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Unmanned Aerial Systems (UAS) – Including Drones, Part 1

June 6, 2018

Unmanned Aerial Systems (UAS) – Including Drones

What are the Rules and Which Rules Apply to Me?

Unmanned aerial systems include mechanical devices capable of flight that are controlled remotely by a human operator. It’s a broad definition that’s meant to include devices ranging from small hobbyist drones to larger unmanned aerial vehicles (UAVs) that more closely resemble small airplanes. These devices have a whole host of potential commercial and government uses in addition to being flown as a hobby. In its 2014 Legislative Report, the Iowa Department of Public Safety noted that UAS could be used to: scout and evaluate crop conditions; conduct environmental research; monitor traffic, work zones, and emergency disaster areas; inspect airport runways; combat fires with thermal imaging; and assist with search and rescue missions.[i] The growing UAS industry can provide a host of government benefits and presents great economic opportunity for private industry.

Federal Regulations

Currently, UAS are almost exclusively governed by Federal Aviation Administration (FAA) regulations and which regulatory scheme UAS operators fall under primarily depends on two factors: the purpose for flying your UAS, whether for recreation or for commercial purposes, and whether your UAS weighs more than 55 lbs.

Hobby and Recreational Use – Special Rule for Model Aircraft

If you want to fly your UAS for strictly recreational purposes, you may do so under the Special Rule for Model Aircraft. Under this rule, model aircraft are defined as an unmanned aircraft that is: (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.[ii]

In addition to the line of sight requirement, there are a few key takeaways:

  1. Hobbyists need to register their UAS with the FAA before their first outdoor flight[iii] (however, this requirement was recently challenged in Taylor v. Heurta, a 2017 D.C. Circuit case).[iv]

 

 

  1. When flying, operators must follow a community-based set of guidelines, generally the Academy of Model Aeronautics (AMA) Safety Code.[vi]

 

  • Avoid flying directly over unprotected people, moving vehicles, and occupied structures
  • Do not operate any model aircraft while under the influence of drugs or alcohol
  • Do not fly near or over sensitive infrastructure or property such as power stations, water treatment facilities, correctional facilities, etc.
  • Do not conduct surveillance or photograph persons in areas where there is an expectation of privacy without the individual’s permission

 

  1. Provide prior notification to the airport and air traffic control tower, when flying within five miles of an airport, and always give way to manned aircraft.[vii]

In addition to the Special Rule for Model Aircraft, UAS operators may also choose to fly recreationally under the standards set in Part 107 which also regulates commercial UAS use.

Commercial Use – 14 C.F.R. Part 107: Small Unmanned Aircraft Systems

The FAA Small Unmanned Aircraft Systems Rule, also known as Part 107, went into effect on August 29, 2016 and currently governs the commercial use of UAS. Within Part 107, there are three main areas of interest: 1) Operating Rules, 2) Remote Pilot Certification, and 3) Waivers.

Operating Rules:

  • The Part 107 Operating Rules are very similar to the recreational flight guidelines above. There are similar provisions about not flying over people, operating only during daylight hours, not operating while under the influence of drugs and alcohol, registering your UAS, yielding to manned aircraft, and notifying airports if you are flying within five miles.[viii]
  • Before flying, UAS operators must conduct a preflight inspection of their aircraft and assess their operating environment for hazards and weather conditions.[ix]
  • Objects, cameras, and cargo may be attached and transported as long as they are secure and do not adversely affect flight characteristics or the controllability of the aircraft.[x]
  • UAS, without a waiver, may not fly higher than 400 feet above the ground, within 400 feet of structures, and at speeds faster than 87 knots or 100 miles per hour.[xi]
  • Commercial UAS operators, or a visual observer, must also maintain a visual line of sight of the aircraft and be able to: 1) know the aircraft’s location, 2) determine its altitude, speed, and direction of flight, 3) observe the airspace for traffic or hazards, and 4) determine that the aircraft does not endanger the life or property of another.[xii]
  • Of the Part 107 Operating Rules, this requirement may be the most onerous for commercial uses – for example, monitoring the conditions of crops across large areas of farmland or operating in dangerous areas to assist with natural disasters or search and rescue operations.
  • The FAA’s position is that, without waiver, this requirement cannot be satisfied alone by equipping the UAS with a first-person camera or wide-angle lens.[xiii]
  • This is one of several Part 107 provisions that can be waived with FAA approval if the operation can be performed safely.[xiv]

