Section 107.41 Operation in certain airspace.
The regulation says, “No person may operate a small unmanned aircraft in Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport unless that person has prior authorization from Air Traffic Control (ATC).”
Notice that it does NOT say class A airspace. It also does not require authorization for class E airspace everywhere but only Class E (1) at the surface and (2) in connection with an airport airspace. The FAA clarified this in an internally published memo on January 10, 2018 from Scott Gardner.
Text of the Memorandum Clarifying Class E Airspace
Date: January 10, 2018
To: AJV-115From: Scott J. Gardner, Acting Manager, Emerging Technologies, AJV-115
Subject: 14 CFR 107.41 Class E Surface Area Authorizations
In reviewing Class E Surface Area authorization requirements, we determined that the Class E authorization requirement only pertains to Class E surface areas for an airport, not the Class E extensions to Class D, C and E airspaces. 14 CFR 107.41 states: “No person may operate a small unmanned aircraft in Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport unless that person has prior authorization from Air Traffic Control (ATC)”. FAA Order 7400.11B identifies the different types of Class E airspace. The only type of Class E airspace that matches the language in 107.41 is paragraph 6002, which states: “The Class E airspace areas listed below are designated as a surface area for an airport.” The others are as follows:
E1 – Class E Airspace at and above 14,500 feet MSL
E2 – Class E airspace areas designated as a surface area for an airport
E3 – Class E Airspace Areas Designated As An Extension To A Class C Surface Area
E4 – Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area
E5 – Class E Airspace Areas Extending Upward From 700 Feet Or More Above The Surface of The Earth
E6 – En route Domestic Airspace Areas
E7 – Offshore Airspace Areas
E8 – Class E Airspace Areas Designated As Federal Airways
Therefore, effective immediately, we only need to provide authorizations for Class E airspace if the airport itself is a Class E airport. When processing applications verify that the requested airspace is listed in FAA Order 7400.11, paragraph 6200 or is indicated on a VFR sectional chart as indicated in the attachments. If the requested airspace is not listed or depicted then an authorization is not required under 14 CFR Part 107.41. The request can be cancelled and inform the applicant that an authorization is not needed for Class E extensions to Class D/C airspace.
If you have any questions please contact Scott Gardner at 202-267-8192, or email [email protected]
Echo airspace is in many locations which is why the FAA breaks it up into 8 different E classifications. For purposes of 107.41, they are referring to E2. Let’s dive into some examples.
E2 – Class E airspace areas designated as a surface area for an airport
E3 – Class E Airspace Areas Designated As An Extension To A Class C Surface Area
E4 – Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area
E5 – Class E Airspace Areas Extending Upward From 700 Feet Or More Above The Surface of
So what else has the FAA said on 107.41?
Operation Near Airports; in Certain Airspace; in Prohibited or Restricted Areas; or in the Proximity of Certain Areas Designated by a Notice to Airmen (NOTAM). Though many sUAS operations will occur in uncontrolled airspace, there are some that may need to operate in controlled airspace. Operations in Class B, Class C, or Class D airspace, or within the lateral boundaries of the surface area of Class E airspace designated for an airport, are not allowed unless that person has prior authorization from air traffic control (ATC). The link to the current authorization process can be found at www.faa.gov/uas/. The sUAS remote PIC must understand airspace classifications and requirements. Failure to do so would be in violation of the part 107 regulations and may potentially have an adverse safety effect. Although sUAS will not be subject to part 91, the equipage and communications requirements outlined in part 91 were designed to provide safety and efficiency in controlled airspace. Accordingly, while sUAS operating under part 107 are not subject to part 91, as a practical matter, ATC authorization or clearance may depend on operational parameters similar to those found in part 91. The FAA has the authority to approve or deny aircraft operations based on traffic density, controller workload, communication issues, or any other type of operations that could potentially impact the safe and expeditious flow of air traffic in that airspace. Those planning sUAS operations in controlled airspace are encouraged to contact the FAA as early as possible. (For suggested references, please see paragraph 2.3.)
