing provisions,
conditions and mitigations of this COA.
17. UAS operations may be conducted during the day or night (see Flight Standards Special
Provision 25 for night operations) as defined in 14 CFR § Part 1.1. All operations must be
conducted under visual meteorological conditions (VMC). Flights under special visual
flight rules (SVFR) are not authorized.
18. 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.
19. If the UAS loses communications or loses its GPS signal, the UA must return to a predetermined
location within the defined operating area.
20. The PIC must abort the flight in the event of emergencies or flight conditions that could be
a risk to persons and property within the operating area.
21. 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 than five minutes.
22. Documents used by the proponent to ensure the safe operation of the UAS and any
documents required under 14 CFR § Part 91.9 and Part 91.203 must be available to the PIC
at the UAS Ground Control Station any time the aircraft is operating. These documents
must be made available to the Administrator or any law enforcement official upon request.
23. The UA must remain clear and give way to all manned aviation operations and activities at
all times.
24. The UAS may not be operated by the PIC from any moving vehicle unless the government
entity conducting PAO has determined that such operations can be conducted without
causing undue hazard to persons or property and has presented such safety procedures to
the FAA. Safety procedures include, but not limited to, emergency procedures, lost link
procedures, and consideration of terrain and obstructions that may restrict the ability to
maintain visual line of sight. Operations must also comply with all applicable federal, state
and local laws pertaining to operations from a moving vehicle.
25. Small UAS operations may be conducted at night, as defined in 14 CFR § 1.1, provided:
a. All operations under the approved COA must use one or more visual observers (VO);
b. Prior to conducting operations that are the subject of the COA, the remote pilot in
command (PIC) and VO must be trained to recognize and overcome visual illusions
caused by darkness, and understand physiological conditions which may degrade
night vision. This training must be documented and must be presented for inspection
upon request from the Administrator or an authorized representative;
c. The sUA must be equipped with lighted anti-collision lighting visible from a distance
of no less than 3 statute miles. The intensity of the anti-collision lighting may be
reduced if, because of operating conditions, it would be in the interest of safety to do
so.
Note: Night, as defined in 14 CFR § 1.1 is equal to approximately 30 minutes after sunset
until 30 minutes before sunrise.
AIR TRAFFIC CONTROL SPECIAL PROVISIONS
A. Coordination Requirements.
1. Compliance with Standard Provisions, E. Notice to Airmen (NOTAM) satisfies the
coordination requirement. Operator must cancel NOTAMs when UAS operations
are completed or will not be conducted.
2. Coordination and de-confliction between Military Training Routes (MTR) and
Special Use Airspace (SUA) is the operator’s responsibility. When identifying an
operational area the operator must evaluate whether an MTR or SUA will be
affected. In the event the UAS operational area overlaps an MTR or SUA, the
operator will contact the scheduling agency in advance to coordinate and deconflict.
Approval from the scheduling agency for MTR and non-regulatory SUA
is not required. Scheduling agencies for MTRs are listed in the Area Planning
AP/1B Military Planning Routes North and South America. Scheduling agencies
for SUAs are listed in the FAA JO 7400.8.
B. Communication Requirements.
When operating in the vicinity of an airport without an operating control tower the PIC will
announce operations on appropriate Unicom/CTAF frequencies alerting manned pilots of
UAS operations.
C. Flight Planning Requirements.
This COA will allow small UAS (weighing less than 55 pounds) operations during daytime
VMC conditions only within Class G airspace under the following limitations:
a. At or below 400 feet AGL, and
b. Beyond the following distances from the airport reference point (ARP) of a public use
airport, heliport, gliderport, or water landing port listed in the Airport/Facility Directory,
Alaska Supplement, or Pacific Chart Supplement of the U.S. Government Flight
Information Publications:
1) 5 nautical miles (NM) from an airport having an operational control tower, or
2) 3 NM from an airport having a published instrument flight procedure, but not
having an operational control tower, or
3) 2 NM from an airport not having a published instrument flight procedure or an
operational control tower, or
4) 2 NM from a heliport.
c. The PIC is responsible for identifying the appropriate ATC jurisdiction nearest to the
area of operations defined by the NOTAM.
D. Procedural Requirements.
1. This COA authorizes the proponent to conduct UAS flight operations strictly within a
“defined incident perimeter” as identified under the required provision of Section IE.
Notice to Airmen (NOTAM) of this COA.
2. All Flights operations must be conducted at least 500 feet from all nonparticipating
persons, vessels, vehicles, and structures unless:
a. A “defined operating area” is described as a location identified by a Very High
Frequency Omnidirectional Range (VOR) Radial/Distance Measuring Equipment
(DME) fix. This location must have a defined perimeter that is no larger than that
where visual line of sight with the UA can be maintained and a defined
operational ceiling at or below 400’ Above the Ground (AGL).
b. The “defined incident perimeter” is established by means of barriers, structures or
public safety officials authorized to sufficiently protect nonparticipating persons
from entering the perimeter of the operating area.
c. UAS operations must remain within this “defined incident perimeter” controlled
by law enforcement at or below 400 feet AGL. The proponent and supporting law
enforcement/first responder/safety agencies will discover and manage all risks
and associated liabilities that exist within the defined operating perimeter and all
risks must be legitimately mitigated to assure the safety of people and property.
d. The PIC has made a safety assessment of the risk of operating closer to those
objects and determined that it does not present an undue hazard and flight
operations will not be conducted directly over nonparticipating persons. The PIC,
VO, operator trainees or essential persons are not considered nonparticipating
persons under this provision.
E. Emergency/Contingency Procedures.
1. Lost Link Procedures:
a. In the event of lost link, the UA must initiate a flight maneuver that ensures timely
landing of the aircraft. Lost link airborne operations shall be predictable and the UA
shall remain within the defined operating area filed in the NOTAM for that specific
operation. In the event that the UA leaves the defined operating area, and the flight
track of the UA could potentially enter controlled airspace, the PIC will immediately
contact the appropriate ATC facility having jurisdiction over the controlled airspace
to advise them of the UASs last known altitude, speed, direction of flight and
estimated flight time remaining and the Proponent’s action to recover the UA.
b. Lost link orbit points will not coincide with the centerline of published Victor
airways.
c. The UA lost link flight track will not transit or orbit over populated areas.
d. Lost link programmed procedures must de-conflict from all other unmanned
operations within the operating area.
2. Lost Visual Line of Sight:
A VO loses sight of the UA, they must notify the PIC immediately. If the UA is visually
reacquired promptly, the mission may continue. If not, the PIC will immediately
execute the lost link procedures.
3. Lost Communications:
If communication is lost between the PIC and the VO(s), the PIC must immediately
execute the lost link procedures.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Latest posts by Jonathan Rupprecht (see all)

How to Get Your $5 Drone Registration Refund & Info Deleted.

drone-registration-refund

Brief Background

In February 2012, Congress passed the FAA Modernization and Reform Act of 2012. In this Act, Section 336 told the FAA to not create a rule or regulation governing model aircraft that meet all 5 elements. This is not all model or recreational aircraft, but ONLY those that meet all of the qualifications listed in Section 336.

The FAA created a set of drone registration regulations back in the fall of 2015 that applied to model aircraft and non-model aircraft. On December 24, 2015, John Taylor, along with my help, sued the FAA in the D.C. Circuit Court of Appeals. For an in-depth discussion on the case, read my complete guide to the Taylor v. FAA lawsuit.

On May 19, 2017, the D.C. Circuit ruled “that Taylor’s petition for review of the Registration Rule be granted and the Registration Rule to the extent it applies to model aircraft be vacated[.]” The FAA had a chance to appeal the case, but they did not so on July 3, 2017, the D.C. Circuit Court of Appeals ruling went into effect. Shortly after the ruling went into effect, the FAA made an announcement that you can request a $5 refund AND also have your information deleted.

 

FAA’s Drone Refund/ Info Delete Announcement

Here is what the announcement said:

The FAA is providing the following updated information regarding the Small UAS Registration and Marking interim final rule as a result of a recent decision (PDF) by the U.S. Court of Appeals for the District of Columbia Circuit regarding the small UAS registration program.

The court’s decision invalidated the registration requirement as it applies to certain model aircraft that meet the definitional and operational requirements provided in section 336 of the FAA Modernization and Reform Act (PDF). Owners of model aircraft which are operated in compliance with section 336 are not required to register. Owners of all other small unmanned aircraft, including newly-purchased unmanned aircraft not operated exclusively in compliance with section 336, remain subject to the registration requirement. The FAA continues to encourage voluntary registration for all owners of small unmanned aircraft.

The FAA is working on a final rule with respect to registration and marking that will implement the court’s decision. In the meantime, if you are an owner operating exclusively in compliance with section 336 and you wish to delete your registration and receive a refund of your registration fee, you may do so by accessing a registration deletion and self-certification form (PDF) and mailing it to the FAA at the address designated on the form. Owners who already received a refund during the initial grace period are not eligible to receive a refund. This form has been submitted to the Office of Management and Budget for approval of the information collection.

Who Does This Apply To?

The D.C. Circuit’s ruling applied ONLY to recreational flyers who fall within the protections of Section 336. This did NOT apply to commercial flyers. Not all recreational flyers fall into the Section 336 protected category. I would say many are actually Part 107 recreational flyers who ARE required to fly with a registered drone. Basically, flying recreationally does not by itself mean you are in the protected class. See my discussion on Part 107 recreational vs. Section 336 recreational for a more in-depth discussion.

Where Does the FAA go From Here?

The announcement said, “The FAA is working on a final rule with respect to registration and marking that will implement the court’s decision.” The rulemaking process to create regulations takes a long time to complete. You are looking at roughly 3 years at a minimum. So it looks like the FAA might be moving in the direction to fix the regulations in Part 48 that speak to model aircraft. (E.g. 14 CFR 48.100 “Required information: Individuals intending to use the small unmanned aircraft exclusively as a model aircraft.”)

Additionally, I don’t think this will happen anytime soon because the FAA has enough on its plate trying to get out the over people regulations and extended operations regulations. Constraining those efforts is President Trump’s executive order requiring 2 regulations to be repealed for every new regulation created unless an exemption is obtained from the Office of Management and Budget.

 

Words of Warning Before Filling it Out

1. Can you really trust the FAA with your bank account information?  

You have to give the FAA your name, address, and financial institution information.  Kinda messed up if you ask me. You have to give MORE confidential information to the FAA to get the $5 back and information deleted that was illegally obtained. I wouldn’t waste my time for the $5. The deletion of the personal information is the only thing I would be interested in.

 

2. By signing this document, you could create problems for yourself in the future.

The instructions say, “On the first page, in order to self-certify, please check each applicable stipulation in the list of section 336 provisions. If each provision is not checked, your record deletion and refund will not be processed.” There are multiple problematic statements in this document which could cause problems down the line in future enforcement actions. I’m not going to get into all the problems or why there are problems because at the end of the day, you are not my client and I’m not your attorney. If you want to find out more about the problems, you might want to hire an aviation attorney to find out.

 

The delete registration and request refund document is located here.

 

5 Evidences of the FAA Trying to Prevent Refunds and Deregistration.

1. The FAA forces you to sign a certification which can cause you legal problems.

The refund form says,I hereby certify that I always operate exclusively in compliance with all of the following provisions of section 336” which has a deterring effect on people requesting a refund and information being deleted. People will say to themselves, “Um, I don’t know about this. This certification could come back to bite me. I just won’t sign it.”

2. To Get Your $5 Back, You MUST Give the FAA More Information (Sensitive Financial Information).

How many of you feel comfortable giving out financial info? Not many. But can the federal government be trusted with your information? Just ask the 4 million federal government employees who had their data compromised in 2015 by Chinese hackers.

3. You Must Mail in the Forms.

The FAA prides itself in trying to be innovative and cutting edge. The registration process could be conveniently done online with a credit card. Contrasting the “streamlined” registration to this now “undermined” de-registration process, the FAA has reverted to requiring people to actually mail in the paperwork. You can’t submit the information online. You can’t email in a scan.

You have to find an envelope, some stamps, and go out of your way to drop off the letter. You aren’t even getting $5 back because you are having to pay for a stamp to get your money back and maybe expend gas to drive the letter to the post office! You have to spend money to get your illegally taken money. Even this Mashable article pointed this crazy situation out,  “[I] had to figuratively hop in a time machine and travel to a place where all government facilities are connected via Pony Express. It’s remarkable how easy it is to give the government money and how hard it is for them to give it back.”

Why can’t we use that convenient “streamlined” registration portal that was already created? Furthermore, won’t this mail in plan be a waste of taxpayer resources? Some poor FAA employees, paid for by US tax payer dollars, are going to have to go through it all and enter the information (which will no doubt result in some clerical errors to be resolved by some poor citizen).

4. FAA Published Nothing in the Federal Register.

The FAA never published a notice in the federal register of the new refund and de-registration process; however, the FAA DID publish in the federal register, five times, information relating to the registration process:

5. The FAA Did Not Email Everyone.

The FAA has everyone’s email on record. They did not email any of the hobbyists. So simple. But no.

