Section 107.205 List of regulations subject to waiver. (2018)


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Section 107.205 List of regulations subject to waiver.

A certificate of waiver issued pursuant to §107.200 may authorize a deviation from the following regulations of this part:

(a) Section 107.25—Operation from a moving vehicle or aircraft. However, no waiver of this provision will be issued to allow the carriage of property of another by aircraft for compensation or hire.

(b) Section 107.29—Daylight operation.

(c) Section 107.31—Visual line of sight aircraft operation. However, no waiver of this provision will be issued to allow the carriage of property of another by aircraft for compensation or hire.

(d) Section 107.33—Visual observer.

(e) Section 107.35—Operation of multiple small unmanned aircraft systems.

(f) Section 107.37(a)—Yielding the right of way.

(g) Section 107.39—Operation over people.

(h) Section 107.41—Operation in certain airspace.

(i) Section 107.51—Operating limitations for small unmanned aircraft.

 

My Commentary on Section 107.205 List of regulations subject to waiver.

Pay attention on how 107.25 and 107.31 both cannot do package delivery for compensation or hire.

 

Advisory Circular 107-2 on Section 107.205 List of regulations subject to waiver.

Part 107 includes the option to apply for a Certificate of Waiver (CoW). This CoW will allow an sUAS operation to deviate from certain provisions of part 107 if the Administrator finds that the proposed operation can be safely conducted under the terms of that CoW. A list of the waivable sections of part 107 can be found in § 107.205 and are listed below:
• Section 107.25, Operation from a moving vehicle or aircraft. However, no waiver of this provision will be issued to allow the carriage of property of another by aircraft for compensation or hire.
Section 107.29, Daylight operation.
• Section 107.31, Visual line of sight aircraft operation. However, no waiver of this provision will be issued to allow the carriage of property of another by aircraft for compensation or hire.
• Section 107.33, Visual observer.
• Section 107.35, Operation of multiple small unmanned aircraft systems.
• Section 107.37(a), Yielding the right of way.
• Section 107.39, Operation over people.
• Section 107.41, Operation in certain airspace.
• Section 107.51, Operating limitations for small unmanned aircraft.

5.19.1 Applying for a CoW. To apply for a CoW under § 107.200, an applicant must go to www.faa.gov/uas/ and follow the instructions.

5.19.2 Application Process. The application must contain a complete description of the proposed operation and a justification, including supporting data and documentation (as necessary), that establishes that the proposed operation can safely be conducted under the terms of a CoW. Although not required by part 107, the FAA encourages applicants to submit their application at least 90 days prior to the start of the proposed operation. The FAA will strive to complete review and adjudication of waivers within 90 days; however, the time required for the FAA to make a determination regarding waiver requests will vary based on the complexity of the request. The amount of data and analysis required as part of the application will be proportional to the specific relief that is requested. For example,request to waive several sections of part 107 for an operation that takes place in a congested metropolitan area with heavy air traffic will likely require significantly more data and analysis than a request to waive a single section for an operation that takes place in a sparsely-populated area with minimal air traffic. If a CoW is granted, that certificate may include specific special provisions designed to ensure that the sUAS operation may be conducted as safely as one conducted under the provisions of part 107. A listing of standard special provisions for part 107 waivers will be available on the FAA’s Web site at http://www.faa.gov/uas/.

 

FAA’s Discussion on Section 107.205 List of regulations subject to waiver from the Final Small Unmanned Aircraft Rule

In the NPRM, the FAA noted that this rulemaking is one step of a broader process to fully integrate UAS into the NAS. “Once the entire integration process is complete, the FAA envisions the NAS populated with UAS that operate well beyond the operational limits proposed in [the NPRM].”25 However, because higher-risk UAS operations pose additional safety issues that require more time to resolve, the FAA proposed to limit this rulemaking to small UAS operations posing the least amount of risk so that the agency could move to quickly issue a final rule integrating those operations into the NAS. “In the meantime, the FAA will continue working on integrating UAS operations that pose greater amounts of risk, and will issue notices of proposed rulemaking for those operations once the pertinent issues have been addressed, consistent with the approach set forth in the UAS Comprehensive Plan for Integration and FAA roadmap for integration.

The FAA also acknowledged that new technologies could come into existence after this rule is issued that could alleviate some of the risk concerns underlying the provisions of this rulemaking. As such, the FAA invited comment as to whether the final rule should include some type of waiver authority (such as a letter of deviation or a waiver) to better accommodate these new technologies. For the reasons discussed below, the FAA has decided to proceed with an incremental approach in this final rule but has added waiver authority to the regulatory text in order to accommodate new technologies and unique operational circumstances.