FAA’s Discussion on Section 107.41 Operation in certain airspace from the Final Small Unmanned Aircraft Rule
Turning to concerns about operations in controlled airspace, this rule will prohibit small UAS operations in Class B, Class C, Class D, and within the lateral boundaries of the surface area of Class E airspace designated for an airport without prior authorization from the ATC facility having jurisdiction over the airspace. The FAA factors information such as traffic density, the nature of operations, and the level of safety required when determining whether to designate controlled airspace. The requirement for small UAS to receive approval from the ATC facility with jurisdiction over the airspace in which the remote pilot in command would like to conduct operations allows local ATC approval to provide a safer and more efficient operating environment.
In the NPRM, the FAA proposed limiting the exposure of small unmanned aircraft to other users of the NAS by restricting small UAS operations in controlled airspace. In addition, the NPRM proposed prohibiting small UAS operations in prohibited and restricted areas without permission from the using or controlling agency. The proposed rule also prohibited operation of small UAS in airspace restricted by NOTAMs unless authorized by ATC or a certificate of waiver or authorization.
For the reasons discussed below, this rule will adopt the provisions for operating in Class B through E airspace and in prohibited or restricted areas as proposed in the NPRM, but with the option to request a waiver from the provisions for operating in Class B through E airspace. This rule will not adopt the provisions for compliance with NOTAMs as proposed, but will instead require compliance with §§ 91.137 through 91.145 and § 99.7, as applicable. This rule will also not adopt the proposed prohibition on operations in Class A airspace because the other operational restrictions of this rule will keep a small unmanned aircraft from reaching Class A airspace. Lastly, this rule will add a prohibition against small unmanned aircraft operations that interfere with operations and traffic patterns at any airport, heliport or seaplane base.
a. Operations in Class B, C, D, and lateral boundaries of the surface area of Class E
airspace designated for an airport
The NPRM proposed to require prior permission from Air Traffic Control (ATC) to operate in Class B, C, or D airspace, or within the lateral boundaries of the surface area of
Class E airspace designated for an airport. The NPRM did not propose equipment requirements for small UAS operating in controlled airspace, nor did it propose to require small UAS to demonstrate strict compliance with part 91 in order to operate in controlled airspace.
Several commenters including AOPA, EAA, and the Small UAV Coalition, supported the FAA’s proposal that remote pilots obtain ATC approval prior to operating small UAS in Class B, C, or D airspace, or within the lateral boundaries of the surface area of Class E airspace designated for an airport. Some commenters added that they would like clarification that ATC approval does not mean the FAA issuance of a COA. The International Air Transport Association supported the proposal and stated this requirement should not be allowed to impede ATC’s primary responsibility to manage traffic. Transport Canada requested clarification on the process for requesting ATC approval. Foxtrot Consulting and JAM Aviation expressed concern about inconsistent application of the regulation by ATC facilities.
Some of these commenters requested that the FAA provide guidance to ATC facilities regarding the handling of requests to operate small UAS in controlled airspace. Modovolate Aviation agreed with the proposed framework, but suggested that the FAA should provide guidance on how ATC permission would be obtained. The Small UAV Coalition asked the FAA to provide contact information for each ATC facility, and to agree to provide timely decisions on whether to authorize operations in controlled airspace. NBAA suggested prohibiting use of ATC frequencies to obtain the required permission.
In response to comments, the FAA will establish two methods by which a remote pilot in command may request FAA authorization for a small unmanned aircraft to operate in Class B, C, D, and the lateral boundaries of the surface area of Class E airspace designated for an airport. The first method is the same as what was proposed in the NPRM: a remote pilot in command may seek approval from the ATC facility with jurisdiction over the airspace in which the remote pilot would like to conduct operations. The second method allows a remote pilot to request a waiver from this provision in order to operate in Class B through E airspace. As stated in the NPRM, the appropriate ATC facility has the best understanding of local airspace, its usage, and traffic patterns and is in the best position to ascertain whether the proposed small UAS operation would pose a hazard to other users or the efficiency of the airspace, and procedures to implement to mitigate such hazards. The ATC facility has the authority to approve or deny aircraft operations based on traffic density, controller workload, communications issues, or any other type of operational issues that could potentially impact the safe and efficient flow of air traffic in that airspace. If necessary to approve a small UAS operation, ATC may require mitigations such as altitude constraints and direct communication. ATC may deny requests that pose an unacceptable risk to the NAS and cannot be mitigated.
