[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Proposed Rules]
[Pages 3856-3907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00732]



[[Page 3855]]

Vol. 84

Wednesday,

No. 30

February 13, 2019

Part II





Department of Transportation





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Federal Aviation Administration





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14 CFR Part 107





Operation of Small Unmanned Aircraft Systems Over People; Proposed 
Rules

  Federal Register / Vol. 84 , No. 30 / Wednesday, February 13, 2019 / 
Proposed Rules  

[[Page 3856]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 107

[Docket No.: FAA-2018-1087; Notice No. 18-07]
RIN 2120-AK85


Operation of Small Unmanned Aircraft Systems Over People

AGENCY: Federal Aviation Administration (FAA) and Office of the 
Secretary of Transportation (OST), Department of Transportation (DOT).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The FAA proposes to amend its rules applicable to the 
operation of small unmanned aircraft systems (UAS). This rulemaking 
would allow operations of small unmanned aircraft over people in 
certain conditions and operations of small UAS at night without 
obtaining a waiver. It would also require remote pilots in command to 
present their remote pilot in command certificate as well as 
identification to certain Federal, State, or local officials, upon 
request, and proposes to amend the knowledge testing requirements in 
the rules that apply to small UAS operations to require training every 
24 calendar months. This proposal would be the next phase in 
integrating small UAS using a risk-based approach. These amendments 
would allow expanded small UAS operations and reduce the knowledge 
testing burden on remote pilot in command certificate holders.

DATES: Send comments on or before April 15, 2019.

ADDRESSES: Send comments identified by docket number [FAA-2018-1087] 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to http://www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
http://www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For small UAS policy questions 
concerning this proposed rule, contact Guido Hassig, Aviation Safety 
Inspector, General Aviation and Commercial Division, Flight Standards 
Service, Federal Aviation Administration, 55 M Street SE, 8th Floor, 
Washington, DC 20003; telephone 1-844-FLY-MYUAS; email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Executive Summary
    A. Background
    B. Overview of the Proposal
    1. Night Operations
    2. Operations Over People
    3. Applicability to Existing Small UAS
    4. Waivers
    5. Miscellaneous Changes to Part 107
    C. Security Considerations
    D. Compliance and Enforcement Tools
    E. Costs and Benefits
II. Authority for This Rulemaking
III. Background
    A. Related FAA and DOT Actions
    1. Registration and Marking Requirements for Small Unmanned 
Aircraft
    2. Operation and Certification of Small Unmanned Aircraft 
Systems
    3. Secure Operations of Small Unmanned Aircraft Systems
    B. Advantages of Operations Over People and at Night
    C. Micro UAS Aviation Rulemaking Committee
IV. Discussion of the Proposed Rule
    A. Operations at Night
    1. Analysis of Risk of Night Operations
    2. Review of Exemptions and Waivers
    3. Visual Observation at Night
    4. Anti-Collision Lighting
    5. Waiver
    6. Preflight Familiarization
    7. Remote Pilot Knowledge
    B. Operations Over People
    1. Definitions
    2. ARC Recommendation
    3. Category 1 Operations
    4. Category 2 and 3 Operations
    5. Means of Compliance
    6. Aircraft With Variable Modes and Configurations
    7. Declaring Compliance
    8. Recordkeeping Requirements
    9. Remote Pilot Operating Instructions
    10. Labeling Requirements
    11. Manufacturer Accountability
    12. Operational Requirements and Remote Pilot Restrictions
    13. Provisions Applicable to Existing Small UAS
    C. Waivers
    1. Prohibition on Operations Over a Moving Vehicle
    2. Operations Over People
    D. Remote Pilot in Command Requirements
    1. Presentation of Remote Pilot in Command Certificate
    2. Changes to Knowledge Testing Framework
V. Other Amendments
    A. UAS Exemption-Holders
    B. Remote Pilot in Command
    C. Operation of Multiple Small UAS
VI. Privacy
VII. Section 44807 Statutory Findings
    A. Hazard to Users of the NAS or the Public
    B. Certificate Requirements
VIII. Regulatory Notices and Analyses
    A. Regulatory Evaluation
    1. Assumptions and Data
    2. Benefits Summary
    3. Costs and Savings Summary
    4. Benefit Cost Summary
    B. Regulatory Flexibility Act
    1. Description of Reasons the Agency is Considering the Action
    2. Statement of the Legal Basis and Objectives for the Proposed 
Rule
    3. Description of the Record-Keeping and Other Compliance 
Requirements of the Proposed Rule
    4. All Federal Rules That May Duplicate, Overlap, or Conflict 
With the Proposed Rule
    5. Description and an Estimated Number of Small Entities to 
Which the Proposed Rule Will Apply
    6. Description of Significant Regulatory Alternatives Considered 
for Small Entities
    C. International Trade Impact Assessment
    D. Unfunded Mandates Assessment
    E. Paperwork Reduction Act
    F. International Compatibility and Cooperation
    G. Environmental Analysis
IX. Executive Order Determinations
    A. Executive Order 13132, Federalism
    B. Executive Order 13211, Regulations That Significantly Affect 
Energy Supply, Distribution, or Use
    C. Executive Order 13609, Promoting International Regulatory 
Cooperation
    D. Executive Order 13771, Reducing Regulation and Controlling 
Regulatory Costs
X. Tribal Outreach
XI. Additional Information
    A. Comments Invited
    B. Proprietary or Confidential Business Information
    C. Availability of Rulemaking Documents
    D. Small Business Regulatory Enforcement Fairness Act


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I. Executive Summary

A. Background

    On June 28, 2016, the FAA published the much-anticipated rules that 
allowed people to begin conducting routine, civil small UAS 
operations.\1\ That rule established a new part in the Code of Federal 
Regulations, 14 CFR part 107 (part 107), containing remote pilot 
certification and operating rules for small UAS weighing less than 55 
pounds. Under those rules, anyone operating a small UAS must either 
hold a remote pilot certificate or be under the direct supervision of a 
remote pilot in command.\2\ Throughout this document the FAA uses the 
term ``remote pilot'' to mean a person authorized to conduct operations 
under part 107. Part 107 specifically excludes operations by any UAS 
weighing 55 pounds or greater; by air carriers, regardless of size; and 
by any UAS, regardless of size that operates pursuant to an exemption 
issued under Section 333 of Public Law 112-95 \3\ (or 49 U.S.C. 
44807).\4\ In addition, as a result of Public Law 115-254, part 107 
also does not apply to limited recreational UAS operations under 49 
U.S.C. 44809.\5\
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    \1\ Operation and Certification of Small Unmanned Aircraft 
Systems, 81 FR 42064 (June 28, 2016).
    \2\ 14 CFR 107.12.
    \3\ Signed into law February 14, 2012.
    \4\ Section 347(b) of Public Law 115-254 (Oct. 5, 2018) repealed 
Section 333.
    \5\ Section 349 of Public Law 115-254 repealed section 336 of 
Public Law 112-95.
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    This proposal is the next step in the FAA's incremental approach to 
integrating UAS into the national airspace system (NAS), based on 
demands for increased operational flexibility and the experience FAA 
has gained since part 107 was first published.\6\ Specifically, this 
proposal would expand the activities permitted under part 107 to allow 
operations over people and at night under certain conditions. As such, 
it builds on the framework established when the FAA first published 
part 107. For example, this proposal applies to the same universe of 
UAS operations identified in the 2016 rule. The FAA will continue to 
build on this framework as it develops future proposals to allow 
increasingly more complex operations in the NAS.
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    \6\ Operation and Certification of Small Unmanned Aircraft 
Systems, 81 FR 42064 (June 28, 2016). In the 2016 rule, the FAA 
noted that it would continue to work on expanding the types of small 
UAS operations that would be permitted as it gained more experience 
with the risks UAS pose to the NAS.
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    This proposal also builds on the performance-based regulatory 
philosophy established in the 2016 part 107 rule. In that rule, the FAA 
recognized that the possibilities for innovation in unmanned aircraft 
technology are virtually boundless and that the industry can move in 
directions no one can predict. Today, there are even more applications 
and opportunities for small UAS that either did not exist or were only 
in their nascent stages in 2016. The FAA's challenge in developing this 
proposal, therefore, is to balance the need to mitigate the risk small 
unmanned aircraft pose to other aircraft and to people and property on 
the ground without inhibiting innovation.
    One aspect of the FAA's challenge is that technology moves at the 
speed of innovation while the administrative rulemaking process, by 
design, does not. To address this challenge, this proposal is 
technologically neutral, with the understanding that technology and 
applications will evolve in the time between the publication of this 
proposal and the final rule, and beyond. As a result, this proposal 
incorporates performance-based requirements to achieve the agency's 
safety objectives while simultaneously encouraging the development of 
solutions in this dynamic environment.
    Taking into account this challenge and these competing 
considerations, the FAA proposes to relax the prohibition on operations 
over people and at night under certain circumstances. While this step 
may have a significant effect on stakeholders, it represents a small 
change to the regulatory structure for small UAS. The FAA expects all 
operators to continue to comply with the existing provisions of part 
107. The consequences of noncompliance that currently apply to part 107 
remain in effect and would be extended to any new provisions 
implemented following this proposal. Section I.D. discusses the 
consequences of noncompliance.

B. Overview of the Proposal

1. Night Operations
    Current FAA regulations do not permit small UAS operations at night 
(Sec.  107.29). An operation at night is defined as an operation 
conducted between the end of evening civil twilight and the beginning 
of morning civil twilight, as published in the Air Almanac, converted 
to local time.\7\ Part 107 permits operators to request a waiver from 
these provisions, however. (Sec.  107.200). As of December 31, 2017, 
the agency received 4,837 requests for waivers to operate at night, 
granted 1,233, and disapproved 2,256; the vast majority of these were 
disapproved because the waiver requests lacked necessary 
information.\8\ Requests to operate at night are, by far, the most 
common type of waiver request the FAA receives. To date, the FAA has 
not received any reports of small UAS accidents operating under a night 
waiver.
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    \7\ 14 CFR 1.1.
    \8\ The total reflects a third category of waiver requests: 
Those that were neither granted nor disapproved. These may include 
pending, withdrawn, or abandoned requests.
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    In evaluating the waiver requests, the FAA considered the most 
critical factors to ensuring safety during night operations to be anti-
collision lighting and operator knowledge. Accordingly, the FAA 
proposes to allow routine, small UAS operations at night under two 
conditions. First, the operator would complete knowledge testing or 
training, including new subject matter areas related to operating at 
night. The second condition would be that the small UAS has an anti-
collision light illuminated and visible for at least 3 statute 
miles.\9\ Section IV.A. discusses these proposed requirements.
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    \9\ A statute mile is 5,280 feet. This is distinguished from a 
nautical mile, which is approximately 6,076 feet and is often used 
as a unit of measure in aviation.
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2. Operations Over People
    In the 2016 rule, the FAA established that an operation over people 
is one in which a small unmanned aircraft passes over any part of any 
person who is not directly participating in the operation \10\ and who 
is not located under a covered structure or inside a stationary 
vehicle. (Sec.  107.39). While the 2016 rule prohibited routine 
operations over people, it provided a process for a remote pilot to 
obtain a waiver to conduct operations over people. (Sec.  107.200).
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    \10\ See 81 FR at 42129. To the extent part 107 refers to direct 
involvement, the FAA considers such involvement to mean the remote 
pilot in command relies on the person's assistance for the safe 
conduct of the operation.
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    This rule proposes to allow routine operations over people without 
a waiver or exemption \11\ under certain conditions. The applicable 
conditions vary depending on the level of risk the small UAS operations 
present to people

