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 and Youtube, 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:
The actual drone regulations (Part 107, Part 101, Part 47, Part 48, etc.) (Please keep in mind that the laws are constantly changing so even some of the regulations might be outdated.)
The FAA’s website.
My website! You can even use the search feature.
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).
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 state drone laws are preempted and which drone laws are not.
There are other public laws that have been passed and which were codified in the United States Code. The Department of Justice enforces the Federal Criminal Code in Title 18 and the Federal Aviation Statutes in Title 49 of the United States Code.
The Department of Justice 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).
Regulations are created through the rulemaking process. There are many regulations that apply to drones and I have a federal drone regulations directory page to help people. Below is covering the agencies that enforce the laws but does not go in-depth on the regulations which is what the drone regulations directory page is designed to do.
1. 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 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.
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. The FCC put out an enforcement advisory on “DRONE AUDIO/VIDEO TRANSMITTER ACCESSORIES MUST COMPLY WITH THE COMMISSION’S RULES TO BE MARKETED TO U.S. CUSTOMERS” The FCC has gone after companies who have sold drone related equipment that were transmitting on frequencies they should not, were over the legal power limit, or were not certified.
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.
Also, just like the federal agencies, state agencies have created regulations that can apply to drones as well. This is another reason you should contact an attorney licensed in that state for help.
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.
A person may not operate a small unmanned aircraft system unless that person has completed one of the following, within the previous 24 calendar months:
(a) Passed an initial aeronautical knowledge test covering the areas of knowledge specified in §107.73(a);
(b) Passed a recurrent aeronautical knowledge test covering the areas of knowledge specified in §107.73(b); or
(c) If a person holds a pilot certificate (other than a student pilot certificate) issued under part 61 of this chapter and meets the flight review requirements specified in §§61.56, passed either an initial or recurrent training course covering the areas of knowledge specified in §107.74(a) or (b) in a manner acceptable to the Administrator.
My Commentary on Section 107.65 Aeronautical knowledge recency.
Think of these as multiple doors. A Part 61 certificated pilot could go through all three doors. An already certificated remote pilot could go through (a) and (b).
Currency (Every 24 Months You Have to Prove Your Aeronautical Knowledge)
Section 107.65 says, a “person may not operate a small unmanned aircraft system unless that person has completed one of the following, within the previous 24 calendar months:
(a) Passed an initial aeronautical knowledge test covering the areas of knowledge specified in §107.73(a);
(b) Passed a recurrent aeronautical knowledge test covering the areas of knowledge specified in §107.73(b); or
(c) If a person holds a pilot certificate (other than a student pilot certificate) issued under part 61 of this chapter and meets the flight review requirements specified in §61.56, passed either an initial or recurrent training course covering the areas of knowledge specified in §107.74(a) or (b) in a manner acceptable to the Administrator.”
You need 1 of the following within the previous 24 calendar months to operate under Part 107; however, if you don’t meet this, you are grounded from flying under Part 107 but you still could fly recreationally under Part 101.
Does your remote pilot certificate expire?
No, you don’t lose your remote pilot certificate. It really shouldn’t be termed recertification as you are NOT getting a certificate again or having to worry about losing the certificate. You just cannot exercise the privileges of the remote pilot certificate.
Everyone typically gets confused by what I just said. I’ll give you some examples.
Bob passes an initial aeronautical knowledge test on September 15, 2016 and received his remote pilot certificate. This means Bob needs to do (a),(b), or (c) no later than September 30, 2018. Otherwise, he’ll have to stop flying under Part 107 until he does (a), (b), or (c).
Tony passed the exam with Bob on September 15, 2016. He received his remote pilot certificate. He did not take the recurrent exam until October 10, 2018 and passed in the afternoon at 1:34PM. Tony could not fly from October 1-10 up till he passed the test around 1:33-34PM. Once he passed, he was good to go for another 24 months (October 31st, 2020 @ 11:59 PM).
Sam, who also passed with Bob and Tony on September 15, 2016, received his remote pilot certificate but didn’t really do much drone flying because of life circumstances. He managed to pass the recurrent knowledge exam on December 14, 2019. He is good until December 31st, 2021.
Important point. Please note that when calculating recency, you are going off of when you did (a), (b), or (c) above, NOT when you received your remote pilot certificate or what is dated on your certificate.
How do I check if someone else is current?
You would think the FAA would have just put expiration dates on the remote pilot certificates like they do with my flight instructor certificate but no. If you search the FAA airmen registry, you’ll just see date of issue but not when currency expires.
If you are checking a person’s currency (like if you are hiring a person or if you are a police officer stopping a drone flyer) you need to ask them for:
Method 1: their remote pilot certificate AND initial or recurrent knowledge exam test report or
Method 2: their Part 61 pilot certificate (but not student pilot certificate), how they meet the flight review requirements of 61.56, AND their initial or recurrent online training course certificate.
You find the date in method 1 or 2. You add two years and then find the last day of the month. It is important to know this as there might be some scam artists out there trying to save $150 by not taking a knowledge exam and hoping people don’t check.
If they lost their knowledge test, they can obtain it. Starting January 13, 2020, everyone will need to use their FTN to take the initial or recurrent knowledge test. The FAA PDF says, “Ability for the applicant to reprint lost/destroyed AKTRs from the testing vendor’s website. For all knowledge tests taken before January 13, 2020, applicants must contact the FAA Airmen Certification Office (AFB-720) for replacement, embossed copies of lost/destroyed AKTRs.” The FAA put out a FAQ document on the FTN situation here https://www.faa.gov/training_testing/testing/acts/media/ftn_faqs.pdf
Dude are you saying I should bring along my knowledge exam with my remote pilot certificate with me when I fly?
Well, it is a good idea in case that someone you are dealing with also read my article and wondering if you really are current.
Now you might have noticed that you can take the initial or recurrent knowledge exams. The initial knowledge test is 60 questions over 2 hours while recurrent is 40 questions over 1.5 hours. They both require a passing score of 70% and will cost $150 to take.
Corona Virus is preventing me from taking knowledge test. What can I do?
My remote pilot knowledge test is about to expire, and I can’t go take the test because of Corona Virus. What can I do?
The FAA is issuing an emergency special federal aviation regulation (SFAR).
It has not gone into effect yet. This is going to be published in the Federal Register.
Remote pilots, who are still current, about to lose currency (April through June) and want to take an initial or recurrent knowledge exam, but cannot due to the Corona Virus, can instead take an free online course on the FAA’s website. This allows you to fly for another 6 months from date of online course.
Manned aircraft pilots who want to maintain currency for Part 107 can do this provided (1) they are still current but needed a BFR sometime in March-June, (2) within the previous 12 calendar months they obtained 10 hours as PIC in an aircraft they are rated, (3) taken courses totally 3 Wings credits (taken after January 2020), and (4) took the FAA online remote pilot course. Their BFR currency will be for 3 months and their remote pilot currency for 24 months.
Text of Draft Final Rule Applicable to Part 107 Remote Pilots
(7) Aeronautical Knowledge Recency Requirements of § 107.65. A person who has not satisfied the aeronautical knowledge recency requirements of § 107.65(a) or (b) of this chapter within the previous 24 calendar months may operate a small unmanned aircraft system under part 107 of this chapter, provided that person meets the following requirements—
(i) Airmen requirements. The person was current to exercise the privileges of a remote pilot certificate in March 2020 and, to maintain aeronautical currency, is required to meet the aeronautical recency requirements in § 107.65(a) or (b) of this chapter between April 1, 2020 and June 30, 2020.
(ii) Qualification requirements. The person must have completed an FAA developed initial or recurrent online training course, available at https://www.faasafety.gov, covering the areas of knowledge specified in § 107.74(a) or (b) of this chapter. Each person is eligible to take an online training course specified in this paragraph one time for the purpose of obtaining the six calendar month grace period specified in paragraph 2.(b)(7)(iii) of this SFAR.
(iii) Grace period. The person may operate a small unmanned aircraft system under part 107 of this chapter for a duration of six calendar months from the month in which the person completed the online training course specified in paragraph 2.(b)(7)(ii) of this SFAR. Before operating a small unmanned aircraft system under part 107 in the seventh month after the month in which the person completed the online training course, the person must satisfy § 107.65 of this chapter.
Text of Discussing the Final Rule for Part 107
Section 107.65 requires remote pilots certificated under part 107 to establish recency of knowledge every 24 calendar months. To meet the recency of knowledge requirement per §107.65(a) or (b), remote pilots must pass an FAA knowledge test at a knowledge testing center. The initial and recurrent knowledge tests required by §107.65(a) or (b) cover the comprehensive list of knowledge areas specified in §107.73(a) or (b), respectively. Section 107.65(c) allows remote pilots who are also certificated under part 61 and have a current flight review in accordance with §61.56 to complete online training to meet aeronautical knowledge recency. The initial or recurrent training course covers the condensed list of knowledge areas specified in §107.74(a) or (b), respectively, because the part 61 pilot who has a current flight review has already demonstrated knowledge of many of the topic areas tested on the UAS knowledge test.
Even if open, some knowledge testing centers may introduce airmen to risks of exposure to COVID-19. The inability of part 107 operators to remain current could have a negative impact on a community’s ability to support the safe inspection of infrastructure, including power lines, fire and rescue, flood responses, law enforcement, and overall public safety.
Under the extraordinary circumstances of the COVID-19 outbreak, eligible remote pilots who would normally establish recency of knowledge in accordance with §107.65(a) or (b) may complete online training as an alternative if required to establish recency between April 2020 and June 2020. The remote pilot may complete the FAA-developed initial or recurrent online training courses at www.faasafety.gov one time to establish knowledge recency for six calendar months. As previously stated, the initial or recurrent online training course covers a condensed list of UAS-specific knowledge areas because it is intended for persons who hold part 61 pilot certificates and satisfy the flight review requirements of §61.56. The FAA finds that, for a limited duration of time, allowing remote pilots to complete one of these online training courses is an adequate alternative to passing a knowledge test. However, because these courses do not include all of the knowledge areas under §107.73(a) or (b) that a remote pilot is required to be tested on every 24 calendar months, the remote pilot will need to establish knowledge recency in accordance with §107.65 at the conclusion of the six calendar months. Remote pilots who qualify to establish recency of aeronautical knowledge per §107.65(c) are not included in this relief. Pilots who use the relief from §61.56 in this SFAR may establish recency of aeronautical knowledge per §107.65(c) and retain remote pilot privileges for 24 calendar months.
Text of Final Rule for those Using 61.56(c) to become current under 107.65(c).
(2) Flight review requirements of § 61.56. A person who has not completed a flight review within the previous 24 calendar months in accordance with § 61.56 of this chapter may continue to act as pilot in command of an aircraft, provided the following requirements are met—
(i) Airmen requirements. The person was current to act as pilot in command of an aircraft in March 2020 and, to maintain currency, is required to complete a flight review under § 61.56 of this chapter between March 1, 2020 and June 30, 2020.
(ii) Qualification requirements. To act as pilot in command of an aircraft during the period specified in paragraph 2(b)(2)(iii) of this SFAR, the person must have—
(A) Within the 12 calendar months preceding the month in which the flight review is due, logged at least 10 hours of flight time as pilot in command in an aircraft for which that pilot is rated; and
(B) Since January 1, 2020 and preceding the date of flight, completed online Wings courses for pilots from the FAA Safety Team website, available at https://www.faasafety.gov. The online training courses must total at least 3 Wings credits.
(iii) Grace period. The person may act as pilot in command of an aircraft for a duration of three calendar months from the month in which the flight review was due. Before acting as pilot in command of an aircraft in the fourth month after the month in which the flight review was due, the person must satisfactorily complete a flight review in accordance with § 61.56 of this chapter.
Text Applicable to Part 61 Pilots Utilizing 107.65(c). (Section 61.56(c) Biannual Flight Review)
Section 61.56(c) states that no person may act as PIC of an aircraft, unless since the beginning of the 24th calendar month before the month in which that person acts as PIC, that person has accomplished a flight review in an aircraft for which that person is rated and the person’s logbook has been endorsed for that review by an authorized instructor certifying the review was satisfactorily completed.
The FAA finds, under the extraordinary circumstances of the COVID-19 outbreak, that extending the 24 calendar month requirement of §61.56(c) by up to three calendar months will not adversely affect safety, provided the extension applies to active pilots and certain risk mitigations are met. The three calendar month extension applies to pilots who were current to act as PIC of an aircraft in March 2020 and whose flight review was due in March 2020 through June 2020. To mitigate any safety risk, the pilot must have logged at least 10 hours of PIC time within the twelve calendar months preceding the month the flight review was due. This flight time must be obtained in an aircraft for which that pilot is rated. In addition, eligible pilots will need to complete FAA Safety Team online courses totaling at least three WINGS credits. The courses must have been completed in January 2020 or later to meet this requirement. Completion of the safety courses demonstrates continued learning and pilot professional development.
Keep in mind that this SFAR applies to many other things such as duration of medical certificates, renewal of flight instructor certificates, etc. You can read the entire 94 page document here.
Frequently Asked Questions (Answered by Jonathan):
My knowledge test already expired. How does this benefit me?
This is only for those who are presently current. If you already expired, you are not eligible.
How much does the online FAA course cost?
It’s free. The two FAA Courses are ALC-451 (Part 107 Small Unmanned Aircraft Systems (small UAS) Initial) and ALC-515 (Part 107 Small Unmanned Aircraft Systems (small UAS) Recurrent).
How many times can we do this?
Does it last 6 months from date of my recency expiration or 6 months from the date I complete the online course?
It’s 6 months from the month you took the online course. So if you took the online course on 5/1, you would be good through the last day November (11/30).
Do the course you have over at Rupprecht Drones count towards this?
No, the night operations course, airspace and chart reading course, and Part 107 regulations over at Rupprecht Drones were not designed for this; however, we area structuring them all (and the future courses in the works) so you could take your future recurrent knowledge exams online through our courses according to the proposed regulations.
Q: Who does the SFAR apply to? A: The SFAR applies to an airman: 1. Who is certificated as a remote pilot under part 107; and 2. Whose recency of knowledge lapses between April 1, 2020 and June 30, 2020; and 3. Who must meet recency of knowledge requirements by passing an aeronautical knowledge test per §107.65(a) or (b)
Q: What does the SFAR do? A: An airman who is eligible and complies with the provisions of the SFAR will be able to take either online training course (ALC-451 or ALC-515) at www.faasafety.gov in lieu of taking an aeronautical knowledge test at a knowledge testing center required by §107.65(a) or (b). Completing the online training course under the provisions of the SFAR will extend an airman’s aeronautical knowledge recency six calendar months.
Q: What happens after the additional six calendar months of aeronautical knowledge recency the SFAR provides or the SFAR is terminated? A: Unless otherwise extended, an airman who is in their sixth calendar month must comply with §107.65 as written in order to continue exercising the privileges of their remote pilot certificate in the following calendar month. For example, if an airman completes the online training per the SFAR on May 4th, 2020, prior to November 1st , 2020 they will need to establish recency of knowledge by complying with §107.65 as written. Termination of the SFAR will require compliance with §107.65 as written.
Q: When am I due to establish recency of knowledge and when does my recency of knowledge lapse? A: An airman is due to establish recency of knowledge in the 24th calendar month from the month they last completed training/testing. Recency of knowledge lapses (“expires”) on the first day of the 25th calendar month from the month they last completed training/testing.
Q: My currency expired on March 1, 2020 (or earlier), am I eligible for this relief? A: No. An airman whose recency of knowledge (“currency”) lapsed on March 1, 2020 were not restricted by COVID-19 pandemic procedures from visiting a knowledge testing center in February, 2020.
Q: What is a “calendar month”? A: A calendar month contains all dates within that month. For example, if an airman received their initial remote pilot certification (or established recency of knowledge) on April 18th, 2018, they would be current through April 30, 2020 (the 24th calendar month). In this example, on May 1, 2020, the airman would not be permitted to exercise the privileges of their remote pilot certificate until they met the requirements of §107.65.
Q: Does my remote pilot certificate expire? No. Remote Pilot certificates do not expire. The ability to exercise the privileges of the certificate must be established every 24 calendar months by complying with §107.65.
Q: What happens if I’m not eligible for the SFAR relief? A: If your recency of knowledge expired in March 2020 (or before), you may still be able to operate under part 107, provided you can comply with §107.12(a)(2). That regulation permits a person to operate a small UAS under part 107 without holding a remote pilot certificate as long as they are under direct supervision of a Remote Pilot who is current per §107.65.
Q: Does this provide relief for initial certification of remote pilots under part 107 as well? A: No. Applicants for a remote pilot certificate must comply with §107.63. The SFAR does not offer any relief for those requirements.
Q: If I qualify for initial certification under §107.63(a)(2) and I cannot visit a FAA Flight Standards District Office (FSDO), who can process my application? A: Any FAA Designated Pilot Examiner (DPE), Airman Certification Representative (ACR), or Certified Flight Instructor (CFI) may process applications under §107.63(a)(2). Note: CFIs are not authorized to issue a temporary certificate and the applicant will need to wait until the Integrated Airman Certification and Rating Application (IACRA) notifies the applicant that their temporary airman certificate is available for printing.
Q: Do I need to create an account on www.faasafety.gov in order to take either of the online training courses identified in the SFAR? A: Yes. In order for credit to be given for completing the online course, the user must create an account. There is no cost for creating an account.
Q: If I don’t have access to the internet or a computer, will I be able to take the training course another way? A: No. The SFAR only provides relief by completing either training course (ALC-451 or ALC-515) online at www.faasafety.gov.
Q: May a Certified Flight Instructor (CFI) endorse my recency of knowledge to meet the requirements of §107.65? A: No. CFIs are not authorized to endorse recency of knowledge required by §107.65.
Q: Is the FAA extending recency of knowledge without enforcement action, like they did for medical certificates? A: No. To use the relief provided by the SFAR, an airman must be eligible and complete one of the training courses identified.
Q: If I still meet the currency requirements under §61.56 and I complete the online training course per §107.65(c), do I still get a new 24 calendar month period? A: Yes. An airman who qualifies for recency of knowledge per §107.65(c) without using the provisions of the SFAR will still be able to complete the online training course and establish a new 24 calendar month period.
Q: If I qualify for §61.56 relief under the SFAR, will I still be able to establish my recency of knowledge per §107.65(c)? A: Yes. If you are receiving SFAR relief for the currency requirements under §61.56, you may use that relief and establish recency of knowledge under §107.65(c) which will be valid for 24 calendar months.
Q: Can I take the online training identified in the SFAR multiple times to get additional six calendar month extensions? A: No. An airman operating in accordance with the SFAR will be allowed to take the training course a single time to establish recency of knowledge. Completing the training course an additional time, will not “reset” the six calendar month extension.
Q: Do I need to carry additional documents with me when operating under the provisions of the SFAR? A: An airmen operating under the SFAR must remain in compliance with §107.7 and make available to the Administrator “Any other document, record, or report required to be kept under the regulations of this chapter.” This includes documentation that shows eligibility for the SFAR and the training course completion certificate used under the provisions of the SFAR.
Q: I can’t find my previous aeronautical knowledge test/training course certificate. How may I obtain a copy of my previous certificate required by the SFAR? A: To obtain a copy of a previous aeronautical knowledge test certificate, contact the Airman Certification Branch at (866) 878-2498. If an airman completed the online training course at www.faasafety.gov, they may re-print their certificate from their account.
Q: What subject areas are not included in the online training courses that are required under §107.73? A: Airspace classification, flight restrictions, and their operating requirements as well as airport operations are not included in the online training courses. The FAA recommends that remote pilots eligible for relief under the SFAR review those subject areas after completing the online training.
Aeronautical Knowledge Tests (Initial and Recurrent). It is important to have and retain the knowledge necessary to operate a small UA in the NAS. This aeronautical knowledge can be obtained through self-study, taking an online training course, taking an in-person training course, or any combination thereof. The FAA has published the Small Unmanned Aircraft Systems Airman Certification Standard (https://www.faa.gov/training_testing/testing/acs/) that provides the necessary reference material.
Note: The below information regarding initial and recurrent knowledge tests apply to persons who do not hold a current part 61 airman certificate.
6.6.1 Initial Test. As described in paragraph 6.4, a person applying for remote pilot certificate with an sUAS rating must pass an initial aeronautical knowledge test given by an FAA-approved KTC. The initial knowledge test will cover the aeronautical knowledge areas listed below: 1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation; 2. Airspace classification and operating requirements, and flight restrictions affecting small UA operation; 3. Aviation weather sources and effects of weather on small UA performance; 4. Small UA loading and performance; 5. Emergency procedures; 6. Crew Resource Management (CRM); 7. Radio communication procedures; 8. Determining the performance of small UA; 9. Physiological effects of drugs and alcohol; 10. Aeronautical decision-making (ADM) and judgment; 11. Airport operations; and 12. Maintenance and preflight inspection procedures.
184.108.40.206 A part 61 certificate holder who has completed a flight review within the previous 24 calendar-months may complete an initial online training course instead of taking the knowledge test (see paragraph 6.7).
220.127.116.11 Additional information on some of the knowledge areas listed above can be found in Appendix B.
6.6.2 Recurrent Test. After a person receives a remote pilot certificate with an sUAS rating, that person must retain and periodically update the required aeronautical knowledge to continue to operate a small UA in the NAS. To continue exercising the privileges of a remote pilot certificate, the certificate holder must pass a recurrent aeronautical knowledge test within 24 calendar-months of passing either an initial or recurrent aeronautical knowledge test. A part 61 pilot certificate holder who has completed a flight review within the previous 24 calendar-months may complete a recurrent online training course instead of taking the knowledge test.
18.104.22.168 The recurrent aeronautical knowledge test areas are as follows:
1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation; 2. Airspace classification and operating requirements and flight restrictions affecting small UA operation; 3. Emergency procedures; 4. CRM; 5. ADM and judgment; 6. Airport operations; and 7. Maintenance and preflight inspection procedures.
6.6.3 Test Providers. KTCs will administer initial and recurrent examinations provided by the FAA. In order to take an aeronautical knowledge test, an applicant will be required to schedule an appointment with the KTC providing proper government-issued photo identification to the KTC on the day of scheduled testing. The location of the closest KTC can be found at http://www.faa.gov/training_testing/testing/media/test_centers.pdf.
Aeronautical Knowledge Training Course (Initial and Recurrent). This section is applicable only to persons who hold a part 61 airman certificate, other than a student pilot certificate, and have a current flight review.
6.7.1 Initial Training Course. As described in paragraph 6.4, a pilot applying for a remote pilot certificate may complete an initial training course instead of the knowledge test. The training course can be taken online at www.faasafety.gov. The initial training course will cover the aeronautical knowledge areas listed below: 1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation; 2. Effects of weather on small UA performance; 3. Small UA loading and performance; 4. Emergency procedures; 5. CRM; 6. Determining the performance of small UA; and 7. Maintenance and preflight inspection procedures. Note: Additional information on some of the knowledge areas listed above can be found in Appendix B.
6.7.2 Recurrent Training Course. After a pilot receives a remote pilot certificate with an sUAS rating, that person must retain and periodically update the required aeronautical knowledge to continue to operate a small UA in the NAS. As a renewal process, the remote pilot must complete either a recurrent training course or a recurrent knowledge test within 24 calendar-months of passing either an initial or recurrent aeronautical knowledge test. Figure 6-2, Recurrent Training Course Cycle Examples, illustrates an individual’s possible renewal cycles.
The recurrent training course areas are as follows: 1. Applicable regulations relating to sUAS rating privileges, limitations, and flight operation; 2. Emergency procedures; 3. CRM; and 4. Maintenance and preflight inspection procedures.
The FAA took a risk-based approach to defining the airman certification requirements for small UAS remote pilots, and in light of the contained nature of operations, opted not to propose specific training, flight experience, or demonstration of proficiency in order to be eligible for a certificate. A remote pilot certificate applicant’s knowledge of small UAS, as well as regulations concerning safe operations in the NAS, can adequately be evaluated through an initial and recurrent knowledge tests. A person whohas acquired the pertinent knowledge will pass the knowledge tests while a person who has not done so will fail the test.
In response to commenters’ concerns about rote memorization, the FAA notes that in addition to passing the initial knowledge test, remote pilot certificate holders will also have to pass a recurrent knowledge test every two years to ensure that they have retainedthe knowledge necessary to safely operate in the NAS. Further, remote pilot certificate holders will also be subject to continuing FAA oversight. The FAA emphasizes that under 49 U.S.C. 44709 and § 107.7(b), the FAA may reexamine a certificated remote pilot if it has sufficient reason to believe that the remote pilot may not be qualified to exercise the privileges of his or her certificate.137 Because the qualification framework for the remote pilot certificate is based on aeronautical knowledge, a reexamination under section 44709 and § 107.7(b) would be limited to the certificate holder’s aeronautical knowledge. The reexamination may be conducted using an oral or written knowledge test.
