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What it does 

Unmanned aircraft systems (UASs), also known as drones, are increasingly being commercialized; however, no regulations existed governing the use of commercial drones until the publication of this final rule (noticed via 81 FR 42063; creating 14 CFR 107) by the US Department of Transportation’s Federal Aviation Administration (FAA). The FAA anticipates that this final rule will enable further industry development and the substitution of UAS operations for risky manned flights, thus avoiding human fatalities and injuries. This final rule amends existing regulations to integrate small unmanned aircraft systems into the National Airspace System (NAS), which is the infrastructure, technology, and rules used to operate a safe and efficient aviation environment.

The new Part includes four subparts: (A) General, (B) Operating Rules, (C) Remote Pilot Certification, and (D) Waivers. The four subparts provide applicability and definitions for the regulations, operating rules that apply to the UAS and the remote pilot, certification requirements for the remote pilot, and requirements for waiving certain operational restrictions; waivers were included to accommodate this technology’s rapid evolution.

Key components of the General section include:

  • The clarification that Part 107 applies to registration, airman certification, and operation of civil small unmanned aircraft systems within the United States;
  • The provision of definitions for key technologies:
    • An unmanned aircraft is an “aircraft operated without the possibility of direct human intervention from within or on the aircraft”;
    • A small unmanned aircraft weighs less than 55 pounds; and
    • A small unmanned aircraft system refers collectively to the aircraft, controls and communication links;
  • The policy that falsification of certificates, ratings, authorization, records, or reports are subject to revocation of certificates and/or civil penalties;
  • The policy that remote pilots are required to present documents, such as certification records, to the FAA upon request;
  • The policy that small UAS and remote pilots are subject to FAA testing upon request; and
  • The policy that a remote pilot must report to the FAA when a UAS is involved in an injury or property damage over $500.    

The Operating Rules apply to the aircraft and flight of the aircraft:

  • Unmanned aircraft must be small (i.e., less than 55 pounds), whether for commercial or personal use;
  • Prior to each flight, the remote pilot must check the small unmanned aircraft system to determine whether it is in a condition for safe operation. This includes assessing local operating conditions (e.g., weather, flight restrictions, other hazards);
  • Unmanned aircraft must remain in visual-line-of-site (VLOS)— able to be seen by the remote pilot without equipment beyond corrective lenses—by either the remote pilot or an optional visual observer in communication with the remote pilot at all times, yield the right of way to manned aircraft, and not interfere with airport operations;
  • A single pilot can only fly one unmanned aircraft at a time;
  • Unmanned aircraft can only be flown during daylight unless the drone is equipped with lights that make it visible for three miles at night;
  • First-person cameras are allowed but cannot replace the VLOS requirement;
  • Commercial flights made for hire or to deliver goods are allowed with restrictions consistent with the newly established rules, including:
    • Drone and payload together cannot exceed 55 pounds;
    • Payload must be secured so as not to interfere with flight performance;
    • Flight must be conducted within VLOS and not from a moving aircraft or vehicle, with some exceptions;
    • An unmanned aircraft may be flown from a moving ground vehicle if aircraft is in a sparsely populated area, with the term “sparsely” defined on a case-by-case basis; 
    • No unmanned aircraft may carry hazardous materials.
  • Flight path cannot be greater than 400 feet above ground level (AGL), exceed 100 miles per hour, or cross above a person not participating in the operation (but the unmanned aircraft may be flown above 400 feet if it is within 400 feet of a structure); and
  • A remote pilot may deviate from these rules in the event of an emergency.

Remote Pilot Certification regulations apply to the remote pilot of the aircraft:

  • Person operating a small unmanned aircraft must hold a remote pilot airman certificate that is renewed every two years. Obtaining a certificate requires the individual to demonstrate aeronautical knowledge for a set of topics (14 CFR 107.73) through testing or supervised training (for current pilots);
  • Operator must be at least 16 years old; and
  • A conviction for violating a drug statute is grounds for denial or suspension of a remote pilot certificate.

A certificate of waiver can be issued by the FAA, authorizing a deviation from several of the listed regulations. With a waiver, an operator could operate:

  • From a moving vehicle or aircraft;
  • Beyond daylight hours;
  • Beyond visual line of sight (no VLOS waivers for transporting property will be issued);
  • In control of multiple systems simultaneously;
  • Without yielding the right of way;
  • Over people; and
  • In certain restricted airspace.
Relevant Science 
  • Modern commercial drones covered by this Rule are teleoperated, meaning the pilot is always in direct, albeit remote control of the system. This means that to fly a drone, the remote pilot has to be manipulating controls at all times. This is in contrast to a telerobotic or supervisory control system, in which the remote pilot sends commands to a drone, which are then carried out without the need for control actions by the remote pilot (e.g., autopilot). An example of a telerobotic system would be an agricultural drone flying in a predefined pattern over farmland to take pictures of the crops. A remote pilot would need a waiver to operate a commercial telerobotic drone.
  • The proliferation of commercial drones has occurred, in part, due to reduction in cost and miniaturization of the key components. Size reductions mean reduced weight and decreased power consumption, which leads to the ability for a drone to engage in longer flight times. Chips are now available that can detect small changes in acceleration and balance, which allows the drone to automatically stabilize itself, thereby simplifying the responsibilities of a remote pilot.
Relevant Experts 

