U.S. Department of Transportation

Docket Management System

1200 New Jersey Ave., SE

Washington, DC 20590

Filed with www.regulations.gov

January 05, 2016

Re: Petition for Exemption Under Section 333 of the FAA Reform Act and Part 11 of the Federal

Aviation Regulations

Dear Sir or Madam,

Pursuant to Section 333 of the FAA Modernization and Reform Act of 2012 (the "Reform Act"),

P .L. 112-95, "Special Rules for Certain Unmanned Aircraft Systems" and 14 C.F .R. Part 11, 

Michael M Heger, on behalf of BNI Coal, Ltd (BNI), seeks an exemption from the Federal

Aviation Regulations ("FARs") listed below:

14 C.F.R. Part 21

14 C.F.R. 45.23

14 C.F.R. 45.29

14 C.F.R. 61.23

14 C.F.R. 61.3

14 C.F.R. 61.113(a) & (b)

14 C.F.R. 61.133(a)

14 C.F.R. 91.7(a)

14 C.F.R. 91.9

14 C.F.R. 91.109(a)

14 C.F.R. 91.119

14 C.F.R. 91.121

14 C.F.R. 91.151(a)

14 C.F.R. 91.203

14 CFR Subpart E (91.401 - 91.417)

Summarized for purposes of Federal Register publication:

Applicant seeks an exemption from the following rules:

. 14 C.F.R. Part 21, 14 C.F.R. 45.23, 14 C.F.R. 45.29, 14 C.F.R. 61.23, 14 C.F.R. 61.3, 14 C.F.R.

, 1.113(a) & (b), 14 C.F.R. 61.133(a), 14 C.F.R. 91. 7(a), 14 C.F.R. 91.9, 14 C.F.R. 91.109(a), 14

C.F.R. 91.119, 14 C.F.R. 91.121, 14 C.F.R. 91.151 (a), 14 C.F.R. 91.203, 14 CFR Subpart E

(91.401- 91.417)

to operate commercially a small unmanned vehicle (55lbs or less) augmenting its land surveying

operations.
Contact information for the Applicant is:

Michael M Heger, PE

BNI Coal, Ltd

2360 35th Ave SW

Center, ND 58530

P hone: 701-355-5544

Email: mheger@bnicoal.com

BNI Coal, ltd is the operator of the Center Mine near Center, ND. The Center Mine is a surface lignite 

mine engaged in the extraction of coal and the reclamation of mined areas. An approved mining permit

is required in North Dakota and the permit is administered and regulated by the North Dakota Public

Service Commission before any work operations can take place. This approved permit grants all surface

and sub-surface rights to BNI Coal and subsequently direct surface control. Due to this direct surface

control, the lands that are within the approved permit area are ideal to utilize a UAV(unmanned aerial

vehicle) for imaging of agriculture applications, Digital Terrain Modeling, infrastructure reconnaissance

and inventory with GIS applications in mind. The above mentioned applications are directly tied to 

operations at the Center Mine. The incorporation of a UAV into the Center Mine operations will decrease 

the time and expenses associated with capturing photographic and DTM data from aerial applications. 

The requested exemption would authorize BNI to perform commercial operations with a UAV in the

approved permitted area of the Center Mine. This request is nearly identical to a similar exemption that 

was granted to the nearby Falkirk Mining Company on April 16, 2015 (Exemption No. 11329)

These services will be augmented by use of either or all of the following:

The eBee, a fixed wing UAV manufactured by SenseFly, A Parrot Company ("SenseFly")

The UX5, a fixed wing UAV manufactured by Trimble Navigation Limited ("Trimble")

The requested exemption would authorize commercial operations using these UAVs for land

survey and safety applications. These operations will be subject to strict operating and conditions defined

by the UAV manufacturer's standards and procedures

Upon receipt of the exemption contemplated herein, BNI shall, if required, obtain a Certificate

of Waiver or Authorization (COA) from the FAA prior to conducting operations in the national air space.

Further, the use of a UAV in the BNI lands controlled by virtue of state permit, will be performed under

the supervision of a person whom, by virtue of their experience or licensing, has technical knowledge of

GPS, plane geometry, trigonometry and spherical geometry along with a full understanding of the rights

of all owners of property both above and below its limits.

By this petition, BNI seeks an exemption that will authorize it to use the eBee or UX5 for

safety purposes provided its operators comply with any terms and conditions of the FAA’s

anticipated grant of exemption, including the procedures and requirements set forth in the

respective manufacturer's user manuals.

