1 This letter corrects the A pril 21

, 2016 letter we sent granting your petition for Exemption No. 1 6431

. A correction was made t o incl ude the exemption number, which had inadvertently been omitted from the April 21 versio n . Below is the amended Exemption No. 1 6431 that includes the aforementioned change . We have made the correction in our records as of April 2 9 , 201 6

.

Exemption No. 16431

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

B NSF Railway Company Regulatory Docket No. FAA

- 201 6

- 0734

for an exemption from § § 61.113(a); 91.119(c); 91. 121 ; and 91.151 of Title 14, Code of Feder al Regulations

GRANT OF EXEMPTION

By letter s dated November 23, 2015, and March 9, 2016, Mr. Gary Grissum, Assistant Vice President, BNSF Railway Company (hereinafter petitioner or operator or BNSF ), 2400 Western Center Boulevard, Fort Worth, TX 76131, petitioned the Federal Aviation
Administration (FAA) for an exemption from §§ 61.113(a), 91.119(c), 91.121, and 91.151, of Title 14, Code of Federal Regulations (14 CFR). The exemption would allow the petitioner to operate unmanned aircraft systems (UAS) in support of the FAA and BNSF Cooperative

Resea rch and Development Agreement (CRDA) , a partnership exploring requirements for beyond visual line of sight (BVLOS) operations in rural areas.The petitioner requests relief from the following regulation s :

Section 61.113(a) prescribes , in pertinent part, that

—

(a) Except as provide d in paragraphs (b) through (h) of this section, n o person who holds a private pilot certificate may act as a pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, f or compensation or hire, act as pilot in command of an aircraft.

(b) A private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if:

(1) The flight is only incidental to that busin ess or employment; and

(2) The aircraft does not carry passengers or property for compensation or hire.

Section 91.119(c) prescribes that, except when necessary for takeoff or landing, no person may operate an aircraft below a n altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

Section 91.121 requires

, in pertinent part

, each person operating an aircraft to maintain cruising altitude by reference to an altimeter that is set “to the elevation of the departure airport or an appropriate altimeter setting available before departure.”

Section 91.151 prescribes that: (a) no p e rson m a y b e g in a f l i g ht i n a n a irpl a ne und e r visual flight rules ( VF R ) c ondi t ions unless ( c onsid e ring wind a nd f o r e ca st w ea ther

c ondi t ions) the r e is enou g h fu e l t o fly to t he fi r st po i nt of in t e nd e d landing a nd,

a ssu m ing norm a l c r uis i ng spe e d, (1) during the da y , to f ly after that for at l e ast 30 minutes; or (2) a t night, to fly after that for at least 45 minutes ; and (b) n o person may begin a flight in a rotorcraft under VFR conditions unless (considering wind and forecast weather conditions) there is en ough fuel to fly to the first point of intended landing and, assuming normal cruising speed, to fly after that
for at least 20 minutes.

The petitioner supports its request with the following information:

BNSF anticipates that use of sUAS will enhance sa fety in rail operations over the long term, and the manner in which operations will be conducted in the Pathfinder program will not adversely affect the safety of the flying public or people on the ground.The petitioner states a pproval of its petition for exemption will allow the F AA/BNSF
Pathfi nder program team to evaluate BVLOS sUAS operations in the railroad environment. As such, approval would advance the public interest by providing the FAA with valuable user experience on sUAS command and control of unmanned aircraft in BVLOS operations. From an FAA perspective, the safe integration of UAS into the national airspace system ( NAS ) is critical for advancing the aviation industry and is required under Congressional mandate. The petitioner believes BVLOS operations are a critical element of this integration and that

r esearch is sti ll needed to ensure current levels of safety are maintained or enhanced

. The petitioner contends that grant ing these exemptions is in the public interest to ensure that a major transportation entity, one that transports 25 percent of the country’s rail commerce, operates safely. The petitioner transports high value and hazardous cargo throughout the United States; maintaining its infrastructure is not only costly an d labor intensive, but is also critical to the safe and efficient movement of cargo. Current limitations on UAS related to maintaining VLOS severely impact BNSF’s ability to maximize the use of UAS to maintain
this infrastructure.