 

  • One of the biggest changes in Part 107 compared to the Special Rule for Model Aircraft is that commercial operators are required to have a remote pilot certificate with a small UAS rating.[xv]

Remote Pilot Certification

  • To become a remote pilot, you must: 1) Be at least 16 years old, 2) be able to read, speak, write and understand English, 3) be in physical and mental condition to safely operate a UAS, and 4) pass an initial aeronautical knowledge test at an FAA testing center.[xvi]
  • Remote pilots must also: pass a recurrent aeronautical knowledge test every two years and not have any current or recent (up to one year) convictions involving drugs or alcohol.[xvii]

Waivers:

  • UAS operators can apply to the FAA for waivers to a list of select operating rules

 

 

  • Waiver requests must include a complete description of the proposed operation and the justification(s) that establish how the operation can be performed safely.
  • The FAA may grant a full or partial waiver of some or all the requested limitations and may also include additional limitations if necessary.[xviii]

Heavy UAS (55 + lbs.) – Section 333 of the FAA Modernization and Reform Act of 2012

Larger aircraft are evaluated and authorized on a case-by-case basis. Generally, under 14 C.F.R. remote pilots are not permitted to fly aircraft that, with their attachments and payload, weigh more than 55 lbs. The specific process for requesting an exemption are covered under Section 333 of the FAA Modernization and Reform Act of 2012.

Bryan Shusterman is a 3rd year law student at the University of Iowa College of Law. Bryan is an Articles Editor for the Journal of Transnational Law and Contemporary Problems and was a participant in the Jessup International Law Moot Court competition. This blog post is meant for informational purposes only and is not meant to provide legal advice in any particular circumstance or factual situation.  You should consult with an attorney prior to taking any action regarding the information contained herein.  If you have questions concerning this post, please contact bryan.shusterman@heidmanlaw.com or Daniel.Dykstra@heidmanlaw.com.



[i] Iowa Dep’t of Pub. Safety, Unmanned Aerial Vehicle Legislative Report, 1st Sess., at 3 (Dec. 2014).

[ii] FAA Modernization and Reform Act of 2012, PL 112-95, § 336(c), February 14, 2012, 126 Stat 11.

[iii] 14 C.F.R. § 48.15

[iv] Taylor v. Huerta, 856 F.3d 1089, 1090 (D.C. Cir. 2017)

[v] Press Release, Fed. Aviation Admin., FAA Announces Small UAS Registration Rule (Dec. 14, 2015), https://www.faa.gov/news/press_releases/news_story.cfm?newsId=19856.

[vi] Recreational Users, Know Before You Fly, http://knowbeforeyoufly.org/for-recreational-users/ (last visited May 30, 2018).

[vii] FAA Modernization and Reform Act of 2012, PL 112-95, § 336(a)(1), February 14, 2012, 126 Stat 11.

[viii] See 14 C.F.R. §§ 107.11­–107.51.

[ix] 14 C.F.R. § 107.49

[x] Id.

[xi] 14 C.F.R. § 107.51

[xii] 14 C.F.R. § 107.31

[xiii] Fact Sheet – Unmanned Aircraft Systems (UAS), FED. AVIATION ADMIN. (Jun. 21, 2016), https://www.faa.gov/news/fact_sheets/news_story.cfm?newsid=20516.

[xiv] 14 C.F.R. § 107.205

[xv] 14 C.F.R. § 107.12

[xvi] 14 C.F.R. § 107.61

[xvii] 14 C.F.R. §§ 107.73, 107.57

[xviii] 14 C.F.R. § 107.200

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