United States: Commercial Drone Operations Will Take Flight With FAA Final Rulemaking

Jennifer Nowak is an Associate and Joel Roberson is a Partner in Holland & Knight's Washington D.C. office

Earlier today, the FAA issued its highly-anticipated final rule authorizing the use of small unmanned aerial systems (UAS) for commercial uses. The final rule creates a new national framework for UAS operations in Part 107 under Title 14 of the Code of Federal Regulations, specifically dedicated to the regulation of small UAS weighing less than 55 pounds.

Although we are still reviewing the details, following are highlights addressing areas of interest for most commercial operators:

  • Effective date of final rule. The final rule will become effective in late August 2016, 60 days after formal publication in the Federal Register.
  • Requirement for pilot certificate. The final rule will allow individuals to fly small UAS without a FAA manned pilots license. Currently, commercial operations authorized by FAA under the Section 333 exemption process may only be conducted by pilots holding commercial, private, recreation, or sport pilot certificates (i.e., Part 61 certificates). Under the final rule, a Part 61 certificate is no longer required.

    • Those wishing to operate UAS for commercial purposes who do not hold a Part 61 certificate will need to obtain a remote pilot airman certificate with a small UAS rating. This is accomplished by taking a knowledge test that will be available at FAA-approved test centers located around the country. FAA indicated these test centers will be up and running by the implementation date in August.
    • Pilots that already have a Part 61 certificate will need to obtain a small UAS rating. This will require taking an online training course.
    • Pilots must be at least 16 years of age.
  • Operations over people. The final rule prohibits small UAS flights directly over people that are not participating in the operation.

    • Under current Section 333 exemption authority, operators are required to maintain a 500-foot buffer in order to ensure the UAS does not operate over non-participants. This buffer is not included in the final rule. Instead, a small UAS operator must avoid flying directly over people and maintain a necessary buffer to protect non-participants.
    • FAA announced that it would issue a separate rulemaking that will allow flights over people "soon." For more information about FAA's work on its separate rulemaking for flights over people, please see our April 6, 2016, alert.
  • Operational restrictions and potential for waivers. The final rule includes certain mandatory operational requirements, similar to those already in place under Section 333 exemptions, and identifies other requirements as waivable. The following operational restrictions apply:

    • Weight of UAS and any payload must be less than 55 pounds (mandatory)
    • Maximum altitude is 400 feet (Note: FAA initially proposed a maximum altitude of 500 feet, but has determined that safety concerns dictate a lower ceiling) (waivable)
    • Maximum speed is 87 knots (100 mph) (waivable)
    • Daytime operations only (waivable)
    • Visual line of sight only (waivable)
    • No operations from moving vehicle or aircraft (waivable)
  • Transportation of Property/Package Delivery. The final rule will allow transportation of property, but only if it is conducted intrastate, the UAS and its payload weigh less than 55 pounds and flight must be within visual line of sight.
  • Insurance. The final rule does not include a mandatory requirement to hold insurance for commercial operations. However, many commercial operators will want to secure insurance that includes UAS operations before flying.
  • Effect on Section 333 Exemptions and pending Exemptions. FAA acknowledges there is a backlog of thousands of applications for Section 333 exemptions, and is applying the following analysis to Section 333 authority and pending application for authority:

    • Existing Section 333 exemption holders: may continue to operate under exemptions until the final rule goes into effect in August. After the regulations go into effect, exemption holders can choose to operate under the new Part 107 or under their exemption(s).
    • Pending Section 333 exemption applications: FAA has been sifting through the backlog of thousands of applications and dividing them into three categories:

      • Requests for exemption for operations that will be allowed under Part 107. FAA has indicated that it will not be taking further action on these applications because the operations requested will be allowed under Part 107.
      • Requests for exemptions for operations that would be allowed under a waiver under the new Part 107 (such as closed set motion picture operations). FAA will move these applications directly into a waiver program without the applicant taking further action. A streamlined waiver process is being developed in order to issue these waivers as quickly as possible.
      • Requests for operations that are not waivable under the new Part 107 (such as operating with a payload that exceeds 55 pounds.) These operations will continue to require an exemption and FAA will continue to consider the requests under the Section 333 exemption process.

Important Links

Access a copy of the final rule, a summary of the final rule and a fact sheet describing the final rule on the FAA's website.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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