Drones: FFA Streamlines Exemption Process


    Six months ago we explained the new rules the Federal Aviation Administration (FAA) had just proposed for integrating small commercial unmanned aerial vehicles (UAVs) or “drones” into U.S. airspace.

    These rules, if finalized, will allow businesses–including farms–to use UAVs in their commercial operations, subject to certain safety requirements. Although the rules will not be finalized for some time and the general ban on commercial UAV flights remains, a number of developments have arisen in recent months to begin opening the skies to many commercial UAVs, including some for agricultural purposes.

    Many have written about the importance of integrating UAVs into farming practices. Crop scouting, livestock monitoring, weed identification, and soil fertility management are some of the many potential agricultural uses for UAVs. Hampering the widespread emergence of these practices, however, is the lack of a regulatory framework.

    As we’ve explained in past articles, until FAA regulations are finalized, farmers may generally fly their UAVs only for hobby purposes. That means, for example, that a farmer could legally fly a UAV over his soybean field to take a picture to hang on his living room wall. If that same farmer, however, flies that same UAV over the same field to monitor the health of the farmer’s soil, he has flown into impermissible territory. The latter flight, although similar to the first flight, would generally constitute an impermissible commercial flight.

    Streamlined Exemption Process

    In 2012, Congress recognized the need to begin allowing commercial UAV operations. In the FAA Modernization and Reform Act of 2012, Congress directed the FAA to safely integrate UAVs into U.S. airspace by September 30, 2015. With proposed rules for small UAVs not issued until February 2015, it is apparent that FAA will no doubt miss this deadline.

    In response, the agency has turned to the interim solution of integrating commercial UAVs into U.S. airspace on a case-by-case basis. Since initiating this process, hundreds of commercial UAVs have begun operating and many more are sure to soon follow.

    The main barrier to flying a UAV commercially is the requirement that all commercial aircraft possess an “airworthiness certificate.” This process is cumbersome, and the FAA has only issued special airworthiness certificates to certain experimental UAVs and to UAVs used for certain restricted operations in the Arctic.

    Congress has, however, granted FAA the authority to wholly exempt certain UAVs from the airworthiness certificate requirement. Called a “Section 333 Exemption,” the FAA can grant this authorization to low-risk commercial UAVs. This exemption is appropriate where a UAV–because of its size, weight, speed, operational capability, proximity to airport and populated areas, and operation within visual line of sight–does not create a safety hazard.

    FAA issued its first Section 333 exemption to a commercial UAV in September of 2014. As of January 2015, FAA had granted only 13 exemptions. In April of 2015, however, the FAA announced a new streamlined exemption process, and the number of Section 333 exemptions exploded. Under the streamlined process, the agency began issuing a “summary grant” for requests that are similar to a previously granted exemption. Under to this new policy, FAA had granted 1,208 exemptions as of mid-August.

    The Section 333 exemptions are aircraft-specific and require the operator to follow certain requirements. For instance, operators must conduct a pre-flight inspection, operate the aircraft with their visual line of sight (or that of a partnering visual observer), fly at 400 feet above ground or below, and not exceed the speed of 100 miles per hour.

    As part of the streamlined process, the FAA now allows those operating under exemptions to hold only a recreational or sport pilot certificate, as opposed to a private pilot certificate. Similarly, the FAA no longer requires a medical certificate. Rather, those operating under an exemption need only a valid driver’s license to satisfy the medical requirement.

    In conjunction with the new summary exemption process, the FAA also created a streamlined Certificate of Waiver or Authorization (COA) process. A COA gives an operator permission to fly in a particular block of airspace. Typically, an operator has to submit a COA application and wait for a response, which usually takes around 60 days.

    Under the new streamlined process, FAA will grant to those operating under Section 333 exemptions a “blanket” COA. This allows operators of aircraft weighing less than 55 pounds to fly anywhere in the country (except for restricted airspace) as long as they stay at or below 200 feet. Operators wishing to fly up to 400 feet must still follow the traditional COA request process.

    Since initiating the streamlined processes, FAA has granted exemptions in response to more than 100 petitions citing agricultural uses. This number is sure to increase in coming months. The FAA website contains a running list of all granted Section 333 Exemptions. The instructions for filing a petition for an exemption are available here.

    Unauthorized Flights Expanding

    Expanding along with the number of authorized commercial UAV flights is the number of unauthorized UAV flights.  In mid-August, the FAA announced that traditional aircraft pilots have reported a record number of “close calls” with unauthorized UAVs. The FAA stated that it is working closely with local law enforcement communities to identify and investigate unauthorized UAV operations. The agency warned that unauthorized operators could be “subject to stiff fines and criminal charges, including possible jail time.”

    Bottom line, the skies are opening up to UAVs. Hobby uses are increasing and commercial uses are expanding. But, with increased usage comes increased enforcement. Operators are reminded that even hobby users must follow certain guidelines, such as flying safe distances away from populated areas.

    We’ll keep you posted as further developments unfold.

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