 


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Latest posts by Jonathan Rupprecht (see all)

How high can a model aircraft fly?

 

The Academy of Model Aeronautics received a letter clarifying the issue that has been raised by many in the model aircraft community.2

How high can I fly my model aircraft and not get in trouble with the FAA?

Let’s look at Section 336 of the FAA Modernization and Reform Act of 2012 to set the context.

Section 336

(a) 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, if—

(1) the aircraft is flown strictly for hobby or recreational
use;

(2) the aircraft is operated in accordance with a community based
set of safety guidelines and within the programming
of a nationwide community-based organization;

(3) 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;

(4) the aircraft is operated in a manner that does not
interfere with and gives way to any manned aircraft; and

(5) 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 (model aircraft
operators flying from a permanent location within 5 miles of
an airport should establish a mutually-agreed upon operating
procedure with the airport operator and the airport air traffic
control tower (when an air traffic facility is located at the
airport)).

(b) 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.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model
aircraft’’ means 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.

Important Points about Section 336

The first thing you should be aware of is that this section was specifically talking to the FAA, not model aircraft operators. The FAA acts in some regards like it was a section directed at model aircraft flyers. See my article Why the FAA’s Drone Registration Requirements Are ILLEGAL

Secondly, the section does NOT prohibit model aircraft flyers from doing anything else who fall into this category.

Thirdly, this section specifically lists out multiple requirements which ALL must be met. Many in the community are under the impression that flying recreationally automatically has them fall into the protections of 336 when that is NOT the case. I have a section explaining this in my Taylor v. FAA (drone registration lawsuit) article. Many recreational flyers are most likely Part 107 recreational flyers which has all sorts of requirements.

Fourthly, this section only applies to the FAA, not other federal agencies or state drone laws. To help comply with the state laws, I created a page listing out as many state drone laws as I could find.

With this in mind, let’s dive into the letter.

 

Text of the Letter from the FAA to the Academy of Model Aeronautics

Dear Mr. Mathewson:

 

This letter addresses whether unmanned aircraft flown under the model aircraft provisions of Section 336 of the 2012 FAA Modernization and Reform Act must be operated below 400 feet above ground level (AL). As stated in the FAA’s Interpretation of the Special Rule for Model Aircraft, and in historical references below, the 400ft may be flown consistently with Section 336 and agency guidance at altitudes above 400 feet when following a community-based organization’s safety guidelines.

The FAA has a long history of guidance advising model aircraft operators to fly below 400 feet AGL to minimize hazard to full-scale aircraft in flight. in 1981 the FAA published Advisory Circular (AC) 91–57 which “outline[d], and encourage[d] voluntary compliance with, safety standards for model aircraft operators” for the stated purpose of reducing the potential for model aircraft posing a hazard to full-scale aircraft in flight and people and property on the ground. In the AC the FAA cautioned: “Do not fly model aircraft higher than 400ft above the surface.”

The FAA reiterated these recommendations in a 2007 Federal Register notice discussing unmanned aircraft operations. The notice stated “[m]odel aircraft should be flown below 400 feet above the surface to avoid other aircraft in flight.” Finally, in a 2015 update to AC 91-57 the FAA advised model aircraft operators to “follow best practices including limiting operations to 400ft [AGL].”

Section 336, the provision specifically addressing model aircraft in the 2012 FAA Modernization and Reform Act, does not contain a definitive altitude limitation for model aircraft operations. Rather, it requires operation of model aircraft “in accordance with a community-based set of safety guidelines….” Community-based organizations, such as the Academy of Model Aeronautics, may establish altitude limitations in their safety guidelines that exceed the FAA’s 400ft AGL altitude recommendation.

Although such safety guidelines may provide for flight above 400 feet AGL, Section 336 also protects the safety of manned aircraft operations by requiring that model aircraft not interfere with and give way to manned aircraft. The state also explicitly affirms that the FAA may pursue enforcement action against model aircraft operators who endanger the safety of the NAS.

Sincerely,

Earl Lawrence

Director

Unmanned Aircraft Systems Integration Office

Part 107 Operators- How High Can They Go?

§107.51   Operating limitations for small unmanned aircraft.

A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system:

(a) The groundspeed of the small unmanned aircraft may not exceed 87 knots (100 miles per hour).

(b) The altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless the small unmanned aircraft:

(1) Is flown within a 400-foot radius of a structure; and

(2) Does not fly higher than 400 feet above the structure’s immediate uppermost limit.

This is what is looks like graphically. Keep in mind that when operating under Part 107 that you need to stay 500ft below and 2,000ft horizontally to any clouds.

Summary

Flying over 400ft AGL as a model aircraft flyer meeting all the requirements of 336 is not an automatic violation, but under certain facts, it could be considered to be endangering the safety of the national airspace (like when flying close to an airport traffic pattern).  Additionally, if you are a recreational flyer NOT meeting all the requirements of Section 336, you will fall under Part 107 and must meet all of its requirements (i.e. remote pilot certificate and registration).


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Latest posts by Jonathan Rupprecht (see all)

Complete Guide to Taylor v. FAA (Drone Registration Lawsuit)

Summary of the Drone Registration Lawsuit

drone-registration-lawsuitJohn Taylor and some other attorneys (myself being one of them) challenged the FAA. There were three cases initially filed and consolidated. The basic way to understand the issues in all three cases is Section 336 of the FAA Modernization and Reform Act of  2012 which says 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 FAA switching interpretations from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule. (No rule or regulation).
  • The creation of Part 48 was a regulation “regarding model aircraft[;]” thus, it is illegal.
  • The switching interpretations to apply the Special Flight Rules Area around D.C. to model aircraft is an interpretive rule in violation of 336.

To read more drone law cases, go to my Drone Lawsuit/Litigation Database.

Table of Contents

Note: the FAA created a program to get your $5 registration refund and also your data deleted from the registry. 

Why This Drone Registration Lawsuit Was Important

The reason why this case is important is that this is the first real high-level court with a substantive ruling.

This is a federal circuit court – right below the United States Supreme Court.

This was a short unanimous decision with no concurring or dissenting opinions. That is sending a big message to the FAA that this is settled law.

 

 

Who Is Affected By This Ruling?

This ruling is only for those flying their aircraft in accord with Section 336. This ruling does NOT apply to commercial or public aircraft.  This means the model aircraft being flown must be:

(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.

AND

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) 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;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) 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 (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

 

Keep in mind that just because you are flying recreationally does NOT mean you are in this protected category. A great example is people flying recreationally but not in accord with a community-based organization’s safety guidelines. These people are really recreational flyers who are operating under Part 107.  See below in the myths and misconceptions area for more info.

Also, the ruling was regarding the application of a NEW regulation towards model aircraft, but the court never ruled on whether the FAA could apply Part 47 (the already created paper based form of registration) to Section 336 model aircraft.

Where Are We Going from Here?

The FAA can choose to ask for a rehearing, but the D.C. Circuit Handbook of Practice says, “[v]ery few petitions for rehearing are granted. Sanctions may be imposed as a penalty for filing a petition for rehearing found to be wholly without merit.”

Another option is to file a petition to the United States Supreme Court. Something like 1-2% of the cases appealed to the Supreme Court are granted certiorari to be argued at the U.S. Supreme Court. This means that there is a high chance this is the final stop for this case.

Additionally, this is NOT the only case. There are two other cases out there!

Taylor v. FAA – Part 2

There is a fourth case Taylor filed that was consolidated with Electronic Privacy Information Center‘s challenge. The fourth case can be summed up as Part 101 is a regulation created “regarding model aircraft.” Part 101 was literally a copy-paste of Part 336 which makes it a per se violation.

 

Why was this 4th lawsuit filed?

 

The big reason why is the FAA can cause a lot of problems by creating interpretations of the different portions of Part 101 and if challenged in court, they would have a high chance of winning under Chevron deference. 

 

The FAA could create some interpretation saying a community-based organization must meet such-n-such standards for it to be recognized or they could say within line of sight means no first person view flying but only using your eyeballs.

 

Based upon the court’s ruling, there is a chance Part 101 will be struck down. The FAA will likely lose a second time.

The Academy of Model Aeronautics Lawsuit

The Academy of Model Aeronautics filed a lawsuit in August 2014 challenging the FAA’s model aircraft interpretation. The case has sat in abeyance but recently, the AMA has indicated they will move forward with the case. I’m not sure why it has just lingered in the D.C. Circuit for 16 months.

 

How the Court Ruled:

Taylor’s Arguments

Court’s Ruling

The creation of Part 48 was a regulation.“[T]he 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. …. In short, the Registration Rule is a rule regarding model aircraft.”
The FAA switching interpretation from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule.Footnote 1. “Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.”
The interpretation regarding the Special Flight Rules Area around D.C. is an interpretation in violation of 336.“We need not consider that question because Taylor’s challenge is untimely.”

Issues Raised in the Drone Registration Lawsuit the Court did NOT Rule On.

  • Whether the FAA has jurisdiction to regulate the lower portions of the sky?
  • Whether the interpretation now requiring registration under Part 47 is in violation of 336?
  • Whether the interpretation applying the special flight rules around D.C. apply to model aircraft in violation of 336?
  • Whether the FAA has jurisdiction to register people, not aircraft, under their enabling statutes in Title 49?
  • Whether Part 48, as applied to non-recreational operators, was created in violation of the Administrative Procedures Act?

To see very in-depth discussions on the issues NOT answered, see my articles:

 Here is the audio recording of the oral arguments before the judges.

 

Questions Left Unanswered

  • Does anyone get their $5 back?
  • What is the FAA going to do with the all the registration data?
  • Can the FAA still regulate model aircraft flyers under Part 47?

 

John Taylor and I talking about the Case on SUASNEWS:

Who Has Taken What Side In The Drone Registration Case Ruling

Favorable to Drone Registration:

  • AUVSI – “AUVSI is disappointed with the decision today by the U.S. Court of Appeals to reject the FAA’s rule for registering recreational unmanned aircraft systems (UAS). A UAS registration system is important to promote accountability and responsibility by users of the national airspace, and helps create a culture of safety that deters careless and reckless behavior. We plan to work with Congress on a legislative solution that will ensure continued accountability across the entire aviation community, both manned and unmanned.” from AUVSI STATEMENT ON U.S. COURT OF APPEALS DECISION ON UAS REGISTRATION
  • Small UAV Coalition – “The viability and growth of the UAS industry is contingent on the safe and responsible integration of UAS technology. This is only possible if all operators – commercial and recreational alike – understand their responsibilities and remain informed of the evolving standards around UAS technology. Today’s ruling generates uncertainty by eliminating a tool developed to maintain accountability and enable streamlined communication between the FAA and recreational UAS operators.The FAA must have appropriate authority to maintain reasonable oversight of UAS operations, including management of a national UAS registry, which is the first step to identifying UAS operating in the national airspace. A lack of reasonable authority will inhibit safe integration and ultimately obstruct commercial UAS operations, putting the United States at risk of falling behind global competitors who are increasingly embracing the benefits of UAS. The Small UAV Coalition looks forward to working with lawmakers and regulators to ensure that the FAA has the authority necessary to facilitate the safe, widespread, and expeditious integration of UAS into the national airspace (NAS).” – Press Release on Small UAV Coalition Website
  • Commercial UAV Alliance – The Commercial Drone Alliance is committed to promoting the safety and security of the National Airspace System (NAS). We believe registering drones and having reliable identification of all operators is critically important to holding operators accountable, and enhances the safety of the NAS. The registration requirement also provided much-needed education around the rules for safe hobbyist drone flight. As a policy matter, we believe the lack of a registration requirement could ultimately jeopardize the safety and security of the NAS. The Alliance looks forward to working with Congress to ensure that the FAA has clear authority to require registration of all drones, including hobbyist drones. –Press Release
  • Drone Manufacturer’s Alliance – “DMA is studying the implications of today’s registration-related court ruling, but believes the existing system has worked well to protect the interests of safe and responsible pilots as well as the interests of society at large. As we wait for word on whether the FAA will appeal this ruling, we hope all sides see the benefit of a reasonable and minimally restrictive form of basic regulation that has helped make drone operations in America overwhelmingly safe. We look forward to working with policymakers on a long-term legislative solution.” –Press Release
  • Helicopter Association International – “Helicopter Association International (HAI) strongly disagrees with the decision by the U.S. Court of Appeals to halt the registration of drones deemed to be “model aircraft.” Helicopters routinely operate at the same low altitudes as drones, and we in the helicopter industry are deeply concerned about our ability to fly safely in air space where pilots could encounter any unmanned aircraft, be it commercial or otherwise. One valuable component of the FAA’s drone registration program is the opportunity to educate the general population about the hazards of careless drone operation, and we believe that the FAA’s drone registration program serves to protect everyone in the air and on land. HAI strongly urges Congress to allow the FAA to do what the FAA does best; to provide safe and efficient use of our national airspace. We request that the FAA be given the governance and oversight over all forms of aircraft in order to ensure the safety of the National Airspace System.” – Press Release
  • (Ret.) Major General Poss who Founded ASSURE poss-tweet

In favor of the Court’s Ruling:

  • Drone Users Group – A statement that DUG supports the ruling is not needed. DUG has been the only organization that has helped the Taylor case by helping organize a fund to reimburse for court costs. DUG has been with Tayor right from the begining.
  • Academy of Model Aeronautics – “AMA is encouraged to see the Court affirm the strength of the Special Rule for Model Aircraft, otherwise known as Section 336, under which our members operate. For decades, AMA members have registered their aircraft with AMA and have followed our community-based safety programming. It is our belief that a community-based program works better than a federally mandated program to manage the recreational community.” – SUAS News

Other Interesting Quotes:

  • Federal Aviation Administration – “We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. The FAA put registration and operational regulations in place to ensure that drones are operated in a way that is safe and does not pose security and privacy threats. We are in the process of considering our options and response to the decision.” from Press Release – FAA Statement Regarding US Court of Appeals Decision
  • Brendan Schulman – ‘”The FAA’s innovative approach to drone registration was very reasonable, and registration provides for accountability and education to drone pilots,’ the company’s VP of Policy & Legal Affairs Brendan Schulman said in a statement offered to TechCrunch.’  ‘I expect the legal issue that impedes this program will be addressed by cooperative work between the industry and policymakers.'”  -Tech Crunch
  • Lisa Ellman – “‘The goal of the registration rule was to assist law enforcement and others to enforce the law against unauthorized drone flights, and to educate hobbyists that a drone is not just a toy and operators need to follow the rules,’ said Lisa Ellman, an attorney and specialist on the drone regulation with the law firm Hogan Lovells. ‘These are worthy goals, so if this ruling stands it wouldn’t surprise us to see a legislative response here.'” – Recode

 

Myths and Misconceptions Surround this Ruling

 

faa-drone-prosecution-336-model-aircraftMyth 1 – Recreational Drones Are Now Completely Unregulated. 

