Small Unmanned Aircraft Systems Finally Approved for Takeoff

The Federal Aviation Administration (FAA) has published the much-anticipated final rule regarding small, i.e., less than 55 pounds, unmanned aircraft systems (UAS), to be codified at 14 C.F.R. Part 107. Pursuant to the FAA Modernization and Reform Act of 2012, Congress issued a mandate to the FAA that UAS be integrated into national airspace by September 2015, and the aviation industry waited with great interest for the FAA to issue regulations that would allow for such integration.  This long-awaited final rule provides a regulatory framework finally authorizing commercial small UAS operations to commence.  The final rule follows the FAA’s proposed rule published in February 2015 and the over 4,600 comments received on the proposed rule.

The FAA confirmed its position, controversial to some, that a UAS is indeed an “aircraft” within the FAA’s regulatory purview, as held by the National Transportation Safety Board (“NTSB”) in Administrator v. Pirker. Under existing Federal Aviation Regulations, defining UAS as aircraft has meant that the UAS itself must be registered and have an airworthiness certificate and the operator must also possess an airman certificate. The FAA recognizes that such requirements are an undue burden on UAS operations and has permitted UAS operators to apply for Section 333 exemption from the airworthiness requirements. The regulations under Part 107 will now take over the Section 333 exemption process.

Part 107 will require a small UAS operator to hold a “remote pilot” airman certificate with a small UAS rating, which can be obtained by passing an initial aeronautical knowledge test at an FAA-approved testing center; or having or obtaining a Part 61 pilot’s certificate (other than student pilot) together with completing an online training course for the small UAS rating. The cost of obtaining a remote pilot certificate is $150.

A person currently operating a small UAS for commercial purposes under a Section 333 exemption will not need to immediately comply with Part 107. Section 333 exemption holders may continue operating under the terms and conditions of their current exemption until expiration or may begin conducting operations under Part 107. Upon expiration, the FAA will assess whether renewal of the Section 333 exemption is necessary.

Additionally, under Part 107 FAA airworthiness certification is not required; only a preflight safety check. Liability insurance also is not required. Because small UAS operations do not qualify as air transportation by an air carrier, the FAA lacks authority to require operators to obtain liability insurance. Nevertheless, the FAA encourages that “prudent” pilots should obtain insurance, as they may be held liable for any injury or damage that arises from their operations.

Should any accident occur during operation of small UAS under Part 107, the FAA requires that the operator report the accident within 10 days of its occurrence, if it results in a serious injury or damage to property (other than the UAS itself) in excess of $500.

The operational restrictions under Part 107 limit small UAS operations to daylight and civil twilight operations with appropriate anti-collision lighting; confined areas of operation; and visual line-of-sight operations.

These operational limitations demonstrate an incremental approach taken by the FAA to integrate UAS into national airspace, first authorizing UAS operations that pose the least amount of risk. Thus, the FAA has reserved regulations allowing for UAS operations that pose greater amounts of risk, such as beyond visual line-of-sight (BVLOS), for another day.

In response to the proposed rule back in February, many stakeholders, including the NTSB and members of the industry like Google, called for regulations dealing with small UAS as soon as possible, arguing that any protracted rulemaking process would delay the societal benefits associated with small UAS and, in any event, would not be able to adequately account for the constantly evolving technological developments in the UAS industry. Others, however, expressed concern that safety would be sacrificed for expediency and urged the FAA to extend the rulemaking timeline to provide for regulation that encompasses all manner of UAS operation, including UAS that are the size of commercial aircraft.  Still others, such as Amazon, criticized a lack of flexibility taken by the FAA’s proposed incremental approach as impeding the full benefits that UAS operations can offer by prohibiting, for example, BVLOS operations.  Such concerns carry weight with commercial UAS operations underway in other countries, such as Canada, the United Kingdom, Japan and Australia.  The FAA acknowledged Amazon’s (and others’) concerns and has adopted a process for operators to apply for a certificate of waiver, which allows for deviation from the operational limitations of Part 107 if the FAA finds that the proposed operation can be safely conducted.  Waivers will be granted on a case-specific basis.

To obtain a certificate of waiver, an applicant must submit a request containing a complete description of the proposed operation and a justification that the proposed operation can be safely conducted. Thus, for example, the visual line-of-sight or daytime only requirements may be waived if the operator can demonstrate that certain technology, such as geofencing or perhaps technology that does not yet exist, will ensure that the operation can be safely conducted outside the current operational parameters for small UAS.

Although the final rule will undoubtedly raise controversy, it is likely to result in a significant economic boost for U.S. commercial UAS operators, particularly with the certificate of wavier process in place.