The ATC facility does not have the authority to approve or deny small UAS operations on the basis of equipage that exceeds the part 107 requirements. Because additional equipage and technologies such as geo-fencing have not been certificated by the FAA, they therefore need to be examined on a case-by-case basis in order for the FAA to determine their reliability and functionality. Additionally, requiring ATC to review equipage would place a burden on ATC and detract from other duties. Instead, a remote pilot who wishes to operate in controlled airspace because he or she can demonstrate mitigations through equipage may do so by applying for a waiver.
Requests for authorization to operate a UAS in one of the above areas should be made by writing or an electronic method as determined by the Administrator and publicized on the FAA’s website. Requests for such authorization via air traffic control radio communication frequencies will not be accepted because they may interfere with the separation of aircraft.
The FAA is not committing to a timeline for approval after ATC permission has been requested because determining the level of review required for approval is dependent on the management at the individual facilities. The FAA also notes that the time required for approval will vary based on the resources available at the ATC facility and the complexity and safety issues raised by each specific request. The FAA encourages remote pilots who know that they will need to operate in Class B, C, D, or E airspace to contact the appropriate ATC facility as soon as possible prior to the operation.
While some UAS activity will still utilize a COA, operating under part 107 regulations will not require a COA where ATC permission is specified. The FAA is working concurrently on several other documents, including an advisory circular, and training and direction to ATC facilities that will provide guidance to users and ATC personnel as to procedures and responsibilities. This guidance will ensure consistent application of ATC permission and processes, to the extent practicable. The FAA notes that some discrepancies may arise due to the unique nature of different airspace.
Several commenters, including ALPA, TTD, and the University of North Dakota John D. Odegard School of Aerospace Sciences, opposed allowing operations in class B, C, D, or E airspace. The University of North Dakota John D. Odegard School of Aerospace Sciences argued that this provision would place an undue burden on ATC, and that the well-established COA process would be a better mechanism than ATC permission. TTD suggested that the FAA adopt design provisions that ensure small UAS remain in the intended airspace when operating optimally, as well as risk mitigation technology when command controls are lost, and that operations in controlled airspace be banned in the absence of such provisions. ALPA stated that it does not believe there is sufficient information on which to base a sound safety case for allowing small UAS into controlled airspace at this time. Several commenters including SWAPA, Airport Council International-North America and the County of Los Angeles Department of Public Works, thought a real-time two-way communication requirement should be included. The Property Drone Consortium opposed the requirement to notify ATC, while adding that it believed this requirement imposed burdens on UAS operators that are different from those imposed on manned operations.
The FAA does not believe that prescriptive design provisions are necessary in this rule. The FAA acknowledges the concerns raised by the commenters but notes that, as of this writing, safety-relevant equipage such as transponders has not been certificated for use on a small UAS. Additionally, there could be small UAS operations with operational parameters that would make those UAS not a danger to manned aircraft even if positive control is lost. For example, a small unmanned aircraft flying at low altitude and surrounded by natural barriers that would stop the aircraft from flying away would not pose a danger to other aircraft, even in the absence of equipage mitigations. Thus, this rule will retain the framework allowing the FAA to evaluate operations seeking to be conducted in controlled airspace on a case-by-case basis, and will not impose generally applicable design or equipage provisions on all small UAS operations. The FAA will continue to monitor the development of small UAS technology and may revisit this issue once the pertinent technology becomes more mature and additional safety data is available. This framework is similar to the regulatory construct underlying controlled-airspace access under part 91. Specifically, while part 91 imposes minimum equipage requirements on aircraft seeking to operate in controlled airspace, part 91 also gives ATC the power to
authorize aircraft that do not have the required equipage to access the airspace. Part 107 provides ATC with a similar power to evaluate whether an individual small UAS operation may safely be conducted in controlled airspace even though the unmanned aircraft lacks equipage typically used to mitigate safety concerns in that airspace.
