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Ultimate Guide to Over People Waivers & Section 107.39
By Jonathan Rupprecht | September 19, 2022
Are you trying to learn about 107.39 or figure out how to obtain a Part 107.39 Over People Waiver? Are you beating your head against the keyboard because the FAA gives you very little guidance on 107.39 waivers or they deny your waiver request with little to nothing said? Is your business needing you to obtain a waiver to fly over people?
You're not alone. The 107.39 over people waiver is the 2nd most requested waiver behind the night waiver. By the end of this article, you'll understand a great deal more about section 107.39, the 107.39 waivers, and the issues surrounding over people operations that the FAA will want you to address if you are going to apply for a 107.39 over people waiver.
1 Brief Background on the Over People Waivers
2 2020 Over People Operations Regulations
3 Part 107.19(c) (The Rarely Understood Regulation & Brother of 107.39)
4 What Are Direct Participants Under 107.39(a)?
5 Can I Fly A Drone Over a Road?
6 Issues Surrounding Over People Operations
7 What Aircraft Have Been Approved to Fly Over People?
8 FAA Created Part 107.39 Waiver Application Example
9 Advisory Circular 107-2A Discussing Over People
10 FAA's Commentary from the Preamble of:
Brief Background on the Over People Waivers
The 107.39 waiver was the 2nd most requested waiver. The FAA presented at the 2018 FAA symposium this slide which gives us a breakdown:
And at the 2019 FAA Symposium they posted this on operations over people waivers (107.39 waiver):
So with the horrible rejection rates of ~99% for over people waivers, is it basically impossible to get one of these 107.39 waivers? Is anyone getting one?
Yes. The FAA has been granting some of these 107.39 waivers. See this graph of 107.39 waivers approved per month.
A couple explanations for this increase are due to better parachute systems (and documentation), standards, aviation professionals being hired to obtain the approval, clarity from the over people NPRM, etc.
Well…….the FAA didn't want to be in the paperwork pushing business forever so they created a new set of regulations to allow people to fly over people by rule as opposed to by waiver.
2020 Over People Operations Regulations
On January 15, 2021, the FAA published the over people operations regulations. They went into effect on March 16, 20201. Here is the final language.
No person may operate a small unmanned aircraft over a human being unless—
(a) That human being is directly participating in the operation of the small unmanned aircraft;
(b) That human being is located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft; or
(c) The operation meets the requirements of at least one of the operational categories specified in subpart D of this part.
Subpart D gives us 4 categories of operations:. Here is a rough oversimplification of how the 4 categories work out:
Category 1 – Under 250 grams of weight + laceration protection
Category 2 – Impact energy equivalent to under 11 ft-pounds of solid object + laceration protection
Category 3 – impact energy equivalent to under 25 ft-pounds of solid object + laceration protection + operational mitigations
Category 4 – Type certificate aircraft under Part 21
Categories 1-3 basically mitigate hazards by reducing energy transfer while category 4 is reducing likelihood (which means it could be a heavier aircraft).
Remote ID is tied into this as well as sustained flight over people under category 1 and 2 require remote ID.
Let's unpack some of these terms.
What does "over" really mean?
The FAA provided some clarity:
"'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. A flight where a small UAS flies over any part of any person, regardless of how long the flight is over the person, would be considered an operation over people."
My aircraft doesn't have remote ID. Cat 1, 2, and 4 aircraft regs say I cannot do "sustained flight over open-air assemblies" while the Cat 3 reg prohibits "over open-air assemblies." Can you explain further?
The FAA provided more clarity:
"'Sustained flight' over an open-air assembly includes hovering above the heads of persons gathered in an open-air assembly, flying back and forth over an open-air assembly, or circling above the assembly in such a way that the small unmanned aircraft remains above some part the assembly. Sustained flight over an open-air assembly of people does not include a brief, one-time transiting over a portion of the assembled gathering, where the flight is unrelated to the assembly.
The FAA employs a case-by-case approach in determining how to apply the term "open-air assembly." Potential examples of open-air assemblies may include sporting events, concerts, parades, protests, political rallies, community festivals, or parks and beaches during certain events. Some potential examples that might not be considered open-air assemblies include individual persons or families exiting a shopping center, athletes participating in friendly sports in an open area without spectators, individuals or small groups taking leisure in a park or on a beach, or individuals walking or riding a bike along a bike path. Whether an open-air assembly exists depends on a case-by-case determination based on the facts and circumstances of each case."
Part 107.19(c) (The Rarely Understood Regulation & Brother of 107.39)
So if I don't fly over people and moving vehicles, I'm good right?
It's not as simple as that.
Section 107.19 applies which says:
(c) The remote pilot in command must ensure that the small unmanned aircraft will pose no undue hazard to other people, other aircraft, or other property in the event of a loss of control of the small unmanned aircraft for any reason. (Emphasis mine)
Here is what this graphically looks like.
107.39 prevents you from flying directly over (red) non-participating people while 107.19(c) (yellow) requires you to "pose no undue hazard . . . in the event of a loss of control of the small unmanned aircraft for any reason." Any reason like a propeller breaking (you are logging the time on those right to switch them out regularly?) an autopilot going nuts, GPS interference testing happening or GPS multipathing in an urban environment, etc. The FAA did charge a guy recently with this regulation for flying over downtown Philadelphia.
Notice 107.19(c) requires you to pose no undue hazard. It's exposure, not being over. Keep this in mind when doing your operations near people. See my section 107.19 article for a more in-depth discussion. Or maybe take my Part 107 regulations course over at www.rupprechtdrones.com? ;)
What Are Direct Participants Under 107.39(a)?
The FAA only considers 4 types of people to be participating directly and discusses this all below in great depth. (1) the remote pilot in command, (2) visual observer, (3) person manipulating the controls, and (4) a person necessary for the safety of the flight.
Your camera man, actor, boss, customer, construction worker, etc. cannot be considered to be participating unless they are one of those 4 things. Those people maybe necessary for the operation but they are not "necessary for the safety of the flight."
You might say, "Necessary for the safety of flight sounds a little vague. Can't we get creative with that term and make anyone necessary for the safety of flight?" The FAA did provide an example:
[I]f 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.
So why do direct participants get the special treatment? Can't I just get the consent of everyone involved? What about big signs saying "Drones Overhead" warning everyone? The FAA answered this in the 2016 small unmanned aircraft final rule,
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.
Advance warning is a safety mitigation, but not good enough by itself. It does come up regarding Category 3 operations.
The next option is if the people are protected by a structure or in a stationary vehicle.
Wait. Say what? What about moving vehicles?
Can I Fly A Drone Over a Road?
Unless you have a waiver to fly over a moving vehicle or you are flying in accord with 107.145, you can't. See 107.39(b). There has been at least two waivers I know of that were granted to fly over moving vehicles so it's possible but rare.
Yes, the new regulations allow for flights over moving vehicles under 107.145 but if you look closely, only an aircraft that fits into category, 1, 2, 3, or 4 can fly over moving vehicles. Basically, your Phantom 4 can't fly over vehicles and will need a waiver.
The big reason behind this prohibition is that even though the vehicle protects the person from the fall of the aircraft, the person might be startled from the drone impacting the vehicle or near-by and swerve which results in a crash into another vehicle or a tree or something.
Issues Surrounding Over People Operations
The two big issues are transferring kinetic energy and lacerations.
1. Transferring Kinetic Energy
This is an area that is currently being researched to understand how unmanned aircraft transfer energy. All sorts of things go into decreasing the energy transfer such as shape of the aircraft, the material it is made of, the positioning of certain parts, the size to create a greater distance between the aircraft's center of gravity and the most outer edge of the aircraft, etc.
Basically, an aircraft has an overall amount of energy while in flight and you have to figure out how to manage the kinetic energy levels and/or decrease the amount of transfer upon impact.
To keep energy levels low, you could fly slowly, low in altitude, into the wind, or decrease the mass of the aircraft. You could also install some type of flight termination system (parachute) which slows the aircraft down to a low kinetic energy level. Here is an impact calculator I built. Just plug in your drone and altitude to see what is your kinetic energy.
Drone Kinetic Energy Calculator
Unless you have a solid steel rod, you are NOT going to transfer all the energy into the object. All sorts of energy is dissipated by the aircraft moving, warping, rotating, compressing, etc. This is where it gets tricky in calculating things because you basically have to launch the drone into some crash test dummies (in different realistic configuration) to see what happens.
This is why in the FAA's over people proposed regulations, they came up with a simplified method. It's basically assuming all the energy is being transferred and you are just doing energy management with speed, altitude, wind, mass, etc.
And here is another wrinkle in calculating things, when you distance the center of gravity of the aircraft from the center of gravity of the object being impacted, there is decrease in energy transfer because the CG of the aircraft tends to glance off and not transfer all the energy through. Imagine this. Which will transfer more energy into the object? (1) an arrow with the CG close to the back of the arrow near the feathers or (2) near the tip. (1) would result in glancing and rotating around which means it's even less probable of nailing the target dead on where the energy would go down through the arrow shaft into the target.
Even when you have figured out calculating things (typically things are static like the aircraft's energy transferring properties., CG, and mass) the other big hurdle is proving that the energy levels you are at are indeed safe. Is 50 foot-pounds ok? What about 100 foot-pounds? What does that do to the neck or the skull?
There has literally been hundreds and hundreds of pages published on this one point. How much energy can a person really receive and what energy levels will result in what levels of injury where?
Basically, prove a "safe" level of energy and prove your aircraft will be at the safe energy level or lower during impact.
2. Lacerations
The other concern is that these flying lawnmowers might come into contact with people and cause further injuries on top of the blunt injury. The propellers could also break and stab the person.
There needs to be a mitigation for this hazard. One is to stop the propellers if there is an emergency and another is to install prop guards/bumpers.
What Aircraft Have Been Approved to Fly Over People?
It's really important you understand this. There are two sections here: (1) what was approved from (2016-2020) and then (2) what has been approved under the new regulations.
Some aircraft are approved by their design. Some are approved because they have a parachute system.
(2016-2020 )Aircraft & Parachute Systems
Here are some of the ones that have been approved that you can purchase today:
Prox Dynamic's (Owned by FLIR) PD-100 Black Hornet
Mavic 2 with Parazero Safeair
Phantom 4 with Parazero SafeAir
DJI Inspire 2 with Indemnis Parachute
Fotokite Pro 1
Here's a list of ASTM compliant parachute systems you can purchase today that were used to obtain waivers from 2016-2020:
AVSS parachute for the DJI Matrice 200 Series (Matrice 200 V1, Matrice 200 V2, Matrice 210 V1, Matrice 210 V2, Matrice 210 RTK V1, and M210 RTK V2)
Parazero SafeAir
Phantom 4 Series (non RTK)
Mavic 2 Series (Pro, Zoom, & Enterprise).
Indemnis parachute for:
DJI Matrice 210
Coupon Codes for Parachute Systems:
AVSS for $50 off. "AVSSRUPPRECHT50"
Parazero for $50 off. "RUPPRECHT50"
(2021 and Onwards)Aircraft & Parachute Systems
As of the time of this writing, there have been none approved under the new regulations.
FAA Created Part 107.39 Waiver Application Example
So I'm guessing you want a 107.39 over people waiver application example huh?
Section 352 of the FAA Reauthorization Act of 2018 says:
(a) Transparency.–Not later than 30 days after the date of enactment of this Act, the Administrator shall publish on the FAA website a representative sample of the safety justifications, offered by applicants for small unmanned aircraft system waivers and airspace authorizations, that have been approved by the Administration for each regulation waived or class of airspace authorized, except that any published justification shall not reveal proprietary or commercially sensitive information.
The FAA published a representative sample. I have it below. This a waiver example from the (2016-2020) period. I don't know how well it would work now. But before you go and just copy-paste this, the FAA didn't really craft a representative sample of what the normal every day person would ask for. For example, it says one of the mitigations is "Non-ISM C2" which I'm betting like 99% of y'all don't have access to. It also says it is for a "nearly neutrally buoyant balloon" which is not operated by 99% of y'all. Is it helpful? Yes, but it isn't a solution for 99% of y'all. I'm just being up front and honest with ya so you don't copy-paste and waste your time.
This is a representative sample of an approved waiver application for 14 CFR § 107.39
Description of proposed operation:
John Doe Drones plans to operate the sUAS below 400 feet and only in G airspace. The maximum altitude of the sUA is restricted by a tether, and the sUA will not exceed 25 feet agl. The proposed sUAS operations will occur over persons who are not direct participants in the sUAS operations, and population densities and numbers of persons which would be considered large outdoor assemblies of persons.
The sUA is a Lighter than Air design, with a maximum non-inflated weight of 10 pounds. The 10 pounds includes the envelope, power system, control system, and camera. In flight, the maximum tare weight is .1-2 pounds. This will ensure the sUA always operates with negative buoyancy, but remains controllable without using excessive control inputs or power consumption. In the event of a fly-away, the envelope does have quick release valve that will deflate the envelope. The valve is sized for a controlled gas release, and combined with the maximum operational altitude, keeps the kinetic energy low enough to not cause injury to humans, if it were to impact a person.
The sUA has been demonstrated to not cause a serious injury or worse, if it impacts a person for any reason. Detailed risk assessment information on testing and demonstration is located Appendix 1, titled "Risk Management" in the XYZ Operators Manual (OM). Excerpts from the XYZ Operators Manual:
1. Before flight, the unmanned moored balloon will be filled with helium and checked for buoyancy. The maximum tare weight must be no more than .1kg before takeoff. (OM section 2.1 operational limitations, section 4 operational procedures)
2. In the event of a single power system failure, the redundant ducted fans used for propulsion will keep the aircraft aloft. If all motors fail simultaneously, the aircraft will slowly descend, at a rate not exceeding 1 m/s (OM section 3.5 emergencies. Testing results and methodology to support the descent rate is located in OM appendix 4)
3. The nearly neutrally buoyant balloon, with a tare weight of no greater than .2 pounds, will transfer less than 1 joule of energy to a person. The 1 joule of energy transfer corresponds with a negligible injury risk to humans (OM appendix 5 for detailed assessment of the types of injuries likely to result with a transfer of 1 joule of energy to a human)
4. The sUA construction consists of two layers of rip stop nylon with a rubber like on the interior that allows the envelope to hold helium gas. Details on the material, material limits, construction techniques, failure modes, expected rate of gas loss, and validation testing is located in OM appendix 2.
5. The sUA remains flexible, and is not rigid when inflated to operational pressure. The flexibility assists in the absorption and distribution of impact energy through plastic deformation (OM appendix 5).
6. The sUA has an additional level of safety provided by the use of a small, high strength tether. This tether shall not exceed 30 feet in length, and will be used by the remote PIC to physically restrain the aircraft in the event of a flight control system malfunction, propulsion system failure, and to prevent a sUA fly-away in the event of high winds (detailed description of tether, tether strength, and maximum length in OM section 2.2 operational limitations, and appendix 7). The tether is longer than the maximum operational altitude to allow the pilot additional horizontal flight of the sUA.
7. A complete risk assessment of the proposed operation is located in OM appendix 1. Documentation, validation, and test data for the mitigations is referenced in the footnotes, and all the footnote information has been included in the OM and appendices by OM section number or appendix and page number.
8. There are no rotating parts or sharp edges which could injure a non-participating person. Rotating parts are enclosed in a manner that would not cause injury to a person in any of the above listed failure modes. The thrust vectoring system is contained within a protected housing. The protection grates are sized to not allow a human finger to reach the rotating interior parts (OM appendix 9 for design standard and validation materials to support meeting the design standard).
9. Prior to operations, in addition to being a part 107 certificated airman, John Doe Drones requires completion of the XYZ drone manufacturer training program. The training program includes both initial operator and continuing operator training curriculum. Both programs are taught by the manufacturer, and details, including curriculum, curriculum segments, minimum requirements, and completion standards are located in the John Doe Drones Operator Training Manual (TM). The training program includes ground, hands on training with the sUA, inflight training, and a flight skill test.
10. For all operations over human beings, there will be a second crew member required (OM section 2.6). This crew member must also undergo training (TM section 3). Other examples of risk mitigations that have been used as risk mitigations for a successful waiver application to § 107.39 include:
 sUA size and weight do not pose an injury risk when impacting a human being
 sUA design features reduce the energy transferred to a human being in an impact, and the resulting energy transfer does not pose the risk of a serious injury to a human being
 sUA uses an energy dissipating device to lower the kinetic energy transferred to a human during an impact with a human being, the resulting energy transfer does not pose a risk of a serious injury
 sUAS incorporates a parachute system meeting ASTM F3322-18
 sUA has design reliability equaling the failure rates set forth in 14 CFR Part 23
 Continuing sUA reliability program
 Training
 Operational manual system
 Safety Management System
 Non-ISM C2
 Strategic mitigations to avoid most overflight of human beings, to achieve an acceptable level of safety
 Flight termination system
 Hands free duplex communication devices
 sUAS design has redundant systems and architecture
 sUAS software design assurances and version control
 geo-fence
So you want to learn more? Below is all of the 107.39 and over people related discussions from the final Part 107 regulations published by the FAA.
Advisory Circular 107-2A Discussing Over People
There is a bunch of stuff. Start reading at Chapter 8.
FAA's Commentary from the Preamble of:
2020 Over People Regulation Amending the 2016 Rule
IV. Operations Over People: General Discussion
This final rule allows routine operations over people in accordance with part 107 and under certain conditions without a waiver or exemption.[24] Consistent with the FAA's proposal, the requirements for routine operations over people vary depending on the level of risk that operations of small unmanned aircraft present to people on the ground. The FAA proposed three categories of permissible operations over people based on the risk of injury they present: Category 1, Category 2, and Category 3. This rule finalizes those three categories as described in the following sections and adds a fourth category to permit operations over people that occur with small unmanned aircraft that have an airworthiness certificate. The following sections describe the requirements and limitations that mitigate the risks associated with operations over people. The discussion below also includes responses to comments received to the NPRM.
A. Safety Concerns
1. RISKS OF OPERATION
Some commenters expressed concern that the proposed rule was too permissive, not enforceable, and would have a negative effect on public safety. Chicago's First Lady Cruises, the International Association of Amusement Parks and Attractions (IAAPA), and numerous individuals expressed concerns about the proposed rulemaking because of the potential risks. The National Agricultural Aviation Association (NAAA) opposed allowing operations over people without a waiver because there is a lack of safety data, among other reasons addressed elsewhere in this rule. The commenter was concerned that the widespread use of small UAS has caused several incidents over the last two years, and allowing operations over people to become routine would open the floodgates to operators conducting unsafe operations. A few commenters opposed the proposed rule because they believe there is no way to properly enforce the rule. One commenter opposed operations over crowds, towns, and cities because of the lack of redundancy and safety infrastructure. Another individual cited unmanned aircraft interference with aerial firefighting activities as an example of the negative impact. One commenter noted a single unmanned aircraft can damage an aircraft or structure and expressed concern about unskilled remote pilots.
Between 2016 and September 2020, the Agency has issued 175 waivers for operations over people. The FAA issued these waivers based on a wide range of safety cases and has utilized available research, including the ASSURE reports. None of the 175 operations over people waiver holders have reported injuries to persons on the ground, nor have they reported damage to any property on the ground in excess of $500.00, events that are required to be reported by § 107.9. Considering the safety record of these waivers for operations over people, the available safety data supports the determination that operations over people can occur safely in accordance with this rule.
Compliance with manufacturer and operating requirements as established for Categories 1, 2, and 3 and the airworthiness certification requirements of Category 4 will mitigate the safety risks of operating over people to a level the FAA finds acceptable. Moreover, the FAA has a carefully structured Compliance Program and an Enforcement Program to handle all statutory and regulatory violations, including violations of part 107. The FAA establishes regulatory standards to ensure safe operations in the NAS. The FAA's system is largely based on, and dependent on, voluntary compliance with regulatory standards. FAA personnel use compliance, administrative, or legal enforcement actions to uphold the public's safety interest in ensuring that all regulated persons conform their conduct to statutory and regulatory requirements. FAA Order 8000.373A, FAA Compliance Program, and Order 2150.3, as amended, Compliance and Enforcement Program, are used to address safety concerns and actual or apparent deviations from regulations or standards. Public law and agency policy allow FAA program offices to use discretion when taking action to resolve safety issues in the NAS. FAA Orders 8000.373A and 2150.3, as amended, and the policies and procedures issued by program offices, guide agency personnel in the exercise of prosecutorial discretion, including the use of compliance, administrative, and legal enforcement action, to best ensure that regulated persons conform their conduct to statutory and regulatory requirements. Noncompliances by regulated persons willing and able to comply and willing to cooperate in corrective actions may be addressed with compliance actions, except when legal enforcement action is required or is preferred under agency policy. Under the Compliance and Enforcement Program, FAA program offices, such as Flight Standards Service, are policy owners for compliance actions. The FAA anticipates that in situations where law enforcement personnel need to ascertain whether an unmanned aircraft operating over people under this rule are compliant, the serial numbers broadcast by unmanned aircraft as required in the Remote ID final rule will allow law enforcement to expeditiously determine the make and model in the FAA database. Noncompliances by regulated persons unwilling or unable to comply or not cooperative in corrective actions are addressed with enforcement action.
Finally, the FAA notes that this rule prohibits Category 3 over open-air assemblies. Additionally, in response to comments, remote pilots are prohibited from operating a small unmanned aircraft as a Category 1, 2, or 4 operation in sustained flight over open-air assemblies unless the operation meets the requirements of § 89.110 or § 89.115(a) (remote identification operational and broadcast requirements for standard remote identification unmanned aircraft or unmanned aircraft with remote identification broadcast modules). The FAA may waive compliance with this provision as appropriate. However, conditions of any waiver issued may require the operator to notify local law enforcement prior to the operation. All small unmanned aircraft operations are subject to remote identification requirements upon the applicable remote identification compliance date, as specified in the Remote Identification for Unmanned Aircraft final rule. This prohibition is discussed in more detail in Section XIV.B. For a further explanation of open-air assemblies and sustained flight, please see Section VI.E.
2. RISKS OF SMALL UAS OPERATIONS
Several commenters generally supported small UAS operations over people, and offered various suggestions. A commenter supported operations over people by those who conduct pre- and post-flight inspections of the small UAS and operate in a safe manner. Another commenter supported operations over people if the regulations mirror those of general aviation aircraft operating in a similar capacity. One commenter also expressed concerns about remote communication for UAS operations, stating that the U.S. must take steps to protect the "RF spectrum." In response to these comments, the FAA notes that the requirement to conduct safe operations exists in §§ 107.15, 107.19, and 107.23 and the requirement to conduct a preflight inspection is codified at § 107.49; moreover, small UAS and manned aircraft have different safety requirements and operational considerations, which the FAA has addressed in distinct regulations. As for protection of radio frequencies (RF) for small unmanned aircraft operations, the Remote Identification of Unmanned Aircraft Systems rule, which appears in this same issue of the Federal Register, addresses concerns about radio frequencies and UAS operations.
The Motion Picture Association of America (MPAA) and NCTA—the Internet & Television Association (NCTA) urged the FAA to use conditions and limitations of current film and television waivers as a baseline for professional newsgathering and closed-set small UAS operations over people. The FAA has reviewed and processed numerous requests for relief from the prohibition of operating small unmanned aircraft over people and has considered this information in finalizing this rule.
For Category 2 or Category 3 operations over people, a commenter asked whether the FAA would require a second- or third-class medical certificate or BasicMed and suggested compliance with § 61.53(b). The FAA did not propose Categories 2 and 3 operations to require medical certification. Section 107.61(c) states that, to be eligible for a remote pilot certificate with a small UAS rating, the applicant must not know or have reason to know that they have a physical or mental condition that would interfere with the safe operation of the small UAS. The responsibility for knowing the effects of medication resides with the remote pilot and the FAA has many publications that are informative regarding remote pilots' use of medications.
3. COMMENTERS FAVORING FEWER RESTRICTIONS
Other commenters opposed regulations or restrictions for UAS, in general. DJI commented that flights over people are already occurring without serious consequences. DJI and the Commercial Drone Alliance (CDA) both believe proposing this rule for all unmanned aircraft under 55 pounds is too strict in consideration of the risks the operations present. CDA wrote that the proposed rules would impose undue costs without a corresponding safety or security benefit, and that there would be "no meaningful or scalable expansion of commercial small UAS operations, which would be limited to the smallest and lightest unmanned aircraft and narrowly-drawn operational areas." CDA asserts such an absence of expansion will result in the United States surrendering its leadership in innovation and aviation safety.
The FAA disagrees with these commenters, as this rule facilitates routine operations over people by implementing performance-based requirements, eliminating the burden of applying for a waiver, while still ensuring the safety of the public. In addition, the four categories of small unmanned aircraft operations over people allows for a significant expansion in the commercial utility of small UAS in the United States. All four categories of small UAS under 55 pounds may operate over people under certain conditions, which do not inherently limit operations to the lightest aircraft, nor do they result in narrowly-drawn operational areas. This rule supports innovation and allows the United States to continue to be a leader in UAS integration.
4. AIRSPACE COMMENTS
The FAA received some comments concerning operations over people in certain types of airspace. The City of New York (NYC) objected to "open ended" Category 1 and Category 2 operations over people due to the complexity of NYC's airspace. NYC wrote that it "is home to huge volumes of manned air traffic, skyscrapers which block and reflect signals, and one of the most complex and noisy radio frequency environments." NYC reported it also faces heightened security and safety issues due to its dense population and critical infrastructure. Similarly, Metropolitan Airports Commission (MAC) expressed concerns regarding operations over people in and around areas with airports.
