Updates to UAS Law 2017

Updates to UAS law 2017

by

Sarah Nilsson, Ph.D., J.D.

Background on Commercial Operations

The Federal Aviation Administration (FAA) continues to regulate commercial small unmanned aircraft system (sUAS) operations (those weighing less than 55 pounds) using 14 Code of Federal Regulations(CFR) Part 107 effective August 29, 2016[1], and priorexisting Section 333 exemptions of the FAA Modernization and Reform Act of 2012 (FMRA).[2]The caveat here is that an operator holding a valid (non expired) Section 333 exemption may choose to continue to operate under the exemption until it expires or may switch to 14 CFR Part 107, but may not pick and choose parts of bothin a given operation.[3] Furthermore, a Section 333 exemption is still required to operate UAS weighing more than 55 pounds, until the FAA creates further regulations for large UAS.[4]

14 CFR Part 107 requires that a person operating commercially, which is either for compensation or hire, or in furtherance of a business, first obtain a Remote Pilot in Command (PIC) Certificate which is valid for 2 years.[5] This certificate may be obtained in one of two ways: (1) If a person is already an FAA licensed manned pilot who has logged a current biennial flight review, then all that is required is the completion of a two-hour online course with the FAA Safety Team,[6] followed by a completed onlineIntegrated Airman Certification and Rating Application (IACRA) application.[7] (2) If a person has never held an FAA pilot certificate then a complete and thorough course of study is required in order to learn the intricacies of the National Airspace System (NAS) and how to operate UAS safely within it. The person must then achieve a successful passing score (70%) on a written knowledge test proctored at an official testing center, before completion of the online IACRA application. In this latter case, a background check through the Transportation Security Administration (TSA) will have to be performed before the FAA issues the Remote PIC certificate.[8]

What follows next is a brief summary of the regulations of 14 CFR Part 107 organized by (1) Operational Limitations; (2) Remote PIC Certification and Responsibilities; (3) Aircraft Requirements; and (4) Model Aircraft.[9]

(1) Operational Limitations:

- Unmanned aircraft must weigh less than 55 lbs. (25 kg).

- Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer.

- At all times the small unmanned aircraft must remain close enough to the remote pilot in command and the person manipulating the flight controls of the small UAS for those people to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses.

- Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle.

- Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting.

- Must yield right of way to other aircraft.

- May use visual observer (VO) but not required.

- First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways.

- Maximum groundspeed of 100 mph (87 knots).

- Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure.

- Minimum weather visibility of 3 miles from control station.

- Operations in Class B, C, D and E airspace are allowed with the required ATC permission.

- Operations in Class G airspace are allowed without ATC permission.

- No person may act as a remote pilot in command or VO for more than one unmanned aircraft operation at one time.

- No operations from a moving aircraft.

- No operations from a moving vehicle unless the operation is over a sparsely populated area.

- No careless or reckless operations.

- No carriage of hazardous materials.

- Requires preflight inspection by the remote pilot in command.

- A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS.

- Foreign-registered small unmanned aircraft are allowed to operate under part 107 if they satisfy the requirements of part 375.

- External load operations are allowed if the object being carried by the unmanned aircraft is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft.

- Transportation of property for compensation or hire allowed provided that-

- The aircraft, including its attached systems, payload and cargo weigh less than 55 pounds total;

- The flight is conducted within visual line of sight and not from a moving vehicle or aircraft; and

- The flight occurs wholly within the bounds of a State and does not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession.

- Most of the restrictions discussed above are waivable if the applicant demonstrates that his or her operation can safely be conducted under the terms of a certificate of waiver.[10]More details regarding the waiver process follow later in the paper.

(2) Remote PIC Certification and Responsibilities:

- Establishes a remote pilot in command position.

- A person operating a small UAS must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command).

- To qualify for a remote pilot certificate, a person must:

- Demonstrate aeronautical knowledge by either:
 Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center; or
 Hold a part 61 pilot certificate other than student pilot, complete a flight review within the previous 24 months, and complete a small UAS online training course provided by the FAA

- Be vetted by the Transportation Security Administration.

- Be at least 16 years old.

- Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application.

- Until international standards are developed, foreign-certificated UAS pilots will be required to obtain an FAA-issued remote pilot certificate with a small UAS rating.

A remote pilot in command must:

- Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the rule.

