aircraft operations over open-air assemblies of people, as the
limitation will be a means for the FAA to maintain an appropriate level
of safety for such operations. This prohibition is subject to waiver.
An applicant who proposes risk mitigation measures that would achieve
an acceptable level of safety when operating over open-air assemblies
may qualify for and receive a waiver. Alternatively, a person choosing
to demonstrate the reliability of their small unmanned aircraft may
choose to obtain an airworthiness certificate and be eligible for
Category 4 operations.
    The Electronic Privacy Information Center (EPIC) provided
statistics from a 2017 Pew survey \61\ that the commenter believed are
``directly relevant to the proposal to allow drones to operate over
people.'' EPIC argued that the limitations proposed for Category 3
operations should apply to all operations. For flying over open-air
assemblies of people, EPIC believed the FAA should require operators
obtain and hold a permit that would ``allow for press or photography
drones,'' as a means of accountability.
---------------------------------------------------------------------------

    \61\ Hitlin, Paul, ``8% of Americans Say They Own a Drone, While
More than Half Have Seen One in Operation,'' Pew Research Center
(Dec. 19, 2017), available at https://www.pewresearch.org/fact-tank/2017/12/19/8-of-americans-say-they-owna-drone-while-more-than-half-have-seen-one-in-operation/.
---------------------------------------------------------------------------

    The FAA developed the limitations for Category 3 operations as a
way to mitigate the level of risk associated with the increased injury
severity limitations. The FAA does not find it necessary to apply the
limitations to operations under Categories 1 and 2, as those categories
are sufficiently safe to operate over open-air assemblies without prior
notification to persons not directly participating in the operation.
However, in response to security concerns raised in 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). See
Section VI.E.3. for a description of sustained flight and open-

air assemblies. The FAA may waive compliance with this provision as
appropriate. The FAA similarly does not issue permits for specific
operations, such as small unmanned aircraft operated by the press,
because the FAA's statutory obligations concerning aviation safety do
not require differentiating between the purposes for operations that
may occur under part 107.
    The Agency did not propose training or testing requirements for
persons operating a small unmanned aircraft eligible to operate in
either Category 2 or Category 3. With regard to Category 3 operations,
the NPRM requested responses to several questions related to whether
the Agency should require pilot training and testing requirements
before allowing Category 3 operations over open-air assemblies.
Specifically, the FAA requested comment on the following questions:
     To conduct operations over open-air assemblies using a
small unmanned aircraft that can transfer up to 25 ft-lbs kinetic
energy to a person on impact, should the remote pilot-in-command have
additional skills, experience, or currency beyond what part 107
currently requires?
     If so, what kind of skill, experience, or currency should
be required (e.g., minimum time operating the small UAS to be used,
minimum number of take offs and landings, etc.)?
     How should that skill, experience, or currency be
documented?
    Several commenters responded to these questions. Commenters did not
agree on the path forward with regard to open-air assemblies and
Category 3. One commenter recommended the FAA consider training
requirements to conduct Category 3 operations over open-air assemblies
of people. Motorola Solutions stated public safety officials should be
allowed to conduct operations over open-air assemblies without a waiver
using a Category 3 small unmanned aircraft if the remote pilot in
command has additional skills, experience, and currency beyond what
part 107 currently requires. In contrast, the News Media Coalition said
the FAA should not require training based on the number of people on
the ground, but should focus on ensuring remote pilots are trained and
knowledgeable in all circumstances. Another commenter opined that,
until the FAA requires a practical test with specified minimum skills,
experience, and currency for remote pilots, any additional requirements
for Category 3 operations over open-air assemblies should be left to
market forces to create industry-accepted standards.
    This rule does not require additional training, skills, experience,
or currency for Category 3 operations. Although pilot experience might
be relevant in determining whether an operation under either category
meets the level of safety required for operations over people, the FAA
lacks sufficient information and data to assess whether any training or
time spent piloting a particular aircraft would be appropriate for
ensuring safety.
2. Operations Within or Over Closed- or Restricted-Access Site
    The FAA proposed allowing Category 3 operations at closed- or
restricted-access sites in which access to the site is restricted and
when those people who are permitted access to the sites are advised of
the occurrence of the operation. The FAA anticipates that a closed- or
restricted-access site could be an area that contains physical
barriers, personnel, or both, as appropriate, to ensure no inadvertent
or unauthorized access can occur. For example, an operator should
ensure that access is restricted through public notices and signage,
flagging and barricading, erecting temporary fencing, or posting
personnel at points of entry, as appropriate. In addition, issuing
notice that a small unmanned aircraft may operate over people within
the site will enhance the situational awareness of people within it.
Notice could be written and posted at the entry point of the restricted
area or be in a letter or contract prior to the operation. Verbal
notice in addition to the written notice might be appropriate in some
cases. Operators may want to consider whether providing written
notification could be helpful to meet operators' own evidentiary needs.
In accordance with this limitation, remote pilots must ensure no
inadvertent or unauthorized access to the site occurs. The FAA expects
adequate assurance could include receiving assistance from personnel,
or placing physical barriers such as barricading and fencing or
monitoring personnel to ensure inadvertent or unauthorized access to a
closed- or restricted-access site does not occur. Geographical
boundaries, such as rivers, canals, cliffs, and heavily wooded areas
may also serve as effective barriers to restrict access. In some
circumstances, it may not be possible for a small unmanned aircraft to
take off and land inside a closed- or restricted-access site. The
proposed limitations on Category 3 operations would therefore allow for
takeoffs and landings to occur outside the site. In such circumstances,
small unmanned aircraft could then transit to the site to conduct the
desired operation, provided the aircraft does not maintain sustained
flight over persons not directly participating when outside the site.
    The FAA received several comments relevant to the restriction of
Category 3 operations from sustaining flight over people unless those
people are within a closed- or restricted-access site and have received
notice that a small unmanned aircraft may fly over them. One commenter
stated consent, rather than notice, would be most appropriate in
restricted spaces because the public would likely be more amenable to
the use of larger unmanned aircraft over them if consent was first
required. This commenter recommended the FAA create another category
for small UAS that require only consent and not notice. ALPA said a
single, one-time notification to people not directly involved in the
small UAS flight operation is not sufficient to reduce the risk of the
operation. ALPA added this is true when an operation of small unmanned
aircraft occurs in an open area where the zone of operations cannot
easily be defined or depicted.
    The FAA declines to require consent for Category 3 operations over
people in a closed- or restricted-set because notice is sufficient for
persons who choose to assume the risk of being present in the area of
operation. With regard to ALPA's concerns about Category 3 operations
in dynamic airport environments, the FAA is aware that areas like a
non-movement area at an airport do not permit public access and are an
appropriately closed- or restricted-sites. If an airport authority
chooses to conduct Category 3 operations at the airport, they must
provide notification prior to the operation. The FAA encourages
providing frequent and timely notification to ensure the safety and
awareness of all persons in the environment of operation.
    The National Institute for Occupational Safety and Health (NIOSH)
invited the FAA to join it in developing a performance-based, tiered
approach for operations of small unmanned aircraft near people at
worksites to minimize the occupational risks. NIOSH believes additional
research and proactive risk mitigation measures are necessary. NIOSH
also encouraged the FAA to collaborate with the Occupational Safety and
Health Administration (OSHA). The FAA declines to require additional
standards specific to construction sites. Part 107 does not place any
additional burden or restrictions on any workplace. The wide variety of
small unmanned aircraft types and operations make it impractical to set
specific criteria, including stand-off

distances, speed limits, mass, altitude, and the like, for operations
over people. Workplace personnel responsible for safety rules should
consider developing operating conditions to ensure remote pilots
conduct safe small unmanned aircraft operations.
    Flytcam Motion Pictures agreed that having restricted sites for
Category 3 operations was reasonable, particularly around construction
sites, agricultural fields, oil fields, and areas of search and rescue
operations. The commenter noted these sites already have established
safety measures in place and many of the personnel wear hard hats or
helmets. The commenter did not, however, believe Category 3 operations
are appropriate on closed-set motion picture and television
productions. The commenter also pointed out that personnel on motion
picture and television sets are unlikely to be wearing equipment to
protect them. The commenter recommended that closed-set motion picture
filming still require the user to go through the waiver process to
describe how they can conduct operations safely. Additionally, ALPA
recommended that small unmanned aircraft operations in these areas be
restricted to Category 1 or Category 2. For operations over people at a
construction site, the Associated General Contractors (AGC) of America
asked FAA to clarify in this rulemaking that workers at the
construction site qualify as ``participating in the operation.''
    The injury severity limits, exposed rotating parts prohibition, and
the operating restrictions for Category 3 operations are sufficient
risk mitigations for all closed- and restricted-access sites. Under
these requirements, operation of the small unmanned aircraft itself
presents a sufficiently low risk, particularly when combined with a
notification requirement that allows people in the vicinity of the
operation to assume the risk or to leave the area when the operation is
taking place. Construction sites are often closed- or restricted-access
sites in which people within the sites might not directly participate
in the small unmanned aircraft operation. Under these circumstances,
operations over people can still occur over these individuals in
accordance with this rule. The FAA discussed the distinction between
people directly participating and not participating in the final rule
for part 107.\62\ This final rule for operations over people does not
change that policy.
---------------------------------------------------------------------------

    \62\ 81 FR 42064, 42128 (June 28, 2016).
---------------------------------------------------------------------------

3. Operations Not Within or Over Closed- or Restricted-Access Sites
    For Category 3 operations over people not located within a closed-
or restricted-access site, the Agency proposed to prohibit sustained
flight, as doing so reduces the likelihood of injury by limiting
protracted duration of a flight over a person. Additionally, the Agency
proposed to prohibit remote pilots from operating a Category 3 aircraft
over open-air assemblies of people.
    In response to the proposal concerning Category 3 operations over
people not located within closed- or restricted-access sites, the Small
UAV Coalition pointed out the proposed rule did not include a
definition of ``sustained'' operation. The Coalition stated the FAA
should consider hovering or circling over persons to be ``sustained,''
in contrast to merely transiting over a person. The FAA maintains the
prohibition on sustained flight for Category 3 operations outside of a
closed- or restricted-access site, in addition to prohibiting all
operations over open-air assemblies. Sustained flight includes hovering
above any person's head, including any person in an open-air assembly;
flying back and forth over a person or open-air assembly; or circling
above an uninvolved person or open-air assembly in such a way that the
small unmanned aircraft remains above some part of that person or open-
air assembly. Operations conducted under Category 3 only permit
sustained operations over people directly participating in the
operation or under a covered structure or inside a stationary vehicle.
Category 1, 2, or 4 operations that are not compliant with remote
identification are also prohibited from sustained flight over open-air
assemblies.
    The AeroVista Drone Academy recommended allowing ``transient
overflight'' of non-participating persons who are equipped with
hardhats and other equipment or non-participants who have provided
informed consent. In addition, AeroVista recommended the establishment
of a new category of ``active participants,'' which would consist of
persons involved in an operation, are informed of the risks, have
provided informed consent, and can carry out appropriate emergency
procedures. These active participants would be identified by special
clothing or being in a closed-access site.
    This rule provides flexibility for operating over people not
directly participating in the operation, unless it is a sustained
flight over an open-air assembly for Category 1, 2, or 4. This rule
allows operations under Category 1 or Category 2 to occur over all
people, including sustained flight over people not directly
participating in the operation, unless that sustained flight is over an
open-air assembly. The FAA finalizes the requirement to permit Category
3 over people only if: (i) The operation is within or over closed- or
restricted-access sites and anyone within that site has been notified
that a small unmanned aircraft may fly over them; or (ii) the small
unmanned aircraft does not maintain sustained flight over a person not
either directly participating in the operation, located under a covered
structure, or inside a stationary vehicle with no changes. Such
restrictions are consistent with the risk-based framework for this
rulemaking.