A number of commenters, including NTSB, Airlines for America (A4A), and the Small UAV Coalition, supported the FAA’s proposed incremental approach to issue a final rule immediately integrating low-risk UAS operations into the NAS while continuing to work on integrating UAS posing a higher risk in separate regulatory actions. Qualcomm Incorporated, Google, Inc., the Oregon Department of Aviation, and the North Dakota Department of Agriculture urged the FAA to move quickly to issue a final rule integrating small UAS operations into the NAS. Google emphasized that “[a]s the [small UAS] industry evolves, any lengthy delay in the issuance of a final [small UAS] rule would substantially reduce the benefits of the final rule. It will be difficult, if not impossible, for the FAA to adequately consider the many likely technological developments during a protracted rulemaking.” The National Association of Flight Instructors added that because UAS are a relatively new technology whose risks are still being studied, the FAA should use “a phased in set of regulations that ease into basic use of [small UAS] in the NAS with close attention to the degree of responsible use and compliance with regulations before considering relaxation of rules to allow increasing capability of the aircraft.”

The Coalition of Airline Pilots Associations (CAPA) commented that “creating a set of regulations and standards that have a lower level of safety in the name of expedience is problematic.” CAPA asserted that this rulemaking “is an opportunity to develop a regulatory schema, using the hard lessons learned over the past one hundred years that has the long-range vision to be capable and integrated to handle the full spectrum of anticipated operations.” CAPA also claimed that there may ultimately be remotely piloted vehicles that are the size of commercial transport category aircraft, and that any system put in place to govern UAS must account for this eventuality and provide the appropriate level of regulation. The Flight School Association of North America recommended a 12 to 18- month extension to the rulemaking timeline, “so that more review can be accomplished.” Other commenters, including Amazon.com, Inc. (Amazon), the American Farm Bureau Federation, and several state farm bureaus, raised concerns about the proposed incremental approach. These and other commenters, such as the U.S. Small Business Administration (SBA) Office of Advocacy and the George Washington University Regulatory Studies Center, argued that more flexibility is necessary in the final rule to keep pace with new and emerging technologies. In addition, the commenters asserted that by delaying the integration of certain operations, such as beyond-visual-line-of-sight operations, until a future rulemaking, the FAA would also delay the benefits associated with those operations until the pertinent future rulemaking is complete. The George Washington University Regulatory Studies Center suggested that the FAA set regular deadlines for issuing future final rules to further integrate UAS into the NAS.

To address these concerns, a number of commenters including the SBA Office of Advocacy, the National Business Aviation Association (NBAA), and Google, urged the FAA to include deviation authority in the final rule. Google suggested that the FAA should grant a deviation from the provisions of part 107 if an applicant can establish that his or her small UAS operation would provide a level of safety equivalent to the one provided by the operating parameters of part 107. Several commenters including the National Ski Areas Association, EEI, and the American Farm Bureau Federation (AFBF) asserted that there exist industries (such as agriculture, electrical utilities, and ski resorts) whose unique operating environments may allow them to mitigate some of the safety concerns underlying the operational parameters of the NPRM proposal. The Small UAV Coalition emphasized that the key to including deviation authority in the final rule would be for the FAA to establish a process by which it may authorize certain operations to exceed the other provisions of part 107 based on case-specific characteristics such as the operational circumstances of the mission, technological capabilities of the small UAS, and the training and experience of the operator.

After considering the comments, the FAA has decided to proceed incrementally and issue a final rule that immediately integrates the lowest-risk small UAS operations into the NAS. As Qualcomm, Google, the Oregon Department of Aviation, and other commenters pointed out, delaying the integration of the lowest-risk small UAS operations until issues associated with higher-risk operations have been addressed would needlessly delay the realization of societal benefits associated with integrating UAS operations for which the pertinent safety issues have been addressed. In addition, the immediate integration of the lowest-risk small UAS operations into the NAS would provide the FAA with additional operational experience and data that could be used to assist with the integration of higherrisk operations.