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on the ground. The FAA proposes three categories of permissible 
operations over people based on the risk of injury they present: 
Category 1, Category 2, and Category 3. Section IV.B. discusses 
manufacturer and operator requirements for each category.
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    \11\ Title 14 CFR107.200 states the Administrator may issue a 
certificate of waiver authorizing a deviation from any regulation 
specified in Sec.  107.205 if the Administrator finds that a 
proposed small UAS operation can safely be conducted under the terms 
of that certificate of waiver. Section 107.205(g) currently lists 
the operations over people prohibition as a regulation that is 
subject to waiver. The Administrator also maintains authority to 
issue exemptions from regulations promulgated under 49 U.S.C. 
44701(a) or (b) or any of sections 44702-44706 of title 49, if the 
Administrator finds the exemption is in the public interest. Title 
14 CFR 11.81-11.103 details the process for obtaining such an 
exemption.
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(a) Category 1
    The FAA determined that small unmanned aircraft weighing less than 
0.55 pounds pose a low risk of injury when operating over people. 
Accordingly, Category 1 is simple and straightforward: Operators would 
be able to fly small unmanned aircraft weighing 0.55 pounds or less 
over people. While these operations would be subject to all of the 
existing requirements governing small UAS operations in part 107,\12\ 
the FAA does not propose any additional restrictions as a condition of 
flying over people. If adopted, remote pilots would be able to conduct 
operations over people the day a final rule goes into effect. Remote 
operators would be responsible for weighing or otherwise determining 
that their small unmanned aircraft does not exceed the weight 
threshold. The weight restriction would apply from takeoff to landing, 
meaning that any cargo attached to the UAS could not cause the 
aggregate weight (unmanned aircraft plus cargo) to exceed 0.55 pounds.
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    \12\ For example, the requirements to hold a remote operator's 
certificate (Sec.  107.12), operate a small unmanned aircraft in a 
condition for safe operation (Sec.  107.15), not operate in a 
hazardous manner (Sec.  107.23), operate within visual line of sight 
(Sec.  107.31), and others would continue to apply to these 
operations.
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    The FAA does not propose any design standards for Category 1. 
Although the FAA proposes design standards for exposed rotating parts 
(propellers) for other categories of small unmanned aircraft operations 
(discussed later in this document), it does not propose comparable 
standards for Category 1. This is because the FAA believes that exposed 
rotating parts on this category of small unmanned aircraft pose a low 
risk of injury to people. Section IV.B.3. discusses Category 1 
operations.
(b) Category 2
    Category 2 would provide flexibility for operators who wish to 
conduct operations over people using unmanned aircraft that weigh more 
than 0.55 pounds. Unlike Category 1, Category 2 is not solely weight-
based. The FAA proposes a set of performance-based requirements that 
would allow a small unmanned aircraft to operate over people if the 
manufacturer can demonstrate that, if the unmanned aircraft crashed 
into a person, the resulting injury would be below a certain severity 
threshold. The manufacturer would have the flexibility to design the 
unmanned aircraft in any way that would allow it to meet this 
threshold.
    The requirements specific to Category 2 would have three parts. 
First, the small unmanned aircraft must be designed, upon impact with a 
person, not to result in an injury as severe as the injury that would 
result from a transfer of 11 ft-lbs of kinetic energy from a rigid 
object. Section IV.B.4. provides more detailed information about how 
the FAA chose this standard, including how to measure the severity of 
the injury. There are myriad ways a manufacturer could design a small 
unmanned aircraft to meet this threshold, taking into account weight, 
speed, altitude limitations, materials, and technological fail-safe 
measures. For example, a manufacturer could offset weight with speed 
limitations, or vice versa. Or the manufacturer could use advanced 
materials or construction methods that are designed to reduce or 
prevent injury upon impact. For example, using frangible materials, or 
designing aircraft to crumple upon impact in a way that would likely 
reduce the amount of kinetic energy transferred and, as a result, the 
severity of the injury. In addition, the manufacturer could design 
features or use technology that slow the unmanned aircraft's rate of 
descent or divert it away from people during a loss of control. These 
are just a few conceptual examples. The possibilities for designing an 
unmanned aircraft to meet this standard are too vast to create an 
exhaustive list. By providing flexibility through performance-based 
requirements, the FAA enables the ingenuity of the industry to come up 
with ideas not yet even considered.
    Second, the FAA proposes that the unmanned aircraft would not have 
exposed rotating parts that could lacerate human skin. There are a 
number of ways a manufacturer could design small unmanned aircraft to 
comply with this requirement. For example, a manufacturer could design 
a shroud to protect skin from laceration upon impact. Or it could 
design blades that do not lacerate upon impact. Another option could be 
to design the unmanned aircraft without external rotating parts. This 
proposal leaves the decision to choose any one of these, or create 
another solution. This proposal sets only the desired outcome; it does 
not tell manufacturers how to achieve that outcome. The FAA anticipates 
that manufacturers would present many different designs to meet this 
requirement.
    Third, no small UAS could be operated over people if it has an FAA-
identified safety defect. For Category 2, a safety defect would be any 
material, component, or feature that presents more than a low 
probability of causing a casualty when operating over people. For this 
proposal, the FAA defines a casualty to be a serious injury, which 
corresponds to a level 3 injury on the Abbreviated Injury Scale (AIS). 
Section IV.B.1. discusses the AIS and includes examples of level 3 
injuries. A safety defect could include any hazardous condition that 
meets this threshold, including those not otherwise identified through 
the impact kinetic energy or exposed rotating parts analyses. Examples 
could include exposed wires, hot surfaces, sharp edges, faulty 
construction, corrupted software as well as many other hazardous 
conditions. Section IV.B.11.a) discusses safety defects.
    Before a Category 2 small unmanned aircraft could be used to fly 
over people, the manufacturer would be required to demonstrate, to the 
FAA's satisfaction, that the aircraft met these injury threshold 
requirements. The process for demonstrating compliance is discussed 
later. If adopted as proposed, once a manufacturer demonstrated 
compliance to the FAA, the small unmanned aircraft could be flown over 
people. Operators would be required to adhere to any other existing 
requirements in part 107 that apply to operating small UAS generally, 
but the FAA does not propose any operational restrictions specific to 
operations over people for Category 2.
    More detailed information about Category 2 operations and how the 
FAA developed the requirements is in Section IV.B.4.
(c) Category 3
    The FAA proposes a final category of operations--Category 3--that 
allows for a higher injury threshold than Category 2, but that limits 
an individual's exposure to the risk of injury through operational 
limitations. Similar to Category 2, the requirements specific to 
Category 3 would have three parts. The first part would require a small 
unmanned aircraft to be designed, upon impact with a person, not to 
result in an injury as severe as the injury that would result from a 
transfer of 25 ft-lbs of kinetic energy from a rigid object. The higher 
injury threshold means that operators could take into account different 
weight, speed, altitude, material, and technology factors when choosing 
a mission-appropriate small UAS. For example, the unmanned aircraft 
could be faster, heavier, designed to fly higher, made from

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different materials, or use different technology. The second part would 
be identical to Category 2: The unmanned aircraft would not have 
exposed rotating parts that could lacerate human skin.
    Third, as with Category 2, no small UAS could be operated over 
people if it has an FAA-identified a safety defect. Category 3 is 
distinct, however, because the safety defect would be one that presents 
more than a low probability of causing a fatality when operating over 
people.
    In addition, unlike Category 1 and 2, Category 3 would have an 
operational requirement. Because of the higher injury threshold, there 
would be an increased risk of injury to people on the ground. To manage 
this increased risk, Category 3 operations would include three 
operational limitations not applicable to the other categories of 
operations. First, the proposal would prohibit operations over any 
open-air assembly of people. Second, the operations would have to be 
within or over a closed- or restricted-access site and anyone within 
that site would have to be notified that a small unmanned aircraft may 
fly over them. Third, for operations not within or over a closed- or 
restricted-access site, the small unmanned aircraft may transit but not 
hover over people.
    As with Category 2, before a Category 3 small unmanned aircraft 
could be used to fly over people, the manufacturer would be required to 
demonstrate, to the FAA's satisfaction, that the aircraft meets the 
injury threshold requirements.
    More detailed information about Category 3 operations and how the 
FAA developed the standards is in Section IV.B.4.
(d) Demonstrating Compliance With Injury Thresholds
    Before a small unmanned aircraft could be used to fly Category 2 or 
3 operations over people, the manufacturer would have to demonstrate, 
to the FAA's satisfaction, that the aircraft meets the proposed 
requirements. The proposed process for presenting evidence of 
compliance to the FAA is based on processes that the FAA currently uses 
for determining compliance with standards applicable to manned 
aircraft. For that reason, members of the manned aviation community may 
find the processes and terminology in this proposal familiar; however, 
they differ in that they are streamlined and tailored to the unique 
requirements of small UAS.
    The proposal directs manufacturers to submit evidence of compliance 
using a Means of Compliance. A Means of Compliance is the term the FAA 
uses for the method a manufacturer would use to show that its small UAS 
would not exceed the injury threshold upon impact with a person. The 
FAA does not propose to tell manufacturers which method or test to use 
to establish compliance; rather, the proposal allows the manufacturer 
to develop a test and present evidence to the FAA showing that the test 
is appropriate and accurately demonstrates compliance. The FAA 
anticipates that manufacturers or standards setting organizations 
(SSOs) will come up with a variety of different types of Means of 
Compliance. Some could include simple measures of kinetic energy, or 
they could include sophisticated tests or computer modeling or any 
other method that accurately shows compliance.
    If the FAA agreed that the Means of Compliance accurately 
demonstrates compliance, it would accept the Means of Compliance and 
allow the manufacturer to use it to demonstrate that small UAS meet the 
proposed requirements. Once the FAA accepts a Means of Compliance, the 
FAA would notify the public. The FAA would not disclose commercially 
valuable information in this document. It would only provide general 
information stating that FAA had accepted the Means of Compliance.
    Given that small UAS manufacturers have varying degrees of 
sophistication, the FAA proposes to offer one pre-accepted Means of 
Compliance that measures the transfer of kinetic energy upon impact. 
The FAA stresses that manufacturers would not have to use this method; 
it would be merely pre-accepted for manufacturers to use if they so 
choose.
    A manufacturer could use any FAA-accepted Means of Compliance to 
show that its small UAS meets the standards proposed in this rule. If 
the small UAS meets the standards, the manufacturer would submit a 
Declaration of Compliance to the FAA that identifies the Means of 
Compliance used and certifies compliance with all the applicable 
requirements. If the FAA accepted the Declaration of Compliance, the 
manufacturer would be able to consider the small UAS available for 
operations over people. The FAA would make a list publicly available of 
the small UAS models for which it accepted a Declaration of Compliance.
    The FAA proposes an additional flexibility that would allow a small 
UAS to be qualified for both Category 2 or 3 operations, as long as 
there are safeguards that prevent the remote pilot from inadvertently 
switching between the two modes of operation. For example, the small 
UAS could have software that limits speed or altitude that makes it 
eligible for Category 2 operations, but have different settings for 
Category 3 operations. Or, a small unmanned aircraft could be eligible 
for Category 2 operations when unladen, but meet Category 3 
requirements when carrying a payload. There are many different 
combinations or options manufacturers could employ to qualify small UAS 
for operations over people in different modes for different operations. 
More information on small UAS that are qualified for more than one 
category of operation is in Section IV.B.6.
    Section IV.B.5. provides information about Means of Compliance. 
Section IV.B.7. includes details concerning Declarations of Compliance.
    The FAA also proposes a process to rescind a previously accepted 
Declaration of Compliance if the FAA determined the small unmanned 
aircraft did not meet requirements of this rule. More information on 
the circumstances under which the FAA proposes to consider rescinding a 
Declaration of Compliance and the proposed process is in Section 
IV.B.7.b)(6).
(e) Other Requirements for Manufacturers
    First, the FAA proposes to require that each manufacturer, 
including anyone who assumes the role of manufacturer after making 
modifications, provides remote pilot operating instructions to anyone 
to whom it sells, transfers, or otherwise provides the small UAS for 
use. The operating instructions would address what types of payloads 
are permissible and other information relevant to the eligibility of 
the small UAS to operate in accordance with its Category 2 or Category 
3 qualification. Section IV.B.9. discusses operating instructions.
    Second, the rule proposes to require that any manufacturer holding 
an FAA-accepted Declaration of Compliance allow the FAA to inspect the 
manufacturer's facilities, technical data, and small UAS covered by 
that Declaration of Compliance to determine compliance. The FAA also 
proposes that the manufacturer allow the FAA to witness any tests 
required for compliance. Section IV.B.11.d) discusses inspection 
requirements.
    Third, the FAA proposes to require that a manufacturer holding an 
FAA-accepted Declaration of Compliance establish a process to notify 
the public and the FAA of safety defects or other issues that would 
render the small UAS ineligible for operations over people. Section 
IV.B.11.b) discusses reporting requirements.