F. Variable Modes and Variable Configurations of Small UAS

    The Agency proposed to allow small unmanned aircraft configured to
conduct operations in more than one category. For example, an aircraft
may be designed in such a way that it would be eligible to conduct
Category 2 operations in one mode or configuration and Category 3
operations in another. Alternatively, a small unmanned aircraft could
meet the requirements to operate over people only when in one
particular mode or configuration.
    Using different modes or configurations, an applicant could design
a small unmanned aircraft to meet the performance requirements of
multiple categories of operations over people. The NPRM explained that,
to transition between various modes or configurations, an applicant
could use a variety of methods, such as software-enabled performance
limitations or hardware configurations. The Agency proposed that a
small unmanned aircraft would only be eligible for operation in more
than one category if the remote pilot in command cannot inadvertently
change the mode or configuration. A change of mode or configuration,
therefore, could only result from a deliberate action on the part of
the remote pilot in command. The applicant should test the small
unmanned aircraft in the mode or configuration to which the applicant
wishes to declare compliance. The declaration of compliance must
include each category for which the applicant has tested or analyzed
the small unmanned aircraft.
    The Agency sought comment on means of compliance that address
incorporation of software, including software updates or changes, to
enable performance limitations and variable modes or configurations to
meet the

proposed safety level. The FAA also sought comment in the NPRM on how
it should review means of compliance for the impact kinetic energy or
exposed rotating parts safety thresholds to address the appropriateness
of using software to limit or establish safe performance of the small
unmanned aircraft. In response, the Agency received general comments on
variable modes and configurations.
    Flytcam Motion Pictures expressed concern that many pilots lack
both the technical understanding of various systems and procedures
required to operate safely and to understand the regulations in part
107. While agreeing the pilot should not be able to change the mode
inadvertently, Flytcam was concerned the Agency had ``a lot of
confidence that the pilot will ensure the aircraft is configured
properly.'' The FAA does not share these concerns because the
regulations require remote pilot operating instructions to describe how
to verify and change the mode or configuration of the small unmanned
aircraft. Remote pilots who hold certificates under part 107 are
capable of using the remote pilot operating instructions to determine
how to employ the appropriate mode or configuration for the intended
operation. The remote pilot in command is also responsible for
complying with all applicable regulations, including conducting a
preflight inspection.
    The Agency adopts the proposal as drafted to allow small unmanned
aircraft to be configured in more than one category.

G. Record Retention Requirements

    The Agency proposed requiring applicants to maintain small unmanned
aircraft records related to their declarations of compliance for a
minimum of two years after ceasing production and requiring applicants
to retain all supporting information for a means of compliance for as
long as the means of compliance remains accepted. The NPRM explained
that, in the event of a safety defect, or if the FAA initiated an
action to address a compliance issue, this information would be
critical to determine the cause, scope, and severity of the defect or
infraction.
    For applicants submitting a means of compliance for FAA acceptance,
the submitter would be required to retain and make available to the
Administrator, on request, and for as long as the means of compliance
remains accepted, the detailed description of the means of compliance
and justification showing how the means of compliance meets the
requirements. When submitting a declaration of compliance, the
applicant must retain all supporting information used to meet the
safety requirements. The applicant must retain this information for 2
years after the cessation of production of the small unmanned aircraft
listed on the declaration of compliance. Furthermore, if the applicant
designs or modifies the small unmanned aircraft, they must retain the
supporting information for 2 years after they submit the declaration of
compliance. The FAA has modified the text of the regulatory
requirements for record retention as they were proposed in the NPRM to
provide clarity.
    NAMIC and the Small UAV Coalition supported the proposal to require
the holder of a declaration of compliance to retain records for a
minimum of 2 years. In contrast, two individual commenters opposed the
2-year record retention requirement, arguing that it should be longer.
One of these commenters wrote that, to accommodate lawyers and
lawsuits, the Agency should extend the record retention period to match
the statute of limitations, which the commenter stated is 10 years. The
other commenter similarly suggested that records be retained for the
length of all statutes of limitation, because the recordkeeping
requirements will benefit the injured party. This commenter also stated
that the NPRM did not provide a reason for treating the document
retention and inspection requirements for the declaration of compliance
and the means of compliance differently. The commenter asserted that if
the method of proving compliance cannot be investigated and verified,
``the Certificates of Declaration are suspect.'' The Agency finds that
the record retention requirements are appropriate: It is not necessary
to retain records that are the bases for declarations of compliance
longer than 2 years, although the FAA notes that individuals may find
it in their interest to retain the records for a longer period of time.
    The Small UAV Coalition also commented in support of the proposal
to require the holder of a means of compliance retain records for as
long as the means of compliance remains acceptable to the FAA.
Commenting on the proposed retention requirement for substantiating
data related to custom means of compliance, an individual commented
that, so long as the manufacturers are the only entities using their
own custom means of compliance, it makes sense for them to keep
substantiating data ``with no caveats. ``The commenter stated,
``however, given that other manufacturers may rely on [another]
manufacturer's custom means of compliance . . . the rule should provide
some means whereby a creator of a custom means of compliance can notify
those who use it that they will no longer utilize it.'' Data would then
either be deleted or transferred to entities that wish to continue
using the means of compliance. The commenter noted that, without this
exception, a person who creates and submits for FAA acceptance a means
of compliance must bear the cost of maintaining substantiating data
related to that means of compliance even if the manufacturer no longer
makes use of it.
    An individual commenter expressed support for the proposed
amendment to require any person holding an FAA-accepted declaration of
compliance to make available to the Administrator, on request, the
declaration of compliance and any other document, record, or report
required to be kept. The commenter suggested the FAA clarify that only
the person(s) required to keep the record must produce the record.
    The proposed language sufficiently affirms that the person who is
required to keep the record must be the one to produce the record on
request. Further, the Agency adopts the record retention requirements
as proposed, with minor clarifying amendments to ensure sufficient
information is available to the FAA on request. These requirements are
consistent with the level of oversight that is appropriate for small
unmanned aircraft eligible to conduct operations in accordance with
Category 2 or Category 3.

VII. Category 4: Operations Based on Airworthiness

    The proposed rule included only three categories of aircraft that
could conduct operations over people under part 107. In response,
several commenters stated the Agency had not considered the reliability
of aircraft. Other commenters stated a small UAS issued an
airworthiness certificate should be allowed to operate over people.
    The Agency designed part 107 to encompass small UAS that were not
certificated, allowing for expansion of UAS operations in the NAS
without requiring airworthiness certification. In response to
commenters' suggestions, this rule considers reliability of small UAS
by establishing a fourth category of small unmanned aircraft eligible
to operate over people. This final rule allows small unmanned aircraft
issued an airworthiness certificate under part 21 to operate over
people in accordance with part 107. An appropriate airworthiness
certificate would be one

which does not prohibit operations over people or over moving vehicles.
Operating limitations may be specified in the approved Flight Manual or
as otherwise specified by the Administrator. Certification is how the
FAA manages risk through safety assurance. It provides the FAA
confidence that a proposed product or operation will meet FAA safety
expectations to protect the public. Certification affirms that FAA
requirements have been met. Small unmanned aircraft that have obtained
airworthiness certification will be allowed to operate over people and
over moving vehicles in accordance with part 107, so long as the
operating limitations applicable to that aircraft do not prohibit those
operations. Consistent with other regulatory frameworks, such as part
91 and part 135, the owner is responsible for the maintenance and
records retention requirements for small unmanned aircraft operated in
accordance with Category 4 under part 107, unless the owner has entered
into an agreement with another entity to operate the small unmanned
aircraft. It is expected that most operators of Category 4 small
unmanned aircraft operated under part 107 will also be the owner, or
operating under direction of the owner. In this case, the owner is
responsible for compliance with the Category 4 small unmanned aircraft
maintenance and records retention requirements. However, to maintain
flexibility for those owners of a Category 4 small unmanned aircraft
who wish to enter in to a lease agreement with another entity for the
operation of their small unmanned aircraft without the owner's
intervention or control, this rule provides the means for the
responsibility for the maintenance requirements and retention of
records to be clearly defined in such an agreement. If so specified in
the agreement, the FAA would hold the operator responsible for
compliance with the Category 4 small unmanned aircraft maintenance and
records retention requirements. An agreement between an owner and an
operator may be in the form of a written lease or contract, verbal
agreement, or other agreement. If any agreement is found invalid or
unenforceable, then the owner has the responsibility to meet these
requirements. The provisions of any agreement should address, at a
minimum, the requirements of Sec.  107.140(c).
    The UAS Program Leader for the Memphis Fire Department stated the
FAA or the manufacturer should certify small UAS that are reliable
aircraft for use in operations over people. AIA asked the Agency to
consider the probability of a small unmanned aircraft hitting a moving
vehicle or a human. A commenter wrote that there are currently no clear
data on this topic and such data is critical to industry and public
acceptance of this rule. AIA stated the Agency should consider the risk
of UAS operations as consistent with the risks posed by traditional
manned aviation as well as the other risks that the public faces daily.
Airworthiness certification is not necessary for operations over
people; as a result, the proposed rule did not require it for
operations under any of the three proposed categories of operation.
    Flytcam Motion Pictures surmised the risk of unmanned aircraft
mishap would be higher with increased operations and suggested the
creation of a fourth category that would include all the systems
outside Category 3. Rising Tide Cinema proposed three classes of small
UAS: Operations that occur under waiver, small UAS with technological
advantages approved by the FAA, and a third category of small UAS with
an ``airworthiness release.'' Another commenter recommended several
specific requirements for small UAS type certification, including a
``demonstrated hover stability rating,'' pilot notification, and
cybersecurity requirements. Drone Safe Communities suggested
manufacturer requirements for protocol to apply during a loss of signal
experience.
    The Agency agrees with the commenters that demonstrable reliability
should be an alternative path for operations over people. This rule
includes several updates to regulatory text to allow aircraft with
airworthiness certification to operate under part 107 and to be
eligible to operate over people. This rule also removes the phrase,
``[e]xcept for aircraft subject to the provisions of part 107'' from
Sec.  21.1, to clarify small UAS may seek airworthiness certification
even if part 107 applies to the intended aircraft operation. This final
rule includes a new provision, Sec.  107.2, which clarifies that,
notwithstanding the change to Sec.  21.1, small unmanned aircraft
operating under part 107 are not required to obtain airworthiness
certification. Except where the airworthiness certification is used as
a basis for operating over people in accordance with Category 4, the
provisions of part 21 will continue to be inapplicable to small
unmanned aircraft subject to part 107. This final rule also revises
Sec.  107.1 to clarify that part 107 does not apply to any operation
that an operator elects to conduct under part 91 with a small unmanned
aircraft that has been issued an airworthiness certificate: an operator
may conduct small unmanned aircraft operations under either part 107 or
part 91 when the operation and small unmanned aircraft meet the
applicable requirements.

A. Remote Pilot in Command Operating Requirements for Category 4

    To operate under Category 4, the remote pilot in command must use a
small unmanned aircraft that has an FAA-issued airworthiness
certificate. Operating limitations may be specified in the approved
Flight Manual or as otherwise specified by the Administrator and must
not prohibit operations over people or moving vehicles. When using a
small unmanned aircraft with an airworthiness certificate issued under
part 21, remote pilots must operate in accordance with all operating
limitations, which the FAA specifies for each aircraft when issuing the
airworthiness certificate. Operating limitations are prescribed to
ensure that the aircraft is operated within an acceptable level of risk
to maintain the safety of the NAS and to protect persons and property
on the ground. To ensure this safety, remote pilots must adhere to any
operating limitations, especially those specific to operations over
people. Any noncompliance with operating limitations increases risk.
    Additionally, in response to comments, remote pilots are prohibited
from operating a small unmanned aircraft as a Category 4 operation in
sustained flight over open-air assemblies unless the operation meets
the requirements of Sec.  89.110 or Sec.  89.115(a). 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 requirement as appropriate. For more
information on this requirement, please see Sections VI.E. and XIV.B.