Most of the airspace in and around NYC is either class B, C, D, or E and includes Special Flight Rules Areas (SFRA) and Temporary Flight Restrictions (TFR), both of which require operators to receive specific authorizations to operate. For example, § 107.41 requires remote pilots to obtain airspace authorization from the FAA prior to operating in Class B, C, or D airspace or within the lateral boundaries of the surface area of Class E airspace adjacent to an airport. The FAA finds that the existing requirements for authorizations coupled with the operations over people requirements of this final rule are sufficient to mitigate risks in airport environments. The FAA disagrees with NYC's comment that Category 1 and Category 2 operations are "open ended." Category 1 restricts operation by weight and prohibits small unmanned aircraft from having any exposed rotating parts that would lacerate human skin. Aircraft eligible for Category 2 operations must comply with injury severity limits and are subject to the exposed rotating parts prohibition and a prohibition on having safety defects.
NYC also argued that NYC agencies must be permitted to provide input on whether specific waivers should be granted for small UAS operations over people in their airspace. The FAA does not agree and finds this request outside the scope of this rule. The FAA will evaluate all requests for waiver of the requirements finalized in this rule based on information the applicant provides.
A commenter stated the FAA should allow operations over people if there are no manned aircraft in the area, and suggested the operations should occur directly over the operator. Section 107.37(b) already prohibits operations of small unmanned aircraft so close to another aircraft as to create a collision hazard. In addition, § 107.39 continues to permit operations over a person who is directly participating in the operation.
The National Football League (NFL), Major League Baseball (MLB), the National Association for Stock Car Auto Racing (NASCAR), and the National Collegiate Athletic Association (NCAA), responding together, noted the NPRM does not specify that "all other existing aviation restrictions, such as the sporting event temporary flight restriction, restrain the operations identified in the rule." These organizations asked FAA to specify that the authorizations provided in the proposed rules remain subject to rules generally applicable to aircraft. The FAA continues to restrict operations over sporting events by issuing TFRs and will not discontinue these restrictions with the implementation of this rule.
B. Comments in Support of Additional Requirements
Numerous commenters generally supported allowing operations over people without a waiver only if the FAA imposed requirements on the remote pilot, the small UAS, or restricted the operating environment.
Some commenters recommended allowing operations over people only if the remote pilot has an emergency plan to land the small unmanned aircraft safely away from people. Section 107.23 currently prohibits operating a small UAS in a manner so as to endanger the life or property of another. Although the FAA declines to require remote pilots to have an emergency plan, contingency planning may be necessary to mitigate the potential risks of undue hazards that could endanger persons or property on the ground. Section 107.49(a) requires that, prior to flight, the remote pilot must assess the operating environment and consider the risks to persons and property in the immediate vicinity. The FAA recommends that, as part of this assessment, remote pilots utilize a risk mitigation process prior to the initiation of every small UAS operation to control or eliminate hazards.[25] This may include emergency landing contingency planning. Additionally, remote pilots may only operate over people if they have an eligible small unmanned aircraft.
Several commenters recommended requiring additional training or testing for certain categories of operations over people. One commenter recommended hands-on training and stated a pilot should know how to fly proficiently, without the assistance of automation. A commenter also wrote that training pilots to identify and assess the risks of an operation is only worthwhile if pilots, in conducting operations over people, are trained to respond to (1) the loss of a Global Positioning System (GPS) signal, (2) the loss of communications links, (3) wind shears and other wind events, and (4) low-altitude weather events. As pilots are required to remain up to date on the current regulations, they should expect that required training and testing will include the regulatory requirements to fly over people. Additionally, §§ 107.73 and 107.74 include knowledge areas on adverse weather and emergency planning,
Great Midwestern Home Inspections, LLC suggested requiring onboard safety devices such as obstacle avoidance and GPS for a small unmanned aircraft used in operations over people. Another commenter wrote that a drone purchased off the shelf for $29.95 should not be flown over people and that it would be preferable for the FAA to support responsible pilots through education and certification, and to work with manufacturers to design and equip a small UAS capable of avoiding accidents. Several commenters stated the FAA should not oversee or impose requirements on all small UAS in the same manner, but did not agree on which types of small UAS the FAA should regulate more closely than others. Several commenters asserted off-the-shelf "toys" presented safety problems. Other commenters opined the proposed rule favored "high-quality" small UAS equipped with safety features. In contrast, another commenter thought the FAA should regulate "over-the-counter" small UAS less than custom, commercial, and specialized small UAS. The FAA declines to require in this rule specific safety devices or prescriptive requirements based on perceived consumer quality. The FAA does not consider the cost of a small UAS is an indicator of its safety; rather, as described in this preamble, treatment under this rule turns on whether a small unmanned aircraft fulfills the requirements of one of the four categories.
Some commenters recommended significantly restricting operations over people. A few commenters suggested the FAA only allow remote pilots to operate small UAS over people when the operation occurs within a closed site within which all human beings wear protective equipment. Regarding the comments on the requirement for a closed or restricted access site, please see the discussion about closed sites in greater detail in Section VI.E. below. Category 3 operations must comply with such restrictions, which are not necessary for operations conducted in Category 1 or Category 2, as those operations are lower risk. As discussed later in Section VII, Category 4 small unmanned aircraft have demonstrated reliability through airworthiness certification; as a result, they do not require applicability of a regulation that restricts the operation to certain types of sites. However, Category 1, 2, or 4 operations that are not compliant with remote identification are prohibited from sustained flight over open air assemblies. Lastly, while the NPRM did not suggest wearing personal safety equipment, remote pilots and other personnel are not prohibited from wearing safety equipment.
Several commenters suggested the inclusion of limitations on who would be eligible to operate over people. One commenter suggested the FAA require (1) an active membership with the Academy of Model Aeronautics (AMA), and (2) that small unmanned aircraft be registered, have tracking lights, and be marked with numbers from both the FAA and AMA. These commenters recommended that pilots have a remote pilot certificate under part 107 for all commercial operations and that any failure to follow the rules result in heavy fines. The Agency disagrees with these recommendations. Requiring membership in an organization places an unnecessary burden on operators when multiple safety measures codified in part 107 already exist. Small unmanned aircraft registration is currently required under parts 47 and 48 and all part 107 operators are required to have a current remote pilot certificate. No regulatory changes are necessary for the FAA to take action in response to non-compliance with these rules.
Another commenter recommended imposing an age minimum for remote pilots allowed to conduct operations over people because the commenter believed young pilots cause problems that result in restrictions for responsible operators. Section 107.61 already requires applicants for remote pilot certificates to be at least 16 years old, and the FAA does not have data indicating that additional age restrictions are necessary at this time.
Several commenters asked the FAA to develop separate rules or requirements for specific types of operations. A commenter who opposed the NPRM suggested allowing operations over people only if the operations are necessary and occur pursuant to permission from the FAA, which should consider the operator's training and liability insurance. This commenter recommended a 24-hour hotline exist for operators to call for permission to fly over people.
Several commenters opposed operations over people except for commercial reasons, such as making a movie. PrecisionHawk, Inc. suggested the FAA create a separate category for operations over people to permit such operations when they occur to save lives or reduce exposure to hazardous situations. Similarly, a few commenters asked the FAA to establish a new category for low-risk operations and exempt such operations from certain rules; these commenters suggested this approach would obviate the need for waivers and thereby reduce the burden on the FAA. Part 107 does not distinguish between the purpose or type of the operation. This rule establishes minimum requirements for safe operations over people; these requirements apply to all part 107 operations. Amending the requirements based on purposes of operations would be inconsistent with the framework of part 107 and the risk assessment model on which it is based.
Small UAV Coalition commented that the FAA should add references to the section titled "Limitations on operations over human beings" to include other regulatory references because operations over people can also be authorized by waiver or exemption. The FAA does not believe this addition is necessary, as the opportunity to apply for and receive waivers and exemptions is clearly defined within the current regulatory framework.
C. Requests for Clarification
Some commenters supported allowing operations over people but believed the rules are too complicated or need clarification. A commenter suggested removing the double negative in the proposed draft of § 107.120(a)(3)(ii) to make it easier to read and to remove any potential textual ambiguity. This rule includes an update to the text of § 107.125(c)(2) [formerly § 107.120(a)(3)(ii)], for clarity.
A commenter noted that proposed § 107.39(a) is missing the "or" before paragraph (b), which the commenter believed is an error. The FAA notes that the language in this, and all regulations, states that (a), (b), or (c) applies, and is understood that in a continuous list that the "or" applies to all items previously listed.
Several commenters questioned how one could determine whether a small unmanned aircraft is flying directly over an individual. Section 107.31 requires all operations to be within visual line of sight, specifically requiring that the remote pilot or visual observer (if used), must (1) know the unmanned aircraft's location; (2) determine the unmanned aircraft's attitude, altitude, and direction of flight; (3) observe the airspace for other air traffic hazards; and (4) determine that the unmanned aircraft does not endanger the life or property of another. Therefore, as the remote pilot or visual observer are required to have a holistic and complete view of the operating environment, they should be able to ascertain whether the unmanned aircraft is flying over people. Since part 107 became effective in 2016, remote pilots and visual observers have refrained from flying over people by keeping the small unmanned aircraft within visual line of sight. This requirement to maintain visual line of sight continues to apply to small UAS operations that occur under part 107.
Several commenters suggested the FAA consider population density in the development of this rule and categorize approvals of operations on this basis.[26] The FAA developed the eligibility requirements for Categories 1 and 2 to mitigate the risk of injury, regardless of population density in the operating area. Similarly, the eligibility requirements for Category 3 mitigate the risk of injury with both design elements and operating limitations, as described in Section VI.E. Finally, Category 4 small unmanned aircraft may operate over a variety of population densities, subject to the operating limitations associated with their airworthiness certification. With the risk mitigation measures this rule established for each category, limitations based on population density are unnecessary. Furthermore, Category 1, 2, or 4 operations that are not compliant with remote identification are prohibited from sustained flight over open air assemblies.
D. Minimum Stand-Off Distances
In the NPRM, the Agency requested comment on whether a prescriptive standard should exist for a minimum vertical or horizontal distance, and whether it should apply for operations of small unmanned aircraft over people.[27] The FAA also requested commenters provide data to support any comments identifying a prescriptive standard.
Several commenters responded to this request, including the Association for Unmanned Vehicle Systems International (AUVSI); Motorola Solutions; the American Public Power Association (APPA), the Edison Electric Institute (EEI), and the National Rural Electric Cooperative Association (NRECA), responding together; and the Republic of China. These commenters supported the FAA's decision not to require specific minimum stand-off distances for operations over people. Droneport Texas, LLC commented that because the pilot only has access to the first 400 feet above the ground, further restrictions on the available airspace would "serve to handcuff remote pilots by reducing the latitude of operations." The National League of Cities (NLC) raised concerns that potential horizontal or vertical stand-off distances would be unachievable when combined with the safety requirements in the proposed rule. NLC stated this inability to comply might create incentives for small unmanned aircraft to operate at lower altitudes above people and property. Many commenters agreed that stand-off distances would reduce the number of locations that would be acceptable for small UAS operations.
Several commenters, including the Air Line Pilots Association, International (ALPA); the National Association of Counties; the National Association of State Aviation Officials (NASAO); the Air Medical Operators Association (AMOA) and the Association of Air Medical Services (AAMS), responding together; and the Metropolitan Airports Commission (MAC), supported the establishment of stand-off distances. Commenters encouraged stand-off distances as a way to prevent accidental collision, but did not agree on what those distances should be. Although APPA, EEI, and NRECA stated they do not support across-the-board mandatory standoff distances, they expressed support for creating a stand-off distance for non-utility unmanned aircraft operated near electric infrastructure. These commenters referred to the requirements of Section 2209 of the FAA Extension, Safety, and Security Act of 2016 (FESSA 2016) [28] and stated imposing such a restriction would protect infrastructure from unmanned aircraft interference and any potential harm.
Flytcam Motion Pictures was undecided about stand-off distances, but suggested that if they were required, the FAA should quantify the stand-off distance based on the size of the aircraft, its potential velocity, weight, and size of rotating edges. Another commenter suggested the FAA establish specific stand-off distances that consider the performance, size, and payload capabilities of small unmanned aircraft.
On further review, the FAA has determined that the framework of part 107 as codified in the final rule will maintain safety in the NAS. Mandatory minimum stand-off distances for small unmanned aircraft are not appropriate at this time. Part 107 already requires the remote pilot to ensure the small UAS operation does not pose an undue hazard to other aircraft, people, or property in the event of a loss of control of the aircraft. A prescriptive stand-off distance would not increase the level of safety of small UAS operations beyond the level that compliance with part 107, as amended by this rule, already achieves.
V. Category 1 Operations
The NPRM proposed to establish a category of operations over people using small unmanned aircraft that weigh 0.55 pounds or less, including everything that is on board or otherwise attached to the aircraft at the time of takeoff. The FAA determined that operations of small unmanned aircraft weighing 0.55 pounds or less, subject to all of the existing requirements governing operations in part 107, pose a low risk of injury when operating over people. The NPRM referred to this category of small unmanned aircraft operations as Category 1.
The NPRM explained that remote pilots in command would be responsible for determining that their small unmanned aircraft does not exceed 0.55 pounds and would therefore be eligible for operations in this category. The weight limit would apply from takeoff to landing, meaning that any cargo attached to the small unmanned aircraft must not cause the aggregate weight (unmanned aircraft plus cargo) to exceed 0.55 pounds. The NPRM did not propose any design standards for Category 1. The FAA invited public comment, however, on any available data on the risk of injury to persons posed by operations using small unmanned aircraft that weigh 0.55 pounds or less. The FAA also invited public comment on whether operations of small unmanned aircraft eligible to operate pursuant to Category 1 should be subjected to a performance-based requirement for exposed rotating parts.
A. Weight Threshold
The FAA received many comments on the proposed 0.55-pound weight threshold for small unmanned aircraft to qualify for Category 1 operations over people. Several commenters, including Droneport Texas, LLC, ALPA, Small UAV Coalition, and others supported the proposed weight threshold for Category 1. Many commenters supported having a weight-based category for low risk unmanned aircraft, but found the proposed weight limit too conservative and recommended to increase the threshold to 1 pound. Other commenters recommended weight thresholds ranging from 0.70 pounds to 8 pounds.
A number of commenters specifically cited the ASSURE study and recommended the Agency consider it for setting the weight threshold for Category 1 operations. As discussed in Section VI.A., the ASSURE study is consistent with the safety requirements the FAA proposed for small unmanned aircraft above 0.55 pounds. The FAA finds that small unmanned aircraft above 0.55 pounds must demonstrate compliance with the safety requirements to operate over people. Commenters also frequently cited the 0.55 pound weight limit as a stop-gap weight pulled from other studies in the early stages of UAS development that is now outdated.[29] DJI cited a June 2018 report from the National Academies of Science, Engineering, and Medicine, which opined that the FAA has an "overly conservative approach to safety risk assessments" and "tends to overestimate the severity and likelihood of risks from many types of drone operations." The June 2018 National Academies of Science, Engineering, and Medicine report referenced by DJI was delivered prior to the publication of this proposed rule, and as such did not address the proposed requirements. The report provided recommendations on how the FAA could better facilitate the integration of small UAS by making changes to the management and approval structure and did not opine on the specific requirements the FAA should consider for new regulations.
The 0.55 pound weight threshold as proposed is appropriate for a low-risk, weight-based category for small unmanned aircraft operations over people. Although several commenters recommended an increase in the weight threshold to 1 pound or more, the FAA reiterates that nothing in this rule precludes small unmanned aircraft weighing above 0.55 pounds from operating over people, as long as these small unmanned aircraft demonstrate that they do not pose an unacceptable risk to people on the ground by meeting the requirements for a Category 2, Category 3, or Category 4 operation.[30]
As noted earlier, DJI and other commenters referenced the recommendations of the UAS Registration Task Force, which originally proposed the 0.55-pound weight threshold as a basis for determining the need to register a small unmanned aircraft, and stated this weight should not apply in the form of an operational safety requirement. When developing their recommendations for a weight-based threshold for Category 1 operations, the Micro UAS ARC considered the stipulations from the UAS Registration Task Force concerning use of the 0.55-pound threshold for anything other than a requirement to register the aircraft.
The FAA does not find that DJI's report is specifically relevant to Category 1, as their analysis reviewed the small unmanned aircraft holistically, rather than the specifics of operations over people. While the FAA does not find the RTF report to be outdated, the FAA did not rely solely on it in determining the weight limit, as DJI implied. Instead, the FAA took the recommendation from the Micro UAS ARC report and the FAA analysis as described in the proposed rule and determined that the 0.55-pound weight limit was an appropriate limit for Category 1. The FAA has updated its analysis of Category 1 small unmanned aircraft based on comments received, as discussed further in Section V.B.
A commenter suggested the category should be based more on speed than weight. This commenter said that "physics teaches that as speed increases it's actually momentum or inertia that doubles." Other commenters similarly suggested alternatives for the altitude or speed requirements for Category 1 small unmanned aircraft. Specifically, a commenter suggested the Agency permit Category 1 small unmanned aircraft to operate over people if they do not exceed 10 to 15 mph. This commenter believed the risk of injury increases as speed increases.
Although Boeing supported the 0.55-pound weight limit, it advocated for inclusion of a kinetic energy limit as well, which the company said would be consistent with FAA's risk-based approach of regulating small UAS operations. To that end, Boeing recommended the rule include both a 0.55-pound weight limit and a requirement that the aircraft "will not cause injury to a human being that is equivalent to or greater than the severity of injury caused by a transfer of 10 foot-pounds of kinetic energy upon impact from a rigid object."
The FAA proposed Category 1 to provide remote pilots with a low-risk category that is simple and straightforward. Remote pilots can determine compliance by simply weighing the aircraft and everything onboard or otherwise attached, which does not require any specialized equipment to measure. A category based on speed or injury limitation based on kinetic energy on impact would require a means of compliance to show how technology or other solutions would comply with the limitation. The 0.55-pound weight threshold represents an acceptable level of risk for Category 1. Any additional speed or altitude limitations beyond what is already required under part 107 would be inconsistent with the objective of having a lower-risk category.
B. Prohibition Against Exposed Rotating Parts
Due to comments received, this rule now prohibits from Category 1 eligibility all small unmanned aircraft with any exposed rotating parts that would lacerate human skin. The proposed rule did not include such a prohibition for Category 1. ALPA and the Coalition of Airline Pilots Association (CAPA) both stated that the Category 1 weight threshold alone is not sufficient for mitigating the potential risk of injury from exposed rotating parts. ALPA recommended prohibiting exposed rotating parts that could lacerate human skin for Category 1 operations. Other commenters believed propeller guards and other mitigations should be required equipment for operations over people, referring to potential serious eye injuries that exposed rotating parts could cause.
In contrast, Droneport Texas, LLC wrote that rotating parts on a small unmanned aircraft weighing 0.55 pounds or less are generally made of materials and rotate at speeds that could result in injuries rated at an abbreviated injury scale (AIS) level of 3 only if the operator conducted the operation in an extremely careless manner. This commenter asserted the probability of injury of this magnitude appears to be insufficient to justify a prohibition on exposed rotating parts.
The Agency agrees with the commenters who stated that exposed rotating parts on small unmanned aircraft weighing 0.55 pounds or less could be capable of causing lacerations even if the operator takes precautions. In addition, as small unmanned aircraft technology advances and high levels of performance are achieved with materials of construction that are lighter and stiffer than materials used today, small unmanned aircraft weighing 0.55 pounds or less will continue to experience performance improvements, which could increase the risks of laceration from exposed rotating parts. Category 1 operations must pose only a low risk of injury; therefore, it is the responsibility of the remote pilot to fly at appropriate altitudes and speeds to prevent their aircraft from causing injury to persons on the ground in the event of a mishap or collision. Finally, these small unmanned aircraft must not contain any exposed rotating parts that would lacerate human skin.
Category 1 provides a means for small unmanned aircraft to operate over people with minimal burden to the operator. As a result, in contrast to Categories 2 and 3, this rule does not require the submission of a declaration of compliance. Instead, this rule requires remote pilots of small unmanned aircraft to ensure that the rotating parts, if exposed, would not cause lacerations to human skin. Remote pilots may accomplish this by installing protective devices before operating over people. The original unmanned aircraft manufacturer could make available protective devices, purchased as aftermarket parts, or the owner or operator could design and install them. Regardless of the source of any protective device, the remote pilot must ensure the small unmanned aircraft does not contain exposed rotating parts that would lacerate human skin and does not exceed the weight-based limitation of Category 1.
C. Prohibition on Sustained Flight Over Open-Air Assemblies for Category 1
While the NPRM did not propose any additional operating requirements for Category 1 beyond the existing regulations in part 107, the FAA received comments that necessitate an additional operating requirement. As discussed in Section XIV.B., remote pilots are prohibited from operating a small unmanned aircraft as a Category 1 operation in sustained flight over open-air assemblies unless the operation fulfills the remote identification operational and broadcast requirements for standard remote identification unmanned aircraft or unmanned aircraft with remote identification broadcast modules. Sustained flight over an open-air assembly includes hovering above the heads of persons gathered in an open-air assembly, flying back and forth over an open-air assembly, or circling above the assembly in such a way that the small unmanned aircraft remains above some part of the assembly.
VI. Category 2 and 3 Operations
To conduct operations over people using small unmanned aircraft that weigh more than 0.55 pounds, the Agency proposed two categories of aircraft eligibility based on the risk of significant human injury. To be eligible for operations over people in either of these categories, a small unmanned aircraft would first have to demonstrate compliance with the safety requirements applicable to the specific category of operation. These requirements set injury severity limits that impacts from a small unmanned aircraft might cause, prohibit lacerations from exposed rotating parts, and prohibit safety defects. Category 3 aircraft would be subject to additional operating limitations as a mitigation for allowing a higher level of injury severity than Category 2.
The FAA developed this rule under the framework of performance-based rulemaking, which allows for the greatest flexibility in meeting minimum safety requirements. The FAA anticipates that industry will utilize a wide variety of designs, configurations, materials, and methods to meet the safety requirements established by this rule. Small unmanned aircraft that meet the requirements and adhere to applicable limitations of Category 2 or Category 3, paired with the operating requirements of the respective categories, provide for a level of safety the Administrator has determined is acceptable.
A. Eligibility of Small UAS To Conduct Category 2 and Category 3 Operations: Design and Production Requirements
To be eligible for Category 2 or Category 3 operations, the FAA proposed to require a small unmanned aircraft be designed, produced, or modified such that it does not exceed the applicable injury severity limit; does not contain any exposed rotating parts that would lacerate human skin on impact with a human being; and does not contain any safety defects identified by the Administrator. Additionally, the FAA proposed that an applicant would have to ensure that a small unmanned aircraft eligible for use in Category 2 or Category 3 operations would also have to display a label indicating which category or categories of operations it is eligible to conduct, have current remote pilot operating instructions, be subject to a product support and notification process, and that the applicant has received notification that the FAA has accepted the declaration of compliance.
As a point of clarification, this rule uses the term applicant to refer to the person who submits a declaration of compliance to the FAA for review and acceptance. An applicant for a declaration of compliance may be anyone who designs, produces, or modifies a small unmanned aircraft and is responsible for ensuring it meets all eligibility requirements to operate over people.
The FAA is finalizing most of these same eligibility requirements. The small unmanned aircraft must be designed, produced, or modified such that it does not exceed the applicable injury severity limit; does not contain any exposed rotating parts that could lacerate human skin on impact with a human being; and does not contain any safety defects to be eligible to operate over people in Category 2 or Category 3.
While the NPRM referred to these safety defects as being "identified by the Administrator," the FAA recognizes that this phrasing could be misleading for both applicants and remote pilots. The FAA did not intend to limit who can identify a safety defect. While this list is not exhaustive, any safety defect identified by the Administrator, the applicant, a remote pilot, or a member of the public could affect the small unmanned aircraft's eligibility for Category 2 or Category 3. Additionally, the safety defect could result in the FAA initiating the process to rescind a declaration of compliance, as discussed in Section VI.C.9-12. The FAA has resolved this in the regulatory text, which reads "has verified that the unmanned aircraft does not contain any safety defects," for both Categories 2 and 3.[31] Additionally, the FAA changed "could cause lacerations" to "would cause lacerations" to better reflect the requirement the applicant must meet.
The FAA adopts the requirement that an applicant must ensure that a small unmanned aircraft eligible for use in Category 2 or Category 3 displays a label indicating which category or categories of operations it is eligible to conduct, has remote pilot operating instructions, and is subject to a product support and notification process. While the small unmanned aircraft must still be listed on a declaration of compliance, the FAA removed the eligibility requirement that the applicant must be notified, because the requirement as written implied that the applicant had a persistent need to check the declaration of compliance to ensure continued eligibility.
The Agency received numerous comments regarding the proposed eligibility requirements for Category 2 and Category 3 operations. As discussed in the following sections, commenters were concerned that the injury severity limits and the safety risk assessment were too conservative. Other commenters criticized the FAA for not considering the probability of an impact and focusing only on injury severity. Additionally, as discussed in greater detail in Section VII, several commenters faulted the FAA for failing to consider aircraft reliability. In consideration of the comments, the Agency adopts the proposed safety requirements for eligibility, but provides clarification in this preamble with respect to injury severity limits, the means of compliance process, and the declaration of compliance requirement.
The responsibility for ensuring eligibility of the small unmanned aircraft falls to the applicant. The applicant for a declaration of compliance must ensure his or her small unmanned aircraft complies with the eligibility requirements for Category 2 or Category 3, or both in accordance with §§ 107.120 and 107.130, as applicable. The applicant for a declaration of compliance must follow the process required by § 107.160, described in VI.C. of this preamble. The applicant must submit a declaration of compliance and receive acceptance from the FAA in order for its small unmanned aircraft to be eligible for operations over people. An applicant whose declaration of compliance has been accepted by the FAA must continuously fulfill the requirements in §§ 107.120 and 107.130, as applicable, for the subject small unmanned aircraft to continue to be eligible for use in Category 2 or Category 3 operations.
