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.

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,

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

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

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,

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

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

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

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

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.

    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

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

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

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.

    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.
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    \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

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\
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    \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

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

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