UAS “Advanced Operations” Exemptions: The New Normal

In March, FAA granted a precedent-setting exemption to Hylio, a U.S.-based agricultural uncrewed aircraft system (UAS) manufacturer. For any §44807 Approved UAS, this exemption granted relief to operate up to three UAS simultaneously under one operator, during night, and without visual observers (VOs), within visual line of sight (VLOS) of the pilot in command (PIC).

NAAA commented on the petition for this exemption with specific concerns for the safety of crewed agricultural aviation operations sharing this airspace. However, in their decision, FAA stated that safety would not adversely be affected by permitting these operations.

Since this exemption was granted, there have been over 200 petitions filed by UAS operators seeking the same regulatory relief to conduct these “advanced operations” (swarming, night and without-VO operations). These petitions specifically cite the above Hylio exemption as precedent and request the FAA to issue a “summary grant” of their own exemption. Many of those 200 petitioners have already received their exemption using this tactic.

For those unfamiliar, when an individual petitions the FAA for an exemption to the Code of Federal Regulations (CFR), the public is typically given an opportunity to comment on it. FAA is required to read and consider these comments in formulating their decision on the extent to which they will grant the requested relief from the CFR. However, if FAA deems a petition materially similar to a previously granted exemption, they may issue a summary grant without notice or opportunity for public comment.

The issuance of a summary grant is how the vast majority of UAS operators receive their exemption(s); they simply cite previous precedent-setting exemptions as evidence that they should receive the same. These boilerplate exemption petitions are often filed by an attorney representing the operator.

Aside from the practice of using precedent-setting exemptions to issue summary grants for de-facto rulemaking, NAAA has serious concerns about these operators’ understanding of their own exemptions. There is widespread evidence that many are unaware of, or simply non-compliant with, the specific conditions and limitations stated in their exemption. The common view of an exemption as a mere paperwork hurdle compromises safety for everyone, but for those sitting in the seat of an ag aircraft it really is life and death.

Another perspective of interest will be State pesticide control officials. With one operator responsible for multiple UAS simultaneously spraying one or more fields, this would seem to represent a novel risk profile from the environmental point of view. Whether any State pesticide authorities take a stance on this, or are even aware, remains to be seen, but what is certain is that they already have their hands full dealing with this (relatively) new mode of application.