The FAA has issued its long awaited final rule regarding the certification and commercial operation of small unmanned aircraft systems (UAS) in the U.S. National Airspace System. Once effective, the rule will allow certain operations of small UAS without the need for aircraft airworthiness certification, an operating exemption, or a certificate of waiver or authorization (COA). The final rule does the following:

  1. adds a new Part 107 to Title 14 of the Code of Federal Regulations (the requirements of 14 C.F.R. Part 107 will generally replace the airworthiness provisions of Part 21, the airman certification provisions of Part 61, the operating limitations of Part 91, and the external load provisions of Part 133 for small UAS; Part 107 will not apply to: (a) air carrier operations; (b) international operations; (c) public aircraft operations; (d) certain model aircraft; and (e) moored balloons, kites, amateur rockets, and unmanned free balloons);
  2. allows current holders of a Section 333 exemption to either continue operating under the terms of their exemption rather than under Part 107 or conduct operations under Part 107 as long as their type of operation complies with the requirements of Part 107 (when Section 333 exemptions are due for renewal, the FAA will consider whether renewal is necessary for those exemptions whose operations are within the operational scope of Part 107, including those operations that qualify for a waiver under Part 107);

    Aircraft Operational Specifications

  3. establishes an aircraft weight limit for “small UAS” of less than 55 pounds, including payload;
  4. limits the maximum groundspeed of UAS operations to 100 mph (87 knots);
  5. limits the maximum altitude of UAS operations to 400 feet above ground level (AGL) or, if higher than 400 feet AGL, requires the UAS to remain within 400 feet of a structure;
  6. requires a UAS to be operated within a minimum weather visibility of three miles from its control station;
  7. limits small UAS operations to daylight and civil twilight times (defined as “30 minutes before official sunrise to 30 minutes after official sunset, local time”) with appropriate collision lighting;
  8. confirms that small UAS operating under Part 107 will not be required to obtain an airworthiness certificate and there will be no airworthiness standards or type certificate data sheet that will be issued for small UAS design;

    Operational Requirements

  9. requires each person operating a UAS to maintain vigilance so as to “see and avoid other aircraft” to avoid collision;
  10. limits small UAS operations to confined areas of operation;
  11. prohibits small UAS from being operated over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle;
  12. requires UAS to yield right of way to other aircraft;
  13. does not allow a “first-person view camera” to be used to satisfy the “see-and-avoid” requirement, but allows it to be used as long as the “see-and-avoid” requirement is satisfied in other ways;
  14. allows UAS operations in Class B, C, D and E airspace as long as permission is obtained from the nearest air traffic control (ATC) station;
  15. allows UAS operations in Class G airspace without having to first obtain ATC permission;
  16. prohibits UAS from being operated from a moving aircraft, or from being operated from a moving vehicle unless the operation is over a sparsely populated area;
  17. prohibits careless or reckless UAS operations;
  18. prohibits UAS from carrying hazardous materials;
  19. requires foreign-registered small UAS operated under Part 107 to also satisfy the requirements of 14 C.F.R. Part 375 (also requires a person who does not satisfy U.S. citizenship requirements to seek authority under Part 375 before conducting transportation of property for compensation or hire using UAS);
  20. allows persons to conduct UAS operations outside of the United States, provided they seek and obtain the proper authorization from the requisite foreign civil aviation authority (remote pilots wishing to conduct operations over another country’s airspace should review that country’s statutes, regulations, and guidance for clarification about how to operate in its airspace);
  21. restricts UAS operations to the land areas, internal waters, and the territorial sea of the United States (U.S. flight information regions that are more than 12 nautical miles from the U.S. coast do not satisfy these criteria, and Part 107 will not apply to operations in those areas; the FAA envisions that UAS operations in international and foreign airspace will be handled in a future FAA rulemaking);
  22. allows external load operations if the object being carried by the UAS is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft;
  23. allows the transportation of property for compensation or hire provided that the operations are conducted within a confined area (within visual line of sight (VLOS) to a circle with only about a 1-mile radius around the remote pilot-in-command (PIC), depending on the visibility conditions at the time of the operation) and in compliance with the operating restrictions of Part 107 and as long as (a) the aircraft, including its attached systems, payload and cargo, weighs less than 55 pounds total; (b) the flight is conducted within VLOS and not from a moving vehicle or aircraft; and (c) the flight occurs wholly within the bounds of a state and does not involve transport between (i) Hawaii and another place in Hawaii through airspace outside Hawaii; (ii) the District of Columbia and another place in the District of Columbia; or (iii) a territory or possession of the United States and another place in the same territory or possession;
  24. prohibits individuals or corporations operating UAS from acting as “air carriers” to engage in “air transportation” as those terms are defined in 49 U.S.C. § 40102;
  25. prohibits remote PICs from offering or conducting “air transportation,” in which goods move across state or national borders;
  26. provides that any waivers that the FAA may grant to the VLOS provisions of Part 107 will not allow the UAS operation to transport property for compensation or hire beyond VLOS;