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    Fourth, the FAA proposes to require any holder of a Declaration of 
Compliance or Means of Compliance to retain certain records for a 
minimum of two years after ending production of related small UAS. 
Section IV.B.8. discusses recordkeeping requirements.
(f) Rules Applicable to Individuals Who Modify Small UAS
    Under this proposal, the FAA would consider not only the original 
person or company that designed or built a small UAS to be a 
manufacturer, but also anyone who modifies it after the FAA accepted 
its Declaration of Compliance. For example, if an individual bought a 
small unmanned aircraft that the FAA accepted as meeting Category 2 
requirements and then modified it in a way that would change its 
performance so that it would no longer meet Category 2, that person 
would be considered a manufacturer and would be required either to 
requalify the small unmanned aircraft or cease operations over people. 
The purpose would be to prevent someone from buying a qualified small 
unmanned aircraft, modifying it in a way that would make it unqualified 
for operations over people, and then continuing to operate over people. 
Potential disqualifying modifications could include (but are not 
limited to), changing computer code to remove operational restrictions, 
replacing compliant propeller blades with noncompliant blades, or 
attaching a camera or other payload to the unmanned aircraft that was 
not specifically identified as approved in the manufacturer's 
instructions. Before flying over people after making disqualifying 
modifications, the person making the modification would have to test 
the small unmanned aircraft using an FAA-accepted Means of Compliance 
and submit a Declaration of Compliance. Section IV.B.7.b)(5) discusses 
post-acceptance modifications.
(g) Other Requirements for Operators
    This proposal includes several other requirements for remote pilots 
who operate over people. First, any small unmanned aircraft used for 
Category 2 or 3 operations would have to be marked with a label that 
identified it as either Category 2 or 3 (or both). While manufacturers 
would be free to label their small unmanned aircraft, ultimately the 
responsibility for making sure that an aircraft is properly labeled 
before each flight falls to the remote pilot. Section IV.B.10. 
discusses labeling requirements.
    Second, operators would be responsible for following the 
manufacturer's instructions that accompany the small UAS. In some 
cases, small UAS qualified to operate over people may have specific 
instructions for operating over people. For example, a manufacturer of 
a small UAS qualified to operate under more than one category would 
have to explain how to operate in each category. Similarly, some small 
UAS may have a mode that does not qualify for any category of 
operations over people. Remote pilots would have to follow the 
instructions provided so that they only operated over people when their 
small UAS are in the right operational mode and are otherwise following 
all instructions or limitations for safe operations. Section IV.B.9. 
discusses manufacturer instructions.
    Third, under existing rules, remote pilots must conduct certain 
pre-flight actions to ensure the safety of the operation, including 
assessing the operating environment and inspecting the small UAS. 
(Sec.  107.49). The FAA proposes to require, in addition to the 
existing pre-flight requirements, that the remote pilot ensure that the 
aircraft meets the requirements in this proposed rule before flying 
over people. One way of doing this would be for the remote pilot to 
verify that the small UAS is qualified for the type of operation over 
people he or she plans to conduct. This would include making sure that 
the small UAS is marked with the appropriate category and checking 
publicly available information from the FAA and the manufacturer to 
verify that the Declaration of Compliance for that model of small UAS 
has been accepted by the FAA. Section IV.B.12. discusses pre-flight 
requirements.
    Fourth, although part 107 currently does not allow operations over 
people in moving vehicles (Sec.  107.39), the FAA proposes a new 
section that makes clear that such operations are expressly prohibited. 
There is more information on operations over moving vehicles in Section 
IV.B.12.b).
3. Applicability to Existing Small UAS
    The FAA recognizes that a great number of small UAS are available 
in the marketplace and are in use. Accordingly, the FAA proposes to 
allow any manufacturer or operator to test its small UAS and submit 
evidence that it is eligible to operate over people using the proposed 
Means of Compliance and Declaration of Compliance processes described 
above. Section IV.B.13. discusses provisions applicable to existing 
small UAS.
4. Waivers
    Under existing part 107, remote pilots can request a waiver from 
specific operational provisions. (Sec.  107.200). The FAA does not 
propose to make any changes to this process; however, it does propose 
to expand the list of provisions from which an operator could seek a 
waiver. Currently, part 107 allows operators to seek waivers from the 
following provisions: The prohibition on operations from a moving 
vehicle or aircraft; the requirement for daylight operations; the 
requirement to operate within visual line of sight; the provision 
relating to the use of visual observers; the prohibition on operating 
multiple small UAS simultaneously; the requirement to yield the right 
of way; the prohibition on operating over people; provisions relating 
to operations within certain airspace; and provisions relating to 
certain operating limitations. (Sec.  107.205).
    This rule proposes to include three additional types of waivers. 
The first would apply to operations over moving vehicles. Under 
existing regulations, an operator may seek a waiver to operate over 
moving vehicles using the waiver provision applicable to operations 
over people. (Sec.  107.205(g)). This proposal would establish a stand-
alone waiver provision applicable to operations over moving vehicles to 
make the process clearer for operators. The second would permit an 
operator to seek a waiver to conduct operations over people that would 
not otherwise meet the requirements of this proposed rule. The third 
would permit an operator to seek a waiver of the anti-collision 
lighting requirement for night and civil twilight operations. In all 
cases, the waiver applicant would be required to demonstrate that the 
operations could be conducted at the same level of safety that the 
proposed requirements provide. Section IV.C. discusses waivers.
5. Miscellaneous Changes to Part 107
    In addition to the provisions enabling operations at night and over 
people, the FAA proposes some other changes to part 107. First, under 
current regulations, the FAA requires the remote pilot to present his 
or her remote pilot certificate upon request from the Administrator. 
(Sec.  107.7). This proposal would extend that obligation to require 
the remote pilot to present his or her remote pilot certificate and 
identification in response to a request from the Administrator; an 
authorized representative of the National Transportation Safety Board 
(NTSB); any Federal, State, or local law enforcement officer; and any 
authorized

[[Page 3861]]

representative of the Transportation Security Administration (TSA). 
Section IV.D.1. discusses this proposed amendment.
    Second, the FAA proposes to update existing regulations related to 
remote pilot certification. Currently, part 107 requires remote pilots 
to take an initial knowledge test and then another test once every two 
years to maintain a current remote pilot certificate. (Sec. Sec.  
107.61, 107.65). This rule proposes to convert the subsequent knowledge 
testing requirement to a knowledge training requirement. In addition, 
the rule proposes to update the testing and training materials to 
harmonize initial testing and subsequent training, and to add new 
information about night operations. Section IV.D.2. provides more 
information about knowledge testing and training.

C. Security Considerations

    While the focus of this proposal is to ensure the safety of 
operations that fly over people, the FAA is cognizant that security 
concerns are paramount. As with manned aviation, safety and security 
walk hand in hand. For that reason, the FAA, which is primarily a 
safety organization, has partnered with other Federal agencies to 
identify and address security concerns. Through this partnership, the 
FAA developed an advance notice of proposed rulemaking (ANPRM), Safe 
and Secure Operations of Small Unmanned Aircraft Systems, seeking input 
on various security considerations related to unmanned aircraft.\13\ 
The ANPRM appears separately in this issue of the Federal Register.
---------------------------------------------------------------------------

    \13\ See Safe and Secure Operations of Small Unmanned Aircraft 
Systems, RIN 2120-AL26 (Fall 2018), available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201810&RIN=2120-AL26.
---------------------------------------------------------------------------

    In particular, the FAA is cognizant of the importance of various 
stakeholders to be able to identify small UAS to mitigate security 
concerns that operations may present. Because of the importance of this 
particular issue, the FAA plans to finalize its policy concerning 
remote identification of small UAS--by way of rulemaking, standards 
development, or other activities that other Federal agencies may 
propose--prior to finalizing the proposed changes in this rule that 
would permit operations of small UAS over people and operations at 
night. Section III.A.3. provides more information about security 
considerations.

D. Compliance and Enforcement Tools

    While the FAA does not propose any new penalties or compliance and 
enforcement tools in this rule, all existing means of addressing 
noncompliance that currently apply to small UAS operators under 
existing part 107 or the FAA's general enforcement authority would 
continue to apply. The FAA expects compliance with all terms of the 
final rule that follows this proposal. The consequences of 
noncompliance could include any of the following compliance and 
enforcement tools the FAA has available to it.
    In accordance with its current compliance philosophy, FAA's goal is 
to find and fix problems before they cause an accident or incident. 
Under this approach, enforcement is one tool the FAA uses, but it may 
not be the most effective tool for addressing small UAS compliance 
concerns, given the relative inexperience of small UAS operators. 
Therefore, non-enforcement tools, to which the FAA refers as compliance 
actions, are additional means to achieve compliance with FAA 
regulations concerning the safety of small UAS. Such tools include 
counseling in the form of operator education or an informational letter 
used to communicate effectively the requirements of small UAS 
regulations.
    If an operator is unwilling or unable to comply with, or is 
deliberately flouting, regulations, the FAA would employ enforcement 
action. The FAA has a number of enforcement tools available including 
warning notices, letters of correction, civil penalties, and 
certificate actions to address violations and help deter future 
violations. Civil penalties for violations of the Federal Aviation 
Regulations range from a maximum per violation penalty of $1,437, for 
individual operators, to $32,666 for large companies. In addition, 
Congress granted the FAA the authority to levy civil penalties of up to 
$20,000 for interfering with law enforcement, first responders, or 
wildfire operations. The FAA may take enforcement action against anyone 
who conducts an unauthorized UAS operation or operates a UAS in a way 
that endangers the safety of the National Airspace System. This 
authority is designed to protect users of the airspace as well as 
people and property on the ground.
    This proposed rule would not alter this enforcement regime. The FAA 
emphasizes, however, that certain requirements this rule proposes would 
increase remote pilots' responsibilities. For example, for operations 
at night, remote pilots in command would be responsible for ensuring 
their small unmanned aircraft has an anti-collision light visible for a 
minimum of 3 statute miles, and for completing an updated initial 
knowledge test or updated training. For operations over people, remote 
pilots in command would be responsible for ensuring their Category 1 
aircraft does not exceed the proposed weight limitation. For Category 3 
operations, remote pilots in command would have the responsibility of 
adhering to specific operating limitations. For both Category 2 and 
Category 3 operations, remote pilots in command would need to ensure 
they comply with remote pilot operating instructions. For all proposed 
categories of operations, remote pilots in command would be required to 
ensure the small UAS is eligible for the appropriate category of 
operations. The FAA maintains the discretion and authority to utilize 
appropriate surveillance and engage in action available to the FAA when 
the FAA determines to do so.
    Table 1 provides a brief summary of the major provisions of this 
notice of proposed rulemaking (NPRM).

                  Table 1--Summary of Major Provisions
------------------------------------------------------------------------
            Issue                         Proposed regulation
------------------------------------------------------------------------
Presentation of Certificate    Remote pilots in command must present
 and Identification.            their remote pilot certificate as well
                                as identification to certain Federal,
                                State, or local officials, upon request.
                               14 CFR 107.7(a)
Operations at Night..........  A remote pilot in command may operate a
                                small UAS at night as long as:
                                  (1) The remote pilot has
                                   satisfactorily completed updated
                                   knowledge testing or training
                                   requirements; and
                                  (2) The small unmanned aircraft
                                   maintains an anti-collision light
                                   that remains lit throughout the
                                   flight.

