could, potentially with modifications, meet the injury severity limits
of the proposed rule.
    The FAA does not agree with ASSURE and other commenters that the
requirements of this rule are too conservative. This final rule is
performance-based, therefore the FAA anticipates that applicants would
be able to use a variety of injury scales in a means of compliance
including the injury scales identified by ASSURE and other commenters.
The FAA finds that the requirements for Categories 2 and 3 as finalized
in this rule set an appropriate balance between allowing small unmanned
aircraft to operate over people without an airworthiness certificate
while also limiting the risks of small unmanned aircraft operations to
the general public.
    The FAA also tasked ASSURE to develop a repeatable and simplified
test methodology for assessing the level of injury severity of small
unmanned aircraft to people on the ground in the event of a collision.
The test methodology ASSURE produced from this research utilizes the
lessons learned from their high fidelity crash test dummy and PMHS
testing.\40\ The methodology is a comprehensive means to perform impact
testing and assess the severity of injury in a manner that is not cost
prohibitive. The FAA would likely find acceptable a means of compliance
based on ASSURE's test method, as described in the A14 Report. For
further discussion about means of compliance, see Section VI.B.
---------------------------------------------------------------------------

    \40\ A14 Report, Scope p.1-5.
---------------------------------------------------------------------------

c. Other Methodologies To Evaluate Injury Severity
    The Small UAV Coalition said the FAA's narrow focus on kinetic
energy is inconsistent with other risk assessment models, such as the
Specific Operations Risk Assessment (SORA) model adopted by the
European Commission, based on its development by the Joint Authorities
for Rulemaking on Unmanned Systems (JARUS). CDA similarly recommended
adopting the JARUS-SORA model. The SORA provides a qualitative
methodology to determine the intrinsic operational risk and a means to
apply strategic and tactical mitigations to reduce risk to an
acceptable level as determined by the approving authority. The SORA
also recommends types of risk mitigations or controls that address
common threats, scalable to the level of risk, to ensure the safety of
the UAS operation. Under the SORA methodology, an operation over a
gathering of people would require airworthiness certification or a
mitigation or control acceptable to the approving authority. Operations
under Categories 2 and 3, conducted in accordance with the requirements
and the declaration of compliance process are consistent with the
recommendations of the SORA. Further, the FAA has added a Category 4 to
this rule, which enables small unmanned aircraft with an airworthiness
certificate to operate over people in accordance with part 107. The FAA
anticipates that waiver and exemption applicants will continue to use
the SORA methodology to support waivers and exemptions including for
activities not permitted under this rule, such as beyond visual line of
sight operations. An individual commenter said operations over people
should be governed by an equation that considers: (1) Probability of
crash (considering weather, condition of UAS, proximity to buildings,
etc.); (2) angle of flight path relative to people; (3) speed
(including whether it will hover or just transition over people); and
(4) height. The FAA acknowledges that considering the probability of a
crash, angle of flight path, and speed is one method to determine risk
to persons on the ground. However, this approach requires the FAA to
evaluate each element for each operation to determine acceptability,
which would increase the burden on applicants and the FAA. The
commenter's equation does not provide specific performance-based
requirements. The performance-based injury severity limits, exposed
rotating parts prohibition, and operating limitations that this rule
establishes provides an acceptable level of safety while allowing
flexibility for industry to develop varying ways to comply with the
applicable requirements.
d. Injury Severity and Failure Rate Uncertainty
    The European Union Aviation Safety Agency (EASA) recommended
aligning the criteria to allow small UAS operations over people as much
as possible between the United States and Europe. EASA noted that
Category 3 ``identifies a maximum KE threshold of 25 feet-lbs (about 34
Joules) for impact with a solid object.'' The requirements for the
proposed 34 joules applicable to Category 3 small UAS and the 80 joules
applicable to the new EASA Class 1 unmanned aircraft refer to
transferred kinetic energy, address the effects of blunt trauma, limit
operations over uninvolved people, and include additional technical
requirements. Because they are quantitatively different, however, EASA
was concerned ``they could set Europe and the US on different
regulatory courses for `fly over people' operations.'' EASA stated the
data from the RCC standard described in the proposed rule are too
conservative. EASA reported that it had reviewed, in particular, the
Gurdjian experiments to recalculate the energy values.\41\ As described
in their comment, EASA asserts the ASSURE Ground Collision Severity
Evaluation final report supports its recommendation to include a
kinetic energy threshold of 80 joules.\42\
---------------------------------------------------------------------------

    \41\ EASA's comment cited Gurdjian, ES., Webster J.E., and
Lisnner, H.R. (1949) Studies on skull fracture with particular
reference to engineering factors. American Journal of Surgery,
78(5), 736-751. https://doi.org/10.1016/0002-9610(49)90315-3.
    \42\ EASA, https://www.regulations.gov/document?D=FAA-2018-1087-0415.
---------------------------------------------------------------------------

    The Category 3 operation in this rule and EASA's Class 1 unmanned
aircraft operation share similarities, but have important differences.
In particular, the EASA Sub-category C1, which includes the limitation
of 80 joules of energy transfer on impact, also contains noise,
alerting, structural, navigation, and datalink requirements that are
not included in the FAA's Category 2 or Category 3 eligibility
requirements. The design requirements addressing topics such as
structural integrity and navigational performance are better suited for
the aircraft certification process and are not appropriate for non-
certificated aircraft. Because small unmanned aircraft under Categories
2 and 3 are not required to have an airworthiness certificate or meet
design requirements such as those adopted by

EASA, an increase in the kinetic energy values would allow injuries
that are significantly more severe than the injuries that could occur
under Category 2 or Category 3 of this rule. Both the ASSURE research
and the Gurdjian experiments support the fact that an increase in the
kinetic energy from the proposed requirement, without any mitigating
design requirements such as those required under EASA's regulations,
increases the injury severity limit beyond an acceptable level. The FAA
envisions that the variety of the four different categories will likely
provide greater flexibility than what EASA has provided. Without
including additional design or certification requirements, the change
EASA suggests would result in an unacceptable level of safety for the
general public. The injury severity limits and exposed rotating parts
prohibition are an appropriate set of regulations for enabling aircraft
without airworthiness certification to operate over people in
accordance with an acceptable level of safety.
    The Agency, however, agrees that conformity to design requirements
is another way to enable small unmanned aircraft operations over
people, and has thus added a Category 4 to accommodate certificated
aircraft. The proposed rule included a request for comments regarding
how the FAA should approach the uncertainties regarding failure rates
and injury severity. Several commenters contended that the FAA relied
too heavily on the injury severity limits and did not adequately
consider the reliability of the small UAS or the probability of
failure. With regard to probability of failure, the Agency received
several divergent comments: Some believe probability of failure was
inherently low, while others thought probability of failure could be
high. Although the reliability of the small unmanned aircraft is one
factor in determining whether an operation over people is safe, the
FAA's process for considering the reliability of aircraft is the
airworthiness certification process. Given that operations under part
107 do not need to occur with small unmanned aircraft that have an
airworthiness certificate, probability of failure is a less appropriate
measurement than the combination of injury severity limits and
restrictions on exposed rotating parts and safety defects for
Categories 2 and 3, in addition to the operating limitations in
Category 3 that reduce likelihood of impact to a human being. To
address these comments, this rule allows aircraft that have an
airworthiness certificate that does not prohibit operations over people
to be used for operations over people. These Category 4 eligibility
requirements are discussed in Section VII of this preamble.
    One commenter asked why the Agency did not distinguish between
rotorcraft and fixed-wing aircraft. The commenter stated, ``[t]hey fall
differently, but we have the same rules for both.'' Although rotary-
wing and fixed-wing small unmanned aircraft have unique flight
characteristics and the manner in which they could impact a person
could be different, any small unmanned aircraft must not exceed the
injury severity limits, regardless of whether it is a rotary-wing,
fixed-wing, or any other type aircraft. An acceptable means of
compliance must account for the variations in aircraft configurations,
unique failure modes, most probable impact orientations, impact
trajectory angles, and velocities from flight test and dynamic modeling
for different types of small unmanned aircraft to demonstrate
compliance. A few commenters said the categories should be based on the
flight altitude for the same small unmanned aircraft. A commenter
suggested that a ``Mavic Air'' would be rated Category 2 up to 50 feet
and Category 3 up to 80 feet.\43\ The NPRM discussed the possibility of
individual small unmanned aircraft being eligible for operations in
more than one category through the use of variable modes or
configurations. The FAA would consider a design feature that limits the
altitude of a small unmanned aircraft to the maximum altitude
associated with compliance as an example of a variable mode; for
example, when not operating over people, a certain small unmanned
aircraft would not need to limit its altitude. However, to operate over
people, the remote pilot would operate in a mode that limits the
aircraft's altitude to comply with the requirements for operating over
people. To use variable modes or configurations, the remote pilot must
not be able to inadvertently change the mode or configuration and
instructions for how to change between modes or configurations must be
available in the remote pilot operating instructions. Variable modes
and configurations are discussed in Section VI.F.
---------------------------------------------------------------------------

    \43\ The Mavic Air is a small unmanned aircraft that weighs in
the range of 0.95-1.25 pounds, depending on the model and series.
---------------------------------------------------------------------------

2. Must Not Have Exposed Rotating Parts
    To be eligible to conduct Category 2 or Category 3 operations over
people, the Agency proposed prohibiting a small unmanned aircraft from
being designed, produced, or modified such that it contains exposed
rotating parts that could lacerate human skin on impact with a human
being. As stated in the proposed rule, exposed rotating parts could
cause lacerations or other serious injuries if these parts were to come
into contact with a person. Such parts are a common feature to small
unmanned aircraft on the market today. Due to the hazards this feature
can pose, the Agency proposed restricting eligibility for Categories 2
and 3 to small unmanned aircraft that do not contain any exposed
rotating parts that could lacerate human skin on impact. While the NPRM
acknowledged that exposed rotating parts could be capable of injuries
beyond just lacerations (e.g., injuries to hair, teeth, and eyes), the
Agency determined this prohibition, combined with the other
limitations, were sufficient to mitigate the risk of injuries.
    Several commenters asserted that protections for exposed rotating
parts are not necessary for small unmanned aircraft. One of these
commenters pointed out that data shows fewer injuries to uninvolved
parties result from exposed propellers on small unmanned aircraft than
the number of annual fatalities that occur from rotorcraft and
operations that occur under part 103.\44\
---------------------------------------------------------------------------

    \44\ Title 14 CFR part 103 (``Ultralight Vehicles'') applies to
manned vehicles that only a single occupant operates for recreation
or sport and, if unpowered, weigh less than 155 pounds. Part 103
applies to powered vehicles that weigh less than 254 pounds empty
weight that meet other criteria. See 14 CFR 103.1.
---------------------------------------------------------------------------

    Manned aircraft with approved designs do not require shrouded
rotors because compliance with applicable certification standards and
operating limitations reduce the likelihood of an impact with a human
being and therefore do not present a significant hazard to persons on
the ground. Operating a small unmanned aircraft under Category 2 or
Category 3 does not require airworthiness certification but, as
described in this rule, design features such as shrouded propellers can
mitigate the risk of laceration to persons on the ground. Ultralight
vehicles operating in accordance with part 103 do not have
airworthiness certificates. However, to mitigate the risk to persons on
the ground, these vehicles are prohibited from operations over any
congested area of a city, town, or settlement, or over any open-air
assembly of persons.\45\
---------------------------------------------------------------------------

    \45\ See 14 CFR 103.15 (``Operations over congested areas'').

