By: John Monaco (Pictometry International Corp.– on behalf of the PDC)
& Kevin Pomfret, Esq. (Williams Mullen – on behalf of the PDC)
March 29, 2016
Operating a drone commercially in the U.S. National Airspace (NAS) requires an exemption from the Federal Aviation Administration (FAA) – a process that has become drawn out and laborious due to the increased demand for the use of drones in commercial workflows. With some approval wait times topping six months, the Property Drone Consortium (PDC) is pushing for the FAA to take the next step in moving the process along – this being the development and implementation of a streamlined “blanket” 333 process as an interim step prior to promulgation of a final FAA rule or Congressional legislation on the commercial use of drones. This process would maintain the essential elements of the current process but result in a speedier approval timeline for applicants, as well as free up FAA resources with a simpler approval procedure.
The PDC is comprised of insurance companies and others interested in improving the use of drones for property-related matters, particularly in the area of safe roof inspection options and post-disaster structure inspection. One of its purposes is to present its members’ opinion on matters related to drone operations.
The Current Process for Obtaining Approval to Fly
This process came about after the FAA was directed by Congress in the FAA Modernization and Reform Act of 2012 (the “Act”) to integrate commercial unmanned aircraft systems, commonly known as drones, into the national airspace system by September 2015. In the fall of 2014, when it became clear that the FAA was going to miss Congress’ deadline, the FAA used its authority under Section 333 of the Act to create a process whereby commercial operators could petition the FAA to use small drones (weighing less than 55 lbs. fully loaded) for commercial purposes. This process, commonly known as the Section 333 exemption process, involved submitting a written request to the FAA that explained, among other things, which drone a commercial operator intended to operate, the purposes for which the drone would be operated and how and why such operations were at least as safe as existing operations. Initially these requests for Section 333 exemptions varied somewhat, but since the requests and the grants are public records, most of the requested activities now are very similar in form and substance – essentially including aerial image capture, inspection, mapping, and surveying for a variety of applications related to real estate, structure and infrastructure, closed-set filming and videography, agriculture, etc.
The FAA reviews each request, and if it finds the request acceptable, will grant an exemption for such use, subject to a number of requirements. Over time, most of the requests granted have been for a number of drone platforms and for the broad commercial use of aerial data collection. Aerial data collection is defined by the FAA to include “any remote sensing and measuring by an instrument(s) aboard the UAS.” Almost every exemption currently being granted includes the same conditions. These conditions include (1) the drone must be operated at a minimal distance from non-participants, structures, and moving vehicles; (2) the drone must be operated at an altitude of no more than 400 feet above ground level; (3) the drone must be within visual line of sight of the operator at all times; (4) the drone must not be operated within five miles of an airport reference point; (5) the pilot in command (PIC) must hold an airline transport, commercial, private, recreational or sport pilot certification, along with a number of other limitations.
Initially upon receipt of the Section 333 exemption, a commercial operator was then required to apply for a Certificate of Authorization or Waiver (COA) before beginning operations. However, in March 2015 the FAA announced a blanket COA policy. The blanket COA eliminated the requirement to apply for a separate COA if flight operations were restricted to below 200 feet. An operator still needed to apply for a traditional COA to fly above 200 feet. Some further progress was made when on March 29, 2016 the FAA updated its blanket COA to allow flights at or below 400 feet.
Shortcomings of the Section 333 Exemption Process
Many consider these requirements to be overly burdensome and unnecessary, particularly since hobbyists can use the same drones without many of these requirements. For example, a person does not need to be a pilot to operate a drone for recreational purposes even if the same drone also can be used in a commercial operation. Nevertheless, many business owners were willing to take this step, since Section 333 petitions are currently the easiest method for commercial operators to legally fly drones in the U.S. and many businesses felt like they needed to learn how to integrate drones into their workflow.
The FAA stated its goal was approval of Section 333 petitions within 120 days after submission. Initially, they were able to make this schedule. As a result, as of this writing, the FAA has approved 4,475 Section 333 petitions for use of drones in the national airspace system by commercial operators.