[[Page 3862]]

 
                               14 CFR 107.29
Prohibition on Operation over  No operations over people located in
 Moving Vehicles.               moving vehicles.
                               14 CFR 107.105
Category 1 Remote Pilot        Ensure aircraft weighs 0.55 pounds or
 Requirements.                  less.
                               14 CFR 107.110
Category 2 Remote Pilot        (1) Use aircraft qualified and labeled
 Requirements.                  for Category 2 operations;
                               14 CFR 107.115(a)
                               (2) Ensure aircraft is labeled for
                                Category 2 operations.
                               14 CFR 107.150
Category 3 Remote Pilot        (1) Use aircraft qualified and labeled
 Requirements.                  for Category 3 operations;
                               14 CFR 107.120(a)(1)
                               (2) Ensure aircraft is labeled for
                                Category 3 operations;
                               14 CFR 107.145
                               Remote pilots in command cannot conduct
                                Category 3 operations over open air
                                assemblies, and cannot conduct these
                                operations unless the operation occurs:
                                  (1) Within or over a closed- or
                                   restricted-access site where all
                                   people accessing the site have
                                   notice; or
                                  (2) When the aircraft does not
                                   maintain sustained flight over
                                   people.
                               14 CFR 107.120(a)(2) and (3)
Eligibility Requirements for   No performance-based requirements (only a
 Category 1.                    requirement that the small UAS weigh
                                0.55 pounds or less).
                               14 CFR 107.110
Eligibility Requirements for   (1) Meet performance-based requirements
 Category 2.                    by showing the small unmanned aircraft:
                                   will not, upon impact with a
                                   person, result in an injury more
                                   severe than the injury that would
                                   result from a transfer of 11 ft-lbs
                                   of kinetic energy from a rigid
                                   object;
                                   does not contain any exposed
                                   rotating parts that could lacerate
                                   human skin upon impact with a person;
                                   and
                                does not contain any safety
                                defects identified by the Administrator.
                               (2) Display a label indicating
                                eligibility for Category 2;
                               (3) Have remote pilot operating
                                instructions;
                               (4) Be subject to a product notification
                                process; and
                               (5) Operate only after the FAA has
                                accepted a Declaration of Compliance for
                                that make/model.
                               14 CFR 107.115(b)
Eligibility Requirements for   (1) Meet performance-based requirements
 Category 3.                    showing the small unmanned aircraft:
                                   will not, upon impact with a
                                   person, result in an injury more
                                   severe than the injury that would
                                   result from a transfer of 25 ft-lbs
                                   of kinetic energy from a rigid
                                   object;
                                   Does not contain any exposed
                                   rotating parts that could lacerate
                                   human skin upon impact with a person;
                                   and
                                   Does not contain any safety
                                   defects identified by the
                                   Administrator
                               (2) Display a label indicating
                                eligibility for Category 3;
                               (3) Have remote pilot operating
                                instructions;
                               (4) Be subject to a product notification
                                process; and
                               (5) Operate only after the FAA has
                                accepted a Declaration of Compliance for
                                that make/model.
                               14 CFR 107.120(b)
Previously Manufactured Small  A small UAS manufactured prior to the
 UAS.                           effective date of a final rule
                                implementing these regulations may be
                                operated over people if:
                                  It weighs 0.55 pounds or less; or the
                                   make/model complies with the impact
                                   kinetic energy and exposed rotating
                                   parts requirements to render it
                                   eligible for operations pursuant to
                                   Category 2 or Category 3; and
                                    (1) The manufacturer has submitted a
                                     Declaration of Compliance for that
                                     make/model;
                                    (2) The FAA has accepted the
                                     Declaration of Compliance; and
                                    (3) The aircraft has a label
                                     appropriate for the category of
                                     operations for which it is eligible
                                     to operate.
                               14 CFR 107.140
Requirements for a Means of    For small UAS manufactured to be eligible
 Compliance.                    for Category 2 or Category 3 operations,
                                the small UAS must comply with the
                                requirements of Sec.   107.115(b)(1) or
                                Sec.   107.120(b)(1), as shown by test,
                                analysis, or inspection, or any
                                combination of these options that the
                                Administrator has determined is
                                acceptable. Requests for FAA acceptance
                                of means of compliance must contain:
                                  (1) Detailed description of the means
                                   of compliance; and
                                  (2) Justification, including any
                                   substantiating material, showing the
                                   means of compliance fulfills the
                                   safety level set forth in Sec.
                                   107.115(b)(1) or Sec.
                                   107.120(b)(1).
                               14 CFR 107.125
Required Information for       (1) Applicant's name;
 Declaration of Compliance.    (2) Applicant's physical address;
                               (3) Applicant's email address;
                               (4) Small UAS make/model name;
                               (5) Small UAS serial number or range of
                                serial numbers;
                               (6) Whether the Declaration of Compliance
                                is an initial or amended declaration;

[[Page 3863]]

 
                               (7) If amended, the reasons for the re-
                                submittal of the Declaration of
                                Compliance;
                               (8) Certification that the small UAS
                                satisfies the impact kinetic energy and
                                exposed rotating parts standards of that
                                category through an accepted means of
                                compliance;
                               (9) Certification that the manufacturer
                                has a product support and notification
                                process;
                               (10) Certification that the Administrator
                                will be allowed to inspect the
                                manufacturer's facilities, technical
                                data, and any manufactured small UAS and
                                witness any tests necessary to determine
                                compliance with this subpart; and
                               (11) Other information as required by the
                                Administrator.
                               14 CFR 107.135
Rescinding a Declaration of    The FAA may rescind a Declaration of
 Compliance.                    Compliance if:
                                  (1) The make/model is no longer
                                   compliant with the impact kinetic
                                   energy requirements of the category
                                   for which it is declared;
                                  (2) The make/model is no longer
                                   compliant with the exposed rotating
                                   parts limitation; or
                                  (3) The Administrator identifies a
                                   safety defect.
                               14 CFR 107.135
Recurrent Knowledge Training.  A person may only operate a small UAS if
                                that person has completed the following
                                in a manner acceptable to the
                                Administrator within the past 24 months:
                                  (1) Passed an initial aeronautical
                                   knowledge test covering the areas of
                                   knowledge specified in Sec.   107.73;
                                  (2) Completed recurrent training
                                   covering the areas of knowledge
                                   specified in Sec.   107.73; or
                                  (3) If a person holds a pilot
                                   certificate (other than a student
                                   pilot certificate) issued under part
                                   61 and meets the flight review
                                   requirements specified in Sec.
                                   61.56, completed training covering
                                   the areas of knowledge specified in
                                   Sec.   107.74.
                               14 CFR 107.65
------------------------------------------------------------------------

E. Costs and Benefits

    The FAA has analyzed the benefits and the costs associated with 
this proposed rule and expects the benefits justify the costs. This 
proposal would enable further operations of small UAS that will benefit 
the economy and enable innovation and growth across a variety of 
sectors, such as construction, education, infrastructure inspection, 
insurance, marketing, and event photography. Operations currently 
allowed under Part 107 would become less onerous and, in many 
instances, more efficient with this proposal because, in general, 
remote pilots would not necessarily need to avoid flying over people or 
clear an area of non-participating people in advance of flying.\14\ In 
addition, this proposal would assist the execution of first responder 
and emergency management planning and operations.
---------------------------------------------------------------------------

    \14\ As explained in section IV.B.12., this proposed rule would 
not permit Category 3 operations over open-air assemblies of people. 
Operations that occur pursuant to Category 1 and Category 2, 
however, would not be subject to this prohibition.
---------------------------------------------------------------------------

    The costs of this rule include both the FAA converting the 
administration of tests to administration of training and manufacturers 
conducting testing, analysis, or inspection to comply with the 
requirements relevant to manufacturing a small UAS for operations over 
people. Upon analysis of these costs, the FAA concludes the proposed 
rule would result in a cost savings for relief provided through online 
training and testing for remote pilots. The regulatory analysis for 
this proposed rule presents a range of cost savings based on the three 
varying fleet forecasts. Subsequently, over the five-year analysis 
period the net present value cost savings of the proposed rule ranges 
from $24 million to $121 million at a seven percent discount rate, for 
net annualized costs savings between $6 million and $29 million. The 
following table presents quantified costs to manufacturers and the FAA 
and savings to remote pilots.

                             Table 2--Costs and Savings of Proposed Rule [$Millions]
                                          [5-Year period of analysis *]
----------------------------------------------------------------------------------------------------------------
                                                       7% PV       7% Annualized       3% PV       3% Annualized
----------------------------------------------------------------------------------------------------------------
Low Case:
    Costs (Manufacturers and FAA)...............              14               3              15               3
    Cost Savings (Remote Pilots)................            (38)             (9)            (44)            (10)
    Net Cost Savings............................            (24)             (6)            (29)             (6)
Base Case:
    Costs (Manufacturers and FAA)...............              14               3              15               3
    Cost Savings (Remote Pilots)................            (49)            (12)            (57)            (12)
    Net Cost Savings............................            (35)             (9)            (42)             (9)
High Case:
    Costs (Manufacturers and FAA)...............              14               3              15               3
    Cost Savings (Remote Pilots)................           (135)            (33)           (158)            (34)
    Net Costs Savings...........................           (121)            (29)           (143)            (31)
----------------------------------------------------------------------------------------------------------------
* Columns may not sum to total due to rounding. Savings are shown in parenthesis to distinguish from costs.


[[Page 3864]]

    The operation of small UAS over people may result in an increased 
risk to safety. Although the FAA believes the probability of injuries 
that may occur from operations of small UAS over people is small, when 
that small probability is multiplied by an increased number of 
operations, some additional risk of injury exists. This proposed rule's 
performance-based standards would establish three categories of small 
UAS operations defined primarily by level of risk of injury posed. 
Compliance with the manufacturer and operational requirements that 
apply to these categories would mitigate the risks of operating over 
people.

II. Authority for This Rulemaking

    The primary authority for this rulemaking is based on 49 U.S.C. 
44807, which directs the Secretary of Transportation to determine 
whether ``certain unmanned aircraft systems may operate safely in the 
national airspace system [NAS].'' Section 44807 directs the Secretary 
to use a risk-based approach in making such determinations and provides 
such determinations may occur notwithstanding the completion of the 
comprehensive plan and rulemaking required in other sections of the 
statute. Section 44807(b) directs the Secretary to consider a specific 
list of factors in determining which types of UAS may operate safely: 
The Secretary must consider size, weight, speed, operational 
capability, proximity to airports and populated areas, operation over 
people, operation within visual line of sight, or operation during the 
day or night. The Secretary must determine, based on these factors, 
whether operations of the UAS do not create a hazard to users of the 
NAS or the public. If the Secretary determines, pursuant to section 
44807, that certain unmanned aircraft systems may operate safely in the 
NAS, then the Secretary must ``establish requirements for the safe 
operation of such aircraft systems in the national airspace system.'' 
49 U.S.C. 44807(c).
    This rulemaking is also promulgated pursuant to 49 U.S.C. 
40103(b)(1) and (2), which directs the FAA to issue regulations: (1) To 
ensure the safety of aircraft and the efficient use of airspace; and 
(2) to govern the flight of aircraft for purposes of navigating, 
protecting and identifying aircraft, and protecting individuals and 
property on the ground. In addition, 49 U.S.C. 44701(a)(5) charges the 
FAA with promoting safe flight of civil aircraft by prescribing 
regulations the FAA finds necessary for safety in air commerce and 
national security.