Under the requested exemption, BNI as operator of the eBee and the UX5, will ensure that the

aircraft will be operated, under the direct supervision of an individual who has completed the 

UAV manufacturer's training program for operation of the UAS.
1. CHARACTERISTICS OF THE AIRCRAFT

Both the eBee and the UX5 are a small and ultra-light platform that perform precision aerial

mapping missions using onboard GPS and related proprietary flight management software that

allows the operator to plan safely and efficiently a mission in 3D, and then monitor it in realtime.

An embedded camera, protected by a foam envelope, takes a collection of high-definition

still images that are used later to generate photographs, maps and contour lines of the surveyed

area.

The four main characteristics of the UAVs are:

a. Very light weight

The vehicles are so light enough that the operator can launch it by hand and let it land on almost

any surface without requiring a parachute or landing net (belly land). Their low kinetic energy

also significantly reduces the risk of hazardous situations. Finally, wings are detachable and

made of flexible foam with no sharp or hard edges and almost no internal strengthening

structure.

b. Electric-powered

The UAVs are electric-powered. A brushless engine technology makes it silent and reliable.

The propeller can easily flex away in case of contact with any object.

c. Semi-automatic flight

The artificial intelligence incorporated within the UAVs autopilot system continuously analyzes

data from the Inertial Measurement Unit and from the onboard GPS and takes care of all the

aspects of the flight under the supervision of the operator.

d. Option for Manual control

Additionally, the UAVs provide an override capability that allows the operator to manually

initiate autonomous actions during the flight such as "return home", "land" or, "hold and resume

the mission". The operator can also suspend automated operations and take manual control of the

aircraft should it become necessary to respond to emergency circumstances, thanks to the remote

controller provided with the system.
2. APPLICATIONS AND ADDED VALUE OF THE UAVs

Mapping applications may include agricultural applications, mining, construction and

survey/GIS operations. There are many operational benefits related to the use of this solution:

a. The UAV’s bring safety to daily survey operations: there is no need for the humans to

access dangerous working areas anymore (mining pits, spoil piles, or rough uneven areas). The missions

can be programmed and reproduced reliably as often as needed for regularly updated maps.

b. The UAV’s are a cost-effective solution. It is cheaper to operate a UAS rather than an

aircraft or other ground systems for the same results

c. Users can save time and work more efficiently by using a UAV. A mission does not need a

long preparation time or long deployment constraints, or long waiting time for perfect weather

conditions unlike, for example, the use of satellites and aerial photography. Initial results are accessible

directly on-site, which is impossible with images provided by satellites or manned aircrafts.

d. Lastly, but most importantly, is the safety factor of allowing a visual view of the minesite while

keeping the employee a safe distance away. The ability of UAV to remotely gather data in a safe manner

cannot be completed as safe or timely with any other current technology.

3. APPLICABLE LEGAL STANDARD UNDER SECTION 333

a. Airworthiness assessment

SenseFly has demonstrated their respective airworthiness through many and varied national

international projects, involving state/federal agencies or universities (among others the New

Mexico State University: https:/ /newscenter.nmsu.edu/ Articles/view II 0208/nmsu-uas-flighttestcenterconducts-ebee-airworthiness-assessment, and the US Army Corps of Engineers

("USACE") New Orleans, who coordinated with the Department of Army and the FAA to obtain

all authorizations required in order to operate the eBee UAS). Moreover, SenseFly has obtained

flight approvals for the eBee from the national civil aviation authority in many countries,

including:

Switzerland (flight approval for Visual Line of Sight "VLOS" operations)

Canada (flight approval for VLOS operations)

Australia (flight approval for VLOS operations)

France (flight approval for Extended-VLOS operations)

Germany (flight approval for VLOS operations)

United Kingdom (flight approval for VLOS operations)

Norway (flight approval for VLOS operations)

Sweden (flight approval for VLOS operations)

Denmark (flight approval for VLOS operations)

Trimble believes that it has shown compliance with the requirements of Order 8130.34C,

Airworthiness Certification of Unmanned Aircraft Systems and Optionally Piloted Aircraft, in its

pending SAC application for the UX5. The criteria set forth in the Order specify the substantive

showings of the device's safety and fitness for operation to ensure that the FAA has sufficient

basis to evaluate the aircraft's safety. Trimble submits that completion of the SAC process for 

the UX5 provides assurance of the public safety for the aircraft type, given the prior review by

the FAA under Part 21 for the predecessor model, the X -100, in connection with the issuance of

a SAC for the X-100.
Grant of the exemption to BNI will be subject to the following operating conditions, The

operator proposes the following conditions and/or limitations, which were accepted by 

the FAA.

1. The UAV will weigh less than 55 lbs. Operations will be limited to the SenseFly eBee and

the Trimble UX5.