This is not true. The FAA already regulates recreational flying that does NOT fall into the Section 336 protected bubble -it’s called Part 107.

Section 336 says the FAA cannot create a rule or regulation regarding model aircraft if: …..

“(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization; …….

…….

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft[.]”

The bad actors we see on the news are not flying in accord with community-based organization SAFETY guidelines. (AMA safety code says,  model aircraft cannot be flown in a careless or reckless manner.) This means those recreational flyers do NOT even fall into the Section 336 protected category (big green circle to the left) and would be surprised to learn they fall into Part 107 which requires registration!

 

Myth 2 – The FAA CANNOT Do Anything to Model Aircraft Flyers

What might come as a shock to many, Congress gave the FAA the ability to prosecute Section 336 model aircraft flyers who “endanger the safety of the national airspace system.” (Small green circle inside the red circle to the left).  Section 336(b) says, “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.”

The FAA can regulate and prosecute non-336 recreational flyers and only prosecute model aircraft endangering the safety of the national airspace. The FAA has tools in their toolbox for both scenarios!

 

Myth 3 – You Took Away a Good Tool for Finding the Bad Guys!

Was registration a tool that could be helpful? Yes. Was the way the FAA did it good? Definitely no.

1. History Repeating Itself. 

The next part sounds like history repeating itself. Let’s go back in time to 1988 where the U.S. Congress passed the Federal Aviation Administration Drug Enforcement Assistance Act of 1988 (‘‘DEA Act’’). Because the following text was so good, I just copied-pasted the following text from the FAA’s own Federal Register post from January 2007:

On March 12, 1990, the FAA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (55 FR 9270). The NPRM proposed changes to certain requirements concerning registration of aircraft, certification of pilots, and penalties for registration and certification violations. The NPRM also announced non-rulemaking procedural changes. We intended the changes to correct deficiencies in our systems and procedures identified in the FAA Drug Enforcement Assistance Act of 1988 (Pub. L. 100-690) (hereafter, “the Act”). The Act amended FAA’s authorizing legislation (49 U.S.C. 40101 et seq.) to-

……..

Modify the aircraft registration system to more  effectively serve the needs of buyers and sellers of aircraft, drug  enforcement officials, and other users of the system;

……..

The comment period closed on May 11, 1990. We received 373  comments, very few of which expressed support for the proposed changes. For the most part, commenters believed that the proposed changes would impose burdens only on law-abiding citizens, while criminals would simply circumvent them. As a result, FAA decided to delay the rulemaking process to assess whether specific technological improvements to the FAA Civil Aviation Registry (the Registry) could meet the intent of the Act. We believe we have now fulfilled most requirements of the Act through changes to systems and procedures used by the Registry. For this reason, we have withdrawn the 1990 NPRM in its entirety. Readers interested in the specific actions we have taken to fulfill the requirements of the Act should refer to the notice withdrawing the 1990 NPRM (70 FR 72403, Dec. 5, 2005).

To complete our obligations under the Act, we are proposing to address two deficiencies noted in the Act and not fully addressed through changes made to the Registry. The first issue concerns the proper identification of pilots. Law enforcement agencies must be able to establish the true identity of those who hold pilot certificates.  The second issue concerns the timely reporting of aircraft sales or other transfers of ownership. Law enforcement agencies must be able to determine who is the owner of an aircraft, particularly when ownership of the aircraft has recently been transferred.

Wow. The FAA admitted they had deficiencies. And what could those be?

2. Aircraft Registration Deficiencies Identified by Congress and the FAA

Congress told us what some of the deficiencies were in the DEA Act in Section 7205:

“[The FAA] shall assure positive and verifiable identification of each person applying for or holding such a certificate and shall address, at a minimum, each of the following deficiencies in and abuses of the existing system:

(1) The use of fictitious names and addresses by applicants for such certificates.

(2) The use of stolen or fraudulent identification in applying for such certificates.

(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.

(4) The use of counterfeit and stolen airman’s certificates by pilots.

(5) The absence of information concerning physical characteristics of holders of such certificates.”

 

3. Comparison of Registry Deficiencies from the DEA ACT to Part 48

Let’s now compare these 5 points from the DEA ACT to the Part 48 registry as applied to model aircraft.

DEA ACT

Part 48

(1) The use of fictitious names and addresses by applicants for such certificates.Section 48.100(b) asks for name, physical address (unless you can’t receive mail there, then a mailing address also), email address.   THE BIG PROBLEM IS NO ONE CHECKS HOW ACCURATE IT IS! THIS IS ON THE HONOR SYSTEM.
(2) The use of stolen or fraudulent identification in applying for such certificates.Once again, a person could just steal a person’s identity and register the drone. Furthermore, they don’t really need to even steal it. All you need to know is a person’s name, their address, and have a disposable email address.
(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.No one checks the address against a government issued ID when registering so how does anyone know where anyone lives?! Furthermore, you don’t have to have a government ID with you when you fly the drone for law enforcement to compare names and addresses.
(4) The use of counterfeit and stolen airman’s certificates by pilots.Part 48 was only registration and not an airmen certificate, but subsection 4 raises a good point about how does anyone know if the registration is stolen or if the registration (sharpied on or taped on) was counterfeit of a legitimate registration!
(5) The absence of information concerning physical characteristics of holders of such certificates.The model aircraft registration only asked for a name, an address that can receive mail, and an email address. Nothing about the person.

In short, Part 48 fails on the points Congress brought up which were designed to make things more secure with the Part 47 paper-based registry.

4. Not All Drones Are Registered

Below I graphed out actual registrations versus the FAA’s projection of hobby model aircraft using data from the FAA’s 2017 Aerospace Forecast and multiple speeches Administrator Huerta gave as archived on the FAA’s website.

part-48-registration-vs-projected-hobby-drones

You can see that there is a gap between what the FAA has estimated and what has actually been registered.

The only way registration makes sense is when it is done at the point of sale, with the seller responsible for reporting, as opposed to this “honor system” which the FAA has been operating under.

The graph above proves what everyone knew, that people would NOT register.

 

 

5. Many Reasons Why This Part 48 Registration Would Not Work.

I raised many issues when the registration ARC was first formed. I’m going to list below some of the big problems that I pointed out (all the way back in the fall of 2015) in my article 11 Big Problems with the FAA’s Mandatory Drone Registration.

What happens when the person does NOT want to fly anymore?

So the citizen has to register his drone. The drone registration last for 3 years under the current regulations. Are you going to force people to re-register their drones? Must they always have the drone registered? I can see a large group of people just letting the registration lapse and then selling their drones off on Amazon, Ebay, Craiglist, flea markets, and garage sales. Are the sellers required to keep paperwork of who they sold the drone to?

How are you going to identify the aircraft after the incident/crime/accident?

The pieces of a drone sucked into a jet engine are going to be all over the place. Are you going to require metal placards attached to the drone? Furthermore, it is easy to scratch off a serial number. Is possession of a drone with a scratched-off serial number going to become illegal?

The two main groups that are causing problems are the (1) “how high can it fly” group and the (2) “I will fly wherever I want” group. Both of these groups can be countered with geo-fencing far better than registration. Registration points you to who might have caused the incident, geo-fencing can help prevent it.

Mandatory drone registration does not help identify drones being seen by pilots but only if they are captured.

Manned aircraft N-numbers are hard enough to see. I can’t even see the logo on my Cheerson CX-10 from 10 feet. If there is a crash, do you really think you are going to find the small piece of plastic that had the “Sharpie-drawn” N-number on it, the mailbox number stickers, or the serial barcode sticker under the gimbal? The only counter to this is taglets mixed in the plastic matched up with laser etched numbers on the critical parts that would most likely survive a crash (motors, etc.). Simple registration is useless unless this is a comprehensive manufacturer backed plan. What happens if DJI requires registration but Yuneec does not?

Myth 4 –  This was necessary for security!

Do you know who owns the drones in the gapart-48-registration-vs-projected-hobby-dronesp between estimated and actually registered? I don’t – and neither does the FAA.

There was no point of sale requirement for registration.

Security has the word “secure” in it. How was this system secure?

Part 48 “Security” = A system where citizens voluntarily type in whatever information honestly, without 3rd party verification, and then tape on the registration to their drone.

The FAA should have looked to the DEA Act and Part 47 if they were really interested in security.

 

 

 

Myth 5 – This was necessary for safety!

HOW? A taped-on registration number brought about accountability? Tape can be easily removed, serial numbers scraped, or Sharpie-drawn marks marked over.

The follow-up response is that the registration checkout provided education which increased safety.

 

 

Myth 6 – Any substantial education that could have been received by those registering is now gone!

This is simply not true because (1) the FAA’s website with all its literature is still up and (2) the information provided in the checkout process was minuscule and legally wrong.

When you go through the registration process it takes you to one page where you have to acknowledge safety guidelines and under penalty of perjury, have to click a box that says, “I have read, understand and intend to follow the safety guidance.”

The Safety Guidance says:

Safety Guidance

My Commentary

I will fly below 400ft.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will fly within visual line of sight.Section 336 lists this.
I will be aware of FAA airspace requirements.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly directly over people.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly over stadiums and sports events.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near emergency response efforts such as  fires.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near aircraft, especially near airports.Just wrong.
I will not fly under the influence.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.

 

part 48 registration

The “safety guidelines” on the certificate of registration do not completely match the safety guidelines in the checkout process!  It was as easy as copy-paste, but the FAA failed to make them match or include all the safety points.

So I do admit that there was education that went on through the registration process but it was (1) minuscule, (2) legally inaccurate, (3) not complete, and (4) not the ONLY way the public could be educated.

Myth 7  – We needed registration to help prosecute the bad actors. 

A reporter I was working on a story with  kindly shared this information with me that he obtained from Les Dorr, the official FAA spokesperson.

Since 2014, the FAA has only prosecuted 48 drone operators. Let that sink in. Only 48.

The FAA does not need any more tools in their toolbox. The FAA has many regulations to nab the bad guys. The FAA’s enforcement philosophy is education rather than enforcement which results in many investigations and cases being dropped. The enforcement philosophy and understaffed legal department are the problems, not the lack of regulations.

If FAA really wanted to crack down on bad actors, they need to ask Congress for more money to beef up their legal department to focus on UAS prosecutions. They also need to change their enforcement philosophy.

This whole thing strikes me as crazy. Many are upset at this ruling but seem to be silent when it comes to commercial drone operators losing business to illegal operators.Law abiding people are losing work right now to illegal operators and the FAA has only 48 prosecutions to show for it? All across this country legal operators are losing work because the FAA fails to prosecute.

On top of this, John Taylor requested information under the Freedom of Information Act “seeking all records of requests by law enforcement authorities or others to identify registrants of specific small unmanned aircraft based on the registration number located on such aircraft.”  Here is the response.

taylor-foia-registation

 

How this Ruling is a Good Thing

This ruling is very important because it stands for the rule of law. The government we live under is a government of laws, not people.  We are not governed by arbitrary decisions of government officials but by the law. Everyone must follow the law – drone flyers as well as the FAA.

This case set the broken bone that was Part 48. The FAA has the opportunity to regulate lawfully and to now be an example to the unlawful. It is extremely damaging to safety to declare to the unsafe flyers that they must follow the laws created while the FAA is completely ignoring what Congress said in Section 336 and the Administrative Procedures Act. The unsafe flyer will say to himself, “The FAA isn’t following the law, why should I?”