III. Background

A. Related FAA and DOT Actions

    This rulemaking is a deliberative step in further integrating small 
UAS into the NAS in a safe and secure manner. The FAA is incorporating 
the operation of small UAS into the NAS using a phased, incremental, 
and risk-based approach.\15\ In 2012, Congress passed the FAA 
Modernization and Reform Act of 2012 (Pub. L. 112-95). Section 333 of 
Pub. L. 112-95 directed the Secretary to determine which types of UAS 
do not create a hazard to users of the NAS or the public or pose a 
threat to national security. Based on such findings, Congress directed 
the Secretary to establish requirements for the safe operation of such 
UAS.\16\ On June 28, 2016, the FAA published the final rule for 
Operation and Certification of small Unmanned Aircraft Systems 
(hereinafter, ``2016 final rule''), which was among the first steps to 
allow small UAS operations.\17\
---------------------------------------------------------------------------

    \15\ For more information regarding the operation of small UAS, 
see http://www.faa.gov/uas.
    \16\ Section 347 of Public Law 115-254 repealed Section 333, but 
replaced the relevant substantive provisions, codified at 49 U.S.C. 
44807.
    \17\ 81 FR 42064.
---------------------------------------------------------------------------

    As technology improves and the utility of small UAS for activities 
that previously required manned aircraft increases, the FAA anticipates 
an increased demand for flexibility in small UAS operations. The 
proposal to permit small UAS operations over people and small UAS 
operations at night is one of a number of regulatory steps the FAA is 
taking to allow for this growth while still maintaining the safety of 
the NAS. Possible small UAS operations that may operate over people or 
at night include motion picture filming, newsgathering, law 
enforcement, aerial photography, sports photography, and construction 
or surveying. This proposed rule would enable further operations of 
small UAS that would benefit the economy by increasing opportunities 
for commercially beneficial small UAS operations.
1. Registration and Marking Requirements for Small Unmanned Aircraft
    On December 16, 2015, the FAA published the Registration and 
Marking Requirements for Small Unmanned Aircraft (Registration 
Rule).\18\ The Registration Rule established a streamlined, web-based 
registration system for small unmanned aircraft in 14 CFR part 48. The 
FAA provided this process as an alternative to the registration 
requirements for manned aircraft found in 14 CFR part 47. Regardless of 
whether they chose the process in part 47 or part 48, the Registration 
and Marking rule required all small UAS owners to register by February 
16, 2016.
---------------------------------------------------------------------------

    \18\ 80 FR 78594.
---------------------------------------------------------------------------

    The Registration Rule also established marking requirements for 
small unmanned aircraft. In accordance with that rule, all small 
unmanned aircraft must display a unique identifier. Each small UAS 
operated under part 107 must display a unique registration number, 
visible upon inspection of the small unmanned aircraft.
2. Operation and Certification of Small Unmanned Aircraft Systems
    On June 28, 2016, the FAA and DOT jointly issued the 2016 final 
rule.\19\ That rule, codified at 14 CFR part 107, allows small UAS 
operations without requiring airworthiness certification, exemption, or 
a certificate of waiver or authorization (COA). Part 107 generally sets 
forth a framework of operational rules and robust restrictions to 
permit routine civil operation of small UAS in the NAS in a safe 
manner.
---------------------------------------------------------------------------

    \19\ 81 FR 42064.
---------------------------------------------------------------------------

    To mitigate risk to people on the ground and other users of the 
airspace, the 2016 final rule limited small UAS to daylight and civil 
twilight operations, confined areas of operation, and visual-line-of-
sight operations. The 2016 final rule also addressed airspace 
restrictions, remote pilot certification, visual observer requirements 
that apply when a remote pilot in command opts to use a visual 
observer, and operational limits to maintain the safety of the NAS and 
ensure small UAS do not pose a threat to national security. Finally, 
the 2016 final rule included a waiver provision, which allows 
individual operations to deviate from many of the operational 
limitations if the Administrator finds the applicant could safely 
conduct the proposed operation under the terms of the certificate of 
waiver.
    In its NPRM that preceded the 2016 final rule, the agency proposed 
including special provisions applicable to UAS weighing less than 4.4 
pounds (micro UAS), but concluded such provisions were best addressed 
in a separate proposal.\20\ A number of comments were submitted on 
micro UAS operations in response to the Operation and Certification of 
Small Unmanned Aircraft Systems NPRM,\21\ and the FAA considered many 
of those

[[Page 3865]]

comments during the development of this proposal. This proposal for 
small UAS operations over people is distinct from that proposal and not 
all of the originally submitted comments remain relevant. Nevertheless, 
the agency encourages members of the public to submit comments on this 
proposal regardless of whether they had submitted comments to the 
previous proposal.
---------------------------------------------------------------------------

    \20\ 81 FR 42064 at 42122-23.
    \21\ Operation and Certification of Small Unmanned Aircraft 
Systems, Notice of Proposed Rulemaking, 80 FR 9544 (Feb. 23, 2015).
---------------------------------------------------------------------------

3. Secure Operations of Small Unmanned Aircraft Systems
    The FAA has been engaged in extensive outreach with Federal, State, 
local, and tribal law enforcement entities on the subject of small UAS 
operations. The FAA recognizes law enforcement officials are often in 
the best position to detect and deter unsafe and unauthorized drone 
operations. Therefore, the FAA works closely with these agencies to 
provide information regarding the evidence needed by the FAA to take 
enforcement actions and provide a communications link wherein state and 
local law enforcement can pass along reports in a timely manner. For 
example, all remote pilots operating in accordance with part 107 must 
obtain an FAA-issued remote pilot certificate with small UAS rating. 
The process for obtaining this certificate includes the same 
Transportation Security Administration (TSA) review procedures that are 
currently used under 49 U.S.C. 46111 to ensure that airman certificate 
applicants do not pose a security risk. Although this proposed rule 
would modify the recurrent knowledge testing requirements, an applicant 
for a remote pilot certificate would still be subject to initial and 
continuing TSA vetting.\22\ After initial vetting, TSA conducts 
recurrent vetting to ensure that certificate holders do not 
subsequently become a security threat. This framework is similar to the 
framework applicable to pilots who operate manned aircraft.
---------------------------------------------------------------------------

    \22\ See 49 U.S.C. 44903(j)(2)(D)(i).
---------------------------------------------------------------------------

    The FAA remains committed to working with security partners to 
ensure that appropriate means exist to mitigate security risks that 
small UAS operations may present. In this regard, the FAA seeks input 
on whether certain standards and restrictions should apply to 
operations of small UAS. In particular, the FAA is currently engaged in 
two distinct projects in which the FAA seeks feedback.
    On May 4, 2017, the FAA convened an Aviation Rulemaking Committee 
(ARC) of industry stakeholders and observers from relevant government 
agencies to provide recommendations regarding technologies available 
for remote identification and tracking of UAS. The ARC's objectives 
included identifying and recommending emerging technology as well as 
identifying requirements for fulfilling security and public safety 
needs of law enforcement, homeland defense, and national security 
communities. The ARC's members included experts with knowledge and 
experience in electronic data capture, law enforcement, and public 
safety, among other areas. The FAA is cognizant of the importance of 
conducting research to develop potential standards relevant to remote 
identification and tracking of small UAS and is committed to ensuring 
further development of such standards and protocol in the interest of 
enabling adequate security measures to mitigate security concerns that 
operations of small UAS may present. As a result, the FAA plans to 
finalize its policy concerning remote identification of small UAS--by 
way of rulemaking, standards development, or other activities that 
other Federal agencies may propose--prior to finalizing the proposed 
changes in this rule that would permit operations of small UAS over 
people and operations at night.\23\
---------------------------------------------------------------------------

    \23\ The UAS Identification and Tracking Aviation Rulemaking 
Committee charter is available at https://www.faa.gov/news/updates/media/UAS_ID_and_Tracking_ARC_Charter.pdf.
---------------------------------------------------------------------------

    In addition, the FAA is collecting comments in response to its 
publication of the Safe and Secure Operations of Small Unmanned 
Aircraft Systems advance notice of proposed rulemaking (ANPRM). In 
publishing the ANPRM, the FAA intends to gather information from the 
public to inform the FAA's efforts in assessing options for reducing 
risks to public safety and national security associated with further 
integration of UAS into the NAS. The FAA may consider one or more 
rulemaking efforts based on the comments it receives in response to the 
ANPRM.

B. Advantages of Operations Over People and at Night

    The high level of interest in small UAS rulemaking reflects the 
small UAS industry's strong desire for integration of unmanned aircraft 
in the NAS. UAS integration will likely create substantial economic, 
technological, and societal benefits while ensuring that the United 
States retains its role as a global leader in innovation and aviation 
safety.
    Today, remote pilots in command who are compliant with part 107 can 
fly a small UAS within the remote pilot's visual line of sight within a 
safe distance from people, but not over people who are not 
participating in the operation, and not at night. Without this proposed 
rule, the only entities allowed to operate small UAS over people or at 
night are: (1) Public entities holding an active certificate of waiver 
or authorization (COA), (2) entities holding an exemption from the FAA 
that permits UAS operations over people or at night, (3) entities that 
hold a waiver to the prohibitions on operations over people or 
operations at night, or (4) civil small UAS that have received 
airworthiness certification from the FAA and operate with a COA. The 
FAA has issued over 6,000 exemptions for operations of small UAS, some 
of which permitted operations over people or operations at night. In 
addition, since part 107 took effect, the FAA has issued 9 waivers for 
operations over people and over 1,200 for operations at night. Under 
the terms of this proposed rule, individuals would be able to operate 
small UAS over people and at night in the NAS under part 107 without a 
waiver or exemption, as long as the remote pilot in command conducts 
the activity pursuant to the proposed provisions.
    With this proposed rule, the FAA expects the small UAS industry to 
continue finding new and creative ways for deploying small UAS, and 
thereby grow the industry through innovation. The proposed performance-
based framework would enable an entirely new realm of operations, such 
as emergency response efforts, newsgathering, aerial surveying and 
photography, and certain infrastructure inspections.
    During an emergency situation, response time often corresponds to 
lives saved. Remote pilots in command operating pursuant to the 
proposed provisions would not need to expend time clearing an area of 
any people not directly involved in the small UAS operation before 
operating the small UAS pursuant to Category 1 or Category 2. Police or 
special weapons and tactics (SWAT) units could operate small UAS over 
people in situations that would otherwise present risk to law 
enforcement officers and support personnel, such as a hostage situation 
or similar type of incident. Other examples include firefighters using 
small UAS over a burning building and over people while colleagues 
actively fight the fire inside, providing real time footage of isolated 
pockets of fire, safe entry or egress points, or the location of 
trapped people or animals. A remote pilot could provide small UAS 
visual or infrared imagery for search and rescue missions

[[Page 3866]]

while personnel are active on the ground beneath the small unmanned 
aircraft. First responders to major transportation disasters, such as 
train derailments or bus accidents, could use small UAS eligible for 
operations over people to locate victims or assess danger from a 
distance while the small unmanned aircraft proceeds over people 
involved in responding to the disaster. This would allow more targeted 
and efficient rescue efforts on the ground. The advantages of such 
operations are driven by timely and accurate decisions that save lives 
and reduce injuries.
    The advantages of enabling small UAS operations over people and at 
night extend beyond the realm of emergency response. With safety 
standards for operations over people, media outlets could gather aerial 
images and video with greater ease and safety, giving them the 
flexibility to cover a wide array of news stories. Likewise, the 
potential for scientific and professional applications are numerous. A 
farmer could survey an entire field, even as employees are working in 
it. Small UAS, which are ideal for operations at low altitudes, could 
enable wildlife biologists to track and collect data on animal 
populations in towns and cities where people may traverse below, 
providing more accurate data on myriad aspects such as the efficacy of 
pest control efforts and the progression of habitat loss. In addition, 
the use of small UAS during sporting and cultural events could afford 
enhanced viewer experience, more dynamic visuals, and greater accuracy. 
Using a small UAS to observe the performance of athletes, a judge would 
be able to measure competitors against one another with precise data 
the small UAS obtains.
    Permitting small UAS operations at night would obviate the need for 
people to engage in activities that present a risk to their safety, 
such as nighttime inspections of infrastructure, wildlife, and other 
activities that may be preferable during nighttime hours. The absence 
of a person actually performing such inspections or higher-risk 
activities would therefore result in a decrease in the associated costs 
of the activities. As a result, the benefits of utilizing small UAS to 
engage in various activities are diverse.
    The FAA continues to prioritize safety as it develops subsequent 
rulemakings for the entire aviation community. Providing a set of 
flexible, performance-based regulations enables the next phase of UAS 
operations, thereby ushering in additional economic and societal 
advantages while maintaining the safety of the NAS.

