Commercial UAS and Part 107

• Author: Timothy M. Ravich
• Profession: Lawyer
• Pages: 179-257

179

C 9

Commercial UAS

andPart107

On June 21, 2016, the FAA announced f‌i nal operational rules for civil and commer-

cia l us es of s mal l unm ann ed ai rcra ft s yste ms, r espon ding to in dust ry est imat es t hat

commercial drone operations could generate more than $82 billion for the U.S. economy

and create more than 100,000 new jobs over the next 10 years.1 e new rule is codif‌ied

at 14 C.F.R. Part 107 and took ef‌fect on August 29, 2016.

Under the f‌inal rule, the person actually f‌lying a drone must be at least 16 years old

and have a remote pilot certif‌icate with a small unmanned aircraft system (UAS) rating

or be directly supervised by someone with such a certif‌icate.2 To qualify for a remote

pilot certif‌icate, an individual must either pass an initial aeronautical knowledge test at a

knowledge testing center approved by the Federal Aviation Administration (FAA) or have

an existing nonstudent Part 61 pilot certif‌icate.3 e following are other key features of

the new f‌inal rule:4

t Safety regulations for unmanned aircraft drones weighing less than 55 pounds that

are conducting nonhobbyist operations.

t Requirements that pilots keep an unmanned aircraft within visual line of sight

(VLOS).

t Allowance of operations during daylight and during t wilight if the drone has anti-

collision lights.

1 F. A A ., Press Relea se—DOT and FA A Finalize Rules f or Small Unmanned Air craft System s, www.faa.gov/

news/press_re leases/news_ story.cfm?newsId=20515.

2 Id.

3 Id.

4 Id.

COMMERCIAL DRONE LAW

180

t Height and speed restrictions and other operational limits, such as prohibiting

f‌lights over unprotected people on the ground who are not directly participating

in operation.

t An (online) process to waive some restrictions if an operator proves the proposed

f‌light will be conducted safely under a waiver.

Finally, although the new rule does not specif‌ica lly deal with privacy issues arising f rom

the use of drones, the FAA has asserted that it is acting to address privacy considerations,

including building on the privacy “best practices” the National Telecommunications and

Information Administration published in May 2016 as the result of a year-long outreach

initiative with privacy advocates and industry.5

is chapter details the rules now applicable to small UAS (sUAS), including its back-

ground, policies, and regulatory history.

I. Notice of Proposed Rulemaking

and Micro UASRules

On February 15, 2015, the FAA proposed “a framework of regulations that would allow

routine use of certain small unmanned aircraft systems (‘sUAS’) in today’s aviation sys-

tem, while maintaining f‌lexibility to accommodate future technological innovations.”6

e FAA couched its proposal—a Notice of Proposed Rulemaking (NPRM)—in terms

of a safe ty r ule. A ppli cable to un mann ed ae rial vehi cles ( UAVs) weig hin g unde r 55 pou nds

conducting nonrecreational operations, the rule would limit f‌lights to daylight operations.7

Additionally, the proposed rule detailed height restrictions, operator certif‌ication, aircraft

registration and mark ing, and operational limits.8 Finally, the proposed rule would require

an operator to maintain VLOS of an sUAS and would allow, but not require, an opera-

tor to work with a visual observer who would maintain constant visual contact with the

aircraft.9

e 2015 NPRM maintained a di stinction between sUAS operations and model aircraft

operators, retaining the obligation of model aircraft operators to satisfy a ll of the criteria

specif‌ied in Sec. 336 of the FAA Modernization and Reform Act of 2012 (FMRA); (See

Chapter 5 supra), including the stipulation that f‌light occur only for hobby or recreational

5 N’ T.  I  A ., Voluntary Best Practices for UAS Privacy, Transparency, and Accountability,

www.ntia.doc.gov/f‌iles/ntia/publications/voluntary_best_practices_for_uas_privacy_transparency_and_accountability_0.pdf.

6 F. A  A., Regulations Will Facilitate Integration of Small UAS into U.S. Aviation System, www.faa.gov/

news/press_re leases/news_ story.cfm?newsId=18295.

7 Operation a nd Certif‌ic ation of Small Unma nned Aircra ft Systems, 80 Fed . Reg. 9,544 (proposed Feb. 23, 2015)

(to be codif‌ied at 14 C.F.R. pt. 107), w ww.gpo.gov/fdsy s/pkg/FR-2015-02-23/pdf/2015-03544.pdf. See also FAA

Releases Notice of Proposed Rulemaking for Small Unmanned Aircraft Systems (Mar. 25, 2015), www.jonesday.com/

FAA-Release s-Notice-of-Proposed-Ru lemaking-for-Sma ll-Unmanned-A ircraft-System s-03-04-2015/?RSS=true #_edn1.

8 Operation and C ertif‌ication of Smal l Unmanned Aircra ft Systems, 80 Fed. R eg. 9,544 (proposed Feb. 23, 2015) (to be

codif‌ied at 14 C.F.R. pt . 107), www.gpo.gov/fdsys/pk g/FR-2015-02-23/pdf/2015-03544.pdf.

9 Id.

Chapter 9: Commercial UAS and Part 107

181

purposes.10 Moreover, the proposed rules would not apply to government (i.e., public)

aircraft operations because the FAA expected that these government operations would

typically continue to actively operate under the Certif‌icate of Waiver or Authorization

(COA) process unless the operator opted to comply with and f‌ly under the new small UAS

regulations (see Chapter 6 supra).11

e proposed rule also envisioned and provided extensive discu ssion of the possibility of

a supplemental and more f‌lexible framework for “micro” UAS—those weighing less than

4.4 pounds.12 is classif‌ication would be based on advisory recommendations, as well

as approaches adopted in other countries that have a separate set of regulations for micro

UAS.13 In developing this micro UAS classif‌ication, the FAA examined sUAS policies

adopted in other countries, noting that each country ha d its unique aviation statutory and

rulemaking requirements, including unique economic, geographic, and airspace density

considerations.14 Can ada —as t he on ly Nor th A meri can n eigh bor to the Un ited State s wit h

a regulatory fra mework for sUAS—was a ready ex ample. e following chart su mmarizes

Transport Canada’s operational limitations for micro UAS and compares it with t he regu-

latory framework in the 2015 proposed rules, as well as the micro UAS classif‌ication that

the FAA initially considered.

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.