[Federal Register Volume 81, Number 124 (Tuesday, June 28, 2016)]
[Rules and Regulations]
[Pages 42063-42214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15079]



[[Page 42063]]

Vol. 81

Tuesday,

No. 124

June 28, 2016

Part II





Department of Transportation





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 Federal Aviation Administration





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14 CFR Parts 21, 43, 61, et al.





Operation and Certification of Small Unmanned Aircraft Systems; Final 
Rule

Federal Register / Vol. 81 , No. 124 / Tuesday, June 28, 2016 / Rules 
and Regulations

[[Page 42064]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 21, 43, 61, 91, 101, 107, 119, 133, and 183

[Docket No.: FAA-2015-0150; Amdt. Nos. 21-99, 43-48, 61-137, 91-343, 
101-9, 107-1, 119-18, 133-15, and 183-16]
RIN 2120-AJ60


Operation and Certification of Small Unmanned Aircraft Systems

AGENCY: Federal Aviation Administration (FAA) and Office of the 
Secretary of Transportation (OST), Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The FAA is amending its regulations to allow the operation of 
small unmanned aircraft systems in the National Airspace System. These 
changes address the operation of unmanned aircraft systems and 
certification of their remote pilots. This rule will also prohibit 
model aircraft from endangering the safety of the National Airspace 
System.

DATES: This final rule is effective August 29, 2016.

ADDRESSES: For information on where to obtain copies of rulemaking 
documents and other information related to this final rule, see ``How 
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: For small UAS technical questions 
concerning this final rule, contact Lance Nuckolls, Flight Technologies 
and Procedures Division, AFS-400, 470 L'Enfant Plaza SW., Suite 4102, 
Washington, DC 20024; telephone 1-844-FLY-MYUAS; email [email protected].
    For FAA small UAS policy questions concerning this final rule, 
contact Everette Rochon, Manager, Commercial Operations Branch, AFS-
820, Flight Standards Service, Federal Aviation Administration, 55 M 
Street SE., 8th Floor, Washington, DC 20003; telephone 1-844-FLY-MYUAS; 
email [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Major Provisions of the Regulatory Action
    C. Costs and Benefits
II. Background
    A. Authority for This Rulemaking
    B. Analysis of Public Risk Posed by Small UAS Operations
    C. Current Statutory and Regulatory Structure Governing Small 
UAS
    D. Integrating Small UAS Operations Into the NAS Through 
Rulemaking
    E. Related UAS Integration Initiatives
III. Discussion of the Final Rule
    A. Incremental Approach and Waiver
    B. Discussion of the Applicable Statutory Framework
    C. Applicability
    1. Transporting Property for Compensation (Air Carrier 
Operations)
    2. International Operations and Foreign-Owned Aircraft
    3. Public Aircraft Operations
    4. Model Aircraft
    5. Moored Balloons, Kites, Amateur Rockets, and Unmanned Free 
Balloons
    6. Current Treatment of UAS and Grandfathering of Section 333 
Exemption Holders
    D. Definitions
    1. Control Station
    2. Corrective Lenses
    3. Unmanned Aircraft
    4. Small Unmanned Aircraft
    5. Small Unmanned Aircraft System (Small UAS)
    6. Other Definitions
    E. Operating Rules
    1. Remote Pilot in Command
    a. Terminology
    b. Remote Pilot in Command
    c. Airman Certification Requirement
    d. Emergency Powers of a Remote Pilot in Command
    2. See-and-Avoid and Visibility Requirements
    a. Visual Line of Sight
    b. Visual Observer
    i. Definition of Visual Observer
    ii. Operational Requirements When Using Visual Observer
    iii. Optional Use of a Visual Observer
    iv. No Airman Certification or Required Training of Visual 
Observer
    c. Additional Visibility Requirements
    i. Daytime Operations
    ii. Weather/Visibility Minimums
    iii. Yielding Right of Way
    d. Additional Technology/Conspicuity Requirements
    i. ADS-B, Transponders, and TCAS
    ii. Radio Equipment
    iii. Lighting
    iv. Conspicuity
    3. Containment and Loss of Positive Control
    a. Confined Area of Operation Boundaries
    i. Horizontal Boundary and Moving Vehicles
    ii. Vertical Boundary (Maximum Altitude)
    b. Mitigating Loss of Positive Control Risk
    i. Maximum Speed
    ii. Operating Multiple Unmanned Aircraft
    iii. Micro UAS
    iv. Flight Over People
    v. Preflight Briefing
    vi. Preflight Assessment of the Operating Area and Ensuring That 
the Aircraft Poses No Undue Hazard
    1. Preflight Assessment of the Operating Environment
    2. Undue Hazard if There Is a Loss of Control
    vii. Automation
    viii. Other Equipage
    1. Geo-Fencing
    2. Flight Termination System
    3. Other Technological Equipage
    4. External Load and Dropping Objects
    a. External Load and Towing
    b. Dropping Objects
    5. Limitations on Operations in Certain Airspace
    a. Operations in Class B, C, D, and Lateral Boundaries of the 
Surface Area of Class E Airspace Designated for an Airport
    b. Operations in Class A Airspace
    c. Prohibited or Restricted Areas
    d. Areas Designated by Notice to Airmen
    e. Operations in Class G Airspace
    6. Inspection, Maintenance, and Airworthiness Directives
    a. Inspections and Maintenance
    i. Preflight Check and Maintenance Requirements
    ii. Discontinuing Flight
    iii. Control Link Check
    b. Airworthiness Directives
    7. Additional Operating Provisions
    a. Careless or Reckless Operation
    b. Drug and Alcohol Prohibition
    c. Sufficient Power for the Small UAS
    F. Remote Pilot Certificate
    1. Use of UAS Experience To Apply for Part 61 Pilot Certificate
    2. Remote Pilot Certificate Eligibility and Issuance
    a. Minimum Age
    b. English Language Proficiency
    c. No Airman Medical Certificate Required
    d. Flight Proficiency and Aeronautical Experience
    e. Formal Training
    f. General Requirement for Initial Aeronautical Knowledge Test
    g. General Requirement for Recurrent Aeronautical Knowledge Test
    h. Pilots With Military Experience
    i. Credit to Holders of Part 61 Pilot Certificates
    j. Areas of Knowledge on the Aeronautical Knowledge Tests and 
Training Courses for Part 61 Pilot Certificate Holders
    i. Regulations Applicable to Small UAS
    ii. Airspace Classifications and Operating Requirements, and 
Flight Restrictions Affecting Small Unmanned Aircraft Operation
    iii. Obstacle Clearance Requirements
    iv. Aviation Weather Sources and Effects of Weather on Small 
Unmanned Aircraft Performance
    v. Small UAS Loading and Performance
    vi. Emergency Procedures
    vii. Crew Resource Management
    viii. Determining the Performance of the Small Unmanned Aircraft
    ix. Physiological Effects of Drugs and Alcohol
    x. Aeronautical Decision-Making and Judgment
    xi. Airport Operations
    xii. Radio Communication Procedures
    xiii. Other Areas of Knowledge Suggested by the Commenters
    k. Administration of the Knowledge Tests and Training Courses
    i. Location of the Knowledge Test and Online Option for Training 
Course
    ii. Cheating or Engaging in Unauthorized Conduct

[[Page 42065]]

    iii. Identification of the Test-Taker
    iv. Retesting After Failure
    l. Transportation Security Administration Vetting and Process 
for Issuance
    i. TSA Vetting and Temporary Remote Pilot Certificates
    ii. Issuance and Positive Identification
    3. Remote Pilot Certificate Denial, Revocation, Suspension, 
Amendment, and Surrender
    a. Drugs and Alcohol Violations
    b. Change of Name
    c. Change of Address
    d. Voluntary Surrender of Certificate
    e. Additional Comments on Remote Pilot Certificate
    G. Registration and Marking
    H. Fraud and False Statements
    I. Oversight
    1. Inspection, Testing, and Demonstration of Compliance
    2. Accident Reporting
    J. Statutory Findings
    1. Hazard to Users of the NAS or the Public
    2. National Security
    3. Airworthiness Certification
    K. Miscellaneous Provisions
    1. Mandatory Insurance
    2. Test Sites
    3. Noise and Environmental
    a. The National Environmental Policy Act
    b. Noise
    c. Other Environmental Comments
    4. Privacy
    5. First Amendment
    a. First Amendment Law in the United States
    b. Restrictions on Speech in a Non-Public Forum
    c. Incidental Restrictions on Speech
    d. Time, Place, Manner Restrictions on Speech
    6. Preemption
    7. Agricultural Operations
    8. Miscellaneous Comments
IV. Regulatory Notices and Analyses
    A. Regulatory Evaluation
    B. Final Regulatory Flexibility Determination
    1. A Statement of the Need for and Objectives of the Rule
    2. A Statement of the Significant Issues Raised by the Public 
Comments in Response to the Initial Regulatory Flexibility Analysis, 
a Statement of the Assessment of the Agency of Such Issues, and a 
Statement of Any Changes Made in the Proposed Rule as a Result of 
Such Comments
    3. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) in 
Response to the Proposed Rule, and a Detailed Statement of Any 
Change Made to the Proposed Rule in the Final Rule as a Result of 
the Comments
    4. A Description and an Estimate of the Number of Small Entities 
to Which the Rule Will Apply, or an Explanation of Why No Such 
Estimate Is Available
    5. A Description of the Projected Reporting, Recordkeeping and 
Other Compliance Requirements of the Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the 
Requirement and the Type of Professional Skills Necessary for 
Preparation of the Report or Record
    6. A Description of the Steps the Agency Has Taken To Minimize 
the Significant Economic Impact on Small Entities Consistent With 
the Stated Objectives of Applicable Statutes, Including a Statement 
of the Factual, Policy, and Legal Reasons for Selecting the 
Alternative Adopted in the Final Rule and Why Each One of the Other 
Significant Alternatives to the Rule Considered by the Agency Which 
Affect the Impact on Small Entities Was Rejected
    6. Describe Alternatives Considered
    C. International Trade Impact Assessment
    D. Unfunded Mandates Assessment
    E. Paperwork Reduction Act
    1. Obtaining a Remote Pilot Certificate With a Small UAS Rating
    Summary
    2. Accident Reporting.
    Summary
    3. Emergency Powers
    4. Certificate of Waiver
    5. Total Annual Burden Estimate
    F. International Compatibility and Cooperation
    G. Environmental Analysis
    H. Regulations Affecting Intrastate Aviation in Alaska
V. Executive Order Determinations
    A. Executive Order 13132, Federalism
    B. Executive Order 13211, Regulations That Significantly Affect 
Energy Supply, Distribution, or Use
    C. Executive Order 13609, Promoting International Regulatory 
Cooperation
VI. Additional Information
    A. Availability of Rulemaking Documents
    B. Comments Submitted to the Docket
    C. Small Business Regulatory Enforcement Fairness Act

List of Abbreviations and Acronyms Frequently Used in This Document

AC--Advisory Circular
AGL--Above Ground Level
ACR--Airman Certification Representative
ADS-B--Automatic Dependent Surveillance-Broadcast
ARC--Aviation Rulemaking Committee
ATC--Air Traffic Control
CAFTA-DR--Dominican Republic-Central America-United States Free 
Trade Agreement
CAR--Civil Air Regulation
CFI--Certificated Flight Instructor
CFR--Code of Federal Regulations
COA--Certificate of Waiver or Authorization
DPE--Designated Pilot Examiner
FR--Federal Register
FSDO--Flight Standards District Office
ICAO--International Civil Aviation Organization
NAFTA--North American Free Trade Agreement
NAS--National Airspace System
NOTAM--Notice to Airmen
NPRM--Notice of Proposed Rulemaking
NTSB--National Transportation Safety Board
PIC--Pilot in Command
Pub. L.--Public Law
PMA--Parts Manufacturer Approval
TCAS--Traffic Collision Avoidance System
TFR--Temporary Flight Restriction
TSA--Transportation Security Administration
TSO--Technical Standard Order
UAS--Unmanned Aircraft System
U.S.C.--United States Code

I. Executive Summary

A. Purpose of the Regulatory Action

    This rule finalizes the notice of proposed rulemaking entitled 
Operation and Certification of Small Unmanned Aircraft Systems \1\ (the 
NPRM). The NPRM proposed operating and certification requirements to 
allow small unmanned aircraft systems (small UAS) to operate for non-
hobby and non-recreational purposes.\2\ A small UAS consists of a small 
unmanned aircraft (which, as defined by statute, is an unmanned 
aircraft weighing less than 55 pounds \3\) and equipment necessary for 
the safe and efficient operation of that aircraft. The FAA has 
accommodated non-recreational small UAS use through various mechanisms, 
such as special airworthiness certificates, exemptions, and 
certificates of waiver or authorization (COAs). This rule is the next 
phase of integrating small UAS into the NAS.
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    \1\ 80 FR 9544, Feb. 23, 2015.
    \2\ As used here, ``non-hobby and non-recreational purposes'' 
refers to small UAS that are not operated in accordance with section 
336 of Public Law 112-95. A discussion of section 336 can be found 
below in section III.C.4 of this preamble.
    \3\ Public Law 112-95, sec. 331(6).
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    The following are examples of possible small UAS operations that 
can be conducted under the framework in this rule:

     Crop monitoring/inspection;
     Research and development;
     Educational/academic uses;
     Power-line/pipeline inspection in hilly or mountainous 
terrain;
     Antenna inspections;
     Aiding certain rescue operations;
     Bridge inspections;
     Aerial photography; and
     Wildlife nesting area evaluations.

    Because of the potential societally beneficial applications of 
small UAS, the FAA has been seeking to incorporate the operation of 
these systems into the national airspace system (NAS) since 2008. In 
2012, Congress passed the FAA Modernization and Reform Act of 2012 
(Pub. L. 112-95). Section 333 of Public Law 112-95 directed the 
Secretary to determine whether UAS operations posing the least amount 
of public risk and no threat to national security could safely be 
operated in the NAS and, if so, to establish requirements for the safe 
operation of these systems in the NAS, prior to completion of the UAS

[[Page 42066]]

comprehensive plan and rulemakings required by section 332 of Public 
Law 112-95.
    On February 23, 2015, as part of its ongoing efforts to integrate 
UAS operations in the NAS and in accordance with section 333 of Public 
Law 112-95, the FAA issued the NPRM proposing to amend its regulations 
to adopt specific rules for the operation of small UAS in the NAS. Over 
4,600 public comments were submitted in response to the NPRM. The FAA 
has considered the comments, and now issues this final rule to 
integrate small UAS into the NAS.
    Based on its consideration of the comments submitted in response to 
the NPRM, and its experience with the certification, exemption, and COA 
process, the FAA has developed the framework in this rule to enable 
certain small UAS operations to commence upon adoption of this rule and 
accommodate technologies as they evolve and mature. This framework 
allows small UAS operations for many different non-recreational 
purposes, such as the ones discussed previously, without requiring 
airworthiness certification, exemption, or a COA.

B. Summary of the Major Provisions of the Regulatory Action

    This rule will add a new part 107 to Title 14 Code of Federal 
Regulations (14 CFR) to allow for routine civil operation of small UAS 
in the NAS and to provide safety rules for those operations. Consistent 
with the statutory definition, this rule will define small UAS as UAS 
that use unmanned aircraft weighing less than 55 pounds. To mitigate 
risk, the rule will limit small UAS to daylight and civil twilight 
operations with appropriate collision lighting, confined areas of 
operation, and visual-line-of-sight operations. This rule will also 
address airspace restrictions, remote pilot certification, visual 
observer requirements, and operational limits in order to maintain the 
safety of the NAS and ensure that small UAS do not pose a threat to 
national security. Because UAS constitute a quickly changing 
technology, a key provision of this rule is a waiver mechanism to allow 
individual operations to deviate from many of the operational 
restrictions of this rule if the Administrator finds that the proposed 
operation can safely be conducted under the terms of a certificate of 
waiver.
    Below is a summary of the major provisions of the rule.

          Table 1--Summary of the Major Provisions of Part 107
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Operational Limitations...............................  
                                                         Unmanned
                                                         aircraft must
                                                         weigh less than
                                                         55 lbs. (25
                                                         kg).
                                                         Visual
                                                         line-of-sight
                                                         (VLOS) only;
                                                         the unmanned
                                                         aircraft must
                                                         remain within
                                                         VLOS of the
                                                         remote pilot in
                                                         command and the
                                                         person
                                                         manipulating
                                                         the flight
                                                         controls of the
                                                         small UAS.
                                                         Alternatively,
                                                         the unmanned
                                                         aircraft must
                                                         remain within
                                                         VLOS of the
                                                         visual
                                                         observer.
                                                         At all
                                                         times the small
                                                         unmanned
                                                         aircraft must
                                                         remain close
                                                         enough to the
                                                         remote pilot in
                                                         command and the
                                                         person
                                                         manipulating
                                                         the flight
                                                         controls of the
                                                         small UAS for
                                                         those people to
                                                         be capable of
                                                         seeing the
                                                         aircraft with
                                                         vision unaided
                                                         by any device
                                                         other than
                                                         corrective
                                                         lenses.
                                                         Small
                                                         unmanned
                                                         aircraft may
                                                         not operate
                                                         over any
                                                         persons not
                                                         directly
                                                         participating
                                                         in the
                                                         operation, not
                                                         under a covered
                                                         structure, and
                                                         not inside a
                                                         covered
                                                         stationary
                                                         vehicle.
                                                        
                                                         Daylight-only
                                                         operations, or
                                                         civil twilight
                                                         (30 minutes
                                                         before official
                                                         sunrise to 30
                                                         minutes after
                                                         official
                                                         sunset, local
                                                         time) with
                                                         appropriate
                                                         anti-collision
                                                         lighting.
                                                         Must
                                                         yield right of
                                                         way to other
                                                         aircraft.
                                                         May use
                                                         visual observer
                                                         (VO) but not
                                                         required.
                                                         First-
                                                         person view
                                                         camera cannot
                                                         satisfy ``see-
                                                         and-avoid''
                                                         requirement but
                                                         can be used as
                                                         long as
                                                         requirement is
                                                         satisfied in
                                                         other ways.
                                                         Maximum
                                                         groundspeed of
                                                         100 mph (87
                                                         knots).
                                                         Maximum
                                                         altitude of 400
                                                         feet above
                                                         ground level
                                                         (AGL) or, if
                                                         higher than 400
                                                         feet AGL,
                                                         remain within
                                                         400 feet of a
                                                         structure.
                                                         Minimum
                                                         weather
                                                         visibility of 3
                                                         miles from
                                                         control
                                                         station.
                                                        
                                                         Operations in
                                                         Class B, C, D
                                                         and E airspace
                                                         are allowed
                                                         with the
                                                         required ATC
                                                         permission.
                                                        
                                                         Operations in
                                                         Class G
                                                         airspace are
                                                         allowed without
                                                         ATC permission.
                                                         No
                                                         person may act
                                                         as a remote
                                                         pilot in
                                                         command or VO
                                                         for more than
                                                         one unmanned
                                                         aircraft
                                                         operation at
                                                         one time.
                                                         No
                                                         operations from
                                                         a moving
                                                         aircraft.
                                                         No
                                                         operations from
                                                         a moving
                                                         vehicle unless
                                                         the operation
                                                         is over a
                                                         sparsely
                                                         populated area.
                                                         No
                                                         careless or
                                                         reckless
                                                         operations.
                                                         No
                                                         carriage of
                                                         hazardous
                                                         materials.
                                                        
                                                         Requires
                                                         preflight
                                                         inspection by
                                                         the remote
                                                         pilot in
                                                         command.
                                                         A
                                                         person may not
                                                         operate a small
                                                         unmanned
                                                         aircraft if he
                                                         or she knows or
                                                         has reason to
                                                         know of any
                                                         physical or
                                                         mental
                                                         condition that
                                                         would interfere
                                                         with the safe
                                                         operation of a
                                                         small UAS.
                                                         Foreign-
                                                         registered
                                                         small unmanned
                                                         aircraft are
                                                         allowed to
                                                         operate under
                                                         part 107 if
                                                         they satisfy
                                                         the
                                                         requirements of
                                                         part 375.
                                                        
                                                         External load
                                                         operations are
                                                         allowed if the
                                                         object being
                                                         carried by the
                                                         unmanned
                                                         aircraft is
                                                         securely
                                                         attached and
                                                         does not
                                                         adversely
                                                         affect the
                                                         flight
                                                         characteristics
                                                         or
                                                         controllability
                                                         of the
                                                         aircraft.
                                                        
                                                         Transportation
                                                         of property for
                                                         compensation or
                                                         hire allowed
                                                         provided that--
                                                        [cir] The
                                                         aircraft,
                                                         including its
                                                         attached
                                                         systems,
                                                         payload and
                                                         cargo weigh
                                                         less than 55
                                                         pounds total;
                                                        [cir] The flight
                                                         is conducted
                                                         within visual
                                                         line of sight
                                                         and not from a
                                                         moving vehicle
                                                         or aircraft;
                                                         and
                                                        [cir] The flight
                                                         occurs wholly
                                                         within the
                                                         bounds of a
                                                         State and does
                                                         not involve
                                                         transport
                                                         between (1)
                                                         Hawaii and
                                                         another place
                                                         in Hawaii
                                                         through
                                                         airspace
                                                         outside Hawaii;
                                                         (2) the
                                                         District of
                                                         Columbia and
                                                         another place
                                                         in the District
                                                         of Columbia; or
                                                         (3) a territory
                                                         or possession
                                                         of the United
                                                         States and
                                                         another place
                                                         in the same
                                                         territory or
                                                         possession.
                                                         Most of
                                                         the
                                                         restrictions
                                                         discussed above
                                                         are waivable if
                                                         the applicant
                                                         demonstrates
                                                         that his or her
                                                         operation can
                                                         safely be
                                                         conducted under
                                                         the terms of a
                                                         certificate of
                                                         waiver.
Remote Pilot in Command Certification and
 Responsibilities.

[[Page 42067]]

 
                                                        
                                                         Establishes a
                                                         remote pilot in
                                                         command
                                                         position.
                                                         A
                                                         person
                                                         operating a
                                                         small UAS must
                                                         either hold a
                                                         remote pilot
                                                         airman
                                                         certificate
                                                         with a small
                                                         UAS rating or
                                                         be under the
                                                         direct
                                                         supervision of
                                                         a person who
                                                         does hold a
                                                         remote pilot
                                                         certificate
                                                         (remote pilot
                                                         in command).
                                                         To
                                                         qualify for a
                                                         remote pilot
                                                         certificate, a
                                                         person must:
                                                        [cir]
                                                         Demonstrate
                                                         aeronautical
                                                         knowledge by
                                                         either:
                                                        [ssquf] Passing
                                                         an initial
                                                         aeronautical
                                                         knowledge test
                                                         at an FAA-
                                                         approved
                                                         knowledge
                                                         testing center;
                                                         or
                                                        [ssquf] Hold a
                                                         part 61 pilot
                                                         certificate
                                                         other than
                                                         student pilot,
                                                         complete a
                                                         flight review
                                                         within the
                                                         previous 24
                                                         months, and
                                                         complete a
                                                         small UAS
                                                         online training
                                                         course provided
                                                         by the FAA.
                                                        [cir] Be vetted
                                                         by the
                                                         Transportation
                                                         Security
                                                         Administration.
                                                        [cir] Be at
                                                         least 16 years
                                                         old.
                                                         Part 61
                                                         pilot
                                                         certificate
                                                         holders may
                                                         obtain a
                                                         temporary
                                                         remote pilot
                                                         certificate
                                                         immediately
                                                         upon submission
                                                         of their
                                                         application for
                                                         a permanent
                                                         certificate.
                                                         Other
                                                         applicants will
                                                         obtain a
                                                         temporary
                                                         remote pilot
                                                         certificate
                                                         upon successful
                                                         completion of
                                                         TSA security
                                                         vetting. The
                                                         FAA anticipates
                                                         that it will be
                                                         able to issue a
                                                         temporary
                                                         remote pilot
                                                         certificate
                                                         within 10
                                                         business days
                                                         after receiving
                                                         a completed
                                                         remote pilot
                                                         certificate
                                                         application.
                                                         Until
                                                         international
                                                         standards are
                                                         developed,
                                                         foreign-
                                                         certificated
                                                         UAS pilots will
                                                         be required to
                                                         obtain an FAA-
                                                         issued remote
                                                         pilot
                                                         certificate
                                                         with a small
                                                         UAS rating.
                                                        A remote pilot
                                                         in command
                                                         must:
                                                         Make
                                                         available to
                                                         the FAA, upon
                                                         request, the
                                                         small UAS for
                                                         inspection or
                                                         testing, and
                                                         any associated
                                                         documents/
                                                         records
                                                         required to be
                                                         kept under the
                                                         rule.
                                                         Report
                                                         to the FAA
                                                         within 10 days
                                                         of any
                                                         operation that
                                                         results in at
                                                         least serious
                                                         injury, loss of
                                                         consciousness,
                                                         or property
                                                         damage of at
                                                         least $500.
                                                         Conduct
                                                         a preflight
                                                         inspection, to
                                                         include
                                                         specific
                                                         aircraft and
                                                         control station
                                                         systems checks,
                                                         to ensure the
                                                         small UAS is in
                                                         a condition for
                                                         safe operation.
                                                         Ensure
                                                         that the small
                                                         unmanned
                                                         aircraft
                                                         complies with
                                                         the existing
                                                         registration
                                                         requirements
                                                         specified in
                                                         Sec.
                                                         91.203(a)(2).
                                                        A remote pilot
                                                         in command may
                                                         deviate from
                                                         the
                                                         requirements of
                                                         this rule in
                                                         response to an
                                                         in-flight
                                                         emergency.
Aircraft Requirements.................................   FAA
                                                         airworthiness
                                                         certification
                                                         is not
                                                         required.
                                                         However, the
                                                         remote pilot in
                                                         command must
                                                         conduct a
                                                         preflight check
                                                         of the small
                                                         UAS to ensure
                                                         that it is in a
                                                         condition for
                                                         safe operation.
Model Aircraft........................................   Part
                                                         107 does not
                                                         apply to model
                                                         aircraft that
                                                         satisfy all of
                                                         the criteria
                                                         specified in
                                                         section 336 of
                                                         Public Law 112-
                                                         95.
                                                         The
                                                         rule codifies
                                                         the FAA's
                                                         enforcement
                                                         authority in
                                                         part 101 by
                                                         prohibiting
                                                         model aircraft
                                                         operators from
                                                         endangering the
                                                         safety of the
                                                         NAS.
------------------------------------------------------------------------

C. Costs and Benefits

    Technological advances in small UAS have led to a potential 
commercial market for their uses by providing a safe operating 
environment for them and for other aircraft in the NAS. In addition to 
enabling this industry to develop, the FAA anticipates that this final 
rule will provide an opportunity to substitute small UAS operations for 
some risky manned flights, such as inspection of houses, towers, 
bridges, or parks, thereby averting potential fatalities and injuries.
    The FAA has analyzed the benefits and the costs associated with 
this final rule. The estimated out-of-pocket cost for an individual to 
become FAA certificated as a remote pilot with a small UAS rating is 
$150, which is less than the cost of any other airman certification 
that allows non-recreational operations in the NAS.\4\ The final rule 
will enable a new industry to unfold while imposing relatively low 
individual costs. The private sector expected benefits exceed private 
sector expected costs because each entity voluntarily chooses to incur 
the compliance cost of this rule in anticipation that their benefits 
exceed the costs. The sum of these entities' actions results in 
societal benefits which exceed societal costs when government costs are 
also taken into account. The FAA has quantified these benefits by 
estimating consumer surplus resulting from future commercial 
operations. Benefits to society equal the consumer surplus minus 
certain additional costs discussed.
---------------------------------------------------------------------------

    \4\ To become certificated as remote pilot with a small UAS 
rating, an individual is only required to pass a knowledge test. The 
certification does not require an individual to attend ground school 
or to pass a practical skills exam, both of which are required to 
receive an airman's certificate for sport pilot and above.
---------------------------------------------------------------------------

    The regulatory analysis for this final rule presents two scenarios 
in order to present a range for costs--a high case and a low case. The 
scenarios are based on two fleet forecasts that were prepared 
independently at separate times. As a result, the high case and low 
case projections for small UAS sales, fleet, and pilots differ 
significantly.
    Depending on which small UAS forecast is used, the FAA expects this 
rule will result in a net social benefit ranging from about $733 
million in the low case to about $9.0 billion in the high case over 
five years.\5\
---------------------------------------------------------------------------

    \5\ See the full regulatory evaluation for a detailed 
description on the two small UAS forecasts the FAA used to estimate 
benefits and costs.
---------------------------------------------------------------------------

II. Background

    This final rule addresses the operation and airman certification of 
civil small UAS. The following sections discuss: (1) The public risk 
associated with small UAS operations; (2) the current legal framework 
governing small UAS operations; and (3) the FAA's ongoing efforts to 
incorporate small UAS operations into the NAS.

A. Authority for This Rulemaking

    This rulemaking is promulgated under the authority described in the 
FAA Modernization and Reform Act of 2012 (Pub. L. 112-95). Section 333 
of Public Law 112-95 directs the Secretary of Transportation \6\ to 
determine whether ``certain unmanned aircraft systems may operate 
safely in the

[[Page 42068]]

national airspace system.'' If the Secretary determines, pursuant to 
section 333, that certain unmanned aircraft systems may operate safely 
in the national airspace system, then the Secretary must ``establish 
requirements for the safe operation of such aircraft systems in the 
national airspace system.'' \7\
---------------------------------------------------------------------------

    \6\ The primary authority for this rulemaking is based on 
section 333 of Public Law 112-95 (Feb. 14, 2012). In addition, this 
rulemaking also relies on FAA statutory authorities. Thus, for the 
purposes of this rulemaking, the terms ``FAA,'' ``the agency,'' 
``DOT,'' ``the Department,'' and ``the Secretary'' are used 
synonymously throughout this document.
    \7\ Public Law 112-95, sec. 333(c).
---------------------------------------------------------------------------

    This rulemaking is also promulgated pursuant to 49 U.S.C. 
40103(b)(1) and (2), which charge the FAA with issuing regulations: (1) 
To ensure the safety of aircraft and the efficient use of airspace; and 
(2) to govern the flight of aircraft for purposes of navigating, 
protecting and identifying aircraft, and protecting individuals and 
property on the ground. In addition, 49 U.S.C. 44701(a)(5) charges the 
FAA with prescribing regulations that the FAA finds necessary for 
safety in air commerce and national security. This rulemaking also 
establishes a new class of airman certificate tailored to remote 
pilots, consistent with the statutory obligation set forth in 49 U.S.C. 
44703.
    The model-aircraft component of this rulemaking incorporates the 
statutory mandate in section 336(b) that preserves the FAA's authority, 
under 49 U.S.C. 40103(b) and 44701(a)(5), to pursue enforcement 
``against persons operating model aircraft who endanger the safety of 
the national airspace system.''

B. Analysis of Public Risk Posed by Small UAS Operations

    Small UAS operations pose risk considerations that are different 
from the risk considerations typically associated with manned-aircraft 
operations. On one hand, certain operations of a small unmanned 
aircraft, discussed more fully in section III.E of this preamble, have 
the potential to pose significantly less risk to persons and property 
than comparable operations of a manned aircraft due to differences in 
the weight of the aircraft. The typical total takeoff weight of a 
general aviation aircraft is between 1,300 and 6,000 pounds as compared 
to a total takeoff weight of a small unmanned aircraft of less than 55 
pounds. Consequently, because of the reduced weight, the small unmanned 
aircraft would pose significantly less risk to persons and property on 
the ground in the event of a mishap or pilot error. As such, a small 
UAS operation whose parameters are well defined to mitigate risk to 
other aircraft would also pose a smaller overall public risk or threat 
to national security than the operation of a manned aircraft.
    On the other hand, even though small UAS operations have the 
potential to pose a lower level of public risk in certain types of 
operations, the unmanned nature of the small UAS operations raises two 
unique safety concerns that are not present in manned-aircraft 
operations. The first safety concern is whether the person operating 
the small unmanned aircraft, who is physically separated from that 
aircraft during flight, would have the ability to see manned aircraft 
in the air in time to prevent a mid-air collision with that manned 
aircraft. As discussed in more detail below, the FAA's regulations 
currently require each person operating an aircraft to maintain 
vigilance ``so as to see and avoid other aircraft.'' \8\ This is one of 
the fundamental principles for collision avoidance in the NAS.
---------------------------------------------------------------------------

    \8\ 14 CFR 91.113(b).
---------------------------------------------------------------------------

    For manned-aircraft operations, ``see and avoid'' is the 
responsibility of pilots on board an aircraft. Because the remote pilot 
in an unmanned aircraft operation is not physically on the unmanned 
aircraft, that remote pilot does not have the same visual perspective 
and ability to see other aircraft as a manned-aircraft pilot. Thus, the 
challenge for small unmanned aircraft operations is to ensure that the 
person operating the small unmanned aircraft is able to see and avoid 
other aircraft.
    The second safety concern with small UAS operations is the 
possibility that, during flight, the person piloting the small unmanned 
aircraft may lose control of the aircraft due to a failure of the 
control link between the aircraft and the remote pilot's control 
station. This is known as a loss of positive control and may result 
from a system failure or because the aircraft has been flown beyond the 
signal range or in an area where control link communication between the 
aircraft and the control station is interrupted. A small unmanned 
aircraft whose flight is unable to be directly controlled could pose a 
significant risk to persons, property, or other aircraft.

C. Current Statutory and Regulatory Structure Governing Small UAS

    Due to the lack of an onboard pilot, small UAS operations cannot be 
conducted in accordance with many of the FAA's current operating 
regulations, codified in 14 CFR part 91, that apply to general 
aviation. The primary example of this conflict is Sec.  91.113(b), 
which requires each person operating an aircraft to maintain vigilance 
``so as to see and avoid other aircraft.'' The FAA created this 
requirement in a 1968 rulemaking,\9\ which combined two previous 
aviation regulatory provisions (Civil Air Regulations (CAR) Sec. Sec.  
60.13(c) and 60.30) into the ``see and avoid'' requirement now found in 
Sec.  91.113(b). These CAR provisions were intended to address aircraft 
collision-awareness problems by requiring a pilot on board the aircraft 
to look out of the aircraft during flight to observe whether other 
aircraft are on a collision path with his or her aircraft. Those 
provisions did not contemplate the use of technology to substitute for 
the human vision of a pilot on board the aircraft nor did they 
contemplate the manipulation of the aircraft from outside of the 
aircraft. To the contrary, CAR Sec.  60.13(c) stated that one of the 
problems it intended to address was ``preoccupation by the pilot with 
cockpit duties,'' which indicates that the regulation contemplated the 
presence of a pilot on board the aircraft.
---------------------------------------------------------------------------

    \9\ Pilot Vigilance, 33 FR 10505 (July 24, 1968).
---------------------------------------------------------------------------

    Based on this intent, Sec.  91.113(b) requires an aircraft pilot to 
have the perspective of being inside the aircraft as that aircraft is 
moving in order to see and avoid other aircraft. Since the remote pilot 
of a small UAS does not have this perspective, operation of a small UAS 
cannot meet the see and avoid requirement of Sec.  91.113(b).
    In addition to regulatory considerations, there are statutory 
considerations that apply to small UAS operations. For example, even 
though a small UAS is different from a manned aircraft, the operation 
of a small UAS still involves the operation of an aircraft under the 
FAA's statute, which defines an ``aircraft'' as ``any contrivance 
invented, used, or designed to navigate or fly in the air.'' 49 U.S.C. 
40102(a)(6). Congress reaffirmed that an unmanned aircraft is an 
aircraft in the FAA Modernization and Reform Act of 2012, by defining 
unmanned aircraft as ``an aircraft that is operated without the 
possibility of direct human intervention from within or on the 
aircraft.'' Sec. 331(8), Public Law 112-95. In Administrator v. Pirker, 
the National Transportation Safety Board (NTSB) unanimously affirmed 
this understanding, finding that an unmanned aircraft is an aircraft 
for purposes of the FAA's statutes and regulations.\10\
---------------------------------------------------------------------------

    \10\ Administrator v. Pirker, NTSB Order No. EA-5730 (Nov. 17, 
2014). A copy of the Pirker opinion may be found at: http://www.ntsb.gov/legal/alj/Documents/5730.pdf.
---------------------------------------------------------------------------

    Because a small UAS involves the operation of an ``aircraft,'' this 
triggers the FAA's registration and certification statutory 
requirements. Specifically, subject to certain exceptions, a person

[[Page 42069]]

may not operate a civil aircraft that is not registered. 49 U.S.C. 
44101(a). In addition, a person may not operate a civil aircraft in air 
commerce without an airworthiness certificate. 49 U.S.C. 44711(a)(1). 
Finally, a person may not serve in any capacity as an airman on a civil 
aircraft being operated in air commerce without an airman certificate. 
49 U.S.C. 44711(a)(2)(A).\11\
---------------------------------------------------------------------------

    \11\ The statutes also impose other requirements that are beyond 
the scope of this rulemaking. For example, 49 U.S.C. 44711(a)(4) 
prohibits a person from operating as an air carrier without an air-
carrier operating certificate.
---------------------------------------------------------------------------

    The term ``air commerce,'' as used in the FAA's statutes, is 
defined broadly to include ``the operation of aircraft within the 
limits of a Federal airway, or the operation of aircraft that directly 
affects, or may endanger safety in foreign or interstate air 
commerce.'' 49 U.S.C. 40102(a)(3). Because of this broad definition, 
the NTSB has held that ``any use of an aircraft, for purpose of flight, 
constitutes air commerce.'' \12\ Courts that have considered this issue 
have reached similar conclusions that ``air commerce,'' as defined in 
the FAA's statute, encompasses a broad range of commercial and non-
commercial aircraft operations.\13\
---------------------------------------------------------------------------

    \12\ Administrator v. Barrows, 7 N.T.S.B. 5, 8-9 (1990).
    \13\ See, e.g., United States v. Healy, 376 U.S. 75, 84 (1964) 
(holding that the statutory definition of ``air commerce'' in the 
Federal Aviation Act is not limited to commercial airplanes); Hill 
v. NTSB, 886 F.2d 1275, 1280 (10th Cir. 1989) (``[t]he statutory 
definition of `air commerce' is therefore clearly not restricted to 
interstate flights occurring in controlled or navigable airspace''); 
United States v. Drumm, 55 F. Supp. 151, 155 (D. Nev. 1944) 
(upholding amendments of Civil Air Regulations, which among other 
things prohibited any person from piloting a civil aircraft unless 
the person held a valid pilot certificate and the aircraft possessed 
an airworthiness certificate, on the grounds that the regulatory 
action was within the scope of powers conferred by Congress).
---------------------------------------------------------------------------

    Accordingly, because ``air commerce'' encompasses such a broad 
range of aircraft operations, a civil small unmanned aircraft cannot 
currently be operated, for purposes of flight, if it does not comply 
with the above statutes. However, the FAA's current processes for 
issuing airworthiness and airman certificates were designed to be used 
for manned aircraft and do not take into account the considerations 
associated with civil small UAS.
    Because the pertinent existing regulations do not differentiate 
between manned and unmanned aircraft, a small UAS is currently subject 
to the same airworthiness certification process as a manned aircraft. 
These existing regulations do not contemplate small UAS operations that 
could, as a result of their operational parameters, safely be conducted 
without any airworthiness certification. This framework imposes an 
undue burden on such operations.
    Additionally, under current pilot certification regulations, 
depending on the type of operation, the remote pilot in command of the 
small UAS currently must obtain a sport, recreation, private, 
commercial, or airline transport pilot certificate. While a private 
pilot and commercial pilot may both operate an aircraft for the 
furtherance of a business, a private pilot may only do so if the flight 
is incidental to the pilot's business or employment and not for 
compensation or hire. Only a commercial or airline transport pilot 
certificate may be used to operate an aircraft for compensation or 
hire.\14\
---------------------------------------------------------------------------

    \14\ See 14 CFR 61.113, 61.133 and 61.167(a).
---------------------------------------------------------------------------

    Typically, to obtain a sport, private, recreational, commercial, or 
airline transport pilot certificate, the small UAS pilot currently has 
to: (1) Receive training in specific aeronautical knowledge areas; (2) 
receive training from an authorized instructor on specific areas of 
aircraft operation; and (3) pass an aeronautical knowledge test and a 
practical (skills) test. A certificate applicant also has to obtain 
minimum hours of flight time prior to applying for the certificate: (1) 
20 hours for a sport pilot certificate; (2) 30 hours for a recreational 
pilot certificate; (3) 40 hours for a private pilot certificate; (4) 
250 hours for a commercial pilot certificate; and (5) 1,500 hours for 
an airline transport pilot certificate. Finally, the certificate 
applicant has to establish his or her physical capability by: (1) 
Holding a valid and effective driver's license (for a sport pilot 
certificate); (2) obtaining a third-class airman medical certificate 
(for a recreational or private pilot certificate); (3) obtaining a 
second-class airman medical certificate (for a commercial pilot 
certificate or to exercise second-in-command privileges of an airline 
transport pilot certificate); or (4) obtaining a first-class airman 
medical certificate (to exercise pilot-in-command privileges of an 
airline transport pilot certificate).
    While these airman certification requirements are necessary for 
manned aircraft operations, they impose an unnecessary burden for many 
small UAS pilots because a person obtains a pilot certificate under 
part 61 by learning how to operate a manned aircraft. Much of that 
aeronautical experience/flight training is not applicable to small UAS 
operations because a small UAS is operated differently than a manned 
aircraft. In addition, the aeronautical/flight experience currently 
necessary to obtain a pilot certificate under part 61 does not equip 
the certificate holder with all of the tools necessary to safely pilot 
a small UAS. Specifically, applicants for a pilot certificate under 
part 61 currently are not trained in how to deal with those aspects of 
``see-and-avoid'' and loss-of-positive-control safety issues that are 
unique to small unmanned aircraft. Thus, requiring persons wishing to 
operate a small UAS to obtain a pilot certificate under part 61 imposes 
the cost of airman certification on those persons, but does not result 
in a significant safety benefit because the process of obtaining the 
certificate does not equip those persons with all of the tools 
necessary to mitigate the public risk posed by small UAS operations.

D. Integrating Small UAS Operations into the NAS through Rulemaking

    To address the issues discussed above, the Department has been 
engaged in a rulemaking to integrate small UAS into the NAS.\15\
---------------------------------------------------------------------------

    \15\ The FAA chartered the small UAS Aviation Rulemaking 
Committee (ARC), which provided it with recommendations on how small 
UAS could be safely integrated into the NAS. A copy of the ARC 
Report and Recommendations can be found in the docket for this 
rulemaking.
---------------------------------------------------------------------------

    In 2012, Congress passed the FAA Modernization and Reform Act of 
2012 (Pub. L. 112-95). In section 332(b) of Public Law 112-95, Congress 
directed the Secretary to issue a final rule on small unmanned aircraft 
systems that will allow for civil operations of such systems in the 
NAS.\16\ In section 333 of Public Law 112-95, Congress also directed 
the Secretary to determine whether ``certain unmanned aircraft systems 
may operate safely in the national airspace system.'' To make a 
determination under section 333, the Secretary of Transportation must 
assess ``which types of unmanned aircraft systems, if any, as a result 
of their size, weight, speed, operational capability, proximity to 
airports and populated areas, and operation within visual line of sight 
do not create a hazard to users of the national airspace system or the 
public or pose a threat to national security.'' Public Law 112-95, Sec. 
333(b)(1). The Secretary must also determine whether a certificate of 
waiver or authorization, or airworthiness certification is necessary to 
mitigate the public risk posed by the unmanned aircraft systems that 
are under consideration. Public Law 112-95, Sec. 333(b)(2). If the 
Secretary

[[Page 42070]]

determines that certain unmanned aircraft systems may operate safely in 
the NAS, then the Secretary must ``establish requirements for the safe 
operation of such aircraft systems in the national airspace system.'' 
Public Law 112-95, Sec. 333(c). The flexibility provided for in section 
333 did not extend to airman certification and security vetting, 
aircraft marking, or registration requirements.
---------------------------------------------------------------------------

    \16\ As discussed in more detail further in the preamble, the 
FAA Modernization and Reform Act of 2012 also contained a provision 
prohibiting the FAA from issuing rules and regulations for model 
aircraft meeting certain criteria specified in section 336 of the 
Act.
---------------------------------------------------------------------------

    As discussed previously, the FAA's statute normally requires an 
aircraft being flown outdoors to possess an airworthiness 
certificate.\17\ However, subsection 333(b)(2) allows for the 
determination that airworthiness certification is not necessary for 
certain small UAS. The key determinations that must be made in order 
for UAS to operate under the authority of section 333 are: (1) The 
operation must not create a hazard to users of the national airspace 
system or the public; and (2) the operation must not pose a threat to 
national security.\18\ In making these determinations, the Secretary of 
Transportation must consider the following factors: size, weight, 
speed, operational capability, proximity to airports and populated 
areas, and operation within visual line of sight.
---------------------------------------------------------------------------

    \17\ 49 U.S.C. 44711(a)(1).
    \18\ Public Law 112-95, sec. 333(b)(1).
---------------------------------------------------------------------------

    In 2013, the Department issued a comprehensive plan and 
subsequently the FAA issued a roadmap of its efforts to achieve safe 
integration of UAS operations into the NAS.\19\ As a result of its 
ongoing integration efforts, the FAA seeks to change its regulations to 
take the first step in the process of integrating small UAS operations 
into the NAS. The NPRM proposed to utilize the airworthiness-
certification flexibility provided by Congress in section 333 of Public 
Law 112-95, and allow some small UAS operations to commence in the 
NAS.\20\ As noted earlier in this executive summary, the FAA published 
the NPRM on February 23, 2015, and received over 4,600 comments. The 
NPRM proposed to issue small UAS airman certificates to applicants who 
passed a knowledge test, and proposed to allow line-of-sight operations 
of small unmanned aircraft below 500 feet AGL at speeds of less than 
100 miles per hour. Airworthiness certification would not be required 
under the proposed rule. The FAA has considered the public comments 
filed in response to the NPRM, and now issues this final rule.
---------------------------------------------------------------------------

    \19\ http://www.faa.gov/uas/media/uas_roadmap_2013.pdf.
    \20\ As discussed in section III.C.4 below, 14 CFR part 107 will 
not apply to model aircraft that satisfy all of the statutory 
criteria specified in section 336 of Public Law 112-95. The FAA has 
recently published an interpretive rule for public comment 
explaining the statutory criteria of Sec.  336. See Interpretation 
of the Special Rule for Model Aircraft, 79 FR 36172, 36175 (June 25, 
2014).
---------------------------------------------------------------------------

E. Related UAS Integration Initiatives

    While this rulemaking was pending, the FAA recognized that there 
already exists a population of small UAS operators and remote pilots 
who are ready and able to operate safely. To address the needs of these 
operators and remote pilots while these regulations were being 
finalized, the Department issued thousands of exemptions under its 
section 333 authority to permit civil visual-line-of-sight small UAS 
operations in the NAS.\21\ The operations permitted under those 
exemptions are similar to those that will be enabled by part 107.
---------------------------------------------------------------------------

    \21\ http://www.faa.gov/uas/legislative_programs/section_333/.
---------------------------------------------------------------------------

    In addition, to further facilitate the integration of UAS into the 
NAS, the FAA has chosen six UAS research and test site operators across 
the country. In selecting the six test site operators, the FAA 
considered geography, climate, location of ground infrastructure, 
research needs, airspace use, safety, aviation experience, and risk. In 
totality, these six test site applications achieve cross-country 
geographic and climatic diversity and help the FAA meet its UAS 
research needs. As of December 2015, all of the UAS test sites are 
operational and are gathering operational data to foster further 
integration, as well as evaluating new technologies. The FAA has also 
selected, after a rigorous competition, a Mississippi State University 
team as the FAA's Center of Excellence for Unmanned Aircraft Systems. 
The Center of Excellence will focus on research, education, and 
training in areas critical to safe and successful integration of UAS 
into the NAS.\22\
---------------------------------------------------------------------------

    \22\ http://www.faa.gov/uas/legislative_programs/coe/.
---------------------------------------------------------------------------

    In May 2015, the FAA announced the UAS Focus Area Pathfinders 
initiative,\23\ a partnership with industry to explore the next steps 
in unmanned aircraft operations beyond the type of operations the 
agency proposed in the small UAS NPRM. Three companies reached out to 
the FAA to work on research to continue expanding use of UAS in the 
nation's airspace in three focus areas: Visual line-of-sight operations 
in urban areas; extended visual-line-of-sight operations in rural 
areas; and beyond visual line-of-sight in rural/isolated areas. In 
October 2015 a fourth Pathfinder initiative was added, testing 
technology to identify small UAS operating around airports.
---------------------------------------------------------------------------

    \23\ http://www.faa.gov/uas/legislative_programs/pathfinders/.
---------------------------------------------------------------------------

    In September 2015, the FAA issued Advisory Circular 91-57A,\24\ 
Model Aircraft Operating Standards, replacing and superseding the 
guidance provided in the now-cancelled Advisory Circular 91-57, issued 
in 1981. The updated document provides guidance to persons operating 
unmanned aircraft for hobby or recreation purposes meeting the 
statutory definition of ``model aircraft'' contained in Section 336 of 
the FAA Modernization and Reform Act (Public Law 112-95), and describes 
means by which model aircraft may be operated safely in the NAS.
---------------------------------------------------------------------------

    \24\ https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A.pdf.
---------------------------------------------------------------------------

    In February 2016, the FAA convened an aviation rulemaking committee 
(ARC) to provide recommendations for a performance-based standard that 
would allow certain UAS to be operated over people. Previously 
characterized as micro UAS in the NPRM for this final rule, this 
category of operations will now be considered in a separate rulemaking. 
The ARC submitted its recommendations to the FAA on April 2, 2016, and 
the FAA is currently evaluating the recommendations. A copy of the 
ARC's report is available in docket for this rulemaking, and more 
information regarding the status of this new rulemaking may be found in 
the Department's significant rulemakings report, available at 
www.transportation.gov/regulations.

III. Discussion of the Final Rule

    As discussed in the previous section, in order to determine whether 
certain UAS may operate safely in the NAS pursuant to section 333, the 
Secretary must find that the operation of the UAS will not: (1) Create 
a hazard to users of the NAS or the public; or (2) pose a threat to 
national security. The Secretary must also determine whether small UAS 
operations subject to this rule pose a safety risk sufficient to 
require airworthiness certification. The following preamble sections 
discuss the specific components of this rule, and section III.J 
explains how these components work together and allow the Secretary to 
make the statutory findings required by section 333.

A. Incremental Approach and Waiver

    In the NPRM, the FAA noted that this rulemaking is one step of a 
broader process to fully integrate UAS into the NAS. ``Once the entire 
integration process is complete, the FAA envisions the NAS populated 
with UAS that operate well beyond the operational

[[Page 42071]]

limits proposed in [the NPRM].'' \25\ However, because higher-risk UAS 
operations pose additional safety issues that require more time to 
resolve, the FAA proposed to limit this rulemaking to small UAS 
operations posing the least amount of risk so that the agency could 
move to quickly issue a final rule integrating those operations into 
the NAS. ``In the meantime, the FAA will continue working on 
integrating UAS operations that pose greater amounts of risk, and will 
issue notices of proposed rulemaking for those operations once the 
pertinent issues have been addressed, consistent with the approach set 
forth in the UAS Comprehensive Plan for Integration and FAA roadmap for 
integration.\26\
---------------------------------------------------------------------------

    \25\ 80 FR at 9552.
    \26\ 80 FR at 9552. Section 332(a) of Public Law 112-95 requires 
the Secretary of Transportation to develop a comprehensive plan to 
safely accelerate the integration of civil UAS into the NAS. This 
plan must be developed in consultation with representatives of the 
aviation industry, Federal agencies that employ UAS technology in 
the NAS, and the UAS industry. Section 332(a) also requires the 
Secretary of Transportation to develop a 5-year roadmap for the 
introduction of civil UAS into the NAS. Both the comprehensive plan 
and the roadmap were published in November 2013.
---------------------------------------------------------------------------

    The FAA also acknowledged that new technologies could come into 
existence after this rule is issued that could alleviate some of the 
risk concerns underlying the provisions of this rulemaking. As such, 
the FAA invited comment as to whether the final rule should include 
some type of waiver authority (such as a letter of deviation or a 
waiver) to better accommodate these new technologies. For the reasons 
discussed below, the FAA has decided to proceed with an incremental 
approach in this final rule but has added waiver authority to the 
regulatory text in order to accommodate new technologies and unique 
operational circumstances.
    A number of commenters, including NTSB, Airlines for America (A4A), 
and the Small UAV Coalition, supported the FAA's proposed incremental 
approach to issue a final rule immediately integrating low-risk UAS 
operations into the NAS while continuing to work on integrating UAS 
posing a higher risk in separate regulatory actions. Qualcomm 
Incorporated, Google, Inc., the Oregon Department of Aviation, and the 
North Dakota Department of Agriculture urged the FAA to move quickly to 
issue a final rule integrating small UAS operations into the NAS. 
Google emphasized that ``[a]s the [small UAS] industry evolves, any 
lengthy delay in the issuance of a final [small UAS] rule would 
substantially reduce the benefits of the final rule. It will be 
difficult, if not impossible, for the FAA to adequately consider the 
many likely technological developments during a protracted 
rulemaking.'' The National Association of Flight Instructors added that 
because UAS are a relatively new technology whose risks are still being 
studied, the FAA should use ``a phased in set of regulations that ease 
into basic use of [small UAS] in the NAS with close attention to the 
degree of responsible use and compliance with regulations before 
considering relaxation of rules to allow increasing capability of the 
aircraft.''
    The Coalition of Airline Pilots Associations (CAPA) commented that 
``creating a set of regulations and standards that have a lower level 
of safety in the name of expedience is problematic.'' CAPA asserted 
that this rulemaking ``is an opportunity to develop a regulatory 
schema, using the hard lessons learned over the past one hundred years 
that has the long-range vision to be capable and integrated to handle 
the full spectrum of anticipated operations.'' CAPA also claimed that 
there may ultimately be remotely piloted vehicles that are the size of 
commercial transport category aircraft, and that any system put in 
place to govern UAS must account for this eventuality and provide the 
appropriate level of regulation. The Flight School Association of North 
America recommended a 12 to 18-month extension to the rulemaking 
timeline, ``so that more review can be accomplished.''
    Other commenters, including Amazon.com, Inc. (Amazon), the American 
Farm Bureau Federation, and several state farm bureaus,\27\ raised 
concerns about the proposed incremental approach. These and other 
commenters, such as the U.S. Small Business Administration (SBA) Office 
of Advocacy and the George Washington University Regulatory Studies 
Center, argued that more flexibility is necessary in the final rule to 
keep pace with new and emerging technologies. In addition, the 
commenters asserted that by delaying the integration of certain 
operations, such as beyond-visual-line-of-sight operations, until a 
future rulemaking, the FAA would also delay the benefits associated 
with those operations until the pertinent future rulemaking is 
complete. The George Washington University Regulatory Studies Center 
suggested that the FAA set regular deadlines for issuing future final 
rules to further integrate UAS into the NAS.
---------------------------------------------------------------------------

    \27\ Some of these commenters include the Michigan Farm Bureau, 
the Indiana Farm Bureau, the Louisiana Farm Bureau Federation, and 
the South Dakota Farm Bureau Federation.
---------------------------------------------------------------------------

    To address these concerns, a number of commenters including the SBA 
Office of Advocacy, the National Business Aviation Association (NBAA), 
and Google, urged the FAA to include deviation authority in the final 
rule. Google suggested that the FAA should grant a deviation from the 
provisions of part 107 if an applicant can establish that his or her 
small UAS operation would provide a level of safety equivalent to the 
one provided by the operating parameters of part 107. Several 
commenters including the National Ski Areas Association, EEI,\28\ and 
the American Farm Bureau Federation (AFBF) asserted that there exist 
industries (such as agriculture, electrical utilities, and ski resorts) 
whose unique operating environments may allow them to mitigate some of 
the safety concerns underlying the operational parameters of the NPRM 
proposal. The Small UAV Coalition emphasized that the key to including 
deviation authority in the final rule would be for the FAA to establish 
a process by which it may authorize certain operations to exceed the 
other provisions of part 107 based on case-specific characteristics 
such as the operational circumstances of the mission, technological 
capabilities of the small UAS, and the training and experience of the 
operator.
---------------------------------------------------------------------------

    \28\ EEI, NRECA, and APPA submitted a joint comment to the 
docket. For ease of reference, this preamble will refer to the joint 
submission simply by the name of the first organization on the 
letterhead, which is EEI.
---------------------------------------------------------------------------

    After considering the comments, the FAA has decided to proceed 
incrementally and issue a final rule that immediately integrates the 
lowest-risk small UAS operations into the NAS. As Qualcomm, Google, the 
Oregon Department of Aviation, and other commenters pointed out, 
delaying the integration of the lowest-risk small UAS operations until 
issues associated with higher-risk operations have been addressed would 
needlessly delay the realization of societal benefits associated with 
integrating UAS operations for which the pertinent safety issues have 
been addressed. In addition, the immediate integration of the lowest-
risk small UAS operations into the NAS would provide the FAA with 
additional operational experience and data that could be used to assist 
with the integration of higher-risk operations.
    However, the FAA also agrees with the SBA Office of Advocacy and 
other commenters who pointed out that: (1) The rulemaking process for 
higher-risk

[[Page 42072]]

UAS operations may lag behind new and emerging technologies; and (2) 
certain individual operating environments may provide unique 
mitigations for some of the safety concerns underlying this rule. To 
resolve these issues, this rule will, in Sec.  107.200, include the 
option to apply for a certificate of waiver. This certificate of waiver 
will allow a small UAS operation to deviate from certain provisions of 
part 107 if the Administrator finds that the proposed operation can 
safely be conducted under the terms of that certificate of waiver. This 
is similar to the standard that the FAA utilizes to consider waivers to 
the requirements of 14 CFR part 91.\29\ A discussion as to whether a 
provision of part 107 is waivable can be found in the preamble section 
discussing that provision.
---------------------------------------------------------------------------

    \29\ See 14 CFR 91.903(a) (allowing a certificate of waiver from 
part 91 requirements ``if the Administrator finds that the proposed 
operation can be safely conducted under the terms of that 
certificate of waiver'').
---------------------------------------------------------------------------

    To obtain a certificate of waiver, an applicant will have to submit 
a request containing a complete description of the proposed operation 
and a justification, including supporting data and documentation as 
necessary, that establishes that the proposed operation can safely be 
conducted under the terms of the requested certificate of waiver. The 
FAA expects that the amount of data and analysis required as part of 
the application will be proportional to the specific relief that is 
requested. Similarly, the FAA anticipates that the time required for it 
to make a determination regarding waiver requests will vary based on 
the complexity of the request. For example, a request for a major 
deviation from part 107 for an operation that takes place in a 
congested metropolitan area with heavy air traffic will likely require 
significantly more data and analysis than a request for a minor 
deviation for an operation that takes place in a sparsely populated 
area with minimal air traffic. If a certificate of waiver is granted, 
that certificate may include additional conditions and limitations 
designed to ensure that the small UAS operation can be conducted 
safely.
    The certificate-of-waiver process will allow the FAA to assess 
case-specific information concerning a small UAS operation that takes 
place in a unique operating environment and consider allowing 
additional operating flexibility that recognizes safety mitigations 
provided by the specific operating environment. The FAA anticipates 
that this process will also serve as a bridging mechanism for new and 
emerging technologies; allowing the FAA to permit testing and use of 
those technologies, as appropriate, before the pertinent future 
rulemaking is complete.
    Like information collected from Sec.  333 exemptions, the FAA plans 
to collect useful data derived from waiver application and issuance 
such as what part 107 provisions have the greatest number of waiver 
requests, what technology is being utilized to enhance safety, and what 
safe operating practices are most effective. To evaluate the 
effectiveness of operating practices, the FAA plans to compare the 
mitigations imposed by waiver grants against accident and incident 
reports and observations made as part of the FAA's oversight. For 
example, an FAA inspector conducting an inspection of a small UAS that 
is operating under a waiver will be able to observe potential safety 
issues that may arise during the operation. This information will used 
to assess risk and be shared with various organizations in the FAA to 
inform policy decisions and rulemaking efforts.
    Some commenters requested authorization to deviate for specific 
activities. For example, the National Rural Electric Cooperative 
Association (NRECA) requested deviation authority for utility 
maintenance and operations of UAS in electric cooperative power line 
right-of-way corridors. The American Petroleum Institute (API) 
requested deviation authority in circumstances in which environmental 
protection and health and human safety issues are implicated. Princeton 
University recommended that the rule include an option for universities 
to certify that the aircraft is to be used for educational purposes and 
poses no unreasonable danger to the public. Vail Resorts requested that 
the FAA provide a vehicle for deviation authority through agency 
practices that will enable ski areas to obtain authorization or 
exemption from certain final rules.
    The FAA notes that the safety of a small UAS operation is a result 
of that operation's operating parameters and not the purpose for which 
the operation is conducted. For example, if a small UAS operation is 
conducted at a remote ski resort, the safety-pertinent factor is not 
that the operation is conducted for ski-area purposes, but that the 
operation is conducted in a remote area. However, at this time, the FAA 
does not have sufficient data to determine what (if any) operational 
mitigations are included when a small UAS operation is conducted in a 
given industry and how widespread those mitigations are within the 
industry. To take the earlier example of ski areas, the FAA does not 
have sufficient data to determine whether all ski areas are remotely 
located and the density of manned-aircraft traffic near each ski area. 
Accordingly, the FAA will evaluate operations seeking to go beyond the 
baseline part 107 requirements on a case-by-case basis as part of its 
evaluation of the waiver applications.
    Modovolate Aviation and Colorado Ski Country USA encouraged the FAA 
to make available class exemptions under section 333 of Public Law 112-
95 if specific classes of small UAS cannot reasonably be accommodated 
within the final rule. Similarly, DJI recommended that, where 
technology or operating practice is widely available or known, the FAA 
could issue guidance allowing its inspectors to routinely grant 
deviation authority to all operators meeting certain standards rather 
than evaluating individual requests for deviation. Another commenter 
encouraged the FAA to consider issuing equipment-specific 
authorizations or waivers based on specific technologies rather than 
granting authorizations or waivers to specific operators flying 
specific aircraft. An individual urged the FAA to set up a program to 
let manufacturers self-certify that their aircraft models qualify for 
exemption from applicable rules.
    The FAA notes that the Administrative Procedure Act imposes certain 
requirements on agency rulemaking. When conducting a rulemaking, an 
agency must, among other things, issue a notice of proposed rulemaking, 
allow time for public comment, consider public comments, and issue a 
final rule after consideration of public comments.\30\ As part of its 
process to integrate UAS into the NAS, the FAA may, in the future, 
consider categories of UAS and UAS operations, but absent changes to 
the statute, the method by which the agency will integrate those 
categories into the NAS will have to comply with the Administrative 
Procedure Act. With regard to manufacturer self-certification, the FAA 
notes that part 107 will not contain airworthiness certification 
requirements and thus, there will be no part 107 requirement to which a 
manufacturer could self-certify.\31\
---------------------------------------------------------------------------

    \30\ See 5 U.S.C. 553(b) and (c).
    \31\ Part 107 does require the remote pilot to conduct a 
preflight check to ensure that the small UAS is in a condition for 
safe operation, but the manufacturer would be unable to self-certify 
for that requirement because a small UAS may become damaged after it 
leaves the manufacturer's possession.
---------------------------------------------------------------------------

    NetMoby encouraged the FAA to circumscribe very specific rules 
establishing standards for UAS deviation authority at the outset of the

[[Page 42073]]

UAS regulatory environment to avoid being immediately overwhelmed with 
waiver requests and other requests for deviation authority. Google 
proposed a specific process for the deviation authority. Google 
explained that the FAA would be able to tailor different operational 
restrictions, as appropriate, if a petitioner can demonstrate that: (i) 
The small UAS has enhanced safety technology; (ii) the small UAS meets 
a higher level of airworthiness or complies with a more detailed 
maintenance and inspection protocol; or (iii) the small UAS operator 
(pilot) has a higher level of pilot and small UAS operator 
qualification, training, and/or certification than the proposed part 
107 would require.
    As discussed earlier, the standard that an applicant seeking a 
waiver will be required to meet is to demonstrate that his or her 
proposed small UAS operation can safely be conducted under the terms of 
a certificate of waiver. This waiver process is intended to allow for 
case-specific mitigations that could take many different forms or 
combinations. These mitigations could even be based on technology that 
does not exist at this time. Because prescriptive requirements imposed 
on the waiver process as part of this rulemaking may limit the FAA's 
flexibility to consider new or unique operational circumstances and 
safety mitigations, the FAA declines to add more prescriptive 
requirements to this process.
    The International Air Transport Association urged the FAA to adopt 
a final rule that allows for regular and systemic review to ensure the 
appropriate level of regulation or oversight. The Agricultural 
Retailers Association similarly recommended timely reauthorization of 
the rules ``to mirror technological advances and risk mitigation.'' The 
Virginia Department of Aviation asserted that the rules ``should be 
reviewed as quickly as the safety data permits,'' which the commenter 
estimated to be every 24 months ``until we achieve full integration of 
the technology into the NAS.''
    Several commenters urged the FAA to specifically address the 
timeline for implementation, so that the industry can prepare 
appropriately. One individual questioned whether the FAA intends to 
create a forecast for UAS ``rule evolution.'' Specifically, the 
commenter questioned when the FAA expects to develop rules for UAS 
greater than 55 pounds and what constraints the agency expects to put 
on operations for these larger vehicles. Another individual recommended 
the FAA set regular deadlines for issuing final rules to update UAS 
integration standards, and commit to removing some of the requirements 
(e.g., size, visual line of sight) by a date certain, unless experience 
justified maintaining them.
    The FAA notes that it has issued a comprehensive plan and roadmap 
laying out its long-term vision for UAS integration into the NAS. The 
FAA is currently updating these documents with an FAA strategic plan 
for UAS integration into the NAS.\32\
---------------------------------------------------------------------------

    \32\ http://www.faa.gov/uas/publications/.
---------------------------------------------------------------------------

    With regard to review of the rules once they are in place, the FAA 
notes that Executive Order 13610 requires the FAA to review its 
regulations to examine whether they remain justified and whether they 
should be modified or streamlined in light of changed circumstances, 
including the advent of new technologies. The FAA regularly conducts a 
retrospective review of its regulations, and the regulations of this 
rule will be no exception.

B. Discussion of the Applicable Statutory Framework

    The Mercatus Center at George Mason University and the Competitive 
Enterprise Institute questioned the Department's reliance on Public Law 
112-95, section 333 as the authority for the proposed rule. Both 
commenters stated that Public Law 112-95, Sec.  332 includes Congress' 
mandate to the FAA to promulgate rules for small UAS integration into 
the NAS. The Competitive Enterprise Institute urged the Department to 
clearly articulate why it is invoking section 333 authority, as opposed 
to Sec.  332(b) authority, as the basis for this rulemaking.
    Section 332(b)(1) requires the Secretary to publish a final rule 
allowing for the civil operation of small UAS in the NAS ``to the 
extent the systems do not meet the requirements for expedited 
authorization under section 333.'' Conversely, section 333(a) requires 
the Secretary to determine whether certain UAS may operate safely in 
the NAS ``before completion of the plan and rulemaking required by 
section 332. . . .'' As part of the consideration under section 333, 
section 333(b)(2) directs the Secretary to determine whether ``. . . 
airworthiness certification under section 44704 of title 49, United 
States Code is required for the operation of unmanned aircraft 
systems.'' If the Secretary determines that certain UAS may operate 
safely in the NAS, then section 333(c) requires the Secretary to 
``establish requirements for the safe operation'' of those UAS in the 
NAS.
    Because the statutory text of section 332(b)(1) applies only to 
those UAS that do not meet the requirements of section 333, sections 
332 and 333 cannot both apply to the same UAS. The Department is 
pursuing this rulemaking under section 333 because section 333(b)(2) 
allows it to find that airworthiness certification is not necessary for 
small UAS that will be subject to this rule. As discussed in section 
III.J.3 of this preamble, the Department has indeed found that 
mandatory airworthiness certification is unnecessary to ensure the 
safety or security of these types of small UAS operations. However, 
unlike section 333(b)(2), section 332 does not contain a provision that 
would allow the Department to find that airworthiness certification 
should not be required for a small UAS. Because airworthiness 
certification is normally a statutory requirement imposed by 49 U.S.C. 
44704 and 44711(a)(1), the FAA would have to include an airworthiness 
certification requirement in this rule if it were to conduct this 
rulemaking under section 332 rather than section 333. This would impose 
an additional requirement on small UAS whose operational parameters do 
not pose a hazard to users of the NAS or a threat to national security.
    Matternet, Inc. argued that Public Law 112-95 compels the FAA to 
develop a regulatory framework for unmanned aircraft systems, but does 
not bind or limit the Agency to existing statutes concerning aviation, 
or to decades-long aviation regulatory doctrines that, Matternet 
asserted, do not apply to these new technologies. Furthermore, 
Matternet argued that because Public Law 112-95, section 333 expressly 
contemplates that ``certain unmanned aircraft systems [would] operate 
safely in the NAS before completion of the plan and rulemaking required 
by section 332,'' Congress gave the FAA a ``blank slate'' to create 
small UAS regulations ``without any suggestion that existing statutes 
or regulations would act as impediments to the rulemaking process.'' 
Matternet also stated that it ``is concerned that the FAA's proposal is 
impeded by an apparent notion that statutes, regulations or doctrines 
that were created decades ago to address manned aircraft operations are 
mandated to apply to unmanned aircraft, without any safety or economic 
rationale.''
    Matternet's argument that existing statutes and regulatory 
doctrines are limited to manned aircraft operations is foreclosed by 
precedent. In

[[Page 42074]]

Administrator v. Pirker,\33\ the NTSB considered the issue of whether 
an unmanned aircraft is an ``aircraft'' within the meaning of FAA 
statutes and regulations and whether it is subject to the existing FAA 
regulations of part 91, which ``prescribes rules governing the 
operation of aircraft.'' \34\ The NTSB found that the statutory and 
regulatory definitions of aircraft are ``clear on their face'' and 
``draw no distinction between whether a device is manned or unmanned.'' 
\35\ Thus, the NTSB concluded that the existing regulatory provision of 
Sec.  91.13 (which prohibits careless or reckless operation of an 
aircraft) apply to the unmanned aircraft operation that was at issue in 
Pirker.\36\
---------------------------------------------------------------------------

    \33\ A copy of the Pirker decision can be found at: http://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5730.pdf.
    \34\ 14 CFR 91.1(a).
    \35\ Pirker at 4-5.
    \36\ Pirker at 8-12.
---------------------------------------------------------------------------

    The FAA is also unpersuaded by Matternet's other argument that 
Public Law 112-95 overturned all existing aviation statutes and 
regulations, leaving the FAA with a ``blank slate'' for this 
rulemaking. The Supreme Court has held that ``[w]hile a later enacted 
statute . . . can sometimes operate to amend or even repeal an earlier 
statutory provision . . . repeals by implication are not favored and 
will not be presumed unless the intention of the legislature to repeal 
[is] clear and manifest.'' \37\ The Court added that ``[w]e will not 
infer a statutory repeal ``unless the later statute expressly 
contradict[s] the original act or unless such a construction is 
absolutely necessary in order that the words of the later statute shall 
have any meaning at all.'' \38\ Implied repeals of a longstanding 
statutory provision are particularly disfavored.\39\
---------------------------------------------------------------------------

    \37\ Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 
U.S. 644, 662 (2007) (internal citations and punctuation marks 
omitted).
    \38\ Id.
    \39\ Andrus v. Glover Constr. Co., 446 U.S. 608, 618 (1980) 
(noting ``the axiom that repeals by implication of longstanding 
statutory provisions are not favored'').
---------------------------------------------------------------------------

    The aviation statutes at issue here were enacted in 1958 as part of 
the Federal Aviation Act of 1958 (which created the Federal Aviation 
Agency).\40\ Because these statutory provisions have been in place for 
58 years, they are longstanding statutory provisions whose implied 
repeal would be particularly disfavored. Many of the pertinent 
regulatory provisions at issue in this rulemaking are similarly 
longstanding. For example, the ``see and avoid'' requirement of Sec.  
91.113(b) was created in 1968.\41\ Thus, for the reasons discussed 
below, the FAA finds that, with the exception of 49 U.S.C. 44704 and 
44711(a)(1), Public Law 112-95 did not repeal these existing statutes 
and regulations.
---------------------------------------------------------------------------

    \40\ Federal Aviation Act of 1958, Public Law 85-726, 72 Stat. 
731 (1958).
    \41\ Pilot Vigilance, 33 FR 10505, July 24, 1968.
---------------------------------------------------------------------------

    Section 333 of Public Law 112-95 directs the Secretary of 
Transportation to determine whether certain UAS may operate safely in 
the NAS and if so, to establish requirements for the safe operation of 
such UAS in the NAS.\42\ With the exception of section 333(b)(2), which 
allows the Secretary to determine whether the airworthiness-
certification requirements of 49 U.S.C. 44704 and 44711(a)(1) should be 
imposed on certain UAS, section 333 does not expressly contradict any 
existing statute or regulation. Furthermore, interpreting section 333 
as repealing all prior aviation statutes and regulations is unnecessary 
in order to give meaning to section 333, which simply directs the 
Secretary to determine whether existing aircraft regulations prohibit 
or otherwise burden certain UAS operations that could operate safely in 
the NAS. If the Secretary determines that this is the case, then 
section 333(c) directs the Secretary to make the appropriate changes to 
the pertinent regulations. Because, with the exception of section 
333(b)(2), section 333 can be given meaning without repealing other 
existing aviation statutes or regulations, we decline Matternet's 
suggestion that section 333 impliedly repeals those statutes or 
regulations.
---------------------------------------------------------------------------

    \42\ Public Law 112-95, sec. 333(a) and (c).
---------------------------------------------------------------------------

    We also note that section 333(b)(2) provides further evidence that 
Congress intended section 333 to work in conjunction with the existing 
aviation statutes. This subsection provides the Secretary with 
discretion to determine whether airworthiness certification is 
necessary for UAS subject to this rule. The FAA normally does not 
possess this discretion because 49 U.S.C. 44711(a)(1) requires 
airworthiness certification for any civil aircraft that is operated in 
air commerce. Subsection 333(b)(2) also expressly cross-references 49 
U.S.C. 44704, which specifies the process by which the FAA may issue an 
airworthiness certificate. If Congress had intended section 333 to 
repeal all other aviation statutes and regulations, there would be no 
need to cross-reference Sec.  44704 or explicitly give the Secretary 
the power to determine whether airworthiness certification should be 
required because a repeal of Sec.  44711(a)(1) and Sec.  44704 would 
automatically remove the statutory constraints on FAA's airworthiness 
certification discretion. Thus, interpreting section 333 as repealing 
all other aviation statutes would also render meaningless the 
Congressional directive in section 333(b)(2) for the Secretary to 
determine whether the airworthiness certification requirements of 
Sec. Sec.  44711(a)(1) and 44704 should be applied to UAS subject to 
this rule.
    The North Dakota Department of Agriculture noted that the FAA has 
authority over the NAS and requested clarification on how UAS 
operations will operate in an interstate manner. In response, the FAA 
notes that, as the North Dakota Department of Agriculture pointed out, 
the FAA's authority extends over the entire national airspace 
system.\43\ Thus, with the exception of operations discussed in section 
III.C of this preamble, the provisions of part 107 will apply to small 
UAS operations operating in any State or manner in the United States.
---------------------------------------------------------------------------

    \43\ See, e.g., Public Law 112-95, section 333(a) (directing the 
Secretary of Transportation to determine whether certain UAS may 
operate safely in the ``national airspace system'') (emphasis 
added).
---------------------------------------------------------------------------

C. Applicability

    To integrate small UAS operations into the NAS, this rule will 
create a new part in title 14 of the CFR: Part 107. The regulations of 
part 107, which are tailored to address the risks associated with small 
UAS operations, will apply to small UAS operations in place of certain 
existing FAA regulations that impede civil small UAS operations. 
Specifically, for small UAS operations, the requirements of part 107 
will generally replace the airworthiness provisions of part 21, the 
airman certification provisions of part 61, the operating limitations 
of part 91, and the external load provisions of part 133.
    However, part 107 will not apply to all small UAS operations. For 
the reasons discussed below, part 107 will not apply to: (1) Air 
carrier operations; (2) international operations; (3) public aircraft 
operations; (4) certain model aircraft; and (5) moored balloons, kites, 
amateur rockets, and unmanned free balloons. Additionally, part 107 
will allow current holders of an exemption issued under section 333 of 
Public Law 112-95 to continue operating under the terms of their 
exemption rather than under part 107.
1. Transporting Property for Compensation (Air Carrier Operations)
    The NPRM proposed to allow transportation of property provided it 
is not done for compensation. The reasoning for the limitation on 
accepting payment or compensation for such

[[Page 42075]]

transport is that, in general, when someone is transporting persons or 
property by air for compensation, that person may be considered an 
``air carrier'' by statute and would then be required to obtain OST 
economic authority and additional FAA safety authority.\44\ Because the 
traveling and shipping public have certain expectations of safety and 
consumer protection when payment is exchanged for carriage, air 
carriers are subject to both economic and safety regulations to 
mitigate the risks to persons or non-operator-owned property on the 
aircraft, including statutory requirements for liability insurance 
coverage.
---------------------------------------------------------------------------

    \44\ See 49 U.S.C. 41101 (noting that an air carrier may provide 
air transportation only if the air carrier holds a certificate 
issued under this chapter [chapter 411--Economic Regulation of Air 
Carrier Certificates] authorizing the air transportation), 49 U.S.C. 
44705 (requiring the FAA Administrator to ``issue an air carrier 
operating certificate to a person desiring to operate as an air 
carrier when the Administrator finds, after investigation, that the 
person properly and adequately is equipped and able to operate 
safely under this part and the regulations and standards prescribed 
under this part''), and 49 U.S.C. 44711(a)(4) (prohibiting a person 
from operating as an air carrier without an air carrier operating 
certificate). Air transportation is defined in 49 U.S.C. 40102(a)(5) 
as ``foreign air transportation, interstate air transportation, or 
the transportation of mail by aircraft.''
---------------------------------------------------------------------------

    The Department sought comment on whether the rule should go 
further--that is, whether UAS should be permitted to transport property 
for payment within the other proposed constraints of the rule, e.g., 
the ban on flights over uninvolved persons, the requirements for line 
of sight, and the intent to limit operations to a confined area. The 
Department also sought comment on whether a special class or classes of 
air carrier certification should be developed for UAS operations.
    Commenters including NAAA, International Brotherhood of Teamsters, 
and ALPA supported the proposed prohibition on carrying property for 
compensation. These commenters generally asserted that allowing air 
carrier operations at this time would be premature. NAAA stated that a 
more stringent regulatory regime, including certification of the safety 
of a small UAS for air carrier operations, should be developed before 
air carrier operations are permitted. The International Brotherhood of 
Teamsters stated that weakening the regulations before ``package 
delivery technologies'' are proven safe and reliable could endanger not 
only the public but also the warehouse and operational staff involved 
in the loading and maintenance of small UAS. ALPA stated that until 
there is a demonstrated safety record for UAS air carrier operations, 
the Department should not authorize such operations.
    Other commenters, including FAST Robotics, NBAA, and Small UAV 
Coalition argued that the FAA should permit such operations. Life Drone 
argued that the final rule should allow small UAS to deliver ``medical 
AED units'' to emergency and remote locations where there is little or 
no risk of interference with the NAS. MAPPS requested a ``geospatial 
exemption'' to allow companies to obtain air carrier services for 
various geospatial sensors owned by those other than the small UAS 
operator.
    The Small UAV Coalition, Matternet, and the Information Technology 
and Innovation Foundation opposed the prohibition on the basis that 
allowing a company to use a small UAS to transport property in 
furtherance of the company's own business, but not for compensation, is 
an arbitrary distinction. Matternet and the Small UAV Coalition argued 
that there is no safety or economic rationale to justify allowing 
property transport for business purposes but not for compensation. The 
Information Technology and Innovation Foundation asserted that the 
safety of goods transported by UAS does not depend on whether the UAS 
operator receives payment. This commenter further stated that ``[the] 
goal should be to optimize both safety and commercial value when it 
comes to the integration of UAS into the NAS,'' but the prohibition on 
air carrier operations places ``unnecessary restrictions on commercial 
activity.''
    Matternet noted that UAS analysis shows that over 80% of goods 
intended for delivery by UAS will be in the range of two kilograms or 
less, and that the total weight of the small UAS, including payload, 
will therefore be 6 kilograms or less. Thus, Matternet argued, the 
safety risks associated with manned air carrier operations--where the 
aircraft weighs considerably more and has significant fuel capacity, 
and where the operation could impact people both on the aircraft and on 
the ground--do not exist for unmanned air carrier operations. Google 
and the Consumer Electronics Association also pointed out that most UAS 
cargo delivery will consist of relatively low-weight items that create 
minimal safety concerns.
    Google argued that UAS cargo operations are very similar to 
operations that require external payloads, such as sensors or cameras, 
and then noted that FAA has already authorized several small UAS 
operators to carry such external payloads. Amazon and American Farm 
Bureau Federation similarly noted that there are circumstances in which 
FAA already permits certain commercial operations (e.g., aerial work 
operations, crop dusting, banner towing, ferry or training flights, and 
some transport of persons or property for compensation) without 
requiring an air carrier certificate, and a similar carve-out should be 
established for low-risk transport using small UAS.
    Pointing to the low risks associated with the transport of property 
by small UAS under the operating limitations of the proposed rule, 
Amazon, Matternet, American Farm Bureau Federation, and Michigan Farm 
Bureau stated that an air carrier certification is not necessary for 
small UAS air carrier operations. If, however, the Department 
determines that some type of air carrier certification is required by 
statute, those four commenters, the Small UAV Coalition, and 
Continental Mapping suggested that the Department develop an 
alternative certification process that is tailored to small UAS 
operations.
    NBAA and UPS stated that FAA can ensure safe operations by defining 
performance-based standards to enable transport of property for 
compensation. For example, UPS suggested weight limitations for small 
UAS involved in transporting property. AUVSI said risks could be 
mitigated by compliance with industry standards for design and build 
that would normally occur through the aircraft certification process. 
Aviation Management noted that small UAS should be permitted to 
transport property if they have received approval to do so--i.e., 
through compliance with an advisory circular or with an industry 
standard for design and build, such as one developed by ASTM. The 
Consumer Electronics Association and Small UAV Coalition pointed out 
that companies that want to transport property by UAS for compensation 
have powerful business incentives to ensure safe, efficient, and 
complete operations.
    Other commenters, including NetMoby, FAST Robotics, and Planehook 
Aviation Services, LLC (Planehook Aviation), said that a special class 
of air carrier certification should be required for UAS to transport 
property for payment. Planehook Aviation stated that, at a minimum, FAA 
should create a ``common carriage certification'' that mirrors the care 
and safety requirements for manned aviation under 14 CFR part 119.
    The Department has reviewed the comments and legal authorities that 
govern the transport of property for compensation and has determined 
that it is appropriate to allow some limited operations involving the 
transport of property for compensation to be done

[[Page 42076]]

under the other provisions of part 107, as analyzed below.
    As noted earlier, in general when someone is transporting persons 
or property by air for compensation, that person may be considered an 
``air carrier'' by statute and would then be required to obtain 
economic authority from the Office of the Secretary and additional FAA 
safety authority. Historically, the FAA has also required, through 
regulation, that certain commercial operators who may be transporting 
people or property for compensation wholly within a State, and thus not 
triggering the statutory requirements for air carriers, be certificated 
and comply with heightened safety requirements, based on the 
Administrator's authority in Sec.  44701(a)(5) to prescribe regulations 
that are necessary for safety in air commerce. The rationale for this 
is that even aircraft operating wholly within a State could be operated 
in such a manner that directly affects, or may endanger safety in 
foreign or interstate air commerce.
    In contrast, the FAA has also recognized that some commercial 
operations should not be subject to these heightened operator 
certification requirements and should be allowed to operate under the 
general operating rules of 14 CFR part 91. Some examples of this 
include student instruction, sightseeing flights conducted in hot air 
balloons, and non-stop flights conducted within a 25-statute mile 
radius of the airport of takeoff for the purpose of conducting 
parachute operations, as well as certain helicopter flights conducted 
within a 25-mile radius of the airport of takeoff.\45\ These exceptions 
are narrow and well-defined, and must be conducted in accordance with 
operating limitations set forth in Sec.  119.1(e) and 14 CFR part 91.
---------------------------------------------------------------------------

    \45\ See 14 CFR 119.1(e)(1-10).
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    In light of our experience with certification of other commercial 
operations, and with particular attention to the safe integration of 
new technologies, applications that are emerging, and limited nature of 
the transportation that could occur given the operating limits of the 
final rule, the Department has determined that a similar exception from 
air carrier operations for unmanned aircraft involving limited 
transport of property for compensation is appropriate. As adopted, the 
final rule provides immediate flexibility for remote pilots to engage 
in the limited carriage of property by small UAS, provided that the 
operations are conducted within a confined area and in compliance with 
the operating restrictions of 14 CFR part 107. It does not, however, 
allow individuals or corporations, acting as ``air carriers,'' to 
engage in ``air transportation'' as those terms are defined in 49 
U.S.C. 40102.\46\ As technology develops in the future, the Department 
will evaluate the integration of more expansive UAS air carrier 
operations into the NAS and will propose further economic and safety 
regulations if warranted.
---------------------------------------------------------------------------

    \46\ See 49 U.S.C. 40102(a)(2) (defining ``air carrier'') and 
(a)(5) (defining ``air transportation'').
---------------------------------------------------------------------------

    In order to not be considered ``air transportation,'' first, the 
transport must occur wholly within the bounds of a state. It may not 
involve transport between (1) Hawaii and another place in Hawaii 
through airspace outside Hawaii; (2) the District of Columbia and 
another place in the District of Columbia; or (3) a territory or 
possession of the United States and another place in the same territory 
or possession, as this is defined by statute as interstate air 
transportation and would otherwise trigger the Department's statutory 
requirements for air carrier operations. Thus, remote pilots may not 
offer or conduct ``air transportation,'' in which goods move across 
State or national borders. By statute and regulation, individuals 
seeking to carry more than a de minimis volume of property moving as 
part of a continuous journey over state, territorial, or international 
boundaries are considered by the Department of Transportation to be 
``air carriers'' engaging in ``air transportation.'' \47\ The 
assessment of whether an operator is engaging in ``air transportation'' 
is specific to the facts and circumstances of each case. Generally, the 
Department looks to how the transportation is being marketed and 
offered to customers, whether the transporting entity has existing 
aviation economic authority, and the extent to which the people or 
goods are being transported as part of an inter- or multi-State 
network.
---------------------------------------------------------------------------

    \47\ See 49 U.S.C. 41101; 14 CFR 298.2.
---------------------------------------------------------------------------

    Second, as with other operations in part 107, small UAS operations 
involving the transport of property must be conducted within visual 
line of sight of the remote pilot. While the visual-line-of-sight 
limitation can be waived for some operations under the rule, the 
restriction is a critical component of the Department's finding that 
these part 107 operations do not warrant further safety or economic 
authority at this time. The visual-line-of-sight restriction limits the 
area of operation to a circle with only about a 1-mile radius around 
the remote pilot in command, depending on the visibility conditions at 
the time of the operation. This limited area of operation mitigates the 
safety concerns that underlie the additional requirements that the FAA 
normally imposes on commercial operators under part 119. Operating 
within visual line of sight of the remote pilot is also critical to the 
Department's finding that these operations are so limited such that at 
this time, they could not be considered air transportation, or part of 
a broader network of interstate commerce warranting economic authority 
to ensure adequate protection of consumers' interests at this time. 
Accordingly, any waivers that the FAA may grant to the visual-line-of-
sight provisions of part 107 will not allow the operation to transport 
property for compensation or hire beyond visual line of sight.
    For these reasons, this rule will also not allow the operation of a 
small UAS from a moving vehicle if the small unmanned aircraft is being 
used to transport property for compensation or hire. Allowing operation 
from a moving vehicle could allow the remote pilot in command to 
significantly expand the area of operation, raising the same safety and 
economic concerns as operations conducted beyond visual line of sight.
    Third, the provisions of part 107 limit the maximum total weight of 
the small unmanned aircraft (including any property being transported) 
to under 55 pounds. This limits the size and weight of any property 
transported by the unmanned aircraft. Additionally, other provisions of 
the final rule require the remote pilot to know the unmanned aircraft's 
location; to determine the unmanned aircraft's attitude, altitude and 
direction; to yield the right of way to other aircraft; and to maintain 
the ability to see-and-avoid other aircraft. In the aggregate, the 
provisions of the final rule are designed to create an integrated 
framework and strike a balance that, on the one hand, allows limited 
transportation of property for compensation, but, on the other hand, 
ensures safety in the NAS and the opportunity to evaluate more 
expansive carriage of property that would require both OST economic 
authority and additional FAA safety authority.
    Fourth, the FAA notes that the carriage of hazardous materials 
poses a higher level of risk than the carriage of other types of 
property. For example, in the context of external load operations 
conducted under 14 CFR part 133, the FAA has found, that ``the 
transport of hazardous materials, especially forbidden [by PHMSA] 
hazardous materials, in external load operations creates a hazard to 
persons or property

[[Page 42077]]

in the surface.'' \48\ Because the carriage of hazardous materials 
poses a higher level of risk, part 107 will not allow the carriage of 
hazardous materials.
---------------------------------------------------------------------------

    \48\ Memorandum to Christopher Bonanti from Rebecca MacPherson, 
Assistant Chief Counsel, AGC 200 (Aug. 17, 2009). PHMSA is the 
abbreviation for ``Pipeline and Hazardous Materials Safety 
Administration.''
---------------------------------------------------------------------------

    Based on these operational limits, the Department at this time does 
not view the limited transport of property for compensation that could 
occur via a small UAS that is operated within visual line of sight of 
the remote pilot to constitute ``interstate air transportation.'' The 
final rule, therefore, creates a new exception under 14 CFR part 119 
for these operations authorized by part 107. This approach will 
encompass the vast majority of transportation by small UAS that could 
be conducted under part 107, including many of the specific scenarios 
suggested by commenters, without requiring the Department to design and 
develop a new infrastructure for issuance and administration of a new 
air carrier economic and safety licensing regime.
    We note that while the operations permitted by this rule do not 
rise to the level of air transportation, they are still considered to 
be commercial operations. Thus as discussed in the next section, if a 
person does not satisfy U.S. citizenship requirements, he or she must 
seek authority under 14 CFR part 375 before conducting these 
operations.
2. International Operations and Foreign-Owned Aircraft
    The International Civil Aviation Organization (ICAO) has recognized 
that UAS are aircraft, and as such, existing standards and recommended 
practices (SARPs) that apply to aircraft apply to UAS. ICAO currently 
is reviewing the existing SARPs to determine what modifications, if 
any, need to be made to accommodate UAS. In the U.S., however, UAS may 
operate with DOT authorization, under the authority of section 333 \49\ 
of Public Law 112-95, in a much less restrictive manner than current 
ICAO SARPs require. Thus, the FAA proposed to limit the applicability 
of part 107 to small UAS operations that are conducted entirely within 
the United States. Persons who wish to conduct operations outside of 
the United States would be able to do so, provided they seek and obtain 
the proper authorization from the requisite foreign civil aviation 
authority.
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    \49\ In addition to granting authorization through section 333 
exemptions, the FAA may authorize UAS operations under sections 334 
and 336 of Public Law 112-95, as well as through Experimental 
Airworthiness Certification of UAS and OPA (FAA Order 8130.34).
---------------------------------------------------------------------------

    In addition, based on the ICAO framework and the current review 
that ICAO is conducting, the FAA proposed to limit the rule to 
operations of U.S.-registered UAS. Under 49 U.S.C. 44103 and 14 CFR 
47.3, an aircraft can be registered in the United States only if it is 
not registered under the laws of a foreign country and meets one of the 
following ownership criteria:
     The aircraft is owned by a citizen of the United States;
     The aircraft is owned by a permanent resident of the 
United States;
     The aircraft is owned by a corporation that is not a 
citizen of the United States, but that is organized and doing business 
under U.S. Federal or State law and the aircraft is based and primarily 
used in the United States; or
     The aircraft is owned by the United States government or a 
State or local governmental entity.
    In proposing this requirement, the FAA noted that existing U.S. 
international trade obligations, including the North American Free 
Trade Agreement (NAFTA), cover certain kinds of operations known as 
specialty air services. Specialty air services are generally defined as 
any specialized commercial operation using an aircraft whose primary 
purpose is not the transportation of goods or passengers, including but 
not limited to aerial mapping, aerial surveying, aerial photography, 
forest fire management, firefighting, aerial advertising, glider 
towing, parachute jumping, aerial construction, helilogging, aerial 
sightseeing, flight training, aerial inspection and surveillance, and 
aerial spraying services. The FAA invited comments on whether foreign-
registered small unmanned aircraft should be permitted to operate under 
part 107, or recognized as specialty air services under international 
trade obligations.
    With respect to limiting UAS operations under part 107 to 
operations within the United States, the National Agricultural Aviation 
Association (NAAA), DJI, and another commenter supported the 
limitation, but sought clarification and additional guidance material 
on what steps individuals may need to complete to obtain the proper 
authorization from foreign civil aviation authorities and the FAA to 
operate outside the United States.
    Article 8 of the Chicago Convention specifies that no unmanned 
aircraft ``shall be flown without a pilot over the territory of a 
contracting State without special authorization by that State and in 
accordance with the terms of such authorization.'' Article 8 also calls 
on States to undertake ``to insure that the flight of such aircraft 
without a pilot in regions open to civil aircraft shall be so 
controlled as to obviate danger to civil aircraft.'' In accordance with 
this obligation, the provisions of part 107 set forth the necessary 
authorizations for operations conducted by U.S. citizens only within 
the United States. For those seeking to operate outside the United 
States, special authorization from the foreign civil aviation authority 
will be required. Thus, remote pilots wishing to conduct operations 
over another country's airspace should review that country's statutes, 
regulations, and guidance for clarification about how to operate in its 
airspace.
    The Small UAV Coalition sought clarification regarding whether UAS 
operations over water and beyond 12 nautical miles from the U.S. coast 
could be conducted under part 107, provided the operations are within 
U.S. flight information regions and not over the territory of a 
contracting member state.
    Until such time as agreements are reached with other countries, the 
FAA has determined that operations will be restricted to the land 
areas, internal waters, and territorial sea of the United States. U.S. 
flight information regions that are more than 12 nautical miles from 
the coast of the United States do not satisfy these criteria, and as 
such, part 107 will not apply to operations in those areas.
    Planehook Aviation argued that the rule should be consistent with 
applicable articles of the Chicago Convention, which, as noted 
previously, deal with unmanned aircraft operations and the safe 
separation from manned civil aircraft operations.
    As discussed earlier, ICAO has recognized that existing SARPs that 
apply to aircraft apply to UAS. ICAO currently is reviewing the 
existing SARPs to determine what modifications, if any, need to be made 
to accommodate UAS and in fact, recently amended the standard contained 
in paragraph 3.1.9 of Annex 2 (Rules of the Air). This standard 
requires that ``[a] remotely piloted aircraft shall be operated in such 
a manner as to minimize hazards to persons, property or other aircraft 
and in accordance with the conditions specified in Appendix 4.'' That 
appendix sets forth detailed conditions ICAO Member States must require 
of civil UAS operations for the ICAO Member State to comply with the 
Annex 2, paragraph 3.1.9 standard.
    Consistent with the recent amendment to 3.1.9 of Annex 2, the 
provisions of part 107 are designed to minimize hazards to persons, 
property or other aircraft operating within the

[[Page 42078]]

United States. Given the on-going evaluation of the SARPs by ICAO, this 
rule will, for the time being, limit the applicability of part 107 to 
small UAS operations that are conducted entirely within the United 
States. The FAA envisions that operations in international and foreign 
airspace will be dealt with in a future FAA rulemaking as ICAO 
continues to revise and more fully develop its framework for UAS 
operations to better reflect the diversity of UAS operations and types 
of UAS and to distinguish the appropriate levels of regulation in light 
of those differences.
    Transport Canada stated that there is a discrepancy between the 
proposed rule's description of U.S. territorial waters extending to 12 
nautical miles from the U.S. coast, and text in 14 CFR 91.1 that makes 
reference to ``waters within 3 nautical miles of the U.S. Coast.''
    Under Presidential Proclamation 5928, the territorial sea of the 
United States, and consequently its territorial airspace, extends to 12 
nautical miles from the baselines of the United States determined in 
accordance with international law. Thus, UAS operations that occur 
within 12 nautical miles from the baselines of the United States will 
be considered as operations occurring within the United States 
consistent with the applicability of part 107.
    The FAA notes that this approach is consistent with part 91. While, 
as Transport Canada pointed out, Sec.  91.1(a) refers to waters within 
3 nautical miles of the U.S. Coast, the applicability of part 91 is not 
limited to the 3-nautical-mile area. Specifically, Sec.  91.1(b) 
clarifies that certain part 91 regulations also apply to aircraft 
operations taking place between 3 and 12 nautical miles from the coast 
of the United States. Thus, the 12-nautical-mile metric used in this 
rule is consistent with the FAA's agency practice (as codified in Sec.  
91.1(b)) and reflects the directive of Presidential Proclamation 5928.
    With respect to operation of foreign-registered aircraft for non-
recreational and non-hobby purposes, NBAA, NetMoby, and Planehook 
Aviation supported the Department's decision not to include foreign-
registered UAS in this rulemaking. DJI, however, recognized that the 
current statutory restrictions in 49 U.S.C. 44102(a)(1) impose 
constraints on who can register an aircraft in the United States. DJI 
urged the FAA to consider asking Congress either to drop the aircraft 
registration requirement for all small UAS altogether or to withdraw 
the citizenship requirement (including its limited exceptions) as part 
of the agency's upcoming reauthorization.
    Additionally, to the extent some of these operations could be 
conducted by foreign citizens using foreign-registered small UAS, DJI 
suggested that DOT evaluate whether existing agreements allow the use 
of small UAS and, to the extent they cannot be reasonably construed as 
including these aircraft, explore a diplomatic solution that would 
allow their use in U.S. airspace. Similarly, Textron Systems, Predesa, 
LLC, and the Aerospace Industries Association (AIA) suggested that FAA 
evaluate existing bilateral agreements and consider new bilateral 
agreements as the mechanism to permit foreign-registered UAS to operate 
in the United States. The Small UAV Coalition endorsed this approach as 
well and urged the Department to authorize the operation of specialty 
air services by foreign-owned small UAS in the United States.
    In the NPRM, the FAA proposed to exclude foreign-registered 
aircraft from part 107 because the proposed rule included a 
registration component and foreign-registered aircraft may not be 
registered by the FAA. The FAA has since promulgated a separate interim 
final rule, titled Registration and Marking Requirements for Small 
Unmanned Aircraft \50\ (Registration Rule), to address the registration 
and marking of all small unmanned aircraft, including unmanned aircraft 
that will be subject to part 107. In the Registration Rule, the 
Department acknowledged that under 49 U.S.C. 41703, the Secretary may 
authorize certain foreign civil aircraft to be navigated in the United 
States only if: (1) The country of registry grants a similar privilege 
to aircraft of the United States; (2) the aircraft is piloted by an 
airman holding a certificate or license issued or made valid by the 
U.S. government or the country of registry; (3) the Secretary 
authorizes the navigation; and (4) the navigation is consistent with 
the terms the Secretary may prescribe.\51\
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    \50\ 80 FR 78594, Dec. 16, 2015.
    \51\ See also 14 CFR part 375, Navigation of Foreign Civil 
Aircraft in the United States.
---------------------------------------------------------------------------

    A foreign civil aircraft is defined in 14 CFR 375.1 as (a) an 
aircraft of foreign registry that is not part of the armed forces of a 
foreign nation, or (b) a U.S.-registered aircraft owned, controlled or 
operated by persons who are not citizens or permanent residents of the 
United States. For those that fall within this definition and wish to 
operate under the provisions of part 107, they must first apply with 
the Office of the Secretary's Foreign Air Carrier Licensing Division 
for permission to operate in the United States.
    The Department only will authorize operations of foreign-registered 
UAS in the United States if it determines that such operations are 
recognized under international agreements or via findings of 
reciprocity, consistent with the statutory obligations under section 
41703, and via the process as described below. The notion of 
reciprocity has a long-standing tradition in international relations 
and has been used in the realm of specialty air services for years. 
While there are many types of specialty air operations authorized under 
free trade agreements, it has been the long-standing policy of DOT to 
require a finding of reciprocity before allowing foreign-owned 
specialty air services to operate in the United States, even when the 
United States has no obligation under a trade agreement. The Department 
also will continue to review whether existing international agreements 
address the operation of UAS, and if not, what negotiations will need 
to occur to address these operations in the future.
    With respect to the supply of specialty air services in the United 
States by foreign-owned or controlled entities, DOT may allow these 
operations to occur provided that the UAS are registered and the owners 
have provided proof of reciprocity by their homeland of the ability for 
U.S. investment in UAS operations. Additional conditions may be imposed 
as necessary to satisfy the statutory requirements of section 41703.
    The FAA notes that, initially, all airmen operating under part 107 
will be required to obtain a remote pilot certificate. Currently, ICAO 
has not adopted standards for the certification of pilots of unmanned 
aircraft that the FAA could rely on in determining whether it is 
obligated under international law to recognize a foreign-issued UAS-
specific airman certificate. However, once an ICAO standard has been 
developed, this rule will allow the FAA to determine whether a foreign-
issued UAS-specific airman certificate was issued under standards that 
meet or exceed the international standards, and therefore must be 
recognized by the FAA for purposes of operating a foreign-registered 
aircraft within the United States.
    The FAA also notes that remote pilots of foreign-registered 
aircraft will need to comply with any applicable requirements imposed 
by their country of registration that do not conflict with part 107. 
For example, while part 107 will not require airworthiness