B. Small Unmanned Aircraft System Requirements and Continued
Airworthiness for Category 4

    The aircraft must be maintained or altered in a manner using the
methods, techniques, and practices prescribed in the current
manufacturer's maintenance manual or Instructions for Continued
Airworthiness prepared by its manufacturer, or other methods,
techniques, and practices acceptable to the Administrator.
Additionally, the

small unmanned aircraft must be inspected in accordance with either the
manufacturer's instructions or instructions acceptable to the
Administrator. The small unmanned aircraft must also be maintained or
altered using parts of such a quality that the condition of the
aircraft will be at least equal to its original or properly altered
condition.
    The person performing any maintenance, preventive maintenance, or
alterations must use the methods, techniques, and practices prescribed
in the current manufacturer's maintenance manual or Instructions for
Continued Airworthiness that are acceptable to the Administrator, or
other methods, techniques, and practices acceptable to the
Administrator. In addition they must have the knowledge, skill, and
appropriate equipment to perform the work. While this rule does not
require the person performing maintenance to hold a mechanic
certificate, it is incumbent on the owner or operator to ensure that
maintenance occurs in a manner that ensures that the small unmanned
aircraft remains in a condition eligible to be operated over people in
accordance with Category 4. If the small unmanned aircraft is operated,
and subsequently crashes due to improperly performed maintenance, the
small unmanned aircraft owner or operator could be held responsible.
The person performing the maintenance must have the basic skills and
knowledge to follow the manufacturer's instructions and use the tools
that the manufacturer recommends. Or, if adequate instructions are not
available, or if an alternative process is desired, then the
maintenance provider may use instructions acceptable to the
Administrator in lieu of the manufacturer's instructions.
    Many of these requirements are similar to the requirements of part
43 that apply to maintenance of aircraft. The FAA has long relied on
maintenance providers' compliance with these requirements to ensure the
aircraft remains in an airworthy condition. In this regard, the
requirements ensure the small unmanned aircraft retains the
capabilities and characteristics the small unmanned aircraft had at the
time of certification and that the certification determination remains
valid. The conclusion that the aircraft will remain safe is critical in
determining the aircraft is suitable for operating over people in
accordance with Category 4, as it is consistent with the risk-based
framework the Agency uses in establishing the appropriate policy for
small UAS operations over people.

C. Maintenance Records

    This rule requires the owner or operator to retain maintenance
records for aircraft eligible for operations under Category 4 for at
least 1 year from when the work is performed, or until the maintenance
is repeated or superseded by other work. Furthermore, the owner or
operator must retain and transfer records documenting the status of
life-limited parts, compliance with airworthiness directives, and
inspection status of the small unmanned aircraft when ownership of the
small unmanned aircraft transfers. The records must be specific to the
small unmanned aircraft and be made available to the Administrator on
request. All records of maintenance, preventive maintenance, and
alterations performed on the small unmanned aircraft must be documented
in a manner acceptable to the Administrator. The records must contain
the description of the work performed, the date the work was completed,
and the name of the person who performed the work.
    The FAA will use these records to verify that the small unmanned
aircraft has been maintained in a manner that assures it remains in a
condition eligible for operations over people in accordance with
Category 4. In addition, while the Agency does not establish a process
of requiring a small unmanned aircraft be removed from service,
repaired, and returned to service by a certificated mechanic, the small
unmanned aircraft must be properly maintained to ensure it remains in a
safe condition. Appropriate record-keeping will verify compliance with
this requirement.
    When a remote pilot operates a small unmanned aircraft in
accordance with part 107 that has been issued an airworthiness
certificate under part 21, the requirements of part 43 and part 91 do
not apply. However, a small unmanned aircraft that has been issued an
airworthiness certificate may also be eligible to operate under part
91, under certain circumstances. This rule contains necessary updates
to the regulatory text, to reflect the applicability of operating
rules. Due to the differences in the regulations about how aircraft
must be maintained under each suite of operating rules, it may be
difficult for an owner or operator to switch back and forth between
operating rules. In particular, a small unmanned aircraft that has been
operated and maintained in accordance with part 107 may find it
difficult to show compliance with the requirements of part 43 and 91.
To address this concern, an owner or operator can elect to comply with
the relevant part 43 and 91 requirements, even while operating in
accordance with part 107. Under these circumstances, electing to comply
with the relevant part 43 and 91 requirements may help facilitate
moving back and forth between operational parts, if desired, because
the requirements of parts 43 and 91 are more stringent than those of
Sec.  107.140 with regard to maintenance and airworthiness.

VIII. Operations Over Moving Vehicles

A. Proposed Prohibition and Comments Received

    The Agency proposed to prohibit the operation of small unmanned
aircraft over people in moving vehicles; however, the proposed rule
stated the FAA could waive the proposed prohibition if a person
demonstrates the small unmanned aircraft operation could occur safely
under the terms of a waiver. In the proposed rule, the Agency stated
the moving vehicle operating environment is dynamic and the remote
pilot in command could not control it directly. The Agency considered,
however, allowing the operation of small unmanned aircraft over people
in moving vehicles without a waiver and sought public comment on
whether it should take this action.
    Many comments addressed operations of small UAS over people who are
in moving vehicles. Several comments supported the prohibition and said
the FAA should not consider allowing such operations without a waiver.
A few comments only addressed the proposal to allow small unmanned
aircraft operations over people in moving vehicles through the part 107
waiver process. Most commenters opposed the prohibition and said the
FAA should allow small unmanned aircraft operations over moving
vehicles without a waiver in all or limited circumstances.
    Some commenters, including the CAPA, the Association of American
Railroads, the Minnesota Department of Transportation (MnDOT), IAAPA,
and EPIC, supported the prohibition as proposed in the NPRM. Both the
Association of American Railroads and IAAPA asked the Agency to clarify
what constitutes a moving vehicle and further requested clarity about
whether the prohibition would apply to trains and amusement park rides.
    IAAPA urged the Agency ``to prohibit the flight of any unauthorized
small UAS over fixed site amusement parks,'' citing concerns over small
unmanned aircraft operating over amusement park rides. IAAPA stated
operators who receive a waiver will be more familiar

with the higher level of risk associated with operating over an
amusement park. IAAPA asked the Agency to recognize the need to
prohibit flight over, and in close proximity to, amusement parks by
clarifying that amusement park rides are ``moving vehicles'' for
purposes of the prohibition. Alternatively, the commenter asked the
Agency to address the prohibition through Section 2209 of the FAA
Extension, Safety, and Security Act of 2016.\63\ The commenter asserted
the kinetic energy of a small unmanned aircraft hitting an exposed
individual on even a relatively slow-moving ride poses a substantial
safety risk to the rider who is hit, to those around him or her, and
potentially to all the riders on a ride.
---------------------------------------------------------------------------

    \63\ Section 2209 requires ``the Secretary of Transportation to
establish a process to allow applicants to petition the
Administrator of the Federal Aviation Administration to prohibit or
restrict the operation of an unmanned aircraft in close proximity to
a fixed site facility.'' The FAA Extension, Safety and Security Act
of 2016, Public Law 114-190, sec. 2209, 130 Stat. 615, 633-635
(2016). The FAA has determined that operations over moving vehicles
can be conducted safely when following the requirements of this
rule. A separate rulemaking action will address the process by which
entities can submit a request to the FAA to restrict the airspace
over a fixed site.
---------------------------------------------------------------------------

    Chicago's First Lady Cruises wrote that the inconvenience of the
current regulation is outweighed by reasonable safety and liability
concerns. The commenter noted that their open-air vessels provide their
customers with unobstructed views of the Chicago skyline and could be
considered an open-air assembly of people.
    Several commenters supported the prohibition on operations over
moving vehicles as long as it remains subject to waiver. MnDOT
recommended the FAA require applicants for a waiver explain how they
considered the safety of the combinations of altitude, speed, and
distance from a roadway exist to avoid distracting drivers.\64\ One
commenter recommended the FAA differentiate between operations over
people in moving vehicles with knowledge of the operation (e.g.,
vehicles being filmed) and operations over people in moving vehicles
without knowledge of the operation (e.g., vehicles on public roads).
Another individual commenter suggested the Agency only allow operations
of small unmanned aircraft over moving vehicles with a waiver, hands-on
training, and rules preventing operation over roadways where vehicles
travel above certain speeds. The commenter said testing would be
necessary to determine appropriate speeds, and would likely be similar
to the testing conducted for this NPRM to set UAS categories,
considering the likelihood of harm to bystanders that may occur at
various speeds. The commenter also stated a small unmanned aircraft
that causes a driver of a car or truck to lose control of a vehicle
would create much greater havoc than that contemplated by this NPRM.
---------------------------------------------------------------------------

    \64\ The commenter cited the following Oregon Department of
Transportation study, which investigated driver distraction caused
by UAS: Hurwitz, D., Olsen, M., & Barlow, Z. (2018) ``Driver
Distraction Due to Drones,'' Oregon Department of Transportation
(ODOT), Salem, OR, 1-100, available at http://www.davidhurwitz.org/wp-content/uploads/2019/02/Driving_Distraction_due_to_Drones.pdf.
---------------------------------------------------------------------------

    Some commenters recommended a prohibition against hovering or
sustained flight over moving vehicles. NAMIC said it recognizes
sustained operation of a small unmanned aircraft over moving vehicles
can present safety issues and should not be permitted without a waiver,
but ``temporarily transiting over roads with moving vehicles during
normal operations'' should be permitted. A couple of commenters stated
small unmanned aircraft operations should only be permitted without a
waiver for purposes of transiting over moving vehicles or when the
flight is done at certain angle, for example, perpendicular to the
roadway or at a 90-degree angle. One commenter said any prohibition on
hovering or sustained flights over moving vehicles should not apply to
lifesaving or search-and-rescue efforts.
    In contrast, many comments opposed the prohibition on small
unmanned aircraft operations over moving vehicles and recommended the
FAA allow such operations without a waiver. Most of these commenters
cited at least one of the following reasons: (1) A small unmanned
aircraft that malfunctions is unlikely to collide with a moving vehicle
operating below it because both vehicles are in motion; (2) in the
event of a collision, the risk of injury to people inside the moving
vehicle is low because they are protected by the structure of the car;
and (3) the risk of distraction to drivers is low. Commenters stated
the small unmanned aircraft will operate directly overhead and
therefore not be visible to the drivers, who must focus on distractions
that are equal to or greater than a small unmanned aircraft operating
overhead. Commenters also stated the FAA failed to consider the
benefits of allowing small unmanned aircraft operations over moving
vehicles and failed to provide sufficient evidence or data to support
the Agency's stated concerns regarding risks to people in vehicles.
Commenters asserted a blanket restriction on small unmanned aircraft
operations over moving vehicles would severely limit small unmanned
aircraft operations, especially in urban areas, and will negatively
impact various industries, public safety operations, and emerging
technologies. A few commenters noted helicopters and ultralight
vehicles routinely operate over moving vehicles and present a greater
risk to people in moving vehicles than small unmanned aircraft
operating overhead. Other commenters opposed the prohibition due to
concerns with the burden on the FAA and small UAS operators of using
the part 107 waiver process to allow the operations.
    Commenters also pointed to the difficulty of having to interrupt an
operation by landing the unmanned aircraft, crossing the roadway, then
resuming the operation. Utah Department of Transportation (UDOT) noted
that, to avoid operating over moving vehicles, it closes lanes of
traffic to conduct bridge, sign, and other infrastructure inspections
via UAS, causing delays and incurring cost to society. Several
commenters, including DJI, suggested allowing operations of small
unmanned aircraft over moving vehicles without a waiver using a risk-
based approach and to consider factors such as the speed and density of
traffic, minimum altitude requirements, the location, type, and speed
limit on the roadway or site being overflown, and the weight of the
small unmanned aircraft. A few commenters suggested the rule include
weather restrictions.
    Some commenters recommended allowing such operations only in
certain circumstances. A commenter recommended requiring operators to
comply with reporting requirements, such as reporting property damage
to local and State departments of motor vehicles. Commenters generally
supported allowing operations over low-speed and low-density traffic
when vehicles are in closed or restricted sites. Commenters also
recommended that small unmanned aircraft operations be permitted over
moving vehicles if the drivers are part of, or are aware of and consent
to, the operations or when the operators are ``professionally trained,
certified, and insured.'' A few commenters who support such operations
at construction sites asserted the nature of heavy equipment at such
sites, the added protection of personal protective equipment, and the
additional training for workers and operators would mitigate the risks
of the operation. A commenter recommended viewing each operating
environment on a case-by-case basis to allow operations where deemed
safe and responsible, based on a variety of factors.