 

Suggestions for the FAA:

My helping with the case was not to just troll the FAA but to uphold the rule of law. I’m very much for safety. I’m a FAA-certificated flight instructor who drilled into the heads of my students -safety -safety- safety. One of my flight instructors died in a plane wreck. I have a dead man’s signature in my logbook who left a wife and baby behind. I can appreciate the importance of safety.

In light of my love for safety and the rule of law, I provide these suggestions to the FAA to increase safety, lawfully:

  • Create regulations that are compliant with Section 336. If you don’t like Section 336, ask Congress to change, but don’t just ignore it. Everyone should follow the law, right?
    • This most likely means requiring remote ID-related regulations will need to be crafted as to not encompass 336 model aircraft, or you should get Congress to repeal or change 336.
  • There is a second Taylor v. FAA case coming down the pike shortly. I estimate it will be ruled upon in 3-4 months. Based upon my reading of the latest ruling the FAA stands to lose a second time. Additionally, with the Trump 2 for 1 deal that happened, the FAA needs sacrifical regulations to repeal to create pro business drone regulations. I suggest the FAA use Part 101 as a sacrificial regulation to get out the over people regulations. This upholds the rule of law and promotes business!
  • Change your enforcement philosophy against drone operators. The current system is so lenient that very few cases reach prosecution.
  • Leverage the commercial operators out there who would be more than willing to turn in all their illegal competitors. There is an army of people out there willing to give the FAA info, but many have stopped because the FAA does very little.
  • Hold accountable large companies who hire illegal operators. I think there is some possibility here, depending on the facts, to prosecute companies who choose the illegal operators rather than safe operators. Some companies hire illegals as sub-contractors.  If there are any objections, the safe operator loses the job and the company finds a person who is willing to do whatever the company wants. Speak to some of the attorneys in the general counsel’s office. I’m sure some of them will agree that the definition of “operator” and “person” in the regulations is sufficiently broad, under certain facts, to capture large companies.
  • Ask Congress for more funding for legal staff to prosecute drone operators.
  • Maybe create a donation process where people can opt-in easily to donate their $5 from the registration back to the FAA to hire attorneys to prosecute illegal and unsafe drone flyers.

Suggestions for Industry

  • Stop pitting commercial versus recreational. What it should be is safe vs unsafe. People who fall into the 336 category are going to have to be SAFE to be protected; otherwise, they are not in this category and can be required under Part 107 to be registered.
  • Actively working to undue 336 is a waste of political influence. 336 protected flyers are by definition having to fly according to CBO safety guidelines. Commercial industry should focus on getting the FAA to prosecute the illegal and unsafe operators. There are commercial operators right now losing thousands of jobs across the US because the FAA won’t crack down on the illegal operators. Only a total of 48 drone enforcement actions have happened since 2014. Stop focusing on undoing 336 and focus on stopping those that take food off the table of your constituents or buyers of your products!

Suggestions for Flyers:

  • Call your federal congressman and senator and tell them how you are following the law and are losing business to illegal operators. The FAA needs more money to increase their legal man power and they need to change their enforcement philosophy.
  • The organizations you are a member of, ask them what they are doing to help YOU.  Find out if they are actually doing something or cancel your membership and use those funds to help yourself.
  • Report illegal and unsafe flyers to your local FAA flight standards district office. You can find you local one here.

 

Helpful Graph for Understanding the Overall Situation

taylor-v-faa-drone-registration-lawsuit

 

Actual Text of the Court’s Opinion with my Emphasis

 

Below is the opinion of the court. I bolded text below which was interesting.

 

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2017 Decided May 19, 2017
No. 15-1495

JOHN A. TAYLOR,
PETITIONER
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
RESPONDENT

Consolidated with 16-1008, 16-1011
On Petitions for Review of Orders
of the Federal Aviation Administration
John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.
R. Ben Sperry was on the brief for amicus curiae TechFreedom in support of petitioner.
Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation, Federal Aviation Administration. Richard H. Saltsman, Attorney, Federal Aviation Administration, entered an appearance.

 

 

 

Before: KAVANAUGH and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.

 

 

 

KAVANAUGH, Circuit Judge: Congress has charged the Federal Aviation Administration with maintaining the safety of the Nation’s air traffic. As small unmanned aircraft (sometimes known as drones) have become more popular, the number of unmanned aircraft-related safety incidents has increased. In 2015, in an effort to address that trend, the FAA promulgated a rule known as the Registration Rule. That Rule requires the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Unmanned aircraft operated for recreational purposes are known as “model aircraft,” and we will use that term throughout this opinion. Separately, the FAA published a notice, known as Advisory Circular 91-57A, announcing that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area.

 

 

 

Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. He has operated model aircraft from his home in the Washington, D.C., area, and he wants to continue to do so without registering or complying with the new flight restrictions. Taylor filed petitions in this Court to challenge the FAA’s Registration Rule and the Advisory Circular.

 

 

 

To begin, Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.

 

Taylor challenges Advisory Circular 91-57A on the ground that the Circular likewise violates Section 336(a). That Circular prohibits the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. But Taylor’s petition challenging the Advisory Circular is untimely. By statute, a petitioner must challenge an FAA order within 60 days of the order’s issuance unless there are reasonable grounds for delay. 49 U.S.C. § 46110(a). Taylor acknowledges that he filed his petition challenging the Advisory Circular outside the 60-day window. He did not have reasonable grounds for the late filing. His petition for review of Advisory Circular 91-57A is therefore denied.

 

 

I

 

 

Congress has directed the FAA to “promote safe flight of civil aircraft” and to set standards governing the operation of aircraft in the United States. 49 U.S.C. § 44701(a). Congress has also required “aircraft” to be registered before operation. See id. §§ 44101, 44103. To register, aircraft owners must complete a registration process that is quite extensive, as one would imagine for airplanes.

 

 

But the FAA has not previously interpreted the general registration statute to apply to model aircraft. Instead, the FAA has issued an optional set of operational guidelines for model aircraft. The FAA’s Advisory Circular 91-57, titled Model Aircraft Operating Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that Advisory Circular, compliance with the Circular by operators of model aircraft was voluntary. See J.A. 1.

 

 

As unmanned aircraft technology has advanced, small unmanned aircraft have become increasingly popular. In response, the FAA has taken a more active regulatory role. In 2007, the FAA promulgated a notice announcing a new regulatory approach to unmanned aircraft. See Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007). In the notice, the FAA distinguished between commercial and recreational unmanned aircraft. Under the new regulatory approach, commercial unmanned aircraft are subject to mandatory FAA regulations. Those regulations require operators to report the aircraft’s intended use, time or number of flights, and area of operation, among other things. Id. at 6690. By contrast, this notice did not alter the longstanding voluntary regulatory approach for model aircraft. Id.

 

 

 

In 2012, Congress weighed in on the debate over regulation of unmanned aircraft. Congress passed and President Obama signed the FAA Modernization and Reform Act of 2012, Pub. L. No. 112–95, 126 Stat. 11 (codified at 49 U.S.C. § 40101 note). The Act codified the FAA’s longstanding hands-off approach to the regulation of model aircraft. Specifically, Section 336 of the Act, called the “Special Rule for Model Aircraft,” provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a). The Act defines “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.” Id. § 336(c).

 

 

Notwithstanding that clear statutory restriction on FAA regulation of model aircraft, in December 2015 the FAA issued a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA. See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The Registration Rule requires model aircraft owners to provide their names; physical, mailing, and email addresses; and any other information the FAA chooses to require. Id. at 78,595-96. The Registration Rule also creates an online platform for registration, establishes a $5 per-individual registration fee, sets compliance deadlines, and requires all small unmanned aircraft to display a unique identifier number issued by the FAA. Id. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years’ imprisonment. Id. at 78,630.

 

 

Also in 2015, the FAA withdrew Advisory Circular 91-57 and replaced it with Advisory Circular 91-57A. See J.A. 3-5. Among other things, the revised Circular provided that model aircraft could not fly within the Flight Restricted Zone covering Washington, D.C., and the surrounding areas without specific authorization. See id. at 5.
Petitioner Taylor is a model aircraft hobbyist living in the Washington, D.C., area. Taylor argues that Section 336 of the FAA Modernization and Reform Act bars both the FAA’s Registration Rule and Advisory Circular 91-57A.1

 

 

II

 

 

We first consider Taylor’s challenge to the Registration Rule.  Section 336 of the FAA Modernization and Reform Act of 2012 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule is undoubtedly a rule. By requiring the prospective registration of all model aircraft, the Registration Rule announces an FAA “statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4) (defining “rule” for purposes of the Administrative Procedure Act). In addition, the Registration Rule is a rule “regarding a model aircraft.” FAA Modernization and Reform Act § 336(a).

 

 

 

The Registration Rule sets forth requirements for “small unmanned aircraft, including small unmanned aircraft operated as model aircraft.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594, 78,594 (Dec. 16, 2015) (emphasis added). Lest there be any doubt about whether the Registration Rule is a rule “regarding a model aircraft” for purposes of Section 336, the Registration Rule states that its “definition of ‘model aircraft’ is identical to the definition provided in section 336(c) of Public Law 112–95,” the FAA Modernization and Reform Act. Id. at 78,604.

 

 

 

 

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103. But the FAA has never previously interpreted that registration requirement to apply to model aircraft. The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.” FAA Br. 20.

 

 

 

We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification –on people who previously had no obligation to engage with the FAA. Id. at 78,595-96. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. See id. at 78,630. In short, the Registration Rule is a rule regarding model aircraft.2

 

 

 

Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to “improve aviation safety.” FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

 

 

 

In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.

 

 

III

 

 

We next consider Taylor’s challenge to FAA Advisory Circular 91-57A. The Circular prohibits the operation of model aircraft in certain areas, including in the Washington, D.C., Flight Restricted Zone. Taylor argues, among other things, that the Circular violates Section 336(a) of the FAA Modernization and Reform Act of 2012 because it too is a rule regarding model aircraft.

 

 

We need not consider that question because Taylor’s challenge is untimely. A person seeking to challenge an FAA order must file the challenge within 60 days of the order’s issuance. 49 U.S.C. § 46110(a). The FAA published notice of Advisory Circular 91-57A in the Federal Register on September 9, 2015. See Revision of Advisory Circular 91–57 Model Aircraft Operating Standards, 80 Fed. Reg. 54,367 (Sept. 9, 2015). Taylor filed his petition for review on January 12, 2016 – more than two months after the 60-day deadline had passed.

 

 

 

A court may allow a late petition filed if the petitioner has “reasonable grounds” for missing the deadline. 49 U.S.C. § 46110(a). Taylor advances two grounds for his delay. But neither constitutes reasonable grounds under this statute.

 

First, Taylor argues that the FAA did not provide adequate notice that it had issued the new Circular. But on September 9, 2015, the FAA published its revisions in the Federal Register. See 80 Fed. Reg. 54,367. And Congress has determined that publication in the Federal Register “is sufficient to give notice of the contents of the document.” 44 U.S.C. § 1507. Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.

 

 

 

Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.
Ultimately, Taylor admits that he simply did not know about the revised Circular until the FAA launched a “media blitz” to publicize it. Taylor Br. 68. That may be understandable. But under our precedent, Taylor must point “to more than simply ignorance of the order” as reasonable grounds for his delay. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). Taylor has not done so. His petition for review of Advisory Circular 91-57A is therefore untimely.
* * *
The FAA’s Registration Rule violates Section 336 of the FAA Modernization and Reform Act. We grant Taylor’s petition for review of the Registration Rule, and we vacate the Registration Rule to the extent it applies to model aircraft. Because Taylor’s petition for review of Advisory Circular 91-57A is untimely, that petition is denied.

 

So ordered.

 

Footnotes:

1 Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.

2 We note that Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” FAA Modernization and Reform Act § 336(b). That provision, however, is tied to safety. It does not authorize the FAA to enforce any pre-existing registration requirement.

 

 


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Latest posts by Jonathan Rupprecht (see all)

Ultimate Guide to Drone Laws from a Lawyer & Pilot (2017)

Interested in drone laws? It can be a pain to try and figure out what is applicable. That is why I created this page! :)

Where NOT to Look for Help With Drone Laws

Here is a tip, stay away from Facebook or anyone else who is a newbie to aviation. They tend to waste your time and provide bad guidance. Seriously, you should be very careful where you get information from – not everyone is qualified to give you information. You don’t install random pieces of software you find on the internet onto your computer. Why would you do that for the laws and legal advice?

For example, I was reading a drone book by someone very popular on the internet which was just completely – flat out – totally- 100% wrong. The section on drone laws was just horrible. I think this person just hired a copywriter to write the book which resulted in utter garbage. If you were to rely on that bad advice, you could get in trouble and be on the receiving end of a lawsuit or criminal prosecution. Worse yet, on their Youtube channel, they continued to give out legal advice that was incomplete. Either they were keeping their readers in the dark about one critically important piece of advice or they were sincerely, and incorrectly, giving out advice which could result in legal consequences.

You should vet everyone before you give them your time. Here, vet me by looking at my bio.