A prescriptive formal training requirement is not necessary in this rule. Instead, this rule will allow remote pilot certificate applicants to attain the necessary aeronautical knowledge through any number of different methods, including self-study, enrolling in a training seminar or online course, or through one-on-one instruction with a trainer familiar with small UAS operations and part 107. This performance-based approach is preferable because it will allow individuals to select a method of study that works best for them. These methods of study will then be validated by whether or not the individual is able to pass the knowledge test. As noted in OMB Circular A-4, performance-based standards are generally preferable in a regulation because they allow the regulated parties “to choose the most cost-effective methods for achieving the regulatory goal and create an incentive for innovative solutions.”
The FAA will publish Advisory Circulars to assist remote pilots in operating small UAS safely in the NAS. The FAA Safety Team (FAASTeam) will also host online training courses. These training courses could be used as one method of studying for the knowledge test. Lastly, because there is already a robust network of nearly 700 testing centers located throughout the country set up to administer FAA knowledge tests, the FAA has opted not to establish new standards for small UAS remote pilot testing centers.
f. General Requirement for Initial Aeronautical Knowledge Test
The NPRM proposed requiring applicants for a remote pilot airman certificate with a small UAS rating to pass an initial aeronautical knowledge test to demonstrate that they have sufficient aeronautical knowledge to safely operate a small UAS. The FAA adopts the provisions as proposed with three changes. First, as discussed in III.F.2.i below, the FAA exempts part 61 pilot certificate holders from the requirement to complete an initial knowledge test as long as they satisfy the flight review requirements of their part 61 pilot certificate and complete an online training course within the preceding 24 months. Second, as discussed in III.F.2.h below, the FAA will require that pilots with military experience operating unmanned aircraft pass an initial knowledge test in order to obtain a remote pilot certificate with small UAS rating, and pass a recurrent knowledge test every 24 months subsequent in order to continue to exercise the privileges of that certificate.
Many commenters, including National Association of State Aviation Officials, NAAA, ALPA, and NAMIC, supported the FAA’s proposal to require an initial aeronautical knowledge test in order to operate a small UAS. Conversely, several commenters opposed the initial aeronautical knowledge test. Commenters argued that initial testing is “overkill” and the FAA should treat small UAS pilots like part 103 ultralight vehicle pilots and not require airman certification or testing. The commenters further argued that all testing is unnecessary and inappropriate.
The FAA disagrees with the commenters who asked that the knowledge test be abolished. Title 49 U.S.C. 44703 requires the FAA to ensure that an airman certificate applicant is qualified and able to perform the duties related to the position to be authorized by the certificate.
Here, in order to meet its statutory obligation to determine that an applicant for a remote pilot certificate possesses the knowledge necessary to safely operate in the NAS, the FAA is requiring that those persons pass an initial aeronautical knowledge test. Knowledge testing is the most flexible and efficient means for ensuring that a remote pilot possesses the requisite knowledge to operate in the NAS because it allows the applicant to acquire the pertinent knowledge in whatever manner works best for him or her. The applicant can then take and pass the aeronautical knowledge test to verify that he or she has indeed acquired the pertinent areas of knowledge.
NAFI recommended that an applicant should be required to obtain an instructor endorsement to take the initial aeronautical knowledge test. SkyView Strategies suggested that to protect the public from a poorly prepared UAS operator who receives a passing grade but gets important questions wrong, the UAS operator should be required to present to a flight training instructor his or her written test results, noting areas where knowledge is lacking.
The FAA disagrees with the recommendation that an applicant should be required to obtain an instructor endorsement to take the initial aeronautical knowledge test. While an instructor endorsement is generally required for part 61 pilot certificates, the significantly reduced risk associated with small UAS operations conducted under part 107 would make this framework unduly burdensome in this case. Instead, a stand-alone knowledge test is sufficient to verify the qualification of the remote pilot certificate applicant. Because the aeronautical knowledge test will determine whether an applicant possesses the knowledge needed to safely operate a small UAS, a separate flight instructor endorsement should not be required to take the knowledge test. The FAA also notes that the costs associated with failing and having to retake the knowledge test will provide an incentive to applicants to pick a method of study that maximizes the chance of them passing the aeronautical knowledge test on the first try.
The FAA also does not agree that a certificate applicant should be required to present to a flight instructor his or her knowledge test results for remedial training. The FAA maintains that if a candidate is “poorly prepared,” then that person is unlikely to pass the knowledge test.
The University of Arkansas Division of Agriculture suggested that a more appropriate “aeronautical knowledge exam” needs to be developed with input from UAS users. It further suggested that the FAA should periodically revisit the scope of the aeronautical knowledge test as operational experience data increases. FAA knowledge test banks are continuously updated to address changes to the industry, safety, and special emphasis areas. While the FAA responds to industry and user community feedback, the small UAS knowledge test bank is developed internally within the agency to protect the integrity of test.
g. General Requirement for Recurrent Aeronautical Knowledge Test The FAA proposed that a certificated remote pilot must also pass a recurrent aeronautical knowledge test every 24 months. Like the flight review requirement specified in § 61.56, the recurrent knowledge test provides the opportunity for a remote pilot’s aeronautical knowledge to be reevaluated on a periodic basis. The FAA adopts this provision as proposed, with one change. As discussed in III.F.2.i, the FAA exempts part 61 pilot certificate holders from the requirement to complete recurrent knowledge tests as long as they satisfy the flight review requirements of § 61.56 and complete an online training course every 24 months.
ALPA, AOPA, AUVSI and several other commenters supported the requirement for a recurrent knowledge test. Conversely, Colorado Cattlemen’s Association and a few individual commenters argued that a recurrent knowledge test is unnecessary. The Colorado Cattlemen’s Association explained that small UAS operations present a substantially reduced risk as compared to manned-aircraft operations. Therefore, the commenter argued, it is appropriate to impose different, and in some instances lesser, operational requirements.
The FAA disagrees with the notion that no periodic reevaluation of knowledge is necessary. Knowledge of rules, regulations, and operating principles erodes over time, particularly if the remote pilot is not required to recall such information on a frequent basis. This is a fundamental principle of airman certification, and it applies to all FAA- certificated airmen. For part 61 pilot certificate holders, the flight review, conducted under § 61.56, specifically requires “[a] review of the current general operating and flight rules of part 91” in addition to maneuvers necessary to safely exercise the privileges of the certificate. Likewise, the FAA considers a recurrent knowledge test to be an effective means of evaluating a remote pilot’s retention of knowledge necessary to safely operate small unmanned aircraft in the NAS. Because of the reduced risk posed by small UAS, the FAA is not requiring remote pilots to demonstrate a minimum level of flight proficiency to a specific standard or recency of flight experience in order to exercise the privileges of their airman certificate.
Drone Labs suggested extending the time period between recurrent tests to 5 years, and/or making the test available online to ease recertification. Kansas Farm Bureau recommended a 6-year interval between recurrent tests, similar to the interval for renewal of a driver’s license.
The FAA does not agree that the recurrent testing interval should be longer than two years. Unlike the privileges afforded by a driver’s license, which are exercised on a frequent basis by most drivers, many holders of remote pilot certificates may only exercise their privileges occasionally or may not regularly conduct operations that apply all of the concepts tested on the aeronautical knowledge test. For example, a remote pilot in command may spend years never operating outside of Class G airspace, and then may move to a different location that requires him or her to begin conducting small UAS operations in Class D airspace. Based on experience with manned pilots, those persons who exercise the privileges of their certificate on an infrequent basis are likely to retain the knowledge for a shorter period of time than those who exercise the privileges of their certificate on a regular basis.
Further, as unmanned aircraft operations increase in the NAS, the FAA anticipates the possibility of further changes to rules and regulations. By requiring evaluation on a two-year cycle, the FAA is able to ensure that remote pilots are aware of the most recent changes to regulations affecting their operations.
The FAA acknowledges, however, the burden associated with in-person testing every two years. As such, the FAA intends to look at (in the Operations of Small Unmanned Aircraft Over People rule) alternative methods to further reduce this burden without sacrificing the safety benefits afforded by a two-year recurrent knowledge check.
i. Credit to Holders of Part 61 Pilot Certificates
For the reasons discussed below, this rule will allow part 61 pilot certificate holders (other than the holders of a student pilot certificate) with current flight reviews139 to substitute an online training course for the aeronautical knowledge testing required by this rule.
Airborne Law Enforcement Association and Texas A&M University-Corpus Christi, suggested requiring only the recurrent knowledge test for part-61-certificated pilots. Numerous commenters also suggested that holders of part 61 airman certificates should be required to take only the recurrent knowledge test, not the initial knowledge test, or should be exempted entirely from knowledge-testing requirements. One commenter suggested that the holders of private, commercial, and ATP certificates who have operated UAS under exemptions be exempted from the initial knowledge test requirement. Another commented that non-military COA pilots should be permitted to take just the recurrent test, since the applicants will usually hold at least a private pilot certificate. One commenter stated that those applicants who hold part 61 pilot certificates should be required only to complete UAS-specific modules as part of the existing FAA Wings program. Another commenter stated that there should be a provision to enable existing small UAS pilots witha certain amount of logged PIC time to fly a small UAS without having to take a knowledge test.
The FAA agrees with commenters who suggested that requiring part-61-certificated pilots who satisfy the flight-review requirements of § 61.56 to take an initial or recurrent knowledge test is unduly burdensome. Through initial certification and subsequent flight reviews, a part-61-certificated airman is required to demonstrate knowledge of many of the topic areas tested on the UAS knowledge test. These areas include: airspace classification and operating requirements, aviation weather sources, radio communication procedures, physiological effects of drugs and alcohol, aeronautical decision-making and judgment, and airport operations. Because a part 61 pilot certificate holder is evaluated on these areas of knowledge in the course of the part 61 certification and flight review process, reevaluating these areas of knowledge on the initial and recurrent knowledge tests conducted under part 107 would be needlessly duplicative.
However, there are UAS-specific areas of knowledge (discussed in section III.F.2.j of this preamble) that a part-61-certificated pilot may not be familiar with. Accordingly, instead of requiring part-61 certificated pilots who are current on their flight reviews to take the initial and recurrent knowledge tests, this rule will provide those pilots with the option to take an online training course focusing on UAS-specific areas of knowledge. Just as there is an initial and recurrent knowledge test, there will also be an initial and recurrent training course available to part 61 pilot certificate holders. Those certificate holders will be able to substitute the initial training course for the initial knowledge test and the recurrent training course for the recurrent knowledge test. To ensure that a certificate holder’s UAS-specific knowledge does not become stale, this rule will include the requirement that a part 61 pilot certificate holder must pass either the recurrent training course or the recurrent knowledge test every 24 months.
The FAA emphasizes that the online training course option in lieu of taking the knowledge test will be available only to those part 61 pilot certificate holders who satisfy the flight review required by § 61.56. This is to ensure that the certificate holder’s knowledge of general aeronautical concepts that are not included on the training course does not become stale. Part 61 pilot certificate holders who do not meet the flight review requirements of § 61.56 will be unable to substitute the online training course for the required aeronautical knowledge test. Thus, under § 107.63(a)(2), a part 61 pilot certificate holder seeking to substitute completion of the initial training course for the initial aeronautical knowledge test will have to present his or her logbook upon application for a remote pilot certificate with a small UAS rating to demonstrate that he or she has satisfied this requirement. The applicant will also have to present a certificate of completion showing that he or she has completed the initial online training course.
The FAA also notes that the above discussion does not apply to holders of a part 61 student pilot certificate. A person is not required to pass an aeronautical knowledge test, pass a practical (skills) test, or otherwise demonstrate aeronautical knowledge in order to obtain a student pilot certificate. Further, student pilot certificate holders who have received an endorsement for solo flight under § 61.87(b) are only required to demonstrate limited knowledge associated with conducting a specific solo flight. For these reasons, the option to take an online training course instead of an aeronautical knowledge test will not extend to student pilot certificate holders.
As the drone industry is taking off, some individuals and groups have started using drones for malicious purposes around the globe. Many companies are watching the trend and are trying to get into the counter drone industry. They have introduced all sorts of drone guns, anti-UAS shotgun shells, attack birds, net cannons, lasers, missiles, radio signal jammers, radio spoofers, etc.
The counter drone technology is getting lumped all into one bucket but I think it is best broken up into two categories: (1) detectors and (2) defenders. Keep in mind that these terms are my own.
Some of the things being advertised as counter drone technology are not really counter technology but are just drone detectors. The systems can’t really do anything to STOP the drone, just tell you where the drone is and maybe the operator. Hopefully, police can locate the drone operator on the ground (as opposed to just his home address) and get him to land the drone before anything happens.
Radio wave receivers
Audio sensors to “hear”
Optical sensors to see
These aren’t really a problem legally. The next category is where things get legally complicated fast.
The U.S. Congress has started seeing the need for CUAS and has directed the FAA in Section 2206 of the FESSA of 2016 to “establish a pilot program for airspace hazard mitigation at airports and other critical infrastructure using unmanned aircraft detection systems.” The FAA has since started doing a pathfinder program with some companies to use the technology at airports.
But Many Older Laws are Still in Place Preventing CUAS by Many
Great – so the military, DOE, DOJ, DHS, and the Coast Guard can go Rambo on the drones. But what about everyone else like local or state law enforcement? What about the person who wants to keep drones out of his backyard?
Here is the problem, there are a bunch of laws already in place which currently prohibit counter drone technology from being used or create liability when they are used. We have the Safety Act which can limit some liability, but it does NOT solve the situation. Yes, there are some possibilities you could have with state and local law enforcement working with the Department of Homeland Security but that is completely outside the scope of this article. This article is highlighting the problems, not explaining all the solutions.
Legal Issues Surrounding Counter Drone Technology
1. Communications Act of 1934
There are three sections that are problematic:
47 U.S.C Section 301 – Requires persons operating or using radio transmitters to be licensed or authorized under the Commission’s rules (47 U.S.C. § 301). So just to operate the jammer, it needs to be certified.
47 U.S.C. Section 302(b) – Prohibits the manufacture, importation, marketing, sale or operation of unlicensed jammers within the United States (47 U.S.C. § 302a(b)) ( Only exception is to the U.S. Government 302a(c)). Yes, you read that right. Depending on how you market counter drone measures, you could be doing something illegal! This section also prohibits the testing R & D of drone jammers on your own property. FCC laid the smack down on a Chinese company in 2014 with a fine of $34.9 million! Yes, you guessed it, the FCC order cited 302(b). Hobbyking found out that the FCC is very serious about the marketing of unlicensed radio transmitters when they received this FCC order.
47 U.S.C. Section 333 – Prohibits willful or malicious interference with the radio communications of any station licensed or authorized under the Act or operated by the U.S. Government (47 U.S.C. § 333). I think Amazon is wisely planning for the future when they filed for a technology patent designed to allow their drones to fly if jamming is taking place. The jamming could be illegal or legal but we know it will be happening in the future. People will take things into their own hands and might start creating illegal drone jamming equipment as a means of “self-help.”
Here is another example. 48 drones crashed which was around $98,674 worth of drones.” The administration suspects that the interference was caused by other drones flying in the area, Liao said. It was also possible that some people were using other radio-frequency devices near the venue, which caused interference, he said. . . .Others said that the interference could be deliberately produced by drone operators in protest against the government’s new regulations, which are scheduled to take effect on March 31.”
2. FCC Regulations
47 C.F.R. Section 2.803 – prohibits the manufacture, importation, marketing, sale or operation of these devices within the United States (47 C.F.R. § 2.803) Section 2.807 – provides for certain limited exceptions, such as the sale to U.S. government users (47 C.F.R. § 2.807) The FCC regulations are basically echoing the federal statutes that were created. This means Congress has to either make some exceptions to the Communications Act of 1934 AND nullify or amend these regulations OR just change the underlying statute and leave it to the FCC to start the rulemaking process to repeal this regulation.
3. The United States Criminal Code
18 U.S.C. Section 1362 – prohibits willful or malicious interference to U.S. government communications; subjects the operator to possible fines, imprisonment, or both. This could be used to apply to GPS jamming.
18 U.S.C. Section 1367(a) – prohibits intentional or malicious interference to satellite communications; subjects the operator to possible fines, imprisonment, or both.This could also be used to apply to GPS jamming.
18 U.S.C. Section 32 – Destruction of aircraft or aircraft facilities: “(a) Whoever willfully— (1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce;” . . . “shall be fined under this title or imprisoned not more than twenty years or both.” This applies to the lasers, shotguns, and my all time favorite, Russian spear thrower.
18 U.S.C. Section 2511 says, “ (1) Except as otherwise specifically provided in this chapter any person who— (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication[.]”
18 U.S.C. Section 1030 says, “(a) Whoever . . . (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . (C) information from any protected computer[.]” This one applies to the hackers.
4. Drone Jamming Can Affect More than the Drone
On October 26, 2016, the FAA sent out a letter to airports because “Recently, technology vendors contacted several U.S. airports, proposing to conduct demonstrations and evaluations of their UAS detection and counter measure systems at those airports. In some cases, the airport sponsors did not coordinate these assessments and demonstrations with the FAA in advance. It is important that federally obligated airports understand that the FAA has not authorized any UAS detection or counter measure assessments at any airports other than those participating in the FAA’s UAS detection program through a CRDA, and airports allowing such evaluations could be in violation of their grant assurances.” The letter went on to say, “Unauthorized UAS detection and counter measure deployments can create a host of problems, such as electromagnetic and Radio Frequency (RF) interference affecting safety of flight and air traffic management issues.”
“Through these efforts, we learned the airport environment presents a number of unique challenges to the use of technologies available for civil use. The low technical readiness of the systems, combined with a multitude of other factors, such as geography, interference, location of majority of reported UAS sightings, and cost of deployment and operation, demonstrate this technology is not ready for use in domestic civil airport environments. In particular, some of the FAA’s significant findings and recommendations include-
• Airport environments had numerous sources of potential interference–more than anticipated. High radio spectrum congestion in these environments made detection more difficult and, in some instances, not possible.
• Certain aircraft operational states ( e.g., hovering) and the degree off light autonomy also limit detection. A high level of manpower is required to operate equipment and discern false positives such as when a detection system may falsely identify another moving object as a UAS.
• UAS detection systems should be developed so they do not adversely impact or interfere with safe airport operations, air traffic control and other air navigation services, or the safe and efficient operation ofthe NAS. They should also work with existing airport systems, processes, procedures, and technologies without modification of current infrastructure.
• The primary factor in determining the feasibility of installing a permanent system at an airport is the number ofsensors needed to achieve the desired airspace coverage. Because the coverage volume depends on the unique characteristics and requirements of each airport and the type of system, the number of sensors will vary. The coverage distance for many types of detection technologies also constrains the efficacy ofsuch systems in identifying the locations of UAS.
• Deploying assets in an environment owned by many entities could also make UAS detection systems a challenging solution to acquire and deploy. Overall, costs are prohibitive where higher levels of redundant coverage are required. An additional and critical component of this finding is that technology rapidly becomes obsolete upon installation as UAS technology is rapidly changing.
Additionally, the American Radio Relay League sent the FCC a warning letter about video transmitters being sold that operate between 1,010- 1,280 MHz beyond legal limits (~ 6 times the legal limit). The letter said, ““Of most concern is the capability of the devices to cripple the operation of the [air traffic control] secondary target/transponder systems[.]” The problem is that one of the frequencies listed can be legally used for amateur radio operations but the rest cannot. This means someone can purchase this equipment and operate it on frequencies not allowed. What operates in that range?
Air Traffic Control Radar Beacons
Mode S for Transponders
Air Route Surveillance Radars
This adds another layer of difficulty to the mix as you might need to jam frequencies that are being used by other industries because some drone transmitters allow for it.
So jamming drones near airports can cause problems as well as jamming certain frequencies that certain radio transmitters can use that aviation also uses.
Knowing this, now we have another criminal statute in play! 49 U.S.C Section 46308 says, “A person shall be fined under title 18, imprisoned for not more than 5 years, or both, if the person—(1) with intent to interfere with air navigation in the United States, exhibits in the United States a light or signal at a place or in a way likely to be mistaken for a true light or signal established under this part or for a true light or signal used at an air navigation facility; . . (3) knowingly interferes with the operation of a true light or signal.”
5. State Law
The states have also made some of these counter drone technologies illegal! States have anti-hacking laws, anti-messing with aircraft laws, etc. Worse yet, these laws are all over the place with how broad they are, their safe harbors/exemptions, and their punishments. Basically, what is said in this article x 50 states.
6. Civil Lawsuit for Damages
If you violated one of the above crimes, you have potential liability from a civil lawsuit. You can get sued for negligence if you are the proximate cause of an injury by breaching a duty. Your duty is to not commit crimes. (duh) The legal term is negligence per se. So if someone gets hurt because you committed that crime, and they were in the protected class of people the criminal statute was attempting to protect (great point to argue over in the lawsuit), and you were the proximate cause of the injury, you can be liable.
And remember the guys listed above who are interested in this? (Amusement parks, airports, chemical plants, utilities, etc.) They are prime targets for lawsuits and might get listed as a named defendant in a lawsuit.
If the drone operator was required to obtain an authorization and waiver to fly at that location and you take control of the drone, now YOU have to have a waiver and/or authorizations to fly in that area!
As you can see, there are many legal issues surrounding this area which makes the creation, testing, marketing, and using of counter drone technology problematic.
There are ways that the liability can be lessened, but it cannot be completely removed. Congress and the federal agencies are going to need to start creating regulations that allow for the operation of the equipment in the U.S. Additionally, there is going to be a need for some preemptive language in a future bill that can unclutter this area regarding state laws because I think it is not feasible to have all 50 states attempt to modify their respective laws to accommodate counter drone technology.
Are these all the laws? I don’t know. I stopped looking because I just kept finding an increasing amount of legal issues.
I fear, however, that Congress will not move on this quickly, and neither will the agencies. I believe what laws and regulations do come out will most likely be, as the old legal adage, written in blood.
Current United States Counter UAS Law
6 U.S.C. § 210G. Protection of certain facilities and assets from unmanned aircraft. (Giving the Department of Homeland Security and the Department of Justice CUAS Authority)
(a) Authority.—Notwithstanding section 46502 of title 49, United States Code, or sections 32, 1030, 1367 and chapters 119 and 206 of title 18, United States Code, the Secretary and the Attorney General may, for their respective Departments, take, and may authorize personnel with assigned duties that include the security or protection of people, facilities, or assets, to take such actions as are described in subsection (b)(1) that are necessary to mitigate a credible threat (as defined by the Secretary or the Attorney General, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.
(b) Actions Described.—
(1) IN GENERAL.—The actions authorized in subsection (a) are the following:
(A) During the operation of the unmanned aircraft system, detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire communication, an oral communication, or an electronic communication used to control the unmanned aircraft system or unmanned aircraft.
(B) Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.
(C) Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.
(D) Seize or exercise control of the unmanned aircraft system or unmanned aircraft.
(E) Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.
(F) Use reasonable force, if necessary, to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
(2) REQUIRED COORDINATION.—The Secretary and the Attorney General shall develop for their respective Departments the actions described in paragraph (1) in coordination with the Secretary of Transportation.
(3) RESEARCH, TESTING, TRAINING, AND EVALUATION.—The Secretary and the Attorney General shall conduct research, testing, training on, and evaluation of any equipment, including any electronic equipment, to determine its capability and utility prior to the use of any such technology for any action described in subsection (b)(1).
(4) COORDINATION.—The Secretary and the Attorney General shall coordinate with the Administrator of the Federal Aviation Administration when any action authorized by this section might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace.
(c) Forfeiture.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary or the Attorney General is subject to forfeiture to the United States.
(d) Regulations And Guidance.—
(1) IN GENERAL.—The Secretary, the Attorney General, and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary or the Attorney General to carry out this section.
(A) COORDINATION WITH DEPARTMENT OF TRANSPORTATION.—The Secretary and the Attorney General shall coordinate the development of their respective guidance under paragraph (1) with the Secretary of Transportation.
(B) EFFECT ON AVIATION SAFETY.—The Secretary and the Attorney General shall respectively coordinate with the Secretary of Transportation and the Administrator of the Federal Aviation Administration before issuing any guidance, or otherwise implementing this section, if such guidance or implementation might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of airspace.
