the risk of all out failure ``provides an equivalent level of safety
for flight in populated areas.'' Airware further asserted that this
goes well beyond the requirements imposed in the countries that
currently allow for operations over populated areas like France, the
Czech Republic, Austria, Denmark, Italy, and Sweden (among others),
which ``are currently being conducted with extremely high levels of
safety.''
    ASTM pointed out that there are multiple approved industry
consensus standards under development to support operations over
people, in case the FAA decides to require compliance with industry
consensus standards for this requirement in the final rule. ASTM also
noted that precedent exists for the utilization of industry consensus
standards by Federal agencies in the United States. The commenter went
on to point out that the National Technology Transfer and Advancement
Act (NTTAA) mandates that all Federal agencies use technical standards
developed and adopted by voluntary consensus standards bodies, as
opposed to using government-unique standards. In addition, ASTM
asserted that, consistent with Section 12(d) of the NTTAA, OMB Circular
A-119 directs agencies to use voluntary consensus standards in lieu of
government-unique standards except where inconsistent with law or
otherwise impractical. ASTM further noted that OMB Circular A-119 also
provides guidance for agencies participating in voluntary consensus
standards bodies and describes procedures for satisfying the reporting
requirements of the Act.
    The FAA agrees that technology or additional mitigation, such as
airworthiness certification, may allow small unmanned aircraft to
safely fly over people in certain circumstances. Accordingly, the
flight-over-people restriction in this rule will be waivable. In order
to obtain a waiver, an applicant will have to demonstrate that he or
she has implemented mitigations such that small unmanned aircraft
flight over people can safely be conducted under the terms of a
certificate of waiver.
    The FAA also agrees with CEA that while this rule does not require
airworthiness certification, this rule also does not prohibit a small
UAS from voluntarily obtaining this certification. The FAA generally
agrees that having a small UAS meet an appropriate airworthiness
standard could increase safety to the point of permitting a small
unmanned aircraft to operate over persons who are not directly involved
in the flight operation (i.e., non-participants) and who are not under
a covered structure. The FAA may consider airworthiness certification
of the small UAS as mitigation to support an application for waiver
that would allow a small unmanned aircraft to operate over unprotected
non-participants.
    With regard to the use of industry consensus-standards, as noted by
ASTM, consensus standards for operations such as flight over people are
currently in development. As of this writing, those standards have not
yet been published. The FAA notes, however, that the level of safety
that must be demonstrated in order to obtain a waiver may be
demonstrated in a number of different ways. Once consensus standards
are published, the FAA may consider whether compliance with the
published consensus standards would be one way to demonstrate that the
proposed operation can be conducted safely under the terms of a
certificate of waiver. The FAA will also consider UAS-specific
consensus standards, once they are published, in future UAS
rulemakings.
    Several commenters said the proposed prohibition should not apply
when additional risk mitigating measures are employed. Southern Company
said the FAA should allow operations over any person who is located on
the property, easement, or right of way of the person or entity for
whom the small UAS is operated, and any person who is participating in
the activity for which the small UAS is being operated. The commenter
said such mitigating restrictions could include a lower operating
ceiling, lateral-distance limits, a lower speed restriction, and a
prohibition on operations over large gatherings of people. Qualcomm
similarly proposed that FAA permit operations over uninvolved persons
where risks are mitigated by the use of ``proven means of avoiding harm
to individuals via technologies that allow the device to land safely
under even extreme circumstances.'' The Rocky Mountain Farmers Union
urged the FAA to allow operations over non-participants ``under
circumstances when the UAS operator can maintain safe operation of the
UAS and either depart the area or safely land the UAS without risk to
unrelated persons on the ground.'' The Newspaper Association of America
asserted that the FAA should not prohibit news organizations from
overhead flight, ``provided that adequate precautionary measures are
taken to ensure that [UAS] are operated safely at all times.''
    The Mercatus Center at George Mason University said that the FAA
did not consider the benefits of allowing UAS operations over persons
not involved in the operation, and that the FAA overstates the risks of
operation in populated areas. The University asserted that, ``[u]pon
loss of positive control, unmanned aircraft can be programmed to safely
return to a base, or to simply hover in place.'' Thus, the University
continued, the risk to bystanders can be mitigated without a ban on
operation over uninvolved persons.
    NAMIC recommended that the FAA allow small UAS operations over
people not directly involved in the operation, as long as those
operations follow enhanced safety protocols, including, for example:
(1) That the small unmanned aircraft not loiter over a person or
persons for an extended period of time, but transition over them as
needed to reach a location where operating is permitted to complete the
flight; and (2) that an operator must operate the UAS at a sufficient
altitude so that if a power unit fails, an emergency landing can be
accomplished without undue hazard to persons or property on the ground.
Exelon Corporation said that the final rule should include reasonable
accommodations to allow for brief, low-risk exceptions to the ban on
flights over non-participating persons (e.g., flying across a road
during a survey of damage to power distribution lines in suburban
areas), and that ``proper safety precautions as well as signage,
education, and protocol can be put in place to mitigate any safety
concerns.''
    The Property Drone Consortium said that any UAS with ``special
safety features'' should be exempt from the ban on flight over non-
participants. Furthermore, the Consortium suggested the FAA mitigate
any safety concerns by requiring appropriate insurance coverage or
creating a suggested list of ``best practices'' for use in the
insurance industry. Similarly, the University of Illinois at Urbana-
Champaign said the proposed prohibition ``is onerous and
overprotective,'' and suggested instead

that insurance and equipment requirements could be employed ``to
promote responsible use of the UAS.''
    As discussed earlier, the restriction on flight over people in this
rule will be waivable. This will allow the FAA to consider, on a case-
by-case basis, any additional mitigations that are incorporated into a
small UAS operation. The FAA will grant a waiver request allowing small
unmanned aircraft flight over people if the applicant establishes that
his or her operation can safely be conducted under the terms of a
certificate of waiver. In response to comments suggesting an insurance
requirement in place of the flight-over-people restriction, the FAA
notes that, as discussed in section III.K.1 of this preamble, the FAA
lacks jurisdiction to mandate the purchase of liability insurance.
    An individual commenter suggested that operations in congested
areas be permitted with additional licensure, which the commenter said
``will assist the operator in recognizing potential hazards and risks
as well as the ability to assess those risks to ensure that these
hazards to the public be minimized.'' Another individual commenter
recommended an additional rating for operators to allow them to fly
``in cities and other crowded areas.'' The commenter said the operators
could be required to go through a more comprehensive certification
process, and the UAS could be required to have annual or semiannual
maintenance checks and be equipped with an automatically deployable
parachute system.
    As discussed earlier, the FAA considered and rejected additional
limitations on operations over congested areas because that approach
would needlessly limit small UAS operation over congested areas during
times when those areas are devoid of people. The FAA also does not
agree that additional remote pilot certification should be required to
operate over an empty area of operation, even if that area of operation
happens to be located in a congested area.
    The Stadium Managers Association suggested modifying proposed Sec.
107.39 to mirror the current section 333 exemption language which, in
addition to prohibiting flights over people, includes a prohibition
against flight over vehicles, vessels, and structures. Vision Services
Group similarly recommended prohibiting flight over people in a covered
structure.
    On the other hand, Edison Electric Institute, NRECA, the American
Public Power Association, and Continental Mapping suggested that the
exception allowing flight over people located under a covered structure
that can provide reasonable protection from a falling small unmanned
aircraft should be clarified to indicate that persons under cover in a
vehicle ``may qualify as being in a structure providing reasonable
protection.''
    This rule will allow flight over people located under a covered
structure capable of protecting a person from a falling small unmanned
aircraft because such a structure mitigates the risk associated with a
small unmanned aircraft flying over people. The FAA also agrees with
Edison Electric Institute, NRECA, the American Public Power
Association, and Continental Mapping that a small unmanned aircraft
should be allowed to fly over a person who is inside a stationary
covered vehicle that can provide reasonable protection from a falling
small unmanned aircraft. The FAA has modified this rule accordingly.
This rule will not, however, allow operation of a small unmanned
aircraft over a moving vehicle because the moving vehicle operating
environment is dynamic (not directly controlled by the remote pilot in
command) and the potential impact forces when an unmanned aircraft
impacts a moving road vehicle pose unacceptable risks due to head-on
closure speeds. Additionally, impact with a small unmanned aircraft may
distract the driver of a moving vehicle and result in an accident.
    Several commenters sought clarification on the NPRM's use of the
phrases ``directly participating in the operation'' (as used in
proposed Sec.  107.39(a)) and ``directly involved in the operation''
(as used in the preamble). Associated Equipment Distributors noted that
the preamble to the NPRM indicates that direct participation is limited
to the operator and the visual observer, but the proposed regulatory
language ``does not afford clarity on this point.'' SkySpecs proposed
allowing anyone who has permission to be on a construction site and is
covered by liability insurance to be covered by the definition.
    Edison Electric Institute, NRECA, and the American Public Power
Association said the definition of ``directly participating'' ``should
be expanded to include personnel engaged in related activities, such as
workers at a power plant a small UAS is being used to monitor or an
electric utility crew whose work the small UAS is being used to
assist.'' The organizations further proposed that such individuals
would qualify as ``directly participating in an operation'' if they had
received the pre-flight briefing described in proposed Sec.  107.49.
    Some commenters, including NBAA, the American Insurance
Association, FLIR Systems, the North Carolina Association of
Broadcasters, and Skycatch, felt that FAA should permit small UAS
operations over individuals not involved in the UAS operations when
those individuals consent to, or are made aware of, the operations.
Several State farm bureaus and NBAA urged the FAA to allow small UAS
operations over people not directly involved in an operation so long as
the operator notifies those people of the operation before it starts.
The American Farm Bureau Federation and a number of state farm bureau
federations said the definition should be expanded to include
individuals ``who have been made aware of the presence and approximate
flight path of the sUAS in their vicinity.'' The farm bureau
federations claimed that the risk of a small UAS endangering a
consenting individual working in a field who is not directly involved
in, but is aware of, a small UAS operation ``is simply too remote to
justify a blanket prohibition.'' \102\ AED proposed including
consenting individuals, such as employees and contractors at a
construction site, in the definition of ``directly participating in the
operation.'' The International Association of Amusement Parks and
Attractions also suggested that the definition of ``directly
participating in the operation'' include persons who have consented to
the operation of the UAS overhead.
---------------------------------------------------------------------------

    \102\ Other commenters who urged FAA to reconsider the proposed
prohibition as it applies to agricultural operations include the
National Farmers Union, National Corn Growers Association, National
Association of Wheat Growers, and the Virginia Agribusiness Council.
---------------------------------------------------------------------------