However, the FAA also agrees with the SBA Office of Advocacy and other commenters who pointed out that: (1) the rulemaking process for higher-risk UAS operations may lag behind new and emerging technologies; and (2) certain individual operating environments may provide unique mitigations for some of the safety concern underlying this rule. To resolve these issues, this rule will, in § 107.200, include the option to apply for a certificate of waiver. This certificate of waiver will allow a small UAS operation to deviate from certain provisions of part 107 if the Administrator finds that the proposed operation can safely be conducted under the terms of that certificate of waiver. This is similar to the standard that the FAA utilizes to consider waivers to the requirements of 14 CFR part 91.29 A discussion as to whether a provision of part 107 is waivable can be found in the preamble section discussing that provision.

To obtain a certificate of waiver, an applicant will have to submit a request containing a complete description of the proposed operation and a justification, including supporting data and documentation as necessary, that establishes that the proposed operation can safely be conducted under the terms of the requested certificate of waiver. The FAA expects that the amount of data and analysis required as part of the application will be proportional to the specific relief that is requested. Similarly, the FAA anticipates that the time required for it to make a determination regarding waiver requests will vary based on the complexity of the request. For example, a request for a major deviation from part 107 for an operation that takes place in a congested metropolitan area with heavy air traffic will likely require significantly more data and analysis than a request for a minor deviation for an operation that takes place in a sparsely populated area with minimal air traffic. If a certificate of waiver is granted, that certificate may include additional conditions and limitations designed to ensure that the small UAS operation can be conducted safely.

The certificate-of-waiver process will allow the FAA to assess case-specific information concerning a small UAS operation that takes place in a unique operating environment and consider allowing additional operating flexibility that recognizes safety mitigations provided by the specific operating environment. The FAA anticipates that this process will also serve as a bridging mechanism for new and emerging technologies; allowing the FAA to permit testing and use of those technologies, as appropriate, before the pertinent future rulemaking is complete.

Like information collected from § 333 exemptions, the FAA plans to collect useful data derived from waiver application and issuance such as what part 107 provisions have the greatest number of waiver requests, what technology is being utilized to enhance safety, and what safe operating practices are most effective. To evaluate the effectiveness of operating practices, the FAA plans to compare the mitigations imposed by waiver grants against accident and incident reports and observations made as part of the FAA’s oversight. For example, an FAA inspector conducting an inspection of a small UAS that is operating under a waiver will be able to observe potential safety issues that may arise during the operation. This information will used to assess risk and be shared with various organizations in the FAA to inform policy decisions and rulemaking efforts.

Some commenters requested authorization to deviate for specific activities. For example, the National Rural Electric Cooperative Association (NRECA) requested deviation authority for utility maintenance and operations of UAS in electric cooperative power line right-of-way corridors. The American Petroleum Institute (API) requested deviation authority in circumstances in which environmental protection and health and human safety issues are implicated. Princeton University recommended that the rule include an option for universities to certify that the aircraft is to be used for educational purposes and poses no unreasonable danger to the public. Vail Resorts requested that the FAA provide a vehicle for deviation authority through agency practices that will enable ski
areas to obtain authorization or exemption from certain final rules.

The FAA notes that the safety of a small UAS operation is a result of that operation’s operating parameters and not the purpose for which the operation is conducted. For example, if a small UAS operation is conducted at a remote ski resort, the safetypertinent factor is not that the operation is conducted for ski-area purposes, but that the operation is conducted in a remote area. However, at this time, the FAA does not have sufficient data to determine what (if any) operational mitigations are included when a small UAS operation is conducted in a given industry and how widespread those mitigations are within the industry. To take the earlier example of ski areas, the FAA does not have sufficient data to determine whether all ski areas are remotely located and the density of manned-aircraft traffic near each ski area. Accordingly, the FAA will evaluate operations seeking to go beyond the baseline part 107 requirements on a case-by-case basis as part of its evaluation of the waiver applications.

Modovolate Aviation and Colorado Ski Country USA encouraged the FAA to make available class exemptions under section 333 of Public Law 112-95 if specific classes of small UAS cannot reasonably be accommodated within the final rule. Similarly, DJI recommended that, where technology or operating practice is widely available or known, the FAA could issue guidance allowing its inspectors to routinely grant deviation authority to all operators meeting certain standards rather than evaluating individual requests for deviation. Another commenter encouraged the FAA to consider issuing equipment-specific authorizations or waivers based on specific technologies rather than granting authorizations or waivers to specific operators flying specific aircraft. An individual urged the FAA to set up a program to let manufacturers self-certify that their aircraft models qualify for exemption from applicable rules.