(e) Privacy Protection.—The regulations or guidance issued to carry out actions authorized under subsection (b) by each Secretary or the Attorney General, as the case may be, shall ensure that—
(1) the interception or acquisition of, or access to, or maintenance or use of, communications to or from an unmanned aircraft system under this section is conducted in a manner consistent with the First and Fourth Amendments to the Constitution of the United States and applicable provisions of Federal law;
(2) communications to or from an unmanned aircraft system are intercepted or acquired only to the extent necessary to support an action described in subsection (b)(1);
(3) records of such communications are maintained only for as long as necessary, and in no event for more than 180 days, unless the Secretary of Homeland Security or the Attorney General determine that maintenance of such records is necessary to investigate or prosecute a violation of law, directly support an ongoing security operation, is required under Federal law, or for the purpose of any litigation;
(4) such communications are not disclosed outside the Department of Homeland Security or the Department of Justice unless the disclosure—
(A) is necessary to investigate or prosecute a violation of law;
(B) would support the Department of Defense, a Federal law enforcement agency, or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory, statutory, or other enforcement action relating to an action described in subsection (b)(1);
(C) is between the Department of Homeland Security and the Department of Justice in the course of a security or protection operation of either agency or a joint operation of such agencies; or
(D) is otherwise required by law; and
(5) to the extent necessary, the Department of Homeland Security and the Department of Justice are authorized to share threat information, which shall not include communications referred to in subsection (b), with State, local, territorial, or tribal law enforcement agencies in the course of a security or protection operation.
(f) Budget.—The Secretary and the Attorney General shall submit to Congress, as a part of the homeland security or justice budget materials for each fiscal year after fiscal year 2019, a consolidated funding display that identifies the funding source for the actions described in subsection (b)(1) within the Department of Homeland Security or the Department of Justice. The funding display shall be in unclassified form, but may contain a classified annex.
(g) Semiannual Briefings And Notifications.—
(1) IN GENERAL.—On a semiannual basis during the period beginning 6 months after the date of enactment of this section and ending on the date specified in subsection (i), the Secretary and the Attorney General shall, respectively, provide a briefing to the appropriate congressional committees on the activities carried out pursuant to this section.
(2) REQUIREMENT.—Each briefing required under paragraph (1) shall be conducted jointly with the Secretary of Transportation.
(3) CONTENT.—Each briefing required under paragraph (1) shall include—
(A) policies, programs, and procedures to mitigate or eliminate impacts of such activities to the National Airspace System;
(B) a description of instances in which actions described in subsection (b)(1) have been taken, including all such instances that may have resulted in harm, damage, or loss to a person or to private property;
(C) a description of the guidance, policies, or procedures established to address privacy, civil rights, and civil liberties issues implicated by the actions allowed under this section, as well as any changes or subsequent efforts that would significantly affect privacy, civil rights or civil liberties;
(D) a description of options considered and steps taken to mitigate any identified impacts to the national airspace system related to the use of any system or technology, including the minimization of the use of any technology that disrupts the transmission of radio or electronic signals, for carrying out the actions described in subsection (b)(1);
(E) a description of instances in which communications intercepted or acquired during the course of operations of an unmanned aircraft system were held for more than 180 days or shared outside of the Department of Justice or the Department of Homeland Security;
(F) how the Secretary, the Attorney General, and the Secretary of Transportation have informed the public as to the possible use of authorities under this section;
(G) how the Secretary, the Attorney General, and the Secretary of Transportation have engaged with Federal, State, and local law enforcement agencies to implement and use such authorities.
(4) UNCLASSIFIED FORM.—Each briefing required under paragraph (1) shall be in unclassified form, but may be accompanied by an additional classified briefing.
(5) NOTIFICATION.—Within 30 days of deploying any new technology to carry out the actions described in subsection (b)(1), the Secretary and the Attorney General shall, respectively, submit a notification to the appropriate congressional committees. Such notification shall include a description of options considered to mitigate any identified impacts to the national airspace system related to the use of any system or technology, including the minimization of the use of any technology that disrupts the transmission of radio or electronic signals, for carrying out the actions described in subsection (b)(1).
(h) Rule Of Construction.—Nothing in this section may be construed to—
(1) vest in the Secretary or the Attorney General any authority of the Secretary of Transportation or the Administrator of the Federal Aviation Administration;
(2) vest in the Secretary of Transportation or the Administrator of the Federal Aviation Administration any authority of the Secretary or the Attorney General;
(3) vest in the Secretary of Homeland Security any authority of the Attorney General;
(4) vest in the Attorney General any authority of the Secretary of Homeland Security; or
(5) provide a new basis of liability for any State, local, territorial, or tribal law enforcement officers who participate in the protection of a mass gathering identified by the Secretary or Attorney General under subsection (k)(3)(C)(iii)(II), act within the scope of their authority, and do not exercise the authority granted to the Secretary and Attorney General by this section.
(i) Termination.—The authority to carry out this section with respect to a covered facility or asset specified in subsection (k)(3) shall terminate on the date that is 4 years after the date of enactment of this section.
(j) Scope Of Authority.—Nothing in this section shall be construed to provide the Secretary or the Attorney General with additional authorities beyond those described in subsections (a) and (k)(3)(C)(iii).
(k) Definitions.—In this section:
(1) The term ‘appropriate congressional committees’ means—
(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Commerce, Science, and Transportation, and the Committee on the Judiciary of the Senate; and
(B) the Committee on Homeland Security, the Committee on Transportation and Infrastructure, the Committee on Energy and Commerce, and the Committee on the Judiciary of the House of Representatives.
(2) The term ‘budget’, with respect to a fiscal year, means the budget for that fiscal year that is submitted to Congress by the President under section 1105(a) of title 31.
(3) The term ‘covered facility or asset’ means any facility or asset that—
(A) is identified as high-risk and a potential target for unlawful unmanned aircraft activity by the Secretary or the Attorney General, in coordination with the Secretary of Transportation with respect to potentially impacted airspace, through a risk-based assessment for purposes of this section (except that in the case of the missions described in subparagraph (C)(i)(II) and (C)(iii)(I), such missions shall be presumed to be for the protection of a facility or asset that is assessed to be high-risk and a potential target for unlawful unmanned aircraft activity);
(B) is located in the United States (including the territories and possessions, territorial seas or navigable waters of the United States); and
(C) directly relates to one or more—
(i) missions authorized to be performed by the Department of Homeland Security, consistent with governing statutes, regulations, and orders issued by the Secretary, pertaining to—
(I) security or protection functions of the U.S. Customs and Border Protection, including securing or protecting facilities, aircraft, and vessels, whether moored or underway;
(II) United States Secret Service protection operations pursuant to sections 3056(a) and 3056A(a) of title 18, United States Code, and the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note); or
(III) protection of facilities pursuant to section 1315(a) of title 40, United States Code;
(ii) missions authorized to be performed by the Department of Justice, consistent with governing statutes, regulations, and orders issued by the Attorney General, pertaining to—
(I) personal protection operations by—
(aa) the Federal Bureau of Investigation as specified in section 533 of title 28, United States Code; and
“(bb) the United States Marshals Service of Federal jurists, court officers, witnesses, and other threatened persons in the interests of justice, as specified in section 566(e)(1)(A) of title 28, United States Code;
(II) protection of penal, detention, and correctional facilities and operations conducted by the Federal Bureau of Prisons; or
(III) protection of the buildings and grounds leased, owned, or operated by or for the Department of Justice, and the provision of security for Federal courts, as specified in section 566(a) of title 28, United States Code;
(iii) missions authorized to be performed by the Department of Homeland Security or the Department of Justice, acting together or separately, consistent with governing statutes, regulations, and orders issued by the Secretary or the Attorney General, respectively, pertaining to—
(I) protection of a National Special Security Event and Special Event Assessment Rating event;
(II) the provision of support to State, local, territorial, or tribal law enforcement, upon request of the chief executive officer of the State or territory, to ensure protection of people and property at mass gatherings, that is limited to a specified timeframe and location, within available resources, and without delegating any authority under this section to State, local, territorial, or tribal law enforcement; or
(III) protection of an active Federal law enforcement investigation, emergency response, or security function, that is limited to a specified timeframe and location; and
(iv) missions authorized to be performed by the United States Coast Guard, including those described in clause (iii) as directed by the Secretary, and as further set forth in section 104 of title 14, United States Code, and consistent with governing statutes, regulations, and orders issued by the Secretary of the Department in which the Coast Guard is operating.
(4) The terms ‘electronic communication’, ‘intercept’, ‘oral communication’, and ‘wire communication’ have the meaning given those terms in section 2510 of title 18, United States Code.
(5) The term ‘homeland security or justice budget materials’, with respect to a fiscal year, means the materials submitted to Congress by the Secretary and the Attorney General in support of the budget for that fiscal year.
(6) For purposes of subsection (a), the term ‘personnel’ means officers and employees of the Department of Homeland Security or the Department of Justice.
(7) The terms ‘unmanned aircraft’ and ‘unmanned aircraft system’ have the meanings given those terms in section 44801, of title 49, United States Code.
(8) For purposes of this section, the term ‘risk-based assessment’ includes an evaluation of threat information specific to a covered facility or asset and, with respect to potential impacts on the safety and efficiency of the national airspace system and the needs of law enforcement and national security at each covered facility or asset identified by the Secretary or the Attorney General, respectively, of each of the following factors:
(A) Potential impacts to safety, efficiency, and use of the national airspace system, including potential effects on manned aircraft and unmanned aircraft systems, aviation safety, airport operations, infrastructure, and air navigation services related to the use of any system or technology for carrying out the actions described in subsection (b)(1).
(B) Options for mitigating any identified impacts to the national airspace system related to the use of any system or technology, including minimizing when possible the use of any technology which disrupts the transmission of radio or electronic signals, for carrying out the actions described in subsection (b)(1).
(C) Potential consequences of the impacts of any actions taken under subsection (b)(1) to the national airspace system and infrastructure if not mitigated.
(D) The ability to provide reasonable advance notice to aircraft operators consistent with the safety of the national airspace system and the needs of law enforcement and national security.
(E) The setting and character of any covered facility or asset, including whether it is located in a populated area or near other structures, whether the facility is open to the public, whether the facility is also used for nongovernmental functions, and any potential for interference with wireless communications or for injury or damage to persons or property.
(F) The setting, character, timeframe, and national airspace system impacts of National Special Security Event and Special Event Assessment Rating events.
(G) Potential consequences to national security, public safety, or law enforcement if threats posed by unmanned aircraft systems are not mitigated or defeated.
(l) Department Of Homeland Security Assessment.—
(1) REPORT.—Not later than 1 year after the date of the enactment of this section, the Secretary shall conduct, in coordination with the Attorney General and the Secretary of Transportation, an assessment to the appropriate congressional committees, including—
(A) an evaluation of the threat from unmanned aircraft systems to United States critical infrastructure (as defined in this Act) and to domestic large hub airports (as defined in section 40102 of title 49, United States Code);
(B) an evaluation of current Federal and State, local, territorial, or tribal law enforcement authorities to counter the threat identified in subparagraph (A), and recommendations, if any, for potential changes to existing authorities to allow State, local, territorial, and tribal law enforcement to assist Federal law enforcement to counter the threat where appropriate;
(C) an evaluation of the knowledge of, efficiency of, and effectiveness of current procedures and resources available to owners of critical infrastructure and domestic large hub airports when they believe a threat from unmanned aircraft systems is present and what additional actions, if any, the Department of Homeland Security or the Department of Transportation could implement under existing authorities to assist these entities to counter the threat identified in subparagraph (A);
(D) an assessment of what, if any, additional authorities are needed by each Department and law enforcement to counter the threat identified in subparagraph (A); and
(E) an assessment of what, if any, additional research and development the Department needs to counter the threat identified in subparagraph (A).
(2) UNCLASSIFIED FORM.—The report required under paragraph (1) shall be submitted in unclassified form, but may contain a classified annex.”.
(a) Authority.—Notwithstanding section 46502 of title 49, or any provision of title 18, the Secretary of Defense may take, and may authorize members of the armed forces and officers and civilian employees of the Department of Defense with assigned duties that include safety, security, or protection of personnel, facilities, or assets, to take, such actions described in subsection (b)(1) that are necessary to mitigate the threat (as defined by the Secretary of Defense, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.
(b) Actions Described.—
(1) The actions described in this paragraph are the following:
(A) Detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire communication, an oral communication, or an electronic communication used to control the unmanned aircraft system or unmanned aircraft.
(B) Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.
(C) Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.
(D) Seize or exercise control of the unmanned aircraft system or unmanned aircraft.
(E) Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.
(F) Use reasonable force to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
(2) The Secretary of Defense shall develop the actions described in paragraph (1) in coordination with the Secretary of Transportation.
(c) Forfeiture.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary of Defense is subject to forfeiture to the United States.
(d) Regulations and Guidance.—
(1) The Secretary of Defense and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary to carry out this section.
(A) The Secretary of Defense and the Secretary of Transportation shall coordinate in the development of guidance under paragraph (1).
(B) The Secretary of Defense shall coordinate with the Secretary of Transportation and the Administrator of the Federal Aviation Administration before issuing any guidance or otherwise implementing this section if such guidance or implementation might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of airspace.
(e) Privacy Protection.—The regulations prescribed or guidance issued under subsection (d) shall ensure that—
(1) the interception or acquisition of, or access to, communications to or from an unmanned aircraft system under this section is conducted in a manner consistent with the fourth amendment to the Constitution and applicable provisions of Federal law;
(2) communications to or from an unmanned aircraft system are intercepted, acquired, or accessed only to the extent necessary to support a function of the Department of Defense;
(3) records of such communications are not maintained for more than 180 days unless the Secretary of Defense determines that maintenance of such records—
(A) is necessary to support one or more functions of the Department of Defense; or
(B) is required for a longer period to support a civilian law enforcement agency or by any other applicable law or regulation; and
(4) such communications are not disclosed outside the Department of Defense unless the disclosure—
(A) would fulfill a function of the Department of Defense;
(B) would support a civilian law enforcement agency or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory action with regard to, an action described in subsection (b)(1); or
(C) is otherwise required by law or regulation.
(f) Budget.—The Secretary of Defense shall submit to Congress, as a part of the defense budget materials for each fiscal year after fiscal year 2018, a consolidated funding display that identifies the funding source for the actions described in subsection (b)(1) within the Department of Defense. The funding display shall be in unclassified form, but may contain a classified annex.
(g) Semiannual Briefings.—
(1) On a semiannual basis during the five-year period beginning March 1, 2018, the Secretary of Defense and the Secretary of Transportation, shall jointly provide a briefing to the appropriate congressional committees on the activities carried out pursuant to this section. Such briefings shall include—
(A) policies, programs, and procedures to mitigate or eliminate impacts of such activities to the National Airspace System;
(B) a description of instances where actions described in subsection (b)(1) have been taken;
(C) how the Secretaries have informed the public as to the possible use of authorities under this section; and
(D) how the Secretaries have engaged with Federal, State, and local law enforcement agencies to implement and use such authorities.
(2) Each briefing under paragraph (1) shall be in unclassified form, but may be accompanied by an additional classified briefing.
(h) Rule of Construction.—Nothing in this section may be construed to—
(1) vest in the Secretary of Defense any authority of the Secretary of Transportation or the Administrator of the Federal Aviation Administration under title 49; and
(2) vest in the Secretary of Transportation or the Administrator of the Federal Aviation Administration any authority of the Secretary of Defense under this title.
(i) Partial Termination.—
(1) Except as provided by paragraph (2), the authority to carry out this section with respect to the covered facilities or assets specified in clauses (iv) through (viii) of subsection (j)(3) 1 shall terminate on December 31, 2020.
(2) The President may extend by 180 days the termination date specified in paragraph (1) if before November 15, 2020, the President certifies to Congress that such extension is in the national security interests of the United States.
(j) Definitions.—In this section:
(1) The term “appropriate congressional committees” means—
(A) the congressional defense committees;
(B) the Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Commerce, Science, and Transportation of the Senate; and
(C) the Permanent Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Transportation and Infrastructure of the House of Representatives.
(2) The term “budget”, with respect to a fiscal year, means the budget for that fiscal year that is submitted to Congress by the President under section 1105(a) of title 31.
(3) The term “covered facility or asset” means any facility or asset that—
(A) is identified by the Secretary of Defense, in consultation with the Secretary of Transportation with respect to potentially impacted airspace, through a risk-based assessment for purposes of this section;
(B) is located in the United States (including the territories and possessions of the United States); and
(C) directly relates to the missions of the Department of Defense pertaining to—
(i) nuclear deterrence, including with respect to nuclear command and control, integrated tactical warning and attack assessment, and continuity of government;
(ii) missile defense;
(iii) national security space;
(iv) assistance in protecting the President or the Vice President (or other officer immediately next in order of succession to the office of the President) pursuant to the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note);
(v) air defense of the United States, including air sovereignty, ground-based air defense, and the National Capital Region integrated air defense system;
(vi) combat support agencies (as defined in paragraphs (1) through (4) of section 193(f) of this title);
(vii) special operations activities specified in paragraphs (1) through (9) of section 167(k) of this title;
(viii) production, storage, transportation, or decommissioning of high-yield explosive munitions, by the Department; or
(ix) a Major Range and Test Facility Base (as defined in section 196(i) of this title).
(4) The term “defense budget materials”, with respect to a fiscal year, means the materials submitted to Congress by the Secretary of Defense in support of the budget for that fiscal year.
(5) The terms “electronic communication”, “intercept”, “oral communication”, and “wire communication” have the meanings given those terms in section 2510 of title 18.
(6) The terms “unmanned aircraft” and “unmanned aircraft system” have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).
14 U.S.C. § 104. Protecting against unmanned aircraft (Giving the Coast Guard CUAS Authority).
For the purposes of section 210G(k)(3)(C)(iv) of the Homeland Security Act of 2002, the missions authorized to be performed by the United States Coast Guard shall be those related to—
(1) functions of the U.S. Coast Guard relating to security or protection of facilities and assets assessed to be high-risk and a potential target for unlawful unmanned aircraft activity, including the security and protection of—
(A) a facility, including a facility that is under the administrative control of the Commandant; and
(B) a vessel (whether moored or underway) or an aircraft, including a vessel or aircraft—
(i) that is operated by the Coast Guard, or that the Coast Guard is assisting or escorting; and
(ii) that is directly involved in a mission of the Coast Guard pertaining to—
(I) assisting or escorting a vessel of the Department of Defense;
(II) assisting or escorting a vessel of national security significance, a high interest vessel, a high capacity passenger vessel, or a high value unit, as those terms are defined by the Secretary;
(III) section 91(a) of this title;
(IV) assistance in protecting the President or the Vice President (or other officer next in order of succession to the Office of the President) pursuant to the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note);
(V) protection of a National Special Security Event and Special Event Assessment Rating events;
(VI) air defense of the United States, including air sovereignty, ground-based air defense, and the National Capital Region integrated air defense system; or
(VII) a search and rescue operation; and
(2) missions directed by the Secretary pursuant to 210G(k)(3)(C)(iii) of the Homeland Security Act of 2002.
50 U.S.C. § 2661 (Giving Secretary of Energy CUAS Powers)
(a) AUTHORITY.—Notwithstanding any provision of title 18, United States Code, the Secretary of Energy may take such actions described in subsection (b)(1) that are necessary to mitigate the threat (as defined by the Secretary of Energy, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.
(b) ACTIONS DESCRIBED.—
(1) The actions described in this paragraph are the following:
(A) Detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire, oral, or electronic communication used to control the unmanned aircraft system or unmanned aircraft.
(B) Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.
(C) Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.
(D) Seize or exercise control of the unmanned aircraft system or unmanned aircraft.
(E) Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.
(F) Use reasonable force to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
(2) The Secretary of Energy shall develop the actions described in paragraph (1) in coordination with the Secretary of Transportation.
(c) FORFEITURE.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary of Energy is subject to forfeiture to the United States.
(d) REGULATIONS.—The Secretary of Energy and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary to carry out this section.
(e) DEFINITIONS.—In this section:
(1) The term ‘covered facility or asset’ means any facility or asset that is—
(A) identified by the Secretary of Energy for purposes of this section;
(B) located in the United States (including the territories and possessions of the United States); and
(C) owned by the United States or contracted to the United States, to store or use special nuclear material.
(2) The terms ‘unmanned aircraft’ and ‘unmanned aircraft system’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).
The Federal Aviation Administration published a Notice to Airmen (NOTAM) warning UAS flyers to keep their drones 3,000ft horizontally and 1,000ft vertically away from “DEPARTMENT OF DEFENSE (DOD) AND DEPARTMENT OF ENERGY (DOE) FACILITIES AND MOBILE ASSETS, INCLUDING VESSELS AND GROUND VEHICLE CONVOYS AND THEIR ASSOCIATED ESCORTS, SUCH AS UNITED STATES COAST GUARD (USCG) OPERATED VESSELS.” It warned that those assets could exercise counter UAS technology against the unmanned aircraft. Additionally, the FAA advised it would apply 99.7 security instruction flight restrictions to the maximum extent possible to these areas.
Actual Text of White’s House NDAA C-UAS Proposal
Update: On August 7, 2017, it was reported by the Military Times that “The Pentagon has signed off on a new policy that will allow military bases to shoot down private or commercial drones that are deemed a threat[.]” This is what was authorized in the National Defense Authorization Act of 2017 which was passed in December 2016.
SEC. __. OFFICIAL ACTIONS TO ADDRESS THREATS POSED BY UNMANNED AIRCRAFT SYSTEMS TO PUBLIC SAFETY OR HOMELAND SECURITY.
(a) AUTHORITY.—Notwithstanding any provision of title 18, United States Code, the head of an Executive department or agency, while respecting privacy, civil rights, and civil liberties, including with regard to the testing of any equipment and the interception or acquisition of communications, may take, and may authorize a covered person to take, the actions described in subsection (b), to the extent otherwise in accordance with law.
(b) ACTIONS DESCRIBED.—The actions described in this subsection are as follows:
(1) Detect, identify, monitor, or track, without prior consent, an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo, to evaluate whether it poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.
(2) Redirect, disable, disrupt control of, exercise control of, seize, or confiscate, without prior consent, an unmanned aircraft system, unmanned aircraft,
or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.
(3) Use reasonable force to disable, disrupt, damage, or destroy an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation.
(4) Conduct research, testing, training on, and evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable any of the actions described in paragraphs (1) through (3).
(c) FORFEITURE.—An unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that is disabled, disrupted, seized, controlled, confiscated, damaged, or destroyed pursuant to an action described in subsection (b) is subject to forfeiture to the United States.
(d) GOVERNMENT-WIDE POLICY.—The actions described in subsections (b) and (c) may only be taken following the issuance of Federal Government-wide policy prescribing roles and responsibilities for implementing this section. The Federal Government-wide policy shall be developed in consultation with appropriate departments and agencies, including the Department of Transportation to ensure the safety and efficiency of the National Airspace System, and shall—
(1) respect privacy, civil rights, and civil liberties, including with regard tothe testing of any equipment and the interception or acquisition of communications, by, among other things, ensuring that information is intercepted, acquired, accessed, or retained pursuant to subsections (b) only where and for so long as is necessary to support one or more of the department’s or agency’s authorized functions and is accessible only to covered persons with a need to know the information;
(2) prescribe roles and processes, as appropriate, to ensure that departments and agencies take the actions described in subsection (b) in compliance with applicable law and regulation regarding the management of the radio frequency spectrum;
(3) consider each department’s and agency’s responsibilities for the safety or security of its facilities, locations, installations, and operations in the United States; and
(4) develop standards and procedures for heads of departments and agencies to designate a covered facility, location, or installation, a covered operation, or a covered person, which shall ensure that only individuals with appropriate training and acting subject to Federal Government oversight are designated as covered persons.
(1) REGULATIONS; POLICIES, PROCEDURES, OR PLANS.—Consistent with any limitations or specifications in the Federal Government-wide policy issued pursuant to subsection (d), the head of a department or agency—
(A) may prescribe regulations to carry out this section; and
(B) shall issue policies, procedures, or plans to carry out this section.
(2) COORDINATION.—Regulations, policies, procedures, or plans issued under this subsection shall develop the actions in subsection (b) in coordination with the Secretary of Transportation.
(3) PRIVACY REVIEW.—Any regulations, policies, procedures, or plans issued pursuant to this section that would result in the monitoring, interception, or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo shall be reviewed consistent with section 522 of the Consolidated Appropriations Act, 2005 (42 U.S.C. 2000ee-2), to ensure that the regulations, policies, procedures, or plans appropriately protect privacy and civil liberties.
(f) JURISDICTION.—Notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim, including for money damages, against a covered person arising from any authorized action described in subsection (b).
(g) RELATIONSHIP TO OTHER LAWS.—Nothing in this section shall be construed to—
(1) restrict the authority of the United States Government, a member of the Armed Forces, or a Federal officer, employee, agent, or contractor from performing any action described in subsection (b) or (c) that is in accordance with law;
(2) affect the exercise of authority granted by section 130i of title 10, United States Code, and section 4510 of the Atomic Energy Defense Act (50 U.S.C. 2661); or
(3) restrict or limit the authority of the Federal Aviation Administration under 18 title 49, United States Code, to manage the safe and efficient use of the National Airspace System.