C. Micro UAS Aviation Rulemaking Committee

    On February 24, 2016, the FAA chartered the Micro UAS Aviation 
Rulemaking Committee (ARC) (hereinafter ``the ARC'') on the subject of 
enabling operations of small UAS over people. As such, the ARC provided 
recommendations on enabling such operations. ARC members were familiar 
with small UAS designed for aerial data collection and photography with 
a focus on safety features and miniaturization of the aircraft and 
sensors; in addition, ARC members' experience included development of 
performance-based regulations for operations within the NAS, consensus 
standards, consumer product testing techniques, manufacture of unmanned 
aircraft, and human injury research. The ARC provided a forum to 
discuss and provide recommendations to the FAA on enabling the 
operation of micro UAS over people who are not directly participating 
in the operation of the UAS or under a covered structure. On April 2, 
2016, the ARC provided a final report with recommendations.\24\
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    \24\ A copy of the ARC's final report has been placed in the 
docket for this rulemaking.
---------------------------------------------------------------------------

    The ARC recommended the FAA establish four categories for 
operations over people with small UAS. Specifically, the ARC suggested 
the establishment of risk thresholds based on the probability that 
direct impact with a person on the ground from a small unmanned 
aircraft would cause an injury that qualified as level 3 or higher on 
the Abbreviated Injury Scale (AIS).\25\ The Association for the 
Advancement of Automotive Medicine (AAAM) classifies AIS level 3 
injuries as ``serious.'' \26\ The ARC focused on this ``serious'' 
category, and assumed any small UAS flown over people may experience a 
failure and therefore fall, impacting a person. The ARC did not attempt 
to quantify the current risk of experiencing a failure or an acceptable 
failure rate, and did not specify the acceptable probability of a human 
impact occurrence. For each particular model of small UAS to qualify 
for operations over people, the ARC recommended the manufacturer of 
that model would have to certify that the aircraft's energy upon 
impact, as measured by a test established by an industry consensus 
standards body, would not, in the most probable failure modes, exceed a 
specified threshold. Such a test would establish the typical or likely 
impact energy of the most probable failure mode, and not simply the 
worst-case condition.
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    \25\ AAAM developed the AIS as: ``an anatomically based, 
consensus derived, global severity scoring system that classifies 
each injury by body region according to its relative importance on a 
6-point ordinal scale (1=minor and 6=maximal).'' See https://www.aaam.org/abbreviated-injury-scale-ais/ ais/. Explanations of the AIS 
were presented to the ARC by several speakers. See section IV.B.1. 
for a description that contains more information concerning the 
FAA's use of the AIS in this proposed rule.
    \26\ In a presentation on the historical basis for FAA occupant 
safety, an FAA presenter provided the following examples of level 3 
injuries to the head: Small penetrating skull, sinus thrombosis, 
ischemic brain damage, basilar fracture/loss of consciousness for 1 
to 6 hours.
---------------------------------------------------------------------------

    Based on the foregoing structure for categorizing risk, the ARC 
recommended four categories of operations of small UAS over people. 
Under ARC Category 1, the ARC recommended a small UAS could operate 
over people if the small unmanned aircraft weighed 0.55 pounds or less. 
Based on the data the ARC received, the ARC believed the level of risk 
of injury posed by this category of small UAS was so insignificant that 
no performance standards or specific operational restrictions would be 
necessary. To demonstrate a small UAS qualifies for ARC Category 1 
operations over people, the ARC recommended the manufacturer of small 
UAS either: (1) Label the product retail packaging of the small UAS 
with the actual weight of the aircraft, or a general statement that the 
aircraft weighs 0.55 pounds or less; or (2) declare the aircraft 
weighed 0.55 pounds or less, and submit that declaration to the FAA in 
a form and manner acceptable to the FAA.
    To conduct ARC Category 2, 3, and 4 operations, the ARC recommended 
a small UAS should be able to operate over people if it did not exceed 
the impact energy threshold specified for each category, as determined 
by the manufacturer using test methods contained in industry consensus 
standards. Additionally, the ARC recommended the remote pilot for such 
operations should comply with operational restrictions specified for 
each category. Because the level of risk increases between ARC 
Categories 2, 3, and 4, the ARC recommended scaling up the performance-
based standards and operational restrictions in each category to 
mitigate the increased risks.
    Under ARC Category 2, the ARC recommended that a small unmanned 
aircraft be permitted to operate over people if it weighed more than 
0.55 pounds, but still presented a 1 percent or less chance of 
``serious injury'' (AIS level 3 or greater) upon impact with a person. 
The manufacturer would be required to certify that the small UAS did 
not, in the most probable failure modes, exceed the typical or likely 
impact energy threshold, in accordance with test methods contained in 
industry

[[Page 3867]]

consensus standards. The ARC also recommended the operator \27\ of the 
small UAS comply with the manufacturer's operator manual for the small 
UAS, developed in accordance with industry consensus standards. Lastly, 
the ARC recommended the operator maintain minimum set-off distances of 
20 feet vertically or 10 feet laterally away from people, and generally 
not operate so close to people as to create an undue hazard for them.
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    \27\ The FAA notes that the ARC used the term ``operator,'' as 
the FAA proposed in the Operation and Certification of Small 
Unmanned Aircraft Systems NPRM. When the FAA finalized that rule, it 
changed the term ``operator'' to ``remote pilot.''
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    Under ARC Category 3, the ARC recommended a small UAS could operate 
over people if it presented a 30 percent or less chance of causing an 
AIS level 3 or greater injury upon impact with a person. The 
manufacturer of the small UAS would be required to certify to the FAA 
that the small UAS did not, in the most probable failure modes, exceed 
the typical or likely impact energy threshold. The ARC also recommended 
the operator comply with the manufacturer's operator manual for the 
small UAS, developed in accordance with industry consensus standards 
and that flight over crowds or dense concentrations of people never be 
permitted under this category. In addition, the ARC recommended small 
UAS eligible for operations over people pursuant to ARC Category 3 only 
be permitted to operate over people if: (1) The operation is conducted 
over a closed- or restricted-access work site with the permission of 
the site's owner or operator; or (2) overflight of people is limited to 
transient or incidental operation, rather than sustained flight over 
people. The performance standards and operational restrictions 
applicable to ARC Category 2 operations would also apply to ARC 
Category 3.
    The ARC recommended an ARC Category 4 to include operations in 
which a small UAS may operate over people, including flights over 
crowds or dense concentrations of people prohibited in ARC Category 3, 
if: (1) The manufacturer of the small UAS certifies the aircraft 
satisfies the same impact energy threshold as small UAS eligible to 
conduct ARC Category 3 operations; (2) the small UAS complies with 
industry consensus standards; and (3) the operation is conducted in 
compliance with a documented risk mitigation plan, which would be 
developed and adopted in accordance with industry consensus standards 
for conducting risk mitigation. The ARC's recommended performance 
standards for ARC Category 3 and operational restrictions for ARC 
Category 2 would also have applied to ARC Category 4 operations.
    The ARC recommended the means by which manufacturers would comply 
with the provisions would be to: (1) Declare the small UAS met industry 
consensus standards applicable to the category; (2) submit the 
declaration to the FAA in a form and manner acceptable to the FAA; (3) 
label the product or retail packaging in accordance with industry 
consensus standards; and (4) provide an operating manual to the 
operator that includes operator instructions for flight over people. 
The operator would be responsible for knowing the category of 
operations for which his or her small UAS is qualified, and any 
operational limitations he or she would be required to follow.
    In addition, the ARC recommended the FAA establish a distinct 
knowledge testing framework for ARC Category 1 operations. Based on the 
proposed requirements for part 107, a majority of the ARC recommended 
the knowledge test be available online and the TSA vetting process 
(background checks) be reconsidered or eliminated for ARC Category 1 
operations. The ARC based this recommendation on input that the process 
is unduly burdensome and therefore detrimental to safety because the 
process discourages operators of small UAS from complying with the 
procedural requirements.\28\
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    \28\ Representatives of the Air Line Pilots Association (ALPA); 
National Agricultural Aviation Association (NAAA); Helicopter 
Association International (HAI); and Professional Aerial 
Photographers Association, International (PAPA) did not agree with 
the majority of the ARC on changing the testing requirements for 
remote pilots conducting Category 1 operations. These organizations 
all maintained that an individual intending to exercise the 
privileges permitted under the proposed part 107, which include 
commercial small UAS operations, ``should fully comply with the 
necessary training and certification as currently described in part 
107, no matter the size or complexity of the aircraft.'' ARC Report 
at 13. In addition, these organizations argued that data was not 
provided to the ARC.
---------------------------------------------------------------------------

    The FAA considered the ARC's recommendations in the context of the 
agency's statutory authorities and responsibilities, as well as the 
practical realities of administering the regulatory scheme, while 
carefully deliberating over the ARC's recommendations and other public 
policy factors.

IV. Discussion of the Proposed Rule

    This proposed rule would amend part 107 to enable routine small UAS 
operations over people and at night. This rule would require 
manufacturers ensure that small UAS they build for flying over people 
adhere to certain standards to mitigate the risk of injury to people 
should the aircraft fail. This rule would also set operational 
standards for all remote pilots in command who conduct operations over 
people and who conduct operations at night.

A. Operations at Night

    This rule proposes permitting operations of small UAS at night, 
subject to specific requirements.
    The requirements that accompany each of the operations this 
proposed rule would permit would adequately mitigate the risk of 
collision with other aircraft, as well as the risk of injury to people. 
Such an analysis is consistent with the FAA's grant of exemptions under 
section 333 that preceded the promulgation of part 107, as well as 
waivers the FAA has issued for operations that occur at night and 
operations over people under Sec.  107.200.
    This proposed rule would amend Sec.  107.29 to permit operations at 
night only: (1) When the small unmanned aircraft has an anti-collision 
light that is visible for 3 statute miles, and (2) when the remote 
pilot in command has completed an updated knowledge test or recurrent 
training as applicable, to ensure familiarity with the risks and 
appropriate mitigations for nighttime operations. Under 14 CFR 1.1, the 
definition of ``night'' is applicable for purposes of proposed Sec.  
107.29. Section 1.1 defines ``night'' as follows: ``the time between 
the end of evening civil twilight and the beginning of morning civil 
twilight, as published in the Air Almanac, converted to local time.''
1. Analysis of Risk of Night Operations
    The FAA recognizes the 2016 final rule limited operations of small 
UAS to daytime and civil twilight, based on the assessment that 
operations at night pose a higher safety risk. The FAA based this 
presumption on the general difficulty involved in maintaining visual 
line of sight and in ensuring discernment of the location of other 
aircraft during night hours. The portion of the 2016 final rule that 
explained the agency's rationale for the prohibition stated the 
distance and movement of small unmanned aircraft relative to the 
distance and movement of other lighted manned aircraft are difficult to 
judge, due to the relative size of the aircraft.\29\ Moreover, the 
agency determined visual autokinesis, which is the apparent movement of 
a lighted object, may occur when the person maintaining visual line of 
sight stares at a single light source for several seconds on a dark 
night; as a result, darkness

[[Page 3868]]

increases the difficulty of perceiving reference points that could be 
used to help understand the position and movement of the lighted manned 
aircraft, the small unmanned aircraft, or other lighted object. Based 
on the difficulty of perceiving reference points and other associated 
risks the FAA identified, the FAA opined in the preamble of the 2016 
final rule that operations of small UAS at night could increase the 
risk of collision with people, obstacles on the ground, and other 
aircraft.\30\ The FAA, however, acknowledged the many comments in favor 
of permitting operations at night and stated it planned to consider 
commenters' recommendations as part of future rulemaking efforts.\31\
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    \29\ 81 FR 42064, 42103.
    \30\ Id. at 42104.
    \31\ Id. at 42105.
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    While the FAA carefully analyzed the risks that operations of small 
UAS at night present, the FAA remains mindful of the fact that the 
remaining rules of part 107 address risks in a comprehensive manner. In 
this regard, aside from amending the provisions of Sec. Sec.  107.29 
and 107.39, none of the amendments the FAA proposes in this NPRM would 
change the remaining operational restrictions and requirements of part 
107.\32\ The FAA determined these existing operational provisions, in 
addition to the proposed requirements of an anti-collision light and 
additional knowledge testing or recurrent training, mitigate the risk 
posed by small UAS operations at night.
---------------------------------------------------------------------------