B. Response to Comments for Determination

    The Agency agrees with the commenters who stated operations over
people in moving vehicles could be conducted safely, subject to certain
conditions. Although small unmanned aircraft operations over moving
vehicles may present additional risks due to the potential speeds of
such vehicles, the Agency has determined operations of small unmanned
aircraft over people who are inside moving vehicles can be conducted
safely, under limited circumstances. Therefore, this rule will allow
small unmanned aircraft operations over people inside moving vehicles
subject to specific conditions. The rule contains a new section
describing the conditions under which small unmanned aircraft may be
operated over people inside moving vehicles.
    This rule allows operations over people inside moving vehicles
under the following conditions. First, the small unmanned aircraft
operation must meet the requirements for a Category 1, 2, or 3
operation under subpart D. Second, regardless of the category of
operation, the operation must meet either of the following conditions:
(1) The operation must be within or over a closed- or restricted-access
site where any human being located inside a moving vehicle within the
closed- or restricted-access site is on notice that a small unmanned
aircraft may fly over them, or (2) if the operation is not within or
over a closed- or restricted-access site, the small unmanned aircraft
must not maintain sustained flight over moving vehicles.
    The application of the requirements of Categories 1, 2, or 3 will
reduce the risk of injury to human beings. The weight limitation and
exposed rotating parts prohibition for Category 1 and the injury
severity limitations and exposed rotating parts prohibition for
Categories 2 and 3 reduce the risk of injury to human beings located in
or on moving vehicles, as well as the severity of damage to a moving
vehicle if an impact occurs. Having a single set of conditions for
Categories 1, 2, and 3 to operate over moving vehicles also simplifies
the requirement while achieving an acceptable level of safety.
    Category 4 small UAS may be eligible to operate over moving
vehicles as long as the applicable operating limitations in the FAA-
approved Flight Manual or as otherwise specified by the Administrator
do not prohibit such operation. For the reasons described in the
discussion of Category 4 in Section VII. of this preamble, operation of
a Category 4 small unmanned aircraft over a person in a moving vehicle
is consistent with the level of safety that operations of small
unmanned aircraft under Categories 1, 2, and 3 achieve.
    For the purpose of this rule, the Agency considers a vehicle to be
any means of transportation, regardless of whether it is motorized. For
example, cars, trucks, buses, trains, motorcycles, scooters, and
rollercoasters are all vehicles. In addition, non-motorized means of
transportation such as bicycles would also be considered vehicles
because they have the potential to move at speeds the Agency did not
contemplate when establishing the requirements for operations over
people. Watercraft such as sightseeing vessels, motorboats, and
personal watercraft are also vehicles for the purpose of this rule.
    The closed- or restricted-access site restrictions that apply to
some operations over moving vehicles are similar to the restrictions
for Category 3 operations over people and will apply to all operations
over moving vehicles. For example, a Category 2 operation over people
is not restricted to closed- or restricted-access sites, but if the
operation involves operations over moving vehicles, then this
restriction will apply. When operating within a closed- or restricted-
access site, no limitations apply concerning the duration of sustained
flight or hover over any moving vehicle. Small unmanned aircraft
operations over moving vehicles within or over closed- or restricted-
access sites have the most flexibility for operating over moving
vehicles.
    As with the operating limitations that apply to operations pursuant
to Category 3, as discussed in Section VI.E., remote pilots must ensure
no inadvertent or unauthorized access to the closed- or restricted-
access site can occur. Such a site could be an area that contains
physical barriers, personnel, or both, to ensure no inadvertent or
unauthorized access is possible.
    In addition, this rule requires that a remote pilot verify that
people operating vehicles within the closed- or restricted-access site
are provided notice that a small unmanned aircraft may operate over
them within the site, to enhance the situational awareness of the
people operating vehicles within the site. Public notices, signage, and
flagging are some effective means of notifying people within the site,
as are written notices posted at the entry point to the restricted area
or a briefing between the small unmanned aircraft operator and the
vehicle operators. When a person operating a vehicle receives a letter
or contract stating small unmanned aircraft operations may occur over
him or her, this would serve as sufficient actual notice, no matter the
amount of time that passes between receipt of the information and the
small unmanned aircraft operation, as long as the receipt of the notice
occurs before the operation begins. Small UAS operators should provide
verbal notice in addition to a written notice in cases in which a
verbal notification is necessary to ensure the information is received
and understood. Operators may want to consider whether providing
written notification could be helpful to meet operators' own
evidentiary needs. The notice should describe precautions or other
recommended actions to ensure safety during a small unmanned aircraft
operation. The remote pilot in command must verify that people in or on
vehicles within the closed- or restricted-access site have received
notice.
    If the operation over moving vehicles takes place outside a closed-
or restricted-access site, the small unmanned aircraft is prohibited
from sustained flight over moving vehicles. This prohibition applies to
holding above, hovering, or maintaining sustained flight above moving
vehicles. This requirement should ensure only momentary exposure to any
moving vehicle in which occupants do not have the benefit of awareness
and coordination that operators of vehicles on closed- or restricted-
access sites have. Limiting the amount of time the small unmanned
aircraft operates over moving vehicles reduces the likelihood of an
impact with a moving vehicle. Small unmanned aircraft operators who
want to conduct sustained operations over moving vehicles not in a
closed- or restricted-access site must apply for a certificate of
waiver.
    The remote pilot in command remains responsible for ensuring the
operation does not create a hazard to anyone, including a person in a
moving vehicle. The FAA will rely on fulfillment of this responsibility
especially when the small unmanned aircraft crosses an active roadway
or waterway, as the Agency declines to limit crossing roadways to
particular angles, such as perpendicular to the roadway, or at certain
altitudes. The remote pilot in command is best suited to evaluate the
moving vehicle environment to determine a safe manner for crossing an
active roadway or waterway to not present a hazard to the moving
vehicles underneath. The remote pilot in command should consider the
type of roadway or waterway; the types of vehicles; the small unmanned
aircraft design and performance characteristics;

obstructions to flight such as buildings, trees, powerlines, roadway
signs; and any other aspect of the operating environment that could
influence the safety of the operation.
    The Agency also agrees with the commenters who supported the
availability of waivers of the prohibition on operating small unmanned
aircraft over moving vehicles. This rule will allow an applicant to
seek a waiver from these provisions by adding Sec.  107.145 to the list
of provisions subject to waiver in Sec.  107.205. Small UAS operators
may receive waivers to allow them to deviate from the conditions for
operating small unmanned aircraft over moving vehicles as long as they
can demonstrate that the operation can occur safely pursuant to the
terms of a certificate of waiver.

IX. Operations at Night

A. Proposed Requirements and Comments Received

    The NPRM proposed to permit routine operations of small UAS at
night, subject to specific requirements. The FAA proposed to amend
Sec.  107.29 to permit operations at night when: (1) The small unmanned
aircraft has an anti-collision light that is visible for 3 statute
miles, and (2) the remote pilot in command has completed an updated
knowledge test or recurrent training, as applicable, to ensure
familiarity with the risks and appropriate mitigations for nighttime
operations. Additionally, the FAA proposed adding the anti-collision
lighting requirement to the list of regulations subject to waiver in
Sec.  107.205.
    Many commenters supported the proposal to allow small UAS
operations at night without a waiver. Comments in favor of routine
night operations significantly outnumbered comments in opposition to
the proposed change. Several commenters expressed concern about the
risk of midair collisions between manned and unmanned aircraft.
Commenters referred to the inherent lack of situational awareness in
night operations and stated remote pilots were insufficiently trained
to address adequately the complexity of the airspace. After reviewing
these concerns about midair collisions and situational awareness, the
FAA determined several existing operating requirements of part 107
combined with the requirements of this final rule provide a sufficient
level of safety to allow for night operations. Similar to the NPRM, the
final rule requires that remote pilots operating at night equip their
small unmanned aircraft with an anti-collision light visible for 3
statute miles, but adds the requirement for the anti-collision lights
to flash at a rate sufficient to avoid a collision.
    Many commenters appeared to misunderstand the purpose of anti-
collision lighting. The purpose of anti-collision lighting is not for
the remote pilot to maintain visual line of sight and see the
orientation of their small unmanned aircraft, but for the awareness of
other pilots operating in the same airspace. Section 107.29(b) already
requires that anti-collision lighting be visible for 3 statute miles
for civil twilight operations to help prevent midair collisions.
    AMOA and AAMS, commenting jointly, questioned whether the FAA had
examined the available sightings data and confirmed its reliability as
its basis for expanding small UAS operations at night. The commenter
noted that data collected from 1998-2017 indicates 36% of all
helicopter air medical flights were conducted at night and 49% of the
accidents from 1998-2017 occurred during night operations, and that
routine night operations could put air medical flights at greater risk.
The commenter asserted the FAA did not adequately address the potential
threats posed by increased small unmanned aircraft activity in the
NPRM, particularly to helicopter air medical flights.
    The FAA analyzed available data, including thousands of waivers
allowing night operations, and determined allowing routine small UAS
operations at night, subject to compliance with certain requirements,
will be safe. Although the FAA reviews small unmanned aircraft sighting
reports, the FAA did not rely on those reports as justification for
this rule, because many of those reports are unverifiable due to a lack
of detailed information provided by the reporter of a small unmanned
aircraft sighting. Because small UAS operations under part 107 are
limited to 400ft AGL and below, the effect on helicopters of night
operations is minimal. Although the introduction of routine night
operations could introduce more complexity to the airspace,\65\
compliance with sufficient mitigations will provide for safe
operations.
---------------------------------------------------------------------------

    \65\ See: U.S. Helicopter Safety Team (USHST) Report Helicopter
Safety Enhancements; October 3, 2017. http://www.ushst.org/Portals/0/PDF/USHST%20LOCI%20UIMC%20LALT%20Final%20Report_2017Oct3.pdf.
---------------------------------------------------------------------------

    In addition, other risk mitigation measures limiting the risk of
midair collisions at night exist: Fewer general aviation aircraft fly
at the altitudes in which small unmanned aircraft operate. Manned
aircraft have restrictions on minimum safe altitudes, which places the
majority of operations well above the 400 ft AGL limit for part 107
operations. Pilots authorized to operate manned aircraft below 400 ft
AGL during daylight hours can visually see the terrain and obstacles to
navigate the airspace. At night, these visual cues do not exist and
many general aviation aircraft that could operate during daylight at
lower altitudes lack sophisticated equipment like night vision goggles,
a radar altimeter, Forward Looking Infrared, Radar, or a Heads Up
Display, typically found on military or emergency service aircraft.
Because general aviation aircraft may lack electrical systems such as
aircraft lighting, or other necessary safety features, operating such
aircraft at night would cause a significant increase in the level of
risk of the operation.
    NAAA voiced concern about pilot difficulty of spotting a small
unmanned aircraft while the pilot is operating at a very low altitude
in what is already a high task load environment. They pointed to a 2015
test conducted by the Colorado Agricultural Aviation Association, which
determined that it was difficult for pilots who conduct agricultural
aviation operations to detect and track a small unmanned aircraft at
the same time as maneuvering their aircraft for agricultural
operations. Pilots operating manned aircraft at low altitudes would
experience difficulty in identifying small unmanned aircraft operating
at night, but, as discussed previously, numerous mitigations exist to
decrease the likelihood of a midair collision. With regard to the
report made by the Colorado Agricultural Aviation Association, while
the study provided data, the report only tested four pilots operating
during daylight hours. In addition, the Agency disagrees with NAAA's
determination that night operations would be difficult to identify, as
operating with an anti-collision light at night would increase the
visibility of the small unmanned aircraft.
    Several commenters expressed concern about the risk small unmanned
aircraft pose for commercial aircraft. The period of flight in which a
manned, commercial aircraft is at or below 400 ft AGL is just prior to
landing and seconds after takeoff. These phases of flight occur in the
immediate vicinity of the runway, an area of airspace in which small
UAS operations under part 107 are prohibited from flying without
authorization. The requirement for anti-collision lights that are
visible for 3 statute miles and that have a flash rate sufficient to
avoid a collision, along with the existing requirements to maintain
visual line of sight, give way

to manned aircraft, and obtain authorization to operate in controlled
airspace are all practical mitigations to address the risks posed by
small UAS operations at night.