Additionally, the FAA does not agree that the current COA process would be a better mechanism for operating in controlled airspace. Currently, when a small UAS operator applies for a COA, the Flight Standards Service in the FAA first addresses the equipage exemptions, and then if a favorable outcome is reached, the operator is allowed to operate in Class G airspace up to 200 feet AGL. If an operator wishes to operate in controlled airspace, under the previous COA framework, the request is sent to the air traffic service center. The service center then works with the appropriate ATC facility to respond to the request. This rule will streamline the process, such that equipage no longer needs to be reviewed by the FAA if the part 107 requirements are met. Therefore, the only outstanding step in the COA process would be resolving requests to operate in controlled airspace. This rule incorporates that step within the ATC-permission framework, making the COA process unnecessary for part 107 operations.
Embry-Riddle Aeronautical University supported the proposed rule and proposed adding a filed flight plan option in lieu of explicit ATC approval. The City and County of Denver, Colorado, insisted that permission should be granted only for essential commercial, non-recreational purposes. Airport Council International–North America and the American Association of Airport Executives stated that ATC should only grant permission when there is a specific need to do so. The Center for Robot-Assisted Search and Rescue asked that public safety operators be exempt from the requirement to obtain ATC approval prior to operating in controlled airspace.
The FAA does not agree with Embry-Riddle’s proposal to add a flight plan option in lieu of ATC approval. Filing a flight plan would not alert ATC in advance as to the nature of the operation, nor would it give them an opportunity to apply mitigations in a timely manner. The FAA also notes that the flight plan system is set up for point-to-point flights. Adapting it for small UAS operations would be a technology hurdle and would introduce unnecessary delay into the rule. Therefore, a flight plan is not a viable substitute for obtaining ATC permission.
Additionally, ATC should not be placed in the position of validating the need of any specific operation. Any decision on allowing an operation within the appropriate ATC facility’s jurisdiction will take into account the workload of the controller. If it is anticipated the volume of traffic could change, the facility might require a means to terminate a small UAS operation in real-time, such as two-way radio or cell phone communication.
The FAA also notes that this rulemaking does not apply to recreational small UAS operations that are conducted in accordance with section 336 of Public Law 112-95. Further, the FAA does not agree that public safety operators should be exempt from the requirement to obtain ATC approval prior to operating in controlled airspace. Although public safety operators may have time-critical aspects to their operations, the risks associated with flying in controlled airspace remain the same regardless of the type of operation. The requirement for ATC approval gives ATC the opportunity to prescribe mitigations to address any risks associated with operating in controlled airspace. The FAA notes that while a public entity has the option to operate under a public COA, it may gain an operational advantage by operating under part 107. However, in electing to operate under part 107, a public entity is required to operate wholly under the part, and its operation would therefore be considered a civil operation.
Some commenters, including TTD and NAFI, expressed concern that the testing required by the proposed rule would not adequately prepare UAS operators to effectively communicate with ATC. The American Association of Airport Executives and the Associated General Contractors of America suggested that the FAA develop a protocol or guidance for UAS operators when communicating with ATC. NBAA asserted that if ATC requires two-way radio capability in their approval, the remote pilot should be required to hold at least a sport pilot airman certificate to ensure familiarity with ATC phraseology. Transport Canada asked whether FAA considered mandating that the UAS operator develop and adhere to procedures for loss of positive control that include communications with air traffic control. Similarly, CAPA said that the FAA should require procedures for operators of small UAS to notify the appropriate ATC agency when the UAS operator has lost positive control.
This rule does not mandate a specific method of communication with ATC. In its evaluation of a request to fly in controlled airspace, an ATC facility may request two-way radio communications as a condition of approval for that request. ATC’s evaluation may include assessing the experience and ability of the remote pilot in using proper phraseology. Imposing a general sport pilot certificate requirement would not ensure the appropriate knowledge and skills because sport pilots are not permitted to operate in class B, C, or D airspace without an additional endorsement, and would not necessarily have the radio training or experience by virtue of holding a sport pilot certificate. Additionally, there are several means outside of an airman certificate that may provide proper ATC communication experience, such as airport ground personnel or air traffic controller training.