---------------------------------------------------------------------------

    Many commenters suggested the prohibition on exposed rotating parts
is too restrictive. The Small UAV Coalition commented that while the
preamble of the NPRM refers to the prohibition on exposed rotating
parts as a performance standard, it appears to result in requiring
installing guards or shrouds to ensure that rotating parts are not
exposed on impact. Uber Technologies asserted that the exposed rotating
parts prohibition strictly based on any skin laceration, without
consideration of severity or probability, creates an additional blanket
prohibition on aircraft with any exposed rotating parts. If the
restriction remains in the final rule, Uber Technologies recommended
including a waiver process for exposed rotating parts, with appropriate
inclusion of risk- and performance-based metrics. AeroVista Drone
Academy believed the requirement for a manufacturer to establish that
an aircraft design would not have exposed rotating parts that could
lacerate human skin is ``materially infeasible'' without specific
guidance as to what would meet this threshold. The Academy wrote that
manufacturers would have to conduct prohibitively expensive and costly
testing. A-Cam Aerials asked the Agency to reword the requirement so
that small unmanned aircraft eligible for operations in Categories 2
and 3 be designed such that they ``minimize'' lacerations to human skin
on impact with a person.
    The FAA clarifies the primary safety objective of the exposed
rotating parts prohibition is to protect human beings on the ground
from lacerations upon impact with a small unmanned aircraft in typical
human encounters and unmanned aircraft operational scenarios (including
potential failure modes). The FAA distinguishes between a laceration,
meaning a cut that goes all the way through the skin and may require
emergent medical attention, and an abrasion, meaning a superficial
injury to the skin. Additionally, the FAA uses the expression ``typical
human encounter'' to describe normal impacts, such as an unmanned
aircraft impacting a human being due to a loss of control, small UAS
failures, or remote pilot error. Exposed rotating parts may pose a
significant laceration hazard if they contact human skin, which is
unacceptable for the safety of the general public. The performance-
based standards for Categories 2 and 3 will protect persons on the
ground from potentially serious injury. This rule does not prohibit the
applicant from using exposed rotating parts, but only prohibits the
presence of rotating parts capable of lacerating human skin in typical
human encounters. The FAA has issued waivers to companies for
operations over people that employed combinations of motor stop
technology and exposed rotating parts materials that could cause
abrasions, but not lacerations. The technology and the testing
methodologies these companies used could be utilized in a means of
compliance accepted by the FAA.
    The FAA anticipates that organizations, including industry
consensus standards bodies, may develop means of compliance for an
unmanned aircraft with exposed rotating parts that meet the prohibition
on exposed rotating parts that would cause lacerations. Once those
standards are accepted by the FAA, applicants submitting a declaration
of compliance may then use that means of compliance without themselves
having to develop the testing methodology or technology. Such a means
of compliance may include specific material requirements, rotor
specifications, or additional mitigating technologies.
    As for the waiver process, Sec.  107.39 will remain subject to
waiver and the FAA will continue to review waiver applications on a
case-by-case basis. With regard to the costs of complying with the
prohibition, a summary of impacts is in the regulatory impact analysis
available in the public docket for this rule.
    Commenters were also concerned about installing shrouds that would
guard propellers. An individual wrote that propeller guards and full
body cages can ``adversely affect flight characteristics'' and that
propeller guards could increase the likelihood of loss of control for
some quadcopters. In addition, DJI said shrouding an entire rotating
part, if that part is involved in propulsion, can affect the
aerodynamics and performance of the aircraft.
    This rule is performance-based and allows exposed rotating parts as
long as they do not lacerate human skin. Adding rotor shrouds, full
body cages, or other safety features might be ways to fulfill the
requirement. The rule permits applicants to employ propeller guards or
full body cages in consideration of maintaining appropriate flight
characteristics for the small unmanned aircraft. Designs that use
propeller guards that prevent the exposure of rotating parts in typical
human encounters, would be acceptable to the FAA. The FAA acknowledges
that lacerations to human skin may not be entirely preventable in every
encounter scenario. The means of compliance will address how this
requirement is met, and may contain design characteristics and test
methods to ensure that the applicant has taken all reasonable measures
to mitigate the possibility of lacerations upon impact with a human
being. While the inclusion of propeller guards or full body cages could
adversely affect the flight performance of the small unmanned aircraft,
the safety benefits provided by the prohibition outweigh the potential
loss of performance.
    An individual noted that lacerations from propellers and other
parts do not rise to the level of AIS level 3. Not all lacerating
injuries will result in severe injury, but rotating propellers and
rotors could pose a significant laceration hazard if they come in
contact with human skin. Overall, protection from lacerating injuries
is necessary to mitigate the risk to the general public.
    Droneport Texas, LLC said the FAA should be open to timely
consideration and acceptance of alternatives to ducting or shrouding
rotors, such as rotor shedding, in which lightweight rotors are
jettisoned and drift to the ground, and rotor braking, in which all
exposed rotating parts are mechanically or electrically stopped prior
to impact. Ducting or shrouding of rotating parts is only one method of
design implementation to protect from laceration. This rule does not
prescribe specific design features to provide protection from exposed
rotating parts; any such design features that Droneport Texas, LLC
identified will be acceptable if they meet an FAA-accepted means of
compliance.
    DJI said it supports protecting people from sharp moving parts
during operations where risks of lacerations exist, but notes this
could exist with respect to operations near, not necessarily over,
people. Section 107.19(c) states, ``the remote pilot in command must
ensure that the small unmanned aircraft will pose no undue hazard to
other people, other aircraft, or other property in the event of a loss
of control of the small unmanned aircraft for any reason.'' \46\ As
stated in the NPRM, for small unmanned aircraft with exposed rotating
parts that could cause a laceration, the remote pilot is responsible
for determining the appropriate stand-off distance to ensure the small
unmanned aircraft does not pose a hazard to other people when operating
near them.
---------------------------------------------------------------------------

    \46\ In the NPRM, the FAA proposed clarifying Sec.  107.19, as
discussed in Section XII.C of this preamble.
---------------------------------------------------------------------------

    A few commenters urged the FAA to consider the likelihood of a
laceration if a blade were to come into contact with human skin. Skydio
said propeller

guards are not necessary in all occasions because blade design and
construction (e.g., size, speed, angles, and ability to retract) have a
large impact on the likelihood of a laceration if a blade were to come
into contact with a person. Additionally, Skydio said emergency
propeller stopping mechanisms in software can shut down the rotors if
they come close to or contact a person. Skydio advocated for a
performance-based standard that allows exposed rotating parts, ``so
long as it can be demonstrated that the design heavily mitigates the
chances and severity of the blades hurting people.'' A commenter
asserted folding propellers should be a mitigation factor for
operations over people in deciding if a small unmanned aircraft could
be used under Sec.  107.39.
    Under this rule, blade guards or shrouds on exposed rotating parts
are not required if applicants can demonstrate, by a means acceptable
to the FAA, that unprotected exposed rotating parts are incapable of
lacerating human skin. Implementing a rotor brake or similar approach
to stop the exposed rotating part before it makes contact with a person
may be effective in protecting from lacerations, but this requires the
applicant to demonstrate their effectiveness in all likely small
unmanned aircraft failure scenarios. Similarly, folding propellers
would be acceptable if the design is shown incapable of causing
lacerations in accordance with an FAA-accepted means of compliance.
    NASAO noted that some small unmanned aircraft have guards on the
rotors, but stated it is not clear if this would meet the eligibility
requirement. AUVSI and MAAP requested clarification that the
prohibition on parts that can lacerate human skin applies only during
the operating envelope of the aircraft or during failure mode. Several
commenters supported the proposed rule if the small unmanned aircraft
has propeller guards or some other piece of safety equipment, or is
recognized as reliable, to mitigate the risk of a falling small
unmanned aircraft. A commenter would give ``professional-level'' small
UAS more latitude to conduct operations over groups of people, ``while
restricting toy drones that are less capable.''
    The FAA agrees that the regulations should provide safety
protection from propellers that could cause lacerations. This rule
finalizes the prohibition on exposed rotating parts that could cause
lacerations for Categories 2 and 3 as proposed, with no changes.
Moreover, existing small unmanned aircraft designs will have to show
compliance with these requirements. Small unmanned aircraft that
already incorporate rotor guards would need to demonstrate the
effectiveness of the rotor guard to protect from lacerating human skin
when impacting a person by following an FAA-accepted means of
compliance. The applicability of the exposed rotating parts prohibition
is limited to small unmanned aircraft operating over people under
Categories 1, 2, and 3. To be eligible for Category 2 or Category 3
operations over people, the applicant must use an FAA-accepted means of
compliance and demonstrate the design does not contain any exposed
rotating parts that would lacerate human skin on impact.
3. Must Not Contain Safety Defects
    To be eligible to conduct operations over people in accordance with
Category 2 or Category 3, the Agency proposed requiring each small
unmanned aircraft be designed, produced, or modified such that it does
not contain any safety defects identified by the Administrator. As
discussed previously, the FAA has removed ``identified by the
Administrator'' for the sake of clarity. The NPRM explained the Agency
considers a safety defect to be a material, component, or feature of a
small unmanned aircraft that increases the likelihood that the small
unmanned aircraft could cause a casualty or fatality to a person during
an operation over people. As defined in the proposed rule, a safety
defect in a small unmanned aircraft eligible for conducting Category 2
operations would cause the unmanned aircraft to exceed a low
probability of causing a casualty to a person during an operation over
people. A safety defect in a small unmanned aircraft eligible for
conducting Category 3 operations would cause a small unmanned aircraft
to exceed a low probability of causing a fatality to a person during an
operation over people.
    The NPRM proposed to define a casualty to be a serious injury,
which corresponds to a level 3 injury on the AIS. While the FAA still
finds the AIS to be a valuable tool in determining the severity of an
injury, the FAA concludes that it is not necessary to define it
strictly. Furthermore, several commenters suggested the FAA use AIS in
lieu of the injury severity limits adopted in this rule. As discussed
in the NPRM, the FAA did not find the use of AIS in measuring injury
severity appropriate.\47\ In order to eliminate confusion, the FAA
finds it prudent to remove any regulatory references to AIS. The
dictionary definition of ``casualty''--a serious or fatal accident
\48\--provides sufficient clarity as to the safety defect requirement.
As such, the definition of ``casualty'' proposed in the NPRM has been
removed from the final rule.
---------------------------------------------------------------------------

    \47\ 84 FR 3856 at 3873.
    \48\ ``Casualty.'' Merriam-Webster.com Dictionary, Merriam-
Webster, https://www.merriam-webster.com/dictionary/casualty.
Accessed 12 Aug. 2020.
---------------------------------------------------------------------------

    The NPRM provided the following examples of safety defects: Exposed
wires or hot surfaces on a small unmanned aircraft that could cause
electrocution or burns to a person on impact; damaged or defective
lithium polymer or lithium-ion batteries that could cause casualties
from battery fires or explosions; and sharp edges or projections that
could cause lacerations or punctures as a result of an impact with a
person. The NPRM also noted that as small unmanned aircraft designs
evolve over time, potentially hazardous features or characteristics,
unknown at the present time, could emerge.
    One commenter noted the FAA did not provide an objective standard
or process for discerning what constitutes a safety defect. Another
commenter asked how egregious a safety defect would need to be to
result in action on the part of the FAA.
    To ensure this rule remains flexible and responsive to the changes
in technology, this rule does not contain an exhaustive list of all
potential safety defects or issues. An identified safety defect or
issue will require action on the part of the FAA if the probability of
serious injury or fatality exceeds the parameters of acceptable risk
for Category 2 or Category 3. As discussed in Section VI.C.,
Declaration of Compliance, the FAA has implemented a process by which
it will work with applicants on addressing and resolving any identified
safety defects or issues that would render the small unmanned aircraft
ineligible to operate over people. This rule adopts the prohibition of
safety defects in small unmanned aircraft eligible to conduct
operations in accordance with Categories 2 and 3, without change.
4. Must Display a Label
    To qualify for operations over people in accordance with Category 2
or Category 3, the Agency proposed requiring the display of a label on
each small unmanned aircraft, indicating the category or categories for
which the small unmanned aircraft is eligible to conduct operations.
The Agency explained that such labeling will assist the FAA in its
oversight role by providing a simple and efficient way to determine
whether a small unmanned

aircraft is eligible to conduct operations over people. In addition, it
will provide notice to remote pilots which category of operations they
are eligible to conduct using that aircraft.
    The Agency did not propose a prescriptive labeling requirement that
specifies exactly how an applicant \49\ must label an aircraft, what
size font to use, specific location, and so on. Due to the large
variety of small unmanned aircraft models that exist, the Agency
explained that such a prescriptive requirement would be unnecessary.
Instead, the proposed rule stated the small unmanned aircraft could be
labeled by any means as long as the label is in English, legible,
prominent, and permanently affixed to the aircraft. Given that a small
unmanned aircraft could be eligible to conduct operations in more than
one category of operations over people, the small unmanned aircraft
would have to be labeled with each category of operations for which the
small unmanned aircraft is eligible. The NPRM noted that some small
unmanned aircraft that are manufactured prior to final publication of
this rule may qualify for one or more categories of operations over
people. If the FAA has accepted a declaration of compliance for one of
these previously-manufactured small unmanned aircraft, the proposed
rule would allow a remote pilot in command to operate the small
unmanned aircraft over people, provided the unmanned aircraft is
labeled for the appropriate category or categories of operation. This
final rule requires a remote pilot to label a previously-manufactured
small unmanned aircraft in accordance with the declaration of
compliance. Also, if a label degrades such that it is no longer legible
or attached to the aircraft, the proposed rule included a requirement
that the remote pilot relabel the small unmanned aircraft. In response
to the proposed labeling requirement, an individual commenter asked for
an explanation of the purpose of the labeling requirement, saying he
would personally prefer not to add additional markings to the aircraft.
The FAA requires the label for two purposes. For the remote pilot, the
purpose of the label is to list the categories of operations over
people the small unmanned aircraft is eligible to conduct, as indicated
on the FAA-accepted declaration of compliance. The other purpose of the
label is for the FAA and other agencies to determine that the small
unmanned aircraft is eligible to conduct the operation.
---------------------------------------------------------------------------