(h) DISCLOSURE.—Information pertaining to the technology used pursuant to this section, and any regulations, policies, procedures, and plans issued under this section, shall be exempt from disclosure under section 552(b)(3) of title 5, United States Code, and exempt from disclosure under any State or local law requiring the disclosure of information.
(i) DEFINITIONS.—In this section:
(1) The term “covered facility, location, or installation” means any non- mobile asset in the United States that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d).
(2) The term “covered operation” means—
(A) any operation that is conducted in the United States by a member of the Armed Forces or a Federal officer, employee, agent, or contractor, that is important to public safety, law enforcement, or national or homeland security, and is designated by the head of a department or agency, consistent with the Federal Government-wide policy issued pursuant to subsection (d); and
(B) may include, but is not limited to, search and rescue operations; medical evacuations; wildland firefighting; patrol and detection monitoring of the United States border; a National Security Special Event or Special Event Assessment Ratings event; a fugitive apprehension operation or law enforcement investigation; a prisoner detention, correctional, or related operation; securing an authorized vessel, whether moored or underway; authorized protection of a person; transportation of special nuclear materials; or a security, emergency response, or military training, testing, or operation.
(3) The term “covered person” means any member of the Armed Forces, a Federal officer, employee, agent, or contractor, or any other individual that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d), acting within their officially designated capacity.
(4) The terms “intercept” and “wire, oral, electronic, or radio communications” have the meaning given those terms in section 2510 of title 18.
(5) The terms “unmanned aircraft” and “unmanned aircraft system” have the meaning given those terms in section 331 of the FAA Modernization and Reform Act 7 of 2012 (49 U.S.C. 40101 note).
(6) The term “United States” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possessions, territorial seas, or navigable waters of the United States.
(j) SUNSET.—This section shall cease to have effect on December 31, 2022. Section-by-Section Analysis of Proposed Legislation Regarding Official Actions to Address Threats Posed by Unmanned Aircraft Systems to Public Safety or Homeland Security Unmanned aircraft systems (UAS) are commercially available, challenging to detect and mitigate, and capable of carrying harmful payloads and performing surveillance while evading traditional ground security measures. However, some of the most promising technical countermeasures for detecting and mitigating UAS may be construed to be illegal under certain laws that were passed when UAS were unforeseen. These laws include statutes governing electronic communications, access to protected computers, and interference with civil aircraft. Potential liability under such laws restricts innovation, evaluation, and operational use of technical countermeasures that can address the unique public safety and homeland security threats posed by UAS while minimizing collateral risk. The proposed legislation provides a savings clause under title 18, United States Code, for authorized development or use of such countermeasures. This legislation provides that development or use of countermeasures against UAS must be pursuant to a coordinated, government-wide policy. A coordinated approach is critical to ensure that development and use of technical countermeasures for detecting and mitigating UAS is consistent with the safety and efficiency of the National Airspace System (NAS), the protection of privacy, civil rights, and civil liberties, and other government-wide equities. Indeed, multiple departments and agencies have responsibility for the safety or security of facilities, locations, installations, and operations that may be vulnerable to threats posed by UAS, including the Department of Homeland Security, the Department of Transportation, the Department of Justice, the Department of Defense, the Department of Energy, the Department of Agriculture, the Department of the Interior, and the Office of the Director of National Intelligence. Multiple departments and agencies also perform important operations that may be vulnerable to threats posed by UAS, including but not limited to: search and rescue operations; medical evacuations; wildland firefighting; patrol and detection monitoring of the United States border; National Security Special Events and Special Event Assessment Ratings events; fugitive apprehension operations and law enforcement investigations; prisoner detention, correctional, and related operations; securing authorized vessels, whether moored or underway; authorized protection of a person or persons; transportation of special nuclear materials; and security, emergency response, or military training and operations. The proposed legislation helps to ensure that authorized members of the Armed Forces and Federal officers, employees, contractors, and other appropriate persons designated by the heads of the executive department and agencies consistent with the requirements of the government-wide policy required by the proposed legislation will not face penalties for protecting those equities in a way that is consistent with other applicable law, including the U.S. Constitution.
Subsection (a) sets forth the savings clause discussed above. Though many provisions in Title 18 may conflict with authorized Counter-UAS activities, certain statutes are especially problematic. For example, sections 2510–2522 of title 18, United States Code (the Wiretap Act), among other things, subject any person who intentionally intercepts the “contents” of electronic communications to fines, imprisonment, and/or civil liability, and sections 3121–3127 of title 18, United States Code (the Pen/Trap Statute), among other things, generally prohibit the installation or use of a device to collect “non-content” information of electronic communications. In addition, section 1030 of title 18, United States Code (the Computer Fraud and Abuse Act) prohibits unauthorized access to and use of “protected computers.” These statutes might be construed to prohibit access to or interception of the telemetry, signaling information, or other communications of UAS. Furthermore, any attempt to interfere with the flight of UAS that pose a threat to covered facilities, locations and installations or covered operations may conflict with section 32 of title 18, United States Code (the Aircraft Sabotage Act), which among other things, imposes fines and criminal penalties on anyone who “damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States.” In the event of unanticipated conflicts with other statutes, and in order to avoid criminalizing critically important activities by government officials that are consistent with the U.S. Constitution, the savings clause also refers generally to “any provision of title 18, United States Code.”
Congress has previously recognized the importance of ensuring that federal criminal laws in Title 18 do not inadvertently blunt the development or use of UAS countermeasures. The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 contains two sections (Sec. 1697—codified at section 130i of title 10, U.S. Code—and Sec. 3112) authorizing the Department of Defense, and the Department of Energy, respectively, to protect certain facilities and assets from threats posed by UAS. Both sections authorize such activities “[n]otwithstanding any provision of title 18.”
Subsection (b) describes the specific actions referenced in subsection (a), which relate to the UAS context. The proposed legislation would generally allow research, testing, training on, and evaluating technical means for countering UAS, as well as the use of technical means to detect, identify, monitor, and track a UAS to evaluate whether it poses a threat to the safety or security of covered facilities, locations, and installations or covered operations. With respect to the use of technical means to re-direct, disable, disrupt control of, exercise control of, seize, or confiscate UAS, the proposed legislation would allow such actions in response to a UAS posing a threat to the safety or security of covered facilities, locations, and installations or covered operations. Subsection (b)(3) of the proposed legislation would allow the use of reasonable force to disable, disrupt, damage or destroy a UAS posing a threat to the safety or security of covered facilities, locations, and installations or covered operations.
Subsection (c) authorizes, but does not require, civil forfeiture of UAS that are subject to authorized actions described in subsection (b).
Subsection (d) provides that the actions in subsections (b) and (c) may be taken only after the issuance of government-wide policy prescribing roles and responsibilities for implementing this section. That policy would be developed in consultation with appropriate departments and agencies, including the Secretary of
Transportation to ensure the safety and efficiency of the NAS. Requiring the development of government-wide policy ensures that departments and agencies execute UAS countermeasures in a coordinated and effective manner, and that such activities are subject to appropriate oversight and control. A whole-of-government framework also protects the integrity of the NAS, while permitting departments and agencies to defend covered facilities and operations from malicious uses of UAS.
The proposed legislation requires the government-wide policy to (1) respect privacy, civil rights and civil liberties; (2) prescribe roles and processes, as appropriate, to ensure compliance with applicable law and regulations concerning the management of the radio frequency spectrum; (3) consider each Federal department and agency’s responsibilities for the safety or security of its facilities and operations; and (4) develop standards and procedures with respect to designations of covered facilities, locations, installations, covered operations, and covered persons, including by requiring that only that only individuals with appropriate training and acting subject to Federal Government oversight may be designated as such.
Subsection (e) provides that departments and agencies must issue policies, procedures, or plans to carry out this section, consistent with any limitations or specifications in the government-wide policy. Departments and agencies may also issue regulations to carry out this section. Subsection (e)(2) provides that departments and agencies must develop the actions issued under this subsection in coordination with the Secretary of Transportation. This provision intends to foster airspace safety by ensuring that departments and agencies engage with the Secretary of Transportation early on to identify and mitigate any potential collateral impacts on the NAS. In the NDAA for FY 2017, Congress similarly recognized the importance of preserving a coordinating role for the Secretary of Transportation in the development of the actions for countering UAS. The term “coordination” in subsection (e)(2) means that the heads of departments and agencies will seek the views, information, and advice of the Secretary of Transportation concerning any potential effects on the NAS as department and agencies develop the types of actions to be taken and the circumstances of execution under this provision. The
Secretary of Transportation will provide such views, information, and advice in a reasonably prompt manner. If the Secretary of Transportation notifies the head of a department or agency that taking the proposed actions would affect aviation safety or NAS operations, the head of the department or agency concerned will work collaboratively with the Secretary of Transportation to consider proposed actions to mitigate or otherwise address effects on aviation safety, air navigation services, and NAS efficiency—consistent with national or homeland security and law enforcement requirements—prior to finalizing the types of actions authorized to be taken under this provision.
Subsection (e)(3) requires internal review of regulations, policies, procedures, or plans that would result in the monitoring, interception or other access to wire or electronic communications.
Subsection (f) provides that no court shall have jurisdiction to hear causes or claims, including for money damages, against a federal officer, employee, agent or contractor arising from any authorized actions described in subsections (b). This provision serves to protect individuals taking authorized actions described in subsections (b) from damages claims and official-capacity claims.
Subsection (g) clarifies that the proposed legislation does not affect Federal agencies’ authority to continue testing and/or using technical means for countering UAS that comport with title 18, United States Code, and other applicable law, including the aforementioned sections of the NDAA for FY 2017. In addition, the proposed legislation clarifies that it does not restrict or limit the authority of the
Federal Aviation Administration, which remains the exclusive Federal agency with authority over the nation’s airspace and authority to manage the safe and efficient use of the NAS.
Subsection (h) provides exemptions from disclosure under State and Federal law for information relating to the technology used pursuant to the proposed legislation, and specific policies, procedures, or plans issued there under.
Subsection (i) clarifies that “unmanned aircraft” and “unmanned aircraft system” have the meanings given those terms by the FAA Modernization and Reform Act of 2012. The term “covered facilities, locations and installations” is defined to mean non-mobile assets in the United States that are designated by the respective agency head pursuant to standards and procedures developed in government-wide policy. The term “covered person” is defined to mean any member of the Armed
Forces, a Federal officer, employee, agent, or contractor, or any other individual that is designated by the respective department or agency head in accordance with the standards and procedures established in government-wide policy. The term “covered operations” is defined to mean governmental operations that are determined by an agency head, consistent with government-wide policy, to be important to public safety, law enforcement, or national or homeland security.
Subjection (j) provides that the legislation ceases to have effect on December 31, 2022.
IMPORTANT:Before you buy one, read the part of this article talking about how the law affects the economics of your operations. I’ve had phone calls with people who purchased drones to later realize they purchased a drone NOT efficient for their operations. Those were painful phone calls.
Drones are really just aerial platforms from which to do things. Most people associate drones as data collection platforms where you mount sensors such as cameras, LIDAR, etc., but drones can also be used for the delivery of all sorts of other things besides just drone package delivery or medical delivery. One great example is using the drone as a drone sprayer. Keep in mind that there are attachments for drones to do things other than just spraying (e.g. drone granule spreader).
As of 10/31/2019, I’ve helped 13 clients obtain exemptions for agricultural aircraft operations and 6 clients obtain agricultural aircraft operating certificates. I’m a commercial pilot, current FAA certificated flight instructor, aviation attorney, and former professor at Embry-Riddle Aeronautical University. I distilled into this article some of the important points that I have used as I have assisted clients in successfully obtaining Federal Aviation Administration approvals to operate their drone sprayers. If you need my help with exemptions, a Part 107 night waiver, going through the 137 agricultural aircraft operator certification, please contact me for pricing.
You can remove the person from the area being treated. This is a MAJOR benefit. Yes, the crew has to be around the drone while it’s being loaded but that is so trivial compared to spraying some heavily vegetated area where everyone is definitely going to get covered tripping and falling on all sorts of stuff.
One trip. Some operations can benefit from the small size of the drone which can be stored in the back of a truck. Instead of driving out to identify what is going on and then going back and picking up some more equipment (argo, ground rig, etc.) you can just spot spray those areas. Yes, a backpack sprayer can do that but how good is that backpack sprayer for swamp, water, rocky uneven areas, etc.? Plus, a drone sprayer can spray those areas faster than a backpack sprayer which could mean the backpack sprayer could cost you more in the long run (more injuries, more hours worked, etc.).
Lowers Risk Exposure. Having problems with spraying troublesome areas such as under power lines, rocky inaccessible areas, near powerlines, near towers with guidewires, near highly noise sensitive home owners who complain constantly to the FSDO (which results in ramp checks), box canyons, etc. Send in the drone. If you lose the drone, no biggy. No one is on board. If you have a current Part 137 operation, you should see how you could REPLACE risk by operating a drone instead of a manned aircraft in certain environments. Think about it guys. You send out the flagmen sometimes. Couldn’t ya just have the flagman turn around and “weed wack” the dangerous areas with the drone?
Able to get into areas manned aircraft cannot easily get into. Part 137 requires the operator to file a congested area plan if they are operating over a congested area. The problem is manned aircraft cannot operate like a drone. You have to fly the manned aircraft there while a drone can be driven there. This results in the manned aircraft operation having to go through the hassles of filing a congested area plan and getting it approved. I would argue that unmanned aircraft fly in between congested areas. Think about it. You could be treating golf courses, canals, ponds, lakes, etc. all in a suburban/urban environment but you are never over people or property. You drive up in your truck and launch the drone.
Drone Sprayer Examples:
I’m going to touch on the high points of each of these drone sprayer uses. Please keep in mind that each drone sprayer has its own set of unique problems, economics, laws, etc. My commentary is not an exhaustive discussion on the whole area.
A. Pollen Drone Sprayer
There is a problematic decline of bee population numbers around the United States which has been caused for various reasons. Dropcopter has stepped into this gap with a very innovative idea of using their drone sprayer to pollinate crops.
“Pollination by drone isn’t the only alternative to insect pollination, but it may just be the most efficient current solution. Alternatives include using large tractor-mounted liquid sprayers or leaf blowers driven on quad bikes. Both of these are problematic due to the lack of reach and, in the case of liquid sprayers, the time-sensitive nature of the pollen once it gets mixed with liquid. Dropcopter’s drones, meanwhile, can cover 40 acres per hour, and can double the pollination window by also flying at night. This is one advantage they even have over bees since bees don’t fly at nighttime, when flowers remain open.”
If you are a government agency that fights mosquitoes or other pests, there is the potential for your operations to be done under a certain type of classification called a public aircraft operation which gives your operation more flexibility than non-government entities. See below for a discussion. If you are interested in helping your mosquito control district use drone sprayers, contact me.
Mosquitoes are not the only insects you might be interested in fighting. Drone Volt created a mount to spray insecticide on hornet nests way up in trees.
C. Crop Dusting Drones (Herbicide, Fertilizer, Fungicide, etc.)
Drone sprayers seem like a good choice to be crop dusting drones but there are MANY variables here that affect whether it is a good decision for your situation or not. Factors that influence whether this makes sense or not are:
Type of crop,
Value of the crop,
Ground size of the crop,
Droplet size requirements to be placed on the crop,
How quickly you need to spray a particular chemical on a crop (is there a window of time?), and
How much liquid you need to spray.
For large areas of land, manned aircraft and ground spraying rigs make more sense based upon cost per acre compared to crop dusting drones. Read my section below on the economics to understand this fully. For smaller pieces of land or land that is inaccessible to ground rigs or manned aircraft, it might make sense to use crop dusting drones.
D. Drone Tree Seed Planter
Drone Seed is looking to corner the market on precision forestry. Not only can it do a potentially dangerous job of planting trees on the slopes of steep inclines but it can also potentially do it faster than by workers on foot.
E. Wind Turbine De-Icing Drone Sprayer
The Verge did an article on the company Aerones which built a large drone sprayer with some serious lifting capacity to fly up and spray de-icing fluid on wind turbine blades. The Verge article explained:
“The craft has a tether line supplying water, which it sprays at up to 100 liters a minute (with optional de-icing coating), and another for power, meaning it can stay aloft indefinitely. Cleaning by drone costs around $1,000, compared to $5,000 and up for cleaning by climbers.
The process is good for general maintenance, but also helps increase power efficiency. If snow and ice build up on a turbine’s blades, it slows the rate at which they produce power and can even bring it to a complete halt. Aerones adds that using a drone for de-icing is both quicker and safer than sending humans up using a cherry picker”
Drone Sprayer Economics
There is far more hype to this area that is being driven by possibilities rather than economics.
Drones are mobile platforms to spray from. There are other mobile platforms such as:
Each of these platforms has pros and cons that need to be weighed against the benefits of the drone sprayer.
1. Manned Aircraft (Airplanes & Helicopters) vs. Drone Sprayers
Manned Aircraft: Most drone sprayers cannot carry a large payload compared to manned aircraft. Manned aircraft also are lower in cost per acre than drone sprayer operations. For crop spraying, drone sprayers won’t be used for large acres of land because the spraying rate per day is also way too small compared to manned aircraft which can spray thousands of gallons in one day. This is a major point people miss. There are narrow windows of time to spray crops due to all sorts of things such as weather, chemical being sprayed, growth cycle, etc. Simply put, drone sprayers cannot spray fast enough because their tanks are small.
Drone Sprayers: Drones have the ability to service clients who have smaller amounts of land or area inaccessible to manned aircraft.
Ground Spraying Rigs: They do not have to deal with the FAA and all those hassles. They can also hold much more spraying material than a drone.
Drone Sprayers: Drone sprayers can access areas that ground spraying rigs cannot, such as uneven, steep, or inaccessible terrain or sensitive environments where the ground vehicles would damage the area or crops. Drone sprayers are lower in cost to purchase and maintain.
3. Humans (Backpack Sprayer)
Backpack Sprayer: Super cheap to purchase ($90) compared to a drone sprayer. No FAA problems. But your workers could get covered in the chemical. Numb lips anyone?
Drone Sprayers: You can access areas with less danger to your employees. (Slip and fall anyone? Hello workers’ compensation claims.) Potentially more time efficient. Less exhausting than walking around with a hand pump sprayer. Depending on batteries and how quickly you can refill, this can be more time efficient than backpack sprayers.
So Where Do Drone Sprayers Fit In?
When you go to the home improvement store to buy some paint, you’ll notice that there are small spray paint cans, low cost electric paint sprayers, and large metal heavy duty commercial sprayers. By analogy, drone sprayers fill a sweet spot that is similar to low cost electric paint sprayers.
You have to focus on the strengths of drone sprayers to see where they shine:
Able to get into locations that manned aircraft, ground spraying tractors, or hand sprayers cannot access.
Safer than hand spraying.
Lower acquisition costs versus larger pieces of equipment (ground spraying tractors) or manned aircraft. Do you really need to buy that ground spraying rig?
Easy and low cost to transport and deploy. (Ground spraying rigs you have to drive or tow there. Manned aircraft you have to fly to the location).
Able to service smaller clients that would not have hired a manned aircraft.
Can You Give Me Some Drone Spraying Examples?
High value crops that tend to cover smaller acres of land (vineyards, apple orchards, almond orchards, etc.).
Spraying pollen on higher value crops to increase crop yields.
Crops on terrain that is too inaccessible or inconvenient to get to with a ground sprayer yet is too small to justify hiring a manned aircraft spraying operation.
Herbicide spraying on rocky embankments near a water reservoir where you don’t want to endanger your employees or you have a hard time getting to the rocky areas with the ground rig.
Mosquito abatement in areas that ground vehicles (or boats) cannot easily get to and that don’t justify the use of manned aircraft.
You’re a company that is running an in-house operation testing out aerial application of chemicals or on a particular type of plant.
I heard a person one time say they wanted to spray 4,000 acres with a drone. I said you’ll never do that economically. Manned aircraft will be far far cheaper you’ll ever be. Do NOT think 4 farms of 1,000 acres each but 1,000 farms of 4 acres each. You focus on what businesses are on 1-10 acres. Nurseries, specialty crops, orchards, etc.
What About Costs? How Much Does a Spraying Drone Operation Cost?
Yes, those examples didn’t really take into account the total drone sprayer operational costs. Here are some rough numbers you can use to go off of:
Federal Aviation Administration (FAA) Related:
FAA Registration ($5 per drone). Good for 3 years.
FAA Remote Pilot Certificate Knowledge Exam ($150 per remote pilot). Aeronautical test knowledge is good for 24 months.
Spraying Pesticide? You’ll need a state restricted use pesticide license. (Around $100 to $250). Things can cause this to fluctuate so you’ll have to check your state.)
If you need my help with exemptions, a Part 107 night waiver, going through the 137 agricultural aircraft operator certification, keep reading. I have a section down below.
Now before you start making business plans. You need to know that these drones are considered aircraft. Aircraft are regulated by the Federal Aviation Administration (“FAA”). In addition to the FAA, other U.S. Federal laws may apply to your operation.
Here are the two most important things you need to know about Part 107 in relation to spraying drones:
Part 107 is only for drones that weigh on take-off less than 55 pounds and
You cannot carry hazardous material on the drone.
Now these are not deal breakers but you’ll need exemptions from these restrictions. Exemptions do not cost anything to file with the FAA but they do take time and legal knowledge to make sure you have identified all the regulations you need to be exempted from. If you don’t have the time or knowledge, you can hire people, like me, to help you with this.
Also keep in mind that for 55 pound + exemptions, there are documents and data the FAA will want you to submit in support with the exemption. This data might NOT be supplied by the drone sprayer manufacturers, which means you need to create it or find someone who has. See tips below for more on this topic.
Part 137 – Agricultural Aircraft Operations.
Part 137 specifically defines the applicability of this Part of the Code of Federal Regulations. Agricultural aircraft operation means the operation of an aircraft for the purpose of:
Dispensing any economic poison,
Dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control, or
Engaging in dispensing activities directly affecting agriculture, horticulture, or forest preservation, but not including the dispensing of live insects.
Economic poison means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life or viruses, except viruses on or in living man or other animals, which the Secretary of Agriculture shall declare to be a pest, and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant.
Most spraying operations fall into the applicability of Part 137 and because of such, they’ll need exemptions from sections of this part. Why? Part 137 was created a long long time ago. The regulations designed for manned aircraft do not make sense with drone sprayers. Conveniently, if you are already getting an exemption from the prohibition in Part 107 to not carry hazardous materials (like economic poisons), you can just add the sections of Part 137 that you need exempting from all into one request for exemption document.
Here is a major point that people miss. In addition to the exemption to do agricultural aircraft operations, the operator will need to obtain an agricultural aircraft operator certificate. You can thankfully pursue both the exemption and certificate in parallel to speed things up but you’ll need the exemption approval before you get inspected by the FAA as the final step in getting your agricultural aircraft operator certificate.
2. Other Federal Regulations
Keep in mind the FAA isn’t the only federal agency you might have to deal with. There is also the Environmental Protection Agency and also the Occupational and Health Safety Administration which have regulations that apply. Discussing these regulations is way outside the scope of this article but I wanted to mention this.
B. State & Local Drone Spraying Laws
There are state and local laws that apply to aerial application spraying (manned and unmanned spraying). This is a very broad area but just know that states require you to obtain some type of restricted use pesticide license to spray any economic poisons and typically you need the certification in the category you are performing the work (aerial application).
Some states require you have your drone sprayer registered with the FAA and even the state. The state won’t issue any state registration until you also show some drone insurance on your drone sprayer. This means you won’t be able to do some type of hourly insurance set up but will have to obtain annual insurance and request a certificate of insurance to show to the state.
Local laws also might apply depending on what you are spraying, when you are spraying, and where you are spraying.
How Drone Spraying Laws Heavily Influence the Economics
A big mistake some make when getting into drone spraying is that the size of the aircraft ONLY affects the cost per acre. I cannot emphasize this enough. This is the most important point of this entire article.
A drone that weighs 55 pounds or more on take-off, will be required to fly under a different set of regulations and restrictions. Yes, the weight of the aircraft will determine what set of regulations you will fall within.These restrictions can be extremely burdensome in some environments and inconsequential in others.
The two big restrictions facing 55 pound and heavier aircraft are (1) the 500ft bubble and (2) the Blanket COA 5-3-2 airspace bubble.
The 500 Foot Bubble
Under 55 pound operations do not have the 500ft buffer zone but 55 pound and heavier operations do.
To operate a spraying drone 55 pounds and heavier, you’ll need an exemption from some of the regulations in Part 91. One of them is 91.119(c). The exemptions being given out which grant regulatory relief from 91.119(c) require under restriction “27. All flight operations must be conducted at least 500 feet from all persons who are not directly participating in the operation, and from vessels, vehicles, and structures[.]”
People really don’t fully appreciate how big of a buffer zone this is. Let this sink in.
