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

- 2014

- 0704 ) Exemption No. 11206A For an exemption from §§ 61.113(a), ) 91.7(a), 91.119(c), 91.121, 91.151(a)(1) ) 91.405(a), 91.407(a)(1), 91.409(a)(1) and ) (2), and 91.417(a) and (b) )

_

___________________________________)

RESPONSE TO FAA’s FOLLOW

- UP QUESTIONS

BNSF Railway Company (“BNSF”) hereby responds to a series of follow

- up questions by the Federal Aviation Administration concerning BNSF’s two recent petitions for an

amendment to Exemption No. 11206, 1 permitting BNSF to conduct certain operations using a small unmanned aircraft system (“sUAS”) over BNSF owned or controlled railroad infrastructure and operations.

Specifically, in one petition BNSF seeks to amend paragraphs 1, 5, 6, 16, 18 and 20 of the exemption (FAA

- 2014

- 0704

- 10); in the other petition, BNSF seeks to amend paragraphs 1, 29 and 31 of the exemption (FAA

- 2014

- 0704

- 11). Since the FAA’s request addressed portions of both petitions, we are providing a single, consolid ated response here. BNSF believes the suggested amendments, discussed in detail in the petitions and below, will in many instances improve, and in no instance degrade, the safety of individuals on the ground and in the air over

what is achievable under th e existing exemption. With over 225 hours of safe UAS flight time conducting visual line of sight (VLOS) operations under the existing exemption, BNSF believes it has demonstrated a strong safety culture that justifies expansion of the current conditions and

limitations.

Improving the safety of rail operations and BNSF staff is a primary driver in BNSF’s UAS operations. One of the primary benefits of UAS operations is the safe and efficient inspection of infrastructure with a minimum exposure of crew to the track and mini mal system down time. Traditional inspections of railway infrastructure, including rail, bridges and towers,

1 On December 15, 2015 the FAA amended BNSF’s exemption to add additional aircraft and permit individuals holding a recreational or sport pilot certificate to serve as PIC. Because of this amendment, the exemption is now identified as “Exemption No. 11206A .”2 are accomplished by having personnel walk, drive, and climb over, under or around the tracks and other structures. These traditional inspection m ethods expose BNSF personnel to risk that can be mitigated by UAS operations because they allow inspections from locations other than directly on the structure being inspected and can reduce the length of time that an inspector must be on or adjacent to t he track or other infrastructure. However, because the conditions and limitations in the existing exemption, BNSF inspection crews are required to remain on or immediately adjacent to the track in instances where BNSF believes it can control for the risk that the condition and limitation aims to address. Accordingly, neither employee safety nor service efficiency can be maximized. While BNSF does all it can to make the UAS operations as safe as possible, there is an irreducible element of risk not only w hen employees are required to work directly on track and rail structures, but also when they are required to be located adjacent to the track or in environmental conditions, such as high water, that trigger the need for the inspection.

BNSF believes th e amendments are in the public interest because they would allow BNSF to better address safety and security risks to track and other infrastructure using sUAS in conjunction with or in lieu of more traditional forms of transportation and on

- sight inspectio ns. Approximately 25% of all rail commerce, including high value and hazardous cargo, move over BNSF rail indiscriminately; 2 depending on the nature and length of the disruption, any disruption in rail operations can cause safety risks to the general publ ic and economic stress to the U.S. economy. BNSF further believes that it has amply met the standard for demonstrating an amendment to the existing conditions and limitations would not adversely affect safety as required by 14 C.F.R. § 11.81(e).

FAA Re quest for Additional Information on Conditions and Limitations 5 and 6

BNSF has requested conditions and limitations 5 and 6 be amended to allow for operations within either the PIC’s VLOS or a VO’s VLOS. In the instances where it is impractical for the PIC to be within VLOS of the unmanned aircraft, BNSF PICs would utilize more than one VO, maintaining radio contact with all VOs. The anticipated operations would NOT be extended line of sight operations as described in the FAA Pathfinder Focus Area 2

pr oject. The aircraft would always be within the visual line of sight of either the PIC or a VO.