2. Flights will be operated within visual line of sight (VLOS) of a Pilot in Command (PIC)

and/or Visual Observer (VO).

3. Maximum total flight time for each operational flight will be 30 minutes.

4. Flights will be operated at an altitude of no more than 400 feet AGL.

5. The UAS will only operate within a confined, preprogrammed survey area.

6. Pilot and observer will have been trained in operation of UAV and received up todate information on the particular UAS to be operated as required in the User Manuals.

7. PIC and VO will at all times be able to communicate by voice and/or text.

8. All lands from the relevant property holders will be in direct control of BNI and all

required permissions and permits will be obtained from territorial, state, county or city

jurisdictions, including local law enforcement, fire, or other appropriate governmental

agencies.

9. If the UAV loses communications or loses its GPS signal, the UAS will have capability to 

return to a pre-determined location within the Survey Area and land.

10. The UAV will have the capability to abort a flight in case of obstacles or emergencies.

11. Prior to each flight the PIC must inspect the UAV to ensure it is in a condition for safe

flight. All maintenance and alterations must be properly documented in the aircraft records.

12. The operator must follow the manufacturer's UAS aircraft/component, maintenance,

overhaul, replacement, inspection, and life limit requirements. When unavailable, aircraft

maintenance, component, overhaul, replacement, and inspection/maintenance

requirements must be established and identified in the operator's manual. At a minimum,

the following must be included in the operator's manual:

13. If planned operations occur within 5 miles of Commercial Services Airport as defined by

the FAA, the operator must obtain an Air Traffic Organization (ATO) issued Certificate

of Waiver or Authorization (COA) prior to conducting any operations. This COA will

also require the operator to request a Notice to Airman (NOT AM) not more than 72 hours

in advance, but not less than 48 hours prior to the operation.

14. Before conducting operations, the radio frequency spectrum used for operation and

control of the UAV must comply with the Federal Communications Commission (FCC) or

other appropriate government oversight agency requirements.
15. The UAV must remain clear and yield the right of way to all other manned operations and

activities at all.

16. UAV operations may not be conducted during night.

17. The UAV cannot be operated by the PIC from any moving device or vehicle.

18. The UAV may not be operated less than 500 feet below or less than 2,000 feet horizontally

from a cloud or when visibility is less than 3 statute miles from the PIC.

19. The UAV may not operate in Class B, C, or D airspace without written approval from the 

FAA. The UAV may not operate within 5 nautical miles of the geographic center of a non-towered

airport as denoted on a current FAA-published aeronautical chart unless a letter

of agreement with that airport's management is obtained.

20. Any 1) incident, 2) accident, or 3) flight operation that transgresses the lateral or vertical

boundaries of the operational area as defined by the applicable COA must be reported to

the Federal Aviation Administration's (FAA) UAS Integration Office (AFS-80) within 24

hours. Accidents must be reported to the National Transportation Safety Board (NTSB)

per instructions contained on the NTSB Web site: www.ntsb.gov. Further flight

operations may not be conducted until the incident, accident, or transgression is reviewed

by AFS-80 and authorization to resume operations is provided.

The agreement to this requested exemption would authorize BNI with the ability to provide safe, reliable

and accurate land mapping information to safeguard the BNI employees with the use of the latest

innovative technology associated with remotely piloted aircraft.

Thank you,

Michael M. Heger

Engineering Manager

BNI Coal, Ltd.
ANNEXA

EXEMPTION REQUEST AND EQUIVALENT LEVEL OF SAFETY SHOWINGS

UNDER APPLICABLE RULES SUBJECT TO EXEMPTION

BNI requests an exemption from the following regulations as well as any additional regulations

that may technically apply to the operation of the SenseFly eBee and the Trimble UX5 ("UAVs):

14 C.F.R. Part 21, Subpart H: Airworthiness Certificates 14 CFR § 91.203

Section 91.203 requires all civil aircraft to have a certificate of airworthiness. Part 21, Subpart H,

entitled Airworthiness Certificates, establishes the procedural requirements for the issuance of

airworthiness certificates as required by FAR§ 91.203(a). Given the size of the Uavs, their very

light weight and the limited operating area associated with its utilization, it is unnecessary to go

through the certificate of airworthiness process under Part 21 Subpart H in order to achieve or

exceed current safety levels.

