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June 30, 2016

FAA Publishes New "Part 107" Regulating Commercial Unmanned Aircraft

Manufacturers Should Consider Advisory Circular 107-2

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On June 21, 2016, the FAA finally issued its long-awaited rules for civil small unmanned aircraft systems (sUAS). Part 107 sets forth rules for pilot certification and civil/commercial unmanned aircraft (UA) operations, but does not impose any airworthiness or certification requirements for manufacturers of sUAS. Nevertheless, the 624-page rule-making publication and a concurrently issued Advisory Circular contain important guidance for sUAS manufacturers.

Unmanned aircraft continue to be limited to those weighing less than 55 pounds fully loaded at take-off. The only explicit equipment requirements relate to anti-collision lights if the vehicle is to be operated in low-light (civil twilight) conditions, and registration marking. Interestingly, the FAA's definition of daytime flight (civil twilight is 30 minutes before official sunrise and 30 minutes after official sunset) for UAS is different than night flight for other full scale aircraft operations (1 hour after sunset and 1 hour before sunrise). The FAA rejected proposals for design requirements, including, among others, conspicuity, electronic identification and power/fuel reserve capacity.

Part 107 requires that 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 certificated person. To obtain the certificate, UAS operators are required to be at least 16 years old, understand English, be vetted by Transportation Security Administration, and pass an aeronautical knowledge test. Pilots holding a current Part 61 pilot certificate are exempt from the aeronautical knowledge test and the TSA vetting, but will be required take a short online training course specific to UAS. Operators are also required to report an accident that involves a serious injury (AIS level 3 or more) or loss of consciousness, or property damage in excess of $500. 

Part 107 provides that UA must be kept within the visual line of sight of the remote pilot in command, with the assistance of a visual observer if available. Part 107 allows a UA to be operated within the VLOS of the visual observer if the remote pilot in command cannot maintain VLOS. Remote pilots are allowed to employ “first person view” capability with the use of on-UA video, but are prohibited from using that technology to satisfy the visual line of sight (VLOS) rule. UA are subject to a 100 mph speed limit, and an altitude limit of 400 feet above the ground unless the UA stays within 400 feet of a structure.

UA may not be operated over people not participating in the operation unless they are under a structure or within a stationary vehicle, significantly relaxing the 500-foot buffer zone between UA operation and non-participating persons the FAA often imposed in Section 333 waivers. UA may be operated from a moving ground-based vehicle or water-borne boat in sparsely populated areas, provided the UA is not being used to transport property for hire (e.g., package delivery). And UA operations are limited to daylight and twilight conditions. Many of these operational restrictions may be waived upon application.

The FAA decided against imposing a fixed operational boundary around airports in favor of simply prohibiting operation of UA in certain airspace (Class B, Class C, Class D and Class E airspace) designated for an airport without prior authorization from the local Air Traffic Control. The rule otherwise allows UA operations around airports provided they do not interfere with “operations and traffic patterns at any airport, heliport, or seaplane base.”

Commercial operators and potential operators will no longer face the cumbersome task of applying for a Section 333 exemption to conduct commercial operations with their UAS – unless they want a waiver of one of the new rules. The rules allow commercial operators to continue relying on their Section 333 waiver until it expires. However, commercial operators should carefully review the scope of their existing waiver and determine whether Part 107 is sufficient to continue operations upon expiration, or whether to explore applying for a waiver of applicable Part 107 rules.

Part 107 allows commercial delivery operations, provided the dropping of an object from the UA does not create an “undue hazard to persons or property” below. Thus, Part 107 permits a properly licensed RPIC to operate a UA for commercial purposes without an additional commercial rating that is required for pilots of general aviation aircraft. The rule does not allow transportation of hazardous materials, and further limits delivery flights to in-state operations, as the rule does not allow “interstate” transportation activities which would trigger different rules for air carrier operations. The RPIC, or alternatively the visual observer, must be able to see the UA during all phases of flight, further hampering package delivery operations. Indeed, the FAA recognized that this VLOS rule effectively limits UA operations to about 1 mile from the RPIC. Operators will also note that the VLOS rule is not waivable for commercial delivery operations.

The FAA is particularly concerned about unmanned aircraft (UA) interfering with manned aircraft and creating potential hazards to persons and property on the ground. The FAA recognized that UA manufacturers and suppliers have equipped UAS with automated technologies which “sense and avoid” objects, prevent entering restricted airspace, and return the UAS to the remote pilot in command (RPIC) in the event of a low battery/fuel. Yet, the FAA has indicated it does not have sufficient data at this time to make these technologies part of rules regarding aircraft certification. In addition, the FAA noted “rapidly evolving technologies could face obsolescence by the time [an airworthiness] certification process is complete.”

However, the FAA may consider a certification process for a UAS incorporating these technologies in conjunction with requests for waivers from certain Part 107 operational restrictions. For example, the FAA stated it “may consider airworthiness certification of the small UAS as mitigation to support an application for waiver that would allow a small unmanned aircraft to operate over unprotected non-participants.” And the FAA has made clear that future rule-making may account for technology advancements as more data becomes available.

Although there was a significant push by some commentators to impose instructional requirements upon manufacturers, Part 107 places the burden of ensuring the UA is in safe operating condition solely upon the RPIC. However, “[w]hile the FAA will not mandate that manufacturers provide instructions to determine if the aircraft is in a condition for safe operation, the agency encourages this practice.”

Advisory Circular 107-2 encourages manufacturers to provide “operational and performance information that contains the operational performance data for the aircraft such as data pertaining to takeoff, climb, range, endurance, descent, and landing.” Understanding this information is important for the RPIC “to be able to make practical use of the aircraft’s capabilities and limitations,” which is essential for safe and efficient operation. Consequently, although the FAA is not requiring manufacturers to publish standardized performance data, including such information with operation manuals will make it easier for RPICs to comply with Part 107, and may reduce RPIC reliance on potentially unreliable or outdated information from third parties.

Bowman and Brooke's Aviation Litigation group will continue to keep you informed. We expect the FAA will continue to evaluate field data and technology developments and issue further rulemaking as the industry and the applications for UAS expand.

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