BNSF appreciates the FAA’s obligation to assure the safety of the NAS as well as people and property on the ground. In the context of UAS operations, the FAA has expressed significant concern over the safety of individuals and property on the ground. While the UAS operations can reduce the risk to BNSF personnel when more traditional forms of inspection can be supplemented, BNSF believes it can further reduce risks associated with its current UAS operations to its people on the ground if it is permitted to conduct VO

- based VLOS operations,

rather than PIC

- based VLOS operations. The use of UAS for track and infrastructure inspection

2 Unlike airlines, railroads engaged in common carriage may not refuse a validly offered shipment of cargo, including cargo that is classified as hazardous. Such cargo must necessarily be moved along existing tracks and cannot readily be diverted from particular population centers or portions of the country. While BNSF’s current UAS operations are in remote areas, eventually BNSF intends to expand those operations in to more highly populated areas as the technology matures.3 increase the safety of trac k inspectors who are on the track every day, as well as engineering personnel tasked with evaluating potential damage to other infrastructure such as bridges. However, under the current limitations those inspection personnel remain on the track longer

tha n BNSF believes is necessary. This is because currently the aircraft must land once it reaches the edge of the PIC’s VLOS and the PIC must then relocate before the aircraft can be further used to assist with the inspection, adding time to the overall insp ection process. In cases of heavy tree cover or hilly terrain, the aircraft may need to be relocated multiple times because the PIC’s VLOS is very small (especially when the unmanned aircraft is flown at very low altitudes). Allowing “daisy

- chaining” usi ng multiple VOs reduces both the amount of time spent by BNSF personnel on the track or other infrastructure and disruption to rail operations.

BNSF understands that the FAA has already issued experimental airworthiness

certificates that allow for either the PIC or the VO to maintain visual contact with the UA. We also understand that beyond PIC

- based VLOS operations have been conducted at various test sites. Since the ability to observe the aircraft is not based on the aircraft’s characteristics, BNSF believes the FAA should extend this relief to section 333 exemption holders who can demonstrate an ability to fully staff their UAS operations, to follow procedures similar to those used at the various test sites and as part of the conditions for an experi mental airworthiness certificate, and who have the necessary control of the property over which the aircraft will fly to mitigate risk to the general public. 3 The FAA can assure that these measures are taken as part of any VO

- based VLOS by including a con dition and limitation that imposes such a requirement on the holder of the exemption. BNSF also believes modification of conditions 5 and 6 to allow flight beyond the operator’s VLOS as long as the aircraft remains within VLOS of a VO is

consistent with t he implicit recognition in existing condition and limitation 6 that the PIC may rely upon a VO to maintain VLOS.

The FAA has requested BNSF to supply additional information to support its request to modify conditions 5 and 6. Specifically, the FAA note s that “the petition lacks a justification to guarantee safe operations. BNSF is required to provide [a] safety case to demonstrate acceptable risk levels of operating in the NAS.”

As an initial matter, BNSF believes it is helpful to explain why any ris k to the NAS attributable to its operations is negligible absent any additional measures on BNSF’s part. BNSF’s UAS operations are conducted over BNSF property that is in remote areas, largely in the west and southwest, and distant from significant popula tion centers. As such, much of the airspace at higher altitudes is designated by the FAA as class G airspace because the level of traffic does not justify a higher designation. The existing altitude limitation in BNSF’s exemption already creates a natura l buffer between the unmanned aircraft and the rare manned

3 Well

- established companie s with significant infrastructure assets are particularly (and perhaps uniquely)

well

- suited to being able to meet these conditions. First, these companies are highly regulated by other federal agencies. Accordingly, they have already adopted a robust sa fety culture. Second, the cost associated with maintaining the infrastructure means that the companies necessarily must exercise care in conducting UAS operations because the cost associated with further damaging the infrastructure or disrupting operatio ns is potentially significant. Finally, they are the most likely to have control over a sufficient amount of land to justify daisy

- chaining while still remaining over their own property.4 aircraft likely to be in the area. Since BNSF can only conducts operations at altitudes of 400 ft. AGL or less, BNSF submits there is minimal risk to other aircraft.

However, BNSF does not rely solely on the natural airspace constraints associated with the geographical aspects of its operations and has voluntarily adopted several safety measures that further mitigate the already negligible risk to the NAS. BNSF actively engages in a pro

active educational campaign prior to each UAS operation. First, BNSF files a NOTAM request for each operation. Since pilots of all aircraft are required by regulation to review all applicable NOTAMs prior to flight, this mitigation should be sufficient to alert pilots of traditional aircraft of any BNSF UAS operations along their intended flight path. In addition, BNSF has actively engaged the communities proximate to planned operations by holding information seminars.

BNSF believes this outreach can reach thos e individuals who, for whatever reason, fail to check for applicable NOTAMs or who have not decided on a specific flight plan because they are flying VFR. Finally, BNSF has installed high power LED navigational lights and/or strobe lights

on its aircraft with AR

- 180 lights to improve the aircraft’s visibility. 4 In field tests conducted outside of the United States, BNSF has reported excellent visibility at distances of over 8,000 feet, at altitudes between 100 and 400 ft. AGL, and in conditions ranging fr om clear, to haze to

mist.

