Gary Grissum BNSF Railway Company

Assistant Vice President

Telecommunications 2400 Western Center Blvd. Fort Worth, Texas 76131

- 1322

817

- 352

- 1919 (phone)

817

- 352

- 3919 (fax) Gary.Grissum@bnsf.com

April 7, 2016

Mr. Earl Lawrence Director, Unmanned Aircraft Systems Integration Office

Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591

U.S. Department of Transportation Docket Management System 1200 New Jersey Avenue, SE Washington, DC 20590

Re: Additional Information to Docket FAA

- 2016

- 0734 , Request for exemption from the regulatory provisions of 14 C.F.R. §§ 61.113(a), 91.119(c), 91.121 and 91.151, to allow the use of small unmanned aircraft systems on land owned and controlled by BNSF Railway to assist in the FAA/BNSF Pathfinder program.

Dear Mr. Lawrence:

On November 23, 2015 BNSF Railway (BNSF) submitted a request for an exemption from Title 14 of the Code of Federal Regulations (C.F.R.) §§61.113(a),

91 .119(c), 91.121 and 91.151 to permit the use of small unmanned aircraft systems (sUAS) as part of the FAA/BNSF Cooperative Research and Development Agreement (CRADA) and FAA Pathfinder 3 program. The purpose of the FAA/BNSF Pathfinder program is to explor e command

- and

- control challenges of using sUAS to inspect rail system infrastructure. BNSF is currently working with the FAA in conducting research to understand and find technical solutions to control issues with beyond visual line of sight (BVLOS) opera tions of sUAS. The FAA had requested that BNSF apply for an exemption for research and operations included in the Pathfinder effort. Although BNSF believes the appropriate vehicle for securing any needed relief is through the CRADA, BNSF agreed to submit an exemption request since it was assured that this was the best way to keep the Pathfinder program moving forward.

On March 9, 2016, BNSF responded to a follow

- up request by the FAA to provide additional justification and support for its November 23 , 2015 submission. To date, that correspondence has not been made publically available in the electronic docket, although BNSF submitted it to both the electronic docket and directly to the FAA on March 10, 2016. On March 23, 2016, BNSF received an addit ional request for more information from the FAA. In addition, the FAA finally sought comment on BNSF’sNovember 23, 2015 petition on March 16, 2016 (81 Fed. Reg. 14176), even though the

exemption would be limited the FAA/BNSF Pathfinder program and conseq uently would not reasonably have any precedential effect. The comment period closed April 5, 2016.

BNSF notes the significant delay processing BNSF’s initial request and, given the close cooperation between the FAA and BNSF through the Pathfinder prog ram, is puzzled both by this delay and the multiple requests for information. The entire purpose behind the Pathfinder 3 program is for the FAA to explore ways to allow beyond visual line of sight (BVLOS) operations generally by working with BNSF, a priva te entity with a strong safety culture and the ability to limit access to significant amounts of private property. The continued viability of a commercial UAS industry (and the significant benefits in terms of safety, cost and efficiency that such an indu stry allows) is dependent on FAA research into and ultimate acceptance of BVLOS operations. The Pathfinder project allows the FAA to gain this experience in a real world environment without bearing the significant cost associated with conducting the rese arch on its own.

While BNSF appreciates the FAA’s safety concerns associated with the contemplated BVLOS operations, we remain concerned that the FAA is seeking significantly greater safety assurances from BNSF in the Pathfinder program than the agency requires from commer cial operations conducted with no FAA participation in the section 333 context. We believe this approach to be misguided. BNSF has explained in both its November 23, 2015 and March 9, 2016 submissions how its anticipated Pathfinder operations automatical ly reduce risk below that which exists in many of the section 333 applications for which the FAA routinely grants approval and has also outlined broadly the steps that it intends to take to reduce that risk further by adopting other, technology

- based innov ations. The FAA is well aware of BNSF’s specific efforts in this regard, as that information has been shared with the agency on a confidential basis as part of the Pathfinder program. In addition to not recognizing these measures, the continued requests for information appear to assume no involvement by the FAA in the Pathfinder program, even though the FAA has the direct ability to participate in and influence the safe operation of the unmanned aircraft. Finally, the requests fail to

consider the inhere nt degree of residual risk the FAA routinely accepts in approving experimental operations, instead imposing a standard typically applicable to civil operations in a non

- R&D environment.

Nonetheless, in the spirit of continued cooperation with the FAA in the Pathfinder program, BNSF respectfully submits the following additional information for consideration during the exemption request deliberations. BNSF has requested a meeting with the FAA to sort through both party’s expectations and obligations in the Pathfinder program and the related CRADA. We trust that this meeting will provide much needed clarity as to the appropriateness of the exemption process in the Pathfinder program and the level of justification required by the FAA should the agency co ntinue to deem exemptions necessary.14 C.F.R. § 61.113

The FAA has asked that BNSF “expand upon how applicable knowledge and skills possessed by a pilot holding a private pilot certificate provide an equivalent level of safety or no adverse impact to safety (in accordance with Part 11) for the BVLOS operations to be conducted by a pilot holding a commercial pilot certificate.”