    \49\ As described in Section VII.C., this rule identifies the
person who submits a declaration of compliance as an applicant,
rather than a manufacturer. An applicant is anyone who can attest to
the ability that they meet all the requirements of the declaration
of compliance.
---------------------------------------------------------------------------

    AUVSI commented that the proposal would benefit from further
clarification about who is responsible for labeling. AUVSI stated the
NPRM is inconsistent about whether manufacturers or operators must
label the aircraft. AUVSI noted that the proposed rule did not
affirmatively require manufacturers to label unmanned aircraft, but
that labeling is a prerequisite for a small unmanned aircraft to be
eligible to conduct Category 2 or Category 3 operations. AUVSI
interpreted this as placing the burden on the operators who want to
conduct such operations. An individual commenter requested clarity on
what responsibility the remote pilot in command has for ensuring that
the small unmanned aircraft is properly labeled for Category 2 or
Category 3.
    This rule requires the applicant to label the small unmanned
aircraft. Under this rule, the label must remain affixed to the small
unmanned aircraft to remain eligible for Category 2 or Category 3
operations. For small unmanned aircraft manufactured prior to the
effective date of this rule and listed on a declaration of compliance,
the remote pilot has the responsibility of labeling the small unmanned
aircraft before he or she may conduct operations under Category 2 or
Category 3. Once the small unmanned aircraft is in the possession of
the remote pilot, it becomes his or her responsibility to ensure the
label remains clear, legible, and affixed to the aircraft. DJI opposed
the proposed labeling requirement, expressing concern that the
requirements for manufacturers would be too burdensome and that if the
FAA rescinds a declaration of compliance, the labeling may become
erroneous or outdated. The FAA does not consider the labeling
requirement to be unduly burdensome, given the performance-based nature
of the requirement. Additionally, because the remote pilot is
ultimately responsible for ensuring the unmanned aircraft is both
labeled appropriately and listed on an FAA-accepted declaration of
compliance, per the applicable operating requirements, the risk of
erroneously-labeled small unmanned aircraft being used for operations
over people is low. The FAA encourages industry to develop a standard
for the label to promote consistency and ease of understanding.
    DJI recommended the FAA maintain a database of aircraft, similar to
that instituted by Transport Canada, and allow this to inform potential
small UAS buyers of the accepted products that currently meet the
requirements for their mission needs. The FAA will make available on
the FAA website the status of each applicant's declaration of
compliance for public access, to enable remote pilots to determine
which small unmanned aircraft are eligible for operations over people.
The FAA anticipates listing the aircraft by make, model and series, if
applicable, serial number, and category.\50\ This database will be the
primary source of the eligibility of the small unmanned aircraft, while
the label provides a simple and efficient way to indicate eligibility
for operations over people.
---------------------------------------------------------------------------

    \50\ The NPRM proposed to list the aircraft by make and model,
but did not list series. This rule contains the phrase ``series, if
applicable'' to allow for both flexibility to applicants and for
refined specificity in identifying small UAS eligible to operate
over people.
---------------------------------------------------------------------------

    DJI also expressed concern that operators may modify a
manufacturer's small UAS, rendering the label ``outdated''. The FAA
emphasizes the remote pilot is responsible for ensuring any
modifications to the small UAS are in accordance with the remote pilot
operating instructions in order for the small UAS to remain eligible
under the FAA-accepted declaration of compliance. This rule requires
the applicant to provide remote pilot operating instructions, on sale
or transfer of the small unmanned aircraft, or use of the small
unmanned aircraft by someone other than that person. The operating
instructions should address, among other things, modifications that
will not change the eligibility of the small unmanned aircraft to
operate over people. To be eligible to operate over people, the
applicant is required to label the small unmanned aircraft, however,
this rule does not preclude remote pilots from labeling their own
aircraft. Finally, the remote pilot is responsible for verifying the
small unmanned aircraft is properly labeled before each flight and
knowing the type of operations for which the small UAS is eligible.
    Finally, Section 107.5, which prohibits any fraudulent or
intentionally false record from being made, kept, or used to show
compliance with any requirement of part 107, applies to records, which
includes labels. In this regard, falsifying any part of any record
intended to constitute proof of compliance with applicable requirements
could subject the person who submitted the record to a civil penalty
and could be a basis for rescinding a declaration of compliance if the
FAA determined that the applicant falsified the records.
    A clear and legible label will enable straightforward means of
identification of the operations for which the small

unmanned aircraft is eligible. The FAA clarifies the language for the
labeling requirement to include the word ``missing'' to ensure that
remote pilots label previously manufactured small unmanned aircraft. As
a result, this rule adopts the labeling requirement with this
clarification.
5. Must Have Remote Pilot Operating Instructions
    The Agency proposed requiring applicants to provide remote pilot
operating instructions with product-specific information for operations
in Category 2 or Category 3, including system description and system
limitations and the category or categories of operations over people
for which the applicant has declared compliance. The proposed rule
stated that a person who submits a declaration of compliance for a
small UAS for Category 2 or Category 3 should provide remote pilot
operating instructions upon sale or transfer of the small unmanned
aircraft, or use of the small unmanned aircraft by someone other than
that person. Instructions would need to remain up-to-date to account
for any modifications the applicant makes to the small UAS for as long
as the declaration of compliance remains valid. Specifically, the
proposed rule included a requirement to include all modifications the
applicant determined do not change the ability of the small UAS to meet
the requirements for the category of operation for which the applicant
declared compliance in the remote pilot operating instructions. For a
small unmanned aircraft that has variable modes or configurations, the
applicant would provide instructions on how to verify the mode or
configuration that the small UAS is in and how to switch between modes
or configurations.
    The FAA received a few comments related to the contents of the
remote pilot operating instructions, which are addressed in Section
VI.C. This rule finalizes the requirement, without change, that in
order for the small unmanned aircraft to be eligible to operate over
people, the applicant must provide remote pilot operation instruction
requirements.
6. Must Be Subject to Product Support and Notification Process
    The NPRM proposed requiring applicants certify on the declaration
of compliance that a process exists to notify the public and the FAA if
the applicant identifies a safety defect or condition with its small
unmanned aircraft that would render the small UAS ineligible for
operations over people. The proposed rule did not suggest the FAA would
automatically rescind a declaration of compliance if such notification
occurred. The proposed rule stated the FAA would evaluate the report
and correspond with an applicant to determine whether taking corrective
action or rescinding the acceptance of the declaration would be
appropriate. This process is described in more detail in VII.C.8-12.
    Reporting safety issues will assist the FAA in both discovering
product hazards and identifying risks of injury the FAA could address
through direct communication with applicants, publication of Notices of
Availability in the Federal Register, or education. Applicants'
reporting will be a timely and effective source of information because
applicants often learn of potential product safety problems at an early
stage. For this reason, the NPRM proposed to require applicants to
develop a system for maintaining and reviewing information about their
products. This system will identify when an applicant's product might
have a safety defect that increases the probability of causing serious
injury or fatality during operations over people.
    Subsequent to an applicant's discovery of noncompliance, the Agency
proposed to require an applicant who submits a declaration of
compliance to notify the FAA and the public of the existence of the
safety defect. The notification to the FAA will describe the nature of
the noncompliance and how the applicant plans to address it.
    Notification to the public and owners of that make/model and
series, if applicable, is a critical step in ensuring continued safety.
Such notification could take the form of a notice on an applicant's
website, electronic notification to owners who have registered the
small unmanned aircraft with the applicant, or an update to the
software used for the small unmanned aircraft, which advises the remote
pilot of the change in status. Applicants should exercise diligence to
ensure the intended audience receives communications involving any
potential safety issues that would render the aircraft ineligible for
operations over people. In this regard, the FAA expects applicants to
design and utilize a system that will facilitate communication between
the applicants and the owners of the small unmanned aircraft and could
also inform the public at large.
    The Small UAV Coalition supported the requirement that
manufacturers establish a product support and notification process.
APPA, EEI, and NRECA, commenting jointly, supported the need for
manufacturer accountability, but believed the FAA should require
manufacturers to contact registered UAS owners directly by electronic
means or by unmanned aircraft software updates. Commenters wrote that
the need to avoid inefficient methods is critical when responding to an
outage or other emergency. Commenters further stated ``electric
industry UAS operators require a uniform, reliable, predictable way of
receiving information to ensure they can quickly and accurately
identify information that would affect [their] compliance.''
    While believing the requirements for the notification process to be
generally sufficient, a commenter wrote that manufacturers should make
it easier for pilots to know when a small unmanned aircraft is no
longer compliant. This commenter suggested manufacturers provide
instructions in their product manuals directing pilots to their
websites to learn of safety defects. This commenter also suggested
notifying purchasers through software or by email. A commenter also
thought the FAA should require each pilot to register their small UAS
when taking the mandated bi-annual knowledge test; that way, pilots
could go no more than 24 months without receiving notification that a
small UAS is non-compliant.
    Another commenter stated the proposed rule did not provide a way
for the FAA to identify and inform a specific fleet that a safety issue
exists. The commenter believed the manufacturer has no responsibility
to notify customers of safety issues, and that this is neither prudent
nor scalable. This commenter suggested requiring manufacturers keep a
list of customers and communicate directly with them and post notices
of deficiencies on their websites.
    The FAA disagrees with the commenter who believed that the proposed
regulation was unclear regarding whether an applicant has a
responsibility to provide notice of product issues to owners. The
responsibility rests with applicants who submit declarations of
compliance for the small unmanned aircraft, as they are in the best
position to identify issues in a timely manner and to communicate with
the owners. Additionally, the FAA may take action to inform the public
in certain circumstances, in addition to the applicant's notification.
    It is critical that applicants notify small unmanned aircraft
owners of any product issues. The FAA declines to specify how the
notification must occur. Applicants may have numerous ways of

contacting owners of small unmanned aircraft; the FAA declines to
prescribe the manner of contact, particularly as technology evolves.
This rule requires the applicant who submitted the declaration of
compliance to notify the owners of safety deficiencies in a timely
manner. The FAA agrees with commenters that it is important for this
information to be received quickly so that owners and remote pilots can
take appropriate action as necessary regarding use of their small
unmanned aircraft. Therefore, the FAA finalizes the product
notification requirements as proposed.

