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Petition for ExemptionPetition for Exemption

Thinking about operating a UAS as part of a business, or to capture and sell the pictures, video, or other data but don’t know how to do so legally?  Until the proposed regulations governing commercial UAS are finalized, the most common method to obtain authorization to commercially operate a UAS is to petition the FAA for an exemption under Section 333 of the FAA Modernization and Reform Act of 2012. 

Conducting commercial UAS operations without approval from the FAA, such as a Grant of Exemption under Section 333, may not only endanger the safety of people and property in the air and on the ground, but could also result in civil penalties, enforcement action against a pilot’s certificates, and even criminal penalties.

To help ensure safe and legal commercial UAS operations in the National Airspace System (NAS), consider the following steps on how to obtain your own FAA authorization under Section 333:  

1.  Determine whether the proposed UAS operation is “commercial.

According to the FAA, a UAS operation is commercial in nature if an individual or organization is conducting the operation with the primary intention of obtaining pictures, videos, or other information to sell.  Likewise, the FAA has taken the position that a UAS operation is commercial if it is conducted in furtherance of or incidental to a business.
In a memorandum dated May 5, 2015, the FAA stated that whether a person who sells images, video, or other data collected by a UAS would need FAA authorization depends upon the person’s original intentions in conducting the operation.  The memorandum explained this position as follows:

If the individual takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos, or other information would not change the character of the operation as part of a hobby or recreational activity that falls within the section 336 carve-out for model aircraft. No FAA authorization for that operation would be required. 

However, if the individual is conducting the operation with the primary intention of obtaining pictures, videos, or other information to sell, then the operation is commercial in nature and not part of a hobby or recreational activity.
Additionally, the memorandum explained that the FAA would evaluate whether an operation was of a commercial nature on a case by case basis, and detailed some of the factors that the agency would consider in reaching its determination:

Evidence that may indicate an individual's true intentions in conducting an operation may include the frequency with which pictures, videos, or other information collected using an unmanned aircraft is later resold. Operations that frequently result in pictures, videos, or other information that is sold to a third party may indicate that the operation is in fact commercial in nature notwithstanding the individual's claim of a hobby or recreational purpose. The FAA would have to consider each case on its own merits.

2.  If the proposed UAS operation is commercial, review the basic requirements to perform commercial operations with a UAS.

Typically, performing commercial operations with a UAS will require the following:

  • Pilot in Command (PIC) that holds either an airline transport, commercial, private, recreational, or sport pilot certificate, as well as a current airman medical certificate or valid U.S. driver’s license.  The PIC must also meet other requirements, as discussed below.
  • UAS weighing less than 55 pounds including payload, identified by serial number, registered with the FAA and appropriately marked with an N-number.
  • Section 333 Grant of Exemption
  • All documents needed to operate the UAS (e.g., user manual, maintenance manual, checklists, etc.)
  • Certificate of Authorization or Waiver (“COA”)
  • Letter of Agreement with Airport Management (Only required if the FAA has otherwise approved operations within 5nm of an airport)
  • Motion Picture and Television Filming Manual (Only required for certain operations)

3. Determine whether you should file a Petition for Exemption under Section 333

A Petition for Exemption is the most common method to obtain authorization from the FAA to operate a UAS in low-risk, controlled environments for a commercial purpose. A Petition for Exemption is your request asking the FAA to grant you relief from having to comply with certain Federal Aviation Regulations, many of which predate the prominent use of UAS, and therefore contain requirements which are prohibitively difficult or impossible to apply to unmanned aircraft.

A Petition for Exemption can request authorization to perform a variety of operations, such as aerial photography, videography, surveying, inspection, and other types of aerial data collection. Each petition is evaluated by the FAA on a case-by-case basis, and as discussed below, includes information such as the purpose of the intended operation, characteristics of the UAS, operating procedures, and an explanation as to how the proposed operations would not adversely affect safety and are in the public interest.

When the FAA grants a Petition for Exemption, it will issue a Grant of Exemption that authorizes the proposed operations and typically includes approximately thirty conditions and limitations that must be met by the commercial UAS operation. It is a good practice to review recent authorizations granted by the FAA to determine whether your proposed operation could comply with these conditions and limitations.

Examples of a few significant conditions and limitations that a petitioner can expect to be included in an authorization issued by the FAA are as follows:

Pilot in Command (PIC)

  • The PIC must hold either an airline transport, commercial, private, recreational, or sport pilot certificate, as well as a current airman medical certificate or valid U.S. driver’s license.
  • The PIC must meet the flight review requirements specified in 14 C.F.R. § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.
  • The operator may not permit any PIC to operate the UAS unless the PIC demonstrates the ability to safely operate the UAS in a manner consistent with how the UAS will be operated commercially, including evasive and emergency maneuvers and maintaining appropriate distances from persons, vessels, vehicles and structures.
  • PIC qualification flight hours and currency must be logged in a manner consistent with

14 C.F.R. § 61.51(b).

Unmanned Aircraft System

  • Weighs less than 55 pounds including payload;
  • Identified by serial number, registered in accordance with 14 C.F.R. part 47, and has identification (N−Number) markings in accordance with 14 C.F.R. part 45, Subpart C, which are as large as practicable;
  • If the UAS loses communications or loses its GPS signal, the unmanned aircraft must be able to return to a pre-determined location within the private or controlled-access property.

