In a surprise move, the Federal Aviation Administration announced last year that unmanned aircraft systems (UAS) delivery operations will be required to obtain a commercial air operator certificate (AOC). At a Drone Advisory Committee meeting in Santa Clara, Calif., the FAA announced that UAS package delivery operations would need an AOC issued under 14 CFR Part 119, as required by 14 CFR Part 135. That certification also requires “economic authority” from the U.S. Department of Transportation (DOT), which can only be held by a “citizen of the United States,” as defined in DOT regulations (See 14 CFR § 119.33).
This announcement that UAS delivery services would need to meet the same safety and economic certification standards as commercial operators of passenger aircraft came as a surprise to the UAS industry, especially participants in the FAA’s UAS Integration Pilot Program, which brings together state, local and tribal governments with private-sector entities to accelerate the integration of UAS into the national airspace system.
As part of this program, various UAS operational concepts are being pursued, including package deliveries by UAS. One participant is the North Carolina Department of Transportation (NCDOT) which has partnered with private-sector entities Matternet and WakeMed Health & Hospitals to deliver lifesaving medical supplies. NCDOT conducted the first round of test flights in September 2018 in Raleigh, N.C., with plans to expand to other facilities throughout the three-year term of the program.
“This ‘First Flight’ is a major step forward in the worlds of healthcare and unmanned technology,” said Basil Yap, head of NCDOT’s UAS program. “We’re crossing a new frontier that will bring increased efficiency and lower costs to healthcare providers and ultimately help save patients’ lives.”
But as reported by Bloomberg in January 2019, NCDOT, along with other UAS Integration Pilot Program participants, was “stunned” in the meeting during which the FAA announced its decision to require package delivery operations to meet Part 135 certification requirements.
Many elements of air operator certification are impractical, if not impossible, for UAS operators to meet. For example, under 14 C.F.R. § 135.25(a), aircraft must be in an airworthy condition and meet the applicable airworthiness requirements of Part 135, including those relating to identification and equipment, and must carry an appropriate and current airworthiness certificate during operations. This is not possible given that small UAS do not qualify for airworthiness certificates.
Part 135 also requires that an operations manual approved by the FAA be carried onboard each aircraft during commercial operations, which is also not possible for small UAS.
Part 135 also contains pilot minimum flight experience and training requirements that are inconsistent with those promulgated under 14 C.F.R. Part 107. Part 135 requires all pilots to be regularly tested on weight and balance, air traffic control procedures, meteorology, recognizing and avoiding bad weather, and instrument flight rules, which, again, are impractical – if not impossible – in the UAS context.
This is in many ways reminiscent of the FAA’s initial integration of UAS into the national airspace system, which required operators to obtain exemptions from regulations that were not compatible with their operations and demonstrate an equivalent level of safety in their proposed operations. Likewise, in the case of parts 119 and 135, UAS operators would have the opportunity to request waivers from regulatory requirements in the certification process, but the FAA reportedly has not determined how exactly it will process Part 119/135 UAS certifications, let alone developed a system to allow exemptions.
The cumbersome AOC certification process will also present challenges for UAS operators. The FAA utilizes a phase-and-gate system that has five distinct phases and three gates. The typical processing time for AOC certification is over two years, and the FAA has not provided any guidance on how this process may be streamlined for UAS operators. This raises a number of concerns for UAS operators in drafting the certification documents, as a company must have enough foresight to anticipate changes to their operations while also incorporating UAS technological advances. Moreover, a number of smaller UAS entities may find that the certification process is cost-prohibitive, potentially limiting the volume of UAS package deliveries and limiting competition within the industry.
The DOT citizenship requirements for AOC certification further complicate the ability of foreign companies to participate in package delivery operations. At present, commercial operators must be U.S. citizens. For corporations, that requires them to be organized under the laws of the U.S., a state, the District of Columbia, or a U.S. possession or territory. They must also have a U.S. citizen as president, and at least two-thirds of the board of directors and other managing officers must be U.S. citizens. Further, at least 75% of the voting interest must be owned or controlled by U.S. citizens. For partnerships to meet the citizenship requirements, all of their partners must be citizens of the U.S.
The federal government purportedly will refuse to waive this requirement for corporations such as Matternet, a Swiss-owned corporation, even though the company is currently participating in the UAS Integration Pilot Program and has successfully conducted similar flights in Switzerland, including a recent expansion of its test operations that transported laboratory samples within Zurich, reducing delivery times by half. It is unclear whether the DOT will allow an exemption from its economic authority regulations in the future.
Will these requirements be extended to other commercial UAS operators? Probably not. Current regulations create exceptions to the general rule that commercial operations must be conducted by holders of an AOC. In particular, an AOC is not required for “aerial work operations,” which include as follows:
(i) Crop dusting, seeding, spraying and bird chasing;
(ii) Banner towing;
(iii) Aerial photography or survey;
(v) Helicopter operations in construction or repair work (although it does apply to transportation to and from the site of operations); and
(vi) Powerline or pipeline patrol.
Most current commercial UAS operations fall under the exceptions listed above and thus do not require an AOC. Package delivery and other operations when a UAS is used to carry or deliver something for hire, however, do not fall within these exceptions and require a commercial AOC.
In summary, the FAA’s decision to require an AOC for UAS package delivery operations is consistent with current Federal Aviation Regulations, but nevertheless, it took UAS operators by surprise. This is another example of existing federal regulations that apply to UAS yet are inconsistent with the realities of UAS operations, or at least the potential of certain UAS operations. Fortunately, these requirements do not apply to most commercial UAS operations, and there is time to address the complications created by these requirements before commercial UAS delivery operations are authorized.
Hopefully, the FAA will move promptly to allow appropriate exemptions and avoid stalling the integration of UAS package delivery operations into the national airspace system.
Dane Jaques is a partner at Washington, D.C.-based law firm Steptoe & Johnson LLP, where he focuses on transportation law, including unmanned aircraft systems. Rebecca Lipe, an associate at Steptoe & Johnson, also practices transportation law.