1. MUST NOT EXCEED APPLICABLE INJURY SEVERITY LIMIT
The prohibition on exceeding the injury severity limit of the applicable category of eligibility is a critical component of the safety requirements. For Category 2 operations, the small unmanned aircraft must not be capable of causing an injury to a human being that is more severe than an injury caused by a transfer of 11 ft-lbs of kinetic energy from a rigid object. For Category 3 operations, the small unmanned aircraft must not be capable of causing an injury to a human being that is more severe than an injury caused by a transfer of 25 ft-lbs of kinetic energy from a rigid object. As discussed in Section VI.B., the applicant seeking to demonstrate eligibility of a small unmanned aircraft for Category 2 or Category 3 operations must use an FAA-accepted means of compliance, such as a test procedure contained in an industry consensus standard, to show that the small unmanned aircraft does not exceed the applicable injury severity limit.
Several commenters specifically addressed the injury severity limit based on a rigid object with 11 ft-lb of kinetic energy proposed for Category 2. A few commenters suggested that 11 ft-lbs of kinetic energy from a rigid object on collision with a person might not provide sufficient protection for children, the elderly, people with disabilities, or even the average citizen. The City of New York said a point of concern is the acceptability of a "Scale level 3" injury and "what that truly means relative to infants, elderly persons, during mass gatherings, and the effect on agitating a confined crowd." Another individual opposed operations over people because the proposed rule did not address blunt force trauma and the varying impacts it could have, based on the existing condition of the individual who is hit or the part of the body that is hit.
The proposed rule stated the 11 ft-lb kinetic energy level "considers variations for all parts of the body for both adults and children, including when people are in various positions, such as standing, sitting, and prone." [32] The 11 ft-lb impact kinetic energy value that forms part of the injury severity limit for small unmanned aircraft impacts considers risks to various populations and averages these risks across those populations. An injury that a small unmanned aircraft could cause to a person depends on many factors, including the person's age, condition, or disability. The severity of injury also depends on additional factors such as the point of impact, the angle of impact, and the unmanned aircraft's kinetic energy at the time of impact. For the reasons discussed in the following section, the injury severity limits provide an acceptable level of injury risk to all persons; accordingly, this rule finalizes the standards for Categories 2 and 3 as proposed, with no changes.
A. RANGE COMMANDERS COUNCIL (RCC) STANDARDS
As stated in the NPRM, the Agency based the proposed injury severity limits for operations under Categories 2 and 3 on extensive government research of human injury risk discussed in the Range Commanders Council's (RCC) Common Risk Criteria Standards for National Test Ranges and existing FAA commercial space regulations for public safety. The RCC standards inform public safety risk from commercial space launches, government space launches, and aircraft operations at national test ranges. These standards are based on impacts from inert debris and other types of rigid objects and assume these rigid objects transfer all their kinetic energy on impact with a person. As explained in the NPRM, however, research conducted by the UAS Center for Excellence under the Alliance for System Safety of UAS through Research Excellence (ASSURE) establishes that small unmanned aircraft do not always impact a person or surface in the same manner that metallic fragments impact them.[33]
To account for the disparity between impacts from rigid objects such as metallic fragments and small unmanned aircraft, the FAA proposed using injury severity caused by an impact from a rigid object as a threshold, rather than using an impact kinetic energy threshold alone. This standard aligns with existing risk acceptance policies for falling debris from commercial space launches,[34] and limits the risk of injury to the public, but expresses the safety limit in a way that allows small unmanned aircraft to take advantage of design features that limit the amount of kinetic energy that is ultimately transferred to a person on impact.
In the NPRM, the FAA specifically solicited comments on whether establishing an impact kinetic energy threshold and using kinetic energy transferred on impact is the appropriate method to measure the potential injury a small unmanned aircraft could cause on impact with a person. The FAA also solicited comments on the methods, processes, procedures used in the studies on which the FAA based its proposed standards.
Multiple commenters took issue with the FAA's reliance on RCC thresholds. CDA commented that, given the critical difference between commercial space vehicles or missiles and unmanned aircraft, the kinetic energy impact thresholds for commercial space have no relevant application to UAS. In its comment, ASSURE pointed out that it previously determined that the "RCC probability of fatality data is overly conservative and largely not applicable to elastic UAS." [35] Virginia Tech Mid-Atlantic Aviation Partnership (MAAP) stated rigid object energy thresholds are an overly conservative characterization of risk and commented that "an inelastic object impacting a person does not emulate UAS impact events." MAAP stated the generalization in the NPRM based on "the range commander data," which analyzed the impact of rigid shrapnel, is distinct from the impact of unmanned aircraft. MAAP asserted the reasons for the distinction are impact duration, contact area, and its energy transfer. MAAP explained these reasons in detail and concluded that "[a] straightforward and more transparent approach to defining thresholds can be achieved by establishing acceptable risk limits using biomechanical metrics applicable to the generalized UAS impact conditions."
AUVSI stated the proposed rule's injury threshold for Categories 2 and 3, and its basis on existing commercial space safety regulations and the RCC standards, was "fundamentally flawed." AUVSI asserted that the use of RCC standards would impose unnecessary burdens on UAS manufacturers because small UAS manufacturers would be forced to conduct testing and present data on the injury risk presented by both the aircraft and energy transfer from a rigid object. AUVSI wrote there is no "record basis" for FAA proposing to use the RCC guidelines and declining to use the automotive injury criteria proposed by ASSURE or identifying an acceptable percentage-based risk as proposed in the ARC Report.
Several commenters also took issue with FAA's proposal to use injury thresholds based on kinetic energy measurements that are the same as those that apply to debris and shrapnel impacts from a commercial space launch operation, guided and unguided missiles, missile intercepts, and space reentry vehicles. Several of these individuals remarked, "[t]his is not the appropriate standard for small drones because no small drone has the characteristics of rocket shrapnel, and the FAA's injury assumptions are based on outdated studies from the 1960's." Like AUVSI, these commenters recommended instead that the FAA "make use of the research conducted by the ASSURE program, and use impact measurements, standards, and injury severity testing from the automotive industry, which are far more appropriate and informative."
The News Media Coalition was concerned that some of the specific kinetic energy thresholds rely on data and testing that is not available to consumers, including the journalist in the Coalition. The commenter wrote that industry "will be slow in rolling out new models that comply with the proposed rules" and journalists will not be able to conduct operations over people. The FAA expects manufacturers generally will conduct the required testing and declare compliance with the requirements of Category 2 or Category 3, rather than operators and remote pilots. The FAA envisions most journalists would simply purchase a small unmanned aircraft that has an FAA-accepted declaration of compliance and follow the applicable operating rules for the category of operation over people being conducted.
The FAA carefully reviewed comments related to the applicability of the RCC impact kinetic energy thresholds and reiterates certain key aspects of the Agency's policy. First, the FAA agrees with commenters that the RCC impact kinetic energy thresholds are applicable to impacts from inert debris and that small unmanned aircraft do not behave like inert debris when impacting a person. The Agency addressed this disparity by proposing injury severity limitations rather than kinetic energy thresholds, and notes that applicants must demonstrate through test, analysis, or inspection that the small unmanned aircraft does not exceed the applicable injury severity limits. An FAA-accepted means of compliance will address the minimum testing, inspection, or analysis necessary to demonstrate compliance with the safety requirements. While some commenters objected to conducting tests, it is not appropriate to permit operations over people without applicants demonstrating compliance to the applicable regulations. This rule does not permit injuries caused by impacts of small unmanned aircraft that would be more severe than the injuries that could occur under commercial space regulations. It is unclear whether the commenters are advocating for higher risk to the general public when small unmanned aircraft are operating over them. Using biomechanical metrics does not align with the FAA's objective of creating performance-based safety requirements. However, any applicant could submit a means of compliance to the FAA for acceptance that utilized biomechanical metrics to show compliance with the safety requirements of this rule.
B. ASSURE RESEARCH FINDINGS
The FAA sponsored ASSURE Tasks A4 and A14: UAS Ground Collision Severity Evaluation research to study and address several questions: (1) What should the hazard severity criteria be for a UAS collision? (2) What is the severity of a UAS collision with people on the ground? (3) What are the design characteristics of a UAS that could minimize the potential injury during a ground collision? and (4) Can the severity of UAS collision with a person be characterized into categories based on the UAS? ASSURE conducted research in consideration of such questions between 2015 and 2019, performing over 512 impact tests and simulations with 16 different fixed-wing and multi-rotor UAS, as well as various objects and payloads with weights ranging from 0.75 lbs. to 13.2 lbs. at a range of low to terminal velocities. ASSURE used impact testing with wood blocks to assess the injury that would result from an impact kinetic energy transfer from a rigid object at different kinetic energy levels (such as the levels for Categories 2 and 3). The ASSURE research team initially performed testing using crash test dummies to review and determine thresholds of serious but non-lethal injury utilizing the AIS. ASSURE then increased the fidelity of the injury modeling and testing by utilizing Post Mortem Human Subjects (PMHS) and compared the thresholds for serious but non-lethal injury established using the crash test dummies with the injury thresholds yielded from PMHS testing.
Based on the FAA's experience evaluating waiver applications for operations over people and in consideration of the ASSURE research findings (Task A14: UAS Ground Collision Severity Evaluation 2017-2019), the Agency concludes a typical small unmanned aircraft can impact a person with significantly more than 11 or 25 ft-lbs of pre-impact kinetic energy and still not exceed the injury severity limits in the proposed rule. When discussing the ASSURE report and its definition of kinetic energy,[36] the FAA refers to the potential to cause injury due to the vehicle's mass and speed just prior to the collision as pre-impact kinetic energy. A portion of this pre-impact kinetic energy is transferred to a person during impact.
For example, the FAA analyzed the ASSURE research and found that, for a certain impact orientation, a DJI Phantom 3 unmanned aircraft can impact a person with up to 130 ft-lbs of pre-impact kinetic energy before exceeding the Category 2 injury threshold proposed in the NPRM. This situation demonstrates that an unmanned aircraft can impact a person with up to 11 times more pre-impact kinetic energy than a rigid object (130 ft-lbs vs. 11 ft-lbs) and result in the same level of injury severity. The FAA finds this example and other examples contained in the ASSURE research demonstrate that the injury severity limits based on transfers of impact kinetic energy from rigid objects will ensure that small unmanned aircraft meeting these requirements pose no greater risk to the general public than operations currently allowed under existing, relevant commercial space regulations.[37]
The ASSURE research also found that small changes in small unmanned aircraft impact orientation, Center of Gravity (CG) alignment of the skull, and small unmanned aircraft impact location cause large changes in impact energy transfer. Addressing different impact orientations is relevant when assessing small unmanned aircraft typical failure modes for a means of compliance, as discussed in the following section.
Many commenters, including ParaZero Drone Safety Systems, AUVSI, CDA, AiRXOS, Inc., AIA, Small UAV Coalition, New Mexico State University Physical Science Laboratory, PrecisionHawk, Inc., MAAP, Deseret UAS, DJI, and numerous individuals considered and discussed research, particularly the ASSURE research, and contended that the FAA's analysis results in overly conservative kinetic energy impact thresholds. These commenters suggested the FAA should have more closely followed the findings of the Center of Excellence ASSURE's UAS Ground Collision Severity Evaluation. ASSURE wrote:
The NPRM's proposed performance-based metric of injury resulting from the impact of a rigid object at 11 ft-lbs and 25 ft-lbs . . . are overly conservative based upon the result of [Anthropomorphic Test Dummy (ATD)] and [Post-Mortem Human Surrogate (PMHS)] testing and lead to ambiguity in how to test sUAS to achieve Category 2 and Category 3 approvals.[38]
ASSURE noted that its Task A14 team proposes the use of automotive injury performance-based metrics "consistent with the extensive FAA sponsored and funded testing conducted over the last two years to enable the use of standardized automotive based test methods and increase the number of aircraft capable of achieving [Category 2 and 3 operations] while still achieving the casualty definitions outlined in the NPRM."
The Agency developed the performance-based injury severity limits to allow industry to develop unique means of compliance. The FAA anticipates that the methodologies ASSURE highlighted in its comment to measure injury severity will be included in means of compliance submitted to the FAA for acceptance. Developers of means of compliance can use any measurable human injury scales as long as they demonstrate that small unmanned aircraft impacts do not cause injuries more severe than those caused by impact of a rigid object. Further, applicants must explain how the injury scales address the most severe types of injuries that would likely occur from a small unmanned aircraft impact. The FAA expects a means of compliance might consider a suite of injury scales to cover the likely types of injuries from a small unmanned aircraft impact. The FAA anticipates that organizations, including industry consensus standards bodies, may develop means of compliance by conducting rigid object testing against existing injury scales to meet the injury severity limits of this final rule and that the FAA would accept these means of compliance. Applicants submitting a declaration of compliance may then use this FAA-accepted means of compliance without themselves having to conduct the rigid object testing.
The FAA carefully considered the findings of ASSURE. The ASSURE research confirms that the injury severity limits for Categories 2 and 3 the Agency proposed in the NPRM provide an acceptable level of safety. Many commenters focused on the perception that the Categories 2 and 3 injury severity limits in the NPRM were too restrictive, without observing that the NPRM uses the injury severity caused by the impact of a rigid object at certain energy levels as the threshold for acceptability. The ASSURE research, summarized in the Task A14: UAS Ground Collision Severity Evaluation 2017-2019 report, provides data, injury metrics, and a test method to assess the injuries caused by the impacts of rigid objects with humans at the kinetic energy levels proposed in the NPRM and compares them to the injuries caused by small unmanned aircraft impacts with humans. Through the use of their test methods and injury analysis metrics, the ASSURE results show that a small unmanned aircraft can impact a human being with a much higher kinetic energy while causing a comparable level of injury as the injury that would result from an impact with a rigid object at the proposed kinetic energy levels. The ASSURE research establishes that small unmanned aircraft do not behave like rigid objects during an impact and have greater flexibility, frangibility, and so on.
Data provided in ASSURE's reports as well as in ASSURE's comment on the NPRM demonstrate that small unmanned aircraft do not behave like rigid objects during an impact. For example, Figure 10 of ASSURE's comment in response to the NPRM shows ASSURE's data and evaluation results for the DJI Phantom 3 using the ATD Impact Head Injury Criteria (HIC15).[39] The FAA's analysis of the results show that to cause equivalent HIC15 injury level as the injury caused by a rigid object at 11 ft-lbs, the Phantom 3 would need to achieve an pre-impact kinetic energy of 130 ft-lbs. The same figure shows that to cause equivalent HIC15 injury level as the injury caused by a rigid object at 25 ft-lbs, the Phantom 3 would need to achieve a pre-impact kinetic energy of 220 ft-lbs. These examples, as well as other data in ASSURE's reports and comment on the NPRM, show that ASSURE tested small UAS that could meet the injury severity limits of the NPRM by placing some reasonable operating limitations on the small UAS, such as altitude or speed restrictions. Additionally, the small unmanned aircraft used in ASSURE's testing were all manufactured prior to the publication of the NPRM, and may not have design features that limit or reduce the amount of kinetic energy transferred on impact.
With the publication of this rule, manufacturers may take this opportunity to design new small unmanned aircraft of similar size, weight, and capability as the existing small unmanned aircraft designs ASSURE tested. ASSURE tested existing models of small unmanned aircraft to determine the severity of injuries potentially caused by impact. The FAA found that, in reviewing the ASSURE report, many existing models could, potentially with modifications, meet the injury severity limits of the proposed rule.
The FAA does not agree with ASSURE and other commenters that the requirements of this rule are too conservative. This final rule is performance-based, therefore the FAA anticipates that applicants would be able to use a variety of injury scales in a means of compliance including the injury scales identified by ASSURE and other commenters. The FAA finds that the requirements for Categories 2 and 3 as finalized in this rule set an appropriate balance between allowing small unmanned aircraft to operate over people without an airworthiness certificate while also limiting the risks of small unmanned aircraft operations to the general public.
The FAA also tasked ASSURE to develop a repeatable and simplified test methodology for assessing the level of injury severity of small unmanned aircraft to people on the ground in the event of a collision. The test methodology ASSURE produced from this research utilizes the lessons learned from their high fidelity crash test dummy and PMHS testing.[40] The methodology is a comprehensive means to perform impact testing and assess the severity of injury in a manner that is not cost prohibitive. The FAA would likely find acceptable a means of compliance based on ASSURE's test method, as described in the A14 Report. For further discussion about means of compliance, see Section VI.B.
C. OTHER METHODOLOGIES TO EVALUATE INJURY SEVERITY
The Small UAV Coalition said the FAA's narrow focus on kinetic energy is inconsistent with other risk assessment models, such as the Specific Operations Risk Assessment (SORA) model adopted by the European Commission, based on its development by the Joint Authorities for Rulemaking on Unmanned Systems (JARUS). CDA similarly recommended adopting the JARUS-SORA model. The SORA provides a qualitative methodology to determine the intrinsic operational risk and a means to apply strategic and tactical mitigations to reduce risk to an acceptable level as determined by the approving authority. The SORA also recommends types of risk mitigations or controls that address common threats, scalable to the level of risk, to ensure the safety of the UAS operation. Under the SORA methodology, an operation over a gathering of people would require airworthiness certification or a mitigation or control acceptable to the approving authority. Operations under Categories 2 and 3, conducted in accordance with the requirements and the declaration of compliance process are consistent with the recommendations of the SORA. Further, the FAA has added a Category 4 to this rule, which enables small unmanned aircraft with an airworthiness certificate to operate over people in accordance with part 107. The FAA anticipates that waiver and exemption applicants will continue to use the SORA methodology to support waivers and exemptions including for activities not permitted under this rule, such as beyond visual line of sight operations. An individual commenter said operations over people should be governed by an equation that considers: (1) Probability of crash (considering weather, condition of UAS, proximity to buildings, etc.); (2) angle of flight path relative to people; (3) speed (including whether it will hover or just transition over people); and (4) height. The FAA acknowledges that considering the probability of a crash, angle of flight path, and speed is one method to determine risk to persons on the ground. However, this approach requires the FAA to evaluate each element for each operation to determine acceptability, which would increase the burden on applicants and the FAA. The commenter's equation does not provide specific performance-based requirements. The performance-based injury severity limits, exposed rotating parts prohibition, and operating limitations that this rule establishes provides an acceptable level of safety while allowing flexibility for industry to develop varying ways to comply with the applicable requirements.
D. INJURY SEVERITY AND FAILURE RATE UNCERTAINTY
The European Union Aviation Safety Agency (EASA) recommended aligning the criteria to allow small UAS operations over people as much as possible between the United States and Europe. EASA noted that Category 3 "identifies a maximum KE threshold of 25 feet-lbs (about 34 Joules) for impact with a solid object." The requirements for the proposed 34 joules applicable to Category 3 small UAS and the 80 joules applicable to the new EASA Class 1 unmanned aircraft refer to transferred kinetic energy, address the effects of blunt trauma, limit operations over uninvolved people, and include additional technical requirements. Because they are quantitatively different, however, EASA was concerned "they could set Europe and the US on different regulatory courses for `fly over people' operations." EASA stated the data from the RCC standard described in the proposed rule are too conservative. EASA reported that it had reviewed, in particular, the Gurdjian experiments to recalculate the energy values.[41] As described in their comment, EASA asserts the ASSURE Ground Collision Severity Evaluation final report supports its recommendation to include a kinetic energy threshold of 80 joules.[42]
The Category 3 operation in this rule and EASA's Class 1 unmanned aircraft operation share similarities, but have important differences. In particular, the EASA Sub-category C1, which includes the limitation of 80 joules of energy transfer on impact, also contains noise, alerting, structural, navigation, and datalink requirements that are not included in the FAA's Category 2 or Category 3 eligibility requirements. The design requirements addressing topics such as structural integrity and navigational performance are better suited for the aircraft certification process and are not appropriate for non-certificated aircraft. Because small unmanned aircraft under Categories 2 and 3 are not required to have an airworthiness certificate or meet design requirements such as those adopted by EASA, an increase in the kinetic energy values would allow injuries that are significantly more severe than the injuries that could occur under Category 2 or Category 3 of this rule. Both the ASSURE research and the Gurdjian experiments support the fact that an increase in the kinetic energy from the proposed requirement, without any mitigating design requirements such as those required under EASA's regulations, increases the injury severity limit beyond an acceptable level. The FAA envisions that the variety of the four different categories will likely provide greater flexibility than what EASA has provided. Without including additional design or certification requirements, the change EASA suggests would result in an unacceptable level of safety for the general public. The injury severity limits and exposed rotating parts prohibition are an appropriate set of regulations for enabling aircraft without airworthiness certification to operate over people in accordance with an acceptable level of safety.
The Agency, however, agrees that conformity to design requirements is another way to enable small unmanned aircraft operations over people, and has thus added a Category 4 to accommodate certificated aircraft. The proposed rule included a request for comments regarding how the FAA should approach the uncertainties regarding failure rates and injury severity. Several commenters contended that the FAA relied too heavily on the injury severity limits and did not adequately consider the reliability of the small UAS or the probability of failure. With regard to probability of failure, the Agency received several divergent comments: Some believe probability of failure was inherently low, while others thought probability of failure could be high. Although the reliability of the small unmanned aircraft is one factor in determining whether an operation over people is safe, the FAA's process for considering the reliability of aircraft is the airworthiness certification process. Given that operations under part 107 do not need to occur with small unmanned aircraft that have an airworthiness certificate, probability of failure is a less appropriate measurement than the combination of injury severity limits and restrictions on exposed rotating parts and safety defects for Categories 2 and 3, in addition to the operating limitations in Category 3 that reduce likelihood of impact to a human being. To address these comments, this rule allows aircraft that have an airworthiness certificate that does not prohibit operations over people to be used for operations over people. These Category 4 eligibility requirements are discussed in Section VII of this preamble.
One commenter asked why the Agency did not distinguish between rotorcraft and fixed-wing aircraft. The commenter stated, "[t]hey fall differently, but we have the same rules for both." Although rotary-wing and fixed-wing small unmanned aircraft have unique flight characteristics and the manner in which they could impact a person could be different, any small unmanned aircraft must not exceed the injury severity limits, regardless of whether it is a rotary-wing, fixed-wing, or any other type aircraft. An acceptable means of compliance must account for the variations in aircraft configurations, unique failure modes, most probable impact orientations, impact trajectory angles, and velocities from flight test and dynamic modeling for different types of small unmanned aircraft to demonstrate compliance. A few commenters said the categories should be based on the flight altitude for the same small unmanned aircraft. A commenter suggested that a "Mavic Air" would be rated Category 2 up to 50 feet and Category 3 up to 80 feet.[43] The NPRM discussed the possibility of individual small unmanned aircraft being eligible for operations in more than one category through the use of variable modes or configurations. The FAA would consider a design feature that limits the altitude of a small unmanned aircraft to the maximum altitude associated with compliance as an example of a variable mode; for example, when not operating over people, a certain small unmanned aircraft would not need to limit its altitude. However, to operate over people, the remote pilot would operate in a mode that limits the aircraft's altitude to comply with the requirements for operating over people. To use variable modes or configurations, the remote pilot must not be able to inadvertently change the mode or configuration and instructions for how to change between modes or configurations must be available in the remote pilot operating instructions. Variable modes and configurations are discussed in Section VI.F.
2. MUST NOT HAVE EXPOSED ROTATING PARTS
To be eligible to conduct Category 2 or Category 3 operations over people, the Agency proposed prohibiting a small unmanned aircraft from being designed, produced, or modified such that it contains exposed rotating parts that could lacerate human skin on impact with a human being. As stated in the proposed rule, exposed rotating parts could cause lacerations or other serious injuries if these parts were to come into contact with a person. Such parts are a common feature to small unmanned aircraft on the market today. Due to the hazards this feature can pose, the Agency proposed restricting eligibility for Categories 2 and 3 to small unmanned aircraft that do not contain any exposed rotating parts that could lacerate human skin on impact. While the NPRM acknowledged that exposed rotating parts could be capable of injuries beyond just lacerations (e.g., injuries to hair, teeth, and eyes), the Agency determined this prohibition, combined with the other limitations, were sufficient to mitigate the risk of injuries.
Several commenters asserted that protections for exposed rotating parts are not necessary for small unmanned aircraft. One of these commenters pointed out that data shows fewer injuries to uninvolved parties result from exposed propellers on small unmanned aircraft than the number of annual fatalities that occur from rotorcraft and operations that occur under part 103.[44]
Manned aircraft with approved designs do not require shrouded rotors because compliance with applicable certification standards and operating limitations reduce the likelihood of an impact with a human being and therefore do not present a significant hazard to persons on the ground. Operating a small unmanned aircraft under Category 2 or Category 3 does not require airworthiness certification but, as described in this rule, design features such as shrouded propellers can mitigate the risk of laceration to persons on the ground. Ultralight vehicles operating in accordance with part 103 do not have airworthiness certificates. However, to mitigate the risk to persons on the ground, these vehicles are prohibited from operations over any congested area of a city, town, or settlement, or over any open-air assembly of persons.[45]
Many commenters suggested the prohibition on exposed rotating parts is too restrictive. The Small UAV Coalition commented that while the preamble of the NPRM refers to the prohibition on exposed rotating parts as a performance standard, it appears to result in requiring installing guards or shrouds to ensure that rotating parts are not exposed on impact. Uber Technologies asserted that the exposed rotating parts prohibition strictly based on any skin laceration, without consideration of severity or probability, creates an additional blanket prohibition on aircraft with any exposed rotating parts. If the restriction remains in the final rule, Uber Technologies recommended including a waiver process for exposed rotating parts, with appropriate inclusion of risk- and performance-based metrics. AeroVista Drone Academy believed the requirement for a manufacturer to establish that an aircraft design would not have exposed rotating parts that could lacerate human skin is "materially infeasible" without specific guidance as to what would meet this threshold. The Academy wrote that manufacturers would have to conduct prohibitively expensive and costly testing. A-Cam Aerials asked the Agency to reword the requirement so that small unmanned aircraft eligible for operations in Categories 2 and 3 be designed such that they "minimize" lacerations to human skin on impact with a person.
