U.S. Department ofTransportation Docket Management System 1200 New Jersey Ave., SE Washington, DC 20590 Filed with www.regulations.gov January 05, 2016 Re: Petition for ExemptionUnder Section 333 ofthe FAA ReformAct and Part 11 ofthe Federal Aviation Regulations Dear Sir or Madam, Pursuant to Section 333 ofthe 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 fromthe 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 ofFederal Registerpublication: Applicantseeks an exemptionfrom thefollowing 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 SubpartE (91.401

- 91.417) to operate commercially a small unmannedvehicle (55lbs or less) augmenting its landsurveying operations.Contact information for the Applicant is: Michael M Heger, PE BNI Coal, Ltd 2360 35th Ave SW Center, ND 58530 Phone: 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 Commissionbefore anywork operations can take place. This approvedpermit 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 approvedpermit area are ideal to utilize a UAV(unmanned aerial vehicle) for imaging ofagriculture applications, Digital Terrain Modeling, infrastructure reconnaissance and inventory with GIS applications in mind. The above mentioned applications are directlytied 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 approvedpermitted 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 byuse ofeither or all ofthe following: The eBee, a fixed wing UAV manufacturedby SenseFly, A Parrot Company ("SenseFly") The UX5, a fixed wing UAV manufacturedby Trimble Navigation Limited ("Trimble") The requested exemption would authorize commercial operations using these UAVs for land survey and safety applications. These operations willbe subject to strict operating and conditions defined by the UAV manufacturer's standards and procedures Upon receipt ofthe exemption contemplated herein, BNI shall, ifrequired, obtain a Certificate ofWaiver or Authorization (COA) fromthe FAA prior to conducting operations inthe national air space. Further, the use ofa UAV in the BNI lands controlledby virtue ofstate permit, will be performed under the supervision ofa person whom, by virtue oftheir experience or licensing, has technical knowledge of GPS, plane geometry, trigonometry and spherical geometry along with a full understanding ofthe rights ofall owners ofpropertyboth above and below its limits

. By this petition, BNI seeks an exemptionthat will authorize it to use the eBee or UX5 for safetypurposes provided its operators comply with anyterms and conditions ofthe FAA’s anticipated grant ofexemption, including the procedures andrequirements set forth in the respective manufacturer's user manuals

. Under the requested exemption, BNI as operator ofthe eBee and the UX5, will ensure that the aircraft will be operated, under the direct supervision ofan individual who has completed the UAV manufacturer's training program for operation ofthe UAS.**1. CHARACTERISTICS**  **OF THE**  **AIRCRAFT** Both the eBee and the UX5 are a small and ultra

-light platformthat performprecision aerial mapping missions using onboard GPS and relatedproprietary 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 ofhigh

-definition still images that are used later to generate photographs, maps and contour lines ofthe surveyed area. The four main characteristics ofthe 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 significantlyreduces the risk ofhazardous situations. Finally, wings are detachable and made offlexible foamwith no sharp orhard 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 ofcontact with any object.
c. Semi

-automatic flight The artificial intelligence incorporated within the UAVs autopilot system continuously analyzes data fromthe Inertial Measurement Unit and fromthe onboard GPS and takes care ofall the aspects ofthe flight under the supervision ofthe 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 andresume the mission". The operator can also suspend automated operations and take manual control ofthe 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 ofthis solution:
a. The UAV’s bring safetyto daily survey operations: there is no need for the humans to access dangerous working areas anymore (miningpits, spoil piles, orrough uneven areas). The missions can be programmed and reproduced reliably as often as needed for regularlyupdated maps. b. The UAV’s are a cost
-effective solution. It is cheaper to operate a UAS ratherthan an aircraft or other ground systems for the same results
c. Users can save time and work more efficientlybyusing a UAV. A mission does not need a long preparation time or long deployment constraints, or long waiting time forperfect weather conditions unlike, for example, the use ofsatellites 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 ofallowing a visual view ofthe minesite while keeping the employee a safe distance away. The ability ofUAV 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 demonstratedtheirrespective 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-flighttestcenter

conducts

-ebee

-airworthiness

-assessment, and the US Army Corps ofEngineers ("USACE") New Orleans, who coordinatedwith the Department ofArmy and the FAA to obtain all authorizations required in order to operate the eBee UAS). Moreover, SenseFlyhas obtained flight approvals for the eBee fromthe national civil aviation authority in many countries, including: Switzerland (flight approval forVisual Line ofSight "VLOS" operations) Canada (flight approval forVLOS operations) Australia (flight approval forVLOS operations) France (flight approval for Extended