The FAA notes that the Administrative Procedure Act imposes certain requirements on agency rulemaking. When conducting a rulemaking, an agency must, among other things, issue a notice of proposed rulemaking, allow time for public comment, consider public comments, and issue a final rule after consideration of public comments.30 As part of its process to integrate UAS into the NAS, the FAA may, in the future, consider categories of UAS and UAS operations, but absent changes to the statute, the method by which the agency will integrate those categories into the NAS will have to comply with the Administrative Procedure Act. With regard to manufacturer self-certification, the FAA notes that part 107 will not contain airworthiness certification requirements and thus, there will be no part 107 requirement to which a manufacturer could self-certify.

NetMoby encouraged the FAA to circumscribe very specific rules establishing standards for UAS deviation authority at the outset of the UAS regulatory environment to avoid being immediately overwhelmed with waiver requests and other requests for deviation authority. Google proposed a specific process for the deviation authority. Google explained that the FAA would be able to tailor different operational restrictions, as appropriate, if a petitioner can demonstrate that: (i) the small UAS has enhanced safety technology; (ii) the small UAS meets a higher level of airworthiness or complies with a more detailed maintenance and inspection protocol; or (iii) the small UAS operator (pilot) has a higher level of pilot and small UAS operator qualification, training, and/or certification than the proposed part 107 would require.

As discussed earlier, the standard that an applicant seeking a waiver will be required to meet is to demonstrate that his or her proposed small UAS operation can safely be conducted under the terms of a certificate of waiver. This waiver process is intended to allow for case-specific mitigations that could take many different forms or combinations. These mitigations could even be based on technology that does not exist at this time. Because prescriptive requirements imposed on the waiver process as part of this rulemaking may limit the FAA’s flexibility to consider new or unique operational circumstances and safety mitigations, the FAA declines to add more prescriptive requirements to this process.

The International Air Transport Association urged the FAA to adopt a final rule that allows for regular and systemic review to ensure the appropriate level of regulation or oversight. The Agricultural Retailers Association similarly recommended timely reauthorization of the rules “to mirror technological advances and risk mitigation.” The Virginia Department of Aviation asserted that the rules “should be reviewed as quickly as the safety data permits,” which the commenter estimated to be every 24 months “until we achieve full integration of the technology into the NAS.”

Several commenters urged the FAA to specifically address the timeline for implementation, so that the industry can prepare appropriately. One individual questioned whether the FAA intends to create a forecast for UAS “rule evolution.” Specifically, the commenter questioned when the FAA expects to develop rules for UAS greater than 55 pounds and what constraints the agency expects to put on operations for these larger vehicles. Another individual recommended the FAA set regular deadlines for issuing final rules to update UAS integration standards, and commit to removing some of the requirements (e.g., size, visual line of sight) by a date certain, unless experience justified maintaining them.

The FAA notes that it has issued a comprehensive plan and roadmap laying out its long-term vision for UAS integration into the NAS. The FAA is currently updating these documents with an FAA strategic plan for UAS integration into the NAS.32 With regard to review of the rules once they are in place, the FAA notes that Executive Order 13610 requires the FAA to review its regulations to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the advent of new technologies. The FAA regularly conducts a retrospective review of its regulations, and the regulations of this rule will be no exception

…….

The FAA also acknowledged that new technologies could come into existence after this rule is issued that could alleviate some of the risk concerns underlying the provisions of this rulemaking. As such, the FAA invited comment as to whether the final rule should include some type of waiver authority (such as a letter of deviation or a waiver) to better accommodate these new technologies. For the reasons discussed below, the FAA has decided to proceed with an incremental approach in this final rule but has added waiver authority to the regulatory text in order to accommodate new technologies and unique operational circumstances.

…………….

To obtain a certificate of waiver, an applicant will have to submit a request containing a complete description of the proposed operation and a justification, including supporting data and documentation as necessary, that establishes that the proposed operation can safely be conducted under the terms of the requested certificate of waiver. The FAA expects that the amount of data and analysis required as part of the application will be proportional to the specific relief that is requested. Similarly, the FAA anticipates that the time required for it to make a determination regarding waiver requests will vary based on the complexity of the request. For example, a request for a major deviation from part 107 for an operation that takes place in a congested metropolitan area with heavy air traffic will likely require significantly more data and analysis than a request for a minor deviation for an operation that takes place in a sparsely populated area with minimal air traffic. If a certificate of waiver is granted, that certificate may include additional conditions and limitations designed to ensure that the small UAS operation can be conducted safely.

