FAA 107 Waiver approval for flying over people 107.39 is more about First Amendment rights than actual PIC demonstrating safe practices in waiver request.

January 7, 2018

In this blog I include my waiver request. The facts behind why FAA is moving forward granting certain 107.39 waivers and why you and I do not stand a chance to get one, FOR NOW! Don't let them say that the technology is moving faster than they can anymore. There is lot's of detailed information on risk and hard data on the quadcopters we use everyday to determine risk. It is a matter of which report they want to use for now. I have the details below. 

 

Currently there are 10 individuals that have the 107.39 waiver. The biggest hurdle seems to be what one Montana State University Dr. said was "The ones I know of are in close collaboration with the FAA because the FAA does not have clear safety criteria." After applying four times for the waiver I tried to find out what I really need to put into the waiver. The clear answer, nothing. They are only ready to help a select few. 

 

Here is a list of those with the waiver now.

 

If you apply for a waiver regardless of how much information you provide it will be denied, right now. 

 

 

The letter you will receive will be something like this. 

 

RE: 14 CFR Part 107 Waiver Reference Number 107W-2017-05316


Dear Christopher Baker:


Thank you for submitting a 14 CFR Part 107 request for certificate of waiver through the automated FAA small unmanned aircraft (sUAS) waiver application portal.


When the FAA responds to a request for a certificate of waiver, it must follow the requirements of 14 CFR § 107.200, "Waiver policy and requirements," particularly those standards outlined in § 107.200(b). As stated in that section, the FAA uses the following criteria when making a decision as to whether to grant a waiver:


1) a complete description of the proposed operation; and
2) justification that establishes that the operation can safely be conducted under the terms
of a certificate of waiver.


Given the criteria outlined above, the FAA is unable to approve your request for a waiver to §107.39 because you did not describe interventions, for one or more hazards, to mitigate risk to an acceptable level. Specifically: • The FAA is unable to approve your request for a waiver to § 107.39 because the risk of injury to human beings was not adequately addressed. To operate over human beings, your application must show that if the proposed sUA collides with a person, the degree of injury has been evaluated through testing. The results of the testing (e.g., modeling data, drop tests, test data) must be included in the application. Helpful references to assist with a § 107.39 waiver submissions include: - "The Micro Unmanned Aircraft Systems Aviation Rulemaking Committee (ARC) Recommendations Final Report." http://www.faa.gov/uas/resources/uas_regulations_policy/media/Micro-UAS-ARC-FINAL-Report.pdf; and - Designation: F3178 Operational Risk Assessment of sUAS (fee charged). https://www.astm.org/. ASTM is an organization that produces standards for the industry, including operational risk assessments for sUAS.


If you would like to reapply, include as much detail as required to describe the proposed operation, the purpose of the operation, and method by which the proposed operation can be safely conducted. Information should identify potential hazards and risks of the waivered operation, including risk-mitigation strategies, and characteristics of the sUAS. Refer to the waiver safety explanation guidelines at: https://www.faa.gov/uas/request_waiver. You must address each of the guidelines for the applicable regulatory section to be waived. Address each guideline and how you propose to mitigate risks associated with the hazards utilizing operating limitations, technology, training, equipment, personnel, restricted access areas, etc. Only request a waiver from regulatory sections necessary to conduct the operation.


Sincerely,

Joseph V Fagan Jr.
General Aviation and Commercial Division, AFS-800

 

 


The reports quoted below can be found here for the ARC report. Published September 2017 

https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/UAS%20ID%20ARC%20Final%20Report%20with%20Appendices.pdf

 

 

Here is what the ARC report really focuses on as found in ink above:

"The Proposed Regulation Should Not Require Journalists Operating in Class G Airspace to File Flight Plans