The FAA clarifies the primary safety objective of the exposed rotating parts prohibition is to protect human beings on the ground from lacerations upon impact with a small unmanned aircraft in typical human encounters and unmanned aircraft operational scenarios (including potential failure modes). The FAA distinguishes between a laceration, meaning a cut that goes all the way through the skin and may require emergent medical attention, and an abrasion, meaning a superficial injury to the skin. Additionally, the FAA uses the expression "typical human encounter" to describe normal impacts, such as an unmanned aircraft impacting a human being due to a loss of control, small UAS failures, or remote pilot error. Exposed rotating parts may pose a significant laceration hazard if they contact human skin, which is unacceptable for the safety of the general public. The performance-based standards for Categories 2 and 3 will protect persons on the ground from potentially serious injury. This rule does not prohibit the applicant from using exposed rotating parts, but only prohibits the presence of rotating parts capable of lacerating human skin in typical human encounters. The FAA has issued waivers to companies for operations over people that employed combinations of motor stop technology and exposed rotating parts materials that could cause abrasions, but not lacerations. The technology and the testing methodologies these companies used could be utilized in a means of compliance accepted by the FAA.
The FAA anticipates that organizations, including industry consensus standards bodies, may develop means of compliance for an unmanned aircraft with exposed rotating parts that meet the prohibition on exposed rotating parts that would cause lacerations. Once those standards are accepted by the FAA, applicants submitting a declaration of compliance may then use that means of compliance without themselves having to develop the testing methodology or technology. Such a means of compliance may include specific material requirements, rotor specifications, or additional mitigating technologies.
As for the waiver process, § 107.39 will remain subject to waiver and the FAA will continue to review waiver applications on a case-by-case basis. With regard to the costs of complying with the prohibition, a summary of impacts is in the regulatory impact analysis available in the public docket for this rule.
Commenters were also concerned about installing shrouds that would guard propellers. An individual wrote that propeller guards and full body cages can "adversely affect flight characteristics" and that propeller guards could increase the likelihood of loss of control for some quadcopters. In addition, DJI said shrouding an entire rotating part, if that part is involved in propulsion, can affect the aerodynamics and performance of the aircraft.
This rule is performance-based and allows exposed rotating parts as long as they do not lacerate human skin. Adding rotor shrouds, full body cages, or other safety features might be ways to fulfill the requirement. The rule permits applicants to employ propeller guards or full body cages in consideration of maintaining appropriate flight characteristics for the small unmanned aircraft. Designs that use propeller guards that prevent the exposure of rotating parts in typical human encounters, would be acceptable to the FAA. The FAA acknowledges that lacerations to human skin may not be entirely preventable in every encounter scenario. The means of compliance will address how this requirement is met, and may contain design characteristics and test methods to ensure that the applicant has taken all reasonable measures to mitigate the possibility of lacerations upon impact with a human being. While the inclusion of propeller guards or full body cages could adversely affect the flight performance of the small unmanned aircraft, the safety benefits provided by the prohibition outweigh the potential loss of performance.
An individual noted that lacerations from propellers and other parts do not rise to the level of AIS level 3. Not all lacerating injuries will result in severe injury, but rotating propellers and rotors could pose a significant laceration hazard if they come in contact with human skin. Overall, protection from lacerating injuries is necessary to mitigate the risk to the general public.
Droneport Texas, LLC said the FAA should be open to timely consideration and acceptance of alternatives to ducting or shrouding rotors, such as rotor shedding, in which lightweight rotors are jettisoned and drift to the ground, and rotor braking, in which all exposed rotating parts are mechanically or electrically stopped prior to impact. Ducting or shrouding of rotating parts is only one method of design implementation to protect from laceration. This rule does not prescribe specific design features to provide protection from exposed rotating parts; any such design features that Droneport Texas, LLC identified will be acceptable if they meet an FAA-accepted means of compliance.
DJI said it supports protecting people from sharp moving parts during operations where risks of lacerations exist, but notes this could exist with respect to operations near, not necessarily over, people. Section 107.19(c) states, "the remote pilot in command must ensure that the small unmanned aircraft will pose no undue hazard to other people, other aircraft, or other property in the event of a loss of control of the small unmanned aircraft for any reason." [46] As stated in the NPRM, for small unmanned aircraft with exposed rotating parts that could cause a laceration, the remote pilot is responsible for determining the appropriate stand-off distance to ensure the small unmanned aircraft does not pose a hazard to other people when operating near them.
A few commenters urged the FAA to consider the likelihood of a laceration if a blade were to come into contact with human skin. Skydio said propeller guards are not necessary in all occasions because blade design and construction (e.g., size, speed, angles, and ability to retract) have a large impact on the likelihood of a laceration if a blade were to come into contact with a person. Additionally, Skydio said emergency propeller stopping mechanisms in software can shut down the rotors if they come close to or contact a person. Skydio advocated for a performance-based standard that allows exposed rotating parts, "so long as it can be demonstrated that the design heavily mitigates the chances and severity of the blades hurting people." A commenter asserted folding propellers should be a mitigation factor for operations over people in deciding if a small unmanned aircraft could be used under § 107.39.
Under this rule, blade guards or shrouds on exposed rotating parts are not required if applicants can demonstrate, by a means acceptable to the FAA, that unprotected exposed rotating parts are incapable of lacerating human skin. Implementing a rotor brake or similar approach to stop the exposed rotating part before it makes contact with a person may be effective in protecting from lacerations, but this requires the applicant to demonstrate their effectiveness in all likely small unmanned aircraft failure scenarios. Similarly, folding propellers would be acceptable if the design is shown incapable of causing lacerations in accordance with an FAA-accepted means of compliance.
NASAO noted that some small unmanned aircraft have guards on the rotors, but stated it is not clear if this would meet the eligibility requirement. AUVSI and MAAP requested clarification that the prohibition on parts that can lacerate human skin applies only during the operating envelope of the aircraft or during failure mode. Several commenters supported the proposed rule if the small unmanned aircraft has propeller guards or some other piece of safety equipment, or is recognized as reliable, to mitigate the risk of a falling small unmanned aircraft. A commenter would give "professional-level" small UAS more latitude to conduct operations over groups of people, "while restricting toy drones that are less capable."
The FAA agrees that the regulations should provide safety protection from propellers that could cause lacerations. This rule finalizes the prohibition on exposed rotating parts that could cause lacerations for Categories 2 and 3 as proposed, with no changes. Moreover, existing small unmanned aircraft designs will have to show compliance with these requirements. Small unmanned aircraft that already incorporate rotor guards would need to demonstrate the effectiveness of the rotor guard to protect from lacerating human skin when impacting a person by following an FAA-accepted means of compliance. The applicability of the exposed rotating parts prohibition is limited to small unmanned aircraft operating over people under Categories 1, 2, and 3. To be eligible for Category 2 or Category 3 operations over people, the applicant must use an FAA-accepted means of compliance and demonstrate the design does not contain any exposed rotating parts that would lacerate human skin on impact.
3. MUST NOT CONTAIN SAFETY DEFECTS
To be eligible to conduct operations over people in accordance with Category 2 or Category 3, the Agency proposed requiring each small unmanned aircraft be designed, produced, or modified such that it does not contain any safety defects identified by the Administrator. As discussed previously, the FAA has removed "identified by the Administrator" for the sake of clarity. The NPRM explained the Agency considers a safety defect to be a material, component, or feature of a small unmanned aircraft that increases the likelihood that the small unmanned aircraft could cause a casualty or fatality to a person during an operation over people. As defined in the proposed rule, a safety defect in a small unmanned aircraft eligible for conducting Category 2 operations would cause the unmanned aircraft to exceed a low probability of causing a casualty to a person during an operation over people. A safety defect in a small unmanned aircraft eligible for conducting Category 3 operations would cause a small unmanned aircraft to exceed a low probability of causing a fatality to a person during an operation over people.
The NPRM proposed to define a casualty to be a serious injury, which corresponds to a level 3 injury on the AIS. While the FAA still finds the AIS to be a valuable tool in determining the severity of an injury, the FAA concludes that it is not necessary to define it strictly. Furthermore, several commenters suggested the FAA use AIS in lieu of the injury severity limits adopted in this rule. As discussed in the NPRM, the FAA did not find the use of AIS in measuring injury severity appropriate.[47] In order to eliminate confusion, the FAA finds it prudent to remove any regulatory references to AIS. The dictionary definition of "casualty"—a serious or fatal accident [48] —provides sufficient clarity as to the safety defect requirement. As such, the definition of "casualty" proposed in the NPRM has been removed from the final rule.
The NPRM provided the following examples of safety defects: Exposed wires or hot surfaces on a small unmanned aircraft that could cause electrocution or burns to a person on impact; damaged or defective lithium polymer or lithium-ion batteries that could cause casualties from battery fires or explosions; and sharp edges or projections that could cause lacerations or punctures as a result of an impact with a person. The NPRM also noted that as small unmanned aircraft designs evolve over time, potentially hazardous features or characteristics, unknown at the present time, could emerge.
One commenter noted the FAA did not provide an objective standard or process for discerning what constitutes a safety defect. Another commenter asked how egregious a safety defect would need to be to result in action on the part of the FAA.
To ensure this rule remains flexible and responsive to the changes in technology, this rule does not contain an exhaustive list of all potential safety defects or issues. An identified safety defect or issue will require action on the part of the FAA if the probability of serious injury or fatality exceeds the parameters of acceptable risk for Category 2 or Category 3. As discussed in Section VI.C., Declaration of Compliance, the FAA has implemented a process by which it will work with applicants on addressing and resolving any identified safety defects or issues that would render the small unmanned aircraft ineligible to operate over people. This rule adopts the prohibition of safety defects in small unmanned aircraft eligible to conduct operations in accordance with Categories 2 and 3, without change.
4. MUST DISPLAY A LABEL
To qualify for operations over people in accordance with Category 2 or Category 3, the Agency proposed requiring the display of a label on each small unmanned aircraft, indicating the category or categories for which the small unmanned aircraft is eligible to conduct operations. The Agency explained that such labeling will assist the FAA in its oversight role by providing a simple and efficient way to determine whether a small unmanned aircraft is eligible to conduct operations over people. In addition, it will provide notice to remote pilots which category of operations they are eligible to conduct using that aircraft.
The Agency did not propose a prescriptive labeling requirement that specifies exactly how an applicant [49] must label an aircraft, what size font to use, specific location, and so on. Due to the large variety of small unmanned aircraft models that exist, the Agency explained that such a prescriptive requirement would be unnecessary. Instead, the proposed rule stated the small unmanned aircraft could be labeled by any means as long as the label is in English, legible, prominent, and permanently affixed to the aircraft. Given that a small unmanned aircraft could be eligible to conduct operations in more than one category of operations over people, the small unmanned aircraft would have to be labeled with each category of operations for which the small unmanned aircraft is eligible. The NPRM noted that some small unmanned aircraft that are manufactured prior to final publication of this rule may qualify for one or more categories of operations over people. If the FAA has accepted a declaration of compliance for one of these previously-manufactured small unmanned aircraft, the proposed rule would allow a remote pilot in command to operate the small unmanned aircraft over people, provided the unmanned aircraft is labeled for the appropriate category or categories of operation. This final rule requires a remote pilot to label a previously-manufactured small unmanned aircraft in accordance with the declaration of compliance. Also, if a label degrades such that it is no longer legible or attached to the aircraft, the proposed rule included a requirement that the remote pilot relabel the small unmanned aircraft. In response to the proposed labeling requirement, an individual commenter asked for an explanation of the purpose of the labeling requirement, saying he would personally prefer not to add additional markings to the aircraft. The FAA requires the label for two purposes. For the remote pilot, the purpose of the label is to list the categories of operations over people the small unmanned aircraft is eligible to conduct, as indicated on the FAA-accepted declaration of compliance. The other purpose of the label is for the FAA and other agencies to determine that the small unmanned aircraft is eligible to conduct the operation.
AUVSI commented that the proposal would benefit from further clarification about who is responsible for labeling. AUVSI stated the NPRM is inconsistent about whether manufacturers or operators must label the aircraft. AUVSI noted that the proposed rule did not affirmatively require manufacturers to label unmanned aircraft, but that labeling is a prerequisite for a small unmanned aircraft to be eligible to conduct Category 2 or Category 3 operations. AUVSI interpreted this as placing the burden on the operators who want to conduct such operations. An individual commenter requested clarity on what responsibility the remote pilot in command has for ensuring that the small unmanned aircraft is properly labeled for Category 2 or Category 3.
This rule requires the applicant to label the small unmanned aircraft. Under this rule, the label must remain affixed to the small unmanned aircraft to remain eligible for Category 2 or Category 3 operations. For small unmanned aircraft manufactured prior to the effective date of this rule and listed on a declaration of compliance, the remote pilot has the responsibility of labeling the small unmanned aircraft before he or she may conduct operations under Category 2 or Category 3. Once the small unmanned aircraft is in the possession of the remote pilot, it becomes his or her responsibility to ensure the label remains clear, legible, and affixed to the aircraft. DJI opposed the proposed labeling requirement, expressing concern that the requirements for manufacturers would be too burdensome and that if the FAA rescinds a declaration of compliance, the labeling may become erroneous or outdated. The FAA does not consider the labeling requirement to be unduly burdensome, given the performance-based nature of the requirement. Additionally, because the remote pilot is ultimately responsible for ensuring the unmanned aircraft is both labeled appropriately and listed on an FAA-accepted declaration of compliance, per the applicable operating requirements, the risk of erroneously-labeled small unmanned aircraft being used for operations over people is low. The FAA encourages industry to develop a standard for the label to promote consistency and ease of understanding.
DJI recommended the FAA maintain a database of aircraft, similar to that instituted by Transport Canada, and allow this to inform potential small UAS buyers of the accepted products that currently meet the requirements for their mission needs. The FAA will make available on the FAA website the status of each applicant's declaration of compliance for public access, to enable remote pilots to determine which small unmanned aircraft are eligible for operations over people. The FAA anticipates listing the aircraft by make, model and series, if applicable, serial number, and category.[50] This database will be the primary source of the eligibility of the small unmanned aircraft, while the label provides a simple and efficient way to indicate eligibility for operations over people.
DJI also expressed concern that operators may modify a manufacturer's small UAS, rendering the label "outdated". The FAA emphasizes the remote pilot is responsible for ensuring any modifications to the small UAS are in accordance with the remote pilot operating instructions in order for the small UAS to remain eligible under the FAA-accepted declaration of compliance. This rule requires the applicant to provide remote pilot operating instructions, on sale or transfer of the small unmanned aircraft, or use of the small unmanned aircraft by someone other than that person. The operating instructions should address, among other things, modifications that will not change the eligibility of the small unmanned aircraft to operate over people. To be eligible to operate over people, the applicant is required to label the small unmanned aircraft, however, this rule does not preclude remote pilots from labeling their own aircraft. Finally, the remote pilot is responsible for verifying the small unmanned aircraft is properly labeled before each flight and knowing the type of operations for which the small UAS is eligible.
Finally, Section 107.5, which prohibits any fraudulent or intentionally false record from being made, kept, or used to show compliance with any requirement of part 107, applies to records, which includes labels. In this regard, falsifying any part of any record intended to constitute proof of compliance with applicable requirements could subject the person who submitted the record to a civil penalty and could be a basis for rescinding a declaration of compliance if the FAA determined that the applicant falsified the records.
A clear and legible label will enable straightforward means of identification of the operations for which the small unmanned aircraft is eligible. The FAA clarifies the language for the labeling requirement to include the word "missing" to ensure that remote pilots label previously manufactured small unmanned aircraft. As a result, this rule adopts the labeling requirement with this clarification.
5. MUST HAVE REMOTE PILOT OPERATING INSTRUCTIONS
The Agency proposed requiring applicants to provide remote pilot operating instructions with product-specific information for operations in Category 2 or Category 3, including system description and system limitations and the category or categories of operations over people for which the applicant has declared compliance. The proposed rule stated that a person who submits a declaration of compliance for a small UAS for Category 2 or Category 3 should provide remote pilot operating instructions upon sale or transfer of the small unmanned aircraft, or use of the small unmanned aircraft by someone other than that person. Instructions would need to remain up-to-date to account for any modifications the applicant makes to the small UAS for as long as the declaration of compliance remains valid. Specifically, the proposed rule included a requirement to include all modifications the applicant determined do not change the ability of the small UAS to meet the requirements for the category of operation for which the applicant declared compliance in the remote pilot operating instructions. For a small unmanned aircraft that has variable modes or configurations, the applicant would provide instructions on how to verify the mode or configuration that the small UAS is in and how to switch between modes or configurations.
The FAA received a few comments related to the contents of the remote pilot operating instructions, which are addressed in Section VI.C. This rule finalizes the requirement, without change, that in order for the small unmanned aircraft to be eligible to operate over people, the applicant must provide remote pilot operation instruction requirements.
6. MUST BE SUBJECT TO PRODUCT SUPPORT AND NOTIFICATION PROCESS
The NPRM proposed requiring applicants certify on the declaration of compliance that a process exists to notify the public and the FAA if the applicant identifies a safety defect or condition with its small unmanned aircraft that would render the small UAS ineligible for operations over people. The proposed rule did not suggest the FAA would automatically rescind a declaration of compliance if such notification occurred. The proposed rule stated the FAA would evaluate the report and correspond with an applicant to determine whether taking corrective action or rescinding the acceptance of the declaration would be appropriate. This process is described in more detail in VII.C.8-12.
Reporting safety issues will assist the FAA in both discovering product hazards and identifying risks of injury the FAA could address through direct communication with applicants, publication of Notices of Availability in the Federal Register, or education. Applicants' reporting will be a timely and effective source of information because applicants often learn of potential product safety problems at an early stage. For this reason, the NPRM proposed to require applicants to develop a system for maintaining and reviewing information about their products. This system will identify when an applicant's product might have a safety defect that increases the probability of causing serious injury or fatality during operations over people.
Subsequent to an applicant's discovery of noncompliance, the Agency proposed to require an applicant who submits a declaration of compliance to notify the FAA and the public of the existence of the safety defect. The notification to the FAA will describe the nature of the noncompliance and how the applicant plans to address it.
Notification to the public and owners of that make/model and series, if applicable, is a critical step in ensuring continued safety. Such notification could take the form of a notice on an applicant's website, electronic notification to owners who have registered the small unmanned aircraft with the applicant, or an update to the software used for the small unmanned aircraft, which advises the remote pilot of the change in status. Applicants should exercise diligence to ensure the intended audience receives communications involving any potential safety issues that would render the aircraft ineligible for operations over people. In this regard, the FAA expects applicants to design and utilize a system that will facilitate communication between the applicants and the owners of the small unmanned aircraft and could also inform the public at large.
The Small UAV Coalition supported the requirement that manufacturers establish a product support and notification process. APPA, EEI, and NRECA, commenting jointly, supported the need for manufacturer accountability, but believed the FAA should require manufacturers to contact registered UAS owners directly by electronic means or by unmanned aircraft software updates. Commenters wrote that the need to avoid inefficient methods is critical when responding to an outage or other emergency. Commenters further stated "electric industry UAS operators require a uniform, reliable, predictable way of receiving information to ensure they can quickly and accurately identify information that would affect [their] compliance."
While believing the requirements for the notification process to be generally sufficient, a commenter wrote that manufacturers should make it easier for pilots to know when a small unmanned aircraft is no longer compliant. This commenter suggested manufacturers provide instructions in their product manuals directing pilots to their websites to learn of safety defects. This commenter also suggested notifying purchasers through software or by email. A commenter also thought the FAA should require each pilot to register their small UAS when taking the mandated bi-annual knowledge test; that way, pilots could go no more than 24 months without receiving notification that a small UAS is non-compliant.
Another commenter stated the proposed rule did not provide a way for the FAA to identify and inform a specific fleet that a safety issue exists. The commenter believed the manufacturer has no responsibility to notify customers of safety issues, and that this is neither prudent nor scalable. This commenter suggested requiring manufacturers keep a list of customers and communicate directly with them and post notices of deficiencies on their websites.
The FAA disagrees with the commenter who believed that the proposed regulation was unclear regarding whether an applicant has a responsibility to provide notice of product issues to owners. The responsibility rests with applicants who submit declarations of compliance for the small unmanned aircraft, as they are in the best position to identify issues in a timely manner and to communicate with the owners. Additionally, the FAA may take action to inform the public in certain circumstances, in addition to the applicant's notification.
It is critical that applicants notify small unmanned aircraft owners of any product issues. The FAA declines to specify how the notification must occur. Applicants may have numerous ways of contacting owners of small unmanned aircraft; the FAA declines to prescribe the manner of contact, particularly as technology evolves. This rule requires the applicant who submitted the declaration of compliance to notify the owners of safety deficiencies in a timely manner. The FAA agrees with commenters that it is important for this information to be received quickly so that owners and remote pilots can take appropriate action as necessary regarding use of their small unmanned aircraft. Therefore, the FAA finalizes the product notification requirements as proposed.
B. Means of Compliance
1. MEANS OF COMPLIANCE
The Agency proposed to require an applicant producing a small unmanned aircraft eligible for Category 2 or Category 3 operations declare compliance with the safety requirements for the chosen category by using an FAA-accepted means of compliance. Demonstrating compliance with safety requirements includes verifying there are no safety defects, as described in Section VI.A.3. Under the proposed rule, a voluntary consensus standards body or an individual could develop an acceptable means of compliance, the latter of which the NPRM referred to as a custom means of compliance. Once the FAA accepts a means of compliance, any person submitting a declaration of compliance could use it to establish their small unmanned aircraft fulfills the requirements of the rule.
Several commenters suggested the means of compliance proposal was onerous, putting overly restrictive requirements on manufacturers. Commenters were concerned the proposed rule did not allow for innovation, would be too costly to implement, or would require manufacturers to create a system to a set of standards that seem arbitrary. In contrast, some commenters believed operators should be required to prove the small unmanned aircraft are safe to operate. The Agency carefully considered these comments and has determined the flexible, performance-based requirements combined with the means of compliance and declaration of compliance processes provide an effective and cost-efficient way to establish which small unmanned aircraft meet the appropriate eligibility requirements for operations over people.
Some commenters expressed concern that the requirements do not provide sufficient clarity as to how manufacturers would safely establish their small unmanned aircraft would not exceed the injury severity limitations. One commenter believed standardized procedures should exist, possibly involving impacting test dummies, showing the impact effects of a small unmanned aircraft collision so that minor or negligent testing by manufacturers cannot be used to show compliance. The FAA agrees standardized test procedures could be an effective way to demonstrate applicants have fulfilled the applicable standards, but notes the rule allows for wide variance in the operating criteria and designs of small unmanned aircraft. The performance-based nature of this rule allows industry to develop new or innovative standardized methods, which might include test dummies, that will be effective in demonstrating compliance.
Some commenters asked whether owners of self-built small UAS can test their own aircraft. The FPVFC volunteered to create a checklist for small UAS self-certification of compliance for safety testing, which anyone could use. Any person intending to operate a self-built small UAS over people must follow an FAA-accepted means of compliance to list the small UAS on the declaration of compliance submitted to the FAA. The FAA anticipates small unmanned aircraft manufacturers producing many small unmanned aircraft may find some means of compliance more appropriate than others, as some test procedures may involve destructive testing of multiple small unmanned aircraft to demonstrate compliance. This rule permits owners of self-built small unmanned aircraft to develop a means of compliance that does not involve destructive testing of multiple copies of a particular small unmanned aircraft. Anyone may submit a proposed means of compliance to the FAA for review.
The News Media Coalition believed the Agency should rely on findings of the safety of certain models of small UAS and experience with waivers for operations over people to inform performance-based rulemaking that reflects the FAA's data. Until a final rule is published, the commenter wrote that the FAA should allow any subsequent operators of a model of small UAS that has already received a waiver to secure a waiver without undergoing new performance testing. Waivers are issued on a case-by-case basis in accordance with § 107.200. The decision to renew or modify a waiver will continue to depend on the details of the proposed operation.
2. SUBMITTAL AND ACCEPTANCE OF A MEANS OF COMPLIANCE
As described previously, applicants submitting a declaration of compliance for acceptance must use an FAA-accepted means of compliance to establish compliance with the requirements. Any person may propose a means of compliance. A person who submits a means of compliance for FAA acceptance must provide a detailed description of the means of compliance and explain exactly how the testing, analysis, or inspection establishes the small UAS meets one or more of the safety requirements. When proposing the means of compliance for FAA acceptance, the applicant must include substantiating data, including studies or research reports, that supports the proposed means of compliance.
The FAA will indicate acceptance of a means of compliance by publishing a Notice of Availability in the Federal Register identifying the means of compliance as accepted and by informing the applicant of its acceptance.[51] If the FAA does not accept a means of compliance, the FAA will notify the applicant of the rationale for its decision. The FAA may rescind a previously accepted means of compliance on determining the means of compliance does not meet the applicable requirements for operations over people.
When reviewing a means of compliance, the FAA will utilize a comprehensive set of criteria. The FAA will determine whether the testing, analysis, or inspection described in the means of compliance demonstrates that a small unmanned aircraft meets the appropriate regulatory requirements. A means of compliance must address the injury severity limits, the exposed rotating parts prohibition, or a combination of both, and verification that there are no safety defects. The FAA will determine whether the proposed means of compliance aligns with accepted methods used by the medical industry, consumer safety groups, or other peer-reviewed test methods. In addition, the FAA will consider whether the proposed means of compliance relies on exceptional remote pilot skill or excessive pilot workload to satisfy the requirements.