[[Page 42079]]

certification, the small unmanned aircraft will need to obtain 
airworthiness certification if required to do so by its country of 
registration.
3. Public Aircraft Operations
    The FAA is not making any changes to the final rule regarding 
public aircraft operations because this rule applies to civil aircraft 
operations only. In the NPRM, the FAA explained that this rulemaking 
would not apply to ``public aircraft operations with small UAS that are 
not operated as civil aircraft. This is because public aircraft 
operations, such as those conducted by the Department of Defense, the 
National Aeronautics and Space Administration (NASA), Department of 
Homeland Security (DHS) and NOAA, are not required to comply with civil 
airworthiness or airman certification requirements to conduct 
operations. However, these operations are subject to the airspace and 
air-traffic rules of part 91, which include the `see and avoid' 
requirement of Sec.  91.113(b).'' \52\ The proposed rule did point out, 
however, that it ``would provide public aircraft operations with 
greater flexibility by giving them the option to declare an operation 
to be a civil operation and comply with the provisions of proposed part 
107 instead of seeking a COA from the FAA.'' \53\
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    \52\ NPRM, 80 FR at 9554.
    \53\ NPRM, 80 FR at 9554-9555.
---------------------------------------------------------------------------

    DJI generally supported the FAA's approach to small UAS public 
aircraft operations. The Nez Perce Tribe--which also supported the 
proposal to give public aircraft operations the option to declare an 
operation to be a civil operation and comply with the provisions to 
proposed part 107--asserted that the proper statutory interpretation of 
``public aircraft'' includes federally recognized Indian tribes. 
Conversely, NAAA stated that public aircraft operations should continue 
to be conducted under the COA process.
    One individual said proposed Sec.  107.11 should be amended to 
indicate that public agencies may choose to voluntarily operate under 
part 107. The City of Arlington, Texas requested the ability to follow 
the small UAS rules, not the COA process. Aerial Services, Inc. also 
said that public entities should be allowed to operate like commercial 
operators, but only for research and instructional purposes.
    Under this rule, a public aircraft operation can continue to 
operate under a COA or can voluntarily operate as a civil aircraft in 
compliance with part 107. As stated in the NPRM, this rule will not 
apply to public aircraft operations of small UAS that are not operated 
as civil aircraft. These operations must continue to comply with the 
FAA's existing requirement to obtain a COA providing the public 
aircraft operation with a waiver from certain part 91 requirements such 
as the ``see and avoid'' requirement of Sec.  91.113(b).
    However, this rule will provide greater flexibility to public 
aircraft operations because it allows small UAS public aircraft 
operations to voluntarily opt into the part 107 framework. In other 
words, a remote pilot may elect to operate his or her small UAS as a 
civil rather than a public aircraft and comply with part 107 
requirements instead of obtaining a COA. With regard to Nez Perce's 
assertion that aircraft operated by federally recognized Indian tribes 
are public aircraft, that issue is beyond the scope of this rule.
    The FAA also disagrees with NAAA's comment that public aircraft 
operations should all be required to obtain a COA. As discussed in 
III.J.1 of this preamble, the FAA has found that small UAS operations 
conducted within the parameters of part 107 will not create a hazard to 
users of the NAS or pose a threat to national security. Consequently, 
there will be no adverse safety or security impact by the FAA providing 
public entities with an option to conduct their small UAS operations 
under part 107.
    NASA stated that the proposed rule should be written to 
specifically authorize NASA small UAS use without a COA because ``it is 
incorrect to infer that NASA's high aviation certification standards do 
not meet the rigors of civil standards.'' NASA asserted that the 
proposed rule conflicts with statutory authority and does not align 
with the current FAA/NASA memorandum of agreement for the operation of 
small UAS.
    The Department of Defense Policy Board on Federal Aviation (DOD) 
also supported operations without a COA, ``commensurate with civil 
provisions.'' DOD suggested several changes to language in the preamble 
regarding the option for government entities to conduct a civil UAS 
operation under part 107. DOD argued that ``public operator statutory 
authorities'' need to be preserved and the regulation needs to ``enable 
operations without a COA commensurate with civil provisions.''
    To that end, DOD stated that the FAA should clarify that public 
agencies currently operating under memoranda of agreement or 
understanding will be authorized to continue operating in that manner 
even where provisions of part 107 are more restrictive in nature. DOD 
also asked that the FAA explicitly exclude aircraft operating under a 
COA from the applicability of part 107. Finally, DOD recommended that 
the FAA further amend Sec.  107.1 to clarify that part 107 does not 
apply to aircraft operated by or for the National Defense Forces of the 
United States, but could be used as an alternative means of compliance.
    These comments are largely beyond the scope of the proposed 
rulemaking. The proposed rule addressed only civil small UAS 
operations. As stated above, the NPRM would enable remote pilots of 
public aircraft to opt into the civil framework for small UAS 
operations, but does not address public aircraft operations beyond 
that. In response to NASA, the FAA points out that under this rule, 
NASA may operate small UAS without a COA as long as it complies with 
part 107. With regard to DOD's suggestions, there is no need to amend 
part 107 because Sec.  107.1 expressly limits the applicability of part 
107 to civil small UAS. After the effective date of this rule, the FAA 
does not anticipate issuing a public aircraft operations COA that is 
less flexible than the regulations promulgated in this rule, provided 
that all the circumstances are identical to that available to a civil 
operator.
    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and Tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $155.0 million in lieu of $100 
million. One commenter suggested that the FAA should designate a 
special status for public UAS operating in a civil capacity that 
exempts them from visual-line-of-sight and daylight-only operation 
limitations. However, this is unnecessary because public aircraft 
operations are not required to be conducted as civil aircraft subject 
to part 107. Thus, a public aircraft operation that does not wish to 
comply with part 107 can operate under the existing public-aircraft 
framework rather than under part 107.
    Agreeing that the proposed rules should not apply to small UAS 
operations by DOD, NASA, NOAA, DHS or FAA, one individual stated that 
the proposed rule should apply to ``second and third tier public 
agencies not directly tied to constant aeronautical activities, testing 
and research.'' Two

[[Page 42080]]

other individuals stated that any commercial rules for small UAS should 
apply to both private and public sectors.
    This rule will allow any public agency, regardless of the ``tier'' 
of operations, to choose to operate a small UAS as a civil aircraft 
under part 107.
    The Association for Unmanned Vehicle Systems International (AUVSI) 
recommended that the FAA modify the current limitation in Sec.  107.11 
concerning ``civil'' aircraft to include ``public aircraft'' as well. 
This is necessary, AUVSI asserted, because some current operation rules 
for manned aircraft (such as those found in part 91) apply to both 
``public aircraft'' and ``civil aircraft.''
    The FAA disagrees. This rulemaking applies to civil aircraft only. 
Expanding its application to public aircraft is beyond the scope of the 
proposed rule.
    The Next Gen Air Transportation Program at North Carolina State 
University indicated that proposed Sec.  107.3 needs a definition of 
``civil operation.'' The commenter asked how a public agency declares a 
civil operation. The commenter also implied that part 107 does not make 
clear that there would be no adverse safety effects from allowing 
public aircraft operations under part 107.
    Twelve members of the Wisconsin Legislature signed a joint letter 
stating that ``[t]he NPRM states public entities must get a Certificate 
of Waiver or Authorization because they are not `exempt' from 
restrictions in the proposed rules. However, the proposed rules allow 
public entities to `declare an operation to be a civil operation' and 
therefore operate commercially and be exempted from flight 
restrictions.'' The members also stated that the FAA has not 
``promulgated, clarified or made public its rules, policies, and legal 
opinions on public versus commercial UAS.''
    The Wisconsin Society of Land Surveyors stated that ``government 
agencies have been getting a head start on the market, at the expense 
of the private sector, by obtaining certificates to perform UAS 
services that are commercial in nature,'' and ``[a]s a result, 
government and universities are conducting operational missions, 
developing markets and cultivating clients.'' This commenter concluded 
that there ``should not be unfair competitive advantages granted to 
government or university UAS vis-[agrave]-vis the private sector.''
    These comments reflect some misunderstanding of public aircraft 
operations in general and the FAA's role in such operations. The 
authority to conduct a public aircraft operation is determined by 
statute (49 U.S.C. 40102(a)(41) and 40125). The FAA has no authority to 
prohibit a qualified government entity from conducting public aircraft 
operations, manned or unmanned. Consequently, many of the FAA's 
regulations, such as aircraft certification and pilot requirements, do 
not apply to public aircraft operations. Some of the general operating 
rules apply to all aircraft operations, public aircraft and civil, and 
that is where the need for COAs affects public aircraft operations of 
UAS. For example, all aircraft must comply with 14 CFR 91.113, and UAS 
require a conditional waiver of that regulation in order to operate in 
the NAS; the conditions are specified in the COA.
    Qualified governmental entities may choose to operate a public 
aircraft operation as long as they do so within the limits of the 
public aircraft statute. Under this rule, they may choose to operate 
their UAS as a civil aircraft instead, and operate under the civil 
regulations. Government entities have always had the option to do this 
with their manned aircraft; in some cases, government entities may be 
required to operate under civil regulations if their operations do not 
comply with the public aircraft statute. The new UAS regulations do not 
change this option or the requirements of the public aircraft statute.
    ``Civil aircraft'' is already a defined term in 14 CFR 1.1, which 
defines a civil aircraft as an aircraft that is not a public aircraft. 
The definition of public aircraft in part 1 is a restatement of the 
requirements in the public aircraft statute sections cited above. 
Government entities that qualify to conduct public aircraft operations 
but choose to operate instead under civil rules must comply with the 
same requirements as civil entities; no special notice is required. If 
an operation is commercial, it is civil by definition, but not all 
civil operations are commercial. Operations for a commercial purpose 
are prohibited by the public aircraft statute. The public aircraft 
statute requires that public aircraft operations have a governmental 
function and not have a commercial purpose. In short, a government 
entity may choose to conduct a public aircraft operation within the 
restrictions of the public aircraft statute (and certain civil 
regulations applicable to all aircraft operating in the NAS), or it may 
choose to conduct a civil operation and comply with the requirements of 
the applicable regulations in 14 CFR.
    Under the definitions in 49 U.S.C. 40102(a)(41), a university may 
qualify to conduct a public aircraft operation if it meets the 
statutory criteria as a part of the government of the State or a 
political subdivision of the state. A determination of whether a public 
university meets these criteria is made by individual states. 
Operations of aircraft by these universities are subject to the same 
requirements as other public aircraft operations. The ability to 
conduct a public aircraft operation is determined by statute and cannot 
be changed by the FAA. The FAA has not given an ``unfair competitive 
advantage'' or showed favoritism to any entity by declaring their 
operations public aircraft operations because it has no authority to do 
otherwise under the statute. The FAA does review the operations 
submitted by UAS proponents to ensure that, as described, they meet the 
requirements of the public aircraft statute.
    The FAA has made public its policies and opinions on all public 
aircraft matters, manned and unmanned. The FAA has also published 
Advisory Circular 00-1.1A, Public Aircraft Operations, dated February 
12, 2014. That document is available on the FAA Web site. Matters of 
legal interpretation that have been presented to the FAA for its 
opinion are available as part of the FAA Office of the Chief Counsel's 
interpretation database.\54\
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    \54\ http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/Interpretations/.
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4. Model Aircraft
    The NPRM proposed that part 107 would not apply to model aircraft 
that satisfy all of the criteria specified in section 336 of Public Law 
112-95. Section 336(c) defines a model aircraft as an ``unmanned 
aircraft that is--(1) capable of sustained flight in the atmosphere; 
(2) flown within visual line of sight of the person operating the 
aircraft; and (3) flown for hobby or recreational purposes.'' 
Subsection 336(a) specifically prohibits the FAA from promulgating 
rules regarding model aircraft that meet all of the following statutory 
criteria:
     The aircraft is flown strictly for hobby or recreational 
use;
     The aircraft is operated in accordance with a community-
based set of safety guidelines and within the programming of a 
nationwide community-based organization;
     The aircraft is limited to not more than 55 pounds unless 
otherwise certificated through a design, construction, inspection, 
flight test, and operational safety program administered by a 
community-based organization;

[[Page 42081]]

     The aircraft is operated in a manner that does not 
interfere with and gives way to any manned aircraft; and
     When flown within 5 miles of an airport, the operator of 
the aircraft provides the airport operator and the airport air traffic 
control tower (when an air traffic facility is located at the airport) 
with prior notice of the operation.
    Because of the statutory prohibition on FAA rulemaking regarding 
model aircraft that meet the above criteria, the NPRM proposed that 
model aircraft meeting these criteria would not be subject to the 
provisions of part 107. However, although section 336(a) exempts 
certain model aircraft from FAA rulemaking, section 336(b) explicitly 
states that the exemption in section 336(a) does not limit the FAA's 
authority to pursue enforcement action against those model aircraft 
that ``endanger the safety of the national airspace system.'' The FAA 
proposed to codify this authority in part 101 by prohibiting a person 
operating a model aircraft from endangering the safety of the NAS.
    The FAA received approximately 2,850 comments on the model-aircraft 
aspect of the NPRM. Many of these commenters, including NAMIC, Horizon 
Hobby, LLC (Horizon Hobby), Skyview Strategies, Inc. (Skyview 
Strategies), the Academy of Model Aeronautics (AMA) and many 
individuals, supported excluding model aircraft operations from the 
provisions of part 107. DJI, Aviation Management, and UAS America Fund, 
LLC (UAS America Fund) recommended that the FAA expand the model-
aircraft exception from the requirements of part 107 and adopt more 
lenient regulatory standards for recreational uses of small UAS that do 
not comply with all of the criteria specified in section 336. UAS 
America Fund suggested that the final rule make a special allowance for 
small UAS operations that do not meet all of the criteria of section 
336(a) but are conducted for educational or other salutary purposes.
    Conversely, NAAA, the Transportation Trades Department AFL-CIO 
(TTD), A4A, the American Chemistry Council, the Information Technology 
and Innovation Foundation, the Southwest Airlines Pilots' Association 
(SWAPA) and a number of individual commenters advocated for greater 
regulation and oversight of all model aircraft operations. Many of 
these commenters felt that the risks associated with recreational and 
non-recreational UAS operations are the same, and thus, there should be 
no difference in how these operations are regulated. A number of 
commenters also expressed concern that recreational and hobby use of 
UAS could pose a significant safety hazard and that additional 
regulations should be imposed to mitigate this hazard. For example, 
NAAA asserted that ``[t]he majority of UAS incidents that occurred in 
recent years have been by UAS operated as model aircraft . . . 
including two in 2014 where [agricultural] operators were harassed by 
model aircraft in Idaho and Illinois.'' Green Vegans argued that 
failure to regulate model aircraft operations may have an adverse 
impact on the environment.
    Section 336 of Public Law 112-95 specifically prohibits the FAA 
from issuing any new rules with regard to model aircraft that satisfy 
the statutory criteria specified in that section. Accordingly, the FAA 
cannot impose additional regulations on model aircraft that meet the 
criteria of section 336 nor can the FAA make those aircraft subject to 
the provisions of part 107.
    However, with regard to the request that the FAA apply the terms of 
section 336 to other operations, the FAA agrees with NAAA, TTD, A4A and 
other commenters who pointed out that, from a safety point of view, 
there is no difference between the risk posed by recreational 
operations, operations used for salutary purposes, and non-
recreational/non-salutary operations. There is no data indicating that 
a small UAS operation whose operational parameters raise the safety 
risks addressed by part 107 would become safer simply as a result of 
being conducted for recreational or salutary purposes rather than 
commercial purposes. As such, the FAA declines the request to apply the 
terms of section 336 beyond the statutory criteria specified in that 
section.
    The Air Line Pilots Association, International (ALPA) and the 
Kansas State University Unmanned Aircraft Systems Program (Kansas State 
University UAS Program) stated that if model aircraft operations are 
being added to part 101, then the title of part 101 should be changed 
to reflect that part 101 now encompasses those operations. AMA, Horizon 
Hobby, Skyview Strategies, and numerous individuals noted that the 
statutory text of section 336 also applies to ``aircraft being 
developed as model aircraft,'' and these commenters asked the FAA to 
add the pertinent statutory text to the model-aircraft provisions of 
part 101.
    As the commenters pointed out, the statutory language of section 
336 applies not just to aircraft that are operated as model aircraft 
but also to ``aircraft being developed as a model aircraft.'' \55\ 
Accordingly, the FAA has added this statutory language to the 
regulatory text of Sec.  101.41. The FAA also agrees with ALPA and the 
Kansas State University UAS Program and has updated the title of part 
101 to indicate that this part will now include model aircraft 
operations that are operated under section 336.
---------------------------------------------------------------------------

    \55\ Public Law 112-95, sec. 336(a).
---------------------------------------------------------------------------

    AMA and a number of individual commenters supported the proposed 
inclusion of the section 336 criterion concerning nationwide community-
based organizations into the regulatory text of part 101. A number of 
other commenters raised concerns about having to comply with safety 
guidelines issued by a community-based organization and having to 
operate within the programming of such an organization. The Permanent 
Editorial Board of the Aviators Model Code of Conduct Initiative stated 
that the FAA should demonstrate the efficacy of using community-based 
safety guidelines to regulate model aircraft operations prior to using 
such an approach. DJI and the Stadium Managers Association, Inc. stated 
that it is unclear what makes an organization a nationwide community-
based organization within the meaning of section 336. DJI went on to 
ask the FAA to provide guidance as to what criteria the agency will 
look for in recognizing a nationwide community-based organization. The 
Washington Aviation Group and Green Vegans suggested that the FAA 
identify, or seek comments to identify, a single set of community-based 
safety guidelines and incorporate those guidelines by reference into 
proposed part 101 and make them available on the FAA's Web site.
    Section 336 of Public Law 112-95 includes a specific list of 
criteria that must be satisfied in order for the section 336 exception 
to apply. One of these criteria is that ``the [model] aircraft is 
operated in accordance with a community-based set of safety guidelines 
and within the programming of a nationwide community-based 
organization.'' \56\ Because compliance with a community-based set of 
safety guidelines and operating within the programming of a nationwide 
community-based organization is one of the statutory criteria that must 
be satisfied in order for section 336 to apply, the FAA has retained 
this provision.
---------------------------------------------------------------------------

    \56\ Public Law 112-95, sec. 336(a)(2).
---------------------------------------------------------------------------

    The FAA notes, however, that those model aircraft operations that 
do not wish to comply with a community-based set of safety guidelines 
and

[[Page 42082]]

operate within the programming of a nationwide community-based 
organization will be able to simply conduct their operations under part 
107. Part 107 was designed to impose the minimal burden necessary to 
ensure the safety and security of a small UAS operation. As discussed 
in the Regulatory Impact Assessment that accompanies this rule, the 
out-of-pocket cost for someone who wishes to operate under part 107 
will be less than $200.
    With regard to comments asking for additional clarity as to what 
makes an organization a nationwide community-based organization under 
section 336, the FAA notes that this issue is beyond the scope of this 
rule. The FAA is currently engaged in a separate regulatory action 
titled Interpretation of the Special Rule for Model Aircraft,\57\ 
(Interpretive Rule) in which the FAA is interpreting the statutory 
provisions of section 336 and explaining how those provisions apply to 
model aircraft operations. The FAA published this interpretation for 
public comment in June 2014 and has since received over 33,000 public 
comments. The FAA is currently considering the issues raised by these 
commenters and will issue a final Interpretive Rule that reflects its 
consideration of the comments.
---------------------------------------------------------------------------

    \57\ 79 FR 36172, June 25, 2014.
---------------------------------------------------------------------------

    Because the FAA is considering the specific meaning of section 336 
provisions in a separate regulatory action, in order to avoid 
duplication, the FAA limited the scope of the model-aircraft component 
of this rulemaking simply to codifying the FAA's enforcement authority 
over model-aircraft operations that endanger the safety of the NAS. As 
such, issues concerning the specific meaning of section 336 (such as 
what makes an organization a nationwide community-based organization) 
are beyond the scope of this rule.
    With regard to Washington Aviation Group and Green Vegans' 
suggestions that the FAA codify a single set of community-based safety 
guidelines and incorporate those guidelines by reference into part 101, 
the FAA notes that this suggestion is also beyond the scope of this 
rule. However, even if the scope of this rule was broad enough to reach 
this issue, the language of section 336(a)(2) is not limited to a 
single set of community-based safety guidelines, nor is it limited to 
community-based safety guidelines that exist today. Accordingly, the 
FAA cannot incorporate a single definitive set of safety guidelines 
into the regulatory text of part 101.
    The NextGen Air Transportation Program at NC State University 
stated that Sec.  101.41 should be amended to include a requirement to 
operate at locations approved by a nationwide community-based 
organization. Another commenter suggested that the FAA clarify that the 
programming of nationwide community-based organizations is interpreted 
to include location. Colorado Ski Country USA said the FAA should add a 
provision that prohibits recreational UAS operations within the 
airspace above ``Places of Public Accommodation'' without prior 
approval from the Place of Public Accommodation.
    As discussed previously, the scope of the model-aircraft component 
of this rulemaking is limited simply to codifying the FAA's enforcement 
authority over model-aircraft operations that endanger the safety of 
the NAS. Accordingly, these suggestions are beyond the scope of this 
rule.
    A number of commenters, including ALPA, NAAA, and the International 
Air Transport Association, supported the FAA's proposal to codify a 
prohibition on model aircraft operations endangering the safety of the 
NAS. NAAA emphasized that the FAA should ``continue to utilize every 
tool possible to ensure model aircraft are operating safely in the 
NAS.''
    The Small UAV Coalition, the Airports Council International--North 
America, and the American Association of Airport Executives asked the 
FAA to clarify what actions would endanger the safety of the NAS. AMA 
argued that enforcement of the ``endangering the safety of the NAS'' 
provision should not affect other airman certificates that may be held 
by a model aircraft operator. AMA and several other commenters also 
argued that the FAA is not permitted to oversee general safety issues 
involving model aircraft. These commenters suggested narrowing the 
``endangering the safety of the NAS'' provision to make it analogous to 
14 CFR 91.11, which prohibits interference with a crewmember.
    Subsection 336(b) explicitly states that the FAA has authority to 
pursue enforcement action ``against persons operating model aircraft 
who endanger the safety of the national airspace system.'' Because the 
scope of the FAA's enforcement authority is explicitly specified in 
section 336(b), the FAA has decided to finalize the proposed 
prohibition on model aircraft operators endangering the safety of the 
NAS. To do otherwise and artificially narrow the FAA's statutory 
enforcement authority over section 336 operations would be contrary to 
Congressional intent because Congress has explicitly specified, in 
section 336(b), the scope of the FAA's enforcement authority over model 
aircraft operations.
    With regard to examples of actions that may endanger the safety of 
the NAS, the FAA notes that this is an issue that is being addressed by 
the Interpretive Rule.\58\ Because the issues addressed by the 
Interpretive Rule have been subject to extensive public input (33,000 
plus comments) and because addressing those issues here would be 
duplicative, the FAA will defer discussion of what qualifies as 
endangering the safety of the NAS to the Interpretive Rule. Finally, 
with regard to AMA's suggestion that enforcement of the ``endangering 
the safety of the NAS'' provision should not affect other airman 
certificates that may be held by a model aircraft pilot, the FAA notes 
that determination of the remedy that it may seek in specific 
enforcement cases is beyond the scope of this rulemaking.
---------------------------------------------------------------------------

    \58\ See, e.g., 79 FR at 36175-76.
---------------------------------------------------------------------------

    Many commenters, including Skyview Strategies, AMA, the 
Experimental Aircraft Association, and numerous individuals, reiterated 
arguments that were raised in the comments filed on the Interpretive 
Rule. These commenters restated arguments such as: (1) Considering 
model aircraft to be ``aircraft'' would effectively make those aircraft 
subject to manned-aircraft regulations; (2) the Interpretive Rule 
interprets the phrase ``hobby or recreational use'' too narrowly; (3) 
the Interpretive Rule does not properly interpret Congressional intent; 
(4) model aircraft operations should not be subject to any airspace 
restrictions; (5) requiring notification when operating within 5 miles 
of an airport is too burdensome; and (6) the interpretation of ``visual 
line of sight'' within the Interpretive Rule would prohibit the use of 
first-person-view devices. AMA and the Small UAV Coalition argued that 
the FAA must address and adjudicate the 33,000 plus comments that were 
made on the Interpretive Rule and resolve the issues and concerns 
presented before moving forward in finalizing the small UAS Rule.
    Because these are all issues that have been commented on (in much 
greater detail) and are currently being considered as part of the 
Interpretive Rule, considering these issues in this rule would be 
duplicative. Accordingly, the FAA declines to address these issues here 
as they are currently the subject of a separate regulatory action.
    The FAA also declines the suggestion that it issue the final 
Interpretive Rule prior to finalizing this rule. The FAA is currently 
working as quickly as possible to issue the final Interpretive Rule.

[[Page 42083]]

Because the model-aircraft component of this rulemaking simply codifies 
the FAA's statutory authority over section 336 operations and because 
delaying this rulemaking would prejudice non-model small UAS 
operations, the FAA declines to withhold this rule until issuance of 
the final Interpretive Rule.
    AMA and Horizon Hobby asked the FAA to add regulatory text that 
would exempt model aircraft operations and aircraft being developed as 
model aircraft from the regulatory provisions of parts 21, 43, 45, 47, 
61, and 91. These commenters also noted the revision that the NPRM 
proposed to make in Sec.  91.1(e) and expressed concern that this 
revision may make model aircraft subject to the provisions of part 91. 
Skyview Strategies asked the FAA to rewrite the guidance that it 
recently issued to law enforcement agencies concerning model aircraft 
that may be operated unsafely.
    As discussed previously, the proposed rule was limited simply to 
codifying the FAA's statutory enforcement authority over model aircraft 
operations. Because the FAA did not propose making any changes to its 
existing regulations with regard to section 336 operations, those 
changes are beyond the scope of this rulemaking. Similarly, the FAA did 
not propose to make any changes to its existing enforcement guidance as 
part of this rulemaking, and those changes are also beyond the scope of 
this rule.
    With regard to the revision that the NPRM proposed in Sec.  
91.1(e), this revision does not expand the scope of part 91. 
Specifically, the NPRM proposed to move the regulatory text concerning 
existing exceptions to part 91 applicability for moored balloons, 
kites, unmanned rockets, and unmanned free balloons into a newly 
created subsection (Sec.  91.1(e)). The NPRM then proposed to add an 
extra exception (also in Sec.  91.1(e)) to part 91 applicability for 
small UAS operations governed by part 107, because the purpose of this 
rulemaking is, in part, for the regulations of part 107 to replace the 
regulations of part 91 as the governing regulations for small UAS 
operations. Because this additional exception for part 107 operations 
is the only substantive change that the NPRM proposed to the 
applicability of part 91, finalizing this exception would not expand 
the scope of part 91. Accordingly, this rule will finalize Sec.  
91.1(e) as proposed in the NPRM.
    Two commenters disagreed with one aspect of the proposed definition 
of model aircraft, namely that the aircraft must be capable of 
sustained flight in the atmosphere. These commenters argued that the 
proposed requirement was more burdensome than requirements imposed on 
some manned aircraft operations. However, section 336(c)(1) 
specifically defines a ``model aircraft'' in pertinent part as an 
aircraft that is ``capable of sustained flight in the atmosphere.'' 
Because the definition of ``model aircraft'' is specified in statute, 
this rule will finalize the statutory definition in the regulatory text 
of part 101.
    The Aircraft Owners and Pilots Association (AOPA) and The Permanent 
Editorial Board of the Aviators Model Code of Conduct Initiative 
suggested that the FAA take additional steps to issue clear and 
definitive guidance for recreational operators and to encourage 
manufacturers to include information on this FAA guidance in their 
packaging materials. AOPA further stated that the FAA should work with 
AOPA and remote control aircraft groups ``to conduct education 
outreach, and publish guidance to help pilots file timely reports of 
reckless UAS operations.''
    The FAA agrees with AOPA and The Permanent Editorial Board of the 
Aviators Model Code of Conduct Initiative that guidance and education 
would greatly assist model aircraft operators. To that end, the FAA has 
partnered with AMA, AUVSI, AOPA and the Small UAV Coalition on an 
education campaign titled ``Know Before You Fly,'' which is designed to 
educate prospective users about the safe and responsible operation of 
model aircraft.\59\ As pointed out by the commenters, education and 
outreach efforts will enhance the safety of the model aircraft 
community and, just like it did with the ``Know Before You Fly'' 
campaign, the FAA will consider partnering with interested stakeholders 
in future education and outreach efforts.
---------------------------------------------------------------------------

    \59\ http://knowbeforeyoufly.org/.
---------------------------------------------------------------------------

    The FAA is also currently taking the steps suggested by AOPA and 
The Permanent Editorial Board of the Aviators Model Code of Conduct 
Initiative to issue clear and definitive guidance for recreational 
operators. Specifically, the FAA is working on drafting and issuing a 
final Interpretive Rule that addresses the issues raised by commenters. 
The agency has also issued an updated AC 91-57A, which is the main 
advisory circular for model aircraft operations.
5. Moored Balloons, Kites, Amateur Rockets, and Unmanned Free Balloons
    Moored balloons, kites, amateur rockets, and unmanned free balloons 
are currently regulated by the provisions of 14 CFR part 101. Because 
they are already incorporated into the NAS through part 101, the NPRM 
proposed to exclude them from the provisions of part 107. The FAA did 
not receive any comments objecting to this aspect of the NPRM and, as 
such, this rule will, as proposed, exclude part 101 operations from the 
applicability of part 107.
    The FAA did, however, receive several comments asking for 
clarification as to which types of operation are subject to part 101. 
The NextGen Air Transportation Program at NC State University and three 
individuals asked whether tethered powered unmanned aircraft meet the 
definition of unmanned free balloons and kites, which are subject to 
part 101.
    FAA regulations define a balloon as ``a lighter-than-air aircraft 
that is not engine driven, and that sustains flight through the use of 
either gas buoyancy or an airborne heater.'' \60\ A kite is defined as 
``a framework, covered with paper, cloth, metal, or other material, 
intended to be flown at the end of a rope or cable, and having as its 
only support the force of the wind moving past its surfaces.'' \61\ 
Based on these definitions, a small unmanned aircraft that uses powered 
systems for actions such as propulsion or steering is not a balloon or 
kite subject to part 101.\62\
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    \60\ 14 CFR 1.1 (definition of ``balloon'').
    \61\ Id. (definition of ``kite'').
    \62\ Additional information can be found in FAA Order 7210.3, 
Chapter 18, Section 5, Moored Balloons, Kites, Unmanned Rockets, and 
Unmanned Free Balloons/Objects, http://www.faa.gov/documentLibrary/media/Order/7210.3Z.pdf; and FAA Order 7110.65, Chapter 9, Section 
6, Unmanned Free Balloons, http://www.faa.gov/documentLibrary/media/Order/ATC.pdf.
---------------------------------------------------------------------------

    A commenter asked whether unmanned moored airships and blimps are 
subject to part 101. In response, the FAA notes that an airship is 
defined as ``an engine-driven lighter-than-air aircraft that can be 
steered.'' \63\ Conversely, as discussed previously, the definition of 
``balloon'' excludes aircraft that are engine-driven. Because an 
airship is not a balloon or kite, a moored unmanned airship is not 
encompassed by part 101. With regard to blimps, an engine-driven blimp 
would be considered an airship, which is not subject to part 101.
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    \63\ 14 CFR 1.1 (definition of ``airship'').
---------------------------------------------------------------------------

6. Current Treatment of UAS and Grandfathering of Section 333 Exemption 
Holders
    The FAA currently accommodates non-recreational small UAS use 
through various mechanisms, such as special airworthiness certificates, 
exemptions, and COAs. However, the FAA recognizes that many holders of

[[Page 42084]]

exemptions issued under section 333 of Public Law 112-95 (section 333 
exemptions) may wish to take advantage of part 107 when it goes into 
effect. On the other hand, some section 333 exemption holders may 
prefer to continue operating under the terms and conditions of their 
exemptions. Therefore, the FAA will allow any section 333 exemption 
holder to either continue operating under the terms and conditions of 
the exemption until its expiration, or conduct operations under part 
107 as long as the operation falls under part 107.
    Approximately 40 commenters criticized the framework currently 
regulating small UAS operations as slow, cumbersome, and inefficient. 
These commenters expressed concern that the current framework is having 
an adverse effect on UAS development in the United States.
    The FAA anticipates that this rulemaking will alleviate many of the 
concerns commenters raised with the existing UAS framework. Under this 
rule, many operations that would previously require exemptions and COAs 
will now fall under the purview of part 107, which generally does not 
require an exemption or a COA prior to operation.
    Some commenters, including the American Petroleum Institute and the 
Consumer Electronics Association (CEA), encouraged the FAA to 
acknowledge that existing permitted commercial uses of small UAS are 
unaffected by the rule. The American Petroleum Institute stated that 
such acknowledgement is necessary to avoid unintended consequences and 
preserve the expectation and business interests of current 
authorization holders.
    CEA stated that the FAA should either grandfather-in existing 
exemptions or afford existing exemptions a 3-year transition period in 
recognition of the hard work and expense each exemption represents. The 
commenter further recommended that, if the FAA chose a 3-year 
transition period, and if no renewal was sought, then the exemption 
would terminate 3 years after the new rules became effective. However, 
if a petitioner sought renewal of the exemption, the commenter 
recommended that the exemption remain valid until final action by the 
FAA on the renewal application. CEA noted that, to the extent that the 
new rules are more permissive than existing exemptions, operators 
should be permitted to rescind their exemption and operate under the 
new rules.
    The FAA clarifies that current section 333 exemptions that apply to 
small UAS are excluded from part 107. The FAA has already considered 
each of these individual operations when it considered their section 
333 exemption requests and concluded that these operations do not pose 
a safety or national security risk.
    The FAA recognizes, however, that there may be certain instances 
where part 107 is less restrictive than a section 333 exemption. 
Therefore, under this rule, a section 333 exemption holder may choose 
to operate in accordance with part 107 instead of operating under the 
section 333 exemption. This approach will provide section 333 exemption 
holders time to obtain a remote pilot certificate and transition to 
part 107. Operations that would not otherwise fall under part 107 may 
not take advantage of this option. For example, an operation with a 
section 333 exemption that does not fall under part 107, such as an 
operation of a UAS weighing more than 55 pounds, would not have the 
option of operating in accordance with part 107 rather than with its 
section 333 exemption.
    Additionally, when section 333 exemptions come up for renewal, the 
FAA will consider whether renewal is necessary for those exemptions 
whose operations are within the operational scope of part 107, which 
also includes those operations that qualify for a waiver under part 
107. The purpose of part 107 is to continue the FAA's process of 
integrating UAS into the NAS. If a section 333 exemption is within the 
operational scope of part 107, there may be no need for the agency to 
renew an exemption under section 333. Because the FAA's renewal 
considerations will be tied to the outstanding section 333 exemptions' 
expiration dates, a 3-year transition period is not necessary. This 
will not affect those section 333 exemptions that are outside of the 
operational scope of part 107 or where a part 107 waiver would not be 
considered.
    Future exemptions may be issued to provisions of part 107 that do 
not allow for a waiver. These exemptions may also be issued pursuant to 
section 333. Small UAS remote pilots holding an exemption for a 
provision contained in part 107 will not be excluded from the other 
part 107 requirements if the exemption specifies that part 107 
provisions that are not waived or exempted still apply.
    A commenter asked whether there will be a grace period for 
individuals already operating small UAS to comply with the requirements 
of part 107, or whether those individuals will be required to stop 
operating until they can complete those requirements.
    As stated above, a person currently operating under a section 333 
exemption will not need to immediately comply with part 107. 
Additionally, a person currently operating on the basis of a part 61 
pilot certificate other than student pilot would, as discussed below, 
be eligible to obtain a temporary remote pilot certificate upon 
satisfying the prerequisites specified in this rule. The temporary 
remote pilot certificate will authorize its holder to operate under 
part 107.

D. Definitions

    The NPRM proposed to define several terms in part 107 including: 
(1) Control station; (2) corrective lenses; (3) unmanned aircraft; (4) 
small unmanned aircraft; and (5) small unmanned aircraft system (small 
UAS).\64\
---------------------------------------------------------------------------

    \64\ The FAA also proposed to create two new crewmember 
positions: (1) Operator; and (2) visual observer. Those positions 
are discussed in sections III.E.1 and III.E.2.b of this preamble.
---------------------------------------------------------------------------

1. Control Station
    The NPRM proposed to define a control station as ``an interface 
used by the operator to control the flight path of the small unmanned 
aircraft.'' The NPRM explained that, unlike a manned aircraft, the 
interface that is used to control the flight path of a small unmanned 
aircraft remains outside of the aircraft. The proposed definition was 
intended to clarify the interface that is considered part of a small 
UAS under part 107.
    NAAA and another commenter agreed with the proposed definition. 
Transport Canada asked the FAA to consider refining this definition by 
adding a definition of ``control link'' to distinguish between command 
and control functions and communication functions. One commenter 
asserted that the proposed definition does not encompass instances in 
which a small UAS's flight path is preprogrammed via waypoints, and the 
interface used by the remote pilot is intended simply to commence 
execution of the program.
    The link between the ground control station and the small unmanned 
aircraft is commonly referred to as the ``command and control link'' or 
``C2.'' When a communication link between the remote pilot and another 
person, such as a visual observer or an air traffic controller, is 
added to C2, it is referred to as ``command, control and 
communications'' or ``C3.'' C2 is an inherent requirement for safe 
operations, even if the small unmanned aircraft flight is completely 
autonomous (i.e., preprogrammed flight operations without further input 
from the remote pilot) because the remote pilot must be

[[Page 42085]]

able to take direct command of the flight in order to exercise his/her 
responsibility for collision avoidance, yielding right of way to other 
aircraft, etc. C3, on the other hand, is only needed if the remote 
pilot is using the ground control station to communicate with another 
person directly involved in the operation, such as a visual observer. 
Because this rule does not require multi-person operations, the 
definition of a ground control station will not include the requirement 
for a communications link.
    Furthermore, as technology advances, the concept and use of C2 and 
C3 could change significantly. Omitting a rigid regulatory definition 
of these terms in this rule will allow them to evolve as technology 
changes.
2. Corrective Lenses
    In connection with the visual-line-of-sight requirements in the 
NPRM, the FAA proposed to define the term ``corrective lenses'' as 
``spectacles or contact lenses.'' The FAA explained that, unlike other 
vision-enhancing devices, spectacles and contact lenses do not restrict 
a user's peripheral vision, and thus could be used to satisfy the 
visual-line-of-sight requirements proposed in the NPRM. The FAA did not 
receive any adverse comments on this proposed definition, and thus 
finalizes the proposed definition of ``corrective lenses'' in this rule 
without change.
3. Unmanned Aircraft
    The NPRM proposed to define ``unmanned aircraft'' as ``an aircraft 
operated without the possibility of direct human intervention from 
within or on the aircraft.'' This proposed definition would codify the 
statutory definition of ``unmanned aircraft'' specified in Public Law 
112-95, section 331(8).
    MAPPS stated that the definition of ``unmanned aircraft'' needs to 
be clarified because the current definition leaves open the possibility 
that paper airplanes, model airplanes, model rockets, and toys could be 
considered unmanned aircraft. The Permanent Editorial Board of the 
Aviators Model Code of Conduct Initiative stated that this definition 
and the definition of small unmanned aircraft may permit infant 
passengers and asked the FAA to amend the definition to categorically 
prohibit the carriage of passengers on an unmanned aircraft.
    The definition of unmanned aircraft as ``an aircraft operated 
without the possibility of direct human intervention from within or on 
the aircraft'' is a statutory definition and, as such, this rule will 
finalize that definition as proposed. In response to MAPPS' comment, as 
discussed in section III.C.5 of this preamble, part 107 will not apply 
to operations governed by part 101. Those operations include model 
aircraft, moored balloons, kites, amateur rockets, and unmanned free 
balloons. With regard to carriage of infants on small unmanned 
aircraft, this concern is addressed by other provisions in this rule 
that prohibit careless or reckless operations that endanger the life of 
another person.
4. Small Unmanned Aircraft
    The NPRM proposed to define ``small unmanned aircraft'' as ``an 
unmanned aircraft weighing less than 55 pounds including everything 
that is on board the aircraft.'' The NPRM noted that Public Law 112-95, 
section 331(6) defines a small unmanned aircraft as ``an unmanned 
aircraft weighing less than 55 pounds.'' However, the NPRM pointed out 
that this statutory definition does not specify whether the 55-pound 
weight limit refers to the total weight of the aircraft at the time of 
takeoff (which would encompass the weight of the aircraft and any 
payload on board) or simply the weight of an empty aircraft. The NPRM 
proposed to define small unmanned aircraft using total takeoff weight 
because: (1) Heavier aircraft generally pose greater amounts of public 
risk in the event of an accident, because they can do more damage to 
people and property on the ground; and (2) this approach would be 
similar to the approach that the FAA has taken with other aircraft, 
such as large aircraft, light-sport aircraft, and small aircraft.
    Commenters including AOPA, ALPA, and the Helicopter Association 
International, supported the proposed definition. The New England 
Chapter of the Association of Unmanned Vehicles International and 
Devens IOP, commenting jointly, pointed out that there are commercial 
applications being developed that will need to exceed 55 pounds. Event 
38 Unmanned Systems stated that rather than segregate small unmanned 
aircraft by total weight, the FAA should use a ``kinetic energy split'' 
that combines weight and speed.
    Several commenters asked that the 55-pound weight limit be lowered. 
Event 38 Unmanned Systems recommended an initial weight restriction of 
10 pounds, with adjustments based on subsequent research. Prioria 
Robotics, Inc. stated that the weight limitation for small unmanned 
aircraft should be less than 25 pounds, and that the definition should 
include a requirement that the aircraft be ``hand-launchable.'' Another 
commenter asked for the weight limit to be reduced to 33 pounds.
    Green Vegans stated that FAA must provide test data on the 
collision impact of a 55-pound UAS, traveling at various speeds, on 
both humans and birds. The advocacy group argued that the public cannot 
make informed comments on the proposed weight limitation without such 
data. The advocacy group also noted that such data would be provided by 
a National Environmental Policy Act (NEPA) Environmental Impact 
Statement, which the group stated the FAA must do. Crew Systems 
similarly opposed the maximum weight limitation, arguing that FAA 
provided no justification for it. The company asserted that a 55-pound 
UAS is large enough to be hazardous when operated in an urban 
environment, even if care is taken. Although it did not expressly 
object to the weight limitation, the United States Ultralight 
Association also expressed concern about the significant damage that a 
50-plus-pound unmanned aircraft could do to light, open-cockpit 
aircraft.
    Other commenters asked the FAA to increase the 55-pound weight 
limit. Consumers Energy Company objected to the definition's proposed 
weight limitation as too light, arguing that a 55-pound weight 
restriction will negatively impact small UAS flight times and the usage 
of alternative fuel sources. Consumers Energy urged the FAA to consider 
fuel loads and to increase the weight restriction to 120 pounds. The 
commenter also suggested that, if the FAA has concerns about safety, it 
could create subcategories under which maximum weight restriction is 
imposed on the fuel load, rather than adopt a blanket weight 
restriction. Several commenters also suggested higher weight limits, 
including: 80 pounds; a range of 30-100 pounds; and 150 pounds. Another 
commenter called the weight restriction ``arbitrary,'' and noted that 
other States have defined small UAS to include unmanned aircraft 
weighing up to 150 kilograms.
    One commenter suggested that the FAA amend the definition of small 
unmanned aircraft to include aircraft weighing exactly 55 pounds. 
Another commenter stated that the definition of ``small unmanned 
aircraft'' must be clarified to account for different types of UAS 
(e.g., fixed-wing, rotor-wing, small, medium, large).
    The definition of ``small unmanned aircraft'' is a statutory 
definition. Specifically, Public Law 112-95, section 331(6) defines a 
small unmanned aircraft as ``an unmanned aircraft weighing less than 55 
pounds.'' Accordingly, this rule will retain the

[[Page 42086]]

statutory definition, which includes 55 pounds as the weight limit for 
a small unmanned aircraft. However, the FAA emphasizes that, as 
discussed in section III.A of this preamble, this rule is merely one 
step of UAS integration into the NAS. As such, the FAA anticipates that 
future rulemakings will integrate larger UAS into the NAS and thus 
enable additional commercial opportunities.
    Several commenters discussed the ambiguity in the statutory 
definition with regard to how the 55-pound weight limit should be 
calculated. The Small UAV Coalition and Federal Airways & Airspace 
supported the inclusion of payload in the weight calculation. 
Conversely, DJI, the Associated General Contractors of America, and 
another commenter questioned whether the 55-pound weight limitation 
should include payload that is carried by the small unmanned aircraft. 
DJI argued that the FAA does not consider the weight of payload in its 
regulations governing the operation of ultralights. Kapture Digital 
Media stated that the 55-pound weight limit should not include the 
weight of the battery.
    As noted in the NPRM, the FAA uses total takeoff weight for 
multiple different types of aircraft, including large aircraft, light-
sport aircraft, and small aircraft.\65\ One of the reasons that the FAA 
uses total takeoff weight in all of these regulations is because in the 
event of a crash, a heavier aircraft can do more damage to people and 
property on the ground than a lighter aircraft. In evaluating this type 
of risk for a small UAS, it is the total mass of the small unmanned 
aircraft that is important; the manner in which that mass is achieved 
is irrelevant. In other words, a 50-pound unmanned aircraft carrying 30 
pounds of payload does not pose a smaller risk than an 80-pound 
unmanned aircraft that is not carrying any payload. As such, this rule 
will retain the proposed inclusion of everything onboard the aircraft 
in the 55-pound weight limit of a small unmanned aircraft.
---------------------------------------------------------------------------

    \65\ See 14 CFR 1.1 (referring to ``takeoff weight'' for large, 
light-sport, and small aircraft in the definitions for those 
aircraft).
---------------------------------------------------------------------------

    The General Aviation Manufacturers Association (GAMA) pointed out 
that, although the FAA typically points to maximum takeoff weight when 
identifying an aircraft's weight and associated mass, the proposed 
definition of small unmanned aircraft does not include the term 
``takeoff.'' As such, GAMA recommended that the FAA modify the 
definition to reference the point of takeoff as follows: ``Small 
unmanned aircraft means an unmanned aircraft weighing less than 55 
pounds including everything that is on board the aircraft on takeoff.'' 
Another commenter stated that the choice of ``on board'' in the 
definition of ``small unmanned aircraft'' will create confusion, 
because these aircraft routinely have ``attached'' external payloads 
because there is little room for internal ``on board'' payloads.
    The FAA agrees with these comments and has modified the proposed 
definition to refer to the total aircraft weight at takeoff and to 
include possible external attachments to the aircraft in the 
calculation of small unmanned aircraft weight.
5. Small Unmanned Aircraft System (Small UAS)
    Finally, the NPRM proposed a definition of ``small unmanned 
aircraft system'' as ``a small unmanned aircraft and its associated 
elements (including communication links and the components that control 
the small unmanned aircraft) that are required for the safe and 
efficient operation of the small unmanned aircraft in the national 
airspace system.'' The NPRM explained that this proposed definition 
would be similar to the statutory definition of UAS specified in Public 
Law 112-95, section 331(9), except that it does not include a ``pilot 
in command'' reference that appears in the statute. The FAA did not 
include the ``pilot in command'' reference in the proposed definition 
of small UAS because that position did not exist under the NPRM. Even 
though the FAA is creating a remote pilot in command position in this 
final rule, the FAA considers adding a reference to that position in 
the small UAS definition as unnecessary.
    AirShip Technologies Group, Inc. (AirShip Technologies) supported 
the proposed definition. Conversely, Transport Canada asked the FAA to 
consider whether it would be better to use the ICAO terminology of 
remotely piloted aircraft system (RPAS) instead of small UAS. Foxtrot 
Consulting, LLC stated that the inclusion of the phrase ``associated 
elements (including communications links and the components that 
control the small unmanned aircraft)'' in the definition of small UAS 
creates a ``regulatory nightmare,'' because it means cellular network 
providers and their infrastructure are considered part of a small UAS. 
The commenter pointed out that small UAS can be controlled via Wi-Fi 
and cellular networks, which opens enormous capabilities to small UAS 
operations. The commenter went on, however, to question whether, as a 
result of the proposed definition, a cellular provider is liable if a 
UAS being controlled through their network causes damage to property, 
serious injury, or death.
    The proposed definition of small UAS is derived from the statutory 
definition of ``unmanned aircraft system'' in Public Law 112-95, Sec.  
331(9). As such, this final rule will codify the proposed definition. 
Because Congress has selected the term ``unmanned aircraft system'' to 
describe this type of a system, the FAA may not use a different term, 
such as RPAS, in this rule.
    With regard to cellular providers, the requirements of this rule 
apply only to the remote pilot, the owner of the small UAS, and people 
who may be involved in the operation of the small UAS. As such, a 
cellular provider whose involvement in the small UAS operation is 
limited to a remote pilot simply using the provider's infrastructure 
would not be in violation of part 107 if something were to go wrong. 
The FAA does not opine on liability issues that are beyond the scope of 
this rule, such as whether the provider may be liable to the remote 
pilot or third parties under tort or contract law.
    The NextGen Air Transportation Program at NC State University and 
another commenter recommended specifically stating that tethered 
powered small UAS are considered small UAS under proposed part 107. In 
response to these comments, the FAA notes that the definition of small 
UAS in this rule includes tethered powered small UAS.
6. Other Definitions
    One commenter asked the FAA to define the term ``aerial 
photography'' in the regulatory text. However, with the exception of 
operations involving the transportation of property, part 107 does not 
contain any requirements specific to the use to which a small UAS is 
put. For example, a small UAS used for aerial photography will be 
subject to the same operating restrictions as a small UAS used for 
bridge inspection, precision agriculture, or utility inspection. 
Because this rule does not contain any requirements specific to aerial 
photography, no definition of the term is necessary.

E. Operating Rules

    As discussed earlier in this preamble (section III.A), instead of a 
single omnibus rulemaking that applies to all small UAS operations, the 
FAA has decided to proceed incrementally and issue a rule governing 
small UAS operations that pose the least amount of risk. Subpart B of 
part 107 will specify the operating constraints of these operations. 
The FAA emphasizes that it

[[Page 42087]]

intends to conduct future rulemaking(s) to incorporate into the NAS 
small UAS operations that pose a greater level of risk than the 
operations that will be permitted by this rule.
1. Remote Pilot in Command
    The NPRM proposed to create a new crewmember position (called 
``operator'') for small UAS operations conducted under part 107. The 
proposed rule would define an operator as a person who manipulates the 
flight controls of a small UAS. The NPRM also proposed prohibiting a 
person from serving as an operator if he or she does not have an 
unmanned aircraft operator certificate with a small UAS rating, which 
would be a new airman certificate created by the proposed rule. 
Finally, the NPRM invited comments as to whether this rule should 
create a pilot in command (PIC) position and whether the PIC should be 
given the power to deviate from FAA regulations in response to an in-
flight emergency.
    For the reasons discussed below, this rule will remove the proposed 
crewmember position of ``operator'' and will instead create a new 
position of ``remote pilot in command.'' The remote pilot in command 
will have the final authority and responsibility for the operation and 
safety of a small UAS operation conducted under part 107. Additionally, 
the remote pilot in command will be required to obtain a remote pilot 
certificate with a small UAS rating. However, an uncertificated person 
will be permitted to manipulate the flight controls of a small UAS as 
long as he or she is directly supervised by a remote pilot in command 
and the remote pilot in command has the ability to immediately take 
direct control of the small unmanned aircraft. Finally, in case of an 
in-flight emergency, the remote pilot in command will be permitted to 
deviate from any rule of part 107 to the extent necessary to meet that 
emergency. A remote pilot in command who exercises this emergency power 
to deviate from the rules of part 107 will be required, upon FAA 
request, to send a written report to the FAA explaining the deviation.
a. Terminology
    The NPRM proposed to create a new crewmember position called 
``operator,'' which would be defined as a person who manipulates the 
flight controls of a small UAS. The NPRM also proposed to create a new 
airman certificate for the operator, which would be called an 
``unmanned aircraft operator certificate with a small UAS rating.'' The 
NPRM noted, however, that the term ``operator'' is already used in 
manned-aircraft operations, and invited comments as to whether this 
term would cause confusion if used in part 107.
    Several commenters noted that using the term ``operator'' in part 
107 could result in confusion. NTSB, ALPA, and TTD pointed out that 
``operator'' is currently used to refer to a business entity and that 
use of that term to refer to a small UAS pilot would be inconsistent 
with existing usage. Transport Canada and several other commenters 
stated that ICAO defines the person manipulating the flight controls of 
a small UAS as a ``remote pilot'' and asked the FAA to use this 
terminology in order to harmonize with ICAO. Transport Canada also 
noted that: (1) Canada uses the same terminology as ICAO; and (2) 
calling an airman certificate issued under part 107 an ``operator 
certificate'' may lead to confusion with FAA regulations in part 119, 
which allow a business entity to obtain an operating certificate to 
transport people and property. ALPA and TTD suggested that the person 
manipulating the controls of the small UAS should be referred to as a 
pilot, asserting that this would be consistent with how the word pilot 
has traditionally been used.
    As pointed out by the commenters, FAA regulations currently use the 
term ``commercial operator'' to refer to a person, other than an air 
carrier, who engages in the transportation of persons or property for 
compensation or hire.\66\ Commercial operators are issued an 
``operating certificate'' under 14 CFR part 119.\67\ Because other FAA 
regulations already use the term ``operator'' to refer to someone other 
than a small UAS pilot under part 107, the FAA agrees with commenters 
that use of the term ``operator'' in this rule could be confusing.
---------------------------------------------------------------------------

    \66\ 14 CFR 1.1 (definition of ``commercial operator'').
    \67\ See 14 CFR 119.5(b).
---------------------------------------------------------------------------

    In considering alternative terminology to replace the term 
``operator,'' the FAA noted that ICAO \68\ and the United Kingdom \69\ 
both use the term ``remote pilot'' to refer to the person manipulating 
the flight controls of a small UAS. Additionally, as pointed out by 
Transport Canada, Canada also uses the term ``remote pilot.'' 
Accordingly, this rule will use the term ``remote pilot'' instead of 
``operator'' in order to harmonize with international terminology. 
Consequently, the FAA has changed the name of the airman certificate 
issued under part 107 to a ``remote pilot certificate with a small UAS 
rating.''
---------------------------------------------------------------------------

    \68\ ICAO Manual on Remotely Piloted Aircraft (draft) Chapter 7 
Personnel Competence.
    \69\ Unmanned Aircraft System Operations in UK Airspace--
Guidance CAP 722.
---------------------------------------------------------------------------

    In addition, as discussed below, this rule will create a new 
crewmember position of ``remote pilot in command.'' The remote pilot in 
command will be a certificated airman and will have the final authority 
and responsibility for the operation and safety of a small UAS 
operation. Because the FAA anticipates that the remote pilot in command 
will often also be the person manipulating the flight controls of a 
small UAS, there is no need to have a separately defined crewmember 
position for the person manipulating the flight controls. Accordingly, 
the proposed definition of ``operator'' has been removed from this 
rule.
b. Remote Pilot in Command
    The current regulations of part 91 create a separate PIC crewmember 
position that has ultimate authority and responsibility for the safety 
of the operation to: (1) Ensure that a single person on board the 
aircraft is accountable for the operation; and (2) provide that person 
with the authority to address issues affecting operational safety.\70\ 
The NPRM proposed to forego this type of position in part 107, but 
invited comments as to whether a separate ``operator in command'' 
position should be created for small UAS operations.
---------------------------------------------------------------------------

    \70\ See 14 CFR 91.3.
---------------------------------------------------------------------------

    Commenters including Aerius Flight, NetMoby, Predesa, and NRECA, 
generally agreed that a separate operator in command designation is not 
necessary for small UAS operations. NBAA commented that since small UAS 
operations will largely be excluded from airspace covered by 
traditional definitions of ``operator'' and ``pilot,'' there is no need 
to create a separate operator in command position for part 107 
operations.
    Other commenters requested that the FAA include a separate 
``operator in command'' position in the final rule similar to the PIC 
position used in manned-aircraft operations. The University of North 
Dakota's John D. Odegard School of Aerospace Sciences pointed out that 
due to a wide variety of system configurations available for small UAS, 
it is possible that one or more flight crew members or sensor stations 
may affect the flight path of the unmanned aircraft. Accordingly, the 
commenter recommended that the term operator-in-command be added and 
defined in the rule to reflect the final authority and responsibility 
for the operation and safety of the flight.

[[Page 42088]]

ArgenTech Solutions, Inc. also recommended the rule address the title 
of operator-in-command and specify the requirements for operator hand-
off of small UAS. Similarly, the Kansas State University UAS Program 
recommended clarification of responsibility in regard to operations 
with multiple operators and noted that creation of an operator-in-
command designation would be an appropriate clarification.
    As discussed below, this rule will allow small UAS to be operated 
by more than one person for purposes such as instruction or crew 
augmentation. As such, the FAA agrees that there needs to be a 
designated crewmember who is responsible for the safe operation of a 
small UAS and has final authority over that operation. Thus, this rule 
will create a new crewmember position of remote pilot in command.
    Just as with manned-aircraft PICs, the remote pilot in command: (1) 
Must be designated as remote pilot in command before or during the 
flight; and (2) will have the final authority and responsibility for 
the operation. In light of this change, the FAA has amended the 
regulatory text of part 107 to transfer the duties that the NPRM 
proposed to impose on the operator to the remote pilot in command and, 
where appropriate, to the person manipulating the flight controls of 
the small UAS. The remote pilot in command will also be generally 
responsible for ensuring that the small UAS operation complies with all 
applicable FAA regulations.
    Turning to the comments about operator hand-off, a person 
manipulating the flight controls of a small UAS may be augmented by 
another person during operation. Specifically, the person manipulating 
the flight controls may safely transfer the controls to another person 
during flight as long as the transfer does not violate the operational 
provisions of part 107 and a remote pilot in command is designated. For 
example, the flight controls of a small UAS may not be transferred if 
the process of transferring the controls would cause the unmanned 
aircraft to enter Class B airspace without ATC permission.
    The FAA emphasizes that, as discussed in section III.E.2.a of this 
preamble, at any point throughout the entire flight of the small 
unmanned aircraft, the remote pilot in command and the person 
manipulating the flight controls of the small UAS must both have the 
ability to see the small unmanned aircraft unaided by any device other 
than corrective lenses. Therefore, the person manipulating the flight 
controls must be able to see the small unmanned aircraft at the time of 
the handoff sufficiently well to satisfy the visual-line-of-sight 
requirements of this rule. The FAA also emphasizes that Sec.  107.19(c) 
requires the remote pilot in command to ensure that the small unmanned 
aircraft will not pose an undue hazard to other aircraft, people, or 
property on the ground if positive control is lost. Thus, the remote 
pilot in command must ensure that the technology and method used for 
conducting the handoff does not unduly increase the risk associated 
with a possible loss of positive control.
c. Airman Certification Requirement
    The NPRM proposed to require that each person manipulating the 
flight controls of a small UAS obtain a part 107 airman certificate. 
The FAA's statute requires a person serving as an airman to obtain an 
airman certificate. Because the person manipulating the flight controls 
of a small UAS would be an airman under the crewmember framework 
proposed in the NPRM, that person would statutorily be required to 
obtain an airman certificate. The NPRM also proposed to create a new 
airman certificate to be issued for small UAS operations in place of 
the existing part 61 pilot certificates that focus on manned-aircraft 
operations.
    Many commenters, including Air Tractor, Inc., Ag Info Tech, LLC, 
and the American Fuel & Petrochemicals Manufacturers, supported the 
proposal to require the person manipulating the flight controls of a 
small UAS to obtain a part 107 airman certificate. Commenters generally 
supported this provision because it was viewed as an economical means 
to achieve the rule's safety objective. Commenters including Modovolate 
and the National Association of Broadcasters stated the proposed 
approach of adding a new category of airmen provides a good balance 
with the need to verify operator qualifications without unduly 
burdening the operators.
    Several commenters disagreed with the proposed airman certification 
requirement. Airship Technologies argued that an airman certificate is 
unnecessary to operate a small UAS and asserted that the proposed 
regulatory framework is too complex, costly, and burdensome for both 
the public and the FAA. Airship Technologies suggested that the 
operator should instead depend upon the product manufacturer's training 
in the form of classes and documented materials. Another commenter 
asserted that processing certificate applications will create a backlog 
for the FAA. Yet another commenter suggested a self-certification 
procedure in lieu of a required airman certificate asserting that the 
proposed certificate would offer little benefit to the operators or the 
NAS.
    Commenters from the educational and academic community, including 
Princeton University and the Council on Government Relations, suggested 
that a remote-pilot-in-command position should allow a faculty member 
acting as a remote pilot in command to oversee student operators 
utilizing small UAS as part of a course or research activity. Princeton 
University expressed concern over requiring the person manipulating the 
flight controls of a small UAS to hold an airman certificate, citing 
complications in the academic environment. Princeton provided scenarios 
where students would use a small UAS in projects as part of their 
academic courses and the challenges involved in obtaining an operator 
certificate prior to testing their project. To resolve these concerns, 
Princeton recommended that universities be able to obtain an 
``Educational UAS License,'' which would give them the authority to 
designate an ``Operator-in-Command'' and administer the knowledge test 
to appropriate faculty and staff.
    The FAA agrees with the majority of comments that an airman 
certificate to operate a small UAS should be required unless directly 
supervised by a remote pilot in command. This is in fact a statutory 
requirement, as 49 U.S.C. 44711(a)(2)(A) prohibits a person from 
serving in any capacity as an airman with respect to a civil aircraft 
used or intended to be used in air commerce ``without an airman 
certificate authorizing the airman to serve in the capacity for which 
the certificate was issued.'' The FAA's statute defines an airman to 
include an individual ``in command, or as pilot, mechanic, or member of 
the crew, who navigates aircraft when under way.'' 49 U.S.C. 
40102(a)(8)(A). Because the remote pilot in command and the person 
manipulating the flight controls of a small UAS without supervision are 
both pilots and members of the crew who navigate the small unmanned 
aircraft when it is under way, these crewmembers are statutorily 
required to have an airman certificate. The FAA therefore maintains the 
requirement that a person manipulating the flight controls of a small 
UAS without supervision must obtain a remote pilot certificate with a 
small UAS rating and this rule will also extend this requirement to the 
remote pilot in command.
    However, the FAA acknowledges the educational concerns that have 
been raised by the academic commenters and

[[Page 42089]]

notes that in the manned-aircraft context, an uncertificated person can 
manipulate the flight controls of an aircraft in flight as long as he 
or she is directly supervised. An individual whose manipulation of the 
flight controls is closely supervised by a certificated airman is not 
in command and is not a pilot or member of the crew because his or her 
presence is not necessary to fly the aircraft. Instead, the 
certificated airman who is providing the supervision is exercising the 
judgment that is normally expected of a pilot and that airman could 
simply fly the aircraft by him or herself instead. Thus, an individual 
who is directly supervised by a certificated airman is not an 
``airman'' within the meaning of section 40102(a)(8)(A) and is 
therefore not statutorily required to obtain an airman certificate.
    To further enable the educational opportunities identified by the 
commenters, this rule will allow the remote pilot in command (who will 
be a certificated airman) to supervise another person's manipulation of 
a small UAS's flight controls. A person who receives this type of 
supervision from the remote pilot in command will not be required to 
obtain a remote pilot certificate to manipulate the controls of a small 
UAS as long as the remote pilot in command possesses the ability to 
immediately take direct control of the small unmanned aircraft. This 
ability is necessary to ensure that the remote pilot in command can 
quickly address any mistakes that are made by an uncertificated person 
operating the flight controls before those mistakes create a safety 
hazard.
    The ability for the remote pilot in command to immediately take 
over the flight controls could be achieved by using a number of 
different methods. For example, the operation could involve a ``buddy 
box'' type system that uses two control stations: One for the person 
manipulating the flight controls and one for the remote pilot in 
command that allows the remote pilot in command to override the other 
control station and immediately take direct control of the small 
unmanned aircraft. Another method could involve the remote pilot in 
command standing close enough to the person manipulating the flight 
controls so as to be able to physically take over the control station 
from the other person. A third method could employ the use of an 
automation system whereby the remote pilot in command could immediately 
engage that system to put the small unmanned aircraft in a pre-
programmed ``safe'' mode (such as in a hover, in a holding pattern, or 
``return home'').
    The FAA also emphasizes that, as discussed in section III.E.3.b.ii 
of this preamble, part 107 will not allow a person to act as a remote 
pilot in command in the operation of more than one small unmanned 
aircraft at the same time. In the educational context, this means that 
a faculty member who is acting as a remote pilot in command could not 
directly supervise the simultaneous operation of more than one small 
unmanned aircraft. The faculty member could, however, instruct a class 
of students in a manner that does not involve the simultaneous 
operation of multiple small unmanned aircraft. For example, a class of 
students could operate a single small unmanned aircraft with students 
passing control of the aircraft to each other under the supervision of 
a faculty member who is a remote pilot in command. An academic 
institution could also require a certain number of students to obtain a 
remote pilot certificate prior to beginning a class involving small UAS 
use in order to increase the number of people who would be available to 
act as a remote pilot in command.
    Several commenters, including the Utah Governor's Office of 
Economic Development and Textron Systems, expressed the view that there 
should be different small UAS certifications for different altitudes, 
locations, aircraft sizes, and applications.
    The FAA recognizes there are differences between the various small 
UAS operations as articulated by the commenters. However, the key 
knowledge areas that will be tested on the initial and recurrent 
knowledge tests will be applicable to all small UAS operations that 
could be conducted under part 107 regardless of the altitude, location, 
size, or application of the small UAS. Requiring only a single remote 
pilot certificate with a small UAS rating will give the remote pilot in 
command the flexibility to operate various small UAS within the 
parameters permitted by part 107 without any additional FAA-required 
training or testing.
    Many commenters, including ALPA, NAAA, and TTD, argued that small 
UAS operators should be required to have a part 61 pilot certificate to 
operate in the NAS. These commenters remarked that operating in the NAS 
is a great responsibility, and that all persons operating in the NAS 
should be aware of these responsibilities.
    ALPA, TTD, Schertz Aerial Services, Inc., and many other commenters 
recommended that the FAA require a part 61 commercial pilot 
certificate. TTD stated that the standards put in place must ensure one 
level of safety for all who operate in the NAS, and if small UAS 
operators are operating for compensation or hire in shared airspace 
with manned aircraft, then they too should hold a commercial pilot 
certificate. Schertz Aerial Services added that small UAS pose a risk 
of collision or interference with manned aircraft and that UAS 
operators are not putting their own life at risk when flying. Schertz 
Aerial Services argued that the FAA should not carve out exceptions to 
the well-established requirement of commercial airman certificates for 
commercial operations.
    NAAA and several other commenters suggested that, in place of a 
part 61 commercial pilot certificate, the FAA should require small UAS 
pilots to hold a part 61 private pilot certificate. NAAA stated that 
this position is a change from its section 333 exemption comments. 
After further analysis NAAA determined that requiring a commercial 
pilot certificate is not necessary and a private pilot certificate with 
a UAS knowledge and skills test rating would be sufficient to operate a 
UAS safely. Another commenter asserted that a UAS pilot should be 
required to have a part 61 student pilot certificate.
    Many other commenters, including AIA, AOPA, and the National 
Association of Realtors, supported having a separate part 107 airman 
certificate. Commenters including the National Association of Wheat 
Growers, and the American Fuel & Petrochemicals Association stated that 
requiring a part 61 pilot certificate would be overly burdensome and 
pointed out that many of the knowledge areas and skills required for 
manned aircraft do not apply to the operation of unmanned aircraft.
    The FAA agrees with the commenters who pointed out that the skills 
necessary to obtain a part 61 pilot certificate would not equip the 
remote pilot in command with all of the aeronautical skills necessary 
to safely operate a small UAS and would instead impose a significant 
cost burden without a corresponding safety benefit. Specifically, 
manned-aircraft training may not prepare a pilot to deal with UAS-
specific issues such as how to maintain visual line of sight of the 
unmanned aircraft or how to respond when signal to the unmanned 
aircraft is lost.
    Required training for a part 61 pilot certificate would, however, 
impose the burden of training on areas of knowledge that are 
inapplicable to small UAS operations. For example, unlike a manned-
aircraft pilot, a remote pilot in

[[Page 42090]]

command does not need to know how to operate the flight controls of a 
manned aircraft. Similarly, the remote pilot in command does not need 
to be able to takeoff, land, or maneuver a manned aircraft. While these 
skills are critical to the safe operation of manned aircraft and are 
thus required for a part 61 pilot certificate, they are not typically 
necessary for the safe operation of a small UAS. Because requiring a 
part 61 pilot certificate would not ensure that certificate applicants 
learn all areas of knowledge specific to small UAS operations while at 
the same time requiring those applicants to learn areas of knowledge 
that are not necessary to safely operate a small UAS, this rule will 
not require a remote pilot in command to obtain a part 61 pilot 
certificate.
    Several commenters stated that despite the language of 49 U.S.C. 
44711(a)(2)(A), the FAA should not require an airman certificate for 
small UAS operations conducted in rural areas on private property, and 
at low altitudes. One commenter stated that there is no statutory or 
regulatory requirement that a small UAS operator must be an airman 
given that part 103 operators need not have an airman certificate yet 
they fly in the NAS. Another commenter stated that the FAA was overly 
broad in its definitions of aircraft and air commerce. The commenter 
claimed the proposal ignored the flexibility FAA exercised in creating 
the regulations of 14 CFR part 101 regulating amateur rockets, kites, 
and unmanned free balloons. The commenter added that current part 101 
regulations for these devices are safety-based and they appropriately 
make no artificial distinction between commercial and non-commercial 
use.
    Several other commenters disagreed with the proposed certificate 
requirements, claiming they should not be applicable to hobbyists.
    In response to the comment arguing that the FAA was overly broad in 
its definitions of aircraft and air commerce, the FAA notes that both 
terms are defined by statute. As discussed earlier, the NTSB has held 
that the statutory definition of ``aircraft'' is ``clear on [its] 
face'' and that definition encompasses UAS.\71\ The NTSB has also held 
that, based on the statutory definition of air commerce, ``any use of 
an aircraft for purpose of flight constitutes air commerce.'' \72\
---------------------------------------------------------------------------

    \71\ Administrator v. Pirker, at 4-5, 8-12. A copy of the Pirker 
decision can be found at: http://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5730.pdf.
    \72\ Administrator v. Barrows, 7 NTSB 5, 8-9 (1990).
---------------------------------------------------------------------------

    Turning to the comments arguing that certain UAS operations should 
be exempt from airman certification, as discussed earlier, it is a 
statutory requirement, under 49 U.S.C. 44711(a)(2)(A), that a person 
may not serve as an airman with respect to a civil aircraft used or 
intended to be used in air commerce without an airman certificate. The 
statute does not distinguish between different types of operations, 
such as those suggested by the commenters. Accordingly, regardless of 
where and how a small UAS operation is conducted, this rule will 
require the person manipulating the flight controls of a small UAS to 
hold a remote pilot certificate unless he or she is directly supervised 
by a certificated remote pilot in command who has the ability to 
immediately take direct control of the small unmanned aircraft. 
However, as discussed in section III.C.4 of this preamble, operations 
of model aircraft as a hobby or for recreational use under the 
provisions of section 336 will not be subject to part 107. With regard 
to parts 101 and 103, those regulations are beyond the scope of this 
rule.
    The Flight School Association of North America and Event 38 
Unmanned Systems suggested that the airman certificate should include 
the operator's information and a color photo. Under this rule, the FAA 
will issue the same type of pilot certificate for the remote pilot in 
command as it does for all other airmen. The airman's specific 
information will be listed along with the date of issuance. At this 
time, the FAA does not issue airman certificates with a photo; however 
the FAA is addressing that issue through a separate rulemaking effort.
    Event 38 Unmanned Systems suggested that the FAA create a database 
of registered airmen, but limit accessibility to FAA and law 
enforcement. NetMoby suggested allowing the public to access the 
database so they may confirm a person flying a small UAS in their 
vicinity is authorized to do so and assist in enforcement. 
Additionally, NetMoby suggested that the FAA use the current airman 
certificate database as the template for its suggested database.
    The FAA currently maintains an airman certification database that 
permits the public to search or download through its public Web site. 
This information includes name, address, and certificates and ratings 
held by the certificate holder. The agency will issue remote pilot 
certificates in accordance with its existing processes for issuing 
airman certificates and the public will be able to search the airman 
certification database for those who hold a remote pilot certificate. 
The certificate holder may opt to request their address not be 
published on the public Web site.\73\
---------------------------------------------------------------------------

    \73\ http://www.faa.gov/licenses_certificates/airmen_certification/change_releasability/.
---------------------------------------------------------------------------

    The University of North Dakota John D. Odegard School of Aerospace 
Sciences recommended that the FAA remove the ``small UAS rating'' from 
a part 107 airman certificate. The commenter stated that an additional 
small UAS rating is redundant because part 107 will apply only to small 
UAS operations.
    As discussed in section III.A of this preamble, this rule is only 
one step of the FAA's broader effort to fully integrate all UAS 
operations into the NAS. Future agency actions are anticipated to 
integrate larger and more complex UAS operations into the NAS and 
integrating those operations may require the creation of additional 
UAS-specific airman certificate ratings. To accommodate these future 
actions, the FAA will retain the small UAS rating.
    Textron Systems recommended establishing a small UAS certificate 
with appropriate category ratings (e.g., rotorcraft or airplane) which 
would require documentation of aeronautical experience and a practical 
test prior to issuance. Textron stated the skills and knowledge 
required to operate unmanned rotorcraft and unmanned airplanes are 
substantially different during launch, semi-autonomous missions, and 
recovery, and therefore there should be a difference indicated on the 
certificate.
    The category and class designations used for part 61 pilot 
certificates stem from the airworthiness certification designations 
given on the type certificate data sheet (TCDS) when an aircraft type 
becomes certificated. The TCDS identifies the airworthiness standards 
that a specific aircraft has met as those standards differ for 
different types of aircraft. However, as discussed in section III.J.3 
of this preamble, small UAS operating under part 107 will not be 
required to obtain an airworthiness certificate. As such, there will be 
no airworthiness standards or a TCDS that will be issued for every 
small UAS design, and a category designation would not be workable 
under part 107.
    One commenter recommended that the FAA require that the remote 
pilot certificate be displayed on a name badge, lanyard, or armband 
during a small UAS operation in case the remote pilot in command is 
approached or questioned about authorization for the activity.

[[Page 42091]]

    The FAA emphasizes that Sec.  107.7(a)(1) will require the remote 
pilot certificate holder to, upon request, make his or her remote pilot 
certificate available to the Administrator. This rule will not specify 
the method by which the certificate holder stores and displays his or 
her certificate, but whatever method is used, the certificate holder 
must provide the certificate to the FAA upon request.
d. Emergency Powers of a Remote Pilot in Command
    In case of an in-flight emergency, the existing regulations in 14 
CFR 91.3 give a PIC the power to deviate from the applicable FAA 
regulations to the extent necessary to respond to that emergency.\74\ A 
PIC who exercises this power must provide a written report of the 
deviation to the FAA if requested to do so by the agency.\75\ The NPRM 
proposed to not provide emergency powers to a small UAS operator 
because a small unmanned aircraft is highly maneuverable and much 
easier to land than a manned aircraft. Thus, the NPRM posited that in 
an emergency situation, an operator should be able to promptly land the 
small unmanned aircraft without needing to deviate from any part 107 
regulations. The NPRM invited comments as to whether a small UAS remote 
pilot in command should be permitted to exercise emergency powers 
similar to those available to a PIC under Sec.  91.3.
---------------------------------------------------------------------------

    \74\ 14 CFR 91.3(b).
    \75\ Id. Sec.  91.3(b).
---------------------------------------------------------------------------

    Several commenters including AUVSI, AIA, and Trimble Navigation, 
supported allowing small UAS operators to exercise emergency powers in 
certain circumstances. Prioria provided examples where a small UAS may 
need to violate the proposed 500-foot altitude limit and the visual-
line-of-sight requirement in order to avoid a collision with a manned 
aircraft or remove an uncontrollable small unmanned aircraft from the 
NAS. Another commenter provided an example of a situation where the 
only viable option to prevent a mid-air collision would violate the 
prohibition on operations over people (as a result of any lateral 
movement by the UAS) or the various operational restrictions in Sec.  
107.51 (as a result of any vertical movement by the UAS). The Permanent 
Editorial Board of the Aviators Model Code of Conduct Initiative noted 
that there are scenarios where unauthorized small UAS penetration of 
controlled airspace may be required to avoid an accident, and proposed 
that the FAA authorize small UAS operators to penetrate controlled 
airspace to the extent necessary to avoid (at least) personal injury or 
death.
    One commenter said small UAS operators should be permitted to 
exercise emergency powers, but only to prevent serious injury, death, 
or a mid-air collision. Southern Company and Trimble recommended 
permitting UAS operators to deviate from FAA regulations in emergencies 
to mitigate injury, damage, or risk. Southern Company argued that by 
not extending emergency deviation authority to UAS operators, the FAA 
could be forcing a UAS operator to choose between deviating from FAA 
regulations and ensuring safety.
    Several commenters, including Skycatch, Clayco, and AUVSI, 
specifically recommended revising proposed Sec.  107.19 to be 
consistent with 14 CFR 91.3--i.e., allow an operator to deviate from 
any rule of part 107 to the extent required in an emergency requiring 
immediate action, and require, upon the request of the Administrator, 
the operator to submit a written report of that deviation. Textron 
Systems said that 14 CFR 91.3 should apply to UAS, because an unmanned 
aircraft is considered an aircraft according to 49 U.S.C. 40102(a)(6). 
AIA said the provisions and intent of Sec.  91.3 should apply to UAS.
    Conversely, NBAA, Predesa, Planehook, and another commenter 
supported the FAA's proposal not to provide a remote pilot with the 
emergency powers available to a PIC under Sec.  91.3(b). NBAA and 
Predesa concurred with the FAA's proposal but did not provide any 
additional justification. Planehook cited Articles 28 and 8 of the 
Convention on International Civil Aviation, which the commenter said 
creates the basis for nations to grant emergency powers to the PIC of 
an aircraft in distress, and Article 8, which the commenter said states 
that each contracting State undertakes to ensure that the flight of 
such aircraft without a pilot in regions open to civil aircraft shall 
be controlled so as to obviate danger to civil aircraft. Planehook 
contended that the granting of emergency powers to operators of 
unmanned aircraft would violate this existing international agreement. 
One commenter argued that until UAS are able to communicate, operate 
accurately in controlled airspace, follow in-flight restrictions and 
spacing requirements, and fly specific altitudes and routes, emergency 
powers are unnecessary.
    The FAA agrees with the commenters who pointed out that there are 
emergency scenarios in which a remote pilot may need to deviate from 
certain provisions of part 107, such as altitude and visual line of 
sight, to avoid an unexpected and unforeseen collision with a manned 
aircraft or a person on the ground. The FAA also agrees that in certain 
emergency situations it may be safer to deviate from one or more 
operational requirements of part 107 (e.g., regarding altitude or 
controlled airspace) than attempt to land the small unmanned aircraft 
immediately. For example, if a manned aircraft approaches the small 
unmanned aircraft from below, the small unmanned aircraft may be unable 
to immediately descend and land without risking a collision.
    Accordingly, during an in-flight emergency, this rule will allow 
the remote pilot in command to deviate from the provisions of part 107 
to the extent necessary to respond to that emergency. As the FAA 
previously pointed out with regard to its emergency regulations, ``the 
plain-meaning dictionary definition of an emergency is an unexpected 
and unforeseen serious occurrence or situation that requires urgent, 
prompt action.'' \76\ Just as it does with other FAA regulations, this 
plain meaning will govern the agency's understanding of what 
constitutes an emergency for part 107 purposes.
---------------------------------------------------------------------------

    \76\ Letter to George K. Shaefer from Donald Byrne, Assistant 
Chief Counsel, Regulations Division (April 16, 1993).
---------------------------------------------------------------------------

    Additionally, because part 107 will allow a deviation only during 
an in-flight emergency, this deviation cannot be taken for situations 
that were expected or foreseen prior to the takeoff of the small 
unmanned aircraft. If a remote pilot in command expects or foresees an 
emergency situation prior to aircraft takeoff, then the remote pilot in 
command must delay or cancel takeoff or otherwise alter the parameters 
of the operation to the extent necessary to ensure full compliance with 
part 107.
    The FAA also emphasizes that the remote pilot in command must 
always prioritize the safety of human life above all other 
considerations. As such, the remote pilot in command may not endanger 
human life in order to save the small unmanned aircraft. To the 
contrary, the remote pilot in command is expected to sacrifice the 
small unmanned aircraft if it begins to pose a danger to human life.
    The FAA further agrees with (and has included in this rule) the 
recommendation that, just like Sec.  91.3, the remote pilot in command 
must, upon FAA request, submit a report to the FAA if he or she has 
exercised his or her emergency powers. This report must provide a 
detailed explanation of

[[Page 42092]]

what happened. This requirement will enable FAA oversight over the 
exercise of emergency powers by giving the agency a method to better 
understand the circumstances and reasons that an individual remote 
pilot in command had for deviating from part 107.
    The FAA disagrees with the comment arguing that granting emergency 
powers to a remote pilot in command would violate U.S. international 
obligations. The FAA notes that Article 28 of the Convention of 
International Civil Aviation, which was the provision cited by the 
commenter, does not address the granting of emergency powers to remote 
pilots of unmanned aircraft. Article 8 of that Convention, which 
governs ``Pilotless aircraft,'' states that:
    ``No aircraft capable of being flown without a pilot shall be flown 
without a pilot over the territory of a contracting State without 
special authorization by that State and in accordance with the terms of 
such authorization. Each contracting State undertakes to insure that 
the flight of such aircraft without a pilot in regions open to civil 
aircraft shall be so controlled as to obviate danger to civil 
aircraft.''
    The plain language of Article 8 does not prohibit a contracting 
State from giving emergency powers to a remote pilot in command 
operating within that State. Because neither Article 8 nor any other 
provision of the Convention of International Civil Aviation prohibits 
the granting of emergency powers to a remote pilot in command, this 
approach will not violate U.S. international obligations.
    Several commenters addressed the issue of proper emergency training 
for small UAS operators. One commenter said that if small UAS operators 
have passed a reasonable operator license exam, they can indeed be 
trusted to behave well in an emergency situation. The NJIT Working 
Group said that remote pilots need to be properly trained so they will 
better understand what constitutes an emergency. Pointing to the NPRM's 
discussion of training small UAS pilots on emergency procedures, ALPA 
concurred with the need for training and recommended it include 
considerations in the exercise of emergency authority, however remote 
the likelihood of emergency may be.
    The FAA concurs with commenters' points that small UAS pilots must 
be proficient in emergency procedures and the proper exercise of 
emergency authority. That is why, as discussed in section III.F.2.j of 
this preamble, emergency procedures and emergency authority will be 
tested on the initial and recurrent knowledge tests. Thus, in order to 
pass an initial knowledge test and obtain a remote pilot certificate, 
applicants for a remote pilot certificate will need to acquire 
proficiency in these areas of knowledge. UAS-specific exercises of 
emergency procedures and authority will also be included in the 
training course that part 61 pilot certificate \77\ holders will be 
able to take instead of the initial and recurrent knowledge tests.
---------------------------------------------------------------------------

    \77\ For the purposes of this rule, references to ``part 61 
pilot certificate holders'' specifically refer to holders of pilot 
certificates other than student pilot certificates, which include 
sport pilot, recreational pilot, private pilot, commercial pilot and 
air transport pilot certificates.
---------------------------------------------------------------------------

    One commenter recommended that the FAA conduct further analysis 
before providing a small UAS pilot with emergency powers in the final 
rule. The FAA disagrees. Emergency powers have been a longstanding 
feature in FAA regulations without an adverse effect on safety because 
they allow the PIC to respond to an emergency situation in a context-
specific manner.\78\ As discussed earlier in this section, deviating 
from certain operational requirements may, at times, be unavoidable in 
order to minimize risk to other people.
---------------------------------------------------------------------------

    \78\ See, e.g., 14 CFR 91.3, 121.557, 121.559, 135.19.
---------------------------------------------------------------------------

    Two commenters suggested that the FAA prescribe specific methods to 
respond to an emergency situation. One commenter stated that lost link 
is an emergency and should be declared to ATC or on Unicom to notify 
other air traffic. Another commenter similarly said small UAS operators 
should be required to send out a distress signal to aircraft within the 
vicinity if there is signal loss or other operational failures.
    The FAA does not mandate a specific response to an emergency, as 
the safest response to an emergency situation may vary based on the 
surrounding context. For example, the safest response to an emergency 
situation in a rural area may differ from the safest response to the 
same situation in an urban area. As such, the FAA will not limit the 
remote pilot in command's ability to respond to an emergency situation 
in a context-appropriate manner. Rather, a remote pilot in command is 
permitted to respond as necessary to resolve the urgent situation. 
There is neither a requirement nor a prohibition from declaring an 
emergency, either by radio communication or by other means, if doing so 
is appropriate under the circumstances. For example, in a lost-link 
scenario, the remote pilot in command may declare an emergency if it 
appears that the small unmanned aircraft may hit a person on the 
ground. Conversely, lost link may not be an emergency if there are no 
people or manned aircraft near the area of operation.
    The FAA also disagrees with the commenter who suggested that the 
remote pilot in command must be required to send out a distress signal 
if there is signal loss or other operational failures. Due to the 
limited operational capabilities of small UAS, an operation failure or 
signal loss may not necessarily constitute a hazard to persons or 
property.
2. See-and-Avoid and Visibility Requirements
    To ensure that the person piloting the small UAS can safely see and 
avoid other aircraft and people and property on the ground, the NPRM 
proposed that small unmanned aircraft: (1) May only be operated within 
visual line of sight; (2) must yield right of way to all other 
aircraft; (3) may only be operated between the hours of sunrise and 
sunset; and (4) must meet minimum weather and visibility requirements.
a. Visual Line of Sight
    Currently, 14 CFR 91.113(b) imposes a generally applicable 
requirement that, during flight, ``vigilance shall be maintained by 
each person operating an aircraft so as to see and avoid other 
aircraft.'' This see-and-avoid requirement is at the heart of the FAA's 
regulatory structure, mitigating the risk of aircraft colliding in 
midair. This requirement is currently satisfied in manned-aircraft 
operations by a pilot on board the manned aircraft looking out from 
inside the aircraft to see whether other aircraft are on a collision 
course with the pilot's aircraft. However, the person controlling the 
small UAS cannot see other aircraft in the same manner because he or 
she is not inside the aircraft. That is why Public Law 112-95, section 
333(b)(1) requires the FAA to consider, as a critical factor in this 
rulemaking, whether a small UAS operation is conducted ``within visual 
line of sight.''
    To address this issue, the NPRM proposed that the operator of the 
small UAS must always be capable of maintaining visual line of sight of 
the small unmanned aircraft unaided by any technology other than 
glasses or contact lenses. The NPRM also proposed creating a new 
position of visual observer to assist the operator in maintaining 
visual line of sight. Under that proposal, if a visual observer is used 
in the operation, then the visual observer could watch the small 
unmanned aircraft instead of the operator. However, if a visual 
observer was not used in the operation, then the operator would have to 
exercise his or

[[Page 42093]]

her visual-line-of-sight capability to watch the small unmanned 
aircraft.
    As proposed in the NPRM, the operator or visual observer would have 
to be able to see the small unmanned aircraft throughout the entire 
flight in order to: (1) Know the unmanned aircraft's location; (2) 
determine the unmanned aircraft's attitude, altitude, and direction; 
(3) observe the airspace for other air traffic or hazards; and (4) 
determine that the unmanned aircraft does not endanger the life or 
property of another. The NPRM also proposed that even if a visual 
observer is used, at all times during flight, the small unmanned 
aircraft must remain close enough to the operator for the operator to 
be capable of seeing the aircraft with vision unaided by any device 
other than corrective lenses.
    For the reasons discussed below, this rule will make three changes 
to the NPRM visual-line-of-sight framework but will otherwise finalize 
it as proposed. First, because of the change in the small UAS 
crewmember framework (discussed in the previous section of this 
preamble), this rule will replace the operator with the person 
manipulating the flight controls of the small UAS and the remote pilot 
in command, who in many instances will be the same person. Second, this 
rule will make clarifying amendments to the regulatory text. Third, 
this rule will make the visual-line-of-sight requirement waivable.
    A number of commenters expressed concern about whether the visual-
line-of-sight framework proposed in the NPRM would sufficiently 
mitigate risk. Foxtrot Consulting, the Air Medical Operators 
Association, the Professional Helicopter Pilots Association, and 
several individuals asserted that the unaided human eye is not adequate 
to see and avoid other aircraft. Additionally, these commenters argued 
that the small unmanned aircraft will be too small to be seen by a 
manned-aircraft pilot, and, with no lighting requirement, the unmanned 
aircraft may be all but invisible, particularly in minimum visual-
flight-rules (VFR) conditions.
    Similarly, commenters, including A4A and several individuals, 
questioned whether small UAS remote pilots would be capable of 
perceiving potential conflicts and responsibly complying with the 
principle of ``see and avoid.'' These commenters asserted that since 
small UAS are unmanned, they are inherently unable to comply with 
current ``see and avoid'' requirements of 14 CFR 91.113(b) in visual 
flight conditions. The commenters argued that a remote pilot may not 
have sufficient perceptual accuracy to determine whether or not a small 
unmanned aircraft is on a collision course with another aircraft.
    The Human Factors and Ergonomics Society suggested that the FAA 
conduct a systematic, scientific study of factors that affect an 
observer's ability to estimate altitude and airspeed. A joint comment 
from Skycatch, Clayco, AECOM, and DPR Construction suggested that 
rather than relying merely on an operator's eyesight, the FAA should 
employ a risk-based approach to allowing operations.
    The FAA recognizes that one of the issues with small UAS is that a 
person on the ground cannot see and avoid other aircraft in the same 
manner as a pilot who is inside a manned aircraft. The FAA also agrees 
that due to relative size of aircraft, a remote pilot will most likely 
be able to see and avoid a manned aircraft before the manned-aircraft 
pilot will see the small UAS. This issue is not unique to small UAS; 
manned vehicles currently in the NAS range from a few hundred pounds to 
1.4 million pounds and pilots have similar challenges regarding see-
and-avoid. The FAA has mitigated the risk in this rule through 
operational parameters that reduce the risk of a midair collision. 
Because of the limits on their access to airspace that is controlled or 
at higher altitudes, small unmanned aircraft will avoid busy flight 
paths and are unlikely to encounter high-speed aircraft that would be 
difficult for the remote pilot to see-and-avoid. Additionally, as 
discussed below, this rule will also specify minimum requirements for 
weather and visibility to maximize the remote pilot's ability to see 
incoming manned aircraft and avoid a collision with those aircraft.
    The FAA disagrees with the notion that remote pilots operating 
under the visual-line-of-sight framework of this rule will be incapable 
of perceiving potential conflicts with other aircraft. In many cases, 
the remote pilot's perspective from the ground may be better than the 
perspective of a pilot onboard an aircraft because the remote pilot is 
not confined to a cockpit with vision obscured by the fuselage or 
flight control surfaces. The remote pilot is thus able to observe 
airspace 360[deg] around the unmanned aircraft, including airspace 
above and below. Thus, the person maintaining visual line of sight will 
be able to see potential conflicts with manned aircraft. Furthermore, 
as discussed below, this rule will require the small unmanned aircraft 
to always yield the right of way to other users of the NAS.
    Several commenters, including the News Media Coalition, NAMIC, and 
Drone Labs, LLC objected to the proposed limitation that visual line of 
sight must be maintained unaided by any technology other than 
corrective lenses. These commenters suggested that the rule allow the 
use of first-person-view (FPV) technology, arguing that available 
technologies have advanced to the point that operators can use FPV to 
meet or exceed the visual-line-of-sight requirements proposed in the 
NPRM. United Parcel Service (UPS) asserted that FPV technology has been 
safely and effectively used in the UAS hobbyist community for many 
years.
    The Drone User Group Network stated that FPV operations should be 
permitted with mandatory use of a spotter. Predesa said that a wearable 
heads-up display that combines the FPV from the small UAS and a wider-
angle view from a ground camera located near the operator may provide 
the same risk mitigation as that afforded by the visual observer. The 
University of Washington and a joint submission by the State of Nevada 
Governor's Office of Economic Development, the Nevada Institute for 
Autonomous Systems, and the Nevada FAA-designated UAS Test Site said 
that current FPV technologies offer a wider field of vision than the 
human eye. DJI stated that existing technology already provides 
superior orienting abilities over visual observers. One individual 
referenced a 2004 test conducted by NASA that indicated that FPV 
cameras mounted on pan-tilt gimbals can be used to scan virtually the 
entire airspace. This commenter also acknowledged FPV limitations ``. . 
. such as the field-of-view of the camera (too wide provides less 
detail, too narrow limits situational awareness), total field-of-
regard, clarity, and range of the transmitted video.''
    Some commenters, including the University of California, the 
National Roofing Contractors Association, and, AIA, stated that use of 
a FPV device should be allowed to meet the visual-line-of-sight 
requirements of this rule under certain circumstances, such as when 
other navigation and control technologies are available in the vehicle 
(e.g., autonomous flight, onboard geo-fencing, sense-and-avoid 
technology) and mitigating measures are required (e.g. altitude, 
weight, location, and speed limitations, location or the use of visual 
observers). Exelon and Skyview Strategies said that FAA should include 
specific criteria or standards under which the technology would be 
allowed to be used, either alone or in conjunction with other 
technologies and procedures.
    Other commenters supported the NPRM's proposed limitation on the 
use

[[Page 42094]]

of technology to maintain visual line of sight. Commenters, including 
NAAA, ALPA, SkySpecs, and the U.S. Hang Gliding & Paragliding 
Association, pointed out that FPV technology remains unproven and 
unreliable and the FPV field of view is limited. ALPA specifically 
stated that ``[t]he use of an on-board camera cannot replace the 
awareness provided by direct observation by the operator/pilot or 
designated visual observer.''
    FPV technology works by transmitting video feed from a camera 
carried by the small unmanned aircraft to the control station. The 
problem with relying on FPV technology for the ability to see and avoid 
other aircraft in the NAS is that an FPV camera's field-of-view is 
currently either very limited (narrow-field-of-view lens <=30 degrees 
horizontal and 10 degrees vertical) or distorted (usually fish-eyed if 
using a wide-field-of-view lens). A narrow field-of-view lens poses a 
safety issue because it restricts the user's peripheral vision, which 
is used to detect incoming aircraft or other objects that may pose a 
safety hazard. A wide-field-of-view lens poses a safety issue because 
it reduces the angular resolution available to the user, making it 
necessary for an object in the monitor to be closer to the camera 
before it covers enough pixels for the remote pilot to be able to 
detect it. In addition, FPV relies on a video transmitter to broadcast 
the image to the remote pilot. These transmitter/receiver units are 
commonly available in several frequency bands from 900 MHz to 5.8 GHz, 
each frequency band having distinct advantages and disadvantages as to 
range, susceptibility to interference, and ability to penetrate 
foliage.
    As of this writing, the FAA does not have validated data to 
indicate whether FPV can be used to safely conduct operations beyond 
visual line of sight and if so, what FPV performance specifications are 
required to support those operations. The FAA acknowledges that FPV 
cameras have been used by hobbyists for many years and that the 
technology is advancing rapidly within the growing industry. However, 
as discussed previously, FPV cameras have technical limitations and the 
FAA does not possess the data necessary to support a regulatory 
standard at this time.
    The FAA also acknowledges the comments concerning technological or 
operational mitigations that could be used in conjunction with FPV. 
However, those mitigations have significant potential shortcomings that 
need to be explored prior to allowing them to be used in the NAS. For 
example, one of the commenters suggested the use of pan-tilt camera 
systems to mitigate for the shortcomings in FPV technology. While a 
pan-tilt system can allow a narrow-angle camera to scan a wider field 
of view, the system is still significantly inferior to the peripheral 
vision of the human eye, which can discern movement across the entire 
field of view, approaching 180 degrees in normal vision. Another 
commenter suggested the use of a wearable heads-up display. However, 
while a wearable heads-up display could possibly address some concerns 
about low-quality resolution present in wide-angle cameras, sharing the 
screen area with a second ground-based camera feed could further 
compound the resolution issue. Additionally, the ability for a camera 
to provide a wider field of view also generally carries with it the 
significant downside of needing increased radio bandwidth for the 
higher resolution video. This could make the video feed more 
susceptible to increased noise interference or it could reduce the 
angular resolution, affecting target discernibility.
    While data on FPV technology and potential associated mitigations 
is currently limited, the FAA recognizes the potential for this 
technology to provide a means of operating a small UAS beyond visual 
line of sight. For this reason, the FAA is currently conducting a 
pathfinder initiative with BNSF Railroad to gather safety data on 
operating beyond the visual line of sight of the remote pilot in rural/
isolated areas. The FAA is also conducting a second pathfinder 
initiative with PrecisionHawk to gather data on UAS flights in rural 
areas outside the remote pilot's direct vision. The FAA anticipates 
that data from these initiatives could help inform its approach to 
extend visual line of sight operations in future agency actions.
    Further, to reflect the changing state of UAS technology and the 
limited data available at this time, the FAA has made the visual-line-
of-sight requirements of this rule waivable. An applicant will be able 
to obtain a waiver for an operation conducted differently than what is 
required by the visual-line-of-sight requirements of part 107 if the 
applicant demonstrates that his or her operation can safely be 
conducted under the terms of a certificate of waiver. The FAA also 
emphasizes that this rule does not prohibit the use of FPV devices as 
long as the device is not used to meet the visual-line-of-sight 
requirements of part 107.
    Several commenters argued that small UAS operations should be 
permitted to go beyond visual line of sight when certain other 
technologies are used. Predesa argued that visual pattern recognition 
technology to detect terrain and aircraft hazards could be used to 
mitigate the risk associated with beyond-visual-line-of-sight 
operations. The Oregon Department of Aviation, the Agricultural 
Technology Alliance, and the New Hampshire Department of Transportation 
Bureau of Aeronautics (New Hampshire Department of Transportation), 
among others, asserted that utilizing geo-fencing to constrain unmanned 
aircraft flight should safely permit beyond-visual-line-of-sight 
operations. In addition to these, other technologies suggested by the 
commenters included light detection and ranging (LIDAR), Traffic 
Collision Avoidance System (TCAS), automatic dependent surveillance-
broadcast (ADS-B), and automated navigation. The National Ski Areas 
Association noted that ``collision detection and avoidance systems are 
in development,'' and said that the final rule needs to ``recognize and 
accommodate'' these and other technological innovations.
    Many of the technologies suggested by the commenters only partially 
mitigate possible hazards. For instance, automated navigation and geo-
fencing could protect against terrain and ground obstructions but would 
not reveal manned aircraft transiting the flight area. Conversely, TCAS 
could reveal transponder-equipped aircraft but would be ignorant of 
terrain or non-transponder-equipped aircraft. Some of the mentioned 
technologies, such as LIDAR and visual pattern recognition, have 
potential to detect both ground and airborne obstacles, but no 
commenters provided data to support a particular standard or a testing 
means to validate the ability and reliability of that technology. As of 
this writing, the FAA does not have sufficient data to find that a 
technology can safely satisfy the see-and-avoid requirement of part 
107. Consequently, the FAA will consider these situations on a case-by-
case basis through the waiver process. The FAA will also use the waiver 
process as one means by which to evaluate new technologies as they 
become more developed.
    Commenters, including Boeing Commercial Airplanes (Boeing), News 
Media Coalition, the Newspaper Association of America, NAMIC, Amazon, 
and Google, argued that a visual-line-of-sight requirement is 
unnecessary over certain areas such as those that are unpopulated, 
private property, controlled-access facilities, or where activities 
would be unduly restricted by a visual-line-of-sight requirement, and 
that operational