In order to spray operating 55 pound+, the width of the field needs to be at least 500ft ON BOTH SIDES of the drone. Every road, person, house, car, etc. is a problem.
The only exceptions to the buffer zone are to the following three:
a. Over or near people directly participating in the operation of the UAS. No person may operate the UAS directly over a human being unless that human being is directly participating in the operation of the UAS, to include the PIC, VO, and other personnel who are directly participating in the safe operation of the UA.
b. Near nonparticipating persons. Except as provided in subsection (a) 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 in which 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.
c. 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 determine that it does not present an undue hazard.
So ya need to get permission. Now you’re knocking on doors like your a girl scout selling cookies. What if they are in the shower, out of town, in the barn, just don’t care, etc.? Bummer. You have to stay more than 500ft away. Yes, if you are doing the job for the person who owns the cow, barn, and house, you could just get that permission so that resolves that problem….but……what about their neighbors barn, house, or cow which may be near the fence? Knock knock……Who’s there?
You…knocking and not doing what you need to be doing.
Basically, you must stay away from non-participating people and property, unless protected.
In some circumstances, this is a deal breaker for 55 pound and heavier operations which means you have to do your operations under 55 pounds under Part 107 which does not have the 500ft buffer zone.
Some choose to solve this situation with an aircraft optimized for over 55 and another optimized for under 55. Another is just have one aircraft and fly it under 55 (with less payload) in the 500ft buffer areas and go 55+ for the fields. Both scenarios would need a under 55 exemption and a 55+ exemption.
The Blanket COA 5-3-2 Airspace Bubble.
The blanket certificate of authorization (COA) being given out with the exemptions for 55 pound and heavier drone spraying operations say the following:
Beyond the following distances from the airport reference point (ARP) of a public use airport, heliport, gliderport, or seaport listed in the Digital – Chart Supplement (d-CS), 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.
This is what it looks like on a sectional chart for the airspace around Austin, Texas.
You can obtain approvals to fly in those red areas. The blanket COA says, “For all UAS requests not covered by the conditions listed above, the exemption holder may apply for a new Air Traffic Organization (ATO) COA at https://caps.faa.gov/coaportal.” It just means another hoop you have to jump through if you need to fly there.
In heavily congested airspace environments, this is a deal breaker for 55 pound and heavier operations which means you have to do your operations under 55 pounds under Part 107 which does not have the 500ft buffer zone. This is the same area under Part 107 regulations. Those 3 red areas are where a COA is required under Part 107.
When it comes to getting COA approvals. Part 107 wins. The CAPs portal above for 55+ operations is a super pain to connect to and takes longer than LAANC which is the FAA’s new way of granting COAs electronically within seconds in certain locations.
Because of these reasons, not too many people operate 55+ legally. If you go to the FAA registration database and type in different make and models of spray drones capable for flying over 55 pounds, you’ll notice very few aircraft are registered under Part 47 which is the only way you can register 55 pound+ drones. The aircraft you see are those that can legally operate 55+ and heavier in the US. Explanations for low numbers could be (1) the registrant incorrectly registered under Part 48 which is ONLY for SMALL drones, (2) the registrant chose to operate their drone under 55 pounds according to Part 107 and use the easier Part 48 online registration process (even though they could physically operate heavier), or (3) they just chose to illegally operate without registration.
Nothing prohibits you from having two exemptions. :)
You can have one aircraft that can operate under either one depending on the needs of the environment.
Conceptually, you “mow the lawn” with the 55+ exemption with the 500ft buffer while you “weed wack” the edges under Part 107 without the 500ft buffer zone. There are some issues you will run into if you already have one of the exemptions and you are trying to add on another, you’ll want to schedule a phone call with me so we can go into all the issues with the endorsement, manuals, LOA, etc. There are issues with jumping back and forth between the two also.
Drone Sprayer Statistics (# of Operators, Exemptions, Registrations, etc.)
Drone Spray Operators (as of 11/2019):
25 Part 137 Agricultural Aircraft Certificate Operators using Drones
Exemptions (as of 11/2019):
53 Exemptions for Part 107 spraying operations (Under 55 pound operations).
24 Exemptions for Part 91 spraying operations. (55 pound + operations)
Registrations (as of 11/2019):
Part 47 registrations for unmanned aircraft is searchable by make and/or model. (If you fly 55 pound +, you must register via Part 47. The Part 48 database is not searchable unfortunately.). This is an important point because it tells you have many 55 pound+ aircraft are capable of legally operating in the US. Some people who purchase aircraft capable of flying 55 pound+ realize they would rather just operate under 55 pounds which means they are not as efficient.
Note: the customer registering could have put the names in incorrectly or the FAA entered them incorrectly so there could things registered incorrectly I missed. For example, there was an entry for the Yamaha REMAX when it’s correctly called RMAX.
4 RMAX Type II
3 FAZER R
2 Harris Aerial
1 Stark HX8
2 Homeland Surveillance & Electronics.I searched “HSE” “Homeland” “HS&E” for the manufacturer.
1 AG MBA PRO
1 AG V8A+ PRO RTK
1 Kiwi Technologies
0 DJI with their T16
Drone Sprayers (and Spreaders) for Sale
Right now, there are some companies that are manufacturing spraying drones. The drone sprayers listed below are ones I’m familiar with. I didn’t do an exhaustive search for all that is out there.
Very important point: if any of the manufacturers or resellers refer you to other companies for legal or consulting assistance, ask them if they are receiving referral fees from that person or companies. You want to find out if the recommendation was because the consultant or attorney was the best person for the job, not because they were giving kickbacks. As a Florida-barred attorney, I’m prohibited from providing referral fees to non-attorneys and have never done so.
Some of these companies also have foggers and spreaders that mount onto the aircraft.
Agras MG-1. RMUS sells a package you can see here.
Keep in mind you don’t just buy the drone sprayer. You’ll be also thinking about purchasing a transport case, extra batteries, training, etc.
Tips on Starting a Drone Sprayer Operation (Read This Before You Buy)
1. Work With an Attorney
A. Attorney Client Relationship Protects Sensitive Conversations. The attorney-client privilege protects conversations between the client and the attorney. This allows for open conversations regarding the legality of the operations. “Was I supposed to do……..” or “We just received a letter of investigation” are supposed to be brought up in the open and honest attorney-client discussion. There are alot of regulations that apply. Do you really want to rely on a non-attorney to give you legal advice? You’re the one getting the fines, not the consultant.
Please note that it is ATTORNEY client relationship and not consultant client relationship. The FAA, federal and state law enforcement, plaintiff’s attorneys, etc. can subpoena your consultant to testify against you. They can’t do that with an attorney except for really rare situations. The consultant is stuck between a rock and a hard place. They either tell the truth and goof you up, lie and risk jail, or refuse to answer and go to jail. The answer is simple – you’ll get goofed over every time.
B. An attorney can actually provide legal advice – lawfully. You’re going to need a lot of answers regarding the laws. Almost all the states I know of require that people who provide legal advice be licensed attorneys in that state. Only attorneys can provide legal advice. If anyone claims they are an attorney, check the state bar directory in which they live to see if they are a current member in good standing. For example, if you go to the Florida Bar’s member search page, you can search for me and see that I’m eligible to practice law and in good standing with the Florida Bar.
I know of a person running around in the industry right now that calls themselves an attorney but that person is actually a disbarred attorney who was disbarred because of dishonest conduct towards the client. It will look pretty bad to your boss if you hire a so-called attorney who turns out to not be a LICENSED attorney.
C. They have a duty to you. – This is an important one. Yes, we all understand the idea of giving secrets away to a competitor is a big no-no. But consider this….as a Florida Bar attorney, I’m actually prohibited from paying out to any non-attorney or drone manufacturers any referral fees. This means that if I recommend something or someone, I’m recommending it because it is good, not because I’m getting paid for it. Furthermore, this means that people who refer to me are sending you to me because I’m the best person to help, NOT that I’m giving them a kickback.
D. Protection. Most attorneys have legal malpractice insurance which is there to protect you in case there is a mistake. I don’t know of any consultants that have legal malpractice insurance to protect you if they advise you incorrectly on the aviation regulations or the other laws that apply to this area. Furthermore, attorneys go through background checks to get barred. Consultants don’t have to get checked out.
2. Are You Planning on Flying 55 Pounds or Heavier in the United States?
A. Limited Payload. To fly under Part 107, your drone sprayer needs to weigh under 55 pounds on take-off. It could have the capability to fly heavier, but you need to keep it under. This is an important point because you could purchase a drone sprayer capable of flying over 55 pounds but you’ll be forced to limit the amount of liquid in your tanks for the drone and liquid together to be under 55 pounds at take-off.
B. More Costs & Different Rules. The amount of effort to fly a drone sprayer weighing 55 pounds or heavier is much more considerable than just flying under Part 107 without an exemption. Keep in mind you cannot just get a remote pilot certificate and fly a 55+ drone sprayer. The pilot will need the more costly sport pilot certificate and will be operating under a completely different set of regulations than Part 107. This means your up front costs WILL be higher for flying a 55+ drone than for an under 55 drone. This also means that if you want to scale out the drone spraying operation, you’ll need to pay for training to get the employee a sport pilot certificate or recruit people that already have this license or higher. It might make sense for your operation to have multiple under 55 pound drone sprayers and maybe one or more 55+ drone sprayers for larger jobs.
C. Lack of Reliability Data. This is actually the worst one. For a 55+ exemption, the FAA will ask for information on the drone sprayer, such as how many total hours have been flown on it to show engineering reliability. This is different than manuals. Is there any supporting data that shows this type of air frame is safe? This means you’ll most likely have to obtain the drone sprayer data yourself or find someone who already has. Maybe in the future the FAA will approve other 55+ exemptions based upon someone doing the previous leg work on the same make and model of drone sprayer but I have yet to see that.
D. Registration Planning. The easy online method of registering the drone sprayer under Part 48 is for only drone sprayers that will be operated under 55 pounds. This means you’ll have to go through the headache of de-registering under Part 48 and re-registering under Part 47 which is a pain in and of itself. Proper planning would say if you plan on going 55+ with your drone sprayer, just register under Part 47 which is good for both under 55 and 55+ operations.
Drone sprayers provide great opportunities for certain types of operations but not all situations. To help you achieve your drone sprayer goals quickly and legally, it is best to work with someone who has familiarity with the area.
If you are planning on navigating this difficult area, contact me. I’m a commercial pilot, current FAA certificated flight instructor, aviation attorney, and former professor at Embry-Riddle Aeronautical University. I am currently assisting clients in these matters and HAVE successfully obtained exemption approvals for clients to do drone spraying. I’m also familiar with the non-aviation related legal issues that are extremely important for drone sprayer operations.
My Services & FAQs
A petition for exemption needs to be filed. In parallel to this process, you go through the agricultural aircraft operating certification at the local flight standards district office level. I’ll give you instructions on how to do this. Basically, you file an application to them and send them the manuals we filed in support of the petition for exemption. Once the exemption is granted, you schedule with the FAA an in-person inspection where they verify your knowledge and skill of flying the aircraft. If you pass, you then obtain an operating certificate.
In order for the spraying operations to be in compliance with Federal Aviation Regulations (other laws may apply as well), the pilot needs a remote pilot certificate, the drone must be registered, you need the exemption, AND the agricultural aircraft operating certificate has been issued.
Turn around times on an exemption from the FAA is about 60-90 days from filing to approval, unless there is a government shutdown. Turn around time on the agricultural aircraft operator certificate can be 3-9 months depending on many factors.
The deliverables are determined by what you select.
Agricultural Aircraft Operating Certificate
Answering Whatever Drone Law Questions You Have
Filed by me.
I file stock manuals I created. No customization.
· Step-by-step guide.
· Study material.
· You file the paperwork and resolve any issues encountered with the FAA.
· You study on your own and find the answers on your own beyond what I don’t answer in the 30 minutes.
Filed by me.
Work with you to customize manuals to your needs. I then file.
· Answering questions regarding FAA created certification problems
· Emailing or calling FAA inspectors to resolve problems.
· Step-by-step guide.
· study material.
120 Minutes (Useful when preparing for your inspection)
From me, I’ll file the exemption. If Level 2 is selected, I’ll assist you in creating the operations and training manual. I’ll need you to decide on the finished training and operations manual.
From you, I need the contract signed AND payment before I start working. During the process, you’ll need to supply me the aircraft manual (what the manufacturer gave you). If Level 2 is selected, I’ll assist you in creating the operations and training manual. I’ll need you to decide on the finished training and operations manual.
I have helped 13 clients obtain an exemption and 6 agricultural aircraft operating certificates. I have had 0 rejections of my 137 exemption petitions.
Can I add aircraft later? Yes, the best way to do it is to have one aircraft on the exemption which is the same you plan on flying during the inspection. The exemption will say you just need to have any future aircraft listed on your letter of authorization (it’s some pieces of paper that comes with your operating certificate and is not to be confused with a certificate of authorization for airspace). You get your local FAA aviation safety inspector to list any additional aircraft on the LOA. 1 exemption and 1 operating certificate with a LOA that can list multiple aircraft.
How does it work with aircraft over 55 pounds? Basically, 55+ pound aircraft operate under a different set of regulations (which means we need those specifically exempted in the exemption). The easiest way to do things is just have 2 exemptions: 1 for under 55 and 1 for 55+. Why? because the under 55 exemption does not have any buffer zone issues regarding how far you need to stay away from people or airports while the 55+ exemption DOES which can get problematic when you are near people and airports.
My aircraft CAN fly over 55 pounds. Does that mean I cannot get an under 55 exemption? No, you can have an aircraft capable of flying 55+ but you just limit the payload to keep it under 55 to fly under the exemption without any buffer zone or airspace issues. You can have one aircraft and two different exemptions. You would “mow the lawn” with the 55+ exemption and “weed wack” with the under 55 when you are near people, houses, cars, etc.
Can I add waivers later on or do I need to get them now? You can add on the night and/or swarm waivers after you obtain the operating certificate and exemption. This is actually better as it presents less headaches during the initial process. I’ve done it before.
If you are planning on flying aircraft 55 pounds or heavier:
The under 55 pound exemption process is somewhat well defined but 55+ exemptions are not.
The costs for 55+ exemption are proportional to the amount of work I have to do. I’m not presently working on any of those but plan to offer this service in the near future. If the manufacturer can supply a lot of the data, the cost is lower.
If you can choose an aircraft that has been previously through the 55+ exemption process, we can maybe leverage the previous leg work done and skip the aircraft analysis because the aircraft is the same as the one previously approved. The only ones I know of are the Precision Vision 30, Yamaha RMAX, HSE M6A Pro, and HSE M8A Pro.
Another problem is when the aircraft is 55+ pounds, it is hard to get the flight data legally since you don’t have the approval to fly. There are two solutions: obtain an experimental certificate and test fly it to obtain the hours or fly the aircraft inside.
If the aircraft has not been previously approved, here is a list of what needs to go into a 55+ exemption (you’ll notice you can start logging some of the hours under 55 lb. flying):
A detailed description of the aircraft design and configuration for the UAS, focusing on the UAS features and flight characteristics to include, but not limited to:
o Three-view drawings of aircraft and support equipment to include wingspan, height, length and/or other geometric dimensions
o Description of the aircraft and support and equipment (ground station) limitations
Maximum take-off weight
Airspeed • Cruise • Maximum • Stall (if applicable)
Maximum endurance of the aircraft
o Description of major subsystems
Command and control (please include spectrum frequencies utilized)
Lost link strategies (i.e. communication, control, and data)
FCC Permit information (if applicable)
Propulsion system type
A detailed description of flight, lab, and software testing for the UAS, and, if applicable, the various flight conditions including:
o Density altitudes
o Wind/gust conditions
A detailed description of operational history, proposed operations, and proposed operational areas for the UAS, focusing on the intended mission and nature of the operating area to include, but not limited to:
o Total flight hours with the aircraft
o Flight hours by type of mission and operating area
Class of Airspace
Daytime or nighttime operations
Visual Meteorological Conditions (VMC)
Operations over private property or restricted areas
Operations in rural or urban areas
Proximity to people (not participating in the mission)
o Detailed incident/mishap data
Root cause analysis
Design and/or operational changes implemented
A detailed description of pilot-in-command (PIC), visual observer (VO, if applicable), and other crew member roles and responsibilities as well as qualifications focusing on training and experience to include, but not limited to:
o Pilot certification
o Medical certification
o Amount of training and experience
A detailed description of maintenance and operational procedures for the UAS, focusing on maintaining the UAS for safe flight over its operating life to include, but not limited to:
o Operational manuals
o Emergency procedures
o Maintenance manuals
o Pre-flight checklist
o Post-flight checklist
o Quick reference aircraft emergency procedures checklist (for use by the PIC and VO during flight)
A detailed description of a risk assessment for the UAS, focusing on potential hazards to include, but not limited to:
o Initial risk level
o Residual risk level
Comparison Table of My Services to HSE’s
Here is an apples-to-apples comparison of Rupprecht Law to HSE’s assistance services.
I’m an attorney that is licensed to provide legal advice. Can provide legal advice regarding FAA, liability, the law, etc.
Cannot provide. It’s illegal for them to do. They might try to outsource to UASolutions Group. If you examine more closely, the bio for Kelly at UASolutions Group says, “was an Attorney at Law” which means they cannot currently provide YOU legal advice.
FAA Certificated Flight Instructor and Commercial Pilot for 10+ years.
Fiduciary Duty to You?
Yes. The Florida Bar Rules of Professional Conduct regulate my actions towards you.
Provides manual templates and works with you to develop manuals to your company.
Assisting with Agricultural Aircraft Operating Certificate
? I don’t know how much they assist with.
1,800 or 3000 (depending on which package).
Yes, from TSA and Florida Bar.
What happens if they are unethical?
You can report me to the Florida Bar and they can investigate me. I could lose my bar license if I violate a rule of professional conduct. I have “skin in the game.”
I have compiled the various drone lawsuits/litigation/prosecutions into the list below.
There has been a wide range of drone-related cases in the last couple of years ranging from flamethrowers mounted on drones to a drone crashing into a wedding guest. I’m going to refer them collectively as drone lawsuits.
Some of the drone lawsuits I have written in-depth articles on, while other drone lawsuits I might just cite an article. If you know of a drone lawsuit that I have NOT put up here, please send me an email! :)
The drone lawsuits list below is broken up into Federal courts, Federal administrative courts (e.g. NTSB), and then state courts. Note that for criminal cases, I ONLY included cases where the prosecutor has chosen to file charges. There are many more individuals who have been arrested for flying a drone but the prosecutors for whatever reason did not choose to file charges. I did not include any drug transportation or prison-drop related prosecutions since those really aren’t drone cases but just drug or contraband cases.
Notice: I try to keep this drone lawsuits list up to date. This page MIGHT not be up to date with rulings. Think of this page more of a starting point to research further into the final outcomes.
If you are a person who has a drone-related matter outside of Florida, but you want to work with me, hire a local attorney in your state and tell them to contact me. If you are an attorney and need my help for a drone-related matter, please contact me.
Most of the criminal cases tend to be prosecuted under the state law equivalent of careless and reckless endangerment or something along those lines. The other batch of prosecutions has to do with violations of exporting technology associated with military drones.
DJI’s lawsuits involve them being on the receiving end of a class action or DJI being the plaintiff in a patent infringement lawsuit.
Then there is everything else. The civil drone lawsuits are all over the place (an Equal Protection Clause challenge against a state drone law, injured people suing drone flyers, products liability, breach of contract, etc.).
Drone Lawsuits in Federal Courts
Federal Circuit Court
EPIC v. Department of Transportation– EPIC is suing claiming the Drone Advisory Committee’s use of sub groups that are meeting privately is a violation of the Federal Advisory Committee Act. There are other claims but that is the big one. The D.C. District Court ruled against them and EPIC is appealing it to the D.C. Circuit Court of Appeals.
John Taylor v. FAA II (4th case)- Adjudicated.
John Taylor v. FAA I (Really 3 cases. Court consolidated them. ) – Adjudicated. Taylor beat the FAA. D.C. Circuit held the drone registration rules were illegally created. Keep in mind the National Defense Authorization Act of 2017 overruled this case.
Tech Freedom v. FAA – Voluntarily dismissed because this missed statutory time to file. They joined as an amicus brief to the Taylor I set of cases.
Robert Taylor v. FAA – Class action lawsuit over the registration regulations currently being litigated in the D.C. Circuit seeking around $840 million in damages and fees. Dismissed.
Reichert v. FAA – Currently being litigated. Class action lawsuit against the FAA seeking to destroy the FAA registry and get the money back to all those who have registered.
Singer v. City of Newton – Struck down the local drone law as illegal. Federal District Court of Massachusetts struck down the local drone ordinance as being unconstitutional. It was appealed by the City to the appeals court but the City asked for the case to be dismissed which the court granted.
FAA v. Haughwout case (the kid with the gun and the drone) is currently being litigated a federal district court in Connecticut and the only order was that the FAA’s subpoena powers were very broad.
Flores v. State of Texas -Southern Federal District Court of Texas case on whether the Texas state drone law violates the Equal Protection Clause.
Boggs v. Meredith case in the federal Western District Court of Kentucky which was dismissed. Boggs’ drone was shot down by Meredith. Boggs sued in federal court claiming the drone was in navigable airspace (which means he was not trespassing in Meredith’s airspace) and was entitled to compensation. The court dismissed the case because the court did not have the subject matter jurisdiction to decide the case and the case should be resolved in Kentucky state court.
DJI v. Yuneec – DJI is suing Yuneec alleging patent infringement.
Justice Laub v. Nicholas Horbaczewski et al – Laub alleges that Horbaczewski breached a contract. They are demanding $9,900,000 from Horbaczewski and Drone Racing League, Inc. Both Horbaczewski and Drone Racing League, Inc. have sued in New York state court asking for a declaration that Laub is not an owner of Drone Racing League.
United States v. Porrata – Defendant was sentenced to 5 years in prison and a $1.5 million fine for scamming investors with their sham drone manufacturing company.
The Inspector General for the Department of Transportation mentioned that their have been some investigations by the Department of Transportation against drone flyers. “Finally, prosecuting UAS owners who violate FAA regulations or engage in illegal flight activities has been challenging. Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions. Ultimately, further attention is needed to ensure FAA has strong oversight and enforcement mechanisms in place so it can effectively identify violations and mitigate the safety risks associated with increased UAS operations.”
UNITED STATES OF AMERICA v. CORVUS EYE PRODUCTIONS LLC – FAA was investigating Corvus and the owner. They sent a subpoena to the owner of Corvus. One thing led to another and the FAA worked with a U.S. Attorney to request a federal judge to order Corvus and owner to comply with the subpoena. The judge ordered the subpoena because the owner defaulted.
“Of the 158 enforcement investigations opened from October 2015 to October 2018, 98 resulted in administrative action or legal enforcement action, such as a warning notice or a civil penalty. Of the 98 completed actions, 51 involved the assessment of civil penalties, 44 resulted in administrative actions, and 3 resulted in the suspension or revocation of UAS remote pilots’ certificates, according to the data FAA provided. During this time frame, FAA levied civil penalties ranging from $250 to $55,000.”
Department of Transportation has been doing some investigations on some UAS operators. The DOT IG’s office testified, “Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and 9 were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions.” 23-10-9= 4 still open?
Drone Lawsuits in State Courts
Mark Anderson v. Aerovironment Inc., Et. Al. – Wrongful termination case in Los Angeles Superior Court where Anderson he was wrongfully terminated because the defendant transported at least one drone with a live bomb on a Delta airlines flight. Bloomberg article on it. In-depth investor report on it.
Telling v. DJI – Class action lawsuit against DJI in Los Angeles Superior Court
City of San Francisco v. Lily – The district attorney for San Francisco is suing the company Lily for false advertising and unfair business practices.
Joe v. McBay – Small claims case. McBay shot down Joe’s drone. The judge ordered McBay to pay for the shot-down drone.
Pituch v. Pi Kappa Phi
Pituch v. Perfect Event Inc. – Pi Kappa Phi of the University of Southern California hired Perfect Event to throw a party. One of the two defendants hired the drone operator who crashed the drone into the plaintiff’s head. She is suing both defendants for negligence and premises liability.
Boustred & Horizon Hobby v. Align Corporation – On appeal, court affirmed lower courts judgment denying Align’s motion to dismiss the case against them. Align is a Taiwanese company who sells model aircraft through Horizon Hobby. Boustred lost an eye when the toy helicopter broke and is now suing Align and Horizon Hobby under strict product liability. The appeals court affirmed the trial courts ruling that personal jurisdiction can be held over a Taiwanese company.
