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 explore 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) operations 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 additional request for more 

information from the FAA. In addition, the FAA finally sought comment on BNSF’s 
November 23, 2015 petition on March 16, 2016 (81 Fed. Reg. 14176), even though the 

exemption would be limited the FAA/BNSF Pathfinder program and consequently 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 program, 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 private 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 industry 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 research 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 commercial 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 automatically 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 innovations. 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 inherent 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 continue 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 operations 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 compensation 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 that 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 operations 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 BNSF 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 areas 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 public 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) at 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 traffic 

control at that airport
Accordingly, 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 purposes 

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 communications 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 allow 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 comparison 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 team 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 fundamental 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 overriding 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 consistent 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 conditions.

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, September 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 requirements, 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 route 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 technology, 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 does 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 because 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 question 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 

conversations 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 or concerns you may have 

regarding our request.

Respectfully submitted

Gary Grissum

BNSF Railway Company

Cc: Charles W. Shewmake

Vice President & General Counsel