-VLOS operations) Germany (flight approval forVLOS operations) UnitedKingdom (flight approval forVLOS operations) Norway (flight approval forVLOS operations) Sweden (flight approval forVLOS operations) Denmark (flight approval forVLOS operations) **Trimble** believes that it has shown compliance with the requirements ofOrder 8130.34C, Airworthiness Certification ofUnmanned Aircraft Systems and Optionally PilotedAircraft, in its pending SAC application for the UX5. The criteria set forth in the Order specify the substantive showings ofthe 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 ofthe SAC process for the UX5 provides assurance ofthe public safety for the aircraft ty pe, given the prior review by the FAA under Part 21 for the predecessor model, the X
-100, in connection withthe issuance of a SAC for the X
-100.Grant ofthe 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 operatedwithin visual line ofsight (VLOS) ofa Pilot in Command (PIC) and/orVisual Observer (VO). 3. Maximumtotal flight time for each operational flight will be 30 minutes. 4. Flights will be operated at an altitude ofno 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 ofUAV andreceived up to
date 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 fromthe relevant propertyholders will be in direct control ofBNI and all requiredpermissions andpermits will be obtained from territorial, state, county or city jurisdictions, including local law enforcement, fire, or other appropriate governmental agencies. 9. Ifthe UAV loses communications or loses its GPS signal, the UAS will have capability to return to a pre-determined location within the SurveyArea and land. 10. The UAV will have the capabilityto abort a flight in case ofobstacles 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. Ifplanned operations occur within 5 miles ofCommercial 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 COAwill also require the operator to request aNotice 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 spectrumused for operation and control ofthe UAV must comply with the Federal Communications Commission (FCC) or other appropriate government oversight agency requirements.15. The UAV must remain clear and yieldthe right ofwayto all other manned operations and activities at all. 16. UAV operations maynot be conducted during night. 17. The UAV cannot be operated by the PIC from any moving device or vehicle. 18. The UAV maynot 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 fromthe PIC. 19. The UAV maynot operate in Class B, C, or D airspace without written approval from the FAA. The UAV maynot operate within 5 nautical miles ofthe geographic center ofa non-towered airport as denoted on a current FAA

-published aeronautical chart unless a letter ofagreement with that airport's management is obtained. 20. Any 1) incident, 2) accident, or 3) flight operation that transgresses the lateral or vertical boundaries ofthe operational area as defined bythe 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 maynot 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 ofthe latest innovative technology associated withremotelypiloted aircraft. Thankyou,
Michael M. Heger Engineering Manager BNI Coal, Ltd.**AN NEXA**  **EXEMPTION REQUEST**  **AND EQUIVA** **LENT LEVEL**  **OF SA** **FETY SHOWINGS**  **UNDER AP** **PLICA BLE**  **RULES SUBJECT**  **TO EXEM** **PTION** 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:**  **Ai rworthiness**  **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 unnecessaryto 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 ofthe size, weight, speed, operational capability, and proximity to airports and populated areas of the UAS involved. An analysis ofthese 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: Me** **dical 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 certificateGiven 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 ofthat 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 propertyfor compensation or hire. Given the safetyfeatures ofthe 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 forAirworthiness Qualification Level (AQL) 3 Airworthiness Release (A WR). The equivalent level of safetyfor 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**  **air worthiness**  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 ofthe 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 Categoryfor 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 fullyfunctioning 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 offlammable fuel, any risk associated with these operations is far less than those presently presented with conventional aircraft. **14 CFR**  **91.121: Al** **timeter 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 Ai** **rcraft 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): Ma** **intenance, 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 safetywill 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

.