The certificate-of-waiver process will allow the FAA to assess case-specific information concerning a small UAS operation that takes place in a unique operating environment and consider allowing additional operating flexibility that recognizes safety mitigations provided by the specific operating environment. The FAA anticipates that this process will also serve as a bridging mechanism for new and emerging technologies; allowing the FAA to permit testing and use of those technologies, as appropriate, before the pertinent future rulemaking is complete.

Like information collected from § 333 exemptions, the FAA plans to collect useful data derived from waiver application and issuance such as what part 107 provisions have the greatest number of waiver requests, what technology is being utilized to enhance safety, and what safe operating practices are most effective. To evaluate the effectiveness of operating practices, the FAA plans to compare the mitigations imposed by waiver grants against accident and incident reports and observations made as part of the FAA’s oversight. For example, an FAA inspector conducting an inspection of a small UAS that is operating under a waiver will be able to observe potential safety issues that may arise during the operation. This information will used to assess risk and be shared with various organizations in the FAA to inform policy decisions and rulemaking efforts.
…………..

Modovolate Aviation and Colorado Ski Country USA encouraged the FAA to make available class exemptions under section 333 of Public Law 112-95 if specific classes of small UAS cannot reasonably be accommodated within the final rule. Similarly, DJI recommended that, where technology or operating practice is widely available or known, the FAA could issue guidance allowing its inspectors to routinely grant deviation authorityto all operators meeting certain standards rather than evaluating individual requests for deviation. Another commenter encouraged the FAA to consider issuing equipment-specific authorizations or waivers based on specific technologies rather than granting authorizations or waivers to specific operators flying specific aircraft. An individual urged the FAA to set up a program to let manufacturers self-certify that their aircraft models qualify for exemption from applicable rules.

The FAA notes that the Administrative Procedure Act imposes certain requirements on agency rulemaking. When conducting a rulemaking, an agency must, among other things, issue a notice of proposed rulemaking, allow time for public comment, consider public comments, and issue a final rule after consideration of public comments.30 As part of its process to integrate UAS into the NAS, the FAA may, in the future, consider categories of UAS and UAS operations, but absent changes to the statute, the method by which the agency will integrate those categories into the NAS will have to comply with the Administrative Procedure Act. With regard to manufacturer self-certification, the FAA notes that part 107 will not contain airworthiness certification requirements and thus, there will be no part 107 requirement to which a manufacturer could self-certify.

……………….

Operating within visual line of sight of the remote pilot is also critical to the Department’s finding that these operations are so limited such that at this time, they could not be considered air transportation, or part of a broader network of interstate commerce warranting economic authority to ensure adequate protection of consumers’ interests at this time. Accordingly, any waivers that the FAA may grant to the visual-line-of-sight provisions of part 107 will not allow the operation to transport property for compensation or hire beyond visual line of sight.

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As discussed in other parts of this preamble, the two operational restrictions of interest to these commenters (the requirement to remain within visual line of sight and the restriction on flying over people) are both waivable upon demonstration that the proposed operation can safely be conducted under the terms of a certificate of waiver. Waiver applicants may use geo-fencing and other technological equipage to help demonstrate, in support of a waiver application, that the proposed operation can be conducted safely. Alternatively, applicants may be able to demonstrate the safety of their proposed operation through non-technological means, such as mitigations present in the area of operation. The FAA will evaluate the technological and non-technological means employed by a waiver applicant to mitigate the risk of a small UAS operation and will issue a waiver if the applicant demonstrates that his or her specific means establishes the requisite level of safety.

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The certificate of waiver will allow a remote pilot in command conducting a small UAS operation to deviate from certain provisions of part 107. To obtain a certificate of waiver, an applicant will submit a request containing a complete description of the proposed operation and a justification, including supporting data and documentation as necessary, that establishes that the proposed operation can safely be conducted under the terms of a certificate of waiver.

The FAA expects that the amount of data and analysis required as part of the application will be proportional to the specific relief that is requested. Similarly, the FAA anticipates that the time required to make a determination regarding waiver requests will vary based on the complexity of the request. For example, a request for a major deviation from part 107 for an operation that takes place in a congested metropolitan area with heavy air traffic will likely require more data and analysis than a request for a minor deviation for an operation that takes place in a sparsely populated area with minimal air traffic. If a certificate of waiver is granted, that certificate may include additional conditions and limitations designed to ensure that the small UAS operation can safely be conducted under the terms of a certificate of waiver.

 

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