Pedro Rivera, v. Brian Foley, Edward Yergeau, & Hartford Police Department– Plaintiff works for a TV station and responded to a police scene while NOT working (his own free time). Plaintiff flew his drone and the police officer responded to the plaintiff’s flight. Police officer called Plaintiff’s employer and made suggestions that Plaintiff should be disciplined to maintain goodwill. Plaintiff was suspended for a week. Plaintiff sued claiming his constitutional rights were violated.
Commonwealth of Kentucky v. Meredith – The famous “drone slayer” case where Meredith shot down the drone. He was prosecuted for criminal mischief and wanton endangerment. The judge dismissed the case saying, “He had a right to shoot at this drone, and I’m gonna dismiss this charge[.]” Note: there is also a federal district court case associated with this case.
State v. Benson – Drone pilot was arrested and charged with flying a drone with the intent to surveil.
Ellis v. Searles Castle – Billcliff, the groom, was getting married at Searles Castle. He was flying a drone. He went to go dance and put his drone down. Someone flew the drone and crashed it into a wedding guest, Ellis. She is now suing Billcliff and also the Searles Castle for damages.
Eaton, the other girl injured along with Ellis, is also suing Billcliff and Searles Castles.
Russel Percenti shot down a drone and was prosecuted for possession of a weapon for an unlawful purpose and criminal mischief.
State v. Beesmer – Adjudicated not guilty. Flew his drone outside a hospital and was charged with unlawful surveillance. Held not guilty by jury.
State v. Daniel Verley – New York City teacher crashed his drone into U.S. Open tennis match. He was prosecuted. They entered a plea deal to do community service.
State v. Riddle – Guy crashed into the Empire State Building. Was prosecuted. Pleaded guilty to disorderly conduct. He has to pay a $200 fine and complete two days of community service.
State v. Turgeon – Adjudicated not guilty. Criminal prosecution for flying a drone allegedly near an airplane near the Dakota Pipeline protests. He was charged with a felony and two misdemeanors.
State v. Dewey – Criminal prosecution for stalking. Dewey was flying a drone during the Dakota Pipeline protests.
State v. Brossart – Not really a drone case, but a predator drone was used to track down a man. The crazy part is this was in 2012! This is more of a 4th amendment case.
Commonwealth v. Roselli. Adjudicated guilty and put on probation for 2 years. Roselli flew his drone near a helicopter. He was charged with risking a catastrophe (felony) and recklessly endangering another person (misdemeanor). He did a plea deal. He pleaded nolo contedere to the misdemeanor and the prosecutor dropped the charges for the felony. He was put on probation for 2 years and to pay court costs.
State v. Haddox – Haddox was flying his drone during “CMA Fest activities and the Predators watch party on Broadway.” He was arrested and charged with reckless endangerment and trespass. The “reckless endangerment charge stems from Haddox being unable to maintain line of sight of the drone and flying it over a ticketed event with thousands of persons present.” The two dockets are here.
City of Seattle v. Skinner – First drone flyer ever to be sentenced to jail for flying a drone. He flew over a gay pride parade and the drone crashed into a woman.
The woman who was injured is suing Skinner to recover damages for the crash.
City of Seattle v. Kelley – This is the famous Seattle Space Needle crash that was all over the internet. Kelley was charged with reckless endangerment. He pleaded guilty to reckless endangerment and “received a suspended jail sentence of 364 days after entering his guilty plea” and “was also fined $5,000 with $4,750 suspended.”
Keep in mind that Part 107 or 101 was not in effect at this time.
(June 11, 2016) – Recently released documents from a FOIA request reveal a total of 23 FAA enforcement actions against drone operators. Here are the important take-aways I’ve found with the cases that have been released via Jason’s great work over at Motherboard.
Quick Summary (Explanations and Graphs Below)
Not everything was released.
None of the regulations that are exempted in a typical Section 333 (now called Section 44807) exemption were cited.
None of the notices or orders say anything about 333 exemptions.
Two drone companies were targeted.
Defendants received reduced penalties when an attorney was involved.
No one had a 333 exemption in effect at the time of the flights.
Two certificated pilots were targeted.
1 case started with a subpoena.
151 days is the average from the date of the first violation to a notice from the FAA.
Phantoms were the most popular aircraft.
Many of the flights occurredin Class B Airspace.
The FAA enforcements appear to be spread out chronologically but not geographically.
4 of the flights were commercial.
5 notices or orders mentioned the loss of line of sight in the facts justifying a violation of the prohibition on careless and reckless flying.
9 of the cases also had some type of arrest or fine under state or local law for the flight.
The FAA did NOT charge the defendants with all the regulations that were violated.
Note: I’m not going to be citing directly to legal sources because I don’t want to educate my competition. Take a look at my drone attorney bio and you’ll see a graph of the drone law firms with the number of 333 exemptions they have filed. You’ll see that a really large majority of them don’t have much drone law experience. Remember, when hiring an attorney, don’t hire a poser, hire an attorney who is a commercial pilot.
If you want to use the graphs, I only require that you leave the watermark intact. :)
Not everything was released. There are more enforcement actions that I know of than what was released. I won’t say anything else so as to not “inflame” their situations due to media attention.
None of the regulations that are exempted in a typical Section 333 (now called Section 44807) exemption were cited. This is a very important point. A 333 would provide a defense to those charges, provided the operator was following the exemption, but you have to remember, all the regulations apply. The 333 only exempts you from some of the regulations, not ALL. The 333 exemption isn’t your own little world to operate in. The Federal Aviation Regulations still apply.
Compare with the regulations that are in an exemption:
14 C.F.R. § 61.23(a) & (c)
14 C.F.R. § 61.101(e)(4) & (5)
14 C.F.R. § 61.113(a)
14 C.F.R. § 61.315(a)
14 C.F.R. § 91.7(a)
14 C.F.R. § 91.119(c)
14 C.F.R. § 91.121
14 C.F.R. § 91.151(a)(1)
14 C.F.R. § 91.405(a)
14 C.F.R. § 91.407(a)(1)
14 C.F.R. § 91.409(a)(1) & (2)
14 C.F.R. § 91.417(a) & (b)
What is the take away here? Everyone of the flights could have been cited with many more violations of the regulations. The FAA left a lot on the table with charges. So why would anyone get a 333? Because the 333 exemption would keep additional charges from the second list above “off the table,” provided you were operating under the 333. It would be beneficial as a partial defense.
Another take away is that the FAA treats 91.13(a) like bacon, they put it on everything to make it better.
None of the notices or orderssay anything about 333 exemptions. This does give us a clue of the future dynamics when everyone has a 107 certificate. A 107 certificate being suspended or revoked would be bad when mostly everyone has one in the future. Remember that suspension actions, civil penalties, and revocations go on your record.
Two companies were targeted. Most individuals think the FAA is targeting individuals only but they have targeted at least two companies here. Without getting into the distinctions of how involved the drone operators were involved in the companies fined, this is one of the reasons why large companies hire 333 operators so they are not “on the hook” for the flight of the drone operator. What is interesting is the FAA didn’t go after the individuals operating the drones as well! However, SkyCamUSA, LLC managed to escape this but their pilot David Quinones, the “mistletoe” pilot from back in 2014 who cut a reporters nose, received a pilot license suspension of 90 days while the company was not fined separately. Future enforcement actions could see the 333 operator AND the pilot on the receiving end of enforcement actions.
Defendants received reduced penalties when an attorney was involved. Except for Skypan, because it has not yet settled, every case that had an attorney representing the defendant resulted in a reduction in the proposed civil penalty from the original notice. In the following graph, the cases where an attorney was involved are navy blue while the pro se defendants are light blue.
One important thing to remember is that the attorney-client privilege applies to communications between an attorney and his client, not an attorney and a “consultant.” This is an important distinction because a prosecutor could subpoena the consultant to turn over documents or to testify as a witness in an enforcement action against you!
No one had a 333 exemption in effect at the time of the flights. Four of the flights were commercial but the operators didn’t have 333s in effect at the time. This means we don’t know if the FAA has or will pull a 333/COA as part of an enforcement action.
Two certificated pilots were targeted. Two of the cases involved people with pilot licenses. A student pilot license was voluntarily revoked for a reduction in fine from $5,000 to $3,000 and a commercial certificate was voluntarily suspended for 90 days. These will show up on their airmen records. As time goes on, many more people are obtaining manned aircraft certificates or their 107 certificate.
1 case started with a subpoena. There are three situations, at least that I know of, where subpoenas have been issued at the front end to go on fishing expeditions to figure out more evidence against the potential defendants. Skypan is the first example of this and the third instance is the Connecticut gun drone kid which is being fought out currently. The FAA might be switching up tactics to file a subpoena first and then use the evidence gathered as grounds for more violations. If they don’t “get” you on the civil penalty, they will at least get you to spend time and money on an attorney fighting the subpoena.
151 days is the average from the date of the first violation to a notice from the FAA.
Note: Adam Rupeka’s says “0” because the scan of the document was so bad I could not determine the letter date.
Phantoms were the most used aircraft. Yes, you guessed it. The majority of the aircraft involved in these enforcement actions were Phantoms. I just lumped them all into one category as opposed to breaking down into different models of the Phantom. The Phantom is starting to be like the AK-47 of the drone world.
Many of the flights occurred in Class B Airspace. Class B airports tend to be in major cities. The radius for Class B airspace extends 5 nautical miles out (10 NM diameter) and in some instances even more. Here is a graph of all the types of airspace that the defendants flew in. Notice that a defendant can fly in different types of airspace for one flight.
The FAA enforcements appear to be spread out chronologically but not geographically. Some of the notices appear to have been filed around the same date. Maybe the prosecutor “batched” them on the side of their desk.
4 of the flights were commercial. The FAA is not targeting only recreational flyers but also commercial.
5 of the notices or orders mentioned the loss of line of sight in the facts justifying a violation of the prohibition on careless and reckless flying. This is an important distinction because Section 336(b) is the FAA’s good old fallback position in enforcements. FPV racers take note. The FAA explained its view in the 2014 Model Aircraft Interpretation and said that FPV racing is not compliant with Section 336’s definition of model aircraft requiring line of sight and therefore would not be protected.
9 of the cases also had some type of arrest or fine under state or local law for the flight. You can be prosecuted under state/local law as well as federal law at the same time for the same flight. Also, keep in mind that a 333/COA is helpful for getting local law enforcement off your back as they are generally trying to find operators who do not have 333s. A good example of this is with the City of LA’s ordinance. Law enforcement officers were going around asking people if they had a 333 or not. If you didn’t have one, you could be arrested.
The FAA did NOT charge the defendants with all the regulations that were possible. I went through the facts and noticed a lot of regulation violations. Each flight should have been a $5,500 fine at a minimum. Why? With a typical drone operator, at least 5 regulations are usually being violated in each flight. If the operator switched out batteries, that would be a 2x multiplier because they are violating each of those 5 a second time on the second flight. A two battery job could compile a fine of around $11,000 if a prosecutor really wanted to go after you. It appears that the FAA’s prosecutors were either disorganized as to how to fully prosecute these cases or they were too embarrassed to “throw the book” at the drone operator. As time goes on, I believe the prosecutors will get better at their game and there will be more and more pressure to vigorously prosecute violators. I asked my friend Craig Thompson, a Dallas Aerial Photographer, what he thought of this data and he said, “Given that more than a million drones have been sold in the U.S., the fact that only two dozen fines have been levied is surprising and likely reflects the FAA’s lack of resources, rather than a lack of desire.” I think his statement is correct. As time goes on, we can expect to see many more of these enforcement actions to be more fully prosecuted.
Potential Benefits to the Drone Community. The FAA’s lack of enforcement has been the catalyst for many states, counties, cities, and towns enacting some laws governing drones. The release of this information can have a positive effect by showing that the FAA IS doing something. I would suggest giving this article out to any of your elected officials who plan on doing something regarding regulating drones. Tell them to give the FAA time to get “up to speed” on the situation before they pass any laws that will stifle this industry.
Are you trying to figure out how to obtain a Part 107.39 Waiver?
You’re not alone. It’s the 2nd most requested waiver behind the night waiver. By the end of this article, you’ll understand a great deal more about section 107.39, the over people waivers, and the issues surrounding over people operations that the FAA will want you to address if you are going to apply for an over people waiver.
It’s the 2nd most requested waiver. The FAA presented at the 2018 FAA symposium this slide:
And at the 2019 FAA Symposium they posted this:
Why Do You Need an Over People Waiver?
Here is what 14 CFR 107.39 says:
No person may operate a small unmanned aircraft over a human being unless that human being is:
(a) Directly participating in the operation of the small unmanned aircraft; or
(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.
So let’s start with (a). What Are Direct Participants?
The FAA only considers 4 types of people to be participating directly and discusses this all below in great depth. (1) the remote pilot in command, (2) visual observer, (3) person manipulating the controls, and (4) a person necessary for the safety of the flight.
Your camera man, actor, boss, customer, construction worker, etc. cannot be considered to be participating unless they are one of those 4 things. Those people maybe necessary for the operation but they are not “necessary for the safety of the flight.”
You might say, “Necessary for the safety of flight sounds a little vague. Can’t we get creative with that term and make anyone necessary for the safety of flight?” The FAA did provide an example:
[I]f a small UAS operation employs a person whose duties are to maintain a perimeter to ensure that other people do not enter the area of operation, that person would be considered a direct participant in the flight operation of the small UAS.
So why do direct participants get the special treatment? Can’t I just get the consent of everyone involved? What about big signs saying “Drones Overhead” warning everyone? The FAA answered this in the small unmanned aircraft final rule,
Due to the potential for the small unmanned aircraft to harm persons on the ground, the FAA does not consider consent or the need to do other work in the area of operation to be a sufficient mitigation of risk to allow operations over people. The FAA considers the risks associated with allowing operations over directly participating persons to be a necessary risk associated with the safety of flight because if UAS crewmembers are prohibited from standing near a flying unmanned aircraft, they may be unable to complete their duties. Additionally, some small UAS operations require the aircraft to be hand-launched or retrieved by a person, so it would not be possible to conduct such operations without permitting operations over those people.
Further, the FAA notes that people directly participating in the flight operation of a small unmanned aircraft have situational awareness that provides them with increased ability to avoid a falling unmanned aircraft. Conversely, a non-participant who has consented to allowing operations overhead may not share the same situational awareness and consequently may not be able to avoid being struck by a small unmanned aircraft.
The next option is if the people are protected by a structure or in a stationary vehicle.
Wait. Say what? What about moving vehicles?
Can I Fly A Drone Over a Highway?
Unless you have a waiver to fly over a moving vehicle, you can’t. There has been at least two waivers I know of that were granted to fly over moving vehicles so it’s possible but rare.
The big reason behind this prohibition is that even though the vehicle protects the person from the fall of the aircraft, the person might be startled from the drone impacting the vehicle or near-by and swerve which results in a crash into another vehicle or a tree or something.
Part 107.19(c) (The Rarely Understood Regulation & Brother of 107.39)
So if I don’t fly over people and moving vehicles, I’m good right?
(c) The remote pilot in command must ensure that the small unmanned aircraft will pose no undue hazard to other people, other aircraft, or other property in the event of a loss of control of the aircraft for any reason. (Emphasis mine)
Here is what this graphically looks like.
107.39 prevents you from flying directly over (red) non-participating people while 107.19(c) (yellow) requires you to “pose no undue hazard . . . in the event of a loss of control of the aircraft for any reason.” Any reason like a propeller breaking (you are logging the time on those right to switch them out regularly?) an autopilot going nuts, GPS interference testing happening or GPS multipathing in an urban environment, etc.
Notice 107.19(c) requires you to pose no undue hazard. It’s exposure, not being over. Keep this in mind when doing your operations near people. See my section 107.19 article for a more in-depth discussion. Or maybe take my Part 107 regulations course over at www.rupprechtdrones.com? ;)
Issues Surrounding Over People Operations
The two big issues are transferring kinetic energy and lacerations.
1. Transferring Kinetic Energy
This is an area that is currently being researched to understand how unmanned aircraft transfer energy. All sorts of things go into decreasing the energy transfer such as shape of the aircraft, the material it is made of, the positioning of certain parts, the size to create a greater distance between the aircraft’s center of gravity and the most outer edge of the aircraft, etc.
Basically, an aircraft has an overall amount of energy while in flight and you have to figure out how to manage the kinetic energy levels and/or decrease the amount of transfer upon impact.
To keep energy levels low, you could fly slowly, low in altitude, into the wind, or decrease the mass of the aircraft. You could also install some type of flight termination system (parachute) which slows the aircraft down to a low kinetic energy level.
Unless you have a solid steel rod, you are NOT going to transfer all the energy into the object. All sorts of energy is dissipated by the aircraft moving, warping, rotating, compressing, etc. This is where it gets tricky in calculating things because you basically have to launch the drone into some crash test dummies (in different realistic configuration) to see what happens.
This is why in the FAA’s over people proposed regulations, they came up with a simplified method. It’s basically assuming all the energy is being transferred and you are just doing energy management with speed, altitude, wind, mass, etc.
And here is another wrinkle in calculating things, when you distance the center of gravity of the aircraft from the center of gravity of the object being impacted, there is decrease in energy transfer because the CG of the aircraft tends to glance off and not transfer all the energy through. Imagine this. Which will transfer more energy into the object? (1) an arrow with the CG close to the back of the arrow near the feathers or (2) near the tip. (1) would result in glancing and rotating around which means it’s even less probable of nailing the target dead on where the energy would go down through the arrow shaft into the target.
Even when you have figured out calculating things (typically things are static like the aircraft’s energy transfering properties., CG, and mass) the other big hurdle is proving that the energy levels you are at are indeed safe. Is 50 foot-pounds ok? What about 100 foot-pounds? What does that do to the neck or the skull?
There has literally been hundreds and hundreds of pages published on this one point. How much energy can a person really receive and what energy levels will result in what levels of injury where?
Basically, prove a “safe” level of energy and prove your aircraft will be at the safe energy level or lower during impact.
The other concern is that these flying lawnmowers might come into contact with people and cause further injuries on top of the blunt injury. The propellers could also break and stab the person.
There needs to be a mitigation for this hazard. One is to stop the propellers if there is an emergency and another is to install prop guards/bumpers.
What Aircraft Have Been Approved to Fly Over People?
Here are some of the ones that have been approved that you can purchase today:
Current Solutions to Obtaining a Flying Over People Waiver
I’m assuming you are wanting to fly as a civil aircraft. (Public aircraft are a completely different animal by themselves so I won’t even address them here.)
Obtain a parachute system that is compliant with ASTM standard F3322-18. The most popular system right now is the Parazero SafeAir system. You can then apply for a waiver. If you need help applying for one, contact me. I’ve successfully obtained a day night over people waiver.
Fly an aircraft with very low mass. Yes, you’ll still have to show kinetic energy levels but you can use the FAA’s simplified method from the over people NPRM. Your flight time and camera options will most likely stink with this one.
Obtain an aircraft with an airworthiness certificate and leverage that information to fly over people. These are rare but they are out there.
Fly an aircraft that has extensive data showing low kinetic energy transfer levels. These are rare also but they are out there. This is the way we will be heading. The manufacturers will need to put in effort to show their aircraft are safe as opposed to the poor customers trying to figure this all out.
Frequently Asked Questions about the Over People Waivers & Parachute Systems
Q. So if I get a parachute system and a waiver, I’m cool to fly over vehicles?
A. No, some of the waivers are being given out that specifically restrict flying over vehicles. This becomes an issue if there are roads in the area which effectively will box you into certain locations if there is enough traffic.
Q. These parachute systems sound expensive. Is this really worth it?
A. From a liability standpoint, I think so. Here’s why. You don’t even have to purchase one of the fancy ASTM compliant set ups. Just get one that can automatically deploy if there is an emergency. It reduces the risk of impacting a person at high energy levels. It also creates the potential where a motor failure won’t result in your drone being scrap. Think of it like a cheap physical insurance policy attached to your drone (No, this is not a substitute for drone insurance. Read my drone insurance article.) but it’s an additional layer between you and a bad outcome. Parazero also has some deals to lower insurance that can be checked out here. http://parazero.com/insurance
Q. Do you know of any discounts for a parachute system?
A. Yes, here is a $50 coupon for Parazero. Use the code “Rupprecht50” during checkout.
The big take-away of this point is there IS a solution the FAA is working on that does NOT require waivers. It will be with regulations. The problem is those regulations won’t be in force until after the FAA figures out their whole remote identification proposed regulations. Buried in the over people proposal was this significant statement:
In particular, the FAA is cognizant of the importance of various stakeholders to be able to identify small UAS to mitigate security concerns that operations may present. Because of the importance of this particular issue, the FAA plans to finalize its policy concerning remote identification of small UAS—by way of rulemaking, standards development, or other activities that other Federal agencies may propose—prior to finalizing the proposed changes in this rule that would permit operations of small UAS over people and operations at night. (Emphasis mine).
So basically first comes remote ID and THEN you can get your over people regulations. When will this happen? Don’t know. Best thing to do is just plan on 2 years or more from now before the remote ID would become final. Even if you wait, there is no telling when will the manufacturers will get their aircraft approved (which only comes after $, R&D, and testing). If you need to operate over people, just get a waiver. We don’t know when the FAA or manufacturers will get things finished.
FAA Created Part 107.39 Waiver Application Example
So I’m guessing you want a 107.39 over people waiver application example huh?
(a) Transparency.–Not later than 30 days after the date of enactment of this Act, the Administrator shall publish on the FAA website a representative sample of the safety justifications, offered by applicants for small unmanned aircraft system waivers and airspace authorizations, that have been approved by the Administration for each regulation waived or class of airspace authorized, except that any published justification shall not reveal proprietary or commercially sensitive information.
The FAA published a representative sample. I have it below. But before you go and just copy-paste this, the FAA didn’t really craft a representative sample of what the normal every day person would ask for. For example, it says one of the mitigations is “Non-ISM C2” which I’m betting like 99% of y’all don’t have access to. It also says it is for a “nearly neutrally buoyant balloon” which is not operated by 99% of y’all. Is it helpful? Yes, but it isn’t a solution for 99% of y’all. I’m just being up front and honest with ya so you don’t copy-paste and waste your time.
This is a representative sample of an approved waiver application for 14 CFR § 107.39
Description of proposed operation:
John Doe Drones plans to operate the sUAS below 400 feet and only in G airspace. The maximum altitude of the sUA is restricted by a tether, and the sUA will not exceed 25 feet agl. The proposed sUAS operations will occur over persons who are not direct participants in the sUAS operations, and population densities and numbers of persons which would be considered large outdoor assemblies of persons.
The sUA is a Lighter than Air design, with a maximum non-inflated weight of 10 pounds. The 10 pounds includes the envelope, power system, control system, and camera. In flight, the maximum tare weight is .1-2 pounds. This will ensure the sUA always operates with negative buoyancy, but remains controllable without using excessive control inputs or power consumption. In the event of a fly-away, the envelope does have quick release valve that will deflate the envelope. The valve is sized for a controlled gas release, and combined with the maximum operational altitude, keeps the kinetic energy low enough to not cause injury to humans, if it were to impact a person.