The NPRM provided a means of compliance in which an applicant could use a drop test procedure to demonstrate the small unmanned aircraft complies with the injury severity limits for Category 2 or Category 3. This FAA-provided means of compliance does not consider the effect of these aspects on an impact with a person because it assumes that the total kinetic energy of the small unmanned aircraft would be transferred to the person on impact.
In reality, however, the small unmanned aircraft may transfer much less energy than this assumed maximum. In this regard, the Agency acknowledged structural configuration, materials of construction, or other design features may function to reduce the amount of the total kinetic energy that is transferred to a person from a small unmanned aircraft during an impact. For example, the presence of energy-absorbing materials, or an energy-absorbing protective cage, may reduce the transfer of kinetic energy during an impact with a person. An applicant may provide data showing the amount of kinetic energy that is transferred to a person during an impact based on the impact-absorbing characteristics of the small unmanned aircraft. Some applicants might seek to use design features such as parachutes or other deployable devices that reduce impact velocity to establish a small unmanned aircraft would impact a person with a reduced amount of kinetic energy. Such design features will require the FAA's review to determine whether they assist in achieving an acceptable means of compliance if the small UAS relies on the proper functioning of these features.
Any person may propose a new means of compliance to the FAA as a way to show compliance with the requirements. The NPRM had referred to this as a "custom means of compliance," which several commenters found confusing. Commenters such as CDA and AirXOS remarked on the time and expense associated with the approval process for a custom means of compliance and were concerned that it would be difficult, time-consuming, and costly. The Agency agrees that any individual creating a means of compliance would likely incur greater cost compared to using the FAA-provided means of compliance or an existing FAA-accepted means of compliance. The FAA encourages the development and use of standardized test procedures from a voluntary consensus standards body as a means of compliance. However, applicants are not required to use them.
The NPRM only referred to "custom means of compliance" to distinguish the FAA-provided means of compliance or a means of compliance provided by a voluntary consensus standards body from any other type of means of compliance. The NPRM stated a means of compliance submitted by a voluntary consensus standards body may be accepted more quickly than those submitted independently. The FAA will evaluate means of compliance submitted by a voluntary consensus standards body and by an independent party with the same level of rigor. The FAA generally works with voluntary consensus standards bodies in the development of these standards. As a result, any means of compliance based on these standards will already have gone through a comprehensive review process during development.
A commenter asked whether a deadline will exist for the means of compliance and if manufacturers could choose the methods to bring their small UAS into compliance. The FAA notes that there is no deadline for the submittal or acceptance of the means of compliance other than that it must be accepted by the FAA before an applicant can list it on a declaration of compliance. The NPRM stated a person submitting a means of compliance for FAA review could also submit the declaration of compliance listing that means of compliance at the same time. However, given that the FAA is no longer using the term "custom means of compliance," the FAA clarifies that, to obtain acceptance of a declaration of compliance, an applicant must identify the FAA-accepted means of compliance that it used. The FAA will finalize the means of compliance acceptance process as described in this section.
3. RESCISSION PROCESS FOR A MEANS OF COMPLIANCE
The NPRM proposed that it could rescind a means of compliance if the FAA determined from service history that the means of compliance did not meet the applicable standards for operations over people. However, the NPRM did not include regulatory text. In this final rule, the FAA has maintained the right to rescind a previously-accepted means of compliance and added regulatory text for clarity.
Some commenters expressed concerns about the ability of applicants to demonstrate compliance with the safety requirements. While Vortezon, Inc. agreed that small UAS manufacturers should bear the burden of demonstrating compliance with the injury severity limits, the commenter wrote that FAA itself should independently and thoroughly test the data submitted to support any means of compliance applications. The commenter believed that delegating that responsibility might result in a lack of uniformity in establishing the standards under which the industry will operate. Vortezon wrote that the procedures the Federal Communications Commission (FCC) uses to approve radio frequency devices might provide a template for the FAA. Another commenter noted that the proposed rule sets up the FAA as the final authority in determining compliance with the requirements, which they considered an appropriate balance.
To ensure the continued eligibility of small unmanned aircraft operating over people, the FAA finds it necessary to make clear that compliance is an ongoing process, and that the FAA maintains the authority to continuously evaluate that the applicant's means of compliance provides factual and correct data. The FAA can exercise its authority to rescind a means of compliance if the small unmanned aircraft does not meet any or all of the requirements of the subpart as a result of errors or deficiencies in the test, inspection, or analysis. As such, this final rule includes a regulatory provision to allow the FAA to rescind the means of compliance.
4. FAA-PROVIDED MEANS OF COMPLIANCE
As described above, the FAA-provided means of compliance includes a test and inspection method in which applicants demonstrate their small unmanned aircraft will not exceed injury severity limitations or the exposed rotating parts prohibition. The FAA has not made any changes to the FAA-provided means of compliance discussed in the NPRM. The FAA anticipates applicants will submit for comprehensive means of compliance that include innovative materials and designs, unlike the FAA-provided means of compliance described in the NPRM.
A. FAA-PROVIDED INJURY SEVERITY LIMIT MEANS OF COMPLIANCE
The FAA-provided means of compliance for the injury severity limitations entails an applicant's calculation of the small unmanned aircraft's maximum kinetic energy. This means of compliance does not account for impact dynamics or other factors, but consists of using only the formula the FAA describes to calculate the small unmanned aircraft maximum kinetic energy. Use of this formula alone establishes the small unmanned aircraft will not exceed one of the injury severity limits because, as described above in Section VI.A.1. of this preamble, 11 ft-lbs (for Category 2 operations) and 25 ft-lbs (for Category 3 operations) are kinetic energy values that assume a limit on injury severity. Applicants interested in using this test may find more information about the FAA-provided means of compliance in the NPRM and the associated Advisory Circular (AC) for this rule, AC 107-2A.[52]
Several commenters specifically addressed the FAA-provided means of compliance. ASSURE stated, "[u]sing this means of compliance, there will be no aircraft with a commercially viable payload that can meet the § 107.115 Category 2 operations in the NPRM and as such this NPRM will do nothing to expand the operations of the sUAS in the U.S." The Small UAV Coalition and AirXOS both agreed with ASSURE's conclusion. The Small UAV Coalition urged the FAA to use the automotive injury metrics as ASSURE suggested. AirXOS and CDA both stated the FAA-provided means of compliance does not sufficiently permit different materials or structural configurations, which can affect the damage resulting from a collision with a small unmanned aircraft. Both commenters were similarly concerned the FAA-provided means of compliance does not consider devices that may deploy and reduce the maximum impact speed or the reduced probability of failure or impact. These commenters stated the rule, if adopted, would impede innovation. CDA also believed the risk analysis should give operators credit for operational safeguards.
The FAA acknowledges the limitations associated with the FAA-provided means of compliance for the injury severity limits. The Agency intended to provide a test method that applicants could use to show compliance with the injury severity limitations, with the understanding that industry would develop more flexible means of compliance using consensus standards organizations. The FAA expects these industry standards to consider that small unmanned aircraft often have non-rigid structures, which can reduce the kinetic energy transferred to a person on impact. The FAA also expects industry consensus standards to address the use of deployable devices, such as parachutes, to demonstrate compliance with the injury severity limitations. Unlike the FAA-provided means of compliance, those that industry provides could leverage variable modes and configurations. The FAA-provided means of compliance allows applicants to have a method of complying with the injury severity limitations prior to development of any other means of compliance.
The FAA-provided means of compliance considers typical failures and environmental conditions during testing. Boeing asked the FAA to define what the NPRM meant in using the term "typical." In this case, "typical" describes a likely occurrence during normal operations of the small unmanned aircraft, (e.g., human error, systems failures, or environmental conditions that could lead to a loss of operational control). Because each small unmanned aircraft and its anticipated operating environment are different, the applicant is best-suited to determine what is typical. This rule requires the applicant to submit substantiating data that includes sufficient information concerning the environmental conditions and the maximum speeds the manufacturer utilized, as well as any unique test conditions for both the level flight and free-fall scenarios. This means of compliance is now available as an FAA-accepted means of compliance with the finalization of this rule.
B. FAA-PROVIDED EXPOSED ROTATING PARTS MEANS OF COMPLIANCE
In the NPRM, the FAA provided a means of compliance for the exposed rotating parts prohibition, which would require an applicant to ensure the small unmanned aircraft does not have parts that are exposed. For example, if the propellers that provide lift and thrust for the small unmanned aircraft are internal to the unmanned aircraft, such as in a ducted fan configuration, and are incapable of making contact with a person as a result of an impact, then the parts would not be exposed. As a result, the aircraft would satisfy this requirement. An applicant must inspect the small unmanned aircraft to establish that it does not have any exposed rotating parts and determine that any rotating parts would not become exposed during an impact with a person.
The NPRM noted an industry consensus organization could develop a standard for small unmanned aircraft that have rotating parts protected by safety features. If the applicant tests those safety features and establishes they remain effective during impact, this could demonstrate that exposed rotating parts would not be capable of lacerating human skin. If, however, a small unmanned aircraft has rotating parts that are exposed without any protective safety features, the NPRM proposed to permit applicants or others to show through testing, analysis, or inspection that the rotating parts would not be capable of lacerating human skin on impact with a person.
Several commenters addressed the issue of using a means of compliance to establish compliance with the exposed rotating parts prohibition. One commenter stated the ability to create novel means of compliance would drive innovation in finding alternatives to exposed rotating parts. The commenter believed the FAA should clarify that a small unmanned aircraft without rotating parts should not be required to submit proof of compliance.
To satisfy the eligibility requirements for Categories 2 and 3, a small unmanned aircraft must meet the performance-based requirements for exposed rotating parts by following an FAA-accepted means of compliance. A small unmanned aircraft that does not have any rotating parts would meet the FAA-provided means of compliance; the declaration of compliance would include an indication of this. Even if the small unmanned aircraft is designed to operate without rotating parts, the applicant must still submit a declaration of compliance to demonstrate the small unmanned aircraft complies with the exposed rotating parts prohibition and the injury severity limitation. This means of compliance is now available as an FAA-accepted means of compliance with the finalization of this rule.
5. DEPLOYABLE DEVICES AND OTHER SAFETY MECHANISMS
In the proposed rule, the Agency stated applicants may want to consider the use or testing of design features such as parachutes, ballistic recovery systems, or other deployable devices that create drag to reduce the maximum impact speed. While the FAA did not consider the use of a deployable device in the FAA-provided means of compliance, this rule does not prohibit anyone from submitting a means of compliance that considers deployable devices. The FAA will evaluate such design features to determine whether they assist in achieving an acceptable means of compliance.
Several commenters submitted comments regarding the use of deployable devices. AirXOS said that, consistent with the FAA's Safety Risk Management Policy,[53] the safety risk of a particular hazard should be assessed using a combination of the severity and likelihood (probability) of the potential outcome of the hazard. AirXOS stated the FAA should consider comparative safety benefits when evaluating the overall risk for operations over people. In addition to technological mitigations, AirXOS said the risk analysis should also consider operational safeguards, such as an operator having a comprehensive safety management system and flight proficiency training. MPAA and NCTA, commenting jointly, stated design safety features such as frangible components, propeller cages, propeller guards, parachutes, or padding that may increase the weight of a small unmanned aircraft are also likely to minimize the risk of injury. Some commenters suggested small UAS could be equipped with a range of safety mechanisms, including visual and audible alerts, collision avoidance systems, and parachutes.
Under this rule, applicants may choose to demonstrate compliance with the appropriate safety requirements of Category 2 or Category 3 using designs with safety features such as frangible components, propeller cages, propeller guards, parachutes, or padding. To do so, they must use an FAA-accepted means of compliance that incorporates those safety features as a means to comply with the injury severity limitations.
While use of other safety mechanisms (e.g., visual and audible alerts, collision avoidance systems, etc.) may decrease the likelihood of an impact with a person, the FAA will not factor in these devices in considering proposed means of compliance for Category 2 or Category 3 because they do not address the injury severity limitations or exposed rotating parts prohibition. The FAA may consider these devices as part of the Category 4 process or in a waiver application, particularly for applicants considering reliability and likelihood.
ParaZero and Indemnis both asserted that, even when equipped with a parachute, very few unmanned aircraft models will be capable of meeting the applicable kinetic energy limitation. A-Cam Aerials noted the proposed performance-based requirements would not permit certain operations even with mitigations, such as parachutes that adhere to the ASTM F3322-18 parachute standard.[54] The commenter requested the FAA consider allowing operational mitigations instead of requiring design mitigations, asserting these design considerations would limit the number of manufacturers that could meet the injury severity limitations. The rule, however, does not require manufacturers to meet the requirements using the FAA-provided means of compliance. An applicant may choose to demonstrate compliance with the injury severity limitations using deployable devices, as long as the applicant describes the use of them in the proposed means of compliance. The Agency encourages industry to develop means of compliance that leverage existing and future industry standards for the design, maintenance, and testing of such devices.
One commenter believed parachutes are not necessary based on the accident record for small unmanned aircraft or the ASSURE report. The UAS Program Leader for the Memphis Fire Department wrote that if parachutes are required, these systems are unable to be tested. He noted that the fire department performs a preflight safety inspection and flight check before every takeoff, but would be unable to test, check, or inspect a parachute system. The FAA clarifies that a deployable device system is not required. Applicants have the discretion to incorporate the use of a deployable device.
C. Declaration of Compliance
The NPRM stated self-certification is the appropriate method for manufacturers to declare compliance with a performance standard. Self-certification, combined with the Agency's determination that the means of compliance the manufacturer has used is acceptable, will ensure the small unmanned aircraft, when operated over people, will afford the public an appropriate level of safety.
1. PERSONS WHO MAY SUBMIT A DECLARATION OF COMPLIANCE
The NPRM proposed that any person or entity that designs, produces, or modifies a small unmanned aircraft for use in Category 2 or Category 3 operations must submit a declaration of compliance to the FAA for acceptance. The NPRM characterized any person who designs, produces, or modifies a small unmanned aircraft for such operations as a "manufacturer" for purposes of this rule.
Several commenters, including AUVSI, FPVFC, and several other individuals, commented on the use of the term "manufacturer." AUVSI indicated the FAA did not account for the entire range of entities that may wish to submit a declaration of compliance and recommended the Agency clarify that non-manufacturer third parties and operators that do not alter a small UAS would be eligible to submit a declaration of compliance in order for that small UAS to become eligible for Category 2 or Category 3 operations, regardless of whether the entity originally manufactured or modified the small UAS. The person who submits the declaration of compliance must be able to demonstrate they have used an FAA-accepted means of compliance to fulfill the standard. Although the FAA does not expect the resale of small unmanned aircraft by non-manufacturer third parties to be a typical occurrence, if the applicant wishing to make the small unmanned aircraft eligible for operations under Category 2 or Category 3 is able to submit a declaration of compliance with all required elements, the FAA would accept that declaration even though that person has not designed, produced, or modified the small unmanned aircraft. To reduce confusion, the final rule clarifies that the responsible party is the applicant.
To be eligible to operate in accordance with Category 2 or Category 3, the small unmanned aircraft must be listed on an FAA-accepted declaration of compliance. The FAA does not restrict who may submit a declaration of compliance and anticipates entities that produce and sell a complete and operable small unmanned aircraft to submit the most declarations of compliance. Other persons who may submit a declaration of compliance include designers or producers of kits that contain all the components and parts from which to build an operable small unmanned aircraft eligible for Category 2 or Category 3 operations. One commenter stated the FAA should not consider someone who assembles a kit to be a manufacturer. A small unmanned aircraft listed on an FAA-accepted declaration of compliance could be sold as a kit. The person who assembles such kit per the provided instructions is not required to submit a declaration of compliance; however, in order for the small unmanned aircraft assembled from that kit to be eligible for Category 2 or Category 3 operations, the producer of the kit must have submitted a declaration of compliance and received from the FAA acceptance of the declaration.
Any person who builds a small unmanned aircraft from parts not in a complete kit or who modifies a small unmanned aircraft to be compliant with Category 2 or Category 3 must submit a declaration of compliance and receive FAA acceptance of it before the small unmanned aircraft would be eligible for operations under the applicable category. For example, a person who modifies a small unmanned aircraft that was originally produced prior to the effective date of this rule so that the small unmanned aircraft becomes eligible to conduct Category 2 or Category 3 operations must submit a declaration of compliance.
A small unmanned aircraft is not covered by a declaration of compliance if it has been modified outside the configurations and modifications allowed in the remote pilot operating instructions for that small UAS. For example, the person who submitted the declaration of compliance for the Category 2 operation would not be responsible for the new configuration of the small unmanned aircraft after modification. The person who modified the unmanned aircraft would be responsible for submitting a new declaration of compliance describing the new configuration and receiving acceptance of it to establish eligibility for the appropriate category before the small unmanned aircraft can be operated over people.
A few commenters suggested people who build their own small unmanned aircraft should not be considered manufacturers and therefore not be required to submit a declaration of compliance. Another commenter asserted a primary reason people choose to build their own small unmanned aircraft is to save money and these people will not have the financial resources or access to testing equipment to demonstrate compliance. The FAA disagrees with the assertion that a distinction should exist between home-built small unmanned aircraft and other small unmanned aircraft. The four categories this rule establishes are not based on the purpose for which the small unmanned aircraft was built. Any person designing and building a small unmanned aircraft and intending to operate over people under Categories 2 or 3 must submit a declaration of compliance.
The FAA finalizes the term "applicant" to describe the person who submits the declaration of compliance. The applicant refers to the person who declares that the small unmanned aircraft meets the eligibility requirements for operations over people.
2. SUBMISSION OF DECLARATION OF COMPLIANCE FOR FAA ACCEPTANCE
For a small unmanned aircraft to be eligible to conduct operations over people in accordance with Category 2 or Category 3, the Agency proposed to require the applicant to declare that the small unmanned aircraft complies with the applicable performance-based requirements through use of an FAA-accepted means of compliance. The applicant would do this by submitting a declaration of compliance via an electronic form available on the FAA's website.
By submitting a declaration of compliance, an applicant would declare that it: (1) Established and maintained a process to notify owners of small unmanned aircraft and the FAA of any unsafe conditions that render those small unmanned aircraft non-compliant with subpart D; (2) would correct any safety defects the FAA identified; and (3) would allow the Administrator to inspect its facilities, technical data, and any manufactured small unmanned aircraft and witness any tests necessary to determine compliance with this subpart.
In response to the proposed declaration of compliance requirements, one commenter believed the assumption of liability must be inherent to the concept of a declaration of compliance. The existence of a declaration of compliance, however, does not automatically release the applicant or the remote pilot from any potential liability. For example, if a remote pilot were to operate the small unmanned aircraft over people in a configuration not specified in the remote pilot operating instructions, in an unsafe condition, or in a careless or reckless manner, a valid declaration of compliance does not release the remote pilot from responsibility. This commenter also asked how the declaration of compliance relates to section 345 of the FAA Reauthorization Act of 2018, which deals with self-certification.[55] This rule is consistent with the statutory requirements in section 345 of the 2018 FAA Reauthorization Act This statute requires FAA to develop a process for accepting "risk-based consensus safety standards relating to the design, production, or modification of small unmanned aircraft systems." Public Law 115-254, sec. 345(a)(1). In consideration of these requirements, this rule allows an applicant to request FAA acceptance of a means of compliance that is based on consensus safety standards.
The Small UAV Coalition supported the proposal to allow "self-certification" of compliance with the applicable standards; however, because the FAA will accept declarations of compliance on determining the manufacturer has demonstrated compliance with the requirements of the rule, the Coalition noted the requirements seem similar to the means of compliance. The means of compliance and declaration of compliance go hand in hand. The means of compliance answers the question of how a person or entity meets the requirements of the rule. The declaration of compliance establishes the applicant is declaring it has met the applicable injury severity limitations, the exposed rotating parts prohibition, or a combination of these requirements through an FAA-accepted means of compliance.
DJI urged the Agency to allow manufacturers to demonstrate compliance to certain regulations through the declaration of compliance and recommended using Transport Canada's "Remotely Piloted Aircraft Systems Safety Assurance Advisory Circular" (AC 922-001) as a model. While the FAA did not accept this recommendation to incorporate Transport Canada's AC, the FAA notes that this rule allows applicants to show compliance with the requirements by submitting a declaration of compliance and receiving FAA acceptance.
While generally supporting the proposed framework for the declaration of compliance, AUVSI recommended the FAA ensure the framework operates flexibly to avoid undue burden on small UAS operators who modify their small UAS and on non-manufacturers that wish to certify a small UAS. AUVSI asked the FAA to ensure the framework would permit manufacturers to certify a "wide variety" of payloads and configurations without the need for re-certification as long as modifications were within a certain range. The Coalition asked the FAA to ensure compatibility between the rules allowing night operations and operations over people, including any modifications for night operations.
Operations of small unmanned aircraft under Category 1, Category 2, or Category 3 must adhere to the applicable performance-based eligibility requirements, regardless of any modifications. The FAA will permit applicants to identify acceptable modifications, including payloads and configurations, in the remote pilot operating instructions as part of their declaration of compliance. Because the injury caused by an impact from the small unmanned aircraft could be different for each modification that changes the small unmanned aircraft configuration or properties, they must fulfill the applicable standard through an FAA-accepted means of compliance. This rule allows such evaluation by test, analysis, or inspection. For example, an applicant may not have to conduct separate evaluations for two different brands of propellers if they are the same diameter, pitch, weight, and material. If, through analysis, an applicant proves the propellers will behave the same, he or she would only have to conduct the impact test with one brand of propeller, but could list both brands of propellers as approved equipment in the remote pilot operating instructions.
A commenter recommended including a requirement in the declaration of compliance that all "written communications be written in proper English and follow standards for plain language." The FAA declines to accept this recommendation, as the Agency finds it unnecessary to provide prescriptive writing requirements.
This rule adopts the declaration of compliance submission as proposed, with the clarification that any person may submit a declaration of compliance for FAA acceptance. The Agency has determined accepting declarations of compliance is appropriately risk-based and suitable for allowing operations over people, as it is sufficient for the level of risk involved.
3. CONTENTS OF DECLARATION OF COMPLIANCE
The NPRM proposed that an applicant intending to list a small unmanned aircraft as eligible for operations over people in accordance with Category 2 or Category 3 would submit a declaration of compliance to the FAA. A template for the declaration of compliance will be available in an electronic form on the FAA's website. A completed declaration of compliance will include information the Administrator would require for both determining that a small unmanned aircraft complies with the applicable requirement and for tracking those models of small unmanned aircraft that were declared compliant. Applicants will declare they have met the requirements of the rule through an FAA-accepted means of compliance and include the following information:
FAA-accepted means of compliance used.
Name of the applicant.
Physical address of the applicant.
Email address of the applicant.
Small unmanned aircraft make, model and series, if applicable.
Serial number or range of serial numbers for the small unmanned aircraft (open-ended are permitted).
Whether the declaration of compliance was an initial or an amended declaration of compliance and, if amended, the reason for the resubmittal.
Declaration that the applicant:
○ Has demonstrated the small unmanned aircraft meets the injury severity limitations of Category 2, Category 3, or both, and the exposed rotating parts prohibition;
○ Has demonstrated the small unmanned aircraft does not have any safety defects;
○ Has satisfied the requirement to maintain a product support and notification process; and
○ Will, upon request, allow the Administrator to inspect its facilities and its technical data.
Any other information as required by the Administrator.
If an applicant amends an FAA-accepted declaration of compliance, the applicant must include the reason for the amendment. For example, the amendment could be to identify a different means of compliance, update an address, or correct a misspelling.
This final rule states the applicant must make a declaration for the items in the declaration of compliance instead of a certification. This change in the regulatory text does not change items required in the declaration of compliance; instead, it simply removes any potential confusion associated with the airworthiness certification process.
Information contained in declarations of compliance will be publicly available. By posting the declarations or otherwise making the information in the declarations publicly available, the FAA and the public will be able to determine which make, model, and series, if applicable of small unmanned aircraft are eligible to conduct operations over people pursuant to Categories 2 and 3.
No comments specifically addressed the contents of the declaration of compliance. The Agency also did not receive any comments regarding its proposal to make information about accepted declarations of compliance available to the public through an FAA website. This rule adopts the requirements related to contents of the declaration of compliance, as proposed.
Some commenters addressed the requirement that applicants allow the FAA to inspect their facilities. A commenter stated that the requirement for facility inspections seems difficult for overseas manufacturers and generally unnecessary. Access to each applicant's facilities provides a mechanism for the FAA to validate procedures, processes, and methods as well as the data used to demonstrate compliance with the safety requirements. The FAA regularly performs routine inspections of facilities of those who hold type certificates and production certificates overseas. The FAA maintains authority to inspect overseas facilities at which a manufacturer designs, produces, or modifies small unmanned aircraft for operations under Category 2 or Category 3.
One commenter found the proposed rule unclear regarding whether a person who either designed or modified a small unmanned aircraft would be subject to the on-site inspections proposal. An applicant who submits a declaration of compliance to operate over people would be subject to the onsite inspection requirement. On request, the person who submits the declaration of compliance must be prepared to demonstrate how they can validate that they are in compliance with their declaration of compliance and this rule.
The Agency adopts the list of information that must be included in the declaration of compliance as proposed, with no changes.
4. ACCOUNTABILITY FOR PERSONS SUBMITTING DECLARATIONS OF COMPLIANCE
After an applicant declares a specific small unmanned aircraft meets the requirements of a particular category, the Agency proposed to require the applicant to monitor the small unmanned aircraft to ensure it complies with the applicable requirements. Specifically, an applicant would monitor the validity of the means of compliance used and verify it does not exceed the injury severity limitations and complies with the exposed rotating parts prohibition. The applicant would track the construction, related safety analysis, and service history to ensure they do not reveal any hazardous conditions or safety defects that could increase the risk of a small unmanned aircraft operation over people. Moreover, the applicant must continue to ensure that the remote pilot operating instructions satisfy the regulatory requirements. To satisfy these obligations, an applicant may have to monitor its manufacturing processes, small unmanned aircraft operational usage, and collection of accident and incident data. Monitoring could also include information that owners and operators of the small unmanned aircraft provide. Should the FAA identify a safety issue that warrants review of an applicant's data, records, or facilities, this rule requires applicants to grant access to facilitate such review.