Flight Operations

  • The UA must be operated at an altitude of no more than 400 feet AGL.
  • The UA must be operated within visual line of sight (VLOS) of the PIC at all times.
  • UAS operations may not be conducted during night, as defined in 14 C.F.R. § 1.1.
  • All operations must be conducted under visual meteorological conditions (VMC).
  • The unmanned aircraft may not operate within 5 nautical miles of an airport, unless such operation is permitted by a COA and a letter of agreement with that airport’s management is obtained.
  • The UA must remain clear and give way to all manned aviation operations and activities at all times.
  • Prior to each flight, the PIC must conduct a pre-flight inspection and determine the UAS is in a condition for safe flight.

Maintenance

  • The operator is responsible for maintaining and inspecting the UAS to ensure that it is in a condition for safe operation.
  • The operator must follow the UAS manufacturer’s maintenance, overhaul, replacement, inspection, and life limit requirements for the aircraft and aircraft components.
  • The UAS must comply with all manufacturer safety bulletins.
  • Any UAS that has undergone maintenance or alterations that affect the UAS operation or flight characteristics must undergo a functional test flight prior to conducting further operations

Finally, it is important to know that the Petition for Exemption process is governed by federal regulations (14 C.F.R §§ 11.61-11.103) and that the FAA will not consider petitions that do not follow these regulatory requirements.  Accordingly, guidance concerning the information that must be included in a Petition for Exemption is detailed below.  

4.  Information to include in a Petition for Exemption.

A Petition should contain all the information identified by 14 C.F.R. § 11.81 titled What information must I include in my petition for an exemption? as well as the FAA’s Public Guidance for Petitions for Exemption Filed under Section 333, available here.

The requirements of 14 C.F.R. § 11.81 are set forth below, along with notes to provide additional guidance in drafting a Petition for Exemption.

  • (a)Your name and mailing address and, if you wish, other contact information such as a fax number, telephone number, or e-mail address;
  • (b)The specific section or sections of 14 CFR from which you seek an exemption;

NOTE:  Identify those FARs that impose requirements that cannot be met by the proposed UAS or intended operations.  Although the exact FARs from which exemption must be sought depend on the proposed UAS or intended operation, many commercial UAS operators seek exemption from FARs such as:

  • 14 C.F.R. § 61.23, Medical certificates: Requirement and duration, subsections (a) and (c);
  • 14 C.F.R. § 61.101, Recreational pilot privileges and limitations, subsections (e)(4) and (5);
  • 14 C.F.R. § 61.113, Private pilot privileges and limitations: Pilot in command, subsection (a);
  • 14 C.F.R. § 61.315, What are the privileges and limits of my sport pilot certificate?, subsection (a);
  • 14 C.F.R. § 91.7, Civil aircraft airworthiness, subsection (a);
  • 14 C.F.R. § 91.119, Minimum safe altitudes: General, subsection (c);
  • 14 C.F.R. § 91.121, Altimeter Settings, subsection (a);
  • 14 C.F.R. § 91.151, Fuel requirements for flight in VFR conditions, subsection (b);
  • 14 C.F.R. § 91.405, Maintenance required, subsection (a);
  • 14 C.F.R. § 91.407, Operation after maintenance, preventive maintenance, rebuilding, or alteration, subsection (a)(1);
  • 14 C.F.R. § 91.409, Inspections, subsections (a)(1) and (a)(2); and
  • 14 C.F.R. § 91.417, Maintenance Records, subsections (a) and (b).

NOTE:  Pursuant to a memorandum dated August 8, 2014, from the FAA’s Office of Chief Counsel, the regulatory requirements of 14 C.F.R. Sections 91.9(b), 91.203(a) and (b), 47.3(b)(2), and 47.3l(c) are met if the pilot of the unmanned aircraft has access to these documents at the control station from which he or she is operating the aircraft. 

  • (c) The extent of relief you seek, and the reason you seek the relief;

NOTE: Identify why your UAS or proposed operation cannot fully comply with the each of the FARs from which you request exemption.  

  • (d) The reasons why granting your request would be in the public interest; that is, how it would benefit the public as a whole;
  • (e) The reasons why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to that provided by the rule from which you seek the exemption;
  • (f) A summary we can publish in the Federal Register, stating:
    • (1) The rule from which you seek the exemption; and                                                                
    • (2) A brief description of the nature of the exemption you seek;
  • (g) Any additional information, views or arguments available to support your request; 
  • (h) If you want to exercise the privileges of your exemption outside the United States, the reason why you need to do so.