[[Page 42095]]

safeguards could be employed to ensure safe beyond-visual-line-of-sight 
operations. The types of unduly restricted activities could include 
newsgathering events where people must remain at a distance from the 
event, agriculture operations, underwriting or adjusting claims in 
dangerous locations, responses to natural disasters, firefighting, 
search and rescue, and law enforcement operations. The types of 
operational safeguards proposed could include operating under FAA-
imposed restrictions on weight, range, location, and altitude; and 
operating along pre-programmed and pre-approved paths through the use 
of mapping, navigation, and contingency management software.
    The FAA recognizes that the location of a small UAS flight could 
affect the inherent risk of the operation. However, as discussed 
previously, there is currently limited data concerning operations 
conducted beyond visual line of sight. The FAA is working to acquire 
additional safety data as part of its pathfinder initiatives, but that 
data will not be available within the timeframe envisioned by this 
rule. Because there are a significant number of variables involved in 
each individual operating environment and because the FAA has limited 
data on beyond-line-of-sight operations, this rule will not include a 
standard of general applicability for these types of operations. 
Instead, the FAA will consider each individual operating environment 
(as well as any mitigations) on a case-by-case basis as part of its 
consideration of a waiver application.
    Several commenters, including the American Farm Bureau and the 
American Petroleum Institute, suggested that beyond-line-of-sight 
operations should be permitted over privately owned land where the 
operator would be able to close access to non-participants. These 
commenters provided examples of pipelines and utility lines.
    The FAA recognizes that controlling the ground in the vicinity of 
the flight could mitigate hazards to persons and property on the 
ground. However, the primary concern underlying the visual-line-of-
sight restriction in this rule is risk to other aircraft in the air. 
Because a property owner is generally limited in how much he or she can 
restrict other aircraft from operating near the property, the fact that 
a property is privately owned is not, by itself, sufficient to allow 
beyond-visual-line-of-sight operations. As discussed earlier, 
individuals wishing to operate beyond visual line of sight will be able 
to apply for a waiver, and the FAA will examine individual operating 
environments on a case-by-case basis as part of its evaluation of a 
waiver application.
    AIA and JAM Aviation suggested that the first sentence of Sec.  
107.31 should be amended to read: ``With vision that is unaided by any 
device other than corrective lenses, the operator and visual observer 
must be able to see the unmanned aircraft throughout the entire 
flight.'' One individual stated Sec.  107.31(b) should be amended to 
read: ``Determine the unmanned aircraft's attitude, altitude, and 
direction of flight.'' The commenter said the change is needed because 
for multi-rotor UAS, the direction of flight could be quite different 
from the nominal ``front'' of the aircraft. According to this 
commenter, the proposed wording could lead to confusion on what 
``direction'' meant, whether it was the UAS's path or the direction 
(bearing) from the remote pilot's position.
    As an initial matter, the FAA notes that, as discussed in section 
III.E.1 of this preamble, the NPRM-proposed position of operator has 
been replaced by the remote pilot in command. Additionally, the remote 
pilot in command is not required to be the person who manipulates the 
flight controls of the small UAS. Accordingly, this rule will require 
both the remote pilot in command and the person manipulating the flight 
controls of the small UAS to possess the ability to maintain visual 
line of sight of the small unmanned aircraft.
    In response to the concerns raised by the commenters, the FAA has 
also clarified the regulatory text of Sec.  107.31. As amended, Sec.  
107.31 states that the remote pilot in command, the visual observer (if 
one is used), and the person manipulating the flight control of the 
small UAS must be able to see the unmanned aircraft throughout the 
entire flight in order to: (1) Know the unmanned aircraft's location; 
(2) determine the unmanned aircraft's attitude, altitude, and direction 
of flight; (3) observe the airspace for other air traffic or hazards; 
and (4) determine that the unmanned aircraft does not endanger the life 
or property of another. This visual-line-of-sight ability must be 
exercised throughout the entire flight of the small unmanned aircraft 
by either: (1) The visual observer; or (2) the remote pilot in command 
and person manipulating the flight controls of the small UAS (if that 
person is not the remote pilot in command).
    Several commenters, including Modovolate, Small UAV Coalition, and 
Southern Company, asked the FAA to make clear that brief interruptions 
to visual line of sight should be permitted. One commenter asked that a 
quantitative limit on what qualifies as a momentary interruption should 
be established. Another individual asked the FAA to make clear that the 
remote pilot's primary mission is to scan the area for other aircraft 
and not to keep ``eyes on'' the small unmanned aircraft.
    The FAA understands and accepts that the person maintaining visual 
line of sight may lose sight of the unmanned aircraft for brief moments 
of the operation. This may be necessary either because the small 
unmanned aircraft momentarily travels behind an obstruction or to allow 
the person maintaining visual line of sight to perform actions such as 
scanning the airspace or briefly looking down at the small UAS control 
station. For example, a remote pilot in command stationed on the ground 
utilizing a small unmanned aircraft to inspect a rooftop may lose sight 
of the aircraft for brief periods while inspecting the farthest point 
of the roof. As another example, a remote pilot in command conducting a 
search operation around a fire scene with a small unmanned aircraft may 
briefly lose sight of the aircraft while it is temporarily behind a 
dense column of smoke.
    However, the FAA emphasizes that even though the remote pilot in 
command may briefly lose sight of the small unmanned aircraft, he or 
she always has the see-and-avoid responsibilities set out in Sec. Sec.  
107.31 and 107.37. The circumstances of what would prevent a remote 
pilot from fulfilling those responsibilities will vary depending on 
factors such as the type of UAS, the operational environment, and 
distance between the remote pilot and the unmanned aircraft. For this 
reason, the FAA declines to specify a quantitative value to an 
interruption of visual contact as it would have the effect of 
potentially allowing a hazardous interruption or prohibiting a 
reasonable one.
    With regard to the comment concerning keeping ``eyes on'' the small 
unmanned aircraft, the FAA notes that the principles of scanning, long 
taught to manned aircraft pilots, include the dangers of ``tunnel 
vision'' and that an effective scan must encompass all areas of the 
environment a hazard could come from. The FAA agrees that to comply 
with Sec.  107.31, the person maintaining visual line of sight must 
effectively scan the area and not necessarily be focused on constant 
visual contact with the small unmanned aircraft.
    Several commenters suggested that the FAA impose a numerical limit 
on how far away a small unmanned aircraft may travel from the person 
maintaining

[[Page 42096]]

visual line of sight. ALPA, NBAA, NAAA, and the State of Nevada, Nevada 
Institute for Autonomous Systems and Nevada FAA-designated UAS Test 
Site, commenting jointly, argued that an appropriate specific numerical 
distance should be imposed and be based on study or test data. Predesa 
stated that a numerical limit can be determined by the performance of 
the UAS, taking into account a margin that allows for winds and wind 
gusts, and power characteristics of the UAS battery. FLIR Systems, 
Inc., Aviation Management, the City and County of Denver, Colorado,\79\ 
and two individuals proposed specific numerical limits the FAA should 
impose on the area of operation. The numerical recommendations of these 
commenters varied widely from 1000 feet to 3 miles. An individual 
commenter suggested that some form of reliable and verifiable 
documenting of distance should be required.
---------------------------------------------------------------------------

    \79\ This commenter submitted comments on behalf of its 
Department of Aviation, owner and operator of Denver International 
Airport.
---------------------------------------------------------------------------

    The FAA declines to impose a numerical limit on how far away a 
small unmanned aircraft can travel from the person maintaining visual 
line of sight. A prescriptive numerical limit would not take into 
account situational-dependent operating factors and may preclude 
operations that could otherwise be conducted safely. Additionally, no 
commenter provided data to substantiate the belief that a numerical 
standard would provide a higher level of safety than the visual-line-
of-sight standard proposed in the NPRM.
    This rule will also not include a documentation requirement 
regarding the distance of a small unmanned aircraft. A distance 
documentation requirement would impose an unjustified cost on the 
public because the permissible distance of the small unmanned aircraft 
from the remote pilot in command will be situation-specific. For 
example, a remote pilot in command operating in excellent visibility 
conditions will be able to fly the small unmanned aircraft farther away 
from him or herself and still maintain visual line of sight. 
Conversely, a remote pilot in command operating in poorer visibility 
conditions will have a more limited area where he or she can fly the 
small unmanned aircraft and still maintain the required visual line of 
sight.
    PlaneSense, Inc. and Cobalt Air, LLC, in a joint submission, stated 
that the rule should also require that the operator or a visual 
observer have line of sight to the ground over which the small unmanned 
aircraft is flying. However, requiring a remote pilot or visual 
observer to have line of sight to the ground will not enhance the 
safety of this rule, and may prohibit certain operations that could 
otherwise be conducted safely under part 107. For instance, a small UAS 
operation over a disaster area containing no persons or property on the 
ground would not need to have line of sight to the ground to ensure the 
safe operation of the small UAS.
    Airports Council International--North America suggested that the 
first sentence of Sec.  107.31 should be amended to read: ``With vision 
that is unaided by any device other than corrective lenses, the 
operator or visual observer must be able to see the unmanned aircraft 
and other aircraft to which the unmanned aircraft could pose a 
collision risk throughout the entire flight in order to . . . .''
    The FAA declines this suggestion because the requirement to be 
aware of other aircraft is already encompassed by the pertinent 
regulatory text of part 107. Specifically, Sec.  107.31(a)(3) will 
require the remote pilot in command, the visual observer (if one is 
used), and the person manipulating the flight controls of the small UAS 
(if that person is not the remote pilot in command) to be able to see 
the unmanned aircraft throughout the entire flight in order to observe 
the airspace for other air traffic or hazards. Other aircraft are 
considered air traffic and are thus covered by the regulatory text of 
Sec.  107.31(a)(3).
    The Washington State Department of Transportation, Aviation 
Division concurred ``with the line-of-sight and reduced visibility 
parameters as described, with the exception that certain verified 
research and development operations . . . be allowed on a case-by-case 
basis, and for unique situations such as aerial observation to support 
firefighting where redundant systems may alleviate line-of-sight and 
visibility limitations.''
    As an initial matter, the FAA notes that operations, such as those 
in support of firefighting, will not be subject to the provisions of 
part 107 if conducted as public aircraft operations. With regard to 
case-by-case determinations, the visual-line-of-sight restrictions of 
this rule will be subject to waiver. This means that a person will be 
able to apply for and obtain a certificate of waiver from the 
provisions of Sec.  107.31 if the person establishes that the proposed 
operation can safely be conducted under the terms of a certificate of 
waiver. The FAA will evaluate waiver requests on a case-by-case basis.
    Commenters including several state farm bureau federations and FLIR 
Systems argued that a visual-line-of-sight requirement could 
potentially negate the cost and time savings associated with small UAS 
operations conducted over large swaths of land because the requirement 
would necessitate multiple flights to complete the operations. 
According to these commenters, the potential safety risks associated 
with operations would also increase because more frequent takeoffs and 
landings would be required.
    The commenters did not provide any data showing that there is 
increased risk or costs associated with the takeoff or landing of a 
small unmanned aircraft. As such, the FAA declines to change this rule 
on the basis suggested by the commenters. However, as discussed in 
sections III.E.1 and III.E.3.a.i of this preamble, this rule has been 
changed from the NPRM to allow: (1) The flight of a small unmanned 
aircraft over a sparsely populated area from a moving vehicle; and (2) 
a remote pilot in command to extend the area of operation by handing 
off control mid-flight to another remote pilot in command. Both of 
these changes, as well as the ability to apply for a waiver, will allow 
for additional operational flexibility under this rule.
    A large number of commenters, including the Airborne Law 
Enforcement Association, Embry-Riddle Aeronautical University, and the 
Associated General Contractors of America, argued that visual line of 
sight should not apply to certain specific operations. Those operations 
included:
     Public safety/emergency.
     Conservation-focused operations.
     Operations by electric utilities for line inspection or 
for storm-damage restoration.
     Oil industry inspections.
     Property inspections.
     Agriculture.
     Newsgathering.
     Operations within a structure.
    As an initial matter, the FAA does not regulate UAS operations 
conducted inside an enclosed structure. Similarly, as discussed earlier 
in this preamble, part 107 will not apply to public aircraft operations 
unless they voluntarily choose to operate as civil aircraft. Most 
public safety operations are conducted as public aircraft operations 
and will continue to be authorized by COA. Therefore, these types of 
operations, when conducted in accordance with a COA, will be unaffected 
by the requirements of part 107.
    With regard to the other operations suggested by the commenters, 
there is currently no data indicating that the

[[Page 42097]]

nature of the small UAS operation mitigates the risk associated with 
operations conducted beyond visual line of sight. The FAA recognizes 
that there are a variety of uses for UAS that this rulemaking will not 
enable. However, there are also a number of small UAS uses that will be 
enabled by this rule. If the FAA were to delay issuance of this rule 
until it had sufficient data to generally allow beyond-visual-line-of-
sight operations, the societal benefits that could be realized by 
immediately allowing operations within visual line of sight would be 
delayed as well. Thus, the FAA will utilize the incremental approach 
discussed earlier in this preamble, under which the FAA will issue a 
rule for the lowest risk UAS activities while pursuing future 
rulemaking to expand their use. Additionally, as discussed previously, 
the waiver authority in this rule will enable the FAA to examine, on a 
case-by-case basis, any mitigation provided by the operating 
environment in the specific operations discussed by the commenters.
    A number of commenters, including the National Roofing Contractors 
Association, Vail Resorts, Rocky Mountain Farmers Union, and MAPPS, 
suggested that small UAS operators should be permitted to extend their 
visual line of sight through the use of one or more visual observers 
who maintain visual line of sight while in constant communication with 
the operator. Continental Mapping Consultants, Inc. (Continental 
Mapping) similarly advocated for the use of one ``or many'' remote 
visual observers ``daisy chained'' throughout the operational area, 
while in constant contact with each other and the operator. The 
National Association of Broadcasters, the National Cable & 
Telecommunications Association, and Radio Television Digital News 
Association also asked the FAA to reconsider its proposed prohibition 
on a relay or ``daisy chain'' of visual observers. Specifically, the 
commenters said that the FAA should revise Sec.  107.33(b) to require 
that either the operator or a visual observer be able to see the small 
UAS at all points during the flight.
    The Colorado Cattlemen's Association asserted that ``adequate 
operational and public safety can be ensured'' if operator visual line 
of sight is augmented by an additional visual observer who maintains 
visual line of sight while in communication with the operator. The 
association did not advocate for an ``extensive or unlimited number'' 
of observers to extend the range of UAS operations, but said a 
reasonable balance can be reached to allow more practical uses of UAS 
(such as operations on cattle ranches).
    Allowing remote pilots to extend their visual line of sight through 
the use of one or more visual observers may introduce new hazards into 
the operation. As discussed in the next section of this preamble, the 
visual observer's role in the operation is limited to simply 
maintaining visual line of sight and communicating what he or she sees 
to the remote pilot. Allowing ``daisy chaining'' of visual observers to 
fly the unmanned aircraft beyond line of sight of the remote pilot in 
command would result in a delay in the remote pilot's reaction time 
because the visual observer would have to verbalize any hazard and the 
remote pilot would be unable to look up and directly see the situation. 
Instead, the remote pilot would have to respond to the hazard by 
formulating and executing a maneuver based on his or her understanding 
of the information received from the visual observer rather than a 
direct visual perception of the hazard.
    Because a delay in reaction time may introduce new hazards into the 
operation, this rule will retain the requirement that the remote pilot 
in command and the person manipulating the flight controls of the small 
UAS (if that person is not the remote pilot in command) must be able to 
see the small unmanned aircraft throughout the entire flight. However, 
as discussed earlier, the visual-line-of-sight requirements of this 
rule will be waivable. Additionally, the FAA notes that it is currently 
engaged in research and testing on how a communication error could 
affect the ability of the remote pilot to correctly apply avoidance 
maneuvers, and this data will help inform future agency actions.
    Textron Systems, the National Association of Realtors, Trimble 
Navigation, and ArgenTech Solutions recommended that this rule provide 
an operator with the ability to hand off control and responsibility for 
flight during the course of an operation. Textron Systems recommended 
that the rule ``allow passing of `operator in command' during flight 
operations as long as the system and the operational construct meet 
other requirements of the rule.'' Trimble proposed that the FAA should 
explicitly permit multiple operators using networked radios and control 
stations to operate a single UAS. Under Trimble's proposal, operators 
would transition control of the UAS from one operator to another while 
ensuring see-and-avoid concerns are met. Trimble also asserted that the 
technology needed to network radios and control stations is utilized in 
other countries for small UAS operations and has been found to be 
effective. The National Association of Realtors added that ``daisy 
chaining'' operators does not pose a safety concern because ``[t]he 
real-time corrections necessary to perfect an UAS flight could be made 
instantaneously, rather than the observer communicating with the 
operator and there being a lag in the time the correction is orally 
given and then made within the operation.'' NetMoby, on the other hand, 
recommended prohibiting hand-off ability because it could create an 
``endless daisy chain of operators.''
    The FAA agrees with the commenters who stated that transfer of 
control of a small UAS should be allowed between certificated remote 
pilots. This can be accomplished while maintaining visual line of sight 
of the UAS and without loss of control. Multiple certificated remote 
pilots handing off operational control does not raise the same safety 
concerns as a daisy chain of visual observers because, unlike a visual 
observer, the remote pilot in command will have the ability to directly 
control the small unmanned aircraft. Thus, two or more certificated 
pilots transferring operational control (i.e. the remote pilot in 
command designation) to each other does not raise the delayed-reaction-
time issue that arises with visual observers having to communicate what 
they see to another person who actually manipulates the small UAS 
flight controls.
    Accordingly, as discussed in section III.E.1 of this preamble, 
multiple certificated remote pilots may choose to transfer control and 
responsibility while operating a small UAS. For example, one remote 
pilot may be designated the remote pilot in command at the beginning of 
the operation, and then at some point in the operation another remote 
pilot may take over as remote pilot in command by orally stating that 
he or she is doing so. The FAA emphasizes that as the person 
responsible for the safe operation of the UAS, any remote pilot who 
will assume remote-pilot-in-command duties should be aware of factors 
that could affect the flight.
b. Visual Observer
    For the reasons discussed below, this rule will finalize the 
position of visual observer as follows. First, this rule will define a 
visual observer as a person who assists the remote pilot in command and 
the person manipulating the flight controls of the small UAS (if that 
person

[[Page 42098]]

is not the remote pilot in command) to see and avoid other air traffic 
or objects aloft or on the ground. Second, the visual observer will 
remain an optional crewmember who will not be required to obtain an 
airman certificate. Third, the remote pilot in command will have to 
ensure that the visual observer is positioned in a location that allows 
him or her to see the unmanned aircraft in the manner specified in 
Sec.  107.31. Fourth, the visual observer, the remote pilot in command, 
and the person manipulating the flight controls of the small UAS (if 
that person is not the remote pilot in command) will be required to 
coordinate in order to: (1) Scan the airspace where the small unmanned 
aircraft is operating for any potential collision hazard; and (2) 
maintain awareness of the position of the small unmanned aircraft 
through direct visual observation. Finally, this rule will require the 
visual observer, the remote pilot in command, and the person 
manipulating the flight controls of the small UAS (if that person is 
not the remote pilot in command) to maintain effective communication, 
and it will allow the use of technology, such as radios, to assist with 
the communication.
i. Definition of Visual Observer
    The NPRM proposed to define a visual observer as a person who 
assists the operator to see and avoid other air traffic or objects 
aloft or on the ground. Skycatch suggested that the definition of 
visual observer should be revised to say ``sense and avoid'' rather 
than ``see and avoid'' because the term ``sense and avoid'' is the term 
required by Congress. According to Skycatch, the term ``see and avoid'' 
does not appear in Public Law 112-95, whereas the term ``sense and 
avoid'' appears in three locations in the enabling legislation.
    As discussed earlier, this rulemaking is being conducted under 
section 333 of Public Law 112-95. Subsection 333(b)(1) requires the FAA 
to determine, in pertinent part, what type of UAS operations do not 
``create a hazard to users of the national airspace system.'' A 
critical component of that determination is whether the operation is 
conducted ``within visual line of sight.'' Id. Section 333 does not use 
the term ``sense and avoid.''
    As discussed in the previous section, the FAA does not currently 
have data indicating that small UAS technology has matured to the point 
that would safely allow small UAS to be operated beyond visual line of 
sight. To reflect this fact, as well as the fact that section 333 
explicitly focuses on operations within visual line of sight as a 
critical consideration, this rule will retain the proposed ``see and 
avoid'' terminology in the definition of visual observer. Accordingly, 
this rule will define visual observer as a person who assists the 
remote pilot in command and the person manipulating the flight controls 
of the small UAS (if that person is not the remote pilot in command) to 
see and avoid other air traffic or objects aloft or on the ground.
ii. Operational Requirements When Using Visual Observer
    The NPRM also proposed a set of operational requirements for 
operations that use a visual observer. First, the operator and visual 
observer would be required to maintain effective communication with 
each other at all times. Under the NPRM, the operator and visual 
observer would not have to stand close enough to hear each other 
without technological assistance; instead, they could use a 
communication-assisting device, such as a radio, to communicate while 
standing farther apart from each other. Second, the operator would be 
required to ensure that the visual observer be positioned in a manner 
that would allow him or her to maintain visual line of sight of the 
small unmanned aircraft. Third, the operator and visual observer would 
be required to coordinate to: (1) Scan the airspace where the small 
unmanned aircraft is operating for any potential collision hazard; and 
(2) maintain awareness of the position of the small unmanned aircraft 
through direct visual observation. This rule will finalize the above 
provisions as proposed, but, due to the change in the crewmember 
framework, this rule will refer to the remote pilot in command and the 
person manipulating the flight controls of the small UAS instead of 
``operator.''
    Approximately 20 organizations and 8 individual commenters, 
including NRECA, AIA, and the Association of American Universities and 
the Association of Public Land-grant Universities, commenting jointly, 
agreed with the NPRM proposal that the visual observer should not be 
required to stand close enough to the operator to allow for unassisted 
verbal communication. These commenters generally agreed that the 
operator and visual observers should maintain effective communication 
with one another and added that effective communication can be achieved 
with the use of technology, such as a two-way radio or cell phone. 
NRECA stated that there is no additional safety benefit from requiring 
the visual observer to stand close enough to the operator to allow for 
unassisted verbal communication. In fact, NRECA continued, such a 
requirement might negatively impact safety by prohibiting a visual 
observer from adopting a vantage point that affords a different field 
of view from the operator (i.e., a field of view that complements and 
is not merely duplicative of the operator's field of view).
    Aviation Management, NBAA, and NRECA further stated that the method 
of effective communication should be decided by the operator and visual 
observer. Planehook and an individual added the operator and visual 
observer should have a contingency plan if electronic communications 
fail.
    ALPA supported the use of communication-assisting devices, but 
asked the FAA to State (in the preamble and in advisory material) that 
the ability to maintain communication using any device is necessarily 
complicated by the fact that the pilot/operator typically uses both 
hands to control the small UAS. ALPA asserted that this complication 
limits the possibilities of using assisting devices considerably, 
essentially to two-way radiotelephony with a constant (i.e., ``hot'') 
transmit-receive capability.
    In contrast to the above commenters, the Colorado Agricultural 
Aviation Association and NAAA said that the visual observer should be 
able to communicate with the UAS operator ``from the most minimal 
distance possible.''
    This rule will require the remote pilot in command, the person 
manipulating the flight controls of the small UAS (if that person is 
not the remote pilot in command), and the visual observer to maintain 
effective communication, but it will also allow the remote pilot in 
command to determine how that communication will take place. The FAA 
agrees that effective communication is essential, but there are 
circumstances where this can be accomplished at a distance through 
technological assistance. As the commenters pointed out, effective 
communication at a distance can easily be achieved using existing 
technology, such as a two-way radio or a cell phone.
    In response to ALPA's concern that the person manipulating the 
small UAS flight controls may be unable to simultaneously manipulate 
the controls of a communication device, the FAA notes that existing 
technology provides a number of options for hands-free communication, 
such as an earpiece, a headset, or the ``speaker'' mode on a cell 
phone. The remote pilot in command may choose any communication-
assisting technology as long as that technology: (1) Allows for 
effective

[[Page 42099]]

communication; and (2) does not interfere with the safe operation of 
the small UAS. The FAA also agrees that the choice of effective 
communication should be agreed upon by the remote pilot in command and 
the visual observer, and that it is a good safety practice to have a 
contingency plan.
    The National Association of Broadcasters, the National Cable & 
Telecommunications Association, Radio Television Digital News 
Association, and MPAA asserted that proposed Sec.  107.33(b) conflicts 
with the visual-line-of-sight requirements of Sec.  107.31. These 
commenters asserted that proposed Sec.  107.31 stated that either ``the 
operator or visual observer must be able to see the unmanned aircraft 
throughout the entire flight'' (emphasis added). However, proposed 
Sec.  107.33(b) stated that when a visual observer is used, ``[t]he 
operator must ensure that the visual observer is able to see the 
unmanned aircraft.''
    As explained earlier, the visual-line-of-sight framework requires 
the remote pilot in command, the person manipulating the flight 
controls of the small UAS, and the visual observer to always have 
visual-line-of-sight capability. The visual observer can exercise this 
capability instead of the remote pilot in command and person 
manipulating the flight controls of the small UAS (if that person is 
not the remote pilot in command), but under this rule, everyone must 
have the visual-line-of-sight capability, even if they are not 
exercising it. As noted earlier, the visual observer cannot maneuver 
the small unmanned aircraft, so there is a potential delay in response 
time if the person manipulating the flight controls and the remote 
pilot in command are unable to see what is happening and must rely 
solely on the description provided by the visual observer. The FAA 
agrees with commenters that, as proposed, the regulatory text of Sec.  
107.31 was unclear because it implied that either the operator or 
visual observer (but not both) had to be positioned in a manner that 
allowed for visual line of sight. Accordingly, the FAA has amended the 
regulatory text of Sec.  107.31 to clarify that all crewmembers must 
have the ability to maintain visual line of sight.
    One commenter suggested that the visual observer should be required 
to stand close enough to the operator that the line of sight of the 
visual observer will not deviate from the operator's line of sight when 
the operator is using an FPV device. Another commenter objected to the 
proposed requirement that a visual observer must be positioned in a way 
that allows them to always maintain visual line of sight. The commenter 
asserted that this requirement would significantly limit the 
operational area for operations that use multiple visual observers 
because the small unmanned aircraft could only be flown in an area 
where the visual observers' individual lines of sight overlap so that 
each observer could satisfy the proposed line-of-sight requirement.
    The FAA declines to add a requirement that the visual observer must 
stand close enough to the remote pilot in command to have the same 
visual line of sight. The remote pilot in command, the person 
manipulating the flight controls of the small UAS (if that person is 
not the remote pilot in command), and the visual observer will be able 
to satisfy their see-and-avoid responsibilities if they are each 
positioned in a manner where they have sufficient visual line of sight 
of the unmanned aircraft and surrounding airspace (as specified in 
Sec.  107.31). This can be accomplished without each person having the 
same exact line of sight as the other people involved in the operation. 
The FAA also emphasizes that even though part 107 will not prohibit the 
use of an FPV device by the remote pilot in command, FPV may not be 
used to meet the visual-line-of-sight requirements of this rule.
    With regard to the use of multiple visual observers, the FAA 
acknowledges the concern raised by the commenter. As noted by the 
commenter, Sec.  107.33(b) requires that when a person is acting as a 
visual observer, he or she must be positioned in a location where he or 
she can perform the visual-line-of-sight duties of the visual observer. 
However, this rule does not require that a person remain in the role of 
a visual observer for the entire duration of the small UAS operation. 
When a person is not acting as a visual observer, he or she is not 
required to perform the duties of a visual observer and need not be 
placed in a location where he or she can maintain visual line of sight 
of the small unmanned aircraft. This provides significant operational 
flexibility because the remote pilot in command can activate and 
deactivate pre-positioned visual observers to assist with maintaining 
visual line of sight. The FAA emphasizes, however, that the remote 
pilot in command is responsible for the small UAS operation and must 
ensure that any hand-off of visual observer responsibility is done 
safely and in compliance with Sec. Sec.  107.31 and 107.33.
    TTD asked the FAA to clarify the proposed requirement that the 
operator and visual observer must coordinate so that they ``maintain 
awareness of the position of the small unmanned aircraft through direct 
visual observation.'' (Emphasis added.) TTD pointed to an NPRM 
statement that it would be permissible for one's line of sight to be 
temporarily obstructed by an object and asked the FAA to clarify when 
and to what degree obstruction of one's visual observation is permitted 
under Sec.  107.33(d)(2).
    As discussed in the previous section of the preamble, this rule 
allows for the possibility that the person maintaining visual line of 
sight may briefly lose sight of the small unmanned aircraft. As noted 
in that section, the FAA declines to impose quantitative limits on 
visual-line-of-sight interruptions. Instead, an interruption to line-
of-sight of the small unmanned aircraft is permissible if: (1) It is 
brief; and (2) the person maintaining visual line of sight is still 
capable of complying with the see-and-avoid responsibilities of 
Sec. Sec.  107.31, 107.33 (if applicable), and 107.37.
iii. Optional Use of a Visual Observer
    Under the proposed rule, a visual observer would be an optional 
crewmember who could be used to augment the small UAS operation. For 
the reasons discussed below, this rule will finalize this NPRM 
provision as proposed.
    Several commenters argued that a visual observer should always be 
required in order to satisfy the visual-line-of-sight requirements of 
part 107. ALPA and TTD asserted that small unmanned aircraft are 
difficult to observe given their size and speed capabilities, and that 
this difficulty, combined with the remote pilot's need to look down at 
the controls periodically, makes a visual observer a critical 
crewmember for the safe operation of a small unmanned aircraft. 
Similarly, NAAA stated that the FAA's proposal not to require a visual 
observer is at odds with the fundamental see-and-avoid and visual-line-
of-sight principles of the rule. NAAA argued that the NAS would be 
endangered by the absence of a visual observer in those situations in 
which the remote pilot temporarily lacks the ability to see and avoid 
other aircraft.
    Several commenters stated that in the absence of a visual observer, 
a remote pilot would not be able to maintain situational awareness of 
activities in the air and on the ground. JAM Aviation stated that a 
remote pilot cannot easily monitor conditions in the air and on the 
ground simultaneously, and that a visual observer is needed to assist 
the remote pilot in doing so. Texas A&M University-Corpus Christi Lone 
Star

[[Page 42100]]

UAS Center of Excellence & Innovation (Texas A&M University-Corpus 
Christi/LSUASC) stated that a visual observer should be required until 
technology comes into existence, such as first-person view, that would 
provide ``situational awareness and [a] level of risk-mitigation 
comparable to that of a pilot in the cockpit of a commercial 
aircraft.'' Similarly, another commenter argued that a visual observer 
should be required ``unless some form of situational awareness aid is 
available which would allow the operator to simultaneously determine 
[small UAS] status and health as well as scan the surrounding 
airspace[.]''
    It is not necessary to require a visual observer for all small UAS 
operations. Under the visual-line-of-sight framework of this rule, a 
visual observer can act as a limited substitute for the remote pilot in 
command and the person manipulating the flight controls with regard to 
maintaining visual line of sight of the small unmanned aircraft. The 
visual observer position will allow the person manipulating the small 
UAS flight controls and the remote pilot in command to perform tasks 
that require looking away from the small unmanned aircraft for a 
significant period of time or use observational technology (such as 
FPV) that limits their peripheral vision; which they can do if a visual 
observer is present because the visual observer will observe the small 
unmanned aircraft with the naked eye.
    However, there are some small UAS operations in which the person 
manipulating the UAS flight controls (if that person is not the remote 
pilot in command) and the remote pilot in command will simply observe 
the small unmanned aircraft themselves throughout the entire operation. 
In those types of operations, there is no need for a visual observer to 
be present to maintain visual line of sight of the unmanned aircraft. 
In response to concerns about the ability of the remote pilot to 
maintain see and avoid if there is no visual observer present, the FAA 
notes that, as discussed previously, the person maintaining visual line 
of sight will have the same (if not better) ability to see and avoid 
other aircraft as a manned-aircraft pilot looking out the windshield of 
the manned aircraft. The fact that the person maintaining visual line 
of sight may briefly look away from the small unmanned aircraft to 
conduct other tasks such as scanning the surrounding airspace does not 
affect this conclusion because the ``look away'' will be brief. This 
situation is similar to manned-aircraft operations where a pilot can 
look away from the windshield to conduct another task such as scanning 
or manipulating the instrument panel.
    As such, this rule will not require that a visual observer be 
present in all small UAS operations conducted under part 107. The FAA 
emphasizes, however, that if a visual observer is not present, then the 
remote pilot in command and the person manipulating the flight controls 
of the small UAS (if that person is not the remote pilot in command) 
must be the ones to exercise the visual-line-of-sight capability 
required by Sec.  107.31. The FAA also emphasizes that the remote pilot 
in command will ultimately be responsible for the safe conduct of the 
small UAS operation. If the remote pilot in command determines, as part 
of the preflight assessment of the operating area required by Sec.  
107.49, that his or her particular small UAS operation cannot be 
conducted in a safe manner without a visual observer, then the remote 
pilot will be obligated to conduct the flight with a visual observer.
    One commenter stated that the operation of a small unmanned 
aircraft is too complex to be conducted by just one person, and that a 
visual observer is needed to share the duties. According to this 
commenter, a visual observer should be used to ``assist the operator 
focusing on monitoring aviation air band radio transmissions, flight 
heights, distances, see-avoid aircraft requirements, spotting, etc.''
    The FAA disagrees with the suggestion that the operation of a small 
UAS is too complex to be conducted by one person. Many small UAS 
operating under this rule are simple to control and will be limited to 
a confined area of operation. The remote pilot in command is 
responsible for the safe operation of the flight and can make a 
determination as to whether a visual observer or another certificated 
remote pilot is necessary based on the nature of the operation. For 
example, a remote pilot operating a small unmanned aircraft in a 
sparsely populated area at an altitude lower than nearby trees and 
buildings could safety conduct the operation without any other 
crewmembers.
iv. No Airman Certification or Required Training of Visual Observer
    The NPRM proposed to not require airman certification or other 
mandatory testing or training for a visual observer. The FAA explained 
that because a visual observer would not be permitted to exercise 
independent judgment or operational control and because the visual 
observer's role in the operation would be limited simply to 
communicating what he or she is seeing to another person, the visual 
observer would not be an airman as defined by statute and would 
therefore not be statutorily required to obtain an airman certificate. 
The NPRM also explained that because of the limited role of the visual 
observer, there would be no need to exercise the FAA's regulatory 
authority to require the visual observer to obtain an airman 
certificate.\80\ For the reasons discussed below, this rule will not 
require visual observers to be certificated or to satisfy any other 
qualification requirements.
---------------------------------------------------------------------------

    \80\ 49 U.S.C. 44701(a)(5) gives FAA the power to prescribe 
regulations that it finds necessary for safety in air commerce and 
national security.
---------------------------------------------------------------------------

    Several commenters expressed support for the FAA's proposal to not 
require airman certification for visual observers on the basis that 
certification is unnecessary. Many submissions, including those from 
NRECA, the Nez Perce Tribe, and the National Association of Realtors, 
supported the FAA's proposal because a visual observer is optional for 
part 107 operations and is not responsible for operating the device. 
The Property Drone Consortium, NetMoby, Predesa, the National 
Association of Wheat Growers, and the American Petroleum Institute 
generally commented that a visual observer should not have to satisfy 
airman requirements. The Professional Society of Drone Journalists 
added that the only requirement for visual observers should be that 
they are capable of visually observing the small UAS and communicating 
with the remote pilot.
    Other commenters suggested that airman certification should not be 
required for visual observers because the limited safety benefits of 
requiring certification would not justify the burden. Commenters 
including the University of Arkansas, Division of Agriculture and State 
Farm asserted that the costs of requiring visual observer airman 
certification would outweigh the benefits.
    The Oklahoma Governor's Unmanned Aerial Systems Council said that 
imposing additional regulatory requirements on visual observers could 
increase safety risks since organizations would then be incentivized to 
minimize the number of visual observers due to cost and logistical 
issues. Similarly, NRECA suggested that the imposition of certification 
requirements could discourage the use of visual observers.
    Multiple commenters expressed the opposite view and asserted that 
visual observers should be certificated by the FAA. NAAA stated that 
the visual observer should be certificated and should clearly 
understand his or her

[[Page 42101]]

role. CAPA recommended that only UAS remote pilots, licensed as such, 
be able to participate as visual observers. CAPA also raised the 
question of who would be held responsible if an accident were to occur 
due to an uncertificated visual observer's negligence. Textron Systems 
suggested that visual observers with safety-of-flight responsibilities 
may be considered to be flight crewmembers and should be certificated 
as such.
    A few individuals generally argued that the same testing 
requirements should apply to all participants in small UAS operations, 
including the remote pilot and visual observer. One individual 
commented that a certificated visual observer could act as a safety 
redundancy backup for the operator. Another commenter suggested that 
UAS operator teams should follow a process similar to the traditional 
airman certification process. A third individual suggested that a 
visual observer should be required to hold a certificate similar to the 
ones held by air traffic controllers.
    Under this rule, a visual observer will act only in a flight-
support role to the remote pilot in command who will exercise 
operational control over the small UAS and will have final authority 
for the flight. Part 107 will not place any responsibility on the 
visual observer for the safety of the flight operation, as that 
responsibility falls on the remote pilot in command. Rather, the 
intended function of the visual observer under this rule will be to 
assist the remote pilot in command and the person manipulating the 
flight controls of the small UAS (if that person is not the remote 
pilot in command) with situational awareness during the flight as 
needed by observing, among other things, the small unmanned aircraft's 
location, other air traffic, obstacle clearance, and people on the 
ground, and effectively communicating those observations to the remote 
pilot in command.
    The FAA emphasizes that this rule will not give a visual observer 
the power to act on his or her observations because the visual observer 
will not share in the operational control of the aircraft. Rather, the 
visual observer's role will be simply to convey his or her observations 
to the person who has operational authority and/or control of the small 
UAS and can act on those observations. Because the visual observer's 
role is limited to simply conveying his or her observations to other 
people, the visual observer does not need special mandatory training, 
testing, or certification in order to safely carry out that role. The 
FAA also finds that, due to the very limited role that the visual 
observer has in the small UAS operation, the visual observer is not an 
airman, within the meaning of the FAA's statute, and is thus not 
statutorily required to obtain an airman certificate.\81\
---------------------------------------------------------------------------

    \81\ See 49 U.S.C. 40102(a)(8). This statute defines an airman 
as an individual: ``(A) in command, or as pilot, mechanic, or member 
of the crew, who navigates aircraft when under way; (B) except to 
the extent the Administrator of the Federal Aviation Administration 
may provide otherwise for individuals employed outside the United 
States, who is directly in charge of inspecting, maintaining, 
overhauling, or repairing aircraft, aircraft engines, propellers, or 
appliances; or (C) who serves as an aircraft dispatcher or air 
traffic control-tower operator.'' The visual observer's limited role 
in the operation of a small UAS does not meet any of these criteria.
---------------------------------------------------------------------------

    In response to CAPA's comment concerning liability due to a visual 
observer's negligence, the person who violates the pertinent 
regulations would be the one held liable. The FAA also notes that, 
depending on the circumstances, the remote pilot in command may be held 
responsible as he or she has final authority over the small UAS 
operation.
    Several commenters suggested that visual observers should be 
required to complete mandatory training. The University of North 
Georgia stated that visual observers must be trained on basic FAA rules 
and proximity awareness. Similarly, Federal Airways & Airspace remarked 
that visual observers should have a training course, such as a see-and-
avoid course. The University of North Dakota's John D. Odegard School 
of Aerospace Sciences recommended that visual observers complete a 
training syllabus and be tested in the same areas of knowledge as the 
remote pilot. AIA commented that visual observer training should be 
required prior to assuming duty. Another commenter suggested that 
visual observers should be trained on the applicable sections of part 
91.
    ALPA recommended development of guidance material outlining 
appropriate background and training for the visual observer, defining 
appropriate subjects for the operator/pilot to discuss with the visual 
observer prior to flight, and clarifying what constitutes visual 
observation in the context of safe UAS operation. Similarly, TTD 
requested that the FAA issue guidance indicating the training that 
visual observers should complete, and asserted that, without any 
requirement to display skill proficiency or determine vision quality, 
neither the visual observer, pilot, nor FAA can be sure that the visual 
observer is reliable. NAAA stated that having a set of untrained eyes 
does little to enhance safety if the visual observer sees a safety 
threat that the remote pilot does not see.
    As discussed previously, the role of a visual observer is limited 
to simply communicating what he or she is seeing to the person 
manipulating the flight controls (if that person is not the remote 
pilot in command) and the remote pilot in command. Special training and 
testing is not necessary for a person to be able to communicate what he 
or she is seeing to another person. Thus, this rule will not require 
visual observers to complete special training courses or pass a test 
prior to serving as a visual observer. While the FAA has not included 
provisions in the rule to require visual observer airman certification 
or training, the FAA may, in the future, issue guidance to assist 
remote pilots who choose to utilize the visual observer function.
    The FAA also emphasizes that under the other requirements of this 
rule, the remote pilot in command must, prior to flight, provide 
important information to the visual observer. This information will 
include an understanding of the operating conditions, emergency 
procedures, contingency procedures, roles and responsibilities, and 
potential hazards. The remote pilot in command must also ensure that 
the visual observer understands and can properly utilize the method by 
which he or she will be maintaining effective communication with the 
remote pilot in command and the person manipulating the flight controls 
of the small UAS (if that person is not the remote pilot in command).
    Many commenters generally emphasized the remote pilot's 
responsibility to ensure that the visual observer is competent and 
appropriately trained. SWAPA supported the use of visual observers but 
emphasized that under the FAA's proposal, the onus would be on the 
remote pilot to ensure any visual observers used in the operation were 
familiar with all aspects of the operation. Similarly, Aerius Flight 
encouraged the FAA to require the remote pilot to ensure that the 
visual observer has become familiar with the critical aspects of the 
operation prior to assuming duties. NBAA stated that the remote pilot 
should ensure that a visual observer, if used, understands the limits 
of small UAS operations.
    Planehook stated that training and certification of visual 
observers should be an internal function unique to companies and 
organizations that regularly require the use of visual observers for 
their commercial operations. Another commenter emphasized that the UAS 
remote pilot is responsible for all aspects of each

[[Page 42102]]

flight and must be in charge of selecting and training visual 
observers.
    Additionally, several commenters, including Aviation Management and 
the Colorado Cattlemen's Association, mentioned that remote pilots 
should be responsible for briefing visual observers. Aviation 
Management emphasized the requirement for the remote pilot to ensure 
that all persons involved in the small UAS operation receive a briefing 
that includes operating conditions, emergency procedures, contingency 
procedures, roles and responsibilities, and potential hazards.
    The FAA agrees that the remote pilot in command, in his or her role 
as the final authority over the small UAS operation, has ultimate 
responsibility for the safety of the operation and therefore should be 
responsible for selecting, training, and informing the visual observer 
(if one is used). The FAA also agrees with the commenters that a visual 
observer should be informed and understand all critical aspects of the 
small UAS operation prior to flight. That is why this rule will require 
the remote pilot in command to ensure that all persons directly 
participating in the small UAS operation, including the visual 
observer, are informed about the operating conditions, emergency 
procedures, contingency procedures, roles and responsibilities, and 
potential hazards.
    A joint submission from the State of Nevada, the Nevada Institute 
for Autonomous Systems, and the Nevada FAA-designated UAS Test Site 
said that the visual observer should be required to self-certify that 
he or she has the aeronautical knowledge and visual acuity necessary to 
safely perform the small UAS operation. AUVSI, Prioria Robotics, the 
Professional Society of Drone Journalists, and several other commenters 
said that the visual observer should be required to hold a valid U.S.-
issued driver's license or an FAA-issued medical certificate, which 
would ensure a visual test but not be overly burdensome. Planehook 
stated that the remote pilot should determine the medical suitability 
of any visual observer to perform pre-briefed duties.
    The FAA disagrees that a driver's license should be a prerequisite 
to serving as a visual observer. As discussed in section III.F.2.a of 
this preamble, according to the DOT Office of Highway Policy 
Information, 13 percent of the population aged 16 or older does not 
hold a State-issued driver's license.\82\ Thus, requiring a U.S. 
driver's license would create an undue burden for many visual observers 
without a significant increase in safety because the skills necessary 
to obtain a driver's license are not the same skills needed to serve as 
a visual observer in a small UAS operation.
---------------------------------------------------------------------------

    \82\ See https://www.fhwa.dot.gov/policyinformation/pubs/hf/pl11028/chapter4.cfm (stating that 87% of the population aged 16 or 
older holds a driver's license).
---------------------------------------------------------------------------

    The FAA also disagrees that self-certification concerning 
aeronautical knowledge and visual acuity by a person acting as a visual 
observer should be required by this rule because, as discussed 
elsewhere in this preamble, this rule does not impose any aeronautical 
knowledge or visual acuity requirements on visual observers. A visual 
observer cannot self-certify that he or she meets requirements that do 
not exist in this rule.
    Finally, the FAA declines the suggestion to impose a specific duty 
on the remote pilot in command to determine the medical suitability of 
a visual observer. This rule does not require the remote pilot in 
command to be a doctor or have any medical training. As such, 
evaluating the potentially complex medical condition of another human 
being could be beyond the remote pilot in command's expertise. The FAA 
notes, however, that it expects the remote pilot in command to exercise 
his or her authority when a potential visual observer is clearly 
incapable of carrying out his or her assigned duties. For example, the 
remote pilot in command would not be ensuring a safe small UAS 
operation if he or she designates a visual observer who clearly is 
incapacitated or is under the influence of alcohol or drugs at the time 
of the operation.
c. Additional Visibility Requirements
    To further ensure that the person maintaining visual line of sight 
in a small UAS operation can see and avoid other aircraft, this rule 
will: (1) Limit small UAS operations conducted outside of daylight 
hours; and (2) impose weather-minimum and visibility requirements.
i. Daytime Operations
    Due to the reduced visibility associated with nighttime operations, 
the NPRM proposed to prohibit the operation of a small UAS outside the 
hours of official sunrise and sunset. For the reasons discussed below, 
this rule will maintain the prohibition on nighttime operations but 
will allow small UAS operations to be conducted during civil twilight 
if the small unmanned aircraft has lighted anti-collision lighting 
visible for at least 3 statute miles. The nighttime-operations 
prohibition in this rule will also be waivable.
    Approximately 25 commenters generally supported the proposed 
prohibition on operations outside the hours of official sunrise and 
sunset. ALPA noted that the prohibition is consistent with the ARC 
recommendations. The Minneapolis-Saint Paul Metropolitan Airports 
Commission (Metropolitan Airports Commission) asserted that nighttime 
operations introduce a number of visual illusions, and unlike manned-
aircraft pilots, small UAS operators will not be required to complete 
comprehensive training programs that teach pilots how to deal with 
these illusions. The City and County of Denver, Colorado noted that 
allowing operations only in the lightest of conditions will increase 
the probability of avoidance in the event of a conflict.
    Federal Airways provided some conditions and limitations under 
which they would support nighttime operations of UAS, but ultimately 
noted that if the goal is to be as least burdensome as possible, 
limiting operating hours to daylight hours only would eliminate the 
need for further specification in lighting requirements. The American 
Association of Airport Executives and Barrick Gold of North America, 
Inc. concurred with the nighttime operation prohibition, but added that 
in the future, technological advances may provide the opportunity to 
allow nighttime operations.
    Other commenters objected to the proposed prohibition on nighttime 
operations. Skycatch, Clayco, AECOM and DPR Construction, commenting 
jointly, and several individuals, suggested that the proposed 
prohibition on nighttime operations be entirely eliminated from the 
final rule. Cherokee Nation Technologies and The Information Technology 
and Innovation Foundation asserted that nighttime operations can be 
safer than daytime operations because there is less air traffic and 
there are fewer people on the ground. EEI and AUVSI suggested that 
nighttime UAS operations are safer and less disruptive than nighttime 
manned-aircraft operations such as helicopters circling overhead. 
Virginia Commonwealth University Honors Students said the proposed ban 
on nighttime operations ignores the use of other senses, particularly 
sound, to detect and avoid other aircraft. DJI stated that because 
manned aircraft operating at night are required to be equipped with 
lighting, UAS operators would be able to satisfy their see-and-

[[Page 42103]]

avoid requirements, even when operating at night.
    A large number of commenters who opposed the daytime-only 
restriction of small UAS operations proposed several methods of 
mitigating hazards. The mitigation strategies were generally related to 
improving visibility to support see-and-avoid, augmenting see-and-avoid 
with technology, implementing additional restrictions for operations at 
night, and requiring additional certification or training. For example, 
the Airborne Law Enforcement Association, NBAA, and the National Ski 
Areas Association said nighttime operations of small UAS could be 
conducted safely if the aircraft is equipped with proper lighting. The 
National Association of Broadcasters, National Cable & 
Telecommunications Association and Radio Television Digital News 
Corporation, commenting jointly, and the Associated General Contractors 
of America supported nighttime operations in well-lit areas, such as 
closed sets or sites of sporting events. The Kansas State University 
UAS Program cited preliminary research that, it argued, indicates that 
UAS equipped with navigation lights are often easier to see at night 
than during the day.\83\
---------------------------------------------------------------------------

    \83\ The comment provided a link to a news article containing a 
short summary of the Kansas State University UAS Program's 
preliminary analysis of its research but did not provide the actual 
research. The linked article also did not include all of the 
assumptions and methodology used in the research or the data 
collected during testing. Finally, the article concluded by noting 
that ``more analysis is needed.'' As a result, the FAA does not 
currently have sufficient information to evaluate the research cited 
in the comment.
---------------------------------------------------------------------------

    Nighttime operations pose a higher safety risk because the reduced 
visibility makes it more difficult for the person maintaining visual 
line of sight to see the location of other aircraft. While the 
existence of other lighted manned aircraft may be apparent due to their 
lighting, the distance and movement of small unmanned aircraft relative 
to the distance and movement of those aircraft is often difficult to 
judge due to the relative size of the aircraft. In addition, visual 
autokinesis (the apparent movement of a lighted object) may occur when 
the person maintaining visual line of sight stares at a single light 
source for several seconds on a dark night. For this reason, darkness 
makes it more difficult for that person to perceive reference points 
that could be used to help understand the position and movement of the 
lighted manned aircraft, the small unmanned aircraft, or other lighted 
object.
    The lack of reference points at night is problematic for small UAS 
subject to part 107 because they are not required to have any equipage 
that would help identify the precise location of the small unmanned 
aircraft. As such, a remote pilot in command operating under this rule 
will generally rely on unaided human vision to learn details about the 
position, attitude, airspeed, and heading of the unmanned aircraft. 
This ability may become impaired at night due to a lack of reference 
points because all a remote pilot may see of his or her aircraft (if it 
is lighted) is a point of light moving somewhere in the air. For 
example, a lighted small unmanned aircraft flying at night may appear 
to be close by, but due to a lack of reference points, that aircraft 
may actually be significantly farther away than the remote pilot 
perceives. An impairment to the remote pilot's ability to know the 
precise position, attitude, and altitude of the small unmanned aircraft 
would significantly increase the risk that the small unmanned aircraft 
will collide with another aircraft.
    In addition to avoiding collision with other aircraft, remote 
pilots in command must also avoid collision with people on the ground, 
as well as collision with ground-based structures and obstacles. This 
is a particular concern for small UAS because they operate at low 
altitudes. When operating at night, a remote pilot may have difficulty 
avoiding collision with people or obstacles on the ground which may not 
be lighted and as a result, may not be visible to the pilot or the 
visual observer. As such, this rule will not allow small UAS subject to 
part 107 to operate at night (outside of civil twilight) without a 
waiver.
    The Motion Picture Association of America (MPAA) and several 
individuals recommended that small UAS operations be permitted between 
civil dawn and civil dusk. The commenters stated that there is 
sufficient light during civil twilight to see and avoid ground-based 
obstacles. One commenter compared UAS to ultralight vehicles, citing 
precedent in Sec.  103.11(b), which allows ultralight vehicles to be 
operated during civil twilight, provided the vehicle is equipped with 
an operating anti-collision light visible for at least 3 statute miles. 
The Drone User Group Network suggested that with appropriate lighting, 
a small UAS would in fact be more visible in low light than during the 
day, thus enabling the remote pilot to exercise his or her visual-line-
of-sight responsibility. Many of the comments cited photography as a 
type of operation that could be conducted during twilight hours.
    Civil twilight is a period of time that, with the exception of 
Alaska,\84\ generally takes place 30 minutes before official sunrise 
and 30 minutes after official sunset. The FAA agrees with commenters 
that operations during civil twilight could be conducted safely under 
part 107 with additional risk mitigation because the illumination 
provided during civil twilight is sufficient for terrestrial objects to 
be clearly distinguished during clear weather conditions. As a result, 
many of the safety concerns associated with nighttime operations are 
mitigated by the lighting that is present during civil twilight. That 
is why current section 333 exemptions permit twilight UAS operations. 
Accordingly, this rule will allow a small UAS to be operated during 
civil twilight.
---------------------------------------------------------------------------

    \84\ Civil twilight in Alaska is discussed later in this section 
of the preamble.
---------------------------------------------------------------------------

    However, while civil twilight provides more illumination than 
nighttime, the level of illumination that is provided during civil 
twilight is less than the illumination provided between sunrise and 
sunset. To minimize the increased risk of collision associated with 
reduced lighting and visibility during twilight operations, this rule 
will require small unmanned aircraft operated during civil twilight to 
be equipped with anti-collision lights that are visible for at least 3 
statute miles.
    A remote pilot in command may reduce the intensity of the anti-
collision lights if, because of operating conditions, it would be in 
the interest of safety to do so. For example, the remote pilot in 
command may reduce the intensity of anti-collision lights to minimize 
the effects of loss of night vision adaptation. The FAA emphasizes that 
anti-collision lighting will be required under this rule only for civil 
twilight operations; a small unmanned aircraft that is flown between 
sunrise and sunset need not be equipped with anti-collision lights.
    The FAA acknowledges that current exemptions issued under Public 
Law 112-95, section 333 allow civil twilight operations without a 
requirement for anti-collision lighting. However, the section 333 
exemptions do not exempt small UAS operations from complying with Sec.  
91.209(a), which requires lighted position lights when an aircraft is 
operated during a period from sunset to sunrise (or, in Alaska, during 
the period a prominent unlighted object cannot be seen from a distance 
of 3 statute miles or the sun is more than 6 degrees below the 
horizon). As such, UAS currently operating under a section 333

[[Page 42104]]

exemption have lighting requirements when operating during civil 
twilight.
    However, while current section 333 exemptions rely on position 
lighting, it would be impractical for this rule to prescribe 
specifications for position lighting for civil twilight operations 
because a wider range of small unmanned aircraft will likely operate 
under part 107. Position lighting may not be appropriate for some of 
these aircraft. Thus, instead of position lighting, small unmanned 
aircraft operating under part 107 will be required to have anti-
collision lights when operating during civil twilight.
    The FAA also notes that meteorological conditions, such as haze, 
may sometimes reduce visibility during civil twilight operations. 
Accordingly, the FAA emphasizes that, as discussed in the following 
section of this preamble, this rule also requires that the minimum 
flight visibility, as observed from the location of the ground control 
station, must be no less than 3 statute miles.
    Several commenters, including the Nature Conservancy, MPAA, 
Commonwealth Edison Company, the American Fuel & Petrochemical 
Manufacturers, and the Newspaper Association of America, suggested that 
certain types of operations should be exempt from the proposed 
nighttime prohibition. These operations include: Emergency operations, 
public service operations, hazardous material response, railroad 
incident management, public utility inspection and repair, pipeline 
monitoring, thermal roof inspections using infrared technology, 
conservation-related operations in sparsely populated areas, ski area 
operations where people and property can be easily avoided, news-
reporting, and filming in controlled, well-lit areas. The American Farm 
Bureau and several other commenters claimed that certain UAS operations 
are best conducted at night. These operations include research and 
humanitarian operations, crop treatments, wildfire fighting, nocturnal 
wildlife monitoring, infrastructure monitoring, and operations using 
infrared and thermal imaging cameras. The Property Drone Consortium 
stated that a daylight-only requirement would restrict the ability of 
its members to conduct thermal imaging using small UAS.
    Commonwealth Edison stated that the proposed restriction to 
daylight-only operations would constrain the ability to use small UAS 
to respond to emergencies that occur outside of daylight hours. 
Similarly, NRECA stated that the restriction to daylight operations 
would severely impede its members' ability to respond to electrical 
grid emergencies caused by weather. Both Commonwealth Edison and NRECA 
suggested that the final rule include deviation authority to allow 
nighttime operations if it can be shown that such operations can be 
conducted safely. Similarly, Boeing, the University of North Dakota's 
John D. Odegard School of Aerospace Sciences, and DJI recommended that 
the proposed nighttime-operation prohibition be amended to allow 
waivers to be authorized by the Administrator to accommodate time-
critical and emergency operations that may need to be conducted at 
night if those operations can be conducted safely.
    The FAA agrees with commenters that there could be benefits to 
allowing certain small UAS operations at night, such as search and 
rescue or firefighting operations when those operations are conducted 
as civil operations. As such, the nighttime-operation prohibition in 
this rule will be waivable. The FAA will consider granting a 
certificate of waiver allowing a nighttime small UAS operation if an 
applicant can demonstrate sufficient mitigation such that operating at 
night would not reduce the level of safety of the operation.
    The American Petroleum Institute recommended an exception for 
Alaska's North Slope, an area of significant operations for the oil and 
gas industry. The commenter noted that there are no daylight hours for 
approximately 3 months of the year in that area.
    The same safety concerns exist in northern Alaska as they do 
anywhere in the United States during periods of darkness. However, as 
discussed previously, this rule will allow small UAS operations to be 
conducted during civil twilight. This will add significantly greater 
flexibility to Alaska operations because for the northernmost portions 
of Alaska, the sun never rises for as many as 64 days a year. By 
allowing operations to take place during civil twilight, this rule will 
allow small UAS operations year round, even in Alaska's North Slope. In 
addition, as discussed previously, the FAA will consider granting a 
certificate of waiver for specific nighttime operations if the 
applicant can demonstrate that operating at night will not reduce the 
safety of the operation.
    Qualcomm, FLIR Systems, the Drone User Group Network, and several 
individuals supported operations at night utilizing technology such as 
night-vision cameras to allow the aircraft to be safety piloted. The 
Association of American Railroads contended that risks associated with 
nighttime operations could be mitigated by requiring small unmanned 
aircraft to be equipped with sense-and-avoid technology approved by the 
FAA. Kapture Digital Media and another commenter asserted that night-
vision-enabled FPV cameras are available that would aid in seeing-and-
avoiding other aircraft and hazards at night. The South Dakota 
Department of Agriculture suggested that the FAA prescribe a 
performance-based standard in lieu of daylight-only restrictions, thus 
allowing for the integration of new risk-mitigating technologies as 
they are developed and refined. The Colorado Cattlemen's Association 
suggested that risks related to low-light and nighttime operations 
could be mitigated through technological equipage.
    For the reasons discussed earlier in this preamble, existing 
vision-enhancing devices, such as FPV, do not currently provide a field 
of vision sufficient for the user to safely see and avoid other 
aircraft. Current sense-and-avoid technology would also insufficiently 
mitigate the risk associated with flying at night because this 
technology is still in its early stages of development. As of this 
writing, there is no sense-and-avoid technology that has been issued an 
airworthiness certificate. The FAA will keep monitoring this technology 
as it develops and may incorporate it, as appropriate, into 
certificates of waiver, future UAS rules, or possible future revisions 
to part 107.
    Several commenters suggested permitting nighttime operations by 
further segmenting the small UAS category of aircraft by lesser weights 
or lower operational altitudes. However, even a relatively light small 
unmanned aircraft could cause a hazard by colliding with another 
aircraft in the NAS or an object on the ground. As discussed 
previously, these safety risks are more prevalent at night due to 
reduced visibility. While low weight could be one mitigation measure 
that a person could use to support a waiver application, this factor, 
by itself, would be unlikely to mitigate the additional risk associated 
with a nighttime small UAS operation.
    Embry-Riddle and the Florida Department of Agriculture, Consumer 
Services' UAS Working Group (Florida Department of Agriculture) 
proposed allowing operators possessing additional certification to fly 
at night. Textron Systems and several individuals recommended 
additional training for night operations.
    As discussed previously, this initial small UAS rulemaking effort 
is intended to immediately integrate the lowest risk small UAS 
operations into the NAS. The

[[Page 42105]]

FAA plans to address higher risk operations and the mitigations 
necessary to safely conduct those operations, such as the mitigations 
suggested by the commenters, in future agency actions. The FAA will 
consider the commenters' recommendations as part of future rulemaking 
efforts to integrate higher-risk UAS operations, such as nighttime 
operations, into the NAS.
    AUVSI, Prioria Robotics, and a joint submission from Skycatch, 
Clayco, AECOM, and DPR Construction pointed to Australia and New 
Zealand as examples of countries where nighttime operations have been 
safely conducted in areas with established UAS regulations. In keeping 
with U.S. obligations under the Convention on International Civil 
Aviation, it is FAA policy to conform to ICAO SARPs to the maximum 
extent practicable. However, there are currently no ICAO SARPs that 
correspond to the nighttime-operation provisions of these regulations. 
Because the integration of UAS into the NAS is an incremental process, 
the FAA will continue expanding UAS operations to include those that 
pose greater amounts of risk, utilizing data gleaned from industry 
research, the UAS test sites, and international UAS operations.
    Matternet and the Mercatus Center at George Mason University cited 
Sec.  101.17, stating that kites and moored balloons operate safely at 
night, with specific lighting requirements, even though they are not 
equipped with the kinds of sense-and-avoid technologies likely included 
in small UAS systems.
    As discussed previously, sense-and-avoid technology does not 
currently provide sufficient mitigation to enable nighttime operations. 
In addition, while kites and moored balloons operated under part 101 
are permitted to operate at night, Sec.  101.15 requires the kite or 
moored balloon operator to notify the nearest ATC facility of the 
details of the operation at least 24 hours prior to each operation. 
Because kites and moored balloons governed by part 101 operate in a 
fixed location, this ATC notification allows ATC to disseminate details 
of the operation to other aircraft in the area. Conversely, with some 
exceptions, small UAS operating under part 107 in Class G airspace will 
not be required to communicate with ATC prior to or during the 
operation.
    One commenter suggested that small UAS operations be limited to the 
period between one half hour after official sunrise and one half hour 
before official sunset, arguing that it is not uncommon for small 
unmanned aircraft to have low-visibility color schemes. However, it is 
not necessary to further reduce operations conducted near sunset or 
sunrise to mitigate the risk of small UAS operations in low light 
conditions. As discussed previously, low-light conditions provide 
sufficient lighting to mitigate many of the safety concerns underlying 
the prohibition on nighttime operations.
ii. Weather/Visibility Minimums
    The NPRM also proposed additional visibility and cloud-clearance 
requirements to ensure that the person maintaining visual line of sight 
has sufficient visibility to see and avoid other aircraft. 
Specifically, the NPRM proposed a minimum flight visibility of at least 
3 statute miles from the location of the ground control station. The 
NPRM also proposed that the small unmanned aircraft must maintain a 
minimum distance from clouds of no less than: (1) 500 feet below the 
cloud; and (2) 2,000 feet horizontally away from the cloud. This rule 
will finalize these minimum-flight-visibility and cloud-clearance 
requirements as proposed in the NPRM but will make those requirements 
waivable.
    Commenters including NAAA, ALPA, and Commonwealth Edison Company 
supported the proposed minimum flight visibility and distance-from-
clouds requirements. Commonwealth Edison asserted that the proposed 
visibility requirements, in combination with the other proposed 
operational requirements, would ``safeguard safety while recognizing 
reasonable commercial interests in such a rapidly evolving 
technological environment.'' NAAA stated that the proposed requirements 
are consistent with the VFR visibility requirements under 14 CFR 91.155 
and 91.115. The Professional Helicopter Pilots Association strongly 
agreed that ``weather minimums be at least basic VFR.'' ALPA also 
agreed that all operations must take place in visual meteorological 
conditions (VMC) with the identified cloud clearances. ALPA further 
recommended that it be made clear that the 3-mile visibility 
requirement for VMC does not mean that the visual-line-of-sight 
required elsewhere in the proposed regulation can necessarily be 
maintained at 3 miles.
    Modovolate Aviation, NAMIC, the Property Drone Consortium, and a 
few individuals generally opposed the imposition of minimum flight 
visibility and distance-from-cloud requirements. The commenters 
asserted that such requirements are unnecessary, given the visual-line-
of sight requirement of Sec.  107.31. Modovolate stated that it is 
unlikely that an operator can keep a small UAS in sight at a distance 
of 3 miles, so a separate weather-visibility requirement is redundant. 
Modovolate also stated that a small UAS operator cannot maintain visual 
contact with his small UAS if it is flown in a cloud, but he would be 
able to fly his small UAS closer than 500 or 1,000 feet to a well-
defined cloud without risk.
    The Professional Society of Drone Journalists (PSDJ), and Edison 
Electric Institute, individually and jointly with NRECA and APPA, 
recommended the removal of the cloud distance requirements altogether. 
PSDJ asserted that the proposed cloud distance requirements would 
render many types of weather coverage and research projects impossible 
and would also make it impossible for small UAS to replace high-risk 
manned flights, ``such as inspecting tower, bridges, or other 
structures,'' as contemplated by the NPRM. The Travelers Companies, 
Inc. recommended the removal of the requirement that small UAS maintain 
a distance of no less than 2,000 feet horizontally from a cloud, 
claiming it is not relevant or workable for pilots flying small UAS 
from the ground. Aerial Services added that the safety concerns 
associated with cloud clearance will be alleviated with automation, the 
maximum altitude restriction, and the restriction on the use of small 
UAS in the vicinity of airports.
    Several other commenters generally supported the imposition of 
minimum flight visibility and cloud clearance requirements, but said 
the proposed minimum requirements should be reduced. Commenters 
including State Farm, AUVSI, the Unmanned Safety Institute, and DJI, 
argued that the minimum flight visibility and cloud distance should be 
reduced to 1 statute mile and changed to ``remain clear of clouds.'' 
AUVSI asserted that this reduced requirement will reflect the small 
size, low speeds, and additional operating limitations of small UAS.
    EEI said the proposed regulation is too restrictive, especially in 
areas prone to low cloud cover. The commenter argued that, as long as 
the operator maintains visual line of sight with the small UAS, the 
aircraft should be permitted to navigate up to 500 feet, regardless of 
the elevation of the clouds above 500 feet. In a joint comment, EEI, 
NRECA, and APPA noted that under the proposed visibility rules, for 
every foot cloud cover dips below 1,000 feet, the small UAS dips a foot 
below 500 feet, so that cloud cover at 500 feet would ground all small 
UAS operations. The commenters suggested that operations in Class G 
airspace should be allowed up to 500 feet AGL, or the height of

[[Page 42106]]

cloud cover, whichever is lower. Exelon Corporation further suggested 
the rule include permission to operate on the transmission and 
distribution rights-of-way at altitudes not to exceed the tops of the 
structures plus 50 feet without weather visibility restrictions. The 
News Media Coalition suggested eliminating the flight-visibility and 
cloud-clearance requirements for UAS operated within the parameters in 
the blanket COA for section 333 exemptions.\85\
---------------------------------------------------------------------------

    \85\ The specific parameters suggested by the commenter 
consisted of flight at or below 200 feet AGL and at least (a) 5 
nautical miles from an airport having an operational control tower; 
(b) 3 nautical miles from an airport with a published instrument 
flight procedure, but not an operational tower; (c) 2 nautical miles 
from an airport without a published instrument flight procedure or 
an operational tower; or (d) 2 nautical miles from a heliport with a 
published instrument flight procedure.
---------------------------------------------------------------------------

    As discussed earlier, under this rule, the remote pilot in command 
will be responsible for observing the operating environment for other 
aircraft and, if necessary, maneuvering the small unmanned aircraft to 
avoid a collision with other aircraft. However, there is a significant 
speed difference between a manned aircraft and a small unmanned 
aircraft. Under part 91, a manned aircraft flying at low altitude could 
travel at speeds up to 230 to 288 miles per hour (mph).\86\ On the 
other hand, a small unmanned aircraft operating under this rule will 
have a maximum speed of 100 mph and many small unmanned aircraft will 
likely have a far lower maximum speed.
---------------------------------------------------------------------------

    \86\ 14 CFR 91.117.
---------------------------------------------------------------------------

    Because of this difference in maximum speed, the remote pilot in 
command will need time to respond to an approaching manned aircraft. A 
minimum flight visibility requirement of 3 statute miles is necessary 
to ensure that the remote pilot in command can see far enough away to 
detect a manned aircraft near the area of operation in time to avoid a 
collision with that aircraft. Additionally, cloud clearance provisions 
that require the small unmanned aircraft to maintain a distance of at 
least 500 feet below the cloud and 2,000 feet horizontally away from 
cloud are necessary to reduce the possibility of having a manned 
aircraft exit the clouds on an unalterable collision course with the 
significantly slower small unmanned aircraft. Accordingly, this rule 
will retain the proposed minimum-flight-visibility requirement of 3 
statute miles and minimum cloud-distance requirements of 500 feet below 
the cloud and 2,000 feet horizontally away from the cloud.
    In response to ALPA's concern, the FAA clarifies that the minimum-
flight-visibility and visual-line-of-sight requirements of this rule 
are separate requirements that must both be satisfied. The visual-line-
of-sight requirement of Sec.  107.31 is intended to ensure that the 
person maintaining visual line of sight can see the small unmanned 
aircraft and the immediately surrounding airspace. It is unlikely that 
a person will be able to maintain visual line of sight of a small 
unmanned aircraft in compliance with Sec.  107.31 if that aircraft is 3 
miles away from him or her. Conversely, the 3-mile visibility 
requirement of Sec.  107.51 is intended simply to ensure that the 
person at the control station is able to see relatively larger manned 
aircraft that may rapidly be approaching the area of operation.
    Southern Company suggested that small UAS operations should mirror 
the VFR weather minimums for manned-helicopter flight and that the 
Special VFR minimums under 14 CFR 91.157 should also apply to small UAS 
operations to the extent available for helicopters. The commenter 
suggested that small UAS operations would satisfy the requirements for 
Special VFR flight, because only ATC authorization is necessary before 
Special VFR flight and all small UAS must receive an ATC clearance when 
operating in controlled airspace. The commenter also asserted that the 
use of helicopter minimums is appropriate in this rule because, like 
helicopters, a small UAS is highly maneuverable and easier to land than 
fixed-wing aircraft. The Small UAV Coalition similarly suggested that 
the FAA adopt the helicopter cloud-clearance test for small UAS.
    The FAA acknowledges that the part 107 visibility requirements for 
small UAS operations in Class G airspace will be more stringent than 
the requirements of part 91. Part 91 allows aircraft operating in Class 
G airspace to operate with 1 statute mile visibility and simply 
requires the aircraft to keep clear of clouds. However, as numerous 
commenters pointed out, small UAS operating under this rule may, as a 
result of their size, be difficult to see for manned-aircraft pilots. 
Additionally, unlike manned aircraft, small unmanned aircraft will not 
be required to carry equipage, such as TCAS and ADS-B, that aids in 
collision avoidance. Because of the additional challenges with 
collision avoidance raised by small UAS operating under part 107, a 
more stringent visibility requirement is necessary than the one imposed 
by part 91 on manned-aircraft operations in Class G airspace.
    Vail Resorts asked the FAA to reduce or eliminate cloud clearance 
requirements in certain terrain, or with certain mitigation in place 
(e.g., a lighting system on the small UAS). The commenter stated that 
the minimum-flight-visibility and distance-from-cloud requirements are 
unnecessarily restrictive in a high alpine environment where the 
potential for interaction with manned aircraft is incredibly remote, 
and can be mitigated by other limitations. Venture Partners asserted 
that its products will contain onboard technology and capabilities that 
will allow UAS to operate in adverse weather conditions.
    The FAA agrees that there could be operations in areas where the 
likelihood of interaction with manned aircraft is reduced or in which 
the risk of collision with a manned aircraft is mitigated by other 
means (such as technological equipage). Accordingly, the FAA has made 
the visibility and cloud-clearance requirements of part 107 waivable 
and will consider individual operating environments and other 
mitigations as part of its review of a waiver request. The FAA plans to 
use data acquired as part of the waiver process to inform future agency 
actions that will further integrate UAS into the NAS.
    The Airborne Law Enforcement Association requested an exception 
from the 3-mile minimum flight visibility requirement for public safety 
operations, saying that, with the visual-line-of-sight restriction, 
``there are many opportunities to safely utilize UAS technology to the 
benefit of public safety operations.'' The Organization of Fish and 
Wildlife Information Managers recommended a disaster-response exemption 
from the 3-mile flight visibility requirement, asserting that UAS 
flights in conditions with less than 3 miles of visibility could be 
integral in protecting human life and natural research welfare in the 
event of a man-made or natural disaster.
    As discussed earlier, this rule will not apply to public aircraft 
operations unless the operator chooses to conduct the operation as a 
civil aircraft. Thus, public aircraft operations, such as public safety 
operations conducted by law enforcement agencies, will not be subject 
to part 107. With regard to the other specific types of operations 
mentioned in the comments, as discussed previously, the minimum-flight-
visibility and cloud-clearance requirements of this rule will be 
waivable. Thus, operations conducted for salutary purposes, such as the 
ones mentioned by the commenters, could be authorized through the 
waiver process if the remote pilot establishes that the operation can 
safely be conducted under the terms of a certificate of waiver.

[[Page 42107]]

    The Metropolitan Airports Commission, Airports Council 
International-North America, the American Association of Airport 
Executives, and Exelon Corporation recommended that the requirement for 
3 miles of visibility be from the location of the small unmanned 
aircraft and not from the location of the ground control station. The 
Metropolitan Airports Commission stated that the 3-mile visibility 
requirement is based on a manned aircraft pilot's vantage point 
positioned inside the aircraft, which provides a 3-mile observation 
radius around the aircraft to see and avoid potential hazards. Airports 
Council International-North America claimed that a 3-mile visibility 
requirement from the unmanned aircraft instead of the ground control 
station will prevent cases where the UAS operator operates an aircraft 
at the limit of the operator's line of sight. Lloyd's Market 
Association and the International Underwriting Association said the 3-
mile minimum flight visibility requirement may be difficult to 
administer and police, and wondered if maximum wind speeds have been 
taken into account.
    This rule will retain the requirement that the minimum visibility 
must be measured from the control station. The reason for this 
requirement is to allow the person manipulating the flight controls of 
the small UAS to see other aircraft that could be entering the area of 
operation. The person manipulating the small UAS flight controls will 
be located at the control station (since the control station is the 
interface used to control the flight), and thus the minimum-visibility 
requirement must be measured from the control station. With regard to 
the comment arguing that the 3-mile minimum flight visibility 
requirement may be difficult to administer and police, the remote pilot 
in command must, among other things, ensure that the small UAS 
operation complies with part 107.
    This rule will not impose prescriptive requirements on maximum 
permissible wind speed because there is a wide range of small UAS that 
could be operated under part 107. These UAS will have varying ability 
to respond to wind and a prescriptive regulatory requirement would be 
more stringent than necessary on certain small UAS while being less 
stringent than necessary on other UAS. Instead, Sec.  107.49(a)(1) will 
require the remote pilot in command to assess local weather conditions 
as part of the preflight assessment required by Sec.  107.49. If the 
remote pilot in command determines that the wind speed is too high to 
safely conduct the small UAS operation, then he or she will have to 
either reschedule the operation or implement mitigations to ensure the 
safety of the operation.
    One commenter asked the FAA to clarify whether the 3-mile flight 
visibility requirement is horizontal visibility or slant angle 
visibility. The commenter asserted that there are many situations where 
radiation or advection fog might obscure horizontal visibility yet 
bright blue sky is visible above the fog.
    The 3-mile flight visibility requirement is based on a slant angle 
from the control station. In other words, a person standing at the 
control station of the small UAS must be able to see at a diagonal 
distance of 3 miles into the sky in order to detect other aircraft that 
may be approaching the area of operation. This requirement ensures that 
the remote pilot in command can effectively observe the airspace for 
presence of other aircraft, and reduces the possibility of the remote 
pilot or visual observer losing sight of the unmanned aircraft. To 
further clarify this concept, the FAA has amended Sec.  107.51(c) to 
explain that flight visibility refers to the average slant distance 
from the control station at which prominent unlighted objects may be 
seen and identified by day and prominent lighted objects may be seen 
and identified by night.
    The University of North Dakota's John D. Odegard School of 
Aerospace Sciences suggested that the rule prohibit small UAS 
operations above clouds because those operations could endanger manned 
aircraft flying under instrument flight rules (IFR). In response, the 
FAA notes that a person is unlikely to be able to maintain visual line 
of sight of a small unmanned aircraft that is flying above the clouds.
    Schertz Aerial Services, the Permanent Editorial Board of the 
Aviators Model Code of Conduct Initiative, and the City and County of 
Denver, Colorado suggested that the proposed flight-visibility and 
minimum-cloud-distance requirements be increased. Schertz Aerial 
Services said that because UAS are so much smaller than manned 
aircraft, the proposed 3-mile flight visibility requirement, which was 
developed for manned aircraft, is not adequate for UAS and should be 
increased to 5 statute miles. Denver also recommended increasing the 
minimum flight visibility requirement to 5 statute miles, but only in 
controlled airspace. The commenter additionally recommended the 
imposition of a 2,000-foot ceiling for operations in controlled 
airspace. ``Those visibility enhancements,'' Denver continued, ``will 
maximize opportunities for both the operator and other aircraft pilots 
to successfully employ the see-and-avoid technique.''
    One commenter said the minimum flight visibility requirement should 
be increased to 10 to 12 miles and the distance-from-cloud requirements 
should both be increased by 1,000 feet. Another commenter said the FAA 
should set a specific percentage or range for cloud coverage to be 
allowed during flight, in addition to the distance-from-cloud 
requirements.
    The FAA recognizes the fact that increased flight visibility would 
provide more time for the remote pilot in command to maneuver away from 
other aircraft. However, the likelihood of the remote pilot seeing 
other small UAS, other smaller aircraft, or other hazards such as power 
lines or antennas from a distance of five or more miles is not 
probable, so such a requirement would not create an additional safety 
buffer. A 5-mile visibility requirement above 10,000 feet mean sea 
level (not including the surface to 2,500 feet above ground level) is 
imposed by part 91 because manned-aircraft pilots have a need for 
increased visibility at that higher altitude due to permitted airspeeds 
above 288 mph. A remote pilot in command, on the other hand, will 
remain on the ground and will have to deal with ground obstacles that 
impede vision. The remote pilot in command will also be looking into 
the sky at a slant angle from the ground rather than horizontally in 
the manner of a manned-aircraft pilot. This means that a remote pilot 
will generally be challenged to perceive useful information from his or 
her vision beyond three miles. An increase in the cloud distance 
requirements poses the same dilemma, unless the object is large enough 
or distinct enough it will not likely be visible early enough to 
provide the opportunity to avoid or change course sooner.
    PlaneSense and Cobalt Air, commenting jointly, recommended 
prohibiting a remote pilot from operating a small UAS if the ceiling is 
lower than 1000 feet MSL. The commenters contended that for manned 
aircraft, the pilot is in the aircraft and is therefore better able to 
make a determination about the distance to a cloud from the aircraft 
than an operator on the ground positioned 1/4 mile away from the 
unmanned aircraft.
    The FAA declines to prohibit small UAS operations when cloud 
ceilings are

[[Page 42108]]

lower than 1,000 feet AGL.\87\ Specifically, the FAA disagrees that the 
remote pilot in command will not be in a position to determine whether 
the unmanned aircraft is positioned sufficiently far enough from a 
cloud to meet the requirements of Sec.  107.51(d). While this rule does 
not require specific technological equipage to determine altitude of 
the unmanned aircraft, nothing in this rule precludes the remote pilot 
in command from doing so as a means to mitigate the risk of cloud 
clearance requirements. A remote pilot in command may also opt to 
operate the unmanned aircraft at a sufficiently low altitude that he or 
she can easily determine the aircraft's altitude. Further, cloud 
ceilings can be determined through nearby AWOS/ASOS/ATIS reports, 
visual cloud observations, or observation of obscuration of nearby 
prominent landmarks of a known elevation. If a remote pilot in command 
cannot ensure that the unmanned aircraft will maintain sufficient cloud 
clearance in accordance with Sec.  107.51(d), that person may not 
conduct operations until weather conditions improve. As such, no 
minimum ceiling requirement is necessary in this rule.
---------------------------------------------------------------------------

    \87\ The commenters referred to 1,000 feet MSL, but the FAA 
assumes the commenter intended to recommend a prohibition of 
operations with a ceiling less than 1,000 feet AGL.
---------------------------------------------------------------------------

    Noting that the NPRM would not require a qualified weather 
observer, one commenter questioned who is responsible for determining 
visibility at the time of the operation. The commenter further 
questioned if the regulation has a requirement for the airman trained 
and certificated for small UAS to receive training and demonstrate 
competence in making accurate visibility determinations. Another 
commenter also questioned who determines visibility, and recommended 
that FAA require as a minimum that VMC exist and that the closest 
Official Weather Reporting Station be used.
    Under this rule, the remote pilot in command is ultimately 
responsible for determining whether a flight can be conducted safely. 
As part of the preflight assessment required by Sec.  107.49, the 
remote pilot in command must evaluate local weather conditions, which 
includes an evaluation of whether those conditions are sufficient to 
meet the requirements of Sec.  107.51(c) and (d). With regard to 
competence, as discussed in section III.F.2.j of this preamble, 
knowledge of aviation weather sources that can be used to inform the 
small UAS operation will be tested on both the initial and recurrent 
aeronautical knowledge test. The initial aeronautical knowledge test 
will also test the airman certificate applicant's knowledge of effects 
of weather on small unmanned aircraft performance. For the reasons 
discussed in section III.F.2.e of this preamble, formal training and 
practical testing requirements are not a necessary component of this 
rule.
iii. Yielding Right of Way
    For the reasons discussed below, this rule will finalize the NPRM-
proposed requirement that small unmanned aircraft must yield the right 
of way to all other users of the NAS but will make that requirement 
waivable. As discussed in the NPRM, the smaller visual profile of the 
small unmanned aircraft, the lack of collision-avoidance technology on 
the aircraft, and the difference in speed between the unmanned and 
manned aircraft increases the difficulty for manned-aircraft pilots to 
see and avoid the small unmanned aircraft. As such, this rule will 
require that the small unmanned aircraft always be the one to initiate 
an avoidance maneuver to avoid collision with any other user of the 
NAS. This rule will also include the NPRM-proposed requirement 
prohibiting the operation of a small unmanned aircraft so close to 
another aircraft as to create a collision hazard.
    Approximately 20 commenters agreed with the proposal that small 
unmanned aircraft must always yield the right of way to all other users 
of the NAS. Several commenters stated that the requirement is sensible 
because small unmanned aircraft are more difficult to see than manned 
aircraft. Numerous other commenters, including NAAA, stated that small 
unmanned aircraft are more maneuverable than manned aircraft and 
therefore would have less difficulty taking evasive action to avoid a 
collision with a manned aircraft.
    On the other hand, the Small UAV Coalition suggested that in 
certain circumstances it may be preferable to have a manned-helicopter 
yield to a small unmanned aircraft. The Small UAV Coalition presented a 
scenario where a small UAS is being operated to film a newsworthy 
event. If a manned helicopter were to arrive later to also film the 
event, under the proposed rule, the small UAS would be required to 
yield right of way to the helicopter. The commenter suggested that 
safety would be better served if both the manned and unmanned aircraft 
maintained awareness so as to see and avoid each other and proposed 
that part 107 adopt the right-of-way rules currently used in part 91. 
Another commenter suggested that the FAA should consider creating 
different right-of-way rules for different classes of NAS users.
    Requiring small unmanned aircraft to always yield the right of way 
to all other users of the NAS is a critical component of the see-and-
avoid framework of part 107. As discussed in the NPRM, the small size 
associated with small unmanned aircraft will make those aircraft more 
difficult to detect for manned-aircraft pilots. Additionally, small UAS 
operating under this rule will not be required to be equipped with 
collision avoidance technology, such as transponders or TCAS, that 
would make it easier for manned-aircraft pilots to detect a small 
unmanned aircraft operating in their vicinity. Conversely, because of 
the far larger size and higher noise profile of manned aircraft, the 
person maintaining visual line of sight as part of a small UAS 
operation will be in a far better position to detect other users of the 
NAS and initiate maneuvers to avoid a collision.
    As such, this rule will retain the proposed requirement that the 
small unmanned aircraft must always be the one to initiate an avoidance 
maneuver to avoid collision with any other user of the NAS. This rule 
will make this requirement waivable for individual small UAS operations 
(if the proposed operation can safely be conducted under the terms of a 
certificate of waiver), but will otherwise retain the right-of-way 
requirement as proposed in the NPRM.
    When yielding the right of way, the small unmanned aircraft should 
optimally yield to manned aircraft in such a manner that the manned 
aircraft is never presented with a see-and-avoid decision or the 
impression that it must maneuver to avoid the small unmanned aircraft. 
The FAA also emphasizes that in extreme situations where collision is 
imminent, the remote pilot in command must always consider the safety 
of people first and foremost over the value of any equipment, even if 
it means the loss of the small unmanned aircraft.
    An individual suggested that the FAA clarify that it is the remote 
pilot's responsibility, more so than that of a manned aircraft pilot, 
to exercise due diligence to prevent other aircraft from having to take 
evasive action to avoid the small unmanned aircraft.
    The FAA emphasizes that it is the responsibility of all users of 
the NAS to avoid a collision. However, this rule places a duty on the 
small unmanned aircraft to always yield the right of way to other users 
of the NAS because the remote pilot in command will have a better 
ability to detect those users. Specifically, due to size, noise, and 
equipage considerations that apply to manned aircraft, it will be 
easier for a

[[Page 42109]]

remote pilot to detect a manned aircraft operating in his or her 
vicinity than for a manned aircraft pilot to detect a small unmanned 
aircraft.
    The Small UAV Coalition sought clarification on what it means to 
``give way to the other aircraft or vehicle and may not pass over, 
under, or ahead of it unless well clear.'' The Air Medical Operators 
Association, HAI, and an individual noted that the NPRM does not define 
the term ``well clear.'' The Small UAV Coalition asserted that ``this 
explanation would permit a sUAS operator to take precedence over a 
manned helicopter provided the UAV remain `well clear' of the manned 
helicopter.''
    Under this rule, yielding the right of way means that the small 
unmanned aircraft must give way to the other aircraft or vehicle and 
may not pass over, under, or ahead of the other aircraft/vehicle unless 
well clear. The term ``well clear'' means that the small unmanned 
aircraft is far enough away from the other aircraft or vehicle that it 
no longer presents a hazard to that aircraft or vehicle. Thus, if a 
manned aircraft enters the area of operation, the small unmanned 
aircraft must initiate maneuvers to ensure that it maintains a distance 
from the manned aircraft such that there is no risk of collision with 
that aircraft. In response to the Small UAV Coalition, the FAA notes 
that there is no right-of-way issue if two aircraft are far enough 
apart that they do not present a hazard to each other.
    One commenter suggested that this rule allow the remote pilot in 
command to determine the specifics of how to yield the right of way to 
another aircraft.
    The FAA declines to allow a remote pilot in command to pass over, 
under, or ahead of a manned aircraft if the small unmanned aircraft is 
not well clear of the manned aircraft. Compared to a pilot onboard a 
manned aircraft, it may be more difficult for a remote pilot in command 
to judge the relative altitude of another aircraft in flight. Further, 
the remote pilot will generally be limited to a maximum operating 
ceiling of 400 feet AGL, as specified in Sec.  107.51(b), and the 
manned aircraft will likely be moving significantly faster than the 
small unmanned aircraft. As such, it is critical that the remote pilot 
in command not attempt to maneuver the unmanned aircraft to pass over, 
under, or ahead of a manned aircraft unless well clear, as doing so may 
present a hazard to the manned aircraft.
    Several commenters, including the Property Drone Consortium, 
Southern Company, and several individuals generally focused on right-
of-way situations involving two or more small unmanned aircraft. The 
Property Drone Consortium and two individuals questioned how two 
unmanned aircraft could yield the right of way to each other. Southern 
Company proposed that the FAA treat ``conflicts between small UAS as 
conflicts between aircraft of the same category.''
    This rule will not treat conflicts between two small unmanned 
aircraft the same manner that the FAA has traditionally treated 
conflicts between two aircraft of the same category because the rules 
that apply to aircraft of the same category (Sec.  91.113(d) and (e)) 
are not easily applied to small UAS. For example, under Sec.  
91.113(d), when two aircraft of the same category are converging, the 
aircraft to the other's right has the right of way. For manned 
aircraft, it is easy for a pilot to distinguish whether an aircraft is 
to the pilot's right or left. For unmanned aircraft, however, a remote 
pilot's perspective depends on where the remote pilot is located on the 
ground relative to his or her small unmanned aircraft. Therefore, 
applying the traditional manned-aircraft right-of-way rules to small 
UAS may cause confusion.
    Instead of imposing a specific right-of-way requirement on 
conflicts between two small unmanned aircraft, this rule will require 
the remote pilot in command to use his or her best judgment to avoid 
other small unmanned aircraft in the NAS. Specifically, under Sec.  
107.37(b), each remote pilot in command will have to take whatever 
maneuvers are necessary to ensure that his or her small unmanned 
aircraft is not flying so close to other unmanned aircraft as to create 
a collision hazard.
    NAAA, Raebe Spraying Service, Boeing, the Property Drone 
Consortium, the Colorado Agricultural Aviation Association, and an 
individual expressed concern regarding the proximity of unmanned 
aircraft to manned-aircraft operations. Each commenter proposed 
resolving the conflicts with a specified range requirement. NAAA 
suggested that UAS operations be prohibited within a 2-mile vicinity of 
ongoing aerial application operations due to the seemingly 
unpredictable flight patterns and ``unique nature of ag operations.''
    This rule will not impose a prescriptive numerical range 
requirement on small unmanned aircraft because the distance needed to 
remain well clear of another user of the NAS will vary depending on the 
specific small UAS and manned aircraft involved, as well as the 
operating environment. The FAA understands that agricultural operations 
may present seemingly unpredictable flight patterns to an observer. 
However, the visual-line-of-sight requirements of this rule ensure that 
the remote pilot in command will be able to visually observe the small 
unmanned aircraft at all times during the operation. This direct 
observation will allow the remote pilot to react appropriately to any 
other users in the NAS that may approach his or her small unmanned 
aircraft. The right-of-way requirements ensure that the remote pilot 
yields to any other users of the NAS and prioritizes the safety of 
people above preventing any damage to the small unmanned aircraft.
    Aviation Management, State Farm, Prioria Robotics, and an 
individual commented on aspects of technology that would affect right-
of-way rules. Aviation Management, State Farm, and another commenter 
suggested that the FAA modify the language of the rule to take into 
account prospective use of technology to aid in the deconfliction of 
manned and unmanned aircraft.
    The FAA agrees that there is much promise for technology to aid in 
the deconfliction of manned and unmanned aircraft, but that technology 
(referred to as ``sense and avoid'' technology) is still in its 
infancy. As of this writing, the FAA does not have data indicating that 
sense and avoid technology has matured to the point needed to allow a 
small unmanned aircraft to reliably avoid a collision with a manned 
aircraft. The FAA notes that the visual-line-of-sight and see-and-avoid 
requirements of part 107 are both waivable and that the waiver process 
will allow the FAA to allow the use of sense-and-avoid technology on a 
case-by-case basis. The FAA intends to use the data acquired from the 
waiver process to inform future agency actions to further integrate 
small UAS into the NAS.
    One commenter asked the FAA to amend proposed Sec.  107.37(a)(2) to 
require the small unmanned aircraft to also avoid a collision with 
ground-based obstacles. The FAA declines to categorically limit how 
close a small unmanned aircraft may get to a ground-based obstacle. 
Some small UAS operations, such as bridge and tower inspections, may 
need to fly closely to a ground-based obstacle in order to successfully 
conduct the operation. Unlike collision with a manned aircraft, there 
could be instances where collision with a ground-based obstacle does 
not endanger human life. However, the FAA emphasizes the requirement of 
Sec.  107.23(a), which prohibits a person from operating a small UAS in 
a careless or reckless manner so as to endanger the life or property of 
another.

