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RotorDrone|December/ January 2021
Navigating the regulations for public sector drones
Wendie Kellington & Patrick Sherman

The use of drones by firefighters and law enforcement gets most of the attention regarding public sector applications for this technology, but there are plenty of others. Public works departments, planning divisions, parks and recreation agencies, water and sewage districts—all stand to benefit from drones. In this article, two nationally recognized experts explain how they can do that legally.

The rules and regulations that govern the use of small uncrewed aircraft systems (UAS) are premised on how the Federal Aviation Administration (FAA) defines these machines and their operators. Under the law, a two-pound UAS is an aircraft, no different from a Cessna 172 or a Boeing 737.

In its official glossary of terms, FAA defines an aircraft as a “a device that is used or intended to be used for flight in the air.” There is no mention of its size, crew, range or mission—only that it is a mechanism that flies. Likewise, people who operate UAS are pilots, holding a credential granted by the FAA: the Remote Pilot In Command (RPIC) certificate.

The successful addition of UAS to the public worker’s toolbox will necessarily require the assumption of a new professional role, that of an aviator. To use a drone is to launch a flying machine into the most crowded and complex airspace system in the world.

In operating a drone or contracting for drone services, public sector employees must understand and follow established rules and regulations, not just as individuals but as representatives of their employers, be they private firms or government agencies. Compliance not only protects other airspace users and people on the ground, but also the future potential of UAS technology and its benefits to society at large. This is true whether the government worker is the pilot or contracts for drone services: the worker’s employer will face civil liability if a contractor violates the rules and commits some action that results in a loss.

This article explains how the commercial applications of UAS are regulated by the FAA, which has exclusive domain over the National Airspace System (NAS). It clarifies the role of state and local governments in regulating drone operations, and offers examples of important legal considerations that government agencies should consider regarding the use of UAS, including trespass and nuisance, constitutional constraints and temporary regulations that are likely to be enforced during emergencies.

COMMERCIAL VS. RECREATIONAL OPERATIONS

When the first small, civil UAS took flight in the early 2010s, the Federal Aviation Regulations (FARs) did not even contemplate their existence. Therefore, the pioneers who built and piloted those early, hand-built machines drew upon the long tradition of aeromodeling—radio-controlled airplanes and helicopters—in the United States for regulatory guidance.

The first amateur radio-controlled flying competitions were held in the late 1930s, under the auspices of the Academy of Model Aeronautics (AMA). The organization still exists today as the national governing body for the hobby of model aviation, with 200,000 members and 2,500 affiliated flying sites nationwide. Over the past 80 years, the AMA has developed a robust safety program and amply demonstrated effective self-regulation of the community it serves.

The AMA’s regulation of model aircraft was so successful over the decades that the FAA saw no need to issue additional rules. In 1981, the agency issued a single-page advisory document aimed at hobbyists that reiterated the AMA’s own guidance. Many of the earliest small, civil UAS pilots had emerged from the hobby community and employed the same underlying technology as model aircraft to build their own drones, so they looked to the FAA’s advisory circular as the legal basis for their operations.

The FAA explicitly rejected this reasoning in 2007 when the technological feasibility of private drone aircraft came into clear focus. While the agency deployed a variety of stop-gap measures, including special certificates for public agencies to use drones and waivers to permit their use in tightly controlled environments— such as closed film sets—the FAA spent the next decade developing the rules and regulations that govern the use of UAS today: Title 14 of the Code of Federal Regulations, Part 107 (14 CFR Part 107). Along the way, it had to resolve a paradox: the same piece of technology—a UAS—could be used by hobbyists for enjoyment, or by professionals to earn money or to support their professional endeavors.

The resolution of this paradox was made more urgent by the substantial political pressure the AMA brought to bear, seeking to protect the traditional aeromodelling community from what it viewed as potentially intrusive regulation. As a solution, the FAA recognized two types of flying, irrespective of the capabilities of the aircraft itself: recreational and commercial.

Recreational operations are narrowly defined as piloting an aircraft for the enjoyment of flight in the moment that it is occurring. Commercial operations are defined as everything else—even if no money actually changes hands. An unpaid volunteer who uses his or her own UAS to support search and rescue, for example, is a commercial operator according to the FAA, as is a farmer who uses a drone to scout his or her own fields, and so is a government worker who uses a drone to obtain aerial imagery of a construction side. Anything that provides any tangible benefit to the pilot, any private, nonprofit or government organization, or to society as a whole is a commercial operation.

Different rules govern these different types of operations. Commercial flights are regulated under the aforementioned 14 CFR Part 107, whereas recreational activities are guided by Title 49 of the US Code § 44809. Both require the operator to take a test to demonstrate their aeronautical knowledge—although the requirements under 14 CFR Part 107 are considerably more stringent—and both require that aircraft be registered with the FAA.

In the context of government work, all UAS operations are commercial operations, and flying under Part 107 is frequently the best route to ensure legal and regulatory compliance. However, there are other paths available.

An organization can seek a certificate of authorization/waiver (COA) from the FAA, granting it the right to operate UAS fly within a geographically defined area without a qualified RPIC, by establishing its own policies and procedures, to include pilot certification. However, any such effort will likely require the assistance of an expert in aviation law and is subject to the vagaries of the FAA, which has the legal right to cancel a COA with immediate effect.

The final option is to have the UAS designated as a public aircraft. This was a more common solution for public safety agencies interested in operating UAS at the start of the previous decade that were seeking a waiver from the FAA, and it continues to play an important role in the testing and development of UAS—such as autonomous air taxi systems.