    Associated Builders and Contractors also proposed lifting the
restriction on flight over non-participants on a construction site, so
long as those people have been notified of the small UAS operations,
wear hard hats, and have been provided orientation regarding the
equipment prior to entering the work site.
    Kapture Digital Media questioned whether people can become
``directly involved'' in an operation if they are notified of the
operation by signs posted around the area of operation, or,
alternatively, whether people can only become ``directly involved'' in
an operation by signing a waiver. Vail Resorts noted that many of the
best uses of UAS technology at ski areas would necessarily involve some
temporary amount of flight over individuals who

are not ``necessary for the safe operation'' of the small UAS, which is
how the NPRM defined ``directly involved in the operation.''
Consequently, Vail asserted that a strict ban on operations over people
not ``directly involved'' in the operation ``could have the unintended
consequence of making many potentially critical ski resort drone
operations noncompliant with FAA regulations.'' As such, Vail said FAA
should broaden the definition of ``directly involved'' to include
``those people who are aware of and have consented to being involved in
the drone operation by, for example, reading particular signage or
signing a release.'' Similarly NoFlyZone.org said operations over non-
participants should be permitted provided the operator has advised all
non-participants to remain clear of the small UAS launch/recovery area,
and also advised all non-participants that the small UAS does not
comply with Federal safety regulations for standard aircraft.
    The National Ski Area Association (NSAA) pointed out that for UAS
operations that may involve operations near skiers and snowboarders, or
participants and spectators in special events, ski areas could inform
participants of the event and associated risks and could obtain consent
prior to using a UAS. NSAA suggested further that ski areas ``could be
obligated to determine, based on the event or assemblage of persons,
acceptable proximity parameters, either laterally or vertically.''
    The term ``directly participating'' refers to specific personnel
that the remote pilot in command has deemed to be involved with the
flight operation of the small unmanned aircraft. These include the
remote pilot in command, the person manipulating the controls of the
small UAS (if other than the remote pilot in command), and the visual
observer. These personnel also include any person who is necessary for
the safety of the small UAS flight operation. For example, if a small
UAS operation employs a person whose duties are to maintain a perimeter
to ensure that other people do not enter the area of operation, that
person would be considered a direct participant in the flight operation
of the small UAS.
    Anyone else would not be considered a direct participant in the
small UAS operation. Due to the potential for the small unmanned
aircraft to harm persons on the ground, the FAA does not consider
consent or the need to do other work in the area of operation to be a
sufficient mitigation of risk to allow operations over people. The FAA
considers the risks associated with allowing operations over directly
participating persons to be a necessary risk associated with the safety
of flight because if UAS crewmembers are prohibited from standing near
a flying unmanned aircraft, they may be unable to complete their
duties. Additionally, some small UAS operations require the aircraft to
be hand-launched or retrieved by a person, so it would not be possible
to conduct such operations without permitting operations over those
people.
    Further, the FAA notes that people directly participating in the
flight operation of a small unmanned aircraft have situational
awareness that provides them with increased ability to avoid a falling
unmanned aircraft. Conversely, a non-participant who has consented to
allowing operations overhead may not share the same situational
awareness and consequently may not be able to avoid being struck by a
small unmanned aircraft. For this reason, a remote pilot intending to
operate small unmanned aircraft over non- participants must apply for a
waiver under this part, which will allow the FAA to evaluate each
applicant's operation on a case-by-case basis.
    The American Fuel & Petrochemical Manufacturers and Employees,
Associated General Contractors of America, Skycatch, Clayco, AECOM, DPR
Construction, and the State of Utah Governor's Office of Economic
Development said operations over uninvolved persons should be permitted
at areas closed to the public (e.g., construction sites, movie sets),
as long as the uninvolved persons are aware of and consent to the
activity. The National Association of Broadcasters, National Cable &
Telecommunications Association, and Radio Television Digital News
Association, commenting jointly, pointed out that the FAA has already
granted a number of section 333 exemptions for aerial photography and
filming which have allowed small UAS flights over consenting production
personnel, and thus urged the FAA to define ``directly participating in
the operation'' to include persons who have ``implicitly consented to
the operation of the sUAS overhead by nature of their presence on a set
where sUAS filming is occurring.'' The Motion Picture Association of
America similarly asked the FAA to specify that ``all parties on a
closed set'' qualify as ``directly participating in the operation,''
thereby ensuring that current practices under the filming exemptions
are consistent with Sec.  107.39.
    As pointed out by the commenters, the FAA currently allows small
unmanned aircraft flight over people in only one type of situation: A
closed-set movie set which is a controlled-access environment where the
person in charge has extensive control over the positioning of people
who are standing near the small unmanned aircraft. The FAA currently
considers each movie-set exemption on a case-by-case basis through the
section 333 exemption process. The FAA will continue considering flight
over people on a movie-set on a case-by-case basis through the waiver
process in this rule. The FAA notes that this framework is consistent
with the regulatory framework used for motion picture and television
filming in manned-aircraft operations, where a waiver is usually
required prior to using an aircraft for filming purposes.\103\ The FAA
also notes that, as discussed in section II.C of this preamble, current
section 333 exemption holders who are allowed to fly over people when
filming a movie will be permitted to continue operating under their
section 333 exemption until they are able to obtain a waiver under part
107.
---------------------------------------------------------------------------

    \103\ See FAA Order 8900.1, vol. 3, ch. 8, sec. 1.
---------------------------------------------------------------------------

    With regard to flight over people in other controlled-access
environments, such as construction sites, the FAA will consider that
issue on a case-by-case basis through the waiver process. This process
will allow the FAA to consider the specific nature of the controlled-
access environment to determine how that environment would mitigate the
risk associated with flight over people.
    The Association of American Railroads said operations over railroad
personnel during a railroad incident investigation or routine railroad
inspections should be permitted. The Association noted that the risks
associated with such operations can be mitigated by giving those
personnel a small UAS operations and safety briefing before flight is
commenced.
    The FAA disagrees. While this rule will allow flight over direct
participants in a small UAS operation after they receive important
safety information, the information does not, by itself, completely
mitigate the risk posed by flight over people. As discussed earlier,
the reason this rule allows flight over direct participants in a small
UAS flight operation is because without this exception, those people
may be unable to complete their duties to ensure the safety of the
small UAS flight operation. People who are not directly participating
in the small UAS flight operation are not needed to ensure the safety
of that operation, and as such, this rule will not allow flight over
those people without a waiver.

    The Property Drone Consortium said homeowners inside their homes
while an inspection operation is conducted overhead, or homeowners who
are in their back yards while an inspection operation is conducted in
their front yards, should be considered ``protected'' for purposes of
the ban on flight over non-participants.
    A homeowner who is inside his or her home would be under a covered
structure and flight over him or her would be permitted if the home can
provide reasonable protection from a falling small unmanned aircraft.
However, a person who is inside his or her backyard would presumably
not be under a covered structure and could be injured by a falling
small unmanned aircraft. Accordingly, a person who is in his or her
backyard would not be considered protected if that backyard is not
covered.
    The Institute of Makers of Explosives asked the FAA to expand or
clarify the proposed prohibition on operation of a small UAS over
``most persons'' to clearly define the persons over whom UAS operations
may not be conducted. IME specifically recommended that a UAS not be
allowed to operate over any person conducting operations with
explosives under the jurisdiction of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, and that the restriction apply to
unauthorized, unrelated operators.
    As discussed earlier, this rule will prohibit operations over
people who are not directly participating in the flight operation of a
small UAS and who are not under a covered structure or in a stationary
covered vehicle that could reasonably protect them from a falling small
unmanned aircraft. This prohibition applies regardless of what the
person who is not directly participating in the small UAS flight
operation is doing.
    A number of commenters sought clarification as to what the FAA
considers to be an operation ``over a human being.'' Southern Company
asserted that, as written, the proposed provision could either be read
strictly, to prohibit operations directly overhead, or it could be read
more broadly, to prohibit operations directly overhead and within a
short lateral distance of the person. Kansas University UAS Program
similarly said the FAA needs to clarify whether by ``over a human
being'' means directly overhead or ``within an area that the aircraft
could come down on the person.''
    Similarly, NAMIC asked the FAA to provide further guidance as to
whether the small UAS operation is prohibited directly above persons or
``within a proximate area over persons.'' NAMIC acknowledged that it
does not have the FAA's understanding of aeronautics or physics, but
nevertheless stated its belief that a terminated UAS at 500 feet and
100 mph seems unlikely to fall directly onto a person standing directly
under the UAS at the time of the termination. An individual commenter
asserted that a small UAS flying towards a person, even if not directly
above that person, could still pose a threat. By way of example, the
commenter stated that a multi-rotor helicopter flying at a ground speed
of 30 mph at 400 feet AGL that experiences a catastrophic failure
``will transcribe a parabolic arc that will extend horizontally several
hundred feet in the direction of travel.''
    Matternet also stated that the proposed restriction ``appears to be
based on the faulty premise that aircraft only fall straight down when
they malfunction or when pilots err'' when, in fact, an aircraft in
flight will typically follow its original trajectory, subject to
aerodynamic forces and gravity. Thus, the company asserted, an
operation that passes directly over a person is not significantly more
dangerous than an operation that passes several linear feet, or even
tens of linear feet, away from that person on the ground.
    The term ``over'' refers to the flight of the small unmanned
aircraft directly over any part of a person. For example, a small UAS
that hovers directly over a person's head, shoulders, or extended arms
or legs would be an operation over people. Similarly, if a person is
lying down, for example at a beach, an operation over that person's
torso or toes would also constitute an operation over people. An
operation during which a small UAS flies over any part of any person,
regardless of the dwell time, if any, over the person, would be an
operation over people.
    The remote pilot needs to take into account the small unmanned
aircraft's course, speed, and trajectory, including the possibility of
a catastrophic failure, to determine if the small unmanned aircraft
would go over or strike a person not directly involved in the flight
operation (non-participant). In addition, the remote pilot must take
steps using a safety risk-based approach to ensure that: (1) The small
unmanned aircraft does not operate over non-participants who are not
under a covered structure or in a stationary covered vehicle; (2) the
small unmanned aircraft will pose no undue hazard to other aircraft,
people, or property in the event of a loss of control of the aircraft
for any reason (Sec.  107.19); and (3) the small UAS is not operated in
a careless or reckless manner so as to endanger the life or property of
another (Sec.  107.23). If the remote pilot cannot comply with these
requirements, then the flight must not take place or the flight must be
immediately and safely terminated.
    Several commenters recommended that the FAA include specific
vertical and horizontal minimum-distance requirements. Continental
Mapping and MAPPS recommended that no operations be permitted ``within
50 meters vertically or horizontally from people, animals, buildings,
structures, or vehicles, with a particular emphasis on takeoff and
landing.'' MAPPS pointed out that its testing has shown this is a safe
distance to perform emergency landings should something go wrong,
particularly with rotary wing platforms. NAMIC recommended that FAA
prohibit persons from ``intentionally operat[ing] a small UAS over or
within 100 feet'' from a human being who is not directly participating
in its operation or not located under a covered structure.
    State Farm suggested that FAA remove the word ``over'' from
proposed Sec.  107.39, and instead prohibit persons from
``intentionally operat[ing] a small UAS within 100 feet'' from a human
being who is not directly participating in the operation or not located
under a covered structure. Aviation Management similarly suggested that
the FAA provide protection to humans on the ground ``in close proximity
to'' small UAS operations by requiring that a small UAS remain a
minimum of 100 feet from the nearest human who is not directly
participating in the operation (a requirement the commenter pointed out
is imposed by Canada and Australia). Stating that an aircraft ``needs a
fall radius that contemplates kinetic energy, max speed, max
altitude,'' an individual commenter suggested that small UAS flight be
restricted to a vertical cylinder with a radius of 200 feet, centered
over an animal or persons not directly involved in the operation.
    Several other commenters made suggestions as to how the FAA can
more precisely define the requisite separation between a small UAS and
persons not involved in an operation. The Civil Aviation Authority of
the Czech Republic said the proposed prohibition ``should be extended
to a safety horizontal barrier, not only directly above people, but
also not in an unsafe proximity (for multicopters this should be twice
the actual height AGL).'' NOAA and Southern Company said proposed Sec.
107.39 should be revised to include specific lateral distances.
Colorado Ski Country USA said the final rule should include a
definition of ``Operations Over a Human Being'' that