[[Page 42110]]

d. Additional Technology/Conspicuity Requirements
    While the NPRM did not propose to require any technological 
equipage for small UAS operating under part 107, several commenters 
suggested either adding these requirements to part 107 or otherwise 
recognizing small UAS that may be equipped with technology that 
mitigates the safety concerns underlying the provisions of part 107. 
Commenters also suggested imposing conspicuity requirements on small 
unmanned aircraft. For the reasons discussed below, this rule will not 
impose additional conspicuity requirements on small UAS operating under 
part 107 nor will it require those UAS to have any technological 
equipage. The FAA will consider any technologically based mitigations 
equipped on a small UAS as part of the waiver process.
i. ADS-B, Transponders, and TCAS
    Some commenters, including Daniel Webster College, NAAA, CAPA, and 
the Air Medical Operators Association, stated that there should be a 
requirement for small UAS to be equipped with ADS-B. Daniel Webster 
College, NAAA, the California Aviation Agricultural Association, and 
the Colorado Aviation Agricultural Association (CoAAA) recommended an 
ADS-B Out equipment requirement to increase small UAS visibility. NAAA 
and CoAAA said ADS-B Out technology, or the like, should be required 
pending its effectiveness and usability to track UAS.
    Several of the commenters who supported an ADS-B requirement 
addressed the availability of ADS-B systems for small UAS. NAAA and 
CoAAA stated that ADS-B Out equipment is currently available on the 
market for use in UAS. NAAA asserted that these units weigh as little 
as 300 grams and cost as little as $1,200. Airware also asserted that 
ADS-B Out transponders currently exist that are small and cost 
effective enough for small UAS. The company noted, however, that this 
technology is only suitable for uncontrolled airspace because 
transponders are not currently certificated by the FAA. One commenter 
said that a technologically and economically feasible option would be 
to use ``the more inexpensive, heavy, and power-hungry ADS-B 
transponder[s]'' by placing them on the ground near the operator. This 
would work, the commenter said, because most missions include a 
reliable command and control data link between a UAS and its ground 
operator.
    Modovolate recommended ADS-B Out and In requirements for small UAS 
weighing between 20 and 55 pounds. The company noted that the purpose 
of ADS-B In (i.e., equipment to receive and present ADS-B information 
to the small UAS operator) is to alert the operator to manned aircraft 
in the general vicinity, so that the operator can take precautionary 
action to avoid the manned aircraft once it is within the operator's 
line of sight. An individual similarly recommended that all small UAS 
over 1.5 kilograms should have a capability for ADS-B In for operators 
to be able to sense and avoid other aircraft.
    Several commenters discussed an ADS-B requirement for small UAS in 
the context of the FAA's 2020 deadline for equipping manned aircraft 
with the same technology. The Air Medical Operators Association and 
Schertz Aerial Services recommended the same deadline be imposed for 
small UAS. Schertz Aerial Services said that five years ``will provide 
an adequate amount of time for ADS-B Out to miniaturize and lower in 
cost, so that ADS-B Out can be more practically incorporated into 
UAS.'' The Metropolitan Airports Commission pointed out specifically 
that the 2020 deadline would apply to manned aircraft operating in 
Class B airspace, and recommended that FAA ``strongly consider'' an 
ADS-B Out requirement for small UAS operating in Class B airspace. The 
Commission noted that, because ADS-B equipment is developed in larger 
quantities, the cost to equip small UAS may become reasonable.
    AMA and the Experimental Aircraft Association (EAA) also noted the 
2020 deadline for manned aircraft to be equipped with ADS-B Out 
equipment, and said any requirement for ADS-B Out in small UAS should 
not ``justify further equipment requirements for GA aircraft.'' The 
commenters stressed ``the importance of maintaining the current 
timeline and requirements for ADS-B.''
    Several commenters recommended ADS-B requirements in certain 
circumstances. CAPA stated that ADS-B (along with TCAS with a mode S 
transponder) should be the minimum standard for UAS operations above 
400 feet and within airport airspace. Another commenter said small UAS 
should have ADS-B Out to operate ``within the Class B mode-C veil and/
or inside Class D airspace.'' A few individuals said ADS-B should be 
required for all operations above a certain number of feet AGL--i.e., 
100 feet, 200 feet, and 400 feet AGL. Another individual proposed that 
ADS-B be ``encouraged'' for ``small'' UAS (i.e., rotary craft less than 
2 kg, fixed wing less than 6 kg), be required for ``medium'' UAS (i.e., 
rotary craft, less than 4 kg, fixed wing 6-12 kg), and be required for 
``large'' UAS (rotary craft less than 20 kg, fixed wing 12-24 kg).
    The FAA acknowledges the concerns raised by the commenters, but 
notes that the risk associated with the operation of an aircraft need 
not always be mitigated through technological equipage. While there are 
benefits associated with technological equipage, there can also be 
significant costs in the form of installation, airworthiness 
certification (to ensure that the equipage is functional, reliable, and 
properly installed), maintenance, and, ultimately, replacement of the 
equipage. The FAA considered imposing equipage requirements in this 
rule, but ultimately decided against this because the risk associated 
with certain small UAS operations (i.e. the operations subject to part 
107) can be mitigated through operational restrictions without any 
equipage requirements.
    As discussed earlier, this rule mitigates the see-and-avoid risk 
associated with small UAS use by requiring that: (1) The small unmanned 
aircraft remain within visual line of sight; (2) the small unmanned 
aircraft yield right of way to all other users of the NAS; (3) the 
minimum flight visibility must be at least 3 statute miles; and (4) the 
small unmanned aircraft maintain a minimum distance away from clouds. 
The FAA recognizes that there are many small UAS operations that will 
seek to go beyond these operational parameters, and equipage 
requirements may be one measure that the FAA uses to mitigate the risk 
associated with those operations when it integrates them into the NAS.
    However, as discussed earlier in this preamble, there are numerous 
small UAS operations that can be conducted within the operational 
parameters of part 107. By mitigating the risk associated with those 
operations through operational restrictions, this rule will realize the 
societal benefits of integrating the lowest-risk small UAS operations 
without imposing the costs associated with equipage requirements. The 
FAA also notes that many of the operational restrictions in this rule 
are waivable. Technology such as ADS-B may be a mitigation that a 
person uses to support his or her waiver application by showing that 
the operation could safely be conducted under the terms of a 
certificate of waiver.
    Commenters including CAPA, the Professional Helicopter Pilots 
Association, the American Association for Justice, and the Center for 
Democracy and Technology,

[[Page 42111]]

recommended the inclusion of a transponder requirement for small UAS. 
The American Association for Justice asserted that ``[a]mple evidence 
exists to suggest that small UAS should be required to have 
transponders or other position tracking equipment to ensure our 
airspace remains safe.'' The association noted that in the last year, 
there have been at least 25 reports of near misses between commercial, 
passenger-carrying planes and UAS. According to the association, these 
reports indicated that, because the UAS do not have transponders and 
are too small to show up on radar or anti-collision warning systems, 
they appeared suddenly and only became visible when it is too late for 
the pilot of the manned aircraft to change course.
    Another commenter said it was ``not prudent'' to only rely on 
``visual line of sight separation by a UAS team'' to conduct operations 
in the NAS. ``Inclusion of mini transponders created for UAS only,'' as 
well as the use of beacon lights and high visibility markings, the 
commenter continued, ``should be a good start toward increasing the 
safety in the NAS.'' Another individual noted that operations in 
controlled airspace ``would be enhanced by UAS specific transponders 
and TCAS equipment.'' Even with this technology, however, the commenter 
noted that operations in some locations within Class B, C, D and E 
airspace ``might not be appropriate or allowed.'' The Professional 
Helicopter Pilots Association said operations in Class B airspace 
should only be permitted if the UAS is equipped with a ``certified 
transponder or other certified multi-dimensional position-locating 
device'' that is operational at least above 200 feet AGL. The 
association also said this requirement should eventually be applied to 
all UAS being flown in all U.S. airspace. Noting the absence of a 
transponder requirement for small UAS, the Human Factors and Ergonomics 
Society expressed concern about UAS inadvertently entering Class B 
airspace (particularly in places where Class G airspace underlies Class 
B airspace), although it did not go so far as to say a transponder 
should be required.
    Several supporters of a transponder requirement addressed the 
availability of transponders for small UAS, which the NPRM stated are 
currently too large and too heavy to be used in small UAS. An 
individual commenter said transponder technology does not yet exist to 
be put on UAS. Several other individuals and Airware, on the other 
hand, said such technology does exist. One individual said there are 
manufacturers of miniature transponders on the market today and that 
all UAS should have such transponders, ``so that ATC can track the 
operations to ensure safety of the NAS.'' Another individual said the 
``technical ability to provide a[] unique transponder signal for each 
aircraft exists at this time.'' The commenter said a transponder 
requirement will ``lead to accountability,'' making it more difficult 
``for a headless operator to create a violation . . . without being 
identified.'' Another commenter said there are transponder/ADS-B units 
that are designed for small UAS and weigh 100 grams.
    As of this writing, no small scale transponders have received FAA 
or FCC certification for use on small UAS. Additionally, as discussed 
earlier, the person maintaining visual line of sight of the small 
unmanned aircraft will have the same (if not better) ability to see 
incoming aircraft as a pilot onboard a manned aircraft. With regard to 
the near-misses (better known as near mid-air collisions) cited by the 
American Association for Justice, this rule will require the small 
unmanned aircraft to be the one to initiate a maneuver to avoid 
collision with a manned aircraft. Thus, there would be little safety 
benefit to requiring a small unmanned aircraft operating under part 107 
to carry equipage to notify manned-aircraft pilots of its presence, as 
the manned aircraft pilots will not be required to yield right of way 
to the small unmanned aircraft.
    Turning to concerns about operations in controlled airspace, this 
rule will prohibit small UAS operations in Class B, Class C, Class D, 
and within the lateral boundaries of the surface area of Class E 
airspace designated for an airport without prior authorization from the 
ATC facility having jurisdiction over the airspace. The FAA factors 
information such as traffic density, the nature of operations, and the 
level of safety required when determining whether to designate 
controlled airspace. The requirement for small UAS to receive approval 
from the ATC facility with jurisdiction over the airspace in which the 
remote pilot in command would like to conduct operations allows local 
ATC approval to provide a safer and more efficient operating 
environment.
    Because these other provisions of part 107 provide a sufficient 
safety margin, a transponder equipage requirement is not necessary in 
this rule. In the aggregate, this regulatory framework equally 
accommodates all types of small UAS with the least complexity and 
burden, while ensuring the safety of the NAS.
    Several commenters addressed applying certain provisions of part 91 
stipulating that an aircraft cannot operate in controlled airspace 
unless it is equipped with an operable transponder and ADS-B equipment. 
WaDOT pointed out that, with some exceptions, Sec.  91.215 requires 
registered aircraft to have an operational transponder when operating 
in controlled airspace. Transport Canada questioned whether the FAA 
would require UAS to carry transponders when operating in transponder-
required airspace, or, alternatively, whether the FAA was considering 
either a relief to the requirement or a prohibition on small UAS 
operations in transponder-required airspace. GAMA stated that the 
transponder rules in Sec.  91.215 and the ADS-B Out rules in Sec. Sec.  
91.225 and 91.227 apply to small UAS because they are aircraft 
according to 49 U.S.C. 40102(a)(6). GAMA expressed the view that small 
UAS must therefore meet the future transponder and ADS-B equipage 
requirements to operate in specified airspace despite the statements in 
the proposed rule that the FAA is not establishing equipment 
requirements for small UAS.
    As the commenters pointed out, part 91 currently prohibits aircraft 
from entering certain airspace, such as Class B or C airspace, without 
a transponder.\88\ Additionally, after January 1, 2020, a person will 
also need ADS-B equipment to enter certain airspace, such as Class B or 
C airspace.\89\ However, part 91 gives ATC the ability to authorize 
aircraft to enter the pertinent airspace without the normally required 
transponder or ADS-B equipment.\90\ Similarly, by requiring the remote 
pilot in command to obtain ATC authorization prior to flying the small 
unmanned aircraft into Class B, C, or D airspace, or within the lateral 
boundaries of the surface area of Class E airspace designated for an 
airport, this rule will provide ATC with the same authority that it has 
under part 91 to determine whether an aircraft operation lacking a 
transponder or ADS-B can safely be conducted in controlled airspace.
---------------------------------------------------------------------------

    \88\ See 14 CFR 91.215(b)(1).
    \89\ 14 CFR 91.225(d)(1).
    \90\ See 14 CFR 91.215(b) and 91.225(d).
---------------------------------------------------------------------------

    The City of Phoenix Aviation Department and CAPA stated that small 
UAS should also have or support some type of collision prevention 
equipment to assist the small UAS operator in maintaining a safe 
distance from manned aircraft in airspace adjacent to

[[Page 42112]]

airports. Specifically, the City of Phoenix Aviation Department noted 
that small UAS wanting to operate adjacent to airports should support 
awareness enhancing equipment (collision prevention equipment). CAPA 
stated that a small UAS operating above 400 feet above ground level and 
within airport airspace should have TCAS with a Mode S transponder (in 
addition to anti-collision lighting and an ADS-B system).
    Several individuals also supported a TCAS requirement for UAS. One 
commenter, for example, said ``larger UVA [sic] aircraft'' should be 
required to be equipped with transponders and TCAS, and that ``the UAV 
should be programmed to automatically turn away from conflicting TCAS 
targets to avoid collision.''
    As discussed earlier, this rule will mitigate the risk associated 
with small UAS operations primarily through operational restrictions 
rather than more costly technological equipage requirements. 
Additionally, transponder equipment on small UAS to support TCAS on 
other aircraft may have adverse consequences to the NAS. The 
transponder spectrum is already significantly strained during peak 
traffic times in high density areas such as the Northeast corridor. 
Adding a potentially large number of small vehicles into this 
environment on transponder frequencies would potentially make these 
frequencies unusable for ATC and other users. The FAA needs to study 
the effects such operations will have on our existing ATC surveillance 
using ADS-B and secondary surveillance radar, and airborne surveillance 
operations using ADS-B, TIS-B and TCAS to determine whether the 
potential benefits of adding small UAS to this transponder spectrum 
would justify the potential costs to the NAS and its users.
ii. Radio Equipment
    Southern Company supported the fact that the proposed rule did not 
establish a requirement for radio communications for small UAS 
operating in controlled airspace. The company stated that receiving 
local ATC approval and working closely with FAA could result in a safer 
and more efficient operating environment at minimal cost to the 
operator.
    Conversely, Transport Canada questioned whether the statement in 
the NPRM that the proposed rule would not establish equipment 
requirements included radio equipment when operating in areas where ATC 
coordination/communication is a requirement. The commenter asserted 
that radio communication is a large contributor to the situational 
awareness of all pilots, and asked whether the FAA is considering 
mandating radio equipment, either on the aircraft or at the ground 
station, for operations in these areas.
    The Professional Helicopter Pilots Association and NAAA went one 
step further, recommending that small UAS operations in controlled 
airspace be required to meet part 91 requirements, which include a 
requirement for two-way radio communication with ATC. The Professional 
Helicopter Pilots Association stated that, at a minimum, the operator 
of a small UAS flying in controlled airspace should be required to 
monitor ATC frequency in the area in order to maintain situational 
awareness.
    The County of Los Angeles Department of Public Works recommended 
that FAA require small UAS operations to maintain two-way radio contact 
with ATC while operating in close proximity to an airport (airport 
influence area) or within Class B, C, or D airspace. PlaneSense and 
Cobalt Air similarly recommended that operators of small UAS operating 
in the airspace of an airport be required to have a radio to monitor 
air traffic at the airport and communicate with ATC.
    The Port of Los Angeles encouraged the FAA to consider requiring 
operators of small UAS to have two-way radio capability during all 
operations, not just those occurring in controlled airspace. The 
commenter noted the importance of radio communication between pilots, 
saying that the ability of small UAS operators to communicate with 
pilots of manned aircraft is particularly critical due to the 
relatively small size of the small unmanned aircraft and the difficulty 
pilots of manned aircraft may have in seeing and tracking small 
unmanned aircraft while airborne. The Colorado Agricultural Aviation 
Association also recommended a more general requirement for all UAS 
operators to be trained and equipped with an aviation radio.
    An individual said UAS weighing more than 10 pounds should be 
equipped with an FCC-approved VHF radio transmitter for the purposes of 
aiding identification from the ground or air, for manned-aircraft 
awareness of drone proximity, and to aid search and rescue operations. 
The commenter also recommended detailed specifications for the radio 
transmitter. Another commenter asked FAA to consider requiring that all 
small UAS transmit their GPS location, speed, and direction of flight 
on a shared radio channel. The commenter noted that the FLARM system 
used by glider pilots is capable of transmitting this, and other, 
information.
    NAAA, PlaneSense, and Cobalt Air asserted that cost of radio 
equipment for small UAS is low. NAAA noted that UAS operators could 
obtain relatively low-cost ground-based radio equipment, as opposed to 
more costly aircraft-mounted systems. PlaneSense and Cobalt Air 
similarly asserted that the cost of a hand-held radio is not so 
expensive as to override the safety benefits of requiring its use in 
airport airspace.
    As discussed in section III.E.5 of this preamble, this rule 
mitigates the risk between small UAS and manned aircraft in controlled 
airspace by requiring the remote pilot in command to obtain permission 
from ATC before entering Class B, C, or D airspace or the lateral 
boundaries of the surface area of Class E airspace designated for an 
airport. In considering whether to grant permission to a small UAS to 
fly in controlled airspace, ATC will consider the specific nature of 
the small UAS operation and risk the operation poses to other air 
traffic in that controlled airspace. ATC facilities have the authority 
to approve or deny aircraft operations based on traffic density, 
controller workload, communications issues, or any other type of 
operation that would potentially impact the safe and expeditious flow 
of air traffic. Additionally, as discussed in section III.F.2.f of this 
preamble, an applicant for a remote pilot certificate who does not 
possess a part 61 pilot certificate or has not completed a flight 
review within the previous 24 calendar months will be required to pass 
an initial aeronautical knowledge test that will include knowledge of 
radio communication procedures.
    With regard to operations near an airport, as discussed in section 
III.E.5.e of this preamble, this rule will prohibit the small unmanned 
aircraft from interfering with air traffic at an airport. The FAA also 
notes that almost all airports in Class G airspace lack ATC facilities 
for the remote pilot in command to communicate with via radio. As such 
a prescriptive radio equipage requirement would not add sufficient risk 
mitigation to the other requirements of this rule (when taken as a 
whole) to justify the cost of imposing this additional requirement.
    The FAA also declines to generally require small UAS operations to 
have radio equipage. As discussed earlier, this rule will require small 
unmanned aircraft to always yield the right of way. The remote pilot in 
command need not communicate with the manned-aircraft pilot to 
accomplish this task; the remote pilot can simply maneuver the small

[[Page 42113]]

unmanned aircraft away from the manned aircraft. As such, requiring all 
small unmanned aircraft to carry radio equipment would be needlessly 
burdensome.
    Turning to search and rescue operations, because this rule limits 
operations of small UAS to low altitudes within visual line of sight of 
the remote pilot and visual observer, the FAA does not anticipate that 
it will be necessary to conduct a search and rescue operation to find a 
small unmanned aircraft. Additionally, a small unmanned aircraft will 
not have any people onboard who would need to be found and rescued in 
the event of a crash.
    The FAA acknowledges the usefulness of FLARM systems for gliders 
and UAS in foreign countries. However this technology has not been 
proven or certificated for use in the NAS. As such, the FAA will not 
mandate that this technology be equipped on small UAS operating under 
part 107.
    Aerius Flight objected to the proposed rule's reliance on 
restricting operations to a confined area to mitigate the risks 
associated with a loss of positive control. The company asserted that 
this reliance fails to acknowledge that loss of positive control could 
result in a departure from the vertical boundaries of a confined area, 
which could be dangerous due to the nearly nationwide presence of low-
level military training routes and low altitude special use airspace. 
With that in mind, Aerius recommended that the FAA conduct analysis of 
small UAS operations that may warrant a requirement that an operator 
have a mobile radio transceiver at the control station to contact ATC 
having authority for overlying airspace.
    The FAA agrees that a radio transceiver may assist a remote pilot 
in responding to a loss-of-positive-control situation. However, a radio 
transceiver (or other technology) would not be a necessary mitigation 
for all situations and, thus, the FAA declines to impose it as a 
requirement. For example, a remote pilot in command could mitigate 
loss-of-positive-control risk through non-technological means by 
selecting an area of operation with natural obstacles such as trees or 
mountains that would stop the small unmanned aircraft from flying away 
if the remote pilot loses positive control of the aircraft. Because 
there is a wide variety of small UAS and small UAS operations, this 
rule will not mandate a specific means of mitigating loss-of-positive 
control risk. Instead, this rule will require the remote pilot in 
command to ensure that the small unmanned aircraft will pose no undue 
hazard to other aircraft, people, or property in the event of a loss of 
control of the aircraft and will allow the remote pilot to select the 
specific method of achieving this result within the confined area of 
operation.
iii. Lighting
    Several commenters, including the Air Medical Operators 
Association, AirTractor, and CropLife America, recommended that FAA 
require small unmanned aircraft to be equipped with strobe lights to 
increase visibility. NAAA, Colorado Agricultural Aviation Association, 
Reabe Spraying, and Plu's Flying Service recommended a strobe light 
requirement for both the small unmanned aircraft and its associated 
operator's ground vehicle. GAMA suggested that FAA ``undertake a 
specific review'' to consider, among other things, ``whether specific 
additional steps should be taken to increase visibility of small UAS 
for agricultural pilots,'' including through the use of equipment such 
as strobe lights. Another commenter asserted that technology is 
commercially available to equip even the smallest UAS with an 8 gram 
LED strobe light, which can be powered off a ship's battery beyond the 
duration of flight.
    Remote pilots can effectively see-and-avoid other aircraft during 
daytime operations without an additional lighting requirement. By 
keeping the unmanned aircraft within visual line of sight of the remote 
pilot in command and visual observer with sufficient visibility, the 
remote pilot in command will be able to see the relatively large manned 
aircraft that may be entering the area of operation. The remote pilot 
in command will then have to give right of way to manned aircraft and 
ensure that the unmanned aircraft does not pose a hazard to aircraft 
operating nearby. While remote pilots are encouraged to make their 
aircraft as visible as possible, the diverse range of aircraft that may 
operate under part 107 make prescriptive lighting requirements for all 
types of operations impractical. Thus, as described in section 
III.E.2.c.i of this preamble, the FAA will only require lighting for 
small unmanned aircraft operating during periods of civil twilight.
    The Professional Helicopter Pilots Association suggested requiring 
small UAS to be equipped with a lighting system ``intense enough to be 
visible during daylight and under bright sunlight conditions.'' An 
individual stated that each UAS should have ``identification beacon 
lights,'' which are unique to UAS but similar to manned aircraft. The 
United States Ultralight Association said UAS should be required to 
have a ``visual anti-collision beacon'' that will make the UAS visible 
for 3 miles during daylight operations.
    Due to the diverse nature of small unmanned aircraft, intense 
lighting systems may prove impractical in many cases due to weight and 
size limitations. As discussed in the previous section, the remote 
pilot in command is directly responsible for yielding the right of way 
to any manned aircraft and ensuring that the small unmanned aircraft 
will pose no undue hazard to other aircraft. Further, the remote pilot 
must fly the aircraft in such a way that the pilot or the visual 
observer is able to observe the airspace for other conflicting traffic. 
Because the remote pilot will have the ability to see and avoid other 
aircraft under the visual-line-of-sight framework of part 107, this 
rule will not require lighting during daytime operations.
    A few commenters recommended requirements for specific lighting 
color schemes. Two individuals recommended requiring green and red 
lights. One of those commenters noted that this is the standard for 
marine navigation lights, which enables other vessels to determine if a 
ship is approaching or departing and if it is moving left or right. The 
other commenter also recommended the use of white lights for landing 
and white flashing lights for emergency situations. Another individual 
asserted that hobbyists already use high-intensity LED and/or strobe 
lights for orientation assistance, and that blue and red provide the 
greatest contrast on small models. Yet another commenter recommended 
``a pattern of 3 rapid red (.5 second intervals) a 1 second delay then 
3 rapid white'' while the pilot is in control, and in the event of a 
lost link, ``a continuous red white at .5 second intervals to indicate 
that the pilot has no command.''
    Position and navigation lights on an aircraft allow other pilots to 
observe the visible lights and determine the relative position of the 
aircraft and direction of flight. For many small unmanned aircraft, 
such as quadcopters, there is not a clearly defined relative position 
on the aircraft, so navigation lights would not be practical. The FAA 
disagrees that lighting requirements are necessary for an emergency 
situation because the risk associated with loss of aircraft control is 
mitigated by the other provisions of this rule.
    To ensure airspace division near airports, CAPA recommended 
requiring small UAS operating above 400 feet and within airport 
airspace to have minimum equipment requirements,

[[Page 42114]]

including ``anti-collision lighting.'' However, as discussed in section 
III.E.3.a.ii of this preamble, with one exception, this rule will not 
allow small unmanned aircraft to operate higher than 400 feet AGL. With 
regard to airports, remote pilots operating in the vicinity of 
airports, heliports, or seaplane bases in uncontrolled airspace may not 
operate a small unmanned aircraft in a manner that interferes with 
operations and traffic patterns. Further, the small unmanned aircraft 
may not enter controlled airspace without ATC permission.
iv. Conspicuity
    Many commenters asserted that small unmanned aircraft may be 
difficult to see, both from the ground and from other aircraft 
operating in the NAS. For example, ALPA pointed out that many models of 
UAS are monochromatic or nearly so (either all black or all white), 
making them difficult to see against a non-contrasting background. The 
association urged FAA to develop conspicuity standards or advisory 
material discussing the factors influencing the ability to maintain 
visual contact.
    Another commenter stated that a commercial UAS is likely more 
difficult to see than other R/C model aircraft because model aircraft 
are usually painted with bright colors and flown in predictable 
locations. This commenter also said quadcopters and hexacopters, in 
particular, may be harder to see due to their ability to move very 
slowly and hover. The commenter added that these types of small 
unmanned aircraft are capable of climbing directly into the flight path 
of a manned aircraft, which may not see them because they are in an 
area obstructed by the nose of the manned aircraft.
    To resolve these issues, a number of commenters, including CoAAA, 
the California Agricultural Aircraft Association (CAAA), and the 
Permanent Editorial Board of the Aviators Model Code of Conduct 
Initiative, recommended a requirement for small unmanned aircraft to be 
coated in ``highly visible'' or ``high visibility'' colors to contrast 
them from surrounding airspace and the ground. NAAA argued that FAA 
should require colors that make the unmanned aircraft ``readily 
distinguishable'' from the background.
    NAAA pointed out that the FAA's advisory circular on obstruction 
marking and lighting recommends ``[a]lternate sections of aviation 
orange and white paint should be used as they provide maximum 
visibility of an obstruction by contrast in colors.'' CAAA and Raebe 
also supported standardized markings of white and orange paint. Schertz 
Aerial Services recommended a paint scheme where the underside of the 
UAS is painted black, the top is painted mostly white, and at least two 
areas of the UAS are painted ``florescent/aviation orange.'' An 
individual suggested alternating aviation orange and red paint. Another 
individual recommended bright neon orange, red, or green.
    The FAA currently has no data indicating what color(s), if any, 
would enhance the conspicuity of small unmanned aircraft. Small 
unmanned aircraft operating under part 107 vary significantly by size, 
shape, and profile. As such, color patterns viable for one unmanned 
aircraft may not work for another unmanned aircraft. Additionally, 
contrasting colors cannot always be seen with varying light, weather, 
and cloud coverage, nor will specific colors always provide a 
contrasting effect. Very small unmanned aircraft also may not have the 
surface area or reflectivity to accept color patterns that would easily 
be seen by others not involved with the operation.
    Because of these considerations and in light of the fact that the 
risk of a midair collision is mitigated by the other provisions of this 
rule, the FAA will not require small unmanned aircraft to be painted in 
a specific color scheme. However, this rule does not restrict small UAS 
owners or remote pilots in command from painting a small UAS in a 
conspicuous manner if doing so would increase safety in their specific 
operating environment. The FAA will consider any conspicuity-enhancing 
measures as a potential mitigation in support of an application for a 
waiver from the operating restrictions of part 107.
3. Containment and Loss of Positive Control
    As discussed above, one of the issues unique to UAS operations is 
the possibility that during flight, the remote pilot in command may 
become unable to directly control the unmanned aircraft due to a 
failure of the control link between the aircraft and the remote pilot's 
control station. This failure is known as a loss of positive control. 
Because the remote pilot's direct connection to the aircraft is 
funneled through the control link, a failure of the control link could 
have significant adverse results.
    To address this issue, the NPRM proposed a performance-based 
standard built around the concept of a confined area of operation. 
Confining the flight of a small unmanned aircraft to a limited area 
would allow the remote pilot in command to become familiar with the 
area of operation and to create contingency plans for using the 
environment in that area to mitigate the risk associated with possible 
loss of positive control. For example, the remote pilot in command 
could mitigate loss-of-control risk to people on the ground by setting 
up a perimeter and excluding people not involved with the operation 
from the operational area. The remote pilot in command could also 
mitigate risk to other aircraft by notifying the local air traffic 
control of the small UAS operation and the location of the confined 
area in which that operation will take place.
    The following subsections discuss the concepts involved in the 
confined area of operation. Those concepts consist of: (1) The 
boundaries of the confined area of operation, and (2) mitigation of 
loss-of-positive-control risk within the confined area of operation.
a. Confined Area of Operation Boundaries
    The following subsections discuss: (1) The horizontal boundary of 
the confined area of operation and moving vehicles; and (2) the 
vertical boundary (maximum altitude) of the confined area of operation.
i. Horizontal Boundary and Moving Vehicles
    With regard to the horizontal boundary of the confined area of 
operation, the visual-line-of-sight requirement discussed in section 
III.E.2.a of this preamble will create a natural horizontal boundary on 
the area of operation. Due to the distance limitations of human vision, 
the remote pilot in command or visual observer will be unable to 
maintain visual line of sight of the small unmanned aircraft sufficient 
to satisfy Sec.  107.31 if the aircraft travels too far away from them. 
Accordingly, the visual-line-of-sight requirement in Sec.  107.31 will 
effectively confine the horizontal area of operation to a circle around 
the person maintaining visual contact with the aircraft with the radius 
of that circle being limited to the farthest distance at which the 
person can see the aircraft sufficiently to maintain compliance with 
Sec.  107.31.
    However, one way in which the horizontal area-of-operation boundary 
tied to the remote pilot in command's line of sight could be expanded 
is for the remote pilot to be stationed on a moving vehicle or 
aircraft. If the remote pilot is stationed on a moving vehicle, then 
the horizontal area-of-operation boundary tied to the remote pilot's 
line

[[Page 42115]]

of sight would move with the pilot, thus increasing the size of the 
small unmanned aircraft's area of operation. To prevent this scenario, 
the NPRM proposed to prohibit the operation of a small UAS from a 
moving aircraft or land-borne vehicle. However, the FAA included an 
exception for water-borne vehicles in the NPRM reasoning that there are 
far fewer people and less property located on or over areas of water 
than on land. Consequently, a loss of positive control that occurs over 
water would present a significantly smaller risk of injuring a person 
or damaging property than a loss of positive control that occurs over 
land.
    For the reasons discussed below, this rule will maintain the 
proposed prohibition on operating a small UAS from a moving aircraft. 
This rule will, however, allow operation of a small UAS from a moving 
land-based or water-borne vehicle if the small unmanned aircraft is 
flown over a sparsely populated area. The prohibition against operating 
a small UAS from an aircraft and the limitations on operations from 
moving vehicles will be waivable as long as the small unmanned aircraft 
is not transporting another person's property for compensation or hire.
    Several commenters, including ALPA, Aerius, and Drone User Group 
Network, concurred with the FAA that the operator should not be allowed 
to operate the small UAS from a moving vehicle or aircraft. NetMoby 
said the next generation of regulations can address this type of 
operation once a large database of information concerning the first 
generation of UAS operations has been developed. CAPA argued that the 
final rule should prohibit operation from all moving vehicles, 
including watercraft. The Professional Society of Drone Journalists 
stated that operations from any moving vehicle should only be permitted 
with special training and safeguards.
    A large number of other commenters, including MPAA, NAMIC, EEI, and 
MAPPS, specifically opposed a blanket prohibition on operations from 
moving land-based vehicles. AIA said that FAA should conduct ``robust'' 
risk analysis to determine if small UAS can be operated safely from 
moving land-based vehicles. NBAA stated that the FAA has not 
sufficiently justified the proposed prohibition of operations from 
moving land-based vehicles.
    Commenters provided a variety of reasons for why small UAS 
operations should be permitted from moving land-based vehicles. 
Modovolate asserted that such operations may be safer than operations 
from a stationary position because the operator can maintain a position 
closer to the small UAS. The Associated General Contractors of America 
and UPS claimed that operations from a land-based moving vehicle can be 
as safe as operations from a water-based moving vehicle, noting that 
both types of operations could lead to the small UAS flying over land. 
Vision Services Group said that allowing operations from a moving 
vehicle (with authorization from ATC or a COA issued by the FAA) will 
give the FAA an opportunity to begin collecting documentation on the 
safety of such operations in low-risk scenarios, as well as give 
commercial and public entities an opportunity to test the technology 
and practicality of moving land/water-based ground station operations.
    Several commenters pointed to the beneficial operations that could 
be conducted if small UAS operators are permitted to extend the visual 
line of sight by operating from a moving land-based vehicle. EEI, 
Exelon Corporation, and Southern Company pointed to the inspection of 
objects that extend for miles, such as power lines, pipelines, railway 
lines, highways, and solar and wind farms as such beneficial 
operations. State Farm pointed to surveying catastrophe scenes. 
Aviation Management pointed to safety scouts leading and surveying 
railroad tracks in front of trains, and surveying for road hazards in 
front of trucks and emergency vehicles. Vision Services Group pointed 
to wetland and shoreline monitoring, and Modovolate pointed to 
photography and motion picture filming as beneficial operations that 
could be conducted from a moving land-based vehicle.
    The proposed rule would have allowed operation from watercraft due 
to the fact that water is typically sparsely populated. However, that 
is not always the case because some waterways are constantly or 
intermittently congested with watercraft, float planes and people. On 
the other hand, as pointed out by the commenters, not all land areas 
are congested; some areas of land, such as unpopulated areas or large 
open fields, are sparsely populated. ``Sparsely populated'' is not 
defined in FAA regulation--rather, it is typically fact-dependent. In a 
2010 legal interpretation, the FAA cited Mickalich v. United States, 
2007 WL 1041202 (E.D. Mich.) for a discussion of what constitutes a 
sparsely populated area.\91\ The court found that twenty people on a 
ten acre site would be considered sparsely populated under 14 CFR 
91.119(c). Additionally, in other legal opinions by the FAA, the agency 
has emphasized that it would adopt a case-by-case analysis in 
determining when a pilot violates Sec.  91.119, which includes 
determining when an area is ``sparsely populated.'' \92\
---------------------------------------------------------------------------

    \91\ Legal Interpretation to Leanne Simmons (2010).
    \92\ Legal Interpretation to Gary S. Wilson (2006); Legal 
Interpretation to Anderson (2009).
---------------------------------------------------------------------------

    In reviewing the comments and reexamining its proposal, the FAA 
determined that the safety-relevant factor for the moving-vehicle 
provision of part 107 is population density not terrain. Therefore, 
this rule will allow small UAS operation from moving land- or water-
based vehicles, as long as the small unmanned aircraft is flown over 
sparsely populated land or water areas.\93\ The FAA anticipates that 
this change will enable additional small UAS operations such as utility 
inspection, disaster response, and wetland and shoreline monitoring.
---------------------------------------------------------------------------

    \93\ The FAA notes that the small unmanned aircraft flight will 
also have to comply with all other applicable requirements of this 
rule, including the prohibition on flight over people who are not 
directly participating in the small UAS operation (discussed in 
section III.E.3.b.iv of this preamble).
---------------------------------------------------------------------------

    A number of commenters, including ALPA, AUVSI, American Insurance 
Association, and MPAA, said operations from moving land-based vehicles 
should be permitted as long as the operator is not also driving the 
vehicle.
    As discussed previously, this rule will allow operation of small 
UAS from land and water-based vehicles over sparsely populated areas. 
However, the FAA emphasizes that this rule will also prohibit careless 
or reckless operation of a small UAS. The FAA considers flying a small 
UAS while purposely distracted by another task to be careless or 
reckless. The FAA cannot envision at this time an instance of a person 
driving a vehicle while operating a small UAS in a safe manner that 
does not violate part 107. Additionally, other laws, such as State and 
local traffic laws, may also apply to the conduct of a person driving a 
vehicle. Many states currently prohibit distracted driving and State or 
local laws may also be amended in the future to impose restrictions on 
how cars and public roads may be used with regard to a small UAS 
operation. The FAA emphasizes that people involved in a small UAS 
operation are responsible for complying with all applicable laws and 
not just the FAA's regulations.
    Planehook argued that until such time as sense-and-avoid systems 
are accepted by the FAA, implemented by manufacturers, and installed by 
trained operators, operations from moving land-based vehicles should 
only be permitted

[[Page 42116]]

by waiver. Commenters including the Small UAV Coalition, State Farm, 
Aviation Management, and DJI also said that small UAS operations should 
be permitted from moving land-based vehicles on a case-by-case basis, 
via waiver or deviation authority. Skycatch and FLIR Systems 
recommended allowing operations from moving land-based vehicles as long 
as the UAS features a software protocol that ensures the operator is 
present and has positive control. An individual recommended allowing 
operations from moving land-based vehicles as long as the UAS is 
equipped with a telemetry system so the operator knows the range/
bearing of the UAS. Another individual recommended allowing operations 
from moving land-based vehicles if the UAS is operating in ``follow-
me'' mode.
    The primary risk associated with an operation from a moving vehicle 
is that the remote pilot in command will lose positive control of the 
small unmanned aircraft and that aircraft will collide with a person on 
the ground. Part 107 mitigates this risk by restricting small UAS 
operations from moving vehicles to sparsely populated areas, which 
generally have a very low population density. Thus, there is no need to 
impose additional restrictions on moving-vehicle operations in a 
sparsely populated area. The FAA considered eliminating the sparsely 
populated restriction but ultimately determined that operations from a 
moving vehicle over an area that is not sparsely populated pose a 
higher risk to non-participating persons and property due to changing 
topography, obstructions, and un-anticipated persons that enter/exit 
the operational area.
    However, the FAA acknowledges that technological innovation may 
allow small UAS to be operated safely from moving vehicles in areas 
that are not sparsely populated. Accordingly, the restriction on 
operation from moving vehicles will be waivable. The FAA will consider 
waiver applications on a case-by-case basis to determine whether the 
applicant has established that his or her operation can safely be 
conducted under the terms of a certificate of waiver. However, as 
discussed in section III.C.1 of this preamble, the FAA will not grant a 
waiver to allow the use of a moving vehicle to allow UAS-based 
transportation of another person's property for compensation or hire.
    One individual suggested that the FAA consider allowing operation 
of small UAS from a moving aircraft.
    In most instances, a manned aircraft is not as maneuverable and 
cannot be stopped in flight with the same ease as a land- or water-
based vehicle. Thus, a remote pilot in command who is onboard a manned 
aircraft in flight has a more limited ability to respond to situations 
that may arise during the small UAS operation. Additionally, because 
manned aircraft generally operate at significantly higher speeds than 
small unmanned aircraft, there is a higher likelihood that a remote 
pilot in command onboard a manned aircraft will lose sight of the small 
unmanned aircraft. Accordingly, this rule will retain the proposed 
prohibition on operating a small UAS from a moving aircraft. This 
prohibition will, however, be waivable if the remote pilot in command 
demonstrates that his or her operation can safely be conducted under 
the terms of a certificate of waiver.
ii. Vertical Boundary (Maximum Altitude)
    Next, we turn to the vertical boundary of the confined area of 
operation. Because most manned aircraft operations take place higher 
than 500 feet above ground level (AGL), the NPRM proposed a 500-foot 
operating ceiling for small UAS operations. For the reasons discussed 
below, this rule will reduce the operating ceiling to 400 feet AGL 
unless the small unmanned aircraft: (1) Is flown within a 400-foot 
radius of a structure, and (2) does not fly higher than 400 feet above 
the structure's immediate uppermost limit. This operating-ceiling 
provision will be waivable.
    Several commenters, including the Professional Photographers of 
America, ALPA, Boeing, Google, and State Farm, supported the 500-foot 
altitude limit proposed in the NPRM. Some noted that a 500-foot ceiling 
for UAS operations would strike a positive balance between flexibility 
for the UAS operator and the safety of manned aircraft operating in the 
NAS.
    Other commenters, including Barrick Gold of North America, argued 
that the altitude restrictions in the rule are unnecessary because the 
current airspace stratification and operating rules already provide the 
requisite level of safety. Barrick added, however, that it would 
support a buffer of 200 feet below the terminus of Class G airspace.
    An altitude limit for small UAS operations is necessary in this 
rule. Given the expected proliferation of small UAS in the NAS, and the 
safety implications for manned aircraft, the FAA must address the safe 
use of small UAS in the NAS. Moreover, Congress has directed the FAA to 
establish a regulatory framework to safely integrate small UAS 
operations into the NAS. Allowing unrestricted small unmanned aircraft 
to operate at high altitude without the benefit of additional equipment 
(for example, transponders and altimeters) and the provision of air 
traffic services introduces a significant threat of collision to manned 
aircraft operating in the NAS. Most manned aircraft operations transit 
the airspace at or above 500 feet AGL, and an altitude limitation 
provides a necessary barrier between small unmanned aircraft and a 
significant majority of manned aircraft operations in the NAS. However, 
as discussed below, this rule will make an exception to the altitude 
restriction for small UAS operations that are conducted close to a 
structure.
    Other commenters, including Northrop Grumman Corporation, AOPA, 
EAA, and HAI, recommended a reduction in the proposed 500-foot altitude 
limit. These commenters were concerned about the potential for conflict 
with manned aircraft operating in the NAS. The United States Ultralight 
Association and the U.S. Hang Gliding and Paragliding Association 
expressed general concern regarding the volume of manned aircraft 
traffic below 500 feet and the potential for collisions with small 
unmanned aircraft.
    While some commenters did not recommend a specific alternate 
maximum altitude, most that did favored a 400-foot operating ceiling. 
Commenters offered a variety of reasons to support a 400-foot altitude 
limit. One commenter justified a lower altitude by noting it is 
difficult for the operator to maintain visual contact with the small 
unmanned aircraft when operated above 500 feet, and a 400-foot limit 
would provide an added margin of safety. Most commenters stated that a 
400-foot altitude limit would provide a reasonable buffer between UAS 
and manned aircraft operating in the NAS. NAAA remarked that recent 
narrowly averted collisions involving agricultural aircraft and UAS 
aircraft justify the establishment of a 400-foot limit. NAAA also noted 
the importance of the missions performed by aircraft at lower altitude, 
including agricultural and air ambulance operations. Northrop Grumman 
and the Aviation Division of the Washington State Department of 
Transportation asserted that a 500-foot altitude does not provide an 
adequate buffer between UAS operations and those conducted by manned 
aircraft.
    Other commenters, including the North Central Texas Council of 
Governments, noted that the 100-foot difference between the limits for 
model aircraft and UAS aircraft, which would result from the proposed 
500-foot altitude ceiling, would create confusion. These commenters 
pointed out that because it is difficult to distinguish

[[Page 42117]]

between UAS and model aircraft, the two should have similar altitude 
restrictions.
    Some commenters identified lower ceilings for UAS operations in 
other countries. For example, one commenter noted that Australia has 
established a 400-foot limit for UAS operations. Further, Transport 
Canada cited a similar approach for UAS operations in Canada, noting 
that a 400-foot operating ceiling provides a margin of safety that 
considers barometric altimeter error and cold weather temperature 
corrections.
    Some commenters, however, asserted that even a 400-foot maximum 
altitude is too high. The Professional Helicopter Pilots Association 
recommended a limit of 200 feet to provide an adequate altitude buffer 
between UAS and rotorcraft operations. One commenter suggested a 200-
foot limit until ADS-B is mandated for UAS. Positive air traffic 
control was also recommended as a requirement for operations above 200 
feet.
    In contrast, several commenters, including those from the media and 
agricultural communities, asserted that the proposed 500-foot altitude 
limit for small unmanned aircraft operations is overly restrictive. One 
commenter stated that the 500-foot altitude ceiling increases the risk 
for striking terrain, power lines, or other structures. A commenter 
also noted that the proposed altitude restriction may contribute to a 
loss of communication with the aircraft due to terrain and other 
obstructions.
    The most frequently cited reason for raising the altitude limit was 
to allow the small unmanned aircraft to more effectively perform 
missions such as search and rescue, aerial surveys, and other 
applications for industries ranging from agriculture to petroleum, as 
well as inspections of buildings, bridges and other structures. In 
addition, several commenters asserted that a 500-foot limit is 
impractical for radio-controlled soaring. Aerobatic operations would 
also be severely limited by a 500-foot restriction.
    Other commenters highlighted the needs of the media industry, 
remarking that a 500-foot restriction limits the utility of UAS for 
certain newsgathering operations. Commenters noted that for these 
activities, the ability to operate at higher altitudes increases their 
ability to film news events and access other areas beyond normal reach.
    Some commenters, including the Nebraska Farm Bureau Federation, 
suggested that the 500-foot operating ceiling could be lifted under 
certain circumstances in remote areas given the uncongested airspace 
above remote areas. The American Petroleum Institute agreed that a 
case-by-case process is needed for approval to fly at higher altitudes. 
In its comments, API noted that the proposed rule effectively 
eliminates lower-resolution surveillance operations where larger ground 
sample distances would have value for a variety of activities over 
broad areas, such as pipeline right-of-way surveying and metocean 
(meteorology and physical oceanography used in offshore and coastal 
engineering) data gathering. In addition, in areas with high 
vegetation, this restriction acts to limit distances across which pre-
programmed flights may function even if the visual-line-of-sight 
restriction were modified. One commenter noted this would be similar to 
what is now codified in 14 CFR 91.119(b) and (c), and to the precedent 
established by 14 CFR part 101.
    Many commenters, such as Boeing and the News Media Coalition, also 
focused on the need to permit higher operating altitudes in proximity 
to certain structures. This would allow small unmanned aircraft to be 
used to perform inspections and other tasks that would traditionally 
place persons in harm's way. The Exelon Corporation noted the need to 
allow for inspection of tall structures. An individual recommended that 
the FAA allow operations at higher altitudes within a 2,000-foot radius 
of certain towers. NoFlyZone.org asserted that UAS operations above 500 
feet should be permitted within 250 feet of a structure as long as the 
operator has permission from that structure's owner. Skycatch asked 
that operations above 500 feet be permitted under specific 
circumstances, such as bridge or building inspections as proposed by 
AUVSI. The Professional Society of Drone Journalists stated that the 
airspace above and around buildings should be considered to be the 
domain of legal UAS operations.
    Commenters also recommended mechanisms to allow operations above 
500 feet ranging from pilot training and equipment requirements (such 
as transponders and ADS-B), to the establishment of flight restriction 
areas or a waiver process. The American Insurance Association requested 
that UAS aircraft be allowed to operate above 500 feet if accompanied 
by a visual observer on the ground aided by a mechanical enhancement of 
his or her sight.
    Other commenters noted that an increase in altitude may be 
appropriate in areas where the threat to manned aircraft is minimal. 
For example, one commenter proposed that in Class G airspace, the 
ceiling for UAS operations be raised to the base of the overlying 
controlled airspace. A variety of other altitudes were proposed. Clean 
Gulf Associates stated that 1,000 feet is an appropriate altitude, 
allowing for oil spill skimming targeting operations, where the mid-air 
threat over water is lower. Prioria Robotics also proposed 1,000 feet. 
The American Fuel & Petrochemical Manufacturers noted that technical 
developments in the near future will allow for operations up to 1,000 
feet with additional equipage and procedural safeguards. Another 
commenter stated that if an under-10-pound category of UAS aircraft 
could be created, an altitude of 1,000 feet should be permitted.
    Another commenter offered that an increase in maximum altitudes is 
appropriate as size of the UAS aircraft increases. For example, a 
rotorcraft up to 4 kgs or a fixed-wing aircraft between 6 and 12 kgs 
would be able to fly up to 700 feet AGL. Rotorcraft up to 20 kgs and 
fixed wing up between 12 and 24 kgs would be able to fly up to 3,000 
feet AGL. These altitude limits would be accompanied by pilot medical 
and training requirements, as well as additional equipage requirements, 
such as ADS-B.
    One commenter noted that the rule is harsh toward non-hazardous UAS 
operations. This commenter argued that low-altitude quad copter 
operations should be given relief to operate at altitudes similar to 
those used for a commercial moored balloon or kite.
    The Resource Stewardship Consortia proposed an extension up to 
1,400 feet for a proof of concept trial performed in places where the 
threat of collateral damage is minimal should a failure occur, and for 
operations that would benefit from a higher altitude.
    In response to comments addressing the specific altitude limit, the 
FAA agrees that a 400-foot ceiling will allow for a significant number 
of applications for the small UAS community, while providing an added 
level of safety for manned-aircraft operations. A ceiling of 400 feet 
AGL will provide an additional 100-foot margin of safety between small 
UAS operations and a majority of aircraft operations in the NAS. This 
additional 100-foot buffer will help maintain separation between small 
unmanned aircraft and most manned aircraft in instances such as the 
remote pilot losing positive control of the small unmanned aircraft or 
incorrectly estimating the altitude of the aircraft.
    Further, the revised limit addresses other concerns regarding 
potential confusion between model aircraft and small unmanned aircraft. 
Specifically, limiting operations to 400 feet is consistent with FAA 
guidance on model aircraft best practices identified in AC

[[Page 42118]]

91-57A, thus standardizing operating altitudes for the majority of 
small unmanned aircraft flying in the NAS. A 400-foot altitude ceiling 
is also consistent with the approach adopted in other countries. 
Specifically, Canada, Australia, and the United Kingdom all set a 400-
foot or lower altitude limit on UAS operations conducted in those 
countries.\94\
---------------------------------------------------------------------------

    \94\ United States Government Accountability Office, Unmanned 
Aerial Systems: FAA Continues Progress toward Integration into the 
National Airspace, at 32 (July 5, 2015).
---------------------------------------------------------------------------

    While the FAA considered the lower altitudes proposed by 
commenters, it ultimately determined that these lower limits would 
unnecessarily restrict small UAS operations without a commensurate 
increase in safety because the concentration of manned aircraft below 
400 feet AGL is much lower than the concentration of manned aircraft at 
or above 500 feet AGL. The FAA also considered the comment recommending 
positive air traffic control above 200 feet. The FAA ultimately 
rejected this recommendation because it is overly burdensome to both 
remote pilots and the air traffic control system. Air traffic 
controllers could not reliably provide positive separation for 
operations at this altitude throughout the NAS, and the benefits to 
users from such separation efforts would not justify the significant 
additional workload placed on air traffic controllers or the equipment 
and training costs to remote pilots. In addition, without additional 
equipment mandates, the provision of positive air traffic control would 
be unachievable.
    To address the concerns expressed by commenters requesting higher 
operating altitudes in proximity to buildings, towers, power lines, and 
other tall structures for the purposes of inspections and repair, the 
FAA is establishing new provisions in the final rule that will enable 
those operations in a way that does not compromise aviation safety. 
Specifically, the FAA notes that 14 CFR 91.119 generally prohibits 
manned aircraft from operating in close proximity to structures. 
Section 91.119 requires manned aircraft to stay 500 to 1,000 feet away 
from the structure, depending on whether the area is congested. Because 
manned aircraft are not permitted to operate in close proximity to 
structures, this rule will allow a small unmanned aircraft to fly 
higher than 400 feet AGL as long as that aircraft remains within a 400-
foot radius of a structure up to an altitude of 400 feet above the 
structure's immediate uppermost limit. Allowing higher-altitude small 
UAS operations within a 400-foot lateral limit of a structure will 
enable additional operations (such as tower inspection and repair) 
while maintaining separation between small unmanned aircraft and most 
manned aircraft operations.
    The FAA disagrees that a further increase in altitude is justified. 
Higher-altitude small unmanned aircraft operating in airspace that is 
transited by most manned aircraft operations would no longer be 
separated from those manned aircraft, which would greatly increase the 
risks of a collision. Most remote pilots of small UAS would also 
benefit very little from an additional increase in altitude because the 
visual-line-of-sight restrictions of this rule and the equipment 
limitations of a small UAS would, in many cases, limit the ability or 
need to operate at altitudes higher than what is provided for by this 
rule. Such a limited benefit would not be commensurate with the added 
risk that a higher altitude would impose upon other users of the NAS.
    However, the FAA recognizes that new technologies may increase the 
feasibility of higher altitude operations. Therefore, to provide 
flexibility to accommodate new developments, the altitude limitation of 
this rule will be waivable. Thus, if a remote pilot demonstrates that 
his or her high-altitude small UAS limitation will not decrease safety, 
the FAA may allow that operation through a certificate of waiver. This 
will enable a number of operations, such as research and development 
for higher-altitude small UAS operations. The FAA is committed to 
working with the stakeholder community to pursue such options when it 
is deemed appropriate.
    With regard to search and rescue operations, most of these 
operations are conducted by government entities under COAs as public 
aircraft operations. Those operations will therefore not be subject to 
the altitude limitations of this rule.
    Several commenters raised concerns regarding a remote pilot's 
ability to discern the altitude of the small unmanned aircraft. 
Commenters including AOPA and GAMA asserted that current UAS lack 
accurate altimetry systems, making compliance with any altitude 
restriction difficult. GAMA asked that the FAA clarify how an operator 
determines the UAS altitude in flight. Similarly, one individual stated 
that while the altitudes proposed in the rule are in principle sound, 
they are unenforceable. Other commenters asserted that it is impossible 
to judge altitude, particularly over precipitous terrain, and that 
altitude restrictions of any kind may only be relied upon if UAS were 
required to have altitude-limiting devices. The Permanent Editorial 
Board of the Aviators Model Code of Conduct proposed that the FAA 
require the use of a practical technique for UAS operators to estimate 
their altitude with sufficient accuracy or require the use of a 
technical solution to ensure compliance.
    Remote pilots have effective techniques to determine altitude 
without mandating the installation of an altimetry system. For example, 
with the unmanned aircraft on the ground, a remote pilot in command may 
separate him or herself 400 feet from the aircraft in order to gain a 
visual perspective of the aircraft at that distance. Remote pilots may 
also use the known height above the ground of local rising terrain and/
or structures as a reference. The FAA acknowledges that these methods 
of estimating altitude are less precise than equipment-based altitude 
determinations, which is one of the reasons this rule will increase the 
separation between manned and small unmanned aircraft by reducing the 
maximum altitude for small unmanned aircraft to 400 feet AGL.
    Additionally, the FAA will provide, in its guidance materials, 
examples of equipment options that may be used by remote pilots to 
accurately determine the altitude of their small unmanned aircraft. One 
example is the installation of a calibrated altitude reporting device 
on the small unmanned aircraft. This device reports the small unmanned 
aircraft's altitude above mean sea level (MSL). By subtracting the MSL 
elevation of the control station from the small unmanned aircraft's 
reported MSL altitude, the aircraft's AGL altitude may be determined. 
The installation of a GPS altitude-reporting device may also provide 
for a requisite level of altitude control. The FAA emphasizes, however, 
that this equipment is simply one means of complying with the altitude 
restrictions in this rule.
    One commenter asked if the proposed 500-foot limit represents the 
altitude above the launch point or the height of the UAS altitude above 
the ground. The commenter noted that some topographical features 
present dramatic changes in altitude. Glider operators raised similar 
questions regarding altitude over sloping terrain.
    The maximum altitude ceiling imposed by this rule is intended to 
limit the height of the aircraft above the ground over which it is 
flying (AGL). It is incumbent upon the remote pilot in command to 
maintain flight at or below this ceiling regardless of the topography.

[[Page 42119]]

    Several commenters stated that the 500-foot altitude restriction 
does not address the public's expectation that airspace (up to 500 
feet) above private property is under their control and may not be 
penetrated without permission. Event 38 Unmanned Systems stated that 
the FAA should attempt to set a reasonable altitude requirement for 
overflight of property not controlled by any UAS operator. This 
commenter proposed a 100-foot limit for incidental incursions and a 
300-foot limit for intentional flight across private property without 
permission. Another commenter suggested requiring small UAS to operate 
between 400 and 500 feet AGL when flying above private property, unless 
the remote pilot has obtained the property owner's permission. Other 
commenters, including the NJIT Working Group and the Kansas Livestock 
Association, commented on the relationship between the final rule 
requirements and trespass and nuisance protections for private 
landowners.
    Adjudicating private property rights is beyond the scope of this 
rule. However, the provisions of this rule are not the only set of laws 
that may apply to the operation of a small UAS. With regard to property 
rights, trespassing on property (as opposed to flying in the airspace 
above a piece of property) without the owner's permission may be 
addressed by State and local trespassing law. As noted in section 
III.K.6 of this preamble, the FAA will address preemption issues on a 
case-by-case basis rather than doing so in a rule of general 
applicability.
    The North Central Texas Council of Governments opposed a 500-foot 
maximum altitude, stating it is inconsistent with Public Law 112-95 and 
the 400-foot ceiling identified in Advisory Circular (AC) 91-57.
    Public Law 112-95 directs the Department to establish requirements 
for safe integration of UAS operations into the NAS but does not 
specify the altitude parameters of such operations. AC 91-57A is 
advisory in nature and pertains to model aircraft not subject to part 
107. However, the 400-foot maximum altitude imposed by this rule is 
similar to the 400-foot maximum altitude suggested as a best practice 
for modelers by AC 91-57A.
    One commenter stated that the COA process should be maintained for 
operations outside of class G airspace and altitudes above 500 feet. 
However, with the exception of flight that is within 400 feet of a 
structure, small unmanned aircraft seeking to fly higher than 400 feet 
AGL will have to obtain a waiver to do so.
    Several commenters recommended the creation of specialized airspace 
for UAS operations. This may include designated airspace for certain 
clubs, or the establishment of special airways or corridors. Farris 
Technology and the University of Washington promoted the use of 
corridors or dedicated airways that will allow UAS flights above 500 
feet.
    Creation of UAS-specific airspace is beyond the scope of this rule 
because the NPRM did not propose to create any new airspace 
classifications or reclassify existing airspace.
    One commenter suggested that the 500-foot restriction in Class G 
airspace should only be in place for rotorcraft UAS. However, after 
careful consideration, the FAA could not find a compelling reason to 
differentiate between fixed-wing and rotorcraft UAS for the purposes of 
altitude restrictions. For both aircraft, the threats posed to the NAS 
are similar. The UAS aircraft class itself does not mitigate those 
threats in any calculable manner. Therefore, a distinction based on UAS 
aircraft class is unwarranted.
    ALPA recommended a change to the preamble discussion regarding the 
maximum altitude. As currently written, the preamble to the NPRM states 
that a small unmanned aircraft is prohibited from ``travel higher than 
500 feet AGL.'' \95\ ALPA recommended replacing the word ``travel'' 
with ``fly'' or ``operate.''
---------------------------------------------------------------------------

    \95\ 80 FR at 9563.
---------------------------------------------------------------------------

    For added clarity, the FAA will use the terms ``fly'' or 
``operate'' in discussing the maximum altitude limitation in this 
preamble.
    Several commenters, including Green Vegans, stated that the 
proposed 500-foot operating ceiling would make it impossible to comply 
with 14 CFR 91.119, which prescribes minimum altitudes for part 91 
operations. Green Vegans questioned how a small UAS operator could 
remain in compliance with both part 107 and section 91.119.
    Except where expressly stated to the contrary, the provisions of 
part 107 will replace the provisions of part 91 for small UAS 
operations subject to this rule. Consequently, a small UAS operating 
under part 107 will not be required to comply with Sec.  91.119.
b. Mitigating Loss of Positive Control Risk
    Now that we have defined the confined area of operation, we turn to 
the question of how loss-of-positive-control risk can be mitigated 
within that area of operation. There is significant diversity in both 
the types of small UAS that are available and the types of operations 
that those small UAS can be used in. Accordingly, remote pilots in 
command need significant flexibility to mitigate hazards posed by their 
individual small UAS operation, as a mitigation method that works well 
for one type of small UAS used in one type of operation may not work as 
well in another operation that uses another type of small UAS. For 
example, in a loss-of-positive-control situation, a rotorcraft that 
loses pilot inputs or power to its control systems would tend to 
descend straight down or at a slight angle while a fixed wing aircraft 
would glide for a greater distance before landing. Since the loss-of-
positive-control risk posed by different types of small unmanned 
aircraft in various operations is different, the NPRM proposed to 
create a performance-based standard under which, subject to certain 
broadly applicable constraints, remote pilots in command would have the 
flexibility to create operational and aircraft-specific loss-of-control 
mitigation measures.
    The broadly applicable constraints proposed by the NPRM consisted 
of: (1) A limit on the maximum speed of the small unmanned aircraft; 
(2) a prohibition on the simultaneous operation of more than one small 
unmanned aircraft; (3) a restriction on flight over people; and (4) a 
requirement for a preflight briefing for people who are directly 
participating in the small UAS operation. The NPRM also proposed to 
create a separate micro UAS category of UAS operations that would not 
be subject to a restriction on flight over people. Within these broadly 
applicable constraints, the NPRM proposed a two-part performance 
standard under which the remote pilot in command would conduct a 
preflight assessment of the operating area and then use the knowledge 
gained during that assessment to ensure that the small unmanned 
aircraft would not pose an undue hazard to other aircraft, people, or 
property in the event of a loss of control of the aircraft for any 
reason.
    The following sections discuss the above components of the NPRM. 
The following sections also discuss the comments that the FAA received 
regarding automation within the confined area of operation and the use 
of equipage to mitigate the risk associated with loss of positive 
control.
i. Maximum Speed
    The NPRM proposed a maximum air speed limit of 87 knots (100 mph) 
for small unmanned aircraft. The FAA explained that this speed limit is 
necessary because if there is a loss of positive control, an aircraft 
traveling at

[[Page 42120]]

high speed poses a higher risk to persons, property, and other aircraft 
than an aircraft traveling at a lower speed. The NPRM also noted that a 
speed limit would have safety benefits outside of a loss-of-positive-
control scenario because a small unmanned aircraft traveling at a lower 
speed is generally easier to control than a higher-speed aircraft. For 
the reasons discussed below, this rule will impose an 87-knot (100 mph) 
speed limit. This rule will, however, make the pertinent speed 
measurement the groundspeed rather than the airspeed of the small 
unmanned aircraft. The speed limit will also be waivable.
    Commenters including NAMIC, the Drone User Group Network, and the 
Remote Control Aerial Platform Association supported the proposed 
maximum airspeed. These commenters generally noted that the speed 
limitation of 100 mph seems reasonable for small UAS operating within 
visual line of sight.
    Other commenters, including the Air Medical Operators Association, 
the Virginia Department of Aviation, and SWAPA, stated that FAA should 
lower the maximum permissible airspeed (e.g., to 50 or 75 mph) because, 
the commenters argued, the proposed speed of 100 mph is too high and 
would pose undue risks. Several commenters, including Texas A&M 
University, HAI, the Virginia Department of Aviation and others, 
asserted that the NPRM failed to demonstrate the safety of the proposed 
speed limitation. These commenters argued that it would be extremely 
difficult to maintain positive control of a small unmanned aircraft 
flying at 100 mph.
    Some commenters, including the American Association for Justice, 
the United States Ultralight Association, and the State of Nevada, 
asserted that the kinetic energy of a 55-pound object moving at 100 mph 
could cause significant damage to large aircraft. The US Hang Gliding & 
Paragliding Association, the Metropolitan Airports Commission, and 
Predesa stated that a lower maximum speed would provide additional time 
for UAS operators and pilots of manned aircraft to see and avoid each 
other. Several of these commenters, including the Metropolitan Airports 
Commission and Kansas State University UAS Program, stated that a 100 
mph speed limit would make it extremely difficult (if not impossible) 
for an operator to maintain visual line of sight with the unmanned 
aircraft. NBAA, the Airports Council International--North America and 
the American Association of Airport Executives recommended that the FAA 
conduct further study and risk assessment regarding appropriate speed 
limitations for this type of UAS. The Permanent Editorial Board of the 
Aviators Model Code of Conduct Initiative argued that FAA should 
establish a lower maximum speed that will create no greater harm than 
is caused by most birds (approximately 30 knots) until such time as 
further data demonstrates the safety of a higher speed limitation.
    A speed limit of 87 knots (100 mph) must be viewed within the 
context of the overall regulatory framework of part 107. In other 
words, a small unmanned aircraft may reach a speed of 87 knots only if 
the remote pilot in command can satisfy all of the applicable 
provisions of part 107 while flying the small unmanned aircraft at 87 
knots. For example, since this rule requires small UAS operations to be 
conducted within visual line of sight, a remote pilot in command may 
not allow the small unmanned aircraft to reach a speed where visual-
line-of-sight cannot be maintained in accordance with Sec.  107.31.
    Additionally, as discussed in section III.E.3.b.vi of this 
preamble, the remote pilot in command must, prior to flight, assess the 
operating environment and consider risks to persons and property in the 
vicinity both on the surface and in the air. The remote pilot in 
command must also ensure that the small unmanned aircraft will pose no 
undue hazard to other aircraft, people, or property in the event of a 
loss of control of the aircraft for any reason. Thus, if the remote 
pilot in command plans to have an operation in which the small unmanned 
aircraft will travel at 87 knots, that remote pilot will, as part of 
the preflight assessment process, need to take precautions to ensure 
that the unmanned aircraft will not pose an undue hazard to other 
aircraft, people, or property on the ground. Those precautions will 
likely be greater than the precautions that a remote pilot in command 
will need to take for a small unmanned aircraft traveling at a lower 
speed. Accordingly, a maximum speed limit of 87 knots is appropriate 
because the remote pilot in command will have to implement mitigations 
commensurate with the risk posed by his or her specific small UAS 
operation.
    Other commenters, including Textron Systems recommended no 
limitations regarding airspeed, arguing that as long as the operator 
can maintain visual line of sight and control of the UAS, there should 
be no performance limitations.
    A speed limit is generally necessary for small unmanned aircraft 
because an aircraft traveling at high speed poses a higher risk to 
persons, property, and other aircraft than an aircraft traveling at 
lower speed. As discussed earlier, the other parameters of this rule 
(such as visual line of sight and the preflight assessment conducted by 
the remote pilot in command) mitigate this risk for small unmanned 
aircraft traveling at speeds up to 87 knots. However, those parameters 
do not address the risk posed by small unmanned aircraft traveling at 
speeds faster than 87 knots. Accordingly, this rule will retain the 
proposed 87-knot speed limit but will make that limit waivable. As part 
of the waiver process, the FAA will consider operation-specific 
mitigations to address additional risk posed by higher-speed small UAS 
operations.
    The Kansas State University UAS Program and SWAPA questioned 
whether there would be any commercial applications of small UAS that 
would necessitate a 100 mph airspeed. Further, several commenters, 
including Modovolate Aviation, asserted that many small UAS, such as 
those employing multi-rotor technology, may not need to or may not be 
able to reach a speed of 100 mph.
    The FAA agrees that there will likely be small unmanned aircraft 
incapable of reaching a speed of 87 knots. The FAA also agrees that 
there will likely be small UAS operations that are incapable of 
satisfying the other provisions of this rule, such as visual line of 
sight, at a speed of 87 knots. However, that is not a sufficient 
justification for reducing the maximum permissible speed for all small 
unmanned aircraft because there may be small UAS operations that can 
reach a speed of 87 knots and operate safely at that speed in 
compliance with all applicable provisions of part 107.
    The New Hampshire Department of Transportation noted that the FAA 
did not propose any specific equipage requirements for small UAS that 
would be used to determine airspeed. Similarly, CAPA stated that the 
NPRM does not require or define how the operator will maintain 
operations below a specified airspeed other than visually, which the 
commenter said would be very difficult to do when operating in 
congested airspace and scanning for other conflicts.
    Aerius recommended that the FAA amend the proposed regulatory text 
to make any speed limitations based on groundspeed because many UAS are 
not equipped with a system that would provide airspeed to the small UAS 
operator. Several individuals noted that multi-rotor helicopter UAS 
cannot sense airspeed, only groundspeed. Another individual suggested 
that the regulatory text be amended to reference GPS-generated airspeed 
because all UAS do

[[Page 42121]]

not have the equipment to provide airspeed to the operator.
    As noted by the commenters, the provisions of this rule will not 
require small UAS to be equipped with a system that would provide 
calibrated airspeed to the remote pilot in command. The FAA also notes 
that the groundspeed of the small unmanned aircraft is what is 
pertinent to the safety of a small UAS operation because that is the 
information that specifies how quickly the aircraft is moving relative 
to the ground in proximity to where the remote pilot is located. 
Because changing the standard to groundspeed rather than calibrated 
airspeed would not have a detrimental effect on safety and because many 
unmanned aircraft may not have the equipage necessary to measure 
calibrated airspeed, the FAA agrees with the commenters and has changed 
the maximum airspeed standard to be a function of groundspeed. A small 
unmanned aircraft's groundspeed could be determined by measures such as 
GPS-based speed, visual estimation, a radar gun, or timed travel across 
a fixed distance. This rule will retain the maximum speed limit of 87 
knots (100 mph), but that limit will be a measure of groundspeed rather 
than airspeed.
    A few individuals (who self-identified as recreational operators of 
model aircraft) said the proposed maximum speed would preclude them 
from holding certain types of model aircraft competitions. In response, 
the FAA emphasizes that, as discussed in section III.C.4 of this 
preamble, part 107 will not apply to model aircraft operations that 
meet the criteria of section 336 of Public Law 112-95.
ii. Operating Multiple Unmanned Aircraft
    The NPRM proposed that an operator or visual observer would be 
limited to operating no more than one small UAS at the same time. The 
NPRM explained that performing the duties required of a crewmember in 
real time is a concentration-intensive activity and as such, it is 
necessary to place a limitation on the number of UAS that a person can 
operate simultaneously. For the reasons discussed below, this rule will 
retain the proposed prohibition on the simultaneous operation of 
multiple small unmanned aircraft. This prohibition will be waivable if 
a person establishes that his or her simultaneous operation of more 
than one small unmanned aircraft can safely be conducted under the 
terms of a certificate of waiver.
    NAAA, the California Agricultural Aircraft Association, NAMIC, 
Colorado Agricultural Aviation Association, and Schertz Aerial Services 
supported limiting operators or visual observers to operating only one 
small UAS at a time. The International Brotherhood of Teamsters urged 
the FAA to maintain all operational limits and safeguards presented in 
the NPRM, including the limit of one UAS per operator, until there is 
technological certainty that no workers, or the general public, would 
be at risk from automated package delivery.
    Other commenters disagreed with the proposed limitation on the 
number of small UAS that a person can operate simultaneously. Several 
commenters asserted that technology currently exists to allow for the 
safe operation of multiple small UAS by a single operator. The Mercatus 
Center at George Mason University said existing and developing 
technologies ``can more than compensate to the diminished concentration 
that operators might apply to each individual aircraft.'' AirShip 
Technologies stated that it currently incorporates technology that will 
allow clusters of UAS with similar missions to be pre-programmed and 
controlled by one operator. Boeing and Aviation Management similarly 
said that current technology allows a group or swarm of multiple 
vehicles to operate safely and efficiently in highly automated modes.
    The commenters also claimed that new operator consoles have been 
shown to be able to safely control multiple small UAS systems. The NJIT 
Working Group pointed to the Navy Low-Cost UAV Swarming Technology 
(LOCUST), which it said could be used for non-military purposes, such 
as first responder and search and rescue operations. Vision Services 
Group said multiple small UAS operations should be permitted if both 
the operator and visual observer possess a Permit to Operate and a 
valid Third Class Medical Certificate.
    As discussed in the visual-line-of-sight section of this preamble, 
the remote pilot in command, the person manipulating the flight 
controls of the small UAS, and the visual observer (if one is used) are 
required to maintain visual awareness of the small unmanned aircraft 
and the surrounding airspace in order to minimize the risk of a mid-air 
collision with a manned aircraft. This activity requires active 
attention and operating more than one unmanned aircraft at the same 
time would split the concentration of the small UAS crewmembers. By 
decreasing the amount of attention that the remote pilot in command, 
person manipulating the flight controls, and visual observer can 
dedicate to each small unmanned aircraft, the operation of multiple 
small unmanned aircraft at the same time may introduce additional risk 
into the NAS. This risk would further be compounded if larger numbers 
of aircraft are operated at the same time because each aircraft would 
receive an even smaller fraction of each person's attention.
    The FAA recognizes that technology may allow a remote pilot in 
command to operate multiple small unmanned aircraft as one system. 
While such a system may, in some circumstances, help address the split-
attention problem discussed above, it would introduce significantly 
more risk into the operation because of the remote pilot's potentially 
reduced ability to resolve multiple aircraft or system failures to a 
safe outcome. For example, if one small unmanned aircraft in a multi-
aircraft system loses its link to the control station, it may cause the 
whole system to break down, resulting in loss of positive control of 
multiple small unmanned aircraft and significantly increasing the risk 
to the NAS. The FAA notes that, at this time, none of the technologies 
cited by the commenters have established a necessary level of 
reliability through a nationally recognized formal testing process such 
as through ASTM International, SAE International, or civil aviation 
airworthiness certification. Accordingly, this rule will prohibit a 
person from manipulating the flight controls of more than one unmanned 
aircraft or acting as a remote pilot in command or visual observer in 
the operation of more than one unmanned aircraft at the same time. 
However, as discussed below, this prohibition will be subject to 
waiver.
    Commenters including Aviation Management, Boeing, the Small UAV 
Coalition, and AIA said that the FAA should revise the rule to create 
the framework for the agency to be able to administratively approve 
multi-UAS operations. Several of those commenters, as well as Google, 
Amazon, and AUVSI, among others, supported allowing the operation of 
multiple small UAS per operator in certain cases using a risk-based 
approach. Amazon, for example, said the proposed provision should be 
revised to specifically permit the operation of multiple small UAS by a 
single operator ``when demonstrated that this can be done safely.'' The 
Small UAV Coalition said approval for the operation of multiple small 
UAS by a single operator would be based on a demonstration of operator 
ability and technological capabilities of the UAS.
    DJI said it may be possible for an operator to operate more than 
one small UAS at a time if there are sufficient

[[Page 42122]]

visual observers or detect-and-avoid technology. An individual said the 
rule should allow for the use of multiple small UAS by a single 
operator if all of the UAS are within the visual line of sight of 
either the operator or visual observer or if there is some other means 
of compliance for see-and-avoid for all small UAS involved in the 
operation.
    Other commenters said the final rule needs to have the flexibility 
to accommodate emerging technology in this area. The Utah Governor's 
Office of Economic Development stated that ``[t]here must be a road map 
to, and provisions for, multiple UAS per operator to allow this 
technology to be tested and eventually implemented.'' The University of 
Illinois at Urbana-Champaign said there should be an exception to the 
proposed restriction for research into developing technology to allow 
multiple drones to successfully navigate together. MPAA asserted that 
``as control systems improve it may become possible to operate more 
than one system at a time.'' MPAA urged the FAA to provide a mechanism 
in the rules to allow additional flexibility for filming in controlled 
environments as such technology advances. The National Association of 
Broadcasters, National Cable & Telecommunications Association, and 
Radio Television Digital News Association said that given the speed at 
which technology is developing, the FAA should be open to considering 
automated systems that contemplate one person controlling multiple 
small UAS that demonstrate an equivalent level of safety to the 
requirements of the final rule.
    The FAA acknowledges the points raised by the commenters that the 
risks discussed above may, at some point in the future, be mitigated 
through technology. However, as of this writing, the FAA does not have 
data on which to base a safety finding that the available technology 
for multiple simultaneous small unmanned aircraft operations by one 
person has matured to the extent necessary to allow these types of 
operations in a rule of general applicability. The FAA also 
acknowledges the benefits of research and development associated with 
the simultaneous operation of multiple unmanned aircraft and agrees 
that additional flexibility is called for in this rule so that the 
agency can administratively allow these types of operations based on 
operation-specific mitigations. Accordingly, the FAA has made the 
prohibition on the simultaneous operation of multiple small unmanned 
aircraft waivable on a case-by-case basis. To obtain a waiver, a person 
will have to demonstrate that his or her simultaneous operation of more 
than one small unmanned aircraft can safely be conducted under the 
terms of a certificate of waiver. The FAA recognizes the potential of 
one person being able to operate multiple small unmanned aircraft and 
will evaluate operations conducted under FAA-issued waivers to help 
inform future agency actions to enable the simultaneous operation of 
multiple small UAS.
    Amazon asserted that the proposed restriction is based on the 
flawed premises that small UAS must be operated under constant manual 
control and that FAA-recognized mitigation measures like flight 
termination systems are not already available today. Aerial Services 
and MAPPS stated that the FAA should allow the operation of swarms of 
UAS if the flight management system is capable of supporting it and 
each aircraft has rigid automated procedures in case of loss of signal.
    As discussed previously, swarms of multiple small unmanned aircraft 
that are linked up to a single system introduce additional risk into 
the NAS because a single unmanned aircraft losing its link to the 
control system may destabilize the system and result in loss of 
positive control of multiple aircraft. Additionally, the FAA does not 
currently have data on which to base a finding that the pertinent 
technology has matured to the extent necessary to allow the safe 
operation of multiple small unmanned aircraft in a rule of general 
applicability. As such, the FAA will consider the use of this 
technology on a case-by-case basis via the waiver process.
    AirShip Technologies and the NJIT Working Group cited military and 
non-military uses for clusters, swarms, and multiple UAS. These include 
combat, first responder missions, mapping, and search and rescue 
operations. Skycatch, Clayco, AECOM, DPR Construction, and AUVSI noted 
that the use of multiple UAS in a single operation allows for more 
efficient completion of complex tasks to include work over job sites 
without increasing the amount of time in flight or recharging of 
batteries.
    The FAA agrees with the commenters that the operation of multiple 
unmanned aircraft may provide a valuable and broad spectrum of 
services. However, the technology necessary to mitigate risk associated 
with this type of operation is still in its infancy and has not yet 
been proven to meet a level of reliability sufficient to allow that 
technology to be relied on for risk mitigation in a rule of general 
applicability. As discussed previously, the waiver process will 
continue to be available for small UAS operations that fall outside the 
operational parameters of part 107.
    The International Center for Law and Economics and Tech Freedom 
said the proposed restriction ``fails to reflect the `best reasonably 
obtainable scientific, technical, economic, and other information,' '' 
as required by Executive Order 12866. The commenters further stated 
that the FAA has a constitutional obligation to explore the adequacy of 
simultaneous operation technology. Otherwise, the commenters continued, 
the rule will greatly increase the cost of operating UAS, thus limiting 
their availability for both commercial and non-commercial uses that are 
protected by the First Amendment.
    The FAA received over 4,500 comments on this rulemaking and none of 
the commenters (including the International Center for Law and 
Economics and Tech Freedom) submitted any data establishing the safety 
or maturity of simultaneous-operation technology. Based on the number 
and high quality of the comments submitted, the FAA believes that this 
lack of data was not an oversight but, rather, evidence of the fact 
that existing data about this technology is very limited at this time. 
The FAA will continue exploring the feasibility of this technology in 
future agency actions that will be informed, in part, by small UAS 
operations that will take place under a part 107 waiver allowing the 
operation of multiple small unmanned aircraft at the same time.
iii. Micro UAS
    The NPRM raised the possibility of creating a separate micro UAS 
classification for UAS weighing no more than 4.4 pounds (2 kilograms). 
The NPRM went on to list the following restrictions that the FAA was 
considering for such a micro UAS classification:

     Require that the micro UAS be made out of frangible 
materials that break, distort, or yield on impact.
     Require that the unmanned aircraft weigh no more than 
4.4 pounds.
     Impose a maximum airspeed of 30 knots.
     Impose a maximum altitude of 400 feet AGL.
     Restrict flight distance to 1,500 feet from, and within 
the visual line of sight of, the operator.
     Ban the use of first person view during operations.
     Require the operator to maintain manual control of the 
flight path of the micro UAS and, therefore, ban the use of 
automation to control the flight path.
     Limit operations to Class G airspace.
     Require the micro UAS to maintain a distance of at 
least 5 nautical miles from any airport.


[[Page 42123]]


    With these additional operating restrictions, the NPRM proposed to: 
(1) Allow micro UAS to fly over people not involved with the operation; 
and (2) create a separate airman certificate with a micro UAS rating.
    Many commenters addressing the issue supported the creation of a 
separate micro UAS classification, noting that the reduced regulatory 
requirements associated with the classification are consistent with the 
lower hazards posed by micro UAS. Commenters in research/academia and 
the agricultural, news/media, insurance, and construction industries, 
among others, also noted the value of being able to operate micro UAS 
under the lesser restrictions contemplated in the NPRM.
    However, a number of commenters, including ALPA, NAAA, NetMoby, 
Aerius, Planehook, Green Vegans, and NextGen Air Transportation Program 
at NC State University, opposed the creation of a separate micro UAS 
classification. Reasons for their opposition included concerns about: 
(1) The safety of flying over people not involved in operations; (2) an 
airman certificate issued on the basis of self-certification; and (3) 
the lack of data available on the safety of micro UAS operations. UAS 
America Fund and the Property Drone Consortium recommended that micro 
UAS operators should be required to obtain liability insurance for 
their operation.
    Other commenters, including the Small UAV Coalition, National 
Association of Broadcasters, Skycatch, DJI, Predesa, the Nez Perce 
Tribe, and the New Hampshire Department of Transportation opposed the 
operational limitations that the NPRM proposed for micro UAS. These 
commenters argued that many of the proposed limitations such as the 
frangibility requirement, the prohibition on use of FPV devices, the 
prohibition on autonomous operations, and the prohibition on operating 
within five miles of an airport, would be unduly restrictive and would 
significantly impair micro UAS operations.
    Still other commenters, including the Association of American 
Universities, the Electronic Frontier Foundation, Associated General 
Contractors, Southern Company, and the Oklahoma Governor's Unmanned 
Aerial Systems Council argued that micro UAS should be exempted from 
some of the other operational restrictions of part 107 (not just flight 
over people). Commenters suggested that micro UAS be exempted from the 
visual-line-of-sight restriction, the limitation to daylight-only 
operations, the prohibition on simultaneous operation of multiple 
aircraft, and the minimum visibility requirements.
    The FAA agrees with the commenters who pointed out that many of the 
micro UAS limitations proposed in the NPRM, such as the requirement to 
remain more than five miles away from an airport and the prohibition on 
autonomous operations would, if finalized in this rule, significantly 
impair micro UAS operations. At the same time, the FAA acknowledges the 
concerns raised by ALPA, NAAA, and other commenters who pointed out 
that, even though micro UAS are smaller than other small UAS, they can 
still pose a safety risk. This concern is particularly troubling given 
the limited safety data currently available with regard to micro UAS 
operations and the fact that almost all other countries that currently 
regulate UAS generally do not allow small unmanned aircraft to fly over 
people or congested areas.\96\
---------------------------------------------------------------------------

    \96\ Some countries, such as the United Kingdom, allow approval 
for flight in congested areas on a case-by-case basis. See GAO, 
Unmanned Aerial Systems: FAA Continues Progress toward Integration 
into the National Airspace at 32 (July 2015).
---------------------------------------------------------------------------

    Thus, after consideration of the comments that the proposed micro 
UAS restrictions would limit the utility of such operations and safety 
concerns that remain even with the operating limitations proposed in 
the NPRM, the FAA has determined that a different framework to regulate 
micro UAS is called for. Because the public has not yet been given an 
opportunity to comment on an alternate framework for micro UAS 
operations, the FAA has determined that a new comment period should be 
provided for the micro UAS component of this rule. Accordingly, the FAA 
chartered a new ARC to provide the FAA with recommendations regarding 
Micro UAS. On April 2, 2016, the FAA received the Micro UAS ARC's 
recommendations, and is moving to expeditiously issue an NPRM. In the 
meantime, the FAA will finalize the remainder of this rule to 
immediately integrate all other small UAS operations into the NAS.
    While the micro UAS NPRM rulemaking is pending, micro UAS will 
remain subject to the same provisions as all other small UAS. However, 
the FAA notes that many of the operational restrictions of part 107 are 
subject to waiver. A very low-weight unmanned aircraft may be one 
mitigation that could, in conjunction with other mitigations, be used 
to help support a safety finding as part of a waiver-application 
evaluation.
iv. Flight Over People
    The NPRM proposed to prohibit the operation of small unmanned 
aircraft over a person unless that person is either directly 
participating in the small UAS operation or is located under a covered 
structure that would protect the person from a falling small unmanned 
aircraft.\97\ This rule will finalize this provision with two changes. 
First, this rule will allow a small unmanned aircraft to be operated 
over a person who is inside a stationary covered vehicle. Second, this 
rule will make the restriction on operating a small unmanned aircraft 
over people waivable.
---------------------------------------------------------------------------

    \97\ Title 14 CFR 1.1 defines ``person'' as ``an individual, 
firm, partnership, corporation, company, association, joint-stock 
association, or governmental entity. It includes a trustee, 
receiver, assignee, or similar representative of any of them.'' 
Because the term ``person'' is defined in 14 CFR 1.1, part 107 uses 
the term ``human being'' in the regulatory text to capture only an 
individual human being. For readability, the preamble uses the terms 
``person'' and ``human being'' interchangeably.
---------------------------------------------------------------------------

    Many commenters, including NAAA, International Brotherhood of 
Teamsters, and Professional Photographers of America, supported the 
flight-over-people provision as proposed in the NPRM. Other commenters 
objected to the proposed requirement.
    DronSystems stated that the proposed ban on operations over non-
involved persons would impact e-commerce and ``a number of other 
sectors,'' and would be difficult to enforce. The University of 
Washington said that banning operations over non-operators is over-
burdensome. WAG said the proposed prohibition ``could have a 
significant chilling effect on both the commercial application of sUAS 
technology as well as the future development of sUAS technology,'' and 
is inconsistent with the ``model aircraft'' protections afforded by 
part 101 and section 336 of Public Law 112-95. Similarly, Foxtrot 
Consulting suggested that adequate training and a performance 
evaluation is a better mitigation measure because it ensures that 
remote pilots can operate their small UAS safely, regardless of what is 
below.
    The Small UAV Coalition, Aeromarine, and an individual commenter 
stated that the proposed prohibition is unduly restrictive because 
there is no prohibition on manned aircraft flying over people. The 
Coalition also asserted that, given the consequent reduction in risk 
associated with the visual-line-of-sight and see-and-avoid 
requirements, a small UAS may safely be operated over persons.
    The International Center for Law and Economics and TechFreedom 
claimed

[[Page 42124]]

that by prohibiting UAS operation over people who are not directly 
involved in the operation, the FAA is ``essentially limiting commercial 
UAS operations to unpopulated or extremely sparsely populated areas,'' 
and thus is ``improperly ignor[ing] the important incentives for 
innovation suggested by Executive Order 12866 without apparent 
corresponding benefit.''
    The Consumers Energy Company (CEC) stated that the likelihood of 
injury from contact with a small UAS is low given the restrictions on 
the size of small UAS, as well as the fact that they use small rotors 
and carry small fuel loads. With respect to the maintenance of power 
lines, poles, and related facilities, in particular, CEC pointed out 
that most operations occur in remote or rural locations with low 
population densities, where the risk of contact between a small UAS and 
a non-involved person is minimal. CEC said the FAA needs to consider 
``whether the risk perceived from small UAS usage really justifies a 
restriction that could have a substantial impact on the ability to use 
sUAS on a commercial scale.''
    Manned aircraft are generally permitted to fly over people because 
manned aircraft are formally evaluated for airworthiness through the 
airworthiness certification process. This process ensures that the 
manned aircraft has a level of reliability that would allow it to, 
among other things, safely fly over a person.
    This rule does not require airworthiness certification. Because 
small unmanned aircraft have not been tested for reliability through 
the airworthiness certification process, they will likely have a higher 
failure rate than certificated aircraft. A small unmanned aircraft that 
fails may fall on a person standing under it at the time of failure, 
which is why this rule restricts small unmanned aircraft flight over 
people.
    With regard to the risk caused by small UAS operations, the FAA 
agrees that, to date, the number of actual fatalities caused by small 
UAS operation has been low. However, that may be a function of the fact 
that, until recently, commercial civil small UAS operations have been 
prohibited in the United States. As discussed in the Regulatory Impact 
Assessment, the FAA expects the use of small UAS to increase after 
issuance of this rule, and thus, the agency has to ensure that part 107 
implements appropriate mitigation to address potential risk caused by 
small unmanned aircraft flight over people.
    The FAA agrees with WAG and Foxtrot Consulting that the knowledge 
that remote pilots in command will acquire during the certification 
process will help mitigate against small UAS accidents caused by human 
error. However, the safety concern underlying the flight-over-people 
restriction is not human error, it is mechanical failure. While a 
remote pilot in command may be able to detect some signs of potential 
mechanical failure during the preflight check, the preflight check does 
not, by itself, assure a level of mechanical reliability established by 
the formal airworthiness and maintenance processes that apply to other 
aircraft in the NAS. The appropriate mitigation to address this 
discrepancy, especially for heavier small unmanned aircraft, is an 
operational restriction on flying over people who could be hurt in the 
event of a mechanical failure.
    The FAA disagrees with WAG's assertion that model aircraft are 
subject to a lower flight-over-people standard than part 107 
operations. In order to operate under section 336 of Public Law 112-95, 
a model aircraft must, among other things, be ``operated in accordance 
with a community based set of safety guidelines and within the 
programming of a nationwide community-based organization.'' \98\ Today, 
the largest nationwide community-based organization that operates model 
aircraft is the Academy of Model Aeronautics (AMA). AMA's safety code 
specifically prohibits ``flying directly over unprotected people, 
vessels, vehicles or structures.'' \99\
---------------------------------------------------------------------------

    \98\ Public Law 112-95, sec. 336(a)(2).
    \99\ Academy of Model Aeronautics National Model Aircraft Safety 
Code, Sec.  B(1).
---------------------------------------------------------------------------

    Several commenters, including the American Council of Engineering 
Companies, AUVSI, and Consumer Electronics Association, urged the FAA 
to implement a risk-based approach to allow operations over people.
    AUVSI asserted that ``by allowing sUAS operations over human beings 
following a risk-based approach, the FAA would foster industry 
innovation to develop the proper equipment and software necessary to 
meet safety standards regarding such operations.'' CEA provided an 
example of such a risk-based restriction used by another country that 
it said ``would permit operations in less populated environments and 
continue to allow industry to gain experience and innovate.'' 
Specifically, CEA noted that the Swiss have successfully used a 
permitting system for UAS operations over ``gatherings of people,'' 
defined as ``several dozen people standing in close proximity to one 
another'' or within a radius of 100 meters of such gatherings. Drawing 
on that example, CEA recommended the FAA ``tailor the rules to prohibit 
operations over mass gatherings, such as concerts and sporting 
events.'' Although CEA commended the FAA for rejecting as ``unduly 
burdensome'' a prohibition against the operation of small UAS over any 
person, it nevertheless asserted its belief ``that the proposal is just 
as burdensome and that small UAS incorporate sufficient safety measures 
that make the prohibition unnecessary under the new rules.''
    Boeing similarly recommended that the FAA reconsider proposed Sec.  
107.39 and ``develop criteria using a risk-based approach to this 
issue, based upon population density and overflight, to take into 
account agriculture as well as law enforcement uses.'' The Professional 
Helicopter Pilots Association suggested allowing small UAS to be 
operated over persons or property if they do so in a safe manner.
    DJI pointed out that ``the proposed performance standards already 
impose an obligation on the operator to familiarize himself with the 
operating environment and take steps to assure the operation does not 
present an `undue hazard'.'' Depending on the nature of the operation, 
DJI continued, ``the risk associated with an inadvertent loss of 
positive control may require that there be no third parties exposed to 
any risk,'' or ``the risk may be so minimal as to merit notification 
but not evacuation or taking cover,'' or ``the required safety measure 
may fall within this range of options.'' As such, DJI suggested that 
``the best way to address the risk to individuals not directly involved 
in the operation is through the proposed performance standard.''
    Trimble Navigation proposed the FAA rely on a performance-based 
regime for operations over persons. Noting that the onus and obligation 
should be primarily on the small UAS operator to assess the overall 
safety environment before operating over persons, the company said the 
FAA ``should avoid trying to specify precise design-based criteria in 
favor of a general standard of care that requires the operator to take 
into account the full range of operational safety protections and 
procedures at the site in question.''
    A commenter suggested the final regulations should discern between 
UAS weighing 5 pounds or less (which could be operated over 
``populated'' areas at a maximum speed of 40 mph), UAS weighing between 
5 and 25 pounds (which could be operated over ``sparsely populated'' 
areas at a maximum speed of 70 mph), and UAS weighing between 25 and 55 
pounds (which could be operated according to

[[Page 42125]]

the limitations imposed in the NPRM). The commenter further suggested 
that COAs be available for UAS between 25 and 55 pounds to be operated 
in populated and sparsely populated areas.
    The FAA agrees that for certain types of small unmanned aircraft, a 
more performance-based set of operational mitigations may be 
appropriate because the lighter weight or other characteristics of 
those aircraft may result in less impact force if they should collide 
with a person. That is why, as discussed in the previous section, the 
FAA will be issuing an NPRM inviting public comment on a framework 
under which micro UAS will be allowed to operate over people. However, 
other small unmanned aircraft that do not meet the characteristics of a 
micro UAS may result in more impact force if they should collide with a 
person and that greater force may seriously injure or kill the person.
    The risk associated with flight over people is due to mechanical 
reliability issues that a remote pilot in command may have a limited 
opportunity to evaluate without airworthiness certification or a more 
extensive maintenance process. At this time, the FAA has no data 
establishing how that risk could be mitigated through operational 
constraints (whether performance-based or otherwise), other than a 
prohibition on flight over people. Accordingly, this rule will retain 
the general prohibition on flight over people. However, as discussed 
below, this prohibition will be waivable to allow the FAA to consider 
case-specific mitigations. The FAA will use data and operating 
experience gained as a result of the waiver process to help inform 
future UAS rulemakings.
    A number of commenters said the proposed restriction should be 
narrowed to apply only to certain crowded or heavily populated areas. 
The American Petroleum Institute urged the FAA not to apply the 
prohibition in cases of ``intentional acts to disrupt lawful UAS 
operations'' (e.g., anti-oil and gas activists placing themselves in 
generally accessible areas of operation to frustrate or halt routine 
activities). Event 38 Unmanned Systems proposed that ``certain events 
and other areas with high people concentration locations be designated 
as no-fly zones,'' instead of a total ban on operations over non-
participants. The company suggested that local and State entities could 
be involved in this part of the rulemaking.
    Matternet similarly recommended that the only overhead operations 
that should be restricted are operations ``over an open air assembly of 
persons if such operation endangers the life or property of another.'' 
The company compared the proposed regulation to regulations for 
ultralight vehicles (ULV)--which weigh up to 250 pounds, plus the 
weight of the person, and are permitted to be operated over persons--
and suggested that a device weighing less than one-sixth the weight of 
a ULV with a passenger, and operated at an altitude of only 500 feet or 
less (compared to thousands of feet for the ULV), poses far less risk 
to persons on the ground. Several individuals also recommended that the 
final rule prohibit any operation in congested areas or over open-air 
assemblies of people.
    As an initial matter, the FAA notes that there is a significant 
difference between the terms ``congested area'' and ``open-air assembly 
of people.'' While the term ``open-air assembly of people'' applies 
only to a large group of people, the term ``congested area'' could 
apply to an area that has no people in it. For example, a town's 
commercial/business district can be considered a congested area, even 
in the middle of the night when there are no people in the area.\100\
---------------------------------------------------------------------------

    \100\ See Letter to James E. Gardner from Rebecca MacPherson, 
Assistant Chief Counsel for Regulations (June 18, 2012).
---------------------------------------------------------------------------

    As pointed out by the commenters, a number of existing operations 
that take place in the NAS, such as the operation of ULV, are 
prohibited from taking place over congested areas.\101\ The FAA 
considered imposing a similar restriction on small UAS operations 
conducted under this rule. However, the FAA ultimately rejected this 
approach as needlessly restrictive because it would prohibit small UAS 
operations over certain parts of a town even when there are no people 
in the area of operation who could be hurt by a small unmanned 
aircraft.
---------------------------------------------------------------------------

    \101\ See, e.g., 14 CFR 103.15.
---------------------------------------------------------------------------

    With regard to operations that are not conducted over an open-air 
assembly of people, the FAA agrees that this may be a consideration for 
some small unmanned aircraft that pose a lower injury risk if they 
collide with a person, consistent with the micro UAS ARC's 
recommendations. Accordingly, the FAA may consider this approach as 
part of the micro UAS rulemaking. However, other small unmanned 
aircraft pose a higher injury risk and in the event of a mechanical 
failure, those aircraft could seriously injure or kill a person in 
their path, even if that person is not part of a larger group. 
Accordingly, this rule will not allow flight over people even when they 
are not part of an open-air assembly. We will continue to evaluate this 
issue and address it in rulemaking in response to the Micro UAS ARC 
recommendations, as noted earlier.
    The FAA declines to add an exception for intentional acts to 
disrupt lawful small UAS operations. A person who is standing under an 
uncertificated small unmanned aircraft is subject to the same amount of 
risk regardless of his or her subjective motivation for standing under 
the aircraft. The FAA notes, however, that State and local laws, such 
as trespassing, may provide a remedy for companies whose small UAS 
operations are deliberately interfered with by people entering the area 
of operation without permission.
    Finally, with regard to State and local entity involvement in this 
rulemaking, the FAA notes that the comment period for the NPRM was open 
to everyone, including State and local entities. The FAA received a 
number of comments from State and local entities, and it considered 
those comments when formulating this final rule.
    Several commenters, including the Small UAV Coalition, Google, and 
Statoil, suggested that the prohibition on flight over people should be 
subject to waiver or some other type of deviation authority. The Small 
UAV Coalition urged the FAA to revise proposed Sec.  107.39 to allow 
the Administrator or his delegate to authorize small UAS operations 
over non-participating persons through exemption, deviation authority 
(certificate of waiver or authorization), or certification, ``upon a 
showing that any risk to persons on the ground is sufficiently 
mitigated.''
    Google pointed out that an outright ban on operations over people 
not directly participating in the operation of the UAS or not located 
under a covered structure would limit beneficial uses for small UAS 
which involve operations above nonparticipants. Google proposed that 
operators be able to ``present a safety case'' to the FAA for 
operations over non-participants.
    The National Ski Area Association (NSAA) said the final rule should 
recognize and accommodate technological innovations, which could be 
required for use of UAS at ski areas when operating near open-air 
assemblies of persons. Such technologies include geo-fencing, return-
to-home capabilities, pre-programmed waypoint software, land-
immediately function, GPS, signal processing, and increasingly reliable 
navigation systems.
    CEA suggested that the FAA allow small UAS to be eligible to obtain 
airworthiness certifications, and that UAS with such certifications not 
be subject to the prohibition on operations

[[Page 42126]]

over people. CEA asserted that such an approach ``will create a vibrant 
market for UAS and encourage manufacturers to seek airworthiness 
certification.''
    Airware pointed out that standards have been developed by ASTM 
subgroup F38 to ensure higher levels of safety for operations that pose 
a higher risk like flight over populated areas. In addition to those 
existing standards, Airware asserted that the combination of the use of 
fly-away protections like geo-fencing and contingency management, 
applying design and testing to industry standards, the use of reliable 
flight control systems, and the use of parachutes to mitigate against 
the risk of all out failure ``provides an equivalent level of safety 
for flight in populated areas.'' Airware further asserted that this 
goes well beyond the requirements imposed in the countries that 
currently allow for operations over populated areas like France, the 
Czech Republic, Austria, Denmark, Italy, and Sweden (among others), 
which ``are currently being conducted with extremely high levels of 
safety.''
    ASTM pointed out that there are multiple approved industry 
consensus standards under development to support operations over 
people, in case the FAA decides to require compliance with industry 
consensus standards for this requirement in the final rule. ASTM also 
noted that precedent exists for the utilization of industry consensus 
standards by Federal agencies in the United States. The commenter went 
on to point out that the National Technology Transfer and Advancement 
Act (NTTAA) mandates that all Federal agencies use technical standards 
developed and adopted by voluntary consensus standards bodies, as 
opposed to using government-unique standards. In addition, ASTM 
asserted that, consistent with Section 12(d) of the NTTAA, OMB Circular 
A-119 directs agencies to use voluntary consensus standards in lieu of 
government-unique standards except where inconsistent with law or 
otherwise impractical. ASTM further noted that OMB Circular A-119 also 
provides guidance for agencies participating in voluntary consensus 
standards bodies and describes procedures for satisfying the reporting 
requirements of the Act.
    The FAA agrees that technology or additional mitigation, such as 
airworthiness certification, may allow small unmanned aircraft to 
safely fly over people in certain circumstances. Accordingly, the 
flight-over-people restriction in this rule will be waivable. In order 
to obtain a waiver, an applicant will have to demonstrate that he or 
she has implemented mitigations such that small unmanned aircraft 
flight over people can safely be conducted under the terms of a 
certificate of waiver.
    The FAA also agrees with CEA that while this rule does not require 
airworthiness certification, this rule also does not prohibit a small 
UAS from voluntarily obtaining this certification. The FAA generally 
agrees that having a small UAS meet an appropriate airworthiness 
standard could increase safety to the point of permitting a small 
unmanned aircraft to operate over persons who are not directly involved 
in the flight operation (i.e., non-participants) and who are not under 
a covered structure. The FAA may consider airworthiness certification 
of the small UAS as mitigation to support an application for waiver 
that would allow a small unmanned aircraft to operate over unprotected 
non-participants.
    With regard to the use of industry consensus-standards, as noted by 
ASTM, consensus standards for operations such as flight over people are 
currently in development. As of this writing, those standards have not 
yet been published. The FAA notes, however, that the level of safety 
that must be demonstrated in order to obtain a waiver may be 
demonstrated in a number of different ways. Once consensus standards 
are published, the FAA may consider whether compliance with the 
published consensus standards would be one way to demonstrate that the 
proposed operation can be conducted safely under the terms of a 
certificate of waiver. The FAA will also consider UAS-specific 
consensus standards, once they are published, in future UAS 
rulemakings.
    Several commenters said the proposed prohibition should not apply 
when additional risk mitigating measures are employed. Southern Company 
said the FAA should allow operations over any person who is located on 
the property, easement, or right of way of the person or entity for 
whom the small UAS is operated, and any person who is participating in 
the activity for which the small UAS is being operated. The commenter 
said such mitigating restrictions could include a lower operating 
ceiling, lateral-distance limits, a lower speed restriction, and a 
prohibition on operations over large gatherings of people. Qualcomm 
similarly proposed that FAA permit operations over uninvolved persons 
where risks are mitigated by the use of ``proven means of avoiding harm 
to individuals via technologies that allow the device to land safely 
under even extreme circumstances.'' The Rocky Mountain Farmers Union 
urged the FAA to allow operations over non-participants ``under 
circumstances when the UAS operator can maintain safe operation of the 
UAS and either depart the area or safely land the UAS without risk to 
unrelated persons on the ground.'' The Newspaper Association of America 
asserted that the FAA should not prohibit news organizations from 
overhead flight, ``provided that adequate precautionary measures are 
taken to ensure that [UAS] are operated safely at all times.''
    The Mercatus Center at George Mason University said that the FAA 
did not consider the benefits of allowing UAS operations over persons 
not involved in the operation, and that the FAA overstates the risks of 
operation in populated areas. The University asserted that, ``[u]pon 
loss of positive control, unmanned aircraft can be programmed to safely 
return to a base, or to simply hover in place.'' Thus, the University 
continued, the risk to bystanders can be mitigated without a ban on 
operation over uninvolved persons.
    NAMIC recommended that the FAA allow small UAS operations over 
people not directly involved in the operation, as long as those 
operations follow enhanced safety protocols, including, for example: 
(1) That the small unmanned aircraft not loiter over a person or 
persons for an extended period of time, but transition over them as 
needed to reach a location where operating is permitted to complete the 
flight; and (2) that an operator must operate the UAS at a sufficient 
altitude so that if a power unit fails, an emergency landing can be 
accomplished without undue hazard to persons or property on the ground. 
Exelon Corporation said that the final rule should include reasonable 
accommodations to allow for brief, low-risk exceptions to the ban on 
flights over non-participating persons (e.g., flying across a road 
during a survey of damage to power distribution lines in suburban 
areas), and that ``proper safety precautions as well as signage, 
education, and protocol can be put in place to mitigate any safety 
concerns.''
    The Property Drone Consortium said that any UAS with ``special 
safety features'' should be exempt from the ban on flight over non-
participants. Furthermore, the Consortium suggested the FAA mitigate 
any safety concerns by requiring appropriate insurance coverage or 
creating a suggested list of ``best practices'' for use in the 
insurance industry. Similarly, the University of Illinois at Urbana-
Champaign said the proposed prohibition ``is onerous and 
overprotective,'' and suggested instead

[[Page 42127]]

that insurance and equipment requirements could be employed ``to 
promote responsible use of the UAS.''
    As discussed earlier, the restriction on flight over people in this 
rule will be waivable. This will allow the FAA to consider, on a case-
by-case basis, any additional mitigations that are incorporated into a 
small UAS operation. The FAA will grant a waiver request allowing small 
unmanned aircraft flight over people if the applicant establishes that 
his or her operation can safely be conducted under the terms of a 
certificate of waiver. In response to comments suggesting an insurance 
requirement in place of the flight-over-people restriction, the FAA 
notes that, as discussed in section III.K.1 of this preamble, the FAA 
lacks jurisdiction to mandate the purchase of liability insurance.
    An individual commenter suggested that operations in congested 
areas be permitted with additional licensure, which the commenter said 
``will assist the operator in recognizing potential hazards and risks 
as well as the ability to assess those risks to ensure that these 
hazards to the public be minimized.'' Another individual commenter 
recommended an additional rating for operators to allow them to fly 
``in cities and other crowded areas.'' The commenter said the operators 
could be required to go through a more comprehensive certification 
process, and the UAS could be required to have annual or semiannual 
maintenance checks and be equipped with an automatically deployable 
parachute system.
    As discussed earlier, the FAA considered and rejected additional 
limitations on operations over congested areas because that approach 
would needlessly limit small UAS operation over congested areas during 
times when those areas are devoid of people. The FAA also does not 
agree that additional remote pilot certification should be required to 
operate over an empty area of operation, even if that area of operation 
happens to be located in a congested area.
    The Stadium Managers Association suggested modifying proposed Sec.  
107.39 to mirror the current section 333 exemption language which, in 
addition to prohibiting flights over people, includes a prohibition 
against flight over vehicles, vessels, and structures. Vision Services 
Group similarly recommended prohibiting flight over people in a covered 
structure.
    On the other hand, Edison Electric Institute, NRECA, the American 
Public Power Association, and Continental Mapping suggested that the 
exception allowing flight over people located under a covered structure 
that can provide reasonable protection from a falling small unmanned 
aircraft should be clarified to indicate that persons under cover in a 
vehicle ``may qualify as being in a structure providing reasonable 
protection.''
    This rule will allow flight over people located under a covered 
structure capable of protecting a person from a falling small unmanned 
aircraft because such a structure mitigates the risk associated with a 
small unmanned aircraft flying over people. The FAA also agrees with 
Edison Electric Institute, NRECA, the American Public Power 
Association, and Continental Mapping that a small unmanned aircraft 
should be allowed to fly over a person who is inside a stationary 
covered vehicle that can provide reasonable protection from a falling 
small unmanned aircraft. The FAA has modified this rule accordingly. 
This rule will not, however, allow operation of a small unmanned 
aircraft over a moving vehicle because the moving vehicle operating 
environment is dynamic (not directly controlled by the remote pilot in 
command) and the potential impact forces when an unmanned aircraft 
impacts a moving road vehicle pose unacceptable risks due to head-on 
closure speeds. Additionally, impact with a small unmanned aircraft may 
distract the driver of a moving vehicle and result in an accident.
    Several commenters sought clarification on the NPRM's use of the 
phrases ``directly participating in the operation'' (as used in 
proposed Sec.  107.39(a)) and ``directly involved in the operation'' 
(as used in the preamble). Associated Equipment Distributors noted that 
the preamble to the NPRM indicates that direct participation is limited 
to the operator and the visual observer, but the proposed regulatory 
language ``does not afford clarity on this point.'' SkySpecs proposed 
allowing anyone who has permission to be on a construction site and is 
covered by liability insurance to be covered by the definition.
    Edison Electric Institute, NRECA, and the American Public Power 
Association said the definition of ``directly participating'' ``should 
be expanded to include personnel engaged in related activities, such as 
workers at a power plant a small UAS is being used to monitor or an 
electric utility crew whose work the small UAS is being used to 
assist.'' The organizations further proposed that such individuals 
would qualify as ``directly participating in an operation'' if they had 
received the pre-flight briefing described in proposed Sec.  107.49.
    Some commenters, including NBAA, the American Insurance 
Association, FLIR Systems, the North Carolina Association of 
Broadcasters, and Skycatch, felt that FAA should permit small UAS 
operations over individuals not involved in the UAS operations when 
those individuals consent to, or are made aware of, the operations. 
Several State farm bureaus and NBAA urged the FAA to allow small UAS 
operations over people not directly involved in an operation so long as 
the operator notifies those people of the operation before it starts. 
The American Farm Bureau Federation and a number of state farm bureau 
federations said the definition should be expanded to include 
individuals ``who have been made aware of the presence and approximate 
flight path of the sUAS in their vicinity.'' The farm bureau 
federations claimed that the risk of a small UAS endangering a 
consenting individual working in a field who is not directly involved 
in, but is aware of, a small UAS operation ``is simply too remote to 
justify a blanket prohibition.'' \102\ AED proposed including 
consenting individuals, such as employees and contractors at a 
construction site, in the definition of ``directly participating in the 
operation.'' The International Association of Amusement Parks and 
Attractions also suggested that the definition of ``directly 
participating in the operation'' include persons who have consented to 
the operation of the UAS overhead.
---------------------------------------------------------------------------

    \102\ Other commenters who urged FAA to reconsider the proposed 
prohibition as it applies to agricultural operations include the 
National Farmers Union, National Corn Growers Association, National 
Association of Wheat Growers, and the Virginia Agribusiness Council.
---------------------------------------------------------------------------

    Associated Builders and Contractors also proposed lifting the 
restriction on flight over non-participants on a construction site, so 
long as those people have been notified of the small UAS operations, 
wear hard hats, and have been provided orientation regarding the 
equipment prior to entering the work site.
    Kapture Digital Media questioned whether people can become 
``directly involved'' in an operation if they are notified of the 
operation by signs posted around the area of operation, or, 
alternatively, whether people can only become ``directly involved'' in 
an operation by signing a waiver. Vail Resorts noted that many of the 
best uses of UAS technology at ski areas would necessarily involve some 
temporary amount of flight over individuals who

[[Page 42128]]

are not ``necessary for the safe operation'' of the small UAS, which is 
how the NPRM defined ``directly involved in the operation.'' 
Consequently, Vail asserted that a strict ban on operations over people 
not ``directly involved'' in the operation ``could have the unintended 
consequence of making many potentially critical ski resort drone 
operations noncompliant with FAA regulations.'' As such, Vail said FAA 
should broaden the definition of ``directly involved'' to include 
``those people who are aware of and have consented to being involved in 
the drone operation by, for example, reading particular signage or 
signing a release.'' Similarly NoFlyZone.org said operations over non-
participants should be permitted provided the operator has advised all 
non-participants to remain clear of the small UAS launch/recovery area, 
and also advised all non-participants that the small UAS does not 
comply with Federal safety regulations for standard aircraft.
    The National Ski Area Association (NSAA) pointed out that for UAS 
operations that may involve operations near skiers and snowboarders, or 
participants and spectators in special events, ski areas could inform 
participants of the event and associated risks and could obtain consent 
prior to using a UAS. NSAA suggested further that ski areas ``could be 
obligated to determine, based on the event or assemblage of persons, 
acceptable proximity parameters, either laterally or vertically.''
    The term ``directly participating'' refers to specific personnel 
that the remote pilot in command has deemed to be involved with the 
flight operation of the small unmanned aircraft. These include the 
remote pilot in command, the person manipulating the controls of the 
small UAS (if other than the remote pilot in command), and the visual 
observer. These personnel also include any person who is necessary for 
the safety of the small UAS flight operation. For example, if a small 
UAS operation employs a person whose duties are to maintain a perimeter 
to ensure that other people do not enter the area of operation, that 
person would be considered a direct participant in the flight operation 
of the small UAS.
    Anyone else would not be considered a direct participant in the 
small UAS operation. Due to the potential for the small unmanned 
aircraft to harm persons on the ground, the FAA does not consider 
consent or the need to do other work in the area of operation to be a 
sufficient mitigation of risk to allow operations over people. The FAA 
considers the risks associated with allowing operations over directly 
participating persons to be a necessary risk associated with the safety 
of flight because if UAS crewmembers are prohibited from standing near 
a flying unmanned aircraft, they may be unable to complete their 
duties. Additionally, some small UAS operations require the aircraft to 
be hand-launched or retrieved by a person, so it would not be possible 
to conduct such operations without permitting operations over those 
people.
    Further, the FAA notes that people directly participating in the 
flight operation of a small unmanned aircraft have situational 
awareness that provides them with increased ability to avoid a falling 
unmanned aircraft. Conversely, a non-participant who has consented to 
allowing operations overhead may not share the same situational 
awareness and consequently may not be able to avoid being struck by a 
small unmanned aircraft. For this reason, a remote pilot intending to 
operate small unmanned aircraft over non- participants must apply for a 
waiver under this part, which will allow the FAA to evaluate each 
applicant's operation on a case-by-case basis.
    The American Fuel & Petrochemical Manufacturers and Employees, 
Associated General Contractors of America, Skycatch, Clayco, AECOM, DPR 
Construction, and the State of Utah Governor's Office of Economic 
Development said operations over uninvolved persons should be permitted 
at areas closed to the public (e.g., construction sites, movie sets), 
as long as the uninvolved persons are aware of and consent to the 
activity. The National Association of Broadcasters, National Cable & 
Telecommunications Association, and Radio Television Digital News 
Association, commenting jointly, pointed out that the FAA has already 
granted a number of section 333 exemptions for aerial photography and 
filming which have allowed small UAS flights over consenting production 
personnel, and thus urged the FAA to define ``directly participating in 
the operation'' to include persons who have ``implicitly consented to 
the operation of the sUAS overhead by nature of their presence on a set 
where sUAS filming is occurring.'' The Motion Picture Association of 
America similarly asked the FAA to specify that ``all parties on a 
closed set'' qualify as ``directly participating in the operation,'' 
thereby ensuring that current practices under the filming exemptions 
are consistent with Sec.  107.39.
    As pointed out by the commenters, the FAA currently allows small 
unmanned aircraft flight over people in only one type of situation: A 
closed-set movie set which is a controlled-access environment where the 
person in charge has extensive control over the positioning of people 
who are standing near the small unmanned aircraft. The FAA currently 
considers each movie-set exemption on a case-by-case basis through the 
section 333 exemption process. The FAA will continue considering flight 
over people on a movie-set on a case-by-case basis through the waiver 
process in this rule. The FAA notes that this framework is consistent 
with the regulatory framework used for motion picture and television 
filming in manned-aircraft operations, where a waiver is usually 
required prior to using an aircraft for filming purposes.\103\ The FAA 
also notes that, as discussed in section II.C of this preamble, current 
section 333 exemption holders who are allowed to fly over people when 
filming a movie will be permitted to continue operating under their 
section 333 exemption until they are able to obtain a waiver under part 
107.
---------------------------------------------------------------------------

    \103\ See FAA Order 8900.1, vol. 3, ch. 8, sec. 1.
---------------------------------------------------------------------------

    With regard to flight over people in other controlled-access 
environments, such as construction sites, the FAA will consider that 
issue on a case-by-case basis through the waiver process. This process 
will allow the FAA to consider the specific nature of the controlled-
access environment to determine how that environment would mitigate the 
risk associated with flight over people.
    The Association of American Railroads said operations over railroad 
personnel during a railroad incident investigation or routine railroad 
inspections should be permitted. The Association noted that the risks 
associated with such operations can be mitigated by giving those 
personnel a small UAS operations and safety briefing before flight is 
commenced.
    The FAA disagrees. While this rule will allow flight over direct 
participants in a small UAS operation after they receive important 
safety information, the information does not, by itself, completely 
mitigate the risk posed by flight over people. As discussed earlier, 
the reason this rule allows flight over direct participants in a small 
UAS flight operation is because without this exception, those people 
may be unable to complete their duties to ensure the safety of the 
small UAS flight operation. People who are not directly participating 
in the small UAS flight operation are not needed to ensure the safety 
of that operation, and as such, this rule will not allow flight over 
those people without a waiver.

