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The Federal Aviation Administration (FAA) considers small UAS
to be aircraft; thus, all of the Federal Aviation Regulations (FARs)
apply to small UAS. The FARs are standards the FAA uses to
achieve safety of the National Airspace System (NAS). Thankfully,
not ALL of the FARs apply to public (government) aircraft like
they do with civil aircraft. This comes as a surprise to many but
makes sense because Congress wanted to leave agencies to
do what they need to do without all the hindrances the FARs
would bring. An agency can implement a small UAS program in
two main ways, either by hiring a commercial subcontractor who
operates commercially under a Section 333 Exemption, or by the
agency setting up a small UAS operation that has obtained Public
Aircraft Operations (PAO) status and a waiver. Most government
agencies choose to set up their own operations because public
aircraft operations do NOT need to be flown by FAA-certificated
pilots, the aircraft do NOT need to be maintained (airworthiness)
according to FAA standards, and the pilots do NOT need to
adhere to FAA medical certification. The agencies are free to
develop their own standards and self-certify themselves or adopt
the FAA standards being applied to civil aircraft. That being said,
public agencies SHOULD develop standards for safe operation;
otherwise, the FAA could hold the operations of the aircraft to be
“careless and reckless.” 1
SAFETY OFTHE NAS
OPERATIONSTANDARD
AIRMENSTANDARDS
Civil = FAA
AIRCRAFTSTANDARDS
Civil = FAA
MEDICALSTANDARDSOF PILOTS
Civil = FAA
Back
grou
nd
© Cabezon Group 2016www.cabezon.com
1 “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” 14 C.F.R. § 91.13(a).
1
SMALL UAS LAWfor Public Safety Decision Makers
IN10 MINUTESPresented by:
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2© Cabezon Group 2016www.cabezon.com
How
Doe
s A
Small
UAS
Ope
ratio
n O
btain
Pu
blic
Airc
raft
Ope
ratio
n St
atus
?
Ownership & Operation of the Small UAS
For the aircraft to be considered a “public aircraft,” it must fit specifically within one of five situations. Only four
of them are relevant to this topic and they are:
(1) An aircraft used only for the United States Government;
(2) An aircraft owned by the Government and operated by any person for purposes related to crew
training, equipment development, or demonstration;
(3) An aircraft owned and operated by the government of a State, the District of Columbia, or a territory or
possession of the United States or a political subdivision of one of these governments; or
(4) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District
of Columbia, or a territory or possession of the United States or a political subdivision of one of these
governments. (There is an exception to the 90 days but ONLY for search and rescue operations fulfilling
certain requirements. Also, the lease must be for 90 days, NOT wait for 90 days, in other words, sign the
contract for a 90 day lease and 1 minute later go fly the small UAS).
Notice that all four of these aircraft were used or owned in some way by a government.
This means that when submitting the declaration letter later on to the FAA, the
letter is going to have to “prove” that the entity is a government entity.
(For example, by an act of Congress, municipal corporation
charter document, etc.)
Congress wanted government agencies to be free to do what they needed to do, not allow them a creative way
to escape safety regulations for ANY type of operation. PAO status is dependent upon strictly meeting statutory
requirements. By default, the FAA considers all aircraft operations to be civil operations (all FARs apply), unless
the aircraft operation falls specifically within a PAO. It is a case-by-case determination. For example, a small UAS
used for firefighting operations is a PAO while the same small UAS being flown by the same fire department for
commercial photography to raise money for a new fire truck is NOT a PAO. (Commercial photography is NOT a
government function). If the operation was not a PAO, all the FARs apply and the agency could be in violation
of the FARs. An agency operation can conduct BOTH types of operations and “switch hats” but they have to
be able to be compliant under either hat. To achieve public aircraft operations status, the agency must: (1) own
the aircraft under one of five ways, (2) be fulfilling a government function, and (3) not be receiving any type of
reimbursement for the operations.