sets out ``the proximity in which UAS operations would be prohibited.''
The New Hampshire Department of Transportation suggested that the final
rule include a ``specified three-dimensional space that a small UAS is
prohibited from when operating over any person not directly involved
with the operation.'' The Hillsborough County Aviation Authority
suggested that the lateral separation from people or structures be
revisited to consider a safety area around the UAS ``with regards to
momentum, wind drift, malfunction, etc. that would affect people or
structures nearby.''
    The National Association of Flight Instructors (NAFI) advocated for
a larger separation between small UAS and non-participants, and
recommended that proposed Sec.  107.39 be revised to prohibit operation
of a small UAS ``closer than 400 feet'' to persons not directly
participating in the operation or not located under a covered structure
or to ``any vessel, vehicle, or structure not controlled by the
operator or for which written permission by the owner or licensee of
that vessel, vehicle or structure has not been obtained.'' NAFI went on
to assert that there is no reliable or sufficient database from which
to project accident or injury rates, and to urge FAA to ``proceed
cautiously and relatively slowly in significantly reducing the
protection currently afforded to persons and property on the surface
from the hazards of small unmanned aircraft systems.
    Green Vegans asserted that under Public Law 112-95, Congress
directed the FAA to implement restrictions for small UAS operations
which ``include maintaining a distance of 500 feet from persons.''
    The FAA considered requiring minimum stand-off distances in this
rule, but ultimately determined that, due to the wide range of possible
small unmanned aircraft and small UAS operations, a prescriptive
numerical stand-off distance requirement would be more burdensome than
necessary for some operations while not being stringent enough for
other operations. For example, a 5-pound unmanned rotorcraft flying at
a speed of 15 mph in a remote area with natural barriers to stop a fly-
away scenario would likely not need a stand-off distance as large as a
54-pound fixed-wing aircraft traveling at a speed of 100 mph in an
urban area with no barriers.
    Thus, instead of imposing a prescriptive stand-off distance
requirement, this rule will include a performance standard requiring
that: (1) The small unmanned aircraft does not operate over a person
who is not directly involved in the flight operation unless that person
is under the appropriate covered structure or vehicle; and (2) the
remote pilot ensure that the small unmanned aircraft will pose no undue
hazard to other aircraft, people, or property in the event of a loss of
control of the aircraft for any reason (Sec.  107.19(c)). This
performance-based approach is preferable, as it will allow a remote
pilot in command to determine what specific stand-off distance (if any)
is appropriate to the specific small unmanned aircraft and small UAS
operation that he or she is conducting. In response to Green Vegans,
the FAA notes that Public Law 112-95 does not direct the FAA to
promulgate a small UAS rule that includes a requirement for a small
unmanned aircraft to maintain a distance of 500 feet from persons.
    Some commenters proposed specific vertical distances that they
claimed could permit safe operations of a small UAS over persons not
directly involved in its operation. Asserting that flights ``well
above'' a person's head pose minimal additional safety risks, the News
Media Coalition recommended that the FAA permit overhead flight so long
as the UAS remains at least 50 feet vertically from any person not
involved in the operation of the UAS. Cherokee National Technologies
and an individual commenter recommended that operations be permitted
above people not directly involved in an operation, so long as those
operations are not conducted less than 100 feet above those people.
    These commenters did not provide data that the FAA could use to
evaluate this assertion. The FAA notes, however, that a small unmanned
aircraft falling from a higher altitude may actually pose a higher risk
because the higher altitude would provide the small unmanned aircraft
with more time to accelerate during its fall (until it reaches terminal
velocity). This may result in the small unmanned aircraft impacting a
person on the ground at a higher speed and with more force than if the
small unmanned aircraft had fallen from a lower altitude.
    The National Association of Broadcasters, the National Cable &
Telecommunications Association, and the Radio Television Digital News
Association, commenting jointly, said the proposed rule would limit the
potential of unmanned aircraft to serve the public interest,
particularly with respect to newsgathering. The associations
recommended a few changes to ``increase the utility of sUAS for
newsgathering and video programming production purposes.'' First, the
associations said the FAA ``should clarify that only flights directly
over non-participating people are barred''--i.e., the ``FAA should
specify that the rule would still permit sUAS with a camera that is
capable of filming--at an angle--an area where people are present.''
Second, because ``the proposed rule raises the question of what level
of knowledge a reasonable operator can be expected to have,'' the
associations said the FAA ``should clarify that the operator must have
a good faith belief that sUAS will not be flying over people.'' Third,
the associations said ``the FAA should consider relaxing or removing
this requirement for sparsely populated areas,'' which ``would give
newsgatherers and video programming producers the freedom to cover
events and film entertainment programming with sUAS in areas where the
risk to human beings on the surface is extremely low.''
    NSAA and several individual commenters recommended that the final
rule make clear that the prohibition does not extend to incidental or
momentary operation of a UAS over persons on the ground. The
Organization of Fish and Wildlife Information Managers requested that
exemptions for ``unintentional flyovers'' be included in the final
rule. The Organization noted that, while conducting fish and wildlife
surveys in remote areas, UAS may inadvertently be flown over hunters,
anglers, hikers, campers, and other individuals participating in
recreational activities. The Organization went on to say that ``[i]n
areas where a UAS may be flown over a person, either intentionally or
unintentionally, public notice of the planned survey activity could be
issued in advance of the survey.''
    In response, the FAA clarifies that this rule allows filming of
non-participants at an angle as long as the small unmanned aircraft
does not fly over those non-participants.
    With regard to sparsely populated areas, as discussed earlier, the
restriction on flight over people is focused on protecting the person
standing under the small unmanned aircraft, which may occur in a
sparsely populated area. The FAA notes, however, that because sparsely
populated areas have significantly fewer people whose presence may
restrict a small UAS operation, a newsgathering organization will
likely have significant flexibility to conduct small UAS operations in
those areas.
    With regard to the remote pilot's good-faith belief and momentary
operation of a small unmanned aircraft

over a person on the ground, the FAA notes that the remote pilot in
command is responsible for ensuring that the small UAS does not fly
over any non-participant who is not under a covered structure or
vehicle. This may require creating contingency plans or even
terminating the small UAS operation if a non-participant unexpectedly
enters the area of operation. The FAA declines to amend this
requirement because, as discussed earlier, this requirement creates a
performance-based standard for a stand-off distance that the remote
pilot in command must use to ensure that his or her small unmanned
aircraft does not fly over a person.
    The National Association of Realtors suggested that more guidance
is needed to clarify the operator's obligations for communicating with
bystanders that a UAS flight will occur in the area. Specifically, the
commenter wondered: (1) How much notice is required to clear an area of
bystanders before the flight takes place; (2) how the notice should be
given; (3) for how long an area should be required to be cleared of
bystanders; and (4) within what distance bystanders should be provided
notice.
    This rule will not require that notice be given to non-participants
prior to the operation of a small unmanned aircraft. Likewise, the rule
will not prohibit the remote pilot from employing whatever means
necessary to ensure that the small unmanned aircraft does not endanger
the safety of bystanders, such as providing prior notice of operations.
Providing notice to bystanders is simply one method that a remote pilot
in command can utilize to clear the operating area (assuming that non-
participants comply with the notice). However, providing such notice
will not relieve the remote pilot in command of his or her duty to
ensure the safety of non-participants.
    An individual commenter asserted that, taken literally, the
proposed prohibition ``would require a UA operator to know at all
times, the exact location of all people on the ground who are within
VLOS of his or her UA.''
    As stated earlier, this rule imposes a performance-based
requirement concerning flight over people. It is up to the remote pilot
in command to choose the specific means by which he or she will satisfy
this requirement. The guidance issued concurrently with this rule
provides some examples of means that a remote pilot in command could
utilize to satisfy the prohibition against flight over non-participants
in part 107.
    NAMIC sought guidance with respect to when the presence of a third
party ``can prevent or interrupt UAS use.'' Specifically, NAMIC
questioned whether, if an insurance review of a private building
requires some limited flight over a public street, the street needs to
be closed or, alternatively, if the flight can simply take place when
there are no pedestrians on the street. An individual commenter
similarly questioned what happens when a person enters the operational
area once the operation has commenced and the UAS is airborne--i.e.,
whether the UAS may loiter until the person clears the area or whether
the operation must be terminated.
    Liberty Mutual Insurance Company said that, given the fact that
almost any operation of a small UAS over urban areas will necessarily
result in flight over human beings, ``the final rule should include a
reasonableness standard whereby, through a safety assessment such as
currently permitted in section 333 exemptions, an operator may
determine that a flight over a particular area does not pose a
reasonable threat to persons who are not covered by a structure.'' If
such a reasonable determination is made, Liberty Mutual said, the
flight should be allowed. Liberty Mutual noted that this change ``would
be particularly important for assessing disaster situations or
performing surveys over areas larger than a single structure.''
    As discussed earlier, this rule prohibits any small unmanned
aircraft from flying over a person who is not a direct participant in
the small UAS flight operation and is not under a covered structure or
vehicle. This is a performance standard: It is up to the remote pilot
in command to choose the best way to structure his or her small UAS
operation to ensure that prohibited flight over a person does not occur
and that the small unmanned aircraft will not impact a person if it
should fall during flight. The FAA anticipates that the remote pilot in
command will need to determine an appropriate stand-off distance from
nearby persons in order to comply with this requirement. With regard to
the specific examples provided by the commenters, the FAA notes that
the remote pilot in command is not required to cease small UAS flight
if he or she can continue operating in a manner that ensures that the
small unmanned aircraft will not fly over an unprotected non-
participant.
    Several individual commenters suggested proposed Sec.  107.39 be
expanded to prohibit operation over any personal property without the
permission of the property owner.
    Property rights are beyond the scope of this rule. However, the FAA
notes that, depending on the specific nature of the small UAS
operation, the remote pilot in command may need to comply with State
and local trespassing laws.
    NAMIC questioned whether a UAS operation over private property is
prohibited if the owner wants to watch, ``even if the owners agree that
they may be in danger.''
    Southern Company suggested that FAA allow operations over any
person who is located on the property, easement, or right of way of the
person or entity for whom the small UAS is operated, and any person who
is participating in the activity for which the small UAS is being
operated. This commenter said such mitigating restrictions could
include a lower operating ceiling, lateral-distance limits, a lower
speed restriction, and a prohibition on operations over large
gatherings of people.
    The flight-over-people restriction is intended to address the risk
of a small unmanned aircraft falling on and injuring a person. Being
the owner or easement-holder of the area of operation does not reduce a
person's risk of being hit by the small unmanned aircraft. Accordingly,
this rule will not impose a different safety standard based on the
ownership status of the person over whom the small unmanned aircraft is
operating. With regard to additional operational mitigations, the FAA
will consider those on a case-by-case basis through the waiver process.
    The Wisconsin Department of Transportation (WisDOT) expressed
``concern that this (107.39) restriction may severely limit the ability
of public sector agencies to incorporate UAS'' into certain activities,
such as bridge inspections, traffic and incident management activities
on public highways, and search and rescue operations.
    NSAA also said operations over the public should be permitted ``in
non-normal or emergency operations where life, limb, and property are
at risk.'' UAS Venture Partners similarly sought an exemption from the
proposed prohibition on operations over persons not directly involved
in the operation for Civic Municipal Rescue Service agencies and the
trained rescue first responders who will be operating the UAS devices.
Vail also said the final rule should include specific exemptions from
the ``directly involved'' requirement ``for temporary flight over
uninvolved persons for emergency and safety uses.''
    As discussed in section III.C.3 of this preamble, this rule applies
only to civil small UAS operations. It does not apply to public UAS
operations which may include governmental functions such as