The sUA has been demonstrated to not cause a serious injury or worse, if it impacts a person for any reason. Detailed risk assessment information on testing and demonstration is located Appendix 1, titled “Risk Management” in the XYZ Operators Manual (OM). Excerpts from the XYZ Operators Manual: 1. Before flight, the unmanned moored balloon will be filled with helium and checked for buoyancy. The maximum tare weight must be no more than .1kg before takeoff. (OM section 2.1 operational limitations, section 4 operational procedures) 2. In the event of a single power system failure, the redundant ducted fans used for propulsion will keep the aircraft aloft. If all motors fail simultaneously, the aircraft will slowly descend, at a rate not exceeding 1 m/s (OM section 3.5 emergencies. Testing results and methodology to support the descent rate is located in OM appendix 4) 3. The nearly neutrally buoyant balloon, with a tare weight of no greater than .2 pounds, will transfer less than 1 joule of energy to a person. The 1 joule of energy transfer corresponds with a negligible injury risk to humans (OM appendix 5 for detailed assessment of the types of injuries likely to result with a transfer of 1 joule of energy to a human) 4. The sUA construction consists of two layers of rip stop nylon with a rubber like on the interior that allows the envelope to hold helium gas. Details on the material, material limits, construction techniques, failure modes, expected rate of gas loss, and validation testing is located in OM appendix 2. 5. The sUA remains flexible, and is not rigid when inflated to operational pressure. The flexibility assists in the absorption and distribution of impact energy through plastic deformation (OM appendix 5). 6. The sUA has an additional level of safety provided by the use of a small, high strength tether. This tether shall not exceed 30 feet in length, and will be used by the remote PIC to physically restrain the aircraft in the event of a flight control system malfunction, propulsion system failure, and to prevent a sUA fly-away in the event of high winds (detailed description of tether, tether strength, and maximum length in OM section 2.2 operational limitations, and appendix 7). The tether is longer than the maximum operational altitude to allow the pilot additional horizontal flight of the sUA. 7. A complete risk assessment of the proposed operation is located in OM appendix 1. Documentation, validation, and test data for the mitigations is referenced in the footnotes, and all the footnote information has been included in the OM and appendices by OM section number or appendix and page number. 8. There are no rotating parts or sharp edges which could injure a non-participating person. Rotating parts are enclosed in a manner that would not cause injury to a person in any of the above listed failure modes. The thrust vectoring system is contained within a protected housing. The protection grates are sized to not allow a human finger to reach the rotating interior parts (OM appendix 9 for design standard and validation materials to support meeting the design standard). 9. Prior to operations, in addition to being a part 107 certificated airman, John Doe Drones requires completion of the XYZ drone manufacturer training program. The training program includes both initial operator and continuing operator training curriculum. Both programs are taught by the manufacturer, and details, including curriculum, curriculum segments, minimum requirements, and completion standards are located in the John Doe Drones Operator Training Manual (TM). The training program includes ground, hands on training with the sUA, inflight training, and a flight skill test. 10. For all operations over human beings, there will be a second crew member required (OM section 2.6). This crew member must also undergo training (TM section 3). Other examples of risk mitigations that have been used as risk mitigations for a successful waiver application to § 107.39 include: sUA size and weight do not pose an injury risk when impacting a human being sUA design features reduce the energy transferred to a human being in an impact, and the resulting energy transfer does not pose the risk of a serious injury to a human being sUA uses an energy dissipating device to lower the kinetic energy transferred to a human during an impact with a human being, the resulting energy transfer does not pose a risk of a serious injury sUAS incorporates a parachute system meeting ASTM F3322-18 sUA has design reliability equaling the failure rates set forth in 14 CFR Part 23 Continuing sUA reliability program Training Operational manual system Safety Management System Non-ISM C2 Strategic mitigations to avoid most overflight of human beings, to achieve an acceptable level of safety Flight termination system Hands free duplex communication devices sUAS design has redundant systems and architecture sUAS software design assurances and version control geo-fence
So you want to learn more? Below is all of the 107.39 and over people related discussions from the final Part 107 regulations published by the FAA.
DronSystems stated that the proposed ban on operations over non-involved persons would impact e-commerce and “a number of other sectors,” and would be difficult to enforce. The University of Washington said that banning operations over non-operators is over-burdensome. WAG said the proposed prohibition “could have a significant chilling effect on both the commercial application of sUAS technology as well as the future development of sUAS technology,” and is inconsistent with the “model aircraft” protections afforded by part 101 and section 336 of Public Law 112-95. Similarly, Foxtrot Consulting suggested that adequate training and a performance evaluation is a better mitigation measure because it ensures that remote pilots can operate their small UAS safely, regardless of what is below.
The Small UAV Coalition, Aeromarine, and an individual commenter stated that the proposed prohibition is unduly restrictive because there is no prohibition on manned aircraft flying over people. The Coalition also asserted that, given the consequent reduction in risk associated with the visual-line-of-sight and see-and-avoid requirements, a small UAS may safely be operated over persons.
The International Center for Law and Economics and TechFreedom claimed that by prohibiting UAS operation over people who are not directly involved in the operation, the FAA is “essentially limiting commercial UAS operations to unpopulated or extremely sparsely populated areas,” and thus is “improperly ignor[ing] the important incentives for innovation suggested by Executive Order 12866 without apparent corresponding benefit.” The Consumers Energy Company (CEC) stated that the likelihood of injury from contact with a small UAS is low given the restrictions on the size of small UAS, as well as the fact that they use small rotors and carry small fuel loads. With respect to the maintenance of power lines, poles, and related facilities, in particular, CEC pointed out that most operations occur in remote or rural locations with low population densities, where the risk of contact between a small UAS and a non-involved person is minimal. CEC said the FAA needs to consider “whether the risk perceived from small UAS usage really justifies a restriction that could have a substantial impact on the ability to use sUAS on a commercial scale.”
Manned aircraft are generally permitted to fly over people because manned aircraft are formally evaluated for airworthiness through the airworthiness certification process. This process ensures that the manned aircraft has a level of reliability that would allow it to, among other things, safely fly over a person.
This rule does not require airworthiness certification. Because small unmanned aircraft have not been tested for reliability through the airworthiness certification process, they will likely have a higher failure rate than certificated aircraft. A small unmanned aircraft that fails may fall on a person standing under it at the time of failure, which is why this rule restricts small unmanned aircraft flight over people.
With regard to the risk caused by small UAS operations, the FAA agrees that, to date, the number of actual fatalities caused by small UAS operation has been low. However, that may be a function of the fact that, until recently, commercial civil small UAS operations have been prohibited in the United States. As discussed in the Regulatory Impact Assessment, the FAA expects the use of small UAS to increase after issuance of this rule, and thus, the agency has to ensure that part 107 implements appropriate mitigation to address potential risk caused by small unmanned aircraft flight over people.
The FAA agrees with WAG and Foxtrot Consulting that the knowledge that remote pilots in command will acquire during the certification process will help mitigate against small UAS accidents caused by human error. However, the safety concern underlying the flight-over-people restriction is not human error, it is mechanical failure. While a remote pilot in command may be able to detect some signs of potential mechanical failure during the preflight check, the preflight check does not, by itself, assure a level of mechanical reliability established by the formal airworthiness and maintenance processes that apply to other aircraft in the NAS. The appropriate mitigation to address this discrepancy, especially for heavier small unmanned aircraft, is an operational restriction on flying over people who could be hurt in the event of a mechanical failure.
The FAA disagrees with WAG’s assertion that model aircraft are subject to a lower flight-over-people standard than part 107 operations. In order to operate under section 336 of Public Law 112-95, a model aircraft must, among other things, be “operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization.”98 Today, the largest nationwide community-based organization that operates model aircraft is the Academy of Model Aeronautics (AMA). AMA’s safety code specifically prohibits “flying directly over unprotected people, vessels, vehicles or structures.”
Several commenters, including the American Council of Engineering Companies, AUVSI, and Consumer Electronics Association, urged the FAA to implement a risk-based approach to allow operations over people.
AUVSI asserted that “by allowing sUAS operations over human beings following a risk-based approach, the FAA would foster industry innovation to develop the proper equipment and software necessary to meet safety standards regarding such operations.” CEA provided an example of such a risk-based restriction used by another country that it said “would permit operations in less populated environments and continue to allow industry to gain experience and innovate.” Specifically, CEA noted that the Swiss have successfully used a permitting system for UAS operations over “gatherings of people,” defined as “several dozen people standing in close proximity to one another” or within a radius of 100 meters of such gatherings. Drawing on that example, CEA recommended the FAA “tailor the rules to prohibit operations over mass gatherings, such as concerts and sporting events.” Although CEA commended the FAA for rejecting as “unduly burdensome” a prohibition against the operation of small UAS over any person, it nevertheless asserted its belief “that the proposal is just as burdensome and that small UAS incorporate sufficient safety measures that make the prohibition unnecessary under the new rules. Boeing similarly recommended that the FAA reconsider proposed § 107.39 and “develop criteria using a risk-based approach to this issue, based upon population density and overflight, to take into account agriculture as well as law enforcement uses.” The Professional Helicopter Pilots Association suggested allowing small UAS to be operated over persons or property if they do so in a safe manner.
DJI pointed out that “the proposed performance standards already impose an obligation on the operator to familiarize himself with the operating environment and take steps to assure the operation does not present an ‘undue hazard’.” Depending on the nature of the operation, DJI continued, “the risk associated with an inadvertent loss of positive control may require that there be no third parties exposed to any risk,” or “the risk may be so minimal as to merit notification but not evacuation or taking cover,” or “the required safety measure may fall within this range of options.” As such, DJI suggested that “the best way to address the risk to individuals not directly involved in the operation is through the proposed performance standard.”
Trimble Navigation proposed the FAA rely on a performance-based regime for operations over persons. Noting that the onus and obligation should be primarily on the small UAS operator to assess the overall safety environment before operating over persons, the company said the FAA “should avoid trying to specify precise design-based criteria in favor of a general standard of care that requires the operator to take into account the full range of operational safety protections and procedures at the site in question.”
A commenter suggested the final regulations should discern between UAS weighing 5 pounds or less (which could be operated over “populated” areas at a maximum speed of 40 mph), UAS weighing between 5 and 25 pounds (which could be operated over “sparsely populated” areas at a maximum speed of 70 mph), and UAS weighing between 25 and 55 pounds (which could be operated according to the limitations imposed in the NPRM). The commenter further suggested that COAs be available for UAS between 25 and 55 pounds to be operated in populated and sparsely populated areas.
The FAA agrees that for certain types of small unmanned aircraft, a more performance-based set of operational mitigations may be appropriate because the lighter weight or other characteristics of those aircraft may result in less impact force if they should collide with a person. That is why, as discussed in the previous section, the FAA will be issuing an NPRM inviting public comment on a framework under which micro UAS will be allowed to operate over people. However, other small unmanned aircraft that do not meet the characteristics of a micro UAS may result in more impact force if they should collide with a person and that greater force may seriously injure or kill the person. The risk associated with flight over people is due to mechanical reliability issues that a remote pilot in command may have a limited opportunity to evaluate without airworthiness certification or a more extensive maintenance process. At this time, the FAA has no data establishing how that risk could be mitigated through operational constraints (whether performance-based or otherwise), other than a prohibition on flight over people. Accordingly, this rule will retain the general prohibition on flight over people. However, as discussed below, this prohibition will be waivable to allow the FAA to consider case specific mitigations. The FAA will use data and operating experience gained as a result of the waiver process to help inform future UAS rulemakings.
A number of commenters said the proposed restriction should be narrowed to apply only to certain crowded or heavily populated areas. The American Petroleum Institute urged the FAA not to apply the prohibition in cases of “intentional acts to disrupt lawful UAS operations” (e.g., anti-oil and gas activists placing themselves in generally accessible areas of operation to frustrate or halt routine activities). Event 38 Unmanned Systems proposed that “certain events and other areas with high people concentration locations be designated as no-fly zones,” instead of a total ban on operations over non-participants. The company suggested that local and State entities could be involved in this part of the rulemaking.
Matternet similarly recommended that the only overhead operations that should be restricted are operations “over an open air assembly of persons if such operation endangers the life or property of another.” The company compared the proposed regulation to regulations for ultralight vehicles (ULV)—which weigh up to 250 pounds, plus the weight of the person, and are permitted to be operated over persons—and suggested that a device weighing less than one-sixth the weight of a ULV with a passenger, and operated at an altitude of only 500 feet or less (compared to thousands of feet for the ULV), poses far less risk to persons on the ground. Several individuals also recommended that the final rule prohibit any operation in congested areas or over open-air assemblies of people. As an initial matter, the FAA notes that there is a significant difference between the terms “congested area” and “open-air assembly of people.” While the term “open-air assembly of people” applies only to a large group of people, the term “congested area” could apply to an area that has no people in it. For example, a town’s commercial/business district can be considered a congested area, even in the middle of the night when there are no people in the area.
As pointed out by the commenters, a number of existing operations that take place in the NAS, such as the operation of ULV, are prohibited from taking place over congested areas.101 The FAA considered imposing a similar restriction on small UAS operations conducted under this rule. However, the FAA ultimately rejected this approach as needlessly restrictive because it would prohibit small UAS operations over certain parts of a town even when there are no people in the area of operation who could be hurt by a small unmanned aircraft.
With regard to operations that are not conducted over an open-air assembly of people, the FAA agrees that this may be a consideration for some small unmanned aircraft that pose a lower injury risk if they collide with a person, consistent with the micro UAS ARC’s recommendations.. Accordingly, the FAA may consider this approach as part of the micro UAS rulemaking. However, other small unmanned aircraft pose a higher injury risk and in the event of a mechanical failure, those aircraft could seriously injure or kill a person in their path, even if that person is not part of a larger group. Accordingly, this rule will not allow flight over people even when they are not part of an open-air assembly. We will continue to evaluate this issue and address it in rulemaking in response to the Micro UAS ARC recommendations, as noted earlier.
The FAA declines to add an exception for intentional acts to disrupt lawful small UAS operations. A person who is standing under an uncertificated small unmanned aircraft is subject to the same amount of risk regardless of his or her subjective motivation for standing under the aircraft. The FAA notes, however, that State and local laws, such as trespassing, may provide a remedy for companies whose small UAS operations are deliberately interfered with by people entering the area of operation without permission. Finally, with regard to State and local entity involvement in this rulemaking, the FAA notes that the comment period for the NPRM was open to everyone, including State and local entities. The FAA received a number of comments from State and local entities, and it considered those comments when formulating this final rule.
Several commenters, including the Small UAV Coalition, Google, and Statoil, suggested that the prohibition on flight over people should be subject to waiver or some other type of deviation authority. The Small UAV Coalition urged the FAA to revise proposed § 107.39 to allow the Administrator or his delegate to authorize small UAS operations over non-participating persons through exemption, deviation authority (certificate of waiver or authorization), or certification, “upon a showing that any risk to persons on the ground is sufficiently mitigated.”
Google pointed out that an outright ban on operations over people not directly participating in the operation of the UAS or not located under a covered structure would limit beneficial uses for small UAS which involve operations above nonparticipants. Google proposed that operators be able to “present a safety case” to the FAA for operations over non-participants.
The National Ski Area Association (NSAA) said the final rule should recognize and accommodate technological innovations, which could be required for use of UAS at ski areas when operating near open-air assemblies of persons. Such technologies include geofencing, return-to-home capabilities, pre-programmed waypoint software, landimmediately function, GPS, signal processing, and increasingly reliable navigation systems.
CEA suggested that the FAA allow small UAS to be eligible to obtain airworthiness certifications, and that UAS with such certifications not be subject to the prohibition on operations over people. CEA asserted that such an approach “will create a vibrant market for UAS and encourage manufacturers to seek airworthiness certification.”
Airware pointed out that standards have been developed by ASTM subgroup F38 to ensure higher levels of safety for operations that pose a higher risk like flight over populated areas. In addition to those existing standards, Airware asserted that the combination of the use of fly-away protections like geo-fencing and contingency management, applying design and testing to industry standards, the use of reliable flight control systems, and the use of parachutes to mitigate against the risk of all out failure “provides an equivalent level of safety for flight in populated areas.” Airware further asserted that this goes well beyond the requirements imposed in the countries that currently allow for operations over populated areas like France, the Czech Republic, Austria, Denmark, Italy, and Sweden (among others), which “are currently being conducted with extremely high levels of safety.”
ASTM pointed out that there are multiple approved industry consensus standards under development to support operations over people, in case the FAA decides to require compliance with industry consensus standards for this requirement in the final rule. ASTM also noted that precedent exists for the utilization of industry consensus standards by Federal agencies in the United States. The commenter went on to point out that the National Technology Transfer and Advancement Act (NTTAA) mandates that all Federal agencies use technical standards developed and adopted by voluntary consensus standards bodies, as opposed to using government-unique standards. In addition, ASTM asserted that, consistent with Section 12(d) of the NTTAA, OMB Circular A-119 directs agencies to use voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. ASTM further noted that OMB Circular A119 also provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements of the Act. The FAA agrees that technology or additional mitigation, such as airworthiness certification, may allow small unmanned aircraft to safely fly over people in certain circumstances. Accordingly, the flight-over-people restriction in this rule will be waivable. In order to obtain a waiver, an applicant will have to demonstrate that he or she has implemented mitigations such that small unmanned aircraft flight over people can safely be conducted under the terms of a certificate of waiver.
The FAA also agrees with CEA that while this rule does not require airworthiness certification, this rule also does not prohibit a small UAS from voluntarily obtaining this certification. The FAA generally agrees that having a small UAS meet an appropriate airworthiness standard could increase safety to the point of permitting a small unmanned aircraft to operate over persons who are not directly involved in the flight operation (i.e., non-participants) and who are not under a covered structure. The FAA may consider airworthiness certification of the small UAS as mitigation to support an application for waiver that would allow a small unmanned aircraft to operate over unprotected nonparticipants.
With regard to the use of industry consensus-standards, as noted by ASTM, consensus standards for operations such as flight over people are currently in development. As of this writing, those standards have not yet been published. The FAA notes, however, that the level of safety that must be demonstrated in order to obtain a waiver may be demonstrated in a number of different ways. Once consensus standards are published, the FAA may consider whether compliance with the published consensus standards would be one way to demonstrate that the proposed operation can be conducted safely under the terms of a certificate of waiver. The FAA will also consider UAS-specific consensus standards, once they are published, in future UAS rulemakings.
Several commenters said the proposed prohibition should not apply when additional risk mitigating measures are employed. Southern Company said the FAA should allow operations over any person who is located on the property, easement, or right of way of the person or entity for whom the small UAS is operated, and any person who is participating in the activity for which the small UAS is being operated. The commenter said such mitigating restrictions could include a lower operating ceiling, lateral-distance limits, a lower speed restriction, and a prohibition on operations over large gatherings of people.
Qualcomm similarly proposed that FAA permit operations over uninvolved persons where risks are mitigated by the use of “proven means of avoiding harm to individuals via technologies that allow the device to land safely under even extreme circumstances.” The Rocky Mountain Farmers Union urged the FAA to allow operations over non-participants “under circumstances when the UAS operator can maintain safe operation of the UAS and either depart the area or safely land the UAS without risk to unrelated persons on the ground.” The Newspaper Association of America asserted that the FAA should not prohibit news organizations from overhead flight, “provided that adequate precautionary measures are taken to ensure that [UAS] are operated safely at all times.”
The Mercatus Center at George Mason University said that the FAA did not consider the benefits of allowing UAS operations over persons not involved in the operation, and that the FAA overstates the risks of operation in populated areas. The University asserted that, “[u]pon loss of positive control, unmanned aircraft can be programmed to safely return to a base, or to simply hover in place.” Thus, the University continued, the risk to bystanders can be mitigated without a ban on operation over uninvolved persons.
NAMIC recommended that the FAA allow small UAS operations over people not directly involved in the operation, as long as those operations follow enhanced safety protocols, including, for example: (1) that the small unmanned aircraft not loiter over a person or persons for an extended period of time, but transition over them as needed to reach a location where operating is permitted to complete the flight; and (2) that an operator must operate the UAS at a sufficient altitude so that if a power unit fails, an emergency landing can be accomplished without undue hazard to persons or property on the ground. Exelon Corporation said that the final rule should include reasonable accommodations to allow for brief, low-risk exceptions to the ban on flights over nonparticipating persons (e.g., flying across a road during a survey of damage to power distribution lines in suburban areas), and that “proper safety precautions as well as signage, education, and protocol can be put in place to mitigate any safety concerns.”
The Property Drone Consortium said that any UAS with “special safety features” should be exempt from the ban on flight over non-participants. Furthermore, the Consortium suggested the FAA mitigate any safety concerns by requiring appropriate insurance coverage or creating a suggested list of “best practices” for use in the insurance industry. Similarly, the University of Illinois at Urbana-Champaign said the proposed prohibition “is onerous and overprotective,” and suggested instead that insurance and equipment requirements could be employed “to promote responsible use of the UAS.”
As discussed earlier, the restriction on flight over people in this rule will be waivable. This will allow the FAA to consider, on a case-by-case basis, any additional mitigations that are incorporated into a small UAS operation. The FAA will grant a waiver request allowing small unmanned aircraft flight over people if the applicant establishes that his or her operation can safely be conducted under the terms of a certificate of waiver. In response to comments suggesting an insurance requirement in place of the flight-overpeople restriction, the FAA notes that, as discussed in section III.K.1 of this preamble, the FAA lacks jurisdiction to mandate the purchase of liability insurance.
An individual commenter suggested that operations in congested areas be permitted with additional licensure, which the commenter said “will assist the operator in recognizing potential hazards and risks as well as the ability to assess those risks to ensure that these hazards to the public be minimized.” Another individual commenter recommended an additional rating for operators to allow them to fly “in cities and other crowded areas.” The commenter said the operators could be required to go through a more comprehensive certification process, and the UAS could be required to have annual or semiannual maintenance checks and be equipped with an automatically deployable parachute system.
As discussed earlier, the FAA considered and rejected additional limitations on operations over congested areas because that approach would needlessly limit small UAS operation over congested areas during times when those areas are devoid of people. The FAA also does not agree that additional remote pilot certification should be required to operate over an empty area of operation, even if that area of operation happens to be located in a congested area.
The Stadium Managers Association suggested modifying proposed § 107.39 to mirror the current section 333 exemption language which, in addition to prohibiting flights over people, includes a prohibition against flight over vehicles, vessels, and structures. Vision Services Group similarly recommended prohibiting flight over people in a covered structure.
On the other hand, Edison Electric Institute, NRECA, the American Public Power Association, and Continental Mapping suggested that the exception allowing flight over people located under a covered structure that can provide reasonable protection from a falling small unmanned aircraft should be clarified to indicate that persons under cover in a vehicle “may qualify as being in a structure providing reasonable protection.”
This rule will allow flight over people located under a covered structure capable of protecting a person from a falling small unmanned aircraft because such a structure mitigates the risk associated with a small unmanned aircraft flying over people. The FAA also agrees with Edison Electric Institute, NRECA, the American Public Power Association, and Continental Mapping that a small unmanned aircraft should be allowed to fly over a person who is inside a stationary covered vehicle that can provide reasonable protection from a falling small unmanned aircraft. The FAA has modified this rule accordingly. This rule will not, however, allow operation of a small unmanned aircraft over a moving vehicle because the moving vehicle operating environment is dynamic (not directly controlled by the remote pilot in command) and the potential impact forces when an unmanned aircraft impacts a moving road vehicle pose unacceptable risks due to headon closure speeds. Additionally, impact with a small unmanned aircraft may distract the driver of a moving vehicle and result in an accident.
Several commenters sought clarification on the NPRM’s use of the phrases “directly participating in the operation” (as used in proposed § 107.39(a)) and “directly involved in the operation” (as used in the preamble). Associated Equipment Distributors noted that the preamble to the NPRM indicates that direct participation is limited to the operator and the visual observer, but the proposed regulatory language “does not afford clarity on this point.” SkySpecs proposed allowing anyone who has permission to be on a construction site and is covered by liability insurance to be covered by the definition. Edison Electric Institute, NRECA, and the American Public Power Association said the definition of “directly participating” “should be expanded to include personnel engaged in related activities, such as workers at a power plant a small UAS is being used to monitor or an electric utility crew whose work the small UAS is being used to assist.” The organizations further proposed that such individuals would qualify as “directly participating in an operation” if they had received the pre-flight briefing described in proposed § 107.49.
Some commenters, including NBAA, the American Insurance Association, FLIR Systems, the North Carolina Association of Broadcasters, and Skycatch, felt that FAA should permit small UAS operations over individuals not involved in the UAS operations when those individuals consent to, or are made aware of, the operations. Several State farm bureaus and NBAA urged the FAA to allow small UAS operations over people not directly involved in an operation so long as the operator notifies those people of the operation before it starts. The American Farm Bureau Federation and a number of state farm bureau federations said the definition should be expanded to include individuals “who have been made aware of the presence and approximate flight path of the sUAS in their vicinity.” The farm bureau federations claimed that the risk of a small UAS endangering a consenting individual working in a field who is not directly involved in, but is aware of, a small UAS operation “is simply too remote to justify a blanket prohibition.”102 AED proposed including consenting individuals, such as employees and contractors at a construction site, Other commenters who urged FAA to reconsider the proposed prohibition as it applies to agricultural operations include the National Farmers Union, National Corn Growers Association, National Association of heat Growers, and the Virginia Agribusiness Council.
The International Association of Amusement Parks and Attractions also suggested that the definition of “directly participating in the operation” include persons who have consented to the operation of theU AS overhead.
Associated Builders and Contractors also proposed lifting the restriction on flightover non-participants on a construction site, so long as those people have been notified of the small UAS operations, wear hard hats, and have been provided orientation regarding the equipment prior to entering the work site.
Kapture Digital Media questioned whether people can become “directly involved” in an operation if they are notified of the operation by signs posted around the area of operation, or, alternatively, whether people can only become “directly involved” in an operation by signing a waiver. Vail Resorts noted that many of the best uses of UAS technology at ski areas would necessarily involve some temporary amount of flight over individuals who are not “necessary for the safe operation” of the small UAS, which is how the NPRM defined “directly involved in the operation.” Consequently, Vail asserted that a strict ban on operations over people not “directly involved” in the operation “could have the unintended consequence of making many potentially critical ski resort drone operations noncompliant with FAA regulations.” As such, Vail said FAA should broaden the definition of “directly involved” to include “those people who are aware of and have consented to being involved in the drone operation by, for example, reading particular signage or signing a release.” Similarly NoFlyZone.org said operations over nonparticipants should be permitted provided the operator has advised all non-participants to remain clear of the small UAS launch/recovery area, and also advised all non-participants that the small UAS does not comply with Federal safety regulations for standard aircraft.