    \32\ For example, remote pilots must still maintain a valid 
remote pilot certificate and may not operate the small UAS in an 
unsafe manner. Remote pilots remain prohibited from: Operating small 
UAS from a moving vehicle (other than over sparsely populated areas) 
or aircraft and operating in the absence of the capability to 
discern visually the speed, altitude, attitude, and position of the 
small unmanned aircraft. In addition, remote pilots may only operate 
in Class G airspace unless they first obtain prior authorization and 
must thoroughly check the area of operation and the small UAS in 
advance of the operation. Furthermore, remote pilots must continue 
to yield to other aircraft.
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2. Review of Exemptions and Waivers
    The current prohibition on nighttime operations of small UAS may be 
waived, and the FAA has analyzed the effects of risk mitigation 
measures the FAA requires under such waivers. Since the effective date 
of the rule on August 29, 2016, the agency has received 4,837 \33\ 
requests for waiver of the prohibition on nighttime operations. The 
agency has issued 1,233 \34\ waivers for operations at night, and has 
determined the operations that proceed in accordance with those waivers 
are safe.
---------------------------------------------------------------------------

    \33\ This information is current as of December 31, 2017.
    \34\ This information is current as of December 31, 2017.
---------------------------------------------------------------------------

    The FAA also has granted exemptions pursuant to section 333 for UAS 
operations at night under 14 CFR part 91, which contains a different 
framework than part 107.\35\ The FAA considered in its analysis the 
fact that it did not exempt the requirements of Sec. Sec.  91.205(c) 
and 91.209, which require lighting on aircraft. In addition, most of 
the airman qualification requirements under 14 CFR part 61 applied to 
such exemptions. The FAA considered these two factors--anti-collision 
lighting and airman knowledge--as critical to ensuring safety in the 
NAS when permitting the UAS operations at night under section 333. In 
addition, the current version of Sec.  107.29(b) requires anti-
collision lighting for operations during periods of civil twilight. The 
FAA has determined this requirement is a suitable risk mitigation 
measure for operations at night.
---------------------------------------------------------------------------

    \35\ Section 333 required the Secretary to determine which types 
of UAS do not create a hazard, based on considerations that include 
unmanned aircraft size, weight, speed, operational capability, 
proximity to airports and populated areas, and operation within 
visual line of sight. Id. Public Law 112-95 section 333(b)(1). Based 
on such determinations, the FAA issued exemptions from various 
operating rules applicable to manned aviation operations to enable 
operations of UAS. Some exemptions permitted operations of UAS at 
night, pursuant to certain conditions and limitations. See, e.g., 
Industrial Skyworks, Exemption No. 16341 (April 18, 2016) 
(concluding, ``the petitioner's use of anti-collision lights that 
are visible from 5,000 feet are adequate for the PIC and [visual 
observer] to maintain [visual line of sight] capability and as an 
additional means for collision mitigation.'').
---------------------------------------------------------------------------

    The FAA has also assessed the potential effects of operations of 
small UAS at night in conjunction with the other type of operation this 
proposed rule would permit, which is operations over people. First, 
risks of operations at night are distinct from those that operations 
over people present. As explained in this proposed rule, the FAA 
classifies the risk mitigations for operations over people via proposed 
categories that are based on the level of risk of injury posed. 
Manufacturers of small UAS who seek to produce small UAS eligible to 
operate over people would need to consider the mass of an anti-
collision light if they include such a light on the small unmanned 
aircraft.
    The lighting conditions at the time of the flight do not change the 
level of risk that small UAS operations that occur over people present. 
If the small UAS used in the operation complies with one of the 
categories of aircraft listed in proposed subpart D of part 107, then 
the remote pilot in command may operate the small UAS over people 
pursuant to the proposed requirements within subpart D, as well as 
other requirements that may apply.
3. Visual Observation at Night
    Visual observation is the means by which a remote pilot in command 
ensures the small unmanned aircraft does not collide with other 
aircraft. Several factors influence a person's ability to detect 
aircraft visually. For example, size, orientation, visual clutter, and 
the location of the image on a person's retina all affect the 
discernment of an aircraft with unaided human vision. Creating 
contrast, which is the difference in luminance between an object in its 
background, enhances the safety of aviation operations that occur at 
night because contrast facilitates one's ability to observe aircraft 
and therefore avoid a collision. Contrast consists of paint schemes, 
aircraft lighting systems, atmospheric conditions, and variations in 
background.\36\
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    \36\ See Williams and Gildea, A Review of Research Related to 
Unmanned Aircraft System Visual Observers, DOT/FAA/AM-14/9 Civil 
Aerospace Medical Institute (October 2014) (stating operations at 
night offer the potential advantage of higher contrast conditions 
because the small unmanned aircraft's light against a dark sky 
provides a difference in luminance).
---------------------------------------------------------------------------

    Feedback from an FAA Pathfinder participant supports the FAA's 
conclusion that such contrast affects the remote pilot's ability to 
avoid a collision based on visual observation. The Pathfinder 
participant operated a small UAS at night and staged a manned aircraft 
in the same area as the unmanned aircraft. In that case, both the 
remote pilot in command and the manned aircraft pilot spotted one 
another more easily during night operations than during the day, due to 
the increased conspicuity that anti-collision lighting provided.\37\
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    \37\ A copy of correspondence with staff from Pathfinder 
participant Burlington Northern Santa Fe (BNSF) is available in this 
rulemaking docket.
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4. Anti-Collision Lighting
    Small unmanned aircraft, in most cases, are significantly smaller 
than their manned counterparts. The reduced size, combined with the 
reduced visibility due to darkness, favors requiring an anti-collision 
light for reduction of the risk involved with small UAS operations at 
night. The FAA anticipates the presence of the light will provide other 
aircraft with awareness of the small unmanned aircraft's presence. The 
FAA's rationale for the proposed anti-collision light for night 
operations in this rule remains consistent with the rationale the FAA 
articulated in the 2016 final rule with regard to the

[[Page 3869]]

requirement for the light during civil twilight operations.\38\
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    \38\ 81 FR at 42103.
---------------------------------------------------------------------------

    Although a remote pilot in command might be able to discern the 
position of the small unmanned aircraft with his or her unaided human 
vision when the aircraft is further away at night due to the lighted 
anti-collision light this proposed rule would require, the remote pilot 
may not be able to rely solely on that light as a manner of complying 
with the existing requirements applicable to visual line of sight 
operations. Existing Sec.  107.31(a) requires the remote pilot to be 
able to see the small unmanned aircraft throughout the flight to: Know 
the unmanned aircraft's location; determine the unmanned aircraft's 
attitude, altitude, and direction of flight; observe the airspace for 
other air traffic or hazards; and determine that the unmanned aircraft 
does not endanger the life or property of another.
    In almost all cases, the remote pilot in command will need to 
restrict the operational area of the aircraft at night or use a small 
UAS that contains an additional system, such as position lighting, to 
meet Sec.  107.31(a) requirements while operating at night. Such a 
necessity arises from the fact that reduced lighting and contrast at 
night makes it difficult for remote pilots in command to maintain the 
capability of visually discerning the location, attitude, altitude, and 
direction of the flight of the aircraft. In the interest of enabling 
remote pilots in command with the flexibility to determine the 
appropriate solution for each unique operation, the FAA decided not to 
propose amending existing Sec.  107.31 to require additional 
requirements on visual line of sight operations at night. The FAA 
invites comments from the public, however, on whether it should require 
position lighting, in addition to the anti-collision lighting the FAA 
proposes in this rule, for night operations.
    Currently, Sec.  107.29 requires an anti-collision light visible 
for 3 statute miles during periods of ``civil twilight.'' The 2016 
final rule cited 14 CFR 103.11 as the source of the requirement for an 
anti-collision light.\39\ Section 103.11 prohibits operation of 
ultralight vehicles at night, and sets forth an anti-collision light 
requirement for ultralight vehicles during twilight periods. The FAA is 
aware that the anti-collision light requirement for ultralights does 
not constitute a precise analogy to small UAS operations. Nevertheless, 
the FAA has considered the anti-collision light requirement as it 
applies to ultralights as instructive for both the existing version of 
Sec.  107.29 as it relates to civil twilight operations, as well as the 
version of Sec.  107.29 that the FAA proposes in this NPRM.
---------------------------------------------------------------------------

    \39\ 81 FR 42064, 42103 (June 28, 2016).
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    In promulgating this requirement for ultralights, the FAA stated 
``[t]he visibility from above of ultralights operating at very low 
levels can be significantly enhanced by the addition of an anti-
collision light on these vehicles.'' \40\ The FAA stated, for purposes 
of Sec.  103.11, an anti-collision light is ``any flashing or 
stroboscopic device that is of sufficient intensity so as to be visible 
for at least 3 statute miles.'' \41\ Overall, the 3 statute mile 
visibility standard for anti-collision lighting for night operations of 
ultralight vehicles has been a longstanding requirement.
---------------------------------------------------------------------------

    \40\ 47 FR 38770, 38773 (Sept. 2, 1982).
    \41\ Id. at 38773-74.
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    The FAA considered incorporating the standards of 14 CFR 27.1401, 
Anti-collision light system, for night operations under part 107. Part 
107 does not contain aircraft certification rules or standards, and the 
FAA concludes the reduced risk small UAS operations pose does not 
warrant application of such standards. Prescribing lighting 
requirements would be overly burdensome for both the FAA and 
manufacturers of small UAS because they would be forced to make 
tradeoffs that affect both the weight of the aircraft and the 
aircraft's power source and supply. The FAA proposes small UAS 
operating at night must simply have an anti-collision lighting 
component that is visible for 3 statute miles, rather than a light that 
fulfills prescriptive design criteria. The FAA, however, invites 
comments on the following:
     Should the FAA impose a specific color or type requirement 
concerning the anti-collision light; the most helpful comments on this 
issue will explain how a prescriptive standard would achieve the 
objective of ensuring safety of small UAS operations at night, in light 
of the risks the FAA has identified in this proposed rule.
     Are there characteristics or effects of anti-collision 
lights at low altitude that could have an effect on normal human 
activities? If so, are there potential mitigations or alternatives to 
consider?
5. Waiver
    The FAA also proposes making the anti-collision lighting 
requirement for small UAS night operations subject to waiver. The FAA 
would consider granting a certificate of waiver allowing a nighttime 
small UAS operation without an anti-collision light visible for 3 
statute miles if an applicant demonstrated sufficient measures to 
mitigate the risk associated with the proposed operation. In this 
regard, as with the FAA's current manner of responding to requests for 
waiver, the FAA would expect waiver applicants to establish that 
operating at night without an anti-collision light (or with a light 
that is visible at a distance of less than 3 statute miles) would not 
reduce the level of safety of the operation.
6. Preflight Familiarization
    The FAA also considers the existing preflight familiarization, 
inspection, and actions for aircraft operation under Sec.  107.49 to 
mitigate the risk of operations of small UAS at night. Section 107.49 
will continue to require the remote pilot in command to assess in 
advance of the operation the location of persons and property on the 
surface as well as other ground hazards. The remote pilot in command 
must also determine the functionality of the small UAS and its required 
components. Similar to the requirements of Sec.  91.205(a), the FAA 
expects the remote pilot to check the anti-collision light in advance 
of the operation to ensure the light is in an operable condition for 
the duration of all flights during civil twilight and at night.
    In addition to verifying the functionality of the anti-collision 
light prior to commencing the operation and after noting the locations 
of hazards during the assessment of the operating environment, the 
remote pilot in command must determine how to avoid the identified 
hazards to ensure continued safe operation of the small UAS in 
accordance with Sec. Sec.  107.15 and 107.19(c). Prior to the flight, 
the remote pilot in command must also ensure he or she will be able to 
keep the small unmanned aircraft within the intended area of operation 
and within visual line of sight for the duration of the operation. This 
preflight assessment provides flexibility to the remote pilot in 
command and allows him or her to exercise judgment in using the 
principles of Aeronautical Decision Making. Advisory Circular 107-2\42\ 
contains recommended best practices for operational site assessments 
and avoiding flight over non-participating people, unless the operation 
satisfies the proposed requirements of Sec.  107.39.
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    \42\ Small Unmanned Aircraft Systems (sUAS), Advisory Circular 
107-2 (June 21, 2016), available at https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_107-2.pdf.
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    The FAA considered amending Sec.  107.49 to include an explicit