The sUAS used by BNSF provide the PIC with both a first person view (FPV) from the unmanned aircraft and telemetry data. These data enable the PIC to accurately access the speed,

location and orientation of the unmanned aircra ft, as well as the status of critical systems such as battery capacity and command

- and

- control link strength. This equipment supplements the PIC’s ability to evaluate the location of the unmanned aircraft and its environment beyond a purely

visual assessm ent.

In addition to these community outreach and equipage measures, BNSF’s internal processes and training will ensure safe operations. The number of VOs appropriate for a particular operation is based on flight duration, equipment, local terrain and we ather. Training will be provided to all PICs and VOs engaged in daisy

- chain operations to inform how these conditions may impact both the ability to track the unmanned aircraft, as well as to maintain

communication between the PIC and the VOs. Prior to e ach operation, the PIC will determine the appropriate number and location of VOs in accordance with BNSF procedures to ensure the VOs are strategically situated. If the PIC determines that communications are weak or interrupted at anytime during the fligh t, the aircraft will be placed in hover mode or landed until communications are reestablished. Likewise, using the monitoring equipment installed on the unmanned aircraft the PIC can use all data at his disposal, including the information relayed by

the VO s, to assess when the flight should be discontinued due to systems issues, to take appropriate action to avoid any other aircraft, or to terminate the flight by landing the aircraft on BNSF property. The boundary for aircraft operation will be defined by the extent of the radio communication, the FPV video link, and the command

- and

- control link for a single command

4 The output of the top mounted white LED strobe, which BNSF bel ieves would be the most critical to aircraft flying above 500 ft AGL is 170 lumen. The output of the red and white LEDs mounted on the end of the rotor arms is 2.5 lumen, and the output of the green LEDs mounted on the end of the rotor arms is 4.5 lumen.5 station. From the perspective of PIC control and situational awareness, the operation is essentially similar to a PIC

- based VLOS operation co nducted by a PIC and a single VO.

FAA Request for Additional Information on Condition and Limitation 20

One of the most critical times BNSF needs to conduct aerial inspections is during inclement weather, when there may be possible roadway, ballas t or track damage that could cause a derailment. The Federal Railroad Administration requires certain inspections depending on the amount of rain, snow, heat or cold impacting the track. Severe weather events like the flash flooding that took place in Te xas and Oklahoma in the fall of 2015 also require inspections to ensure the track is safe for train movement. In most cases these inspections are accomplished by inspectors walking the track or riding on a small truck. These types of inspections are

extr emely risky because of the existing weather and ground conditions. When a derailment or service interruption does occur, a UAS team is immediately transported to the site. Once on

- site, the UAS team provides assistance to the inspectors and the NTSB, if present, to determine the cause of the accident or incident and initiate hazard mitigations. This is a critical time for addressing safety and environmental concerns that can be mitigated by allowing all weather VLOS UAS operations. Current exemption lim itations do not allow UAS operations during less than ideal meteorological conditions. Accordingly, BNSF has offered two options for the FAA’s

consideration.

First, BNSF requested that the limitation be revised to state that VLOS operations are permis sible when the weather requires traditional aircraft operate under instrument flight rules (IFR). BNSF did not assert that it would conduct IFR operations. Rather, its point was that since VFR operations in the area would be precluded, there would be an extremely low risk of any interaction between the unmanned aircraft and any manned aircraft.

Alternatively, BNSF suggested the FAA apply the VFR limits in 14 C.F.R. §91.155 for class G airspace. Condition and limitation 4 already effectively limits UAS operations to class G airspace. Given the exceptionally low altitudes at which the unmanned aircraft are operated, BNSF continues to believe there is simply no need to impose visibility conditions on the VO that are more stringent than what is require d for traditional aircraft in class G airspace. Indeed, rotorcraft unmanned aircraft are arguably entitled to the exception in §91.115(b)(1) that requires helicopters only remain clear of clouds.

In reviewing BNSF’s request, the FAA requested a safety a nalysis that identifies hazards, risk categories and other necessary mitigation to ensure safe operations in the NAS. The FAA further noted that upon receipt of the safety analysis its air traffic organization would convene a Safety Risk Management Panel (SRMP) to assess that risk.