Where to Look for Help With Drone Laws

You should look at resources in this order:

  1. The actual drone laws (Part 107, Part 101, Part 47, Part 48, etc.)
  2. The FAA’s website.
  3. My website! You can even use the search feature.
  4. Other competent drone lawyers or consultants (read the two articles below on how to find out as there are some really bad people out there).
  5. Your local Flight Standards District Office Aviation Safety Inspector, any FAA email on their website, etc.

I. United States Drone Laws

There are different levels of governmental authority in the U.S. We have a federated system where we are governed on certain things by the U.S. Federal Government and the state governments with those areas not enumerated to the U.S. government.

Additionally, the states have passed laws allowing counties, cities, and towns to regulate individuals.  At any given moment, a person can 3 or 4 levels of laws applying to them. For example, your drone operations could have the federal aviation laws, state drone laws, county drone laws, city or town laws, and maybe even HOA rules all applying to them.

Whether or not the states, counties, and cities can regulation drones is another big issue way outside of the scope of this article. As time goes on, things will shake out as to the scope of the drones laws the states, counties, cities, and towns can create. This will be determined by federal legislation or by federal case law determining what drone laws are preempted and which drone laws are not.

A. Federal Drone Laws

1. Federal Drone Public Law

Public Law is law that has been passed by Congress and signed by the President. Sometimes people use the term “legislation” to describe the Public Law. Obamacare, HIPPA, etc. are all Public Laws. I created a directory of federal drone legislation that has been approved or proposed.  Most of the proposed drone legislation out there ends up never becoming law.

2. Federal Aviation Regulations (Enforced by the Federal Aviation Administration)

We immediately think of the Federal Aviation Administration (“FAA”) when it comes to drone laws. The FAA enforces the Federal Aviation Regulations (“FARs”) which apply to all sorts of things such as student training, airports, maintenance, flying, aircraft certification, rocket launches, etc.

The two parts of the FARs that apply to drone operators are Part 107 (for non-recreational operations) and Part 101 (for recreational operations). But that is NOT all!

All non-recreational drones are required to be registered under Part 47 or Part 48.

I have created many articles on the federal aviation regulations. I have listed below the most popular ones.

drone-laws-FAA-TSA-DOT-FCC-ITAR-EAR3. Other Federal Agencies and Their “Drone Laws”

The FAA is not the only agency that regulates drones. There are also others! Keep in mind this list is not exhaustive.

NTSB. If you crash your drone, you are required to report to the National Transportation Safety Board! Additionally, you might need to file an aviation safety reporting system form which is administered by NASA! See my article on What are you required to do after a drone crash?

TSA. The Transportation Safety Administration administers the alien flight student program (governed by the alien flight student regulations). All FAA certificated flight instructors know this and have to be careful regarding providing training as well as doing security awareness training. As I read it, I think the TSA could assert jurisdiction over flight instructors training alien flight students.

DOT. The Department of Transportation has regulations regarding the transportation of hazardous material (i.e. drone medical delivery).

FCC. The Federal Communications Commission regulations radio transmitters, the frequencies they transmit on, and the power of the transmitter. Many people don’t even pay attention to that sticker that is on the back of your controller. Take a chance to read it over some time.

DOJ. The Department of Justice enforces the Federal Aviation Statutes in Title 49 of the United States Code.  The DOJ attorneys have been involved at least twice with drone operators: (1) the Skypan case which was originally started in the federal district court in Chicago and (2) in the federal district court in Connecticut with the Haughwout case (the kid who attached a gun and later a flamethrower to a drone).

DOC. You also have the Department of Commerce with the Export Administration Regulations (“EAR”) and the State Department with the International Trafficking in Arms Regulations (“ITAR”). Bard College’s Center for the Study of the Drone published an article detailing multiple prosecutions under ITAR.

NOAA. The National Oceanic and Atmospheric Administration (NOAA) sometimes gets involved because they have jurisdiction over national sanctuaries.  NOAA created frequently asked questions 
regarding NOAA’s regulated overflight zones of West Coast National Marine Sanctuaries.

Are model aircraft and Unmanned Aircraft System (drone) operations subject to NOAA regulated overflight zones?

A. Yes. Model aircraft and Unmanned Aircraft Systems (drones) propelled by motors qualify as motorized aircraft under regulations of the sanctuaries, and therefore must adhere to sanctuary regulated overflight zones. As with traditional aircraft, UAS could operate above the sanctuaries’ minimum altitude limits, provided Federal Aviation Administration (FAA) regulations allow them to fly at such altitudes. Current FAA rules impose altitude limitations on model aircraft and other Unmanned Aircraft Systems.

NPS. National Park Service has put out statements in the past prohibiting the operation of drones in national parks. Things have changed. It is hit or miss where you can fly at the different parks. Some locations have designated areas where you can fly but you have to check. Type in the name of the national park plus  “compendium” in Google and you should find some helpful results. Additionally, you should call ahead to see if anything has changed.

DOI. The Department of the Interior has regulations and you could get in trouble with some of them. 43 CFR § 9212.1 “Unless permitted in writing by the authorized officer, it is prohibited on the public lands to: . . . (f) Resist or interfere with the efforts of firefighter(s) to extinguish a fire; (g) Enter an area which is closed by a fire prevention order[.]”

 

B. State Drone Laws

All 50! I created a state drone law directory of all 50 states.  I also included some additional resources that would be helpful from the American Legislative Exchange Counsel (ALEC), National Conference of State Legislatures, and the National League of Cities. There is also a link to a model state drone legislation from ALEC.

Want All the State Drone Laws in a PDF?

Sign up for the drone newsletter and receive the PDF and great articles.

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II. International Drone Laws

There is no good reliable database of drone laws. I might create one as time goes on.

Below are the resources I have found on the internet that can assist you in finding the laws in a particular country.  I do not know how updated they are or accurate.  Use at your own risk.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Latest posts by Jonathan Rupprecht (see all)

Ultimate Drone Logbook Guide (Drone Logbook Templates, Drone Flight Logbooks, Drone Logbook PDF, etc.)

Do one of the following drone logbook statements accurate describe you?

  • “What does the FAA want me to log? I don’t want to get in trouble.”
  • “Where do I log it?”
  • “Should I do paper or electronic?”
  • “I’m confused with all the different terms.”

If any of the above describe you, you are in the right place. We are are going to dive into all of the issues surrounding drone logbooks. This article will be applicable to recreational and commercial drone operators.

 

There are primarily two types of logbooks: (1) pilot drone logbooks where the pilot logs experience and training and (2) drone aircraft/maintenance logbooks. There are two modes of logbooks: (1) paper and (2) electronic.

 

 

Table of Contents:

 

 

I. Drone Logbook Law

A. Logbook Definitions

Before we dive in, let’s discuss some terms that some of you might have heard floating around:

  • Acting pilot in command
  • Logging pilot in command,
  • Remote pilot in command,
  • Flight training,
  • Ground training,
  • Authorized Instructor,
  • Pilot,
  • Operator, etc.

 

B. Brief History of Where the Logbook Definitions Came From

Section 61.51 is the most important section for Part 61 pilots on logbooks and specifically lays out some definitions and the requirements to log that time. These specific terms and requirements were created for pilots to accurately describe their training and experience to meet eligibility requirements to obtain an airmen certificate or added rating. This was how manned aircraft pilots were doing it. Then drones came on the scene.

 

We had to fit the square in the round hole in September 2014 with the first batch of 333 exemptions were released. There continues to be a provision in the 333 exemptions that mentions that the pilot may log time in accordance with 61.51(b) to show pilot in command (“PIC”) qualifications to operate under the 333.

 

Then on August 29th, 2016, Part 101 and Part 107 became law which gave us the term remote pilot in command.That is interesting to note since for a while it was a “must” log until November 2016 where the FAA unilaterally updated 5,000+ exemptions and now they say “may” log in a manner consistent with 61.51(b).

 

So how do we sort this all out when it comes to logging since we have different terms in different parts of the regulations?

 

C. How to Make Sense of What to Use in Your Drone Logbook

Part 61 is how you get manned aircraft certificates while Part 91 is how you lose that manned aircraft certificate (by violating those operating regulations). The Section 333 exemptions adopted the standards in 61.51(b) and then later were changed to say “may.”

 

Part 107 created this neatly contained part of regulations which spells out what you need to do to obtain your remote pilot certificate and how to operate under it. You only need to pass a computer-based knowledge exam to fly unmanned aircraft so definitions are not even needed to define knowledge, experience, or training in a logbook to obtain a certificate under Part 107. The definitions only really mattered in a Part 61 & Part 91 situation where training and experience needed to be logged accurately.

 

Furthermore, 14 CFR 61.8 says, “Any action conducted pursuant to part 107 of this chapter or Subpart E of part 101 of this chapter cannot be used to meet the requirements of this part.” You cannot even use the drone time towards obtaining a Part 61 airmen certificate or rating. What a bummer. :(

 

Moreover, most of the terms are not even accurately being used! If you look carefully at the definitions, you’ll notice that almost all of them 99% of the time cannot be applied to Part 107 remote pilots under a strict reading of the legal definitions. Sure. Everyone will know what you mean but they are not legally accurate usages. But then again, in 107 world, many of these definitions don’t matter.   You could call the time flying your Star Wars tie fighter drone “Lord Vader time” because you aren’t using that time to go for a certificate or rating.

 

Here is a helpful graph of the different definitions, their location, and how a person flying under Part 101 or Part 107 should treat the definition.

 

D. Graph of Different Drone Logbook Terms

 

Term

Location in the LawHow to treat it.Definition

Operating Under Part 61 & Part 91

(Acting) Pilot in command

14 CFR 1.1

This is a term regarding ACTING as PIC. PICs acting as PIC can log it. The reason why there are different terms is because sometimes you can log PIC without being acting PIC. See Logging Pilot-In-Command Time article for AOPA.  If you are operating under 107 or 101, this does NOT even apply to you.

“Pilot in command means the person who:

(1) Has final authority and responsibility for the operation and safety of the flight;

(2) Has been designated as pilot in command before or during the flight; and

(3) Holds the appropriate category, class, and type rating, if appropriate, for the conduct of the flight.”

(Logging) Pilot in Command

14 CFR 61.51(e)

Only applicable for sport, recreational, private, commercial, or ATP when rated for the category and class of aircraft. Very rarely will the pilot have the same category and class rating as the unmanned aircraft being flown that is also in compliance with 14 CFR 61.51(j). Even if you get the rare perfect scenario, 14 CFR 61.8 says you can’t even use the PIC time for anything under Part 61 so why bother?“(e) Logging pilot-in-command flight time. (1) A sport, recreational, private, commercial, or airline transport pilot may log pilot in command flight time for flights”

Solo Flight Time

14 CFR 61.51(d)

No one can log this because you can’t get in an unmanned aircraft; otherwise, it wouldn’t be unmanned. I guess a woman could get inside one and it still be unmanned but I don’t know if the FAA will still consider that an unmanned aircraft. 😊“(d) Logging of solo flight time. Except for a student pilot performing the duties of pilot in command of an airship requiring more than one pilot flight crewmember, a pilot may log as solo flight time only that flight time when the pilot is the sole occupant of the aircraft.”

Flight Training

14 CFR 1.1

You cannot log this because once again, you are not “in flight in an aircraft[.]”“Flight training means that training, other than ground training, received from an authorized instructor in flight in an aircraft”

Ground Training

14 CFR 1.1

Only authorized instructors (see below) can log this in the logbooks of their students. But there are no truly authorized flight instructors for drones.“Ground training means that training, other than flight training, received from an authorized instructor.”

Authorized instructor

14 CFR 1.1

Here is the problem, ground and flight instructors are “authorized within the limitations of that person’s flight instructor certificate and ratings to train and issue endorsements that are required for” a list of airmen certificates and ratings, but the remote pilot certificate is NOT EVEN ON THE LIST! See 61.215 and 61.193. In other words, ground and flight instructors are not “authorized” to train remote pilots. Sure, flight instructors can train people all day long. It isn’t like the instructor is prohibited from training people, it is just the FAA is not giving its official approval of the competency of the flight instructor to give training to people seeking their remote pilot certificates. But you don’t need the official approval from the FAA for the training because the computer based knowledge exam is what the FAA has officially approved to determine aeronautical knowledge of the remote pilot applicant.“Authorized instructor means—

(i) A person who holds a ground instructor certificate issued under part 61 of this chapter and is in compliance with §61.217, when conducting ground training in accordance with the privileges and limitations of his or her ground instructor certificate;

(ii) A person who holds a flight instructor certificate issued under part 61 of this chapter and is in compliance with §61.197, when conducting ground training or flight training in accordance with the privileges and limitations of his or her flight instructor certificate; or

(iii) A person authorized by the Administrator to provide ground training or flight training under part 61, 121, 135, or 142 of this chapter when conducting ground training or flight training in accordance with that authority.”