FEDERAL UAS REGULATIONS

In Part 107, the FAA defines the regulations that govern commercial UAS operations in the United States. The full text of the regulation can be found in an annual publication entitled “FAR/AIM”—an acronym for the “Federal Aviation Regulations/ Aeronautical Information Manual.” What follows is a plain-language description of the rules under Part 107 and provides insights as to their interpretation and real-world application.

Each flight crew will consist of at least one Remoted Pilot in Command (again, RPIC) and may include one, or more, Visual Observers (VOs).

As previously discussed, an RPIC is a person holding a credential issued by the FAA to operate drones commercially in the United States— and at least one must be present and participating in any UAS flight operation. The VO is a person who assists the RPIC, typically by helping to maintain a visual line of sight (VLOS) with the aircraft, as well as keeping an eye on the surrounding airspace for other aircraft, and other emerging hazards. Apart from a pre-flight briefing provided by the RPIC, there is no training or credential requirement for a VO.

Each flight crew may only operate one UAS at a time.

There must be at least one RPIC responsible for the operation of each aircraft aloft. If a mission requires three UAS to be flying at the same time, a minimum of three RPIC will be required, each constituting a separate flight crew.

The aircraft must be flown within plain visual line of sight (VLOS) of the RPIC or a VO.

A member of the fight crew, either the RPIC or the VO, must be able to see the aircraft at all times. Corrective lenses are allowed, but enhancements to natural human vision, such as binoculars, are not. If the RPIC is not able to maintain VLOS, because he or she is wearing a pair of video goggles or is concentrating on a video downlink, then a VO is required.

An onboard camera or first-person view (FPV) system cannot be used to satisfy the VLOS requirement.

A video downlink, collision avoidance system or other technical means cannot be used to fulfill the VLOS requirement under Part 107. The aircraft must be in plain view of a member of the flight crew throughout the entire flight.

The RPIC shall conduct a pre-flight inspection of the UAS.

This should include an inspection of the aircraft, ground control station and other components for wear or damage, as well as verifying that control, video and telemetry links are functioning correctly.

No person shall operate a UAS if he or she knows or has reason to know of any physical or mental condition that would interfere with its safe operation.

Virtually all crewed aircraft pilots are required to undergo regular checkups administered by an FAA-approved aviation medical examiner, to verify that they are fit to fly. The FAA elected not to place such a requirement on RPICs, instead relying on them to exercise their own good judgment regarding their physical and mental condition. In addition to injury, illness or medical incapacity, this rule also requires that UAS pilots be free from the influence of drugs or alcohol while operating an aircraft.

The RPIC may allow another person to manipulate the controls of the UAS, provided that he or she remains under the direct supervision of the RPIC.

This rule is the equivalent of a private pilot allowing a friend to take the controls of a light airplane for a few minutes: a person who is not qualified to operate a UAS under Part 107 may do so, provided that the qualified pilot is ready and able to immediately assume control.

During an emergency, an RPIC may deviate from any rule or regulation required to respond to the emergency.

The RPIC should only exercise this privilege in circumstances where the UAS poses an imminent threat to the safety of persons or sensitive property, and such action has the legitimate effect of mitigating that hazard. At the request of the FAA, the pilot is required to submit a report describing the nature of the emergency and his or her response.

The maximum altitude UAS are allowed to fly is 400 feet above ground level (AGL).

This rule establishes what is referred to in the aviation community as a “ceiling” for UAS flight operations—an upper limit that, in this case, has been established to maintain separation between crewed and uncrewed air traffic: under most circumstances, crewed aircraft should remain at an altitude of 500 feet AGL or greater, providing a 100-foot buffer. There is an exception to this rule: if the UAS is flying within 400 feet of a prominent structure, such as a tall building or a radio tower, it is permitted to fly to the height of the structure, plus 400 feet. Thus, if a UAS is being used to inspect a 300-foot broadcast antenna, the ceiling for that flight would be 700 feet AGL.

The maximum speed for a UAS is 100mph, or 87 knots.

As a practical matter, this requirement does not place a significant limitation on real-world UAS operations. Typical multirotor platforms, the most common type of small, commercial UAS, have a maximum speed between 30 and 40 miles per hour.

The maximum take-off weight for a UAS, including fuel and payload, must be less than 55 pounds.

Again, this limitation is largely irrelevant to commercial UAS operations, as most small, civil UAS weigh less than five pounds, and many weigh less than two pounds and the addition of a camera or even a payload does not dramatically increase its weight. To put this in perspective, when it is allowed to begin commercial drone deliveries, Amazon estimates that a 5 lb. payload will accommodate 85% of the deliveries it now makes.

The minimum visibility for UAS operations is three statute miles.

This is the same requirement that must be met for visual flight rules (VFR) operations by crewed aircraft. Once visibility drops below three statue miles, instrument flight rules (IFR) apply. Visibility can be gauged either by the pilot’s own observations, or by consulting the hourly weather reports generated by a nearby airport, known as METARs.

The UAS must maintain a minimum of 500 feet of vertical separation and 2,000 feet of horizontal separation from clouds.

This rule also mirrors the requirements for VFR operations by crewed aircraft. Cloud elevations are difficult to determine from the surface without specialized equipment, especially when multiple cloud layers are present. However, this information is included in the METARs published hourly by airports.

UAS operations are limited to daylight hours, between official sunrise and official sunset.

Although this information is made available through the National Weather Service and other organizations, official sunrise and official sunset are established by the United States Naval Observatory in Washington, D.C. These official figures may differ from the time that the sun disappears from view in a given area, owing to local geography. UAS operations are also permitted during civil twilight, defined as a period one-half hour before official sunrise and one-half hour after official sunset, provided that the aircraft is equipped with a beacon visible for three statute miles.

UAS operations must be safe and responsible. Never fly in a careless or reckless manner.

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