B. Means of Compliance

1. Means of Compliance
    The Agency proposed to require an applicant producing a small
unmanned aircraft eligible for Category 2 or Category 3 operations
declare compliance with the safety requirements for the chosen category
by using an FAA-accepted means of compliance. Demonstrating compliance
with safety requirements includes verifying there are no safety
defects, as described in Section VI.A.3. Under the proposed rule, a
voluntary consensus standards body or an individual could develop an
acceptable means of compliance, the latter of which the NPRM referred
to as a custom means of compliance. Once the FAA accepts a means of
compliance, any person submitting a declaration of compliance could use
it to establish their small unmanned aircraft fulfills the requirements
of the rule.
    Several commenters suggested the means of compliance proposal was
onerous, putting overly restrictive requirements on manufacturers.
Commenters were concerned the proposed rule did not allow for
innovation, would be too costly to implement, or would require
manufacturers to create a system to a set of standards that seem
arbitrary. In contrast, some commenters believed operators should be
required to prove the small unmanned aircraft are safe to operate. The
Agency carefully considered these comments and has determined the
flexible, performance-based requirements combined with the means of
compliance and declaration of compliance processes provide an effective
and cost-efficient way to establish which small unmanned aircraft meet
the appropriate eligibility requirements for operations over people.
    Some commenters expressed concern that the requirements do not
provide sufficient clarity as to how manufacturers would safely
establish their small unmanned aircraft would not exceed the injury
severity limitations. One commenter believed standardized procedures
should exist, possibly involving impacting test dummies, showing the
impact effects of a small unmanned aircraft collision so that minor or
negligent testing by manufacturers cannot be used to show compliance.
The FAA agrees standardized test procedures could be an effective way
to demonstrate applicants have fulfilled the applicable standards, but
notes the rule allows for wide variance in the operating criteria and
designs of small unmanned aircraft. The performance-based nature of
this rule allows industry to develop new or innovative standardized
methods, which might include test dummies, that will be effective in
demonstrating compliance.
    Some commenters asked whether owners of self-built small UAS can
test their own aircraft. The FPVFC volunteered to create a checklist
for small UAS self-certification of compliance for safety testing,
which anyone could use. Any person intending to operate a self-built
small UAS over people must follow an FAA-accepted means of compliance
to list the small UAS on the declaration of compliance submitted to the
FAA. The FAA anticipates small unmanned aircraft manufacturers
producing many small unmanned aircraft may find some means of
compliance more appropriate than others, as some test procedures may
involve destructive testing of multiple small unmanned aircraft to
demonstrate compliance. This rule permits owners of self-built small
unmanned aircraft to develop a means of compliance that does not
involve destructive testing of multiple copies of a particular small
unmanned aircraft. Anyone may submit a proposed means of compliance to
the FAA for review.
    The News Media Coalition believed the Agency should rely on
findings of the safety of certain models of small UAS and experience
with waivers for operations over people to inform performance-based
rulemaking that reflects the FAA's data. Until a final rule is
published, the commenter wrote that the FAA should allow any subsequent
operators of a model of small UAS that has already received a waiver to
secure a waiver without undergoing new performance testing. Waivers are
issued on a case-by-case basis in accordance with Sec.  107.200. The
decision to renew or modify a waiver will continue to depend on the
details of the proposed operation.
2. Submittal and Acceptance of a Means of Compliance
    As described previously, applicants submitting a declaration of
compliance for acceptance must use an FAA-accepted means of compliance
to establish compliance with the requirements. Any person may propose a
means of compliance. A person who submits a means of compliance for FAA
acceptance must provide a detailed description of the means of
compliance and explain exactly how the testing, analysis, or inspection
establishes the small UAS meets one or more of the safety requirements.
When proposing the means of compliance for FAA acceptance, the
applicant must include substantiating data, including studies or
research reports, that supports the proposed means of compliance.
    The FAA will indicate acceptance of a means of compliance by
publishing a Notice of Availability in the Federal Register identifying
the means of compliance as accepted and by informing the applicant of
its acceptance.\51\ If the FAA does not accept a means of compliance,
the FAA will notify the applicant of the rationale for its decision.
The FAA may rescind a previously accepted means of compliance on
determining the means of compliance does not meet the applicable
requirements for operations over people.
---------------------------------------------------------------------------

    \51\ A means of compliance is not considered to be ``FAA-
accepted'' until the means of compliance has been evaluated by the
FAA, the applicant has been notified of acceptance. The FAA will
publish a Notice of Availiabity in the Federal Register identifying
the means of compliance as accepted.
---------------------------------------------------------------------------

    When reviewing a means of compliance, the FAA will utilize a
comprehensive set of criteria. The FAA will determine whether the
testing, analysis, or inspection described in the means of compliance
demonstrates that a small unmanned aircraft meets the appropriate
regulatory requirements. A means of compliance must address the injury
severity limits, the exposed rotating parts prohibition, or a
combination of both, and verification that there are no safety defects.
The FAA will determine whether the proposed means of compliance aligns
with accepted methods used by the medical industry, consumer safety
groups, or other peer-reviewed test methods. In addition, the FAA will
consider whether the proposed means of compliance relies on exceptional
remote pilot skill or excessive pilot workload to satisfy the
requirements.
    The NPRM provided a means of compliance in which an applicant could
use a drop test procedure to

demonstrate the small unmanned aircraft complies with the injury
severity limits for Category 2 or Category 3. This FAA-provided means
of compliance does not consider the effect of these aspects on an
impact with a person because it assumes that the total kinetic energy
of the small unmanned aircraft would be transferred to the person on
impact.
    In reality, however, the small unmanned aircraft may transfer much
less energy than this assumed maximum. In this regard, the Agency
acknowledged structural configuration, materials of construction, or
other design features may function to reduce the amount of the total
kinetic energy that is transferred to a person from a small unmanned
aircraft during an impact. For example, the presence of energy-
absorbing materials, or an energy-absorbing protective cage, may reduce
the transfer of kinetic energy during an impact with a person. An
applicant may provide data showing the amount of kinetic energy that is
transferred to a person during an impact based on the impact-absorbing
characteristics of the small unmanned aircraft. Some applicants might
seek to use design features such as parachutes or other deployable
devices that reduce impact velocity to establish a small unmanned
aircraft would impact a person with a reduced amount of kinetic energy.
Such design features will require the FAA's review to determine whether
they assist in achieving an acceptable means of compliance if the small
UAS relies on the proper functioning of these features.
    Any person may propose a new means of compliance to the FAA as a
way to show compliance with the requirements. The NPRM had referred to
this as a ``custom means of compliance,'' which several commenters
found confusing. Commenters such as CDA and AirXOS remarked on the time
and expense associated with the approval process for a custom means of
compliance and were concerned that it would be difficult, time-
consuming, and costly. The Agency agrees that any individual creating a
means of compliance would likely incur greater cost compared to using
the FAA-provided means of compliance or an existing FAA-accepted means
of compliance. The FAA encourages the development and use of
standardized test procedures from a voluntary consensus standards body
as a means of compliance. However, applicants are not required to use
them.
    The NPRM only referred to ``custom means of compliance'' to
distinguish the FAA-provided means of compliance or a means of
compliance provided by a voluntary consensus standards body from any
other type of means of compliance. The NPRM stated a means of
compliance submitted by a voluntary consensus standards body may be
accepted more quickly than those submitted independently. The FAA will
evaluate means of compliance submitted by a voluntary consensus
standards body and by an independent party with the same level of
rigor. The FAA generally works with voluntary consensus standards
bodies in the development of these standards. As a result, any means of
compliance based on these standards will already have gone through a
comprehensive review process during development.
    A commenter asked whether a deadline will exist for the means of
compliance and if manufacturers could choose the methods to bring their
small UAS into compliance. The FAA notes that there is no deadline for
the submittal or acceptance of the means of compliance other than that
it must be accepted by the FAA before an applicant can list it on a
declaration of compliance. The NPRM stated a person submitting a means
of compliance for FAA review could also submit the declaration of
compliance listing that means of compliance at the same time. However,
given that the FAA is no longer using the term ``custom means of
compliance,'' the FAA clarifies that, to obtain acceptance of a
declaration of compliance, an applicant must identify the FAA-accepted
means of compliance that it used. The FAA will finalize the means of
compliance acceptance process as described in this section.
3. Rescission Process for a Means of Compliance
    The NPRM proposed that it could rescind a means of compliance if
the FAA determined from service history that the means of compliance
did not meet the applicable standards for operations over people.
However, the NPRM did not include regulatory text. In this final rule,
the FAA has maintained the right to rescind a previously-accepted means
of compliance and added regulatory text for clarity.
    Some commenters expressed concerns about the ability of applicants
to demonstrate compliance with the safety requirements. While Vortezon,
Inc. agreed that small UAS manufacturers should bear the burden of
demonstrating compliance with the injury severity limits, the commenter
wrote that FAA itself should independently and thoroughly test the data
submitted to support any means of compliance applications. The
commenter believed that delegating that responsibility might result in
a lack of uniformity in establishing the standards under which the
industry will operate. Vortezon wrote that the procedures the Federal
Communications Commission (FCC) uses to approve radio frequency devices
might provide a template for the FAA. Another commenter noted that the
proposed rule sets up the FAA as the final authority in determining
compliance with the requirements, which they considered an appropriate
balance.
    To ensure the continued eligibility of small unmanned aircraft
operating over people, the FAA finds it necessary to make clear that
compliance is an ongoing process, and that the FAA maintains the
authority to continuously evaluate that the applicant's means of
compliance provides factual and correct data. The FAA can exercise its
authority to rescind a means of compliance if the small unmanned
aircraft does not meet any or all of the requirements of the subpart as
a result of errors or deficiencies in the test, inspection, or
analysis. As such, this final rule includes a regulatory provision to
allow the FAA to rescind the means of compliance.
4. FAA-Provided Means of Compliance
    As described above, the FAA-provided means of compliance includes a
test and inspection method in which applicants demonstrate their small
unmanned aircraft will not exceed injury severity limitations or the
exposed rotating parts prohibition. The FAA has not made any changes to
the FAA-provided means of compliance discussed in the NPRM. The FAA
anticipates applicants will submit for comprehensive means of
compliance that include innovative materials and designs, unlike the
FAA-provided means of compliance described in the NPRM.
a. FAA-Provided Injury Severity Limit Means of Compliance
    The FAA-provided means of compliance for the injury severity
limitations entails an applicant's calculation of the small unmanned
aircraft's maximum kinetic energy. This means of compliance does not
account for impact dynamics or other factors, but consists of using
only the formula the FAA describes to calculate the small unmanned
aircraft maximum kinetic energy. Use of this formula alone establishes
the small unmanned aircraft will not exceed one of the injury severity
limits because, as described above in Section VI.A.1. of this

preamble, 11 ft-lbs (for Category 2 operations) and 25 ft-lbs (for
Category 3 operations) are kinetic energy values that assume a limit on
injury severity. Applicants interested in using this test may find more
information about the FAA-provided means of compliance in the NPRM and
the associated Advisory Circular (AC) for this rule, AC 107-2A.\52\
---------------------------------------------------------------------------

    \52\ 84 FR 3877-3879. A copy of the AC 107-2A is available in
the public docket for this rulemaking.
---------------------------------------------------------------------------