[[Page 42129]]

    The Property Drone Consortium said homeowners inside their homes 
while an inspection operation is conducted overhead, or homeowners who 
are in their back yards while an inspection operation is conducted in 
their front yards, should be considered ``protected'' for purposes of 
the ban on flight over non-participants.
    A homeowner who is inside his or her home would be under a covered 
structure and flight over him or her would be permitted if the home can 
provide reasonable protection from a falling small unmanned aircraft. 
However, a person who is inside his or her backyard would presumably 
not be under a covered structure and could be injured by a falling 
small unmanned aircraft. Accordingly, a person who is in his or her 
backyard would not be considered protected if that backyard is not 
covered.
    The Institute of Makers of Explosives asked the FAA to expand or 
clarify the proposed prohibition on operation of a small UAS over 
``most persons'' to clearly define the persons over whom UAS operations 
may not be conducted. IME specifically recommended that a UAS not be 
allowed to operate over any person conducting operations with 
explosives under the jurisdiction of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, and that the restriction apply to 
unauthorized, unrelated operators.
    As discussed earlier, this rule will prohibit operations over 
people who are not directly participating in the flight operation of a 
small UAS and who are not under a covered structure or in a stationary 
covered vehicle that could reasonably protect them from a falling small 
unmanned aircraft. This prohibition applies regardless of what the 
person who is not directly participating in the small UAS flight 
operation is doing.
    A number of commenters sought clarification as to what the FAA 
considers to be an operation ``over a human being.'' Southern Company 
asserted that, as written, the proposed provision could either be read 
strictly, to prohibit operations directly overhead, or it could be read 
more broadly, to prohibit operations directly overhead and within a 
short lateral distance of the person. Kansas University UAS Program 
similarly said the FAA needs to clarify whether by ``over a human 
being'' means directly overhead or ``within an area that the aircraft 
could come down on the person.''
    Similarly, NAMIC asked the FAA to provide further guidance as to 
whether the small UAS operation is prohibited directly above persons or 
``within a proximate area over persons.'' NAMIC acknowledged that it 
does not have the FAA's understanding of aeronautics or physics, but 
nevertheless stated its belief that a terminated UAS at 500 feet and 
100 mph seems unlikely to fall directly onto a person standing directly 
under the UAS at the time of the termination. An individual commenter 
asserted that a small UAS flying towards a person, even if not directly 
above that person, could still pose a threat. By way of example, the 
commenter stated that a multi-rotor helicopter flying at a ground speed 
of 30 mph at 400 feet AGL that experiences a catastrophic failure 
``will transcribe a parabolic arc that will extend horizontally several 
hundred feet in the direction of travel.''
    Matternet also stated that the proposed restriction ``appears to be 
based on the faulty premise that aircraft only fall straight down when 
they malfunction or when pilots err'' when, in fact, an aircraft in 
flight will typically follow its original trajectory, subject to 
aerodynamic forces and gravity. Thus, the company asserted, an 
operation that passes directly over a person is not significantly more 
dangerous than an operation that passes several linear feet, or even 
tens of linear feet, away from that person on the ground.
    The term ``over'' refers to the flight of the small unmanned 
aircraft directly over any part of a person. For example, a small UAS 
that hovers directly over a person's head, shoulders, or extended arms 
or legs would be an operation over people. Similarly, if a person is 
lying down, for example at a beach, an operation over that person's 
torso or toes would also constitute an operation over people. An 
operation during which a small UAS flies over any part of any person, 
regardless of the dwell time, if any, over the person, would be an 
operation over people.
    The remote pilot needs to take into account the small unmanned 
aircraft's course, speed, and trajectory, including the possibility of 
a catastrophic failure, to determine if the small unmanned aircraft 
would go over or strike a person not directly involved in the flight 
operation (non-participant). In addition, the remote pilot must take 
steps using a safety risk-based approach to ensure that: (1) The small 
unmanned aircraft does not operate over non-participants who are not 
under a covered structure or in a stationary covered vehicle; (2) the 
small unmanned aircraft will pose no undue hazard to other aircraft, 
people, or property in the event of a loss of control of the aircraft 
for any reason (Sec.  107.19); and (3) the small UAS is not operated in 
a careless or reckless manner so as to endanger the life or property of 
another (Sec.  107.23). If the remote pilot cannot comply with these 
requirements, then the flight must not take place or the flight must be 
immediately and safely terminated.
    Several commenters recommended that the FAA include specific 
vertical and horizontal minimum-distance requirements. Continental 
Mapping and MAPPS recommended that no operations be permitted ``within 
50 meters vertically or horizontally from people, animals, buildings, 
structures, or vehicles, with a particular emphasis on takeoff and 
landing.'' MAPPS pointed out that its testing has shown this is a safe 
distance to perform emergency landings should something go wrong, 
particularly with rotary wing platforms. NAMIC recommended that FAA 
prohibit persons from ``intentionally operat[ing] a small UAS over or 
within 100 feet'' from a human being who is not directly participating 
in its operation or not located under a covered structure.
    State Farm suggested that FAA remove the word ``over'' from 
proposed Sec.  107.39, and instead prohibit persons from 
``intentionally operat[ing] a small UAS within 100 feet'' from a human 
being who is not directly participating in the operation or not located 
under a covered structure. Aviation Management similarly suggested that 
the FAA provide protection to humans on the ground ``in close proximity 
to'' small UAS operations by requiring that a small UAS remain a 
minimum of 100 feet from the nearest human who is not directly 
participating in the operation (a requirement the commenter pointed out 
is imposed by Canada and Australia). Stating that an aircraft ``needs a 
fall radius that contemplates kinetic energy, max speed, max 
altitude,'' an individual commenter suggested that small UAS flight be 
restricted to a vertical cylinder with a radius of 200 feet, centered 
over an animal or persons not directly involved in the operation.
    Several other commenters made suggestions as to how the FAA can 
more precisely define the requisite separation between a small UAS and 
persons not involved in an operation. The Civil Aviation Authority of 
the Czech Republic said the proposed prohibition ``should be extended 
to a safety horizontal barrier, not only directly above people, but 
also not in an unsafe proximity (for multicopters this should be twice 
the actual height AGL).'' NOAA and Southern Company said proposed Sec.  
107.39 should be revised to include specific lateral distances. 
Colorado Ski Country USA said the final rule should include a 
definition of ``Operations Over a Human Being'' that

[[Page 42130]]

sets out ``the proximity in which UAS operations would be prohibited.'' 
The New Hampshire Department of Transportation suggested that the final 
rule include a ``specified three-dimensional space that a small UAS is 
prohibited from when operating over any person not directly involved 
with the operation.'' The Hillsborough County Aviation Authority 
suggested that the lateral separation from people or structures be 
revisited to consider a safety area around the UAS ``with regards to 
momentum, wind drift, malfunction, etc. that would affect people or 
structures nearby.''
    The National Association of Flight Instructors (NAFI) advocated for 
a larger separation between small UAS and non-participants, and 
recommended that proposed Sec.  107.39 be revised to prohibit operation 
of a small UAS ``closer than 400 feet'' to persons not directly 
participating in the operation or not located under a covered structure 
or to ``any vessel, vehicle, or structure not controlled by the 
operator or for which written permission by the owner or licensee of 
that vessel, vehicle or structure has not been obtained.'' NAFI went on 
to assert that there is no reliable or sufficient database from which 
to project accident or injury rates, and to urge FAA to ``proceed 
cautiously and relatively slowly in significantly reducing the 
protection currently afforded to persons and property on the surface 
from the hazards of small unmanned aircraft systems.
    Green Vegans asserted that under Public Law 112-95, Congress 
directed the FAA to implement restrictions for small UAS operations 
which ``include maintaining a distance of 500 feet from persons.''
    The FAA considered requiring minimum stand-off distances in this 
rule, but ultimately determined that, due to the wide range of possible 
small unmanned aircraft and small UAS operations, a prescriptive 
numerical stand-off distance requirement would be more burdensome than 
necessary for some operations while not being stringent enough for 
other operations. For example, a 5-pound unmanned rotorcraft flying at 
a speed of 15 mph in a remote area with natural barriers to stop a fly-
away scenario would likely not need a stand-off distance as large as a 
54-pound fixed-wing aircraft traveling at a speed of 100 mph in an 
urban area with no barriers.
    Thus, instead of imposing a prescriptive stand-off distance 
requirement, this rule will include a performance standard requiring 
that: (1) The small unmanned aircraft does not operate over a person 
who is not directly involved in the flight operation unless that person 
is under the appropriate covered structure or vehicle; and (2) the 
remote pilot ensure that the small unmanned aircraft will pose no undue 
hazard to other aircraft, people, or property in the event of a loss of 
control of the aircraft for any reason (Sec.  107.19(c)). This 
performance-based approach is preferable, as it will allow a remote 
pilot in command to determine what specific stand-off distance (if any) 
is appropriate to the specific small unmanned aircraft and small UAS 
operation that he or she is conducting. In response to Green Vegans, 
the FAA notes that Public Law 112-95 does not direct the FAA to 
promulgate a small UAS rule that includes a requirement for a small 
unmanned aircraft to maintain a distance of 500 feet from persons.
    Some commenters proposed specific vertical distances that they 
claimed could permit safe operations of a small UAS over persons not 
directly involved in its operation. Asserting that flights ``well 
above'' a person's head pose minimal additional safety risks, the News 
Media Coalition recommended that the FAA permit overhead flight so long 
as the UAS remains at least 50 feet vertically from any person not 
involved in the operation of the UAS. Cherokee National Technologies 
and an individual commenter recommended that operations be permitted 
above people not directly involved in an operation, so long as those 
operations are not conducted less than 100 feet above those people.
    These commenters did not provide data that the FAA could use to 
evaluate this assertion. The FAA notes, however, that a small unmanned 
aircraft falling from a higher altitude may actually pose a higher risk 
because the higher altitude would provide the small unmanned aircraft 
with more time to accelerate during its fall (until it reaches terminal 
velocity). This may result in the small unmanned aircraft impacting a 
person on the ground at a higher speed and with more force than if the 
small unmanned aircraft had fallen from a lower altitude.
    The National Association of Broadcasters, the National Cable & 
Telecommunications Association, and the Radio Television Digital News 
Association, commenting jointly, said the proposed rule would limit the 
potential of unmanned aircraft to serve the public interest, 
particularly with respect to newsgathering. The associations 
recommended a few changes to ``increase the utility of sUAS for 
newsgathering and video programming production purposes.'' First, the 
associations said the FAA ``should clarify that only flights directly 
over non-participating people are barred''--i.e., the ``FAA should 
specify that the rule would still permit sUAS with a camera that is 
capable of filming--at an angle--an area where people are present.'' 
Second, because ``the proposed rule raises the question of what level 
of knowledge a reasonable operator can be expected to have,'' the 
associations said the FAA ``should clarify that the operator must have 
a good faith belief that sUAS will not be flying over people.'' Third, 
the associations said ``the FAA should consider relaxing or removing 
this requirement for sparsely populated areas,'' which ``would give 
newsgatherers and video programming producers the freedom to cover 
events and film entertainment programming with sUAS in areas where the 
risk to human beings on the surface is extremely low.''
    NSAA and several individual commenters recommended that the final 
rule make clear that the prohibition does not extend to incidental or 
momentary operation of a UAS over persons on the ground. The 
Organization of Fish and Wildlife Information Managers requested that 
exemptions for ``unintentional flyovers'' be included in the final 
rule. The Organization noted that, while conducting fish and wildlife 
surveys in remote areas, UAS may inadvertently be flown over hunters, 
anglers, hikers, campers, and other individuals participating in 
recreational activities. The Organization went on to say that ``[i]n 
areas where a UAS may be flown over a person, either intentionally or 
unintentionally, public notice of the planned survey activity could be 
issued in advance of the survey.''
    In response, the FAA clarifies that this rule allows filming of 
non-participants at an angle as long as the small unmanned aircraft 
does not fly over those non-participants.
    With regard to sparsely populated areas, as discussed earlier, the 
restriction on flight over people is focused on protecting the person 
standing under the small unmanned aircraft, which may occur in a 
sparsely populated area. The FAA notes, however, that because sparsely 
populated areas have significantly fewer people whose presence may 
restrict a small UAS operation, a newsgathering organization will 
likely have significant flexibility to conduct small UAS operations in 
those areas.
    With regard to the remote pilot's good-faith belief and momentary 
operation of a small unmanned aircraft

[[Page 42131]]

over a person on the ground, the FAA notes that the remote pilot in 
command is responsible for ensuring that the small UAS does not fly 
over any non-participant who is not under a covered structure or 
vehicle. This may require creating contingency plans or even 
terminating the small UAS operation if a non-participant unexpectedly 
enters the area of operation. The FAA declines to amend this 
requirement because, as discussed earlier, this requirement creates a 
performance-based standard for a stand-off distance that the remote 
pilot in command must use to ensure that his or her small unmanned 
aircraft does not fly over a person.
    The National Association of Realtors suggested that more guidance 
is needed to clarify the operator's obligations for communicating with 
bystanders that a UAS flight will occur in the area. Specifically, the 
commenter wondered: (1) How much notice is required to clear an area of 
bystanders before the flight takes place; (2) how the notice should be 
given; (3) for how long an area should be required to be cleared of 
bystanders; and (4) within what distance bystanders should be provided 
notice.
    This rule will not require that notice be given to non-participants 
prior to the operation of a small unmanned aircraft. Likewise, the rule 
will not prohibit the remote pilot from employing whatever means 
necessary to ensure that the small unmanned aircraft does not endanger 
the safety of bystanders, such as providing prior notice of operations. 
Providing notice to bystanders is simply one method that a remote pilot 
in command can utilize to clear the operating area (assuming that non-
participants comply with the notice). However, providing such notice 
will not relieve the remote pilot in command of his or her duty to 
ensure the safety of non-participants.
    An individual commenter asserted that, taken literally, the 
proposed prohibition ``would require a UA operator to know at all 
times, the exact location of all people on the ground who are within 
VLOS of his or her UA.''
    As stated earlier, this rule imposes a performance-based 
requirement concerning flight over people. It is up to the remote pilot 
in command to choose the specific means by which he or she will satisfy 
this requirement. The guidance issued concurrently with this rule 
provides some examples of means that a remote pilot in command could 
utilize to satisfy the prohibition against flight over non-participants 
in part 107.
    NAMIC sought guidance with respect to when the presence of a third 
party ``can prevent or interrupt UAS use.'' Specifically, NAMIC 
questioned whether, if an insurance review of a private building 
requires some limited flight over a public street, the street needs to 
be closed or, alternatively, if the flight can simply take place when 
there are no pedestrians on the street. An individual commenter 
similarly questioned what happens when a person enters the operational 
area once the operation has commenced and the UAS is airborne--i.e., 
whether the UAS may loiter until the person clears the area or whether 
the operation must be terminated.
    Liberty Mutual Insurance Company said that, given the fact that 
almost any operation of a small UAS over urban areas will necessarily 
result in flight over human beings, ``the final rule should include a 
reasonableness standard whereby, through a safety assessment such as 
currently permitted in section 333 exemptions, an operator may 
determine that a flight over a particular area does not pose a 
reasonable threat to persons who are not covered by a structure.'' If 
such a reasonable determination is made, Liberty Mutual said, the 
flight should be allowed. Liberty Mutual noted that this change ``would 
be particularly important for assessing disaster situations or 
performing surveys over areas larger than a single structure.''
    As discussed earlier, this rule prohibits any small unmanned 
aircraft from flying over a person who is not a direct participant in 
the small UAS flight operation and is not under a covered structure or 
vehicle. This is a performance standard: It is up to the remote pilot 
in command to choose the best way to structure his or her small UAS 
operation to ensure that prohibited flight over a person does not occur 
and that the small unmanned aircraft will not impact a person if it 
should fall during flight. The FAA anticipates that the remote pilot in 
command will need to determine an appropriate stand-off distance from 
nearby persons in order to comply with this requirement. With regard to 
the specific examples provided by the commenters, the FAA notes that 
the remote pilot in command is not required to cease small UAS flight 
if he or she can continue operating in a manner that ensures that the 
small unmanned aircraft will not fly over an unprotected non-
participant.
    Several individual commenters suggested proposed Sec.  107.39 be 
expanded to prohibit operation over any personal property without the 
permission of the property owner.
    Property rights are beyond the scope of this rule. However, the FAA 
notes that, depending on the specific nature of the small UAS 
operation, the remote pilot in command may need to comply with State 
and local trespassing laws.
    NAMIC questioned whether a UAS operation over private property is 
prohibited if the owner wants to watch, ``even if the owners agree that 
they may be in danger.''
    Southern Company suggested that FAA allow operations over any 
person who is located on the property, easement, or right of way of the 
person or entity for whom the small UAS is operated, and any person who 
is participating in the activity for which the small UAS is being 
operated. This commenter said such mitigating restrictions could 
include a lower operating ceiling, lateral-distance limits, a lower 
speed restriction, and a prohibition on operations over large 
gatherings of people.
    The flight-over-people restriction is intended to address the risk 
of a small unmanned aircraft falling on and injuring a person. Being 
the owner or easement-holder of the area of operation does not reduce a 
person's risk of being hit by the small unmanned aircraft. Accordingly, 
this rule will not impose a different safety standard based on the 
ownership status of the person over whom the small unmanned aircraft is 
operating. With regard to additional operational mitigations, the FAA 
will consider those on a case-by-case basis through the waiver process.
    The Wisconsin Department of Transportation (WisDOT) expressed 
``concern that this (107.39) restriction may severely limit the ability 
of public sector agencies to incorporate UAS'' into certain activities, 
such as bridge inspections, traffic and incident management activities 
on public highways, and search and rescue operations.
    NSAA also said operations over the public should be permitted ``in 
non-normal or emergency operations where life, limb, and property are 
at risk.'' UAS Venture Partners similarly sought an exemption from the 
proposed prohibition on operations over persons not directly involved 
in the operation for Civic Municipal Rescue Service agencies and the 
trained rescue first responders who will be operating the UAS devices. 
Vail also said the final rule should include specific exemptions from 
the ``directly involved'' requirement ``for temporary flight over 
uninvolved persons for emergency and safety uses.''
    As discussed in section III.C.3 of this preamble, this rule applies 
only to civil small UAS operations. It does not apply to public UAS 
operations which may include governmental functions such as

[[Page 42132]]

public road and bridge inspections, traffic control and incident 
management on public highways, and search and rescue operations. To 
that end, a public UAS operator such as WisDOT may apply for a COA to 
use its UAS for specific governmental functions instead of operating 
and complying with the provisions of part 107.
    With regard to emergency and search-and-rescue operations, it 
should be noted that those operations are typically conducted by local, 
State, or Federal government agencies (such as fire departments or 
police) as public aircraft operations. Public aircraft operations will 
be granted operational authority by way of a COA and will not be 
subject to part 107. With regard to civil small UAS operations, the FAA 
emphasizes that the remote pilot in command's ability to deviate from 
the requirements of part 107 to address an emergency (discussed in 
section III.E.1.d of this preamble) is limited to emergency situations 
that affect the safety of flight. For emergency situations that do not 
affect the safety of flight, the remote pilot in command should contact 
the appropriate authorities who are trained to respond to emergency 
situations.
    The Professional Helicopter Pilots Association suggested that the 
FAA provide a means by which individuals or companies can limit or 
eliminate the overhead or adjacent operation of UAS by anyone other 
than properly certified public service/public safety operators.
    Though a governmental entity may choose to operate a small UAS 
under the civil regulatory structure of part 107, the FAA does not 
agree that operational distinctions should be made within part 107 
regarding the specific entity that is conducting a civil operation. To 
that end, under part 107 all civil small unmanned aircraft operations 
are prohibited from operating over a person not directly participating 
in the operation of the small unmanned aircraft and not under a covered 
structure or in a covered vehicle and not directly participating in the 
flight operation of the small unmanned aircraft.
    The International Association of Amusement Parks and Attractions 
(IAAPA) stated safety and privacy concerns are implicated by third-
party small UAS operations. IAAPA stated that the operation of UAS over 
amusement parks and attractions by third parties is also implicated by 
proposed section 107.39. IAAPA asserted that the facility operator can 
carefully control the use of UAS over a person who is not directly 
participating in its operation if the UAS is operated by the facility 
or its designee, but this degree of control is impossible when 
hobbyists or other third-parties who do not have the facility owner's 
permission operate UAS near or over the perimeter or interior of 
amusement parks and attractions. IAAPA stated that amusement parks and 
attractions generally contain large numbers of people, and that the 
safety risks posed to employees and to visitors enjoying rides 
potentially traveling 100 miles per hour, watching shows, or walking 
through amusement parks and attractions are considerable and outside 
the control of facility operators.
    The restriction on flight over people applies regardless of the 
location in which that flight occurs. Thus, a remote pilot in command 
may not operate a small unmanned aircraft over a non-participant in an 
amusement park who is not under a covered structure or in a vehicle. 
Additionally, the remote pilot in command must ensure that the small 
unmanned aircraft does not pose an undue hazard to a person in the 
event of a loss of control for any reason. The FAA also notes that 
hobbyists or other third parties who do not have the facility owner's 
permission to operate UAS near or over the perimeter or interior of 
amusement parks and attractions may be violating State or local 
trespassing laws.
    Aerial Services, the National Society of Professional Surveyors, 
Continental Mapping, MAPPS, and 12 members of the Wisconsin Legislature 
said the ban on flights ``over populated areas'' needs to be removed or 
modified, because the definition of ``populated area'' is inadequate 
and seems to mean ``any single person within the area of operation that 
is not inside a structure.'' In response, the FAA notes that this rule 
does not ban flights over a ``populated area.'' This rule only 
restricts flights over a person who is not directly participating in 
the flight operation and who is not inside a covered structure or 
vehicle.
v. Preflight Briefing
    The NPRM proposed to require that, prior to flight, the remote 
pilot in command must ensure that all persons directly involved in the 
small UAS operation receive a briefing that includes operating 
conditions, emergency procedures, contingency procedures, roles and 
responsibilities, and potential hazards. The FAA proposed this 
requirement because, as discussed in the previous section, this rule 
will allow a small unmanned aircraft to fly over people who are 
directly participating in the small UAS operation. A preflight 
familiarization briefing would help ensure that these people have 
greater situational awareness and are better able to avoid the flight 
path of the small unmanned aircraft if the remote pilot in command were 
to lose positive control of the aircraft or if the aircraft were to 
experience a mechanical failure.
    The Travelers Companies said the FAA should modify proposed Sec.  
107.49 to eliminate the ``briefing'' requirement for operations 
conducted without a visual observer or other crew members.
    If the remote pilot in command is conducting a small UAS operation 
entirely by him or herself, there is no one else that he or she can 
brief. Additional regulatory text is not necessary to explain this 
concept. However, upon reviewing the regulatory text of Sec.  
107.49(a)(2), the FAA noted that the proposed briefing requirement 
would apply to people who are ``involved'' in the small UAS operation, 
while the exception to the flight-over-people restriction discussed 
earlier will apply to people who are ``directly participating'' in the 
small UAS operation. Because the briefing requirement is supposed to 
apply to people who may have a small unmanned aircraft fly over them, 
the FAA has amended Sec.  107.49(a)(2) to reference people who are 
directly participating in the small UAS operation.
    The FAA also noted that the proposed requirement to convey 
important information in the form of a briefing was needlessly 
prescriptive. Thus, the FAA has amended Sec.  107.49(a)(2) in the final 
rule to simply require that the remote pilot in command ensure that 
persons directly participating in the small UAS operation are informed 
about the operating conditions, emergency procedures, contingency 
procedures, roles and responsibilities, and potential hazards. This 
information could be conveyed through a briefing or through some other 
means that would reasonably be expected to inform the recipient.
vi. Preflight Assessment of the Operating Area and Ensuring That the 
Aircraft Poses No Undue Hazard
    Within the above constraints, the NPRM proposed a two-part 
performance-based standard for mitigating loss-of-positive control 
risk. The first part consisted of a preflight assessment of the 
operating environment. The second part consisted of a requirement to 
ensure that the small unmanned aircraft will pose no undue hazard to 
other aircraft, people, or property in the event of a loss of positive 
control of the aircraft for any reason.

[[Page 42133]]

1. Preflight Assessment of the Operating Environment
    The NPRM proposed to require that, prior to flight, the operator 
must become familiar with the confined area of operation by assessing 
the operating environment and assessing risks to persons and property 
in the immediate vicinity both on the surface and in the air. As part 
of this operating environment assessment, the operator would need to 
consider conditions that could pose a hazard to the operation of the 
small UAS as well as conditions in which the operation of the small UAS 
could pose a hazard to other aircraft or persons or property on the 
ground. Accordingly, the operating environment assessment proposed in 
the NPRM would include the consideration of: (1) Local weather 
conditions; (2) local airspace and any flight restrictions; (3) the 
location of persons and property on the ground; and (4) any other 
ground hazards.
    For the reasons discussed below, this rule will finalize the 
operating environment assessment as part of the preflight 
familiarization provision as proposed in the NPRM, but will change the 
reference from ``operator'' to ``remote pilot in command'' to reflect 
the change in the crewmember framework discussed in section III.E.1 of 
this preamble.
    Boeing asserted that the proposed rule imposes a requirement to 
assess risk, but provides no criteria against which to measure that 
risk. The commenter therefore recommended the FAA revise the proposed 
provision to include criteria to measure risk (e.g., reference the 
Structural Repair Manual (SRM) or similar criteria). The commenter also 
noted that there is no requirement to determine if the risk is 
acceptable, and recommended the FAA clarify this issue to ensure 
appropriate compliance with, and consistent interpretation of, the 
regulation.
    As discussed in the next section of this preamble, this rule will 
require the remote pilot in command to ensure that the small UAS will 
pose no undue hazard to other aircraft, people, or property in the 
event of a loss of control of the aircraft for any reason. Section 
107.49 is intended to help the remote pilot in command satisfy this 
requirement by having the remote pilot in command assess the operating 
environment so that he or she can design the operation, as well as any 
mitigation, to ensure that the small unmanned aircraft does not create 
an undue hazard if positive control is lost.
    As a performance-based requirement, it is not the intent of this 
section to be prescriptive with regard to how remote pilots conduct an 
assessment of their operating environment. Because there is a diverse 
range of aircraft and operating environments that could exist for part 
107 operations, a prescriptive preflight-assessment standard may be 
more burdensome than necessary in some instances. For example, a remote 
pilot in command operating a small UAS in an empty rural area would not 
need to look at the same things to assure the safety of the operation 
as a remote pilot in command operating a small UAS in a crowded urban 
environment. The guidance material which the FAA has issued 
concurrently with this rule provides examples and best practices for 
how to conduct the preflight assessment of the operating area and 
assess risks that may affect the small UAS operation. The FAA will also 
consider publishing industry best practices in future small UAS 
guidance that will assist remote pilots in assessing risk.
    The Professional Helicopter Pilots Association said that, prior to 
flight, the remote pilot should be required to obtain a briefing, 
similar to a manned-aircraft pilot's briefing, which would include 
weather, NOTAMs, and any other pertinent information for the area in 
which they intend to operate.
    As discussed in sections III.E.2 and III.E.5 of this preamble, this 
rule includes requirements for assessing the operating environment with 
regard to weather and NOTAMs. The remote pilot in command is 
responsible for satisfying those requirements. The remote pilot may 
choose to use the means suggested by the commenter to help satisfy his 
or her regulatory obligations, or he or she may choose some other 
method of obtaining the pertinent information. As long as the pertinent 
regulatory requirements are fulfilled, the means by which the remote 
pilot in command accomplishes this goal is within his or her 
discretion.
    API encouraged the FAA to consider all provisions of the Helicopter 
Safety Advisory Conference's Unmanned Aerial Systems Guidelines, 
including provisions related to pre-flight briefings, as the rule is 
finalized. The FAA concurs with the API's recommendation to consider 
the provisions of the Helicopter Safety Advisory Conference Recommended 
Practices 15-1 Unmanned Aerial Systems Guidelines document (HSAC RP 
UASRP 15-1) published in February 2015. After reviewing the HSAC RP 
UASRP 15-1 guidelines, the FAA finds that the recommended practices 
address all of the requirements found in Sec.  107.49.
    The Kansas State University UAS Program also recommended that the 
assessment consider potential issues with link integrity to the 
aircraft from obstacles between the ground antennas and the aircraft 
(e.g., trees) or electromagnetic interference from nearby RF sources 
such as radio towers and radars. In response, the FAA notes that this 
concern is addressed in Sec.  107.49(a)(3). Section 107.49(a)(3) 
requires that the remote pilot ensure that all control links between 
ground station and the small unmanned aircraft are working properly. 
The remote pilot in command may not commence a small UAS operation if a 
control link is working improperly (whether as a result of radio 
interference or for some other reason). The FAA also expects that the 
remote pilot in command will develop a contingency plan for ensuring 
that the small unmanned aircraft does not pose an undue hazard to other 
aircraft, people, or property if positive control of the small unmanned 
aircraft is lost through a disruption in the data control link.
2. Undue Hazard If There Is a Loss of Control
    The NPRM proposed that, after becoming familiar with the confined 
area of operation and conducting an operating environment assessment, 
the operator must ensure that the small unmanned aircraft will pose no 
undue hazard to other aircraft, people, or property in the event of a 
loss of positive control of the aircraft for any reason. The FAA 
proposed this performance-based requirement instead of a more 
prescriptive standard because it would provide the operator with 
significant flexibility to choose how to mitigate the hazards 
associated with loss of aircraft control.
    In a joint submission, PlaneSense and Cobalt Air stated that the 
language in proposed Sec.  107.19(b) sets a different standard from 
that in Sec.  107.23 (hazardous operation). They noted that while Sec.  
107.19(b) requires that small UAS operations ``pose no undue hazard to 
other aircraft, people or property[,]'' Sec.  107.23(b) prohibits 
persons from operating a small UAS in a ``careless or reckless manner 
so as to endanger the life or property of another[.]'' The commenters 
argued that these two standards are not consistent, because Sec.  
107.23 does not include other aircraft within the scope of the third 
parties who must be protected. The commenters went on to say that these 
discrepancies create inconsistencies which result in incomplete 
guidance for the operators of small UAS, and may result in an increase 
in danger to the public. The commenters suggested that the appropriate 
standard is to be found

[[Page 42134]]

in Sec.  107.19(b), and that Sec.  107.23 should be changed to match 
it. Finally, the commenters asked the FAA to clarify whether ``other 
aircraft'' includes other unmanned aircraft.
    Part 107 prohibits a small UAS operation from endangering life or 
property, and prohibits a remote pilot from operating a small UAS in a 
careless or reckless manner. Property includes other aircraft, 
including other unmanned aircraft. These two requirements complement, 
rather than contradict, one another, and provide the remote pilot with 
the flexibility to adjust his or her operation according to the 
environment in which he or she is operating. For example, if the 
operation takes place in a residential area, the remote pilot in 
command could ask everyone in the area of operation to remain inside 
their homes while the operation is conducted. If the operation takes 
place in an area where other air traffic could pose a hazard, the 
remote pilot could advise local air traffic control as to the location 
of his or her area of operation and add extra visual observers to the 
operation so that they can notify the remote pilot if other aircraft 
are approaching the area of operation. These precautions would be one 
way to ensure that the operation will not pose an undue hazard to other 
aircraft, people or property in the event of a loss of control of the 
aircraft. Additionally, during the operation of the small unmanned 
aircraft, the remote pilot in command is prohibited from operating the 
aircraft in a careless and reckless manner, further ensuring that the 
operation does not pose an undue hazard to other aircraft, people, or 
property in the event of a loss of control of the aircraft.
    The NextGen Air Transportation Program, NC State University 
commented that Sec.  107.19(b) is ``not realistic.'' The commenter 
stated that the remote pilot can do everything possible to minimize the 
risk and harm possible in the event of loss of positive control, but 
asserted that requiring that no damage be caused without requiring fly-
away prevention or other risk management mechanisms does not align with 
the general NPRM objectives.
    Similarly, ALPA stated that many small unmanned aircraft, 
particularly those with multiple propulsion units, may become highly 
unstable when they enter a state of ``lost link'' or ``loss of positive 
control.'' This commenter also asserted its strong belief that if lost 
link occurs, mitigations to safely perform auto-hover, auto-land, and 
return-to-home maneuvers, and geo-fencing protection, must be 
incorporated into the navigation and control systems for a small UAS to 
safely land without harm to persons or property.
    The undue hazard standard in this rule is a performance-based 
standard, which the remote pilot in command may satisfy through 
operational or equipage/technological mitigations. In section 
III.E.3.b.vi of this preamble, the FAA describes equipment that remote 
pilots may incorporate into their small unmanned aircraft systems as 
one means of complying with this requirement. Due to the diversity and 
rapidly evolving nature of small UAS operations, this rule allows 
individual remote pilots to determine what equipage methods, if any, 
mitigate risk sufficiently to meet the performance-based requirements 
of this rule, such as the prohibition on creating an undue hazard if 
there is a loss of aircraft control. This provides the greatest amount 
of regulatory flexibility while maintaining the appropriate level of 
safety commensurate with part 107 operations.
    The methods suggested by the commenters are some, but not all of 
the possible mitigations available for remote pilots of UAS. The FAA 
recognizes that it is impossible to prevent every hazard in the event 
of a loss of control of the small unmanned aircraft; however, as 
several commenters stated, this rule requires remote pilots to do 
everything possible to minimize risk and harm in the event of loss of 
positive control.
    NOAA commented that Sec.  107.19(b) should be revised to include 
``protected wildlife'' in the class of entities to be protected from 
undue hazard in the case of loss of positive control. NOAA states that 
this change would acknowledge the importance of other Federal statutes 
already in place to protect, conserve, and recover vulnerable wildlife 
populations and ensure the FAA-regulated community is aware of them and 
that the final rule does not contradict them.
    The FAA notes that other Federal statutes already in place 
establish laws on the protection of wildlife. Independent of this rule, 
the remote pilot in command is responsible for complying with any other 
Federal, State, or local laws that apply to his or her small UAS 
operation.
vii. Automation
    Several commenters addressed the issue of autonomous operations of 
small UAS. An autonomous operation is generally considered an operation 
in which the remote pilot inputs a flight plan into the control station 
which sends it to the autopilot onboard the small unmanned aircraft. 
During automated flight, flight control inputs are made by components 
onboard the aircraft, not from a control station. Thus, the remote 
pilot in command could lose the control link to the small unmanned 
aircraft and the aircraft would still continue to fly the programmed 
mission or return home to land. During automated flight, the remote 
pilot in command also must have the ability to change routing/altitude 
or command the aircraft to land immediately. The ability to direct the 
small unmanned aircraft may be through manual manipulation of the 
flight controls or through commands using automation.
    For the reasons discussed below, this rule will allow autonomous 
small UAS operations. However, the remote pilot in command must retain 
the ability to direct the small unmanned aircraft to ensure compliance 
with the requirements of part 107.
    ALPA, the U.S. Hang Gliding & Paragliding Association, and the 
Permanent Editorial Board of the Aviators Model Code of Conduct 
Initiative asserted that the NPRM says autonomous operations would be 
permitted for small UAS, but then fails to discuss such operations 
further. ALPA generally opposed allowing autonomous operations for 
small UAS. The Permanent Editorial Board of the Aviators Model Code of 
Conduct Initiative said the NPRM's mention of autonomous operations 
``requires explanation and context.'' The U.S. Hang Gliding & 
Paragliding Association said it would be opposed to such operations 
``unless the operator has the ability to take positive control 
immediately and redirect the sUAS.''
    The Air Medical Operators Association raised concerns about the 
safety of ``automated UAS,'' saying that such aircraft do not have the 
capability to maintain the necessary separation from manned aircraft. 
The association acknowledged, as noted in the NPRM, that the many 
advancements in anti-collision avoidance systems have been very 
effective in reducing the rate of mid-air collisions, but went on to 
say that the evidence of the effectiveness of such technology in 
preventing collisions between UAS and manned aircraft ``would have to 
be overwhelming in order to alleviate the safety concerns of the low-
altitude flying public.''
    Other commenters supported allowing autonomous operations for small 
UAS. Yale University recommended the final rule clarify that small UAS 
operators ``may rely on autonomous or pre-programmed flight systems.'' 
Streamline Designs also stated that autonomous operations should be 
permitted, adding that some commercial uses ``may depend heavily on

[[Page 42135]]

automatic, stabilized flight.'' A number of individual commenters also 
supported autonomous operations. One such individual noted that there 
are situations where manual operations are more dangerous than 
automated operations, because computer controlled flight ``can provide 
much greater control and safety by making corrective inputs on the 
order of hundreds of inputs per second.''
    The Property Drone Consortium recommended the final rule clarify 
what types of autonomous flights are permitted. The organization 
further recommended that autonomous flight be permitted without a need 
for the pilot/operator to intervene, although the pilot/operator 
``would always have the ability to intervene.''
    Several commenters suggested that autonomous operations be 
permitted in certain circumstances. LifeDrone, LLC sought a final rule 
that would specifically permit the autonomous operation of an emergency 
small UAS ``that is initiated by an emergency signal along prearranged, 
low flight risk corridors at an altitude of 150 feet.'' Prioria 
Robotics suggested that autonomous operations should be permitted 
``with the simultaneous usage of first person video (FPV) flight 
equipment.'' AOPA recommended that the FAA consider an autopilot 
requirement for operations in controlled airspace, which the 
association said would provide ``a layer of safety for operations in 
airspace that contains a concentration of manned aircraft.''
    The New England Chapter of AUVSI and Devens, IOP, commenting 
jointly, noted that ``[t]he future will bring more reliable UAS 
technology that can be fully autonomous.'' The Competitive Enterprise 
Institute similarly noted that ``[a] number of developers have 
expressed confidence that their sense-and-avoid technologies will soon 
permit safe automated operations.''
    Autonomous operations have numerous practical applications, 
including agricultural operations, aerial photography, and search and 
rescue. The FAA agrees with the commenters who pointed out that the 
ability for a small unmanned aircraft to fly autonomously could add 
significant utility to a small UAS operation and would further 
encourage innovation in the industry. Accordingly, this rule will allow 
the autonomous flight of small unmanned aircraft.
    While sense-and-avoid equipment may one day be integrated into an 
autonomous aircraft to aid the pilot in avoiding hazards, as discussed 
in section III.E.2.a of this preamble, there is insufficient data to 
establish that UAS equipage is able to, at this time, detect other 
nearby aircraft in a manner that is sufficient to provide a substitute 
for the human pilot's ability to see and avoid those aircraft. Thus, a 
small unmanned aircraft may be unable to, without human input, yield 
the right of way to another user of the NAS that may enter the area of 
operation. Accordingly, this rule will require that the remote pilot in 
command have the ability to direct the small unmanned aircraft to 
ensure compliance with the provisions of part 107. In particular, the 
FAA emphasizes the requirements of Sec. Sec.  107.37 and 107.39, which 
require the small unmanned aircraft to yield the right of way to all 
other users of the NAS and to avoid flying over a human being who is 
not directly participating in the small UAS operation and not under a 
covered structure.
    There are a number of different methods that a remote pilot in 
command may utilize to direct the small unmanned aircraft to ensure 
compliance with part 107. For example, the remote pilot may transmit a 
command for the autonomous aircraft to climb, descend, land now, 
proceed to a new waypoint, enter an orbit pattern, or return to home. 
Any of these methods may be used to satisfactorily avoid a hazard or 
give right of way.
    The FAA also emphasizes that, as discussed in section III.E.3.b.ii 
of this preamble, a person cannot act as a remote pilot in command in 
the operation of more than one small unmanned aircraft. Thus, this rule 
does not allow a person to use automation to simultaneously operate 
more than one small unmanned aircraft.
    NetMoby recommended that FAA consider UAS that are pre-programmed 
to fly a mission to one or more waypoints as being ``under positive 
control.'' The company recommended that, for local line-of-sight and 
multi-waypoint missions, ``an active, live wireless link to the UAS be 
present and that loss of such a link below the link's reliable signal 
receive threshold for a period of greater than 15 seconds be defined as 
an instance of loss of positive control,'' thus triggering a return-to-
home command.
    As discussed earlier, this rule will allow a small unmanned 
aircraft to conduct preprogrammed flight through a waypoint as long as 
the remote pilot has the means to direct the aircraft to ensure 
compliance with part 107. With regard to when a return-to-home command 
should be triggered, the FAA declines to add this level of 
prescriptiveness to the rule. Instead, as discussed in section 
III.E.3.b.vi.2 of this preamble, the remote pilot in command must 
ensure that the small unmanned aircraft remains within visual line of 
sight and does not pose an undue hazard in the event of loss of 
positive control. The remote pilot in command may do this in the manner 
suggested by NetMoby or in another manner that satisfies the regulatory 
requirement.
viii. Other Equipage
    In the NPRM, the FAA considered technological approaches, such as a 
flight termination system, to address a failure of the control link 
between the aircraft and the operator's control station. However, 
because small UAS operations subject to the proposed rule would pose a 
lower level of risk, the FAA proposed operational alternatives to 
mitigate their risk to an acceptable level without imposing an FAA 
requirement for technological equipage. Accordingly, the proposed rule 
did not mandate the use of a flight termination system or the equipage 
of any other navigational aid technology. The FAA invited comments on 
whether a flight termination system or any other technological equipage 
should be required and how it would be integrated into the aircraft for 
small UAS that would be subject to the proposed rule. The FAA also 
invited comments, with supporting documentation, as to the costs and 
benefits of requiring a flight termination system or other 
technological equipage.
1. Geo-fencing
    A geo-fence is a virtual barrier which may prevent the small 
unmanned aircraft from either entering or exiting a geographically 
defined area. The area may be defined by a property owner or aircraft 
operator utilizing a combination of mapping programs and technology 
such as global positioning system (GPS) or radio frequency 
identification (RFID). Such technology could restrict the small 
unmanned aircraft from flying in locations where a flight may be 
restricted for security, safety, or other reasons.
    The proposed rule did not establish geo-fencing equipment 
requirements for small UAS operating in the NAS. Instead, the NPRM 
proposed operational limitations such as requiring small UAS operators 
or visual observers to maintain visual line of sight in order to 
mitigate the risk of failure of the control link resulting in loss of 
positive control. After careful consideration of the comments, the FAA 
has decided not to add any geo-fencing equipment requirements in the 
final rule.
    The Small UAV Coalition and Predesa supported the FAA's proposal to 
not require geo-fencing equipment under

[[Page 42136]]

proposed part 107. However, these commenters noted the increased safety 
benefit provided by these systems in applications beyond visual-line-
of-sight operations. Airware provided detailed information on its 
flight control system that offers geo-fencing and contingency 
management functionality. However, Airware noted that ``[d]etailed 
airworthiness requirements [are] not needed for the very low risk 
environment proposed by this NPRM.''
    Conversely, some commenters disagreed with the FAA's proposal, and 
advocated for requiring geo-fencing technology on small UAS. Commenters 
including TTD, ALPA, AOPA, and the Electronic Privacy Information 
Center (EPIC) generally requested that the FAA require geo-fencing 
technology to be equipped on small UAS.
    TTD, ALPA, the Air Medical Operators Association, and an individual 
supported geo-fencing technology standards that provide functional 
performance and reliability to ensure safe operation of small UAS in 
the event of loss of positive control or flying near restricted, 
unauthorized, or controlled airspace. ALPA urged the FAA ``to consider 
means, other than the operator's skill and intention, to ensure the 
aircraft cannot be operated outside the confined area required to 
mitigate the collision risk.'' The Air Medical Operators Association 
requested that the FAA ``test the effectiveness of these technologies 
and consider requiring them onboard UAS.'' AOPA stated that the FAA 
``should consider requiring small commercial UAS to use geo-fencing 
technology to ensure safety and reliability of their operations.'' The 
International Brotherhood of Teamsters stated that it supports ``geo-
fencing and other technologies which would directly inhibit the 
movement of an unauthorized UAS into secure areas.''
    MAPPS stated that ``[a]ll UAS must be constructed with firmware 
that incorporates a database of restricted flight areas.'' MAPPS 
provided information on its concept of geo-fencing using cellular 
technology and requiring flight plans to be uploaded to the small UAS 
flight management system before each flight. MAPPS explained that this 
geo-fencing technology requires access to a ``Master Restricted Flight 
Area Database (MRFAD)'' including ``any and all restricted flight 
areas'' to prevent the operator from flying the small UAS into these 
restricted areas. An individual stated that the FAA should require 
``autonomous vehicles flying in, or within range of, airspace where UAS 
operations are prohibited'' to have an updated database of that 
airspace.
    Requiring the installation of a geo-fencing system capable of 
keeping small unmanned aircraft out of restricted and prohibited 
airspace would present a number of technical hurdles. Specifically, 
there are currently no design or performance standards for geo-fencing 
equipment to ensure safe and reliable integration into the NAS. Without 
appropriate geo-fencing design and performance standards, the industry 
and the FAA lack the data necessary to assess the accuracy and 
reliability of geo-fencing equipment and therefore, the FAA cannot 
promulgate geo-fencing equipment design requirements (i.e., 
airworthiness certification).
    Also, geo-fencing equipment integrated on small UAS would require 
an evolving database of terrain and obstacle updates, restricted and 
special use airspace, Notices to Airmen (NOTAMs), and Temporary Flight 
Restrictions (TFRs). The FAA is unaware of a database that provides 
this full capability and therefore cannot accurately determine the 
effort to develop and maintain it for remote pilots. The FAA also does 
not have information on how frequently updates to the onboard small UAS 
geo-fence database would be required to maintain safe and reliable 
operation in the NAS.
    In addition, any geo-fencing equipment required under part 107 
would also need to include an override feature to allow the remote 
pilot to enter the airspace if he or she receives permission from Air 
Traffic Control or an appropriate controlling agency. Additionally, as 
discussed in section III.E.1.d of this preamble, this rule will allow 
the remote pilot to deviate from the operational restrictions of part 
107 if doing so is necessary to respond to an emergency situation. 
Thus, an override feature may also be necessary to allow a remote pilot 
to respond to emergencies. A geo-fencing system without an override 
function that prevents the human pilot from exercising this deviation 
authority may impair the pilot's ability to safely respond to an 
emergency situation.
    If these technical obstacles are overcome, a mandatory geo-fencing 
system may provide a marginal increase to safety by forcibly keeping 
small unmanned aircraft out of certain airspace in which the aircraft 
may pose a higher risk to manned-aircraft operations. However, under 
Executive Order 12866, the FAA can adopt a regulation ``only upon a 
reasoned determination that the benefits of the intended regulation 
justify its costs.'' \104\ Here, the FAA has no data that would allow 
it to quantify the benefits of a possible safety increase associated 
with a mandatory geo-fencing system. Conversely, a mandatory geo-
fencing requirement would substantially increase the costs of this 
rule. If mandated, there would be a cost for developing the minimum 
performance standards for this equipment. Once the standards are 
developed, the cost to owners for retrofitting previously purchased 
small UAS would be realized. If it is not possible to retrofit a small 
UAS to include geo-fencing, a replacement cost would be incurred. 
Additionally, an incremental per unit cost to small UAS manufacturers 
for installing mandated geo-fencing on newly built small UAS would be 
incurred.
---------------------------------------------------------------------------

    \104\ Executive Order 12866, Sec.  1(b)(6).
---------------------------------------------------------------------------

    Once geo-fencing is installed, the on-board avionics would rely 
upon a database of restricted airspace, NOTAMs, TFRs, obstacles, and 
terrain upon which to remain current. Maintaining these databases would 
incur additional costs, based on the frequency of database updates and 
the value of the time for the individual performing the task. Finally, 
small UAS owners would have recurring costs for subscribing to the 
database supplier or app developer for updates to regulatory airspace. 
To sum up, mandating geo-fencing equipage would result in substantial 
costs and, at this time, the FAA does not have sufficient data to 
determine, consistent with its obligations under Executive Order 12866 
and 13563, whether the benefits associated with such a mandate would 
justify those costs.
    The FAA appreciates the commenters' information and support for 
geo-fencing technology, and the agency will use this information in 
follow-on UAS-related activities. However, based on the considerations 
outlined above, the FAA has decided not to add any geo-fencing 
equipment requirements in this rule.
    Commenters including the Association of American Universities, 
Association of Public Land-grant Universities, and NAMIC generally 
stated that geo-fencing technologies should be considered to allow 
small UAS operation beyond visual line of sight. The Association of 
American Universities and Association of Public and Land-grant 
Universities stated that this final rule should require ``performance-
based standards for the capabilities of a UAS authorized to conduct 
[beyond-visual-line-of-sight] operations'' and noting ``dual auto pilot 
modes, anti-collision systems employing SONAR, LIDAR,'' and ``geo-
fencing capabilities'' as possible means of compliance. NAMIC cited 
benefits of

[[Page 42137]]

beyond-line-of-sight UAS operations following a catastrophic disaster. 
The Colorado Cattlemen's Association and the Rocky Mountain Farmers 
Union supported rules that ``allow for the use of such technologies to 
expand the permissible operating area for UAS in appropriate 
circumstances'' and ``permit the use of these technologies.'' The 
Interstate Natural Gas Association of America suggested geo-fencing 
technology, ``programmed into a UAS that establishes defined controlled 
zone such as a pipeline corridor, combined with location, altitude and 
forward looking camera'' to provide an equivalent level of safety to 
the proposed line of sight requirement.
    The National Ski Areas Association acknowledged that collision 
detection and avoidance systems are in development; however, the 
commenter stated that FAA ``needs to recognize and accommodate these 
technological innovations, especially when the risk to manned aircraft 
and public safety is so minimal, as it is at ski areas.''
    An individual asserted that multi-rotor helicopter small UAS have 
equipment providing ``geo-fencing to prevent loss of control link--or 
even to prevent airspace incursions and accidental `fly-aways'.'' 
Another individual stated that ``[s]everal technologies have been 
available for the last four years that enable pre-programmed GPS guided 
flight paths using latitude and longitude coordinates.'' Qualcomm added 
that geo-fencing ``can ensure small UAS remain well outside of airspace 
that is off limits to UAS.''
    As discussed in other parts of this preamble, the two operational 
restrictions of interest to these commenters (the requirement to remain 
within visual line of sight and the restriction on flying over people) 
are both waivable upon demonstration that the proposed operation can 
safely be conducted under the terms of a certificate of waiver. Waiver 
applicants may use geo-fencing and other technological equipage to help 
demonstrate, in support of a waiver application, that the proposed 
operation can be conducted safely. Alternatively, applicants may be 
able to demonstrate the safety of their proposed operation through non-
technological means, such as mitigations present in the area of 
operation. The FAA will evaluate the technological and non-
technological means employed by a waiver applicant to mitigate the risk 
of a small UAS operation and will issue a waiver if the applicant 
demonstrates that his or her specific means establishes the requisite 
level of safety.
2. Flight Termination System
    The FAA initially considered requiring a flight termination system 
(FTS), which is a system that terminates the flight of a small UAS in 
the event that all other contingencies have been exhausted and further 
flight of the aircraft cannot be safely achieved, or other potential 
hazards exist that require immediate discontinuation of flight. 
However, the FAA determined that there are other viable alternatives 
that can achieve this goal without requiring an FTS.
    The NPRM invited comments as to the costs and benefits of requiring 
an FTS. After reviewing comments, the FAA has decided against requiring 
small UAS to include an FTS.
    Several commenters, including the Small UAV Coalition, the 
University of Arkansas Division of Agriculture, and Northrop Grumman, 
agreed with the NPRM that use of an FTS should not be mandatory. 
Southern Company stated that alternative operational measures would 
adequately mitigate loss of control risk. Two individuals argued that 
flight termination systems are too heavy for small UAS. The Oklahoma 
Governor's Unmanned Aerial Systems Council commented that automatic 
termination of flight could have significant unintended consequences 
for the safety of people and property on the ground. NetMoby agreed 
that flight termination systems are not necessary, but encouraged the 
FAA to require return-to-home capabilities in UAS. Predesa also agreed 
that flight termination systems should not be required for small UAS, 
but asserted that GPS-based flight termination systems could mitigate 
risk. Planehook Aviation argued that the use of flight termination 
systems should be the operator's decision.
    On the other hand, some commenters, including ALPA and EAA, among 
others, said the FAA should require small UAS to have flight 
termination systems. Texas A&M University-Corpus Christi/LSUASC and TTD 
said that a UAS without a flight termination system is dangerous to 
other users of the NAS if positive control is lost. The Professional 
Helicopter Pilots Association commented that this technology is already 
being included in most devices above the hobby level. NAAA said most of 
these technologies are software-based and utilize GPS systems already 
onboard the UAS and thus have no effect on the weight of the aircraft. 
Modovolate Aviation said the FAA should encourage small UAS 
stakeholders to develop performance standards for flight termination 
systems and require manufacturers to certify they have designed and 
manufactured their vehicles in accordance with these standards.
    The Aviation Division of the Washington State Department of 
Transportation, the Nez Perce Tribe and UPS generally felt that an FTS 
could be optional equipage but stopped short of supporting a mandate. 
One individual stated ``. . . that if loss of control does occur, it 
can be easily mitigated by GPS based `return to home' systems which 
take control of the craft and automatically fly it back to its launch 
point. The most widely available consumer quadcopter, the DJI Phantom 
2, comes standard with this capability out of the box, and many 
hobbyists and commercial operators who build their own craft also 
install similar systems, which can be obtained for less than $100.''
    The NPRM mitigated the potential risk associated with UAS flight 
primarily through operational restrictions rather than airworthiness 
certification and equipage requirements, such as the installation of an 
FTS. If installed, an FTS may mitigate the risk associated with loss of 
positive control by having the unmanned aircraft execute intentional 
flight into terrain if the link between the remote pilot and the 
unmanned aircraft is severed. However, mandating equipage such as FTS 
would increase the costs of complying with this rule to address a 
safety risk that may be mitigated through low-cost operational 
parameters.
    Instead of requiring an FTS, the NPRM proposed to mitigate the risk 
associated with loss of positive control using the concept of a 
confined area of operation. Under the NPRM, the remote pilot would, 
prior to flight, be required to become familiar with the area of 
operation and to create contingency plans in that operations area to 
mitigate the risk associated with possible loss of positive control to 
people on the ground or other aircraft.
    The NPRM proposal is a less costly method to address loss-of-
positive-control risk because it does not require equipage (such as 
FTS, ``return home,'' or geo-fencing systems) or airworthiness 
certification. If FTS were to be required, that would be an equipage 
requirement that would likely increase the costs of this rule. In 
addition, an FTS equipage requirement would likely have to be 
accompanied by some type of airworthiness certification requirement to 
ensure that the FTS works reliably. This also would increase the costs 
of this rule.

[[Page 42138]]

    Conversely, it is unclear whether an FTS would provide a safety 
increase justifying the increase in costs for two reasons. First, the 
operational restrictions of this rule would significantly confine the 
area of operation of a small UAS, thus mitigating the loss-of-positive 
control risk through operational parameters. Second, an FTS could be 
potentially unsafe because using it would immediately terminate the 
flight with the possibility of placing people below in harm's way, 
especially if the FTS is programmed to automatically activate sometime 
after the control link is lost and cannot be re-established. For these 
reasons, the FAA will not require FTS on small unmanned aircraft in 
this rule.
3. Other Technological Equipage
    A number of commenters suggested additional equipage requirements 
for small UAS operations. However, because small UAS operations subject 
to this rule pose a lower level of risk, there are operational 
alternatives available to mitigate their risk to an acceptable level 
without imposing an FAA requirement for technological equipage. 
Additionally, the FAA recognizes that the use of new and advanced 
technology applications on UAS has not been tested and there is not 
enough data to support regulatory requirements of technological 
equipage. Therefore, this rule will not mandate the use of any kind of 
technological equipage or device.
    Modovolate Aviation recommended a general process for developing 
and integrating equipage requirements for small UAS. The commenter said 
it is important that the FAA ``avoid anything resembling airworthiness 
and type certification for manned aircraft,'' and instead ``adapt the 
consensus standard approach used in the early days of occupational 
health and safety regulation and combine it with the performance 
standards approach used by the Federal Communications Commission for 
unlicensed wireless devices.'' Modovolate Aviation explained that the 
FAA should encourage small UAS organizations to articulate performance 
standards for control technologies, and then manufacturers would 
certify that they have designed and manufactured their UAS in 
accordance with these consensus standards. The operating rules would 
require operators to confirm, as part of their pre-flight inspection, 
that these basic features are present and operating properly, and any 
manufacturers that falsely certify compliance with the standards would 
be subject to civil penalties and criminal prosecution for mail or wire 
fraud.
    As discussed in section III.J.3 of this preamble, the FAA has 
determined that airworthiness certification for small UAS operating 
within the limits set by part 107 is unnecessary. However, as noted by 
the commenter, the FAA encourages industry organizations to set 
voluntary standards for small UAS to further develop the industry. Such 
standards, however, would not relieve the remote pilot in command of 
his or her pre-flight responsibilities to determine that the system is 
in a condition for safe operation under Sec. Sec.  107.15 and 107.49. 
That is because the remote pilot in command must ensure that the small 
UAS is in a condition for safe operation for each flight, which 
requires greater diligence as the small UAS ages.
    A number of commenters addressed the NPRM's statement that 
``existing technology does not appear to provide a way to resolve the 
`see and avoid' problem with small UAS operations without maintaining 
human visual contact with the small unmanned aircraft during flight.'' 
CropLife America and Responsible Industry for a Sound Environment, 
commenting jointly, and the Professional Helicopter Pilots Association 
agreed with FAA that no see-and-avoid technology currently exists, but 
nevertheless said such technology should be required once it does 
become available. The United States Ultralight Association said UAS 
equipment should be designed with software or firmware that prevents 
the UAS from being flown further than one mile from the operator. The 
association asserted that ``[d]epth perception fails well before that 
distance and one mile should be seen as the outside limit for safety.''
    The FAA recognizes that the use of software or firmware that 
prevents the UAS from being flown further than one mile could 
potentially help to prevent the small unmanned aircraft from flying out 
of the area of operation. This type of software and firmware could also 
potentially help to prevent injury or damage to those on the ground. 
However, as discussed in section III.E.1.d of this preamble, the remote 
pilot in command may need to deviate from the regulations of part 107 
to respond to an emergency. A technological limitation on the small 
unmanned aircraft traveling more than one mile from the remote pilot 
could limit the remote pilot's ability to respond to an emergency 
situation that requires quickly moving the small unmanned aircraft 
farther away from the remote pilot.
    Several commenters addressed the issue of compliance with the 
proposed maximum altitude and speed restrictions. PlaneSense and Cobolt 
Air, commenting jointly, wondered why manned aircraft are required to 
be equipped with an altimeter or an altitude limiting program or 
device, but unmanned aircraft are not.
    The Permanent Editorial Board of the Aviators Model Code of Conduct 
Initiative noted that, absent altimetry technology (such as altimeters 
or GPS), altitude would need to be estimated from the ground, and 
ground-based estimates are generally inaccurate and may cause 
significant noncompliance and safety challenges. As such, the 
organization recommended the final rule either require the use of a 
``practical and effective technique'' for small UAS operators to 
estimate altitude ``with sufficient accuracy,'' or require the use of 
altimetric technology. The U.S. Hang Gliding and Paragliding 
Association said a ``simple barometric system set at launch would 
likely suffice'' to keep small UAS in compliance with maximum altitude 
restrictions. An individual also said UAS should be equipped with 
``devices that provide the operator with telemetry data such as (but 
not limited to) height, speed, distance, bearing and battery level.''
    Virginia Commonwealth University Honors Students asserted that GPS 
systems could be used to ensure compliance with both altitude and speed 
restrictions for small UAS equipped with minimum equipment, such as an 
altimeter and magnetic direction indicator, to ensure the UAS remains 
below a specific altitude and within a certain radius from the 
operator's location, in compliance with ATC instructions. Several 
individuals said that FAA should require UAS to be equipped with 
technology that limits operations to below a certain altitude or within 
a certain airspace. Another individual suggested the requirement of 
technology to enable automated communication between a UAS and an FAA 
computer that can authorize flight in a particular area at a specific 
time.
    As discussed in section III.E.3.a.ii of this preamble, while 400 
feet AGL is generally the maximum altitude for a small unmanned 
aircraft, there is an exception to that requirement. Specifically, this 
rule allows a small unmanned aircraft flying within 400 feet of a 
building to fly higher than 400 feet AGL. As such, a technological 
component limiting aircraft altitude to 400 feet AGL would disallow 
some small UAS operations that are permitted by part 107. In addition, 
a categorical technological limitation on altitude would limit the 
remote pilot's ability to respond to an emergency. With regard to

[[Page 42139]]

estimating altitude, section III.E.3.a.ii provides examples of other 
methods that a remote pilot in command can use to estimate the altitude 
of a small unmanned aircraft.
    The NJIT Working Group recommended the use of ``a heads up display 
of flight information such as airspeed, vertical speed, attitude, 
heading and power'' to help the remote pilot fly according to actual 
flight parameters instead by sight.
    The FAA supports the NJIT Working Group's efforts to provide remote 
pilots with an optimized method of displaying telemetry data of the 
aircraft. However, a regulatory requirement for a heads up display is 
unnecessary in this rule due to the limited nature of small UAS 
operations, and for many aircraft, the lack of telemetry data to 
display to the remote pilot.
    A number of commenters addressed a requirement for return-to-home 
capabilities. Virginia Commonwealth University Honors Students said the 
FAA should require UAS to be equipped with a GPS system that 
automatically returns the UAS to home in adverse weather conditions. 
Those students and NetMoby also said UAS should be equipped with 
technology that returns the UAS to home when battery life is low.
    NetMoby also recommended UAS be equipped with return-to-home 
capability ``which, when automatically activated, as a result of loss 
of positive UAS control, puts the aircraft on a course to a waypoint 
that is mandated to be programmed into the UAS circuit board Random 
Access Memory (``RAM'') prior to departure from the ground.'' The 
company further recommended the following to mitigate the risk 
associate with loss of positive control of a UAS: (1) UAS be equipped 
with GPS capable of position refresh rates of 5 seconds or better; and 
(2) GPS be accompanied with WAAS differential for greater position 
accuracy.
    The Small UAV Coalition asserted that technological capabilities 
such as return-to-base and geo-fencing programming are currently being 
used by small UAS operators in other countries, and that such 
technologies ``achieve and surpass the level of safety attained by a 
pilot's control of aircraft.''
    Airware acknowledged that detailed airworthiness requirements are 
not needed ``for the very low risk environment proposed by this NPRM,'' 
but that ``minimal protections'' should nevertheless be required. One 
such requirement cited by the company is a flight control system that 
allows for certain contingency events to be monitored (e.g., lost RC 
link, lost data link, low voltage), and for an appropriate response to 
be executed should any such events occur (e.g., land now, return to 
home and land, return to home, loiter and land). Airware said such 
programmable contingency actions ``are critical, as flight systems 
which just simply execute a return home and land procedure for example, 
may send the aircraft on a course that intersects with a structure or 
other obstacle.''
    Section 107.19 requires the remote pilot in command to ensure that 
the small unmanned aircraft will pose no undue hazard to other 
aircraft, people, or property in the event of a loss of positive 
control of the aircraft for any reason. In consideration of the 
numerous ways that a remote pilot may mitigate the risk associated with 
a contingency event, the FAA considers it unnecessary to enact a 
prescriptive requirement such as a return-to-home function, as many 
other methods may exist now and in the future to ensure no undue hazard 
due to a loss of control. For example, non-equipage mitigations for 
loss of control may include utilizing physical barriers such as trees 
or netting, utilizing security/safety personnel to control non-
participant entry into the operating area, or ensuring non-participants 
are under/in a protected covering.
    The AIT Austrian Institute of Technology GmbH said that a data link 
requirement is essential for safe operations, and that ``adequate 
Frequencies and Standards should be put in place to support the growing 
market potentials.'' The Institute went on to recommend specific data 
link spectrum requirements for both visual-line-of-sight and beyond-
line-of-sight operations.
    Frequency spectrum requirements are outside the scope of this rule. 
The comment has been forwarded to the FAA Spectrum Engineering service 
unit for future consideration.
    Several individuals said small UAS should be equipped with flight 
data recording systems or ``black boxes'' so that operators can be held 
accountable for infractions. One individual said that, for those 
aircraft that can record flight log data, there should be a requirement 
to preserve that data in the event of an operation that causes injury 
or property damage. The commenter further suggested that, in case of 
airspace violations, the FAA consider requiring all such flight logs be 
kept for some predetermined period of time.
    Due to the mitigations provided by part 107 that reduce the 
likelihood of a small UAS flight resulting in significant injury or 
property damage, a requirement to equip small unmanned aircraft with 
flight data recorders would be unnecessarily burdensome.
    Transport Canada questioned whether, ``[g]iven the potential 
interference caused by radios, cell phones, electronic devices, etc.,'' 
the FAA has considered a prohibition against using personal electronic 
devices at, or in the vicinity of, a control station.
    Prior to flight, the remote pilot in command must, pursuant to 
Sec.  107.49(c), ensure that all control links between the ground 
control station and the small unmanned aircraft are functioning 
properly. If an electronic device is being used nearby and that 
electronic device affects the control link such that it is not 
functioning properly, the remote pilot in command may not commence the 
operation until the problem with the control link has been resolved. 
The FAA expects that the remote pilot will resolve this problem by 
either: (1) Terminating the use of any electronic devices that are 
known to the remote pilot to cause interference with operation of the 
UAS; or (2) delaying the operation until use of the interfering 
electronic device has ceased. It would not be practical to enact a 
prohibition on the use of personal electronic devices because such 
devices are routinely used to control or monitor small UAS.
    The City of Phoenix Aviation Department said the FAA should require 
``7460 applications'' from small UAS because ``there are unknown 
impacts of UAS remote frequency system[s] interacting with commercial 
airport operations.''
    The FAA disagrees. FAA Form 7460, Notice of Proposed Construction 
or Alteration, applies to persons constructing structures greater than 
200 feet AGL, or within a specific distance of an existing airport or 
heliport. Because the form does not apply to aircraft operations, there 
is no requirement for small UAS remote pilots to submit a 7460 
application.
4. External Load and Dropping Objects
    In the NPRM, the FAA proposed to not allow external load and towing 
operations under part 107. The FAA also proposed to prohibit objects 
from being dropped from an aircraft in flight if doing so would 
endanger the life or property of another. For the reasons discussed 
below, this rule will allow external load and towing operations as long 
as the object that is attached to or carried by the small unmanned 
aircraft is secure and does not adversely affect the flight 
characteristics or controllability of the aircraft. This rule will also 
maintain the prohibition on dropping objects from a small

[[Page 42140]]

unmanned aircraft if doing so would create a hazard to persons or 
property, but will rephrase the regulatory text of Sec.  107.23(b) to 
make it similar to the ``undue hazard'' standard used in Sec.  
107.19(b). Additionally, as discussed in section III.C.1 of this 
preamble, this rule will also allow the intrastate transportation of 
property for compensation or hire.
a. External Load and Towing
    In the NPRM, the FAA noted that external load and towing operations 
``involve greater levels of public risk due to the dynamic nature of 
external-load configurations and inherent risks associated with the 
flight characteristics of a load that is carried or extends outside of 
the aircraft fuselage and may be jettisonable.'' \105\ The FAA added 
that these types of operations may ``also involve evaluation of the 
aircraft frame for safety performance impacts, which may require 
airworthiness certification.'' \106\ Accordingly, the NPRM would not 
have permitted external load or towing operations to be conducted under 
part 107. However, the FAA invited comment on whether external-load and 
towing UAS operations should be permitted, whether they should require 
airworthiness certification, whether they should require higher levels 
of airman certification, whether they should require additional 
operational limitations, and on other relevant issues.
---------------------------------------------------------------------------

    \105\ 80 FR at 9553.
    \106\ Id.
---------------------------------------------------------------------------

    Several commenters, including Cherokee Nation Technologies, NAAA, 
and ALPA, generally supported the proposed prohibition on conducting 
external load and towing operations. Cherokee Nation Technologies 
contended that the risks associated with external loads and towing are 
beyond the scope of this rulemaking effort. NAAA argued that additional 
data is needed to safely allow external load small UAS operations in 
the NAS. ALPA asserted that external load and towing operations require 
a level of piloting skill that is higher than the one envisioned by 
part 107.
    Approximately 30 other commenters opposed a blanket prohibition on 
conducting external load and towing operations. Modovolate Aviation 
stated that the NPRM does not explain sufficiently why external load 
and banner-towing operations should be excluded. DJI asserted that 
external load and towing operations could be conducted safely within 
the other operating parameters proposed in the NPRM. DJI specifically 
noted that the 55-pound limit on the total weight of the small unmanned 
aircraft would significantly reduce the risk of cargo-carriage 
operations by limiting the weight of the cargo that could be carried or 
towed by the unmanned aircraft.
    Yale University, the Information Technology and Innovation 
Foundation, American Farm Bureau Federation, and Google stated that the 
proposed prohibition on external load and towing operations would offer 
only marginal improvements in safety, if any, at the cost of important 
research and a wide range of useful applications of small UAS. American 
Farm Bureau Federation, the Michigan Farm Bureau, and the Missouri Farm 
Bureau specifically noted that the prohibition is overbroad and 
impractical as applied to agricultural applications. Short of 
recommending that the FAA completely eliminate the external load and 
towing prohibition, the American Farm Bureau Federation and the 
Michigan Farm Bureau urged the FAA to clarify that this prohibition 
only applies to actual towing operations or operations that would cause 
the weight of the UAS to exceed 55 pounds. The Oklahoma Governor's 
Unmanned Aerial Systems Council said that if a small UAS is 
specifically designed to safely accommodate external loads and towing 
operations, then these operations should be allowed as long as they are 
in compliance with the manufacturers' engineering and operating 
specifications.
    The Mercatus Center at George Mason University stated that the NPRM 
fails to include a discussion of the benefits of allowing small UAS to 
conduct external load operations. The commenter asserted that, given 
that no fatalities have been reported due to ``jettisoned parcels from 
UASs,'' parcel-for-parcel, it may be safer to transport goods via UAS 
external load operations than to do so using delivery trucks. The 
Colorado Cattlemen's Association and Amazon argued that the FAA should 
take a performance-based approach to allow external load and towing 
operations. AIA similarly recommended the FAA apply ``risk analysis 
techniques'' to the specific operations under consideration.
    The University of California and the Consumer Electronics 
Association stated that, instead of a blanket prohibition on external 
load and towing operations, safety concerns could be mitigated by 
sensible limits on weight, range, location and altitude, and by 
technology and a registration procedure that certifies to a higher 
degree of safety. By way of example, the Consumer Electronics 
Association pointed out that Amazon has said that a 5-pound package 
limit would create minimal safety concerns, yet would still permit the 
delivery of more than 85 percent of the products it sells.
    Google and several individual commenters cited numerous examples of 
small unmanned aircraft missions that would be adversely affected by a 
prohibition on external loads and towing. These operations include 
activities such as banner towing, magnetometer missions, towing lines 
for electric utility industry, and delivery of tools and equipment. A 
few commenters opposed the prohibition on external load and towing 
operations in limited contexts. The National Ski Areas Association said 
the prohibition should be relaxed for safety and emergency operations. 
The Associated General Contractors of America said that the FAA should 
invite further comment on whether the prohibition should extend to 
highly controlled construction jobsites. Aviation Management stated 
that FAA should be able to effectively assess the risk of towing 
operations on a class basis or a case-by-case basis. One commenter 
suggested that external loads of a limited weight should be allowed, 
and that the weight allowed should be a specified percentage of the 
weight of the unmanned aircraft.
    The FAA agrees with the commenters who objected to the proposed 
prohibition on external load and towing operations. Under part 107, the 
combined weight of the small unmanned aircraft and any objects towed or 
loaded (either externally or internally) must be less than 55 pounds. 
As a result of this limitation, the risk posed by a small unmanned 
aircraft conducting external load or towing operations is significantly 
lower than the risk associated with manned-aircraft external load or 
towing operations, which can carry 1,000 to 50,000 pounds of cargo.
    Further, the majority of risks associated with load (either 
internal or external) and towing operations are already mitigated by 
the other provisions of this rule. First, Sec.  107.19(c) requires the 
remote pilot in command to ensure that the small unmanned aircraft will 
pose no undue hazard to other aircraft, people, or property in the 
event of a loss of control of the aircraft for any reason. Second, 
Sec.  107.49(a) requires the remote pilot in command to conduct a 
preflight assessment of the operating environment, and consider the 
potential risks to persons and property in the immediate vicinity. 
Finally, as discussed below, Sec.  107.23(b) prohibits a person from 
dropping an object from a small unmanned aircraft in a manner

[[Page 42141]]

that creates an undue hazard to persons or property.
    Because the other provisions of this rule mitigate the risks 
associated with external load and towing operations, these operations 
will be permitted under part 107 if they do not adversely affect the 
flight characteristics and controllability of the small unmanned 
aircraft. To ensure that this is the case, the FAA has revised Sec.  
107.49 to require that, prior to flight, the remote pilot in command 
and the person manipulating the flight controls of the small UAS must 
ensure that any object attached to or carried by the small unmanned 
aircraft (either internally or externally) is secured and does not 
adversely affect the flight characteristics or controllability of the 
aircraft.
    Flight characteristics refer to the stability of the small UAS, 
while controllability refers to the maneuverability of the small UAS. 
To satisfy the above requirement, the remote pilot in command must 
examine the equipment used for lifting or securing a payload to ensure 
that it is in good condition, strong enough for the task, and attached 
in a manner such that there is no unintended shifting or detaching of 
the payload. For example, if a single cable is used to secure and lift 
a payload, the cable must be inspected to determine that it is securely 
attached at both ends and that the cable and attach points are in good 
condition so that the payload will not inadvertently detach. If netting 
is used, the netting and the attach points must be in good condition so 
that the netting does not inadvertently become detached. The payload 
must also be securely fastened so that it does not slip out of the 
netting during flight.
    A payload will likely adversely affect the flight characteristics 
of the small unmanned aircraft if that payload shifts in a manner that 
causes the small unmanned aircraft to deviate from its intended flight 
path or become uncontrollable. In other words, if a payload becomes 
partially detached or if the presence of the payload creates an 
imbalanced small unmanned aircraft, then the flight characteristics of 
the small unmanned aircraft have been adversely affected. Additionally, 
if a payload shifts during flight or weighs down a small unmanned 
aircraft such that the aircraft is unable to properly respond to a 
remote pilot's controls, then the controllability of the small unmanned 
aircraft has been adversely affected.
    A joint submission from the State of Nevada, the Nevada Institute 
for Autonomous Systems, and the Nevada FAA-designated UAS Test Site, 
and a comment from an individual claimed that external load and towing 
operations involve a greater level of complexity and safety risk and 
that the FAA should develop appropriate standards and certification 
criteria for these operations. Conversely, Yale University said that a 
prohibition on all external-load operations or requiring an 
airworthiness certificate for such operations would impede ability to 
rapidly prototype aircraft. The Oklahoma Governor's Unmanned Aerial 
Systems Council recommended airworthiness certification only for larger 
UAS platforms conducting external load operations.
    Planehook Aviation said that the FAA should create a special 
category of common carrier certification for conducting external load 
operations. The commenter recommended that FAA create a UAS-specific 
advisory circular to mirror manned aviation guidance in AC 133-1A, 
Rotorcraft External Load Operations in accordance with 14 CFR part 133.
    Separate airworthiness or other certification analogous to manned-
aircraft operations is not necessary for external load and towing 
operations that will be conducted under part 107. As discussed earlier, 
a small unmanned aircraft weighing less than 55 pounds (including the 
weight of any payload) does not pose the same safety risk as a 1,000 to 
50,000-pound manned aircraft. Thus, it is not necessary for a small 
unmanned aircraft to be subject to the same regulatory provisions as a 
manned aircraft that conducts external-load operations.
    Consequently, this rule will not require small unmanned aircraft 
operating under part 107 to comply with either the provisions of part 
133 (which normally applies to rotorcraft external load operations) or 
current guidance associated with airplane external load operations. 
However, because larger UAS than the ones governed by this rule may 
pose additional safety risk, future rulemakings may impose additional 
mitigations, such as those required by part 133, on larger UAS 
operations. While the FAA does not plan to issue guidance on external 
load operations with larger UAS in conjunction with this rulemaking, it 
may do so in the future.
    DJI recommended that instead of banning towing operations, the FAA 
use existing language from Sec.  91.15, which prohibits dropping 
objects from aircraft in flight ``that creates a hazard to persons or 
property.'' One individual commenter said the FAA should consider a 
restriction on the size of a towed banner, and that the device should 
meet requirements similar to the requirement for 14 CFR part 101 
(balloons). Another individual commenter said towing operations should 
be permitted as long as the power-to-weight/drag ratio is appropriate 
for safe flight. In response, the FAA notes that, as discussed earlier, 
this rule will allow external load and towing operations (including 
banner towing) as long as the object is securely attached to the small 
unmanned aircraft and does not pose adverse flight characteristics.
    Several commenters, including the Small UAV Coalition, the North 
Carolina Association of Broadcasters, and Modovolate Aviation stated 
the FAA needs to clarify whether a gimbal, camera, or sensor affixed to 
a UAS is considered an external load. The News Media Coalition stated 
that the final rule should make clear that an interchangeable camera 
that is affixed to or carried by a small UAS to be used by that UAS is 
permissible. SkyBridge Holdings said that any item that is clearly, 
mechanically fastened to the aircraft (e.g., using screws or bolts) 
should not be considered an external load.
    The FAA acknowledges the concerns raised by the commenters, but as 
discussed earlier, this rule will remove the proposed prohibition on 
external-load operations. Consequently, part 107 will not have any 
external-load-specific regulatory provisions and, as such, a UAS-
specific definition of external load is unnecessary in this rule. The 
FAA also emphasizes the requirements (discussed earlier) that any 
object attached to or carried on or in the small unmanned aircraft must 
be secured and may not pose adverse flight characteristics. These 
requirements apply regardless of whether the object is carried inside 
or outside of the aircraft.
    Southern Company sought clarification as to whether the proposed 
external-load and towing prohibition would apply to tethered operations 
(e.g., the stringing of a conductor, the rigging of climbing 
protection, or the carriage of any line or cable that is tied to the 
ground or held by a person). If tethered operations are permitted, the 
commenter asked whether the weight of the tether counts toward the 
small UAS weight limitation. Southern Company stated that a tether 
provides sufficient risk mitigation such that it should not be 
considered part of the aircraft for the purpose of determining weight.
    As discussed in section III.D.4 of this preamble, the weight of the 
small unmanned aircraft includes everything that is on board or 
otherwise attached to the aircraft and may be lifted. Thus, if

[[Page 42142]]

a cable is attached to an unmanned aircraft, then the weight of the 
entire cable must be added to the weight of the unmanned aircraft to 
determine whether the total weight is under the 55-pound limit imposed 
on small unmanned aircraft. The FAA acknowledges that a portion of the 
attached cable may rest on the ground during the small UAS operation, 
but the small unmanned aircraft may end up lifting the entire cable if 
positive control is lost during the operation. If the unmanned aircraft 
is tethered by the cable in such a way that the cable, securely 
attached to an immoveable object, prevents the unmanned aircraft from 
flying away in the event of loss of positive control, only the portion 
of the cable which may be lifted aloft by the small unmanned aircraft 
must be added to the weight of the unmanned aircraft when determining 
total weight.
    Transport Canada asked whether the FAA has considered prohibiting 
certain payloads (e.g., explosives, corrosives, bio-hazards, lasers, 
weapons). Transport Canada added that the FAA might consider a 
prohibition on equipping small UAS with an emergency locator 
transmitter (ELT), ``and the potential response of search and rescue 
assets as a result of an ELT activation.''
    As discussed in section III.C.1 of this preamble, this rule will 
not allow the carriage of hazardous materials. With regard to ELTs, an 
ELT is generally required to be installed in manned aircraft under 14 
CFR 91.207 for the purpose of locating a downed aircraft and aiding in 
the rescue of survivors. Because a small unmanned aircraft will not 
carry any people onboard, the installation of an ELT would not result 
in significant safety benefits and will not be required by this rule. 
Further, due to the cost and weight of ELT devices, we do not 
anticipate small UAS owners voluntarily equipping their aircraft with 
ELTs.
b. Dropping Objects
    In Sec.  107.23(b) of the proposed rule, the FAA proposed to 
prohibit an object from being dropped from a small unmanned aircraft if 
such action endangers the life or property of another. The FAA received 
approximately 15 comments in response to this proposed provision.
    CAPA and one individual commenter expressed concern about the 
proliferation of small UAS and their accessibility to persons with 
limited or no aviation experience. Both commenters asserted that it 
requires great skill to drop an object safely from an aircraft. CAPA 
also expressed concerns about the potential security risks of 
permitting objects to be dropped from small unmanned aircraft. 
Similarly, two individual commenters worried that small unmanned 
aircraft equipped for package delivery could be used to carry out 
terrorist activities, such as dropping canisters of poisonous gases 
into populated areas such as shopping malls.
    The FAA disagrees with the commenters that airmen operating under 
part 107 will lack the skill necessary to safely drop an object from a 
small UAS. As discussed in section III.E.1 of this preamble, all small 
UAS operations must be conducted either by a certificated remote pilot 
or under the direct supervision of a certificated remote pilot in 
command. In order to obtain a remote pilot certificate under part 107, 
an applicant will be required to demonstrate his or her knowledge of 
how to safely operate a small UAS under part 107.\107\ Thus, operations 
under part 107 will be conducted and overseen by certificated airmen 
who will have the knowledge necessary to safely conduct various part 
107 operations, including safely dropping objects from a small UAS.
---------------------------------------------------------------------------

    \107\ Depending on whether the applicant holds a part 61 pilot 
certificate other than student pilot, that demonstration will take 
the form of either an aeronautical knowledge test or online 
training.
---------------------------------------------------------------------------

    With regard to dropping dangerous objects, the FAA notes that, as 
discussed in section III.C.1 of this preamble, this rule will prohibit 
the carriage of hazardous material by small unmanned aircraft. With 
regard to terrorism and criminal activities more broadly, as discussed 
in section III.J.2 of this preamble, there already exist criminal 
statutes that prohibit criminal and terrorist activities.
    Five commenters suggested that the language in the final rule 
regarding the dropping of objects should mirror the language in 14 CFR 
91.15. These commenters suggested that while proposed Sec.  107.23(b) 
does not necessarily differ in substance from Sec.  91.15, it should be 
made explicit that the rule does not prohibit the dropping of any 
object if reasonable precautions are taken to avoid injury or damage to 
persons or property. DJI suggested that the FAA adopt the ``hazard to 
persons or property'' standard used in Sec.  91.15 for external load 
and towing operations.
    Section 91.15 prohibits an object from being dropped from an 
aircraft in flight in a manner that creates a hazard to persons or 
property. Section 107.19(b) of this rule uses a similar standard of 
``undue hazard'' with regard to loss of positive control of a small 
unmanned aircraft. In order to promote regulatory consistency 
throughout part 107, the FAA has rephrased the regulatory text of Sec.  
107.23(b) to use the ``undue hazard'' standard specified in Sec.  
107.19(b). The revised Sec.  107.23(b) will prohibit dropping objects 
from a small unmanned aircraft in a manner that creates an undue hazard 
to persons or property.
    DJI noted that the term ``hazard'' is inherently subjective. DJI 
acknowledged that ``it may be impossible to adopt a non-subjective 
standard,'' and requested that the FAA provide guidance on the types of 
operations that the FAA would consider to be hazardous.
    As discussed earlier, Sec.  107.23(b) will prohibit dropping an 
object from a small unmanned aircraft in a manner that creates an undue 
hazard to persons or property. For purposes of this rule, a falling 
object creates an undue hazard to persons or property if it poses a 
risk of injury to a person or a risk of damage to property. This 
standard will be applied on a fact-specific basis. For example, a small 
unmanned aircraft that drops a heavy or sharp object capable of 
injuring a person in an area where there are people who could be hit by 
that object would likely create an undue hazard to persons. The remote 
pilot in command of the operation could take reasonable precautions 
prior to flight by moving people away from the drop site to a distance 
where they would not be hit by a falling object if something goes wrong 
with the operation. Guidance associated with the enactment of part 107 
will provide additional examples to help remote pilots comply with 
Sec.  107.23(b).
5. Limitations on Operations in Certain Airspace
    In the NPRM, the FAA proposed limiting the exposure of small 
unmanned aircraft to other users of the NAS by restricting small UAS 
operations in controlled airspace. In addition, the NPRM proposed 
prohibiting small UAS operations in prohibited and restricted areas 
without permission from the using or controlling agency. The proposed 
rule also prohibited operation of small UAS in airspace restricted by 
NOTAMs unless authorized by ATC or a certificate of waiver or 
authorization.
    For the reasons discussed below, this rule will adopt the 
provisions for operating in Class B through E airspace and in 
prohibited or restricted areas as proposed in the NPRM, but with the 
option to request a waiver from the provisions for operating in Class B 
through E airspace. This rule will not adopt the provisions for 
compliance with NOTAMs as proposed, but will

[[Page 42143]]

instead require compliance with Sec. Sec.  91.137 through 91.145 and 
Sec.  99.7, as applicable. This rule will also not adopt the proposed 
prohibition on operations in Class A airspace because the other 
operational restrictions of this rule will keep a small unmanned 
aircraft from reaching Class A airspace. Lastly, this rule will add a 
prohibition against small unmanned aircraft operations that interfere 
with operations and traffic patterns at any airport, heliport or 
seaplane base.
a. Operations in Class B, C, D, and Lateral Boundaries of the Surface 
Area of Class E Airspace Designated for an Airport
    The NPRM proposed to require prior permission from Air Traffic 
Control (ATC) to operate in Class B, C, or D airspace, or within the 
lateral boundaries of the surface area of Class E airspace designated 
for an airport. The NPRM did not propose equipment requirements for 
small UAS operating in controlled airspace, nor did it propose to 
require small UAS to demonstrate strict compliance with part 91 in 
order to operate in controlled airspace.
    Several commenters including AOPA, EAA, and the Small UAV 
Coalition, supported the FAA's proposal that remote pilots obtain ATC 
approval prior to operating small UAS in Class B, C, or D airspace, or 
within the lateral boundaries of the surface area of Class E airspace 
designated for an airport. Some commenters added that they would like 
clarification that ATC approval does not mean the FAA issuance of a 
COA. The International Air Transport Association supported the proposal 
and stated this requirement should not be allowed to impede ATC's 
primary responsibility to manage traffic. Transport Canada requested 
clarification on the process for requesting ATC approval. Foxtrot 
Consulting and JAM Aviation expressed concern about inconsistent 
application of the regulation by ATC facilities.
    Some of these commenters requested that the FAA provide guidance to 
ATC facilities regarding the handling of requests to operate small UAS 
in controlled airspace. Modovolate Aviation agreed with the proposed 
framework, but suggested that the FAA should provide guidance on how 
ATC permission would be obtained. The Small UAV Coalition asked the FAA 
to provide contact information for each ATC facility, and to agree to 
provide timely decisions on whether to authorize operations in 
controlled airspace. NBAA suggested prohibiting use of ATC frequencies 
to obtain the required permission.
    In response to comments, the FAA will establish two methods by 
which a remote pilot in command may request FAA authorization for a 
small unmanned aircraft to operate in Class B, C, D, and the lateral 
boundaries of the surface area of Class E airspace designated for an 
airport. The first method is the same as what was proposed in the NPRM: 
A remote pilot in command may seek approval from the ATC facility with 
jurisdiction over the airspace in which the remote pilot would like to 
conduct operations. The second method allows a remote pilot to request 
a waiver from this provision in order to operate in Class B through E 
airspace. As stated in the NPRM, the appropriate ATC facility has the 
best understanding of local airspace, its usage, and traffic patterns 
and is in the best position to ascertain whether the proposed small UAS 
operation would pose a hazard to other users or the efficiency of the 
airspace, and procedures to implement to mitigate such hazards. The ATC 
facility has the authority to approve or deny aircraft operations based 
on traffic density, controller workload, communications issues, or any 
other type of operational issues that could potentially impact the safe 
and efficient flow of air traffic in that airspace. If necessary to 
approve a small UAS operation, ATC may require mitigations such as 
altitude constraints and direct communication. ATC may deny requests 
that pose an unacceptable risk to the NAS and cannot be mitigated.
    The ATC facility does not have the authority to approve or deny 
small UAS operations on the basis of equipage that exceeds the part 107 
requirements. Because additional equipage and technologies such as geo-
fencing have not been certificated by the FAA, they therefore need to 
be examined on a case-by-case basis in order for the FAA to determine 
their reliability and functionality. Additionally, requiring ATC to 
review equipage would place a burden on ATC and detract from other 
duties. Instead, a remote pilot who wishes to operate in controlled 
airspace because he or she can demonstrate mitigations through equipage 
may do so by applying for a waiver.
    Requests for authorization to operate a UAS in one of the above 
areas should be made by writing or an electronic method as determined 
by the Administrator and publicized on the FAA's Web site. Requests for 
such authorization via air traffic control radio communication 
frequencies will not be accepted because they may interfere with the 
separation of aircraft.
    The FAA is not committing to a timeline for approval after ATC 
permission has been requested because determining the level of review 
required for approval is dependent on the management at the individual 
facilities. The FAA also notes that the time required for approval will 
vary based on the resources available at the ATC facility and the 
complexity and safety issues raised by each specific request. The FAA 
encourages remote pilots who know that they will need to operate in 
Class B, C, D, or E airspace to contact the appropriate ATC facility as 
soon as possible prior to the operation.
    While some UAS activity will still utilize a COA, operating under 
part 107 regulations will not require a COA where ATC permission is 
specified. The FAA is working concurrently on several other documents, 
including an advisory circular, and training and direction to ATC 
facilities that will provide guidance to users and ATC personnel as to 
procedures and responsibilities. This guidance will ensure consistent 
application of ATC permission and processes, to the extent practicable. 
The FAA notes that some discrepancies may arise due to the unique 
nature of different airspace.
    Several commenters, including ALPA, TTD, and the University of 
North Dakota John D. Odegard School of Aerospace Sciences, opposed 
allowing operations in class B, C, D, or E airspace. The University of 
North Dakota John D. Odegard School of Aerospace Sciences argued that 
this provision would place an undue burden on ATC, and that the well-
established COA process would be a better mechanism than ATC 
permission. TTD suggested that the FAA adopt design provisions that 
ensure small UAS remain in the intended airspace when operating 
optimally, as well as risk mitigation technology when command controls 
are lost, and that operations in controlled airspace be banned in the 
absence of such provisions. ALPA stated that it does not believe there 
is sufficient information on which to base a sound safety case for 
allowing small UAS into controlled airspace at this time. Several 
commenters including SWAPA, Airport Council International-North America 
and the County of Los Angeles Department of Public Works, thought a 
real-time two-way communication requirement should be included. The 
Property Drone Consortium opposed the requirement to notify ATC, while 
adding that it believed this requirement imposed burdens on UAS 
operators that are different from those imposed on manned operations.
    The FAA does not believe that prescriptive design provisions are

[[Page 42144]]

necessary in this rule. The FAA acknowledges the concerns raised by the 
commenters but notes that, as of this writing, safety-relevant equipage 
such as transponders has not been certificated for use on a small UAS. 
Additionally, there could be small UAS operations with operational 
parameters that would make those UAS not a danger to manned aircraft 
even if positive control is lost. For example, a small unmanned 
aircraft flying at low altitude and surrounded by natural barriers that 
would stop the aircraft from flying away would not pose a danger to 
other aircraft, even in the absence of equipage mitigations. Thus, this 
rule will retain the framework allowing the FAA to evaluate operations 
seeking to be conducted in controlled airspace on a case-by-case basis, 
and will not impose generally applicable design or equipage provisions 
on all small UAS operations. The FAA will continue to monitor the 
development of small UAS technology and may revisit this issue once the 
pertinent technology becomes more mature and additional safety data is 
available.
    This framework is similar to the regulatory construct underlying 
controlled-airspace access under part 91. Specifically, while part 91 
imposes minimum equipage requirements on aircraft seeking to operate in 
controlled airspace, part 91 also gives ATC the power to authorize 
aircraft that do not have the required equipage to access the 
airspace.\108\ Part 107 provides ATC with a similar power to evaluate 
whether an individual small UAS operation may safely be conducted in 
controlled airspace even though the unmanned aircraft lacks equipage 
typically used to mitigate safety concerns in that airspace.
---------------------------------------------------------------------------

    \108\ See, e.g., 14 CFR 91.215(b) (allowing ATC to authorize 
access to Class A, B, or C airspace for aircraft that do not have a 
transponder) and Sec.  91.225(b) (allowing ATC to authorize access 
to Class B or C airspace for aircraft that do not have ADS-B).
---------------------------------------------------------------------------

    Additionally, the FAA does not agree that the current COA process 
would be a better mechanism for operating in controlled airspace. 
Currently, when a small UAS operator applies for a COA, the Flight 
Standards Service in the FAA first addresses the equipage exemptions, 
and then if a favorable outcome is reached, the operator is allowed to 
operate in Class G airspace up to 200 feet AGL. If an operator wishes 
to operate in controlled airspace, under the previous COA framework, 
the request is sent to the air traffic service center. The service 
center then works with the appropriate ATC facility to respond to the 
request. This rule will streamline the process, such that equipage no 
longer needs to be reviewed by the FAA if the part 107 requirements are 
met. Therefore, the only outstanding step in the COA process would be 
resolving requests to operate in controlled airspace. This rule 
incorporates that step within the ATC-permission framework, making the 
COA process unnecessary for part 107 operations.
    Embry-Riddle Aeronautical University supported the proposed rule 
and proposed adding a filed flight plan option in lieu of explicit ATC 
approval. The City and County of Denver, Colorado, insisted that 
permission should be granted only for essential commercial, non-
recreational purposes. Airport Council International-North America and 
the American Association of Airport Executives stated that ATC should 
only grant permission when there is a specific need to do so. The 
Center for Robot-Assisted Search and Rescue asked that public safety 
operators be exempt from the requirement to obtain ATC approval prior 
to operating in controlled airspace.
    The FAA does not agree with Embry-Riddle's proposal to add a flight 
plan option in lieu of ATC approval. Filing a flight plan would not 
alert ATC in advance as to the nature of the operation, nor would it 
give them an opportunity to apply mitigations in a timely manner. The 
FAA also notes that the flight plan system is set up for point-to-point 
flights. Adapting it for small UAS operations would be a technology 
hurdle and would introduce unnecessary delay into the rule. Therefore, 
a flight plan is not a viable substitute for obtaining ATC permission.
    Additionally, ATC should not be placed in the position of 
validating the need of any specific operation. Any decision on allowing 
an operation within the appropriate ATC facility's jurisdiction will 
take into account the workload of the controller. If it is anticipated 
the volume of traffic could change, the facility might require a means 
to terminate a small UAS operation in real-time, such as two-way radio 
or cell phone communication.
    The FAA also notes that this rulemaking does not apply to 
recreational small UAS operations that are conducted in accordance with 
section 336 of Public Law 112-95. Further, the FAA does not agree that 
public safety operators should be exempt from the requirement to obtain 
ATC approval prior to operating in controlled airspace. Although public 
safety operators may have time-critical aspects to their operations, 
the risks associated with flying in controlled airspace remain the same 
regardless of the type of operation. The requirement for ATC approval 
gives ATC the opportunity to prescribe mitigations to address any risks 
associated with operating in controlled airspace. The FAA notes that 
while a public entity has the option to operate under a public COA, it 
may gain an operational advantage by operating under part 107. However, 
in electing to operate under part 107, a public entity is required to 
operate wholly under the part, and its operation would therefore be 
considered a civil operation.
    Some commenters, including TTD and NAFI, expressed concern that the 
testing required by the proposed rule would not adequately prepare UAS 
operators to effectively communicate with ATC. The American Association 
of Airport Executives and the Associated General Contractors of America 
suggested that the FAA develop a protocol or guidance for UAS operators 
when communicating with ATC. NBAA asserted that if ATC requires two-way 
radio capability in their approval, the remote pilot should be required 
to hold at least a sport pilot airman certificate to ensure familiarity 
with ATC phraseology.
    Transport Canada asked whether FAA considered mandating that the 
UAS operator develop and adhere to procedures for loss of positive 
control that include communications with air traffic control. 
Similarly, CAPA said that the FAA should require procedures for 
operators of small UAS to notify the appropriate ATC agency when the 
UAS operator has lost positive control.
    This rule does not mandate a specific method of communication with 
ATC. In its evaluation of a request to fly in controlled airspace, an 
ATC facility may request two-way radio communications as a condition of 
approval for that request. ATC's evaluation may include assessing the 
experience and ability of the remote pilot in using proper phraseology. 
Imposing a general sport pilot certificate requirement would not ensure 
the appropriate knowledge and skills because sport pilots are not 
permitted to operate in class B, C, or D airspace without an additional 
endorsement, and would not necessarily have the radio training or 
experience by virtue of holding a sport pilot certificate. 
Additionally, there are several means outside of an airman certificate 
that may provide proper ATC communication experience, such as airport 
ground personnel or air traffic controller training.
    The FAA has not mandated specific coordination with ATC for manned 
or unmanned aircraft during a loss-of-control event. As described in 
the

[[Page 42145]]

introduction to the FAA Safety Team (FAAST) course ALC-40,\109\ a 
common rubric used by pilots is aviate, navigate, communicate. In other 
words, during an emergency, a pilot should maintain control of the 
aircraft, know where he or she is and where he or she intends to go, 
and let someone know his or her plans. To require a communication task 
during an emergency may distract a pilot from these priorities and 
possibly create additional risk. Proper flight planning by a remote 
pilot in command includes an assessment of the risk of violating 
regulatory airspace, and incorporation of mitigations and contingencies 
commensurate with that risk.
---------------------------------------------------------------------------

    \109\ FAA Safety Team Course ALC-40: Aviate--Navigate--
Communicate.
---------------------------------------------------------------------------

    Prioria Robotics said the FAA should consider blanket access to 
airspace below 500 feet for small and micro class unmanned vehicles of 
less than 15 pounds, with exceptions for within one mile of airports. 
Prioria Robotics also recommended that only vehicles larger than 15 
pounds be subject to airspace restriction. One individual stated that 
operations below 100 feet and farther than 3 miles from an airport in 
class B and C airspace should be allowed without ATC involvement. 
Similarly, the National Association of Broadcasters, the National Cable 
& Telecommunications Association, and the Radio Television Digital News 
Association, commenting jointly, suggested a sliding scale for 
operations that would require lower altitudes when closer to an airport 
for operations without ATC approval. DJI suggested that in lieu of 
restrictions in certain classes of airspace, the FAA should consider 
adopting an approach akin to the one that the agency has adopted in 14 
CFR part 77, in which maximum altitude increases as distance to an 
airport increases.
    The FAA disagrees with the assumption that the weight of an 
unmanned aircraft is the sole safety concern when operating in 
controlled airspace. The FAA designates the various classes of 
controlled airspace to allow ATC to provide separation services to 
instrument flight rules (IFR) and, in the case of class B and C 
airspace, VFR traffic. Controlled airspace surface areas have a high 
number of arriving and departing aircraft at altitudes below 500 feet 
and rely on ATC to assess and mitigate the associated risk.
    Trying to create a sliding scale that would require lower altitudes 
closer to an airport for operations without ATC approval would be 
complex because the slope would not be uniform. Instead, the slope 
would be shallower in the path of approach or departures, and steeper 
away from traffic flows. Each airspace has unique characteristics, and 
individual small UAS operations are different, making it impossible to 
establish a uniform standard. Allowing the local ATC facility to 
determine the feasibility of a small UAS operation is an efficient 
means to mitigate the risks involved in operating in controlled 
airspace.
    The Colorado Agricultural Aviation Association, the City of Phoenix 
Aviation Department, and PlaneSense and Cobalt Air, commenting jointly, 
suggested that a NOTAM be issued when small UAS are flying in class B, 
C, D, and E airspace.
    The FAA disagrees with this suggestion because, in many instances, 
a NOTAM would not provide any additional level of safety. For example, 
neither a very low altitude operation (e.g., below 50 feet), nor a 
flight that is shielded by a taller structure that would preclude 
manned aircraft from operating in that area, would benefit from a 
NOTAM. In both instances there is a low probability that manned 
aircraft will be present in those areas. The FAA has a responsibility 
to keep NOTAMs relevant to pilots, and NOTAMs that do not provide an 
additional level of safety may create information ``clutter'' during a 
preflight briefing. A facility may issue a NOTAM for the impacted 
timeframe after giving permission to a remote pilot to operate in 
controlled airspace, if appropriate.
    NOAA requested more details about requirements for civil UAS 
operated in the Mode C veil. In response, the FAA notes that operations 
conducted under part 107 do not need to comply with part 91 unless 
explicitly directed by part 107. The transponder requirement in the 
mode C veil (14 CFR part 91.215(b)(2)) is not required of part 107 
operations.
    NAFI asked what radio station license a small UAS operator would 
use on the aviation radio spectrum. In response, the FAA notes that 
licensing of radio stations is outside of its jurisdiction. The 
pertinent FCC guidance can be found in form 605 Schedule C (https://transition.fcc.gov/Forms/Form605/605c.pdf).
    Several commenters, including the American Association of Airport 
Executives, the Hillsborough County Aviation Authority, and the 
Metropolitan Airports Commission, suggested that the FAA require remote 
pilots wishing to operate in class B, C, D, or E airspace to also 
notify the appropriate airport operator. The City and County of Denver, 
Colorado, and the City of Phoenix Aviation Department added that UAS 
operators should be required to seek authorization from both ATC and 
the airport operator at least two full business days prior to small UAS 
operations in controlled airspace.
    An airport operator does not have responsibility for air traffic or 
activities outside airport property. The FAA has been tasked with 
integrating UAS operations into the NAS, and notes that manned aircraft 
do not have a corresponding requirement to notify airport management. 
The ATC facility is the proper focal point for approval and 
notification for small UAS operations in controlled airspace under this 
rule.
    The FAA does not agree that remote pilots must seek permission from 
an ATC facility at least two full business days prior to the small UAS 
operations. As discussed previously, the timeframe for ATC to process 
permission requests will vary based on the ATC facility, the airspace, 
and the small UAS operation. In some instances it may take less than 
two full business days to process a permission request and, as such, a 
requirement to submit the permission request two days in advance would 
be unnecessarily burdensome.
    The Professional Helicopter Pilots Association said operations in 
class B airspace should not be allowed without a transponder for 
operation above at least 200 feet AGL.
    Because part 107 operations are constrained to visual line of 
sight, they are confined to a limited area known to ATC. Requiring a 
transponder in class B airspace for all operations over a certain 
altitude would place a burden on the small UAS operation that might not 
provide any additional safety because all manned traffic (except under 
certain SFRA procedures) \110\ is required to be in radio communication 
and under the direct control of ATC. ATC would deny a small UAS flight 
operating under part 107 if lack of a transponder created an 
unacceptable risk for that operation.
---------------------------------------------------------------------------

    \110\ As it pertains to this discussion, Special Flight Rules 
Areas are areas of tightly constrained altitude and path where VFR 
aircraft can traverse Class B airspace without receiving a clearance 
or talking to ATC.
---------------------------------------------------------------------------

    The Human Factors and Ergonomics Society expressed concern that UAS 
might inadvertently enter class B airspace. ALPA was concerned about 
the ability of a small UAS pilot/operator to correctly identify 
specific airspace areas and make the correct determination of whether 
operations are permitted or must be coordinated with ATC.
    This risk remains unchanged regardless of the restrictions imposed 
on

[[Page 42146]]

operating in class B airspace. Other than the inner surface areas, 
there are very few instances where the floor of class B airspace is 
less than 1,000 feet above ground level, and therefore a vertical 
intrusion would be rare. The lateral boundaries of Class B airspace can 
be easily ascertained and avoided with proper planning of the 
operation. Airspace configuration is a knowledge area that will be 
tested for remote pilot certification, and a remote pilot should be 
aware of proximity of the unmanned aircraft to more restrictive 
airspace. Remote pilot certificate holders will also be regularly 
tested on their knowledge of airspace configuration, either as part of 
their flight review (for part 61 pilot certificate holders) or when 
they take the recurrent knowledge test (for non-part-61 certificate 
holders). In addition, applicants for a remote pilot certificate who do 
not hold a part 61 pilot certificate will be required to pass an 
initial aeronautical knowledge test that includes knowledge of 
airspace, airspace operating requirements, and the use of aeronautical 
charts. Pilots who hold a part 61 pilot certificate with an aircraft 
category and class rating will not have to take the initial 
aeronautical knowledge test, but they will have acquired the pertinent 
knowledge in order to obtain their part 61 pilot certificate.
b. Operations in Class A Airspace
    The NPRM proposed prohibiting small UAS operations in Class A 
airspace. Class A airspace starts at 18,000 feet mean sea level and 
extends up to 60,000 feet.\111\ This rule will not adopt the proposed 
prohibition because a small unmanned aircraft will be unable to access 
Class A airspace without violating the other operational restrictions 
of part 107.
---------------------------------------------------------------------------

    \111\ 14 CFR 71.33.
---------------------------------------------------------------------------

    The Mid-Atlantic Aviation Partnership, Crew Systems, and three 
individual commenters questioned the need for specifically prohibiting 
operations in Class A airspace. One of the individual commenters did 
not have an objection to the proposed restriction, but stated that the 
other operational restrictions in the NPRM would make it impossible to 
operate in Class A airspace. Another individual commenter pointed out 
that the only location where an operation could meet all of the 
operational restrictions proposed in the NPRM and still be in Class A 
airspace is near the summit of Mt. McKinley. This commenter suggested 
that an explicit restriction on Class A airspace operations was 
unnecessary, as no one would bother to carry a small UAS up a mountain 
in order to fly it.
    The FAA agrees with the commenter who stated that other operational 
restrictions in the NPRM would make it impossible to operate in Class A 
airspace. Title 14 CFR 71.33(b) designating Class A airspace in Alaska 
specifically excludes the airspace less than 1,500 feet above the 
surface of the earth. This eliminates the possibility of a small UAS 
operating under part 107 from reaching Class A airspace given the 
altitude limitations of the rule. Consequently, this rule will not 
adopt the proposed Class A airspace restriction.
c. Prohibited or Restricted Areas
    The NPRM proposed prohibiting small UAS operations in prohibited 
and restricted areas without permission from the using or controlling 
agency, as applicable. Prohibited and restricted areas are designated 
in 14 CFR part 73. The proposed provision concerning prohibited and 
restricted areas was similar to the part 91 restriction on operations 
in these areas, and did not include any new UAS-specific prohibited or 
restricted areas.\112\ After careful consideration of the comments, the 
FAA will adopt the provisions as proposed.
---------------------------------------------------------------------------

    \112\ See 14 CFR 91.133.
---------------------------------------------------------------------------

    The FAA establishes prohibited and restricted areas when necessary 
to prohibit flight over an area on the surface in the interest of 
national security or welfare. As discussed in section III.J.2 of this 
preamble, several commenters requested that the FAA establish 
prohibited or restricted airspace over energy infrastructure 
facilities, citing national security concerns as the basis for their 
comments. However, four commenters also cited safety concerns when 
suggesting that the FAA establish such restrictions.
    Southern Company and Edison Electric Institute, individually and 
jointly with NRECA and APPA, explicitly cited safety reasons for 
restricting operations near energy infrastructure facilities. Edison 
Electric Institute raised concerns regarding UAS operations over 
critical energy infrastructure, including electric transmission and 
distribution facilities, power generation facilities, transmission 
lines, and substations. The commenter noted that the FAA currently has 
a TFR for manned aircraft over generation facilities, which the 
commenter said should be extended to cover UAS. The commenter argued 
that the FAA should extend the TFR to small UAS because of ``the 
obvious safety factor involved with any activity near high voltage 
equipment and the attendant economic loss that comes from the possible 
loss of electric distribution.'' EEI also submitted a separate, joint 
comment with NRECA and the APPA, which reiterated the same concerns.
    Southern Company proposed that the FAA prohibit small UAS 
operations over power generation and transmission facilities, except by 
the utility or third parties acting on behalf of the utility. The 
commenter stated that the current NOTAM advising pilots to avoid 
overflight of power-generation facilities, including nuclear power 
plants, does not adequately address the potential risk small UAS pose. 
The commenter argued that, ``[b]ecause of the small size, low-cost, 
great availability, and unmanned nature of small UAS, little deters 
small-UAS operators, as opposed to their manned aircraft counterparts, 
from operating over power generation and transmission facilities.'' The 
commenter further argued that, although small UAS are capable of safe 
operation in close proximity to most structures, operation next to 
power generation and transmission facilities may be subject to 
invisible hazards, such as fire hazards caused by light and heat 
produced from an electric arc, that may be unfamiliar to non-utility 
operators.
    Consumers Energy Company and the American Fuel & Petrochemical 
Manufacturers also addressed the safety of energy infrastructure. 
Consumers Energy Company said the FAA should consider expressly 
identifying a zone of no small UAS operation within a specified 
distance from electrical facilities (substations, power lines, and 
utility poles), except for small UAS operations by the facilities' 
owners. The commenter said that such a rule would reduce the likelihood 
of small UAS operations negatively affecting electrical facilities and 
continue to ensure the safety of the United States electric grid.
    The American Fuel & Petrochemical Manufacturers complained that the 
NPRM does not identify--much less address--issues of safety and 
security arising from certain scenarios that are a serious issue for 
its members, including an accidental crash into a facility, such as a 
refinery. The commenter expressed concern that the airspace and 
geographic limitations in the proposed rule are not sufficient to 
ensure the safety and security of critical infrastructure facilities, 
and therefore requested that the final rule prohibit the unauthorized 
use, or unauthorized operation, of a small UAS over all oil and gas 
production, handling, transport, and processing facilities.