The petitioner states th at granting relief from the regulations would not adversely affect safety. The petitioner anticipate s the use of sUAS will enhance safety in rail operations over the long term, and the manner in which operations will be conducted in the Pathfinder program will not adversely affect the safety of the flying public or people on the ground. Improving the safety o f rail operations and BNSF staff is a primary driver in BNSF’s UAS operations. The use of UAS for track and infrastructure inspection increases the safety of track inspectors who are on the track every day, as well as engineering personnel tasked with
eval uating potential damage to other infrastructure such as bridges. Under the current limitations, inspection personnel remain on the track longer than necessary, putting them at additional risk. This is because currently the aircraft must land once it reache s the edge of the pilot in command’s ( PIC’s ) VLOS and the PIC must then relocate the ground equipment, UAS, and crew before the aircraft can be further used to assist with the inspection. This adds time to the overall inspection process. The petitioner ass erts that a s part of the Pathfinder program, BNSF and the FAA have established a number of mitigations that allow for the safe operation of sUAS BVLOS

.

BNSF contemplates conducting sUAS operations over BNSF owned or controlled land, in
remote and rural ar eas with very low population density, beginning with flights during daylight hours, and at altitudes it submit s are well below that which would pose a risk to other
aircraft. All flight test areas identified for the Pathfinder program are in rural and remo te 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 theunmanned aircraft be flown below 500 f ee t above ground level (AGL) at relatively low speeds . BNSF stipulates that i n the event an opera tion needs to be conducted closer to an airport, the petitioner 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 air port.

BNSF pl ans 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.

T hese measures will gradually be implemented throughout the Pathfinder project

. T he petitioner believes t his 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

VFR. 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 Notices to
Airm e n ( NOTAM s ) and conducting outreach and not ification to aviation players in the environment (e.g., the military, glider groups, agricultural sprayers, etc.). Finally, while not required in C lass G airspace, BNSF and the operators of the sUAS Pathfinder program may, where possible, install transpond ers on the unmanned aircraft that will allow them to be monitored by air traffic controllers. The petitioner states that the unmanned aircraft (UA) to be operated under this re quest will be operated under a s pecial a irworthiness c ertificate for the

purpose s of research and development, crew training

, and market survey in accord ance with § 21.191.

The petitioner requests an exemption from § 61.113 for the operation of sU AS . The petitioner
notes that w ithin the context of the s ection 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 state s its PICs hold at least a private pilot certificate and a 3rd C lass M edical
C ertificate. I t state s that i n E xemption No. 11062

, the FAA noted that in the context of an exemption granted under section 333, experience obtained beyond a private pilot certificate in pursuit of a commercial pilot certificate does not necessarily aid a pilot in the operational
UAS VLOS environment and that a person holding a private pilot certificate would have the requisite aero nautical knowledge to operate a UAS safely under the terms of that exemption.
BNSF state s its appreciation that BVLOS operations may require knowledge of the NAS and airspace rules greater than that required to secure a recreational or sport pilot certific ate. A n 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. BNSF believes that the additional training and experience required fo r a private pilot licenseadequately addresses any increased risk associated with the unmanned aircraft operating
BVLOS.

BNSF submits that the only relief it requires from § 91.119 is from the minimum altitudes listed in paragraph (c). The petitioner stat es that r elief is required from paragraph (c) because railroad track surveillance conducted at 500 feet or higher is insufficien tly distinct to be meaningful. The petitioner further believes that s ince operations above 500 f ee t AGL also pose a heightened r isk of collision with other aircraft, safety can only be assured by granting an exemption. The petitioner believes that the contemplated research under the Pathfinder program focuses on technologies that, in addition to extensive communications, will enhan ce safety. As noted in the explanation above of why an exemption will not adversely affect safety, BNSF states it has exclusive use of the land over which the unmanned aircraft will be operated. It also has exclusive use of significant portions of land adj acent to the track and structures that will be the objects of surveillance. The petitioner states that it tightly control s

access to its land and ha s the ability to assure that individuals not associated with the planned
surveillance are not on the affecte d land. BNSF personnel are already required to wear mandatory safety equipment, including hard hats, safety glasses and steel

- toe boots whenever dispatched to a work site. As such, the petitioner believes the risk of injury posed by a small
unmanned aircraft is minimal. The petitioner operated sUAS will be using geo

- fencing technology as a further safety measure to keep the s UAS over its property

.

In support of its request for an exemption from § 91.121, B NSF proposes that it antic ipate s using sUAS that are not equipped with altimeters

. Rather, altitude is tracked by a small GPS device that can be followed by the PIC, allowing him or her to control the height of the
unmanned aircraft. Because BNSF will not fly the unmanned aircraft above 400 feet, and generally intends to fly the unmanned aircraft no more than 75 feet from the highest fixed structure in the intended path of the unmanned aircraft, the petitioner believe s this GPS is
sufficient to orient the u nmanned aircraft away from other aircraft as well as from ground

based structures that are not the subject of the surveillance activity.

