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Focus on Regulation

A New Regime: Making the Jump from Section 333 UAS Operations to Part 107

We are at a watershed moment in aviation history. As we reported yesterday, the FAA and DOT finally released their Final Rule for the Operation and Certification of Small UAS (Part 107), which will broadly authorize commercial UAS operations in the U.S.

With the release of Part 107, many Section 333 Exemption holders are left wondering how Part 107 will impact their exemptions. And for the 7,000+ petitioners stuck in the FAA’s backlog of pending Section 333 petitions and amendments, many are wondering what the FAA will do with these pending petitions.

Current Section 333 Exemption / COA Holders

Do you currently have a Section 333 Exemption? If so, your exemption is still valid and you may continue to operate under it until it expires (usually 2 years from the date of issuance). Once Part 107 becomes effective (in mid- to late August of this year), you may continue operating under the conditions and limitations of your Exemption / COA, or you may elect to operate under Part 107.

So which should you choose? This will depend on the type of operation being performed and the specific terms of your Section 333 Exemption / COA. You will obviously want to operate under the regime that provides you with the most operational flexibility. For many operators, Part 107 will provide more flexibility than the conditions and limitations in the Exemption. By way of example, the conditions and limitations of most Section 333 Exemptions prohibit you from operating over someone else’s property unless you receive consent from the property owner, controller, or authorized representative with legal authority to grant such consent. This same requirement does not exist under Part 107. Another example is the 500-foot setback requirement from unsheltered non-participating persons. While Part 107 prohibits UAS operations over people not directly involved in the operation of the UAS, the rule does not mandate a 500-foot buffer from unsheltered, non-participating people. For many operators, these two issues alone will make the decision to operate under Part 107 a no-brainer.

On the flip side, there will be some instances where it might make more sense for you to continue operating under a Section 333 Exemption / COA, even after Part 107 becomes effective. If the current conditions and limitations in your Section 333 Exemption are easy for you to comply with and do not create any obstacles, then you can avoid having to go through the Remote Pilot Certification process (which will be a pre-requisite to conducting any operations under Part 107). Also, if your exemption authorizes operations that would only be permissible under Part 107’s waiver process, then you can continue those operations without having to go through the (yet-to-be fully explained) waiver process under Part 107. A simple example of this is a Section 333 Exemption that authorizes closed-set filming operations. Under Part 107, UAS flights can only be conducted over people directly participating in the operation of the UAS. This would include the UAS pilot, visual observer(s), sensor operator(s), and perhaps individuals tasked with securing the boundaries of the area in which the UAS is operating. People directly participating in the UAS operation would not include, for example, actors on a closed filming set. Under Part 107, to operate over those actors or anyone else involved in the filming production that is not directly participating in the flight operation, a waiver from the prohibition on flights over people in § 107.39 would be required. By electing to conduct closed-set filming under the Section 333 Exemption, the operator can avoid the need for this waiver.

If you are an operator flying under a Section 333 Exemption with a site-specific COA (i.e., something other than a blanket-COA) for operating closer than 5nm to an airport and in controlled airspace, you may also be inclined to continue operating under your existing Exemption and COA. This is because Part 107 prohibits operations in Class B, C, or D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport unless that person has prior ATC authorization. If an operator already has approval to operate in certain airspace under a COA, one can avoid the need to seek additional approval under Part 107 by continuing to operate under its Section 333 Exemption and site-specific COA.

Pending Section 333 Exemptions and Petitions for Amendment

Have you filed for a Section 333 petition for exemption, or petition to amend an exemption, and you are still waiting for a response? If so, your petition will be placed into one of three Tiers, as depicted in the FAA’s chart below:


The FAA has yet to clarify the exact procedures for Part 107’s waiver process, but the agency has stated that they will be notifying petitioners over the next few weeks which Tier their petitions falls in and that they will be providing additional guidance to petitioners at that time.

We hope you will join us for our upcoming Part 107 Webinar on Monday, June 27th at 3:00 p.m. EST, where we will continue our discussion of the intersection of Part 107 and the Section 333 Exemption process in greater detail.

Click here to register for the Webinar.