BNSF has already addressed the question of whether allowing a private pilot to be compensated for conducting BVLOS operation s will adversely affect safety and refers the FAA to its discussions on the matter in both its November 23, 2015 and March 9, 2016 correspondence. Within the context of the section 333 exemptions, the FAA routinely grants relief from the prohibition on co mpensation found in § 61.113(a) as long as the operator (PIC) has an airline transport, commercial, private, recreational, or sport pilot certificate, as well as a current FAA airman medical certificate or a valid U.S. driver’s license. BNSF appreciates t hat BVLOS operations arguably require knowledge of the NAS and airspace rules greater than that required to secure a recreational or sport pilot certificate. However, an individual holding a private pilot’s license is required to demonstrate significantly greater knowledge and skills than an individual holding one of these other two certificates. Given the FAA’s relaxed posture in the section 333 exemptions, BNSF continues to believe that the additional training and experience required for a private pilot license adequately addresses any increased risk associated with the unmanned aircraft operating BVLOS. This is particularly true since BNSF has also provided information on mitigations that it will provide to assure that the area in which BVLOS operati ons take place will be subject to natural physical constraints, will be widely advertised, and will be further constrained by the use of sophisticated sensing technology.

BNSF noted in both its November 23, 2015 and March 9, 2016 correspondence

that BN SF contemplates conducting sUAS operations over BNSF owned or controlled land, in remote and rural areas, beginning with flights during daylight hours, and at altitudes well below that which would pose a risk to other aircraft.

 All of the flight test ar eas identified for the Pathfinder program are in rural and remote areas with very low population density.

 Because of the inherent risks presented by standard train operations, BNSF has already taken steps to secure its property against unauthorized publ ic access. For example, substantial stretches of BNSF’s track are fenced, elevated, or otherwise secured to prevent access.

 The nature of operations anticipated by BNSF requires that the unmanned aircraft be flown below 500 ft above ground level (AGL) a t relatively low speeds.

 In the event an operation needs to be conducted closer to an airport, BNSF will inform the airport operator and airport air traffic control tower of the contemplated operation and will comply with any directions issued by air tra ffic control at that airportAccordingly, even without utilizing technology and protocols that specifically address the

FAA’s “see and avoid” requirements, the risk of interference with other aircraft or with members of the uninvolved public is minimal.

As also noted in the November 23, 2015 and March 9, 2016 submissions, all of the aircraft used in Pathfinder BVLOS operations will have either a restricted category airworthiness certificate or a special airworthiness certificate for experimental purpos es issued by the FAA. 1 This requires an extensive review of the sUAS system and operating flight test areas to mitigate the possibility of collision with other aircraft and determine the aircraft is in a condition for safe operations. Additionally, a co mmunications plan will be developed for each of the flight test areas which will be initiated prior to any BVLOS flights. This will include issuing NOTAMS and conducting outreach and notification to aviation players in the environment (e.g., the military, glider groups, agricultural sprayers, etc.). Finally, while not required in class G airspace, BNSF and the operators of the sUAS Pathfinder program may, where possible, install transponders on the unmanned aircraft that will allow them to be monitored by air traffic controllers.

In addition, BNSF plans to adopt a staggered, multi

- tiered approach to avoiding obstacles and other aircraft by utilizing technology developed by some of the leading experts in flight detection. 2 This suite of technology will a llow BNSF to detect both the presence of other aircraft and the exact location of the unmanned aircraft and will, in BNSF’s opinion, provide a level of situational awareness that far exceeds what is possible by a pilot flying a manned aircraft VFR. The co mparison between the contemplated situational awareness of a UAS PIC flying BVLOS with this equipment and flying within VLOS without this equipment is even more dramatic. BNSF’s plans to adopt new technology has already been shared with the Pathfinder tea m and additional information is not provided here.

Finally, the FAA has already addressed the differences between a private pilot’s license and a commercial pilot’s license and has determined that the required areas of knowledge cover the same fundamen tal principles. The FAA has stated that “the experience obtained beyond a private pilot certificate in pursuit of a commercial pilot certificate in manned flight does not necessarily aid a pilot in the operational environment...; the FAA considers the overr iding safety factor ... to be the airmanship skill acquired through UAS

- specific flight cycles, flight time, and specific make and

1 To the extent operations are limited to VLOS, BNSF requests the FAA authorize their use without an airworthiness certificate as long as the FAA has already approved their use in an exemption issued under section 333. BNSF believes this approach is consis tent with how the FAA is currently processing exemption requests and the close interaction between BNSF and the FAA in the Pathfinder project provides the FAA with adequate notice that BNSF is using these aircraft as well as of the prevailing operating con ditions.