B. Knowledge Requirements for Remote Pilots Conducting Operations at
Night

    Only remote pilots who complete an updated aeronautical knowledge
test or updated training will meet the remote pilot qualification
requirements to act as pilot in command of a small UAS at night. As
with all persons who received their remote pilot certificate prior to
the enactment of this rule, part 61 pilots previously holding a remote
pilot certificate will also need to complete the updated training
before acting as pilot in command of a small UAS at night.
    The Agency proposed to revise the regulations to require that the
remote pilot complete a knowledge test or training concerning small UAS
operations at night. This rule finalizes those additions, as proposed.
Applicants who are eligible to obtain a remote pilot certificate must
complete an updated knowledge test prior to conducting operations at
night. This rule also requires existing holders of a part 107 remote
pilot certificate to complete updated training prior to operating as a
remote pilot at night.
    The updated knowledge test and training will assess applicants' and
pilots' knowledge of risks and situations that are not present during
daylight operations. The new testing and training will include
questions on anti-collision light requirements, when the anti-collision
light is allowed to be dimmed, how to determine aircraft position,
obstacle avoidance with lack of visual cues, what aircraft may be
conducting low level night operations, night physiology, circadian
rhythm effects, and other topics. Through this education, the remote
pilot will have the knowledge to operate a small UAS at night safely
and implement the appropriate protocols and tools to mitigate risks
they have identified for their operation.
    The updated testing and recurrent training required to conduct
night operations will be made available on the FAA website on March 1,
2021. This date provides a 15 day period for new applicants or current
Remote Pilot Certificate holders to complete the updated testing or
training, as applicable, for those who seek to conduct night operations
on the effective date of this rule.
    After the effective date of this rule, remote pilots operating
under a waiver received prior to the effective date will be allowed to
continue to operate at night under the provisions of that waiver
without meeting the updated recurrent training requirement for a period
of 60 days. All night waivers issued prior to the effective date of
this rule that authorize deviation from Sec.  107.29 Daylight Operation
terminate on May 17, 2021. This date provides time for waiver holders
to come into compliance with this rule and allow the holder to request
a new certificate of waiver, if applicable, prior to the termination
date.
    Several commenters suggested the night operation testing and
training be separate from the general part 107 training. One commenter
suggested the FAA offer incentive licensing endorsements, in which a
certain minimum score on the night operations section of the part 107
knowledge test would allow the remote pilot to operate a small UAS at
night. Some commenters, including Airlines for America (A4A),
recommended the FAA impose a nighttime practical training requirement
for remote pilot certification, particularly for pilots who do not hold
a part 61 certificate or related nighttime endorsement. The inclusion
of night operations does not introduce a level of complexity to the
operations conducted under part 107 that would necessitate practical
training. A single curriculum for both the aeronautical knowledge test
and recurrent training will cover all necessary topics for operations
under part 107. To operate at night, all remote pilots must either take
the updated initial knowledge test or complete the applicable recurrent
training that includes the new subject areas on night operations. In
this regard, it is necessary to standardize the training and testing;
incentive licensing endorsements the FAA issues for other skills are
not appropriate for knowledge testing or training. The standardization
this rule provides is appropriate for small UAS operations at night.
    A few commenters requested the Agency decline to require pilots who
have certificates under part 61 to complete recurrent training specific
to night operations. The Agency disagrees. Small UAS operations at
night have operational needs and safety requirements that differ from
manned aircraft operations at night. This rule requires part 61 pilots
to take the recurrent training in its entirety, including those
sections pertinent to night operations, despite having taken manned-
aircraft-specific nighttime training for their part 61 certification.
Several commenters made suggestions regarding the content of the test
and course material. Some commenters, including AOPA, AMOA, and AAMS,
suggested the initial testing, initial training, and recurrent training
for night operations emphasize collision avoidance with other unmanned
aircraft and manned aircraft. They asked whether the additional testing
for night operations will specifically address limited depth perception
and difficulty of perceiving reference points during night operations.
Under this rule, in addition to the existing testing and training that
addresses collision avoidance, additional subject areas will address
night physiology, lighting requirements, and night illusions from the
perspective of the remote pilot.
    One commenter suggested the FAA produce a study guide with subject
matter specific to small UAS operations at night. The FAA plans to
publish a revised Small Unmanned Aircraft Systems Airman Certification
Standard (ACS) and a revised iteration of Advisory Circular (AC) 107-2
to address changes pertaining to the certification of small UAS remote
pilots. This AC will also provide updated guidance for conducting small
UAS operations in accordance with part 107. In response to the
suggestion that the FAA produce a UAS-specific study guide with subject
matter relevant to operating at night, the FAA has updated the Remote
Pilot--Small Unmanned Aircraft Systems Study Guide (FAA-G-8082-22), and
renamed it Small Unmanned Aircraft Systems Operating Handbook (FAA-H-
8083-24).\66\ Furthermore, applicants may supplement through self-
study, which could include taking an industry-offered online training
course, an in-person training course, or any combination thereof.
---------------------------------------------------------------------------

    \66\ See ``Part 107 Knowledge Test Suggested Study Materials,''
available at FAA Policy Document Library, at https://www.faa.gov/uas/resources/policy_library/.
---------------------------------------------------------------------------

    One commenter suggested the Agency require one or more visual
observers who have taken the night vision test to participate in
operations at night. The visual line of sight requirement in part 107,
combined with other requirements, is sufficient to address the risk
associated with night operations; therefore, this rule does not require
a night vision test for remote pilots or visual observers. One
commenter said the proposal would impose more cost on the operator and
increase the barriers to UAS night operations. Another stated the
additional testing and training requirements would not improve the
safety of night operations. This rule establishes the recurrent
training process, the completion of which will be free of cost to
remote pilots. This rule

does not impose any changes to the costs of the initial knowledge test.

C. Anti-Collision Lighting

    The NPRM stated the small size of most small unmanned aircraft (as
compared to their manned counterparts), combined with reduced
visibility during darkness, favors requiring anti-collision lighting to
reduce the risk involved with small UAS operations at night. The Agency
stated it anticipated the presence of anti-collision lights would
provide other aircraft with awareness of a small unmanned aircraft's
presence. As stated in the NPRM, the anti-collision light is not the
sole means of avoiding midair collisions between a manned aircraft and
a small unmanned aircraft. Prior to and throughout the operation, this
rule requires the remote pilot to ensure the anti-collision lights are
operating, are visible for 3 statute miles, and have a flash rate
sufficient to avoid a collision at the operating location. The anti-
collision light also does not relieve the remote pilot from complying
with the remaining requirements of part 107, which include yielding
right of way to all other aircraft. Although the risk of a midair
collision at night is low due to the altitude and volume of aircraft
operating at night, additional risk mitigation measures are appropriate
for the safety of other aircraft that may be operating at night. The
requirement to have an anti-collision light for night operations is
also consistent with the requirements in part 107 for small UAS
operations during civil twilight.
1. Flash Rate
    As noted in the proposed rule, the FAA's requirement for anti-
collision lights for twilight operations under the final rule for part
107 was based on the daylight operations requirements for ultralight
vehicles.\67\ Such vehicles may only operate during civil twilight
hours as long as they are equipped with ``an operating anti-collision
light visible for at least 3 statute miles.'' \68\ When promulgating
that requirement, the FAA clarified that such anti-collision lights are
``any flashing or stroboscopic device that is of sufficient intensity
so as to be visible for at least 3 statute miles.'' \69\ Given the
comments received in response to the NPRM, this rule provides
additional clarification concerning the anti-collision light
requirement. As demonstrated by the comparison to ultralight anti-
collision lights above, requiring anti-collision lights for operations
during both civil twilight and at night to flash, rather than be
static, is appropriate. This rule requires anti-collision lights used
in accordance with Sec.  107.29 to flash at a sufficient rate to avoid
a collision.
---------------------------------------------------------------------------

    \67\ 81 FR 42064, 42103 (citing 14 CFR 103.11, which states no
person may operate an ultralight vehicle except between the hours of
sunrise and sunset, but permitting operations during certain periods
of twilight).
    \68\ 14 CFR 103.11(b)(1).
    \69\ 47 FR 38770, 38773 (September 2, 1982).
---------------------------------------------------------------------------

    Many commenters expressed support for the proposed anti-collision
lighting requirement, with some commenters recommending changes or
additions to the requirement. Some commenters opposed the requirement.
Several commenters addressed specific characteristics of the anti-
collision lighting, including flash rate.
    The Helicopter Association International (HAI), along with A4A,
AGC, NAAA, the Experimental Aircraft Association (EAA), and the
American Association of Airport Executives (AAAE), stressed the need
for standardization in unmanned aircraft anti-collision lighting, with
respect to flash rate, signature, visibility requirement, intensity,
type of lighting, and configuration. A few commenters recommended the
FAA work with industry to develop standards specific to small unmanned
aircraft or rely on existing standards for manned aircraft. A commenter
recommended clarifying the requirement in the proposed rule.
    While the NPRM only proposed small unmanned aircraft have an anti-
collision light, the Agency has since determined the anti-collision
lights should flash. In addition to the requirement for the light to be
visible for 3 statute miles, anti-collision lighting with a sufficient
flash rate to avoid a collision will aid in creating awareness to all
pilots of the presence of the small unmanned aircraft.
    Under this rule, the remote pilot is responsible for ensuring the
anti-collision lights are operating, are visible for 3 statute miles,
and have a flash rate sufficient to avoid a collision at the operating
location, both prior to conducting and during each night operation. The
performance-based requirements for anti-collision lighting--with regard
to intensity, flash rate, fields of coverage, and other relevant
characteristics--will ensure the small unmanned aircraft is
sufficiently visible to other aircraft. The remote pilot may rely on
manufacturer statements indicating the anti-collision lighting is
visible for 3 statute miles and has a flash rate that is sufficient to
comply with the requirements of this rule. However, the remote pilot
ultimately remains responsible for verifying that anti-collision
lighting is operational, visible for 3 statute miles, and has a flash
rate sufficient to avoid a collision at the operating location.
    The FAA does not require manned aircraft pilots to distinguish
between the lights for airplanes and rotorcraft, or antennas and
windmills, but only to avoid those obstacles. This requirement,
therefore, will result in the small unmanned aircraft becoming more
conspicuous to other operators, regardless of whether other operators
identify it as a small unmanned aircraft. A manned aircraft pilot would
be most likely to distinguish movement of external lighting against a
stagnant, dark background rather than specific lighting
characteristics.
2. Design of Anti-Collision Lights
    The Agency proposed to require small unmanned aircraft operating at
night to have an anti-collision lighting component visible for 3
statute miles, rather than a light that fulfills prescriptive design
criteria. The proposed rule requested comments regarding whether a
specific color or type requirement should apply to the anti-collision
light, as well as an explanation of how a prescriptive standard might
ensure safety of the small UAS operations.
    The FAA received numerous comments addressing a color requirement
for the anti-collision lights. Comments in support of performance-based
requirements for anti-collision lights outnumbered those in favor of
more prescriptive requirements. Many commenters opposed the idea of
specific anti-collision lighting color or type requirements, including
Small UAV Coalition, AUVSI, News Media Coalition, the U.S. Chamber of
Commerce, APPA, EEI, and NRECA, commenting jointly; the People's
Republic of China; DJI; Skydio; and numerous individuals.
    Commenters opposed to a specific color standard generally noted a
prescriptive requirement could stifle innovation without providing any
safety benefits. A number of individual commenters stated no specific
color or type of lighting should be required, as the FAA has not
included such a requirement for waivers that permit operations at
night. DJI commented that a different, or additional, lighting
requirement from those provided in the part 107 waivers would require
manufacturers to develop new designs and equipment without apparent
benefit. Both DJI and the People's Republic of China asked for
scientific data in the event the Agency requires specific colors for
anti-collision lights.
    Several commenters explicitly supported requiring some kind of
color