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2 49 U.S.C § 40125(a)(2).3 Technically, “‘commercial purposes’ means the transportation of persons or property for compensation or hire[,]”49 U.S.C § 40125(a)(1), but small UAS do not carry persons, there unmanned, or property for hire, they carry their own sensors and transmit data, but the FAA has been applying “commercial purpose” to civilian aircraft in a way so that if the flight receives any type of direct or indirect benefit, the flight is considered commercial. The “cause no trouble” answer is no direct or indirect benefit to the flight. See also Letter from Rebecca MacPherson to Andre Aman (Nov. 19, 2011), http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2011/aman-nebraskadeptaeronautics%20-%20(2011)%20legal%20interpretation.pdf 4 Letter from Rebecca MacPherson to Gayle Fuller (Sept. 29, 2009), http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2009/dea%20interp%20-%20(2009)%20legal%20interpretation.pdf
See also Letter from Rebecca MacPherson to Barrato (July 14, 2011), http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2011/barrato-miamidadefirerescue%20-%20(2011)%20legal%20interpretation.pdf
5 Letter from Mark Bury to Jim Williams (July 3, 2014), http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2014/williams-afs-80%20education%20-%20(2014)%20legal%20interpretation.pdf
REIMBURSEMENT PROBLEMS• Federal Paying State For Flight• State Paying Federal For Flight• State A Paying State B For Flight• Citizen Paying State or Federal For Flight
NOT A PROBLEM• State Receiving Money From Federal Agency To Purchase A Small UAS Or Training• Agency Paying Money To Civilian Contractor For Crew Training
REIMBURSEMENT PROBLEMS• Federal Paying State For Flight• State Paying Federal For Flight• State A Paying State B For Flight• Citizen Paying State or Federal For Flight
NOT A PROBLEM• State Receiving Money From Federal Agency To Purchase A Small UAS Or Training• Agency Paying Money To Civilian Contractor For Crew Training
The Operation Must Be Fulfilling a Government FunctionIf the aircraft falls into the definition of public aircraft above, the next step is to
analyze the operation to see if it fulfills a “government function” which “means
an activity undertaken by a government, such as national defense, intelligence
missions, firefighting, search and rescue, law enforcement..., aeronautical research,
or biological or geological resource management.” 2 This is NOT an exhaustive list. If operations fall outside of this list, an agency could ask the FAA General Counsel’s
Office for a legal interpretation on whether the proposed operation is considered
to be fulfilling a core government function. Tennessee Valley Authority did this and
the FAA General Counsel’s Office sent them a letter determining that small UAS
dam inspections were considered to fulfill TVA’s core government function. So when
evaluating, look at your agency’s purpose, not so much at the list. If in doubt, talk to
a lawyer or get a legal interpretation from the FAA.
No Reimbursement for the Operation
If the aircraft is a public aircraft and it is fulfilling a governmental function, the last
step is determining if the flight is flown for a commercial purpose. The FAA interprets
commercial purpose very broadly to mean the agency cannot be receiving any
type of reimbursement for the flight.3 Operations where an agency is reimbursed by another agency could cause the operation to lose PAO status. For example, the
Federal Drug Enforcement Agency paying the State of Georgia to fly Georgia aircraft
to help eradicate marijuana would be considered a reimbursement. 4 However, “a
government entity may contract with a private operator (and pay that operator) to
conduct a PAO on behalf of the government entity. The statutory prohibition
on commercial purpose prevents a government entity from
getting paid or reimbursed to operate a PAO, not for
paying for contracted services.” 5 Simply
put, money can’t come in for
the flight.
http://www.cabezon.com http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretationshttp://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations
4© Cabezon Group 2016www.cabezon.com
If your operations meet the criteria above, you need
to apply for a Certificate of Authorization or Waiver
(COA). A waiver is needed because not all of the
FARs can be complied with. For example, 14 C.F.R.
§ 91.113(b) requires the pilot to “see and avoid
other aircraft[,]” but this is difficult because the FAA’s
interpretation of this regulation is the eyeballs need
to be on the aircraft but they are on the ground.
The COA application will ask for many things such
as the location, the operations, the equipment, the
pilot experience, etc. The FAA will “tailor” a COA to
meet your goals and then you will be issued a COA
which will typically last for 2 years for a particular
geographic location. How quickly one can get a COA
will vary depending on the airspace and operations.
Rough numbers will be provided in the checklist to
follow for planning purposes. The COA typically runs
around 20 pages and will list out explicitly what is
required of the agency.
If a situation happens where the PAO needs to
deviate from the COA, the agency can contact the
FAA and ask for an Emergency Certificate of Waiver
or Authorization (ECOA) for different aircraft and/or a
different location, but there must be a COA already
in place. This might come in handy if a neighboring
agency asks for help. Agencies can obtain ECOAs
in somewhat rapid time. It should be stressed that
a COA and plans for an ECOA should be in place
BEFORE an agency needs an ECOA. The quickest I
have ever heard of an ECOA coming through was in
45 minutes. The ECOA can also be coordinated with
a temporary flight restriction (TFR) which will keep
out all aircraft unless specifically authorized by the
controlling agency (you or whoever is designated).
