The FAA has issued its long-awaited Notice of Proposed Rulemaking (NPRM) for the operation and certification of small UAS (i.e., weighing less than 55 lbs. total at the time of takeoff) for non-hobby and non-recreational purposes. The proposed new Part 107 would not apply to the following small UAS operations: (1) air carrier operations (including the transport of property for compensation); (2) external load and towing operations; (3) international operations; (4) foreign-owned aircraft that are ineligible to be registered in the United States; (5) public aircraft; (6) certain model aircraft; and (7) moored balloons, kites, amateur rockets, and unmanned free balloons. 

Many of the major provisions of the FAA’s proposed new Part 107 are the same as, or very similar to, conditions and limitations that the FAA has previously imposed on small UAS commercial operations in Section 333 exemptions (e.g., maintain visual line of sight, three miles visibility, daytime operations only, preflight inspection of the UAS is required, give right-of-way to all manned aircraft, airspace restrictions if operated in certain classes of airspace, etc.). 

The NPRM also proposes some new and, in certain cases, less stringent requirements on such operations than have been imposed in Section 333 exemptions. For example, a visual observer is no longer a required crewmember. The proposed maximum altitude ceiling is 500 feet above ground level (AGL), not 400 feet as has been standard in most Section 333 exemptions. Another significant change is that “operators” of the UAS (known in Section 333 exemptions as the “pilot” or “pilot in command”) would not need to have a private pilot’s certificate or an airman medical certificate. Rather, the “operator” would need a UA Operator Certificate with a small UAS rating and would be able to self-certify as to his or her medical status. In order to obtain the UA Operator Certificate with a small UAS rating, the operator would need to pass an initial aeronautical knowledge test and a recurrent test every 24 months thereafter. The FAA would forward operator applicant’s information to the TSA for security checks as well. In addition, the NPRM proposes to require a five-minute battery reserve for all small UAS flights, instead of the 25-30% battery reserve imposed in several recent Section 333 exemptions. Importantly, the NPRM would not require airworthiness certification of the UAS. As part of the NPRM, the FAA is also considering a micro UAS classification for very lightweight (no more than 4.4 lbs.) UA, which would be subject to different, less stringent, requirements. 

Interested parties have 60 days from the date of the NPRM’s publication in the Federal Register to submit comments on the proposed rule. The FAA is expecting this NPRM to receive an unusually large volume of comments, and thus the final rule is not anticipated to issue for two years or more. During that period, the Section 333 exemption process will continue to be the primary avenue for obtaining an approval to conduct commercial small UAS operations.