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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

remote pilot to detect a manned aircraft operating in his or her
vicinity than for a manned aircraft pilot to detect a small unmanned
aircraft.
    The Small UAV Coalition sought clarification on what it means to
``give way to the other aircraft or vehicle and may not pass over,
under, or ahead of it unless well clear.'' The Air Medical Operators
Association, HAI, and an individual noted that the NPRM does not define
the term ``well clear.'' The Small UAV Coalition asserted that ``this
explanation would permit a sUAS operator to take precedence over a
manned helicopter provided the UAV remain `well clear' of the manned
helicopter.''
    Under this rule, yielding the right of way means that the small
unmanned aircraft must give way to the other aircraft or vehicle and
may not pass over, under, or ahead of the other aircraft/vehicle unless
well clear. The term ``well clear'' means that the small unmanned
aircraft is far enough away from the other aircraft or vehicle that it
no longer presents a hazard to that aircraft or vehicle. Thus, if a
manned aircraft enters the area of operation, the small unmanned
aircraft must initiate maneuvers to ensure that it maintains a distance
from the manned aircraft such that there is no risk of collision with
that aircraft. In response to the Small UAV Coalition, the FAA notes
that there is no right-of-way issue if two aircraft are far enough
apart that they do not present a hazard to each other.
    One commenter suggested that this rule allow the remote pilot in
command to determine the specifics of how to yield the right of way to
another aircraft.
    The FAA declines to allow a remote pilot in command to pass over,
under, or ahead of a manned aircraft if the small unmanned aircraft is
not well clear of the manned aircraft. Compared to a pilot onboard a
manned aircraft, it may be more difficult for a remote pilot in command
to judge the relative altitude of another aircraft in flight. Further,
the remote pilot will generally be limited to a maximum operating
ceiling of 400 feet AGL, as specified in Sec.  107.51(b), and the
manned aircraft will likely be moving significantly faster than the
small unmanned aircraft. As such, it is critical that the remote pilot
in command not attempt to maneuver the unmanned aircraft to pass over,
under, or ahead of a manned aircraft unless well clear, as doing so may
present a hazard to the manned aircraft.
    Several commenters, including the Property Drone Consortium,
Southern Company, and several individuals generally focused on right-
of-way situations involving two or more small unmanned aircraft. The
Property Drone Consortium and two individuals questioned how two
unmanned aircraft could yield the right of way to each other. Southern
Company proposed that the FAA treat ``conflicts between small UAS as
conflicts between aircraft of the same category.''
    This rule will not treat conflicts between two small unmanned
aircraft the same manner that the FAA has traditionally treated
conflicts between two aircraft of the same category because the rules
that apply to aircraft of the same category (Sec.  91.113(d) and (e))
are not easily applied to small UAS. For example, under Sec.
91.113(d), when two aircraft of the same category are converging, the
aircraft to the other's right has the right of way. For manned
aircraft, it is easy for a pilot to distinguish whether an aircraft is
to the pilot's right or left. For unmanned aircraft, however, a remote
pilot's perspective depends on where the remote pilot is located on the
ground relative to his or her small unmanned aircraft. Therefore,
applying the traditional manned-aircraft right-of-way rules to small
UAS may cause confusion.
    Instead of imposing a specific right-of-way requirement on
conflicts between two small unmanned aircraft, this rule will require