The petitioner states t he sUAS that BNSF intends to use are battery or gasoline powered

-

some s UAS hybrid designs are both battery (vertical lift and landing) and gasoline powered (forward flight). BNSF state d it believe s the reason for the 30

- and 20

- minute fuel requirements in § 91.151 is to assure that an aircraft has sufficient fuel to fly to an alternate airport or circle the planned airport in the event of unanticipated conditions. The petitioner does not intend to use the sUAS for point

- to

- point flights. Nor will the UA require an airport in order to land. As such, BNSF believes there is no need for a time

- based ex cess fuel/power requirement. Rather

, it should be sufficient to require only as much additional excess power reserves as necessary to safely land the UA . Currently

, the PIC is notified when power reserves are at a point where the UA will either return and land near the ground control station( GCS ) or land at its current location. BNSF states that it appreciates that greater power reserves may be required to return the unmanned aircraft to the GCS in BVLOS operations than in VLOS operations. However, as note d above, the UA will only be used over BNSF property. As such, there is no need to have the UA return to the GCS when it meets the minimum threshold for power reserves. Should reserves be too low to return the aircraft to the GCS, BNSF can simply land it. The petitioner’s operational procedures dictate the action the PIC will take in regard to low power or fuel levels, based on the specifications of the s UAS. For example, 25 percent may be adequate for an electrically powered system, while 15
percent of the available fuel in the tank is adequate for fuel based systems.

BNSF believes that granting an exempt ion is in the public interest, and that it supports the FAA/BNSF Cooperative Research and Development Agreement and the FAA Pathfinder 3 program. The purpose of this program is to explore command

- and

- control challenges of using sUAS to insp ect rail system infrastructure and to find technical solutions to control issues
associated with BVLOS operations of sUAS.

The petition er has provided the following information to support its request for an exemption, which includes proprietary supporting documents:

1. Safety checklist in accordance with FAA Order 8130.34C ; and
2. Response to the FAA’s March 23, 201 6

, request for information d ated April 7, 2016

.

A summary of the petition was published in the Federal Register on March 16, 2016 ( 81 FR 14176 )

. One comment was received.

The Small UAV Coalition (the Coalition) commented in support of the petition request to conduct BVLOS operations to inspect rail infrastructure in rural areas over land owned or controlled by BNSF . The Coalition believes that the FAA holds the authority to grant the petitioner’s requested regulatory relief

. The FAA agrees that the requested relief can be addressed with the exemption authority provided to the FAA. The Coalition also supports the petitioner’s request to operate sUAS models without an airworthiness certificate that have been approved for use in section 333 exemptions. The FAA has considered this request and notes the petitioner requests to operate sUAS without an airworthiness certificate to the extent that operations are limited to VLOS. The Coalition further states that relief with respe ct to commercial pilot certifi cation

, minimum altitude

, and altimeter r equ irem ents is routinely granted for section 333 exemptions. The FAA agrees with the Coalition’s observation and relief requested with respect to pilot certification minimum altitude, and altimeter requirements is d iscussed in the FAA analysis section of this exemption.

The FAA’ s analysis is as follows:The FAA has issued grants of exemption in circumstances similar to those presented in the petition. I n Exemption No. 11062 , issued to Astraeus Aerial ( see Docket FAA

- 2014

- 0352), the FAA found that granting the requested relief from § 61.113(a) does not adversely affect the safety of the NAS when operations are conducted in compliance with the conditions and limitations in the Exemption. Similarl y, in Exempt ion No. 11213 issued to Aeryon Labs ( see Docket No. FAA

- 2014

- 0 642 ) , the FAA found that granting the requested relief from § § 91.119(c)

, 91.121 , and 91.151(a) does not adversely affect the safety of the NAS when operations are conducted in compliance with t he conditions and limitation s in the Exemption.

The petitioner requested relief from § 61.113 (a), Private pilot privileges and limitations

, to the
extent necessary to operate its s UAS for compensation or hire with a PIC holding a private pilot certificate and third class medical certificate

. In assessing this petition, the FAA reviewed its analysis of pilot certificate requirements for VLOS operation s in Exemption

No

. 11062 relative to the BVLOS operations proposed by the petitioner

.
In Exemption No. 11062, the FAA analyzed the areas of knowledge specified in part 61 for that of a commercial pilot versus a private pilot. The results show that the required areas of knowledge for a commercial versus private pilot certificate cover the sa me fundamental principles and are equivalent relative to the BVLOS operations proposed.