The Report provides for the optional providing of “route data,” further defined as “prepprogrammed navigation or flight plans.” (Report 6.5.1.5). The News Media Coalition agrees and underscores that mandatory filing of flight plans, by journalists operating under Part 107, would raise legal and practical concerns and would constitute prohibited routine surveillance of journalists. 87 Under our legal system, the First Amendment autonomy for journalism takes precedence absent a government safety interest of the highest order. A system that requires all journalists using drones to file flight plans would, by definition, constitute the perpetual surveillance of journalists’ activities without a specific threat to safety. Such a system would be unconstitutional. Additionally, given the nature of breaking news and the assignment system in newsrooms in general, journalists often must react to newsworthy developments with little prior notice. It is therefore impractical, and overly burdensome to ordinary news operations, for journalists to be required to routinely file flight plans for operations under Part 107 in Class G airspace before beginning a UAS operation. We further note that, in manned aviation, a flight plan is only required in certain circumstances where the FAA has determined that it is necessary to maintain safe operations. Similarly, the transition to Automatic Dependent Surveillance-Broadcast (ADS-B) for manned aircraft only requires its use in controlled airspace. Manned aircraft operating in Class G and other noncontrolled airspace are not ordinarily required to file a flight plan in advance or to communicate flight details, direction or altitude. It is illogical for the FAA to place an unmanned aircraft under 55 pounds operating under 100 mph under a more rigorous requirement to file flight plans than larger, faster-moving manned aircraft. Any proposed regulation therefore should not require that journalists conduct operations in Class G airspace, pursuant to Part 107, to file a flight plan. The Report Appropriately Recognizes that a Proposed Regulation Must be Content Neutral and Narrowly Tailored The News Media Coalition acknowledges and appreciates the inclusion in the Report of a section titled “First Amendment” in which the ARC acknowledges “the use of UAS for news-gathering and other purposes can implicate First Amendment rights and considerations [,]” and that a proposed rule must be “content-neutral and narrowly focused on regulating aviation safety”. (Report 7.3). As this language notes, content-neutrality and narrow tailoring are legally required whenever the government regulates in a manner that would implicate the First Amendment interests of journalists and the public. This language, however, is the only portion of the Report that reflects the ARC’s consideration of these interests. As this Dissent notes, other indispensable First Amendment issues must also be addressed in the rulemaking process. * * * The News Media Coalition thanks all members of the ARC for the congenial and collaborative exchange of ideas during the ARC’s work over the past few months. We look forward to this proposed rulemaking, and we sincerely hope that it will incorporate the significant First Amendment issues we have raised. 88 Respectfully submitted by the News Media Coalition, consisting of: Advance Publications, Inc. American Broadcasting Companies, Inc. American Society of Media Photographers The Associated Press Capitol Broadcasting Co. Gannett Co., Inc. Getty Images (US), Inc. Gray Television, Inc. Media Law Resource Center MPA – the Association of Magazine Media The National Press Club National Press Photographers Association NBCUniversal Media, LLC News Media Alliance The New York Times Company Radio Television Digital News Association Reporters Committee for Freedom of the Press The E.W. Scripps Company Sinclair Broadcast Group, Inc. TEGNA, Inc. WP Company LLC Represented by: Charles D. Tobin, Ballard Spahr LLP Joel E. Roberson, Holland & Knight LLP"

 

(source https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/UAS%20ID%20ARC%20Final%20Report%20with%20Appendices.pdf).

 

 

ASSURE UAS Ground Collision Severity Evaluation Final Report

Where as the ASSURE report focuses on real hazard issues that the FAA "Supposedly" is more interested in solving to let me fly over people. This is not the case the real issue is lobbying efforts and media crying First Amendment rights to get around regular FAA sUA checks and proper planning on site before launching a sUA into the air, possibly in unfamiliar territory and out of the region.

 

The other interesting fact is these companies are flying with other quadcopters that are not listed in thier original waiver request. The quadcopters in the plans are a hazard in themselves, some with no landing gear exposing more sharp objects such as rotor blades to humans in the event of failure. The other side note is that being a PIC myself the sUA aircraft present a danger to humans due to being too light and can easily loose control due to wind. In other words it is like flying a SYMA or Parrot  quadcopter in the wind versus a DJI 3 or 4. Every pilot knows that too light of an aircraft poses more problems than a heavier solid platform. 