public road and bridge inspections, traffic control and incident
management on public highways, and search and rescue operations. To
that end, a public UAS operator such as WisDOT may apply for a COA to
use its UAS for specific governmental functions instead of operating
and complying with the provisions of part 107.
    With regard to emergency and search-and-rescue operations, it
should be noted that those operations are typically conducted by local,
State, or Federal government agencies (such as fire departments or
police) as public aircraft operations. Public aircraft operations will
be granted operational authority by way of a COA and will not be
subject to part 107. With regard to civil small UAS operations, the FAA
emphasizes that the remote pilot in command's ability to deviate from
the requirements of part 107 to address an emergency (discussed in
section III.E.1.d of this preamble) is limited to emergency situations
that affect the safety of flight. For emergency situations that do not
affect the safety of flight, the remote pilot in command should contact
the appropriate authorities who are trained to respond to emergency
situations.
    The Professional Helicopter Pilots Association suggested that the
FAA provide a means by which individuals or companies can limit or
eliminate the overhead or adjacent operation of UAS by anyone other
than properly certified public service/public safety operators.
    Though a governmental entity may choose to operate a small UAS
under the civil regulatory structure of part 107, the FAA does not
agree that operational distinctions should be made within part 107
regarding the specific entity that is conducting a civil operation. To
that end, under part 107 all civil small unmanned aircraft operations
are prohibited from operating over a person not directly participating
in the operation of the small unmanned aircraft and not under a covered
structure or in a covered vehicle and not directly participating in the
flight operation of the small unmanned aircraft.
    The International Association of Amusement Parks and Attractions
(IAAPA) stated safety and privacy concerns are implicated by third-
party small UAS operations. IAAPA stated that the operation of UAS over
amusement parks and attractions by third parties is also implicated by
proposed section 107.39. IAAPA asserted that the facility operator can
carefully control the use of UAS over a person who is not directly
participating in its operation if the UAS is operated by the facility
or its designee, but this degree of control is impossible when
hobbyists or other third-parties who do not have the facility owner's
permission operate UAS near or over the perimeter or interior of
amusement parks and attractions. IAAPA stated that amusement parks and
attractions generally contain large numbers of people, and that the
safety risks posed to employees and to visitors enjoying rides
potentially traveling 100 miles per hour, watching shows, or walking
through amusement parks and attractions are considerable and outside
the control of facility operators.
    The restriction on flight over people applies regardless of the
location in which that flight occurs. Thus, a remote pilot in command
may not operate a small unmanned aircraft over a non-participant in an
amusement park who is not under a covered structure or in a vehicle.
Additionally, the remote pilot in command must ensure that the small
unmanned aircraft does not pose an undue hazard to a person in the
event of a loss of control for any reason. The FAA also notes that
hobbyists or other third parties who do not have the facility owner's
permission to operate UAS near or over the perimeter or interior of
amusement parks and attractions may be violating State or local
trespassing laws.
    Aerial Services, the National Society of Professional Surveyors,
Continental Mapping, MAPPS, and 12 members of the Wisconsin Legislature
said the ban on flights ``over populated areas'' needs to be removed or
modified, because the definition of ``populated area'' is inadequate
and seems to mean ``any single person within the area of operation that
is not inside a structure.'' In response, the FAA notes that this rule
does not ban flights over a ``populated area.'' This rule only
restricts flights over a person who is not directly participating in
the flight operation and who is not inside a covered structure or
vehicle.
v. Preflight Briefing
    The NPRM proposed to require that, prior to flight, the remote
pilot in command must ensure that all persons directly involved in the
small UAS operation receive a briefing that includes operating
conditions, emergency procedures, contingency procedures, roles and
responsibilities, and potential hazards. The FAA proposed this
requirement because, as discussed in the previous section, this rule
will allow a small unmanned aircraft to fly over people who are
directly participating in the small UAS operation. A preflight
familiarization briefing would help ensure that these people have
greater situational awareness and are better able to avoid the flight
path of the small unmanned aircraft if the remote pilot in command were
to lose positive control of the aircraft or if the aircraft were to
experience a mechanical failure.
    The Travelers Companies said the FAA should modify proposed Sec.
107.49 to eliminate the ``briefing'' requirement for operations
conducted without a visual observer or other crew members.
    If the remote pilot in command is conducting a small UAS operation
entirely by him or herself, there is no one else that he or she can
brief. Additional regulatory text is not necessary to explain this
concept. However, upon reviewing the regulatory text of Sec.
107.49(a)(2), the FAA noted that the proposed briefing requirement
would apply to people who are ``involved'' in the small UAS operation,
while the exception to the flight-over-people restriction discussed
earlier will apply to people who are ``directly participating'' in the
small UAS operation. Because the briefing requirement is supposed to
apply to people who may have a small unmanned aircraft fly over them,
the FAA has amended Sec.  107.49(a)(2) to reference people who are
directly participating in the small UAS operation.
    The FAA also noted that the proposed requirement to convey
important information in the form of a briefing was needlessly
prescriptive. Thus, the FAA has amended Sec.  107.49(a)(2) in the final
rule to simply require that the remote pilot in command ensure that
persons directly participating in the small UAS operation are informed
about the operating conditions, emergency procedures, contingency
procedures, roles and responsibilities, and potential hazards. This
information could be conveyed through a briefing or through some other
means that would reasonably be expected to inform the recipient.
vi. Preflight Assessment of the Operating Area and Ensuring That the
Aircraft Poses No Undue Hazard
    Within the above constraints, the NPRM proposed a two-part
performance-based standard for mitigating loss-of-positive control
risk. The first part consisted of a preflight assessment of the
operating environment. The second part consisted of a requirement to
ensure that the small unmanned aircraft will pose no undue hazard to
other aircraft, people, or property in the event of a loss of positive
control of the aircraft for any reason.

1. Preflight Assessment of the Operating Environment
    The NPRM proposed to require that, prior to flight, the operator
must become familiar with the confined area of operation by assessing
the operating environment and assessing risks to persons and property
in the immediate vicinity both on the surface and in the air. As part
of this operating environment assessment, the operator would need to
consider conditions that could pose a hazard to the operation of the
small UAS as well as conditions in which the operation of the small UAS
could pose a hazard to other aircraft or persons or property on the
ground. Accordingly, the operating environment assessment proposed in
the NPRM would include the consideration of: (1) Local weather
conditions; (2) local airspace and any flight restrictions; (3) the
location of persons and property on the ground; and (4) any other
ground hazards.
    For the reasons discussed below, this rule will finalize the
operating environment assessment as part of the preflight
familiarization provision as proposed in the NPRM, but will change the
reference from ``operator'' to ``remote pilot in command'' to reflect
the change in the crewmember framework discussed in section III.E.1 of
this preamble.
    Boeing asserted that the proposed rule imposes a requirement to
assess risk, but provides no criteria against which to measure that
risk. The commenter therefore recommended the FAA revise the proposed
provision to include criteria to measure risk (e.g., reference the
Structural Repair Manual (SRM) or similar criteria). The commenter also
noted that there is no requirement to determine if the risk is
acceptable, and recommended the FAA clarify this issue to ensure
appropriate compliance with, and consistent interpretation of, the
regulation.
    As discussed in the next section of this preamble, this rule will
require the remote pilot in command to ensure that the small UAS will
pose no undue hazard to other aircraft, people, or property in the
event of a loss of control of the aircraft for any reason. Section
107.49 is intended to help the remote pilot in command satisfy this
requirement by having the remote pilot in command assess the operating
environment so that he or she can design the operation, as well as any
mitigation, to ensure that the small unmanned aircraft does not create
an undue hazard if positive control is lost.
    As a performance-based requirement, it is not the intent of this
section to be prescriptive with regard to how remote pilots conduct an
assessment of their operating environment. Because there is a diverse
range of aircraft and operating environments that could exist for part
107 operations, a prescriptive preflight-assessment standard may be
more burdensome than necessary in some instances. For example, a remote
pilot in command operating a small UAS in an empty rural area would not
need to look at the same things to assure the safety of the operation
as a remote pilot in command operating a small UAS in a crowded urban
environment. The guidance material which the FAA has issued
concurrently with this rule provides examples and best practices for
how to conduct the preflight assessment of the operating area and
assess risks that may affect the small UAS operation. The FAA will also
consider publishing industry best practices in future small UAS
guidance that will assist remote pilots in assessing risk.
    The Professional Helicopter Pilots Association said that, prior to
flight, the remote pilot should be required to obtain a briefing,
similar to a manned-aircraft pilot's briefing, which would include
weather, NOTAMs, and any other pertinent information for the area in
which they intend to operate.
    As discussed in sections III.E.2 and III.E.5 of this preamble, this
rule includes requirements for assessing the operating environment with
regard to weather and NOTAMs. The remote pilot in command is
responsible for satisfying those requirements. The remote pilot may
choose to use the means suggested by the commenter to help satisfy his
or her regulatory obligations, or he or she may choose some other
method of obtaining the pertinent information. As long as the pertinent
regulatory requirements are fulfilled, the means by which the remote
pilot in command accomplishes this goal is within his or her
discretion.
    API encouraged the FAA to consider all provisions of the Helicopter
Safety Advisory Conference's Unmanned Aerial Systems Guidelines,
including provisions related to pre-flight briefings, as the rule is
finalized. The FAA concurs with the API's recommendation to consider
the provisions of the Helicopter Safety Advisory Conference Recommended
Practices 15-1 Unmanned Aerial Systems Guidelines document (HSAC RP
UASRP 15-1) published in February 2015. After reviewing the HSAC RP
UASRP 15-1 guidelines, the FAA finds that the recommended practices
address all of the requirements found in Sec.  107.49.
    The Kansas State University UAS Program also recommended that the
assessment consider potential issues with link integrity to the
aircraft from obstacles between the ground antennas and the aircraft
(e.g., trees) or electromagnetic interference from nearby RF sources
such as radio towers and radars. In response, the FAA notes that this
concern is addressed in Sec.  107.49(a)(3). Section 107.49(a)(3)
requires that the remote pilot ensure that all control links between
ground station and the small unmanned aircraft are working properly.
The remote pilot in command may not commence a small UAS operation if a
control link is working improperly (whether as a result of radio
interference or for some other reason). The FAA also expects that the
remote pilot in command will develop a contingency plan for ensuring
that the small unmanned aircraft does not pose an undue hazard to other
aircraft, people, or property if positive control of the small unmanned
aircraft is lost through a disruption in the data control link.
2. Undue Hazard If There Is a Loss of Control
    The NPRM proposed that, after becoming familiar with the confined
area of operation and conducting an operating environment assessment,
the operator must ensure that the small unmanned aircraft will pose no
undue hazard to other aircraft, people, or property in the event of a
loss of positive control of the aircraft for any reason. The FAA
proposed this performance-based requirement instead of a more
prescriptive standard because it would provide the operator with
significant flexibility to choose how to mitigate the hazards
associated with loss of aircraft control.
    In a joint submission, PlaneSense and Cobalt Air stated that the
language in proposed Sec.  107.19(b) sets a different standard from
that in Sec.  107.23 (hazardous operation). They noted that while Sec.
107.19(b) requires that small UAS operations ``pose no undue hazard to
other aircraft, people or property[,]'' Sec.  107.23(b) prohibits
persons from operating a small UAS in a ``careless or reckless manner
so as to endanger the life or property of another[.]'' The commenters
argued that these two standards are not consistent, because Sec.
107.23 does not include other aircraft within the scope of the third
parties who must be protected. The commenters went on to say that these
discrepancies create inconsistencies which result in incomplete
guidance for the operators of small UAS, and may result in an increase
in danger to the public. The commenters suggested that the appropriate
standard is to be found