    Several commenters specifically addressed the FAA-provided means of
compliance. ASSURE stated, ``[u]sing this means of compliance, there
will be no aircraft with a commercially viable payload that can meet
the Sec.  107.115 Category 2 operations in the NPRM and as such this
NPRM will do nothing to expand the operations of the sUAS in the U.S.''
The Small UAV Coalition and AirXOS both agreed with ASSURE's
conclusion. The Small UAV Coalition urged the FAA to use the automotive
injury metrics as ASSURE suggested. AirXOS and CDA both stated the FAA-
provided means of compliance does not sufficiently permit different
materials or structural configurations, which can affect the damage
resulting from a collision with a small unmanned aircraft. Both
commenters were similarly concerned the FAA-provided means of
compliance does not consider devices that may deploy and reduce the
maximum impact speed or the reduced probability of failure or impact.
These commenters stated the rule, if adopted, would impede innovation.
CDA also believed the risk analysis should give operators credit for
operational safeguards.
    The FAA acknowledges the limitations associated with the FAA-
provided means of compliance for the injury severity limits. The Agency
intended to provide a test method that applicants could use to show
compliance with the injury severity limitations, with the understanding
that industry would develop more flexible means of compliance using
consensus standards organizations. The FAA expects these industry
standards to consider that small unmanned aircraft often have non-rigid
structures, which can reduce the kinetic energy transferred to a person
on impact. The FAA also expects industry consensus standards to address
the use of deployable devices, such as parachutes, to demonstrate
compliance with the injury severity limitations. Unlike the FAA-
provided means of compliance, those that industry provides could
leverage variable modes and configurations. The FAA-provided means of
compliance allows applicants to have a method of complying with the
injury severity limitations prior to development of any other means of
compliance.
    The FAA-provided means of compliance considers typical failures and
environmental conditions during testing. Boeing asked the FAA to define
what the NPRM meant in using the term ``typical.'' In this case,
``typical'' describes a likely occurrence during normal operations of
the small unmanned aircraft, (e.g., human error, systems failures, or
environmental conditions that could lead to a loss of operational
control). Because each small unmanned aircraft and its anticipated
operating environment are different, the applicant is best-suited to
determine what is typical. This rule requires the applicant to submit
substantiating data that includes sufficient information concerning the
environmental conditions and the maximum speeds the manufacturer
utilized, as well as any unique test conditions for both the level
flight and free-fall scenarios. This means of compliance is now
available as an FAA-accepted means of compliance with the finalization
of this rule.
b. FAA-Provided Exposed Rotating Parts Means of Compliance
    In the NPRM, the FAA provided a means of compliance for the exposed
rotating parts prohibition, which would require an applicant to ensure
the small unmanned aircraft does not have parts that are exposed. For
example, if the propellers that provide lift and thrust for the small
unmanned aircraft are internal to the unmanned aircraft, such as in a
ducted fan configuration, and are incapable of making contact with a
person as a result of an impact, then the parts would not be exposed.
As a result, the aircraft would satisfy this requirement. An applicant
must inspect the small unmanned aircraft to establish that it does not
have any exposed rotating parts and determine that any rotating parts
would not become exposed during an impact with a person.
    The NPRM noted an industry consensus organization could develop a
standard for small unmanned aircraft that have rotating parts protected
by safety features. If the applicant tests those safety features and
establishes they remain effective during impact, this could demonstrate
that exposed rotating parts would not be capable of lacerating human
skin. If, however, a small unmanned aircraft has rotating parts that
are exposed without any protective safety features, the NPRM proposed
to permit applicants or others to show through testing, analysis, or
inspection that the rotating parts would not be capable of lacerating
human skin on impact with a person.
    Several commenters addressed the issue of using a means of
compliance to establish compliance with the exposed rotating parts
prohibition. One commenter stated the ability to create novel means of
compliance would drive innovation in finding alternatives to exposed
rotating parts. The commenter believed the FAA should clarify that a
small unmanned aircraft without rotating parts should not be required
to submit proof of compliance.
    To satisfy the eligibility requirements for Categories 2 and 3, a
small unmanned aircraft must meet the performance-based requirements
for exposed rotating parts by following an FAA-accepted means of
compliance. A small unmanned aircraft that does not have any rotating
parts would meet the FAA-provided means of compliance; the declaration
of compliance would include an indication of this. Even if the small
unmanned aircraft is designed to operate without rotating parts, the
applicant must still submit a declaration of compliance to demonstrate
the small unmanned aircraft complies with the exposed rotating parts
prohibition and the injury severity limitation. This means of
compliance is now available as an FAA-accepted means of compliance with
the finalization of this rule.
5. Deployable Devices and Other Safety Mechanisms
    In the proposed rule, the Agency stated applicants may want to
consider the use or testing of design features such as parachutes,
ballistic recovery systems, or other deployable devices that create
drag to reduce the maximum impact speed. While the FAA did not consider
the use of a deployable device in the FAA-provided means of compliance,
this rule does not prohibit anyone from submitting a means of
compliance that considers deployable devices. The FAA will evaluate
such design features to determine whether they assist in achieving an
acceptable means of compliance.
    Several commenters submitted comments regarding the use of
deployable devices. AirXOS said that, consistent with the FAA's Safety
Risk Management Policy,\53\ the safety risk of a particular hazard
should be assessed using a combination of the severity and likelihood
(probability) of the potential

outcome of the hazard. AirXOS stated the FAA should consider
comparative safety benefits when evaluating the overall risk for
operations over people. In addition to technological mitigations,
AirXOS said the risk analysis should also consider operational
safeguards, such as an operator having a comprehensive safety
management system and flight proficiency training. MPAA and NCTA,
commenting jointly, stated design safety features such as frangible
components, propeller cages, propeller guards, parachutes, or padding
that may increase the weight of a small unmanned aircraft are also
likely to minimize the risk of injury. Some commenters suggested small
UAS could be equipped with a range of safety mechanisms, including
visual and audible alerts, collision avoidance systems, and parachutes.
---------------------------------------------------------------------------

    \53\ FAA Order 8040.4B, Safety Risk Management Policy (May 2,
2017), available at https://www.faa.gov/documentLibrary/media/Order/FAA_Order_8040.4B.pdf.
---------------------------------------------------------------------------

    Under this rule, applicants may choose to demonstrate compliance
with the appropriate safety requirements of Category 2 or Category 3
using designs with safety features such as frangible components,
propeller cages, propeller guards, parachutes, or padding. To do so,
they must use an FAA-accepted means of compliance that incorporates
those safety features as a means to comply with the injury severity
limitations.
    While use of other safety mechanisms (e.g., visual and audible
alerts, collision avoidance systems, etc.) may decrease the likelihood
of an impact with a person, the FAA will not factor in these devices in
considering proposed means of compliance for Category 2 or Category 3
because they do not address the injury severity limitations or exposed
rotating parts prohibition. The FAA may consider these devices as part
of the Category 4 process or in a waiver application, particularly for
applicants considering reliability and likelihood.
    ParaZero and Indemnis both asserted that, even when equipped with a
parachute, very few unmanned aircraft models will be capable of meeting
the applicable kinetic energy limitation. A-Cam Aerials noted the
proposed performance-based requirements would not permit certain
operations even with mitigations, such as parachutes that adhere to the
ASTM F3322-18 parachute standard.\54\ The commenter requested the FAA
consider allowing operational mitigations instead of requiring design
mitigations, asserting these design considerations would limit the
number of manufacturers that could meet the injury severity
limitations. The rule, however, does not require manufacturers to meet
the requirements using the FAA-provided means of compliance. An
applicant may choose to demonstrate compliance with the injury severity
limitations using deployable devices, as long as the applicant
describes the use of them in the proposed means of compliance. The
Agency encourages industry to develop means of compliance that leverage
existing and future industry standards for the design, maintenance, and
testing of such devices.
---------------------------------------------------------------------------

    \54\ ASTM F3322-18, Standard Specification for Small Unmanned
Aircraft System (sUAS) Parachutes, ASTM International, West
Conshohocken, PA, 2018, http://www.astm.org/cgi-bin/resolver.cgi?F3322.
---------------------------------------------------------------------------

    One commenter believed parachutes are not necessary based on the
accident record for small unmanned aircraft or the ASSURE report. The
UAS Program Leader for the Memphis Fire Department wrote that if
parachutes are required, these systems are unable to be tested. He
noted that the fire department performs a preflight safety inspection
and flight check before every takeoff, but would be unable to test,
check, or inspect a parachute system. The FAA clarifies that a
deployable device system is not required. Applicants have the
discretion to incorporate the use of a deployable device.

C. Declaration of Compliance

    The NPRM stated self-certification is the appropriate method for
manufacturers to declare compliance with a performance standard. Self-
certification, combined with the Agency's determination that the means
of compliance the manufacturer has used is acceptable, will ensure the
small unmanned aircraft, when operated over people, will afford the
public an appropriate level of safety.
1. Persons Who May Submit a Declaration of Compliance
    The NPRM proposed that any person or entity that designs, produces,
or modifies a small unmanned aircraft for use in Category 2 or Category
3 operations must submit a declaration of compliance to the FAA for
acceptance. The NPRM characterized any person who designs, produces, or
modifies a small unmanned aircraft for such operations as a
``manufacturer'' for purposes of this rule.
    Several commenters, including AUVSI, FPVFC, and several other
individuals, commented on the use of the term ``manufacturer.'' AUVSI
indicated the FAA did not account for the entire range of entities that
may wish to submit a declaration of compliance and recommended the
Agency clarify that non-manufacturer third parties and operators that
do not alter a small UAS would be eligible to submit a declaration of
compliance in order for that small UAS to become eligible for Category
2 or Category 3 operations, regardless of whether the entity originally
manufactured or modified the small UAS. The person who submits the
declaration of compliance must be able to demonstrate they have used an
FAA-accepted means of compliance to fulfill the standard. Although the
FAA does not expect the resale of small unmanned aircraft by non-
manufacturer third parties to be a typical occurrence, if the applicant
wishing to make the small unmanned aircraft eligible for operations
under Category 2 or Category 3 is able to submit a declaration of
compliance with all required elements, the FAA would accept that
declaration even though that person has not designed, produced, or
modified the small unmanned aircraft. To reduce confusion, the final
rule clarifies that the responsible party is the applicant.
    To be eligible to operate in accordance with Category 2 or Category
3, the small unmanned aircraft must be listed on an FAA-accepted
declaration of compliance. The FAA does not restrict who may submit a
declaration of compliance and anticipates entities that produce and
sell a complete and operable small unmanned aircraft to submit the most
declarations of compliance. Other persons who may submit a declaration
of compliance include designers or producers of kits that contain all
the components and parts from which to build an operable small unmanned
aircraft eligible for Category 2 or Category 3 operations. One
commenter stated the FAA should not consider someone who assembles a
kit to be a manufacturer. A small unmanned aircraft listed on an FAA-
accepted declaration of compliance could be sold as a kit. The person
who assembles such kit per the provided instructions is not required to
submit a declaration of compliance; however, in order for the small
unmanned aircraft assembled from that kit to be eligible for Category 2
or Category 3 operations, the producer of the kit must have submitted a
declaration of compliance and received from the FAA acceptance of the
declaration.
    Any person who builds a small unmanned aircraft from parts not in a
complete kit or who modifies a small unmanned aircraft to be compliant
with Category 2 or Category 3 must submit a declaration of compliance
and receive FAA acceptance of it before the small unmanned aircraft
would be eligible for operations under the applicable category. For
example, a person who modifies a small unmanned aircraft that

was originally produced prior to the effective date of this rule so
that the small unmanned aircraft becomes eligible to conduct Category 2
or Category 3 operations must submit a declaration of compliance.
    A small unmanned aircraft is not covered by a declaration of
compliance if it has been modified outside the configurations and
modifications allowed in the remote pilot operating instructions for
that small UAS. For example, the person who submitted the declaration
of compliance for the Category 2 operation would not be responsible for
the new configuration of the small unmanned aircraft after
modification. The person who modified the unmanned aircraft would be
responsible for submitting a new declaration of compliance describing
the new configuration and receiving acceptance of it to establish
eligibility for the appropriate category before the small unmanned
aircraft can be operated over people.
    A few commenters suggested people who build their own small
unmanned aircraft should not be considered manufacturers and therefore
not be required to submit a declaration of compliance. Another
commenter asserted a primary reason people choose to build their own
small unmanned aircraft is to save money and these people will not have
the financial resources or access to testing equipment to demonstrate
compliance. The FAA disagrees with the assertion that a distinction
should exist between home-built small unmanned aircraft and other small
unmanned aircraft. The four categories this rule establishes are not
based on the purpose for which the small unmanned aircraft was built.
Any person designing and building a small unmanned aircraft and
intending to operate over people under Categories 2 or 3 must submit a
declaration of compliance.
    The FAA finalizes the term ``applicant'' to describe the person who
submits the declaration of compliance. The applicant refers to the
person who declares that the small unmanned aircraft meets the
eligibility requirements for operations over people.
2. Submission of Declaration of Compliance for FAA Acceptance
    For a small unmanned aircraft to be eligible to conduct operations
over people in accordance with Category 2 or Category 3, the Agency
proposed to require the applicant to declare that the small unmanned
aircraft complies with the applicable performance-based requirements
through use of an FAA-accepted means of compliance. The applicant would
do this by submitting a declaration of compliance via an electronic
form available on the FAA's website.
    By submitting a declaration of compliance, an applicant would
declare that it: (1) Established and maintained a process to notify
owners of small unmanned aircraft and the FAA of any unsafe conditions
that render those small unmanned aircraft non-compliant with subpart D;
(2) would correct any safety defects the FAA identified; and (3) would
allow the Administrator to inspect its facilities, technical data, and
any manufactured small unmanned aircraft and witness any tests
necessary to determine compliance with this subpart.
    In response to the proposed declaration of compliance requirements,
one commenter believed the assumption of liability must be inherent to
the concept of a declaration of compliance. The existence of a
declaration of compliance, however, does not automatically release the
applicant or the remote pilot from any potential liability. For
example, if a remote pilot were to operate the small unmanned aircraft
over people in a configuration not specified in the remote pilot
operating instructions, in an unsafe condition, or in a careless or
reckless manner, a valid declaration of compliance does not release the
remote pilot from responsibility. This commenter also asked how the
declaration of compliance relates to section 345 of the FAA
Reauthorization Act of 2018, which deals with self-certification.\55\
This rule is consistent with the statutory requirements in section 345
of the 2018 FAA Reauthorization Act This statute requires FAA to
develop a process for accepting ``risk-based consensus safety standards
relating to the design, production, or modification of small unmanned
aircraft systems.'' Public Law 115-254, sec. 345(a)(1). In
consideration of these requirements, this rule allows an applicant to
request FAA acceptance of a means of compliance that is based on
consensus safety standards.
---------------------------------------------------------------------------

