Impact of Federal Aviation Administration’s Final Drone Rule on Mining Industry
The use of drones as a low-cost replacement for traditional helicopters is on the rise in today’s mining industry. Mining companies are seeing benefits from the use of drones from safety and security to exploration and development.1 On June 28, 2016, the Federal Aviation Administration (FAA) announced a final rule governing the use of drones for commercial purposes. The final rule becomes effective on August 29, 2016.
We outline the anticipated obligations of drone pilots under the final rule and its practical impact on the use of drones at mining operations nationwide.
The final rule will relax previous regulations, which were similar to those of a manned aircraft, and provide for a waiver option if a drone operator demonstrates the ability to fly a drone safely.
Application of the final rule pertains to small drones (55 pounds or less) used for non-recreational purposes.2 According to the FAA, the final rule aims to limit two sources of risk related to the use of drones: drones colliding with other flying objects and drones falling and injuring people or property on the ground. The final rule also requires drone pilots to be licensed by the FAA.
Operational Limitations: Collision Hazards
To minimize the risk of a drone colliding with another flying object, the FAA has placed limits on where and when drones can fly. The pilot operating the drone must keep the drone within his line of sight at all times.3 The pilot cannot control the drone from a moving vehicle unless the drone is being operated over a sparsely populated area.4 The FAA did not define “sparsely populated” in the final rule stating that a case-by-case analysis is appropriate in determining what defines a sparsely populated area. However, the FAA did point to other regulations, which conclude that twenty people on a 10-acre site is considered sparsely populated.5
The final rule limits the operation of a drone to daylight hours, or within 30 minutes of sunrise or sunset if the drone uses anti-collision lighting that is visible for at least 3 miles.6 When clouds are present, drones must stay at least 500 feet below the clouds and at least 2,000 feet horizontally from a cloud to avoid colliding with any manned aircraft that may be concealed inside the cloud.7 Given that drones can only be flown up to 400 feet above ground (far below where most clouds form) the 500 foot buffer rule will primarily impact drone operators who use drones in a mountainous or high-altitude environment or who operate in areas prone to fog.
In order to minimize the risk of drones colliding with manned aircraft or other flying objects, the final rule limits drones to flight 400 feet above ground or 400 feet above a structure.8 Most manned aircraft fly at a minimum of 500 feet above ground or 500 feet above structures so the final rule is intended to minimize the amount of overlap between drones and manned aircraft.9
The final rule also limits drone flights to 100 miles per hour to give drone operators time to correct their flight path to avoid collision with other flying objects and to minimize the risk to people and structures below if the drone fails mid-flight.10
Operational Limitations: Falling Hazards
A significant limitation on drone use in mining operations is the prohibition on flying the drone over any people who are not directly participating in the drone operation unless they are inside a building or a stationary vehicle.11 The purpose of the final rule is to require people to be shielded by some structure that could mitigate the harm of a collision if the drone encounters mechanical difficulties mid-flight and falls. In practice, it will be up to the drone pilot to determine an appropriate stand-off distance to keep people out of the drone’s flight path. As with most portions of the final rule, waivers are available if the drone operator can demonstrate he can safely operate the drone outside of the parameters of the final rule.
Additionally, the final rule limits drones (including any cargo or attachments) to a total of 55 pounds. Drones may be used to carry cargo or surveillance equipment, as long as it is securely attached to the drone. This portion of the final rule may be potentially problematic to mine operators and contractors as drone use increases for stockpile monitoring, mapping, and safety and surveillance. Transportation of hazardous materials by drones is also prohibited at all times.12
Most mine operators and contractors who stay within the 400 foot flight ceiling and are at least 5 miles away from airports will be operating in unregulated, or Class G, airspace. Drones can fly in unregulated airspace without advance notice.13 If a mining operation is near an airport it may be operating in a regulated class of airspace depending on the size and classification of the airport. Drones flying in regulated airspace or within the boundaries of an airport must receive prior approval from air traffic control to operate.14 Drone operators can seek a waiver from this requirement from the FAA.
In addition, mining operations located near military training areas should consult with local authorities about restricted flight areas. Some remote airspace is designated as a military training route or a military operation area that may involve high-risk flights and weapons testing. Flights near these areas may be restricted or require advance notice.
The final rule requires a reporting of drone accidents that result in any injury that requires hospitalization, loss of consciousness, or property damage (other than damage to the drone itself) that is expected to cost more than $500.00 to repair.16 These reports must be made to the FAA within 10 days of the accident. Mine operators are reminded that mine-related accidents need to be reported to MSHA in accordance with what MSHA considers an accident as defined in 30 C.F.R. Section 50.2(h) as well as the reporting requirements found in 30 C.F.R. Section 50.10. Thus, in the event of a drone-related accident (which meets the definition of accident pursuant to MSHA’s definition), mine operators will need to report to MSHA as well.