in Sec.  107.19(b), and that Sec.  107.23 should be changed to match
it. Finally, the commenters asked the FAA to clarify whether ``other
aircraft'' includes other unmanned aircraft.
    Part 107 prohibits a small UAS operation from endangering life or
property, and prohibits a remote pilot from operating a small UAS in a
careless or reckless manner. Property includes other aircraft,
including other unmanned aircraft. These two requirements complement,
rather than contradict, one another, and provide the remote pilot with
the flexibility to adjust his or her operation according to the
environment in which he or she is operating. For example, if the
operation takes place in a residential area, the remote pilot in
command could ask everyone in the area of operation to remain inside
their homes while the operation is conducted. If the operation takes
place in an area where other air traffic could pose a hazard, the
remote pilot could advise local air traffic control as to the location
of his or her area of operation and add extra visual observers to the
operation so that they can notify the remote pilot if other aircraft
are approaching the area of operation. These precautions would be one
way to ensure that the operation will not pose an undue hazard to other
aircraft, people or property in the event of a loss of control of the
aircraft. Additionally, during the operation of the small unmanned
aircraft, the remote pilot in command is prohibited from operating the
aircraft in a careless and reckless manner, further ensuring that the
operation does not pose an undue hazard to other aircraft, people, or
property in the event of a loss of control of the aircraft.
    The NextGen Air Transportation Program, NC State University
commented that Sec.  107.19(b) is ``not realistic.'' The commenter
stated that the remote pilot can do everything possible to minimize the
risk and harm possible in the event of loss of positive control, but
asserted that requiring that no damage be caused without requiring fly-
away prevention or other risk management mechanisms does not align with
the general NPRM objectives.
    Similarly, ALPA stated that many small unmanned aircraft,
particularly those with multiple propulsion units, may become highly
unstable when they enter a state of ``lost link'' or ``loss of positive
control.'' This commenter also asserted its strong belief that if lost
link occurs, mitigations to safely perform auto-hover, auto-land, and
return-to-home maneuvers, and geo-fencing protection, must be
incorporated into the navigation and control systems for a small UAS to
safely land without harm to persons or property.
    The undue hazard standard in this rule is a performance-based
standard, which the remote pilot in command may satisfy through
operational or equipage/technological mitigations. In section
III.E.3.b.vi of this preamble, the FAA describes equipment that remote
pilots may incorporate into their small unmanned aircraft systems as
one means of complying with this requirement. Due to the diversity and
rapidly evolving nature of small UAS operations, this rule allows
individual remote pilots to determine what equipage methods, if any,
mitigate risk sufficiently to meet the performance-based requirements
of this rule, such as the prohibition on creating an undue hazard if
there is a loss of aircraft control. This provides the greatest amount
of regulatory flexibility while maintaining the appropriate level of
safety commensurate with part 107 operations.
    The methods suggested by the commenters are some, but not all of
the possible mitigations available for remote pilots of UAS. The FAA
recognizes that it is impossible to prevent every hazard in the event
of a loss of control of the small unmanned aircraft; however, as
several commenters stated, this rule requires remote pilots to do
everything possible to minimize risk and harm in the event of loss of
positive control.
    NOAA commented that Sec.  107.19(b) should be revised to include
``protected wildlife'' in the class of entities to be protected from
undue hazard in the case of loss of positive control. NOAA states that
this change would acknowledge the importance of other Federal statutes
already in place to protect, conserve, and recover vulnerable wildlife
populations and ensure the FAA-regulated community is aware of them and
that the final rule does not contradict them.
    The FAA notes that other Federal statutes already in place
establish laws on the protection of wildlife. Independent of this rule,
the remote pilot in command is responsible for complying with any other
Federal, State, or local laws that apply to his or her small UAS
operation.
vii. Automation
    Several commenters addressed the issue of autonomous operations of
small UAS. An autonomous operation is generally considered an operation
in which the remote pilot inputs a flight plan into the control station
which sends it to the autopilot onboard the small unmanned aircraft.
During automated flight, flight control inputs are made by components
onboard the aircraft, not from a control station. Thus, the remote
pilot in command could lose the control link to the small unmanned
aircraft and the aircraft would still continue to fly the programmed
mission or return home to land. During automated flight, the remote
pilot in command also must have the ability to change routing/altitude
or command the aircraft to land immediately. The ability to direct the
small unmanned aircraft may be through manual manipulation of the
flight controls or through commands using automation.
    For the reasons discussed below, this rule will allow autonomous
small UAS operations. However, the remote pilot in command must retain
the ability to direct the small unmanned aircraft to ensure compliance
with the requirements of part 107.
    ALPA, the U.S. Hang Gliding & Paragliding Association, and the
Permanent Editorial Board of the Aviators Model Code of Conduct
Initiative asserted that the NPRM says autonomous operations would be
permitted for small UAS, but then fails to discuss such operations
further. ALPA generally opposed allowing autonomous operations for
small UAS. The Permanent Editorial Board of the Aviators Model Code of
Conduct Initiative said the NPRM's mention of autonomous operations
``requires explanation and context.'' The U.S. Hang Gliding &
Paragliding Association said it would be opposed to such operations
``unless the operator has the ability to take positive control
immediately and redirect the sUAS.''
    The Air Medical Operators Association raised concerns about the
safety of ``automated UAS,'' saying that such aircraft do not have the
capability to maintain the necessary separation from manned aircraft.
The association acknowledged, as noted in the NPRM, that the many
advancements in anti-collision avoidance systems have been very
effective in reducing the rate of mid-air collisions, but went on to
say that the evidence of the effectiveness of such technology in
preventing collisions between UAS and manned aircraft ``would have to
be overwhelming in order to alleviate the safety concerns of the low-
altitude flying public.''
    Other commenters supported allowing autonomous operations for small
UAS. Yale University recommended the final rule clarify that small UAS
operators ``may rely on autonomous or pre-programmed flight systems.''
Streamline Designs also stated that autonomous operations should be
permitted, adding that some commercial uses ``may depend heavily on

automatic, stabilized flight.'' A number of individual commenters also
supported autonomous operations. One such individual noted that there
are situations where manual operations are more dangerous than
automated operations, because computer controlled flight ``can provide
much greater control and safety by making corrective inputs on the
order of hundreds of inputs per second.''
    The Property Drone Consortium recommended the final rule clarify
what types of autonomous flights are permitted. The organization
further recommended that autonomous flight be permitted without a need
for the pilot/operator to intervene, although the pilot/operator
``would always have the ability to intervene.''
    Several commenters suggested that autonomous operations be
permitted in certain circumstances. LifeDrone, LLC sought a final rule
that would specifically permit the autonomous operation of an emergency
small UAS ``that is initiated by an emergency signal along prearranged,
low flight risk corridors at an altitude of 150 feet.'' Prioria
Robotics suggested that autonomous operations should be permitted
``with the simultaneous usage of first person video (FPV) flight
equipment.'' AOPA recommended that the FAA consider an autopilot
requirement for operations in controlled airspace, which the
association said would provide ``a layer of safety for operations in
airspace that contains a concentration of manned aircraft.''
    The New England Chapter of AUVSI and Devens, IOP, commenting
jointly, noted that ``[t]he future will bring more reliable UAS
technology that can be fully autonomous.'' The Competitive Enterprise
Institute similarly noted that ``[a] number of developers have
expressed confidence that their sense-and-avoid technologies will soon
permit safe automated operations.''
    Autonomous operations have numerous practical applications,
including agricultural operations, aerial photography, and search and
rescue. The FAA agrees with the commenters who pointed out that the
ability for a small unmanned aircraft to fly autonomously could add
significant utility to a small UAS operation and would further
encourage innovation in the industry. Accordingly, this rule will allow
the autonomous flight of small unmanned aircraft.
    While sense-and-avoid equipment may one day be integrated into an
autonomous aircraft to aid the pilot in avoiding hazards, as discussed
in section III.E.2.a of this preamble, there is insufficient data to
establish that UAS equipage is able to, at this time, detect other
nearby aircraft in a manner that is sufficient to provide a substitute
for the human pilot's ability to see and avoid those aircraft. Thus, a
small unmanned aircraft may be unable to, without human input, yield
the right of way to another user of the NAS that may enter the area of
operation. Accordingly, this rule will require that the remote pilot in
command have the ability to direct the small unmanned aircraft to
ensure compliance with the provisions of part 107. In particular, the
FAA emphasizes the requirements of Sec. Sec.  107.37 and 107.39, which
require the small unmanned aircraft to yield the right of way to all
other users of the NAS and to avoid flying over a human being who is
not directly participating in the small UAS operation and not under a
covered structure.
    There are a number of different methods that a remote pilot in
command may utilize to direct the small unmanned aircraft to ensure
compliance with part 107. For example, the remote pilot may transmit a
command for the autonomous aircraft to climb, descend, land now,
proceed to a new waypoint, enter an orbit pattern, or return to home.
Any of these methods may be used to satisfactorily avoid a hazard or
give right of way.
    The FAA also emphasizes that, as discussed in section III.E.3.b.ii
of this preamble, a person cannot act as a remote pilot in command in
the operation of more than one small unmanned aircraft. Thus, this rule
does not allow a person to use automation to simultaneously operate
more than one small unmanned aircraft.
    NetMoby recommended that FAA consider UAS that are pre-programmed
to fly a mission to one or more waypoints as being ``under positive
control.'' The company recommended that, for local line-of-sight and
multi-waypoint missions, ``an active, live wireless link to the UAS be
present and that loss of such a link below the link's reliable signal
receive threshold for a period of greater than 15 seconds be defined as
an instance of loss of positive control,'' thus triggering a return-to-
home command.
    As discussed earlier, this rule will allow a small unmanned
aircraft to conduct preprogrammed flight through a waypoint as long as
the remote pilot has the means to direct the aircraft to ensure
compliance with part 107. With regard to when a return-to-home command
should be triggered, the FAA declines to add this level of
prescriptiveness to the rule. Instead, as discussed in section
III.E.3.b.vi.2 of this preamble, the remote pilot in command must
ensure that the small unmanned aircraft remains within visual line of
sight and does not pose an undue hazard in the event of loss of
positive control. The remote pilot in command may do this in the manner
suggested by NetMoby or in another manner that satisfies the regulatory
requirement.
viii. Other Equipage
    In the NPRM, the FAA considered technological approaches, such as a
flight termination system, to address a failure of the control link
between the aircraft and the operator's control station. However,
because small UAS operations subject to the proposed rule would pose a
lower level of risk, the FAA proposed operational alternatives to
mitigate their risk to an acceptable level without imposing an FAA
requirement for technological equipage. Accordingly, the proposed rule
did not mandate the use of a flight termination system or the equipage
of any other navigational aid technology. The FAA invited comments on
whether a flight termination system or any other technological equipage
should be required and how it would be integrated into the aircraft for
small UAS that would be subject to the proposed rule. The FAA also
invited comments, with supporting documentation, as to the costs and
benefits of requiring a flight termination system or other
technological equipage.
1. Geo-fencing
    A geo-fence is a virtual barrier which may prevent the small
unmanned aircraft from either entering or exiting a geographically
defined area. The area may be defined by a property owner or aircraft
operator utilizing a combination of mapping programs and technology
such as global positioning system (GPS) or radio frequency
identification (RFID). Such technology could restrict the small
unmanned aircraft from flying in locations where a flight may be
restricted for security, safety, or other reasons.
    The proposed rule did not establish geo-fencing equipment
requirements for small UAS operating in the NAS. Instead, the NPRM
proposed operational limitations such as requiring small UAS operators
or visual observers to maintain visual line of sight in order to
mitigate the risk of failure of the control link resulting in loss of
positive control. After careful consideration of the comments, the FAA
has decided not to add any geo-fencing equipment requirements in the
final rule.
    The Small UAV Coalition and Predesa supported the FAA's proposal to
not require geo-fencing equipment under

proposed part 107. However, these commenters noted the increased safety
benefit provided by these systems in applications beyond visual-line-
of-sight operations. Airware provided detailed information on its
flight control system that offers geo-fencing and contingency
management functionality. However, Airware noted that ``[d]etailed
airworthiness requirements [are] not needed for the very low risk
environment proposed by this NPRM.''
    Conversely, some commenters disagreed with the FAA's proposal, and
advocated for requiring geo-fencing technology on small UAS. Commenters
including TTD, ALPA, AOPA, and the Electronic Privacy Information
Center (EPIC) generally requested that the FAA require geo-fencing
technology to be equipped on small UAS.
    TTD, ALPA, the Air Medical Operators Association, and an individual
supported geo-fencing technology standards that provide functional
performance and reliability to ensure safe operation of small UAS in
the event of loss of positive control or flying near restricted,
unauthorized, or controlled airspace. ALPA urged the FAA ``to consider
means, other than the operator's skill and intention, to ensure the
aircraft cannot be operated outside the confined area required to
mitigate the collision risk.'' The Air Medical Operators Association
requested that the FAA ``test the effectiveness of these technologies
and consider requiring them onboard UAS.'' AOPA stated that the FAA
``should consider requiring small commercial UAS to use geo-fencing
technology to ensure safety and reliability of their operations.'' The
International Brotherhood of Teamsters stated that it supports ``geo-
fencing and other technologies which would directly inhibit the
movement of an unauthorized UAS into secure areas.''
    MAPPS stated that ``[a]ll UAS must be constructed with firmware
that incorporates a database of restricted flight areas.'' MAPPS
provided information on its concept of geo-fencing using cellular
technology and requiring flight plans to be uploaded to the small UAS
flight management system before each flight. MAPPS explained that this
geo-fencing technology requires access to a ``Master Restricted Flight
Area Database (MRFAD)'' including ``any and all restricted flight
areas'' to prevent the operator from flying the small UAS into these
restricted areas. An individual stated that the FAA should require
``autonomous vehicles flying in, or within range of, airspace where UAS
operations are prohibited'' to have an updated database of that
airspace.
    Requiring the installation of a geo-fencing system capable of
keeping small unmanned aircraft out of restricted and prohibited
airspace would present a number of technical hurdles. Specifically,
there are currently no design or performance standards for geo-fencing
equipment to ensure safe and reliable integration into the NAS. Without
appropriate geo-fencing design and performance standards, the industry
and the FAA lack the data necessary to assess the accuracy and
reliability of geo-fencing equipment and therefore, the FAA cannot
promulgate geo-fencing equipment design requirements (i.e.,
airworthiness certification).
    Also, geo-fencing equipment integrated on small UAS would require
an evolving database of terrain and obstacle updates, restricted and
special use airspace, Notices to Airmen (NOTAMs), and Temporary Flight
Restrictions (TFRs). The FAA is unaware of a database that provides
this full capability and therefore cannot accurately determine the
effort to develop and maintain it for remote pilots. The FAA also does
not have information on how frequently updates to the onboard small UAS
geo-fence database would be required to maintain safe and reliable
operation in the NAS.
    In addition, any geo-fencing equipment required under part 107
would also need to include an override feature to allow the remote
pilot to enter the airspace if he or she receives permission from Air
Traffic Control or an appropriate controlling agency. Additionally, as
discussed in section III.E.1.d of this preamble, this rule will allow
the remote pilot to deviate from the operational restrictions of part
107 if doing so is necessary to respond to an emergency situation.
Thus, an override feature may also be necessary to allow a remote pilot
to respond to emergencies. A geo-fencing system without an override
function that prevents the human pilot from exercising this deviation
authority may impair the pilot's ability to safely respond to an
emergency situation.
    If these technical obstacles are overcome, a mandatory geo-fencing
system may provide a marginal increase to safety by forcibly keeping
small unmanned aircraft out of certain airspace in which the aircraft
may pose a higher risk to manned-aircraft operations. However, under
Executive Order 12866, the FAA can adopt a regulation ``only upon a
reasoned determination that the benefits of the intended regulation
justify its costs.'' \104\ Here, the FAA has no data that would allow
it to quantify the benefits of a possible safety increase associated
with a mandatory geo-fencing system. Conversely, a mandatory geo-
fencing requirement would substantially increase the costs of this
rule. If mandated, there would be a cost for developing the minimum
performance standards for this equipment. Once the standards are
developed, the cost to owners for retrofitting previously purchased
small UAS would be realized. If it is not possible to retrofit a small
UAS to include geo-fencing, a replacement cost would be incurred.
Additionally, an incremental per unit cost to small UAS manufacturers
for installing mandated geo-fencing on newly built small UAS would be
incurred.
---------------------------------------------------------------------------