- Report to the FAA within 10 days of any operation that results in at least serious injury, loss of consciousness, or property damage of at least $500.

- Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is in a condition for safe operation.

- Ensure that the small unmanned aircraft complies with the existing registration requirements specified in § 91.203(a)(2).
A remote pilot in command may deviate from the requirements of this rule in response to an in-flight emergency.[11]

(3) Aircraft Requirements:

- FAA airworthiness certification is not required. However, the remote pilot in command must conduct a preflight check of the small UAS to ensure that it is in a condition for safe operation.[12]

(4) Model Aircraft:

- Part 107 does not apply to model aircraft that satisfy all of the criteria specified in section 336 of Public Law 112-95.

- The rule codifies the FAA’s enforcement authority in part 101 by prohibiting model aircraft operators from endangering the safety of the NAS.[13]

Waiver Process

As previously mentioned, here is a brief explanation of the waiver process. 14 CFR Part 107 includes the option to apply online for a certificate of waiver, which allows for a small UAS operation to deviate from certain operating rules if the FAA finds that the proposed operation can be performed safely. Processing time depends on the complexity of the request, but should take no longer than 90 days.[14]

The nine waivable sections of Part 107 are: (1) Operation from a moving vehicle or aircraft (§ 107.25)*; (2) Daylight operation (§ 107.29); (3) Visual line of sight aircraft operation (§ 107.31)*; (4) Visual observer (§ 107.33); (5)Operation of multiple small unmanned aircraft systems (§ 107.35); (6) Yielding the right of way (§ 107.37(a)); (7) Operation over people (§ 107.39); (8)Operation in certain airspace (§ 107.41); and (9)Operating limitations for small unmanned aircraft (§ 107.51).

*No waiver of this provision will be issued to allow the carriage of property of another by aircraft for compensation or hire.[15]

An application for a Certificate of Waiver, issued in accordance with 14 CFR § 107.200, must provide justification that the operation can be safely conducted by satisfying certain performance-based standards.[16]These performance-based standards also list exactly what the FAA needs the operator to do before they consider a waiver. Operators must make waiver requests at Without a detailed description of how the applicant intends to meet these standards, the FAA cannot determine if a waiver is possible. Operators should select only the Part 107 regulations that need to be waived for the proposed operation. Applicants also should respond promptly to any request made by the FAA for additional information. If the agency does not receive a response after 30 days, it will withdraw the request.[17]

Operators must apply for airspace authorizations on the same web page. The required information is spelled out in the waiver/airspace authorization instructions document(PDF).[18]

Background on Public Operations

Public entities may choose to operate either under 14 CFR Part 107 or utilize a Certificate of Waiver or Authorization(COA).[19]A COA is an authorization issued by the Air Traffic Organization to a public entity for a specific unmanned activity. Response time by the FAA is approximately 60 days from the time a completed application is submitted online ( Applicants must obtain an account in order to access the online system.[20]

Background on Recreation or Hobby (Model Aircraft) Operations

Advisory Circular (AC) 91-57A - Model Aircraft Operating Standards - Including Change 1 continues to provide guidance to persons operating UnmannedAircraft (UA) for hobby or recreation purposes meeting the statutory definition of "model aircraft" contained in Section 336 of Public Law 112-95, the FAA Modernization and Reform Act of 2012. This AC describes means by which model aircraft may be operated safely in the National Airspace System (NAS).[21]

Under the Special Rule for Model Aircraft (Public Law 112-95 Section 336), operators must:

- Fly for hobby or recreational purposes only

- Follow a community-based set of safety guidelines

- Fly the UAS within visual line-of-sight

- Give way to manned aircraft

- Provide prior notification to the airport and air traffic control tower, if one is present, when flying within 5 miles of an airport

- Fly UAS that weigh no more than 55 lbs. unless certified by a community-based organization

- Register the aircraft (UAS over 0.55 lbs. and less than 55 lbs. can be registered online at registermyuas.faa.gov; UAS 55 lbs. or greater must be registered through the FAA's paper-based process).[22]

Registration

Federal law requires that all aircraft (which includes UAS and radio/remote controlled aircraft) flown outdoors must be registered with the FAA and marked with a registration number. UAS weighing more than 0.55 pounds and less than 55 pounds may register online at or by using the legacy paper based registration process. The weight limit includes everything that is on board or otherwise attached to the aircraft at the time of takeoff.[23] In order to apply for registration a person must be: (1) 13 years of age or older (if the owner is less than 13 years of age, a person 13 years of age or older must register the small unmanned aircraft) and (2) a U.S. citizen or legal permanent resident. Visiting foreign nationals must register their UAS upon arrival in the United States (online registration serves as a certificate of ownership).Registration costs $5 and is valid for 3 years.[24]