“Pilot” vs. “Operator”

The FAA said this very well in now Cancelled Notice 8900.259, “The terms “pilot” and “operator” have historical meanings in aviation, which may have led to some confusion within the UAS community. As defined by the FAA in Title 14 of the Code of Federal Regulations (14 CFR) part 1, § 1.1, the term “operate,” “…with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose… of air navigation including the piloting of aircraft, with or without the right of legal control….” This means that an operator is the person or entity responsible for the overall aircraft and that may include a broad range of areas, such as maintenance, general operations, specific procedures, and selecting properly trained and certified flightcrew members to fly the aircraft. The pilot in command (PIC), also defined in § 1.1, is the final authority for an individual flight. Pilots are persons appropriately trained to fly aircraft.”   Additionally, the FAA said in the preamble to the small unmanned aircraft rule, “Several commenters noted that using the term “operator” in part 107 could result in confusion. NTSB, ALPA, and TTD pointed out that “operator” is currently used to refer to a business entity and that use of that term to refer to a small UAS pilot would be inconsistent with existing usage. Transport Canada and several other commenters stated that ICAO defines the person manipulating the flight controls of a small UAS as a “remote pilot” and asked the FAA to use this terminology in order to harmonize with ICAO. Transport Canada also noted that: (1) Canada uses the same terminology as ICAO; and (2) calling an airman certificate issued under part 107 an “operator certificate” may lead to confusion with FAA regulations in part 119, which allow a business entity to obtain an operating certificate to transport people and property. ALPA and TTD suggested that the person manipulating the controls of the small UAS should be referred to as a pilot, asserting that this would be consistent with how the word pilot has traditionally been used. As pointed out by the commenters, FAA regulations currently use the term “commercial operator” to refer to a person, other than an air carrier, who engages in the transportation of persons or property for compensation or hire. Commercial operators are issued an “operating certificate” under 14 CFR part 119.67 Because other FAA regulations already use the term “operator” to refer to someone other than a small UAS pilot under part 107, the FAA agrees with commenters that use of the term “operator” in this rule could be confusing.” (emphasis mine).

This is What a 107 Remote Pilot Can Log, But Is NOT Legally Required to & Really Does Not Matter

Remote Pilot in Command14 CFR 107.12 & 107.19.Applicable only to unmanned aircraft systems operations.

Advisory Circular 107-2 at 4.2.5 says it nicely, “A person who holds a remote pilot certificate with an sUAS rating and has the final authority and responsibility for the operation and safety of an sUAS operation conducted under part 107.

 

E. Recreational Drone Operations (Part 101)

A recreational drone operator cannot accurately rely on memory to determine when to change out batteries or propellers. Additionally, memory is a poor way to recall if preventive maintenance checks were done  14 CFR Part 101.41 says:

(b) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

(c) 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.

There really only three community-based organizations I can think of operating in the US at the moment: the Academy of Model Aeronautics, Drone Users Group, and Remote Control Aerial Platform Association. There might be others but these are the ones that have been around the longest that I know of. Each of them has safety guidelines.

 

One can argue that flying a drone over and over again without logging the time the propellers have been used to be “careless and reckless” which is contrary to the Academy of Model Aeronautics Safety Code and the Drone Users Group Network Safety Guidelines. RCAPA’s general safety guidelines require that the drone be “airworthy” prior to flight. A logbook is a reliable way to determine time on properly for a drone operator to make a decision on the airworthiness of the aircraft.

 

Whether the above argument holds any water in a court of law is another discussion but this is more food for thought than listing potential arguments the FAA might throw at a recreational operator.

 

F. Commercial Drone Operators (Section 333 & Part 107). 

1 . Section 333 Operators

The FAA requires that commercial operators who have 333 exemptions and “blanket” COA’s to file monthly reports. Additionally, those commercial operators operating under the 333 are required to log their flights according to 14 CFR 61.51(b) which says:

(b) Logbook entries. For the purposes of meeting the requirements of paragraph (a) of this section, each person must enter the following information for each flight or lesson logged:

(1) General—

(i) Date.

(ii) Total flight time or lesson time.

(iii) Location where the aircraft departed and arrived, or for lessons in a flight simulator or flight training device, the location where the lesson occurred.

(iv) Type and identification of aircraft, flight simulator, flight training device, or aviation training device, as appropriate.

(v) The name of a safety pilot, if required by §91.109 of this chapter.

(2) Type of pilot experience or training—

(i) Solo.

(ii) Pilot in command.

(iii) Second in command.

(iv) Flight and ground training received from an authorized instructor.

(v) Training received in a flight simulator, flight training device, or aviation training device from an authorized instructor.

(3) Conditions of flight—

(i) Day or night.

(ii) Actual instrument.

(iii) Simulated instrument conditions in flight, a flight simulator, flight training device, or aviation training device.

(iv) Use of night vision goggles in an aircraft in flight, in a flight simulator, or in a flight training device.

2. Part 107

Section 107.49  says:

Prior to flight, the remote pilot in command must . . .

 

(c) Ensure that all control links between ground control station and the small unmanned aircraft are working properly;

(d) If the small unmanned aircraft is powered, ensure that there is enough available power for the small unmanned aircraft system to operate for the intended operational time; and

(e) Ensure that any object attached or carried by the small unmanned aircraft is secure and does not adversely affect the flight characteristics or controllability of the aircraft.

How can a remote pilot comply with 107.49(c)-(e) if the remote pilot is not logging aircraft problems and maintenance? The FAA said it nicely in Advisory Circular 107-2, “Maintenance and inspection recordkeeping provides retrievable empirical evidence of vital safety assessment data defining the condition of safety-critical systems and components supporting the decision to launch.”

 

But here is the problem with drones, they are aircraft, but the drone manufacturers don’t treat them like aircraft. We don’t have any warnings being issued on certain parts like we have with the airworthiness directives in manned aviation. Yes, GoPro did a recall because of their batteries which is a good start. The technology changes so much that the mean time between failures is not known for many parts of the drones. People just buy the Phantom 4 before the Phantom 2 or 3 broke. No one is sharing the data of the aircraft failures. Why would you want to and be called an idiot on the internet? So really any preventative maintenance being done, while appearing safe, is really going to be just best guesses.

 

Section 107.7 says, “A remote pilot in command, owner, or person manipulating the flight controls of a small unmanned aircraft system must, upon request, make available to the Administrator: . . .(2) Any other document, record, or report required to be kept under the regulations of this chapter.”

 

If you study Part 107 carefully, you’ll notice no log books are required to be kept; however, if you obtain a Part 107 waiver, such as a night waiver, the waiver requires the responsible person to have documented night training the remote pilot in command and visual observer have received and that documentation must be available upon request from the FAA. This is what section 107.7 means by “Any other document, record, or report required to be kept under the regulations of this chapter.”

 

II. Reasons Why You Should Have a Drone Logbook

Legal Compliance. You might need to document training received for some waivers. Additionally, you might want to log aircraft maintenance to prove that you attempted to maintain the aircraft in an airworthy manner.

 

Marketing. Showing a completed logbook to a potential customer is a great marketing point. Like the old adage, “A picture is worth a thousand words,” a good logbook is worth a thousand flights. You can quickly demonstrate your flight experience by flipping through the pages. Furthermore, a well-kept and orderly logbook gives the impression that you are a professional.

 

Insurance. When you apply for insurance, they will ask you to fill out a form that is going to ask for all sorts of information. A logbook will assist you in filling out the form so you can receive the most accurate quote.

 

Maintenance. You cannot accurately rely on your memory to recall if you did something or not. Has that problem you observed gone away? Is it getting worse? Logging helps you notice trends and also allows you to rule out certain things when hunting for the cause of a problem.

 

III. Paper vs. Electronic Drone Logbooks 

  • Paper Drone Logbooks
    • If you are operating under a Section 333, 14 C.F.R. § 61.51(i) says, “Persons must present their pilot certificate, medical certificate, logbook, or any other record required by this part for inspection upon a reasonable request by” the FAA, an authorized representative from the National Transportation Safety Board, or any Federal, State, or local law enforcement officer. If your electronic logbook is on your device, do you really want to give law enforcement or the FAA your device? Furthermore, how are you to get the data off that device?Fixed costs (unless you go through paper like crazy). A paper log book can be easily inspected by law enforcement officials without them prying into your privacy.
    • Fixed costs (unless you go through paper like crazy)
    • No battery, no software, no firmware, no bad cell reception.
    • If you are investigated, whoever is investigating is going to have to obtain the logbook itself as opposed to just subpoenaing the electronic logbook company to turn over all your info.
    • No data theft.
    • Some countries require paper logbooks.
    • It is easier to allow a potential client flip through the pages than reading on your small cell phone with greasy smudge stains.
    • Harder to “cook the books” with paper.
    • Easier to transfer to another person who purchases a drone from you.
  • Electronic Drone Logbooks or Drone Logbook Apps
    • Totaling up the numbers is soooo much easier.
    • Accurate total numbers.
    • Less time spent on managing the logbooks.
    • You can customize these as you need.
    • Some plans have monthly fees.
    • The data is less likely to be lost compared to a paper copy which has to deal with fire, flood, hurricanes, bad memories, etc.
    • You can have data breaches.
    • Law enforcement or personal injury attorney can subpoena the records from the database.

IV. What Drone Logbooks Are on the Market?

A. Drone Logbooks Apps

Here are the more popular electronic drone logbooks. Some allow you to log pilot experience as well as aircraft time and maintenance. Most have a basic free version and the availability to add plans with extra features for a price.

B. Drone Flight Logbook Templates, Excel, or PDF

Basically, everything I saw on the internet looked bad so I decided to allow people to download the template of the Drone Operator Logbook. If you like this logbook, you can just buy the paperback version of it on Amazon (link below) and save on printing since Amazon sells mine for around $10.

 

To download the logbook template, simply sign up for the newsletter with your email and it should be sent to your email.

C. Paper Drone Logbooks

Here are the more popular paper drone logbooks.

V. Review of the 3 Most Popular Paper Drone Logbooks on the Market

A.  ASA’s The Standard UAS Operator Logbook

ASA's The Standard UAS Operator Logbook

Pros:

  • Compact.
  • Hardcover so you can easily write in it.
  • You could use it with a Section 333 exemption because it is 61.51(b) compatible.

Cons:

  • Some of the columns don’t make sense. For example, there is a “to” category and a “from” category.  We are flying drones here guys. We don’t fly these anywhere else but right where we are standing. Another example is that there is a column for rotor,  fixed wing, and a blank column. What in the world would you put in that blank column? Powered lift or lighter than air?  Another column says instrument time.
  • Small so you can’t write a lot of information in it.

B.  UAS Pilot Log Expanded Edition

UAS Pilot Log Expanded EditionPros

  • It has this cool graph on the side.  This is great for sketching things out. But you could just get regular paper and sketch things out if you need.
  • There is an “eh ok” checklist built into every page.
  • The gutter in between the pages might allow for it to be hole punched.

Cons

  • It does not have rows or columns for the 61.51(b) elements. While 61.51 isn’t a standard for 107 or 101 flyers, if you choose to adopt it, you’ll have to remember to put things in.
  • There are not many columns to log different types of time.
  • It has a pre-flight checklist but no post-flight checklist.

C.  Drone Operator’s Logbook

Brief note on the differences between V 1.2 and V 1.3 of my logbook. The text in the instruction up front was updated to reflect the changes since Part 107 is now law. Also, I changed the top quick notes section of each page from “FAR Required” to “61.51(b)” and “333 Required” to Section 333 to reflect the FAA’s new “may” language in the exemptions. I added more places to log battery cycles in the bottom from 6 to now 12.
 drone-logbook-example
Pros:
  • 61.51(b) elements are included in case you want to adopt this standard.
  • You can log battery discharges right on each page.
  • There is a TON of room on each page. You can easily log all your notes. Since it is also large, you can get regular writing paper and sketch out the job sites and then staple them to the page where you logged the flight.
  • This logbook is large enough to also double as a maintenance logbook for your aircraft. When you make any repairs, staple in the receipts and make detailed so you can better diagnose problems or obtain a higher resell value for the aircraft because you can prove what was done to it. I would suggest if you want to use it as a maintenance logbook, that you buy a separate logbook just for the aircraft in case you fly multiple aircraft.
  • Each page has a “cheat sheet” of things to jog your memory on what you might want to log on each line.
Cons:
  • It is a softcover so writing might be difficult.
  • It is the largest of the logbooks (but you get a lot of room to write). It might be difficult to fit into a plastic sleeve that would fit in a 3 ring binder. However, I think the way around this is to just buy one of the plastic 3 ring expansion envelopes like this one.
  • Some have complained that the gutter is too small which makes it difficult to hole punch the logbook.

VI. How to Fill Out My Drone Logbook.

 

drone-logbook-example

Starting at the top, there are two rows with asterisks which are references for the Type of Flight and Notes sections. There is also a handy time conversion.

DATE: The date of the flight.

 

AIRCRAFT/MAKE & MODEL: Put the make and model of the aircraft.

 

IDENT/Exemption #: In this column, you can put the registration of the aircraft. You can also put in an exemption number if you want.