Such an exemption meets the requirements of an equivalent level of safety under Part 11 and

Section 333 of the Reform Act. The Federal Aviation Act and Section 333 of the Reform Act

both authorize the FAA to exempt aircraft from the requirement for an airworthiness certificate,

upon consideration of the size, weight, speed, operational capability, and proximity to airports

and populated areas of the UAS involved. An analysis of these different criteria demonstrates

that the UAvs operated without an airworthiness certificate, under the conditions proposed in

that exemption, will be at least as safe, or safer, than a conventional aircraft with an

airworthiness certificate.

14 C.F.R. § 45.23 & 14 C.F.R. § 45.29: Display of marks; size of marks

These regulations provide that each aircraft must display "N" and the aircraft's registration

number in letters at least 3 inches high. Additionally, the aircraft must display the word

"EXPERIMENTAL" in letters at least 2 inches high near the entrance to the cabin, cockpit, or

pilot station. Given the size of the UAVs, this requirement is impossible to match. A suitable letter size will

be selected.

14. CFR §61.23: Medical certificates: Requirement and duration

Regulations provide that a person:

(1) Must hold a first-class medical certificate:

• When exercising the pilot-in-command privileges of an airline transport pilot certificate;

• When exercising the second-in-command privileges of an airline transport pilot certificate in

a flag or supplemental operation in part 121 of this chapter that requires three or more pilots; or

• When serving as a required pilot flight crewmember in an operation conducted under part

121 of this chapter if the pilot has reached his or her 60th birthday.

(2) Must hold at least a second class medical certificate when exercising:

• Second-in-command privileges of an airline transport pilot certificate in part 121 of this

chapter (other than operations specified in paragraph (a)( 1 )(ii) of this section); or

• Privileges of a commercial pilot certificate
Given the size of the UAVs, their structure, the limited flight area, and the safety features

integrated in the autopilot (among others a flight termination system), BNI believes that an

Equivalent Level of Safety Training can be reached from the mandatory monthly Safety Training that BNI

provides each employee.

14 C.F.R. § 61.3: Requirements for certificates, ratings and authorizations

14 C.F.R. § 61.113(a} & (b); 61.133(a}: Private Pilot Privileges and Limitations; Pilot in

Command; Commercial Pilot Privileges and Limitations

The regulation provides that no person may serve as a required pilot flight crewmember of a

civil aircraft of the United States, unless that person:

(1) Has a pilot certificate or special purpose pilot authorization issued under this part in that

person's physical possession or readily accessible in the aircraft when exercising the privileges

of that pilot certificate or authorization. However, when the aircraft is operated within a foreign

country, a pilot license issued by that country may be used. The regulation provides also that no

person that holds a private pilot certificate may act as pilot in command of an aircraft for

compensation or hire. Subparagraph (b) allows a private pilot to 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;

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

Given the safety features of the UAVs and the fact that the missions are pre-programmed and

monitored in real-time with a specific flight management software, BNI proposes that operators

of the UAVs should not be required to hold a commercial or private pilot certification. Instead,

operators should be required to:

• Have a valid driver's license, which shows the ability to follow safe operating instructions for a mancontrolled vehicle be it with tires or in the air.

• Have completed the UAV manufacturers training program for operation of the UAS. The

manufacturer's training program for eBee operators has been already satisfactorily reviewed

through the Application for Airworthiness Qualification Level (AQL) 3 Airworthiness Release

(AWR). The equivalent level of safety for the UX5 will be achieved by having an operator complete the

manufacturer’s training program which has been approved by the FAA through its Special Airworthiness

Certificate process.

14 C.F.R. § 91.7(a): Civil aircraft airworthiness

Subpart H, entitled Airworthiness Certificates, establishes the procedural requirements for the

issuance of airworthiness certificates as required by FAR §91.203 (a) (1). Given the size and

limited operating area associated with the aircraft to be utilized by the Applicant, an exemption

from Part 21 Subpart H meets the requirements of an equivalent level of safety under Part 11

and Section 333 of the Reform Act. The Federal Aviation Act (49 U.S.C.§44701 (f)) and Section

333 of the Reform Act both authorize the FAA to exempt aircraft from the requirement for an

airworthiness certificate, upon consideration of the size, weight, speed, operational capability,

and proximity to airports and populated areas of the particular UAS. In all cases, an analysis of

these criteria demonstrates that the UAS operated without an airworthiness certificate, in the

restricted environment and under the conditions proposed will be at least as safe, or safer, than

a conventional aircraft (fixed wing or rotorcraft) operating with an airworthiness certificate without the

restrictions and conditions proposed.
In addition Trimble Navigation LTD. has been issued an FAA Special Airworthiness Certificate in the

Experimental Category for the UX5(14 CFR 21.191, FAA-2014-0367).

14 C.F.R. § 91.9: Civil aircraft flight manual, marking, and placard requirements

The equivalent level of safety will be achieved by keeping a hard copy of the user manual in

In close proximity to the operator.