    \104\ Executive Order 12866, Sec.  1(b)(6).
---------------------------------------------------------------------------

    Once geo-fencing is installed, the on-board avionics would rely
upon a database of restricted airspace, NOTAMs, TFRs, obstacles, and
terrain upon which to remain current. Maintaining these databases would
incur additional costs, based on the frequency of database updates and
the value of the time for the individual performing the task. Finally,
small UAS owners would have recurring costs for subscribing to the
database supplier or app developer for updates to regulatory airspace.
To sum up, mandating geo-fencing equipage would result in substantial
costs and, at this time, the FAA does not have sufficient data to
determine, consistent with its obligations under Executive Order 12866
and 13563, whether the benefits associated with such a mandate would
justify those costs.
    The FAA appreciates the commenters' information and support for
geo-fencing technology, and the agency will use this information in
follow-on UAS-related activities. However, based on the considerations
outlined above, the FAA has decided not to add any geo-fencing
equipment requirements in this rule.
    Commenters including the Association of American Universities,
Association of Public Land-grant Universities, and NAMIC generally
stated that geo-fencing technologies should be considered to allow
small UAS operation beyond visual line of sight. The Association of
American Universities and Association of Public and Land-grant
Universities stated that this final rule should require ``performance-
based standards for the capabilities of a UAS authorized to conduct
[beyond-visual-line-of-sight] operations'' and noting ``dual auto pilot
modes, anti-collision systems employing SONAR, LIDAR,'' and ``geo-
fencing capabilities'' as possible means of compliance. NAMIC cited
benefits of

beyond-line-of-sight UAS operations following a catastrophic disaster.
The Colorado Cattlemen's Association and the Rocky Mountain Farmers
Union supported rules that ``allow for the use of such technologies to
expand the permissible operating area for UAS in appropriate
circumstances'' and ``permit the use of these technologies.'' The
Interstate Natural Gas Association of America suggested geo-fencing
technology, ``programmed into a UAS that establishes defined controlled
zone such as a pipeline corridor, combined with location, altitude and
forward looking camera'' to provide an equivalent level of safety to
the proposed line of sight requirement.
    The National Ski Areas Association acknowledged that collision
detection and avoidance systems are in development; however, the
commenter stated that FAA ``needs to recognize and accommodate these
technological innovations, especially when the risk to manned aircraft
and public safety is so minimal, as it is at ski areas.''
    An individual asserted that multi-rotor helicopter small UAS have
equipment providing ``geo-fencing to prevent loss of control link--or
even to prevent airspace incursions and accidental `fly-aways'.''
Another individual stated that ``[s]everal technologies have been
available for the last four years that enable pre-programmed GPS guided
flight paths using latitude and longitude coordinates.'' Qualcomm added
that geo-fencing ``can ensure small UAS remain well outside of airspace
that is off limits to UAS.''
    As discussed in other parts of this preamble, the two operational
restrictions of interest to these commenters (the requirement to remain
within visual line of sight and the restriction on flying over people)
are both waivable upon demonstration that the proposed operation can
safely be conducted under the terms of a certificate of waiver. Waiver
applicants may use geo-fencing and other technological equipage to help
demonstrate, in support of a waiver application, that the proposed
operation can be conducted safely. Alternatively, applicants may be
able to demonstrate the safety of their proposed operation through non-
technological means, such as mitigations present in the area of
operation. The FAA will evaluate the technological and non-
technological means employed by a waiver applicant to mitigate the risk
of a small UAS operation and will issue a waiver if the applicant
demonstrates that his or her specific means establishes the requisite
level of safety.
2. Flight Termination System
    The FAA initially considered requiring a flight termination system
(FTS), which is a system that terminates the flight of a small UAS in
the event that all other contingencies have been exhausted and further
flight of the aircraft cannot be safely achieved, or other potential
hazards exist that require immediate discontinuation of flight.
However, the FAA determined that there are other viable alternatives
that can achieve this goal without requiring an FTS.
    The NPRM invited comments as to the costs and benefits of requiring
an FTS. After reviewing comments, the FAA has decided against requiring
small UAS to include an FTS.
    Several commenters, including the Small UAV Coalition, the
University of Arkansas Division of Agriculture, and Northrop Grumman,
agreed with the NPRM that use of an FTS should not be mandatory.
Southern Company stated that alternative operational measures would
adequately mitigate loss of control risk. Two individuals argued that
flight termination systems are too heavy for small UAS. The Oklahoma
Governor's Unmanned Aerial Systems Council commented that automatic
termination of flight could have significant unintended consequences
for the safety of people and property on the ground. NetMoby agreed
that flight termination systems are not necessary, but encouraged the
FAA to require return-to-home capabilities in UAS. Predesa also agreed
that flight termination systems should not be required for small UAS,
but asserted that GPS-based flight termination systems could mitigate
risk. Planehook Aviation argued that the use of flight termination
systems should be the operator's decision.
    On the other hand, some commenters, including ALPA and EAA, among
others, said the FAA should require small UAS to have flight
termination systems. Texas A&M University-Corpus Christi/LSUASC and TTD
said that a UAS without a flight termination system is dangerous to
other users of the NAS if positive control is lost. The Professional
Helicopter Pilots Association commented that this technology is already
being included in most devices above the hobby level. NAAA said most of
these technologies are software-based and utilize GPS systems already
onboard the UAS and thus have no effect on the weight of the aircraft.
Modovolate Aviation said the FAA should encourage small UAS
stakeholders to develop performance standards for flight termination
systems and require manufacturers to certify they have designed and
manufactured their vehicles in accordance with these standards.
    The Aviation Division of the Washington State Department of
Transportation, the Nez Perce Tribe and UPS generally felt that an FTS
could be optional equipage but stopped short of supporting a mandate.
One individual stated ``. . . that if loss of control does occur, it
can be easily mitigated by GPS based `return to home' systems which
take control of the craft and automatically fly it back to its launch
point. The most widely available consumer quadcopter, the DJI Phantom
2, comes standard with this capability out of the box, and many
hobbyists and commercial operators who build their own craft also
install similar systems, which can be obtained for less than $100.''
    The NPRM mitigated the potential risk associated with UAS flight
primarily through operational restrictions rather than airworthiness
certification and equipage requirements, such as the installation of an
FTS. If installed, an FTS may mitigate the risk associated with loss of
positive control by having the unmanned aircraft execute intentional
flight into terrain if the link between the remote pilot and the
unmanned aircraft is severed. However, mandating equipage such as FTS
would increase the costs of complying with this rule to address a
safety risk that may be mitigated through low-cost operational
parameters.
    Instead of requiring an FTS, the NPRM proposed to mitigate the risk
associated with loss of positive control using the concept of a
confined area of operation. Under the NPRM, the remote pilot would,
prior to flight, be required to become familiar with the area of
operation and to create contingency plans in that operations area to
mitigate the risk associated with possible loss of positive control to
people on the ground or other aircraft.
    The NPRM proposal is a less costly method to address loss-of-
positive-control risk because it does not require equipage (such as
FTS, ``return home,'' or geo-fencing systems) or airworthiness
certification. If FTS were to be required, that would be an equipage
requirement that would likely increase the costs of this rule. In
addition, an FTS equipage requirement would likely have to be
accompanied by some type of airworthiness certification requirement to
ensure that the FTS works reliably. This also would increase the costs
of this rule.

    Conversely, it is unclear whether an FTS would provide a safety
increase justifying the increase in costs for two reasons. First, the
operational restrictions of this rule would significantly confine the
area of operation of a small UAS, thus mitigating the loss-of-positive
control risk through operational parameters. Second, an FTS could be
potentially unsafe because using it would immediately terminate the
flight with the possibility of placing people below in harm's way,
especially if the FTS is programmed to automatically activate sometime
after the control link is lost and cannot be re-established. For these
reasons, the FAA will not require FTS on small unmanned aircraft in
this rule.
3. Other Technological Equipage
    A number of commenters suggested additional equipage requirements
for small UAS operations. However, because small UAS operations subject
to this rule pose a lower level of risk, there are operational
alternatives available to mitigate their risk to an acceptable level
without imposing an FAA requirement for technological equipage.
Additionally, the FAA recognizes that the use of new and advanced
technology applications on UAS has not been tested and there is not
enough data to support regulatory requirements of technological
equipage. Therefore, this rule will not mandate the use of any kind of
technological equipage or device.
    Modovolate Aviation recommended a general process for developing
and integrating equipage requirements for small UAS. The commenter said
it is important that the FAA ``avoid anything resembling airworthiness
and type certification for manned aircraft,'' and instead ``adapt the
consensus standard approach used in the early days of occupational
health and safety regulation and combine it with the performance
standards approach used by the Federal Communications Commission for
unlicensed wireless devices.'' Modovolate Aviation explained that the
FAA should encourage small UAS organizations to articulate performance
standards for control technologies, and then manufacturers would
certify that they have designed and manufactured their UAS in
accordance with these consensus standards. The operating rules would
require operators to confirm, as part of their pre-flight inspection,
that these basic features are present and operating properly, and any
manufacturers that falsely certify compliance with the standards would
be subject to civil penalties and criminal prosecution for mail or wire
fraud.
    As discussed in section III.J.3 of this preamble, the FAA has
determined that airworthiness certification for small UAS operating
within the limits set by part 107 is unnecessary. However, as noted by
the commenter, the FAA encourages industry organizations to set
voluntary standards for small UAS to further develop the industry. Such
standards, however, would not relieve the remote pilot in command of
his or her pre-flight responsibilities to determine that the system is
in a condition for safe operation under Sec. Sec.  107.15 and 107.49.
That is because the remote pilot in command must ensure that the small
UAS is in a condition for safe operation for each flight, which
requires greater diligence as the small UAS ages.
    A number of commenters addressed the NPRM's statement that
``existing technology does not appear to provide a way to resolve the
`see and avoid' problem with small UAS operations without maintaining
human visual contact with the small unmanned aircraft during flight.''
CropLife America and Responsible Industry for a Sound Environment,
commenting jointly, and the Professional Helicopter Pilots Association
agreed with FAA that no see-and-avoid technology currently exists, but
nevertheless said such technology should be required once it does
become available. The United States Ultralight Association said UAS
equipment should be designed with software or firmware that prevents
the UAS from being flown further than one mile from the operator. The
association asserted that ``[d]epth perception fails well before that
distance and one mile should be seen as the outside limit for safety.''
    The FAA recognizes that the use of software or firmware that
prevents the UAS from being flown further than one mile could
potentially help to prevent the small unmanned aircraft from flying out
of the area of operation. This type of software and firmware could also
potentially help to prevent injury or damage to those on the ground.
However, as discussed in section III.E.1.d of this preamble, the remote
pilot in command may need to deviate from the regulations of part 107
to respond to an emergency. A technological limitation on the small
unmanned aircraft traveling more than one mile from the remote pilot
could limit the remote pilot's ability to respond to an emergency
situation that requires quickly moving the small unmanned aircraft
farther away from the remote pilot.
    Several commenters addressed the issue of compliance with the
proposed maximum altitude and speed restrictions. PlaneSense and Cobolt
Air, commenting jointly, wondered why manned aircraft are required to
be equipped with an altimeter or an altitude limiting program or
device, but unmanned aircraft are not.
    The Permanent Editorial Board of the Aviators Model Code of Conduct
Initiative noted that, absent altimetry technology (such as altimeters
or GPS), altitude would need to be estimated from the ground, and
ground-based estimates are generally inaccurate and may cause
significant noncompliance and safety challenges. As such, the
organization recommended the final rule either require the use of a
``practical and effective technique'' for small UAS operators to
estimate altitude ``with sufficient accuracy,'' or require the use of
altimetric technology. The U.S. Hang Gliding and Paragliding
Association said a ``simple barometric system set at launch would
likely suffice'' to keep small UAS in compliance with maximum altitude
restrictions. An individual also said UAS should be equipped with
``devices that provide the operator with telemetry data such as (but
not limited to) height, speed, distance, bearing and battery level.''
    Virginia Commonwealth University Honors Students asserted that GPS
systems could be used to ensure compliance with both altitude and speed
restrictions for small UAS equipped with minimum equipment, such as an
altimeter and magnetic direction indicator, to ensure the UAS remains
below a specific altitude and within a certain radius from the
operator's location, in compliance with ATC instructions. Several
individuals said that FAA should require UAS to be equipped with
technology that limits operations to below a certain altitude or within
a certain airspace. Another individual suggested the requirement of
technology to enable automated communication between a UAS and an FAA
computer that can authorize flight in a particular area at a specific
time.
    As discussed in section III.E.3.a.ii of this preamble, while 400
feet AGL is generally the maximum altitude for a small unmanned
aircraft, there is an exception to that requirement. Specifically, this
rule allows a small unmanned aircraft flying within 400 feet of a
building to fly higher than 400 feet AGL. As such, a technological
component limiting aircraft altitude to 400 feet AGL would disallow
some small UAS operations that are permitted by part 107. In addition,
a categorical technological limitation on altitude would limit the
remote pilot's ability to respond to an emergency. With regard to