 

LOCATION. Blanket COA reporting must list the city/town, state, and coordinates in decimal, minute, second format, (DD, MM, SS.S) N (DD, MM, SS.S) W, in the COA reports. Tip: Open up the iPhone compass app and it will display the GPS coordinates in the proper format at the bottom of the compass. 107 remote pilots or 101 recreational flyers are not required to log this but may adopt to.

 

BLANK COLUMN. If you are operating under your 333 exemption still, track your plan of activities (POA) submissions and NOTAM filing. You can also track invoice number, the pre & post voltage of batteries, takeoff or landing damage, equipment malfunctions, or lost link events.

 

TYPE OF FLIGHT. 61.51(b) lists terms like solo/pilot in command/flight, ground training, training received, or simulator training received. Notice the * reminds you to look at the top of the page for suggestions.  333 exemptions allow logging of (training/ proficiency/ experience). Optional entries could be ($/testing/recreation).

 

NOTES.  Here are some suggestions: memory cards [1,2,3], batteries [A,B,C], the name of the visual observer (“VO”), NOTAM filed, the ID of the COA you are flying under, did you file the plan of activities?, Invoice #, pre/post voltage on the batteries, and SQWK (which means you documented in the SQWK section the problems and fixes).If you are a Section 333 operator and you experienced takeoff or landing damage, equipment malfunctions, or lost link events, you MUST report this to the FAA via COA reporting.

 

D/N. day or night?  # of TO/L. Number of take-offs and landings (hopefully they are the same number :)  COA reports want “Number of flights (per location, per aircraft)”

 

Total Flight. Use a new battery for each line and enter the time after each flight. A convenient list of numbers is located on each page to help determine the most accurate entry. .1=6s  .2=12s  .3=18s .4=24s .5=30s .6=36s .7=42s .8=48s .9=54s  For each battery, make sure you log cycles at the bottom with tick marks. This way you can keep track of when to fully discharge the drone battery based upon the manufacturer’s recommendations.

 

SQWK. Squawk section where you list any issues you discovered during flight. Instead of putting all of this in the notes section, just write “sqwk” and you’ll know to look at the bottom. In that section, You look for the number corresponding to the line number because all of the squawks go into the bottom box.

 

You can keep track of firmware updates by listing them below the battery section.

 

When you are finished with a page, add all the numbers up, sign the page, and cut off the corner of the page. This makes it easy to find the most current tab using your thumb.

 

Conclusion

I would highly suggest you do not just go and do nothing after reading this. You should log your flights so as to track any maintenance that needs doing as well as collecting data to know when you need to change our certain parts or the entire drone.

Get a logbook, a piece of paper, a word document, one of the logbooks mentioned above, ANYTHING!  Just do it now. Don’t push it off. You won’t do. Start doing something. Today.

Stay safe. :)


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

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Why the FAA’s Drone Registration Requirements Are ILLEGAL

NOTE: The D.C. Circuit Court of Appeals ruled on the drone registration requirements. See my page on the Taylor v. FAA case for the ruling. 

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


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

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Drone Crash-What Do I Do After I Crash My Drone?

crashed droneIf you crashed a drone, there are reporting requirements. Below we will discuss the reporting requirements you make to the FAA and the reporting requirements you make to the National Transportation Safety Board (“NTSB”) following a drone crash. Just to be clear, this whole page does NOT apply to Part 101 model aircraft. 

 

Quick Info:

  • “Contact the NTSB’s 24-hour Response Operations Center (ROC) at 844-373-9922 to file a report. A phone call is sufficient initially, but a written follow-up may be required.”
  • FAA REGIONALOPERATIONS CENTERS. LOCATION WHERE ACCIDENT OCCURRED:
    • DC, DE, MD, NJ, NY, PA, WV, and VA 404-305-5150
    • AL, CT, FL, GA, KY, MA,ME,MS, NC, NH, PR, RI, SC, TN, VI, and VT 404-305-5156
    • AK, AS, AZ, CA, CO, GU, HI, ID, MP,MT, NV, OR, UT, WA, and WY 425-227-1999
    • AR, IA, IL, IN, KS, LA, MI,MN,MO, ND, NE, NM, OH, OK, SD, TX, and WI 817-222-5006
  • The FAA also has a website where you can report a crash.
  • NASA AVIATION SAFETY REPORTING SYSTEM
  • Note that the NTSB’s definitions of accident and unmanned aircraft accident and the FAA’s definition of accident in 107.9 are ALL different. It would have been a good idea for the FAA to just match up the definitions of 107.9 to 830.2 to keep things simple.
  • Keep in mind that this article is primarily focusing on Part 107 operations, NOT  Section 333 exemption operations, but most 333 exemptions have a provisions that requires notification to the FAA UAS Integration Office and NTSB so this article is still very relevant although some the requirements might differ. The language of the exemption and Blanket COA supersedes these requirements.

Times:

  • Mandatory:
    • Report an “accident” or “serious incident” (Part 830’s definitions) immediately to the NTSB Response Operations Center.
    • Send NTSB Form 6120.1 in within 10 days for an accident or 7 days for an overdue aircraft that is still missing. For a serious incident and if requested, send in the form. No time is mentioned in 830.15.
    • Notify the FAA within 10 days of the occurrence of an accident (107.9 “accident”).
  • Voluntary:
    • “NASA Form” is within 10 days of the violation.

 

During this 10 day period, you have time to call an attorney to help in figuring out how best to handle the situation and what to say in your report.

Don’t want to read? Watch the video of this article!

 

 

crashed cinematography drone

Who is the NTSB? How Are They Different than the FAA?

crashed drone 2“The NTSB is an independent federal agency, charged by Congress to investigate transportation accidents, determine probable cause, and issue safety recommendations to prevent similar accidents. The agency’s scope extends beyond aviation crashes, as it also investigates selected rail, marine, highway, and pipeline accidents, as well as those involving transportation of hazardous materials.”[1] The NTSB is COMPLETELY separate from the FAA. “The primary role of NTSB is improving safety of our nation’s transportation system. The agency determines the probable cause of accidents and issues safety recommendations to prevent similar occurrences. It does not determine fault or liability. In fact, according to 49 U.S.C. § 1154(b), ‘No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.’”[2]


In addition to doing investigations, the NTSB can judge appeals of FAA enforcement actions brought against manned aircraft pilots and drone pilots. There are two levels of appeal with the NTSB: (1) the administrative law judge level (ALJ) and (2) the full board of NTSB members. Some of you might remember the Pirker case. The Pirker case was initially won at the ALJ level, but on appeal to the full NTSB Board, was remanded back to the ALJ to determine if Pirker’s flight was careless and reckless.

 

The Reporting Requirements to Make to the NTSB.

Keep in mind the you must IMMEDIATELY notify the NTSB and one quick way you can do this is by contacting the NTSB’s 24-hour Response Operations Center (ROC) at 844-373-9922 to file a report. Contacting the ROC satisfies 49 CFR 830.5. The below text comes from the NTSB Advisory on Drones which you can download here.

 

NTSB Advisory to Operators of Civil Small Unmanned Aircraft Systems in the United States

INTRODUCTION

The use of small civil unmanned operating systems (sUAS) is growing rapidly, with changes happening on a nearly daily basis.  In particular, the Federal Aviation Administration (FAA) and the Department of Transportation’s Office of the Secretary issued a new final rule on the operation and certification of small unmanned aircraft systems[3] and the FAA recently issued a new “blanket Certificate of Waiver or Authorization (COA)” for commercial Section 333[4] and Public Aircraft operators.

 

The new Part 107 rule, the FAA Blanket COA,[5] and other FAA authorizations for UAS operation, direct UAS operators to provide expedited notification to the FAA in the event that any of a series of enumerated occurrences take place during the operation of a UAS.  Included in these instructions are reminders that the FAA procedures “are not a substitute for separate accident/incident reporting required by the National Transportation Safety Board (NTSB) under 49 CFR §830.5.”  By means of this Advisory, the NTSB reminds operators of any civil UAS, other than those operated for hobby or recreational purposes, of the NTSB’s accident and incident reporting requirements in Part 830 of title 49, Code of Federal Regulations.

 

BACKGROUND

In August of 2010, the NTSB revised its Part 830 regulations to clarify that its accident and incident notification requirements apply to unmanned aircraft as well as conventional manned aircraft.[6]  Section 830.5 instructs operators of civil aircraft and certain public aircraft to immediately, and by the most expeditious means available, notify the NTSB when an accident or listed incident occurs.

 

An accident will result in the NTSB’s initiating an investigation and report with a determination of probable cause.  In order to minimize the burden on operators of a small UAS and the NTSB, we have exempted from the definitions of “aircraft accident” and “unmanned aircraft accident” in section 830.2 of the NTSB regulations those events in which there is only substantial damage to the aircraft (no injuries), and the aircraft has a maximum gross takeoff weight of less than 300 pounds. This is what happened with the Facebook drone. You can read the NTSB crash report.

 

Although any of the incidents enumerated in section 830.5 would require the operator to notify the NTSB, the agency at its discretion may decide to conduct a full investigation with probable cause.

 

REQUIREMENTS

A civil UAS operator must immediately and by the most expeditious means, notify the NTSB of an accident or incident.  An unmanned aircraft accident is defined in 49 C.F.R. § 830.2 as an occurrence associated with the operation of any public or civil unmanned aircraft system that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission, in which:

(1) Any person suffers death or serious injury; or

(2) The aircraft has a maximum gross takeoff weight of 300 pounds or greater and sustains substantial damage.

Section 830.2 also provides definitions of what constitutes “serious injury” and “substantial damage”.

 

Operators must consider that the rest of the reporting requirements for serious incidents listed in section 830.5 apply regardless of UAS weight.  Listed serious incidents that apply to small UAS include the following events:

  • Flight control system malfunction or failure: For an unmanned aircraft, a true “fly-away” would qualify. A lost link that behaves as expected does not qualify.
  • Inability of any required flight crewmember to perform normal flight duties as a result of injury or illness.  Examples of required flight crewmembers include the pilot, remote pilot; or visual observer if required by regulation.  This does not include an optional payload operator.
  • In-flight fire, which is expected to be generally associated with batteries.
  • Aircraft collision in flight.
  • More than $25,000 in damage to objects other than the aircraft.
  • Release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact.
  • Damage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blade(s).
  • An aircraft is overdue and is believed to have been involved in an accident.

EXAMPLES

Below are examples of potential events.

  • A small multirotor UAS has a fly-away and crashes into a tree, destroying the aircraft:  Not an accident, (though substantial damage, too small, and no injuries), but the operator is required to notify the NTSB of a flight control malfunction. NTSB may initiate an investigation and report with a determination of probable cause.
  • A small multirotor UAS has a fly-away and strikes a bystander causing serious injury:  Accident (resulted in serious injury). The operator is required to immediately notify the NTSB. The NTSB must investigate the accident and determine a probable cause.
  • A small multirotor UAS hits a tree due to pilot inattention on a windy day:  Not an accident (too small, even if substantial damage). However, the operator is required to notify the NTSB if other criteria of 830.5 are met.  NTSB may initiate an investigation and report with a determination of probable cause.
  • A large, experimental UAS (400 lbs) has a structural failure and crashes in a remote area:  Accident (substantial damage and gross takeoff weight of 300 lbs. or greater). The operator is required to immediately notify the NTSB.  NTSB must investigate and determine a probable cause.

drone-crash-flowchart

 

We’d also like to remind unmanned aircraft operators that none of Part 830 is intended to apply to hobbyist or recreational operators as described in section 336 of the FAA Modernization and Reform Act of 2012[7] and applicable FAA guidance.

 

We hope this advisory serves as a useful reminder to the UAS community that the NTSB remains committed to performing its long-standing mission to support air safety through accident and incident investigation, while placing a minimum burden on this growing industry.

 

This guidance applies to any unmanned aircraft operated under Part 107, 333, civil COA, experimental certificate, etc.  UAS operators should note that they may have additional reporting requirements to the FAA, military, or other government agencies depending on the applicable regulations under which they are operating.

 

For further information or questions, you may contact:

Bill English

National Transportation Safety Board

Major Investigations (AS-10)

[email protected]

 

What happens after I call the NTSB phone number?

After contacting the NTSB’s 24-hour ROC, your notification will be taken and forwarded to the appropriate NTSB division for processing. The reported event will be evaluated and a determination will be made whether or not the NTSB will investigate the event. All aircraft accidents as defined by 49 CFR 830.2 are investigated in some capacity, as are select incidents. If an investigation is opened into an event, an investigator will then contact the operator/reporting party to request additional information.

While I’m waiting, do I have to protect the aircraft wreckage?

49 CFR § 830.10 says,

(a) The operator of an aircraft involved in an accident or incident for which notification must be given is responsible for preserving to the extent possible any aircraft wreckage, cargo, and mail aboard the aircraft, and all records, including all recording mediums of flight, maintenance, and voice recorders, pertaining to the operation and maintenance of the aircraft and to the airmen until the Board takes custody thereof or a release is granted pursuant to §831.12(b) of this chapter.

(b) Prior to the time the Board or its authorized representative takes custody of aircraft wreckage, mail, or cargo, such wreckage, mail, or cargo may not be disturbed or moved except to the extent necessary:

(1) To remove persons injured or trapped;

(2) To protect the wreckage from further damage; or

(3) To protect the public from injury.