Airspace

Anyone operating a UAS is responsible for flying within FAA guidelines and regulations. Operators should be aware of where it is and is NOT safe to fly.[25] First, a person must check Temporary Flight Restrictions (TFRs) that define a certain area of airspace where air travel is limited because of a temporary hazardous condition, such as a wildfire or chemical spill; a security-related event, such as the United Nations General Assembly; or other special situations. The text of the actual TFR contains the details about the restriction, including the size, altitude, time period that it is in effect, and what types of operations are restricted and permitted.To view the list of active TFRs visit

The airspace surrounding Washington DC is the most restricted in the country. Flying your drone is illegal in any of the restricted airspace above the Nation's capital.[27]

Flying UAS in and around stadiums is prohibited starting one hour before and ending one hour after the scheduled time of any of the following events: (1) Major League Baseball; (2) Major League Football; (3) NCAA Division One Football; and (4) Nascar Sprint Cup, Indy Car, and Champ Series races.Specifically, UAS operations are prohibited within a radius of three nautical miles of the stadium or venue.[28]

It is illegal to fly your UAS in or around a wildfire firefighting operation. Recreational operators are required to give notice for flights within five miles of an airport to BOTH the airport operator and air traffic control tower, if the airport has a tower. However, recreational operations are not permitted in Class B airspace around most major airports without specific air traffic permission and coordination.[29]

The FAA continues to lead a public outreach campaign, called the No Drone Zone, to promote safe and responsible use of unmanned aircraft systems.[30]The National Capital Region is governed by a Special Flight Rules Area (SFRA) within a 30-mile radius of Ronald Reagan Washington National Airport, which restricts all flights in the greater DC area.The SFRA is divided into a 15-mile radius inner ring and a 30-mile radiusouter ring. Flying an unmanned aircraft within the 15-mile radius innerring is prohibited without specific FAA authorization.Flying a UAS for recreational or non-recreational use between 15 and 30 miles from Washington, D.C. is allowed under these operating conditions: (1) Aircraft must weigh less than 55 lbs. (including any attachments such as a camera); (2) Aircraft must be registered and marked; (3) Fly below 400 ft.; (4) Fly within visual line-of-sight; (5) Fly in clear weather conditions; and (6) Never fly near other aircraft.The airspace around Washington, D.C. is more restricted than in any other part of the country. Rules put in place after the 9/11 attacks establish "national defense airspace" over the area and limit aircraft operations to those with an FAA and TSA authorization. Violators face stiff fines and criminal penalties.[31]

B4UFLY is an easy-to-use smartphone app available to both android and iPhone users that helps unmanned aircraft operators determine whether there are any restrictions or requirements in effect at the location where they want to fly. Key features of the B4UFLY app include: (1) a clear "status" indicator that immediately informs the operator about the current or planned location. For example, it shows flying in the Special Flight Rules Area around Washington, D.C. is prohibited; (2) information on the parameters that drive the status indicator; (3) a "Planner Mode" for future flights in different locations; and (4) informative, interactive maps with filtering options.[32]

Preemption

A highly controversial issue in this country today (and for the past few years for that matter) is the division of power over the national airspace. On the one hand, the FAA was tasked by Congress with regulating the safe and efficient use of the airspace over our country and out to 12 miles off the coast of the contiguous U.S. As mentioned earlier in this paper, the FAA uses Section 333 Exemptions, COAs, 14 CFR Part 107 and model aircraft rules, among others to accomplish this task.

On the other hand, states and local governments owe an obligation to their constituents under their police power to ensure their safety, health and welfare and this includes resolving privacy and trespass issues among others. The tug of war between the FAA’s regulations and state and local laws occurs because they are governing essentially the same aircraft. Further compounding the issue is the fact that these various laws, of which there are hundreds, sometimes conflict. This then calls into question the subject of federal preemption.

On December 17, 2015, the FAA, Office of the Chief Counsel, released a State and Local Regulation of UAS Fact Sheet.[33]This fact sheet was highly necessary as almost all states were proposing and passing laws.