6.  Submitting a Petition For Exemption.

The FAA has published detailed step-by-step instructions for submitting a Petition for Exemption under Section 333, including specific instructions on how to submit your Petition to the public docket electronically via regulations.gov.  There is no fee associated with filing a Petition for Exemption.

Any Petition for Exemption and accompanying exhibits (checklists, manuals, etc.) will be accessible by the public and available for download.  

Therefore, do not submit any proprietary/confidential information to regulations.gov.  Any proprietary/confidential documents should be clearly marked and emailed to 333exemptions@faa.gov.  The email containing these documents should include the comment tracking number that is assigned upon submitting your Petition for Exemption to regulations.gov.

The FAA handles proprietary information in accordance with 14 C.F.R. 11.35(b), which states as follows:
(b) Proprietary information. When we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 C.F.R. part 7.

7.  Registering and marking the Unmanned Aircraft.

All unmanned aircraft operated pursuant to an authorization obtained by a Petition for Exemption will be required to be identified by serial number, registered in accordance with 14 C.F.R. part 47, and have identification (N−Number) markings in accordance with 14 C.F.R. part 45, Subpart C, which are as large as practicable. 

Like traditional manned aircraft, an unmanned aircraft and its owner must meet the FAA’s registration eligibility requirements, and the following must be submitted to the FAA’s Aircraft Registration Branch:

  • An original Aircraft Registration Application, AC Form 8050-1;
  • Full description of the Unmanned Aircraft;
  • Evidence of Ownership;
  • Confirmation the unmanned aircraft is not registered in another country;
  • A reserved N-number, if any; otherwise a random N-number will be assigned; and
  • $5.00 registration fee made payable to the Federal Aviation Administration.

A detailed description of the above documents and how to submit them to the FAA is provided on the FAA’s Aircraft Registry website, here.  

Although you are not required to do so, it is a good practice to register the unmanned aircraft before submitting your Petition for Exemption.  This will allow you to obtain approval (i.e, a COA) to conduct flight operations as soon as your Petition for Exemption is granted.

8.  Obtaining a Certificate of Waiver or Authorization (COA).

A  “Certificate of Waiver or Authorization” (COA) is an approval from the FAA that makes local air traffic control (ATC) facilities aware of UAS operations, allows ATC coordination, and also requires the operator to request a Notice to Airmen (NOTAM) to alert other users of the NAS to the UAS activities being conducted.

The FAA will automatically issue a COA when granting a Petition for Exemption.   This “blanket” COA authorizes flight operations at or below 200 feet AGL for aircraft that weigh less than 55 pounds, operate during daytime visual meteorological conditions under visual flight rules, and operate within visual line of sight of the PIC and a safety observer.

The blanket COA typically permits operations anywhere in the country outside of areas where the FAA prohibits UAS operations (such as Restricted Airspace) and also requires the UAS to stay certain distances away from airports or heliports (5 NM from an airport with an operational tower; 3 NM from an airport with a published instrument flight procedure (IFP), but no operating tower; 2 NM from an airport without a published IFP or an operational tower, or a heliport with a published IFP). 
To conduct any operations outside the scope of the blanket COA, such as operating closer than 5 NM from an airport with an operational tower, individuals or organizations must already hold a Grant of Exemption and must submit a request to the FAA through the UAS Civil COA website to issue a COA for the particular block of airspace.  Operator’s COA requests must comply with the conditions and limitations specified in the Grant of Exemption.  For example, operators may request flights up to the maximum altitude specified in the Grant of Exemption, typically 400 feet AGL. 

The FAA reviews each COA application on a case-by-case basis, imposing conditions or limitations as necessary to ensure safe operation of the unmanned aircraft.

9.  Conduct all operations in accordance with the Conditions and Limitations of the Section 333 Grant of Exemption, the COA, the FARs, and any other applicable laws. 

Like any operation in the NAS, failure to adhere to the applicable laws, regulations, and policies, may endanger the safety of people and property in the air and on the ground.

The UAS, PIC, and the all of the related operations must comply with all applicable FARs, as well as the conditions and limitations in the Section 333 Grant of Exemption and COA.  A violation could result in the immediate suspension or revocation of the Grant of Exemption, as well as an FAA enforcement action against the PIC’s airman certificates and a civil penalty against the owner/operator.

Likewise, commercial UAS operators should be aware of any applicable state and federal laws, regulations, or policies concerning unmanned aircraft systems.

The laws, regulations, and policies affecting unmanned aircraft systems are complex and constantly changing. AOPA will periodically revise this article to reflect the latest developments concerning UAS.

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