or type requirement for anti-collision lights. Some commenters
suggested requirements for plain red and white lights would suffice,
but emphasized the FAA should not require color definitions as detailed
as those codified at Sec.  23.1397. AOPA noted the proposed rule does
not identify whether the Agency considers white strobe lights, red
beacon lights, or if any color or lighting configuration as sufficient
for anti-collision lights that are visible for at least 3 statute
miles. Another commenter similarly recommended a red (front) and white
(rear) color pattern. Several commenters recommended following the
existing practices of manned aviation operators regarding the colors of
lights. Other commenters recommended the FAA impose specific colors or
color patterns for certain situations, such as when an aircraft
descends or experiences an operational system failure. One commenter
recommended the FAA consider requiring colors that are compatible with
color-blindness. NIOSH stated specifying an anti-collision light color
would improve safety, given that color is a significant factor for
improving the visibility of an object.
    Prescriptive color requirements would unnecessarily restrict
design. Since August of 2016, the FAA has issued over 4,000 waivers
that permit operations at night. While none of these waivers include
color or type requirements, many of these small unmanned aircraft
utilize white anti-collision lights to meet the 3 statute mile
visibility requirement. No commenters explained how a prescriptive
color requirement would mitigate the risk of operations at night.
Overall, requiring a specific color or type of light is unnecessary.
This rule's performance-based requirement is appropriate for the level
of risk associated with night operations and allows for flexibility as
technology evolves.
    The NAAA stated some small unmanned aircraft may be equipped with
anti-collision lights that are not compatible with the Night Vision
Goggles (NVG) that agricultural pilots typically wear. In these cases,
the pilot would not see the small unmanned aircraft at night while
looking through the NVG. The FAA recognizes the NVG incompatibility
with certain lighting may be an issue for agriculture and medical
helicopters. Existing operational regulations specific to the use of
NVGs for manned pilots limit hazards to manned aircraft, making
specific color or design elements for small unmanned aircraft
unnecessary. While this rule does not require specific characteristics
of the anti-collision lighting, remote pilots remain obligated, before
each operation, to consider the environment in which they are
operating, particularly in areas that are known to have regular
agricultural operations at night.\70\
---------------------------------------------------------------------------

    \70\ See 14 CFR 107.49(a), which requires remote pilots in
command to assess the operating environment and consider risks to
persons and property in the immediate vicinity of the intended
operation, prior to each operation.
---------------------------------------------------------------------------

3. Waivers
    The NPRM proposed making the anti-collision lighting requirement
for small UAS night operations subject to waiver and invited comments
on this aspect of the proposal. The Agency stated it would consider
granting a certificate of waiver allowing nighttime small unmanned
aircraft operations without an anti-collision light visible for 3
statute miles if an applicant demonstrates sufficient measures to
mitigate the risk associated with the proposed operation. As discussed
later in this section, allowing waivers of the anti-collision lighting
requirement will accommodate unique operational circumstances without
reducing safety.
    EPIC opposed allowing waivers of the anti-collision lighting
requirement for small UAS operations at night, noting concerns about
security, privacy, and the potential for nefarious use. Neither this
rule nor any potential waivers from the anti-collision requirement
authorize the use of small unmanned aircraft for criminal activities.
All persons requesting a waiver from the anti-collision requirement
must include a description of the proposed operation and explain how
they will mitigate any risks. The FAA will only issue waivers for
operations that can occur safely.
    AMOA and AAMS, commenting jointly, asked the Agency to clarify
under what conditions it would grant a waiver of the anti-collision
lighting requirement. The FAA expects waiver applicants to establish a
deviation from the anti-collision lighting requirement would not reduce
the level of safety of the operation. The FAA declines to prescribe
specific criteria that would apply to all applications for waiver, as
doing so would be impractical. In response to comments suggesting the
FAA should develop separate processes for law enforcement and first
responders, the FAA declines to create a separate process for a
particular subset of part 107 operators.

D. Position Lighting Not Required

    The proposed rule did not provide a requirement for position
lighting. The Agency invited comments from the public, however, on
whether it should require position lighting, in addition to the anti-
collision lighting.
    Several commenters, including AOPA, EPIC, and AMOA and AAMS,
commenting jointly, recommended requiring position lighting for night
operations. Several of these commenters said the position lighting
should be similar to those found on manned aircraft. AOPA noted that
night operations are inherently challenging and visual line of sight
would be better maintained with lights that aid in determining
directional movement of the aircraft. EPIC agreed that small unmanned
aircraft position lighting would be important for collision avoidance
and to convey the position of the small unmanned aircraft to manned
aircraft. The Director of the Autonomous Aerial Systems Office at the
University of Montana encouraged the FAA to require position lighting
in addition to anti-collision lighting that is consistent with current
navigational standards, stating this requirement would improve safety
in see-and-avoid situations in addition to improving remote pilots'
situational awareness of aircraft position.
    Many commenters supported the FAA's decision to not require
position lighting for small unmanned aircraft. For example, DJI stated
position lighting should not be required ``because in many
circumstances the remote pilot has the ability to determine the
position, direction and orientation of the drone in other ways at
night.'' DJI also noted it might be helpful at times to turn off the
position lighting to capture the type of data required for the
operation without interference of these lights, which are typically
more visible to the on-board camera or sensor than other lights because
they are located at the ends of motor arms. Several commenters noted
that, although position lighting may provide a visual reference to
determine the location of the small unmanned aircraft, it may not
provide accurate information about the orientation of the small
unmanned aircraft in flight.
    Position lighting might assist a remote pilot in meeting the
applicable visual line-of-sight requirements in Sec.  107.31(a), such
as knowing the unmanned aircraft's location, attitude, altitude, and
direction of flight. However, this rule does not require position
lighting because it is not the only means by which a remote pilot could
meet these requirements. Although position lighting is not necessary
for safe operation, a remote pilot may use position lighting if he or
she determines

it would be the best solution for safe operation.

E. Miscellaneous Night Operations Considerations

    AMOA and AAMS also noted the NPRM does not discuss testing for the
acuity of a remote pilot's night vision and said they believe remote
pilots should be required to attest annually to this visual capability.
As discussed in the 2016 final rule, operations under part 107 do not
require airman medical certificates, given the low risk associated with
small UAS operations, the limited operational range of visual line of
sight operations, and the requirement that the remote pilot may operate
only within their capabilities.\71\ As stated in the part 107 final
rule, even with normal vision, a small unmanned aircraft might be so
small that the operational space must be reduced to meet the visual
line-of-sight requirements of Sec.  107.31. Furthermore, the FAA
prohibits a person from manipulating the flight controls of a small UAS
or acting as a remote pilot in command or visual observer if he or she
knows or has reason to know that he or she has a physical or mental
condition that would interfere with the safe operation of a small
UAS.\72\
---------------------------------------------------------------------------

    \71\ 81 FR 42064, 42159-42160.
    \72\ 14 CFR 107.17.
---------------------------------------------------------------------------

    Some commenters requested the rule include additional requirements
on the remote pilot, on the small unmanned aircraft, or on the
operating environment for operations at night. MAC said regulations
allowing night operations must ensure the safety of all aircraft
operations in both the airport environment and the NAS. They also said
the FAA should establish measures to identify clearly a small unmanned
aircraft at similar distances to those that apply to manned aircraft.
Exclusions from these requirements could include the use of small UAS
for the purposes of airport safety, security, and operation activities,
especially in situations of emergency response. A commenter suggested
requiring remote pilots perform their intended night operations during
the day prior to execution, map out the flight path, and ensure
awareness of any obstacles. Commenters requested altitude restrictions,
speed restrictions, and distance or operational radius limitations for
night operations. A commenter also suggested requiring the remote pilot
to have a radio on the appropriate frequency to detect any air traffic
in the area. The current regulations under part 107, combined with the
requirements in this final rule, contain adequate restrictions for
operations at night.\73\ As discussed earlier, as of September 2020,
the FAA has issued over 4,000 waivers allowing nighttime small UAS
operations since August 2016. These operations have been conducted
safely and the Agency does not have data indicating that the
restrictions in this rule would be inadequate.
---------------------------------------------------------------------------

    \73\ See 14 CFR 107.19, 107.31, 107.37, 107.41, 107.43, 107.49,
107.51.
---------------------------------------------------------------------------

    A commenter believed the FAA should require that remote pilots
operating at night be AMA members, register their small unmanned
aircraft with the FAA, and use ``tracking'' lighting for both day and
night operations. The FAA requires registration for all small unmanned
aircraft that operate under part 107. This requirement is sufficient
for providing the FAA an avenue for oversight. Furthermore, as noted
earlier, remote pilots are not prohibited from using position (or
``tracking'') lighting to assist in meeting the visual line-of-sight
requirement; however, for the reasons stated above, this rule does not
require position lighting.
    NAAA recommended all small UAS be equipped with ``ADS-B In-like''
technology. NAAA and an individual commenter both suggested all small
UAS operating under part 107 be equipped with technology that would
allow them to sense the presence of and avoid manned aircraft. Part 107
requires remote pilots to maintain visual line of sight of the small
unmanned aircraft at all times and give the right of way to all
aircraft. Manned aircraft are not required to be equipped with ADS-B
Out in all classes of airspace. For example, ADS-B Out is not required
in Class G airspace. Therefore, requiring ADS-B In for small unmanned
aircraft would not be sufficient in all circumstances to aid the remote
pilot in detecting manned aircraft. Given this existing requirement,
requiring ADS-B In-like technology is not necessary.
    NAAA also suggested, to operate safely at night, small unmanned
aircraft should have a registered N-number on an indestructible and
unmovable plate attached to the small unmanned aircraft and should have
an electronic identification and tracking technology so that it can be
tracked by law enforcement. The registration and marking requirements
as implemented by the Registration and Marking Requirements for Small
Unmanned Aircraft rule, and amended by the External Marking
Requirements for Small Unmanned Aircraft interim final rule, are
sufficient for operations conducted under part 107. The Agency declines
to impose additional registration requirements that would apply to
operations at night, as no safety benefit would result from such
requirements.

F. Effect on Human Activity

    The NPRM invited comments on whether characteristics or effects of
anti-collision lighting at low altitude could have an effect on normal
human activities, and if so, potential mitigations or alternatives the
FAA should consider. Some commenters stated anti-collision lighting
could affect human activities.
    NIOSH stated, ``[i]t is reasonable to assume that in some
situations anti-collision lights could distract people'' who are
working and that, depending on their activities, this effect could have
significant safety risks. NIOSH said it is not aware of any evidence
supporting a mitigation strategy and recommended ``exploring potential
mitigation methods that follow the hierarchy of controls.'' This rule
does not require use of the hierarchy of controls for small UAS
operations at night because considering every possible scenario or
assessing how distracting anti-collision lights may be to non-
participants is not possible. Anti-collision lighting in night
operations is a critical component in making small unmanned aircraft
sufficiently conspicuous when operating under part 107. The safety need
for such lighting outweighs the concerns these comments present.
    Motorola Solutions stated anti-collision lighting at low altitudes
could affect normal human activities associated with lights coming from
unidentified sources and with unknown justification. The commenter said
operations performed by public safety officers can mitigate the effect
of unidentified unmanned aircraft light sources by replacing or
augmenting the anti-collision lights with other lights such as those
officers use for public safety operations. Requiring specific colors or
additional lights for certain types of operations will not reduce the
effect on human activity.
    Droneport Texas, LLC said anti-collision lighting might startle or
distract those engaged in normal human activities. To mitigate such
distractions, the commenter recommended a remote pilot be allowed to
reduce the intensity of the anti-collision lights that are ``observable
uniquely from the bottom side'' of the aircraft and change them from
flashing to a steady display. This rule requires all anti-collision
lights to flash at a rate sufficient to avoid a collision. Furthermore,
the remote pilot may use their discretion to determine