estimating altitude, section III.E.3.a.ii provides examples of other
methods that a remote pilot in command can use to estimate the altitude
of a small unmanned aircraft.
    The NJIT Working Group recommended the use of ``a heads up display
of flight information such as airspeed, vertical speed, attitude,
heading and power'' to help the remote pilot fly according to actual
flight parameters instead by sight.
    The FAA supports the NJIT Working Group's efforts to provide remote
pilots with an optimized method of displaying telemetry data of the
aircraft. However, a regulatory requirement for a heads up display is
unnecessary in this rule due to the limited nature of small UAS
operations, and for many aircraft, the lack of telemetry data to
display to the remote pilot.
    A number of commenters addressed a requirement for return-to-home
capabilities. Virginia Commonwealth University Honors Students said the
FAA should require UAS to be equipped with a GPS system that
automatically returns the UAS to home in adverse weather conditions.
Those students and NetMoby also said UAS should be equipped with
technology that returns the UAS to home when battery life is low.
    NetMoby also recommended UAS be equipped with return-to-home
capability ``which, when automatically activated, as a result of loss
of positive UAS control, puts the aircraft on a course to a waypoint
that is mandated to be programmed into the UAS circuit board Random
Access Memory (``RAM'') prior to departure from the ground.'' The
company further recommended the following to mitigate the risk
associate with loss of positive control of a UAS: (1) UAS be equipped
with GPS capable of position refresh rates of 5 seconds or better; and
(2) GPS be accompanied with WAAS differential for greater position
accuracy.
    The Small UAV Coalition asserted that technological capabilities
such as return-to-base and geo-fencing programming are currently being
used by small UAS operators in other countries, and that such
technologies ``achieve and surpass the level of safety attained by a
pilot's control of aircraft.''
    Airware acknowledged that detailed airworthiness requirements are
not needed ``for the very low risk environment proposed by this NPRM,''
but that ``minimal protections'' should nevertheless be required. One
such requirement cited by the company is a flight control system that
allows for certain contingency events to be monitored (e.g., lost RC
link, lost data link, low voltage), and for an appropriate response to
be executed should any such events occur (e.g., land now, return to
home and land, return to home, loiter and land). Airware said such
programmable contingency actions ``are critical, as flight systems
which just simply execute a return home and land procedure for example,
may send the aircraft on a course that intersects with a structure or
other obstacle.''
    Section 107.19 requires the remote pilot in command to ensure that
the small unmanned aircraft will pose no undue hazard to other
aircraft, people, or property in the event of a loss of positive
control of the aircraft for any reason. In consideration of the
numerous ways that a remote pilot may mitigate the risk associated with
a contingency event, the FAA considers it unnecessary to enact a
prescriptive requirement such as a return-to-home function, as many
other methods may exist now and in the future to ensure no undue hazard
due to a loss of control. For example, non-equipage mitigations for
loss of control may include utilizing physical barriers such as trees
or netting, utilizing security/safety personnel to control non-
participant entry into the operating area, or ensuring non-participants
are under/in a protected covering.
    The AIT Austrian Institute of Technology GmbH said that a data link
requirement is essential for safe operations, and that ``adequate
Frequencies and Standards should be put in place to support the growing
market potentials.'' The Institute went on to recommend specific data
link spectrum requirements for both visual-line-of-sight and beyond-
line-of-sight operations.
    Frequency spectrum requirements are outside the scope of this rule.
The comment has been forwarded to the FAA Spectrum Engineering service
unit for future consideration.
    Several individuals said small UAS should be equipped with flight
data recording systems or ``black boxes'' so that operators can be held
accountable for infractions. One individual said that, for those
aircraft that can record flight log data, there should be a requirement
to preserve that data in the event of an operation that causes injury
or property damage. The commenter further suggested that, in case of
airspace violations, the FAA consider requiring all such flight logs be
kept for some predetermined period of time.
    Due to the mitigations provided by part 107 that reduce the
likelihood of a small UAS flight resulting in significant injury or
property damage, a requirement to equip small unmanned aircraft with
flight data recorders would be unnecessarily burdensome.
    Transport Canada questioned whether, ``[g]iven the potential
interference caused by radios, cell phones, electronic devices, etc.,''
the FAA has considered a prohibition against using personal electronic
devices at, or in the vicinity of, a control station.
    Prior to flight, the remote pilot in command must, pursuant to
Sec.  107.49(c), ensure that all control links between the ground
control station and the small unmanned aircraft are functioning
properly. If an electronic device is being used nearby and that
electronic device affects the control link such that it is not
functioning properly, the remote pilot in command may not commence the
operation until the problem with the control link has been resolved.
The FAA expects that the remote pilot will resolve this problem by
either: (1) Terminating the use of any electronic devices that are
known to the remote pilot to cause interference with operation of the
UAS; or (2) delaying the operation until use of the interfering
electronic device has ceased. It would not be practical to enact a
prohibition on the use of personal electronic devices because such
devices are routinely used to control or monitor small UAS.
    The City of Phoenix Aviation Department said the FAA should require
``7460 applications'' from small UAS because ``there are unknown
impacts of UAS remote frequency system[s] interacting with commercial
airport operations.''
    The FAA disagrees. FAA Form 7460, Notice of Proposed Construction
or Alteration, applies to persons constructing structures greater than
200 feet AGL, or within a specific distance of an existing airport or
heliport. Because the form does not apply to aircraft operations, there
is no requirement for small UAS remote pilots to submit a 7460
application.
4. External Load and Dropping Objects
    In the NPRM, the FAA proposed to not allow external load and towing
operations under part 107. The FAA also proposed to prohibit objects
from being dropped from an aircraft in flight if doing so would
endanger the life or property of another. For the reasons discussed
below, this rule will allow external load and towing operations as long
as the object that is attached to or carried by the small unmanned
aircraft is secure and does not adversely affect the flight
characteristics or controllability of the aircraft. This rule will also
maintain the prohibition on dropping objects from a small

unmanned aircraft if doing so would create a hazard to persons or
property, but will rephrase the regulatory text of Sec.  107.23(b) to
make it similar to the ``undue hazard'' standard used in Sec.
107.19(b). Additionally, as discussed in section III.C.1 of this
preamble, this rule will also allow the intrastate transportation of
property for compensation or hire.
a. External Load and Towing
    In the NPRM, the FAA noted that external load and towing operations
``involve greater levels of public risk due to the dynamic nature of
external-load configurations and inherent risks associated with the
flight characteristics of a load that is carried or extends outside of
the aircraft fuselage and may be jettisonable.'' \105\ The FAA added
that these types of operations may ``also involve evaluation of the
aircraft frame for safety performance impacts, which may require
airworthiness certification.'' \106\ Accordingly, the NPRM would not
have permitted external load or towing operations to be conducted under
part 107. However, the FAA invited comment on whether external-load and
towing UAS operations should be permitted, whether they should require
airworthiness certification, whether they should require higher levels
of airman certification, whether they should require additional
operational limitations, and on other relevant issues.
---------------------------------------------------------------------------

    \105\ 80 FR at 9553.
    \106\ Id.
---------------------------------------------------------------------------

    Several commenters, including Cherokee Nation Technologies, NAAA,
and ALPA, generally supported the proposed prohibition on conducting
external load and towing operations. Cherokee Nation Technologies
contended that the risks associated with external loads and towing are
beyond the scope of this rulemaking effort. NAAA argued that additional
data is needed to safely allow external load small UAS operations in
the NAS. ALPA asserted that external load and towing operations require
a level of piloting skill that is higher than the one envisioned by
part 107.
    Approximately 30 other commenters opposed a blanket prohibition on
conducting external load and towing operations. Modovolate Aviation
stated that the NPRM does not explain sufficiently why external load
and banner-towing operations should be excluded. DJI asserted that
external load and towing operations could be conducted safely within
the other operating parameters proposed in the NPRM. DJI specifically
noted that the 55-pound limit on the total weight of the small unmanned
aircraft would significantly reduce the risk of cargo-carriage
operations by limiting the weight of the cargo that could be carried or
towed by the unmanned aircraft.
    Yale University, the Information Technology and Innovation
Foundation, American Farm Bureau Federation, and Google stated that the
proposed prohibition on external load and towing operations would offer
only marginal improvements in safety, if any, at the cost of important
research and a wide range of useful applications of small UAS. American
Farm Bureau Federation, the Michigan Farm Bureau, and the Missouri Farm
Bureau specifically noted that the prohibition is overbroad and
impractical as applied to agricultural applications. Short of
recommending that the FAA completely eliminate the external load and
towing prohibition, the American Farm Bureau Federation and the
Michigan Farm Bureau urged the FAA to clarify that this prohibition
only applies to actual towing operations or operations that would cause
the weight of the UAS to exceed 55 pounds. The Oklahoma Governor's
Unmanned Aerial Systems Council said that if a small UAS is
specifically designed to safely accommodate external loads and towing
operations, then these operations should be allowed as long as they are
in compliance with the manufacturers' engineering and operating
specifications.
    The Mercatus Center at George Mason University stated that the NPRM
fails to include a discussion of the benefits of allowing small UAS to
conduct external load operations. The commenter asserted that, given
that no fatalities have been reported due to ``jettisoned parcels from
UASs,'' parcel-for-parcel, it may be safer to transport goods via UAS
external load operations than to do so using delivery trucks. The
Colorado Cattlemen's Association and Amazon argued that the FAA should
take a performance-based approach to allow external load and towing
operations. AIA similarly recommended the FAA apply ``risk analysis
techniques'' to the specific operations under consideration.
    The University of California and the Consumer Electronics
Association stated that, instead of a blanket prohibition on external
load and towing operations, safety concerns could be mitigated by
sensible limits on weight, range, location and altitude, and by
technology and a registration procedure that certifies to a higher
degree of safety. By way of example, the Consumer Electronics
Association pointed out that Amazon has said that a 5-pound package
limit would create minimal safety concerns, yet would still permit the
delivery of more than 85 percent of the products it sells.
    Google and several individual commenters cited numerous examples of
small unmanned aircraft missions that would be adversely affected by a
prohibition on external loads and towing. These operations include
activities such as banner towing, magnetometer missions, towing lines
for electric utility industry, and delivery of tools and equipment. A
few commenters opposed the prohibition on external load and towing
operations in limited contexts. The National Ski Areas Association said
the prohibition should be relaxed for safety and emergency operations.
The Associated General Contractors of America said that the FAA should
invite further comment on whether the prohibition should extend to
highly controlled construction jobsites. Aviation Management stated
that FAA should be able to effectively assess the risk of towing
operations on a class basis or a case-by-case basis. One commenter
suggested that external loads of a limited weight should be allowed,
and that the weight allowed should be a specified percentage of the
weight of the unmanned aircraft.
    The FAA agrees with the commenters who objected to the proposed
prohibition on external load and towing operations. Under part 107, the
combined weight of the small unmanned aircraft and any objects towed or
loaded (either externally or internally) must be less than 55 pounds.
As a result of this limitation, the risk posed by a small unmanned
aircraft conducting external load or towing operations is significantly
lower than the risk associated with manned-aircraft external load or
towing operations, which can carry 1,000 to 50,000 pounds of cargo.
    Further, the majority of risks associated with load (either
internal or external) and towing operations are already mitigated by
the other provisions of this rule. First, Sec.  107.19(c) requires the
remote pilot in command to ensure that the small unmanned aircraft will
pose no undue hazard to other aircraft, people, or property in the
event of a loss of control of the aircraft for any reason. Second,
Sec.  107.49(a) requires the remote pilot in command to conduct a
preflight assessment of the operating environment, and consider the
potential risks to persons and property in the immediate vicinity.
Finally, as discussed below, Sec.  107.23(b) prohibits a person from
dropping an object from a small unmanned aircraft in a manner