    \55\ Public Law 115-254, sec. 345 (Oct. 5, 2018) (``Small
Unmanned Aircraft Safety Standards'') requires the FAA to establish
a process for acceptance and use of consensus safety standards for
the design, production, and modification of small UAS.
---------------------------------------------------------------------------

    The Small UAV Coalition supported the proposal to allow ``self-
certification'' of compliance with the applicable standards; however,
because the FAA will accept declarations of compliance on determining
the manufacturer has demonstrated compliance with the requirements of
the rule, the Coalition noted the requirements seem similar to the
means of compliance. The means of compliance and declaration of
compliance go hand in hand. The means of compliance answers the
question of how a person or entity meets the requirements of the rule.
The declaration of compliance establishes the applicant is declaring it
has met the applicable injury severity limitations, the exposed
rotating parts prohibition, or a combination of these requirements
through an FAA-accepted means of compliance.
    DJI urged the Agency to allow manufacturers to demonstrate
compliance to certain regulations through the declaration of compliance
and recommended using Transport Canada's ``Remotely Piloted Aircraft
Systems Safety Assurance Advisory Circular'' (AC 922-001) as a model.
While the FAA did not accept this recommendation to incorporate
Transport Canada's AC, the FAA notes that this rule allows applicants
to show compliance with the requirements by submitting a declaration of
compliance and receiving FAA acceptance.
    While generally supporting the proposed framework for the
declaration of compliance, AUVSI recommended the FAA ensure the
framework operates flexibly to avoid undue burden on small UAS
operators who modify their small UAS and on non-manufacturers that wish
to certify a small UAS. AUVSI asked the FAA to ensure the framework
would permit manufacturers to certify a ``wide variety'' of payloads
and configurations without the need for re-certification as long as
modifications were within a certain range. The Coalition asked the FAA
to ensure compatibility between the rules allowing night operations and
operations over people, including any modifications for night
operations.
    Operations of small unmanned aircraft under Category 1, Category 2,
or Category 3 must adhere to the applicable performance-based
eligibility requirements, regardless of any modifications. The FAA will
permit applicants to identify acceptable modifications, including
payloads and configurations, in the remote pilot operating instructions
as part of their declaration of compliance. Because the injury caused
by an impact from the small unmanned aircraft could be different for
each modification that changes the small unmanned aircraft
configuration or properties, they must fulfill the applicable standard
through an FAA-accepted means of compliance. This rule allows such
evaluation by test, analysis, or inspection. For example, an applicant
may not have to conduct

separate evaluations for two different brands of propellers if they are
the same diameter, pitch, weight, and material. If, through analysis,
an applicant proves the propellers will behave the same, he or she
would only have to conduct the impact test with one brand of propeller,
but could list both brands of propellers as approved equipment in the
remote pilot operating instructions.
    A commenter recommended including a requirement in the declaration
of compliance that all ``written communications be written in proper
English and follow standards for plain language.'' The FAA declines to
accept this recommendation, as the Agency finds it unnecessary to
provide prescriptive writing requirements.
    This rule adopts the declaration of compliance submission as
proposed, with the clarification that any person may submit a
declaration of compliance for FAA acceptance. The Agency has determined
accepting declarations of compliance is appropriately risk-based and
suitable for allowing operations over people, as it is sufficient for
the level of risk involved.
3. Contents of Declaration of Compliance
    The NPRM proposed that an applicant intending to list a small
unmanned aircraft as eligible for operations over people in accordance
with Category 2 or Category 3 would submit a declaration of compliance
to the FAA. A template for the declaration of compliance will be
available in an electronic form on the FAA's website. A completed
declaration of compliance will include information the Administrator
would require for both determining that a small unmanned aircraft
complies with the applicable requirement and for tracking those models
of small unmanned aircraft that were declared compliant. Applicants
will declare they have met the requirements of the rule through an FAA-
accepted means of compliance and include the following information:
     FAA-accepted means of compliance used.
     Name of the applicant.
     Physical address of the applicant.
     Email address of the applicant.
     Small unmanned aircraft make, model and series, if
applicable.
     Serial number or range of serial numbers for the small
unmanned aircraft (open-ended are permitted).
     Whether the declaration of compliance was an initial or an
amended declaration of compliance and, if amended, the reason for the
resubmittal.
     Declaration that the applicant:
    [cir] Has demonstrated the small unmanned aircraft meets the injury
severity limitations of Category 2, Category 3, or both, and the
exposed rotating parts prohibition;
    [cir] Has demonstrated the small unmanned aircraft does not have
any safety defects;
    [cir] Has satisfied the requirement to maintain a product support
and notification process; and
    [cir] Will, upon request, allow the Administrator to inspect its
facilities and its technical data.
     Any other information as required by the Administrator.
    If an applicant amends an FAA-accepted declaration of compliance,
the applicant must include the reason for the amendment. For example,
the amendment could be to identify a different means of compliance,
update an address, or correct a misspelling.
    This final rule states the applicant must make a declaration for
the items in the declaration of compliance instead of a certification.
This change in the regulatory text does not change items required in
the declaration of compliance; instead, it simply removes any potential
confusion associated with the airworthiness certification process.
    Information contained in declarations of compliance will be
publicly available. By posting the declarations or otherwise making the
information in the declarations publicly available, the FAA and the
public will be able to determine which make, model, and series, if
applicable of small unmanned aircraft are eligible to conduct
operations over people pursuant to Categories 2 and 3.
    No comments specifically addressed the contents of the declaration
of compliance. The Agency also did not receive any comments regarding
its proposal to make information about accepted declarations of
compliance available to the public through an FAA website. This rule
adopts the requirements related to contents of the declaration of
compliance, as proposed.
    Some commenters addressed the requirement that applicants allow the
FAA to inspect their facilities. A commenter stated that the
requirement for facility inspections seems difficult for overseas
manufacturers and generally unnecessary. Access to each applicant's
facilities provides a mechanism for the FAA to validate procedures,
processes, and methods as well as the data used to demonstrate
compliance with the safety requirements. The FAA regularly performs
routine inspections of facilities of those who hold type certificates
and production certificates overseas. The FAA maintains authority to
inspect overseas facilities at which a manufacturer designs, produces,
or modifies small unmanned aircraft for operations under Category 2 or
Category 3.
    One commenter found the proposed rule unclear regarding whether a
person who either designed or modified a small unmanned aircraft would
be subject to the on-site inspections proposal. An applicant who
submits a declaration of compliance to operate over people would be
subject to the onsite inspection requirement. On request, the person
who submits the declaration of compliance must be prepared to
demonstrate how they can validate that they are in compliance with
their declaration of compliance and this rule.
    The Agency adopts the list of information that must be included in
the declaration of compliance as proposed, with no changes.
4. Accountability for Persons Submitting Declarations of Compliance
    After an applicant declares a specific small unmanned aircraft
meets the requirements of a particular category, the Agency proposed to
require the applicant to monitor the small unmanned aircraft to ensure
it complies with the applicable requirements. Specifically, an
applicant would monitor the validity of the means of compliance used
and verify it does not exceed the injury severity limitations and
complies with the exposed rotating parts prohibition. The applicant
would track the construction, related safety analysis, and service
history to ensure they do not reveal any hazardous conditions or safety
defects that could increase the risk of a small unmanned aircraft
operation over people. Moreover, the applicant must continue to ensure
that the remote pilot operating instructions satisfy the regulatory
requirements. To satisfy these obligations, an applicant may have to
monitor its manufacturing processes, small unmanned aircraft
operational usage, and collection of accident and incident data.
Monitoring could also include information that owners and operators of
the small unmanned aircraft provide. Should the FAA identify a safety
issue that warrants review of an applicant's data, records, or
facilities, this rule requires applicants to grant access to facilitate
such review.
    Furthermore, the Agency proposed to require applicants submit an
actual record declaring compliance. Section 107.5, which prohibits any
fraudulent or intentionally false record from being made, kept, or used
to show compliance with any requirement of part 107, will apply to such
records. In this regard,

falsifying any part of any record intended to constitute proof of
compliance with applicable requirements could subject the person who
submitted the record to a civil penalty and would be a basis for
rescinding a declaration of compliance.
    The Agency did not receive any comments regarding the falsification
provisions proposed and adopts those provisions without change.
5. Declaring Compliance for Multiple Small Unmanned Aircraft With the
Same Make and Model
    In the NPRM, the Agency recognized that applicants producing the
same make and model of small UAS on a large scale may not wish to
perform individual unit testing to demonstrate that each small unmanned
aircraft fulfills the applicable requirements. The Agency clarified
that the proposed rule text would allow applicants to declare
compliance for a make and model of small unmanned aircraft, rather than
declaring compliance for each small unmanned aircraft an applicant
designs, produces, or modifies.\56\ The NPRM stated the applicant could
establish and maintain a production quality system and design
configuration control system to provide for consistent repeatability,
to confirm each small unmanned aircraft fulfills the applicable
standard for which the applicant declared compliance. As a result, an
applicant could avoid testing every aircraft it constructs. Using a
quality assurance system could confirm each aircraft subsequently
manufactured would meet the performance-based requirements of this
rule. The FAA received no comments on this policy and adopts the
inclusion of ``make and model'' in the regulatory text of the section
that sets forth the requirements for declarations of compliance, as
proposed.
---------------------------------------------------------------------------

    \56\ 84 FR at 3882.
---------------------------------------------------------------------------

