1

This letter corrects the April 21, 2016 letter we sent granting your petition for Exemption No. 

16431. A correction was made to include the exemption number, which had inadvertently 

been omitted from the April 21 version. Below is the amended Exemption No. 16431 that 

includes the aforementioned change. We have made the correction in our records as of April 

29, 2016.

Exemption No. 16431

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

BNSF Railway Company Regulatory Docket No. FAA-2016-0734

for an exemption from §§ 61.113(a); 

91.119(c); 91.121; and 

91.151 of Title 14, Code

of Federal Regulations 

 

GRANT OF EXEMPTION

By letters 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 

Research 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 regulations:

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

(a) Except as provided in paragraphs (b) through (h) of this section, no 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, for 

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 business 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 an 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 person may begin a flight in an airplane under 

visual flight rules (VFR) conditions unless (considering wind and forecast weather

conditions) there is enough fuel to fly to the first point of intended landing and, 

assuming normal cruising speed, (1) during the day, to fly after that for at least 30 

minutes; or (2) at night, to fly after that for at least 45 minutes; and 

(b) no person may begin a flight in a rotorcraft under VFR conditions unless 

(considering wind and forecast weather conditions) there is enough 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 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.
The petitioner states approval of its petition for exemption will allow the FAA/BNSF 

Pathfinder 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 

research is still needed to ensure current levels of safety are maintained or enhanced. The 

petitioner contends that granting 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 and 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 that granting relief from the regulations would not adversely affect 

safety. The petitioner anticipates 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 of 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 

evaluating 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 reaches 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 asserts that as 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 areas with very low population density, beginning with flights during 

daylight hours, and at altitudes it submits 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 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 feet above ground level (AGL) at relatively low 

speeds. BNSF stipulates that in the event an operation 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 airport.

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. 

These measures will gradually be implemented throughout the Pathfinder project. The 

petitioner believes 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 

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 

Airmen (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. The petitioner states that the unmanned aircraft (UA) to 

be operated under this request will be operated under a special airworthiness certificate for the 

purposes of research and development, crew training, and market survey in accordance with 

§ 21.191.

The petitioner requests an exemption from § 61.113 for the operation of sUAS. The petitioner 

notes that 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 states its PICs hold at least a private pilot certificate and a 3rd Class Medical 

Certificate. It states that in Exemption 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 aeronautical knowledge to operate a UAS safely under the terms of that exemption. 

BNSF states 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 certificate. 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. BNSF 

believes that the additional training and experience required for a private pilot license 
adequately 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 states that relief is required from paragraph (c) because 

railroad track surveillance conducted at 500 feet or higher is insufficiently distinct to be 

meaningful. The petitioner further believes that since operations above 500 feet AGL also 

pose a heightened risk 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 enhance 

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 adjacent to the track and 

structures that will be the objects of surveillance. The petitioner states that it tightly controls

access to its land and has the ability to assure that individuals not associated with the planned 

surveillance are not on the affected 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 sUAS over its property.

In support of its request for an exemption from § 91.121, BNSF proposes that it anticipates

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 believes this GPS is 

sufficient to orient the unmanned aircraft away from other aircraft as well as from groundbased structures that are not the subject of the surveillance activity.

The petitioner states the sUAS that BNSF intends to use are battery or gasoline powered -

some sUAS hybrid designs are both battery (vertical lift and landing) and gasoline powered 

(forward flight). BNSF stated it believes 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 excess 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 noted 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 sUAS. 

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 exemption 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 inspect rail system infrastructure and to find technical solutions to control issues 

associated with BVLOS operations of sUAS.

The petitioner 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, 2016, request for information dated 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 respect to 

commercial pilot certification, minimum altitude, and altimeter requirements 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 discussed 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. In 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. Similarly, in Exemption No. 11213 issued to Aeryon Labs (see

Docket No. FAA-2014-0642), 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 the conditions and limitations in the Exemption.

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

extent necessary to operate its sUAS 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 operations 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 same fundamental 

principles and are equivalent relative to the BVLOS operations proposed.

Exemption No. 11062 also considered airmanship. Private pilot 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 compensation 

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.

The 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 sUAS 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 from 14 CFR § 91.119(c), Minimum safe altitudes over other than congested areas. The 

FAA finds that relief from § 91.119(c) is necessary because the aircraft will be operated at 

altitudes below 500 feet AGL. The FAA notes the petition is consistent with waivers typically 

requested for manned operations in FAA Order 8900.1 Volume 3, Chapter 7, Section 1, Issue 
a 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 

separation 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 proposes operations limited to rural and remote areas with very low population density 

where the UA will remain over 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.” Official U.S. Government 

aeronautical charts and NOTAMs provide general guidance for developing a proposed route 

that complies with § 91.119. However, aeronautical charts would not be expected to reflect all 

required local information. Pilots may obtain such information 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 or 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 sUAS operated under this exemption will hold a special airworthiness certificate and 

operate at speeds not to exceed 87 knots. The FAA believes that the special conditions 

provided to manned aircraft in FAA Order 8900.1 discussed above are sufficient to ensure the 

proposed sUAS operations do not adversely affect safety. Therefore, consistent with the 

Order, the FAA finds that the UA may be operated within 500 feet of persons, vessels, 

vehicles and structures, but under no condition will the UA be operated closer than 200 feet to 

persons on the surface or less than 100 feet from any structure. In addition, operations are 

permitted over other than congested areas and limited to over BNSF property and/or right-ofways (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 persons on the surface. Operations must never pose an undue hazard to 

human beings that may be present.

In consideration of the above, the 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 not 
equipped 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 altitude 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 flight 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, 

vehicles, 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 and 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 

certificate that have been approved for use in section 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 section 333 petitioners by the Secretary can 

be safely operated by any section 333 exemption holder. The FAA notes that this request is 

concurrently being addressed in the petitioner’s open section 333 petition for amendment to 

Exemption No. 11206. Therefore, the FAA finds that, because this exemption is providing the 

regulatory relief requested for BVLOS operations, the petitioner’s request to operate sUAS 

previously approved under section 333 within VLOS is not granted and will be further 

addressed in its current section 333 request for amendment to Exemption No. 11206.

Public Interest

The FAA finds that a grant of exemption is in the public interest. Exploration of safe 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 

other 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 necessary to operate its sUAS 

up to 400 feet AGL, subject to the conditions and limitations listed below.

Conditions and Limitations

In this exemption, BNSF Railway is hereafter 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 operated 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 UA 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 altitudes 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. The UA may be operated 

within 500 feet of persons, vessels, vehicles and structures, but under no condition will 
the UA be operated closer than 200 feet to persons on the surface or less than 100 feet 

from any structure. Intentional flight of the UA directly over persons 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 grant 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, 2018, unless sooner superseded or rescinded.

Issued in Washington, D.C., on April 21, 2016.

/s/

John S. Duncan

Director, Flight Standards Service