Operator License Requirements
The FAA’s final rule requires the person operating the drone to hold a remote pilot certificate or be under the supervision of someone with a remote pilot certificate. Drone pilots must be at least 16 years old, pass a background check by the TSA, and pass an aeronautical knowledge test.17 Remote pilots will have to pass a recurrent knowledge test every two years to keep their license current.18 Applicants for a remote pilot license who do not already hold some type of pilot license will have to take the test at an FAA-approved testing center.19 The certification process, including the background check, is expected to take 6-8 weeks and cost $150.00.20
Remote pilots will also be required to learn about the different classes of airspace; weather patterns and its effect on small aircraft; the weight, balance, and load of a small aircraft; emergency procedures; radio communication protocols; and regulations governing operations near airports.21
The final rule also requires the drone pilot to be responsible for inspecting the drone prior to flight to ensure that it can fly safely.22 For mine operators utilizing drones on the surface, it is anticipated the drone operator would also be expected to comply with MSHA regulations related to pre-operational checks on mobile equipment. The final rule also requires drone pilots to assess weather conditions, local airspace restrictions, and the location of people who may be in his flight path before takeoff.23 The remote pilot is responsible for ensuring that the drone does not pose a risk to people or property if the pilot loses remote control of the drone. In any case, a remote pilot should be familiar with the area he or she is flying over and have contingency plans in place in case the drone malfunctions.
The FAA’s alcohol and drug prohibitions for airplane pilots apply to drone pilots as well—the drone pilot is not permitted to have consumed alcohol within 8 hours of flying.25 Finally, the possession or use of drugs is prohibited at all times.
Most of the final rules can be waived with the FAA’s permission if a drone operator can demonstrate that flying a drone without observing a particular rule will not pose a safety risk.26 The FAA has granted exemptions in the past to some mine operators under the former rule recognizing that using a drone to conduct surveillance of a mining site poses less of a hazard than using a manned aircraft. It is important to keep in mind, however, that the FAA’s waiving of its regulations does not preclude MSHA from enforcing its regulations related to things such as accident reporting and pre-operational checks on mobile equipment.
Waiver applications should include a description of how the mine operator plans to ensure that the proposed operation can be conducted safely outside of the FAA’s regulations.27 The FAA listed some possible mitigation measures that lay out how this could be accomplished.
Grandfathering of Existing Section 333 Exemption Holders
Mine operators who have already secured a section 333 exemption may continue operating under the terms of their exemption until it expires.28 They also have the choice of operating under the new regulations as soon as those become effective.29
Athena Dalton is co-author of this article.
1 The Mining Sector Puts Drones to Work, Mining Global, September 24, 2014, http://www.miningglobal.com/tech/1167/The-Mining-Sector-Puts-Drones-to-Work (last accessed July 8, 2016)
2 Federal Aviation Administration, 81 Fed. Reg. 42,065 (proposed June 28, 2016).
3 14 C.F.R. § 107.31.
4 14 C.F.R. § 107.25.
5 See 81 Fed. Reg. 42,115, citing Mickalich v. United States, 2007 WL 1041202 (E.D. Mich.).
6 14 C.F.R. § 107.29.
7 14 C.F.R. § 107.51.
8 14 C.F.R. § 107.51.
9 81 Fed. Reg. 42,116.
10 81 Fed. Reg. 42,116.
11 14 C.F.R. § 107.39.
12 14 C.F.R. § 107.36.
13 14 C.F.R. § 107.41.
14 14 C.F.R. § 107.41.
15 14 C.F.R. § 107.45.
16 14 C.F.R. § 107.9.
17 14 C.F.R. § 107.61.
18 14 C.F.R. § 107.65.
19 A list of the 700 FAA testing centers in the U.S. is available at: https://www.faa.gov/training_testing/testing/media/test_centers.pdf
20 81 Fed. Reg. 42,196.
21 14 C.F.R. § 107.73.
22 14 C.F.R. § 107.49.
23 14 C.F.R. § 107.49.
24 14 C.F.R. § 107.49.
25 81 Fed. Reg. 42,154.
26 14 C.F.R. § 107.200.
27 14 C.F.R. § 107.200(b).
28 81 Fed. Reg. 42,157.
29 81 Fed. Reg. 42,157.