6. Declaring Compliance for a Small Unmanned Aircraft That Is Eligible
for Multiple Categories of Operations
    If an applicant conducts testing or engages in analysis or
inspection to determine a small unmanned aircraft could meet the
requirements for operations in both Categories 2 and 3 in the
appropriate modes or configurations, the NPRM proposed to require the
applicant to submit only one declaration of compliance. On that
declaration of compliance, the applicant would identify the categories
of operation for which it determined the small unmanned aircraft was
compliant and the means of compliance used for each category. The
Agency did not receive any comments regarding this proposal and adopts
it without change. For more information on the requirements for small
unmanned aircraft with variable modes and configurations, see Section
VI.F. of this preamble.
7. FAA Acceptance of a Declaration of Compliance
    The NPRM proposed to require an applicant to provide information on
its declaration of compliance regarding whether it has used an FAA-
accepted means of compliance or a means of compliance the FAA has not
yet accepted. If an applicant uses a means of compliance that the FAA
has not yet accepted, the FAA must review and accept the means of
compliance before the FAA can accept the declaration of compliance. The
FAA will notify the applicant of its decision regarding acceptance of
the means of compliance and declaration of compliance. Once the FAA
accepts a declaration of compliance, the FAA will make the declaration
of compliance, or information from the declaration, publicly available.
The Small UAV Coalition commented that the NPRM does not describe what
the FAA review will entail or how long it will take. The Small UAV
Coalition further commented that, because the Agency did not describe
whether it would undertake any discretionary review of the declaration
of compliance, it expects a quick acceptance or denial.
    The FAA will use its discretion to review and validate that the
applicant meets the requirements of the FAA-accepted means of
compliance through test data, third party validation, or the like,
before rendering a decision on the declaration of compliance. Because
means of compliance will vary in complexity, the FAA cannot provide
estimates regarding the time needed for considering declarations. The
FAA may request additional information from the applicant to determine
whether the small unmanned aircraft listed in the declaration of
compliance meets the listed FAA-accepted means of compliance. The FAA
will respond to declaration of compliance submissions once it completes
its review.
    The proposed rule provides a sufficient framework for the Agency's
approach for overseeing compliance with the proposed standards. The FAA
adopts the process for accepting the declaration of compliance as
proposed, with no changes.
8. Submitting a New Declaration of Compliance for a Modified Small
Unmanned Aircraft
    The Agency proposed to require any person who modifies a small
unmanned aircraft in a way that could affect the eligibility of the
small unmanned aircraft to operate over people under Category 2 or
Category 3 to submit a new declaration of compliance and receive FAA
acceptance of it before anyone operates the small unmanned aircraft
over people. If an individual modifies the small unmanned aircraft in a
manner that the original applicant identifies in the remote pilot
operating instructions as an allowable change, the individual will not
need to submit a new declaration of compliance. When a person submits a
declaration of compliance for a small unmanned aircraft that was not
previously eligible for operations over people, the FAA would verify
the small unmanned aircraft fulfills the applicable standard.
    The News Media Coalition stated this requirement imposes an
unnecessary and unreasonable burden and suggested the FAA require any
buyer of a secondhand small UAS to be solely responsible for
determining their own compliance with the rules, rather than requiring
the seller of secondhand small UAS to provide remote pilot operating
instructions or meet other requirements. Before operating over people,
the remote pilot is responsible for ensuring that the small unmanned
aircraft they intend to use is eligible to conduct operations over
people. Prior to purchasing a small unmanned aircraft for the purpose
of operations over people, buyers should verify the small unmanned
aircraft has current remote pilot operating instructions and is listed
on a valid declaration of compliance.
    Some applicants may choose to provide criteria that describes
acceptable modifications in their remote pilot operating instructions,
rather than specific acceptable parts. In this regard, several
commenters were concerned that adding or changing a camera could result
in a disqualifying modification. Applicants can determine which
payloads or modifications would be permitted and still meet the
standard of Category 2 or Category 3.
    Another commenter asked the FAA to specify that ``modifying the
firmware'' would be exempt from the requirement, as the commenter
stated several manufacturers install firmware that is more restrictive
than the regulations. Updates to small unmanned aircraft firmware would
be acceptable as long as they occur in accordance with the remote pilot
operating instructions.

    APPA, EEI, and NRECA, commenting jointly, applauded the FAA's
recognition of the need for operational flexibility and supported the
proposal ``as an appropriate balance between operators' needs and
public safety with minor clarification.'' Specifically, the commenters
recommended the rule require manufacturers to identify permissible
modifications in terms of weight, size, and shape, as opposed to
specific identification of a make or model of equipment. The Agency
declines to include this prescriptive requirement, as such detail is
unnecessary and market forces will incentivize manufacturers to craft
operating instructions that address the needs of prospective buyers and
users of the small unmanned aircraft.
9. Notification of a Safety Issue
    The NPRM stated the FAA would notify an applicant that submitted a
declaration of compliance if it determines the small unmanned aircraft
is not compliant with the injury severity limits or prohibition on
exposed rotating parts or because the small unmanned aircraft has a
potential safety defect. The FAA would identify such safety issues
through a variety of means. The FAA may receive consumer complaints,
industry safety bulletins, or an individual applicant's notification
that a safety issue has arisen. Applicants would have the opportunity
to discuss potential safety issues with the FAA. As a result of such
discussion, the FAA may determine a safety issue does not actually
exist, that the applicant has incorporated an adequate mitigation to
address and correct the safety issue, or that a safety issue still
exists.
    To correct a safety issue, an applicant could develop a correction
and test the aircraft to ensure the aircraft no longer has a safety
issue. The applicant must correct any safety issues they identify after
manufacturing the small unmanned aircraft on an ongoing basis to ensure
continued eligibility for Category 2 or Category 3 operations.
    The Agency proposed to require resolution of any identified safety
issue. In the absence of acceptable resolution, the rule indicates the
FAA would commence rescission proceedings, as explained below. A
commenter stated, that as the NPRM is written, the FAA has no way of
identifying, then informing a specific fleet that there is a safety
issue. This commenter further stated there is no requirement for
manufacturer responsibility to keep a list of customers and both
communicate directly and post notices of defects and rescission on
their website. As noted previously, there are multiple ways by which
the FAA could become aware of a safety issue. The FAA must inform the
applicant of any known safety issues. Additionally, the holder of the
declaration of compliance must establish and maintain a product support
and notification process to ensure that safety issues are communicated
to the public and the FAA. This rule adopts the safety issue process,
as proposed.
10. Notice of Rescission of a Declaration of Compliance
    The NPRM proposed to rescind a declaration of compliance if the FAA
becomes aware that a small unmanned aircraft for which an applicant has
declared compliance is no longer qualified for operations over people.
The FAA proposed new procedural rules to govern any action to rescind a
declaration of compliance; therefore, the FAA's rules under 14 CFR part
13 would not apply.
    The proposed rule stated the FAA may rescind a declaration of
compliance if any of the following conditions exist: (i) A small
unmanned aircraft for which a declaration of compliance was accepted no
longer complies with the applicable safety requirements; (ii) the FAA
finds a declaration of compliance violates Sec.  107.5(a); or (iii) the
Administrator determines a safety emergency exists.
    The proposed rule set forth a procedure for rescission that begins
with the FAA sending the applicant a notice of proposed rescission. The
notice would set forth the Agency's basis for the proposed rescission
and provide the applicant 10 business days to submit evidentiary
information to refute the proposed notice of rescission. DJI commented
on the proposed timeline for submitting information, stating 10 days is
not sufficient to understand the notice and gather and provide
information to FAA. DJI suggested 30 calendar days. The FAA agrees that
10 days might be insufficient. This rule extends the notice period to
30 calendar days.
    If an applicant does not contest the allegation that a safety issue
exists, or if the applicant fails to respond within the required time
period, the NPRM proposed to issue a notice rescinding the declaration
of compliance. The FAA would publish the final rescission on the FAA
website and specify the category of small unmanned aircraft to which
the rescinded declaration applies. If the FAA rescinds a declaration of
compliance as a result of an unresolved safety issue, the FAA proposed
to allow an applicant to petition for reconsideration of the decision
or modify the small unmanned aircraft such that the safety issue is
resolved, at which point the applicant could submit a new declaration
of compliance, which the FAA may accept.
    As noted in the NPRM, a rescission of a declaration of compliance
would not render a small unmanned aircraft inoperable, but rather no
longer eligible for operations over people in Category 2 or Category 3.
The small unmanned aircraft could resume operations over people only
after the FAA reinstates acceptance of the declaration of compliance or
accepts a new declaration that applies to the small unmanned aircraft.
Either the original or a subsequent applicant could submit a new
declaration of compliance.
    In addition to publishing any final rescission of a declaration of
compliance on the FAA website, the Agency stated the FAA would publish
notification of any applicable safety defects in the Federal Register
as a Notice of Availability. Such a notice will inform remote pilots
that the identified aircraft are no longer eligible to conduct
operations over people and would notify applicants not to incorporate
the defective material, component, or feature into any upcoming designs
without appropriate mitigations. The NPRM also proposed that, on
rescinding a declaration of compliance, the FAA would publish the makes
and models of small unmanned aircraft that are no longer eligible to
operate over people. Remote pilots would be prohibited from using those
aircraft to operate over people until the issue is resolved. On
correcting a safety defect, the applicant would submit a new
declaration of compliance to the FAA identifying the means of
compliance the applicant used to correct the safety defect.
    Additionally, the NPRM proposed to permit the owner or remote pilot
of a small unmanned aircraft to correct a safety defect associated with
their aircraft. Any person who chooses this option must submit a
declaration of compliance to the FAA identifying the means of
compliance used to correct the safety defect. By modifying the small
unmanned aircraft such that it is again in compliance with the
applicable requirements, that person would become the responsible
person listed on the declaration of compliance for their specific small
unmanned aircraft.
    The FAA sought comment on whether this process provides sufficient
opportunities for applicants to resolve safety issues and whether the
procedure would adequately inform the public of safety defects. The FAA
received a few comments regarding the process. DJI

expressed general support, saying it agrees it is important for the FAA
to have a mechanism for serious safety issues to be discussed and
addressed by the applicant in collaboration with FAA for operations
over people.
    The National Association of Mutual Insurance Companies (NAMIC)
stated publication of the rescission on the FAA website and the Notice
of Availability in the Federal Register are insufficient to notify
pilots that operations over people are no longer safe. NAMIC
recommended the FAA use the contact information it has for registered
small unmanned aircraft to notify registered operators of safety
defects and rescissions. Another commenter stated that, as written, the
proposed rule does not give the FAA a means to identify a safety issue
and then inform a specific fleet of that issue; nor does it impose a
responsibility on the manufacturer to do so. The commenter questioned
why the proposed rule would not require the manufacturer to communicate
directly with its customers and post notices of defects and rescissions
on their website. The commenter also questioned whether the Federal
Register is an effective means of communication, suggesting that
``while it may satisfy the legal concept of the FAA's obligation, it is
not a useful way to reach operators.''
    Publication in the Federal Register and on the FAA website are
sufficient notification. This process of notification is similar to
what the FAA uses for airworthiness directives and resolution of safety
issues. The Federal Register and the FAA website are an effective and
timely means of communicating aviation-related safety considerations to
the public. The FAA may consider using the registration system as an
additional way to notify registered owners of small unmanned aircraft.
The rule allows the FAA to request compliance documentation and to
inspect facilities as appropriate. Further, members of the public,
including applicants and owners, may inform the FAA of potential safety
defects. With regard to notification to owners and operators, each
applicant must maintain a notification process and is required to
inform the public and the FAA of safety defects. Although the rule does
not specify how applicants would comply with this requirement,
applicants may find posting on their websites an effective way to
notify owners of any small unmanned aircraft safety defects. The FAA
expects applicants to use their notification processes to disseminate
this information.
    Aside from increasing the notification period before the rescission
from 10 business days to 30 calendar days, the Agency adopts the
rescission procedure as proposed.
11. Emergency Rescission of a Declaration of Compliance
    The NPRM proposed an emergency rescission process for a declaration
of compliance. Prior to rescission of a declaration of compliance, the
FAA would typically initiate the safety issue notification process with
the applicant. However, if the Administrator determines an emergency
exists and safety of persons requires an immediate rescission of a
declaration of compliance, the FAA may exercise its authority under 49
U.S.C. 46105(c) \57\ to issue an emergency order rescinding a
declaration of compliance. Under these circumstances, rescission would
go into effect immediately, without the FAA initiating the notification
process or the rescission procedures previously described. The order
would remain in effect until the basis for issuing the order no longer
exists. The emergency order would be considered a final agency
decision; as such, an applicant may appeal the decision as provided in
49 U.S.C. 46110 following the issuance of the order. The FAA did not
receive any comments about the emergency rescission process. This rule
adopts the process as proposed, with no changes.
---------------------------------------------------------------------------

    \57\ When the Administrator determines that an emergency exists
related to safety in air commerce and requires immediate action, the
Administrator may issue an immediately effective order to meet the
emergency, with or without notice, under 49 U.S.C. 46105(c).
---------------------------------------------------------------------------

12. Petition for Reconsideration of a Rescission of a Declaration of
Compliance
    Once a declaration of compliance is rescinded, the FAA proposed
that an applicant would have the opportunity to petition the FAA for
reconsideration. An applicant seeking reconsideration must petition the
FAA within 60 days of the date of issuance of the notice of rescission.
The petition would have to show: (1) The lack of a material fact in the
original response to the notification of the safety issue and address
why that fact was not present in the original response; (2) an
important factual error existed in the decision to rescind the
declaration of compliance; or (3) that the FAA did not correctly
interpret a law, regulation, or precedent. The FAA would consider this
petition and issue a final agency decision either affirming or
withdrawing the rescission of the declaration of compliance. An
applicant could appeal the final agency decision as provided in 49
U.S.C. 46110.
    The FAA did not receive comments concerning the reconsideration
process. The FAA adopts the reconsideration process, as proposed, with
no changes.