The FAA has not mandated specific coordination with ATC for manned or unmanned aircraft during a loss-of-control event. As described in the introduction to the FAA Safety Team (FAAST) course ALC-40, navigate, communicate. In other words, during an emergency, a pilot should maintain control of the aircraft, know where he or she is and where he or she intends to go, and let someone know his or her plans. To require a communication task during an emergency may distract a pilot from these priorities and possibly create additional risk. Proper flight planning by a remote pilot in command includes an assessment of the risk of violating regulatory airspace, and incorporation of mitigations and contingencies commensurate with that risk.
Prioria Robotics said the FAA should consider blanket access to airspace below 500 feet for small and micro class unmanned vehicles of less than 15 pounds, with exceptions for within one mile of airports. Prioria Robotics also recommended that only vehicles larger than 15 pounds be subject to airspace restriction. One individual stated that operations below 100 feet and farther than 3 miles from an airport in class B and C airspace should be allowed without ATC involvement. Similarly, the National Association of Broadcasters, the National Cable & Telecommunications Association, and the Radio Television Digital News Association, commenting jointly, suggested a sliding scale for operations that would require lower altitudes when closer to an airport for operations without ATC approval. DJI suggested that in lieu of restrictions in certain classes of airspace, the FAA should consider adopting an approach akin to the one that the agency has adopted in 14 CFR part 77, in which maximum altitude increases as distance to an airport increases.
The FAA disagrees with the assumption that the weight of an unmanned aircraft is the sole safety concern when operating in controlled airspace. The FAA designates the various classes of controlled airspace to allow ATC to provide separation services to instrument flight rules (IFR) and, in the case of class B and C airspace, VFR traffic. Controlled airspace surface areas have a high number of arriving and departing aircraft at altitudes below 500 feet and rely on ATC to assess and mitigate the associated risk. Trying to create a sliding scale that would require lower altitudes closer to an airport for operations without ATC approval would be complex because the slope would not be uniform. Instead, the slope would be shallower in the path of approach or departures, and steeper away from traffic flows. Each airspace has unique characteristics, and individual small UAS operations are different, making it impossible to establish a uniform standard. Allowing the local ATC facility to determine the feasibility of a small UAS operation is an efficient means to mitigate the risks involved in operating in controlled airspace.
The Colorado Agricultural Aviation Association, the City of Phoenix Aviation Department, and PlaneSense and Cobalt Air, commenting jointly, suggested that a NOTAM be issued when small UAS are flying in class B, C, D, and E airspace. The FAA disagrees with this suggestion because, in many instances, a NOTAM would not provide any additional level of safety. For example, neither a very low altitude operation (e.g., below 50 feet), nor a flight that is shielded by a taller structure that would preclude manned aircraft from operating in that area, would benefit from a NOTAM. In both instances there is a low probability that manned aircraft will be present in those areas.
The FAA has a responsibility to keep NOTAMs relevant to pilots, and NOTAMs that do not provide an additional level of safety may create information “clutter” during a preflight briefing. A facility may issue a NOTAM for the impacted timeframe after giving permission to a remote pilot to operate in controlled airspace, if appropriate. NOAA requested more details about requirements for civil UAS operated in the Mode C veil. In response, the FAA notes that operations conducted under part 107 do not need to comply with part 91 unless explicitly directed by part 107. The transponder requirement in the mode C veil (14 CFR part 91.215(b)(2)) is not required of part 107 operations.
NAFI asked what radio station license a small UAS operator would use on the aviation radio spectrum. In response, the FAA notes that licensing of radio stations is outside of its jurisdiction. The pertinent FCC guidance can be found in form 605 Schedule C (https://transition.fcc.gov/Forms/Form605/605c.pdf).
Several commenters, including the American Association of Airport Executives, the Hillsborough County Aviation Authority, and the Metropolitan Airports Commission, suggested that the FAA require remote pilots wishing to operate in class B, C, D, or E airspace to also notify the appropriate airport operator. The City and County of Denver, Colorado, and the City of Phoenix Aviation Department added that UAS operators should be required to seek authorization from both ATC and the airport operator at least two full business days prior to small UAS operations in controlled airspace.