The equivalent level of safety will be provided by having the UAVs marked on its fuselage as

required by §45.29 (f) where the pilot, observer and others working with the UAV will see the

identification of the UAS as "Experimental." The FAA has issued the following exemptions to this

regulation to Exemptions Nos. 10700, 8738, 10167 and 10167A.

14 C.F.R. § 91.109(a): Flight Instruction

The regulation provides that "No person may operate a civil aircraft that is being used for flight

instruction unless that aircraft has fully functioning dual controls."

The equivalent level of safety during the in-flight training will be achieved by the manufacturer or

affiliate providing the training as described in the manufacturer's training program and through

the use of experienced and qualified instructors familiar with the UAVs operations.

14 CFR § 91.119: Minimum Safe Altitudes

Section 91.119 establishes safe altitudes for operation of civil aircraft. The exemption requests

authority to operate at altitudes up to 400 AGL, it will however be operated in a restricted area

with security perimeter, where buildings and people will not be exposed to operations without

their pre-obtained consent.

The equivalent level of safety will be achieved given the size, weight, speed of the UAS as well

as the location where it is operated. No flight will be taken without the permission of the property

owner or local officials.

Compared to flight operations with aircraft weighing far more than those proposed herein and

the lack of flammable fuel, any risk associated with these operations is far less than those

presently presented with conventional aircraft.

14 CFR 91.121: Altimeter settings

This regulation requires 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." As the UAV may not have a barometric altimeter,

but instead a GPS altitude read out, an exemption is requested.

An equivalent level of safety will be achieved by the operator confirming the altitude of the

launch site shown on the GPS altitude indicator before flight.
14 C.F.R. § 91.151(a): Fuel Requirements for Flight in VFR Conditions

The regulation provides that no person may begin a flight in an airplane under day-VFR

conditions unless there is enough fuel to fly to the first point of intended landing and to fly after

that for at least 30 minutes. As the UAVs are electric-powered, this requirement is inapplicable.

In any event, given the contemplated operations, BNI believes that an equivalent level of

safety is already achieved with the specific procedure preventing the UAVs accepting a take-off order is

the battery level is below a given value. Moreover, the manufacturers have integrated low and critical

battery level warnings and implemented a "return to home" action in these situations.

14 C.F.R. § 91.203 (a) & (b): Carrying Civil Aircraft Certification and Registration

This regulation provides as follows:

• No person may operate a civil aircraft unless it has an appropriate and current airworthiness

certificate.

• No person may operate a civil aircraft unless the airworthiness certificate required by

paragraph (a) of this section or a special flight authorization issued under §91. 715 is

displayed at the cabin or cockpit entrance so that it is legible to passengers or crew.

An equivalent level of safety will be achieved by keeping these documents at the ground control

point where the pilot flying the UAV will have immediate access to them, to the extent they are

applicable to such UAV. The FAA has issued numerous exemptions to this regulation. A

representative sample of other exceptions includes Exemption Nos. 9565, 9665, 9789, 9789A,

9797, 9797A, 9816A, and 10700.

14 CFR Subpart E (91.401 - 91.417): Maintenance, Preventive Maintenance, and

Alterations

The regulation provides that the operator is primarily responsible for maintaining the aircraft in

an airworthy condition, including compliance with Parts 39 and 43. Paragraphs 91 A07 and 

91 .409 require the aircraft to be "approved for return to service by a person authorized under

43.7" after maintenance and inspection. Section 91.409 requires an annual inspection for the

issuance of an airworthiness certificate. Section 91 A 17 requires the owner or operator to keep

records showing certain maintenance work that has been accomplished by certificated

mechanics, under Part 43, or licensed pilots and records of approval of the aircraft for return to

service.

BNI proposes that the maintenance of the UAVs will be accomplished by the owner or the

operator according to the manufacturers user manuaL

Given that these section and Part 43 apply only to aircraft with an airworthiness certificate,

these sections will not apply to the applicant. Maintenance will be accomplished by the operator

pursuant to the flight manual and operating handbook as referenced herein. An equivalent level

of safety will be achieved because these small UAVs are very limited in size and will carry a

small payload and operate only in restricted areas for limited periods of time. If mechanical

issues arise the UAV can land immediately and will be operating from no higher than 400 feet

AGL. The operator will ensure that the UAS is in working order prior to initiating flight, perform

required maintenance, and keep a log of any maintenance performed. Moreover, the operator is

the person most familiar with the aircraft and best suited to maintain the aircraft in an airworthy

condition to provide the equivalent level of safety.