D. Small Unmanned Aircraft Manufactured Previous to the Effective Date
of This Rule

    Some remote pilots and manufacturers of small unmanned aircraft may
wish to use existing small unmanned aircraft to conduct operations over
people. The Agency does not seek to preclude existing small unmanned
aircraft from conducting operations over people. Instead, the proposed
rule included procedures to establish the eligibility of existing small
unmanned aircraft to operate over people. As explained in the NPRM, an
applicant with a previously manufactured small unmanned aircraft may
establish eligibility to operate over people by listing the applicable
aircraft serial numbers for the identified small unmanned aircraft on
the declaration of compliance submitted to the FAA. An applicant
requesting acceptance would be responsible for developing remote pilot
operating instructions for the existing aircraft and making those
instructions available to remote pilots or owners of the small UAS.
    The NPRM did not propose to require that an applicant locate owners
or remote pilots operating existing small unmanned aircraft and provide
the remote pilot operating instructions personally to them. Rather, if
a remote pilot owns an existing aircraft that an applicant has
identified on a declaration of compliance as eligible for Category 2 or
Category 3 operations and the remote pilot intends to conduct
operations over people using that aircraft, the remote pilot would be
able to access the remote pilot operating instructions if the applicant
posted them online.
    The proposed rule did not identify an applicant seeking FAA
acceptance of a declaration of compliance as the only person who could
label a small unmanned aircraft manufactured prior to the effective
date of the rule. Requiring an applicant to contact all remote pilots
of a particular make and model of small unmanned aircraft and provide
them with labels would be unreasonable. The NPRM noted that an
applicant could make a label available to remote pilots, either as a
website download or for cost. Overall, remote pilots could choose to
label their existing aircraft in any manner that meets the requirements
of the proposed rule.
    The American Petroleum Institute (API) and other commenters
suggested the FAA ensure small UAS owners are not required to buy new
aircraft that are appropriately labeled or submit their

own declaration of compliance. The News Media Coalition wrote that its
members had made significant investments in their current fleets of
small unmanned aircraft and do not wish to see them become
``immediately obsolete.'' An individual commenter said they should be
allowed to make modifications to allow their small UAS to become
eligible to be used for Category 2 or Category 3 operations. A
commenter stated small unmanned aircraft might need upgrades to make
the blades safer, but believed the FAA should leave those owners alone.
Another commenter asked for guidance on how the use of shrouds applies
to existing models. A commenter sought a simple way for everyday
operators to determine whether existing equipment can safely operate
over people. This commenter wrote that while `certified' equipment may
accomplish this going forward, there is a large gap for existing small
UAS. This commenter recommended the example of the European notice of
proposed amendment (NPA), which specifies certain altitude limits,
speeds, and weights.
    Small UAS designs that can currently operate under the provisions
of part 107 will continue to be able to operate in accordance with part
107 after this rule becomes effective. When the remote pilot wishes to
conduct operations over people, however, that person must ensure his or
her existing small unmanned aircraft is eligible for the operation. For
operations in accordance with Category 2 or Category 3, this involves
verifying the FAA has accepted a declaration of compliance concerning
the small unmanned aircraft. For Category 1, the remote pilot must
verify the aircraft complies with the weight and exposed rotating parts
standards. Anyone with a previously manufactured small unmanned
aircraft may follow an existing FAA-accepted means of compliance and
submit and request acceptance of a declaration of compliance verifying
the aircraft is eligible to operate over people.
    News Media Coalition believed the FAA should encourage
manufacturers to test and certify currently available models, both
newly manufactured models and recently sold models. The News Media
Coalition asked the FAA to encourage manufacturers to offer a way to
upgrade existing small UAS so that they are compliant with any new
rules. The News Media Coalition said manufacturers could accomplish
this through either a kit or a software or firmware upgrade.
    The Agency declines to specify how or if small unmanned aircraft
manufactured prior to the effective date of this rule may meet the
requirements of this rule, but notes that an applicant may follow an
FAA-accepted means of compliance that incorporates any number of
mitigations, including software or firmware updates.
    The Small UAV Coalition supported the proposal to apply the
requirements of this rule to existing small unmanned aircraft models,
such that operations over people with those models may not occur until
the FAA has accepted a declaration of compliance for them. The Small
UAV Coalition suggested the rulemaking explicitly recognize that an
operation with an existing small unmanned aircraft model may occur
pursuant to a waiver or exemption, without a declaration of compliance.
This rule does not eliminate the ability for a person to submit a
waiver under part 107. The FAA evaluates such requests on a case-by-
case basis.
    The Security Industry Association opined that the proposed rule's
certification process for manufacturers and users seeking to acquire a
means of compliance was reasonable. The commenter, however, asked the
FAA to provide guidance to small businesses that manufacture small UAS
on writing service agreements that comply with the rulemaking and do
not subject the small business owners to frivolous lawsuits. However,
such agreements are outside the scope of this rulemaking.
    The FAA included the previously manufactured small unmanned
aircraft section in the NPRM to ensure the requirement for labeling of
such small unmanned aircraft would be clear. Given the reorganization
of the regulatory text, that specific section is no longer necessary
and therefore, the final rule does not include this section.

E. Remote Pilot Operating Requirements

    The NPRM proposed to apply several operating limitations and
requirements to operations under Categories 2 and 3. Several of the
operating requirements apply to both Categories 2 and 3, while Category
3 operations are also subject to additional operating limitations and
requirements. This rule adopts the requirements as proposed and
clarifies that the remote pilot must verify that the declaration of
compliance associated with the small unmanned aircraft is valid. It is
the remote pilot's responsibility to ensure that the small unmanned
aircraft is eligible for the intended operation, which the remote pilot
can determine by checking the FAA website.
    To conduct operations over people under Category 2 or Category 3,
remote pilots must ensure their small unmanned aircraft is eligible for
the applicable category or categories of operations. The remote pilot
must ensure that the small unmanned aircraft meets the injury severity
limits, exposed rotating parts prohibition, and the prohibition on
safety defects. The FAA does not expect, nor does it require the remote
pilots to inspect the means of compliance or to verify the product
support and notification system. However, the remote pilot has a
requirement to check that the small UAS is in a condition for safe
operation, per Sec.  107.15. The most effective way for a remote pilot
to verify that the small unmanned aircraft meets the safety
requirements is to ensure it is listed on an FAA-accepted declaration
of compliance.
    Remote pilots must also ensure their small unmanned aircraft is
labeled to indicate the category of eligibility. If a label degrades
such that it is no longer legible or attached to the aircraft, the
remote pilot must ensure the small unmanned aircraft is relabeled in
English such that the label is legible, prominent, and will remain on
the small unmanned aircraft for the duration of the operation before
operating the aircraft over people. The FAA received a few comments on
the labeling requirement, one of which expressed support for it.
Several commenters asked the FAA to clarify who is responsible for
labeling the small unmanned aircraft. An individual commenter believed
the labeling provision could force current UAS owners to buy future
systems that are already labeled for operations over people, in the
event that the UAS manufacturer chooses not to submit a declaration of
compliance for those systems currently in the market. Finally, another
commenter opposed making the manufacturer responsible for labeling the
small unmanned aircraft. The applicant must meet the eligibility
requirements for the small unmanned aircraft if he or she wishes to
obtain FAA acceptance of a declaration of compliance to operate over
people. Furthermore, if the remote pilot wishes to use a small unmanned
aircraft that is listed on a FAA-accepted declaration of compliance,
but does not possess a label because the small unmanned aircraft was
produced prior to the effective date of this rule, the remote pilot
must ensure the small unmanned aircraft is labeled in accordance with
the terms of the declaration of compliance before using the aircraft
for operations under Category 2 or Category 3.
    The proposed rule did not restrict the areas in which operations
under Category 1 or Category 2 may occur

because these categories present a lower risk of causing severe
injuries. The proposed rule did, however, restrict the areas in which
Category 3 operations may occur, due to the increased injury severity
limits of Category 3. Specifically, the FAA proposed to prohibit
Category 3 operations over open-air assemblies of human beings. The FAA
also proposed to limit Category 3 operations as follows: The operation
is within or over closed- or restricted-access sites after anyone
within that site is on notice that a small unmanned aircraft may fly
over them; or, if not in a closed- or restricted-access site, the small
unmanned aircraft does not sustain flight over a person not either
directly participating in the operation, located under a covered
structure, or inside a stationary vehicle. Furthermore, in response to
comments, remote pilots are prohibited from operating a small unmanned
aircraft as a Category 1, 2, or 4 operation in sustained flight over
open-air assemblies unless the operation meets the requirements of
Sec.  89.110 or Sec.  89.115(a) (remote identification operational and
broadcast requirements for standard remote identification unmanned
aircraft or unmanned aircraft with remote identification broadcast
modules). Sustained flight over an open-air assembly includes hovering
above the heads of persons gathered in an open-air assembly, flying
back and forth over an open-air assembly, or circling above the
assembly in such a way that the small unmanned aircraft remains above
some part the assembly. The FAA may waive compliance with this
provision as appropriate and is discussed in more detail in Section
XIV.B. However, conditions of any waiver issued may require the
operator to notify local law enforcement prior to the operation. All
small unmanned aircraft operations are subject to remote identification
requirements upon the applicable compliance date, as specific in the
Remote Identification for Unmanned Aircraft final rule.
1. Operations Over Open-Air Assemblies of Human Beings
    The FAA received a few comments addressing the proposal to prohibit
Category 3 operations over open-air assemblies of people. One commenter
recommended the FAA clarify what it means by an ``assembly of people''
and provide a quantity or density of people that constitute a
significant risk. The FAA has declined to define this term by
regulation; rather, the FAA employs a case-by-case approach in
determining how to apply the term ``open-air assembly.'' \58\ Whether
an operational area is an open-air assembly is evaluated by considering
the density of people who are not directly participating in the
operation of the small unmanned aircraft and the size of the
operational area. Such assemblies are usually associated with public
spaces. The FAA considers some potential examples of open-air
assemblies may include sporting events, concerts, parades, protests,
political rallies, community festivals, or parks and beaches during
certain events. Some potential examples that are less likely to be
considered open-air assemblies include individual persons or families
exiting a shopping center, athletes participating in friendly sports in
an open area without spectators, individuals or small groups taking
leisure in a park or on a beach, or individuals walking or riding a
bike along a bike path, but whether an open-air assembly exists depends
on a case-by-case determination based on the facts and circumstances of
each case. The remote pilot must assess whether the operational area
would be considered an open-air assembly prior to conducting flight
operations. Legal interpretations and opinions regarding open-air
assemblies may be found on the FAA website.\59\ The FAA will continue
to provide education opportunities and outreach to remote pilots on
conducting safe operations. Additional resources for operators can be
found on the FAA website.
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    \58\ Rebecca MacPherson, Legal Definition of ``Densely
Populated'' and ``Congested Airway,'' FAA Office of Chief Counsel,
Regulations Division (August 28, 2012); Rebecca MacPherson, Response
to December 4, 2009 Letter, FAA Office of Chief Counsel, Regulations
Division (March 3, 2010).
    \59\ https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/Interpretations/.
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    The Washington Progress Group stated the prohibition on Category 3
operations over open-air assemblies is reasonable for operators who are
satisfied with restricting flights to unpopulated areas, or who are
able and willing to control the ground environment over which they are
flying, but asserted the restriction is too limiting for most
commercial missions that operate in populated open areas and may need
to hover. The commenter suggested the FAA consider allowing operations
to occur in airspace the public assumes is safe.\60\ To implement this
standard, the commenter suggested the FAA require a proponent for UAS
operations to proffer a safety case.
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    \60\ The commenter cited Matthews, et al., ``An Achievable Path
to UAS Integration in the NAS'', https://www.safeaccess4uas.com/paperuas-integration-nas.html; FAA Sponsored Sense and Avoid
Workshop, ``Sense and Avoid (SAA) for Unmanned Aircraft Systems
(UAS), Second Caucus Workshop Report,'' January 18, 2013. The
commenter refers to measurements of accident levels in certain
airspace as a ``Target Level of Safety.'' The commenter also cited
FAA Order 1100.161 CHG 1, https://www.faa.gov/documentLibrary/media/Order/Order_1100.161_CHG_1.pdf.
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    The FAA maintains its prohibition on Category 3 small unmanned