Exemption No. 11062 also considered airmanship. Private p ilot airmanship skills are furthered through manned flights in the NAS. Commercially certificated pilots build additional experience through manned flights as well. The additional experience and airmanship skills obtained by commercially certificated airmen contribute to its ability to overcome adverse situations that could be encountered in flights conducted for c ompensation or hire. However, 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 limited operational environment proposed by the petitioner

. As in Exemption No. 11062, the FAA finds that the additional manned airmanship experience of a commercially certificated pilot would not correlate to the airmanship skills necessary for the proposed BVLOS operations.

T he FAA finds granting the requested relief from 14 CFR § 61.113(a) permitting the petitioner to use a PIC holding a private pilot certificate and third class medical certificate to
conduct s UAS operations for compensation or hire , provided the operations are conducted in compliance with the conditions and limitations outlined below, does not adversely affect the safety of the NAS.

The petitioner requested to operate its sUAS below 400 feet AGL and is therefore seeking
relief f r om 14 CFR § 91.119(c), Minimum safe altitudes over other than cong ested areas

. T he
FAA finds that relief from § 91.119(c) is necessary because the aircraft will be operated at
altitudes below 500 feet AGL. T he FAA notes the petition is consistent with waivers typically requested for manned operations in FAA Order 8900.1 V olume 3, C hapter 7, S ection 1, Issuea Certificate of Waiver or Authorization: § 91.119(B) And/Or (C) (Minimum Safe Altitudes )

. This Order recognizes that certain operations justify waiving the 500

- foot minimum

separ ation distance from persons or property on the surface when such operations are determined to be in the public interest and contributing to the public health, welfare, and safety. As discussed in the Public Interest section below, the FAA finds that these operations are in the furtherance of the public interest.

BNSF propose s o perations limited to rural and remote areas with very low population density
where the UA will remain o ver BNSF property and/or right

- of

- ways (RoW)

. The FAA has previously stated that there are no discrete definitions for terms such as “densely populated,” “congested areas”, “other than congested areas,” and “sparsely populated areas

, ” and the same would apply to “rural and remote areas with very low population.” O fficial U. S. Government aeronautical charts and NOTAMs provide general guidance for developing a proposed route that complies with § 91.119

. H owever, aeronautical charts would not be expected to reflect all required local information. Pilots may obtain such informat ion in a briefing from the local Flight Standards District Office (FSDO). This information along with the pilot’s prior knowledge of the area and information the pilot obtains from other sources may require an adjustment to the planned flight path before o r during flight. Ultimately, it is the pilot’s responsibility to maintain the minimum safe altitudes required by § 91.119. See Legal Interpretation to Melvin O. Cintron, from Rebecca B. MacPherson (Aug. 28, 2012). Also,
BNSF’s s UAS operate d under this exemption will hold a special airworthiness certificate and operate at speeds not to exceed 87 knots. T he FAA believes that the special conditions provided to manned aircraft in FAA Order 8900.1 discussed above are sufficient to ensure the

pro posed s UAS operations do not adversely affect safety. Therefore, c onsistent with the Order, the FAA finds that the UA may be operated within 500 feet of persons, vessels,
vehicles and structures , but u nder no condition will the UA be operated closer than 200 feet to persons on the surface or less t han 100 feet from any structure

. In addition, operations are permitted over other than congested areas and limited to over BNSF property and/or right

- of

ways (RoW) or over areas with permission of property owners

. When operationally

necessary, such as executing a course reversal, the UA is permitted to transit outside of the BNSF private property in accordance with the Certificate of Authorization or Waiver (COA) issued by the FAA’s Air Traffic Organization (ATO). The PIC may not intentionally fly the UA directly over per s ons on the surface. Operations must never pose an undue hazard to human beings that may be present

.

In consideration of the above, t he FAA finds that granting the requested relief from 14 CFR § 91.119(c) is warranted and will not adversely affect the safety of the NAS provided
adherence to the conditions and limitations outlined below.

The petitioner requested relief from 14 CFR § 91.121, Altimeter settings

. If the UA is equipped with a barometric altimeter, relief from § 91.121 is not necessary. If the UA is notequipped with a barometric altimeter, an alternate means for measuring and reporting UA altitude is necessary, such as global positioning system (GPS). See Exemption No. 11062. As stated in the conditions and limitations below, the FAA requires altitude be reported in ‘ feet
AGL. ’ The petitioner may choose to set the altitude indicator to zero feet AGL rather than local barometric pressure or field altitu de before flight. Considering the limited altitude of the proposed operations , relief from 14 CFR § 91.121 is granted to the extent necessary to comply with the applicable conditions and limitations stated below.