Furthermore, the Agency proposed to require applicants submit an actual record declaring compliance. Section 107.5, which prohibits any fraudulent or intentionally false record from being made, kept, or used to show compliance with any requirement of part 107, will apply to such records. In this regard, falsifying any part of any record intended to constitute proof of compliance with applicable requirements could subject the person who submitted the record to a civil penalty and would be a basis for rescinding a declaration of compliance.
The Agency did not receive any comments regarding the falsification provisions proposed and adopts those provisions without change.
5. DECLARING COMPLIANCE FOR MULTIPLE SMALL UNMANNED AIRCRAFT WITH THE SAME MAKE AND MODEL
In the NPRM, the Agency recognized that applicants producing the same make and model of small UAS on a large scale may not wish to perform individual unit testing to demonstrate that each small unmanned aircraft fulfills the applicable requirements. The Agency clarified that the proposed rule text would allow applicants to declare compliance for a make and model of small unmanned aircraft, rather than declaring compliance for each small unmanned aircraft an applicant designs, produces, or modifies.[56] The NPRM stated the applicant could establish and maintain a production quality system and design configuration control system to provide for consistent repeatability, to confirm each small unmanned aircraft fulfills the applicable standard for which the applicant declared compliance. As a result, an applicant could avoid testing every aircraft it constructs. Using a quality assurance system could confirm each aircraft subsequently manufactured would meet the performance-based requirements of this rule. The FAA received no comments on this policy and adopts the inclusion of "make and model" in the regulatory text of the section that sets forth the requirements for declarations of compliance, as proposed.
6. DECLARING COMPLIANCE FOR A SMALL UNMANNED AIRCRAFT THAT IS ELIGIBLE FOR MULTIPLE CATEGORIES OF OPERATIONS
If an applicant conducts testing or engages in analysis or inspection to determine a small unmanned aircraft could meet the requirements for operations in both Categories 2 and 3 in the appropriate modes or configurations, the NPRM proposed to require the applicant to submit only one declaration of compliance. On that declaration of compliance, the applicant would identify the categories of operation for which it determined the small unmanned aircraft was compliant and the means of compliance used for each category. The Agency did not receive any comments regarding this proposal and adopts it without change. For more information on the requirements for small unmanned aircraft with variable modes and configurations, see Section VI.F. of this preamble.
7. FAA ACCEPTANCE OF A DECLARATION OF COMPLIANCE
The NPRM proposed to require an applicant to provide information on its declaration of compliance regarding whether it has used an FAA-accepted means of compliance or a means of compliance the FAA has not yet accepted. If an applicant uses a means of compliance that the FAA has not yet accepted, the FAA must review and accept the means of compliance before the FAA can accept the declaration of compliance. The FAA will notify the applicant of its decision regarding acceptance of the means of compliance and declaration of compliance. Once the FAA accepts a declaration of compliance, the FAA will make the declaration of compliance, or information from the declaration, publicly available. The Small UAV Coalition commented that the NPRM does not describe what the FAA review will entail or how long it will take. The Small UAV Coalition further commented that, because the Agency did not describe whether it would undertake any discretionary review of the declaration of compliance, it expects a quick acceptance or denial.
The FAA will use its discretion to review and validate that the applicant meets the requirements of the FAA-accepted means of compliance through test data, third party validation, or the like, before rendering a decision on the declaration of compliance. Because means of compliance will vary in complexity, the FAA cannot provide estimates regarding the time needed for considering declarations. The FAA may request additional information from the applicant to determine whether the small unmanned aircraft listed in the declaration of compliance meets the listed FAA-accepted means of compliance. The FAA will respond to declaration of compliance submissions once it completes its review.
The proposed rule provides a sufficient framework for the Agency's approach for overseeing compliance with the proposed standards. The FAA adopts the process for accepting the declaration of compliance as proposed, with no changes.
8. SUBMITTING A NEW DECLARATION OF COMPLIANCE FOR A MODIFIED SMALL UNMANNED AIRCRAFT
The Agency proposed to require any person who modifies a small unmanned aircraft in a way that could affect the eligibility of the small unmanned aircraft to operate over people under Category 2 or Category 3 to submit a new declaration of compliance and receive FAA acceptance of it before anyone operates the small unmanned aircraft over people. If an individual modifies the small unmanned aircraft in a manner that the original applicant identifies in the remote pilot operating instructions as an allowable change, the individual will not need to submit a new declaration of compliance. When a person submits a declaration of compliance for a small unmanned aircraft that was not previously eligible for operations over people, the FAA would verify the small unmanned aircraft fulfills the applicable standard.
The News Media Coalition stated this requirement imposes an unnecessary and unreasonable burden and suggested the FAA require any buyer of a secondhand small UAS to be solely responsible for determining their own compliance with the rules, rather than requiring the seller of secondhand small UAS to provide remote pilot operating instructions or meet other requirements. Before operating over people, the remote pilot is responsible for ensuring that the small unmanned aircraft they intend to use is eligible to conduct operations over people. Prior to purchasing a small unmanned aircraft for the purpose of operations over people, buyers should verify the small unmanned aircraft has current remote pilot operating instructions and is listed on a valid declaration of compliance.
Some applicants may choose to provide criteria that describes acceptable modifications in their remote pilot operating instructions, rather than specific acceptable parts. In this regard, several commenters were concerned that adding or changing a camera could result in a disqualifying modification. Applicants can determine which payloads or modifications would be permitted and still meet the standard of Category 2 or Category 3.
Another commenter asked the FAA to specify that "modifying the firmware" would be exempt from the requirement, as the commenter stated several manufacturers install firmware that is more restrictive than the regulations. Updates to small unmanned aircraft firmware would be acceptable as long as they occur in accordance with the remote pilot operating instructions.
APPA, EEI, and NRECA, commenting jointly, applauded the FAA's recognition of the need for operational flexibility and supported the proposal "as an appropriate balance between operators' needs and public safety with minor clarification." Specifically, the commenters recommended the rule require manufacturers to identify permissible modifications in terms of weight, size, and shape, as opposed to specific identification of a make or model of equipment. The Agency declines to include this prescriptive requirement, as such detail is unnecessary and market forces will incentivize manufacturers to craft operating instructions that address the needs of prospective buyers and users of the small unmanned aircraft.
9. NOTIFICATION OF A SAFETY ISSUE
The NPRM stated the FAA would notify an applicant that submitted a declaration of compliance if it determines the small unmanned aircraft is not compliant with the injury severity limits or prohibition on exposed rotating parts or because the small unmanned aircraft has a potential safety defect. The FAA would identify such safety issues through a variety of means. The FAA may receive consumer complaints, industry safety bulletins, or an individual applicant's notification that a safety issue has arisen. Applicants would have the opportunity to discuss potential safety issues with the FAA. As a result of such discussion, the FAA may determine a safety issue does not actually exist, that the applicant has incorporated an adequate mitigation to address and correct the safety issue, or that a safety issue still exists.
To correct a safety issue, an applicant could develop a correction and test the aircraft to ensure the aircraft no longer has a safety issue. The applicant must correct any safety issues they identify after manufacturing the small unmanned aircraft on an ongoing basis to ensure continued eligibility for Category 2 or Category 3 operations.
The Agency proposed to require resolution of any identified safety issue. In the absence of acceptable resolution, the rule indicates the FAA would commence rescission proceedings, as explained below. A commenter stated, that as the NPRM is written, the FAA has no way of identifying, then informing a specific fleet that there is a safety issue. This commenter further stated there is no requirement for manufacturer responsibility to keep a list of customers and both communicate directly and post notices of defects and rescission on their website. As noted previously, there are multiple ways by which the FAA could become aware of a safety issue. The FAA must inform the applicant of any known safety issues. Additionally, the holder of the declaration of compliance must establish and maintain a product support and notification process to ensure that safety issues are communicated to the public and the FAA. This rule adopts the safety issue process, as proposed.
10. NOTICE OF RESCISSION OF A DECLARATION OF COMPLIANCE
The NPRM proposed to rescind a declaration of compliance if the FAA becomes aware that a small unmanned aircraft for which an applicant has declared compliance is no longer qualified for operations over people. The FAA proposed new procedural rules to govern any action to rescind a declaration of compliance; therefore, the FAA's rules under 14 CFR part 13 would not apply.
The proposed rule stated the FAA may rescind a declaration of compliance if any of the following conditions exist: (i) A small unmanned aircraft for which a declaration of compliance was accepted no longer complies with the applicable safety requirements; (ii) the FAA finds a declaration of compliance violates § 107.5(a); or (iii) the Administrator determines a safety emergency exists.
The proposed rule set forth a procedure for rescission that begins with the FAA sending the applicant a notice of proposed rescission. The notice would set forth the Agency's basis for the proposed rescission and provide the applicant 10 business days to submit evidentiary information to refute the proposed notice of rescission. DJI commented on the proposed timeline for submitting information, stating 10 days is not sufficient to understand the notice and gather and provide information to FAA. DJI suggested 30 calendar days. The FAA agrees that 10 days might be insufficient. This rule extends the notice period to 30 calendar days.
If an applicant does not contest the allegation that a safety issue exists, or if the applicant fails to respond within the required time period, the NPRM proposed to issue a notice rescinding the declaration of compliance. The FAA would publish the final rescission on the FAA website and specify the category of small unmanned aircraft to which the rescinded declaration applies. If the FAA rescinds a declaration of compliance as a result of an unresolved safety issue, the FAA proposed to allow an applicant to petition for reconsideration of the decision or modify the small unmanned aircraft such that the safety issue is resolved, at which point the applicant could submit a new declaration of compliance, which the FAA may accept.
As noted in the NPRM, a rescission of a declaration of compliance would not render a small unmanned aircraft inoperable, but rather no longer eligible for operations over people in Category 2 or Category 3. The small unmanned aircraft could resume operations over people only after the FAA reinstates acceptance of the declaration of compliance or accepts a new declaration that applies to the small unmanned aircraft. Either the original or a subsequent applicant could submit a new declaration of compliance.
In addition to publishing any final rescission of a declaration of compliance on the FAA website, the Agency stated the FAA would publish notification of any applicable safety defects in the Federal Register as a Notice of Availability. Such a notice will inform remote pilots that the identified aircraft are no longer eligible to conduct operations over people and would notify applicants not to incorporate the defective material, component, or feature into any upcoming designs without appropriate mitigations. The NPRM also proposed that, on rescinding a declaration of compliance, the FAA would publish the makes and models of small unmanned aircraft that are no longer eligible to operate over people. Remote pilots would be prohibited from using those aircraft to operate over people until the issue is resolved. On correcting a safety defect, the applicant would submit a new declaration of compliance to the FAA identifying the means of compliance the applicant used to correct the safety defect.
Additionally, the NPRM proposed to permit the owner or remote pilot of a small unmanned aircraft to correct a safety defect associated with their aircraft. Any person who chooses this option must submit a declaration of compliance to the FAA identifying the means of compliance used to correct the safety defect. By modifying the small unmanned aircraft such that it is again in compliance with the applicable requirements, that person would become the responsible person listed on the declaration of compliance for their specific small unmanned aircraft.
The FAA sought comment on whether this process provides sufficient opportunities for applicants to resolve safety issues and whether the procedure would adequately inform the public of safety defects. The FAA received a few comments regarding the process. DJI expressed general support, saying it agrees it is important for the FAA to have a mechanism for serious safety issues to be discussed and addressed by the applicant in collaboration with FAA for operations over people.
The National Association of Mutual Insurance Companies (NAMIC) stated publication of the rescission on the FAA website and the Notice of Availability in the Federal Register are insufficient to notify pilots that operations over people are no longer safe. NAMIC recommended the FAA use the contact information it has for registered small unmanned aircraft to notify registered operators of safety defects and rescissions. Another commenter stated that, as written, the proposed rule does not give the FAA a means to identify a safety issue and then inform a specific fleet of that issue; nor does it impose a responsibility on the manufacturer to do so. The commenter questioned why the proposed rule would not require the manufacturer to communicate directly with its customers and post notices of defects and rescissions on their website. The commenter also questioned whether the Federal Register is an effective means of communication, suggesting that "while it may satisfy the legal concept of the FAA's obligation, it is not a useful way to reach operators."
Publication in the Federal Register and on the FAA website are sufficient notification. This process of notification is similar to what the FAA uses for airworthiness directives and resolution of safety issues. The Federal Register and the FAA website are an effective and timely means of communicating aviation-related safety considerations to the public. The FAA may consider using the registration system as an additional way to notify registered owners of small unmanned aircraft. The rule allows the FAA to request compliance documentation and to inspect facilities as appropriate. Further, members of the public, including applicants and owners, may inform the FAA of potential safety defects. With regard to notification to owners and operators, each applicant must maintain a notification process and is required to inform the public and the FAA of safety defects. Although the rule does not specify how applicants would comply with this requirement, applicants may find posting on their websites an effective way to notify owners of any small unmanned aircraft safety defects. The FAA expects applicants to use their notification processes to disseminate this information.
Aside from increasing the notification period before the rescission from 10 business days to 30 calendar days, the Agency adopts the rescission procedure as proposed.
11. EMERGENCY RESCISSION OF A DECLARATION OF COMPLIANCE
The NPRM proposed an emergency rescission process for a declaration of compliance. Prior to rescission of a declaration of compliance, the FAA would typically initiate the safety issue notification process with the applicant. However, if the Administrator determines an emergency exists and safety of persons requires an immediate rescission of a declaration of compliance, the FAA may exercise its authority under 49 U.S.C. 46105(c) [57] to issue an emergency order rescinding a declaration of compliance. Under these circumstances, rescission would go into effect immediately, without the FAA initiating the notification process or the rescission procedures previously described. The order would remain in effect until the basis for issuing the order no longer exists. The emergency order would be considered a final agency decision; as such, an applicant may appeal the decision as provided in 49 U.S.C. 46110 following the issuance of the order. The FAA did not receive any comments about the emergency rescission process. This rule adopts the process as proposed, with no changes.
12. PETITION FOR RECONSIDERATION OF A RESCISSION OF A DECLARATION OF COMPLIANCE
Once a declaration of compliance is rescinded, the FAA proposed that an applicant would have the opportunity to petition the FAA for reconsideration. An applicant seeking reconsideration must petition the FAA within 60 days of the date of issuance of the notice of rescission. The petition would have to show: (1) The lack of a material fact in the original response to the notification of the safety issue and address why that fact was not present in the original response; (2) an important factual error existed in the decision to rescind the declaration of compliance; or (3) that the FAA did not correctly interpret a law, regulation, or precedent. The FAA would consider this petition and issue a final agency decision either affirming or withdrawing the rescission of the declaration of compliance. An applicant could appeal the final agency decision as provided in 49 U.S.C. 46110.
The FAA did not receive comments concerning the reconsideration process. The FAA adopts the reconsideration process, as proposed, with no changes.
D. Small Unmanned Aircraft Manufactured Previous to the Effective Date of This Rule
Some remote pilots and manufacturers of small unmanned aircraft may wish to use existing small unmanned aircraft to conduct operations over people. The Agency does not seek to preclude existing small unmanned aircraft from conducting operations over people. Instead, the proposed rule included procedures to establish the eligibility of existing small unmanned aircraft to operate over people. As explained in the NPRM, an applicant with a previously manufactured small unmanned aircraft may establish eligibility to operate over people by listing the applicable aircraft serial numbers for the identified small unmanned aircraft on the declaration of compliance submitted to the FAA. An applicant requesting acceptance would be responsible for developing remote pilot operating instructions for the existing aircraft and making those instructions available to remote pilots or owners of the small UAS.
The NPRM did not propose to require that an applicant locate owners or remote pilots operating existing small unmanned aircraft and provide the remote pilot operating instructions personally to them. Rather, if a remote pilot owns an existing aircraft that an applicant has identified on a declaration of compliance as eligible for Category 2 or Category 3 operations and the remote pilot intends to conduct operations over people using that aircraft, the remote pilot would be able to access the remote pilot operating instructions if the applicant posted them online.
The proposed rule did not identify an applicant seeking FAA acceptance of a declaration of compliance as the only person who could label a small unmanned aircraft manufactured prior to the effective date of the rule. Requiring an applicant to contact all remote pilots of a particular make and model of small unmanned aircraft and provide them with labels would be unreasonable. The NPRM noted that an applicant could make a label available to remote pilots, either as a website download or for cost. Overall, remote pilots could choose to label their existing aircraft in any manner that meets the requirements of the proposed rule.
The American Petroleum Institute (API) and other commenters suggested the FAA ensure small UAS owners are not required to buy new aircraft that are appropriately labeled or submit their own declaration of compliance. The News Media Coalition wrote that its members had made significant investments in their current fleets of small unmanned aircraft and do not wish to see them become "immediately obsolete." An individual commenter said they should be allowed to make modifications to allow their small UAS to become eligible to be used for Category 2 or Category 3 operations. A commenter stated small unmanned aircraft might need upgrades to make the blades safer, but believed the FAA should leave those owners alone. Another commenter asked for guidance on how the use of shrouds applies to existing models. A commenter sought a simple way for everyday operators to determine whether existing equipment can safely operate over people. This commenter wrote that while `certified' equipment may accomplish this going forward, there is a large gap for existing small UAS. This commenter recommended the example of the European notice of proposed amendment (NPA), which specifies certain altitude limits, speeds, and weights.
Small UAS designs that can currently operate under the provisions of part 107 will continue to be able to operate in accordance with part 107 after this rule becomes effective. When the remote pilot wishes to conduct operations over people, however, that person must ensure his or her existing small unmanned aircraft is eligible for the operation. For operations in accordance with Category 2 or Category 3, this involves verifying the FAA has accepted a declaration of compliance concerning the small unmanned aircraft. For Category 1, the remote pilot must verify the aircraft complies with the weight and exposed rotating parts standards. Anyone with a previously manufactured small unmanned aircraft may follow an existing FAA-accepted means of compliance and submit and request acceptance of a declaration of compliance verifying the aircraft is eligible to operate over people.
News Media Coalition believed the FAA should encourage manufacturers to test and certify currently available models, both newly manufactured models and recently sold models. The News Media Coalition asked the FAA to encourage manufacturers to offer a way to upgrade existing small UAS so that they are compliant with any new rules. The News Media Coalition said manufacturers could accomplish this through either a kit or a software or firmware upgrade.
The Agency declines to specify how or if small unmanned aircraft manufactured prior to the effective date of this rule may meet the requirements of this rule, but notes that an applicant may follow an FAA-accepted means of compliance that incorporates any number of mitigations, including software or firmware updates.
The Small UAV Coalition supported the proposal to apply the requirements of this rule to existing small unmanned aircraft models, such that operations over people with those models may not occur until the FAA has accepted a declaration of compliance for them. The Small UAV Coalition suggested the rulemaking explicitly recognize that an operation with an existing small unmanned aircraft model may occur pursuant to a waiver or exemption, without a declaration of compliance. This rule does not eliminate the ability for a person to submit a waiver under part 107. The FAA evaluates such requests on a case-by-case basis.
The Security Industry Association opined that the proposed rule's certification process for manufacturers and users seeking to acquire a means of compliance was reasonable. The commenter, however, asked the FAA to provide guidance to small businesses that manufacture small UAS on writing service agreements that comply with the rulemaking and do not subject the small business owners to frivolous lawsuits. However, such agreements are outside the scope of this rulemaking.
The FAA included the previously manufactured small unmanned aircraft section in the NPRM to ensure the requirement for labeling of such small unmanned aircraft would be clear. Given the reorganization of the regulatory text, that specific section is no longer necessary and therefore, the final rule does not include this section.
E. Remote Pilot Operating Requirements
The NPRM proposed to apply several operating limitations and requirements to operations under Categories 2 and 3. Several of the operating requirements apply to both Categories 2 and 3, while Category 3 operations are also subject to additional operating limitations and requirements. This rule adopts the requirements as proposed and clarifies that the remote pilot must verify that the declaration of compliance associated with the small unmanned aircraft is valid. It is the remote pilot's responsibility to ensure that the small unmanned aircraft is eligible for the intended operation, which the remote pilot can determine by checking the FAA website.
To conduct operations over people under Category 2 or Category 3, remote pilots must ensure their small unmanned aircraft is eligible for the applicable category or categories of operations. The remote pilot must ensure that the small unmanned aircraft meets the injury severity limits, exposed rotating parts prohibition, and the prohibition on safety defects. The FAA does not expect, nor does it require the remote pilots to inspect the means of compliance or to verify the product support and notification system. However, the remote pilot has a requirement to check that the small UAS is in a condition for safe operation, per § 107.15. The most effective way for a remote pilot to verify that the small unmanned aircraft meets the safety requirements is to ensure it is listed on an FAA-accepted declaration of compliance.
Remote pilots must also ensure their small unmanned aircraft is labeled to indicate the category of eligibility. If a label degrades such that it is no longer legible or attached to the aircraft, the remote pilot must ensure the small unmanned aircraft is relabeled in English such that the label is legible, prominent, and will remain on the small unmanned aircraft for the duration of the operation before operating the aircraft over people. The FAA received a few comments on the labeling requirement, one of which expressed support for it. Several commenters asked the FAA to clarify who is responsible for labeling the small unmanned aircraft. An individual commenter believed the labeling provision could force current UAS owners to buy future systems that are already labeled for operations over people, in the event that the UAS manufacturer chooses not to submit a declaration of compliance for those systems currently in the market. Finally, another commenter opposed making the manufacturer responsible for labeling the small unmanned aircraft. The applicant must meet the eligibility requirements for the small unmanned aircraft if he or she wishes to obtain FAA acceptance of a declaration of compliance to operate over people. Furthermore, if the remote pilot wishes to use a small unmanned aircraft that is listed on a FAA-accepted declaration of compliance, but does not possess a label because the small unmanned aircraft was produced prior to the effective date of this rule, the remote pilot must ensure the small unmanned aircraft is labeled in accordance with the terms of the declaration of compliance before using the aircraft for operations under Category 2 or Category 3.
The proposed rule did not restrict the areas in which operations under Category 1 or Category 2 may occur because these categories present a lower risk of causing severe injuries. The proposed rule did, however, restrict the areas in which Category 3 operations may occur, due to the increased injury severity limits of Category 3. Specifically, the FAA proposed to prohibit Category 3 operations over open-air assemblies of human beings. The FAA also proposed to limit Category 3 operations as follows: The operation is within or over closed- or restricted-access sites after anyone within that site is on notice that a small unmanned aircraft may fly over them; or, if not in a closed- or restricted-access site, the small unmanned aircraft does not sustain flight over a person not either directly participating in the operation, located under a covered structure, or inside a stationary vehicle. Furthermore, in response to comments, remote pilots are prohibited from operating a small unmanned aircraft as a Category 1, 2, or 4 operation in sustained flight over open-air assemblies unless the operation meets the requirements of § 89.110 or § 89.115(a) (remote identification operational and broadcast requirements for standard remote identification unmanned aircraft or unmanned aircraft with remote identification broadcast modules). Sustained flight over an open-air assembly includes hovering above the heads of persons gathered in an open-air assembly, flying back and forth over an open-air assembly, or circling above the assembly in such a way that the small unmanned aircraft remains above some part the assembly. The FAA may waive compliance with this provision as appropriate and is discussed in more detail in Section XIV.B. However, conditions of any waiver issued may require the operator to notify local law enforcement prior to the operation. All small unmanned aircraft operations are subject to remote identification requirements upon the applicable compliance date, as specific in the Remote Identification for Unmanned Aircraft final rule.
1. OPERATIONS OVER OPEN-AIR ASSEMBLIES OF HUMAN BEINGS
The FAA received a few comments addressing the proposal to prohibit Category 3 operations over open-air assemblies of people. One commenter recommended the FAA clarify what it means by an "assembly of people" and provide a quantity or density of people that constitute a significant risk. The FAA has declined to define this term by regulation; rather, the FAA employs a case-by-case approach in determining how to apply the term "open-air assembly." [58] Whether an operational area is an open-air assembly is evaluated by considering the density of people who are not directly participating in the operation of the small unmanned aircraft and the size of the operational area. Such assemblies are usually associated with public spaces. The FAA considers some potential examples of open-air assemblies may include sporting events, concerts, parades, protests, political rallies, community festivals, or parks and beaches during certain events. Some potential examples that are less likely to be considered open-air assemblies include individual persons or families exiting a shopping center, athletes participating in friendly sports in an open area without spectators, individuals or small groups taking leisure in a park or on a beach, or individuals walking or riding a bike along a bike path, but whether an open-air assembly exists depends on a case-by-case determination based on the facts and circumstances of each case. The remote pilot must assess whether the operational area would be considered an open-air assembly prior to conducting flight operations. Legal interpretations and opinions regarding open-air assemblies may be found on the FAA website.[59] The FAA will continue to provide education opportunities and outreach to remote pilots on conducting safe operations. Additional resources for operators can be found on the FAA website.
The Washington Progress Group stated the prohibition on Category 3 operations over open-air assemblies is reasonable for operators who are satisfied with restricting flights to unpopulated areas, or who are able and willing to control the ground environment over which they are flying, but asserted the restriction is too limiting for most commercial missions that operate in populated open areas and may need to hover. The commenter suggested the FAA consider allowing operations to occur in airspace the public assumes is safe.[60] To implement this standard, the commenter suggested the FAA require a proponent for UAS operations to proffer a safety case.