 

The ASSURE report basically says this: The DJI 3 or 4 poses little risk to humans. The report says that it is much more catastrophic if a peace of wood or metal fell from scaffolding at a construction site than a DJI falling from the air. This is coming from the leader in aviation training Embry Riddle Aeronautical University. Regardless lobbies has more power with leveraging First Amendment rights than fully accredited Universities such as these in a very thorough research funded by FAA under a contract:

 

To further illustrate the bias let me share with you just what the Assure report was about and what it includes, and compare that with the ARC report above with hugely centered media preference. Link is here 

 

http://www.assureuas.org/projects/deliverables/a4/ASSURE_A4_Final_Report_UAS_Ground_Collision_Severity_Evaluation.pdf

 

"The UAS Ground Severity Evaluation Final Report documents the UAS platform characteristics related to the severity of Unmanned Aerial Systems ground collision based upon the literature research of over 300 publications from the automotive industry, consumer battery market, toy standards and other fields. The team reviewed available research and techniques used to address blunt force trauma, penetration injuries, and lacerations as the most significant threats to the public and crews operating Small Unmanned Aerial System (sUAS) platforms. Two impact kinetic energy methodologies are presented to provide a risk and scenario based approach to determining kinetic energy thresholds for safe UAS operations. Initial investigation of energy transfer based on impact testing and dynamic modeling was conducted along with finite element analysis for human head and torso impacts. Results strongly suggest RCC-based thresholds are overly conservative in terms of injury potential because they do not accurately represent the collision dynamics of elastically-deformable sUAS with larger contact areas in comparison to the inelastic, metallic debris that occurs following the in-flight break up of high-speed missiles found on the national test ranges. A resultant load methodology was formulated to establish the unique impact characteristics of individual sUAS platforms that can be used with operationally relevant impact energies to determine whether a platform is safe to fly over people. Additional impact testing of more sUAS platforms is required to validate the resultant load methodology defined in this report to establish a threshold level of safety for flight over people. Dynamic modeling is also necessary to improve the assessment of UAS failure modes and associated impact energy for flight over people." 

 

Lastly, here is my waiver request that was denied. I thought I addressed the issues pretty well since most of it is what the FAA uses already to approve many other waivers. 

 

Your requested regulations subject to waiver:

;#107.39 Operation Over People;#

 

Proposed Area of Operations:

 

Dubois, ID. Airport is within 5 miles but uncontrolled airspace. Other flight areas include Idaho Falls, ID nearest airport more than 5 miles.

 

 

Description of Operations:

 

Summit SkyCam, and Pilot in Command (PIC) Chris Baker is requesting for a waiver of § 107.39 Operation over human beings. The remote PIC, visual observer (VO), Sensor Operator and other participating personnel designated by the PIC are responsible for the safety of the operations that may conclude under this waiver, if granted. Once granted, all Direct Participants in the sUAS operation will comply with all provisions of proposed waiver.

 

1. The Responsible Person, Chris Baker, who is listed on this waiver is responsible for the safe conduct of the operation. The Responsible Person agrees to:

 a. Inform all Direct Participants of the terms and provisions of this waiver and the strict observance of the terms and provisions specified by FAA.

b. Informed and familiar with part 107 regulations not waived and

c. The Responsible Person will keep a record of the communications that established compliance with said FAA requirements. This record will be made available at anytime when requested to do so by an authorized FAA agent.

 

2. This waiver is requested to be utilized solely on its own merit and not in combination with any other waivers presently or in the future unless specifically authorized by FAA.

 

3. Operations under this waiver will be conducted in Class G airspace unless specific airspace authorization or waiver is suggested by FAA in accordance with § 107.41.

 

4. The Responsible Person will maintain a current list of sUA by registration number(s) used in the Responsible Person’s Operations. Currently the only requested sUA vehicle requested for waiver is the DJI Phantom 3 Advanced and DJI Phantom 4 Pro. Both have been thoroughly tested and contains the actual measurable damage assessments reported in FAA UAS Center of Excellence Task A4: UAS Ground Collision Severity Evaluation, 2017 (Arterburn, Ewing, Prabhu, Zhu, & Francis, 2017).