The National Ski Area Association (NSAA) pointed out that for UAS operations that may involve operations near skiers and snowboarders, or participants and spectators in special events, ski areas could inform participants of the event and associated risks and could obtain consent prior to using a UAS. NSAA suggested further that ski areas “could be obligated to determine, based on the event or assemblage of persons, acceptable proximity parameters, either laterally or vertically.”
The term “directly participating” refers to specific personnel that the remote pilot in command has deemed to be involved with the flight operation of the small unmanned aircraft. These include the remote pilot in command, the person manipulating the controls of the small UAS (if other than the remote pilot in command), and the visual observer. These personnel also include any person who is necessary for the safety of the small UAS flight operation. For example, if a small UAS operation employs a person whose duties are to maintain a perimeter to ensure that other people do not enter the area of operation, that person would be considered a direct participant in the flight operation of the small UAS. Anyone else would not be considered a direct participant in the small UAS operation. Due to the potential for the small unmanned aircraft to harm persons on the ground, the FAA does not consider consent or the need to do other work in the area of operation to be a sufficient mitigation of risk to allow operations over people. The FAA considers the risks associated with allowing operations over directly participating persons to be a necessary risk associated with the safety of flight because if UAS crewmembers are prohibited from standing near a flying unmanned aircraft, they may be unable to complete their duties. Additionally, some small UAS operations require the aircraft to be hand launched or retrieved by a person, so it would not be possible to conduct such operations without permitting operations over those people.
Further, the FAA notes that people directly participating in the flight operation of a small unmanned aircraft have situational awareness that provides them with increased ability to avoid a falling unmanned aircraft. Conversely, a non-participant who has consented to allowing operations overhead may not share the same situational awareness and consequently may not be able to avoid being struck by a small unmanned aircraft. For this reason, a remote pilot intending to operate small unmanned aircraft over nonparticipants must apply for a waiver under this part, which will allow the FAA to evaluate each applicant’s operation on a case-by-case basis.
The American Fuel & Petrochemical Manufacturers and Employees, Associated General Contractors of America, Skycatch, Clayco, AECOM, DPR Construction, and the State of Utah Governor’s Office of Economic Development said operations over uninvolved persons should be permitted at areas closed to the public (e.g., construction sites, movie sets), as long as the uninvolved persons are aware of and consent to the activity. The National Association of Broadcasters, National Cable & Telecommunications Association, and Radio Television Digital News Association, commenting jointly, pointed out that the FAA has already granted a number of section 333 exemptions for aerial photography and filming which have allowed small UAS flights over consenting production personnel, and thus urged the FAA to define “directly participating in the operation” to include persons who have “implicitly consented to the operation of the sUAS overhead by nature of their presence on a set where sUAS filming is occurring.” The Motion Picture Association of America similarly asked the FAA to specify that “all parties on a closed set” qualify as “directly participating in the operation,” thereby ensuring that current practices under the filming exemptions are consistent with § 107.39.
As pointed out by the commenters, the FAA currently allows small unmanned aircraft flight over people in only one type of situation: a closed-set movie set which is a controlled-access environment where the person in charge has extensive control over the positioning of people who are standing near the small unmanned aircraft. The FAA currently considers each movie-set exemption on a case-by-case basis through the section 333 exemption process. The FAA will continue considering flight over people on a movieset on a case-by-case basis through the waiver process in this rule. The FAA notes that this framework is consistent with the regulatory framework used for motion picture and television filming in manned-aircraft operations, where a waiver is usually required prior to using an aircraft for filming purposes.103 The FAA also notes that, as discussed in section II.C of this preamble, current section 333 exemption holders who are allowed to fly over people when filming a movie will be permitted to continue operating under their section 333 exemption until they are able to obtain a waiver under part 107. With regard to flight over people in other controlled-access environments, such as construction sites, the FAA will consider that issue on a case-by-case basis through the waiver process. This process will allow the FAA to consider the specific nature of the 103 See FAA Order 8900.1, vol. 3, ch. 8, sec. 1. controlled-access environment to determine how that environment would mitigate the risk associated with flight over people.
The Association of American Railroads said operations over railroad personnel during a railroad incident investigation or routine railroad inspections should be permitted. The Association noted that the risks associated with such operations can be mitigated by giving those personnel a small UAS operations and safety briefing before flight is commenced.
The FAA disagrees. While this rule will allow flight over direct participants in a small UAS operation after they receive important safety information, the information does not, by itself, completely mitigate the risk posed by flight over people. As discussed earlier, the reason this rule allows flight over direct participants in a small UAS flight operation is because without this exception, those people may be unable to complete their duties to ensure the safety of the small UAS flight operation. People who are not directly participating in the small UAS flight operation are not needed to ensure the safety of that operation, and as such, this rule will not allow flight over those people without a waiver.
The Property Drone Consortium said homeowners inside their homes while an inspection operation is conducted overhead, or homeowners who are in their back yards while an inspection operation is conducted in their front yards, should be considered “protected” for purposes of the ban on flight over non-participants.
A homeowner who is inside his or her home would be under a covered structure and flight over him or her would be permitted if the home can provide reasonable protection from a falling small unmanned aircraft. However, a person who is inside his or her backyard would presumably not be under a covered structure and could be injured by a falling small unmanned aircraft. Accordingly, a person who is in his or her backyard would not be considered protected if that backyard is not covered.
The Institute of Makers of Explosives asked the FAA to expand or clarify the proposed prohibition on operation of a small UAS over “most persons” to clearly define the persons over whom UAS operations may not be conducted. IME specifically recommended that a UAS not be allowed to operate over any person conducting operations with explosives under the jurisdiction of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and that the restriction apply to unauthorized, unrelated operators.
As discussed earlier, this rule will prohibit operations over people who are not directly participating in the flight operation of a small UAS and who are not under a covered structure or in a stationary covered vehicle that could reasonably protect them from a falling small unmanned aircraft. This prohibition applies regardless of what the person who is not directly participating in the small UAS flight operation is doing. A number of commenters sought clarification as to what the FAA considers to be an operation “over a human being.” Southern Company asserted that, as written, the proposed provision could either be read strictly, to prohibit operations directly overhead, or it could be read more broadly, to prohibit operations directly overhead and within a short lateral distance of the person. Kansas University UAS Program similarly said the FAA needs to clarify whether by “over a human being” means directly overhead or “within an area that the aircraft could come down on the person.”
Similarly, NAMIC asked the FAA to provide further guidance as to whether the small UAS operation is prohibited directly above persons or “within a proximate area over persons.” NAMIC acknowledged that it does not have the FAA’s understanding of aeronautics or physics, but nevertheless stated its belief that a terminated UAS at 500 feet and 100 mph seems unlikely to fall directly onto a person standing directly under the UAS at the time of the termination. An individual commenter asserted that a small UAS flying towards a person, even if not directly above that person, could still pose a threat. By way of example, the commenter stated that a multi-rotor helicopter flying at a ground speed of 30 mph at 400 feet AGL that experiences a catastrophic failure “will transcribe a parabolic arc that will extend horizontally several hundred feet in the direction of travel.”
Matternet also stated that the proposed restriction “appears to be based on the faulty premise that aircraft only fall straight down when they malfunction or when pilots err” when, in fact, an aircraft in flight will typically follow its original trajectory, subject to aerodynamic forces and gravity. Thus, the company asserted, an operation that passes directly over a person is not significantly more dangerous than an operation that passes several linear feet, or even tens of linear feet, away from that person on the ground.
The term “over” refers to the flight of the small unmanned aircraft directly over any part of a person. For example, a small UAS that hovers directly over a person’s head, shoulders, or extended arms or legs would be an operation over people. Similarly, if a person is lying down, for example at a beach, an operation over that person’s torso or toes would also constitute an operation over people. An operation during which a small UAS flies over any part of any person, regardless of the dwell time, if any, over the person, would be an operation over people.
The remote pilot needs to take into account the small unmanned aircraft’s course, speed, and trajectory, including the possibility of a catastrophic failure, to determine if the small unmanned aircraft would go over or strike a person not directly involved in the flight operation (non-participant). In addition, the remote pilot must take steps using a safety risk based approach to ensure that: (1) the small unmanned aircraft does not operate over nonparticipants who are not under a covered structure or in a stationary covered vehicle; (2) the small unmanned aircraft will pose no undue hazard to other aircraft, people, or property in the event of a loss of control of the aircraft for any reason (§ 107.19); and (3) the small UAS is not operated in a careless or reckless manner so as to endanger the life or property of another (§ 107.23). If the remote pilot cannot comply with these requirements, then the flight must not take place or the flight must be immediately and safely terminated.
Several commenters recommended that the FAA include specific vertical and horizontal minimum-distance requirements. Continental Mapping and MAPPS recommended that no operations be permitted “within 50 meters vertically or horizontally from people, animals, buildings, structures, or vehicles, with a particular emphasis on takeoff and landing.” MAPPS pointed out that its testing has shown this is a safe distance to perform emergency landings should something go wrong, particularly with rotary wing platforms. NAMIC recommended that FAA prohibit persons from “intentionally operat[ing] a small UAS over or within 100 feet” from a human being who is not directly participating in its operation or not located under a covered structure.
State Farm suggested that FAA remove the word “over” from proposed § 107.39, and instead prohibit persons from “intentionally operat[ing] a small UAS within 100 feet” from a human being who is not directly participating in the operation or not located under a covered structure. Aviation Management similarly suggested that the FAA provide protection to humans on the ground “in close proximity to” small UAS operations by requiring that a small UAS remain a minimum of 100 feet from the nearest human who is not directly participating in the operation (a requirement the commenter pointed out is imposed by Canada and Australia). Stating that an aircraft “needs a fall radius that contemplates kinetic energy, max speed, max altitude,” an individual commenter suggested that small UAS flight be restricted to a vertical cylinder with a radius of 200 feet, centered over an animal or persons not directly involved in the operation.
Several other commenters made suggestions as to how the FAA can more precisely define the requisite separation between a small UAS and persons not involved in an operation. The Civil Aviation Authority of the Czech Republic said the proposed prohibition “should be extended to a safety horizontal barrier, not only directly above people, but also not in an unsafe proximity (for multicopters this should be twice the actual height AGL).” NOAA and Southern Company said proposed § 107.39 should be revised to include specific lateral distances. Colorado Ski Country USA said the final rule should include a definition of “Operations Over a Human Being” that sets out “the proximity in which UAS operations would be prohibited.” The New Hampshire Department of Transportation suggested that the final rule include a “specified three-dimensional space that a small UAS is prohibited from when operating over any person not directly involved with the operation.” The Hillsborough County Aviation Authority suggested that the lateral separation from people or structures be revisited to consider a safety area around the UAS “with regards to momentum, wind drift, malfunction, etc. that would affect people or structures nearby.”
The National Association of Flight Instructors (NAFI) advocated for a larger separation between small UAS and non-participants, and recommended that proposed § 107.39 be revised to prohibit operation of a small UAS “closer than 400 feet” to persons not directly participating in the operation or not located under a covered structure or to “any vessel, vehicle, or structure not controlled by the operator or for which written permission by the owner or licensee of that vessel, vehicle or structure has not been obtained.” NAFI went on to assert that there is no reliable or sufficient database from which to project accident or injury rates, and to urge FAA to “proceed cautiously and relatively slowly in significantly reducing the protection currently afforded to persons and property on the surface from the hazards of small unmanned aircraft systems. Green Vegans asserted that under Public Law 112-95, Congress directed the FAA to implement restrictions for small UAS operations which “include maintaining a distance of 500 feet from persons.”
The FAA considered requiring minimum stand-off distances in this rule, but ultimately determined that, due to the wide range of possible small unmanned aircraft and small UAS operations, a prescriptive numerical stand-off distance requirement would be more burdensome than necessary for some operations while not being stringent enough for other operations. For example, a 5-pound unmanned rotorcraft flying at a speed of 15 mph in a remote area with natural barriers to stop a fly-away scenario would likely not need a stand-off distance as large as a 54-pound fixed-wing aircraft traveling at a speed of 100 mph in an urban area with no barriers.
Thus, instead of imposing a prescriptive stand-off distance requirement, this rule will include a performance standard requiring that: (1) the small unmanned aircraft does not operate over a person who is not directly involved in the flight operation unless that person is under the appropriate covered structure or vehicle; and (2) the remote pilot ensure that the small unmanned aircraft will pose no undue hazard to other aircraft, people, or property in the event of a loss of control of the aircraft for any reason (§ 107.19(c)). This performance-based approach is preferable, as it will allow a remote pilot in command to determine what specific stand-off distance (if any) is appropriate to the specific small unmanned aircraft and small UAS operation that he or she is conducting. In response to Green Vegans, the FAA notes that Public Law 112-95 does not direct the FAA to promulgate a small UAS rule that includes a requirement for a small unmanned aircraft to maintain a distance of 500 feet from persons.
Some commenters proposed specific vertical distances that they claimed could permit safe operations of a small UAS over persons not directly involved in its operation. Asserting that flights “well above” a person’s head pose minimal additional safety risks, the News Media Coalition recommended that the FAA permit overhead flight so long as the UAS remains at least 50 feet vertically from any person not involved in the operation of the UAS. Cherokee National Technologies and an individual commenter recommended that operations be permitted above people not directly involved in an operation, so long as those operations are not conducted less than 100 feet above those people.
These commenters did not provide data that the FAA could use to evaluate this assertion. The FAA notes, however, that a small unmanned aircraft falling from a higher altitude may actually pose a higher risk because the higher altitude would provide the small unmanned aircraft with more time to accelerate during its fall (until it reaches terminal velocity). This may result in the small unmanned aircraft impacting a person on the ground at a higher speed and with more force than if the small unmanned aircraft had fallen from a lower altitude.
The National Association of Broadcasters, the National Cable & Telecommunications Association, and the Radio Television Digital News Association, commenting jointly, said the proposed rule would limit the potential of unmanned aircraft to serve the public interest, particularly with respect to newsgathering. The associations recommended a few changes to “increase the utility of sUAS for newsgathering and video programming production purposes.” First, the associations said the FAA “should clarify that only flights directly over non-participating people are barred”—i.e., the “FAA should specify that the rule would still permit sUAS with a camera that is capable of filming—at an angle—an area where people are present.” Second, because “the proposed rule raises the question of what level of knowledge a reasonable operator can be expected to have,” the associations said the FAA “should clarify that the operator must have a good faith belief that sUAS will not be flying over people.” Third, the associations said “the FAA should consider relaxing or removing this requirement for sparsely populated areas,” which “would give newsgatherers and video programming producers the freedom to cover events and film entertainment programming with sUAS in areas where the risk to human beings on the surface is extremely low.”
NSAA and several individual commenters recommended that the final rule make clear that the prohibition does not extend to incidental or momentary operation of a UAS over persons on the ground. The Organization of Fish and Wildlife Information Managers requested that exemptions for “unintentional flyovers” be included in the final rule. The Organization noted that, while conducting fish and wildlife surveys in remote areas, UAS may inadvertently be flown over hunters, anglers, hikers, campers, and other individuals participating in recreational activities. The Organization went on to say that “[i]n areas where a UAS may be flown over a person, either intentionally or unintentionally, public notice of the planned survey activity could be issued in advance of the survey.”
In response, the FAA clarifies that this rule allows filming of non-participants at an angle as long as the small unmanned aircraft does not fly over those non-participants. With regard to sparsely populated areas, as discussed earlier, the restriction on flight over people is focused on protecting the person standing under the small unmanned aircraft, which may occur in a sparsely populated area. The FAA notes, however, that because sparsely populated areas have significantly fewer people whose presence may restrict a small UAS operation, a newsgathering organization will likely have significant flexibility to conduct small UAS operations in those areas.
With regard to the remote pilot’s good-faith belief and momentary operation of a small unmanned aircraft over a person on the ground, the FAA notes that the remote pilot in command is responsible for ensuring that the small UAS does not fly over any nonparticipant who is not under a covered structure or vehicle. This may require creating contingency plans or even terminating the small UAS operation if a non-participant unexpectedly enters the area of operation. The FAA declines to amend this requirement because, as discussed earlier, this requirement creates a performance-based standard for a stand-off distance that the remote pilot in command must use to ensure that his or her small unmanned aircraft does not fly over a person.
The National Association of Realtors suggested that more guidance is needed to clarify the operator’s obligations for communicating with bystanders that a UAS flight will occur in the area. Specifically, the commenter wondered: (1) how much notice is required to clear an area of bystanders before the flight takes place; (2) how the notice should be given; (3) for how long an area should be required to be cleared of bystanders; and (4) within what distance bystanders should be provided notice.
This rule will not require that notice be given to non-participants prior to the operation of a small unmanned aircraft. Likewise, the rule will not prohibit the remote pilot from employing whatever means necessary to ensure that the small unmanned aircraft does not endanger the safety of bystanders, such as providing prior notice of operations. Providing notice to bystanders is simply one method that a remote pilot in command can utilize to clear the operating area (assuming that non-participants comply with the notice). However, providing such notice will not relieve the remote pilot in command of his or her duty to ensure the safety of non-participants.
An individual commenter asserted that, taken literally, the proposed prohibition “would require a UA operator to know at all times, the exact location of all people on the ground who are within VLOS of his or her UA.”
As stated earlier, this rule imposes a performance-based requirement concerning flight over people. It is up to the remote pilot in command to choose the specific means by which he or she will satisfy this requirement. The guidance issued concurrently with this rule provides some examples of means that a remote pilot in command could utilize to satisfy the prohibition against flight over non-participants in part 107.
NAMIC sought guidance with respect to when the presence of a third party “can prevent or interrupt UAS use.” Specifically, NAMIC questioned whether, if an insurance review of a private building requires some limited flight over a public street, the street needs to be closed or, alternatively, if the flight can simply take place when there are no pedestrians on the street. An individual commenter similarly questioned what happens when a person enters the operational area once the operation has commenced and the UAS is airborne—i.e., whether the UAS may loiter until the person clears the area or whether the operation must be terminated.
Liberty Mutual Insurance Company said that, given the fact that almost any operation of a small UAS over urban areas will necessarily result in flight over human beings, “the final rule should include a reasonableness standard whereby, through a safety assessment such as currently permitted in section 333 exemptions, an operator may determine that a flight over a particular area does not pose a reasonable threat to persons who are not covered by a structure.” If such a reasonable determination is made, Liberty Mutual said, the flight should be allowed. Liberty Mutual noted that this change “would be particularly important for assessing disaster situations or performing surveys over areas larger than a single structure.”
As discussed earlier, this rule prohibits any small unmanned aircraft from flying over a person who is not a direct participant in the small UAS flight operation and is not under a covered structure or vehicle. This is a performance standard: it is up to the remote pilot in command to choose the best way to structure his or her small UAS operation to ensure that prohibited flight over a person does not occur and that the small unmanned aircraft will not impact a person if it should fall during flight. The FAA anticipates that the remote pilot in command will need to determine an appropriate stand-off distance from nearby persons in order to comply with this requirement. With regard to the specific examples provided by the commenters, the FAA notes that the remote pilot in command is not required to cease small UAS flight if he or she can continue operating in a manner that ensures that the small unmanned aircraft will not fly over an unprotected non-participant. Several individual commenters suggested proposed §107.39 be expanded to prohibit operation over any personal property without the permission of the property owner.
Property rights are beyond the scope of this rule. However, the FAA notes that, depending on the specific nature of the small UAS operation, the remote pilot in command may need to comply with State and local trespassing laws.
NAMIC questioned whether a UAS operation over private property is prohibited if the owner wants to watch, “even if the owners agree that they may be in danger.” Southern Company suggested that FAA allow operations over any person who is located on the property, easement, or right of way of the person or entity for whom the small UAS is operated, and any person who is participating in the activity for which the small UAS is being operated. This commenter said such mitigating restrictions could include a lower operating ceiling, lateral-distance limits, a lower speed restriction, and a prohibition on operations over large gatherings of people.
The flight-over-people restriction is intended to address the risk of a small unmanned aircraft falling on and injuring a person. Being the owner or easement-holder of the area of operation does not reduce a person’s risk of being hit by the small unmanned aircraft. Accordingly, this rule will not impose a different safety standard based on the ownership status of the person over whom the small unmanned aircraft is operating. With regard to additional operational mitigations, the FAA will consider those on a case-by-case basis through the waiver process.
The Wisconsin Department of Transportation (WisDOT) expressed “concern that this (107.39) restriction may severely limit the ability of public sector agencies to incorporate UAS” into certain activities, such as bridge inspections, traffic and incident management activities on public highways, and search and rescue operations. NSAA also said operations over the public should be permitted “in non-normal or emergency operations where life, limb, and property are at risk.” UAS Venture Partners similarly sought an exemption from the proposed prohibition on operations over persons not directly involved in the operation for Civic Municipal Rescue Service agencies and the trained rescue first responders who will be operating the UAS devices. Vail also said the final rule should include specific exemptions from the “directly involved” requirement “for temporary flight over uninvolved persons for emergency and safety uses.”
As discussed in section III.C.3 of this preamble, this rule applies only to civil small UAS operations. It does not apply to public UAS operations which may include governmental functions such as public road and bridge inspections, traffic control and incident management on public highways, and search and rescue operations. To that end, a public UAS operator such as WisDOT may apply for a COA to use its UAS for specific governmental functions instead of operating and complying with the provisions of part 107. With regard to emergency and search-and-rescue operations, it should be noted that those operations are typically conducted by local, State, or Federal government agencies (such as fire departments or police) as public aircraft operations. Public aircraft operations will be granted operational authority by way of a COA and will not be subject to part 107. With regard to civil small UAS operations, the FAA emphasizes that the remote pilot in command’s ability to deviate from the requirements of part 107 to address an emergency (discussed in section III.E.1.d of this preamble) is limited to emergency situations that affect the safety of flight. For emergency situations that do not affect the safety of flight, the remote pilot in command should contact the appropriate authorities who are trained to respond to emergency situations.
The Professional Helicopter Pilots Association suggested that the FAA provide a means by which individuals or companies can limit or eliminate the overhead or adjacent operation of UAS by anyone other than properly certified public service/public safety operators.
Though a governmental entity may choose to operate a small UAS under the civil regulatory structure of part 107, the FAA does not agree that operational distinctions should be made within part 107 regarding the specific entity that is conducting a civil operation. To that end, under part 107 all civil small unmanned aircraft operations are prohibited from operating over a person not directly participating in the operation of the small unmanned aircraft and not under a covered structure or in a covered vehicle and not directly participating in the flight operation of the small unmanned aircraft.
The International Association of Amusement Parks and Attractions (IAAPA) stated safety and privacy concerns are implicated by third-party small UAS operations. IAAPA stated that the operation of UAS over amusement parks and attractions by third parties is also implicated by proposed section 107.39. IAAPA asserted that the facility operator can carefully control the use of UAS over a person who is not directly participating in its operation if the UAS is operated by the facility or its designee, but this degree of control is impossible when hobbyists or other third-parties who do not have the facility owner’s permission operate UAS near or over the perimeter or interior of amusement parks and attractions. IAAPA stated that amusement parks and attractions generally contain large numbers of people, and that the safety risks posed to employees and to visitors enjoying rides potentially traveling 100 miles per hour, watching shows, or walking through amusement parks and attractions are considerable and outside the control of facility operators.
The restriction on flight over people applies regardless of the location in which that flight occurs. Thus, a remote pilot in command may not operate a small unmanned aircraft over a non-participant in an amusement park who is not under a covered structure or in a vehicle. Additionally, the remote pilot in command must ensure that the small unmanned aircraft does not pose an undue hazard to a person in the event of a loss of control for any reason. The FAA also notes that hobbyists or other third parties who do not have the facility owner’s permission to operate UAS near or over the perimeter or interior of amusement parks and attractions may be violating State or local trespassing laws. Aerial Services, the National Society of Professional Surveyors, Continental Mapping, MAPPS, and 12 members of the Wisconsin Legislature said the ban on flights “over populated areas” needs to be removed or modified, because the definition of “populated area” is inadequate and seems to mean “any single person within the area of operation that is not inside a structure.” In response, the FAA notes that this rule does not ban flights over a “populated area.” This rule only restricts flights over a person who is not directly participating in the flight operation and who is not inside a covered structure or vehicle.
Are you interested in obtaining your “commercial drone license” so you can make some money or fly for your job?” If so, you are in the right place.
This page is the ultimate guide to obtaining your commercial drone license which has been called all sorts of things such as a remote pilot certificate, commercial drone license, drone pilot license, etc. The correct term is a remote pilot certificate, but throughout this article, I will be referring to the remote pilot certificate and commercial drone license interchangeably. While some call it a “commercial” drone license, you do NOT need to be commercially flying to fly under Part 107. It allows all types of operations: commercial, recreational, or government.