The FAA maintains its prohibition on Category 3 small unmanned aircraft operations over open-air assemblies of people, as the limitation will be a means for the FAA to maintain an appropriate level of safety for such operations. This prohibition is subject to waiver. An applicant who proposes risk mitigation measures that would achieve an acceptable level of safety when operating over open-air assemblies may qualify for and receive a waiver. Alternatively, a person choosing to demonstrate the reliability of their small unmanned aircraft may choose to obtain an airworthiness certificate and be eligible for Category 4 operations.
The Electronic Privacy Information Center (EPIC) provided statistics from a 2017 Pew survey [61] that the commenter believed are "directly relevant to the proposal to allow drones to operate over people." EPIC argued that the limitations proposed for Category 3 operations should apply to all operations. For flying over open-air assemblies of people, EPIC believed the FAA should require operators obtain and hold a permit that would "allow for press or photography drones," as a means of accountability.
The FAA developed the limitations for Category 3 operations as a way to mitigate the level of risk associated with the increased injury severity limitations. The FAA does not find it necessary to apply the limitations to operations under Categories 1 and 2, as those categories are sufficiently safe to operate over open-air assemblies without prior notification to persons not directly participating in the operation. However, in response to security concerns raised in comments, remote pilots are prohibited from operating a small unmanned aircraft as a Category 1, 2, or 4 operation in sustained flight over open-air assemblies unless the operation meets the requirements of § 89.110 or § 89.115(a) (remote identification operational and broadcast requirements for standard remote identification unmanned aircraft or unmanned aircraft with remote identification broadcast modules). See Section VI.E.3. for a description of sustained flight and open-air assemblies. The FAA may waive compliance with this provision as appropriate. The FAA similarly does not issue permits for specific operations, such as small unmanned aircraft operated by the press, because the FAA's statutory obligations concerning aviation safety do not require differentiating between the purposes for operations that may occur under part 107.
The Agency did not propose training or testing requirements for persons operating a small unmanned aircraft eligible to operate in either Category 2 or Category 3. With regard to Category 3 operations, the NPRM requested responses to several questions related to whether the Agency should require pilot training and testing requirements before allowing Category 3 operations over open-air assemblies. Specifically, the FAA requested comment on the following questions:
To conduct operations over open-air assemblies using a small unmanned aircraft that can transfer up to 25 ft-lbs kinetic energy to a person on impact, should the remote pilot-in-command have additional skills, experience, or currency beyond what part 107 currently requires?
If so, what kind of skill, experience, or currency should be required (e.g., minimum time operating the small UAS to be used, minimum number of take offs and landings, etc.)?
How should that skill, experience, or currency be documented?
Several commenters responded to these questions. Commenters did not agree on the path forward with regard to open-air assemblies and Category 3. One commenter recommended the FAA consider training requirements to conduct Category 3 operations over open-air assemblies of people. Motorola Solutions stated public safety officials should be allowed to conduct operations over open-air assemblies without a waiver using a Category 3 small unmanned aircraft if the remote pilot in command has additional skills, experience, and currency beyond what part 107 currently requires. In contrast, the News Media Coalition said the FAA should not require training based on the number of people on the ground, but should focus on ensuring remote pilots are trained and knowledgeable in all circumstances. Another commenter opined that, until the FAA requires a practical test with specified minimum skills, experience, and currency for remote pilots, any additional requirements for Category 3 operations over open-air assemblies should be left to market forces to create industry-accepted standards.
This rule does not require additional training, skills, experience, or currency for Category 3 operations. Although pilot experience might be relevant in determining whether an operation under either category meets the level of safety required for operations over people, the FAA lacks sufficient information and data to assess whether any training or time spent piloting a particular aircraft would be appropriate for ensuring safety.
2. OPERATIONS WITHIN OR OVER CLOSED- OR RESTRICTED-ACCESS SITE
The FAA proposed allowing Category 3 operations at closed- or restricted-access sites in which access to the site is restricted and when those people who are permitted access to the sites are advised of the occurrence of the operation. The FAA anticipates that a closed- or restricted-access site could be an area that contains physical barriers, personnel, or both, as appropriate, to ensure no inadvertent or unauthorized access can occur. For example, an operator should ensure that access is restricted through public notices and signage, flagging and barricading, erecting temporary fencing, or posting personnel at points of entry, as appropriate. In addition, issuing notice that a small unmanned aircraft may operate over people within the site will enhance the situational awareness of people within it. Notice could be written and posted at the entry point of the restricted area or be in a letter or contract prior to the operation. Verbal notice in addition to the written notice might be appropriate in some cases. Operators may want to consider whether providing written notification could be helpful to meet operators' own evidentiary needs. In accordance with this limitation, remote pilots must ensure no inadvertent or unauthorized access to the site occurs. The FAA expects adequate assurance could include receiving assistance from personnel, or placing physical barriers such as barricading and fencing or monitoring personnel to ensure inadvertent or unauthorized access to a closed- or restricted-access site does not occur. Geographical boundaries, such as rivers, canals, cliffs, and heavily wooded areas may also serve as effective barriers to restrict access. In some circumstances, it may not be possible for a small unmanned aircraft to take off and land inside a closed- or restricted-access site. The proposed limitations on Category 3 operations would therefore allow for takeoffs and landings to occur outside the site. In such circumstances, small unmanned aircraft could then transit to the site to conduct the desired operation, provided the aircraft does not maintain sustained flight over persons not directly participating when outside the site.
The FAA received several comments relevant to the restriction of Category 3 operations from sustaining flight over people unless those people are within a closed- or restricted-access site and have received notice that a small unmanned aircraft may fly over them. One commenter stated consent, rather than notice, would be most appropriate in restricted spaces because the public would likely be more amenable to the use of larger unmanned aircraft over them if consent was first required. This commenter recommended the FAA create another category for small UAS that require only consent and not notice. ALPA said a single, one-time notification to people not directly involved in the small UAS flight operation is not sufficient to reduce the risk of the operation. ALPA added this is true when an operation of small unmanned aircraft occurs in an open area where the zone of operations cannot easily be defined or depicted.
The FAA declines to require consent for Category 3 operations over people in a closed- or restricted-set because notice is sufficient for persons who choose to assume the risk of being present in the area of operation. With regard to ALPA's concerns about Category 3 operations in dynamic airport environments, the FAA is aware that areas like a non-movement area at an airport do not permit public access and are an appropriately closed- or restricted-sites. If an airport authority chooses to conduct Category 3 operations at the airport, they must provide notification prior to the operation. The FAA encourages providing frequent and timely notification to ensure the safety and awareness of all persons in the environment of operation.
The National Institute for Occupational Safety and Health (NIOSH) invited the FAA to join it in developing a performance-based, tiered approach for operations of small unmanned aircraft near people at worksites to minimize the occupational risks. NIOSH believes additional research and proactive risk mitigation measures are necessary. NIOSH also encouraged the FAA to collaborate with the Occupational Safety and Health Administration (OSHA). The FAA declines to require additional standards specific to construction sites. Part 107 does not place any additional burden or restrictions on any workplace. The wide variety of small unmanned aircraft types and operations make it impractical to set specific criteria, including stand-off distances, speed limits, mass, altitude, and the like, for operations over people. Workplace personnel responsible for safety rules should consider developing operating conditions to ensure remote pilots conduct safe small unmanned aircraft operations.
Flytcam Motion Pictures agreed that having restricted sites for Category 3 operations was reasonable, particularly around construction sites, agricultural fields, oil fields, and areas of search and rescue operations. The commenter noted these sites already have established safety measures in place and many of the personnel wear hard hats or helmets. The commenter did not, however, believe Category 3 operations are appropriate on closed-set motion picture and television productions. The commenter also pointed out that personnel on motion picture and television sets are unlikely to be wearing equipment to protect them. The commenter recommended that closed-set motion picture filming still require the user to go through the waiver process to describe how they can conduct operations safely. Additionally, ALPA recommended that small unmanned aircraft operations in these areas be restricted to Category 1 or Category 2. For operations over people at a construction site, the Associated General Contractors (AGC) of America asked FAA to clarify in this rulemaking that workers at the construction site qualify as "participating in the operation."
The injury severity limits, exposed rotating parts prohibition, and the operating restrictions for Category 3 operations are sufficient risk mitigations for all closed- and restricted-access sites. Under these requirements, operation of the small unmanned aircraft itself presents a sufficiently low risk, particularly when combined with a notification requirement that allows people in the vicinity of the operation to assume the risk or to leave the area when the operation is taking place. Construction sites are often closed- or restricted-access sites in which people within the sites might not directly participate in the small unmanned aircraft operation. Under these circumstances, operations over people can still occur over these individuals in accordance with this rule. The FAA discussed the distinction between people directly participating and not participating in the final rule for part 107.[62] This final rule for operations over people does not change that policy.
3. OPERATIONS NOT WITHIN OR OVER CLOSED- OR RESTRICTED-ACCESS SITES
For Category 3 operations over people not located within a closed- or restricted-access site, the Agency proposed to prohibit sustained flight, as doing so reduces the likelihood of injury by limiting protracted duration of a flight over a person. Additionally, the Agency proposed to prohibit remote pilots from operating a Category 3 aircraft over open-air assemblies of people.
In response to the proposal concerning Category 3 operations over people not located within closed- or restricted-access sites, the Small UAV Coalition pointed out the proposed rule did not include a definition of "sustained" operation. The Coalition stated the FAA should consider hovering or circling over persons to be "sustained," in contrast to merely transiting over a person. The FAA maintains the prohibition on sustained flight for Category 3 operations outside of a closed- or restricted-access site, in addition to prohibiting all operations over open-air assemblies. Sustained flight includes hovering above any person's head, including any person in an open-air assembly; flying back and forth over a person or open-air assembly; or circling above an uninvolved person or open-air assembly in such a way that the small unmanned aircraft remains above some part of that person or open-air assembly. Operations conducted under Category 3 only permit sustained operations over people directly participating in the operation or under a covered structure or inside a stationary vehicle. Category 1, 2, or 4 operations that are not compliant with remote identification are also prohibited from sustained flight over open-air assemblies.
The AeroVista Drone Academy recommended allowing "transient overflight" of non-participating persons who are equipped with hardhats and other equipment or non-participants who have provided informed consent. In addition, AeroVista recommended the establishment of a new category of "active participants," which would consist of persons involved in an operation, are informed of the risks, have provided informed consent, and can carry out appropriate emergency procedures. These active participants would be identified by special clothing or being in a closed-access site.
This rule provides flexibility for operating over people not directly participating in the operation, unless it is a sustained flight over an open-air assembly for Category 1, 2, or 4. This rule allows operations under Category 1 or Category 2 to occur over all people, including sustained flight over people not directly participating in the operation, unless that sustained flight is over an open-air assembly. The FAA finalizes the requirement to permit Category 3 over people only if: (i) The operation is within or over closed- or restricted-access sites and anyone within that site has been notified that a small unmanned aircraft may fly over them; or (ii) the small unmanned aircraft does not maintain sustained flight over a person not either directly participating in the operation, located under a covered structure, or inside a stationary vehicle with no changes. Such restrictions are consistent with the risk-based framework for this rulemaking.
F. Variable Modes and Variable Configurations of Small UAS
The Agency proposed to allow small unmanned aircraft configured to conduct operations in more than one category. For example, an aircraft may be designed in such a way that it would be eligible to conduct Category 2 operations in one mode or configuration and Category 3 operations in another. Alternatively, a small unmanned aircraft could meet the requirements to operate over people only when in one particular mode or configuration.
Using different modes or configurations, an applicant could design a small unmanned aircraft to meet the performance requirements of multiple categories of operations over people. The NPRM explained that, to transition between various modes or configurations, an applicant could use a variety of methods, such as software-enabled performance limitations or hardware configurations. The Agency proposed that a small unmanned aircraft would only be eligible for operation in more than one category if the remote pilot in command cannot inadvertently change the mode or configuration. A change of mode or configuration, therefore, could only result from a deliberate action on the part of the remote pilot in command. The applicant should test the small unmanned aircraft in the mode or configuration to which the applicant wishes to declare compliance. The declaration of compliance must include each category for which the applicant has tested or analyzed the small unmanned aircraft.
The Agency sought comment on means of compliance that address incorporation of software, including software updates or changes, to enable performance limitations and variable modes or configurations to meet the proposed safety level. The FAA also sought comment in the NPRM on how it should review means of compliance for the impact kinetic energy or exposed rotating parts safety thresholds to address the appropriateness of using software to limit or establish safe performance of the small unmanned aircraft. In response, the Agency received general comments on variable modes and configurations.
Flytcam Motion Pictures expressed concern that many pilots lack both the technical understanding of various systems and procedures required to operate safely and to understand the regulations in part 107. While agreeing the pilot should not be able to change the mode inadvertently, Flytcam was concerned the Agency had "a lot of confidence that the pilot will ensure the aircraft is configured properly." The FAA does not share these concerns because the regulations require remote pilot operating instructions to describe how to verify and change the mode or configuration of the small unmanned aircraft. Remote pilots who hold certificates under part 107 are capable of using the remote pilot operating instructions to determine how to employ the appropriate mode or configuration for the intended operation. The remote pilot in command is also responsible for complying with all applicable regulations, including conducting a preflight inspection.
The Agency adopts the proposal as drafted to allow small unmanned aircraft to be configured in more than one category.
G. Record Retention Requirements
The Agency proposed requiring applicants to maintain small unmanned aircraft records related to their declarations of compliance for a minimum of two years after ceasing production and requiring applicants to retain all supporting information for a means of compliance for as long as the means of compliance remains accepted. The NPRM explained that, in the event of a safety defect, or if the FAA initiated an action to address a compliance issue, this information would be critical to determine the cause, scope, and severity of the defect or infraction.
For applicants submitting a means of compliance for FAA acceptance, the submitter would be required to retain and make available to the Administrator, on request, and for as long as the means of compliance remains accepted, the detailed description of the means of compliance and justification showing how the means of compliance meets the requirements. When submitting a declaration of compliance, the applicant must retain all supporting information used to meet the safety requirements. The applicant must retain this information for 2 years after the cessation of production of the small unmanned aircraft listed on the declaration of compliance. Furthermore, if the applicant designs or modifies the small unmanned aircraft, they must retain the supporting information for 2 years after they submit the declaration of compliance. The FAA has modified the text of the regulatory requirements for record retention as they were proposed in the NPRM to provide clarity.
NAMIC and the Small UAV Coalition supported the proposal to require the holder of a declaration of compliance to retain records for a minimum of 2 years. In contrast, two individual commenters opposed the 2-year record retention requirement, arguing that it should be longer. One of these commenters wrote that, to accommodate lawyers and lawsuits, the Agency should extend the record retention period to match the statute of limitations, which the commenter stated is 10 years. The other commenter similarly suggested that records be retained for the length of all statutes of limitation, because the recordkeeping requirements will benefit the injured party. This commenter also stated that the NPRM did not provide a reason for treating the document retention and inspection requirements for the declaration of compliance and the means of compliance differently. The commenter asserted that if the method of proving compliance cannot be investigated and verified, "the Certificates of Declaration are suspect." The Agency finds that the record retention requirements are appropriate: It is not necessary to retain records that are the bases for declarations of compliance longer than 2 years, although the FAA notes that individuals may find it in their interest to retain the records for a longer period of time.
The Small UAV Coalition also commented in support of the proposal to require the holder of a means of compliance retain records for as long as the means of compliance remains acceptable to the FAA. Commenting on the proposed retention requirement for substantiating data related to custom means of compliance, an individual commented that, so long as the manufacturers are the only entities using their own custom means of compliance, it makes sense for them to keep substantiating data "with no caveats. "The commenter stated, "however, given that other manufacturers may rely on [another] manufacturer's custom means of compliance . . . the rule should provide some means whereby a creator of a custom means of compliance can notify those who use it that they will no longer utilize it." Data would then either be deleted or transferred to entities that wish to continue using the means of compliance. The commenter noted that, without this exception, a person who creates and submits for FAA acceptance a means of compliance must bear the cost of maintaining substantiating data related to that means of compliance even if the manufacturer no longer makes use of it.
An individual commenter expressed support for the proposed amendment to require any person holding an FAA-accepted declaration of compliance to make available to the Administrator, on request, the declaration of compliance and any other document, record, or report required to be kept. The commenter suggested the FAA clarify that only the person(s) required to keep the record must produce the record.
The proposed language sufficiently affirms that the person who is required to keep the record must be the one to produce the record on request. Further, the Agency adopts the record retention requirements as proposed, with minor clarifying amendments to ensure sufficient information is available to the FAA on request. These requirements are consistent with the level of oversight that is appropriate for small unmanned aircraft eligible to conduct operations in accordance with Category 2 or Category 3.
VII. Category 4: Operations Based on Airworthiness
The proposed rule included only three categories of aircraft that could conduct operations over people under part 107. In response, several commenters stated the Agency had not considered the reliability of aircraft. Other commenters stated a small UAS issued an airworthiness certificate should be allowed to operate over people.
The Agency designed part 107 to encompass small UAS that were not certificated, allowing for expansion of UAS operations in the NAS without requiring airworthiness certification. In response to commenters' suggestions, this rule considers reliability of small UAS by establishing a fourth category of small unmanned aircraft eligible to operate over people. This final rule allows small unmanned aircraft issued an airworthiness certificate under part 21 to operate over people in accordance with part 107. An appropriate airworthiness certificate would be one which does not prohibit operations over people or over moving vehicles. Operating limitations may be specified in the approved Flight Manual or as otherwise specified by the Administrator. Certification is how the FAA manages risk through safety assurance. It provides the FAA confidence that a proposed product or operation will meet FAA safety expectations to protect the public. Certification affirms that FAA requirements have been met. Small unmanned aircraft that have obtained airworthiness certification will be allowed to operate over people and over moving vehicles in accordance with part 107, so long as the operating limitations applicable to that aircraft do not prohibit those operations. Consistent with other regulatory frameworks, such as part 91 and part 135, the owner is responsible for the maintenance and records retention requirements for small unmanned aircraft operated in accordance with Category 4 under part 107, unless the owner has entered into an agreement with another entity to operate the small unmanned aircraft. It is expected that most operators of Category 4 small unmanned aircraft operated under part 107 will also be the owner, or operating under direction of the owner. In this case, the owner is responsible for compliance with the Category 4 small unmanned aircraft maintenance and records retention requirements. However, to maintain flexibility for those owners of a Category 4 small unmanned aircraft who wish to enter in to a lease agreement with another entity for the operation of their small unmanned aircraft without the owner's intervention or control, this rule provides the means for the responsibility for the maintenance requirements and retention of records to be clearly defined in such an agreement. If so specified in the agreement, the FAA would hold the operator responsible for compliance with the Category 4 small unmanned aircraft maintenance and records retention requirements. An agreement between an owner and an operator may be in the form of a written lease or contract, verbal agreement, or other agreement. If any agreement is found invalid or unenforceable, then the owner has the responsibility to meet these requirements. The provisions of any agreement should address, at a minimum, the requirements of § 107.140(c).
The UAS Program Leader for the Memphis Fire Department stated the FAA or the manufacturer should certify small UAS that are reliable aircraft for use in operations over people. AIA asked the Agency to consider the probability of a small unmanned aircraft hitting a moving vehicle or a human. A commenter wrote that there are currently no clear data on this topic and such data is critical to industry and public acceptance of this rule. AIA stated the Agency should consider the risk of UAS operations as consistent with the risks posed by traditional manned aviation as well as the other risks that the public faces daily. Airworthiness certification is not necessary for operations over people; as a result, the proposed rule did not require it for operations under any of the three proposed categories of operation.
Flytcam Motion Pictures surmised the risk of unmanned aircraft mishap would be higher with increased operations and suggested the creation of a fourth category that would include all the systems outside Category 3. Rising Tide Cinema proposed three classes of small UAS: Operations that occur under waiver, small UAS with technological advantages approved by the FAA, and a third category of small UAS with an "airworthiness release." Another commenter recommended several specific requirements for small UAS type certification, including a "demonstrated hover stability rating," pilot notification, and cybersecurity requirements. Drone Safe Communities suggested manufacturer requirements for protocol to apply during a loss of signal experience.
The Agency agrees with the commenters that demonstrable reliability should be an alternative path for operations over people. This rule includes several updates to regulatory text to allow aircraft with airworthiness certification to operate under part 107 and to be eligible to operate over people. This rule also removes the phrase, "[e]xcept for aircraft subject to the provisions of part 107" from § 21.1, to clarify small UAS may seek airworthiness certification even if part 107 applies to the intended aircraft operation. This final rule includes a new provision, § 107.2, which clarifies that, notwithstanding the change to § 21.1, small unmanned aircraft operating under part 107 are not required to obtain airworthiness certification. Except where the airworthiness certification is used as a basis for operating over people in accordance with Category 4, the provisions of part 21 will continue to be inapplicable to small unmanned aircraft subject to part 107. This final rule also revises § 107.1 to clarify that part 107 does not apply to any operation that an operator elects to conduct under part 91 with a small unmanned aircraft that has been issued an airworthiness certificate: an operator may conduct small unmanned aircraft operations under either part 107 or part 91 when the operation and small unmanned aircraft meet the applicable requirements.
A. Remote Pilot in Command Operating Requirements for Category 4
To operate under Category 4, the remote pilot in command must use a small unmanned aircraft that has an FAA-issued airworthiness certificate. Operating limitations may be specified in the approved Flight Manual or as otherwise specified by the Administrator and must not prohibit operations over people or moving vehicles. When using a small unmanned aircraft with an airworthiness certificate issued under part 21, remote pilots must operate in accordance with all operating limitations, which the FAA specifies for each aircraft when issuing the airworthiness certificate. Operating limitations are prescribed to ensure that the aircraft is operated within an acceptable level of risk to maintain the safety of the NAS and to protect persons and property on the ground. To ensure this safety, remote pilots must adhere to any operating limitations, especially those specific to operations over people. Any noncompliance with operating limitations increases risk.
Additionally, in response to comments, remote pilots are prohibited from operating a small unmanned aircraft as a Category 4 operation in sustained flight over open-air assemblies unless the operation meets the requirements of § 89.110 or § 89.115(a). Sustained flight over an open-air assembly includes hovering above the heads of persons gathered in an open-air assembly, flying back and forth over an open-air assembly, or circling above the assembly in such a way that the small unmanned aircraft remains above some part the assembly. The FAA may waive compliance with this requirement as appropriate. For more information on this requirement, please see Sections VI.E. and XIV.B.
B. Small Unmanned Aircraft System Requirements and Continued Airworthiness for Category 4
The aircraft must be maintained or altered in a manner using the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator. Additionally, the small unmanned aircraft must be inspected in accordance with either the manufacturer's instructions or instructions acceptable to the Administrator. The small unmanned aircraft must also be maintained or altered using parts of such a quality that the condition of the aircraft will be at least equal to its original or properly altered condition.
The person performing any maintenance, preventive maintenance, or alterations must use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness that are acceptable to the Administrator, or other methods, techniques, and practices acceptable to the Administrator. In addition they must have the knowledge, skill, and appropriate equipment to perform the work. While this rule does not require the person performing maintenance to hold a mechanic certificate, it is incumbent on the owner or operator to ensure that maintenance occurs in a manner that ensures that the small unmanned aircraft remains in a condition eligible to be operated over people in accordance with Category 4. If the small unmanned aircraft is operated, and subsequently crashes due to improperly performed maintenance, the small unmanned aircraft owner or operator could be held responsible. The person performing the maintenance must have the basic skills and knowledge to follow the manufacturer's instructions and use the tools that the manufacturer recommends. Or, if adequate instructions are not available, or if an alternative process is desired, then the maintenance provider may use instructions acceptable to the Administrator in lieu of the manufacturer's instructions.
Many of these requirements are similar to the requirements of part 43 that apply to maintenance of aircraft. The FAA has long relied on maintenance providers' compliance with these requirements to ensure the aircraft remains in an airworthy condition. In this regard, the requirements ensure the small unmanned aircraft retains the capabilities and characteristics the small unmanned aircraft had at the time of certification and that the certification determination remains valid. The conclusion that the aircraft will remain safe is critical in determining the aircraft is suitable for operating over people in accordance with Category 4, as it is consistent with the risk-based framework the Agency uses in establishing the appropriate policy for small UAS operations over people.
C. Maintenance Records
This rule requires the owner or operator to retain maintenance records for aircraft eligible for operations under Category 4 for at least 1 year from when the work is performed, or until the maintenance is repeated or superseded by other work. Furthermore, the owner or operator must retain and transfer records documenting the status of life-limited parts, compliance with airworthiness directives, and inspection status of the small unmanned aircraft when ownership of the small unmanned aircraft transfers. The records must be specific to the small unmanned aircraft and be made available to the Administrator on request. All records of maintenance, preventive maintenance, and alterations performed on the small unmanned aircraft must be documented in a manner acceptable to the Administrator. The records must contain the description of the work performed, the date the work was completed, and the name of the person who performed the work.
The FAA will use these records to verify that the small unmanned aircraft has been maintained in a manner that assures it remains in a condition eligible for operations over people in accordance with Category 4. In addition, while the Agency does not establish a process of requiring a small unmanned aircraft be removed from service, repaired, and returned to service by a certificated mechanic, the small unmanned aircraft must be properly maintained to ensure it remains in a safe condition. Appropriate record-keeping will verify compliance with this requirement.
When a remote pilot operates a small unmanned aircraft in accordance with part 107 that has been issued an airworthiness certificate under part 21, the requirements of part 43 and part 91 do not apply. However, a small unmanned aircraft that has been issued an airworthiness certificate may also be eligible to operate under part 91, under certain circumstances. This rule contains necessary updates to the regulatory text, to reflect the applicability of operating rules. Due to the differences in the regulations about how aircraft must be maintained under each suite of operating rules, it may be difficult for an owner or operator to switch back and forth between operating rules. In particular, a small unmanned aircraft that has been operated and maintained in accordance with part 107 may find it difficult to show compliance with the requirements of part 43 and 91. To address this concern, an owner or operator can elect to comply with the relevant part 43 and 91 requirements, even while operating in accordance with part 107. Under these circumstances, electing to comply with the relevant part 43 and 91 requirements may help facilitate moving back and forth between operational parts, if desired, because the requirements of parts 43 and 91 are more stringent than those of § 107.140 with regard to maintenance and airworthiness.
