Morris Manning & Martin, LLP

Summary of New FAA Drone Regulations

08.16.2016

I. Introduction

On June 21, 2016, the Federal Aviation Administration (FAA) amended its regulations to adopt specific rules for the commercial operation of small Unmanned Aircraft Systems (sUAS)in the national airspace.[1]  Contained in Part 107 of Title 14 in the Code of Federal Regulations, these new rules, in part, were promulgated in response to the concerns expressed by commercial industries interested in adding drones to their services and products.[2]  Previously, regulations prohibited the private sector from operating sUAS without a special waiver from the FAA.[3]  Though the FAA had been averaging an approval rate of 50 waivers per week, demand had outpaced supply, stretching average wait times from 60 days to three or four months, thus greatly impeding the private sector’s access to offering drone services.[4]

The new regulations are set to take effect at the end of August 2016 and contain critical information for all players in the industry.  Accordingly, we have summarized this regulatory framework to highlight the rules’ key implications, including (1) their applicability to categories of sUAS, (2) sUAS operational limitations, and (3) remote pilot certification requirements.[5]

II. Application and Classification of sUAS

Subpart A of Part 107 governs the applicability of the rules to categories of sUAS.  The rules will apply to commercial UAS weighing less than 55 pounds (25 kg), which are able to fly without direct human intervention within or on the aircraft.[6]  Importantly, however, sUAS flown strictly for hobby or recreational purposes will not be subject to these rules.[7]

The regulations will permit sUAS to transport non-hazardous property for compensation or hire, but only if any attached cargo is properly secured and does not interfere with the drone’s flight characteristics or cause the loaded aircraft to exceed the 55 pound weight limit.[8]  All sUAS flights involving the transportation of goods must be confined to the bounds of a single state.[9]

More generally, and in addition to the pre-existing flight ban over persons not otherwise participating in the sUAS operation, remote pilots will be prohibited from operating sUAS under covered structures or in stationary vehicles.[10]  Finally, although no person may operate a drone from a moving aircraft, sUAS can be operated from a moving land or water-borne vehicle so long as the drone is flown over sparsely populated areas and is not transporting another person’s property for compensation or hire.[11]

III. Operational Limitations

Subpart B of Part 107 provides guidance on the operating limitations of sUAS and the responsibilities of all operators and participants to any sUAS operation.

While flight of sUAS is limited to daytime use, operators are allowed to fly their drones 30 minutes before official sunrise to 30 minutes after official sunset, provided they have the proper anti-collision lighting installed on their drone.[12]

At all times during flight, the sUAS must remain within the Visual Line-Of-Sight (VLOS) of the drone operator.[13]  In other words, operators must be able to see the aircraft with vision unaided by any device (such as the drone’s camera) as well as maintain weather visibility of 3 miles from their control station.[14]  Alternatively, the operator can opt to control the sUAS remotely, but only with the additional services of a “Visual Observer,” who can, instead, keep the aircraft within their unaided sight (e.g., no binoculars).[15]

Drones may not exceed a flight speed of 100 miles per hour or a height/elevation of 400 feet above the ground or a structure.[16]  They must also yield the right of way to any other aircraft and obtain permission from Air Traffic Control before operating in Class B, C, D or E airspace.[17]  Finally, all remote pilots must now conduct comprehensive preflight safety checks of their aircraft before each flight, as detailed in the rules.[18]

These rules may be deviated from only in the event of an in-flight emergency or in limited instances where the FAA has authorized deviation from certain regulations.[19]  Moreover, in the event of an accident, remote pilots must report to the FAA within 10 days of any operation resulting in serious or fatal injury, loss of consciousness, or property damage of at least $500.[20]

IV. Remote Pilot Certification

Arguably the most significant change to the existing regulations is found in Subpart C of Part 107, which effectively eliminates the need to obtain a special waiver from the FAA before operating sUAS in the private sector.  Instead, commercial drone operators must now become certified pilots.[21]  Applicants must be at least 16 years old and possess, or be directly supervised by someone possessing, a remote pilot airman certificate.[22]  The certificate can be obtained by passing an aeronautical knowledge test at an FAA-approved center.[23]  Alternatively, a candidate can obtain a certificate through proof that they (1) have a “Part 61” pilot certificate other than a student pilot, (2) have completed a flight review within the previous 24 months, and (3) have completed an online training course provided by the FAA.[24]  A background check will also be conducted.[25]

