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

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

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

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

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

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

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

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

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

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

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

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

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

J. Statutory Findings

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

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

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

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

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

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

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

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

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

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

K. Miscellaneous Provisions

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

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

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

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

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

    Although it did not mention UAS Test Sites, specifically, the
Washington Aviation Group recommended that the FAA gather information
on the frequency with which small UAS can be expected to fail, and on
the prevalence of return-to-home technology. The Washington State
Department of Transportation, Aviation Division--which also did not
specifically mention UAS Test Sites--recommended the FAA initiate a
study to examine hobbyist UAS activities in an effort to determine
whether registration of some hobby UAS aircraft may now be appropriate.
Event 38 Unmanned Systems said the FAA must secure appropriate research
and development funding, and conduct research on any proposed rule
implementation, in an open and transparent manner with particular
attention paid to non-biased review and quality assurance.
    The FAA has established requirements (in the Registration Rule) for
registration of all unmanned aircraft and aircraft classified as model
aircraft. As mentioned previously in regards to funding, Congress must
appropriate Federal funds to the FAA for specific types of research and
development.
3. Noise and Environmental
a. The National Environmental Policy Act
    The Department of Transportation has determined that this proposed
action qualifies for categorical exclusion pursuant to Paragraph 4.c.5
of DOT Order 5610.1C, Procedures for Considering Environmental Impacts
(44 FR 56420, Oct. 1, 1979) and FAA Order 1050.1F, paragraph 5-
6.6(f).\163\ Paragraph 4.c.5 of DOT Order 5610.1C incorporates by
reference actions identified by FAA as categorical exclusions.
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    \163\ FAA has determined that this final rulemaking is covered
by the CATEX described in paragraph 5-6.6(f) of FAA Order 1050.1F.
In the NPRM, the FAA relied upon the categorical exclusion in
section 312(f) of FAA Order 1050.1E the NPRM the FAA has updated the
order and the corollary provision in the new order is paragraph 5-
6.6(f).
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

third parties. Specifically, this rulemaking is being conducted under
49 U.S.C. 40103(b), 44701(a)(5), and Public Law 112-95, section 333,
which focus on the safe operation of aircraft in the NAS. Thus, the
functions of the Administrator and the FAA in this rulemaking do not
include the protection of privacy interests between third parties.
However, as discussed earlier, the FAA recognizes the importance of
addressing privacy concerns and will continue to participate in the
NTIA process to lend its insight and expertise regarding aviation
safety issues to the development of consensus best practices for civil
use of UAS.
    EPIC asserted that UAS cannot be safely integrated into the NAS
without privacy regulations and if the FAA does not address privacy it
will create safety risks, because individuals will turn to self-help
measures (e.g. by using technology such as geo-fencing, which could
lead to the loss of positive control of a UAS) to protect their
privacy. In response, the FAA notes that there could be many different
motivations (not just privacy concerns) for an individual to engage in
unsafe conduct. That is why the regulations of this rule require that a
small UAS be safely operated. If a person engages in conduct that
creates an unsafe small UAS operation, then that person will be in
violation of this rule regardless of the specific motivation for that
conduct.
    The FAA also notes that, with regard to EPIC's example of geo-
fencing as potentially dangerous self-help, a number of commenters on
this rule specifically requested the FAA to mandate geo-fencing,
asserting that this would increase the safety of a small UAS operation.
As discussed in section III.E.3.b.vii.1 of this preamble, while this
rule will not require geo-fencing equipage, the FAA may consider such
equipage as a positive safety mitigation in evaluating waiver requests
for individual operations.
    Several commenters, including the Illinois Farm Bureau, Colorado
Cattlemen's Association, and the IAAPA, raised concerns regarding small