[[Page 42147]]

    EEI expressed concern that FDC NOTAM 4/0811 advising pilots to 
avoid the airspace over, or in proximity to, power plants would prevent 
electric utility companies from conducting small UAS flights around 
their own facilities.
    Restricted airspace is designated when the FAA determines it is 
necessary to confine or segregate activities hazardous to 
nonparticipating aircraft. The FAA does not create special use airspace 
applicable to only one particular airframe or aircraft type. The 
public's right of free transit through the airspace includes the users 
of unmanned aircraft. Accordingly, the FAA declines commenters' 
suggestions to create UAS-specific restricted airspace around certain 
facilities. However, the FAA acknowledges commenters' concerns. In 
response to these concerns, the FAA emphasizes FDC NOTAM 4/0811, which 
states that ``. . . to the extent practicable, pilots are strongly 
advised to avoid the airspace above, or in proximity to such sites as 
power plants (nuclear, hydro-electric, or coal), dams, refineries, 
industrial complexes, military facilities and other similar facilities. 
Pilots should not circle as to loiter in the vicinity over these types 
of facilities.'' \113\ This NOTAM applies with equal force to pilots of 
manned and unmanned aircraft. In response to EEI's concern, the FAA 
notes that FDC NOTAM 4/0811 is advisory and thus, does not constitute a 
regulatory prohibition.
---------------------------------------------------------------------------

    \113\ FDC 4/0811, June 18, 2007, at 2106.
---------------------------------------------------------------------------

d. Areas Designated by Notice to Airmen
    The NPRM proposed to prohibit operation of small UAS in airspace 
restricted by NOTAMs, including NOTAMs issued to designate a TFR, 
unless authorized by ATC or a certificate of waiver or authorization. 
After reviewing comments on this issue, the FAA will change the method 
by which remote pilots may gain permission to operate in airspace 
restricted by NOTAMs. The final rule will require that small UAS 
operators comply with the provisions of Sec. Sec.  91.137 through 
91.145, and Sec.  99.7, as applicable.
    Southern Company commented that electric utility companies should 
be excepted from TFRs under Sec. Sec.  91.137(a)(2) and (a)(3) to be 
able to expeditiously restore power during natural disasters. The 
Washington State Department of Transportation, Aviation Division, 
recommended that small UAS be allowed to operate in airspace restricted 
by NOTAMs, including TFRs, if the aircraft is equipped with position-
reporting transmission capability, if two-way communication can be 
maintained between the operator and ATC, and if the appropriate level 
of permission to enter the airspace has been obtained.
    TFRs are implemented for a number of reasons, from protecting 
aircraft from hazards on the ground or other sight-seeing aircraft, to 
providing a safe environment for the operation of disaster relief 
aircraft. The Washington State Department of Transportation, Aviation 
Division, did not describe how a UAS equipped with position-reporting 
transmission capability and two-way radio communication would allow for 
safe operation in a TFR. NOTAMs contain time-critical aeronautical 
information that is either temporary in nature or not sufficiently 
known in advance to permit publication on aeronautical charts or other 
publications.\114\ NOTAMs are available to the public on the FAA's Web 
site.\115\ In response to Southern Company's comment, the FAA notes 
that NOTAMs exist to address hazards in the restricted airspace, and 
allowing an aircraft to enter TFRs based only on its mission does not 
address the hazard that warranted the airspace restriction.
---------------------------------------------------------------------------

    \114\ See FAA Aeronautical Information Manual, para. 5-1-3.
    \115\ See, e.g., https://www.notams.faa.gov/dinsQueryWeb/ and 
http://www.faa.gov/pilots/flt_plan/notams/.
---------------------------------------------------------------------------

    However, these comments raise the question of whether the proposed 
rule needlessly conflicted with the NOTAM provisions in part 91. Part 
91 contains various types of NOTAMs, and the requirements to gain 
permission differ accordingly. For example, Sec.  91.137(b) requires an 
aircraft to be participating in hazard relief activities under the 
direction of the official in charge of on-scene emergency response 
activities in order to operate within an area for which the specified 
NOTAM has been issued.\116\ Section 91.137(c) contains a number of 
conditions, at least one of which must be met in order to operate 
within an area for which the specified NOTAM has been issued.\117\ 
Conditions under Sec.  91.137(c) include that the aircraft be carrying 
law enforcement or media personnel, or the aircraft is operating under 
an ATC-approved IFR flight plan.\118\ Conversely, a Sec.  91.141 TFR in 
the proximity of Presidential and other parties has no exceptions other 
than those stated in the NOTAM.\119\
---------------------------------------------------------------------------

    \116\ 14 CFR 91.137(b).
    \117\ 14 CFR 91.137(c).
    \118\ 14 CFR 91.137(c)(2), (3), (5).
    \119\ 14 CFR 91.141.
---------------------------------------------------------------------------

    These provisions conflict with the proposed language in the NPRM 
that would allow operations in airspace restricted by NOTAM with ATC or 
COA permission. In considering this issue, the FAA has identified no 
UAS-specific concerns that would require treating small UAS 
differently, for TFR purposes, than aircraft operating under part 91. 
Thus, the FAA has amended the language of Sec.  107.47 to require 
compliance with Sec. Sec.  91.137 through 91.145 or Sec.  99.7.
    Additionally, the FAA notes that part 91 subpart J lists the 
provisions under part 91 that are waivable, and describes the process 
to request a waiver.\120\ Because small UAS remote pilots will be 
subject to the part 91 provisions described above, the waiver 
provisions and process described in part 91 subpart J will also apply 
should a remote pilot wish to seek a waiver from the applicable part 91 
provisions.
---------------------------------------------------------------------------

    \120\ See 14 CFR 91.903, 91.905.
---------------------------------------------------------------------------

    The Department of Defense (DOD) through its Policy Board on Federal 
Aviation (PBFA) submitted a comment on protecting certain military and 
Federal law enforcement facilities, recommending that ``[t]he FAA 
Administrator classifies the airspace below 500 feet Above Ground Level 
(AGL) or within 2000 horizontal feet of a military installation (as 
defined in 10 U.S.C. 2801(c)(4)), or any buildings, grounds or property 
owned, occupied or secured in whole or in part by any Federal law 
enforcement or national security agency, as `National Defense Airspace 
Area' in accordance with 49 U.S.C. 40103(b)(3).'' \121\ In their 
comments, the PBFA also requested that for small UAS operations within 
a military training route (MTR) or military operations area (MOA), that 
small UAS operators publish a NOTAM and notify the MTR/MOA scheduler at 
least 24 hours in advance.
---------------------------------------------------------------------------

    \121\ DOD Policy Board on Federal Aviation comment at 5.
---------------------------------------------------------------------------

    The FAA implements the National Defense Airspace mentioned above as 
prohibited and restricted areas. These areas are created by rulemaking 
actions and charted on VFR and IFR charts. A prohibited area would 
prevent flight of all aircraft, manned and unmanned, including aircraft 
operated by the agency occupying the facility. In addition, a 
prohibited area is only established by the FAA over those areas 
demonstrating a need to prohibit all flight generally due only to 
national security concerns, a standard that is currently met by only 
eight areas in the United States. PBFA's requested

[[Page 42148]]

language would have the effect of expanding the number of areas 100-
fold.
    A restricted area is also not appropriate because FAA Order 7400.2 
defines the purpose of a restricted area as ``. . . necessary to 
confine or segregate activities considered hazardous to 
nonparticipating aircraft.'' \122\ Examples of hazardous activities in 
this context are live weapons fire, non-eye-safe lasers, and explosive 
demolition. The PBFA comment does not claim these facilities meet these 
criteria.
---------------------------------------------------------------------------

    \122\ FAA Order 7400.2.
---------------------------------------------------------------------------

    The FAA also declines to impose additional NOTAM requirements on 
small UAS operations. The NOTAM system is used to alert pilots of 
conditions or situations in the NAS that could present a hazard to 
aircraft. Historically, the FAA has used a NOTAM requirement in the 
COAs it issued for UAS operations. This was appropriate because small 
UAS operations were outside the regulatory structure that was then in 
place, and, while not inherently hazardous, small UAS flights required 
exemption or waiver from a number of FAA regulations. Because these 
operations deviated from existing FAA regulations, a NOTAM was an 
acceptable means to notify pilots of the activity. However, with part 
107, the FAA is bringing a subset of UAS operations within the FAA 
regulatory structure. Civil, public, and military pilots are expected 
to be familiar with regulations affecting their flight, including the 
possibility of encountering UAS activity below 400 feet. Therefore, 
requiring a NOTAM would not be appropriate.
    UAS remote pilots must be aware of their location and operating 
environment in relation to MTRs and MOAs. As part of their see and 
avoid responsibilities, remote pilots must use extreme caution when 
operating through an MTR or MOA. Because of the high speed of some 
military aircraft, the necessary reaction time will be substantially 
less in an MTR or MOA. Checking the NOTAM system and/or the responsible 
Flight Service Station for activity in these areas will provide 
information to a remote pilot that will help ensure a safe flight.
e. Operations in Class G Airspace
    The FAA did not include any discussion of airports in Class G 
airspace in the NPRM and it did not propose any regulatory text to 
restrict small UAS operations in the vicinity of airports in class G 
airspace. Class G airspace is considered uncontrolled and ATC does not 
have authority or responsibility for separation of traffic. For 
operations in the vicinity of non-towered airports located in class E 
surface areas, the remote pilot in command must obtain prior permission 
from Air Traffic Control. After further review, the FAA will include a 
provision in the final rule that prohibits any small unmanned aircraft 
operations that interfere with operations and traffic patterns at any 
airport, heliport, or seaplane base.
    Several commenters, including Trimble Navigation and NAMIC, 
supported allowing operations in class G airspace, without additional 
comment regarding operations in the vicinity of airports in class G.
    AOPA and GAMA recommended prohibiting small UAS operations within a 
minimal accepted horizontal distance from airports in Class G airspace, 
but they did not recommend a specific distance. NBAA suggested that FAA 
restrict operations within a 3-mile radius of airports in class G 
airspace. The Airline Pilots Association and Hillsborough County 
Aviation Authority recommended restricting operations within a 5-mile 
radius of airports. Several individual commenters also recommended a 
prohibition of small UAS in the vicinity of airports.
    The FAA agrees with commenters that supported the integration of 
small UAS operations with existing aeronautical operations in 
uncontrolled class G airspace because part 107 has specific risk 
mitigation and hazard reduction provisions that facilitate integration. 
First, small UAS pilots will be required to pass initial aeronautical 
knowledge testing before receiving a part 107 airman certificate. This 
knowledge testing will include operations in class G airspace. With 
issuance of the remote pilot certificate, the pilot will have the 
authority and responsibility of a remote pilot in command. The remote 
pilot in command will also be directly responsible for, and will be the 
final authority as to the operation of the small unmanned aircraft 
system. Finally, the remote pilot in command will be required to ensure 
that the small unmanned aircraft will pose no undue hazard to other 
aircraft, people, or property in the event of a loss of control of the 
aircraft for any reason.
    The FAA acknowledges, however, that there is a risk associated with 
close operations between manned and unmanned aircraft. Therefore, this 
rule will include a performance-based approach to integrating small 
unmanned aircraft near airports, heliports, and seaplane bases. Because 
the NPRM did not contemplate prohibiting operations within the vicinity 
of an airport in class G airspace, the FAA will not restrict small UAS 
operations within a specified distance from an airport. Rather, in 
response to concerns regarding the integration of small UAS and manned 
aircraft, this rule will prohibit remote pilots from operating their 
small unmanned aircraft in a manner that interferes with operations and 
traffic patterns at airports, heliports, and seaplane bases.
    While a small unmanned aircraft must always yield right of way to a 
manned aircraft, a manned aircraft may alter its flight path or delay 
its landing or take off in order to avoid a small UAS that may present 
a potential conflict or otherwise affect the safe outcome of the 
flight. For example, an unmanned aircraft hovering 200 feet above a 
runway may cause a manned aircraft holding short of the runway to delay 
take off, or a manned aircraft on the downwind leg of the pattern to 
delay landing. While the unmanned aircraft in this scenario would not 
pose an immediate traffic conflict to the aircraft on the downwind leg 
of the traffic pattern or to the aircraft intending to takeoff, nor 
would it violate the right-of-way provision of Sec.  107.37(a), the 
small unmanned aircraft would have interfered with operations and 
traffic patterns at an airport.
    In order to avoid interfering with operations in a traffic pattern, 
remote pilots should avoid operating in the traffic pattern or 
published approach corridors used by manned aircraft.\123\ When 
operational necessity requires the remote pilot to operate at an 
airport in uncontrolled airspace, the remote pilot should operate the 
small unmanned aircraft in such a way that the manned-aircraft pilot 
does not need to alter his or her flight path in the traffic pattern or 
on a published instrument approach in order to avoid a potential 
collision. Because remote pilots have an obligation to yield right of 
way to all other aircraft and avoid interfering in traffic pattern 
operations, the FAA expects that most remote pilots will avoid 
operating in the vicinity of airports because their aircraft generally 
do not require airport infrastructure, and the concentration of other 
aircraft increases in the vicinity of airports.
---------------------------------------------------------------------------

    \123\ The official source regarding airport traffic patterns is 
the Airport/Facility Directory (A/FD). Instrument Approach 
Procedures are published by the FAA and can be found in U.S. 
Terminal Procedures Publications (TPPs), online from the FAA at 
https://www.faa.gov/air_traffic/flight_info/aeronav/digital_products/dtpp/, or in numerous third-party sources.
---------------------------------------------------------------------------

    The FAA adds this performance-based approach requirement in 
response to concerns that small UAS operations

[[Page 42149]]

may present a hazard to manned aircraft operating at low altitudes in 
the vicinity of airports in both controlled and uncontrolled airspace. 
Due to the requirements for remote pilots to not operate in a careless 
or reckless manner and to yield the right of way to all other aircraft, 
the FAA does not consider it necessary to prohibit small UAS operations 
in the vicinity of an airport in uncontrolled airspace. Like 
ballooning, skydiving, banner towing, and other non-traditional 
aeronautical activities, the FAA expects that remote pilots will work 
with airport operators to identify ways to safely integrate small UAS 
operations into the flow of other operations at the airport.
    Experimental Aircraft Association, National Association of State 
Aviation Officials, Minneapolis-Saint Paul Metropolitan Airports 
Commission, US Hang Gliding & Paragliding Association, the Permanent 
Editorial Board of the Aviators Model Code of Conduct initiative, and 
several individual commenters said that FAA should require operators 
intending to fly small UAS within 5 statute miles of airports in Class 
G airspace to notify airport authorities in advance of the operations. 
These commenters said that such notification would allow airport 
authorities, in turn, to notify aircraft in proximity of the airport of 
the small UAS activity. City and County of Denver, Colorado and County 
of Los Angeles said that Airport Operators should be permitted to limit 
small UAS operations on and around airports.
    Airport operators have the proprietary right to operate their 
airport in a safe and efficient manner. Under 49 U.S.C. 40103, the FAA 
has the sole authority to regulate airspace, including airspace 
overlying an airport. While airport operators have the ability to 
manage operations on the surface of the airport, airport operators may 
not regulate the use of airspace above and near the airport. In an 
effort to safely integrate small unmanned aircraft and manned aircraft 
at an airport, airport operators may recommend certain areas where 
small UAS operate, in order to avoid conflicts with manned aircraft. 
The FAA does not consider the notification of airport operators to 
significantly enhance the safety of integration with existing 
operations. The requirement for notification creates a burden on the 
airport operator with little benefit to users of the airport, because 
the airport operator would have no requirement to disseminate knowledge 
of small UAS operations to other airport users.
    Instead, remote pilots should adhere to operational recommendations 
and discontinue operations if the potential for interference arises. If 
the concentration of air traffic at an airport results in the 
likelihood of a small UAS interfering with operations, the remote pilot 
should avoid operating at that airport. Remote pilots who do not hold a 
part 61 pilot certificate will be required to pass initial and 
recurrent aeronautical knowledge tests that include specific knowledge 
of airport operations. Part 61 pilot certificate holders acquired this 
knowledge when they obtained their part 61 pilot certificate.
6. Inspection, Maintenance, and Airworthiness Directives
    This section discusses the maintenance and inspection requirements 
applicable to a small UAS operation. Those requirements will consist 
of: (1) Conducting a preflight check prior to each flight to ensure 
that the small UAS is in a condition for safe operation; and (2) 
discontinuing flight if the small UAS ceases being in a condition for 
safe operation. Additionally, to mitigate risks associated with 
possible loss of positive control, this rule will also require the 
remote pilot in command to, as part of the preflight inspection, ensure 
that all control links between the control station and the small 
unmanned aircraft are working properly. Finally, this section will 
explain why this rule will not include airworthiness-directive 
requirements in part 107.
a. Inspections and Maintenance
    As discussed in section III.J.3 of this preamble, pursuant to 
section 333(b)(2) of Public Law 112-95, the FAA has determined that a 
small UAS will not be required to obtain airworthiness certification if 
satisfying the provisions of part 107. However, without an 
airworthiness certification process, the FAA still needs to provide 
criteria for small UAS to meet that support safe operations. In 
considering how to address this issue, the FAA notes that existing 
regulations applicable to manned civil aircraft require particular U.S. 
airworthiness certificated aircraft to be inspected every 12 
months.\124\ Maintenance that might be necessary as a result is 
governed primarily by the provisions of 14 CFR part 43. Part 43 
requires that the inspection examine every system and component of the 
aircraft in detail to identify present conditions that may render the 
aircraft as unairworthy.\125\ If the inspection reveals any hazardous 
characteristics that would render the aircraft as unairworthy, then 
maintenance, conducted pursuant to the regulations of part 43, must be 
performed in order to approve the return of an aircraft to an airworthy 
condition.
---------------------------------------------------------------------------

    \124\ See 14 CFR 91.409.
    \125\ See 14 CFR part 43, Appendix D (scope and detail of items 
as applicable to the particular aircraft) to be included in Annual 
and 100 hour inspections. Note: These items listed constitute 
inspection of the complete aircraft only and does not include 
interrelated system components and equipment.
---------------------------------------------------------------------------

    In place of the requirements of part 43, the NPRM proposed to 
create a maintenance and inspection framework that corresponds with the 
significantly reduced risk posed by small UAS operations conducted 
under part 107. First, the NPRM proposed to require, in Sec.  107.21, 
that the operator must maintain the small UAS in a condition for safe 
operation and inspect the small UAS prior to each flight to determine 
it is in a condition for safe operation. Second, the NPRM proposed to 
prohibit a person from operating a small UAS unless that UAS is in a 
condition for safe operation. Third, the NPRM proposed to require the 
operator to discontinue the flight of the small unmanned aircraft when 
he or she knows or has reason to know that continuing the flight would 
pose a hazard to other aircraft, people, or property. Finally, to 
reduce the possibility of a malfunctioning control link, the NPRM 
proposed to require that, prior to flight, the operator must ensure 
that all links between the control station and the small unmanned 
aircraft are functioning properly.
    For the reasons discussed below, this rule will require the remote 
pilot in command to check the small UAS to determine whether it is in a 
condition for safe operation. The remote pilot will be prohibited from 
commencing flight if the small UAS is not in a condition for safe 
operation. Additionally, the remote pilot in command will be required 
to discontinue the flight of the small unmanned aircraft if he or she 
knows or has reason to know that the small UAS is no longer in a 
condition for safe operation. This rule will also finalize as proposed 
the requirement that the remote pilot in command ensure, prior to 
flight, that all control links between the control station and the 
small unmanned aircraft are functioning properly.
i. Preflight Check and Maintenance Requirements
    Most commenters, including Google, AOPA, the Property Drone 
Coalition and others, supported the proposed preflight inspection 
requirement. However, several commenters proposed

[[Page 42150]]

changes to the requirement or requested clarification regarding what 
the inspection should entail. Two individual commenters expressed 
opposition to the preflight inspection requirement and suggested that 
the requirement is burdensome or unnecessary. One individual commented 
that it would be impractical to perform a meaningful inspection before 
every flight, since many UAS flights last only a few minutes each, and 
there is a need to minimize delay between flights. That commenter 
proposed instead that the FAA require only one thorough pre-flight 
inspection prior to the first flight of the day, and that the first 
flight of the day should be a test flight. Another individual commenter 
said a preflight inspection before every flight ``could become a hassle 
and may be unnecessary,'' and that a monthly inspection would be more 
suitable.
    This rule will require the remote pilot in command to conduct a 
preflight check prior to each flight to determine if the small UAS is 
in a condition for safe operation. An integral ground functional check 
as part of the preflight inspection will include a check of the 
associated data link equipment for proper operation. This is a check of 
the control link functionality between the ground control station and 
the small unmanned aircraft. If the preflight check reveals that the 
small UAS is not in a condition for safe operation or that the control 
link is not functioning properly, the remote pilot in command will be 
prohibited from commencing the flight operation until the small UAS is 
in a condition for safe operation and any and all control link 
deficiencies have been corrected.
    To satisfy preflight check requirements, the remote pilot in 
command must check the entire unmanned aircraft and associated system 
components and equipment for visible defects such as broken or damaged 
parts, loose fasteners or wires, leaking fluids, and general wear and 
tear.\126\ The remote pilot in command is responsible for making a 
condition for safe operation determination of the small UAS. A complete 
inspection of the aircraft and associated system equipment will include 
a functional ground check as a test to verify all control link systems 
are properly responding to control inputs and are otherwise functioning 
properly. The systems and equipment that could be checked in this 
manner could, depending on the complexity of the small UAS, include the 
engine, flight controls, landing gear, internal/external payload, link 
checks, ground control station, signal flow, auxiliary equipment rack, 
video dissemination, power requirements, and software configuration 
management. It is highly recommended that the remote pilot in command 
augment a complete small UAS preflight check by following manufacturer-
suggested inspections and checks prior to conducting flight operations. 
The FAA will also issue guidance providing additional examples and best 
practices for how to properly conduct a preflight check to ensure that 
the small UAS is in a condition for safe operation.
---------------------------------------------------------------------------

    \126\ The examples used in this preamble section are not 
intended to be exhaustive.
---------------------------------------------------------------------------

    The FAA notes commenters' concern that a mandatory check conducted 
prior to flight could be burdensome. However, the FAA anticipates that 
through repetition, the efficiency of the preflight check sequence will 
increase resulting in no more than a few minutes to complete the 
preflight check if the pertinent systems are functioning properly. As 
such, the FAA declines to remove the preflight-check requirement, as 
this check will serve to detect and mitigate the risks imposed by 
defects such as inoperative or deteriorating small UAS systems and 
components that may render adverse flight characteristics. 
Additionally, recurring checks will serve to identify equipment 
deficiencies that have occurred since the previous preflight 
inspection.
    An individual commenter suggested that a test-flight is necessary 
because certain components and systems, such as avionics and control 
systems, cannot be tested on the ground. In response, the FAA notes 
that many of the systems that are tested through a test-flight cannot 
currently be tested without introducing additional risk into the 
operation. For example, flight termination (e.g. ``return to home'') 
and fail-safe systems are designed to trigger when the control link 
between the small unmanned aircraft and the control station is lost. In 
order to do a flight test of these systems, the remote pilot in command 
may need to deliberately sever the control link between the small 
unmanned aircraft and the control station during a test flight to see 
how the unmanned aircraft responds. A deliberate loss of positive 
control may introduce unnecessary risk to safe flight operation in the 
NAS. In addition, requiring flight testing prior to each flight would 
also impose an additional burden on the remote pilot in command in the 
form of time and power consumption. Accordingly, this rule will not 
impose a flight testing requirement.
    DronSystems stated that a preflight inspection is unnecessary, 
asserting that a remote pilot could safely forego a preflight 
inspection by instead using ``sophisticated asset management tools'' or 
``UAS self-diagnostic'' equipment.
    The FAA is aware of no data showing that technology currently 
exists that could result in an equivalent level of safety to that 
attained by a visual and operational inspection conducted by the remote 
pilot in command. Visual and operational checks prior to each flight 
will serve as a vital safety practice essential for ensuring that the 
aircraft, control station, unmanned aircraft, and related integral 
systems are in a condition that will enable safe operation.
    A number of commenters expressed concern that the proposed 
maintenance and inspection requirements were not stringent enough. ALPA 
and several individual commenters asserted that a preflight inspection 
conducted by the remote pilot is insufficient to ensure safe operation, 
as it would be conducted in the absence of defined criteria on which 
the owner/operator can base a decision about airworthiness. ALPA 
further stated that in the absence of airworthiness certification 
requirements combined with tamper-proof equipage that limits the 
vertical and lateral movement of unmanned aircraft, there is no way to 
ensure that a small UAS is safe and reliable.
    Several commenters suggested that more formal maintenance and 
inspection requirements should be imposed on manufacturers and 
operators. The NextGen Air Transportation Program at NC State 
University said ``some statement of airworthiness from the 
manufacturer, a certified inspector, or system provider with a date 
evaluation should be a minimum requirement.'' The commenter also said 
that the aircraft should be tested for airworthiness every 2 years. The 
State of Nevada, the Nevada Institute for Autonomous System, and the 
Nevada FAA-designated UAS Test Site, commenting jointly, asserted that 
a preflight inspection ``clearly does not infer than an aircraft is 
airworthy,'' and said minimal standards should include lost link 
procedures and altitude determination. Other commenters similarly said 
small UAS should be required to have specific safety systems and 
protections. An individual commenter, who said self-certification 
establishes an unsafe precedent, said that UAS should be required to 
have redundant backup systems in place. That commenter said a standard 
airworthiness certificate may be

[[Page 42151]]

unnecessary for small UAS, and instead recommended an experimental-type 
certification, which would ensure an airworthiness review and reduce 
the excessive burden on manufacturers.
    An individual commenter said that allowing the operator to conduct 
a preflight inspection to certify airworthiness ``is a mistake.'' The 
commenter pointed out that for manned aircraft almost all of the 
equipment has to be periodically certified by an approved testing lab 
to ensure that it is still at manufacturer-issued standards. Without a 
similar requirement for small UAS, the commenter continued, the 
aircraft could have a modified airframe or propulsion system, the 
electric motors or batteries could be deteriorating, and the payload 
carrying capacity could be altered, among other concerns. Another 
individual commenter opposed allowing operators with no presumed 
specialized knowledge to make key safety determinations, and 
recommended the FAA conduct further cost-benefit analysis, ``with a 
specific focus on the magnitude of potential damage that might be 
inflicted by errantly operated small UAVs.''
    The FAA notes commenters' concern with regard to airworthiness but 
disagrees with the position that the maintenance and inspection 
requirements proposed in the NPRM need to be made more prescriptive in 
this rule. The proposed requirements are appropriate to the type of 
risk posed by small UAS operating under part 107. Specifically, as 
discussed throughout this preamble, small unmanned aircraft operating 
under part 107 will: (1) Weigh less than 55 pounds; (2) not carry any 
people onboard; and (3) operate within visual line of sight and other 
operational parameters that mitigate risk to other aircraft operating 
in the NAS, people, and property on the ground. Thus, a small unmanned 
aircraft operating under part 107 has been determined to pose a 
significantly lower risk than a manned aircraft that weighs hundreds or 
thousands of pounds and carries one or more people onboard that may be 
injured in the event of a mishap. Consequently, imposing a more 
prescriptive level of maintenance and inspection requirements on small 
UAS operating under part 107 is not justified in this rule.
    Completion of a preflight inspection of the small UAS prior to each 
flight will serve to mitigate risk in a manner appropriate for the risk 
posed by the small UAS operation. While this rule will not require 
small UAS to comply with part 43, the FAA encourages the use of 
certificated maintenance providers, which may include repair stations, 
holders of mechanic and repairman certificates, and persons working 
under the supervision of these mechanics and repairmen. Recommendation 
for the use of certificated maintenance providers is predicated on 
their heightened maintenance and inspection capabilities that may lend 
support to sustained conditions for safe operation of small UAS. 
Additionally, as discussed earlier, the FAA will publish guidance 
providing additional examples and best practices for how to ensure that 
a small UAS remains in a condition for safe operation.
    Several commenters, including NAAA, Reabe Spraying Service, and the 
University of North Dakota's John D. Odegard School of Aerospace 
Sciences urged the FAA to include a requirement that remote pilots keep 
maintenance records. NAAA stated that it disagrees ``with the agency's 
approach to abandon the aviation industry's longstanding requirement of 
proper recordkeeping and inspections in favor of accommodation for a 
new NAS entrant.'' The University of North Dakota's John D. Odegard 
School of Aerospace Sciences asserted that a review of the aircraft's 
maintenance history is necessary for a remote pilot to determine that 
the aircraft is in a safe condition for flight and that all 
manufacturer-suggested inspections, if any, are complied with. The 
commenter specifically recommended that, at a minimum, remote pilots be 
required to keep a permanent record of: (1) Component changes or 
replacements caused by inflight abnormalities; (2) command and control 
link frequency changes; (3) ground control station and aircraft 
software changes; and (4) airframe configuration changes which may 
affect the handling and performance characteristics of the aircraft.
    The Kansas State University UAS Program said the lack of required 
maintenance documentation will cause significant challenges in 
determining the causal factors associated with small UAS accidents that 
are investigated by the FAA and NTSB. The commenter recommended that 
the records requirement in Sec.  43.9 be applied to small UAS, with any 
necessary alterations ``to ensure the traceability of maintenance and 
approval of the aircraft for return to service.''
    The Washington State Department of Transportation, Aviation 
Division said documentation of maintenance should be required for small 
UAS operated over large assemblies of people, such as professional 
sporting events, large concerts, and ``similar environments where a 
safe landing area is likely unavailable.'' NetMoby suggested that 
operators should be required to log the results of each preflight 
inspection for inspection by the FAA if needed.
    Under Executive Order 12866, the FAA may ``adopt a regulation only 
upon a reasoned determination that the benefits of the intended 
regulation justify its costs.'' Imposing maintenance or preflight-check 
recordkeeping requirements, such as the ones suggested by the 
commenters, would likely result in a significant cost because the 
remote pilot in command would have to create new paperwork every time 
that he or she conducts a preflight check, or every time that any type 
of maintenance is conducted on the small UAS. At this time, the FAA 
does not have data to determine whether the safety benefits of 
additional documentation would be sufficient to justify this burden, 
especially in light of the significant safety mitigations already 
provided by the other provisions of part 107. Accordingly, at this 
time, the FAA declines to impose the suggested documentation 
requirements on small UAS operated under this rule.
    Boeing asked the FAA to provide a definition for the phrase ``safe 
operation.'' In the context of preflight check and maintenance 
requirements, the FAA has concluded that ``safe operation'' pertains to 
mechanical reliability, and is predicated on overall condition of the 
entire unmanned aircraft and integral system equipment relative to wear 
and deterioration. Determinations made of the overall condition of the 
small UAS includes an evaluation based on the make, model, age, type 
and completeness of continued maintenance and inspections of the 
aircraft and associated system equipment making up the entire UAS. Some 
examples of characteristics that may render a small UAS not in a 
condition for safe operation are: (1) Unsecure, damaged airframe 
structures affecting flight characteristics; (2) damaged primary flight 
control surfaces affecting flight control characteristics; (3) 
inoperative, intermittent propulsion system components; (4) 
inoperative, intermittent flight controls; (5) data link equipment 
failures, e.g., control outputs from ground control station not 
matching control inputs to aircraft flight controls; and (6) damaged or 
distorted propeller blades.
    The Permanent Editorial Board of the Aviators Model Code of Conduct 
Initiative stated that the rule should be expanded to require certain 
operational checks, such as hover-checks for multirotors and 
rotorcraft, arguing that

[[Page 42152]]

such checks serve an important safety purpose.
    There is a wide variety of small UAS and many of them use different 
systems that are constructed and function in different ways. As such, 
the specific tasks necessary to check whether safety-relevant 
components are functioning properly will vary between different small 
UAS. This rule will require the remote pilot in command to check at a 
minimum the control link and available power to complete the intended 
flight.\127\ However, beyond control link there may be many other 
systems and equipment, depending on the complexity of the small UAS, 
that may be necessary for safety of flight. The remote pilot in command 
will have to check those systems to ensure that they are functioning 
properly, but the specific tasks necessary to conduct these checks will 
be determined by the remote pilot so long as the tasks enable him or 
her to reasonably ascertain whether the pertinent systems are 
functioning properly.
---------------------------------------------------------------------------

    \127\ The sufficient-power requirements of this rule are 
discussed in section III.E.7.c of this preamble.
---------------------------------------------------------------------------

    Several commenters, including Transport Canada, Skycatch, the 
Kansas State University UAS Program, and Prioria Robotics, stated that 
the FAA should require that remote pilots employ OEM-provided 
checklists and manuals when carrying out preflight inspections. The 
Small UAV Coalition suggested the FAA consider adopting its standard 
phrase from its section 333 exemptions that the remote pilot ``must 
follow the UAS manufacturer's maintenance, overhaul, replacement, 
inspection, and life limit requirements for the aircraft and aircraft 
components.'' The Professional Helicopter Pilots Association suggested 
that UAS manufacturers be required to provide ``airworthiness'' 
checklists. PHPA added that in the absence of a list of requirements, 
the criteria for a preflight inspection become subjective. ALPA also 
recommended that manufacturers be required to define parameters for 
maintenance and inspection. Similarly, Transport Canada asked whether 
consideration has been given to requiring the UAS operator to either 
adhere to the manufacturer's maintenance instructions and schedule or, 
in the alternative, develop and adhere to his or her own maintenance 
schedule.
    DJI noted that it already provides its clients with significant 
information on how to inspect and maintain DJI's small UAS. Several 
other commenters addressed the use of manufacturer-developed minimum 
maintenance standards. NAAA noted that the FAA has not set standards 
for what manufacturer's instructions for UAS are to contain, and 
recommended that manufacturers make a manual available for approval by 
the FAA. A few individual commenters also said manufacturers should 
provide an operational manual, which they said should also contain a 
maintenance schedule.
    The FAA agrees with commenters that manufacturer-developed manuals, 
checklists, and instructions can provide excellent guidance about how 
to maintain a small UAS in a condition for safe operation. As such, the 
FAA recommends that the remote pilot in command familiarize him or 
herself with this material and strongly consider using the approach 
specified in the manufacturer's materials. However, the manufacturer-
recommended approach may not be the only way to keep a small UAS in a 
condition for safe operation. As such, this rule will simply require 
that the small UAS must be in a condition for safe operation. The 
specific method by which the small UAS achieves this state will be 
determined by its owner and the remote pilot in command; this could be 
the method recommended by the manufacturer or in accordance with a 
developed maintenance and inspection program that may encompass and 
exceed the manufacturer's program. The remote pilot in command and/or 
small UAS owner may also follow the best practices outlined in the 
guidance provided by the FAA.
    The FAA acknowledges the concern raised by commenters that some 
manufacturer manuals may not provide sufficient guidance for the remote 
pilot in command to properly inspect the small UAS. However, this rule 
will not require the remote pilot in command to comply with the 
manufacturer's manual as part of the preflight check. If the 
manufacturer's manual provides sufficient guidance and the remote pilot 
in command determines that this guidance is the best way to conduct the 
preflight check, the remote pilot can conduct the check according to 
the manufacturer's instructions. If the manual is deficient or the 
remote pilot in command determines that a different method of 
conducting the preflight check is more appropriate, the remote pilot in 
command will assume the responsibility of making that decision as well.
    The FAA notes that, as discussed in section III.F.2.j of this 
preamble, in order to obtain a remote pilot certificate, an applicant 
will have to demonstrate that, among other things, he or she has 
acquired knowledge about how to maintain and inspect a small UAS. Thus, 
the remote pilot in command will have the knowledge needed to select 
the best method by which to conduct a preflight check of the small UAS 
to ensure that it is in a condition for safe operation and the control 
link is functioning properly.
    Several commenters suggested that the FAA should develop--or 
encourage the development of--universal inspection and maintenance 
criteria to be used by remote pilots when conducting preflight 
inspections, or maintaining their aircraft. For example, the Nevada 
Institute for Autonomous Systems suggested that a preflight inspection 
would be insufficient to ensure safety in the absence of ``minimum 
maintenance standards.'' Predesa stated that the FAA should consider 
publishing its own general guidelines on preflight inspections, 
including recordkeeping guidelines to track ``major modular 
replacements of small UAS equipment.'' The Associated General 
Contractors of America asked the FAA to provide more guidance on ``the 
scope and nature'' of the required preflight inspections. Specifically, 
the commenter questioned: (1) Whether the time and effort the agency 
expects an operator to devote to preflight assessments depends on the 
size or nature of the aircraft, or the scope, complexity or other 
specifics of the operation; (2) to what extent the agency will defer to 
an operator's exercise of his or her judgment; (3) if an operator 
performs a manufacturer-recommended preflight inspection, whether the 
FAA will defer to those recommendations; and (4) whether the FAA will 
defer to any more specific industry standards and whether the agency 
will go so far as to encourage the development of such standards.
    The State of Nevada, the Nevada Institute for Autonomous Systems, 
and the Nevada FAA-designated UAS Test Site, commenting jointly, 
recommended that minimum maintenance standards be developed with the 
help of the future FAA UAS Center of Excellence and the UAS Test Sites. 
ASTM International pointed out that it has developed approved standards 
for Maintenance and Continued Airworthiness of Small Unmanned Aircraft 
Systems (F2909). Predesa said that remote pilots should consider 
applying the Academy of Model Aeronautics National Model Aircraft 
Safety Code's ``good general safety practices'' pre-flight checks. 
Similarly, an individual commenter suggested that the small UAS should 
be maintained using standards developed

[[Page 42153]]

and approved by a recognized standards development organization.
    The FAA agrees that guidelines concerning the preflight check would 
assist the remote pilot in command with complying with this 
requirement. As discussed earlier, the FAA plans to issue guidance 
containing best practices for determining whether a small UAS is in a 
condition for safe operation. Separately from FAA guidance, other 
supporting industry guidance also exists that could be utilized by the 
remote pilot in command. The FAA notes the availability of ASTM 
standards such as practices for maintenance and continued airworthiness 
of small UAS, as well as AMA's standards, as additional guidance that 
may be utilized by the remote pilot in command. The FAA also encourages 
interested stakeholders to develop additional guidance if they feel 
that it may provide further assistance to the remote pilot in command.
    With regard to the time and effort needed to conduct the preflight 
check, the FAA notes that this will vary depending on the size and 
complexity of the aircraft and the types of components used in the 
small UAS. Larger and complex UAS that have more components will likely 
take longer to check than simple micro UAS with few components. 
However, as discussed earlier, the FAA does not anticipate that an 
experienced remote pilot in command will need more than a few minutes 
to conduct the preflight check (assuming the preflight check does not 
reveal any adverse characteristics that render the small UAS not in a 
condition for safe operation). Repetition of the preflight inspection 
and checks will enhance the remote pilot's skill and efficiency in 
completing this requirement.
    An individual commenter said the FAA should delete proposed Sec.  
107.21(a), which requires an operator to maintain the small UAS in a 
condition for safe operation, because aircraft maintenance should be 
the responsibility of the registered owner, and not all operators are 
the registered owners of the vehicles they operate.
    Proposed Sec.  107.21(a) would have required that the small UAS 
must be maintained in a condition for safe operation while Sec.  
107.15(a) would have prohibited the operation of a small UAS unless it 
is in a condition for safe operation. The FAA agrees that proposed 
Sec.  107.21(a) is duplicative with Sec.  107.15(a) and as such, Sec.  
107.21(a) has been removed from this rule. For ease of readability the 
FAA has also moved the regulatory text of proposed Sec.  107.21(b), 
which requires a preflight check to determine whether the small UAS was 
in a condition for safe operation, into Sec.  107.15(a).
ii. Discontinuing Flight
    A small UAS that appears to be in a condition for safe operation 
during the preflight check may become unsafe for operation during 
flight. For example, the small unmanned aircraft could sustain damage 
or partial loss of propulsion during flight rendering that aircraft 
unsafe for continuing the flight. As such, the NPRM proposed to require 
the operator to discontinue the flight of the small unmanned aircraft 
when he or she knows or has reason to know that continuing the flight 
would pose a hazard to other aircraft, people, or property. For the 
reasons discussed below, this rule will revise the proposed provision 
to require the remote pilot in command to discontinue flight if he or 
she knows or has reason to know that the small UAS is no longer in a 
condition for safe operation.
    Several organizations, including DJI, Predesa, State Farm and the 
Small UAV Coalition, supported the provision as proposed. On the other 
hand, the University of North Dakota's John D. Odegard School of 
Aerospace Sciences and an individual commenter suggested that the term 
``hazard'' in this context should be qualified as it is in Sec.  
107.19(b), which uses the phrase ``undue hazard.'' These commenters 
suggested that Sec.  107.15(b) should be amended for consistency, in 
part, to read ``. . . pose an undue hazard to other aircraft, people, 
or property.'' (Emphasis added).
    The FAA agrees with the University of North Dakota and the 
individual commenter that the term ``hazard'' in proposed Sec.  
107.15(b) is inconsistent with the standard of ``undue hazard'' in 
Sec.  107.19. In considering how to address this issue, the FAA noted 
that Sec.  107.15(b) is intended to address instances in which a small 
UAS that is in a condition for safe operation during the preflight 
check ceases being in a condition for safe operation after flight 
commences. Accordingly, the FAA has amended Sec.  107.15(b) to reflect 
the fact that the pertinent standard is ``condition for safe 
operation'' and not ``hazard.''
    AIA suggested that the FAA should define the timing of the 
discontinuation of flight if the small UAS ceases being in a condition 
for safe operation. AIA suggested that the requirement should be to 
terminate flight ``as soon as practicable.'' In response, the FAA notes 
that, if a small UAS should cease being in a condition for safe 
operation during flight, the remote pilot in command must immediately 
discontinue the flight by landing the small unmanned aircraft at the 
first available location where the landing can be conducted safely.
iii. Control Link Check
    Several commenters specifically addressed the proposed requirement 
to ensure that all links between the control station and the small 
unmanned aircraft are working properly. DJI and Qualcomm supported the 
proposed requirement, without further comment. ALPA also supported the 
proposed requirement, but then recommended an additional requirement to 
verify the usable range of the transmitter in the control station 
before a flight. Transport Canada questioned whether the FAA has 
considered requiring the UAS operator to check for radio interference 
during the preflight inspection. The NextGen Air Transportation Program 
at NC State University argued that the proposed requirement should 
include ``something about spectrum management/approvals.''
    This rule will require the remote pilot in command to ensure that 
all links between the control station and the small unmanned aircraft 
are working properly. This can be done simply by inputting specific 
commands into the control station and seeing whether the small unmanned 
aircraft carries out the pertinent command. The FAA acknowledges the 
concerns raised by ALPA but the suggested requirements would not be 
appropriate for all small UAS operations. Specifically, in order to 
verify the usable range of the control-station transmitter, the remote 
pilot in command would likely need to fly the small unmanned aircraft 
to the limits of the radio signal to determine the point at which the 
signal begins to degrade. Flying a small unmanned aircraft to the point 
that the control link begins to degrade may pose a heightened risk of 
loss of positive control, and as such, the FAA will not require the 
remote pilot in command to conduct this type of testing in this rule.
    With regard to radio interference and spectrum management, the FAA 
notes that the requirement for a preflight control link check is 
performance-based and already addresses radio interference and spectrum 
issues. Specifically, under Sec.  107.49(c), a small unmanned aircraft 
may not be operated in the NAS if the control link between the ground 
control station and the small unmanned aircraft is not working 
properly. If radio interference or a spectrum issue results in a 
control link working improperly, the small UAS operation will be 
prohibited from commencing until the issue has been resolved and the 
control link is once again working properly.

[[Page 42154]]

b. Airworthiness Directives
    The NPRM also proposed to require that small UAS comply with all 
applicable airworthiness directives. For the reasons discussed below, 
the FAA will not finalize this proposed requirement in the final rule.
    A number of commenters objected to the proposed airworthiness-
directives requirement. Aviation Management and two individual 
commenters stated that the proposed requirement should be removed 
because part 107 does not contain any airworthiness certification 
standards. Similarly, Boeing asked for clarification as to what an 
operator would be required to comply with, since there are no specific 
airworthiness requirements.
    The FAA agrees with commenters that an airworthiness-directive 
framework may, at this time, not be suitable for part 107 small UAS 
because of the lack of airworthiness certification requirements in part 
107. Accordingly, this rule will not finalize the proposed 
airworthiness-directive requirement. However, the FAA notes that it is 
not precluded from taking appropriate action to address unsafe 
conditions that may be identified in small UAS subject to part 107. Any 
such actions would be conducted in accordance with the Administrative 
Procedure Act.
7. Additional Operating Provisions
a. Careless or Reckless Operation
    Current FAA regulations (codified in 14 CFR 91.13(a)) prohibit a 
person from operating an aircraft in a careless or reckless manner so 
as to endanger the life or property of another. The NPRM proposed to 
apply similar regulations in Sec.  107.23 to ensure that a small UAS is 
not operated in a hazardous manner. For the reasons discussed below, 
the FAA will finalize this provision as proposed in the NPRM.
    One commenter stated that Sec.  107.23 must have the same force and 
effect as 14 CFR 91.13. Two commenters said that ``careless and 
reckless'' is a vague and subjective standard, with one stating that it 
is unenforceable unless the FAA describes concretely what constitutes 
careless or reckless behavior.
    Section 107.23(a) will prohibit a person from operating a small UAS 
in a careless or reckless manner so as to endanger the life or property 
of another. This provision is derived from a similar prohibition on 
careless/reckless conduct that currently exists for manned aircraft in 
Sec.  91.13(a), and as such, the FAA expects that these two provisions 
will have similar effects.
    The determination of whether conduct is careless or reckless is 
made on a case-by-case basis through NTSB caselaw. The FAA has issued 
guidance (FAA Order 8900.1, vol. 14, ch. 3, sec. 5) summarizing the 
pertinent caselaw, which provides illustrative examples of conduct that 
is considered to be careless or reckless.
    One commenter suggested that the FAA should permit local law 
enforcement authorities to enforce the prohibition against careless or 
reckless operations. In response, the FAA notes that, as discussed in 
section III.I of this preamble, the FAA cannot delegate its formal 
enforcement functions.
    One commenter asked the FAA to clarify what evidence would be used 
to prove that a remote pilot operated in a careless or reckless manner. 
Another commenter suggested that a flight data recorder be required to 
facilitate the enforcement of the prohibition against careless or 
reckless operations.
    A flight data recorder requirement would add cost, complexity, and 
weight to small unmanned aircraft without a corresponding incremental 
safety benefit. The FAA notes that enforcement of violations will be 
similar to enforcement conducted for part 91 operations: In addition to 
conducting routine surveillance of part 107 operations, the FAA will 
act on reports of violations to conduct further investigations. The FAA 
relies on many sources to further investigate complaints, such as 
accounts from witnesses, video, and reports from Federal, State, and 
local law enforcement agencies.
b. Drug and Alcohol Prohibition
    As proposed in the NPRM, this rule will require the remote pilot in 
command, the person manipulating the flight controls of a small UAS, 
and the visual observer to comply with the drug and alcohol provisions 
of 14 CFR 91.17 and Sec.  91.19. Section 91.19 prohibits knowingly 
carrying narcotic drugs, marijuana, and depressant or stimulant drugs 
or substances in civil aircraft unless authorized to do so by a Federal 
or State statute or government agency. Additionally, Sec.  91.17 
prohibits a person from acting as a crewmember of a civil aircraft: (1) 
Within 8 hours after the consumption of any alcoholic beverage; (2) 
while under the influence of alcohol or any drug that affects the 
person's faculties in any way contrary to safety; or (3) while having 
an alcohol concentration of 0.04 or greater in a blood or breath 
specimen. Under Sec.  91.17, a remote pilot in command, the person 
manipulating the flight controls of a small UAS (if that person is not 
the remote pilot in command), and the visual observer must submit to 
testing to determine alcohol concentration in the blood if there is a 
suspected violation of law or Sec.  91.17. These tests must be 
submitted to the FAA if the FAA has a reasonable basis to believe that 
the person violated Sec.  91.17.
    The Small UAV Coalition, the Aviation Division of Washington State 
Department of Transportation, and three individuals generally supported 
the provisions related to drugs and alcohol. One commenter asserted 
that the FAA proposed no requirement about the condition of the 
operator, such as illness or impairment by drugs or alcohol, and that 
small UAS remote pilots should be required to self-certify that they 
are in a condition that enables them to safely operate a small UAS.
    The FAA clarifies that this rule does not allow operation of a 
small UAS if the remote pilot in command, visual observer, or the 
person manipulating the flight controls of a small UAS is unable to 
safely operate the small UAS due to drug or alcohol impairment. As 
discussed previously, this rule will, among other things, require these 
people to comply with the provisions of Sec.  91.17.
    With regard to non-drug or alcohol impairment, such as an illness, 
the FAA notes that, as discussed in section III.F.2.c of this preamble, 
a person may not act as a remote pilot in command or visual observer or 
manipulate the flight controls of a small UAS if he or she knows or has 
reason to know that he or she has a physical or mental condition that 
would interfere with the safe operation of a small UAS. It is also not 
necessary to require a self-certification statement prior to every 
small UAS flight because this requirement is not imposed on manned-
aircraft operations by the drug and alcohol provisions of Sec. Sec.  
91.17 and 91.19.
    Cherokee Nation Technologies commented that over-the-counter 
medications could impair the ability to safely operate a small UAS. The 
FAA agrees with this comment and notes that over-the-counter 
medications are addressed by the provisions of this rule. Specifically, 
Sec.  91.17(a)(3) prohibits the use of any drug that affects the 
person's faculties in any way contrary to safety.
    The University of North Dakota's John D. Odegard School of 
Aerospace Sciences commented that the contents of Sec. Sec.  91.17 and 
91.19, which are cross-referenced in proposed part 107, should be 
included in their entirety in proposed part 107 to enable ease of 
reading and understanding the regulations. However, duplicating the 
entire regulatory text of Sec. Sec.  91.17 and 91.19 in part 107 is 
unnecessary in this case. FAA regulations, such as Sec. Sec.  91.17

[[Page 42155]]

and 91.19, may be changed by future rulemakings or statutory changes, 
and cross-referencing regulatory sections in part 107 will minimize 
inconsistencies between part 107 and any subsequent amendments made to 
Sec. Sec.  91.17 or 91.19. Additionally, cross-referencing regulatory 
sections allows the FAA to avoid duplicative regulatory text in its 
regulations.
    Two commenters expressed concerns about the potential use of small 
UAS for drug-smuggling and other illicit acts. The Institute of Makers 
of Explosives asked that the FAA specify penalties for the use of small 
UAS in committing illicit acts, including those involving drugs and 
alcohol. One commenter stated that any remote pilot should lose his or 
her privileges under part 107 if found to be operating while in a 
condition that does not permit safe operation of the small UAS. Another 
commenter suggested that remote pilot certificates should be denied, 
suspended or revoked for committing an act prohibited by 14 CFR 91.17 
or Sec.  91.19.
    The FAA emphasizes that, in addition to the requirements of Sec.  
91.17 discussed above, this rule will also require compliance with 
Sec.  91.19, which prohibits the knowing transportation of illegal 
drugs unless authorized by a Federal or State statute or government 
agency. If a person violates Sec.  91.17 or Sec.  91.19, the FAA can 
take enforcement action, which can result in the imposition of civil 
penalties or suspension or revocation of that person's airman 
certificate. People who engage in illegal conduct involving drugs may 
also be subject to criminal prosecution under Federal or State law.
c. Sufficient Power for the Small UAS
    For the reasons discussed below, this rule will amend the proposed 
requirement that, prior to flight, the remote pilot must ensure that 
the small UAS has sufficient power to operate for its intended 
operational time and an additional five minutes. After further 
consideration, the FAA retains the requirement that the small UAS has 
enough power to operate for its intended operational time, but has 
eliminated the additional five-minute requirement.
    Several commenters, including DJI, ALPA, and Qualcomm, supported 
the FAA's proposal. On the other hand, the Kansas State University UAS 
Program, Center for Robot-Assisted Search and Rescue, Consumers Energy 
Company and an individual generally noted that some UAS have very short 
battery lives. One commenter asserted that some small UAS have only 
five minutes of total available flight time. Commenters suggested that 
a small UAS should simply be required to have enough available power to 
operate for its intended time and then land safely, which could require 
significantly less than five minutes of total power.
    The FAA concurs with commenters who suggested that a small UAS 
should be required to have enough available power to operate for its 
intended operational time and then land safely. As discussed in section 
III.E.3.a of this preamble, small UAS operations conducted under this 
rule will operate in a confined area of operation. As a result of this 
confined area, the prohibition of operations over people, and due to 
the defined weight of the small unmanned aircraft, small UAS operations 
conducted under part 107 will generally pose a low risk as compared to 
manned aircraft. As such, a requirement for an additional five minutes 
of power is unnecessary. The FAA acknowledges that some small unmanned 
aircraft flights may be conducted for very short durations at very low 
altitudes, and the need for a larger battery to provide an additional 
five-minute power reserve may significantly limit those operations 
without a corresponding safety benefit.
    Several commenters suggested different approaches other than the 
requirement for five minutes of additional power. Embry-Riddle and 
several individual commenters generally noted that different small UAS 
have differing amounts of power and flight time available. These 
commenters suggested that a requirement that is based on a 10% reserve 
of power would better accommodate small UAS of differing design, 
equipment, and performance standards. The Center for Robot-Assisted 
Search and Rescue suggested that the reserve power requirement be based 
on the distance needed for the aircraft to return to the remote pilot. 
An individual commenter noted that gas powered aircraft may need a 
longer fuel reserve, such as 10 to 15 minutes, to allow for extended 
emergency flights.
    The FAA notes that remote pilots are required under this section to 
ensure that the small UAS has enough power to operate for its intended 
operational time. The intended operational time includes all power 
requirements for the entire flight, including take off and a controlled 
landing. While the final rule does not prescribe a specific amount of 
reserve power, the FAA notes that a remote pilot must take into 
consideration the type of operation being conducted. The remote pilot 
must ensure that sufficient power is available to complete the intended 
flight, or terminate the flight early if the remote pilot has reason to 
believe that the power remaining is insufficient to continue flight. A 
remote pilot who fails to properly plan for sufficient power may also 
be in violation of Sec. Sec.  107.15, 107.23, and 107.49, particularly 
if insufficient power results in loss of positive control of the small 
unmanned aircraft.
    The reserve power requirement does not need to be based on the 
distance needed for the small unmanned aircraft to return to the remote 
pilot because small unmanned aircraft flight can be terminated through 
a controlled safe landing; the aircraft does not necessarily need to 
return to its point of origin. A percentage-of-power requirement would 
also be unduly burdensome, as it would require UAS with greater total 
power capacity to hold a larger power reserve than a UAS with a lesser 
power capacity.
    DJI, ALPA and QUALCOMM suggested that the FAA require equipment 
that would accurately display how much battery life remains to the 
remote pilot. In response, the FAA emphasizes that this rule does not 
prohibit remote pilots from using the type of equipment suggested by 
the commenters. However, while equipage may be one way to measure 
battery life, it is not the only way to measure remaining battery life. 
For example, prior to flight, a remote pilot could determine the total 
amount of time that a battery can provide power before it needs to be 
recharged. Then, during flight, the remote pilot could simply use a 
watch to determine how much energy is left in the battery. Accordingly, 
mandating specific equipage displaying how much battery life is left in 
the small UAS is not necessary in this rule.

F. Remote Pilot Certificate

    As discussed in section III.E.1 of this preamble, this rule will 
create a new small-UAS-specific airman certificate called a remote 
pilot certificate with a small UAS rating. A person will be required to 
obtain this airman certificate prior to acting as a remote pilot in 
command. This rule will also require any person manipulating the flight 
controls of a small UAS to obtain a remote pilot certificate with a 
small UAS rating unless: (1) That person is under the direct 
supervision of a remote pilot in command; and (2) the remote pilot in 
command has the ability to immediately take direct control of the 
flight of the small unmanned aircraft. For the reasons discussed in 
section III.E.1 of this preamble, a UAS-specific airman certificate is 
preferable in this

[[Page 42156]]

rule to one of the existing part 61 pilot certificates because the 
process for obtaining the remote pilot certificate will focus on UAS-
specific areas of knowledge that are typically not included in the 
requirements associated with current part 61 pilot certificates.
1. Use of UAS Experience To Apply for Part 61 Pilot Certificate
    In the NPRM, the FAA emphasized its desire to maintain a 
distinction between a remote pilot certificate and the airman 
certificates issued under parts 61, 63, and 65. As such, the NPRM 
proposed Sec.  61.8, which would prohibit UAS activities conducted 
under this rule from being used to meet part 61 requirements. Under 
proposed Sec.  61.8, activities would include any training, 
certification, or flights associated with small UAS under part 107. The 
FAA did not receive any adverse comments on this aspect of the proposed 
rule, and as such, this rule will finalize Sec.  61.8 as proposed.
2. Remote Pilot Certificate Eligibility and Issuance
    The NPRM proposed establishing eligibility requirements for a part 
107 airman certificate and specifying when a certificate would be 
issued. The NPRM proposed that an applicant must be: (1) At least 17 
years of age; (2) able to read, speak, write and understand the English 
language; and (3) vetted by the Transportation Security Administration. 
Additionally, the NPRM proposed that the applicant must pass an initial 
aeronautical knowledge test and self-certify, at the time of 
application, that he or she does not have a medical condition that 
could interfere with the safe operation of a small UAS.
    As discussed in more detail below, the process for issuance of a 
remote pilot certificate will be as follows. First, an applicant will 
have to take and pass an initial aeronautical knowledge test. After 
taking the knowledge test, the applicant will be provided with an 
airman knowledge test report showing his or her test results. If the 
applicant passed the test, the applicant will then fill out an 
application for a remote pilot certificate using either the FAA's 
electronic application process (referred to as the Integrated Airman 
Certification and Rating Application (IACRA) system) or a paper 
application. The FAA will then forward the applicant's information to 
the TSA for security vetting to determine whether the applicant poses a 
security risk. Once TSA notifies the FAA that the applicant does not 
pose a security risk the FAA will issue an electronic temporary remote 
pilot certificate to an applicant who applied through the IACRA 
system.\128\ This temporary certificate (valid for 120 days after 
receipt) will be issued within 10 business days after receipt of an 
electronic application, and it will allow the applicant to exercise all 
the privileges of a remote pilot certificate with a small UAS rating. 
Once all other FAA-internal processing is complete, the FAA will issue 
the applicant a permanent remote pilot certificate.
---------------------------------------------------------------------------

    \128\ Because the temporary certificates will be issued 
electronically, the FAA will be unable to issue them to applicants 
who did not apply through electronic means.
---------------------------------------------------------------------------

    Holders of a part 61 pilot certificate other than student pilot who 
have completed a flight review within the previous 24 months will have 
the option of a different certification process. These pilot 
certificate holders will be allowed to substitute completion of an 
online training course for the small UAS aeronautical knowledge test. 
Upon completion of the training course, the part 61 pilot certificate 
holder will then go to one of the following authorized portals: An FAA 
Flight Standards District Office (FSDO), a designated pilot examiner 
(DPE), an airman certification representative (ACR) for a pilot school, 
or a certificated flight instructor (CFI). The certificate holder will 
provide his or her remote pilot certificate application and supporting 
documentation to that portal to verify the applicant's identity, fill 
out the pertinent portion of the application, and then forward the 
completed application to the FAA Airman Certification Registry. Because 
a part 61 pilot certificate holder has already been vetted by TSA, he 
or she will be issued a temporary remote pilot certificate with a small 
UAS rating, valid for 120 days, immediately upon the FAA's receipt of 
the completed application via IACRA. Once all other processing is 
complete, the FAA will issue a permanent remote pilot certificate.
    The FAA emphasizes that part 61 pilot certificate holders are not 
required to use the process discussed in the previous paragraph and can 
instead apply for a remote pilot certificate by taking the small UAS 
initial aeronautical knowledge test. Part 61 pilot certificate holders 
who pass the knowledge test will not be required to submit their 
application to a FSDO, DPE, ACR, or CFI. Instead these certificate 
holders may submit their applications via IACRA. Because these 
certificate holders have already been vetted by TSA, they will be 
issued a temporary remote pilot certificate, valid for 120 days, upon 
FAA's receipt of their application via IACRA regardless of the method 
they use to qualify for the certificate (i.e. knowledge test or online 
training course).
a. Minimum Age
    The NPRM proposed that a person must be at least 17 years of age to 
be eligible for a remote pilot airman certificate with a small UAS 
rating. This minimum age would be consistent with existing FAA minimum 
age requirements for the sport pilot, recreational pilot, and private 
pilot airman certificates with an airplane or rotorcraft rating. The 
FAA also invited comment on whether to adopt a minimum age of 16 years, 
which would be consistent with existing FAA minimum age requirements 
for the sport pilot and private pilot airman certificates with a glider 
or balloon rating. After review of the comments, the FAA adopts a 
minimum age of 16 for a person to be eligible for a remote pilot 
certificate with a small UAS rating.
    Fourteen commenters, including the Small UAV Coalition, AUVSI, and 
NAMIC, all agreed that the proposed minimum age of 17 generally strikes 
an appropriate balance between safety and operational viability for low 
risk small UAS operations, ensuring that baseline safety is enhanced 
without unduly burdening low risk small UAS operators or their 
operations. These commenters argued that the NPRM's proposal is 
consistent with the requirements for other pilot certificates and, at 
this time, there is a lack of data and evidence to support lowering the 
age to 16. The commenters added that although persons under the age of 
17 are already allowed to operate model aircraft, it is unclear if 
there is a strong need for allowing younger remote pilots to operate 
non-hobby and non-recreational small UAS.
    University of North Dakota's John D. Odegard School of Aerospace 
Sciences added that 16-year-old student pilots are accompanied or 
monitored by an instructor, whereas, a small UAS operator would 
effectively be unmonitored. Federal Airways & Airspace also agreed with 
limiting the certification age to 17 years old, and pointed out that 
the National Institute of Mental Health has stated on their Web site 
that the rate of death by any injury of those aged 15 to 19 years old 
is six times higher than that for individuals aged 10 to 14 years old. 
Federal Airways & Airspace also mentioned that studies have shown that 
the human brain does not reach maturity until the early 20s, and the 
CDC states that those aged 16 to 19 are almost three times more likely

[[Page 42157]]

than 20-year-olds to be in a fatal motor vehicle accident.
    Several commenters recommended raising the minimum age above 17. 
Commenters including the General Aviation Manufacturers Association 
(GAMA), Textron Systems, and Aerius Flight, recommended an 18-year-old 
eligibility requirement for small UAS operators, because it aligns with 
existing airman certification standards for other commercial flight 
operations. One commenter asserted that 18 is the appropriate age for 
an operator certificate because it is the age at which an individual is 
an adult and able to enter into legally binding contracts. The Air Line 
Pilots Association and Transportation Trades Department, AFL-CIO said 
small UAS operators should hold a commercial pilot certificate, and 
should therefore be a minimum of 18 years old. Several commenters 
recommended the minimum age requirement be raised even higher, to 21 or 
25 years old.
    Conversely, 36 commenters, including NBAA, AIA, and the Kansas Farm 
Bureau, argued that the minimum age should be lowered to 16. One 
commenter asserted that: (1) Flying a manned aircraft is considerably 
more complex than operating a small UAS; and (2) a small UAS has no 
people on board who would be injured in the event of an accident. Many 
other individuals argued that because of all the operating constraints 
contemplated by the NPRM, a 16-year-old should be able to safely 
operate a small UAS without exposing anyone to undue risk.
    Nine commenters asserted that a minimum age of 16 would also align 
with current requirements for glider and balloon pilots. One commenter 
argued that the NPRM does not provide any justification to support why 
the operator of a small UAS must be older than a sport pilot, 
recreational pilot, or private pilot airman with a glider rating,\129\ 
or a student pilot of a glider.\130\ NBAA stated its belief that a 
lesser risk exists for small UAS operations conducted within the 
confines of the rule when compared to glider and balloon operations 
conducted within controlled airspace.
---------------------------------------------------------------------------

    \129\ See 14 CFR 61.103(a).
    \130\ See 14 CFR 61.83(b).
---------------------------------------------------------------------------

    One of the commenters from the Center for Information & Research on 
Civic Learning and Engagement (CIRCLE) argued that the minimum age 
should be dropped to 16. The commenter conducted research that it 
claimed supports the proposition that 16-year-olds have the same 
capacity for sophistication as 21-year-olds. Although the research is 
geared towards younger individuals voting in local elections, not 
operating aircraft, the commenter believed that it makes a general 
statement about the intellectual capacity of minors at the age of 16.
    Prioria Robotics argued that the FAA should allow an 
apprenticeship-like certificate to be held by those younger than 18. 
Others argued that the minimum age for independent operation of a small 
UAS should be 16. One individual suggested that if the operator is 
under the age of 16, he or she should be required to be accompanied by 
a qualified operator who is over the age of 18.
    The Washington State Department of Transportation, Aviation 
Division suggested that, with regard to minimum age, in many cases the 
maturity level difference of an operator between ages 16 and 18 may be 
imperceptible. This commenter suggested lowering the minimum age to 16 
would rule out the likelihood of willful underage violation and provide 
a legal path forward for younger operators. The commenter also pointed 
out that in many states a driver's permit can be obtained at age 15 and 
driver's license at age 16.
    The Kansas Farm Bureau also argued that the added year available 
for academic use, education, and experience are positives for future 
UAS operators. DJI similarly noted that a lower age limit could 
increase academic use of small UAS because more high school age 
students could be operators. Also, commenters argued that a high age 
limit would inhibit curiosity and innovation among younger people who 
are exploring the capabilities of UAS.
    The Colorado Cattlemen's Association did not object to the proposed 
minimum age requirement, but noted potential value in reducing the 
minimum age to 16 years old. The commenter noted that, while this 
approach would be a slight deviation from the current age requirement 
for non-commercial airman certificates, it would be consistent with the 
recognized lower risk associated with small UAS operations. The 
commenter also noted it would accommodate UAS operations for those beef 
producers who run family operations, many of which include older 
teenagers.
    The FAA agrees that a certain level of maturity is required to 
operate any aircraft responsibly in the NAS. The FAA originally 
proposed a minimum age of 17 because it is consistent with existing FAA 
minimum age requirements for the sport pilot, recreational pilot, and 
private pilot airman certificates with an airplane or rotorcraft 
rating--the base-level certificates authorizing pilots to operate these 
two categories of aircraft while not under the supervision of an 
instructor. However, the FAA does not use a minimum age of 17 for all 
part 61 pilot certificates. As noted in the NPRM and by the commenters, 
the proposed minimum age of 17 is not consistent with existing FAA 
minimum age eligibility requirements for sport and private pilot airman 
certificates with a glider or balloon rating.
    After further consideration, the FAA has determined that the risk 
posed by a small UAS operation is comparable to the risk posed by a 
glider or balloon operation. Balloon and glider operations generally 
take place during daytime visual meteorological conditions and are 
limited to a relatively confined geographical area. Balloon and glider 
aircraft also tend to be lighter and slower-moving aircraft, limiting 
the harm to people and property on the ground in the event of a mishap. 
Similarly, small UAS operations do not take place at night or in 
instrument meteorological conditions, and are operated in a limited 
geographical area as necessary for the remote pilot to maintain visual 
line of sight. Analysis of safety data for balloon and glider 
operations suggests that there is no significant difference in accident 
rates for 16-year-old pilots compared to 17- or 18-year-old pilots. 
Because the risk of a part 107 small UAS operation is comparable to the 
risk of a balloon or glider operation and because the minimum age for 
glider and balloon operations is 16,\131\ the FAA will lower the 
minimum age in this rule to 16 years old.
---------------------------------------------------------------------------

    \131\ 14 CFR 61.103(b) and Sec.  61.305(a)(1).
---------------------------------------------------------------------------

    The FAA also notes that a minimum age of 16 is consistent with its 
current practice of allowing airmen conducting a small UAS operation 
under a section 333 exemption to hold a sport or private pilot 
certificate with a glider or balloon rating. Although the FAA does not 
track the age of persons operating small unmanned aircraft under 
section 333 exemption grants, the agency is not aware of any specific 
safety concerns associated with 16-year-old private pilots or sport 
pilots operating small UAS. The FAA notes that lowering the minimum age 
to 16 will also enable additional small UAS agricultural operations, 
such as those described by the Colorado Cattlemen's Association.
    Several commenters, including AIA, the Virginia Commonwealth 
University Honors Students, and the New Jersey Institute of Technology 
suggested that the minimum age should be no greater than 16. As noted 
in AIA comments,

[[Page 42158]]

AIA and others believe that a driver's license issued from within the 
U.S. should be considered as a prerequisite for a remote pilot 
certificate. The commenters recommended mimicking the process to obtain 
a driver's license, in which a person first obtains a learner's permit 
and then, following months of training and test-taking, obtains a 
license. This would enable 16-year-olds (depending on their State of 
residence) to obtain a certificate. According to the commenters, 
maintaining currency of the driver's license would also imply certain 
motor skills, vision, and a minimal level of medical fitness to operate 
UAS.
    Several individual commenters said the minimum age should be 
lowered even further to 14 years old. The commenters pointed out that 
14-year-olds are capable of having certain after-school jobs, and are 
allowed to operate a glider or balloon as a student pilot. Event 38 
Unmanned Systems said that it sees no logical reason for a minimum age 
requirement, and that anyone who can pass the operator test should be 
allowed to fly a UAS. Two other commenters also said there should be no 
minimum age requirement.
    The FAA disagrees with commenters who suggest that the minimum age 
be less than 16 because age 16 is the youngest age at which a person 
can be certificated to operate an aircraft independently in the NAS. 
Because a remote pilot certificate allows people to operate their small 
UAS independently, it is critical that those people possess the 
maturity necessary to operate in a safe manner. The FAA also disagrees 
with commenters who provided the example of a driver's license and a 
learner's permit as a justification for lowering the minimum age below 
16. In most states, the driving privileges of people under the age of 
16 are significantly limited compared to the privileges granted at age 
18. According to the Governors Highway Safety Association, most states 
do not permit full driving privileges until 17 or 18 years of age. 
These privileges include high-risk situations such as the ability to 
drive unsupervised at night or with a certain number of 
passengers.\132\
---------------------------------------------------------------------------

    \132\ http://www.ghsa.org/html/stateinfo/laws/license_laws.html
---------------------------------------------------------------------------

    The FAA also notes that driving a car does not use the same skills 
as operating a small UAS. For example, in order to successfully drive a 
car, drivers have to learn skills, such as parallel parking and making 
three-point turns, which have no applicability to small UAS operations. 
Requiring a U.S. driver's license as a prerequisite to obtaining a 
remote pilot certificate would impose the cost of acquiring those 
skills on people who do not currently possess a driver's license 
without a corresponding safety benefit. Accordingly, this rule will not 
require remote pilot certificate applicants to hold a driver's license.
    In response to commenters who recommended a lower minimum age to 
enable academic uses, or the suggestion for an apprenticeship-like 
certificate for those under 18 years of age, the FAA notes that this is 
unnecessary because this rule allows an uncertificated person to 
manipulate the controls of a small UAS, provided that: (1) They are 
under the direct supervision of a certificated remote pilot in command; 
and (2) the remote pilot in command is capable of taking over controls 
at any time during the flight. The FAA also notes that, depending on 
the purpose of the operation, small UAS operations conducted by 
community groups and non-profit organizations may be considered 
recreation or hobby operations, which are not regulated under part 107 
if conducted in accordance with Public Law 112-95, section 336.\133\
---------------------------------------------------------------------------

    \133\ Section III.C.4 of this preamble contains further 
discussion of model aircraft operations.
---------------------------------------------------------------------------

    The Agricultural Technology Alliance, Illinois Farm Bureau, and 
GROWMARK suggested that the FAA treat age eligibility to operate a 
small UAS in the same manner as the operation of farm equipment--i.e., 
allowing individual State labor laws to control. Though it did not 
explicitly advocate for the use of State labor laws to determine 
eligibility, Predesa pointed out that child labor laws would apply to 
minors participating in commercial operations. The commenter 
recommended the FAA consider mandating an adult visual observer to 
assist a minor with an operator certificate when operating a small UAS 
for commercial purposes. The commenter also recommended that the FAA 
consider mandating an adult visual observer to assist a minor with an 
operator certificate when operating a small UAS for education in a 
private program for fee, in a university setting, or in a public school 
system.
    The FAA does not agree with the recommendation to adopt State labor 
laws to set the minimum age requirement. State laws are not uniform, 
and this could result in a patchwork of regulations that would apply 
uneven requirements depending on one's State of residence. The FAA also 
notes that not all operations conducted under part 107 will be 
commercial. For example, as discussed in section III.C.4 of this 
preamble, recreational small UAS operations that do not meet all of the 
criteria specified in Public Law 112-95, section 336 will be conducted 
under part 107.
    The FAA disagrees with Predessa's suggestion that an adult visual 
observer should be mandated in order to assist a minor with a remote 
pilot certificate (i.e. someone between 16 and 18 years of age) when 
operating a small UAS. As discussed previously, the FAA currently 
allows 16-year-old pilots to operate, without supervision, glider and 
balloon manned aircraft and small UAS (under a section 333 exemption). 
The FAA has not observed an adverse effect on safety as a result of the 
pilot in those operations being 16 rather than 18 years old. Thus, 
while the FAA agrees that a visual observer enhances safety by 
providing additional situational awareness to the remote pilot, it is 
not necessary to mandate a visual observer based on the age of the 
remote pilot certificate holder or the type of operation being 
conducted.
    Accordingly, the FAA has amended proposed Sec.  107.61(a) to lower 
the minimum age to be eligible for a remote pilot certificate with a 
small UAS rating to 16 years old. The FAA notes, however, that an 
academic institution is permitted to establish its own (more 
restrictive) policies and procedures for operational small UAS 
training, which may include requiring the presence of adult visual 
observers for students who are younger than 18.
b. English Language Proficiency
    In the NPRM, the FAA proposed to require that applicants for a part 
107 airman certificate be able to read, speak, and understand the 
English language. These proposed English-language requirements would be 
consistent with all other airman certificates issued by the FAA, as 
well as the international standard for aircraft operations accepted by 
ICAO. However, the FAA also proposed an exception for people who are 
unable to meet one of the English-language requirements due to medical 
reasons. Such a person would be eligible for a certificate, but the FAA 
would be able to specify limitations on the certificate to account for 
that person's medical condition.
    Five commenters expressed support for requiring airman-certificate 
applicants to be able to read, speak, and understand the English 
language. There were no comments opposing this aspect of the proposal. 
Accordingly, this rule will require that applicants for an airman 
certificate be able to read, speak, and understand the English 
language.

[[Page 42159]]

    Three commenters opposed the proposed exception to the English-
language requirements. One of these commenters stated that there should 
be no exceptions to the English-language requirement, while another 
commenter stated that there should be no exception for persons whose 
medical reasons would preclude them from effectively communicating 
procedures or reading flight logs. A third commenter stated that a 
person who cannot speak English should not be permitted to operate 
anywhere near people on the ground because that person would be unable 
to communicate safety-relevant information to people in the vicinity of 
the operation.
    Limiting the exception for the English-language requirements of 
this rule would impose a needless burden on airman-certificate 
applicants who have a medical condition. Specifically, if an applicant 
cannot read, speak, or understand the English language, the proposed 
exception would allow the FAA to impose restrictions on that 
applicant's certificate ensuring that the person's English-language 
inability does not adversely affect safety. For example, if an 
applicant is unable to communicate using speech, then the FAA may 
restrict that applicant's certificate to operations where speech is not 
necessary for the safe operation of a small UAS.
    Restrictions issued under this provision will be specific to each 
applicant, and as such, the FAA cannot make the categorical statements 
suggested by the commenters as to what will or will not be permitted 
for applicants with a specific English-language inability. The FAA 
notes that its English-language regulations for other airman 
certificates have a similar exception for applicants who have a medical 
issue,\134\ and the FAA has not observed any adverse safety effects 
from having this exception in the regulations.
---------------------------------------------------------------------------

    \134\ See, e.g., 14 CFR 61.83(c).
---------------------------------------------------------------------------

    Accordingly, this final rule will retain the proposed exception for 
people who are unable to meet one of the English language requirements 
due to a medical condition. 14 CFR 107.61(b). However, the FAA 
emphasizes that, as with other airmen, it may specify limitations on a 
person's airman certificate to ensure that the person's medical 
condition does not endanger the safety of the NAS.
c. No Airman Medical Certificate Required
    For the reasons discussed below, this rule will not require an 
airman medical certificate but will prohibit a person from manipulating 
the flight controls of a small UAS or acting as a remote pilot in 
command or visual observer if he or she knows or has reason to know 
that he or she has a physical or mental condition that would interfere 
with the safe operation of a small UAS.
    The FAA received approximately 115 comments from organizations and 
individuals on this subject. Several commenters stated than an airman 
medical certificate is not necessary to operate a UAS. Other commenters 
suggested adding a requirement for an airman medical certificate.
    The FAA disagrees that a medical certificate should be required in 
this rule. With certain exceptions, the FAA currently requires an 
airman medical certificate for exercising the privileges of a student 
pilot certificate, a recreational pilot certificate, a private pilot 
certificate, a commercial pilot certificate, and an airline transport 
pilot certificate.\135\ The primary reason for medical certification is 
to determine if the airman has a medical condition that is likely to 
manifest as subtle or sudden incapacitation that could cause a pilot to 
lose control of the aircraft, or impair the pilot's ability to ``see 
and avoid.''
---------------------------------------------------------------------------

    \135\ 14 CFR 61.23(a).
---------------------------------------------------------------------------

    Small UAS operations present a lower risk than manned operations to 
manned aircraft and non-participating people on the ground, especially 
because the operations do not involve any human beings onboard the 
aircraft who could be injured in the event of an accident. 
Additionally, unlike manned-aircraft operations, remote pilots and 
visual observers will be operating within a confined area of operation, 
subject to operational limitations intended to minimize the exposure of 
the small unmanned aircraft to manned aircraft in flight and people on 
the ground. Because of these operational limitations, traditional FAA 
medical certification is not warranted for remote pilots or visual 
observers.
    The FAA also notes that the risks associated with pilot 
incapacitation are similar to the risks associated with loss of 
positive control. As discussed in that section, risks associated with 
loss of positive control are mitigated in this rule through: (1) 
Preflight inspection of the control links, (2) a speed limit of 87 
knots, and (3) a prohibition on operations of small unmanned aircraft 
over people not directly participating in the operation. Just as Sec.  
107.49(a)(3) will require remote pilots to ensure that all links 
between ground station and the small unmanned aircraft are working 
properly, Sec.  107.17 will require the remote pilot in command to 
abstain from small UAS operations if he or she knows or has reason to 
know that he or she has a physical or mental condition that would 
interfere with the safe operation of the flight.
    Federal Airways & Airspace, ALPA, and several individual commenters 
expressed concern about the lack of a required vision exam. General 
Aviation Manufacturers Association and Aerospace Industries Association 
suggested that remote pilots hold a valid U.S. driver's license to 
ensure a basic eye exam.
    The FAA considers the visual-line-of-sight requirement for the 
remote pilot, the person manipulating the flight controls of the small 
UAS (if that person is not the remote pilot), and the visual observer 
(if one is used) to be able to see the aircraft's direction, altitude, 
and attitude of flight to be preferable to a prescriptive vision 
standard. Even with normal vision, it is foreseeable that a small 
unmanned aircraft may be so small that the operational space must be 
reduced to meet the visual-line-of-sight requirements of Sec.  107.31. 
Therefore, any demonstration of completing a vision exam would be less 
effective than this rule's visual-line-of-sight requirements, and as 
such, the FAA will not adopt a vision exam requirement in the final 
rule.
    The FAA also disagrees with comments suggesting the FAA require a 
U.S. driver's license. According to the DOT Office of Highway Policy 
Information, 13 percent of the population aged 16 or older does not 
hold a state-issued driver's license.\136\ As such, requiring a U.S. 
driver's license would create an undue burden for many remote pilots 
without an equivalent increase in safety because the skills necessary 
to obtain a driver's license are not the same as the skills needed to 
pilot a small UAS. Further, the FAA has historically allowed pilots of 
gliders and balloons to exercise the privileges of their pilot 
certificates without requiring a medical certificate or U.S. driver's 
license, and this practice has resulted in no adverse effects on the 
NAS.
---------------------------------------------------------------------------

    \136\ See https://www.fhwa.dot.gov/policyinformation/pubs/hf/pl11028/chapter4.cfm (stating that 87% of the population holds a 
driver's license).
---------------------------------------------------------------------------

    The Golden Gate Bridge, Highway and Transportation District 
supported the proposed requirement to disqualify persons with known 
physical or mental conditions that could interfere with the safe 
operation of the aircraft. Conversely, DronSystems commented that it 
would be impossible to enforce a prohibition on operations if an 
operator knows he or she has a medical

[[Page 42160]]

condition that could interfere with the safe operation of the small 
UAS.
    The FAA notes that a similar regulatory provision already exists in 
part 61. Under Sec.  61.53, a pilot certificate holder is obligated to 
abstain from acting as pilot in command during a period of medical 
deficiency. The requirement of Sec.  61.53 applies regardless of 
whether or not a pilot certificate holder also holds a medical 
certificate.
    One individual suggested that the FAA provide a list of 
disqualifying medical conditions.
    The FAA has not established a list of disqualifying medical 
conditions under Sec.  107.17 because there are a wide range of small 
UAS operations that could be affected differently by different medical 
conditions. For example, a person who is incapable of moving his 
fingers would not be able to safely operate a small UAS whose control 
station interface is manually manipulated with the fingers. However, 
that person may be able to safely operate a small UAS whose control 
station is operated through voice controls.
    A person participating in a small UAS operation is responsible for 
knowing his or her physical and mental limitations and evaluating 
whether those limitations would allow him or her to safely participate 
in the specific small UAS operation that he or she is considering. If 
that person is unsure as to the limitations of his or her physical or 
mental condition, he or she should consult with a physician. The FAA 
emphasizes that those with a medical history or who are experiencing 
medical symptoms that would prevent them from safely participating in a 
small UAS operation or that raise a reasonable concern cannot claim to 
have no known medical conditions.
    One commenter stated that residents of Alaska have a 
disproportionately high rate of ``seasonal bipolar disorder'' or 
``polar night-induced solipsism syndrome,'' and that Alaskans might 
therefore be disproportionately affected by this provision. This 
commenter suggests that the FAA remove ``bipolar disorder--or at the 
least bipolar disorder and related conditions `with seasonal pattern'--
from the list of mental conditions which may prevent someone from being 
able to operate'' a small UAS.
    The FAA notes that the commenter is referring to a list of medical 
conditions enumerated in Sec.  67.107(a)(3), Sec.  67.207(a)(3), and 
Sec.  67.307(a)(3), referring to a candidate for a first, second, or 
third class medical certificate to have no established medical history 
or clinical diagnosis of a bipolar disorder. However, as discussed 
previously, part 107 does not include a list of disqualifying medical 
conditions. A person with bipolar disorder would violate Sec.  107.17 
only if his or her bipolar disorder was such that it would interfere 
with the safe operation of a small UAS.
    The FAA also notes that in the NPRM it proposed to require that an 
applicant for an airman certificate must submit a certified statement 
attesting to his or her physical and mental condition at the time of 
the application. However, upon further review, the FAA has decided to 
remove this provision from the rule because an applicant's medical 
condition at the time he or she submits his or her application for a 
remote pilot certificate may change prior to operation of the small 
UAS.
d. Flight Proficiency and Aeronautical Experience
    Because of the significantly reduced risk associated with small UAS 
operations conducted under part 107, the NPRM proposed to not impose 
flight proficiency or aeronautical experience requirements on 
applicants seeking a small UAS airman certificate. However, the FAA 
invited comments on whether flight proficiency or aeronautical 
experience should be required. For the reasons discussed below, this 
rule will not require applicants for a remote pilot certificate with a 
small UAS rating to demonstrate flight proficiency or aeronautical 
experience.
    Several commenters, including NBAA, Colorado Cattlemen's 
Association, and NetMoby, agreed with the NPRM that the FAA should not 
require small UAS operators to demonstrate their proficiency in 
operating a small UAS prior to obtaining an operator certificate. These 
commenters reasoned that requiring a proficiency test is unnecessary 
because small UAS are not very difficult to operate and the test could 
be cost prohibitive for some operators. NetMoby added that there will 
be a market incentive for manufacturers to ensure that future operators 
are capable of flying their UAS.
    Other commenters, including the AFL-CIO, AIA, and NAAA, disagreed 
with the proposal and suggested that the FAA require small UAS 
operators to demonstrate their proficiency in operating a small UAS 
prior to obtaining a remote pilot certificate. Some of the commenters 
asserted that this would be consistent with testing requirements used 
for part 61 pilot certificates.
    Aviation Management and Modovolate Aviation suggested requiring a 
practical test or demonstration of aeronautical knowledge for certain 
aircraft or flying conditions (e.g., those weighing more than 4.4 
pounds, operation beyond visual line-of-sight), but not for others 
(e.g., micro UAS, operation in only Class G airspace). Virginia 
Commonwealth University Honors Students suggested that separate tests 
should be required for each type of small UAS.
    As discussed in section III.E.3.a of this preamble, small UAS 
operations conducted under this rule will operate in a confined area of 
operation. As a result of this confined area and due to the very low 
weight of the small unmanned aircraft, small UAS operations conducted 
under part 107 will generally pose a very low risk as compared to 
manned aircraft. As such, flight proficiency and aeronautical 
experience requirements (which apply to part 61 pilots) are unnecessary 
for remote pilots of a small UAS.
    Flight proficiency testing is also not necessary for small UAS 
operations because, unlike a manned aircraft pilot, the remote pilot of 
a small UAS can easily terminate flight at any point. The light weight 
and lack of people onboard the small unmanned aircraft provides the 
remote pilot of that aircraft with a multitude of safe landing options. 
The remote pilot also has the option to sacrifice the small unmanned 
aircraft because there are no people onboard who would be endangered by 
that action. Conversely, a manned aircraft can only land at a location 
that can safely accommodate its large weight. The landing of a manned 
aircraft must also be accomplished in a manner that does not endanger 
the people onboard the aircraft. Because of the ease with which the 
flight of a small unmanned aircraft can be terminated and because of 
the overall low risk posed by small UAS operations that will be 
conducted under part 107, this rule will not include practical testing 
or flight experience requirements for a remote pilot certificate.
    The FAA notes, however, that certain operational restrictions of 
part 107, such as operations within visual line of sight, are waivable 
if the applicant can demonstrate that his or her operation can safely 
be conducted under the terms of a certificate of waiver. In processing 
a waiver, the FAA may request additional mitigations, such as a 
demonstration of remote pilot proficiency, to ensure that the operation 
can be conducted safely.
    The Nez Perce Tribe requested that the FAA provide additional 
flexibility to small UAS operators by allowing them to qualify for an 
operator certificate

[[Page 42161]]

either via a written test, a practical test, or a demonstration of 
aeronautical experience. In response, the FAA notes that practical 
testing, aeronautical experience, and knowledge testing measure 
different things. Knowledge testing determines whether an applicant has 
acquired proficiency in the areas of knowledge being tested. Practical 
testing and aeronautical experience determines the applicant's flight 
proficiency. Although practical testing and aeronautical experience may 
be used to assess some level of a person's knowledge, the aeronautical 
knowledge test is the method used to directly assess an applicant's 
knowledge. In this case, the FAA has determined that a remote pilot 
needs to have acquired the knowledge needed to safely operate a small 
UAS because small UAS operations will generally pose a very low risk as 
compared to manned aircraft. Thus, an aeronautical knowledge test is 
the appropriate vehicle to determine whether an applicant for a remote 
pilot certificate has acquired the necessary knowledge.
e. Formal Training
    The NPRM did not propose to require formal training, but it invited 
comment on whether passage of an FAA-approved training course should be 
required either instead of or in addition to the aeronautical knowledge 
test. After reviewing the comments, the FAA has determined that it will 
not impose any specific training or flight instruction requirements for 
small UAS remote pilot certificate applicants.
    Many commenters, including NAFI, NAAA, and A4A, stated that the FAA 
should require individuals to attend a training course before obtaining 
a small UAS operator certificate. NAFI asserted that an applicant may 
be able to pass an initial knowledge test through rote memorization and 
retain little useful information or application after passing the 
knowledge test. According to NAFI, the present FAA test management 
systems do not allow for the robust, multi-version testing that is 
truly able to test to the application level of learning. Commenters 
argued that training should encompass various topics and forms such as 
scenarios, multi-rotor aircraft, educational contact time from a flight 
instructor, and simulations.
    Conversely, National Roofing Contractors Association, NBAA, 
Southern Company, Aerospace Industries Association, and Nez Perce Tribe 
argued that the FAA should not require a training course. Aviation 
Management suggested that the FAA make informational and training 
materials available online and also create online training programs, 
but should not require training courses. National Roofing Contractors 
Association, NRECA, and Team Rubicon suggested allowing industries to 
have tailored certification processes or training specific to their 
needs, or to allow agencies and organizations to conduct tailored in-
house training.
    The FAA took a risk-based approach to defining the airman 
certification requirements for small UAS remote pilots, and in light of 
the contained nature of operations, opted not to propose specific 
training, flight experience, or demonstration of proficiency in order 
to be eligible for a certificate. A remote pilot certificate 
applicant's knowledge of small UAS, as well as regulations concerning 
safe operations in the NAS, can adequately be evaluated through an 
initial and recurrent knowledge tests. A person who has acquired the 
pertinent knowledge will pass the knowledge tests while a person who 
has not done so will fail the test.
    In response to commenters' concerns about rote memorization, the 
FAA notes that in addition to passing the initial knowledge test, 
remote pilot certificate holders will also have to pass a recurrent 
knowledge test every two years to ensure that they have retained the 
knowledge necessary to safely operate in the NAS. Further, remote pilot 
certificate holders will also be subject to continuing FAA oversight. 
The FAA emphasizes that under 49 U.S.C. 44709 and Sec.  107.7(b), the 
FAA may reexamine a certificated remote pilot if it has sufficient 
reason to believe that the remote pilot may not be qualified to 
exercise the privileges of his or her certificate.\137\ Because the 
qualification framework for the remote pilot certificate is based on 
aeronautical knowledge, a reexamination under section 44709 and Sec.  
107.7(b) would be limited to the certificate holder's aeronautical 
knowledge. The reexamination may be conducted using an oral or written 
knowledge test.
---------------------------------------------------------------------------

    \137\ See FAA Order 8900.1, ch. 7, sec. 1 (providing guidance 
with regard to how the FAA exercises its reexamination authority).
---------------------------------------------------------------------------

    A prescriptive formal training requirement is not necessary in this 
rule. Instead, this rule will allow remote pilot certificate applicants 
to attain the necessary aeronautical knowledge through any number of 
different methods, including self-study, enrolling in a training 
seminar or online course, or through one-on-one instruction with a 
trainer familiar with small UAS operations and part 107. This 
performance-based approach is preferable because it will allow 
individuals to select a method of study that works best for them. These 
methods of study will then be validated by whether or not the 
individual is able to pass the knowledge test. As noted in OMB Circular 
A-4, performance-based standards are generally preferable in a 
regulation because they allow the regulated parties ``to choose the 
most cost-effective methods for achieving the regulatory goal and 
create an incentive for innovative solutions.'' \138\
---------------------------------------------------------------------------

    \138\ OMB Circular A-4 at 6.
---------------------------------------------------------------------------

    The FAA will publish Advisory Circulars to assist remote pilots in 
operating small UAS safely in the NAS. The FAA Safety Team (FAASTeam) 
will also host online training courses. These training courses could be 
used as one method of studying for the knowledge test. Lastly, because 
there is already a robust network of nearly 700 testing centers located 
throughout the country set up to administer FAA knowledge tests, the 
FAA has opted not to establish new standards for small UAS remote pilot 
testing centers.
f. General Requirement for Initial Aeronautical Knowledge Test
    The NPRM proposed requiring applicants for a remote pilot airman 
certificate with a small UAS rating to pass an initial aeronautical 
knowledge test to demonstrate that they have sufficient aeronautical 
knowledge to safely operate a small UAS. The FAA adopts the provisions 
as proposed with three changes. First, as discussed in III.F.2.i below, 
the FAA exempts part 61 pilot certificate holders from the requirement 
to complete an initial knowledge test as long as they satisfy the 
flight review requirements of their part 61 pilot certificate and 
complete an online training course within the preceding 24 months. 
Second, as discussed in III.F.2.h below, the FAA will require that 
pilots with military experience operating unmanned aircraft pass an 
initial knowledge test in order to obtain a remote pilot certificate 
with small UAS rating, and pass a recurrent knowledge test every 24 
months subsequent in order to continue to exercise the privileges of 
that certificate.
    Many commenters, including National Association of State Aviation 
Officials, NAAA, ALPA, and NAMIC, supported the FAA's proposal to 
require an initial aeronautical knowledge test in order to operate a 
small UAS. Conversely, several commenters opposed the initial 
aeronautical knowledge test. Commenters argued that initial testing is 
``overkill'' and the FAA should treat small UAS pilots like part

[[Page 42162]]

103 ultralight vehicle pilots and not require airman certification or 
testing. The commenters further argued that all testing is unnecessary 
and inappropriate.
    The FAA disagrees with the commenters who asked that the knowledge 
test be abolished. Title 49 U.S.C. 44703 requires the FAA to ensure 
that an airman certificate applicant is qualified and able to perform 
the duties related to the position to be authorized by the certificate.
    Here, in order to meet its statutory obligation to determine that 
an applicant for a remote pilot certificate possesses the knowledge 
necessary to safely operate in the NAS, the FAA is requiring that those 
persons pass an initial aeronautical knowledge test. Knowledge testing 
is the most flexible and efficient means for ensuring that a remote 
pilot possesses the requisite knowledge to operate in the NAS because 
it allows the applicant to acquire the pertinent knowledge in whatever 
manner works best for him or her. The applicant can then take and pass 
the aeronautical knowledge test to verify that he or she has indeed 
acquired the pertinent areas of knowledge.
    NAFI recommended that an applicant should be required to obtain an 
instructor endorsement to take the initial aeronautical knowledge test. 
SkyView Strategies suggested that to protect the public from a poorly 
prepared UAS operator who receives a passing grade but gets important 
questions wrong, the UAS operator should be required to present to a 
flight training instructor his or her written test results, noting 
areas where knowledge is lacking.
    The FAA disagrees with the recommendation that an applicant should 
be required to obtain an instructor endorsement to take the initial 
aeronautical knowledge test. While an instructor endorsement is 
generally required for part 61 pilot certificates, the significantly 
reduced risk associated with small UAS operations conducted under part 
107 would make this framework unduly burdensome in this case. Instead, 
a stand-alone knowledge test is sufficient to verify the qualification 
of the remote pilot certificate applicant.
    Because the aeronautical knowledge test will determine whether an 
applicant possesses the knowledge needed to safely operate a small UAS, 
a separate flight instructor endorsement should not be required to take 
the knowledge test. The FAA also notes that the costs associated with 
failing and having to retake the knowledge test will provide an 
incentive to applicants to pick a method of study that maximizes the 
chance of them passing the aeronautical knowledge test on the first 
try.
    The FAA also does not agree that a certificate applicant should be 
required to present to a flight instructor his or her knowledge test 
results for remedial training. The FAA maintains that if a candidate is 
``poorly prepared,'' then that person is unlikely to pass the knowledge 
test.
    The University of Arkansas Division of Agriculture suggested that a 
more appropriate ``aeronautical knowledge exam'' needs to be developed 
with input from UAS users. It further suggested that the FAA should 
periodically revisit the scope of the aeronautical knowledge test as 
operational experience data increases.
    FAA knowledge test banks are continuously updated to address 
changes to the industry, safety, and special emphasis areas. While the 
FAA responds to industry and user community feedback, the small UAS 
knowledge test bank is developed internally within the agency to 
protect the integrity of test.
g. General Requirement for Recurrent Aeronautical Knowledge Test
    The FAA proposed that a certificated remote pilot must also pass a 
recurrent aeronautical knowledge test every 24 months. Like the flight 
review requirement specified in Sec.  61.56, the recurrent knowledge 
test provides the opportunity for a remote pilot's aeronautical 
knowledge to be reevaluated on a periodic basis. The FAA adopts this 
provision as proposed, with one change. As discussed in III.F.2.i, the 
FAA exempts part 61 pilot certificate holders from the requirement to 
complete recurrent knowledge tests as long as they satisfy the flight 
review requirements of Sec.  61.56 and complete an online training 
course every 24 months.
    ALPA, AOPA, AUVSI and several other commenters supported the 
requirement for a recurrent knowledge test. Conversely, Colorado 
Cattlemen's Association and a few individual commenters argued that a 
recurrent knowledge test is unnecessary. The Colorado Cattlemen's 
Association explained that small UAS operations present a substantially 
reduced risk as compared to manned-aircraft operations. Therefore, the 
commenter argued, it is appropriate to impose different, and in some 
instances lesser, operational requirements.
    The FAA disagrees with the notion that no periodic reevaluation of 
knowledge is necessary. Knowledge of rules, regulations, and operating 
principles erodes over time, particularly if the remote pilot is not 
required to recall such information on a frequent basis. This is a 
fundamental principle of airman certification, and it applies to all 
FAA-certificated airmen. For part 61 pilot certificate holders, the 
flight review, conducted under Sec.  61.56, specifically requires ``[a] 
review of the current general operating and flight rules of part 91'' 
in addition to maneuvers necessary to safely exercise the privileges of 
the certificate. Likewise, the FAA considers a recurrent knowledge test 
to be an effective means of evaluating a remote pilot's retention of 
knowledge necessary to safely operate small unmanned aircraft in the 
NAS. Because of the reduced risk posed by small UAS, the FAA is not 
requiring remote pilots to demonstrate a minimum level of flight 
proficiency to a specific standard or recency of flight experience in 
order to exercise the privileges of their airman certificate.
    Drone Labs suggested extending the time period between recurrent 
tests to 5 years, and/or making the test available online to ease 
recertification. Kansas Farm Bureau recommended a 6-year interval 
between recurrent tests, similar to the interval for renewal of a 
driver's license.
    The FAA does not agree that the recurrent testing interval should 
be longer than two years. Unlike the privileges afforded by a driver's 
license, which are exercised on a frequent basis by most drivers, many 
holders of remote pilot certificates may only exercise their privileges 
occasionally or may not regularly conduct operations that apply all of 
the concepts tested on the aeronautical knowledge test. For example, a 
remote pilot in command may spend years never operating outside of 
Class G airspace, and then may move to a different location that 
requires him or her to begin conducting small UAS operations in Class D 
airspace. Based on experience with manned pilots, those persons who 
exercise the privileges of their certificate on an infrequent basis are 
likely to retain the knowledge for a shorter period of time than those 
who exercise the privileges of their certificate on a regular basis.
    Further, as unmanned aircraft operations increase in the NAS, the 
FAA anticipates the possibility of further changes to rules and 
regulations. By requiring evaluation on a two-year cycle, the FAA is 
able to ensure that remote pilots are aware of the most recent changes 
to regulations affecting their operations.