(c) Where it is necessary to move aircraft wreckage, mail or cargo, sketches, descriptive notes, and photographs shall be made, if possible, of the original positions and condition of the wreckage and any significant impact marks.

(d) The operator of an aircraft involved in an accident or incident shall retain all records, reports, internal documents, and memoranda dealing with the accident or incident, until authorized by the Board to the contrary.

 

I called the NTSB phone number. I am currently waiting for an NTSB investigator to contact me. Is there anything I can do now to assist the investigation?

If the event meets the criteria of 49 CFR 830 and is determined to be an aircraft accident, the NTSB investigator assigned to the case will require the operator to complete NTSB Form 6120.1 – Pilot Operator Aircraft Accident/Incident Report. 49 CFR 830.15 requires you file the form “within 10 days after an accident, or after 7 days if an overdue aircraft is still missing.” Should you be directed to complete Form 6120.1 – “Pilot/Operator Aircraft Accident/Incident Report”, please do as follows:

  • Obtain the form from the requesting NTSB office or download a form-fillable PDF version.
  • The form-fillable version can be edited and saved repeatedly, or simply printed and filled out manually using the free Adobe Acrobat Reader (or equivalent software).
  • DO NOT submit the form until you are contacted by an investigator and are provided with instructions regarding where to send the form. Forms can be submitted by email, FAX, or post mail.
  • Keep in mind that Form 6120.1 has many boxes and fields that are not very applicable to drone pilots. Just do the best you can in filling it all out. The investigator will contact you if there are any questions.

 

Filing of this report with the assigned investigator satisfies the requirements of 49 CFR 830.15 – Reports and statements to be filed. DO NOT submit a report form in-lieu of providing an initial notification of an aircraft accident to the NTSB ROC.

 

The Reporting Requirements to Make to the FAA

There are two types of reporting made to the FAA: (1) when there has been a deviation from the regulations and requested to report, and (2) when there has been an accident.

1. Upon Request Following a Deviation Due to an Emergency

107.21 In-flight emergency.

(a) In an in-flight emergency requiring immediate action, the remote pilot in command may deviate from any rule of this part to the extent necessary to meet that emergency.

(b) Each remote pilot in command who deviates from a rule under paragraph (a) of this section must, upon request of the Administrator, send a written report of that deviation to the Administrator.

2. After an Accident (Within 10 Days)

The FAA gives you 10 days to respond. I would highly suggest you take this time to contact an attorney. Remember that the FAA can prosecute you if you did something stupid.

107.9 Accident reporting.

No later than 10 calendar days after an operation that meets the criteria of either paragraph (a) or (b) of this section, a remote pilot in command must report to the FAA, in a manner acceptable to the Administrator, any operation of the small unmanned aircraft involving at least:

(a) Serious injury to any person or any loss of consciousness; or

(b) Damage to any property, other than the small unmanned aircraft, unless one of the following conditions is satisfied:

(1) The cost of repair (including materials and labor) does not exceed $500; or

(2) The fair market value of the property does not exceed $500 in the event of total loss.

The FAA provided more guidance on this regulation on page 4-3 in their Advisory Circular 107-2:

“1. At least serious injury to any person or any loss of consciousness. A serious injury is an injury that qualifies as Level 3 or higher on the Abbreviated Injury Scale (AIS) of the Association for the Advancement of Automotive Medicine (AAAM). The AIS is an anatomical scoring system that provides a means of ranking the severity of an injury and is widely used by emergency medical personnel. Within the AIS system, injuries are ranked on a scale of 1 to 6, with Level 1 being a minor injury, Level 2 is moderate, Level 3 is serious, Level 4 is severe, Level 5 is critical, and Level 6 is a nonsurvivable injury. The FAA currently uses serious injury (AIS Level 3) as an injury threshold in other FAA regulations.”

“Note: It would be considered a “serious injury” if a person requires hospitalization, but the injury is fully reversible (including, but not limited to, head trauma, broken bone(s), or laceration(s) to the skin that requires suturing).”  [“In addition to serious injuries, this rule will also require accident reporting for accidents that result in any loss of consciousness because a brief loss of consciousness may not rise to the level of a serious injury.”[8]]

“2. Damage to any property, other than the small UA, if the cost is greater than $500 to repair or replace the property (whichever is lower).”

“Note: For example, a small UA damages a property whose fair market value is $200, and it would cost $600 to repair the damage. Because the fair market value is below $500, this accident is not required to be reported. Similarly, if the aircraft causes $200 worth of damage to property whose fair market value is $600, that accident is also not required to be reported because the repair cost is below $500.”

Why is the $500 number important?

When you do your pre-flight walk around, you should be figuring out what is $500 and cheaper in in the area. The FAA said, “Property damage below $500 is minimal and may even be part of the remote pilot in command’s mitigations to ensure the safety of the operation. For example, a remote pilot in command may mitigate risk of loss of positive control by positioning the small UAS operation such that the small unmanned aircraft will hit uninhabited property in the event of a loss of positive control.”[9]

 

What Do I Report to the FAA?

Remember that the NTSB try to find causes to promote safety and does NOT do enforcement actions while the FAA DOES do enforcement actions.  The FAA gave us a clue as to how they will handle this going forward, “the confined-area-of-operation regulations discussed in section III.E.3 of this preamble, such as the general prohibition on flight over people, are designed with the express purpose of preventing accidents in which a small unmanned aircraft hits a person on the head and causes them to lose consciousness or worse. Thus, if there is a loss of consciousness resulting from a small UAS operation, there may be a higher probability of a regulatory violation.”[10]

 

You are really between a rock and hard place if there is a crash. Why? Because law enforcement or someone else will likely report the accident to the FAA. If you don’t report, you will get in trouble.  If you do report, you COULD get in trouble. You might want to contact an attorney during this 10 day period before you file the report.  Remember that everything you report can and will be used against you.

 

Submitting the Report. The accident report must be made within 10 calendar-days of the operation that created the injury or damage. The report may be submitted to the appropriate FAA Regional Operations Center (ROC) electronically or by telephone. Electronic reporting can be completed at www.faa.gov/uas/. Reports may also be made to the nearest jurisdictional FSDO (http://www.faa.gov/about/office_org/field_offices/fsdo/). The report should include the following information:

  1. sUAS remote PIC’s name and contact information;
  2. sUAS remote PIC’s FAA airman certificate number;
  3. sUAS registration number issued to the aircraft, if required (FAA registration number);
  4. Location of the accident;
  5. Date of the accident;
  6. Time of the accident;
  7. Person(s) injured and extent of injury, if any or known;
  8. Property damaged and extent of damage, if any or known; and
  9. Description of what happened.

 

FAA REGIONALOPERATIONS CENTERS LOCATION WHERE ACCIDENT OCCURRED:

  • DC, DE, MD, NJ, NY, PA, WV, and VA 404-305-5150
  • AL, CT, FL, GA, KY, MA,ME,MS, NC, NH, PR, RI, SC, TN, VI, and VT 404-305-5156
  • AK, AS, AZ, CA, CO, GU, HI, ID, MP,MT, NV, OR, UT, WA, and WY 425-227-1999
  • AR, IA, IL, IN, KS, LA, MI,MN,MO, ND, NE, NM, OH, OK, SD, TX, and WI 817-222-5006

Aviation Safety Reporting System (ASRS) aka “The NASA Report.”

 

The ASRS system is run by NASA which is why this report is nicknamed the “NASA Form” or the “NASA Report.”  “The FAA also notes that the Aviation Safety Reporting System (ASRS) is available for voluntary reporting of any aviation safety incident or situation in which aviation safety may have been compromised. The FAA offers ASRS reporters guarantees and incentives to encourage reporting by holding ASRS reports in strict confidence and not using ASRS information against reporters in enforcement actions. Further, the FAA agrees that data collection is a valuable tool for determining a baseline for performance, reliability, and risk assessment. The FAA plans to develop a tool where remote pilots of small UAS can voluntarily share data which may not meet the threshold for accident reporting. This would provide a means for evaluation of operational integrity for small UAS.”[11]

 

Unfortunately, the FAA said, “The FAA disagrees that SMS and ASRS systems should be covered on the [Part 107] knowledge test[]. . . . because ASRS is not currently required knowledge for part 61 pilot certificate holders.” This means you aren’t required to KNOW this but you SHOULD. On top of the FAA NOT requiring you to know this, they mention NOTHING about this report in AC 107-2. Remember, this report benefits you more than the FAA.

 

Keep in mind that the report goes to NASA, not the FAA. NASA is a completely separate agency from the FAA, just like NTSB. “There has been no breach of confidentiality in more than 34 years of the ASRS under NASA management.”

 

Why Should I file a “NASA Report?”

Advisory Circular 00-46E says,

“The FAA considers the filing of a report with NASA concerning an incident or occurrence involving a violation of 49 U.S.C. subtitle VII or the 14 CFR to be indicative of a constructive attitude. Such an attitude will tend to prevent future violations. Accordingly, although a finding of violation may be made, neither a civil penalty nor certificate suspension will be imposed if:

(1) The violation was inadvertent and not deliberate;

(2) The violation did not involve a criminal offense, accident, or action under 49 U.S.C. § 44709, which discloses a lack of qualification or competency, which is wholly excluded from this policy;

(3) The person has not been found in any prior FAA enforcement action to have committed a violation of 49 U.S.C. subtitle VII, or any regulation promulgated there for a period of 5 years prior to the date of occurrence; and

(4) The person proves that, within 10 days after the violation, or date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA.

There are no limitations on how many NASA Reports you can file. Immunity will not be granted if you received an enforcement action and have been found in violation of the FAR’s within the previous 5 years from the date of occurrence.

 

So I should always file a NASA Report? It looks like a “get out of jail free card.”

No! If you did something criminal or were involved in an accident, then that information will NOT be
deidentified before NASA sends the information to the Department of Justice for criminal actions or the FAA and NTSB for accidents.  This means the report you filed with your name, phone number, address, and a whole bunch of other goodies is going to be sent over to the guys who can prosecute you! How convenient. So if you did something criminal or were involved in an accident, ESPECIALLY if you are unsure if you fall into one of those categories or not, you should contact me. Flying intentionally into a 99.7 TFR is a criminal penalty.

 

Keep in mind that this is a waiver from disciplinary action. You will still have a violation show up on your pilot record.

 

Great. So there aren’t any other issues with reporting?

Potentially. Section 91.25 says, “The Administrator of the FAA will not use reports submitted to the National Aeronautics and Space Administration under the Aviation Safety Reporting Program (or information derived therefrom) in any enforcement action except information concerning accidents or criminal offenses which are wholly excluded from the Program.” The problem is that is Part 91 and NOT part 107. The FAA didn’t include a Part 107 equivalent.

 

We know that NASA won’t give over the info. The FAA can find out a lot of info on their own and can initiate an enforcement action. The idea of the NASA Form was to prevent the imposition of a civil penalty or suspension when the FAA got the info on their own. The FAA indicated in the Part 107 preamble they would continue to honor the program. However, they could change their mind in the future, it isn’t a regulation, and go after people who have filed a NASA Form, but they would get insane amounts of pressure from the safety community to not do that. I’m just making you aware of this situation.

 

I hope this helps you guys understand what you need to do and when you need to contact me after a crash. Keep in mind that this was only about the FAA and NTSB, not about other potential liability issues that could come about as a result of the crash.

 

Continue to the Next Topic: Temporary Flight Restrictions (Civil and Criminal Punishments)

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[1] http://www.ntsb.gov/news/speeches/rsumwalt/Documents/Sumwalt_141020.pdf

[2] Id. citing 49 U.S.C. § 1154(b).

[3] See 81 Fed. Reg.  42063 (June 28, 2016).  This action fulfills Congress’s direction in section 332(b) of the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, for the Secretary of Transportation and the FAA to issue a final rule on small unmanned aircraft systems that will allow for civil operations of UAS in the National Airspace System.

[4] Section 333 of the FAA Modernization and Reform Act of 2012 provides that “[i]f the Secretary of Transportation determines that … certain unmanned aircraft systems  may operate safely in the national airspace system,  the Secretary  shall establish requirements for the safe operation of such aircraft systems in the national airspace system.”

[5] The FAA Blanket COA for any Operator issued a Valid Section 333 Grant of Exemption (FAA Form 7711-1).

[6] 75 Fed. Reg. 51955 (August 24, 2010).

[7] Section 336(c) states that the term the term ‘‘model aircraft’’ means 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.

[8] Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42, 178 (June 28, 2016).

[9] Id. at 42,178.

[10] Id.

[11] Id. at 42,179.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Latest posts by Jonathan Rupprecht (see all)

Q & A about Section 333, Part 107, and Drone Law.

I was recently interviewed by Jeremiah from Commercial UAV News. The title of the article is Your FAA Regulation Questions Answered: Part 107, Section 333 and the Future of Drone Law.  I would highly suggest everyone take the time to read over this Q & A article.

 

Your FAA Regulation Questions Answered: Part 107, Section 333 and the Future of Drone Law