BNSF continues to believe that the natural separation between unmanned aircraft flying below 400 ft. AGL and manned aircraft flying IFR, combined with the countermeasures described in our response to FAA’s question about mo dification of conditions and limitations 5 and 6, does not increase risk to the NAS and would allow UAS operations during critical times

of weather

- related risk to rail operations. In addition, the PIC is already required to conduct a

pre

- flight assessmen t and would have to determine that the unmanned aircraft could be flown in6 those conditions safely. However, BNSF also appreciates the FAA’s concern with BNSF conducting UAS operations under IFR conditions, even though BNSF always intended to operate

the unmanned aircraft under VFR and within VLOS in these conditions. Given the FAA’s concerns, and the length of time required to complete an SRMP assessment, BNSF has

determined that it can continue to address the weather

- related risk to rail operations unti l the FAA gains greater confidence with airspace integration (or in this case segregation).

The FAA has raised no follow

- up questions or concerns with BNSF’s suggested alternative that condition and limitation 20 be amended to permit operations within the parameters set by §91.155 for class G airspace rather than the parameters for class E airspace, which is what condition and limitation 20 currently requires. BNSF believes that the mitigation

measures described above in connection with conditions and limitations 5 and 6 more than adequately address any residual risk to other aircraft. Risk to people and property on the ground is already addressed by limiting operations to BNSF property and rights of way.

FAA Request for Additional Information on C ondition and Limitation 31

BNSF has requested condition and limitation 31 be amended to delete the references to nonparticipating vehicles. While many of BNSF’s assets are located more than 500 feet from public roadways, that is not always the case. It is simply impractical to seek the permission of people driving on public roads along the track or other infrastructure being inspected. BNSF notes that all but one of the unmanned aircraft it currently uses qualify as helicopters under the

definition in 14 C.F.R. §1.1. Section 91.119(d) specifies that helicopters may be operated at less than the minimums prescribed in paragraphs (b) or (c) of that section. It is those minimums that establish the minimum distance between the aircraft and nonparticipatin g persons, vessels, vehicles or structures. Thus, in the case of traditional (and much larger) helicopters, the FAA imposes no minimum altitude or stand

- off distances at all.

The FAA has determined that BNSF must provide a safety case to justify opera tions

within 500 feet of non

- participating persons.

BNSF appreciates the FAA’s concern over the safety of the uninvolved public. However, seeking an individual’s permission to operate within 500 feet does nothing to address those safety concerns. As su ch, BNSF submits that the FAA reconsider its position on an individual’s acceptance of risk and focus instead on the actual risk posed by the unmanned aircraft to the uninvolved public travelling on public roads. Because BNSF is only conducting operations in remote areas of the country, there are relatively few public roads in the immediate vicinity of BNSF tracks and other infrastructure. BNSF has noted anecdotally that among the roads that are there, they are not heavily trafficked. As such, BNSF asser ts that the risk to uninvolved members of the public (who also happen to be enclosed within a vehicle that structurally meets the terms set forth in condition and limitation 31(a)) is minimal.

BNSF believes it is important to distinguish between two ty pes of roadways: those that traverse the track at a railroad crossing and those that run roughly adjacent to the track for some period of time. For public roadways traversing the track, there is no practical way to address risk without ceasing all operati ons near the railroad crossing. Since the length of time required to7 traverse the track can be measured in seconds, BNSF believes any risk can be mitigated by having the VO scan the public roads within VLOS and notify the PIC of any vehicle traffic that

w ill need to cross the track. 5 In that way the PIC can conduct the UAS operation so that the unmanned aircraft is at an appropriate stand

- off distance from the railroad crossing when the driver crosses the track. Operations along public roads that run adj acent to the track are arguably more problematic because the exposure time, while still minimal, is potentially greater. Noting the FAA’s concern, BNSF is amenable to implementing procedures that require the PIC to

conduct a site evaluation of the area to be surveyed before any operation commences. Based on this survey, the PIC will assess the distance between the track and the road and, using the flight planning tool, will determine the need for a geo

- fence to protect the roadway. BNSF has

determined th at it can set the geo

- fence function on its unmanned aircraft to operate the aircraft at least 100 feet from the public roadway. In the instance of public roadways close to the track, this means BNSF will need to limit unmanned aircraft operations to dir ectly above the track. UAS operations along roadways adjacent to and closer than 100 feet of the tracks would not be permitted. Such an approach significantly impairs BNSF’s ability to conduct UAS safety inspection operations over much of its track becau se several public roadways are within 100 feet of the track centerline. However, it also commensurately reduces the exposure level to the uninvolved public.

5 BNSF had originally offered to provide a designated VO whose sole task would be to monitor the public roads. Upon further reflection, given the minimal level of both aircraft and road traffic in the areas where BNSF is conducting its operations, BNSF b elieves a VO should be able to perform both functions, particularly as the VO will have both a visual and audio warning of any approaching aircraft.