the circumstances under which they could safely reduce the intensity
of, but not extinguish, the anti-collision lighting.
    DJI commented that, to mitigate the effects of anti-collision
lighting on human activities, the FAA could encourage lights be placed
on top of the small unmanned aircraft where it is most visible to
manned traffic above and less bothersome to people below; however, DJI
said it is unaware of complaints from the public about lighting, so
such guidance should not be made a requirement. This rule does not
include any prescriptive design criteria for anti-collision lighting.
However, no provision of this rule precludes the placement of anti-
collision lights on the top of a small unmanned aircraft.
    One commenter suggested anti-collision lights could have an effect
on the public due to light pollution and visual disturbances caused by
the high intensity light and said the strobe effect could distract
manned aircraft. Another commenter stated the purpose of the anti-
collision lighting requirement is to call attention to the small
unmanned aircraft, ``in effect to distract the viewer.'' The commenter
further stated that, depending on the frequency and density of
operations, blinking or strobe lights could disturb people engaging in
traditional outdoor activities or even normal activities in their
homes. The Agency anticipates anti-collision lighting will be no more
distracting to individuals engaging in outdoor activities at night than
the light from various other artificial sources. Red and white lights
are often used at night, on vehicle headlights and taillights, street
lights, school bus strobes, and other sources. The benefits of allowing
small UAS operations at night in accordance with these requirements
outweigh the potential drawback of distracting people on the ground.
The FAA has carefully considered these concerns, however, and has
prepared a finding of the categorical exclusion that applies to this
rule, which assesses light emissions and visual impacts, and is
available in the public docket for this rulemaking.
    One commenter asked the FAA to consider allowing municipalities to
designate certain public, open spaces as night flight zones. One
commenter opposed operations at night and the use of anti-collision
lighting over parklands and ``Dark Sky'' communities where
municipalities restrict artificial lighting and suggested the FAA
follow restrictions on train horns and allow communities to request
prohibitions of night operations within the municipality. This
commenter further noted the FAA has responsibilities under the
Department of Transportation Act, Sec. 4(f), for any lighting if it
impairs in any way night skies, vistas, and contemplative recreation in
protected areas such as wilderness and parks.
    The National Conference of State Legislature and the National
Association of Counties stated the importance of State and local
authorities' ability to regulate UAS on a State and county level. One
commenter suggested allowing different UAS regulations in different
states. Other commenters expressed concerns about local entities
placing requirements on the airspace and operating requirements.
    States and municipalities may use their police powers, such as
those relating to land use, zoning, privacy, anti-voyeurism, trespass,
and law enforcement operations, to address small UAS operations in the
community. Through their land use and zoning power, municipalities have
authority to determine the placement of aircraft takeoff and landing
areas within the community. However, municipalities do not have
authority to enact operational restrictions on aviation safety or the
efficiency of the navigable airspace, including regulation of unmanned
aircraft flight altitude, flight paths or operational bans. The
applicability of the Department of Transportation Act, Section 4(f), is
discussed in the supporting documentation for the categorical exclusion
documentation, which is included in the public docket for this
rulemaking.
    All aircraft operations in the navigable airspace, whether manned
or unmanned, and whether during the day or at night, are regulated by
the Federal government. Congress has long vested the FAA with authority
to regulate the areas of airspace use, management, and efficiency; air
traffic control; safety; navigational facilities; and aircraft noise at
its source.\74\ In addition, a citizen of the United States has a
statutory public right of transit through the navigable airspace.\75\
The FAA is aware of the International Dark-Sky Association and its work
in encouraging communities, parks, and protected areas to preserve and
protect dark sites through responsible lighting policies and public
education. Designated dark sky communities would be free to request UAS
operators minimize nighttime operations, citing their community's
dedication to the preservation of the sky through the implementation
and enforcement of outdoor lighting ordinances to promote responsible
lighting and dark sky stewardship. However, under the Federal statutory
and regulatory framework, communities would not have the authority to
prohibit small UAS operations at night or regulate small unmanned
aircraft lighting.
---------------------------------------------------------------------------

    \74\ See 49 U.S.C. 40103, 44502, and 44701-44738.
    \75\ See 49 U.S.C. 40103(a)(2).
---------------------------------------------------------------------------

X. Part 107 Remote Pilot Knowledge Testing and Training

    The NPRM proposed to maintain the initial knowledge test
requirement and initial training requirement for persons seeking to
obtain a remote pilot certificate with a small UAS rating.\76\ However,
with respect to recency of experience requirements, the FAA proposed to
require recurrent training every 24 calendar months in lieu of the
recurrent knowledge testing.\77\ Additionally, the NPRM proposed to add
a knowledge area covering operations at night for the initial knowledge
test, initial training, and recurrent training. The NPRM also proposed
to revise the list of knowledge areas for remote pilots, requiring
inclusion of the same list of knowledge areas on both the initial
knowledge test and the recurrent training for pilots who hold a remote
pilot certificate under Sec.  107.65(b). As for pilots who already hold
a pilot certificate under part 61 as described in Sec.  107.65(c), the
NPRM proposed to require the initial and recurrent training to cover
identical knowledge areas. For the reasons discussed below, the Agency
adopts these proposed amendments without change.
---------------------------------------------------------------------------

    \76\ Under Sec.  107.61, to be eligible to apply for a remote
pilot certificate, a person must pass an initial aeronautical
knowledge test covering the areas of knowledge specified in Sec.
107.73(a). Alternatively, if a person holds a pilot certificate
(other than a student pilot certificate) issued under part 61 and
meets the flight review requirements specified in Sec.  61.56, that
person may complete initial training covering the areas of knowledge
specified in Sec.  107.74(a).
    \77\ Recurrent training was already an option for any person
holding a pilot certificate (other than a student pilot certificate)
issued under part 61 provided the person also meets the flight
review requirements specified in Sec.  61.56.
---------------------------------------------------------------------------

A. Recurrent Training and Aeronautical Knowledge Recency

    Prior to this final rule, Sec.  107.65(a) and (b) required persons
to complete either an initial aeronautical knowledge test or a
recurrent aeronautical knowledge test within the previous 24 calendar
months prior to operating a small UAS. This final rule revises Sec.
107.65(b) to allow remote pilots to take recurrent training instead of
a recurrent aeronautical knowledge test. People who hold a part 61
pilot certificate (other than a student pilot certificate) who have
completed a

flight review within the previous 24 calendar months in accordance with
Sec.  61.56 may continue, under Sec.  107.65(c), to complete either
initial or recurrent training covering the areas of knowledge specified
in Sec.  107.74.
    Recurrent training ensures remote pilots maintain ongoing
familiarity with small UAS operations and the provisions of part 107.
Moreover, remote pilots can complete recurrent training online, which
provides a less costly option and results in the remote pilot
maintaining a level of knowledge comparable to receiving recurrent
testing. The FAA's use of online training enables the FAA to adapt the
training as necessary as technology or regulations change.
    The rule continues to allow an eligible person who holds a part 61
pilot certificate (other than a student pilot certificate) to complete
training on the knowledge areas specified in Sec.  107.74 when seeking
a remote pilot certificate.\78\ Furthermore, the rule allows all remote
pilots to complete recurrent training online every 24 calendar months,
in place of a recurrent knowledge test. The rule amends the
aeronautical knowledge test and training requirements for remote pilots
provided in Sec. Sec.  107.73 and 107.74 to include a new knowledge
area related to operating a small UAS at night. For more information
about the testing and training on the night operations knowledge area,
please see Section IX.B.
---------------------------------------------------------------------------

    \78\ In order to be eligible to obtain a remote pilot
certificate under Sec.  107.65(c), the person must satisfy the
flight review requirements of Sec.  61.56.
---------------------------------------------------------------------------

    This final rule requires the initial knowledge test and the
recurrent training cover identical areas of knowledge under Sec.
107.73. Similarly, for eligible part 61 pilots, the initial training
and recurrent training will cover the same knowledge areas under Sec.
107.74. The FAA is concurrently updating the part 107 Airman
Certification Standards (ACS), the initial aeronautical knowledge test,
the part 107 certification course for eligible part 61 pilots, and the
recurrent training.\79\ The updated aeronautical knowledge test and
updated training replaces the current knowledge test and training after
the effective date of the rule. Both the updated aeronautical knowledge
test and the updated training will be available on March 1, 2021.
---------------------------------------------------------------------------

    \79\ https://www.faa.gov/training_testing/testing/acs/.
---------------------------------------------------------------------------

    NASAO asked that the recurrent education make pilots aware of
updates to operating rules, rather than retesting the initial knowledge
test. One commenter believed there should be a ``grading scale'' to
ensure pilots have stayed current on operations and regulations.
Another commenter agreed that it was likely that operators would need
to take refresher training, but suggested that if an individual scores
above a certain level on their initial knowledge test, the FAA exclude
that person from having to take recurrent training. Several commenters
objected to the current 24-month interval for the testing and recurrent
training process. Commenters recommended a range of intervals for
recurrent training from 36 months to 5 years, or eliminating altogether
for ``professional operators.''
    Part 107 requires the recurrent training to cover applicable
regulations relating to small UAS rating privileges, limitations, and
flight operation. As a result, recurrent training will ensure remote
pilots are aware of current and updated operating rules. While a high
score on an initial aeronautical knowledge test may demonstrate initial
competency, knowledge is perishable and degrades over time. Online
recurrent training allows remote pilots to maintain critical knowledge
and keep abreast of dynamic issues, including changes to regulations,
that arise while ultimately completing the updated knowledge
requirements related to operating small UAS. Additionally, the Agency
finds the 24-month interval an appropriate time period. This recurrent
training interval is consistent with the requirement for manned
aircraft pilots meeting the requirement to complete a flight review as
required by Sec.  61.56. On completion of this recurrent training, a
printable completion certificate is available to demonstrate
aeronautical knowledge recency in accordance with the revisions to
Sec.  107.65. The FAA provides educational material on the FAA website
about updates to operating rules. AOPA commented that the FAA should
not be the exclusive provider of the required knowledge training
because there are numerous training courses offered by industry that
might be more effective and better meet the needs of the unmanned
aircraft operator. Another commenter asked the FAA to clarify what
training would qualify.
    The Coalition of Airline Pilots Association suggested the FAA
require all small UAS operators to meet the same operational recency
and testing requirements that are currently in place for manned
commercial airman certificates. ALPA noted that a person who
manipulates the flight controls of a small UAS should be a certified
pilot and pass a knowledge test, but objected that the proposed
requirement would allow an individual to be granted a remote pilot
certificate without assurance of practical experience with a small UAS.
Several commenters recommended specific practical training
requirements, including flight training for operations over people and
at night. One commenter believed an unprepared remote pilot may have to
resort to manual flight operation and may not be qualified for that
operation. AUVSI commented that any mandatory training involving
operations over people should be competency-based. They also
recommended the FAA consider how industry initiatives could support a
new training requirement to help ensure that small UAS operations occur
safely and in accordance with the rules. Another commenter wrote a
higher level of training should be required to operate a small UAS
commercially.
    The Agency continues to find that formal training, a practical test
for the issuance of a part 107 remote pilot certificate, and testing
requirements similar to those for part 61 commercial pilot
certificates, are not necessary. As discussed in the 2016 final rule,
the limitations of many small unmanned aircraft (e.g., size, ease of
landing, lack of people on board), combined with the operational
restrictions of part 107, minimize the need for flight proficiency
testing or formal training. A prescriptive formal training requirement
is not necessary for part 107 operations. Instead, this rule allows
remote pilot certificate applicants to attain the necessary
aeronautical knowledge through any number of different methods,
including self-study, enrolling in a training seminar or online course,
or through one-on-one instruction with a trainer familiar with small
UAS operations and part 107. This performance-based approach is
preferable because it allows individuals to select a method of study
that works best for them.\80\ The FAA maintains this rationale for
operations over people and night operations. While the introduction of
operations over people and night operations may introduce additional
complexity to the NAS, the FAA developed the design and operational
requirements of this rule to balance the risk associated with the
incremental integration of small UAS. This rule discusses those risk
mitigations in more detail in Sections VI and IX, respectively.
---------------------------------------------------------------------------

    \80\ 81 FR 42064, 42160-42161.
---------------------------------------------------------------------------

    The FAA understands formal training would be overly burdensome to
an applicant. By requiring a person to only take a knowledge test for
certification, allowing online recurrent training, and not requiring
formal training, the FAA anticipates that this will result in cost

savings for remote pilots, as discussed in the regulatory impact
analysis. In addition, requiring formal training and a practical test
would not be consistent with the original framework of part 107.\81\
The FAA does not find it necessary to require practical testing to
obtain a remote pilot certificate. This approach is consistent with the
risk-based framework the 2016 final rule established.\82\
---------------------------------------------------------------------------

    \81\ For further discussion of rationale, please see 84 FR 3856,
3891-3892; 81 FR 42064, 42160-42171.
    \82\ 81 FR 42161.
---------------------------------------------------------------------------

    One commenter expressed concern that requiring the recurrent
training to be identical to the initial training for part 61 pilots
would be duplicative. Commenters asked the FAA to review the areas
already covered in the Private Pilot Airman Certification Standards and
keep duplicative or conflicting subject areas to a minimum. Another
commenter suggested that part 61 should include certification to be a
remote pilot.
    As discussed previously, knowledge degrades over time and requiring
recurrent training provides assurances that experienced remote pilots
remain aware of the specifics of operating a small UAS. Additionally,
as noted in the NPRM, the FAA finds it necessary to ensure consistency
in remote pilots' knowledge of the topic areas for the safe operation
of small UAS. To compensate for the differences between manned aircraft
and small unmanned aircraft, the list of knowledge areas includes
topics that are specific to small UAS operations. For example,
determining the performance of a manned aircraft is distinct from the
manner in which a pilot should determine the performance of a small
UAS; in this regard, the preflight check requirements of Sec.  107.49
are distinct from those codified in part 91 and in other, similar
regulations specific to manned aircraft.
    Several commenters objected to the cost associated with the initial
knowledge test and other commenters recommended the FAA lower the test
costs. However, one commenter wrote that everyone who owns a small UAS
should have to pass the initial knowledge test and recurrent testing to
eliminate the threat of people flying dangerously. One commenter
objected to having to pay a third party for recurrent testing. Some
commenters wrote that section 44809 of the FAA Reauthorization Act of
2018 requires the FAA to develop a test for recreational operations
that can be administered online and that this should be extended to
part 107 remote pilot certification, thereby reducing the cost to $50
associated with the initial knowledge test.
    The FAA clarifies that part 107 does not mandate formal training to
obtain a remote pilot certificate, and any cost that a part 107
applicant incurs for formal training is at their discretion.
Additionally, on March 1, 2021 the FAA will provide free, online
recurrent training to all remote pilots. The FAA enters into contracts
for testing delivery through a third party vendor. The FAA's rationale
to contract the initial test through knowledge testing centers remains
the same as it was in the 2016 final rule.\83\ This delivery model
allows the FAA to enter into a contract that provides a zero cost model
to the U.S. government and to the taxpayers. The testing vendor has
many locations throughout the United States that are close to large and
small population centers, therefore the requirement to take a knowledge
test at a testing location is not an undue burden on applicants. The
third party vendor is allowed to charge the contract rate to administer
a knowledge test; however, that amount is not to exceed $160. The FAA
Reauthorization Bill of 2018 requirement for the FAA to have an online
test for limited recreational operators does not apply to part 107
remote pilot certification.
---------------------------------------------------------------------------

    \83\ 81 FR 42064, 42169-70.
---------------------------------------------------------------------------

B. Other Comments Related to Initial Testing or Recurrent Training

    Several commenters expressed concern about the risks of people
without certification or training operating small UAS. Other
commenters, referencing certification of pilots and mandatory
registration for equipment, stated that all operators should be
licensed regardless of size or weight of small unmanned aircraft. The
FAA agrees that persons operating small UAS in the NAS should have
appropriate aeronautical safety knowledge, knowledge of applicable
rules, and knowledge of airspace constraints before operating in the
NAS. Part 107 rules require that all small unmanned aircraft are
registered and operated by a certificated remote pilot. The FAA
currently requires initial testing or training before the issuance of a
remote pilot certificate with a small UAS rating for operations under
part 107.
    Multiple commenters requested that both testing and training be
provided online, with several commenters specifically recommending that
the initial knowledge test be available online. The FAA agrees that in-
person recurrent testing under part 107 is no longer necessary for part
107 certificate holders. Therefore, to meet the recency requirements
under Sec.  107.65, any person who holds a part 107 certificate may
maintain recency of experience by completing an online training course.
For security reasons, the initial knowledge testing must be done in
person, similar to the regulatory framework for training under part 61.
    A commenter suggested that test questions for each online test be
pulled randomly from a larger set of questions so an applicant cannot
take the same test over and over until the applicant achieves a score
of 100 percent and would be required to learn the material. The part
107 knowledge tests are created from a large bank of questions that
were specifically drafted for small UAS remote pilot certification.
Although it is possible that a person could take the part 107 knowledge
test enough times that they would eventually see all of the questions,
and possibly get them all correct, this is not very probable especially
given the mandatory 14-day waiting period required before a person can
retake the knowledge test after a failure.\84\ In addition, a person
who is not prepared for the test, and does not have a working knowledge
of the material, will have a very low probability of passing the test.
The FAA will continue to administer knowledge testing in the same form
and manner that has proven effective for many years.
---------------------------------------------------------------------------

    \84\ Section 107.71.
---------------------------------------------------------------------------

    A commenter recommended the FAA define minimum standards for
training that would allow certain people to conduct operations without
requiring a waiver to operate over people or at night. This rule adopts
routine night operations and operations over people without the need
for waivers. Additionally, under part 107, the FAA does not maintain
minimum standards for training like those in part 61. For example, an
applicant for a remote pilot certificate with a small UAS rating does
not have to show that they have received formal training from a
certified instructor on the National Airspace System. As there are two
pathways for remote pilot certification, an applicant will have either
met a minimum testing standard via a knowledge test or they will have
taken training which will also test their knowledge. All persons who
hold a remote pilot certificate will also need to maintain currency by
taking currency training every 24 months from the month in which they
take and pass the knowledge test or training for certification. The
updated knowledge areas for the testing and training

requirements are the minimum standard for small UAS operations
conducted under part 107.
    Some commenters proposed the Agency tailor the part 107 knowledge
test to specific types of operators or certain topics and have
different tests based on the type of operation. A few commenters
recommended the part 107 knowledge test be redesigned to better test
commercial small UAS pilots piloting skills and safe operations. These
commenters noted the part 107 knowledge test appeared to derive from
manned pilot standards and the Pilot Handbook of Aeronautical Knowledge
(PHAK), which the commenters argued do not apply directly to small UAS
flights. Another commenter asked for knowledge and testing specific to
small UAS operations over people, such as first aid training. A
commenter suggested the FAA have two separate knowledge tests: A basic
test for hobbyists and small businesses, etc., and a more complex test
for large commercial operations, large, fixed-wing small unmanned
aircraft, or those flying in urban areas or all over the country.
    All test questions were developed specifically for the part 107
remote pilot certification. Some of the required test questions,
however, are also applicable to manned aircraft, such as questions
related to airspace regulations that apply to all aircraft. The FAA
carefully evaluated the knowledge test areas to ensure they remain
comprehensive. The small UAS Airman Certification Standards and
knowledge test contain each of the topics required for knowledge and
testing, and the Agency does not consider remote pilot first aid
training a necessary requirement for such low-risk operations. The
requirements are the same for anyone flying under part 107; therefore,
the knowledge and training should be the same for all certificated
remote pilots under part 107.
    Some commenters suggested passing the part 107 knowledge test or
the level of the remote pilot's training and experience should permit
them certain privileges. A commenter wrote that passing the part 107
test should grant part 107 pilots the ability to fly over people and
beyond line of sight. A commenter requested the FAA add levels of
additional authorization for a remote pilot to fly over people, carry
payloads, or fly at night based on their levels of training and
experience added as ratings to the certificate. One commenter stated
that part 61 pilots should have more ``capability and freedom,'' as
they have already demonstrated their responsibility by obtaining a part
61 certificate. Another commenter asked the FAA to educate businesses
that use remote pilots without a part 107 certificate to conduct
commercial small UAS operations.
    The FAA declines to add authorizations or ratings to the remote
pilot certification in this final rule. A person who holds a remote
pilot certificate is afforded all privileges of the certificate. The
FAA has taken the approach of tailoring its requirements for night
operations and operations over people with the expectation that all
part 107 pilots have the same level of certification. The Agency did
not propose authorizing routine beyond visual line of sight operations
in this rulemaking; therefore, adding authorizations or ratings to
address such operations is beyond the scope of the rule. Additionally,
part 107 does not prohibit payload-bearing operations, but the small
unmanned aircraft and any payload must be less than 55 pounds and must
follow all applicable regulations for safe operation. Remote pilots who
operate a small UAS under part 107 without an FAA-issued pilot
certificate are subject to the FAA's Compliance and Enforcement Policy.
Additional educational material is available on the FAA website.\85\
---------------------------------------------------------------------------

    \85\ https://www.faa.gov/uas.
---------------------------------------------------------------------------

XI. Other Amendments to Part 107

A. Presentation of Remote Pilot in Command Certificate

    The Agency proposed to add to Sec.  107.7 the requirement for
remote pilots to present their remote pilot in command certificate with
a small UAS rating as well as a form of identification to authorized
individuals on request. This update aligns the text of Sec.  107.7 with
Sec.  61.3(l). The existing rule requires the remote pilot in command,
owner, or person manipulating the controls of the small UAS to present
to the Administrator, on request, the remote pilot certificate with
small UAS rating and any other document, record, or report required
under part 107. The proposed change to Sec.  107.7 expanded the list of
authorized individuals who might request the information, to include
authorized representatives of the National Transportation Safety Board
(NTSB) or Transportation Security Administration (TSA); or any Federal,
State, or local law enforcement officer. Under the proposed rule, the
form of identification would include any identification containing the
person's photograph, signature, date of birth, and permanent mailing
address.
    Several commenters expressed support for the proposed changes to
Sec.  107.7. These commenters stated the proposal aligns with Sec.
61.3(l) requirements, would help enforce a safe UAS operating
environment, or would aid investigations into violations of Federal and
State rules. Other commenters indicated Sec.  107.7 should include
modifications or additional requirements. Individual commenters
recommended the FAA allow for the use of electronic credentials to
facilitate compliance with the requirement in a convenient manner. The
Agency declines to allow electronic credentials as a form of
identification, as the lack of standardization in electronic
credentials in the United States eliminates the ability of authorized
persons to verify the identity of the remote pilot. A commenter also
encouraged the Agency to allow a passport to be used as an
identification document even though it does not include a mailing
address. According to this commenter, allowing the use of a passport
would more closely match the part 61 identification regulation.\86\
Part 61 and the text the Agency proposed for Sec.  107.7 differ because
part 61 does not require identification for the purpose of Sec.
61.3(l) to include a mailing address. Although part 107 requires a
mailing address for the purpose of being eligible to take a knowledge
test under part 107,\87\ the Agency has determined a mailing address is
not necessary for adequate identification of a remote pilot in command
under Sec.  107.7. This rule, therefore, contains a revision to the
regulatory text to permit forms of identification that do not contain a
mailing address for the purpose of presenting identification in
accordance with Sec.  107.7.
---------------------------------------------------------------------------

    \86\ Section 61.3(l) requires presentation of an airman
certificate or other, specific type of certificate along with
``photo identification as described in [Sec.  61.3(a)(2)].'' Section
61.3(a)(2) does not specifically require the form of photo
identification include the person's mailing address.
    \87\ See 14 CFR 107.67(b).
---------------------------------------------------------------------------

    Two commenters suggested the FAA require the remote pilot in
command to present his or her certificate and identification only when
it is safe to do so, and does not pose a danger or hazard to persons,
property, or public safety. The FAA declines to impose requirements
based on prescriptive circumstances. However, authorized officials
should allow ample time for the remote pilot to provide a form of
identification and remote pilot certificate in a safe manner.
    NFL, MLB, NASCAR, and NCAA, in a joint submission, expressed their
support for the proposed changes to

Sec.  107.7, noting it is essential that local law enforcement
officials have the authority to request remote pilot certificates