 

5. Non-fatal but potentially harmful sUA collision on humans were assessed in this report. The proposed sUA use is for slow moving, low altitude (less than 5 mph/under 150’ AGL) DJI sUA for commercial video and photography. These grant awards 15-C-UAS-ERAU-005, 15-C-UAS-UAH-003, and 15-C-UAS-KU-02, under Embry Riddle Aeronautical University, University of Kansas, and University of Alabama Huntsville concluded in 2017. The summary conclusion from these lightweight sUA was demonstrated that: “In a large number of collision orientations, the UAS surface area in contact with a human is greater than for collapsible and modular designs. The impact loads that are generated during this collision disperse throughout the continuous fuselage frame, deforming and distorting the frame and reducing energy transfer to impacted objects.” (Arterburn, Ewing, Prabhu, Zhu, & Francis, 2017, pp. D-1).

 

6. Further conclusion from this report showed that “the fuselage on certain UAS (Ex: DJI Phantom) has less sharp edges, which increases contact surface area during collision and reduces injury risk” (Arterburn, Ewing, Prabhu, Zhu, & Francis, 2017, pp. D-5)

 

7. 8. The Responsible Person conducting the operation is requesting sUA operation below 151 feet above ground level (AGL) when operating over nonparticipants.

 

9. If discrepancies exist, the Responsible Party understand that the FAA waiver directions take precedence.

 

10. If the intended operation would be contrary to a common or special provision to this waiver, if approved, then the Responsible Person will apply for an amendment to the approved waiver.

 

11. Direct Participants will be easily identifiable visually by wearing safety vests or similar apparel.

 

12. There will be not modifications to the approved sUA’s in design or function. Any repair or replacement of components will be performed as described in DJI owner’s manual. Any parts replaced will be done with approved DJI parts with same part numbers and by an approved DJI distributor or retailer. All repairs will be documented and repair log made available for inspection.

 

13. The Responsible Person will maintain the sUAV and its components in accordance with the manufacture’s instruction. The aircraft manufacturer has provided a maintenance program and procedures. These procedures include scheduled and unscheduled overhaul, repair, inspection, modification, replacement, and system software upgrades of the sUAV and its components that are necessary for flight. All sUA under this requested waiver will comply with all manufacturer safety bulletins. Records for any of these sUA will be kept for at least 90 days after waiver expiration as recommended by FAA.

 

14. Any sUA that has gone under any maintenance that could affect its flight worthiness the sUA will also then undergo a functional test before any other flights are conducted under proposed waiver. No functional test will occur over humans and will only be tested under current part 107 requirements.

 

15. The remote PIC, Chris Baker, is responsible for halting or canceling operations if, at any time, the safety of human beings or property on the ground or in the air is in jeopardy, or if there is a failure to comply with provisions of the proposed waiver.

 

16. It is understood by PIC and will be discussed by Participating Person that records shall be maintained for each flight conducted under the proposed waiver, and that records shall be retained for a period of 90 days after the expiration date of the waiver. The Responsible person shall secure these records at his principal place of business, and shall make the records available for inspection if requested by the Administrator.

 

17. As specified by FAA each flight record shall contain the following:

a. Date, Name of Operator, Responsible Person, Waiver number and Aircraft registration number

b. All operating location, to include city/name and latitude/longitude

c. Number of flights per location and per aircraft

d. Total aircraft operational hours

e. Approximate average altitude of flight

f. Equipment malfunctions to include but limited to:

1. On-board flight control system

2. Navigation system

3. Power plant failure in flight

4. Electrical system failure

5. Control station failure

6. Any failure or malfunction that was followed by ground collision

g. Number and duration of lost link events by the sUA.

h. Number of people, if any, impacted by the sUA.

i. Description of any injuries that anyone suffers as a result of an impact with the sUA.

 

18. This waiver request and sUA collision testing/analysis is similar in nature to waivers that have been approved already. They include: a. 107W-2017-02043 b. 107W-2017-02810 c. 107W-2017-04779 d. 107W-2017-02234 e. 107W-2107-04544 f. 107W-2107-03321 g. 107W-2016-00993A

 

19. This waiver request includes both the DJI Phantom 3 and Phantom 4 Pro which by weight, sharp edges, non-retractable landing gear, and speed contribute to less potential impact and damage than those sUA identified as permissible use and waived under 107.39 from section 18 above (ex. Flytcam Motion Pictures sUA waived under 107W-2017-02810).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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