    Pilot-in-Command and Visual Observer Requirements

  27. replaces the proposed crewmember position of “operator” and instead establishes a PIC position, who will have the final authority and responsibility for the operation and safety of a small UAS operation conducted under Part 107;
  28. requires a PIC to either hold a “remote pilot airman certificate with a small UAS rating” or be under the direct supervision of a person who holds a remote pilot certificate;
  29. requires that in order for a PIC to qualify for a remote pilot certificate, he/she must: (a) 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; (b) be vetted by the Transportation Security Administration; and (c) be at least 16 years of age;
  30. requires a PIC as the person manipulating the flight controls of a small UAS to maintain VLOS of the UAS at all times during operations (alternatively, the UAS must remain within VLOS of the visual observer (VO)), and requires the UAS to remain close enough to the PIC and the person manipulating the flight controls so that they are capable of seeing the UAS with vision unaided by any device other than corrective lenses;
  31. allows Part 61 pilot certificate holders to obtain a temporary remote pilot certificate immediately upon submission of an application for a permanent certificate (other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting (the FAA believes that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a complete remote pilot certificate application));
  32. requires foreign-certificated UAS pilots to obtain an FAA-issued remote pilot certificate with a small UAS rating;
  33. requires a remote PIC to (a) make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept by the FAA; (b) report to the FAA within 10 days of any operation that results in serious injury, loss of consciousness, or property damage of at least $500; (c) conduct a preflight visual and operational inspection to ensure that safety-pertinent systems are properly functioning and check the communications link between the control station and the UAS to ensure the small UAS is in a condition for safe operation; and (d) ensure that the small UAS complies with the FAA’s existing registration requirements specified in 14 C.F.R. § 91.203(a)(2);
  34. allows a remote PIC to deviate from the provisions of Part 107 in order to respond to an emergency, which the FAA defines as “an unexpected and unforeseen serious occurrence or situation that requires urgent, prompt action” (a remote PIC may deviate from these requirements in response to an in-flight emergency, but will be required, upon FAA request, to submit a written report to the FAA explaining the deviation);
  35. allows the person manipulating the flight controls of a small UAS to be augmented by another person during operation (the person manipulating the flight controls may safely transfer the controls to another person during flight as long as the transfer does not violate the operational provisions of Part 107 and a remote PIC is designated);
  36. allows the remote PIC (who will be a certificated airman) to supervise another person’s manipulation of a small UAS’s flight controls (a person who receives this type of supervision from the remote PIC will not be required to obtain a remote pilot certificate to manipulate the controls of a small UAS as long as the remote PIC possesses the ability to immediately take direct control of the small UAS);
  37. provides for the optional use of a VO (but not required);
  38. prohibits a remote PIC or VO from piloting more than one UAS at a time; and
  39. prohibits a person from operating a small UAS 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.

Certificate of Waiver Requirements

The final rule also provides a “waiver mechanism” under 14 C.F.R. § 107.200 to allow individual UAS operations to deviate from some of the operational restrictions of the rule if the FAA finds that the proposed operations can be safely conducted under the terms of a certificate of waiver (most of the restrictions discussed above are waivable if the applicant is able to demonstrate that his or her operation can be safely conducted under the terms of the waiver). To obtain a certificate of waiver, an applicant will be required 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 estimates that the time required for it to make a determination regarding waiver requests will vary based on the “complexity of the request.” The FAA stated that 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. Certificates of waiver may include additional conditions and limitations designed to ensure that the small UAS operation can be conducted safely. The FAA anticipates that the waiver process will serve as a bridging mechanism for new and emerging technologies, allowing the FAA to permit testing and use of those technologies, as appropriate, before a future rulemaking is undertaken. The FAA plans to make an online portal available to those applying for waivers.

Privacy Issues

The final rule does not specifically address privacy issues relating to the use of UAS, and the FAA does not regulate how UAS gather data on people or property. However, the FAA plans to provide all UAS operators with recommended privacy guidelines as part of the UAS registration process. The FAA plans to also educate all commercial UAS PICs on privacy during their pilot certification process and plans to issue new guidance to local and state governments on drone privacy issues. The FAA stated that all UAS operators should check local and state laws before gathering information through remote sensing technology or photography.

Non-Commercial or Hobbyist UAS Operations

The new Part 107 regulations will not apply to model aircraft and hobbyists who operate UAS for non-commercial purposes. Model aircraft operators are required to comply with all of the criteria specified in Section 336 of Public Law 112-95 (which will now be codified in 14 C.F.R. Part 101), including the requirement that they operate UAS only for hobby or recreational purposes.

The final rule states that it is effective 30 days from its publication in the Federal Register.