2 BNSF anticipates that these measures will gradually be implemented throughout the Pathfinder project.model experience.” Exemption No. 11062, In the Matter of the Petition of Astraeus

Aerial , docket No. FAA

- 2014

- 0352, Septembe r 25, 2014. 3 When considering the mitigations it deemed sufficient to demonstrate no adverse impact on the safety of the NAS, the FAA noted the separation of closed

- set filming operations from other manned operations, the parallel nature of private pilot aeronautical knowledge requirements to those of commercial requirements, and the UAS airmanship skills of Astraeus’s PICs.

Id ., at 18. The FAA notably did not consider whether the flights would be conducted within visual line of sight as a justification for allowing the use of private pilots. Shortly after granting Exemption No. 11062, the FAA granted a similar exemption to Clayco, Inc. to permit aerial imaging of construction sites, granting it relief from the obligation

that the PIC hold a commercial pilot license. Exemption No. 11109, In the Matter of the Petition of Clayco, Inc. , docket No. FAA

- 2014

- 0507, December 10, 2014. Again, the FAA relied upon Clayco’s plans to operate over private property with controlled access in the NAS, the parallel nature of private pilot aeronautical knowledge requirements to

those of commercial re quirements, and the airmanship skills necessary to operate the

UAS. Id ., at 12. Once again, the FAA made no mention of flights being conducted within visual line of sight as a consideration for waiving the requirement that the PIC hold a commercial pilot certificate. BNSF has already demonstrated that it has the ability to control access to the contemplated areas of operation. As such, the operating environment required for relief from 14 C.F.R. § 61.113, and the justification provided by

the FAA since granting the very first exemptions under section 333 is no different here.

14 C.F.R. § 91.119(c)

The FAA has requested that BNSF clarify how it will assure there will be no operations over any person, vessel, vehicle or structure within one quarter mile of either side of BNSF rail track. As an initial matter, BNSF is puzzled by the request for clarification within the context of the request for an exemption. This is because BNSF does not describe an operating area in its exemption request other than to note that it contemplates conducting sUAS operations over BNSF owned or controlled land, in

remote and rural areas.

BNSF believes this request is based upon BNSF’s discussions with the Pathfinder
team, where it has stated that it would like to reduce the one NM “buffer zone” (as measured from the track centerline) approved by the FAA during phase 1 operations to 0.25 NM in the future. BNSF does not see how such a buffer zone relates to its request to conduct flights at less than 500 ft AGL. In general, BNSF has a property interest in the land adjacent to the track. The extent of that property interest varies throughout the rail network, both in terms of distance from the track and the nature of the property right. Under normal flight planning the route of flight is within the lateral boundaries of BNSF’s private property and over the railroad tracks being inspected. With currently

3 A direct comparison of the required knowledge requirements is provided in table form at pp. 16

- 17.installed navigation equipment, the unmanned aircraft used by BNSF are expected to

maintain position along the programmed r oute of flight to within tens of feet. The installation of improved navigation technology, which BNSF has discussed with the Pathfinder team, will potentially improve the navigation precision to within a few feet. Using either current or future technolog y, navigation performance is adequate to maintain position over private property during the majority of routine inspection flight operations, and there is no need for the FAA to impose more stringent requirements on BNSF in the Pathfinder program than it d oes for any section 333 exemption holders.

However, there are some instances where the safe and reliable operation of the unmanned aircraft during a turn could require the aircraft to operate for a short period of time beyond BNSF’s property line becau se the aircraft needs additional space in which to complete its turn. BNSF maintains that under the Pathfinder program, it is inappropriate for the FAA to require BNSF to demonstrate that it has the ability to ban all people,

vessels or vehicles within a total half mile distance running the entire length of the track as a condition of any exemption. In most instances there will simply be no need for such a large buffer zone and any safety assessment is better conducted as part of the COA process. The que stion regarding an appropriate buffer zone is better addressed through consultation with the FAA’s air traffic organization when that organization is considering issuing certificates of authorization. Such consultations will necessarily include

conversati ons between BNSF and the FAA, and any representations concerning attempts to keep the buffer zone a “sterile area” are better conducted in an atmosphere of cooperation than as a written assurance that BNSF can employ the same techniques in every instance. Should the FAA believe a buffer zone beyond BNSF’s property line be required, BNSF will be happy to work with the agency in developing measures that adequately address any risk to the uninvolved public.

We trust this discussion resolves any questions o r concerns you may have regarding our request.

Respectfully submitted

Gary Grissum BNSF Railway Company

Cc: Charles W. Shewmake

Vice President & General Counsel