333 Exemptions (and COAs) for drone use: A short course
8/9/16 UPDATE NOTE: The information below was prepared prior to introduction in June of 2016 of a new Part 107 of Federal Aviation Regulations. This new Part 107 specifies a consolidated set of rules for UAS flying, the limitations that will apply, and certification requirements for people that fly them. There is a post on all this elsewhere on this site. 333 exemptions, as explained below, will likely be phased out in the months ahead, except for very limited purposes.
Certain UAS uses that may be for pubic or commercial purposes can be specifically authorized by the Federal Aviation Administration through a “333 Exemption”, which refers to a portion of UAS rules passed by Congress in 2012.
(There are also “Certificates of Authorization”, or COAs, of a special kind for drone use by governmental bodies or agencies, such as police, that can also be obtained from the FAA. These will not be explored here. However, COAs of a different kind must go along with the 333 Exemption, and are mentioned below.)
Here’s the FAA explanation of what a 333 Exemption is:
By law, any aircraft operation in the national airspace requires a certificated and registered aircraft, a licensed pilot, and operational approval. Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA) (PDF) grants the Secretary of Transportation the authority to determine whether an airworthiness certificate is required for a UAS to operate safely in the National Airspace System (NAS).
This authority is being leveraged to grant case-by-case authorization for certain unmanned aircraft to perform commercial operations prior to the finalization of the Small UAS Rule, which will be the primary method for authorizing small UAS operations once it is complete.
The Section 333 Exemption process provides operators who wish to pursue safe and legal entry into the NAS a competitive advantage in the UAS marketplace, thus discouraging illegal operations and improving safety. It is anticipated that this activity will result in significant economic benefits, and the FAA Administrator has identified this as a high priority project to address demand for civil operation of UAS for commercial purposes.
A drone operator who wishes to use a drone for some purposes other than recreational or hobby may file through an online portal to the FAA for such an exemption. Exemption requests have been filed by the operator, or, in many cases, by an attorney on the operator’s behalf. They are fairly detailed, addressing 13 specific areas of concern the FAA has published, and requiring citing those specific rules of the FAA, such as pilot operating requirements, aircraft registration, various operating limitations, and a number of other rules, from which the drone operator seeks exemption. Also, working documents for the drone operator’s business, such as pilot qualifications, equipment manuals, and safety/procedures manuals, will likely need to be filed. It may take months to get an approval. As of the close of the end of mid October, 2015, over 1,800 such exemption requests have been granted. So, the drone operator with such a grant is freed up to do business with drones. Right?
That’s the theory. In practicality, there are a number of conditions and limitations that go along with the exceptions, 31 of them as set forth in what appears to be the majority of 333 Exemption authorizations issued by the FAA. There may be further limitations and obligations for specific activities that the business may undertake that come along with FAA authorizations required for specific flights.
And some of the basic 31 limitations can be VERY limiting, dictating qualifications of the drone operators and making filming or photography of many subjects a challenge. Just three examples of some of the stringent requirements/limitations:
(PIC: the drone pilot in command; UA: unmanned aircraft; CFR references relate to other sections of Federal Aviation Regulations, which are enforceable by law).
13. Under this grant of exemption, a PIC must hold either an airline transport, commercial, private, recreational, or sport pilot certificate. The PIC must also hold a current FAA airman medical certificate or a valid U.S. driver’s license issued by a state, the District of Colombia, Puerto Rico, a territory, a possession, or the Federal government. The PIC must also meet the flight review requirements specified in 14 CFR § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.
26. All Flight operations must be conducted at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures unless:
a. Barriers or structures are present that sufficiently protect nonparticipating persons from the UA and/or debris in the event of an accident. The operator must ensure that nonparticipating persons remain under such protection. If a situation arises where nonparticipating persons leave such protection and are within 500 feet of the UA, flight operations must cease immediately in a manner ensuring the safety of nonparticipating persons; and
b. The owner/controller of any vessels, vehicles or structures has granted permission for operating closer to those objects and the PIC has made a safety assessment of the risk of operating closer to those objects and determined that it does not present an undue hazard.
27. All operations shall be conducted over private or controlled-access property with permission from the property owner/controller or authorized representative. Permission from property owner/controller or authorized representative will be obtained for each flight to be conducted.
Obviously, first, making sure the drone pilot is a certificated, current, aircraft pilot is one hurdle that may not easily crossed for many drone operators. And the next two limitations make drone photography on short notice, or of a immediately newsworthy event, and where people, vehicles, and buildings are located, essentially impossible, particularly since exception 4 (not shown here) limits drone altitude to 400 feet above the ground.
The 333 Exemption grants grant, as they commonly come from the FAA, also require a COA (Certificate of Operation/Waiver) to be obtained for actual flights. A “blanket COA” , specifying 200 foot high flight limit, and specifying distances from various kinds of airports (along with other requirments for flight) is now issued. For flights that don’t fit within the blanket COA limits, the operator is called on to file for a different COA. In short, the 333 Exemptions has limits and guidelines for flights, and the COA does, as well. It’s the combo of the two that ultimately specify how a flight is to be conducted.
So while a 333 Exemption might initially seem like a useful tool to the drone owner who wants to do imagery for compensation legally, it doesn’t offer a great deal of latitude and will be a challenge to obtain. The exemption is intended to define and implement professionalism and safety, as the FAA currently sees it.
So, at this point, if you’re thinking a 333 Exemption might be of use to you, let’s talk about what your mission and objective is, and see how that might fit within the FAA scheme for these exemptions, or whether a custom-crafted exemption request, or possible evolving interpretations, might make a 333 Exemption fit certain defined needs.
Berl Brechner, NewsDrones, May 2015 Updates: Oct. 2015, August 9, 2016