Petition 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.

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:

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.  

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: