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2016-10-06

Texas Agriculture Law the UAS “drone” rules are here

Special to the Courier

The long-awaited Federal Aviation Administration (“FAA”) rules for the operation of small unmanned aircraft systems (“UAS” or “drones”) are here and in effect. The rules are codified at 14 CFR part 107.
History
You may recall that back in February 2015, the FAA released its proposed rules, which apply to all UAS weighing between .55 pounds and 55 pounds used for commercial purposes. After collecting and considering public comment, the FAA issued its final rules on June 21, 2016, which became effective August 29, 2016. Prior to these new rules becoming effective, commercial UAS use within the US was prohibited unless a special permit was obtained by the FAA. Now, commercial UAS use is permitted so long as the rules are followed. Most commentators believe that agricultural use of a drone would fall within in the realm of “commercial use,” meaning that the following rules must be followed.
FAA Rule Summary
The complete final FAA rule may be viewed here. The following are some of the provisions that could have the greatest impact on agricultural UAS users
Registration of a UAS All UAS weighing between .5 and 55 pounds, regardless of whether flown for hobby or for commercial use must be registered with the FAA before first flight. The registration process is fairly painless and for most users may be completed online. Registrants must be at least 13 years old, must pay a $5 fee, will need the make and model of the drone, and must label the aircraft with an official registration number given at the completion of the registration process. Each registration is good for 3 years.
Remote pilot airman certificate with small UAS rating Operators using a UAS for commercial purposes must obtain a “remote pilot airman certificate with small UAS rating.” Doing so, however, is fairly straightforward. Requirements include: (1) that the operator be over 16 years old; (2) speak and write English; (3) be in a physical and mental condition sufficient to safely fly a drone; (4) complete a TSA review process; and either (a) pass an initial multiple choice aeronautical knowledge exam at an FAA-approved testing center [click here for a list of approved centers and here for info on test preparation] or (b) hold a current sport pilot’s license, complete a flight review in the past 2 years, and take an online training test. The cost to take the test will be around $150 and the FAA estimates that a temporary certificate can likely be processed within about 10 days of application receipt. The certificates will be valid for 2 years.
Pre-flight safety check The certified pilot must conduct a pre-flight safety check to ensure there is no equipment damage or malfunctions. Detailed inspection instructions may be found in Chapter 7 of the rule.
Allowing non-certified pilot to operate controls A UAS may be flown only by a certified pilot or someone under the direct supervision of a certified pilot. Direct supervision means that the pilot is able to easily gain control of the drone if needed. Each pilot may only supervise one person at a time and each pilot may only fly one drone at a time.
Base of operation A UAS may not be operated from a moving aircraft. Drones may be operated from a moving vehicle if in a sparsely populated area.
Visual line of sight requirement The pilot must maintain a constant visual line of sight with the UAS, without the aid of a device other than corrective lenses or contacts. For example, eye glasses are allowed, but binoculars are not. The operator may use a visual observer to help maintain the line of sight, but no person may serve as a visual observer for more than one UAS at a time. A visual observer and pilot must maintain “effective communication” with each other at all times.
Flight in certain areas prohibited A UAS may not be flown: (1) Over people who are not involved in the flight; (2) Inside a covered structure; (3) Inside a covered stationary vehicle; or (4) Within a controlled airspace, meaning that drones may be flown only in Class G airspace, which is not controlled by Air Traffic Control. In order to fly in any controlled airspace, the pilot must obtain approval from Air Traffic Control before the flight.
Yielding right of way The operator of a UAS must yield the right of way in order to avoid collision with other users of airspace.
Visibility There must be at least 3 miles visibility from the UAS control station.
Time of day Flight may occur only during daylight and civil-twilight hours, meaning can be flown 30 minutes before official sunrise until 30 minutes after official sunset so long as proper anti-collision lighting is present.
Maximum altitude A UAS may not be flown in excess of 400 above ground level.
Maximum speed UAS speed may not exceed 100 miles per hour.
Use for aerial application A UAS used to dispense herbicides, pesticides, or similar substances must also comply with the “agricultural aircraft operation” regulations found at 14 CFR 137. This rule contains separate certification, operation, and reporting requirements that should be carefully reviewed and followed.
Reporting incidents to the FAA within 10 days
If an incident occurs and results in either (1) serious injury or loss of consciousness to any person; or (2) damage to property (other than the UAS itself) if the cost of repairing or replacing (whichever is lower) exceeds $500, it must be reported to the FAA within 10 days.
Certificate of waiver If a person can safely operate a UAS outside these rules, he or she may request a certificate of waiver from the FAA that will allow deviation from specific requirements of the rule if the FAA determines that a safe flight would still be possible. The waiver must be received by the operator before flight, so requests should be submitted at least 90 days prior to the desired flight.
Potential penalties for violation The FAA will enforce these rules and violators could face civil penalties up to $27,500. Criminal penalties up to $250,000 may also be imposed if destruction of property or threats to public safety occur.
Privacy Issues
Many landowners and citizens are concerned that the use of a UAS may impact their personal privacy rights. The FAA regulations do not address legal issues regarding privacy and the use of a UAS. This is simply not within the realm of the FAA. Instead, these issues will likely fall under state law. As I have written about before, landowners should not shoot down a UAS flying over their property. Instead, they should look to common law and statutory rules in their jurisdiction. I’ve written previously on potential common law claims (including trespass, nuisance, and invasion of privacy) here and on the Texas Privacy Acthere. Both UAS pilots and landowners should carefully review and understand any privacy laws in their jurisdiction and be careful to follow those rules to avoid liability.