V. Anticipated Future Changes

Notably, the regulations do not yet address issues related to privacy.  The FAA is currently undergoing a privacy education campaign, which aims to produce a list of recommended privacy guidelines that will be made to complement the drone registration process.  The FAA further plans to expand these rules to allow for an enhanced range of operations in the future.  Considering forecasts predict that over 90 percent of drone owners will be operating sUAS in five years, it remains critical to stay apprised of recent changes in the field of drone regulation.[26]


[1] The first wave of legislation related to drones was announced on December 14, 2015 and required all present and future operators of sUAS to register their drones beginning December 21, 2015.

[2] Danny Vogel, New Drone Operational Rules Finalized by the FAA, The National Law Review (July 11, 2016) (explaining that the rules do not apply to drones being used for purposes other than hobbyist operations).

[3] Dee Ann Divis, FAA: Small UAS Rule to Be Done in a Year, Inside Unmanned Systems (March 2016), available at http://insideunmannedsystems.com/author/dee-ann-divis/ (explaining these special waivers are often referred to as “Certificates of Authorization” or simply “Waivers”).

[4] Dee Ann Divis, FAA Drone Rules Released but Key Processes yet to be Developed, Inside Unmanned Systems (June 2016), available at http://insideunmannedsystems.com/faa-drone-rules-released-but-key-processes-yet-to-be-developed/ (analyzing the strengths and weaknesses of the new drone rules).

[5]John S. Duncan, Advisory Circular: Small Unmanned Aircraft Systems, Federal Aviation Administration (June 21, 2016) (providing context to the new rules).

[6] 14 CFR § 107.1-.9 (discussing the applicability of the regulations to various aircraft and airborne entities).

[7] Id.; see Vogel, supra note 2 (discussing the implications of Part 107).

[8] 14 CFR 107.31 (visual line of sight aircraft operation); 14 CFR 107.36 (regulating carriage of hazardous material).

[9] Operation and Certification of Small Unmanned Aircraft Systems, Billing Code 4910-13-P, Department of Transportation: Federal Aviation Administration (2016) (suggesting further that transport in Hawaii, Washington D.C., or any U.S. territory will be prohibited).

[10] 14 CFR § 107.39 (regulating operations over human beings);

[11] 14 CFR § 107.25 (regulating operations from a moving vehicle or aircraft).

[12] 14 CFR 107.29 (restricting operation to daylight hours); 14 CFR 5.16.1

[13] 14 CFR 107.31 (defining visual line of sight for drone operation); see Danny Vogel, New Drone Operational Rules Finalized by the FAA, The National Law Review (July 11, 2016) (summarizing key changes to drone regulation with the advent of Part 107).

[14]14 CFR 107.51 (addressing operating limitations for small unmanned aircraft).

[15] 14 CFR 107.33 (discussing visual observers).

[16] 14 CFR 107.51 (discussing operating limitations for small unmanned aircraft).

[17] 14 CFR 107.37 (discussing right-of-way rules); 14 CFR 107.41 (discussing operations in certain airspace).

[18] 14 CFR 107.49 (addressing preflight familiarization, inspection, and actions for aircraft operation).

[19] Part 107, Subpart D at 14 CFR 107.205 (listing regulations subject to waiver).

[20] 14 CFR 107.9 (regulating accident reporting).

[21] 14 CFR 107.63 (explaining issuance rules for remote pilot certification with a small UAS rating).

[22] 14 CFR 107.61 (regulating eligibility).

[23] 14 CFR 107.65-.73 (defining aeronautical knowledge recency).

[24] 14 CFR 107.61 (discussing rules for pilot certification).

[25] 14 CFR 107.57 (regulating offenses involving alcohol or drugs).

[26] “Commercial (Non Modeler) small UAS Fleet Forecasts: Reconciling Differences in the Registry IFR and Part 107 Final Rule” section of the regulatory evaluation for more detail on the low case and high case ranges.

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The information presented is for educational and informational purposes and is not intended to constitute legal advice. Readers should consult their professional advisor. Any opinions expressed within this article are solely the opinion of the featured authors and not of Morris, Manning & Martin, LLP.