Mary “Missy” Cummings, PhD, Professor in the Duke University Pratt School of Engineering, Director of the Humans and Autonomy Laboratory and Duke Robotics, Associate Professor in the Department of Electrical and Computer Engineering, Associate of the Duke Initiative for Science & Society, Investigator in the Duke Institute for Brain Sciences.

Background 
  • In 2012, the Federal Aviation Administration Modernization and Reform Act was enacted to allow the agency to develop a framework and infrastructure to integrate new technologies, like drones. Before the Small Unmanned Aircraft Systems Rule, any commercial unmanned aircraft operation in the NAS required (1) a certificated and registered aircraft, (2) a licensed pilot, and (3) operational approval. Section 333 (49 U.S.C. 40101 note) of the FAA Modernization and Reform Act granted the FAA the authority to determine whether an airworthiness certificate is required for commercial unmanned aircraft to operate safely. Previous to the current Rule, this case-by-case authorization for commercial operations was referred to as a Section 333 Exemption.
  • The Rule applies to commercial use only. Hobbyists (non-commercial use) are regulated by the FAA Modernization and Reform Act , Section 336, and the associated Special Rule for Model Aircraft (14 CFR 91). Prior to the establishment of this regulation, which came about due to the wide proliferation of drones, model aircraft use was limited to small groups of dedicated hobbyists, who generally self-regulated, requiring only limited regulation from the FAA.
  • Commercial use of a drone covers an increasing list of operations, including, but not limited to:
    • Crop monitoring/inspection;
    • Research and development;
    • Educational/academic uses;
    • Power-line/pipeline inspection in hilly or mountainous terrain;
    • Antenna inspections;
    • Aiding certain rescue operations;
    • Bridge inspections;
    • Aerial photography and filmmaking; and
    • Wildlife nesting area evaluations.
Endorsements & Opposition 

Endorsements:

  • Commercial drone companies were supportive of the FAA moving forward with drone regulations. In a press release, the Small Unmanned Aerial Vehicle (UAV) Coalition, a partnership of leading consumer and technology companies, stated, “The commercial UAS industry, including the Small UAV Coalition, has long advocated for implementation of a regulatory framework under which the United States can fully realize the vast economic potential of small UAS in a safe and efficient manner.” They went on further to state that the reforms “will save U.S. companies millions of dollars.”
  • The FAA predicts the rule could create over 100,000 new jobs and produce more than $82 billion for the U.S. economy over the next decade.

Opposition:

  • Technology companies interested in using drones beyond the VLOS—like Amazon’s prospective delivery service by drone, Prime Air—criticized the provisions requiring the drone to be in constant VLOS of the remote pilot. As summarized by the FAA, Amazon took particular issue with its requirement to have one remote pilot for each drone. “Amazon asserted that the proposed restriction is based on the flawed premises that small UAS [unmanned aircraft systems] must be operated under constant manual control.” Google and Amazon both contend the final rule places an undue financial cost for unnecessary safety reasons on the companies, making their commercial drone services prohibitively expensive.
  • The Electronic Privacy Information Center (EPIC), a privacy watchdog, sued the FAA for denying EPIC’s petition to promulgate privacy-specific drone regulations, but the United States Court of Appeals for the District of Columbia Circuit dismissed the petition (SciPol brief available; Case No. 15-1075). EPIC asserts that the FAA “purposefully ignored privacy concerns, stating that privacy ‘issues are beyond the scope of this [Operation and Certification of Small Unmanned Aircraft Systems] rulemaking.’” Given that a modern UAS can be outfitted with the latest surveillance technologies, EPIC’s concern is that UAS could facilitate constant, persistent surveillance beyond that of former methods of aerial surveillance while remaining undetected, which in some cases to escalate to include stalking and harassment.
Status 

This rule was finalized on June 28, 2016 and made effective on August 29, 2016 by the Federal Aviation Administration. Rule-making authority derives from Section 333 of the FAA Modernization and Reform Act of 2012, which directs the FAA to determine whether “certain unmanned aircraft systems may operate safely in the national airspace system.”

Primary Author 
Bryan McMahon
Editor(s) 
Michael Clamann, PhD; Aubrey Incorvaia, MPP; Andrew Pericak, MEM
Recommended Citation 

Duke SciPol, “DOT Operation and Certification of Small Unmanned Aircraft Systems (Final Rule)” available at http://scipol.duke.edu/content/dot-operation-and-certification-small-unmanned-aircraft-systems-final-rule (01/12/2017).