[[Page 42163]]

    The FAA acknowledges, however, the burden associated with in-person 
testing every two years. As such, the FAA intends to look at (in the 
Operations of Small Unmanned Aircraft Over People rule) alternative 
methods to further reduce this burden without sacrificing the safety 
benefits afforded by a two-year recurrent knowledge check.
h. Pilots With Military Experience
    The NPRM proposed allowing pilots with military experience 
operating unmanned aircraft to take the recurrent knowledge test in 
lieu of the initial knowledge test in order to be eligible for an 
unmanned aircraft operator certificate with a small UAS rating. For the 
reasons discussed below, this rule will require pilots with military 
experience operating unmanned aircraft to comply with the initial and 
recurrent knowledge testing requirements discussed in the previous 
sections.
    NBAA, Small UAV Coalition and Texas A&M University agreed with the 
proposed rule requiring only a recurrent knowledge test in lieu of the 
initial knowledge test to qualify for a UAS operator airman 
certificate. Prioria said that military UAS operators and OEM-certified 
UAS operators should be grandfathered in without the need to take an 
initial knowledge test because their prior operational experience 
should suffice. In addition, Aviation Model Code of Conduct Initiative, 
Boeing Commercial Airplanes, Small UAV Coalition, and others supported 
accepting existing pilot credentials, especially military pilot 
credentials, in lieu of requiring those pilots to take an initial 
knowledge test or obtain a separate small UAS certificate. ArgenTech 
Solutions suggested that FAA should put a time limit on when military 
experience is acceptable for taking the recurrent knowledge test.
    In contrast, ALPA and others suggested that an initial knowledge 
test, rather than just a recurrent test, is appropriate for applicants 
with military experience flying UAS. ALPA noted that such pilots do not 
necessarily have experience operating in the NAS, and therefore cannot 
be assumed to be familiar with all the subject areas included in the 
initial test. ALPA also pointed to the wide variety of UAS used in the 
military and suggested that a given pilot's experience may not 
necessarily be relevant to the operation of a small UAS in the NAS. 
ALPA also stated that the FAA should review a military pilot's specific 
training, skills, and experience before determining what ``supplemental 
training, knowledge testing, or skills demonstration'' might be needed.
    Similarly, one commenter asserted that experience operating 
military UAS is not relevant to the operation of a civil small UAS, and 
that therefore those with military experience should be subject to the 
same testing requirements as other applicants. Another individual 
echoed ALPA's concern that military operations are conducted almost 
exclusively in military airspace, not in the NAS. One commenter, while 
supporting an initial-test exemption for applicants with military 
experience, added that former military UAS pilots do not necessarily 
understand civil operations in the NAS.
    Planehook Aviation, NOAA, DOD, and an individual commenter said 
that the prior military experience provision proposed in Sec.  107.75 
should apply to both military and non-military COA UAS operators. One 
commenter provided supporting reasoning stating that ``[t]here are 
several non-military Federal agencies that have well established sUAS 
programs and, as is the case with NASA, they have decades of experience 
with sUAS and operating sUAS in the NAS.'' NOAA argued that there are 
no practical differences between NOAA pilots and military pilots 
because they are both trained in the same facilities. DOD raised a 
similar argument, asking that the rule recognize DOD civilian and 
contractor personnel that have a level of training equivalent to 
military personnel. One individual suggested that the FAA allow 
civilian operators with a minimum of 1,000 logged hours as operators of 
UAS for government and military agencies to qualify for taking the 
recurrent knowledge test instead of the initial test.
    The FAA agrees with commenters who expressed concern about 
applicants obtaining a remote pilot certificate to operate civil small 
UAS without passing an initial knowledge test. The levels of training 
and certification for unmanned aircraft differ greatly between branches 
of the armed services, and therefore there is no consistent training 
the FAA can use as a comparison to its requirements in order to credit 
military UAS pilots. Further, many of the required knowledge areas for 
the part 107 initial knowledge test, such as airspace classification, 
airport operations, and radio communications, are not consistently 
covered in training across all branches of the U.S. military. 
Accordingly, at this time, this rule will not allow military UAS pilots 
to bypass the initial aeronautical knowledge test. This applies to NOAA 
UAS pilots as well, because, as NOAA pointed out, they are trained in 
the same military facilities.
    The FAA notes, however, that in some cases, government and military 
UAS pilots are trained as pilots of manned aircraft, in which case they 
may qualify for a part 61 pilot certificate through military 
competency. Specifically, manned-aircraft military pilots are 
frequently able to qualify for a part 61 pilot certificate under Sec.  
61.73 without taking a practical test by providing specific 
documentation and passing a military competency knowledge test. 
Provided those pilots obtain a part 61 pilot certificate and meet the 
flight review and online training course requirements discussed in the 
next section, they may qualify for a remote pilot certificate with 
small UAS rating without having to take any UAS knowledge test.
i. Credit to Holders of Part 61 Pilot Certificates
    For the reasons discussed below, this rule will allow part 61 pilot 
certificate holders (other than the holders of a student pilot 
certificate) with current flight reviews \139\ to substitute an online 
training course for the aeronautical knowledge testing required by this 
rule.
---------------------------------------------------------------------------

    \139\ Under Sec.  61.56(c), no person may act as pilot in 
command of an aircraft unless, since the 24th calendar month before 
the month in which the person acts as pilot in command, he or she 
has completed a flight review with an authorized instructor in an 
aircraft for which that person is rated. The flight review must 
consist of at least one hour of ground training and one hour of 
flight training that includes the general operating and flight rules 
of part 91. 14 CFR 61.56(a).
---------------------------------------------------------------------------

    Airborne Law Enforcement Association and Texas A&M University-
Corpus Christi, suggested requiring only the recurrent knowledge test 
for part-61-certificated pilots. Numerous commenters also suggested 
that holders of part 61 airman certificates should be required to take 
only the recurrent knowledge test, not the initial knowledge test, or 
should be exempted entirely from knowledge-testing requirements. One 
commenter suggested that the holders of private, commercial, and ATP 
certificates who have operated UAS under exemptions be exempted from 
the initial knowledge test requirement. Another commented that non-
military COA pilots should be permitted to take just the recurrent 
test, since the applicants will usually hold at least a private pilot 
certificate. One commenter stated that those applicants who hold part 
61 pilot certificates should be required only to complete UAS-specific 
modules as part of the existing FAA Wings program. Another commenter 
stated that there should be a provision to enable existing small UAS 
pilots with a certain amount of

[[Page 42164]]

logged PIC time to fly a small UAS without having to take a knowledge 
test.
    The FAA agrees with commenters who suggested that requiring part-
61-certificated pilots who satisfy the flight-review requirements of 
Sec.  61.56 to take an initial or recurrent knowledge test is unduly 
burdensome. Through initial certification and subsequent flight 
reviews, a part-61-certificated airman is required to demonstrate 
knowledge of many of the topic areas tested on the UAS knowledge test. 
These areas include: Airspace classification and operating 
requirements, aviation weather sources, radio communication procedures, 
physiological effects of drugs and alcohol, aeronautical decision-
making and judgment, and airport operations. Because a part 61 pilot 
certificate holder is evaluated on these areas of knowledge in the 
course of the part 61 certification and flight review process, 
reevaluating these areas of knowledge on the initial and recurrent 
knowledge tests conducted under part 107 would be needlessly 
duplicative.
    However, there are UAS-specific areas of knowledge (discussed in 
section III.F.2.j of this preamble) that a part-61-certificated pilot 
may not be familiar with. Accordingly, instead of requiring part-61-
certificated pilots who are current on their flight reviews to take the 
initial and recurrent knowledge tests, this rule will provide those 
pilots with the option to take an online training course focusing on 
UAS-specific areas of knowledge. Just as there is an initial and 
recurrent knowledge test, there will also be an initial and recurrent 
training course available to part 61 pilot certificate holders. Those 
certificate holders will be able to substitute the initial training 
course for the initial knowledge test and the recurrent training course 
for the recurrent knowledge test. To ensure that a certificate holder's 
UAS-specific knowledge does not become stale, this rule will include 
the requirement that a part 61 pilot certificate holder must pass 
either the recurrent training course or the recurrent knowledge test 
every 24 months.
    The FAA emphasizes that the online training course option in lieu 
of taking the knowledge test will be available only to those part 61 
pilot certificate holders who satisfy the flight review required by 
Sec.  61.56. This is to ensure that the certificate holder's knowledge 
of general aeronautical concepts that are not included on the training 
course does not become stale. Part 61 pilot certificate holders who do 
not meet the flight review requirements of Sec.  61.56 will be unable 
to substitute the online training course for the required aeronautical 
knowledge test. Thus, under Sec.  107.63(a)(2), a part 61 pilot 
certificate holder seeking to substitute completion of the initial 
training course for the initial aeronautical knowledge test will have 
to present his or her logbook upon application for a remote pilot 
certificate with a small UAS rating to demonstrate that he or she has 
satisfied this requirement. The applicant will also have to present a 
certificate of completion showing that he or she has completed the 
initial online training course.
    The FAA also notes that the above discussion does not apply to 
holders of a part 61 student pilot certificate. A person is not 
required to pass an aeronautical knowledge test, pass a practical 
(skills) test, or otherwise demonstrate aeronautical knowledge in order 
to obtain a student pilot certificate. Further, student pilot 
certificate holders who have received an endorsement for solo flight 
under Sec.  61.87(b) are only required to demonstrate limited knowledge 
associated with conducting a specific solo flight. For these reasons, 
the option to take an online training course instead of an aeronautical 
knowledge test will not extend to student pilot certificate holders.

j. Areas of Knowledge on the Aeronautical Knowledge Tests and Training 
Courses for Part 61 Pilot Certificate Holders

    The NPRM proposed that the initial aeronautical knowledge test 
would test the following areas of knowledge: (1) Regulations applicable 
to small UAS operations; (2) airspace classification and operating 
requirements, obstacle clearance requirements, and flight restrictions 
affecting small unmanned aircraft operation; (3) official sources of 
weather and effects of weather on small unmanned aircraft performance; 
(4) small UAS loading and performance; (5) emergency procedures; (6) 
crew resource management; (7) radio communication procedures; (8) 
determining the performance of small unmanned aircraft; (9) 
physiological effects of drugs and alcohol; (10) aeronautical decision-
making and judgment; and (11) airport operations. The NPRM also 
proposed the following areas of knowledge for the recurrent knowledge 
test: (1) Regulations applicable to small UAS operations; (2) airspace 
classification and operating requirements, obstacle clearance 
requirements, and flight restrictions affecting small unmanned aircraft 
operation; (3) official sources of weather; (4) emergency procedures; 
(5) crew resource management; (6) aeronautical decision-making and 
judgment; and (7) airport operations.
    For the reasons discussed below, this rule will remove obstacle 
clearance requirements and add maintenance and inspection procedures as 
areas of knowledge that will be tested on both the initial and 
recurrent aeronautical knowledge tests. Further, aviation weather 
sources will be removed from the recurrent aeronautical knowledge 
tests. Except for these changes, this rule will finalize all other 
areas of knowledge as proposed in the NPRM.
    With regard to the initial and recurrent training courses for part 
61 pilot certificate holders, those courses will only cover UAS-
specific areas of knowledge that are not included in the training and 
testing required for a part 61 pilot certificate. Thus, the initial 
training course will cover: (1) Regulations applicable to small UAS 
operations; (2) small UAS loading and performance; (3) emergency 
procedures; (4) crew resource management; (5) determining the 
performance of the small unmanned aircraft; and (6) maintenance and 
inspection procedures. The recurrent training course will cover: (1) 
Regulations applicable to small UAS operations; (2) emergency 
procedures; (3) crew resource management; and (4) maintenance and 
inspection procedures.
i. Regulations Applicable to Small UAS
    The NPRM proposed to include an area of knowledge on both the 
initial and recurrent knowledge tests that determines whether the test 
taker knows the regulations applicable to small UAS. By testing the 
applicant for an airman certificate on knowledge of applicable 
regulations, the initial and recurrent knowledge tests would ensure 
that the applicant understands what those regulations require and does 
not violate them due to ignorance.
    The FAA did not receive any adverse comments on this aspect of its 
proposal, and as such, this rule will include regulations applicable to 
small UAS as an area of knowledge that is tested on both initial and 
recurrent aeronautical knowledge tests. This area of knowledge will 
also be included on the initial and recurrent training courses that can 
be taken by part 61 pilot certificate holders instead of a knowledge 
test because regulations applicable to a small UAS are a UAS-specific 
area of knowledge that is not included in the training and testing 
required for a part 61 pilot certificate.

[[Page 42165]]

ii. Airspace Classifications and Operating Requirements, and Flight 
Restrictions Affecting Small Unmanned Aircraft Operation
    The NPRM also proposed testing (on both the initial and recurrent 
knowledge tests) knowledge of airspace classification and operating 
requirements, as well as knowledge of flight restrictions affecting 
small unmanned aircraft operation. The NPRM explained that part 107 
would include airspace operating requirements, such as the requirement 
to obtain ATC permission prior to operating in controlled airspace, and 
in order to comply with those requirements, an airman would need to 
know how to determine the classification of the airspace in which he or 
she would like to operate. The NPRM also proposed to test knowledge of 
how to determine which areas of airspace are prohibited, restricted, or 
subject to a TFR.
    Under the NPRM, this area of knowledge would also be included in 
the recurrent knowledge test because: (1) Airspace that the airman is 
familiar with could become reclassified over time; (2) the location of 
existing flight restrictions could change over time; and (3) some 
airmen may not regularly encounter these issues in their operations. 
For the reasons discussed below, this rule will include knowledge of 
airspace classification and operating requirements and knowledge of 
flight restrictions affecting small unmanned aircraft operation as an 
area of knowledge tested on both the initial and recurrent knowledge 
tests.
    The California Agricultural Aircraft Association supported testing 
on how the airspace is managed, what the rules and regulations are, and 
how manned aircraft operate in the airspace. Aerius suggested that the 
knowledge test should include special use airspace, right-of-way rules, 
visual scanning, aeromedical factors (e.g., the limitations of the 
human eye), and accident reporting. On the other hand, the Electronic 
Frontier Foundation asserted that airspace classification is not 
relevant for low altitude micro UAS flights far away from airports and 
should not be tested for airmen seeking to operate micro UAS.
    The FAA declines to eliminate airspace classification as an area of 
knowledge tested for small UAS operations. As an initial matter, the 
FAA notes that this rule will not prohibit any small UAS (including 
micro UAS) from operating near airports. For UAS not operating near an 
airport, the FAA notes that controlled airspace can extend a 
significant distance away from an airport. For example, the surface 
area of Class B airspace can extend up to 8 nautical miles away from an 
airport. Additionally, airspace classification may change over time; 
uncontrolled (Class G) airspace may be changed to controlled airspace 
and vice versa. A remote pilot of any small UAS will need to have the 
ability to determine what class of airspace his or her small UAS 
operation will take place in to ensure that the operation complies with 
the airspace rules of part 107.
    In response to Aerius, the FAA notes that special-use airspace will 
be covered under knowledge of flight restrictions, which will determine 
the test taker's knowledge of regulatory restrictions on small UAS 
flight imposed through means such as prohibited airspace or a TFR. 
Right-of-way rules, visual scanning, and accident reporting will be 
covered by the knowledge area of regulations applicable to small UAS 
operations because all of these concepts are codified in the 
operational regulations of part 107. Aeromedical factors will not 
specifically be included on the knowledge test, but the FAA may publish 
further guidance to remote pilots on topics such as aeromedical factors 
and visual scanning techniques.
    AUVSI recommended that the FAA require more extensive knowledge 
testing than what was proposed for an operator desiring to fly in Class 
B, C, D, or E airspace, operate small UAS for commercial purposes, or 
operate small UAS beyond visual line of sight with risk-based approval. 
The commenter did not, however, specify what should be included in this 
more extensive testing, and as such, the FAA is unable to evaluate 
AUVSI's suggestion.
iii. Obstacle Clearance Requirements
    The NPRM proposed to include obstacle clearance requirements as an 
area of knowledge to be tested on the initial knowledge test to ensure 
that an applicant for a remote pilot certificate knows how to avoid 
creating a collision hazard with a ground structure.
    One commenter suggested removing this area of knowledge from the 
knowledge test because, according to the commenter, there are no 
obstacle clearance requirements in part 107, and therefore, there 
should be nothing to test. The FAA agrees with this comment and has 
removed obstacle clearance requirements as an area of knowledge to be 
tested on the initial knowledge test.
    The FAA notes that although the test taker will not be tested on 
knowledge of obstacle clearance requirements, they will be tested for 
knowledge of regulations applicable to small UAS, including the 
requirements of Sec. Sec.  107.19(c) and 107.23(a), which: (1) Prohibit 
operating a small unmanned aircraft in a careless or reckless manner so 
as to endanger the life or property of another; and (2) require the 
remote pilot in command to ensure that the small unmanned aircraft will 
pose no undue hazard to other aircraft, people, or property in the 
event of loss of control of the aircraft. A small unmanned aircraft 
flown in a manner that creates a collision hazard with a ground 
structure may violate one or both of these regulations, especially if 
there are people near the ground structure who may be hurt as a result 
of the collision.
iv. Aviation Weather Sources and Effects of Weather on Small Unmanned 
Aircraft Performance
    The NPRM proposed to test, on the initial and recurrent knowledge 
test, knowledge of official sources of weather. The NPRM also proposed 
to test on the initial knowledge test whether the applicant understands 
the effects of weather and micrometeorology (weather on a localized and 
small scale) on a small unmanned aircraft operation. The NPRM explained 
that knowledge of weather is necessary for the safe operation of a 
small unmanned aircraft because, due to the light weight of the small 
unmanned aircraft, weather could have a significant impact on the 
flight of the aircraft.
    One commenter recommended the removal of ``official'' from 
``official weather sources,'' saying that operation of a UAS calls for 
assessment of ``local'' weather conditions, and, furthermore, that 
there are no clearly identified ``official sources of weather.'' 
Aviation Management suggested that official sources of weather be 
excluded from the recurrent knowledge test.
    The FAA agrees with the commenter that there are no specific 
``official sources of weather,'' and has removed that terminology from 
this rule. However, the FAA emphasizes that there are several sources 
of aviation weather useful to remote pilots. Accordingly, remote pilots 
will be required to be familiar with aviation weather products such as 
the ones provided by the National Weather Service through Flight 
Service Stations, Direct User Access Terminal Systems (DUATS), and/or 
Flight Information Services-Broadcast (FIS-B).\140\ While this rule 
does not require the use of those sources of weather for planning 
flights, aviation weather sources could

[[Page 42166]]

be a valuable resource for remote pilots that choose to use them. For 
example, a remote pilot conducting an operation in an area with quickly 
changing weather may wish to access weather information from an 
aviation weather source for the most up-to-date weather data to ensure 
that the small UAS operation will comply with the minimum visibility 
and cloud clearance requirements of Sec.  107.51. The FAA notes that 
aviation weather sources include weather data that can be used to 
evaluate local weather conditions.\141\ Because there is no requirement 
for remote pilots to use aviation weather products on an ongoing basis, 
the FAA has removed this area of knowledge from the recurrent 
aeronautical knowledge test.
---------------------------------------------------------------------------

    \140\ See Aeronautical Information Manual, ch. 1, sec. 1.
    \141\ Additional guidance on aviation weather for pilots can be 
found in AC 00-6.
---------------------------------------------------------------------------

    Accordingly, this rule will include knowledge of aviation weather 
sources and the effects of weather on small unmanned aircraft 
performance on the initial knowledge test. Additionally, this rule will 
include knowledge of the effects of weather on small unmanned aircraft 
performance as an area of knowledge on the initial training course 
available to part 61 pilot certificate holders because this is a UAS-
specific area of knowledge that is not included in the training and 
testing required for a part 61 pilot certificate. The training course 
will not include knowledge of aviation weather sources because that is 
not a UAS-specific area of knowledge.
v. Small UAS Loading and Performance
    The NPRM proposed to include weight and balance as an area of 
knowledge to be tested on the initial knowledge test to ensure that an 
applicant for a remote pilot certificate knows how to calculate the 
weight and balance of a small unmanned aircraft to determine impacts on 
performance. The NPRM noted that in order to operate safely, operators 
need an understanding of some fundamental aircraft performance issues, 
including load balancing and weight distribution as well as available 
power for the operation.
    University of Arkansas Division of Agriculture suggested that the 
FAA's proposal suggests a lack of understanding by the FAA of these 
lightweight aircraft. The commenter added that when they place a 
battery or camera on their aircraft, it is immediately obvious if 
something is not balanced.
    While the FAA agrees that in some circumstances the effect certain 
loads may have on the weight, balance, and performance of the aircraft 
may be obvious--such as adding a five pound weight to one side of a 0.5 
pound small unmanned aircraft--other weight distributions and how they 
affect the balance of the aircraft may be more difficult to surmise. 
For example, it may not be intuitive for a remote pilot to determine 
the effect a half-pound battery will have when added to a forty-pound 
aircraft. Additionally, a remote pilot needs to understand the effect 
that the added weight will have on the aircraft's operation over time. 
For example, while a small unmanned aircraft may be balanced for the 
first few flights after a weight is added, that weight may influence 
the aircraft over time such that during later flights the aircraft is 
no longer balanced and no longer flying safely.
    For these reasons, the FAA will include a section on the initial 
knowledge test ensuring that a remote pilot applicant understands how 
to calculate the weight and balance of a small unmanned aircraft and 
the resulting impacts on performance. Because small unmanned aircraft 
loading is a UAS-specific area of knowledge, the FAA will also include 
it on the initial training course that part 61 pilot certificate 
holders can take in place of the knowledge test.
vi. Emergency Procedures
    The NPRM noted that a small UAS airman may have to deal with an 
emergency situation during a small UAS operation. As such, the NPRM 
proposed to include an area of knowledge on the initial knowledge test 
that would determine whether the applicant knows how to properly 
respond to an emergency. The NPRM also proposed to include knowledge of 
emergency procedures on the recurrent knowledge test because emergency 
situations will likely be infrequent and as such, a certificate 
holder's knowledge of emergency procedures may become stale over time. 
The FAA did not receive adverse comments on including emergency 
procedures on the initial knowledge test, and as such, this area of 
knowledge will be included on the initial knowledge test.
    Turning to the recurrent knowledge test, Aviation Management 
recommended that the FAA remove emergency procedures as an area of 
knowledge covered on that test. The FAA declines to remove emergency 
procedures from the recurrent knowledge test. As discussed in the NPRM, 
emergency situations will likely arise infrequently, and as such, a 
remote pilot's knowledge of emergency procedures may become stale over 
time. Accordingly, including this area of knowledge on the recurrent 
knowledge test will ensure that the remote pilot retains the knowledge 
of how to properly respond to an emergency.
    Because this area of knowledge is UAS-specific, it will also be 
included on the initial and recurrent training courses that can be 
taken by part 61 pilot certificate holders instead of an initial or 
recurrent knowledge test.
vii. Crew Resource Management
    The NPRM proposed to include crew resource management as an area of 
knowledge to be tested on the initial and recurrent knowledge tests to 
ensure that an applicant for a remote pilot certificate knows how to 
function in a team environment, such as when visual observers are used 
to assist a remote pilot. In those circumstances, the remote pilot 
would be in charge of those observers and therefore need an 
understanding of crew resource management.
    Several commenters, including the Small UAV Coalition, Princeton 
University, and the Electronic Frontier Foundation, argued that crew 
resource management may not be relevant for all small UAS operations 
and, as such, should be removed from the knowledge test. Princeton 
University added that crew resource management would be an irrelevant 
area of knowledge for student operators who will be operating the 
aircraft at a low altitude, for a limited distance, on university 
property, and under the direct supervision of a faculty member. 
Electronic Frontier Foundation stated that this area of knowledge is 
irrelevant for micro UAS operations.
    One commenter suggested removal of crew resource management stating 
it is ``overkill'' and is really just referring to possible 
communications between the pilot and the visual observer. If kept, the 
commenter suggested modifying it to ``Crew resource management as it 
may pertain to operation of a small unmanned aircraft system.''
    The FAA acknowledges that not all small UAS operations will utilize 
a visual observer or more than one manipulator of the controls of the 
small unmanned aircraft. However, the FAA anticipates that many remote 
pilots operating under part 107 will likely use a visual observer or 
oversee other individuals that may manipulate the controls of the small 
unmanned aircraft. In order to allow flexibility for certificated 
remote pilots to determine whether or not to use a visual observer or 
oversee other individuals manipulating the controls of the small 
unmanned aircraft, the FAA must ensure that an applicant for a remote

[[Page 42167]]

pilot certificate is able to function in a team environment and 
maximize team performance. This includes situational awareness, proper 
allocation of tasks to individuals, avoidance of work overloads in self 
and in others, and effectively communicating with other members of the 
crew such as visual observers and individuals manipulating the controls 
of a small UAS.
    The scenario Princeton University provided in its comment is 
precisely the type of scenario that would require a certificated remote 
pilot in command to have an understanding of crew resource management. 
The remote pilot in command in Princeton University's scenario would be 
supervising a student who is manipulating the controls of the small 
unmanned aircraft. Therefore, the remote pilot in command in that 
scenario would need to know how to effectively communicate and guide 
his or her crew (the student). In response to Electronic Frontier 
Foundation, the FAA notes that even remote pilots operating smaller UAS 
may choose to use a visual observer or supervise other manipulators of 
the controls.
    It is not necessary to change the title of this area of knowledge 
because crew resource management correctly captures what this area of 
knowledge will cover. The FAA also notes that this rule will include 
crew resource management as an area of knowledge on the initial and 
recurrent training courses available to part 61 pilot certificate 
holders because this is a UAS-specific area of knowledge.
viii. Determining the Performance of the Small Unmanned Aircraft
    The NPRM proposed to include an area of knowledge on the initial 
aeronautical knowledge test to ensure that an applicant knows how to 
determine the performance of the small unmanned aircraft. Aviation 
Management suggested that this area of knowledge be excluded from the 
initial knowledge test because, the commenter argued, this knowledge is 
unnecessary for all small UAS operations.
    The FAA will retain determining the performance of the small 
unmanned aircraft as an area of knowledge on the initial knowledge 
test. As discussed in section III.E.6.a.i of this preamble, the remote 
pilot in command will be required to conduct a preflight assessment of 
the area of operation and ensure that the small unmanned aircraft will 
pose no undue hazard to other aircraft, people, or property if there is 
a loss of positive control. In order to be able to do that, the remote 
pilot in command will need to be able to assess how a small unmanned 
aircraft will perform in a given operating environment. This area of 
knowledge will determine whether an applicant for a remote pilot 
certificate has acquired the knowledge necessary to conduct this 
assessment.
    This rule will also include this area of knowledge on the initial 
training course that can be taken by part 61 pilot certificate holders 
instead of an initial knowledge test because it is a UAS-specific area 
of knowledge.
ix. Physiological Effects of Drugs and Alcohol
    The NPRM proposed to include the physiological effects of drugs and 
alcohol as an area of knowledge covered by the initial knowledge test. 
The Electronic Frontier Foundation argued that knowledge of the effects 
of drugs and alcohol is irrelevant for micro UAS operations and should 
not be tested for pilots of a micro UAS.
    The FAA disagrees. As explained in the NPRM, there are many 
prescription and over-the-counter medications that can significantly 
reduce an individual's cognitive ability to process and react to events 
that are happening around him or her. This can lead to impaired 
decision-making, which could adversely affect the safety of any small 
UAS operation. Accordingly, the initial aeronautical knowledge test 
will include an area of knowledge to determine whether the applicant 
understands how drugs and alcohol can impact his or her ability to 
safely operate a small UAS.
x. Aeronautical Decision-Making and Judgment
    The NPRM proposed to include aeronautical decision-making and 
judgment as an area of knowledge tested on the initial and recurrent 
knowledge tests. Aviation Management suggested that this area of 
knowledge be excluded from the knowledge tests because this knowledge 
is unnecessary for all small UAS operations.
    The FAA disagrees. As discussed in the NPRM, even though small 
unmanned aircraft will be limited to a relatively low altitude by the 
provisions of this rule, they will still share the airspace with some 
manned-aircraft operations. To safely share the airspace, a remote 
pilot in command will need to understand the aeronautical decision-
making and judgment that manned aircraft pilots engage in so that he or 
she can anticipate how a manned aircraft will react to the small 
unmanned aircraft. Accordingly, this rule will retain aeronautical 
decision-making and judgment as an area of knowledge covered on the 
initial and recurrent knowledge tests.
xi. Airport Operations
    Noting that some small UAS operations could be conducted near an 
airport, the NPRM proposed to include airport operations as an area of 
knowledge tested on the initial and recurrent knowledge tests.
    Several commenters, including the Small UAV Coalition, Princeton 
University, and Predessa, argued that airport operations may not be 
relevant to all small UAS operations, and as such, should be removed 
from the knowledge tests. The Electronic Frontier Foundation argued 
that this area of knowledge is ``clearly irrelevant'' for micro UAS 
flights conducted far away from airports.
    There are over 5,000 public use airports in the United States. As 
such, the FAA expects that a number of small UAS operations may take 
place near an airport. The FAA also expects that there could be 
instances where a small unmanned aircraft unexpectedly ends up flying 
near an airport due to adverse conditions, such as unexpectedly strong 
winds that carry the aircraft toward the airport. In those instances, 
the remote pilot in command will need to have an understanding of 
airport operations so that he or she knows what actions to take to 
ensure that the small unmanned aircraft does not interfere with airport 
operations or traffic patterns. Accordingly, this rule will retain 
airport operations as an area of knowledge tested on the initial and 
recurrent knowledge tests.
xii. Radio Communication Procedures
    Finally, the NPRM proposed to include radio communication 
procedures as an area of knowledge covered on the initial aeronautical 
knowledge test.
    Several commenters, including Princeton University, Predesa, and 
Aviation Management, argued that radio communications may not be 
relevant for all small UAS operations and as such, should be removed 
from the knowledge test. Predesa suggested that the FAA design a new 
``Class G-only unmanned aircraft operator certificate with a small UAS 
rating'' that, among other things, does not include radio communication 
procedures as an area of knowledge that is tested on the knowledge 
test. One commenter recommended removal of ``radio communication 
procedures'' because there is no requirement for radio communications 
of any sort with small UAS operations.
    As discussed earlier, the FAA expects that a number of small UAS 
operations

[[Page 42168]]

will take place near an airport. That is why Sec.  107.43 prohibits a 
small unmanned aircraft from interfering with airport operations or 
traffic patterns. Understanding radio communication procedures will 
assist a remote pilot in command operating near a Class G airport in 
complying with this requirement. Understanding radio communication 
procedures will assist a remote pilot in command operating near a Class 
G airport in complying with this requirement if that pilot chooses to 
use a radio to aid in his or her situational awareness of manned 
aircraft operating nearby. As described in section 4-1-9 of the 
Aeronautical Information Manual, manned-aircraft pilots may broadcast 
their position or intended flight activity or ground operation on the 
designated Common Traffic Advisory Frequency (CTAF). This procedure is 
used primarily at airports that do not have an airport traffic control 
tower, or have a control tower that is not in operation. Pilots of 
radio-equipped aircraft use standard phraseology to announce their 
identification, location, altitude, and intended course of action. 
Self-announcing for arriving aircraft generally begins within 10 
nautical miles of the airport and continues until the aircraft is clear 
of runways and taxiways. Aircraft on the ground intending to depart 
will begin to make position reports prior to entry of the runway or 
taxiway and continue until departing the traffic pattern. Aircraft 
remaining in the pattern make position reports on each leg of the 
traffic pattern.
    Thus, knowledge of radio communication procedures will provide a 
remote pilot in command with the ability to utilize a valuable 
resource, CTAF, to help determine the position of nearby manned 
aircraft. As such, this rule will retain this area of knowledge on the 
initial aeronautical knowledge test.
xiii. Other Areas of Knowledge Suggested by the Commenters
    The NPRM invited comment on whether additional areas of knowledge 
should be tested on the initial and recurrent knowledge tests. In 
response, the FAA received comments listing additional areas of 
knowledge that commenters would like to see on the knowledge tests. For 
the reasons discussed below, the FAA will add a section on maintenance 
and inspection to the initial and recurrent knowledge tests and the 
online training courses. The FAA will not add any other areas of 
knowledge to the knowledge tests or training courses.
    The National Transportation Safety Board (NTSB) suggested that the 
test content should include awareness of lost-link failsafe procedures, 
operator development, use of maintenance and inspection steps and 
guides, and the characteristics and proper handling of lithium 
batteries. The NTSB referred to an April 2006 accident involving a U.S. 
Customs and Border Protection unmanned aircraft and encouraged the FAA 
to review its recommendations and supporting information stemming from 
that accident for potential lessons learned when developing guidance 
material and specific content for the written knowledge tests outlined 
in proposed part 107.
    The FAA notes that topics associated with lost-link failsafe 
procedures will be covered by the area of knowledge testing an 
applicant's understanding of the applicable small UAS regulations. With 
regard to maintenance and inspection, the FAA has taken action by 
adding maintenance and inspection knowledge test topic area 
requirements to the initial and recurrent knowledge tests. The addition 
of maintenance and inspection knowledge test topics will consist of 
small UAS basic maintenance and inspection knowledge that is common to 
all small UAS regardless of complexity. An understanding of maintenance 
and inspection issues will ensure that remote pilots are familiar with 
how to identify when a small unmanned aircraft is not safe to operate, 
and how to maintain a small unmanned aircraft to mitigate the 
possibility of aircraft failure during flight. Although this area of 
knowledge will not cover every possible inspection and maintenance 
method, it will provide a baseline of knowledge that will be useful to 
all small UAS remote pilots.
    The FAA disagrees with NTSB's recommendation that the knowledge 
test include a topic on the characteristics and proper handling of 
lithium batteries. Under Sec.  107.36, small UAS are prohibited from 
carriage of hazardous materials. When installed in the aircraft for use 
as a power source (as opposed to carriage of spares or cargo), lithium 
batteries are not considered hazardous material.\142\
---------------------------------------------------------------------------

    \142\ See 49 CFR 175.8(a)(2).
---------------------------------------------------------------------------

    NOAA suggested that the knowledge test include questions relating 
to protecting and operating in the context of wildlife. The Ventura 
Audubon Society also suggested that the FAA test an applicant's 
understanding of Federal and State wildlife protection laws.
    The FAA is required by statute to issue an airman certificate to an 
individual when the Administrator finds that the individual is 
qualified and physically able to safely perform the duties authorized 
by the certificate. See 49 U.S.C. 44703(a) (stating that the 
Administrator ``shall issue'' an airman certificate to an individual 
who is qualified and physically capable). Therefore, the FAA cannot 
deny or delay the issuance of an airman certificate if an applicant has 
demonstrated that he or she is qualified and physically able to safely 
perform the duties authorized by the certificate. In this case, a 
remote pilot certificate with small UAS rating authorizes the holder to 
operate a small UAS safely in the NAS. Thus, under Sec.  44703(a), the 
FAA is required to issue an airman certificate to an individual who has 
demonstrated an ability to safely operate a small UAS, and may not 
require that individual to also demonstrate an understanding of Federal 
and State wildlife protection laws.
    The FAA emphasizes, however, that a small UAS operation may be 
subject to other legal requirements independently of this rule. A 
remote pilot in command is responsible for complying with all of his or 
her legal obligations and should thus have a proper understanding of 
wildlife protection laws in order to comply with the pertinent statutes 
and regulations.
    Drone User Group Network suggested the following topics for the 
knowledge test: the concepts of lift, weight, thrust and drag, 
Bernoulli's principle, weight and balance, weather, situational 
awareness, safety in preflight, in flight and post flight, battery 
theory, radio frequency theory, electrical theory, understanding flight 
modes, fail-safes, and aircraft types and limitations.
    The FAA notes that weight and balance, weather, and preflight 
requirements will be tested under Sec.  107.73. The FAA agrees with the 
commenter that technical topics such as principles of flight, 
aerodynamics, and electrical theory may enhance the knowledge and 
technical understanding of the remote pilot. However, these topics are 
not critical subject areas for safe operation of small UAS. The FAA 
includes many of these topics in the curriculum of part 61 knowledge 
testing because they are critical knowledge areas for persons operating 
an aircraft with passengers over populated areas that may need to 
respond to an emergency resulting from engine failure, unexpected 
weather, or onboard fire. Conversely, small UAS operations take place 
in a contained area in a light-weight aircraft that has no people 
onboard, so these topics are not applicable to the same extent as they 
are to a manned-aircraft operation. However, the remote pilot in 
command should familiarize him or herself with

[[Page 42169]]

all of the necessary information to be able to fly the unmanned 
aircraft without causing damage to the aircraft.
    Southwest Airlines Pilots' Association encouraged the FAA to 
require that operators be knowledgeable about Safety Management Systems 
(SMS) and the Aviation Safety Reporting System (ASRS), which could be 
used to collect data to support a risk managed growth of the industry 
and the integration into the NAS.
    The FAA disagrees that SMS and ASRS systems should be covered on 
the knowledge tests. Participation in a formal SMS program is currently 
required only for part 121 operations, which are the largest and most 
complex manned-aircraft operations regulated by the FAA. Requiring 
small UAS to participate in this program would not be justified 
considering the fact that the FAA does not require non-part-121 manned-
aircraft operations to have an SMS. Similarly, the FAA will not require 
testing on ASRS knowledge because ASRS is not currently required 
knowledge for part 61 pilot certificate holders.
k. Administration of the Knowledge Tests and Training Courses
    This section discusses how the initial and recurrent knowledge 
tests and online training courses will be administered under this rule. 
Specifically, this section addresses: (1) The location at which a 
knowledge test can be taken; (2) the prohibition on cheating and 
engaging in unauthorized conduct during a knowledge test; (3) the 
identification of the test taker; and (4) retesting after failing a 
knowledge test.
i. Location of the Knowledge Test and Online Option for Training Course
    Knowledge tests currently administered to prospective pilots under 
14 CFR part 61 are created by the FAA and administered by knowledge 
testing centers. A knowledge testing center is a private company that 
has been approved to administer airman knowledge tests. These centers 
are overseen by the FAA to ensure that the testing center meets FAA 
requirements. The NPRM proposed to apply this existing framework to 
knowledge testing under part 107. The NPRM also noted that the FAA 
considered an online test-taking option, but ultimately rejected this 
option due to concerns about cheating and the protection of personally 
identifiable information (PII). The NPRM invited comments on whether 
online testing should be permitted under this rule.
    For the reasons discussed below, the FAA will finalize this 
provision as proposed with one exception. That exception is that the 
training course available to part 61 pilot certificate holders in place 
of an aeronautical knowledge test will be administered online rather 
than at a knowledge testing center.
    Texas A&M University-Corpus Christi/LSUASC suggested that the FAA 
UAS test sites should be involved in the training, testing, and 
certification processes. NRECA suggested allowing NRECA members to 
administer the tests for their employees. NRECA asserted that its 
members already have extensive experience with training and testing, 
and are well equipped to administer the testing contemplated in this 
rule without compromising the integrity of such tests.
    Additionally, the Small UAV Coalition suggested that DPEs, ACRs, 
CFIs, or other persons authorized by the Administrator be authorized to 
conduct the aeronautical test and issue the certificate. These 
commenters generally noted that these approaches would increase 
efficiency regarding the issuance of unmanned aircraft operator 
certificates with a small UAS rating.
    The Property Drone Consortium suggested that another way to 
increase efficiency would be for the FAA to allow certain industries to 
conduct internal training that would satisfy the requirement for 
applicants to pass an initial aeronautical knowledge test given by an 
FAA knowledge testing center. Property Drone Consortium and several 
individuals also suggested that the FAA begin planning for the 
establishment of testing centers so that there will be adequate 
capacity for operators to take the initial small UAS operator 
certification test.
    After considering the comments, the FAA has decided to use its 
existing system of knowledge testing centers to administer the 
aeronautical knowledge tests. There are currently about 700 knowledge 
testing centers spread throughout the country. The FAA anticipates that 
this system has adequate capacity for individuals to take the initial 
aeronautical knowledge test. An updated list of commercial testing 
center locations and contact information may be accessed at: https://www.faa.gov/training_testing/testing/media/test_centers.pdf.
    The FAA also has the ability to designate additional knowledge 
testing centers if demand for the knowledge test exceeds existing 
capacity and the existing knowledge testing centers become incapable of 
meeting the increased demand, provided the FAA also has the ability to 
provide adequate oversight. Airman Knowledge Testing Organization 
Designation Authorization Holders are designated to administer airman 
knowledge tests under the authority of FAA Orders 8100.15, 8080.6G and 
49 U.S.C. 44702(d). To ensure FAA jurisdictional and surveillance 
oversight, only companies, schools, universities, or other 
organizations that meet the requirements of this order may be eligible 
for designation. The FAA also notes that there is nothing in the final 
rule that prohibits industries from conducting internal training for 
employees to prepare them for the initial or recurrent aeronautical 
knowledge test.
    A number of commenters, including the Professional Society of Drone 
Journalists, AUVSI, and NBAA, supported allowing applicants to take 
both the initial and recurrent aeronautical knowledge tests online. 
NRECA, Cherokee Nation Technologies, and the Nez Perce Tribe pointed to 
the benefits of online testing to applicants living in rural locations, 
who would otherwise have to travel great distances to take the 
knowledge test in-person.
    Other commenters, including AOPA, News Media Coalition, and New 
Hampshire DOT, supported online testing for recurrent aeronautical 
knowledge tests. Associated Builders and Contractors also recommended 
allowing an online option for recurrent test takers, but said it should 
be supervised. The commenter asserted that the FAA missed a number of 
factors when looking at the economic impact on businesses and 
individuals of allowing online testing.
    Several commenters addressed the FAA's concerns about positive 
identification of applications and the need to protect applicants' 
personally identifiable information (PII). NetMoby pointed out that 
there are numerous Federal judicial filing systems which protect PII, 
and recommended the FAA use these techniques to protect PII in online 
testing. The Colorado Cattlemen's Association said the FAA can address 
issues related to positive identification and PII protection through a 
combination of existing driver's license databases and existing 
measures used by the FAA to protect PII submitted by other applicants 
and certificated airmen. Planehook Aviation stated that ensuring the 
identity of test-takers in person using current ``identification 
credential fidelity methods'' is just as subject to falsification as 
pre-online testing identification verification. Airgon suggested that 
FAA could draw from the experience of online universities to verify an 
applicant's identity for

[[Page 42170]]

purposes of an online exam. The commenter noted that such techniques 
include posing challenge questions with personal information about a 
student, using video capture to record the student during the exam, 
using biometrics such as voice recognition, and using video proctoring, 
which connects a student to a live proctor who verifies the student's 
identity.
    Other commenters addressed the FAA's concern that online test-
takers could cheat on the test. Two individual commenters asserted that 
many cities allow drivers to take defensive driving courses online, and 
asserted that if this method is sufficient for defensive driving 
courses, it is more than sufficient for small UAS testing. Airgon 
asserted that there are software programs, such as Examsoft, that lock 
an examinee's computer, preventing the examinee from opening other 
applications during a test. The commenter also noted that companies are 
developing software that can track an examinee's keystrokes and other 
activities during the test, such as opening another browser window, 
talking on a phone, talking to someone else in the room, or using a 
book. The commenter also suggested the FAA could impose time limits on 
the test to limit the time available for an examinee to look up 
information covered on the test. NRECA argued that the risk of cheating 
is low and can be managed by requiring ``an appropriately worded sworn 
certification by the test-taker.''
    Several commenters, including the National Association of State 
Aviation Officials, NAFI, and Aerius, opposed online aeronautical 
knowledge testing. Those commenters generally opposed online testing 
for security purposes (i.e., difficulty of ensuring test-taker identity 
and securing test-taker PII) and because of concerns about cheating. 
Modovolate pointed out that it is not clear how online testing would 
avoid impermissible reference to materials.
    Because an applicant for a remote pilot certificate with small UAS 
rating is not required to pass a practical test, knowledge testing is 
the only way for the FAA to determine that a remote pilot has the 
requisite aeronautical knowledge to operate safely in the NAS. 
Therefore, it is imperative that the testing methodology being used 
assures that knowledge is demonstrated. The FAA is still evaluating 
whether online testing technologies can provide adequate proctoring of 
a test to ensure, among other things, that the test-taker is not taking 
the test for someone else or using reference material or other 
unapproved aids to help answer the test questions. Concerns with online 
testing are not limited to cheating. Because the knowledge test 
questions are pulled from a test bank with a finite number of 
questions, limiting access to that database to knowledge testing 
centers ensures the continued security and integrity of the test 
questions.
    At this time, the FAA is aware of no other Federal agency that has 
successfully implemented an online knowledge testing system for 
imparting privileges that can directly affect the safety of 
nonparticipating persons or property. The FAA acknowledges comments 
pointing out that there are States that either have or are considering 
online testing for driver's tests. However, in all cases, States 
require an in-person practical driving test for issuing a driver's 
license, which helps address concerns with online testing. Thus, the 
States' online drivers' license testing model is not directly analogous 
to the framework of this rule.
    The FAA notes, however, that the above concerns do not apply as 
strongly to UAS-specific training for holders of part 61 pilot 
certificates other than student pilot. These part 61 pilot certificate 
holders have already passed extensive testing and training requirements 
on general aeronautical knowledge and have gone through the positive 
identification process in order to obtain a part 61 pilot certificate. 
While part 61 pilot certificate holders may not have UAS-specific 
knowledge (hence the requirement for the training course), the UAS-
specific knowledge is simply an application of general aeronautical 
knowledge principles to a specific type of operation. Because part 61 
pilot certificate holders have already demonstrated proficiency in 
areas of general aeronautical knowledge, administering the training 
course online would not pose a problem for this population of remote 
pilot certificate applicants.
    The FAA acknowledges that technology in this area could evolve to 
address its concerns with online testing (discussed earlier). The FAA 
also notes that online testing would, if implemented, significantly 
reduce the costs associated with part 107 by eliminating the travel 
costs incurred as a result of a person having to physically travel to a 
knowledge testing center. As such, the FAA will consider allowing the 
initial and recurrent knowledge tests to be taken online if an online 
system becomes available that allows a knowledge test to be 
administered securely (with controls in place to prevent cheating) and 
that allows the test taker to be positively identified without an in-
person interaction.
ii. Cheating or Engaging in Unauthorized Conduct
    To ensure that the aeronautical knowledge test is properly 
administered, the NPRM proposed to prohibit an applicant from cheating 
or engaging in other unauthorized conduct during the knowledge test. 
This would include: (1) Copying or intentionally removing a knowledge 
test; (2) giving a copy of a knowledge test to another applicant or 
receiving a copy of the knowledge test from another applicant; (3) 
giving or receiving unauthorized assistance while the knowledge test is 
being administered; (4) taking any part of a knowledge test on behalf 
of another person; (5) being represented by or representing another 
person for a knowledge test; and (6) using any material not 
specifically authorized by the FAA while taking a knowledge test. 
Cheating or engaging in unauthorized conduct during a knowledge test 
would be grounds for suspending or revoking the certificate or denying 
an application for a certificate. In addition, a person who engages in 
unauthorized conduct would be prohibited from applying for a 
certificate or taking a knowledge test for a period of one year after 
the date of the unauthorized conduct.
    The FAA did not receive any adverse comments on this component of 
the proposed rule. Accordingly, this rule will finalize the cheating or 
engaging-in-unauthorized-conduct provisions of the NPRM as proposed. 14 
CFR 107.69.
iii. Identification of the Test-Taker
    The NPRM proposed to ensure that an applicant who is about to take 
the knowledge test is properly identified by requiring the applicant to 
present identification to the knowledge testing center prior to taking 
the knowledge test. This identification would have to include the 
applicant's: (1) Photograph; (2) signature; (3) date of birth, which 
shows the applicant meets or will meet the age requirement for a remote 
pilot certificate; and (4) the applicant's current residential address. 
For the reasons discussed below, this rule will finalize this aspect of 
the NPRM as proposed.
    An individual commenter questioned an apparent contradiction in the 
NPRM, which would allow knowledge testing centers to verify an 
applicant's identification for the purposes of administering a 
knowledge test but would prohibit knowledge testing centers from 
verifying identification for the purposes of submitting an airman 
application. The commenter added that if the goal of this rule is to 
achieve the least burdensome process, then

[[Page 42171]]

knowledge testing centers should be permitted to verify a person's 
identification for both testing and application submission to the FAA.
    The FAA acknowledges the positive identification conducted by the 
knowledge testing centers, and has determined that there is no need to 
repeatedly identify a person who has already been positively identified 
for the purposes of taking the knowledge test. Accordingly, as 
discussed later in section III.F.l, this rule will allow an applicant 
to submit his or her remote pilot application without having to be 
positively identified a second time.
iv. Retesting After Failure
    The NPRM noted that some applicants may fail the initial 
aeronautical knowledge test the first time that they take it. To ensure 
that those applicants take the time to do additional studying and/or 
training (rather than simply take the test over and over again), the 
NPRM proposed to require that a person who fails the aeronautical 
knowledge test must wait 14 calendar days before retaking it. For the 
reasons discussed below, this rule will finalize this provision as 
proposed in the NPRM. 14 CFR 107.71.
    One commenter suggested that an applicant who fails the knowledge 
test should be required to receive additional training in the area(s) 
of deficiency and receive an endorsement from a flight instructor in 
order to retake the test. The commenter rationalized that this would be 
consistent with current policy for pilot applicants with regards to 
failure and retesting, and will enhance safety by ensuring some level 
of oversight in the training process.
    A person who fails the aeronautical knowledge test will receive a 
knowledge test report pointing out the areas of knowledge on which he 
or she did not test well. That person will then have 14 days to conduct 
additional study or training in those areas of knowledge prior to 
retaking the knowledge test. Specifying a prescriptive method of study 
is not necessary in this rule. Instead, the applicant will be 
incentivized to select the method of study that works best for him or 
her.
l. Transportation Security Administration Vetting and Process for 
Issuance
i. TSA Vetting and Temporary Remote Pilot Certificates
    Prior to the issuance of a remote pilot certificate with a small 
UAS rating, the NPRM proposed requiring all applicants to be vetted by 
the Transportation Security Administration (TSA). Under the proposed 
rule, the FAA would transmit an airman certificate applicant's 
biographical information for security vetting to TSA and issue an 
airman certificate only after receiving a successful response from TSA. 
However, if TSA determines that an airman certificate applicant poses a 
security risk, 49 U.S.C. 46111 requires the FAA to deny the application 
for a certificate or amend, modify, suspend, or revoke (as appropriate) 
any part of an airman certificate based on TSA's security findings.
    Additionally, the proposed rule would have required an applicant 
for a remote pilot certificate with a small UAS rating to submit the 
application to a Flight Standards District Office (FSDO), a designated 
pilot examiner (DPE), an airman certification representative (ACR) for 
a pilot school, a certificated flight instructor (CFI), or other 
persons authorized by the Administrator. The person accepting the 
application submission would be required to verify that the identity of 
the applicant matches the identity that is provided on the application.
    For the reasons discussed below, this rule will, with one 
exception, allow an applicant who has passed the aeronautical knowledge 
test to submit an application for a remote pilot certificate directly 
to the FAA without having to travel to a Flight Standards District 
Office (FSDO), designated pilot examiner (DPE), airman certification 
representative (ACR), or certificated flight instructor (CFI). Holders 
of a part 61 pilot certificate who elect to take the online training 
course instead of the aeronautical knowledge test will, as proposed in 
the NPRM, be required to submit their certificate to a FSDO, DPE, ACR, 
or CFI in order to verify their identity. Part 61 pilot certificate 
holders will be issued a temporary remote pilot certificate immediately 
upon acceptance of their certificate application while all other 
applicants will be issued a temporary remote pilot certificate upon 
successful completion of TSA security vetting.
    Many commenters, including Google, NAMIC, and Edison Electric 
Institute, agreed that applicants for a remote pilot certificate with a 
small UAS rating should be vetted by TSA as a prerequisite for 
obtaining a certificate. The City and County of Denver noted that a 
specific vetting mechanism is not detailed in the proposed regulations, 
and recommended that the FAA expressly require a completed Security and 
Threat Assessment (STA) as a prerequisite for obtaining an operating 
license. Virginia Commonwealth University Honors Students recommended 
that the vetting process include a criminal background check and that 
FAA decline operators who have been charged with a violent or sexual 
crime. The American Fuel & Petrochemical Manufacturers and the IME 
suggested that the FAA state explicitly in the final rule that failing 
the security threat assessment will disqualify an individual from 
obtaining an unmanned aircraft operator certificate with a small UAS 
rating. These and other commenters also generally noted that the FAA 
should ensure that there is a redress procedure for cases where an 
individual believes he or she improperly failed the security threat 
assessment. IME recommended that the certificate action processes 
codified in 49 U.S.C. 46111, including revocations, hearings, timely 
appeals and reviews, be included in the final rule.
    The governing statute requires that ``individuals are screened 
against all appropriate records in the consolidated and integrated 
terrorist watchlist maintained by the Federal Government before . . . 
being certificated by the Federal Aviation Administration.'' 49 U.S.C. 
44903(j)(2)(D)(i). Also, if TSA determines that an applicant poses a 
security risk as a result of the security vetting, 49 U.S.C. 46111 
requires the FAA to deny that applicant's certificate application or 
amend, modify, suspend, or revoke (as appropriate) any part of an 
airman certificate based on the TSA's security findings.
    The current certificate vetting program that the TSA administers 
satisfies the statutory vetting requirements. The FAA collects and 
provides the biographic information of FAA Airmen Certificate 
applicants, certificate holders, and those applying for airmen 
certificates on the basis of a foreign license to TSA for use in the 
security vetting. Under this final rule, the FAA will leverage the 
current process for the vetting of remote pilot certificate applicants. 
As stated in the NPRM and in accordance with the governing statute, the 
FAA may issue certificates to individuals who have first successfully 
completed an STA conducted by the TSA. The STA that TSA conducts 
adheres to the statutory mandate to vet certificate applicants against 
the government's consolidated terrorist watchlists to determine whether 
they may pose a threat to national or transportation security. The FAA 
defers to TSA's established STA, and TSA's determination of what 
factors, such as items contained within an individual's criminal 
record, will rise to the level of disqualification for a remote pilot 
certificate. The authority

[[Page 42172]]

for TSA to establish these criteria and make this determination is 
codified in 49 U.S.C. 44903(j)(2)(D)(i). Because section 44903 vests 
the pertinent authority in the TSA, the Department cannot, in this DOT 
rulemaking, specify what factors the TSA should consider to be 
disqualifying.
    Additionally, TSA provides a substantial amount of due process to 
individuals who believe that they improperly failed an STA. 
Specifically, upon finding that an individual poses a security threat, 
the TSA issues a Determination of Security Threat to the individual. 
That individual may then make a written request for copies of 
releasable materials upon which the Determination of Security Threat 
was based. The TSA must respond no later than 60 days after receiving 
the request, and the individual may submit a written reply to the TSA's 
response. Upon receiving TSA's response, an individual who is a citizen 
of the United States is entitled to a hearing on the record in front of 
an administrative law judge (ALJ). That individual may then appeal the 
results of the hearing to the Transportation Security Oversight Board. 
If unsatisfied with the results of this appeal, the individual can 
obtain further review of the decision in Federal court.
    Non-citizen U.S. nationals (which generally includes individuals 
born in American Samoa and Swains Island) and permanent residents may 
also have a hearing before the ALJ, but the ALJ's decision is reviewed 
by the TSA. TSA's decision on appeal is a final agency action 
appealable to a Federal court. A foreign national does not have the 
right to a hearing before an ALJ, but may seek review of the final 
agency decision in Federal court.
    SkyView recommended that the FAA collect and verify additional 
information such as email address or home/cell phone numbers that could 
be used to contact the applicant quickly should the need arise. NBAA 
asserted that it had reviewed TSA's STA requirements, which the 
association said seem to presume that a larger organization is involved 
rather than an individual. The association subsequently questioned how, 
in cases where an operator is a single person, the FAA and TSA plan to 
address requirements that NBAA believes were developed for larger, more 
complex organizations.
    In response to Skyview's comment asking the FAA to collect 
applicant contact information, the FAA notes that an applicant will be 
required to provide pertinent contact information on the application 
for a remote pilot certificate. Additionally, the FAA clarifies that 
the STAs that are currently being conducted by TSA for the FAA Airmen 
Certification Branch are being conducted for individuals, not 
organizations.
    Several commenters suggested amending the TSA vetting process, 
creating exceptions for certain individuals, or eliminating the 
requirement altogether. Commenters, including Event 38 Unmanned 
Systems, Associated General Contractors of America, and Edison Electric 
Institute, expressed concern over the estimated 6-to-8-week time-frame 
between receipt of an application and issuance of a remote pilot 
certificate with small UAS rating as proposed in the NPRM. It is 
important to note that TSA's security vetting is complete in less than 
7 days unless derogatory information related to the applicant is 
discovered and must be investigated to complete the STA.
    Several commenters, including the Electronic Frontier Foundation, 
Washington Aviation Group, and Event 38 Unmanned Systems, opposed the 
requirement for small UAS operator applicants to undergo a TSA 
background check prior to receiving their operator certificate. Many of 
these commenters pointed out that it is highly unlikely that an 
individual who poses a threat to national security would seek to obtain 
an airman certificate and go through the TSA vetting process.
    Several commenters argued that pre-screening applicants is 
extremely burdensome for entrepreneurs and small businesses, and 
creates a barrier to market entry. Some commenters argued that 49 
U.S.C. 46111 does not require the FAA to wait until hearing back from 
TSA prior to granting the certificate, or that it does not confer the 
authority to pre-screen applicants for an airmen certificate. One 
commenter suggested that the knowledge testing centers be able to issue 
temporary certificates upon passing the knowledge test, which could be 
revoked if the TSA vetting process indicated that the individual should 
not be issued a remote pilot certificate.
    As discussed previously, 49 U.S.C. 44903(j)(2)(D)(i) is unambiguous 
and states that the vetting must be completed before the FAA may issue 
an airman certificate. Given the relatively short time the vetting 
takes for the overwhelming majority of applicants, it is difficult to 
identify a burden that is not outweighed by the clear benefit of 
ensuring that certificate holders do not pose a threat to national or 
transportation security. Section 44903(j)(2)(D)(i) explicitly states 
that TSA screening of an individual must take place ``before'' that 
individual is certificated by the FAA.
    In addition, 49 U.S.C. 44903(j)(2)(D) and 46111 vest the authority 
for vetting with TSA. Specifically, section 46111(a) states that 
``[t]he Administrator of Federal Aviation Administration shall issue an 
order amending, modifying, suspending, or revoking any part of a 
certificate issued under this title if the Administrator is notified by 
the Under Secretary for Border and Transportation Security of the 
Department of Homeland Security that the holder of the certificate 
poses, or is suspected of posing, a risk of air piracy or terrorism or 
a threat to airline or passenger safety.'' (Emphasis added). Thus, 
under Sec.  46111, the FAA's role in the vetting process is 
ministerial; the FAA acts on findings that have been made by the TSA, 
but it is TSA that makes the actual security determinations. Because 
the authority for making the pertinent security determination is vested 
with TSA, the Department does not have jurisdiction to alter the 
criteria and requirements of that determination in the manner suggested 
by the commenters.
    The FAA acknowledges, however, the commenters' concern regarding 
the estimated 6-to-8-week timeframe associated with processing the 
certificate application. In response, this rule will allow an applicant 
who already holds a part 61 pilot certificate to obtain a temporary 
remote pilot certificate immediately upon FAA receipt of his or her 
application. The FAA is able to issue a temporary remote pilot 
certificate to part 61 pilot certificate holders prior to completion of 
new security vetting because these individuals have already been 
successfully completed the TSA vetting when they obtained their part 61 
pilot certificates.
    The FAA will also issue a temporary electronic remote pilot 
certificate to all other applicants who apply through IACRA upon 
successful completion of TSA security vetting. The FAA anticipates 
that, while it may take the FAA 6 to 8 weeks to issue a permanent 
remote pilot certificate, a temporary remote pilot certificate can be 
issued in about 10 business days. The temporary remote pilot 
certificate will allow the certificate holder to exercise all the 
privileges of the certificate, thus significantly reducing the waiting 
period prior to being able to operate as a remote pilot in command 
under part 107.
    Just like a temporary pilot certificate issued under part 61,\143\ 
a temporary remote pilot certificate with a small

[[Page 42173]]

UAS rating will be valid for 120 days after issuance. This will provide 
sufficient time for the FAA to complete its processing of the 
certificate application and issue the applicant a permanent remote 
pilot certificate. The temporary certificate will automatically expire 
once the applicant receives a permanent remote pilot certificate with a 
small UAS rating. The temporary certificate will also expire if the FAA 
discovers an issue with the certificate application and issues the 
applicant a notice that his or her certificate application is denied or 
the certificate (if one has already been issued) is revoked.
---------------------------------------------------------------------------

    \143\ See 14 CFR 61.17.
---------------------------------------------------------------------------

    The FAA defers to TSA on whether current part 61 pilot certificate 
holders will have to continue to undergo the vetting process in order 
to receive a non-temporary remote pilot certificate with a small UAS 
rating. The FAA also notes that applicants who have passed STAs for 
other federal programs, received background checks, or hold U.S. 
passports will still need to satisfy TSA's STA specific to the statute 
that requires security vetting prior to issuance of an airmen's 
certificate (49 U.S.C. 44903). The FAA does not have jurisdiction to 
accept alternative documentation instead of a TSA security finding 
because, as discussed earlier, 49 U.S.C. 44903(j)(2)(D) and 46111 vest 
the pertinent jurisdiction in the TSA. In response to DJI, the FAA 
notes that a complete TSA vetting process is an integral part of the 
requirements of this rule because it reduces the risk of a person who 
poses a security threat obtaining an airman certificate under part 107.
ii. Issuance and Positive Identification
    Regarding issuance and positive identification, many commenters 
suggested changes to the FAA's current process and responsibilities for 
testing, acceptance of airman applications, and issuance of airman 
certificates that would only apply to unmanned aircraft operator 
certificates with a small UAS rating. AirGon, as well as another 
individual commenter, generally suggested that the knowledge testing 
centers process the applications, verify the identity of the applicant 
and submit the applications to TSA.
    As discussed in section III.F.2.k.iii above, knowledge testing 
centers will be required to positively verify the identity of the 
applicant prior to providing him or her with a knowledge test to ensure 
that someone else is not taking the test for the applicant. The NPRM 
proposed that an applicant who passes a knowledge test would then have 
to be positively identified a second time by a FSDO, DPE, ACR, or CFI. 
This second identification would impose a burden in the form of travel 
costs and service fees (charged by DPEs, ACRs, and CFIs) without 
benefits sufficient to justify this burden, as the applicant has 
already been positively identified. Accordingly, this rule will not 
require applicants who pass an aeronautical knowledge test to submit 
their application to a FSDO, DPE, ACR, or CFI. Instead these applicants 
may submit their paper application via mail or electronically via 
IACRA.
    The FAA notes, however, that as discussed previously, part 61 pilot 
certificate holders who have completed a flight review within the 
previous 24 months will have the option to take an online training 
course instead of an aeronautical knowledge test. Because part 61 pilot 
certificate holders who elect to exercise this option will not be 
positively identified at a knowledge testing center, this rule will 
require them to submit their remote pilot application to a FSDO, DPE, 
ACR, or CFI so that the person accepting their application can 
positively verify the identity of the applicant and establish that the 
applicant has met the eligibility requirements of the remote pilot 
certificate with small UAS rating.
    Under this approach, FSDOs, DPEs, and ACRs, who can currently 
accept applications for an airman certificate, will continue doing so 
for part 61 pilot certificate holders who take the online training 
course instead of a knowledge test. Additionally, as proposed in the 
NPRM, CFIs will also be able to accept remote pilot certificate 
applications because CFIs are recognized by TSA regulations as being 
able to verify identity.\144\ The FAA notes that there is an 
approximate combined total of 100,000 DPEs, ACRs, and CFIs, all of whom 
will be able to accept an airman application and verify identity of 
part 61 pilot certificate holders under this rule.
---------------------------------------------------------------------------

    \144\ See 49 CFR 1552.3(h)(1).
---------------------------------------------------------------------------

    ALPA questioned the use of the term ``student pilot'' in the TSA 
vetting section of the NPRM. The FAA acknowledges the terminology 
should have been ``applicant for remote pilot certificate with small 
UAS rating'' and will correct the terminology in the final rule 
accordingly.
3. Remote Pilot Certificate Denial, Revocation, Suspension, Amendment, 
and Surrender
    As proposed in the NPRM, this rule will allow the FAA to deny, 
suspend, or revoke a certificate for reasons including drug or alcohol 
offenses and refusal to submit to an alcohol test or furnish the 
results.\145\ Additionally, as discussed in the Remote Pilot 
Certificate Issuance and Eligibility section of this preamble, this 
rule will allow the FAA to deny, suspend, or revoke a certificate if 
TSA makes a finding that the applicant or certificate holder poses a 
security risk. This rule will also require certificate holders to 
notify the FAA of any change in name or address. Finally, certificate 
holders will be able to voluntarily surrender their certificates.
---------------------------------------------------------------------------

    \145\ These requirements are similar to the ones imposed on part 
61 pilot certificates by Sec. Sec.  61.15(a) and 61.16.
---------------------------------------------------------------------------

a. Drugs and Alcohol Violations
    The FAA adopts the provisions related to drug and alcohol 
violations as proposed in the NPRM. Accordingly, under Sec.  107.57(a), 
the FAA may deny a remote pilot certificate application or take other 
certificate action for violations of Federal or State drug laws. 
Certificates could also be denied, suspended, or revoked under Sec.  
107.57(b) for committing an act prohibited by Sec.  91.17 or Sec.  
91.19, as discussed in section III.I of this preamble.
    One commenter stated that any remote pilot should lose his or her 
privileges under part 107 if found to be operating while in a condition 
that does not permit safe operation of the small UAS. Another commenter 
suggested that remote pilot certificates should be denied, suspended or 
revoked for committing an act prohibited by 14 CFR 91.17 or Sec.  
91.19.
    The FAA agrees. Under this rule, if a person violates Sec.  91.17 
or Sec.  91.19, the FAA can take enforcement action, which may result 
in the imposition of civil penalties or suspension or revocation of 
that person's airman certificate. Section 107.59 of this rule specifies 
that certificate action could be taken for: (1) failure to submit to a 
blood alcohol test or to release test results to the FAA as required by 
Sec.  91.17; or (2) carriage of illegal drugs in violation of Sec.  
91.19.
b. Change of Name
    Section 107.77(a) will allow a person holding a remote pilot 
certificate with a small UAS rating to change the name on the 
certificate by submitting a name-change application to the FAA 
accompanied by the applicant's: (1) Remote pilot certificate; and (2) 
copy of the marriage license, court order, or other document verifying 
the name change. After reviewing these documents, the FAA will return 
them to the applicant. These procedures mirror the regulations 
governing pilot

[[Page 42174]]

certificates currently issued under part 61. The FAA did not receive 
any adverse comments on these provisions when they were proposed in the 
NPRM.
c. Change of Address
    This rule will extend the existing change-of-mailing-address 
requirement of part 61 to holders of a remote pilot certificate with a 
small UAS rating. Specifically Sec.  107.77(c) will require a 
certificate holder who has made a change in permanent mailing address 
to notify the FAA within 30 days of making the address change. Failure 
to do so will prohibit the certificate holder from exercising the 
privileges of the airman certificate until he or she has notified the 
FAA of the changed address. This regulatory provision will help ensure 
that the FAA is able to contact airman certificate holders. The FAA did 
not receive any adverse comments on this provision when it was proposed 
in the NPRM.
d. Voluntary Surrender of Certificate
    Section 107.79 will allow the holder of a remote pilot certificate 
with a small UAS rating to voluntarily surrender it to the FAA for 
cancellation. However, the FAA emphasizes that cancelling the 
certificate pursuant to Sec.  107.79 will mean that the certificate no 
longer exists, and the individual who surrendered the certificate will 
need to again go through the entire certification process if he or she 
subsequently changes his or her mind. For individuals who are not part 
61 pilot certificate holders, this includes passing the initial 
aeronautical knowledge test. Accordingly, Sec.  107.79(b) will require 
the individual surrendering the certificate to include the following 
signed statement (or an equivalent) in his or her cancellation request:

    I voluntarily surrender my remote pilot certificate with a small 
UAS rating for cancellation. This request is made for my own reasons 
with full knowledge that my certificate will not be reissued to me 
unless I again complete the requirements specified in Sec.  107.61 
and Sec.  107.63.

    The FAA did not receive any adverse comments on this provision when 
it was proposed in the NPRM.
e. Additional Comments on Remote Pilot Certificate
    Several commenters, including National Business Aviation 
Association, the State of Nevada, and Southern Company, agreed that 
unmanned aircraft operator certificates with a small UAS rating should 
not expire. On the other hand, two commenters suggested that the 
certificate should expire every 2 years, and that the FAA should 
require passing the recurrent knowledge test for renewal. The American 
Insurance Association said that employees of insurance companies who 
operate micro UAS should only have to be certificated once and there 
should be no annual two year renewal unless the insurance company 
elects to replace its selected micro UAS.
    NetMoby commented that an unmanned aircraft operator certificate 
with a small UAS rating should be automatically revoked if the remote 
pilot fails a recurrent aeronautical knowledge test. Other commenters 
suggested that there should be a process for the FAA to revoke an 
unmanned aircraft operator certificate with a small UAS rating if the 
operator operates a UAS in an unsafe manner. NetMoby also suggested 
that a remote pilot who violates the prohibition regarding UAS 
operation in certain airspace should have their unmanned aircraft 
operator certificate with a small UAS rating revoked for life.
    As with other pilot certificates issued by the FAA, a remote pilot 
certificate with a small UAS rating will never expire. However, under 
the provisions of this rule, after a person receives a remote pilot 
certificate with a small UAS rating, that person will have to 
demonstrate that they have retained the required aeronautical knowledge 
in order to retain the privileges to operate a small unmanned aircraft. 
As discussed in section III.F.2.g of this preamble, a remote pilot who 
does not hold a part 61 pilot certificate will have to pass a recurrent 
aeronautical knowledge test given by an FAA knowledge testing center 
every 24 calendar months after the issuance of a new remote pilot 
certificate with a small UAS rating to continue to exercise the 
privileges of that certificate in the NAS. A remote pilot who holds a 
part 61 pilot certificate will have to either maintain a current flight 
review and complete an online recurrent training course every 24 
calendar months, or pass a recurrent aeronautical knowledge test as 
described above. This will ensure that a remote pilot continues to 
retain the knowledge necessary to safely operate a small unmanned 
aircraft.
    The FAA disagrees with comments suggesting automatic revocation of 
the certificate if a remote pilot fails a recurrent aeronautical 
knowledge test. Revoking the airman certificate would impose the cost 
of having to eventually reissue the certificate on FAA and TSA without 
a corresponding safety benefit. A certificate holder unable to show 
that he or she has passed either the initial or recurrent knowledge 
test within the preceding two-year period, or has maintained a current 
flight review and completed the online training course within the 
preceding two-year period, will be unable to exercise the privileges of 
his or her certificate until he or she meets the applicable currency 
requirements.
    In response to comments asking the FAA to establish penalties for 
certain regulatory violations, the FAA clarifies that there already 
exists a process for addressing regulatory violations, which can be 
found in 14 CFR part 13. Part 13 specifies the penalties that the FAA 
may impose in response to a regulatory violation, and, in appropriate 
circumstances, those penalties may include the revocation of an 
individual's airman certificate.\146\ The FAA has also issued guidance 
on potential sanctions that may be imposed for specific regulatory 
violations. This guidance can be found in Chapter 7 and Appendix B of 
FAA Order 2150.3B.
---------------------------------------------------------------------------

    \146\ See 14 CFR part 13, subpart C.
---------------------------------------------------------------------------

G. Registration and Marking

    The NPRM proposed applying to small UAS the then-existing 
registration requirements that applied to all aircraft. The NPRM also 
proposed requiring that all small UAS have their registration and 
nationality marks displayed in accordance with Subpart C of part 45.
    Approximately 125 commenters provided input on the proposed 
registration requirement or the associated process, with most 
commenters stating that it was a reasonable or necessary requirement. 
Of the roughly 110 commenters that addressed the proposed marking 
requirements, most supported requiring identification markings on small 
UAS.
    On December 16, 2015, subsequent to the issuance of the NPRM for 
this rule, the FAA published the Registration and Marking Requirements 
for Small Unmanned Aircraft interim final rule (Registration 
Rule).\147\ In the Registration Rule, the FAA considered and addressed 
the comments it received in response to the registration and marking 
proposals in the NPRM for this rule. As a result, the Registration Rule 
provided a streamlined and simple web-based aircraft registration 
process for the registration of small unmanned aircraft, as well as a 
simpler method for marking small unmanned aircraft. The Registration 
Rule invited further comment on its contents and the FAA will consider 
any significant issues that are raised by the commenters.
---------------------------------------------------------------------------

    \147\ Registration and Marking Requirements for Small Unmanned 
Aircraft, 80 FR 78594 (Dec. 16, 2015).
---------------------------------------------------------------------------

    Because the registration and marking components that were 
originally part of

[[Page 42175]]

the NPRM for this rule are now being addressed in a different 
rulemaking (the Registration Rule), these components are no longer a 
part of this rule. Thus, instead of imposing any new registration or 
marking requirements, this rule will simply require that any person 
operating a civil small UAS for purposes of flight comply with the 
existing requirements of Sec.  91.203(a)(2). Section 91.203(a)(2) 
requires a person operating a civil small unmanned aircraft to have an 
effective U.S. registration certificate that is readily available to 
the owner or operator, as applicable.\148\
---------------------------------------------------------------------------

    \148\ Id. at 78623.
---------------------------------------------------------------------------

H. Fraud and False Statements

    Currently, the U.S. criminal code prohibits fraud and falsification 
in matters within the jurisdiction of the executive branch.\149\ The 
FAA too may impose civil sanctions in instances of fraud and 
falsification in matters within its jurisdiction.\150\
---------------------------------------------------------------------------

    \149\ 18 U.S.C. 1001.
    \150\ The FAA has exercised this power in 14 CFR 61.59, 67.403, 
121.9, and 139.115, which currently impose civil prohibitions on 
fraud and false statements made in matters within the FAA's 
jurisdiction.
---------------------------------------------------------------------------

    The NPRM proposed to prohibit a person from making a fraudulent or 
intentionally false record or report that is required for compliance 
with the provisions of part 107. The NPRM also proposed to prohibit a 
person from making any reproduction or alteration, for a fraudulent 
purpose, of any certificate, rating, authorization, record, or report 
that is made pursuant to part 107. Finally, the NPRM proposed to 
specify that the commission of a fraudulent or intentionally false act 
in violation of Sec.  107.5(a) could result in the denial, suspension, 
or revocation of a certificate or waiver issued by the FAA pursuant to 
this proposed rule. For the reasons discussed below, this rule will 
finalize these provisions as proposed with some minor revisions for 
clarification purposes.
    Three organizations and one individual commented on the proposal to 
prohibit fraud and false statements, and all of those commenters 
generally supported the proposal. For example, the Small UAV Coalition 
stated that they support the FAA's proposal to prohibit intentionally 
false or fraudulent documents used to show compliance with part 107, 
and added that such false or fraudulent records or reports warrant 
enforcement action. One individual supported ``heavy fines or jail'' 
for those providing false information.
    Two commenters, the University of North Dakota's John D. Odegard 
School of Aerospace Sciences and the Institute of Makers of Explosives, 
requested clarification as to the penalties that could be imposed for 
violating the prohibition on fraud and false statements. The University 
of North Dakota's John D. Odegard School of Aerospace Sciences asked 
whether FAA Order 2150.3B would be applicable in its existing form to 
operations under part 107 and if so, whether the sanctions guideline 
ranges described in that publication are appropriate for violations of 
part 107.
    Subpart C of 14 CFR part 13 specifies the penalties that the FAA 
may impose in response to a regulatory violation. To provide further 
clarity, the FAA has amended Sec.  107.5 with a list of potential 
sanctions that could be imposed in response to a violation of Sec.  
107.5. Those sanctions may, among other things, include a civil penalty 
or certificate action. The FAA has also issued generally applicable 
guidance on sanctions that may be imposed for regulatory violations, 
which can be found in FAA Order 2150.3B. The FAA is currently 
considering whether Order 2150.3B addresses UAS-specific considerations 
that may arise in enforcement actions under part 107, and the agency 
may revise this order, as appropriate, to reflect this consideration.

I. Oversight

    This section discusses two aspects of FAA oversight of part 107 
small UAS operations. First, this section discusses inspection, 
testing, and demonstration of compliance requirements applicable to a 
part 107 operation. Second, this section discusses the accident-
reporting requirements that part 107 will impose on the remote pilot in 
command.
1. Inspection, Testing, and Demonstration of Compliance
    The FAA's oversight statutes, codified at 49 U.S.C. 44709 and 
46104, provide the FAA with broad investigatory and inspection 
authority for matters within the FAA's jurisdiction. Under section 
46104, the FAA may subpoena witnesses and records, administer oaths, 
examine witnesses, and receive evidence at a place in the United States 
that the FAA designates. Under section 44709, the FAA may ``reinspect 
at any time a civil aircraft, aircraft engine, propeller, appliance, 
design organization, production certificate holder, air navigation 
facility, or agency, or reexamine an airman holding a certificate 
issued [by the FAA].''
    The NPRM proposed to codify the FAA's oversight authority in 
proposed Sec.  107.7. First, Sec.  107.7 would require the airman, 
visual observer, or owner of a small UAS to, upon FAA request, allow 
the FAA to make any test or inspection of the small unmanned aircraft 
system, the airman, and, if applicable, the visual observer to 
determine compliance with the provisions of proposed part 107. Second, 
Sec.  107.7 would require an airman or owner of a small UAS to, upon 
FAA request, make available to the FAA any document, record, or report 
required to be kept by the applicable FAA regulations. For the reasons 
discussed below, this rule will finalize these provisions as 
proposed.\151\
---------------------------------------------------------------------------

    \151\ The original provisions in the NPRM referred to 
``operator.'' However, due to the change in crewmember titles 
(discussed in section III.E.1 of this preamble), the term 
``operator'' has been replaced by the remote pilot in command.
---------------------------------------------------------------------------

    The Department of Defense Policy Board on Federal Aviation 
suggested that Sec.  107.7(a) be reworded to limit its applicability to 
``civil operators,'' not operators in general. The commenter asserted 
that this change would preserve public operators' statutory 
authorities.
    As discussed in section III.C.3 of this preamble, the applicability 
of part 107 is limited to civil aircraft. Thus, part 107 will not apply 
to public aircraft operations. Because public aircraft operations will 
not be subject to Sec.  107.7 (or any other provision of part 107) 
there is no need to amend the regulatory text of Sec.  107.7 with 
regard to civil aircraft.
    The Kansas State University UAS Program asked the FAA to clarify, 
with respect to Sec.  107.7(b), what types of tests or inspections 
could be performed on the remote pilot or visual observer. 
Specifically, the commenter suggested that the FAA define whether such 
persons could be subjected to blood alcohol tests, drug tests, or 
knowledge tests. They also recommend that the section be reworded to 
reference Sec.  91.17(c).
    Section 107.7(b) codifies the FAA's authority under 49 U.S.C. 44709 
and 46104, which allow the FAA to inspect and investigate the remote 
pilot. This may involve a review, reinspection, or requalification of 
the remote pilot. With regard to requalification, 49 U.S.C. 44709 and 
Sec.  107.7(b) allow the FAA to reexamine a remote pilot if the FAA has 
sufficient reason to believe that the remote pilot may not be qualified 
to exercise the privileges of his or her certificate. Additional 
guidance concerning the reexamination process can be found in FAA Order 
8900.1, ch. 7, sec. 1.
    Pertaining to the visual observer, as an active participant in 
small UAS operations, this person may be questioned with regard to his 
or her

[[Page 42176]]

involvement in the operation. For example, if an FAA inspector has 
reason to believe that a visual observer was not provided with the 
preflight information required by Sec.  107.49, the inspector may ask 
the visual observer questions to ascertain what happened. Because the 
visual observer is not an airman, the visual observer will not be 
subject to reexamination.
    With regard to Sec.  91.17(c), the FAA notes that, as discussed in 
section III.E.7.b of this preamble, Sec.  107.27 will, among other 
things, require the remote pilot in command, the visual observer, and 
the person manipulating the flight controls of a small UAS to comply 
with Sec.  91.17. This includes compliance with the alcohol-testing 
requirements of Sec.  91.17(c).
    The City and County of Denver, Colorado suggested that airports be 
given the same rights as those granted to the FAA under Sec.  107.7(b). 
The commenter argued that airport operators have a duty to protect 
airport property, and that that duty can be fulfilled only when the 
airport operator has the opportunity to determine the nature and 
airworthiness of a small UAS.
    AUVSI suggested that the FAA allow designated representatives 
pursuant to 14 CFR part 183 to act on behalf of the Administrator in 
order to determine compliance with the new regulatory standards. The 
commenter asserted that the FAA will not have the necessary manpower or 
financial resources required to allow the UAS industry and its 
technology to continue to evolve at its own pace. An individual 
commenter suggested that the FAA delegate compliance and enforcement 
authority to law enforcement officers and NTSB representatives.
    The FAA's statute does not authorize the agency to delegate its 
formal enforcement functions. Because it lacks the pertinent statutory 
authority, the FAA cannot delegate its enforcement functions in the 
manner suggested by the commenters. The FAA notes, however, that even 
though it cannot delegate its formal enforcement functions, it has 
worked closely with outside stakeholders to incorporate their 
assistance in its oversight processes. For example, the FAA has 
recently issued guidance to State and local law enforcement agencies to 
support the partnership between the FAA and these agencies in 
addressing unauthorized UAS activities.\152\ The FAA anticipates 
continuing its existing partnerships to help detect and address 
unauthorized UAS activities, and the agency will consider other 
stakeholders' requests to be part of the process of ensuring the safe 
and lawful use of small UAS.
---------------------------------------------------------------------------

    \152\ A copy of the guidance document can be found at: https://www.faa.gov/uas/regulations_policies/media/FAA_UAS-PO_LEA_Guidance.pdf.
---------------------------------------------------------------------------

    One individual suggested that a remote pilot in command must enable 
and make available to the FAA any flight log recording if the aircraft 
and/or control station is capable of creating such a recording. In 
response, the FAA notes that this rule does not require that a small 
UAS operation have the capability to create a flight log recording. 
However, if a small UAS does create such a recording, Sec.  107.7(b) 
will allow the FAA to inspect the small UAS (including the recording 
made by the small UAS) to determine compliance with the provisions of 
part 107.
    One individual suggested that the wording of Sec.  107.7(b) be 
modified to permit the FAA to conduct only ``non-destructive testing'' 
in the event of a reported violation of one or more provisions of part 
107. The commenter asserts that, as written, Sec.  107.7(b) would 
permit the FAA to ``destructively test'' every small UAS ``on whim.''
    The FAA declines this suggestion because there could be 
circumstances where destructive testing of a small UAS may be necessary 
to determine compliance with part 107. The FAA emphasizes, however, 
that this type of decision would not be made lightly and would not be 
part of a typical FAA inspection. For example, the FAA's guidance to 
FAA inspectors about how to conduct a typical ramp inspection 
specifically focuses on non-destructive methods that the inspector can 
use to determine whether an aircraft is in compliance with FAA 
regulations.\153\ The FAA anticipates that, just as with manned 
aircraft, destructive testing of a small UAS will, if ever conducted, 
occur highly infrequently.
---------------------------------------------------------------------------

    \153\ See FAA Order 8900.1, ch. 1, sec. 4, par. 6-100(G)-(I).
---------------------------------------------------------------------------

    One individual recommended that Sec.  107.7 be modified to require 
a remote pilot to make a photo ID available to the FAA on demand. The 
FAA did not propose this requirement in the NPRM, and as such, it is 
beyond the scope of this rule.
2. Accident Reporting
    To ensure proper oversight of small UAS operations, the NPRM 
proposed to require a small UAS operator to report to the FAA any small 
UAS operation that results in: (1) Any injury to a person; or (2) 
damage to property other than the small unmanned aircraft. The report 
would have to be made to the FAA within 10 days of the operation that 
resulted in injury or damage to property. After receiving this report, 
the FAA may conduct further investigation to determine whether any FAA 
regulations were violated.
    The NPRM invited comments as to whether this type of accident 
reporting should be required. The NPRM also invited comments as to 
whether small UAS accidents that result in minimal amounts of property 
damage should be exempted from the reporting requirement, and, if so, 
what threshold of property damage should trigger the accident reporting 
requirement. For the reasons discussed below, this rule will require 
accident reporting of accidents that result in at least: (1) Serious 
injury to any person or any loss of consciousness; or (2) damage to any 
property, other than the small unmanned aircraft, unless the cost of 
repair (including materials and labor) or fair market value in the 
event of total loss does not exceed $500.
    Most of the commenters who addressed this issue generally supported 
an accident reporting requirement. However, the commenters questioned 
whether the proposed requirement to report any injury or property 
damage is too broad because it does not consider the severity of the 
injury or property damage. To correct what they also saw as an overly 
broad accident reporting requirement, most of the commenters 
recommended the proposed requirement be amended to stipulate that 
reporting is required only for operations that cause injury or property 
damage above certain thresholds.
    A number of commenters recommended general thresholds for 
reportable injuries and property damage. For example, the Drone User 
Group Network said an operation should be reportable if it involves 
``significant'' injury or property damage. The University of North 
Dakota's John D. Odegard School of Aerospace Sciences said an operation 
should be reportable if it involves ``serious'' injury or 
``substantial'' property damage; such a requirement, the commenter 
pointed out, is in line with the NTSB definition of ``occurrence'' and 
the FAA definition of ``accident.'' AIA suggested a reporting 
requirement for operations causing ``serious bodily harm (those 
requiring hospitalization, for instance)'' or ``substantial'' property 
damage. AUVSI, University of North Carolina System, and Prioria said 
operations resulting in minor injuries or minimal damage to property 
should not be required to be reported in the same manner as more 
serious injuries or substantial damage to property. UPS said an 
operation should be reportable if it causes an injury that requires 
medical attention or property

[[Page 42177]]

damage that exceeds a threshold amount ``sufficient to exclude 
insignificant incidents.'' An individual commenter recommended a 
reporting requirement for operations that result in injury or property 
damage ``which is over the upper monetary limit of the small claims 
court jurisdiction.''
    Several commenters recommended more specific thresholds for 
reportable injuries and property damage. These commenters generally 
recommended a requirement that the injury caused by the operation be 
one that necessitates some sort of medical attention and that the 
property damage caused by the operation exceed some minimum monetary 
threshold, ranging from $100 to $25,000. For example, commenters 
recommended some of the following specific thresholds be added to the 
proposed accident reporting requirement:
     Modovolate Aviation and Aviation Management said an 
operation should be reportable if it causes injury requiring 
``hospitalization or other treatment by a provider of medical care,'' 
or ``professional medical assistance,'' respectively, or property 
damage of $1,000.
     NBAA said an operation should be reportable if a person 
has to seek medical treatment as a result of the operation or if 
property damage exceeds $1,000 or if a police report is filed.
     NAMIC said an operation should be reportable if it causes 
injury ``requiring professional medical treatment'' or property damage 
greater than $2,000.
     The Travelers Companies said an operation should be 
reportable if it causes ```serious' injuries caused by impact of the 
UAS'' or property damage of over $5,000.
     Clean Gulf Associations said an operation should be 
reportable if it causes injury ``which requires professional medical 
treatment beyond first aid or death to any person'' or property damage 
greater than $10,000.
     Jam Aviation said an operation should be reportable if it 
causes injury ``that requires emergency medical attention'' or property 
damage that exceeds $25,000 or fair market value in the event of total 
loss, whichever is less.
     Skycatch, Clayco, AECOM, and DPR Construction said an 
operation should be reportable if it causes injury ``requiring 
assistance of trained medical personnel'' or property damage in excess 
of $20,000.
    The California Department of Transportation, Virginia Commonwealth 
University Honors Students, Southern Company, and a few individual 
commenters suggested that the accident reporting requirement in this 
rule should be modeled after the accident reporting requirement for 
manned aircraft, which, among other things, requires an operator to 
notify NTSB of an accident resulting in death or ``serious injury'' 
(see 49 CFR 830.2) or of damage to property, other than the aircraft, 
estimated to exceed $25,000 for repair (including materials and labor) 
or fair market value in the event of total loss, whichever is less. 
(See 49 CFR 830.5(a)(6)).
    The Kansas State University UAS Program and Cherokee Nation 
Technologies said the FAA should follow the NTSB reporting requirement 
for property damage, but made no comment regarding the injury component 
of the proposed accident reporting requirement. NTSB also pointed to 
the manned-aircraft reporting requirement for property damage and 
suggested the FAA take this, and other criteria included in 49 CFR part 
830, into account. An individual commenter pointed out that the NTSB 
has specific reporting requirements for UAS, and said the FAA's 
proposed accident reporting requirement should therefore be amended to 
begin with the phrase: ``In addition to UAS accident/incident reporting 
requirement of the National Transportation Safety Board. . . .''
    Several other commenters also only addressed the property damage 
component of the accident reporting requirement. An individual 
commenter said no accident need be reported where the property damage 
is considered inconsequential by the owner of the property. SkySpecs 
recommended a reporting requirement for property damage above $100, or 
if an insurance report is filed. The Center of Innovation-Aerospace, 
Georgia Department of Economic Development recommended a $500 
threshold, which it said is a common deductible amount for property and 
automobile insurance. The Oklahoma Governor's Unmanned Aerial Systems 
Council (which explicitly supported the proposed requirement to report 
all accidents resulting in any injury) expressed concern that a 
threshold lower than $1,000 would result in unnecessary and burdensome 
reporting of information and data that would not be beneficial to the 
FAA, the public, or the industry in general. The American Insurance 
Association recommended a $5,000 threshold for property damage. The 
Small UAV Coalition (who also supported the proposed requirement to 
report accidents causing any injury) said accidents resulting in 
property damage should only be reportable if the damage caused is to 
the property of someone not involved in the operation. The commenter 
did not propose a minimum monetary threshold for this property damage 
to be reportable.
    DJI, which opposed applying the NTSB accident reporting criteria to 
small UAS, suggested that the FAA look to how other Federal agencies, 
such as the National Highway Traffic Safety Administration, categorize 
injury by level of severity. Airport Council International-North 
America and Clean Gulf Associations said the injury component of the 
proposed accident reporting requirement should be expanded to include a 
requirement to report all accidents resulting in death.
    Two commenters specifically addressed operations in an industrial 
setting that may result in injury or property damage. The American 
Chemistry Council said there should be no reporting requirement for 
operations in an industrial setting that cause workplace injuries that 
are covered by OSHA reporting requirements or cause less than $25,000 
in damage to private property that is owned and operated by the 
facility owner. Associated General Contractors of America also 
encouraged the FAA to exclude any operations resulting in ``OSHA-
recordable'' injuries. The commenter further recommended the FAA 
exclude operations resulting in ``de minimis'' property damage from the 
reporting requirement.
    The FAA agrees with commenters who suggested that injuries and 
property damage falling below certain thresholds should not be 
reportable. Requiring remote pilots in command to report minimal 
injuries (such as a minor bruise from the unmanned aircraft) or minimal 
property damage (such as chipping a fleck of paint off an object) would 
impose a significant burden on the remote pilots. This burden would not 
correspond to a safety/oversight benefit because an operation resulting 
in minimal injury or minimal property damage may not correspond with a 
higher likelihood of a regulatory violation.
    In determining the threshold at which to set injury reporting, the 
FAA agrees with commenters who suggested that the threshold should 
generally be set at serious injury. A serious injury is an injury that 
qualifies as Level 3 or higher on the Abbreviated Injury Scale (AIS) of 
the Association for the Advancement of Automotive Medicine. The AIS is 
an anatomical scoring system that provides a means of ranking the 
severity of an injury and is widely used by emergency medical 
personnel. Within the AIS system, injuries are ranked on a scale of 1 
to 6, with Level 1 being a minor injury, Level 2 moderate, Level 3

[[Page 42178]]

serious, Level 4 severe, Level 5 critical, and Level 6 a non-survivable 
injury. An AIS Level 3 injury is one that is reversible but usually 
involves overnight hospitalization.