However, as the demand for commercial drone operations grows, the number of Section 333 requests has dramatically increased. The FAA appears to have tried to adjust to this increase in requests by re-allocating resources internally and by hiring outside contractors to review the requests. Nevertheless, the timeliness with which the FAA has approved these requests has suffered. In a set of instructions for filing a Section 333 request posted last fall, the FAA alerts submitters that the exemption may take up to eight weeks for a petition to be processed, assigned a docket number, and posted on the applicable government website (www.regulations.gov.). Once posted, it could take up to an additional 120 days for review and decision – effectively up to six months from submission to decision. A spot check of recent approvals shows that many approvals are coming in at close to six months. Furthermore, in mid-February 2016, the FAA added the following statement to its Section 333 web page: “Due to the high volume of Section 333 petitions received, we are experiencing delays in processing petitions. We will do our best to process petitions being posted to the docket as soon as possible, and in the order they were received. We appreciate your patience as we work diligently to process your request.”
Moreover, it is unclear whether relief is in sight. In February 2015, the FAA issued a notice of proposed rulemaking that would do away with the need for a Section 333 exemption request provided an operator of a small drone complied with many of the same operational restraints that are set forth in the Section 333 grant. The proposed rules are still under review, with no firm date of finalization and issuance, although the FAA recently announced that a final rule would be issued this spring. On February 24, 2016 the FAA announced the establishment of an aviation rulemaking committee with industry stakeholders to develop recommendations for a regulatory framework that would allow certain micro-UAS to be operated over people not directly involved in the operation of the aircraft, with a final report due to the FAA on April 1. The establishment of this separate “micro” committee may enable the FAA to more speedily finalize the small UAS rule. In the meantime, demand for data collected from drones continues to grow from a variety of industries.
Additionally, a number of separate bills were introduced in Congress in February 2016 with UAS as all or part of their focus. These include the Commercial UAS Modernization Act, Aviation Innovation, Reform, and Reauthorization Act of 2016, and the FAA Leadership in Groundbreaking High-Tech Research and Development Act. While we will not cover the content of these bills in this writing, they do contain some positive aspects with regards to facilitating the use of UAS. However if and when they might ultimately become law, and how they might conflict with each other and a final FAA rule is uncertain at this point.
PDC Recommendation to Simplify the Approval Process
As a result, the PDC proposes that the FAA simplify the Section 333 process. The goal would be to preserve existing safeguards by leveraging the lessons learned from the current requirements until the final rule on commercial use of small drones is adopted. The PDC believes this will reduce the workload of the FAA so that it can allocate more resources to the next set of requirements, such as commercial operations of drones larger than 55 lbs., Beyond Visual Line of Sight (BVLOS) operations, and nighttime flights, while accommodating the growing commercial demand for small drones.
Since the current process essentially approves requests for aerial data collection for (i) a large number of activities and (ii) a set of drone platforms, as long as the operator agrees to comply with what is now a standard set of conditions and limitations, the PDC believes a lengthy review process is no longer needed for “standard” commercial operators. Therefore, we propose a new blanket Section 333 grant be developed. The FAA should adopt a (i) consolidated set of conditions and limitations from the current Section 333 grants and the blanket COA and (ii) a list of currently approved small drone platforms that have been approved by the FAA for commercial operations. An operator should then be able to register a drone with the FAA and attest that they will comply with the standard conditions and limitations currently included with the Section 333 grants. Upon such registration, they should be able to immediately commence commercial operations. For small drones which have not previously been approved, operators should be able to follow a simple procedure to submit platform information for review and approval. This should not be an issue since well over a thousand platforms have already been approved in various 333 grants On March 4, 2016 the FAA posted a list on regulations.gov of 1,120 readily available commercial and custom built platforms that have been approved under section 333: http://www.regulations.gov/#!documentDetail;D=FAA-2007-3330-0007
The PDC believes that the FAA has the authority to make this change as Section 333 of the Act grants it broad authority to establish requirements for the safe operation of drones into the national airspace system if it seems such operations are safe. Through the Section 333 process, the FAA has essentially defined which systems and operational requirements are necessary for safe operation. Changing the existing system to a self-registration will maintain the integrity of the current Section 333 process to ensure safe and responsible operations by commercial operators, while alleviating FAA personnel of what is essentially a rote review process. This will free up badly needed resources to address the numerous other challenges that the FAA faces with regard to safe drone operations.
The PDC’s proposal is also consistent with the approach being suggested by many members of Congress. For example, both the Commercial UAS Modernization Act and the relevant portions of the Aviation Innovation, Reform and Reauthorization Act of 2016 contain similar proposals to streamline the commercial use of small drones. However, the PDC and its members don’t believe that it should take an act of Congress to make these logical and needed changes.