VIII. Operations Over Moving Vehicles
A. Proposed Prohibition and Comments Received
The Agency proposed to prohibit the operation of small unmanned aircraft over people in moving vehicles; however, the proposed rule stated the FAA could waive the proposed prohibition if a person demonstrates the small unmanned aircraft operation could occur safely under the terms of a waiver. In the proposed rule, the Agency stated the moving vehicle operating environment is dynamic and the remote pilot in command could not control it directly. The Agency considered, however, allowing the operation of small unmanned aircraft over people in moving vehicles without a waiver and sought public comment on whether it should take this action.
Many comments addressed operations of small UAS over people who are in moving vehicles. Several comments supported the prohibition and said the FAA should not consider allowing such operations without a waiver. A few comments only addressed the proposal to allow small unmanned aircraft operations over people in moving vehicles through the part 107 waiver process. Most commenters opposed the prohibition and said the FAA should allow small unmanned aircraft operations over moving vehicles without a waiver in all or limited circumstances.
Some commenters, including the CAPA, the Association of American Railroads, the Minnesota Department of Transportation (MnDOT), IAAPA, and EPIC, supported the prohibition as proposed in the NPRM. Both the Association of American Railroads and IAAPA asked the Agency to clarify what constitutes a moving vehicle and further requested clarity about whether the prohibition would apply to trains and amusement park rides.
IAAPA urged the Agency "to prohibit the flight of any unauthorized small UAS over fixed site amusement parks," citing concerns over small unmanned aircraft operating over amusement park rides. IAAPA stated operators who receive a waiver will be more familiar with the higher level of risk associated with operating over an amusement park. IAAPA asked the Agency to recognize the need to prohibit flight over, and in close proximity to, amusement parks by clarifying that amusement park rides are "moving vehicles" for purposes of the prohibition. Alternatively, the commenter asked the Agency to address the prohibition through Section 2209 of the FAA Extension, Safety, and Security Act of 2016.[63] The commenter asserted the kinetic energy of a small unmanned aircraft hitting an exposed individual on even a relatively slow-moving ride poses a substantial safety risk to the rider who is hit, to those around him or her, and potentially to all the riders on a ride.
Chicago's First Lady Cruises wrote that the inconvenience of the current regulation is outweighed by reasonable safety and liability concerns. The commenter noted that their open-air vessels provide their customers with unobstructed views of the Chicago skyline and could be considered an open-air assembly of people.
Several commenters supported the prohibition on operations over moving vehicles as long as it remains subject to waiver. MnDOT recommended the FAA require applicants for a waiver explain how they considered the safety of the combinations of altitude, speed, and distance from a roadway exist to avoid distracting drivers.[64] One commenter recommended the FAA differentiate between operations over people in moving vehicles with knowledge of the operation (e.g., vehicles being filmed) and operations over people in moving vehicles without knowledge of the operation (e.g., vehicles on public roads). Another individual commenter suggested the Agency only allow operations of small unmanned aircraft over moving vehicles with a waiver, hands-on training, and rules preventing operation over roadways where vehicles travel above certain speeds. The commenter said testing would be necessary to determine appropriate speeds, and would likely be similar to the testing conducted for this NPRM to set UAS categories, considering the likelihood of harm to bystanders that may occur at various speeds. The commenter also stated a small unmanned aircraft that causes a driver of a car or truck to lose control of a vehicle would create much greater havoc than that contemplated by this NPRM.
Some commenters recommended a prohibition against hovering or sustained flight over moving vehicles. NAMIC said it recognizes sustained operation of a small unmanned aircraft over moving vehicles can present safety issues and should not be permitted without a waiver, but "temporarily transiting over roads with moving vehicles during normal operations" should be permitted. A couple of commenters stated small unmanned aircraft operations should only be permitted without a waiver for purposes of transiting over moving vehicles or when the flight is done at certain angle, for example, perpendicular to the roadway or at a 90-degree angle. One commenter said any prohibition on hovering or sustained flights over moving vehicles should not apply to lifesaving or search-and-rescue efforts.
In contrast, many comments opposed the prohibition on small unmanned aircraft operations over moving vehicles and recommended the FAA allow such operations without a waiver. Most of these commenters cited at least one of the following reasons: (1) A small unmanned aircraft that malfunctions is unlikely to collide with a moving vehicle operating below it because both vehicles are in motion; (2) in the event of a collision, the risk of injury to people inside the moving vehicle is low because they are protected by the structure of the car; and (3) the risk of distraction to drivers is low. Commenters stated the small unmanned aircraft will operate directly overhead and therefore not be visible to the drivers, who must focus on distractions that are equal to or greater than a small unmanned aircraft operating overhead. Commenters also stated the FAA failed to consider the benefits of allowing small unmanned aircraft operations over moving vehicles and failed to provide sufficient evidence or data to support the Agency's stated concerns regarding risks to people in vehicles. Commenters asserted a blanket restriction on small unmanned aircraft operations over moving vehicles would severely limit small unmanned aircraft operations, especially in urban areas, and will negatively impact various industries, public safety operations, and emerging technologies. A few commenters noted helicopters and ultralight vehicles routinely operate over moving vehicles and present a greater risk to people in moving vehicles than small unmanned aircraft operating overhead. Other commenters opposed the prohibition due to concerns with the burden on the FAA and small UAS operators of using the part 107 waiver process to allow the operations.
Commenters also pointed to the difficulty of having to interrupt an operation by landing the unmanned aircraft, crossing the roadway, then resuming the operation. Utah Department of Transportation (UDOT) noted that, to avoid operating over moving vehicles, it closes lanes of traffic to conduct bridge, sign, and other infrastructure inspections via UAS, causing delays and incurring cost to society. Several commenters, including DJI, suggested allowing operations of small unmanned aircraft over moving vehicles without a waiver using a risk-based approach and to consider factors such as the speed and density of traffic, minimum altitude requirements, the location, type, and speed limit on the roadway or site being overflown, and the weight of the small unmanned aircraft. A few commenters suggested the rule include weather restrictions.
Some commenters recommended allowing such operations only in certain circumstances. A commenter recommended requiring operators to comply with reporting requirements, such as reporting property damage to local and State departments of motor vehicles. Commenters generally supported allowing operations over low-speed and low-density traffic when vehicles are in closed or restricted sites. Commenters also recommended that small unmanned aircraft operations be permitted over moving vehicles if the drivers are part of, or are aware of and consent to, the operations or when the operators are "professionally trained, certified, and insured." A few commenters who support such operations at construction sites asserted the nature of heavy equipment at such sites, the added protection of personal protective equipment, and the additional training for workers and operators would mitigate the risks of the operation. A commenter recommended viewing each operating environment on a case-by-case basis to allow operations where deemed safe and responsible, based on a variety of factors.
B. Response to Comments for Determination
The Agency agrees with the commenters who stated operations over people in moving vehicles could be conducted safely, subject to certain conditions. Although small unmanned aircraft operations over moving vehicles may present additional risks due to the potential speeds of such vehicles, the Agency has determined operations of small unmanned aircraft over people who are inside moving vehicles can be conducted safely, under limited circumstances. Therefore, this rule will allow small unmanned aircraft operations over people inside moving vehicles subject to specific conditions. The rule contains a new section describing the conditions under which small unmanned aircraft may be operated over people inside moving vehicles.
This rule allows operations over people inside moving vehicles under the following conditions. First, the small unmanned aircraft operation must meet the requirements for a Category 1, 2, or 3 operation under subpart D. Second, regardless of the category of operation, the operation must meet either of the following conditions: (1) The operation must be within or over a closed- or restricted-access site where any human being located inside a moving vehicle within the closed- or restricted-access site is on notice that a small unmanned aircraft may fly over them, or (2) if the operation is not within or over a closed- or restricted-access site, the small unmanned aircraft must not maintain sustained flight over moving vehicles.
The application of the requirements of Categories 1, 2, or 3 will reduce the risk of injury to human beings. The weight limitation and exposed rotating parts prohibition for Category 1 and the injury severity limitations and exposed rotating parts prohibition for Categories 2 and 3 reduce the risk of injury to human beings located in or on moving vehicles, as well as the severity of damage to a moving vehicle if an impact occurs. Having a single set of conditions for Categories 1, 2, and 3 to operate over moving vehicles also simplifies the requirement while achieving an acceptable level of safety.
Category 4 small UAS may be eligible to operate over moving vehicles as long as the applicable operating limitations in the FAA-approved Flight Manual or as otherwise specified by the Administrator do not prohibit such operation. For the reasons described in the discussion of Category 4 in Section VII. of this preamble, operation of a Category 4 small unmanned aircraft over a person in a moving vehicle is consistent with the level of safety that operations of small unmanned aircraft under Categories 1, 2, and 3 achieve.
For the purpose of this rule, the Agency considers a vehicle to be any means of transportation, regardless of whether it is motorized. For example, cars, trucks, buses, trains, motorcycles, scooters, and rollercoasters are all vehicles. In addition, non-motorized means of transportation such as bicycles would also be considered vehicles because they have the potential to move at speeds the Agency did not contemplate when establishing the requirements for operations over people. Watercraft such as sightseeing vessels, motorboats, and personal watercraft are also vehicles for the purpose of this rule.
The closed- or restricted-access site restrictions that apply to some operations over moving vehicles are similar to the restrictions for Category 3 operations over people and will apply to all operations over moving vehicles. For example, a Category 2 operation over people is not restricted to closed- or restricted-access sites, but if the operation involves operations over moving vehicles, then this restriction will apply. When operating within a closed- or restricted-access site, no limitations apply concerning the duration of sustained flight or hover over any moving vehicle. Small unmanned aircraft operations over moving vehicles within or over closed- or restricted-access sites have the most flexibility for operating over moving vehicles.
As with the operating limitations that apply to operations pursuant to Category 3, as discussed in Section VI.E., remote pilots must ensure no inadvertent or unauthorized access to the closed- or restricted-access site can occur. Such a site could be an area that contains physical barriers, personnel, or both, to ensure no inadvertent or unauthorized access is possible.
In addition, this rule requires that a remote pilot verify that people operating vehicles within the closed- or restricted-access site are provided notice that a small unmanned aircraft may operate over them within the site, to enhance the situational awareness of the people operating vehicles within the site. Public notices, signage, and flagging are some effective means of notifying people within the site, as are written notices posted at the entry point to the restricted area or a briefing between the small unmanned aircraft operator and the vehicle operators. When a person operating a vehicle receives a letter or contract stating small unmanned aircraft operations may occur over him or her, this would serve as sufficient actual notice, no matter the amount of time that passes between receipt of the information and the small unmanned aircraft operation, as long as the receipt of the notice occurs before the operation begins. Small UAS operators should provide verbal notice in addition to a written notice in cases in which a verbal notification is necessary to ensure the information is received and understood. Operators may want to consider whether providing written notification could be helpful to meet operators' own evidentiary needs. The notice should describe precautions or other recommended actions to ensure safety during a small unmanned aircraft operation. The remote pilot in command must verify that people in or on vehicles within the closed- or restricted-access site have received notice.
If the operation over moving vehicles takes place outside a closed- or restricted-access site, the small unmanned aircraft is prohibited from sustained flight over moving vehicles. This prohibition applies to holding above, hovering, or maintaining sustained flight above moving vehicles. This requirement should ensure only momentary exposure to any moving vehicle in which occupants do not have the benefit of awareness and coordination that operators of vehicles on closed- or restricted-access sites have. Limiting the amount of time the small unmanned aircraft operates over moving vehicles reduces the likelihood of an impact with a moving vehicle. Small unmanned aircraft operators who want to conduct sustained operations over moving vehicles not in a closed- or restricted-access site must apply for a certificate of waiver.
The remote pilot in command remains responsible for ensuring the operation does not create a hazard to anyone, including a person in a moving vehicle. The FAA will rely on fulfillment of this responsibility especially when the small unmanned aircraft crosses an active roadway or waterway, as the Agency declines to limit crossing roadways to particular angles, such as perpendicular to the roadway, or at certain altitudes. The remote pilot in command is best suited to evaluate the moving vehicle environment to determine a safe manner for crossing an active roadway or waterway to not present a hazard to the moving vehicles underneath. The remote pilot in command should consider the type of roadway or waterway; the types of vehicles; the small unmanned aircraft design and performance characteristics; obstructions to flight such as buildings, trees, powerlines, roadway signs; and any other aspect of the operating environment that could influence the safety of the operation.
The Agency also agrees with the commenters who supported the availability of waivers of the prohibition on operating small unmanned aircraft over moving vehicles. This rule will allow an applicant to seek a waiver from these provisions by adding § 107.145 to the list of provisions subject to waiver in § 107.205. Small UAS operators may receive waivers to allow them to deviate from the conditions for operating small unmanned aircraft over moving vehicles as long as they can demonstrate that the operation can occur safely pursuant to the terms of a certificate of waiver.
2016 Final Small Unmanned Aircraft Rule
DronSystems stated that the proposed ban on operations over non-involved persons would impact e-commerce and "a number of other sectors," and would be difficult to enforce. The University of Washington said that banning operations over non-operators is over-burdensome. WAG said the proposed prohibition "could have a significant chilling effect on both the commercial application of sUAS technology as well as the future development of sUAS technology," and is inconsistent with the "model aircraft" protections afforded by part 101 and section 336 of Public Law 112-95. Similarly, Foxtrot Consulting suggested that adequate training and a performance evaluation is a better mitigation measure because it ensures that remote pilots can operate their small UAS safely, regardless of what is below.
The Small UAV Coalition, Aeromarine, and an individual commenter stated that the proposed prohibition is unduly restrictive because there is no prohibition on manned aircraft flying over people. The Coalition also asserted that, given the consequent reduction in risk associated with the visual-line-of-sight and see-and-avoid requirements, a small UAS may safely be operated over persons.
The International Center for Law and Economics and TechFreedom claimed that by prohibiting UAS operation over people who are not directly involved in the operation, the FAA is "essentially limiting commercial UAS operations to unpopulated or extremely sparsely populated areas," and thus is "improperly ignor[ing] the important incentives for innovation suggested by Executive Order 12866 without apparent corresponding benefit." The Consumers Energy Company (CEC) stated that the likelihood of injury from contact with a small UAS is low given the restrictions on the size of small UAS, as well as the fact that they use small rotors and carry small fuel loads. With respect to the maintenance of power lines, poles, and related facilities, in particular, CEC pointed out that most operations occur in remote or rural locations with low population densities, where the risk of contact between a small UAS and a non-involved person is minimal. CEC said the FAA needs to consider "whether the risk perceived from small UAS usage really justifies a restriction that could have a substantial impact on the ability to use sUAS on a commercial scale."
Manned aircraft are generally permitted to fly over people because manned aircraft are formally evaluated for airworthiness through the airworthiness certification process. This process ensures that the manned aircraft has a level of reliability that would allow it to, among other things, safely fly over a person.
This rule does not require airworthiness certification. Because small unmanned aircraft have not been tested for reliability through the airworthiness certification process, they will likely have a higher failure rate than certificated aircraft. A small unmanned aircraft that fails may fall on a person standing under it at the time of failure, which is why this rule restricts small unmanned aircraft flight over people.
With regard to the risk caused by small UAS operations, the FAA agrees that, to date, the number of actual fatalities caused by small UAS operation has been low. However, that may be a function of the fact that, until recently, commercial civil small UAS operations have been prohibited in the United States. As discussed in the Regulatory Impact Assessment, the FAA expects the use of small UAS to increase after issuance of this rule, and thus, the agency has to ensure that part 107 implements appropriate mitigation to address potential risk caused by small unmanned aircraft flight over people.
The FAA agrees with WAG and Foxtrot Consulting that the knowledge that remote pilots in command will acquire during the certification process will help mitigate against small UAS accidents caused by human error. However, the safety concern underlying the flight-over-people restriction is not human error, it is mechanical failure. While a remote pilot in command may be able to detect some signs of potential mechanical failure during the preflight check, the preflight check does not, by itself, assure a level of mechanical reliability established by the formal airworthiness and maintenance processes that apply to other aircraft in the NAS. The appropriate mitigation to address this discrepancy, especially for heavier small unmanned aircraft, is an operational restriction on flying over people who could be hurt in the event of a mechanical failure.
The FAA disagrees with WAG's assertion that model aircraft are subject to a lower flight-over-people standard than part 107 operations. In order to operate under section 336 of Public Law 112-95, a model aircraft must, among other things, be "operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization."98 Today, the largest nationwide community-based organization that operates model aircraft is the Academy of Model Aeronautics (AMA). AMA's safety code specifically prohibits "flying directly over
unprotected people, vessels, vehicles or structures."
Several commenters, including the American Council of Engineering Companies, AUVSI, and Consumer Electronics Association, urged the FAA to implement a risk-based approach to allow operations over people.
AUVSI asserted that "by allowing sUAS operations over human beings following a risk-based approach, the FAA would foster industry innovation to develop the proper equipment and software necessary to meet safety standards regarding such operations." CEA provided an example of such a risk-based restriction used by another country that it said "would permit operations in less populated environments and continue to allow industry to gain experience and innovate." Specifically, CEA noted that the Swiss have successfully used a permitting system for UAS operations over "gatherings of people," defined as "several dozen people standing in close proximity to one another" or within a radius of 100 meters of such gatherings. Drawing on that example, CEA recommended the
FAA "tailor the rules to prohibit operations over mass gatherings, such as concerts and sporting events." Although CEA commended the FAA for rejecting as "unduly burdensome" a prohibition against the operation of small UAS over any person, it nevertheless asserted its belief "that the proposal is just as burdensome and that small UAS incorporate sufficient safety measures that make the prohibition unnecessary under the new rules. Boeing similarly recommended that the FAA reconsider proposed § 107.39 and "develop criteria using a risk-based approach to this issue, based upon population density and overflight, to take into account agriculture as well as law enforcement uses." The Professional Helicopter Pilots Association suggested allowing small UAS to be operated over persons or property if they do so in a safe manner.
DJI pointed out that "the proposed performance standards already impose an obligation on the operator to familiarize himself with the operating environment and take steps to assure the operation does not present an 'undue hazard'." Depending on the nature of the operation, DJI continued, "the risk associated with an inadvertent loss of positive control may require that there be no third parties exposed to any risk," or "the risk may be so minimal as to merit notification but not evacuation or taking cover," or "the required safety measure may fall within this range of options." As such, DJI suggested that "the best way to address the risk to individuals not directly involved in the operation is through the proposed performance standard."
Trimble Navigation proposed the FAA rely on a performance-based regime for operations over persons. Noting that the onus and obligation should be primarily on the small UAS operator to assess the overall safety environment before operating over persons, the company said the FAA "should avoid trying to specify precise design-based criteria in favor of a general standard of care that requires the operator to take into account the full range of operational safety protections and procedures at the site in question."
A commenter suggested the final regulations should discern between UAS weighing 5 pounds or less (which could be operated over "populated" areas at a maximum speed of 40 mph), UAS weighing between 5 and 25 pounds (which could be operated over "sparsely populated" areas at a maximum speed of 70 mph), and UAS weighing between 25 and 55 pounds (which could be operated according to the limitations imposed in the NPRM). The commenter further suggested that COAs be available for UAS between 25 and 55 pounds to be operated in populated and sparsely populated areas.
The FAA agrees that for certain types of small unmanned aircraft, a more performance-based set of operational mitigations may be appropriate because the lighter weight or other characteristics of those aircraft may result in less impact force if they should collide with a person. That is why, as discussed in the previous section, the FAA will be issuing an NPRM inviting public comment on a framework under which micro UAS will be allowed to operate over people. However, other small unmanned aircraft that do not meet the characteristics of a micro UAS may result in more impact force if they should collide with a person and that greater force may seriously injure or kill the person. The risk associated with flight over people is due to mechanical reliability issues that a remote pilot in command may have a limited opportunity to evaluate without airworthiness certification or a more extensive maintenance process. At this time, the FAA has no data establishing how that risk could be mitigated through operational constraints (whether performance-based or otherwise), other than a prohibition on flight over people. Accordingly, this rule will retain the general prohibition on flight over people. However, as discussed below, this prohibition will be waivable to allow the FAA to consider case specific mitigations. The FAA will use data and operating experience gained as a result of the waiver process to help inform future UAS rulemakings.
A number of commenters said the proposed restriction should be narrowed to apply only to certain crowded or heavily populated areas. The American Petroleum Institute urged the FAA not to apply the prohibition in cases of "intentional acts to disrupt lawful UAS operations" (e.g., anti-oil and gas activists placing themselves in generally accessible areas of operation to frustrate or halt routine activities). Event 38 Unmanned Systems proposed that "certain events and other areas with high people concentration locations be designated as no-fly zones," instead of a total ban on operations over non-participants. The company suggested that local and State entities could be involved in this part of the rulemaking.
Matternet similarly recommended that the only overhead operations that should be restricted are operations "over an open air assembly of persons if such operation endangers the life or property of another." The company compared the proposed regulation to regulations for ultralight vehicles (ULV)—which weigh up to 250 pounds, plus the weight of the person, and are permitted to be operated over persons—and suggested that a device weighing less than one-sixth the weight of a ULV with a passenger, and operated at an altitude of only 500 feet or less (compared to thousands of feet for the ULV), poses far less risk to persons on the ground. Several individuals also recommended that the final rule prohibit any operation in congested areas or over open-air assemblies of people. As an initial matter, the FAA notes that there is a significant difference between the terms "congested area" and "open-air assembly of people." While the term "open-air assembly of people" applies only to a large group of people, the term "congested area" could apply to an area that has no people in it. For example, a town's commercial/business district can be considered a congested area, even in the middle of the night when there are no people in the area.
As pointed out by the commenters, a number of existing operations that take place in the NAS, such as the operation of ULV, are prohibited from taking place over congested areas.101 The FAA considered imposing a similar restriction on small UAS operations conducted under this rule. However, the FAA ultimately rejected this approach as needlessly restrictive because it would prohibit small UAS operations over certain parts of a town even when there are no people in the area of operation who could be hurt by a small unmanned aircraft.
With regard to operations that are not conducted over an open-air assembly of people, the FAA agrees that this may be a consideration for some small unmanned aircraft that pose a lower injury risk if they collide with a person, consistent with the micro UAS ARC's recommendations.. Accordingly, the FAA may consider this approach as part of the micro UAS rulemaking. However, other small unmanned aircraft pose a higher injury risk and in the event of a mechanical failure, those aircraft could seriously injure or kill a person in their path, even if that person is not part of a larger group. Accordingly, this rule will not allow flight over people even when they are not part of an open-air assembly. We will continue to evaluate this issue and address it in rulemaking in response to the Micro UAS ARC recommendations, as noted earlier.
The FAA declines to add an exception for intentional acts to disrupt lawful small UAS operations. A person who is standing under an uncertificated small unmanned aircraft is subject to the same amount of risk regardless of his or her subjective motivation for standing under the aircraft. The FAA notes, however, that State and local laws, such as trespassing, may provide a remedy for companies whose small UAS operations are deliberately interfered with by people entering the area of operation without permission. Finally, with regard to State and local entity involvement in this rulemaking, the FAA notes that the comment period for the NPRM was open to everyone, including State and local entities. The FAA received a number of comments from State and local entities, and it considered those comments when formulating this final rule.
Several commenters, including the Small UAV Coalition, Google, and Statoil, suggested that the prohibition on flight over people should be subject to waiver or some other type of deviation authority. The Small UAV Coalition urged the FAA to revise proposed § 107.39 to allow the Administrator or his delegate to authorize small UAS operations over non-participating persons through exemption, deviation authority (certificate of waiver or authorization), or certification, "upon a showing that any risk to persons on the ground is sufficiently mitigated."
Google pointed out that an outright ban on operations over people not directly participating in the operation of the UAS or not located under a covered structure would limit beneficial uses for small UAS which involve operations above nonparticipants. Google proposed that operators be able to "present a safety case" to the FAA for operations over non-participants.
The National Ski Area Association (NSAA) said the final rule should recognize and accommodate technological innovations, which could be required for use of UAS at ski areas when operating near open-air assemblies of persons. Such technologies include geofencing, return-to-home capabilities, pre-programmed waypoint software, landimmediately function, GPS, signal processing, and increasingly reliable navigation systems.
CEA suggested that the FAA allow small UAS to be eligible to obtain airworthiness certifications, and that UAS with such certifications not be subject to the prohibition on operations over people. CEA asserted that such an approach "will create a vibrant market for UAS and encourage manufacturers to seek airworthiness certification."
Airware pointed out that standards have been developed by ASTM subgroup F38 to ensure higher levels of safety for operations that pose a higher risk like flight over populated areas. In addition to those existing standards, Airware asserted that the combination of the use of fly-away protections like geo-fencing and contingency management, applying design and testing to industry standards, the use of reliable flight control systems, and the use of parachutes to mitigate against 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 A119 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 nonparticipants.
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 nonparticipating 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-overpeople 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 § 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
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 headon 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 § 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 § 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, 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 heat Growers, and the Virginia Agribusiness Council.
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 theU AS overhead.
Associated Builders and Contractors also proposed lifting the restriction on flightover 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 nonparticipants 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 nonparticipants 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 § 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 movieset 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. 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 103 See FAA Order 8900.1, vol. 3, ch. 8, sec. 1. 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 nonparticipants 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 (§ 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 (§ 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 § 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 § 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 § 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 (§ 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 nonparticipant 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 §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.
Category: Commercial Drone Rules (Part 107) Federal Drone Law
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