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

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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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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

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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).

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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.

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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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