Wha
t App
rova
ls Ne
ed to
Be
Obt
ained
Prio
r To
Ope
ratio
n?
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To wrap it up, the agency must achieve
public aircraft operations status by
showing the agency: (1) owns the
aircraft under one of five ways, (2) is
fulfilling a government function, and (3) is
not receiving any type of reimbursement
for the operations. Once it has been
determined that all three have been met,
the agency sends off a declaration letter
to the FAA, the FAA allows the agency
to fill out the COA application online,
the FAA reviews the application, and
then gives the agency a COA. That’s
it. Don’t be intimidated by this process.
There are professionals who can help
you all along the way. The first step in
this process starts with you.
Are you ready?
It is extremely important to have on
speed-dial professionals to answer
your questions as well as keep you
informed as to what pending legislation
or regulations that can be beneficial or
detrimental to your operations. This
is an evolving area of the law which
requires expertise.
Conc
lusio
n Tasks TimeI. Draft a declaration letter explaining that you meet
all 3 of the above elements.
1-5 Days
2. Have the attorneys that represent your agency
sign the declaration letter on their letterhead (e.g.
Department of Justice, Attorney General’s Office,
County Attorney, City Attorney, State Attorney/
District Attorney, etc.). This letter should prove
that you are a government entity by showing what
created the entity (act of Congress, municipal
corporation charter, etc.).
1-4 Weeks
3. Send declaration letter to your local Flight
Standards District Office (FSDO) and the FAA
COA office to receive online COA application login
information. The FAA will provide you with login
information to the online COA portal.
1-2 Weeks
4. File COA 1-2 Weeks
5. Back-n-forth with FAA’s Air Traffic Organization
before approval.
1-6 Months
Summary: 7 weeks-32 weeks (1.75 – 8 months) from start to finish.
Airspace, operations, and who is managing the COA application will
greatly affect the time until approval.
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q OWNERSHIP/USE MUST BE ONE OF THE FOLLOWING:m (1) An aircraft used only for the United States Government;
m (2) An aircraft owned by the Government and operated by any person for purposes related to crew
training, equipment development, or demonstration;
m (3) An aircraft owned and operated by the government of a State, the District of Columbia, or a
territory or possession of the United States or a political subdivision of one of these governments; or
m (4) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the
District of Columbia, or a territory or possession of the United States or a political subdivision of
one of these governments. (There is an exception to the 90 days but ONLY for search and rescue
operations fulfilling certain requirements).
q GOVERNMENT FUNCTION MUST BE ONE OF THE FOLLOWING. (If your operations do not fall into one of the following, please consult with an aviation attorney, the FAA, or
seek a legal interpretation from the FAA’s Office of General Counsel.)
m National Defense,
m Intelligence Missions,
m Firefighting,
m Search And Rescue,
m Law Enforcement,
m Aeronautical Research, or
m Biological Or Geological Resource Management
q YOU MUST NOT BE RECEIVING ANY TYPE OF REIMBURSEMENT FOR THE FLIGHTm Are you receiving anything from the individual being rescued or helped?
m Their insurance carrier?
m Is another government agency paying you for the flight?
IF YOU HAVE CHECKED ALL 3 OF THE ABOVE, THEN YOU MAY PROCEED WITH THE COA
APPLICATION PROCESS.
Chec
klist
for P
ublic
Airc
raft
Ope
ratio
ns S
tatu
s
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7
Small UAS is owned/usedin one of the 4 ways?
Is the small UAS being flown for a listed
government function?
Are you receiving anytype of reimbursement?
YOU ARE ELIGIBLE FORPUBLIC AIRCRAFT
OPERATIONS STATUS
FILE DECELERATIONLETTER TO FAA
SUBMIT COAAPPLICATION ONLINE
WORK WITHFAA TO “TAILOR”
FAA GRANTS COA &YOU START OPERATING
YES
YES
NO
Ineligible for Public Aircraft Operations Status.You are a civil aircraft operation (i.e. you need aFAA pilot license, a FAA medical certificate, aSection 333 exemption, etc.)
NO
NO
YES
2-7 WEEKS DRAFTLETTER, GET IT
SIGNED, & MAIL IT
1-2 WEEKS GATHERINGINFO & SUBMITTING
APPLICATION
1-6 MONTHS“TAILORING”
2 YEARS
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