An airport operator does not have responsibility for air traffic or activities outside airport property. The FAA has been tasked with integrating UAS operations into the NAS, and notes that manned aircraft do not have a corresponding requirement to notify airport management. The ATC facility is the proper focal point for approval and notification for small UAS operations in controlled airspace under this rule.
The FAA does not agree that remote pilots must seek permission from an ATC facility at least two full business days prior to the small UAS operations. As discussed previously, the timeframe for ATC to process permission requests will vary based on the ATC facility, the airspace, and the small UAS operation. In some instances it may take less than two full business days to process a permission request and, as such, a requirement to submit the permission request two days in advance would be unnecessarily burdensome. The Professional Helicopter Pilots Association said operations in class B airspace should not be allowed without a transponder for operation above at least 200 feet AGL. Because part 107 operations are constrained to visual line of sight, they are confined to a limited area known to ATC. Requiring a transponder in class B airspace for all operations over a certain altitude would place a burden on the small UAS operation that might not provide any additional safety because all manned traffic (except under certain SFRA procedures).
As it pertains to this discussion, Special Flight Rules Areas are areas of tightly constrained altitude and path where VFR aircraft can traverse Class B airspace without receiving a clearance or talking to ATC.
The Human Factors and Ergonomics Society expressed concern that UAS might inadvertently enter class B airspace. ALPA was concerned about the ability of a small UAS pilot/operator to correctly identify specific airspace areas and make the correct determination of whether operations are permitted or must be coordinated with ATC. This risk remains unchanged regardless of the restrictions imposed on operating in class B airspace. Other than the inner surface areas, there are very few instances where the floor of class B airspace is less than 1,000 feet above ground level, and therefore a vertical intrusion would be rare. The lateral boundaries of Class B airspace can be easily ascertained and avoided with proper planning of the operation. Airspace configuration is a knowledge area that will be tested for remote pilot certification, and a remote pilot should be aware of proximity of the unmanned aircraft to more restrictive airspace. Remote pilot certificate holders will also be regularly tested on their knowledge of airspace configuration, either as part of their flight review (for part 61 pilot certificate holders) or when they take the recurrent knowledge test (for non-part-61 certificate holders). In addition, applicants for a remote pilot certificate who do not hold a part 61 pilot certificate will be required to pass an initial aeronautical knowledge test that includes knowledge of airspace, airspace operating requirements, and the use of aeronautical charts. Pilots who hold a part 61 pilot certificate with an aircraft category and class rating will not have to take the initial aeronautical knowledge test, but they will have acquired the pertinent knowledge in order to obtain their part 61 pilot certificate.
b. Operations in Class A airspace
The NPRM proposed prohibiting small UAS operations in Class A airspace. Class A airspace starts at 18,000 feet mean sea level and extends up to 60,000 feet.111 This rule will not adopt the proposed prohibition because a small unmanned aircraft will be unable to access Class A airspace without violating the other operational restrictions of part 107. The Mid-Atlantic Aviation Partnership, Crew Systems, and three individual commenters questioned the need for specifically prohibiting operations in Class A airspace. One of the individual commenters did not have an objection to the proposed restriction, but stated that the other operational restrictions in the NPRM would make it impossible to operate in Class A airspace. Another individual commenter pointed out that the only location where an operation could meet all of the operational restrictions proposed in the NPRM and still be in Class A airspace is near the summit of Mt. McKinley. This commenter suggested that an explicit restriction on Class A airspace operations was unnecessary, as no one would bother to carry a small UAS up a mountain in order to fly it.
The FAA agrees with the commenter who stated that other operational restrictions in the NPRM would make it impossible to operate in Class A airspace. Title 14 CFR section 71.33(b) designating Class A airspace in Alaska specifically excludes the airspace less than 1,500 feet above the surface of the earth. This eliminates the possibility of a small UAS operating under part 107 from reaching Class A airspace given the altitude limitations of the rule. Consequently, this rule will not adopt the proposed Class A airspace restriction.