                           AIS Severity Levels
------------------------------------------------------------------------
            AIS Level                  Severity         Type of injury
------------------------------------------------------------------------
1...............................  Minor.............  Superficial.
2...............................  Moderate..........  Reversible injury;
                                                       medical attention
                                                       required.
3...............................  Serious...........  Reversible injury;
                                                       hospitalization
                                                       required.
4...............................  Severe............  Life threatening;
                                                       not fully
                                                       recoverable
                                                       without medical
                                                       care.
5...............................  Critical..........  Non-reversible
                                                       injury;
                                                       unrecoverable
                                                       even with medical
                                                       care.
6...............................  Virtually Un-       Fatal.
                                   Survivable.
------------------------------------------------------------------------

    The FAA currently uses serious injury (AIS Level 3) as an injury 
threshold in other FAA regulations.\154\ DOT and FAA guidance also 
express a preference for AIS methodology in classifying injuries for 
the purpose of evaluating the costs and benefits of FAA 
regulations.\155\ Additionally, the U.S. National Highway Traffic 
Safety Administration (NHTSA) uses AIS level 3 injuries as the metric 
evaluating the effectiveness of occupant safety measures for 
automobiles \156\ and for estimating the costs associated with 
automobile accidents.\157\ The FAA has significant operational 
experience administering the serious-injury threshold and because the 
AIS Level 3 standard is widely used and understood, it is the 
appropriate injury threshold to use in this rule.
---------------------------------------------------------------------------

    \154\ See Licensing and Safety Requirements for Launch, 
Supplemental Notice of Proposed Rulemaking, 67 FR 49456, 49465, July 
30, 2002.
    \155\ See Economic Values for FAA Investment and Regulatory 
Decisions, sec. 2, available at: https://www.faa.gov/regulations_policies/policy_guidance/benefit_cost/media/econ-value-section-2-tx-values.pdf. See also DOT Guidance on Treatment of the 
Economic Value of a Statistical Life in U.S. Department of Aviation 
Analyses, available at https://www.transportation.gov/sites/dot.dev/files/docs/VSL%20Guidance.doc.
    \156\ Office of Regulatory Analysis and Evaluation, National 
Center For Statistics And Analysis, FMVSS No. 214 Amending Side 
Impact Dynamic Test Adding Oblique Pole Test, (Aug. 2007).
    \157\ Blincoe, L. et al, The Economic Impact of Motor Vehicle 
Crashes, DOT HS 809 446 (May 2000).
---------------------------------------------------------------------------

    In addition to serious injuries, this rule will also require 
accident reporting for accidents that result in any loss of 
consciousness because a brief loss of consciousness may not rise to the 
level of a serious injury. However, the confined-area-of-operation 
regulations discussed in section III.E.3 of this preamble, such as the 
general prohibition on flight over people, are designed with the 
express purpose of preventing accidents in which a small unmanned 
aircraft hits a person on the head and causes them to lose 
consciousness or worse. Thus, if there is a loss of consciousness 
resulting from a small UAS operation, there may be a higher probability 
of a regulatory violation.
    With regard to the threshold for reporting property damage, the FAA 
agrees with the Center of Innovation-Aerospace, Georgia Department of 
Economic Development, which suggested a property damage threshold of 
$500. Property damage below $500 is minimal and may even be part of the 
remote pilot in command's mitigations to ensure the safety of the 
operation. For example, a remote pilot in command may mitigate risk of 
loss of positive control by positioning the small UAS operation such 
that the small unmanned aircraft will hit uninhabited property in the 
event of a loss of positive control. However, property damage above 
$500 is not minimal, and as such, this rule will require reporting of a 
small UAS accident resulting in property damage exceeding $500.
    In calculating the property damage, the FAA notes that sometimes, 
it may be significantly more cost-effective simply to replace a damaged 
piece of property rather than repair it. As such, for purposes of the 
accident-reporting requirement of part 107, property damage will be 
calculated by the lesser of the repair price or fair market value of 
the damaged property. For example, assume a small UAS accident that 
damages a piece of property whose fair market value is $200. Assume 
also that it would cost $600 to repair the damage caused by the small 
UAS accident. In this scenario, the remote pilot in command would not 
be required to report the accident because the fair market value would 
be lower than the repair cost, and the fair market value would be below 
$500. The outcome would be the same if the values in the scenario are 
reversed (repair cost of $200 and fair market value of $600) because 
the lower value (repair cost) would be below $500.
    Transport Canada questioned whether small UAS operators would be 
permitted to continue operating their UAS after experiencing an 
accident/incident, or whether they would be expected to cease 
operations until the accident has been reported and the causal factors 
addressed. In response, the FAA notes that a remote pilot would need to 
cease operations only if the FAA revokes or suspends the remote pilot 
certificate or the unmanned aircraft, as a result of the accident, is 
no longer in a condition for safe operation in accordance with part 
107.
    A few commenters recommended changes to the 10-day deadline for 
reporting operations that result in injury or property damage. The 
American Insurance Association said the reporting deadline should be 
changed to 10 business days. The Kansas State University UAS Program 
recommended a 3-day reporting deadline. The Professional Helicopter 
Pilots Association and Virginia Department of Aviation recommended a 
48-hour reporting deadline, while an individual commenter suggested a 
24-hour deadline. The Oregon Department of Aviation also recommended 
the FAA shorten the proposed 10-day reporting deadline, but did not 
suggest an alternative deadline. DroneView Technologies suggested a 3-
hour reporting deadline.
    An accident triggering the reporting requirement of Sec.  107.9 may 
involve extensive injuries or property damage. The remote pilot in 
command's first priority should be responding to the accident by, among 
other things, ensuring that any injured people receive prompt medical 
attention. Having to immediately draft an accident report for the FAA 
may interfere with that priority, and as such, the FAA declines to make 
the reporting deadline shorter than the 10 calendar days proposed in 
the NPRM. The FAA also declines to extend the reporting deadline beyond 
10 calendar days because 10 days should provide a sufficient amount of 
time to respond to the accident and draft an accident report for the 
FAA.
    Several other commenters, including NBAA, and NAMIC, recommended 
that the FAA create an online reporting system. NBAA also recommended 
the FAA work with NASA to determine what modifications if any would be 
required to the Aviation Safety Reporting System (ASRS) to accommodate 
small UAS reports. An individual commenter similarly recommended the 
ASRS be expanded to allow small UAS operators to make reports of unsafe 
actions on the part of manned aircraft or other small UAS operators. 
That commenter also suggested the FAA consider creating an online 
reporting mechanism for operators to voluntarily provide operational 
data without fear of enforcement actions being taken against them. GAMA 
requested that the FAA review the agency's Near-Midair Collision System 
(NMACS) incident

[[Page 42179]]

reporting system to ensure that the existing business rules for 
reporting NMACs appropriately consider UAS. Texas A & M University-
Corpus Christi/LSUASC suggested the COA online portal be used for 
accident reporting. Virginia Commonwealth University Honors Students 
also stated that reporting of incident data to the U.S. Department of 
Interior's SAFECOM system should continue as well.
    This rule will allow an accident report to be submitted to the FAA 
electronically. The part 107 advisory circular provides guidance about 
how to electronically submit an accident report.
    Several commenters recommended that certain incidents other than 
operations resulting in injury or property damage should also be 
reportable. The State of Nevada, the Nevada Institute for Autonomous 
Systems, and the Nevada FAA-designated UAS Test Site, commenting 
jointly, said the accident reporting requirement should be expanded to 
include a requirement to report any ``lost platform'' incident. ALPA, 
AIA, AUVSI, and University of North Carolina System also said the 
proposed rule should include a reporting requirement for ``lost link'' 
or ``fly away'' incidents. ALPA asserted that such a reporting 
requirement will allow the FAA to develop hard data on the reliability 
of these systems and therefore more accurately evaluate risk.
    Modovolate said operations that involve complete loss of control or 
failure of automated safety systems such as airspace exclusion or 
return to home should also be reportable. An individual commenter said 
reports should be filed for operations where there is: Failure of the 
control device, failure of the flight control system, flyaway (lateral 
or vertical), loss of control as a result of either electrical failure 
or radio interference, or a close encounter with a manned aircraft 
where the manned aircraft was observed to make ``an abrupt avoidance 
maneuver.'' Airport Council International-North America similarly 
recommended the accident reporting requirement be expanded to include 
an operation where an operator was required to take evasive action to 
avoid manned aircraft, especially in cases where such actions took 
place within 5 miles of airports. The Professional Helicopter Pilots 
Association recommended a reporting requirement for all accidents 
involving other aircraft during flight (whether manned or unmanned), as 
well as all accidents resulting in substantial damage to the operator's 
UAS.
    CAPA noted that the proposal does not address reporting ``HATR or 
other incidents that do not rise to the level or property damage or 
injury.'' The commenter recommended these incidents be reported and 
tracked ``to ensure this policy is effective and continues to provide 
safe operating procedures for small UAS operations as they interface 
with commercial and civil aviation traffic.'' ALPA suggested there 
would be a potential safety benefit to establishing a process for small 
UAS owners to report malfunctions, identified defects, and other in-
service problems. ALPA noted that this operational data could be used 
in subsequent risk evaluation.
    The purpose of the accident-reporting requirement in this rule is 
to allow the FAA to more effectively allocate its oversight resources 
by focusing on potential regulatory violations that resulted in 
accidents. The FAA declines to mandate reporting of other events, such 
as the ones suggested by the commenters, because they do not rise to 
the level of a significant accident. The FAA notes, however, that a 
regulatory violation can occur without resulting in a serious accident 
and any regulatory violation may be subject to enforcement action.
    The FAA also notes that the Aviation Safety Reporting System (ASRS) 
is available for voluntary reporting of any aviation safety incident or 
situation in which aviation safety may have been compromised. The FAA 
offers ASRS reporters guarantees and incentives to encourage reporting 
by holding ASRS reports in strict confidence and not using ASRS 
information against reporters in enforcement actions. Further, the FAA 
agrees that data collection is a valuable tool for determining a 
baseline for performance, reliability, and risk assessment. The FAA 
plans to develop a tool where remote pilots of small UAS can 
voluntarily share data which may not meet the threshold for accident 
reporting. This would provide a means for evaluation of operational 
integrity for small UAS.
    NOAA supported the proposed accident reporting requirement, but 
said it should be expanded to include a requirement to report an 
operation that results in injury to protected wildlife. NOAA asserted 
that because many wildlife are also federally regulated, managed, and/
or protected species, it is critical that the FAA require reporting of 
injury to these species, so other Federal agencies and interested 
parties can assess potential hazards caused by small UAS.
    The FAA currently provides a way for all aircraft operators in the 
NAS to voluntarily report wildlife strikes. Small UAS remote pilots who 
encounter a wildlife strike may also submit a report. Further, remote 
pilots may be obligated to report death or injury to wildlife under 
Federal, State, or local law.
    A few commenters opposed the imposition of an accident reporting 
requirement. Trimble argued that the damage a small UAS can cause is 
``sufficiently small'' that operators should not have an obligation to 
report an accident to the FAA or NTSB. Instead, the commenter said, if 
an operator is unable to land a small UAS safely and an incident 
occurs, the operator should only be required to notify local law 
enforcement. An individual commenter who opposed a reporting 
requirement recommended ``developing law enforcement relationships to 
facilitate investigations, insurance claims, etc.''
    The FAA disagrees with commenters who suggested that no data should 
be reported to the FAA. As discussed earlier, the FAA plans to use data 
collected from these reports to more effectively allocate its oversight 
resources. In response to the argument that accidents caused by small 
UAS are small, the FAA notes that reporting for accidents resulting in 
minor injuries or property damage below $500 will not be required.
    The FAA has long-established relationships with law enforcement and 
values the assistance that law enforcement provides during accident/
incident investigations. However, as discussed earlier, the FAA cannot 
delegate its formal enforcement authority to other entities such as 
local law enforcement personnel.

J. Statutory Findings

    In order to determine whether certain UAS may operate safely in the 
NAS pursuant to section 333 of Public Law 112-95, the Secretary must 
find that the operation of the UAS will not: (1) Create a hazard to 
users of the NAS or the public; or (2) pose a threat to national 
security.\158\ The Secretary must also determine whether small UAS 
operations subject to this proposed rule pose a safety risk sufficient 
to require airworthiness certification.\159\
---------------------------------------------------------------------------

    \158\ Sec. 333(b)(1).
    \159\ Sec. 333(b)(2).
---------------------------------------------------------------------------

1. Hazard to Users of the NAS or the Public
    Pursuant to section 333 of Public Law 112-95, the Secretary 
proposed to find that small UAS operations subject to part 107 would 
not create a hazard to users of the NAS or the public. The Secretary 
proposed this finding after

[[Page 42180]]

concluding that the two primary safety concerns associated with small 
UAS operations--the ability to ``see and avoid'' other aircraft with no 
pilot on board and the operator losing positive control of the small 
unmanned aircraft--would be mitigated by the other provisions of the 
proposed rule. The NPRM invited comments on the proposed finding that 
small UAS operations subject to the proposed rule would not create a 
hazard to users of the NAS or the public.
    NRECA and NBAA supported the proposed finding, without further 
comment. NetMoby and Planehook, on the other hand, disagreed with the 
proposed finding. NetMoby argued that ``[s]imply because the UAS is 
smaller than a manned aircraft does not necessarily mean that it does 
not pose a risk to the NAS or the public.'' Planehook argued that while 
operations conducted by ``properly trained and conscientious 
operators'' may not create a hazard to users of the NAS or the public, 
an operator may operate his or her small UAS in such a way that the 
operation does pose a hazard.
    One commenter disagreed with the FAA's analysis of public risk, and 
therefore with the proposed finding that small UAS operations subject 
to the proposed rule would not create a hazard to users of the NAS or 
the public.
    The FAA acknowledges NetMoby and Planehook's comments that even a 
small aircraft or a small UAS operated in a careless or reckless manner 
can cause a hazard to the NAS and the public. However the Secretary's 
finding is based on small UAS operations subject to the mitigations of 
part 107. Any operations conducted in a careless or reckless manner 
would be in violation of part 107. Additionally, although a smaller 
aircraft may pose a reduced hazard as compared to larger manned 
aircraft, the Secretary's finding is not based on the size of the 
aircraft alone. Rather, the combination of mitigations provided by part 
107, including requiring operations to be conducted within visual line 
of sight; limiting maximum gross weight of the small unmanned aircraft 
to be below 55 pounds; limiting the operating altitude to below 400 
feet AGL; requiring remote pilots to be certificated; defining area of 
operation; and prohibiting operations over any person not directly 
participating in the operation, support the Secretary's finding that 
this rule will not create a hazard to users of the NAS or the public.
    In response to the individual commenter who disagreed with the 
Department's analysis of public risk, the agency notes that its hazard 
determination is based on the mitigations required by part 107, rather 
than the public risk as determined by calculating the probability of a 
small UAS harming an individual. Because small UAS come in many 
different shapes and sizes, and with varied capabilities, the FAA 
determined what hazards all small unmanned aircraft pose to the NAS and 
the public, and then put mitigations into part 107 to reduce those 
hazards. Based on these mitigations, the Secretary finds that 
operations subject to and compliant with part 107 pose no hazard to the 
public and the NAS.
2. National Security
    Section 333 of Public Law 112-95 also requires the Secretary to 
determine whether the operation of UAS subject to this rule would pose 
a threat to national security. Part 107 will expand small UAS 
operations in the NAS to include non-hobby and non-recreational 
operations. Under part 107, these operations will be subject to 
specific requirements, such as being able to operate only during 
daylight (or civil twilight if there is anti-collision lighting) and 
only within visual line of sight of the remote pilot in command, the 
person manipulating the flight controls of the small UAS, and, if 
applicable, a visual observer.
    In addition, the remote pilot in command of the small unmanned 
aircraft must obtain an FAA-issued remote pilot certificate with a 
small UAS rating. The process for obtaining this certificate includes 
the same TSA-review procedures that are currently used under 49 U.S.C. 
46111 in order to screen out airman-certificate applicants who pose a 
security risk. Because the above provisions will limit the security 
risk that could be posed by small UAS operations subject to this rule, 
the Secretary proposed to find that these small UAS operations will not 
pose a threat to national security. The Department invited comments on 
this finding, and around 45 individuals and organizations commented on 
this subject.
    Several commenters, including Aerius Flight and NRECA, explicitly 
agreed with the Secretary's proposed finding that small UAS operating 
under part 107 will not pose a threat to national security.
    A number of other commenters identified ways in which small UAS 
could be used to threaten national security. Numerous commenters, 
including the International Brotherhood of Teamsters, American Fuel & 
Petrochemical Manufacturers, and Institute of Makers of Explosives, 
discussed the potential use of small UAS for criminal or terrorist 
purposes. The Teamsters noted several recent high-profile security 
breaches in the United States and Japan involving small UAS, and 
suggested that allowing package delivery would have the unintended 
result of facilitating the delivery and deployment of dangerous 
substances.
    The Edison Electrical Institute and the American Petroleum 
Institute expressed concerns about the potential threat posed by small 
UAS to the nation's critical energy infrastructure. API suggests that 
petroleum and natural gas storage and transportation infrastructure 
(e.g., pipelines) are critical to national security, and therefore the 
final rule should prohibit the unauthorized use of small UAS ``within 
appropriate limiting distance'' from such facilities or operations as 
refineries, distribution terminals, pipelines and similar 
infrastructure.
    The Electronic Privacy Information Center provided great detail on 
the vulnerability of UAS to hacking, and stated that ``[t]he 
integration of drones into the NAS will mean that thousands of new, 
hackable devices will be hovering over our homes and streets without 
any clear security guidance, despite known vulnerabilities.'' EPIC 
argued that the weak security of the civil GPS system presents a danger 
to UAS operators and to the general public, and that the FAA must 
address and mitigate these vulnerabilities before UAS are integrated 
into the NAS. One individual argued that because UAS radio frequencies 
can be jammed, UAS pose a threat to national security.
    Other commenters, including Planehook and the Travelers Companies, 
noted that there is no TSA vetting requirement for hobbyist operations 
conducted in accordance with section 336 of Public Law 112-95, and 
suggested that this will serve as a preexisting loophole for remote 
pilots with nefarious designs who may wish to evade security screening. 
Planehook further stated that many hobbyists already conduct operations 
in violation of the provisions of section 336, and that this may be an 
indication of the level of noncompliance with part 107 that the FAA 
should expect.
    The South Dakota Department of Agriculture connected the issue of 
national security with those of privacy and personal property. 
Asserting that our food supply is a matter of national security, the 
SDDA questioned why the FAA was leaving to the states, rather than 
addressing nationally, the areas of agricultural intellectual property 
(i.e., photographic crop monitoring) and

[[Page 42181]]

other operations over private agricultural land.
    In response to the comments raising various ways in which small UAS 
may be used to threaten national security, the Department notes that 
many of the examples provided would be in violation of part 107. For 
example, hacking or jamming a small UAS and taking over its functions 
would be in violation of the part 107 provisions prohibiting reckless 
operations, Sec.  107.23. The provisions of this rule are also not the 
only legal requirements that may be applicable to small UAS operations; 
there are additional Federal and State laws and regulations that may 
criminalize certain UAS activity. For example, 18 U.S.C. 32 
criminalizes the willful destruction of an aircraft or aircraft 
facilities. Hacking a small UAS may also violate Federal anti-hacking 
statutes such as the Computer Fraud and Abuse Act (18 U.S.C. 1030) as 
well as State and local anti-hacking laws. The Anti-Terrorism Act also 
serves as a deterrent for operating small UAS in a manner that 
threatens national security. A remote pilot willfully using his or her 
small UAS to, for example, destroy an aircraft or cause death or 
serious bodily injury, may be subject to the criminal penalties 
described in such statutes. The FAA notes that these additional laws 
and regulations would likely apply to hobbyists as well.
    With regard to hacking specifically, the FAA notes that the visual 
line-of-sight requirement in this rule serves as a highly effective 
detection tool for hacking activities. A skilled hacker may be able to 
manipulate technological monitoring systems to make it appear that no 
hacking is taking place. However, because this rule requires a human 
being to personally maintain visual line of sight of the unmanned 
aircraft, a hacker will be unable to manipulate human vision to make it 
appear that a compromised UAS is behaving normally. Thus, a remote 
pilot in command will be able to quickly notice whether someone else 
has taken control of their small UAS and alert the appropriate 
authorities.
    In response to the various commenters concerned about surveillance 
of airports, energy infrastructure, and agricultural intellectual 
property, the security risk associated with small UAS is far less than 
that posed by manned aircraft, to the extent such activities are not in 
violation of existing laws. Small UAS are unable to support the 
advanced level of surveillance equipment manned aircraft can carry. In 
addition, because of fuel and power limitations, small unmanned 
aircraft flight times currently do not exceed one hour, and the average 
small unmanned aircraft that is available to a consumer has a maximum 
flight time capability of 30 minutes or less. Unmanned aircraft on the 
larger side of the small UAS spectrum will generally have even shorter 
flight times because the heavier small unmanned aircraft require more 
energy to stay aloft. The provisions of this rule, which include a 
prohibition on nighttime operations and a requirement for the remote 
pilot to remain within visual line of sight of the aircraft, also 
impose restrictions that would severely limit possible nefarious 
surveillance that could be conducted using a small UAS. As such, the 
Department finds that small UAS, which are less capable than many other 
methods of surveillance currently available, are not a threat to 
national security when operated in accordance with part 107.
    A number of commenters argued that, given the ease with which a 
small UAS can be purchased and deployed, it is unlikely that a bad 
actor would submit to the remote pilot certification process including 
TSA security vetting. Commenters, including Matternet, NetMoby, and the 
UAS America Fund, stated that only well-intentioned and law-abiding 
remote pilots will submit to the TSA vetting that is included in the 
remote pilot certification process. CAPA generally agreed with the TSA 
vetting provision, but worried that the rule will not sufficiently 
address situations in which a remote pilot is initially cleared by the 
TSA but later becomes a security threat.
    The Department does not agree with the commenters that TSA vetting 
as required by statute (49 U.S.C. 44903(j)(2)(D)(i)) is an insufficient 
method to identify bad actors who wish to operate small UAS. The 
Department agrees that a bad actor may decide not to obtain a remote 
pilot certificate and submit to TSA security vetting procedures. 
However such an individual would be in violation of FAA regulations 
that require a remote pilot certificate and TSA vetting if he or she 
acts as a remote pilot in command. Adding more regulations for this 
individual to ignore would not increase the deterrent value of the 
FAA's regulations but would simply impose an additional burden on 
individuals who seek to operate lawfully. The FAA notes that after 
initial vetting, TSA conducts recurrent or daily vetting to ensure that 
certificate holders do not subsequently become a security threat. All 
FAA certificate holders are subject to this recurrent vetting, which 
serves to identify any certificate holder that may later become a 
security threat.
    The Department recognizes that this rule will, in certain 
circumstances, allow a person without a remote pilot certificate, and 
therefore not subject to TSA vetting, to manipulate the controls of a 
small UAS. However, this may only be done under the supervision of a 
certificated remote pilot in command who must have the ability to 
immediately take control of the aircraft at any time. Therefore, 
although there may be circumstances under which a non-certificated, 
non-TSA-vetted individual is manipulating the controls of a small UAS, 
under no circumstances will that individual be able to use the small 
UAS to jeopardize national security because he or she will be 
supervised by a certificated remote pilot who can wrest control of the 
vehicle at any time during the operation. This framework is similar to 
the manned-aircraft framework of part 61, which, in certain 
circumstances, allows an uncertificated individual to manipulate the 
controls of an aircraft under the supervision of a certificated airman.
3. Airworthiness Certification
    Pursuant to section 333(b)(2) of Public Law 112-95, the NPRM 
proposed not requiring small UAS to obtain airworthiness certification 
if the small UAS operation satisfied the provisions of proposed part 
107. Proposed part 107 would require that an operator maintain the 
small UAS in a condition for safe operation, and would prohibit an 
operator from operating a small UAS unless it was in a condition for 
safe operation. This condition would be determined during a required 
pre-flight inspection.
    More than 40 commenters supported the Department's proposal not to 
require an airworthiness certificate for small UAS. Many commenters 
favored not requiring an airworthiness certificate under this rule 
because it would be a burdensome process that would stifle technology 
advancements and delay research.
    Several commenters said airworthiness certificates are unnecessary 
because safety concerns can be mitigated by other means. The Kansas 
Farm Bureau and Continental Mapping Consultants, for example, said the 
requirements to maintain a small UAS in condition for safe operation 
and to conduct a preflight inspection are adequate for maintaining 
safety.
    Two commenters, the Small UAV Coalition and Modovolate Aviation, 
noted the expense of a type-, production-, or airworthiness 
certification requirement for small UAS. Modovolate Aviation stated 
that airworthiness certification ``would

[[Page 42182]]

impose unwarranted costs on vendors and operators of small UAS, 
discouraging their commercial use, and thus blunting their contribution 
to economic growth and American international competitiveness.'' 
Modovolate Aviation also asserted that delays caused by an 
airworthiness certification requirement would render candidate vehicles 
obsolete by the time they are certificated and would encourage 
operation of uncertificated vehicles.
    Several commenters recommended airworthiness certification in 
limited circumstances. The City of Phoenix Aviation Department said all 
UAS operating in airspace adjacent to airports should be 
``airworthiness certified.'' One commenter said the FAA should require 
large UAS (which he defined as ``rotary craft greater than 20 kg and 
fixed-wing between 12 and 24 kg'') to have an FAA airworthiness 
certificate, ``which is civilian UAV specific, and not as stringent as 
the current COA.'' Another individual commenter said small UAS should 
not be allowed to operate over others' property or persons, and no 
closer than 500 feet unless they have an airworthiness certificate. 
Reabe Spraying Service said small UAS that fly over or within 100 feet 
of a person, vehicle, or occupied building that is not part of the 
operation should have a manufacturer-provided airworthiness certificate 
and must come with a manual that outlines all required maintenance and 
part life limits.
    Finally, a number of commenters opposed the Department's decision 
not to require small UAS to obtain an airworthiness certificate. NAAA 
and the Colorado Agricultural Aviation Association (CoAA), for example, 
said such certification is necessary to ensure small UAS can safely 
operate in the NAS without posing a hazard to persons or property.
    One commenter noted that two weeks prior to publication of the 
NPRM, he presented data from the Army to several FAA engineers at a 
meeting of the RTCA, and the agreement was that many of the small UAS 
``mishap issues'' would be solved through airworthiness certification. 
The commenter included with his comment files from presentations to the 
American Society of Safety Engineers and the International System 
Safety Society, which he said highlight the importance of airworthiness 
certification of small UAS.
    Air Tractor said there should be a set of certification rules 
addressing the reliability of control systems for small UAS that are 
similar to the rules for civil certification of aircraft. The commenter 
stated its belief that the FAA has little knowledge of the quality, 
environmental performance, and software reliability of today's 
commercial off-the-shelf small UAS control systems. The commenter said 
that, at a minimum, these systems should be certified, inspected, and 
tested to ensure reliable operations.
    Unmanned aircraft technologies continue to evolve at a rapid pace. 
The Department acknowledges that rapidly evolving technologies could 
face obsolescence by the time the certification process is complete. 
While the Department does consider such factors, the agency does not 
believe that this issue alone would warrant its choosing not to require 
airworthiness certification. Instead, the Secretary finds that 
operation in accordance with part 107 sufficiently mitigates the safety 
risk posed by a small unmanned aircraft.
    To operate under part 107, a small unmanned aircraft must remain 
within visual line of sight of the remote pilot in command and may not 
fly over a person not directly participating in the flight operation. 
If commercial operation over people is desired, then the remote pilot 
will have to obtain a waiver by demonstrating that the operation will 
not decrease safety. The aircraft may be evaluated during the waiver 
process to ensure it has appropriate safety systems and risk 
mitigations in place for flight over people.
    The final rule also does not permit flight operations in Class B, 
C, or D airspace or within the lateral boundaries of the surface area 
of Class E airspace designated for an airport unless the remote pilot 
in command has prior authorization from the air traffic control 
facility having jurisdiction over that airspace. This operational 
requirement will mitigate risk and ensure safety around airports 
without the need for further equipment or certification requirements.
    These and other part 107 requirements significantly reduce the risk 
of a mid-air collision or the likelihood that the unmanned aircraft 
will fall on top of a person standing underneath it. Additionally, with 
limited exception, the small unmanned aircraft may not fly higher than 
400 feet AGL, which further separates that aircraft operation from most 
manned-aircraft operations in the NAS.\160\ Because of the significant 
risk mitigation provided by the operating rules of part 107, an 
airworthiness certification requirement would not provide sufficient 
additional mitigation to justify the costs of requiring all small UAS 
operating under part 107 to obtain airworthiness certification.
---------------------------------------------------------------------------

    \160\ 14 CFR 91.119.
---------------------------------------------------------------------------

    Some commenters recommended that small UAS vendors and 
manufacturers be required to aid airworthiness by providing maintenance 
manual instructions or conducting testing. An individual commenter who 
supported the FAA's decision not to impose airworthiness certification 
requirements on small UAS nevertheless urged the FAA to implement 
regulations that require small UAS vendors to provide maintenance 
manuals ``such that the operator can indeed comply with the 
airworthiness requirements in a systematic way to allow `safe 
operation.' '' ArgenTech Solutions recommended the FAA require each UAS 
manufacturer to obtain a limited special purpose certification for 
small UAS. The commenter suggested the certification include operation 
and testing at one of the FAA-authorized test sites to certify several 
minimum attributes. Another commenter, Kansas State University UAS 
Program, favored self-certification by either the operator or 
manufacturer using industry consensus standards.
    While the FAA will not mandate that manufacturers provide 
instructions to determine if the aircraft is in a condition for safe 
operation, the agency encourages this practice. Many aircraft 
manufacturers, such as DJI, already provide this for their aircraft. 
Aircraft that are sold with such guidance may benefit from lower 
insurance rates when compared to equivalent aircraft that do not 
provide the documentation.
    In developing the NPRM, the Department considered using industry 
consensus standards for airworthiness determination. However, consensus 
standards are still under development and thus cannot be used as the 
sole mandatory means of compliance. Additionally, a performance 
standard requiring the remote pilot to mitigate risk but giving him or 
her discretion to use non-technological mitigation will afford more 
flexibility to small UAS operations than airworthiness and technology-
dependent requirements.
    One commenter suggested that section 333(b)(2) is intended only for 
temporary use until a ``lasting airworthiness means'' is implemented.
    The Department disagrees with the argument that section 333(b)(2) 
was intended to be temporary. The statutory language in section 333(c) 
specifically requires the Secretary to ``establish requirements'' for 
the safe operation of UAS that meet the requirements specified in 
section 333. Section 333(b)(2) states that the Secretary ``shall

[[Page 42183]]

determine . . . whether a certificate of waiver, certificate of 
authorization, or airworthiness certification under section 44704 of 
title 49, United States Code, is required for the operation of unmanned 
aircraft systems. . . .'' \161\ There is no language in section 333 
indicating that such requirements, if established, must be temporary.
---------------------------------------------------------------------------

    \161\ Public Law 112-95, Sec. 333(b)(2).
---------------------------------------------------------------------------

K. Miscellaneous Provisions

1. Mandatory Insurance
    Although not specifically discussed or proposed in the NPRM, 
several commenters raised the issue of liability insurance. For the 
reasons discussed below, this rule will not include a liability 
insurance requirement.
    Approximately 30 commenters, including NAAA, Property Drone 
Consortium, and Northrop Grumman Corporation, supported the inclusion 
of a liability insurance requirement in the final rule. These comments 
argued that: (1) Other countries require liability insurance for small 
UAS operations; (2) liability insurance would incentivize safe 
operations and encourage operators to keep pace with technological 
developments; and (3) small UAS operations are analogous to automobile 
operations, which require liability insurance.
    This rulemaking is being jointly conducted by the FAA and the 
Office of the Secretary of Transportation (OST). The FAA statutes 
applicable to this rulemaking do not authorize the agency to impose 
mandatory insurance requirements. Thus, the FAA does not have 
jurisdiction to require small UAS operations subject to this rule to 
obtain insurance coverage.
    Similarly, OST also lacks authority to impose liability insurance 
requirements on small UAS operations covered by this rule because those 
operations do not rise to the level of air transportation.\162\ 
However, the Department emphasizes that remote pilots who offer these 
types of services are responsible for the operation, and could be held 
liable for any injury or damage that could result. Prudent remote 
pilots should evaluate their existing insurance policies to determine 
whether they have appropriate coverage for these operations.
---------------------------------------------------------------------------

    \162\ As discussed in section III.C.1 of this preamble, air 
carriers (which are not included in this rule) are subject to 
liability insurance requirements. See 49 U.S.C. 41112 (noting that 
the Secretary may issue a certificate to a citizen of the United 
States to provide air transportation as an air carrier only if the 
citizen complies with the Secretary's orders and regulations 
governing the filing of an insurance policy or self-insurance plan).
---------------------------------------------------------------------------

2. Test Sites
    To further facilitate the integration of UAS into the NAS, the FAA 
selected six UAS Test Sites to test UAS technology and operations. The 
NPRM invited comments on how the FAA can improve or further leverage 
its UAS Test Site program to encourage innovation, safe development, 
and UAS integration into the NAS.
    The Oklahoma Governor's Unmanned Aerial Systems Council asserted 
that the legal restrictions imposed on the FAA, prohibiting the agency 
from ``directing'' the Test Sites under Other Transaction Agreements, 
leads to an unnecessary level of ambiguity and bureaucratic confusion 
regarding Test Site missions and objectives. The commenter concluded 
that it is unlikely that the industry or the FAA will benefit from 
continued operation of the Test Sites under the current regulatory and 
OTA structure.
    Modovolate Aviation said the FAA should be more explicit about the 
areas of research, demonstration, and testing that would be most 
helpful in filling the data void referred to in the NPRM.
    Aviation Management recommended the agency do the following: (1) 
Establish guidance to all academic institutions doing UAS research that 
defines the project, type, or nature of UAS research that the FAA needs 
to successfully pursue integration of UAS into the NAS; (2) define the 
means and methods that will allow defined research to be submitted, 
categorized, classified and evaluated in a ``national library'' of UAS 
searchable research; and (3) work with Congress to establish greater 
levels of UAS research funding.
    The New Jersey Institute of Technology claimed that the NPRM does 
not encourage entities to do business with the FAA-designated Test 
Sites or other air ranges, and that the development of products or 
services may be inhibited for some small UAS components or airframes. 
The commenter claimed that universities and other institutions related 
to Test Sites may reasonably be concerned that educational, research, 
and academic potential may be lost due to the prohibitive proposed 
rules. The commenter also pointed to communication issues between the 
FAA and the designated Test Sites, and suggested that the FAA elaborate 
and specify the roles and obligations of all current users, which would 
enable a reasonable discussion as to the effectiveness of an 
anticipated FAA UAS Center of Excellence.
    NBAA recommended that the FAA ``define parameters that can safely 
accommodate continued research and development of advanced UAS 
capabilities'' and provide the future Center of Excellence with 
authority to approve advanced UAS operational or testing capabilities 
in coordination with ATC.
    AIA said the FAA could make better use of Test Sites by doing the 
following: (1) Provide a detailed vision of the specific types of data 
Test Sites should provide to further standards development and overall 
UAS integration; (2) provide funding mechanisms for operation of Test 
Sites; (3) provide an opportunity to designate private testing areas 
within the current sites; (4) expand issuance of COAs to designees at 
Test Sites and prioritize such COA requests; and (5) address barriers 
to use that are limiting private enterprise use of the sites, such as 
ownership and control of intellectual property and data rights.
    The FAA has been exercising every effort toward greater 
facilitation of the Test Sites. To that end, the FAA is working closely 
with the Test Sites to guide research programs toward specific goals 
such as System Safety & Data Gathering, Aircraft Certification, Command 
& Control Link Issues, Control Station Layout & Certification, Ground & 
Airborne Sense & Avoid, and Environmental Impacts that will help the 
FAA safely integrate UAS into the national airspace system. In 
addition, the FAA has worked with the Test Sites, industry, and the 
general public to quickly discern opportunities, design research 
challenges, and identify priorities. Many of the research areas 
suggested in the comments are being addressed in current and planned 
research sponsored by the FAA, or by one or more of its government or 
industry partners. The FAA continues an active engagement with the Test 
Sites, the Center of Excellence, and other research partners to 
undertake research that will facilitate future flight operations and 
airspace access.
    Lastly, it bears noting that UAS operations in the NAS continue to 
be developmental. As additional acceptable parameters are demonstrated 
for safe UAS operations, the FAA may adopt those parameters. With 
regard to providing the Center of Excellence with authority to approve 
advanced UAS operational or testing capabilities in coordination with 
ATC, the FAA remains open to considering various forms of delegated 
authority where a delegation is legally possible. The FAA is working to 
expedite the process of authorization of operators and UAS, but faces 
limitations in terms of manpower

[[Page 42184]]

and the sheer lack of technological information available.
    Many commenters were concerned about lack of funding and an 
ineffective COA process. UPS discussed two factors it believes have 
impeded the usefulness of the Test Sites: inadequate funding and the 
amount of time it takes to obtain the authorizations necessary to fly. 
UPS noted that in the absence of suitable government funding, the Test 
Sites look to their ``customers'' for funding, which creates a 
situation where the fees charged to use the Test Site exceed the 
economic benefit to the customer. UPS said that as a result, many 
operators seek a section 333 exemption to allow them to do research and 
development on their own property. UPS also asserted that the utility 
of Test Sites has been hampered by the amount of time it takes to 
obtain the authorizations necessary to fly. To remedy this problem, UPS 
proposed the FAA grant a blanket authorization to UAS of certain weight 
and performance standards to operate at Test Sites.
    Several other commenters also pointed to increased funding and a 
better COA process, among other things, as necessary to improve the 
Test Site program. Like UPS, State of Nevada, the Nevada Institute for 
Autonomous System, and the Nevada FAA-designated UAS Test Site, 
commenting jointly, said the effective use of the Test Sites has been 
hindered by a lack of funding and by the fact that the UAS industry can 
``bypass'' the Test Sites by obtaining section 333 exemptions. The 
commenters said that Congress needs to provide funding for FAA to: (1) 
Operate the Test Sites; (2) provide Test Sites with ``Broad Area COAs'' 
that are aircraft-agnostic; and (3) allow the Test Sites to immediately 
begin testing the small UAS rules proposed in the NPRM to either 
validate the proposed rules or identify gaps and issues, and to provide 
standards for small UAS SMS procedures, airworthiness processes, 
training, and aircrew qualifications. Another commenter said something 
must be done to relax the regulation preventing Nevada from using its 
designation as a ``commercial UAS test range.'' The commenter suggested 
that the COA procedure and approval process be expedited at the Federal 
level, or that Nevada Test Sites be given autonomy to approve COAs.
    Several commenters also discussed the need for additional funding 
of Test Sites. One commenter said the FAA should provide funding to the 
Test Sites, as well as develop the organizational architecture needed 
to facilitate research between the Test Sites and the Center of 
Excellence. Another commenter said Test Sites should be partnered with 
funded organizations ``at a level that also allows the pool of Test 
Sites to handle the demand and to address more complicated operations 
that exceed the limited proposed rule.'' One commenter said that due to 
lack of funding, limited support, and process management gaps, very few 
resources have been directly and solely assigned to the Test Site 
program. The commenter recommended prioritization, simplification, and 
a wide research scope be established at the Test Sites. Another 
commenter said the FAA needs to establish an informed set of research 
objectives and ensure coordination between emerging UAS manufacturing 
companies, potential UAS markets, and academic researchers at the Test 
Sites and the Center of Excellence. The commenter also said that a 
significant amount of testing will be done by academia and industry 
outside the Test Sites under COAs and exemptions, and that the FAA 
should take advantage of those efforts through Cooperative Research and 
Development Agreements (CRADA) and other agreements.
    Texas A&M University-Corpus Christi/LSUASC also recommended the FAA 
enable Test Sites to conduct operations without having to apply for 
COAs for every research operation. The commenter also recommended that 
these ``blanket COA'' operations at Test Sites be permitted at less 
than 200 feet AGL. In addition, the commenter said the FAA needs to 
engage the Test Sites' research capacities. The commenter claimed that 
Test Site proponents have offered significant UAS research capacities 
to the FAA (e.g., expertise and infrastructure), but the agency has not 
indicated that these capacities will be used in the development of 
technologies to enable safe integration of UAS into the NAS. Finally, 
the commenter said the FAA needs to incorporate applicable portions of 
the proposed small UAS rule into test-site other transaction agreements 
(OTAs), which it said would have two residual effects--first, it would 
assist in the validation of the rules with actual operations, and, 
second, it would provide the Test Sites some leverage towards being 
financially sustainable by enabling them to offer services to public- 
and private-sector entities without burdensome administrative costs 
(e.g., COA applications).
    Regarding the COA process, the FAA has already issued ``blanket 
COAs'' to the Test Sites which are not aircraft specific. However, the 
FAA is also responsible for overseeing the operations of the 6 Test 
Sites, and ensuring each Test Site sets up a safe-testing environment 
and adheres to strict safety standards. The FAA must exercise every 
caution to ensure that the introduction of UAS operations into the NAS 
is executed in a manner that will provide the greatest possible safety 
protections for manned aircraft as well as people or property on the 
ground. Thus, part 107, which reflects the safety considerations 
addressed during the course of this rulemaking, will extend to allowing 
operations at the Test Sites. Operations that conform to part 107 will 
require no additional authorization, obviating additional blanket COAs. 
Operations that are outside the scope of part 107 will require waivers 
to portions of part 107; this requirement is necessary to ensure that 
UAS vehicles are evaluated for safety on a case-by-case basis.
    Regarding the costs associated with UAS development and other 
related issues, the FAA cannot interfere with market pricing. The UAS 
industry, like any other, is subject to the economic structure of the 
United States and prices are typically controlled by supply and demand. 
With regard to the Test Sites and what they charge for services they 
provide, the FAA cannot interfere because the FAA is not charged with 
subsidizing the cost of operations at the Test Sites. The sites must be 
allowed to obtain funding for their continued operation.
    In regards to funding, Congress has not appropriated Federal funds 
for Test Site operations or research. If the FAA obtains funding 
specific to UAS, it will make those funds available to operators in 
accordance with the legislative language appropriating the funds.
    Several commenters proposed specific areas of testing for the FAA-
designated Test Sites to undertake. Modovolate said energy dissipation 
tests should be conducted to obtain data on energy dissipation in 
collisions between small UAS and manned aircraft, particularly 
helicopters. The commenter said these collision energy dissipation 
tests should focus on collecting data on the effects of a collision 
with small UAS that are made of various types of frangible materials.
    The University of North Dakota's John D. Odegard School of 
Aerospace Sciences--which is part of one of the six established Test 
Sites--said the FAA and academic institutions should work together to 
study 13 areas of UAS operations, including extended VLOS and BVLOS 
operations, operations over persons, and nighttime operations. The 
commenter urged all parties to work with Congress to establish levels 
of funding for this research, which it said

[[Page 42185]]

will lead to future integration of UAS into the NAS.
    Exelis said the FAA should use the designated Test Sites to prove 
and demonstrate the safety and operations of technology that enables 
beyond-visual-line-of-sight UAS operations. To that end, the commenter 
said the Test Sites should be granted COAs that allow for BVLOS 
operations. The commenter also said the Test Site program can be 
further leveraged by undertaking testing of BLVOS operations in real-
world environments.
    The State of Nevada, the Nevada Institute for Autonomous System, 
and the Nevada FAA-designated UAS Test Site, commenting jointly, stated 
that the FAA should enable specific research and development at the 
designated Test Sites ``to identify operating limitations that could be 
relaxed based on technological advancements.'' More specifically, the 
commenters said the Test Sites and future FAA UAS Center of Excellence 
can provide assistance in developing standards which delineate the 
acceptable performance of sensor technologies to satisfy ``see and 
avoid'' or ``sense and avoid'' requirements.
    The National Association of Broadcasters, National Cable & 
Telecommunications Association, and Radio Television Digital News 
Association, commenting jointly, urged the FAA to increase its efforts 
to facilitate and encourage use of the existing UAS Test Sites to 
expedite UAS research and development and to develop data and safety 
records for unmanned aircraft to support their expanded use for 
breaking news coverage, sports coverage, and video production, 
including over populated areas. The commenters also pointed to research 
that is currently being conducted by universities on the use of small 
UAS for newsgathering and reporting purposes, and encouraged the FAA to 
use the results of that research to further refine the small UAS rule.
    CTIA--The Wireless Association said the FAA should expeditiously 
grant any requests from the commercial wireless industry to test its 
technologies with small UAS at any of the FAA's six designated UAS Test 
Sites, as well as in various geographic locations pursuant to the FAA's 
section 333 exemptions and experimental aircraft certification 
processes. The commenter asserted that researchers can collect data on 
the networks' reliability and robustness of signal and submit their 
findings to the FAA and its supporting committees. The commenter 
further asserted that the FAA should incorporate the results of this 
testing when considering spectrum to support small UAS operating within 
and beyond the visual line of sight.
    The Air Medical Operators Association said the UAS Test Sites are 
an excellent area to test the ability of UAS to avoid approaching 
aircraft. The commenter asserted that UAS must be tested to ensure to 
the flying public that the required separation is sufficient to allow 
the UAS operator to maneuver away from manned aircraft.
    One commenter recommended the Test Sites conduct testing on the 
visibility to manned aircraft of small UAS of various sizes and speeds 
and with various visibility treatments under a variety of conditions. 
The commenter also recommended testing various see-and-avoid 
technologies under a variety of test conditions and testing to help 
determine anti-collision lighting requirements. Another individual 
commenter said the use of UAS to transport property should be tested at 
one of the designated Test Sites.
    The FAA welcomes the commenters' suggestions for UAS research, and 
encourages the Test Site sponsors to consider these recommendations as 
further testing parameters. Several of the comments coincide with ideas 
that the FAA has, or currently is in the process of adopting. The speed 
at which advanced technologies can be adopted is an issue that must be 
addressed step by step. Wireless operations and collection of data are 
both subjects that the FAA is examining. Wireless operations, however, 
must first be able to demonstrate the capability to operate under 
control and safely. Additionally, data collection is subject to a 
variety of laws. On occasion, additional limitations are imposed by 
desire of the operators.
    NetMoby suggested that one method to improve the Test Site program 
is to increase the number of Test Sites. Specifically, the commenter 
urged the FAA to establish a minimum of one Test Site per State (with 
no maximum). Travelers United similarly said the designation of only 
six Test Sites is ``unnecessarily limiting,'' although it did not 
propose an alternative number of sites. The commenter did say that Test 
Sites should be able to expand their airspace further into Class G 
airspace within their region, to allow for more operations in different 
geographies and population densities.
    The number of Test Sites established by the FAA was specifically 
designated by Congress. Section 332 of the FAA Modernization and Reform 
Act of 2012 (Pub. L. 112-95) directed the FAA to ``establish a program 
to integrate unmanned aircraft systems into the national airspace 
system at 6 test ranges.'' The FAA therefore does not have the 
authority to establish additional Test Sites and also conform to its 
Congressional mandate.
    One commenter said the FAA can make better use of its six 
designated Test Sites by designating them as ``Qualified Entities,'' as 
is done in Europe. NetMoby recommended the FAA establish standards for 
accredited academic institutions to apply for authority to operate as a 
Test Site, with stringent qualifications and reporting requirements for 
each test-site. The University of Illinois at Urbana-Champaign 
similarly suggested that universities and others should be permitted to 
conduct research on their own properties, so long as the institutions 
are willing and able to implement adequate safety measures. Another 
commenter said private individuals and corporations should be allowed 
to set up private Test Sites for developing UAS.
    In the United Kingdom, the government has established ``national 
qualified entities'' that conduct assessments of UAS operators and make 
recommendations to the Civil Aviation Authority whether to approve 
those operators. In the United States, Congress has mandated the FAA 
under 49 U.S.C. 44701 to prescribe standards in the interest of 
aviation safety. In response to comments suggesting that entities 
outside of the six selected Test Sites should be permitted to conduct 
research on their properties, the FAA notes that nothing prevents other 
entities from conducting small UAS testing within the confines of part 
107. For UAS operations in which the small unmanned aircraft weighs 
less than 55 pounds that are not permitted under part 107, an entity 
may seek a waiver, provided the entity intending to conduct testing 
provides evidence that that the proposed operation can safely be 
conducted under the terms of a certificate of waiver.
    Additionally, the FAA developed a process under FAA Order 8000.732A 
to appoint UAS Designated Airworthiness Representatives (DARs) for UAS 
Certification at UAS Test Sites. These DARs are specifically authorized 
to issue special airworthiness certificates in the experimental 
category for research and development, market survey, and crew 
training, at UAS Test Sites. Where UAS Test Sites are focused on public 
aircraft operations, this additional flexibility provides UAS Test 
Sites with the ability to conduct specific civil operations under a 
special airworthiness certificate/experimental category.

[[Page 42186]]

    Although it did not mention UAS Test Sites, specifically, the 
Washington Aviation Group recommended that the FAA gather information 
on the frequency with which small UAS can be expected to fail, and on 
the prevalence of return-to-home technology. The Washington State 
Department of Transportation, Aviation Division--which also did not 
specifically mention UAS Test Sites--recommended the FAA initiate a 
study to examine hobbyist UAS activities in an effort to determine 
whether registration of some hobby UAS aircraft may now be appropriate. 
Event 38 Unmanned Systems said the FAA must secure appropriate research 
and development funding, and conduct research on any proposed rule 
implementation, in an open and transparent manner with particular 
attention paid to non-biased review and quality assurance.
    The FAA has established requirements (in the Registration Rule) for 
registration of all unmanned aircraft and aircraft classified as model 
aircraft. As mentioned previously in regards to funding, Congress must 
appropriate Federal funds to the FAA for specific types of research and 
development.
3. Noise and Environmental
a. The National Environmental Policy Act
    The Department of Transportation has determined that this proposed 
action qualifies for categorical exclusion pursuant to Paragraph 4.c.5 
of DOT Order 5610.1C, Procedures for Considering Environmental Impacts 
(44 FR 56420, Oct. 1, 1979) and FAA Order 1050.1F, paragraph 5-
6.6(f).\163\ Paragraph 4.c.5 of DOT Order 5610.1C incorporates by 
reference actions identified by FAA as categorical exclusions.
---------------------------------------------------------------------------

    \163\ FAA has determined that this final rulemaking is covered 
by the CATEX described in paragraph 5-6.6(f) of FAA Order 1050.1F. 
In the NPRM, the FAA relied upon the categorical exclusion in 
section 312(f) of FAA Order 1050.1E the NPRM the FAA has updated the 
order and the corollary provision in the new order is paragraph 5-
6.6(f).
---------------------------------------------------------------------------

    Categorical exclusions are actions identified in an agency's NEPA 
implementing procedures that do not normally have a significant impact 
on the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion 
(CATEX), the agency must also consider whether extraordinary 
circumstances are present that would warrant the preparation of an EA 
or EIS. Id. A number of commenters expressed concern that there may be 
noise and environmental impacts as a result of this rule. Based on the 
information known at this time and what is reasonably foreseeable, FAA 
does not find any extraordinary circumstances that preclude use of a 
CATEX for implementation of this rule. For the reasons discussed below, 
the FAA will not make any changes to the rule based on these comments.
b. Noise
    Approximately 60 commenters expressed some concern about the noise 
produced by small UAS. The comments ranged from very general to 
specific. One commenter specified the need for a noise metric to 
measure or control the noise from UAS. Another requested noise 
certification and operating limits to be established. Many of the 
comments regarding noise expressed concern over the potential effect on 
wildlife, such as startling nesting birds. One commenter described the 
potential for human noise exposure as ``considerable'' since a person 
in New York City could be exposed to ``dozens'' of flights a day, and 
concluded that small UAS noise posed a greater problem than noise from 
airports. Another commenter indicated that the rerouting of manned 
aircraft for safety reasons when small UAS are operating in the same 
area might force the noise of larger manned aircraft to be unfairly 
concentrated on certain people.
    The Professional Helicopter Pilots Association stated that noise 
emissions from small UAS operations should be below 65 DBE under all 
operating conditions (we believe the commenter meant ``dBA (A-weighted 
decibels'')). The CAFE Foundation stated that the NPRM omitted limits 
for noise at a measured sideline distance, and stated that noise is 
``the principal source of the public's complaints about aircraft.'' The 
commenter concluded that ``[t]he rules of operation for UAVs need to 
include certification standards for their noise emissions at a 
prescribed distance,'' giving an example of 48 dBA at a 20-meter 
sideline distance that would result in a day-night level (DNL) of 54.7.
    Turning first to the potential environmental impacts of the 
proposed rule, based upon FAA's forecasts and the best available 
science and information, the FAA has determined that this rulemaking 
qualifies for the CATEX in FAA Order 1050.1F, Paragraph 5-6.6(f). The 
FAA examined the potential noise impacts considering the projected 
amount and type of Small UAS operations. The FAA has documented the 
categorical exclusion, including the potential for extraordinary 
circumstances and review of the potential for extraordinary 
circumstances, and has placed a copy of it in the docket for the final 
rule.
    The NPRM did not propose noise certification standards or operating 
limitations for small UAS. As to the comments concerning noise 
limitations, there are two aspects--the formally tested limits of noise 
that are established when an aircraft is certificated by the FAA, and 
noise operating limits that apply to certain aircraft. Operators of UAS 
seeking type certification are subject to the limits for smaller non-
jet aircraft listed in 14 CFR part 36 Appendix G (fixed-wing) and 
Appendix J (helicopters). Appendix G imposes a noise limit of 70 dBA 
for takeoff noise from a single engine airplane weighing no more than 
1,257 pounds that was manufactured on or after February 3, 2006.\164\ 
The small UAS to which part 107 will apply are considerably smaller, 
less than 55 pounds. The commenters requesting noise certification 
standards as part of this rule did not provide any evidence to show 
that the noise emitted by the Small UAS subject to this rule would 
exceed the current limits of part 36 Appendix G or J. The FAA recently 
used Appendix G to certificate two small unmanned aircraft, one with a 
takeoff weight of 44 pounds and the other 13.4 pounds. These aircraft 
were subject to the full noise test procedures specified in part 36, 
Appendix G. The resulting noise levels (53.2 dBA and 27.0 dBA) were 
substantially lower than the 70 dBA limit in Appendix G, by margins of 
16.8 dBA and 43 dBA, respectively.
---------------------------------------------------------------------------

    \164\ 14 CFR part 36, Appendix G, Sec. G36.301(c).
---------------------------------------------------------------------------

    While the FAA has chosen not to require type certification of small 
UAS subject to this rule, the FAA is gathering data for all UAS on 
which it may base future certification standards, especially for those 
UAS that exceed the 55-pound weight limit of part 107 or that use more 
advanced propulsion systems that would affect their noise profiles. The 
FAA may apply the requirements of part 36 separately to UAS under the 
FAA's authority to regulate noise in the future. At this time, however, 
the FAA does not believe there is sufficient evidence to warrant such a 
standard. If full type and airworthiness certification for a UAS is 
applied for as a means to operate outside part 107 restrictions, the 
noise certification standards of part 36 already apply as they would to 
any manned aircraft, including the required noise tests.
    For similar reasons, the FAA lacks sufficient evidence at this time 
to justify imposing operating noise limits on small UAS. The only 
operating noise

[[Page 42187]]

rules in the United States apply to turbojet aircraft and supersonic 
operations.\165\
---------------------------------------------------------------------------

    \165\ See 14 CFR part 91, subpart I.
---------------------------------------------------------------------------

    The FAA considered the potential for noise impacts based on the 
projected amount and type of small UAS operations operating under this 
rule. Pursuant to 14 CFR part 150 land use compatibility guidelines 
incorporated by reference in FAA Order 1050.1F, Environmental Impacts: 
Policies and Procedures (July 16, 2015), noise-sensitive areas such as 
residential, educational, health, and religious structures and sites 
are considered compatible land uses when the yearly day-night average 
sound level (DNL) is below 65. DNL is a cumulative noise metric, 
calculated by adding up the noise produced by individual aircraft, 
however, and does not directly correspond to the noise produced by an 
individual aircraft of any weight or size. To illustrate how the noise 
of an individual UAS affects the land use compatibility threshold, at 
200 feet altitude over the measurement point, it would take 6,000 
flights of the noisier of the two certificated UAS (at 53.2 dBA) over 
one 24-hour period to exceed the 65 DNL land use compatibility 
threshold; at 400 feet altitude over the measurement point, there would 
need to be 25,000 flights in one 24-hour period to exceed the land use 
compatibility threshold. The FAA does not anticipate this level of 
small UAS operations at any location in the United States, nor would 
the airspace over a particular location support such levels of 
activity. The FAA may revisit the issue of noise from small UAS in 
light of future operational experience and more noise data for all UAS.
c. Other Environmental Comments
    A number of commenters raised air quality concerns with regard to 
small UAS operations that would be conducted under the proposed rule. 
Green Vegans and five individual commenters asserted that the aggregate 
number of small UAS operations that would be conducted under part 107 
will result in a significant impact on air quality. In support of their 
claim, these commenters cited a report released by Volpe in 2013,\166\ 
which projects a total number of UAS vehicles approaching approximately 
250,000 by 2035, of which approximately 175,000 vehicles would be 
available for purchase from the commercial marketplace.
---------------------------------------------------------------------------

    \166\ Technical Report, Version 0.1--September 2013 DOT-VNTSC-
DoD-13-01 (February 2014).
---------------------------------------------------------------------------

    The individual commenters argued that the collective number of 
projected UAS in the report indicates that there are significant 
environmental impacts and/or extraordinary circumstances that require a 
more extensive NEPA review process. The commenters further suggested 
that the aggregate number of UAS would cause an impact on air quality. 
On the other hand, Kapture Digital Media suggested that the 
substitution of small UAS for manned aircraft in various applications 
would have a positive effect on air quality, since most small UAS use 
electrical power rather than fossil fuels. Two individual commenters 
also opined that small UAS operations would not adversely impact air 
quality.
    The Clean Air Act established the National Ambient Air Quality 
Standards (NAAQS) for six pollutants (``criteria pollutants'') that are 
the most common types of pollutants that can cause damage to humans and 
the environment. Those pollutants are: Carbon monoxide (CO), nitrogen 
dioxide (the most common of oxides of nitrogen gas), (NO2), ozone (O3), 
particulate matter (PM2.5 and PM10), sulfur 
dioxide (SO2), and lead (Pb). Under the Clean Air Act, the 
FAA must determine whether promulgation of this rule has the potential 
to cause or contribute to any new violation of any standard in any 
area, increase the frequency or severity of any existing violation of 
any standard in any area, or delay timely attainment of any standard or 
any required interim emission reductions or other milestones in any 
area.
    The FAA currently allows small UAS operations comparable to the 
ones that will be enabled by this rule through an exemption process 
utilizing Public Law 112-95, section 333. As of this writing, the FAA 
has issued exemptions to allow over 3,385 small UAS operations. The 
majority of these operations used small UAS that were powered by 
electricity (i.e. through battery-powered electric motors) which 
generally do not produce the pollutants covered by NAAQS. Indeed, as 
noted by Kapture Digital Media and the individual commenters, the 
replacement of fossil-fuel-powered manned aircraft with electrically 
powered small UAS that promulgation of this rule will enable may even 
have a positive impact on air quality.
    Based on information available about the type of equipment likely 
to be used (i.e., battery-powered electric motors), emissions 
attributable to UAS operating subject to this regulation will not cause 
significant air quality impacts, and would not violate air quality 
standards. The FAA has no evidence that would change this conclusion. 
Therefore FAA has determined that air quality impacts from the small 
UAS rule are not extraordinary circumstances precluding the use of a 
CATEX.
    Green Vegans stated that ``the use and numbers of UASs/drones by 
industry, government agencies, and critically, hobbyists, who do not 
need permission to operate their drones, have increased dramatically.'' 
The commenter added that the ``potential environmental and social 
impacts [of UAS use] are enormous.'' Green Vegans further asserted that 
the FAA cannot rely on a CATEX to comply with NEPA and stated that the 
FAA must prepare an Environmental Impact Statement (EIS) before 
proceeding further.
    The Department of Transportation has adopted policies and 
procedures for compliance with the National Environmental Policy Act 
(NEPA), as implemented by Council on Environmental Quality (CEQ) 
regulations, in FAA Order 1050.1F, Environmental Impacts: Policies and 
Procedures. Among other things, DOT Order 5610.1C, paragraph 4.c.5, 
lists DOT actions that are normally subject to a CATEX, and 
incorporates by reference the actions identified by the FAA. FAA Order 
1050.1F lists FAA actions that are normally subject to a CATEX. FAA 
Order 1050.1F, Paragraph 5-6.6(f) covers rulemaking actions (excluding 
those that if implemented may cause a significant impact on the human 
environment). Based upon its forecasts and the best available 
information, the FAA has determined that this rulemaking is covered by 
the CATEX in FAA Order 1050.1F, Paragraph 5-6.6(f), and will be 
documented pursuant to FAA Order 1050.1F, Paragraph 5-3. FAA does not 
find any extraordinary circumstances that would preclude the use of a 
CATEX.
    The FAA also notes that this rulemaking has limited applicability 
to two types of UAS use cited by Green Vegans. First, as discussed in 
section III.C.4 of this preamble, Public Law 112-95, section 336 
prohibits the FAA from conducting a rulemaking with regard to hobby/
recreational operations that meet the statutory criteria specified in 
section 336. Section 336 provides an exception only for model aircraft 
that endanger the safety of the NAS, and this rule will codify that 
exception in part 101. Second, as discussed in section III.C.3 of this 
preamble, this rule will also not apply to public aircraft operations 
of small UAS that are not operated as civil aircraft.
    Green Vegans and several individual commenters also argued that the 
``flood'' of UAS predicted to fly in the NAS constitute extraordinary 
circumstances under paragraph 304 of FAA Order

[[Page 42188]]

1050.1E.\167\ The commenters asserted that the high numbers of UAS will 
have an environmental impact on ecosystems and the human environment 
and this constitutes extraordinary circumstances.
---------------------------------------------------------------------------

    \167\ Since the NPRM the FAA has updated the order and the 
corollary provision in the new order is paragraph 5-2.
---------------------------------------------------------------------------

    In response, the FAA notes that, because electrically powered small 
UAS could replace fossil-fuel-powered manned aircraft, the 
environmental impact of small UAS operations could be a positive 
improvement in air quality and noise. At this time, the FAA has no 
information indicating that the implementation of this rule will result 
in any significant impacts, cumulative or otherwise. As such, the FAA 
has determined that there are no extraordinary circumstances that 
preclude categorical exclusion of this rule.
    Green Vegans expressed concern that the FAA is ignoring the large 
numbers of hobby/recreational small UAS that would not be covered by 
part 107. The commenter suggested that community-based organizations 
would be unlikely to issue guidelines that include provisions for 
operating model aircraft in an environmentally responsible way. In 
response, the FAA considered the effects of small UAS operating under 
this rule in light of other UAS operations, and did not find any 
evidence that this rule was likely to directly, indirectly, or 
cumulatively create a significant environmental impact. The FAA also 
emphasizes that section 336(a) of Public Law 112-95 prohibits the 
agency from addressing in this rule model aircraft that are operated in 
accordance with section 336.
    Approximately 20 commenters discussed the use of UAS in wildlife 
conservation and monitoring efforts. Most commenters expressed support 
for adopting UAS technology. NOAA stated that high-quality UAS 
operations could be very beneficial and offer significant cost savings 
and increase safety for endangered, threatened and trust species. The 
Nez Perce Tribe stated that it sees enormous benefits in the use of 
small UAS for management of salmon fisheries and other wildlife. The 
Nature Conservancy discussed the benefits of using UAS for monitoring 
sand hill cranes and other wildlife, and the increased safety that 
small UAS use would provide for wildlife biologists. Shell Exploration 
and Production Company described the potential use of UAS to monitor 
and observe endangered species and marine mammals.
    On the other hand, several commenters, including Green Vegans, 
remarked on the danger that a small UAS traveling at up to 100 mph 
would present to migratory birds, mallard ducks, and other wildlife 
because birds might not be visible to small UAS operators. The Ventura 
Audubon Society expressed concern about the negative impacts the use of 
small UAS could have on nesting shorebirds. An individual commenter 
asserted that small UAS use can affect wildlife and manned aircraft in 
an unsafe manner, as evidenced by the aggregate number of bird and 
wildlife strikes every year. The commenter expressed concern that small 
UAS operations conducted under part 107 may interfere with birds and 
relied on the FAA Strike Report 1990-2012 in support of her comments.
    The FAA agrees with the commenters that wildlife surveying and 
monitoring operations conducted under part 107 can have benefits for 
wildlife conservation. The RIA accompanying this rule contains a 
discussion of the many societal benefits that will be enabled by this 
rule, including wildlife conservation and monitoring efforts.
    In response to commenters who expressed concerns about negative 
impacts to birds and other wildlife, the FAA emphasizes that this rule 
does not authorize the harassment, harming, or killing of birds, 
mammals, or ocean-dwelling animals. These types of actions are 
prohibited by other laws and regulations such as the Migratory Bird 
Treaty Act (see 16 U.S.C. 703; 50 CFR part 21), the Endangered Species 
Act (ESA), and the Marine Mammal Protection Act (MMPA). The FAA 
emphasizes that in addition to satisfying the provisions of this rule, 
remote pilots of a small UAS will remain subject to all applicable 
laws, including environmental and wildlife laws.
    The Nature Conservancy and several individual commenters expressed 
concern with wetlands and other ecosystems that provide habitat for 
water fowl.
    Executive Order 11990, DOT Order 5660.1A, the Rivers and Harbors 
Act of 1899, and the Federal Water Pollution Control Act, as amended 
(commonly referred to as the Clean Water Act), address activities in 
wetlands. Executive Order 11990 requires Federal agencies to ensure 
their actions minimize the destruction, loss, or degradation of 
wetlands. It also assures the protection, preservation, and enhancement 
of the Nation's wetlands to the fullest extent practicable during the 
planning, construction, funding, and operation of transportation 
facilities and projects. The Clean Water Act provides the authority to 
establish water quality standards, control discharges, develop waste 
treatment management plans and practices, prevent or minimize the loss 
of wetlands, determine location with regard to an aquifer or sensitive 
ecological area such as a wetlands area, and regulate other issues 
concerning water quality.
    It is not anticipated that this rule will involve land acquisition 
or ground disturbing activities that would affect coastal resources or 
wetlands. In regards to impacts to habitat, the rule is not intended to 
authorize encroachment into any habitats for waterfowl and FAA does not 
anticipate this rule causing significant impacts to such habitats.
    The Nature Conservancy asked for less restrictive daytime-
operations and visual-line-of-sight requirements, asserting that 
changes to these proposed provisions would improve their conservation 
efforts. ``In sum, The Nature Conservancy views UAS as a critical 
conservation tool.'' Further, ``[t]he Conservancy's envisioned use for 
UAS in California provides just one example of why the daytime 
operations requirement would limit the effectiveness of UAS as a 
conservation tool.''
    As discussed in section III.E.2.c.i of this preamble, the daylight-
operations provision of this rule has been expanded to allow operations 
during civil twilight hours. This change will further enable small UAS 
operations under part 107, including operations conducted for positive 
environmental management. This change will also allow greater 
utilization of small UAS as a conservation tool in Alaska where, in the 
northern parts of that State, the sun does not rise for as many as 64 
days a year.
    With regard to visual line of sight, as discussed in section 
III.E.2.a of this preamble, this rule will generally implement the 
visual-line-of-sight provision as proposed. However, the FAA will 
consider waiving that restriction if an applicant seeking extended 
operational flexibility can demonstrate that his or her operation will 
have at least the same level of safety as an operation conducted within 
visual line of sight.
    One individual commenter raised concerns about adverse visual 
impacts that could result from small unmanned aircraft flight. The 
commenter stated that the visual impact of seeing ``. . . a drone 
rather than the natural scape is unfortunate.'' The commenter compared 
unmanned aircraft regulations to land use controls such as building 
heights being limited when feasible to reduce visual impacts to natural 
scenic corridors. The commenter also complained that at the commenter's

[[Page 42189]]

local school yard, ``teenagers are their (sic) learning to fly their 
drones.''
    Pursuant to FAA Order 1050.1F, (Paragraph 4-3, Exhibit 4-1) the FAA 
generally considers visual impacts that could:

    (i) Affect the nature of the visual character of the area, 
including the importance, uniqueness, and aesthetic value of the 
affected visual resources, (ii) Contrast with the visual resources 
and/or visual character in the study area, and (iii) Block or 
obstruct the views of visual resources, including whether these 
resources would still be viewable from other locations.

    The FAA does not have evidence or data that the operation of small 
UAS under this rule would significantly affect the nature of visual 
character of an area, contrast with visual resources, or significantly 
block or obstruct the views of visual resources.
    The FAA notes that the provisions of this rule (such as the visual-
line-of-sight requirement, the maximum altitude limitation, and the 
restriction on operations in controlled airspace) limit the areas where 
a small UAS could be operated under part 107. Additionally, as 
discussed in section III.J.2 of this preamble, because of the 
limitations of current fuel and power-source technology, small UAS 
currently available to consumers have an average flight time of only 30 
minutes or less. Some small UAS have maximum flight time of less than 
10 minutes. Because of the regulatory and practical limitations on 
small UAS operations that will be conducted under part 107, 
promulgation of this rule will not result in significant visual 
impacts.
    Berkey Williams asked the FAA to initiate formal government-to-
government consultation with Indian Tribes, and the Green Vegans noted 
the need for Tribal participation under NEPA. Berkey Williams stated 
that formal government-to-government consultation with Indian Tribes is 
needed to properly identify and mitigate the impacts that small UAS may 
have on Tribal interests in Tribal territory. The Nez Perce Tribe and 
the Northern Arapaho Tribe filed comments indicating their interest in 
using small UAS for fish and wildlife management and agricultural 
purposes. The Northern Arapaho Tribe restated their previous request to 
initiate government-to-government consultation regarding the 
development and implementation of UAS on the Wind River Indian 
Reservation, and submitted comments on the NPRM concerning: (1) Waivers 
to the visual-line-of-sight requirement; and (2) recognition of Tribal 
authority to regulate or prohibit UAS use to protect against 
interference with traditional ceremonies and other activities.
    Consistent with Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, and FAA Order 1210.20, 
American Indian and Alaska Native Tribal Consultation Policy and 
Procedures, the FAA ensures that Federally Recognized Tribes (Tribes) 
are given the opportunity to provide meaningful and timely input 
regarding proposed Federal actions that have the potential to uniquely 
or significantly affect their respective Tribes. At this point, the FAA 
has not identified any unique or significant effects, environmental or 
otherwise, on tribes resulting from this rule. However, the FAA has 
entered into government-to-government consultation with the Northern 
Arapaho Nation on its general use of UAS. In addition, the Nez Pierce 
tribe has contacted FAA to discuss obtaining a section 333 exemption to 
operate small UAS under existing rules.
    With regard to the specific issues raised by the Northern Arapahoe 
Tribe and the Nez Perce Tribe, the FAA notes that the requirements 
concerning airman certification and visual line of sight in this rule 
are not unique and significant environmental impacts on the Tribes. The 
FAA also notes the Northern Arapahoe Tribe's concerns about Tribal 
authority to regulate or prohibit UAS flights, but, as discussed in 
section III.K.6 of this preamble, this rule does not address preemption 
issues because those issues necessitate a case-specific analysis that 
is not appropriate in a rule of general applicability. The FAA notes, 
however, that state governments have historically been able to regulate 
the takeoffs and landings of aircraft within their state boundaries. 
The FAA anticipates that the Tribes would be able to exercise similar 
internal sovereignty with regard to the takeoffs and landings of small 
UAS within their territories. Thus, while preemption is beyond the 
scope of this rule, the FAA will conduct outreach to tribes seeking 
information about their ability to regulate small UAS operations 
conducted within their territory to see how their concerns could be 
addressed within the broader UAS integration effort.
    NOAA asked the FAA to add a regulatory provision that would require 
the operator to ensure that a small UAS would not pose a danger to 
protected wildlife in the event of a loss of aircraft control. NOAA 
noted that it addresses this issue in its current guidance, such as the 
NMFS Marine Wildlife Viewing Guidelines. These guidelines recommend, in 
general, that the public keep a safe distance of 50 yards (150 feet) 
from dolphins, seals, and sea lions on the water or land and 100 yards 
(300 feet) from large whales on water or land. For all marine mammals, 
the recommended viewing guideline for aerial observations is 1,000 
feet.
    To the extent NOAA seeks compliance with applicable environmental 
statutes, such as the Marine Mammal Protection Act (MMPA), the FAA 
agrees that the pertinent NOAA regulations and guidance provide an 
excellent overview of the applicable requirements that must be followed 
by individuals who seek to operate in germane areas. These regulations 
and guidance may be found at: http://uas.noaa.gov/policy/. Further, 
since NOAA administers the applicable environmental statutes, the FAA 
defers to NOAA regarding the requirements imposed by specific 
regulations that protect marine wildlife.
    NOAA also expressed concern that the rule would overlap and 
conflict with several statutes and regulations that prohibit the 
approach of endangered marine species. NOAA cited the National Marine 
Sanctuaries Act (NMSA) and the Endangered Species Act (ESA). NOAA asked 
the FAA to include wildlife-specific language in the rule so that the 
public is made aware of regulations and guidelines, including the NMFS 
Marine Wildlife Viewing Guidelines, which recommend, in general, that 
the public keep a safe distance of 50 yards (150 feet) from dolphins, 
seals, and sea lions on the water or land and 100 yards (300 feet) from 
large whales on water or land, and recommends viewing guideline for 
aerial observations of all marine mammals of 1,000 feet. Green Vegans 
also cited the same statutes as potentially being implicated by 
operation of small UAS.
    The FAA agrees with NOAA that remote pilots operating a small UAS 
are responsible for complying with all applicable laws and regulations, 
not just the requirements of this rule. This rule does not authorize 
the harassment, harming, or killing of wildlife, and remote pilots of 
small UAS remain subject to environmental and wildlife laws such as the 
ones cited by the commenters as well as any other laws applicable to 
the small UAS operation. With regard to marine wildlife, as discussed 
earlier, the FAA strongly recommends that remote pilots conducting 
operations near marine wildlife familiarize themselves with NOAA 
regulations and guidance, which can be found at: http://uas.noaa.gov/policy/. However, with regard to the contents of this rule, the FAA 
defers to NOAA for the regulations and guidance

[[Page 42190]]

regarding matters within NOAA's jurisdiction.
    Several individual commenters expressed concern that small UAS 
could be used to deliver hazardous materials to public and private 
citizens endangering the lives of people, wildlife, and property. In 
response, the FAA notes that, as discussed in section III.C.1 of this 
preamble, the provisions of this rule do not authorize the use of small 
UAS to transport or deliver hazardous materials.
4. Privacy
    In the NPRM, the FAA acknowledged that privacy concerns have been 
raised regarding the integration of UAS into the NAS. Although proposed 
regulations to address privacy concerns were deemed beyond the scope of 
this rulemaking, the FAA emphasized its intended participation in the 
multi-stakeholder engagement process led by the National 
Telecommunications and Information Administration (NTIA) pursuant to 
the Presidential Memorandum, Promoting Economic Competitiveness While 
Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use 
of Unmanned Aircraft Systems (February 15, 2015). Pursuant to the 
Presidential Memorandum, NTIA and its interagency partners, including 
the FAA, are working with stakeholders to develop best practices 
concerning privacy, transparency, and accountability for the broad 
range of possible UAS platforms and commercial practices.
    In addition, the FAA conducted a privacy impact assessment (PIA) of 
the proposed rule in accordance with section 522(a)(5) of division H of 
the FY 2005 Omnibus Appropriations Act, Public Law 108-447, 118 Stat. 
3268 (Dec. 8, 2004) and section 208 of the E-Government Act of 2002, 
Public Law 107-347, 116 Stat. 2889 (Dec. 17, 2002). As part of the PIA, 
the FAA analyzed the impact the proposed rule might have on collecting, 
storing, and disseminating personally identifiable information (PII) of 
airmen and UAS operators, and the FAA examined and evaluated 
protections and alternative information handling processes in 
developing the proposed rule in order to mitigate potential privacy 
risks. The PIA has been updated to reflect the provisions of this final 
rule and can be found at: http://www.transportation.gov/individuals/privacy/privacy-impact-assessments.
    The FAA intends to continue addressing privacy concerns through 
engagement and collaboration with the public, stakeholders and other 
agencies with authority and subject matter expertise in privacy law and 
policy. The FAA considered whether to include privacy provisions in 
this rulemaking. However, for the reasons explained in the discussion 
that follows, this rule does not include privacy regulations.
    The FAA received about 180 comments on the NPRM raising concerns 
about the potential impacts of small UAS operations on privacy. Most 
commenters expressed support for UAS integration and recognized the 
many benefits of this technology across diverse industries, but 
commenters discussed concerns regarding personal privacy, data privacy, 
private property rights and intellectual property rights. Several 
commenters, including the Illinois Farm Bureau, Colorado Cattlemen's 
Association, and the International Association of Amusement Parks and 
Attractions (IAAPA), raised concerns regarding small UAS operations 
over private property and several asserted that UAS operations should 
not be permitted over private property without advance authorization 
given by the business, institution or property owner.
    Some commenters, including Colorado Ski Country USA, the National 
Association of State Departments of Agriculture (NASDA), and the 
Electronic Privacy Information Center (EPIC), asserted that the FAA 
should include provisions to protect privacy as part of this 
rulemaking, while the Center for Democracy and Technology (CDT) 
asserted the FAA should address privacy in a future rulemaking. The CDT 
and EPIC included specific regulatory proposals for consideration. The 
National Farmers Union asked the FAA to be mindful of its concerns 
regarding the collection of data by industry and government, which 
might be used against a farm owner.
    However, several commenters, including the Colorado Cattlemen's 
Association, National Farmers Union, and the Florida Department of 
Agriculture and Consumer Services, recognized that privacy regulations 
are beyond the scope of this rulemaking and FAA authority. Several 
commenters, including the Professional Photographers of America and the 
Law Office of Debbie Weecks, asserted that existing law already 
addresses the issue of privacy. The News Media Coalition asserted that 
privacy concerns are best addressed at the State level. The University 
of North Georgia commented that privacy concerns are minimal provided 
flights are operated in accordance with FAA rules, and images are 
acquired from 300 feet or above and are not obtained using facial 
recognition technology.
    The Colorado Cattlemen's Association encouraged the FAA to continue 
its participation in NTIA's multi-stakeholder engagement efforts 
consistent with the February 15, 2015 Presidential Memorandum. On the 
other hand, AeroMarine recommended a federally commissioned review of 
the technological neutrality of FAA UAS proposed rules led by the 
Department of Commerce. Aeromarine also recommended a federally 
commissioned review of the adequacy of comparative technology-neutral 
privacy regulations (like the EU), led by the Department of Justice. 
One individual commented on the PIA and asserted it did not raise any 
strong concerns for the privacy of pilots.
    Overall, the comments demonstrate a lack of consensus regarding the 
extent to which UAS integration poses potential risks for privacy 
intrusions, how privacy concerns should be addressed, and the FAA's 
role in efforts to address these concerns. In response, the FAA notes 
that its mission is to provide the safest, most efficient aerospace 
system in the world, and does not include regulating privacy. The FAA 
recognizes that unique characteristics and capabilities of UAS may pose 
risks to individual privacy. However, these concerns are generally 
related to technology and equipment, which may be installed on an 
unmanned (or manned) aircraft, but are unrelated to the safe flight of 
the aircraft. There is a long history of pilots placing cameras and 
other sensors on aircraft for a variety of purposes (e.g., news 
helicopters, aerial surveys, film/television production, law 
enforcement, etc.).
    Although the FAA regulates the safe and efficient operation of all 
aircraft within the NAS, the FAA has never extended its administrative 
reach to regulate the use of cameras and other sensors extraneous to 
the airworthiness or safe operation of the aircraft in order to protect 
individual privacy. Moreover, there is substantial, ongoing debate 
among policymakers, industry, advocacy groups and members of the public 
regarding the extent to which UAS operations pose novel privacy issues, 
whether those issues are addressed by existing legal frameworks, and 
the means by which privacy risks should be further mitigated. 
Recognizing the importance of addressing privacy concerns in the proper 
forum, the FAA has partnered with other Federal agencies with the 
mandate and expertise to identify, develop, and implement appropriate 
mitigation strategies to address privacy concerns.
    Turning to specific concerns raised by the commenters, EPIC 
asserted that

[[Page 42191]]

privacy is a necessary component of the Comprehensive Plan for civil 
UAS required by Public Law 112-95, section 332(a), the FAA is required 
to establish privacy regulations prior to the integration of UAS into 
the NAS, and the FAA must therefore reissue the NPRM to fulfill the 
Congressional mandate. EPIC believes the FAA should propose privacy 
regulations that include provisions for use and data limitations, 
transparency, and public accountability. The CDT proposed that the FAA 
consider a future rulemaking to establish (1) limits on UAS collection 
and analysis of data; (2) limits on UAS retention of data; (3) 
standardized methods to disclose data collection practices by non-
hobbyist UAS operators and technical capacity to identify those 
operators; and (4) methods to honor requests to opt-out certain areas 
entirely or partially from UAS data collection. The NASDA and the South 
Dakota Department of Agriculture also asserted that privacy issues need 
to be addressed before UAS are integrated into the airspace.
    In section 332(a) of Public Law 112-95, Congress required the 
Secretary of Transportation to develop, in consultation with 
representatives of the aviation industry, Federal agencies that employ 
UAS technology in the NAS, and the UAS industry, a comprehensive plan 
to safely accelerate the integration of civil UAS into the NAS. The 
mandate included specific direction regarding the contents of the plan, 
which addressed the safe and efficient integration of UAS into the 
airspace, but did not require the consideration of privacy 
implications.\168\ Moreover, in section 332(b) of Public Law 112-95, 
Congress directed the FAA to issue a final rule on small unmanned 
aircraft systems that will allow for civil operations of such systems 
in the NAS. Section 333 of Public Law 112-95 directed the Secretary to 
determine whether UAS operations posing the least amount of public risk 
could safely be operated in the NAS and, if so, to establish 
requirements for the safe operation of these systems in the NAS, prior 
to completion of the UAS Comprehensive Plan and rulemaking required by 
section 332.
---------------------------------------------------------------------------

    \168\ See id. at section 332(a)(2).
---------------------------------------------------------------------------

    None of the UAS-related provisions of Public Law 112-95 directed 
the FAA to consider privacy issues when addressing the integration of 
small UAS into the airspace, or mandated the inclusion of privacy 
considerations in the UAS Comprehensive Plan. Reading such a mandate 
into Public Law 112-95 would be a significant expansion beyond the 
FAA's long-standing statutory authority as a safety agency. 
Nonetheless, the FAA has consistently recognized the importance of 
stakeholder engagement regarding the concerns raised regarding privacy 
implications associated with UAS integration and incorporated privacy 
considerations into the UAS Test Site Program, under its contracting 
authority, as discussed further in response to the following comment.
    Moreover, consistent with the February 15, 2015 Presidential 
Memorandum, the FAA has been working closely with the privacy experts 
at NTIA by participating in public engagement sessions and educating 
both its governmental partners and privacy stakeholders regarding the 
safety issues associated with integrating UAS into the NAS. In March 
2015, the NTIA invited comment on the issues that should be addressed 
as part of the stakeholder engagement process, and in July 2015, the 
NTIA announced further plans to hold a series of public engagement 
sessions in an open and transparent forum to develop consensus best 
practices for utilization by civil UAS operators.\169\ The FAA will 
continue to participate in these public engagement sessions and any 
resulting working group to lend its insight and expertise regarding 
aviation safety issues as relevant to the development of consensus best 
practices for civil use of UAS.
---------------------------------------------------------------------------

    \169\ 80 FR 11978, Mar. 5, 2015; 80 FR 41013, July 14, 2015.
---------------------------------------------------------------------------

    EPIC asserted that the FAA has acknowledged that privacy needs to 
be addressed as part of UAS integration by addressing privacy as part 
of its test site program.
    Section 332(c) of Public Law 112-95 directed the FAA, in 
coordination with NASA and DOD, to develop a UAS test site program for 
purposes of gathering safety and technical information relevant to the 
safe and efficient integration of UAS into the NAS. The UAS test site 
program is expected to help the FAA gain a better understanding of 
operational issues, such as training requirements, operational 
specifications, and technology considerations, which are essential to 
the FAA's chief mission to ensuring the safety and efficiency of the 
entire aviation system. Although not a required component of the test 
site program, the FAA recognized the test site program as an 
opportunity to further the dialogue with regard to privacy concerns 
raised concerning UAS integration.
    The FAA implemented privacy requirements for the UAS test sites 
pursuant to its broad authority in 49 U.S.C. 106(l)(6), which allows 
the Administrator to enter into contracts under ``such terms and 
conditions as the Administrator may consider appropriate.'' Under this 
broad contracting authority, the FAA included certain terms and 
conditions for operating the test sites in the ``other transaction 
agreement'' (OTA) for each chosen test site operator, which included 
requirements that each test site operator establish, and make publicly 
available, a privacy policy governing all activities and that test 
sites must be operated in accordance with all applicable privacy 
laws.\170\ The FAA did not specify the contents of any test site 
operator's privacy policy and noted its expectation that the public 
entities operating the test sites and their respective State and local 
oversight bodies would monitor and enforce a test site's compliance 
with its own policies.\171\
---------------------------------------------------------------------------

    \170\ See 78 FR 68360, 68364, Nov. 14, 2013.
    \171\ Id. at 68363.
---------------------------------------------------------------------------

    To develop these privacy requirements, the FAA engaged the public 
and enlisted assistance from subject matter experts outside the agency 
specializing in privacy law and policy. While the test sites were 
established in fulfillment of the requirements in Public Law 112-95, 
the privacy requirements were ultimately included in the OTAs pursuant 
to the FAA's contracting authority in order to further the dialogue 
regarding which privacy issues are raised by UAS operations and how 
law, public policy, and industry practices should respond to those 
issues in the long run. The FAA consistently emphasized that the 
privacy requirements for the UAS test sites ``are not intended to 
predetermine the long-term policy and regulatory framework under which 
UAS would operate.'' \172\
---------------------------------------------------------------------------

    \172\ See Civil UAS Roadmap at 1.4.4; 78 FR 18932, Mar. 28, 
2013; 78 FR 12259, Feb. 22, 2013; and 78 FR 68360, Nov. 14, 2013.
---------------------------------------------------------------------------

    Contrary to the FAA's general contracting authority in Sec.  
106(l)(6), the FAA's rulemaking authority is specifically tied to its 
critical safety mission. While the FAA must comply with the Privacy Act 
of 1974, 5 U.S.C. 552a, and other applicable legal requirements related 
to privacy when the FAA is collecting, maintaining, and using 
information about individuals, the FAA's rulemaking authority neither 
mandates nor permits the FAA to issue or enforce regulations 
specifically aimed at protecting privacy interests between

[[Page 42192]]

third parties. Specifically, this rulemaking is being conducted under 
49 U.S.C. 40103(b), 44701(a)(5), and Public Law 112-95, section 333, 
which focus on the safe operation of aircraft in the NAS. Thus, the 
functions of the Administrator and the FAA in this rulemaking do not 
include the protection of privacy interests between third parties. 
However, as discussed earlier, the FAA recognizes the importance of 
addressing privacy concerns and will continue to participate in the 
NTIA process to lend its insight and expertise regarding aviation 
safety issues to the development of consensus best practices for civil 
use of UAS.
    EPIC asserted that UAS cannot be safely integrated into the NAS 
without privacy regulations and if the FAA does not address privacy it 
will create safety risks, because individuals will turn to self-help 
measures (e.g. by using technology such as geo-fencing, which could 
lead to the loss of positive control of a UAS) to protect their 
privacy. In response, the FAA notes that there could be many different 
motivations (not just privacy concerns) for an individual to engage in 
unsafe conduct. That is why the regulations of this rule require that a 
small UAS be safely operated. If a person engages in conduct that 
creates an unsafe small UAS operation, then that person will be in 
violation of this rule regardless of the specific motivation for that 
conduct.
    The FAA also notes that, with regard to EPIC's example of geo-
fencing as potentially dangerous self-help, a number of commenters on 
this rule specifically requested the FAA to mandate geo-fencing, 
asserting that this would increase the safety of a small UAS operation. 
As discussed in section III.E.3.b.vii.1 of this preamble, while this 
rule will not require geo-fencing equipage, the FAA may consider such 
equipage as a positive safety mitigation in evaluating waiver requests 
for individual operations.
    Several commenters, including the Illinois Farm Bureau, Colorado 
Cattlemen's Association, and the IAAPA, raised concerns regarding small 
UAS operations over private property and asserted that UAS operations 
should not be permitted over private property without advance 
authorization given by the business or property owner. In addition, the 
IAAPA asserted that UAS could pose a threat to intellectual property 
and other business interests of amusement parks, and other commenters 
raised concerns regarding the use of UAS to collect proprietary data 
over privately owned farms and businesses. However, the Wisconsin 
Society of Land Surveyors commented that aerial geospatial data 
acquisition practices using UAS provide significant societal benefit, 
are not a threat to individual citizen privacy and therefore Federal 
efforts to impose limits on UAS should exempt surveying and aerial 
mapping.
    As indicated in the NPRM and by some commenters, State law and 
other legal protections may already provide recourse for a person whose 
individual privacy, data privacy, private property rights, or 
intellectual property rights may be impacted by a remote pilot's civil 
or public use of a UAS. Moreover, as the New Jersey Institute of 
Technology, pointed out, established Fourth Amendment legal precedent 
may already ``serve as guiding boundaries or thresholds'' for law 
enforcement use of UAS. However, in light of the FAA's long-standing 
mission and authority as a safety agency, it would be overreaching for 
the FAA to enact regulations concerning privacy rights.\173\
---------------------------------------------------------------------------

    \173\ Nat'l Ass'n for Advancement of Colored People v. Fed. 
Power Comm'n, 425 U.S. 662 (1976).
---------------------------------------------------------------------------

5. First Amendment
    The FAA also received comments concerning the First Amendment 
implications of this rulemaking. In the NPRM, the FAA proposed a number 
of restrictions on small UAS flight in the interest of aviation safety, 
which some commenters have asserted incidentally burden the First 
Amendment. Many commenters, including the International Center for Law 
and Economics and TechFreedom, the Student Press Law Center, and the 
News Media Coalition, encouraged the FAA to consider how the proposed 
rules may infringe on First Amendment rights.
    After describing the applicable standards of review, the 
International Center for Law and Economics and TechFreedom asserted 
that various aspects of the rule are likely unconstitutional because 
they are not sufficiently narrowly drawn and adequately tailored to 
respond to the government interest for which they were created to 
address. This commenter went on to argue that the following NPRM 
provisions would have particular difficulty meeting the First Amendment 
burdens for time, place, and manner restrictions: (1) Ban on UAS 
flights over populated areas; (2) the specific airspace restrictions 
proposed in the NPRM; (3) the licensing regime for UAS operators; (4) 
the prohibition on nighttime operations; (5) the proposed visual line-
of-sight requirements; (6) the ban on operating a small UAS from a 
moving vehicle; and (7) the ban on simultaneous operation of multiple 
UAS. Another commenter added that self-employed media photographers and 
videographers should be exempt from paying fees for operating UAS that 
may apply to larger news organizations, because such fees unduly would 
infringe upon their First Amendment rights.
    The Student Press Law Center asserted that a failure to carve out 
an appropriate exemption for student journalism, similar to the one 
provided for ``hobbyists,'' could leave the final rule susceptible to a 
First Amendment challenge. The commenter argued that denying a 
journalist access to the skies on the basis of his intent to engage in 
protected speech unfairly punishes the would-be speaker, and stated 
that the intent to engage in a protected activity cannot be used as a 
basis for more burdensome regulation.
    Additionally, one individual asserted that citizens engaged in 
constitutionally protected First Amendment activity could be subject to 
increased policing as a result of widespread small UAS usage. Another 
individual was concerned about the distinction between hobbyists and 
commercial use because, according to this individual, this distinction 
could result in the demise of model aviation magazines by muzzling 
hobbyists who are also paid.
a. First Amendment Law in the United States
    In the United States, there is a right to freedom of speech, except 
under certain circumstances where the government is permitted to 
restrict speech. Whether the speech can constitutionally be restricted 
depends on the forum in which the speech is made, the content of the 
speech, or the manner in which it is regulated.\174\ Government 
limitations on speech in a nonpublic forum receive a lower level of 
scrutiny than restrictions on speech in a public forum.\175\
---------------------------------------------------------------------------

    \174\ U.S. Congressional Research Service. Freedom of Speech and 
Press: Exceptions to the First Amendment (7-5700, September 8, 2014) 
by Kathleen Ann Ruane. https://www.fas.org/sgp/crs/misc/95-815.pdf 
at 9.
    \175\ Ctr. for Bio-Ethical Reform, Inc. v. City & Cnty. of 
Honolulu, 455 F.3d 910, 920 (9th Cir. 2006).
---------------------------------------------------------------------------

    In the public forum context, non-content-based restrictions on 
speech, such as the provisions in this rule, are analyzed using an 
intermediate scrutiny framework. Under intermediate scrutiny, a 
restriction on speech must advance a ``significant,'' ``substantial,'' 
or ``important,'' (but not necessarily ``compelling'') government 
interest, and the restriction must be narrowly tailored to achieve that 
interest. The restriction does not have to be the least restrictive

[[Page 42193]]

means to advance the governmental interest.\176\ There are two 
categories of non-content-based speech restrictions: (1) Incidental 
restrictions, which are restrictions aimed at conduct other than 
speech, but which incidentally restrict speech; and (2) time, place, or 
manner restrictions on speech.\177\
---------------------------------------------------------------------------

    \176\ CRS at 9.
    \177\ CRS at 9.
---------------------------------------------------------------------------

    As discussed below, this rule regulates activity in a nonpublic 
forum: The NAS. However, even if we assume, for the sake of discussion, 
that the NAS is a public forum, the proper framework in which to view 
the provisions of this rule is not under the category of time, place, 
or manner restrictions, but under the category of incidental 
restrictions on speech. The flight of a small UAS is not speech--it is 
conduct other than speech which may incidentally restrict speech (e.g., 
news reporting, commercial speech, or aerial photography). However, for 
the reasons discussed below, even if this rule were to be analyzed 
using the more stringent time, place, manner framework, the provisions 
of this rule would still be consistent with the First Amendment.
b. Restrictions on Speech in a Non-Public Forum
    First, the location in which an activity occurs determines the 
level of scrutiny the courts will apply to a restriction placed on the 
activity. Restrictions placed on activities that occur in a non-public 
forum receive the lowest level of First Amendment scrutiny. Airspace is 
a nonpublic forum. As discussed in Center for Bio-Ethical Reform, Inc. 
v. City and County of Honolulu, ``one would be hard pressed to find 
another forum that has had its access as historically restricted as 
U.S. airspace.'' \178\ Thus, FAA regulation of the NAS may impose 
restrictions in this forum that are ``reasonable and viewpoint 
neutral.'' \179\ ``The reasonableness analysis focuses on whether the 
limitation is consistent with preserving the property for the purpose 
to which it is dedicated.'' \180\ This rule is reasonable because it 
directly addresses the FAA's interest in preserving the safety of 
manned aircraft flying in the NAS, as well as the safety of people on 
the ground. This rule is also viewpoint neutral because it does not 
specifically target a certain opinion or stance.\181\ As such, the 
provisions of this rule are consistent with the First Amendment.
---------------------------------------------------------------------------

    \178\ Ctr. for Bio-Ethical Reform, Inc. v. City & Cnty. of 
Honolulu, 455 F.3d 910, 920 (9th Cir. 2006).
    \179\ Ctr. for Bio-Ethical Reform at 915.
    \180\ Ctr. for Bio-Ethical Reform at 922, citing Brown v. 
California Dept. of Transp.321 F.3d 1217, 1222 (9th Cir. 2003).
    \181\ Ctr. for Bio-Ethical Reform at 921.
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c. Incidental Restrictions on Speech
    If we were to assume, for the sake of discussion, that the NAS is a 
public forum, then the appropriate category in which to evaluate the 
provisions of this rule would be as an incidental restriction on 
speech. The activity actually regulated by this rule--flying a small 
unmanned aircraft--is not speech or an expressive activity. Rather, the 
flight of a small unmanned aircraft has only an incidental relationship 
to expressive conduct because it could be used to assist an expressive 
activity, such as recording something via camera. However, the 
provisions of this rule regulate only the flight of small unmanned 
aircraft; the use of a camera or other method of recording something 
near the aircraft is not directly regulated by part 107. In other 
words, attaching a camera to a small unmanned aircraft does not 
transform flying that aircraft into expressive conduct any more than 
attaching a camera to a car would transform driving that car into 
expressive conduct. In both cases, any restrictions on expressive 
conduct that occur as a result of regulating the operation of the small 
unmanned aircraft or car are incidental restrictions.
    The Supreme Court has noted that the standard for determining the 
constitutionality of an incidental restriction is ``little, if any, 
different from the standard applied to a time, place, or manner 
restriction.'' \182\ As long as the regulation is content-neutral and 
narrowly focused on a substantial government interest, an incidental 
restriction need not be the least restrictive or least intrusive means 
of furthering that government interest.\183\ As discussed in the 
previous section, this regulation is content-neutral and is narrowly 
focused on the substantial government interest of regulating aviation 
safety.\184\ Therefore, it need not be the least restrictive or least 
intrusive means of furthering aviation safety.
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    \182\ Clark, 468 U.S. at 294.
    \183\ S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 
U.S. 522, 537 (1987).
    \184\ See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of 
Revenue, 460 U.S. 575 (1983). In that case, the Supreme Court struck 
down a tax imposed on the sale of large quantities of newsprint and 
ink because the tax had the effect of singling out newspapers to 
shoulder its burden. Here there is no such disproportionate effect--
there are many small UAS operators who are not newsgathering 
organizations.
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    In Arcara v. Cloud Books, the defendant challenged a New York State 
law under which an adult bookstore was closed because it was found to 
be a public health nuisance. Respondents argued that the effect of the 
statutory closure remedy impermissibly burdened its bookselling 
activities protected under the First Amendment. The Supreme Court 
observed that ``[t]he severity of this burden is dubious at best, and 
is mitigated by the fact that respondents remain free to sell the same 
materials at another location.'' \185\ The Court continued:
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    \185\ Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986).

    In any event, this argument proves too much, since every civil 
and criminal remedy imposes some conceivable burden on First 
Amendment protected activities. One liable for a civil damages award 
has less money to spend on paid political announcements or to 
contribute to political causes, yet no one would suggest that such 
liability gives rise to a valid First Amendment claim. Similarly, a 
thief who is sent to prison might complain that his First Amendment 
right to speak in public places has been infringed because of the 
confinement, but we have explicitly rejected a prisoner's claim to a 
prison environment least restrictive of his desire to speak to 
outsiders.\186\
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    \186\ Id. at 705-06.

    Ultimately, the Court concluded that absent any basis for 
heightened scrutiny, ``the First Amendment is not implicated by the 
enforcement of a public health regulation of general application 
against the physical premises in which respondents happen to sell 
books.'' \187\
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    \187\ Id. at 707.
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    Similarly, this rule is directed at aviation safety and does not 
directly regulate reporting or other expressive activity. Anyone 
seeking to use a small UAS for photography or videography in a manner 
not permitted under this rule is free to utilize another method of 
photography or videography by, for example, using a manned aircraft, 
filming from a tall structure or landmark, filming from the ground, or 
using specialized equipment. Thus, the provisions of this rule meet the 
constitutional standard for an incidental restriction on speech, and 
enforcement would not implicate the First Amendment.
d. Time, Place, Manner Restrictions on Speech
    Finally, even if we were to assume that this rule directly 
regulates expressive activity in a public forum, the provisions of this 
rule would still be consistent with the First Amendment as a 
permissible time, place, or manner restriction on speech. A 
constitutionally permitted time, place, or manner restriction on speech 
occurs when the regulation is content-neutral, narrowly tailored to 
serve a significant

[[Page 42194]]

government interest, and leaves open ample alternative channels of 
communication.
    First, the requirement that the regulation be content-neutral is 
satisfied in this rule. The rule applies equally to all remote pilots 
of small UAS subject to FAA regulation, regardless of content.\188\ The 
regulation ``is not being applied because of disagreement with the 
message presented.'' \189\ There is no question as to the content-
neutrality of the regulation in this rule.
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    \188\ Any disparities in operation between pilots of small UAS 
who are hobbyists and those who are using small UAS for commercial 
purposes are beyond the control of the FAA--the ``carve-out'' for 
hobbyists was not instituted with FAA authority. As stated in the 
rule, section 336 of Public Law 112-95 specifically prohibits the 
FAA from promulgating rules regarding model aircraft that meet all 
of the following statutory criteria:
     The aircraft is flown strictly for hobby or 
recreational use;
     The aircraft is operated in accordance with a 
community-based set of safety guidelines and within the programming 
of a nationwide community-based organization;
     The aircraft is limited to not more than 55 pounds 
unless otherwise certified through a design, construction, 
inspection, flight test, and operational safety program administered 
by a community-based organization;
     The aircraft is operated in a manner that does not 
interfere with and gives way to any manned aircraft; and
     When flown within 5 miles of an airport, the operator 
of the aircraft provides the airport operator and the airport air 
traffic control tower (when an air traffic facility is located at 
the airport) with prior notice of the operation.
    Therefore, the FAA can only promulgate rules regarding 
commercial uses of small UAS that are outside the scope of section 
336, such as commercial uses.
    \189\ Clark, 468 U.S. at 294.
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    Second, this rule is narrowly focused on the FAA's substantial 
interest in protecting the navigable airspace of the United States, in 
addition to people on the ground. An example of a restriction that was 
considered unconstitutional was a ban on displaying flags or banners on 
public sidewalks surrounding the Supreme Court because there was not 
sufficient justification for the ban and it was not narrowly 
tailored.\190\ Conversely, with respect to the regulation at issue, to 
discard the provisions with which the commenters have taken issue would 
be at odds with the FAA's stated mission of providing the safest 
airspace system in the world. The safety rationale for the provisions 
specifically designated by commenters as posing First Amendment issues 
is discussed in those provisions' respective sections of this preamble.
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    \190\ United States v. Grace, 461 U.S. 171 (1983).
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    Lastly, there are adequate alternative channels of communication 
available for operations that are not allowed under the provisions of 
this rule. The First Amendment analysis does not require that a 
regulation be the least restrictive means of achieving the government 
interest, only that there not be a less restrictive alternative that 
serves the government's interest as efficiently as the regulation at 
issue. A variety of other reporting, photography, and videography 
tactics that have been used prior to the existence of small UAS 
continue to be available to this day--the provisions of this rule apply 
only to small UAS, and not to other methods of conducting photography 
or videography. For example, as mentioned previously, the capability to 
conduct aerial photography and videography using manned aircraft 
remains unaffected by this rule.
    This rule fulfills several legitimate needs, the most important of 
which is providing the safest, most efficient aerospace system in the 
world. The provisions at issue all align with that principle. As such, 
this rule (which does not discriminate based on the time, place or 
manner of any expressive conduct) is narrowly tailored to achieve a 
significant, substantial, and important government interest.
6. Preemption
    Although the NPRM did not mention preemption, the FAA received some 
comments on Federal preemption over State and local regulations. The 
FAA has reviewed the comments and, as discussed below, decided that 
specific regulatory text addressing preemption is not required in the 
final rule.
    The Associated General Contractors of America, Consumers Energy 
Co