The petitioner has requested relief from 14 CFR § 91.151, Fuel requirements for flight in VFR
conditions . Prior UAS specific relief has been granted in Exemption Nos. 8811, 10808, and 10673 for daytime, VFR conditions. The conditions and limitations below prohibit the PIC from beginning a UAS fligh t unless (considering wind and forecast weather conditions) there is enough available power for UAS to operate for the intended operational time and sufficient

power reserve for the PIC to land the aircraft in a known area clear of human beings, vessels,

v ehicles, and structures , and in such a way as to minimize potential injury or damage to
property . The FAA finds that this provides sufficient reason to grant relief from 14 CFR § 91.151(a)(1) to the extent necessary and in accordance with the conditions an d limitations below for all UAS listed in this exemption.

In addition to operating sUAS that have received an airworthiness certificate in the restricted or experimental categories, the petitioner requested to operate sUAS without an airworthiness
certific ate that have been approved for use in s ection 333 exemptions to the extent operations
are limited to VLOS. In Exemption No. 15005 to Thomas R. Guilmette , the FAA found that sUAS previously approved to be operated within VLOS and in accordance with the conditions and limitations in exemptions routinely granted to s ection 333 petitioners by the Secretary can be safely operated by any s ection 333 exemption h older. The FAA notes that this request is concurrently being addressed in the petitioner’s open s ection 333 petition for amendment to Exemption No. 11206. Therefore, the FAA finds that

, because this exemption is providing the regulatory relief requested fo r BVLOS operations, the petitioner’s request to operate sUAS previously approved under s ection 333 within VLOS is not granted and will be further
addressed in its current s ection 333 request for amendment to Exemption No. 11206.

Public Interest

The FAA fin ds that a grant of exemption is in the public interest. Exploration of s afe and reliable BVLOS operations is a critical element of integrating UAS into the NAS

. Furthermore, the potential safety and environmental benefits derived by inspecting rail and
oth er infrastructure networks by UAS are also in the public interest.The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113

, and 44701, delegated to me by the Administrator, BNSF Railway Company is granted an exemption from §§ 61.113(a) ; 91.119(c); 91.121; and 91.151(a) (1) to the extent n ecessary to operate its s UAS
up to 4 00 f eet AGL , subject to the conditions and limita tions listed below.

Conditions and Limitations

In this exemption, BNSF Railway is hereaf ter referred to as the operator.

Failure to comply with any of the conditions and limitations of this exemption will be grounds for the immediate suspension or rescission of this exemption.

1. Operations must be conducted with aircraft holding a special airworthiness certificate
and in accordance with the operating limitations of the certificate and the type
certificate data sheet as applicable

.

2. The UA may not be op erated at a speed exceeding 87 knots (100 miles per hour). The
operator may use either groundspeed or calibrated airspeed to determine compliance with the 87 knot speed restriction. In no case will the UA be operated at airspeeds greater than the maximum U A operating airspeed recommended by the aircraft
manufacturer

.

3. Air Traffic Organization (ATO) Certificate of Waiver or Authorization (COA)

. All operations must be conducted in accordance with an ATO

- issued COA. The operator must apply for a new or amended COA if it intends to conduct operations that cannot be conducted under the terms of the issued COA.

4. The UA must be operated at the altitude s prescribed in the applicable COA. Altitude must be reported in feet AGL.

5. Under this exemption, a PIC must hold either an airline transport, commercial, or private pilot certificate , or as otherwise prescribed in the operating limitations stipulated in the aircraft special airworthiness certificate . The PIC must also hold a current FAA airman medical certificate. The PIC must meet the flight review requirements specified in 14 CFR § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate

.

6. Operations are permitted over other than congested areas and are limited to over BNSF property and/or right

- of

- ways (RoW) or over areas with permission of the
property owner ( s ) except when operationally necessary

. T he UA may be operated within 500 feet of persons, vessels, vehicles and structures, but under no condition willthe UA be operated closer than 200 feet to persons on the surface or less than 100 feet from any structur e. Intentional flight of the UA directly over per s ons on the surface is prohibited.

7. The PIC is prohibited from beginning a flight unless (considering wind and forecast weather conditions) there is enough available power for the UAS to conduct the intended operation with sufficient reserve such that in the event of an unplanned

emergency, the PIC can land the aircraft in a known area

, without posing an undue risk to aircraft or people and property on the ground.

Unless otherwise specified in this gr ant of exemption, the UAS, the UAS PIC, and the UAS operations must comply with all applicable parts of 14 CFR including, but not limited to, parts 45, 47, 61, and 91.

This exemption terminates on May 31 , 201 8 , unless sooner superseded or rescinded.

Issued in Washington, D

. C

. , on April 21, 2016.

/s/

John S. Duncan

Director, Flight Standards Service