that creates an undue hazard to persons or property.
    Because the other provisions of this rule mitigate the risks
associated with external load and towing operations, these operations
will be permitted under part 107 if they do not adversely affect the
flight characteristics and controllability of the small unmanned
aircraft. To ensure that this is the case, the FAA has revised Sec.
107.49 to require that, prior to flight, the remote pilot in command
and the person manipulating the flight controls of the small UAS must
ensure that any object attached to or carried by the small unmanned
aircraft (either internally or externally) is secured and does not
adversely affect the flight characteristics or controllability of the
aircraft.
    Flight characteristics refer to the stability of the small UAS,
while controllability refers to the maneuverability of the small UAS.
To satisfy the above requirement, the remote pilot in command must
examine the equipment used for lifting or securing a payload to ensure
that it is in good condition, strong enough for the task, and attached
in a manner such that there is no unintended shifting or detaching of
the payload. For example, if a single cable is used to secure and lift
a payload, the cable must be inspected to determine that it is securely
attached at both ends and that the cable and attach points are in good
condition so that the payload will not inadvertently detach. If netting
is used, the netting and the attach points must be in good condition so
that the netting does not inadvertently become detached. The payload
must also be securely fastened so that it does not slip out of the
netting during flight.
    A payload will likely adversely affect the flight characteristics
of the small unmanned aircraft if that payload shifts in a manner that
causes the small unmanned aircraft to deviate from its intended flight
path or become uncontrollable. In other words, if a payload becomes
partially detached or if the presence of the payload creates an
imbalanced small unmanned aircraft, then the flight characteristics of
the small unmanned aircraft have been adversely affected. Additionally,
if a payload shifts during flight or weighs down a small unmanned
aircraft such that the aircraft is unable to properly respond to a
remote pilot's controls, then the controllability of the small unmanned
aircraft has been adversely affected.
    A joint submission from the State of Nevada, the Nevada Institute
for Autonomous Systems, and the Nevada FAA-designated UAS Test Site,
and a comment from an individual claimed that external load and towing
operations involve a greater level of complexity and safety risk and
that the FAA should develop appropriate standards and certification
criteria for these operations. Conversely, Yale University said that a
prohibition on all external-load operations or requiring an
airworthiness certificate for such operations would impede ability to
rapidly prototype aircraft. The Oklahoma Governor's Unmanned Aerial
Systems Council recommended airworthiness certification only for larger
UAS platforms conducting external load operations.
    Planehook Aviation said that the FAA should create a special
category of common carrier certification for conducting external load
operations. The commenter recommended that FAA create a UAS-specific
advisory circular to mirror manned aviation guidance in AC 133-1A,
Rotorcraft External Load Operations in accordance with 14 CFR part 133.
    Separate airworthiness or other certification analogous to manned-
aircraft operations is not necessary for external load and towing
operations that will be conducted under part 107. As discussed earlier,
a small unmanned aircraft weighing less than 55 pounds (including the
weight of any payload) does not pose the same safety risk as a 1,000 to
50,000-pound manned aircraft. Thus, it is not necessary for a small
unmanned aircraft to be subject to the same regulatory provisions as a
manned aircraft that conducts external-load operations.
    Consequently, this rule will not require small unmanned aircraft
operating under part 107 to comply with either the provisions of part
133 (which normally applies to rotorcraft external load operations) or
current guidance associated with airplane external load operations.
However, because larger UAS than the ones governed by this rule may
pose additional safety risk, future rulemakings may impose additional
mitigations, such as those required by part 133, on larger UAS
operations. While the FAA does not plan to issue guidance on external
load operations with larger UAS in conjunction with this rulemaking, it
may do so in the future.
    DJI recommended that instead of banning towing operations, the FAA
use existing language from Sec.  91.15, which prohibits dropping
objects from aircraft in flight ``that creates a hazard to persons or
property.'' One individual commenter said the FAA should consider a
restriction on the size of a towed banner, and that the device should
meet requirements similar to the requirement for 14 CFR part 101
(balloons). Another individual commenter said towing operations should
be permitted as long as the power-to-weight/drag ratio is appropriate
for safe flight. In response, the FAA notes that, as discussed earlier,
this rule will allow external load and towing operations (including
banner towing) as long as the object is securely attached to the small
unmanned aircraft and does not pose adverse flight characteristics.
    Several commenters, including the Small UAV Coalition, the North
Carolina Association of Broadcasters, and Modovolate Aviation stated
the FAA needs to clarify whether a gimbal, camera, or sensor affixed to
a UAS is considered an external load. The News Media Coalition stated
that the final rule should make clear that an interchangeable camera
that is affixed to or carried by a small UAS to be used by that UAS is
permissible. SkyBridge Holdings said that any item that is clearly,
mechanically fastened to the aircraft (e.g., using screws or bolts)
should not be considered an external load.
    The FAA acknowledges the concerns raised by the commenters, but as
discussed earlier, this rule will remove the proposed prohibition on
external-load operations. Consequently, part 107 will not have any
external-load-specific regulatory provisions and, as such, a UAS-
specific definition of external load is unnecessary in this rule. The
FAA also emphasizes the requirements (discussed earlier) that any
object attached to or carried on or in the small unmanned aircraft must
be secured and may not pose adverse flight characteristics. These
requirements apply regardless of whether the object is carried inside
or outside of the aircraft.
    Southern Company sought clarification as to whether the proposed
external-load and towing prohibition would apply to tethered operations
(e.g., the stringing of a conductor, the rigging of climbing
protection, or the carriage of any line or cable that is tied to the
ground or held by a person). If tethered operations are permitted, the
commenter asked whether the weight of the tether counts toward the
small UAS weight limitation. Southern Company stated that a tether
provides sufficient risk mitigation such that it should not be
considered part of the aircraft for the purpose of determining weight.
    As discussed in section III.D.4 of this preamble, the weight of the
small unmanned aircraft includes everything that is on board or
otherwise attached to the aircraft and may be lifted. Thus, if

a cable is attached to an unmanned aircraft, then the weight of the
entire cable must be added to the weight of the unmanned aircraft to
determine whether the total weight is under the 55-pound limit imposed
on small unmanned aircraft. The FAA acknowledges that a portion of the
attached cable may rest on the ground during the small UAS operation,
but the small unmanned aircraft may end up lifting the entire cable if
positive control is lost during the operation. If the unmanned aircraft
is tethered by the cable in such a way that the cable, securely
attached to an immoveable object, prevents the unmanned aircraft from
flying away in the event of loss of positive control, only the portion
of the cable which may be lifted aloft by the small unmanned aircraft
must be added to the weight of the unmanned aircraft when determining
total weight.
    Transport Canada asked whether the FAA has considered prohibiting
certain payloads (e.g., explosives, corrosives, bio-hazards, lasers,
weapons). Transport Canada added that the FAA might consider a
prohibition on equipping small UAS with an emergency locator
transmitter (ELT), ``and the potential response of search and rescue
assets as a result of an ELT activation.''
    As discussed in section III.C.1 of this preamble, this rule will
not allow the carriage of hazardous materials. With regard to ELTs, an
ELT is generally required to be installed in manned aircraft under 14
CFR 91.207 for the purpose of locating a downed aircraft and aiding in
the rescue of survivors. Because a small unmanned aircraft will not
carry any people onboard, the installation of an ELT would not result
in significant safety benefits and will not be required by this rule.
Further, due to the cost and weight of ELT devices, we do not
anticipate small UAS owners voluntarily equipping their aircraft with
ELTs.
b. Dropping Objects
    In Sec.  107.23(b) of the proposed rule, the FAA proposed to
prohibit an object from being dropped from a small unmanned aircraft if
such action endangers the life or property of another. The FAA received
approximately 15 comments in response to this proposed provision.
    CAPA and one individual commenter expressed concern about the
proliferation of small UAS and their accessibility to persons with
limited or no aviation experience. Both commenters asserted that it
requires great skill to drop an object safely from an aircraft. CAPA
also expressed concerns about the potential security risks of
permitting objects to be dropped from small unmanned aircraft.
Similarly, two individual commenters worried that small unmanned
aircraft equipped for package delivery could be used to carry out
terrorist activities, such as dropping canisters of poisonous gases
into populated areas such as shopping malls.
    The FAA disagrees with the commenters that airmen operating under
part 107 will lack the skill necessary to safely drop an object from a
small UAS. As discussed in section III.E.1 of this preamble, all small
UAS operations must be conducted either by a certificated remote pilot
or under the direct supervision of a certificated remote pilot in
command. In order to obtain a remote pilot certificate under part 107,
an applicant will be required to demonstrate his or her knowledge of
how to safely operate a small UAS under part 107.\107\ Thus, operations
under part 107 will be conducted and overseen by certificated airmen
who will have the knowledge necessary to safely conduct various part
107 operations, including safely dropping objects from a small UAS.
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    \107\ Depending on whether the applicant holds a part 61 pilot
certificate other than student pilot, that demonstration will take
the form of either an aeronautical knowledge test or online
training.
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    With regard to dropping dangerous objects, the FAA notes that, as
discussed in section III.C.1 of this preamble, this rule will prohibit
the carriage of hazardous material by small unmanned aircraft. With
regard to terrorism and criminal activities more broadly, as discussed
in section III.J.2 of this preamble, there already exist criminal
statutes that prohibit criminal and terrorist activities.
    Five commenters suggested that the language in the final rule
regarding the dropping of objects should mirror the language in 14 CFR
91.15. These commenters suggested that while proposed Sec.  107.23(b)
does not necessarily differ in substance from Sec.  91.15, it should be
made explicit that the rule does not prohibit the dropping of any
object if reasonable precautions are taken to avoid injury or damage to
persons or property. DJI suggested that the FAA adopt the ``hazard to
persons or property'' standard used in Sec.  91.15 for external load
and towing operations.
    Section 91.15 prohibits an object from being dropped from an
aircraft in flight in a manner that creates a hazard to persons or
property. Section 107.19(b) of this rule uses a similar standard of
``undue hazard'' with regard to loss of positive control of a small
unmanned aircraft. In order to promote regulatory consistency
throughout part 107, the FAA has rephrased the regulatory text of Sec.
107.23(b) to use the ``undue hazard'' standard specified in Sec.
107.19(b). The revised Sec.  107.23(b) will prohibit dropping objects
from a small unmanned aircraft in a manner that creates an undue hazard
to persons or property.
    DJI noted that the term ``hazard'' is inherently subjective. DJI
acknowledged that ``it may be impossible to adopt a non-subjective
standard,'' and requested that the FAA provide guidance on the types of
operations that the FAA would consider to be hazardous.
    As discussed earlier, Sec.  107.23(b) will prohibit dropping an
object from a small unmanned aircraft in a manner that creates an undue
hazard to persons or property. For purposes of this rule, a falling