[[Page 3870]]

requirement to check the functionality of the anti-collision light 
prior to night operations. The FAA decided such an amendment is 
unnecessary because the language in the proposed version of Sec.  
107.29(a)(2) would specifically require a lighted anti-collision light. 
This language is identical to the original Sec.  107.29(b) for civil 
twilight operations that also did not require checking the 
functionality of the light in Sec.  107.49.
7. Remote Pilot Knowledge
    The remote pilot's first-hand knowledge of the risks nighttime 
small UAS operations present, as well as the appropriate risk 
mitigations and aeronautical judgment, are critical to enhancing the 
safety of operations of small UAS at night. As a result, the FAA would 
require remote pilots complete either an updated knowledge test or 
recurrent training that addresses small UAS operations at night prior 
to operating as a remote pilot in command at night.
    The additional test questions the FAA anticipates including on the 
initial knowledge test under Sec.  107.73 and the recurrent training 
under Sec.  107.74 would focus on night physiology and night illusions. 
The remote pilot in command's ability to maintain both the small 
unmanned aircraft and any intruding aircraft within his or her field of 
view will directly affect his or her ability to discern the potential 
for a collision.\43\ As such, maintaining the ability to view the 
airspace pertinent to the operation is a principal mitigation of the 
risk small UAS operations present under part 107. Therefore, the 
additional knowledge questions and training relevant to night 
operations would emphasize the ability to maintain uninhibited visual 
observation of the airspace and would address how to detect aircraft in 
a dynamic, visually complex operational environment.
---------------------------------------------------------------------------

    \43\ See M.A. Crognale, UAS/UAV Ground Observer Performance: 
Field Measurements, DOT/FAA/AR-10/1 (Dec. 24, 2009).
---------------------------------------------------------------------------

    In addition, the FAA will continue to provide resources to remote 
pilots in command concerning practical tips and best practices for 
ensuring the safety of small UAS operations at night. The FAA publishes 
several resources that contain information and best practices for night 
operations. The FAA encourages remote pilots to become familiar with 
certain sections of the Aeronautical Information Manual (AIM),\44\ 
Pilot's Handbook of Aeronautical Knowledge,\45\ and Airplane Flying 
Handbook.\46\ The FAA intends to update Advisory Circular 107-2 with 
specific sections pertaining to night operations and currently 
maintains brochures and training videos for night operations. Remote 
pilots have free online access to these materials.
---------------------------------------------------------------------------

    \44\ AIM, Ch. 8: Medical Facts for Pilots, Sec. 8-1-6 ``Vision 
in Flight,'' available at https://www.faa.gov/air_traffic/publications/media/aim.pdf (April 27, 2017).
    \45\ Pilot's Handbook of Aeronautical Knowledge, Ch. 17: 
Aeromedical Factors at p. 17-19 ``Vision in Flight,'' available at 
https://www.faa.gov/regulations_policies/handbooks_manuals/aviation/phak/media/19_phak_ch17.pdf (2016).
    \46\ Airplane Flying Handbook, Ch. 10: Night Operations (March 
23, 2017).
---------------------------------------------------------------------------

    A remote pilot who obtained his or her remote pilot certificate 
under part 107 prior to the effective date of this rule and has not 
completed updated training would not be eligible to act as remote pilot 
in command and operate their small UAS at night under this rule. Any 
person who wishes to be a remote pilot in command and operate at night 
must complete the updated training, which includes night operations, 
regardless of the amount of time that has passed since the person 
completed the previous test or course, before operating at night.

B. Operations Over People

    This rule proposes amendments to part 107 that would enable 
operations of small UAS over people. The FAA bases its proposed 
framework on the presumption that small UAS operating under part 107 
are not airworthy, given that they are not subject to the requirement 
of an airworthiness certificate.\47\ Accordingly, the FAA proposes 
three categories of operation that could be conducted over people,\48\ 
based on likelihood and severity of injuries that could result.
---------------------------------------------------------------------------

    \47\ 81 FR 42068-70 (stating Pub. L. 112-95 section 333(b)(2) 
allows for the determination that airworthiness certification is not 
necessary for certain small UAS, such as those part 107 covers).
    \48\ As discussed in the preamble of the 2016 final rule, the 
term ``over'' refers to the flight of a small unmanned aircraft 
directly over any part of a person, regardless of the dwell time. 81 
FR 42064, 42129.
---------------------------------------------------------------------------

    This section describes the FAA's proposed requirements applicable 
to the three categories that would ensure the safety of operations over 
people. These requirements address the manufacturing of small UAS that 
fulfill the safety thresholds of this proposed rule as well as 
restrictions that may apply to the operation. In addition, this section 
describes the measures of oversight the FAA will employ in ensuring 
compliance with the proposed requirements.
1. Definitions
    This proposed rule includes two new definitions applicable to 
manufacturing small UAS eligible to conduct operations over people: 
``casualty'' and ``declaration of compliance.'' For purposes of this 
rule, the FAA considers a ``casualty'' as an Abbreviated Injury Scale 
(AIS) level 3 or greater injury. The AIS provides a means of 
classifying the type and severity of injuries throughout the body. 
Although originally designed to map a series of anatomically-defined 
injury descriptions using several parameters (energy dissipation, 
threat to life, permanent impairment, treatment period, and incidence) 
specifically for vehicular crashes, the U.S. Department of 
Transportation as well as many university and industry research teams 
in the United States, Europe, and Australia have adopted the AIS 
severity level scale as the standard for various crash investigation 
teams. Within the AIS system, injuries are classified on a scale of 1 
to 6, as follows:

                    Table 3--Abbreviated Injury Scale
------------------------------------------------------------------------
               AIS Level                            Definition
------------------------------------------------------------------------
1......................................  Minor injury.
2......................................  Moderate injury.
3......................................  Serious injury.
4......................................  Severe injury.
5......................................  Critical injury.
6......................................  Non-survivable injury.
------------------------------------------------------------------------

    Throughout this NPRM, the FAA uses the phrase ``low probability of 
causing a casualty'' for Category 2 operations to mean a low chance 
exists that a person whom a small unmanned aircraft impacts would 
experience a serious injury. The FAA notes that the AAAM classifies all 
AIS level 3 injuries as ``serious.'' Similarly, although the FAA does 
not propose codifying a definition of ``fatality'' in this rule, this 
NPRM uses that term in descriptions concerning Category 3 operations, 
which appear in section IV.B.4. For purposes of this discussion, the 
FAA regards a ``fatality'' as an AIS level 6 injury, which means the 
injury ultimately results in death. Because a casualty is an AIS level 
3 or greater injury, AIS level 6 is included within the definition of a 
casualty.\49\ Overall, consistent with the ARC's recommendations, the 
FAA uses the AIS in assessing the levels of risks of injury small 
unmanned aircraft operating over

[[Page 3871]]

people may present, in the interest of determining the appropriate 
manner for reducing such risks.
---------------------------------------------------------------------------

    \49\ AIS 3 head injuries can result in a loss of consciousness 
of 1 to 6 hours, or specific types of skull fractures. AIS 3 neck 
injuries include dislocations, fractures, and injuries that put the 
spinal cord at risk. While an AIS 3 injury may not be life-
threatening as a stand-alone injury, compounding factors may lead to 
death. Therefore, the FAA notes that a person could experience an 
AIS 3 injury as a result of a small unmanned aircraft impact that 
could develop into a more serious injury if, for example, the person 
does not seek the appropriate medical attention.
---------------------------------------------------------------------------

    This proposed rule would also define a ``Declaration of 
Compliance'' as a document a manufacturer submits to certify that a 
small UAS conforms to the Category 2 or 3 requirements for operations 
over people. As discussed in section IV.B.7., this rule would require 
manufacturers producing small UAS for Category 2 and 3 operations to 
submit a Declaration of Compliance to the FAA. Although these aircraft 
systems would not be certificated as airworthy under this rule, the FAA 
would rely on a manufacturer's Declaration of Compliance to ensure the 
make and model of aircraft complies with the applicable standards at 
the time of manufacture.
2. ARC Recommendation
    As noted previously, the ARC recommended a small UAS operating over 
people should present only a low probability of causing a serious 
injury to uninvolved people. The ARC used two concepts to address the 
risk to persons from small UAS operations over people: injury threshold 
and impact kinetic energy threshold. The injury threshold is the 
maximum injury level a person would be expected to suffer as a result 
of being impacted by a small unmanned aircraft under normal operating 
conditions. The impact kinetic energy threshold is the maximum kinetic 
energy that the small unmanned aircraft could transfer to a person upon 
impact without exceeding the injury threshold. The ARC identified 
threshold injury levels using the AIS for each category: a one percent 
chance of causing an AIS level 3 injury for ARC Category 2 operations 
and no more than a 30 percent chance of causing an AIS level 3 injury 
for ARC Category 3 operations.\50\
---------------------------------------------------------------------------

    \50\ ARC Report at 9-10.
---------------------------------------------------------------------------

    The ARC recommended the proposed rule should limit the kinetic 
energy a small UAS could transfer upon impact in order to limit the 
injury the small UAS could cause. The ARC encouraged the FAA to use the 
injury thresholds to calculate corresponding impact kinetic energy 
thresholds. The ARC recommended using an impact kinetic energy 
threshold measured in Joules per centimeter squared (J/cm\2\) to 
calculate the impact kinetic energy thresholds that correspond to these 
injury thresholds, by way of a performance-based requirement that 
limits the risk of injury. Based on a presentation it received from 
Transport Canada, the ARC stated this calculation would result in a 
value of 12 J/cm\2\, and that a quadcopter UAS weighing 4 to 5 pounds 
would qualify for an ARC Category 2 operation, depending on its design 
characteristics and operating instructions.\51\
---------------------------------------------------------------------------

    \51\ ARC Report at 7.
---------------------------------------------------------------------------

3. Category 1 Operations
    This rule would establish a category of operations over people 
using small UAS 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 refers to this category as Category 1, and proposes to 
enable Category 1 operations without any additional manufacturer or 
operational restrictions beyond what part 107 already requires and any 
other applicable laws and regulations.
    The FAA's proposal is consistent with the ARC's recommendation for 
Category 1 operations. Based on information from experts in government, 
industry, and academia,\52\ the ARC concluded, ``the level of risk of 
injury posed by this category of UAS is so low that no performance 
standards and no operational restrictions beyond those imposed by the 
proposed part 107 are necessary.'' \53\ The ARC came to this conclusion 
based on the following: (1) An example provided by Dr. Paul Wilde of 
the FAA in which a small UAS weighing 0.55 pounds and operating over 
people presented a ``probability of serious injury or fatality 
consistent with existing levels of safety for non-participating people 
when exposed to aviation risks;'' \54\ (2) data provided by Mr. 
Arterburn, of the University of Alabama in Huntsville's Alliance for 
System Safety of UAS through Research Excellence (ASSURE), who 
``correlated various human injury thresholds with risks associated with 
sporting events'' \55\ and suggested that a UAS, under certain 
conditions, could transfer as low as 38 percent of its total kinetic 
energy on impact; \56\ and (3) the Registration Task Force's selection 
of a weight threshold of 0.55 pounds for registration purposes. There 
is more information about the ARC's analysis of the risks posed by 
Category 1 operations in its report, a copy of which has been placed in 
the docket. The FAA adopts this conclusion that a small unmanned 
aircraft that weighs 0.55 pounds or less poses a low risk of injury 
when operated over people.
---------------------------------------------------------------------------

    \52\ In addition to presentations from FAA experts, 
presentations made at the ARC included analyses from researchers at 
ASTM International (ASTM), Transport Canada, National Aeronautics 
and Space Administration (NASA), National Institute of Standards and 
Technology (NIST), Alliance for System Safety of UAS through 
Research Excellence (ASSURE), Virginia Tech, RTCA, Praxis Aerospace 
Concepts, MIT Lincoln Labs, Simpson College, Naval Sea Systems 
Command (NSWC Dahlgren), EASA, U.S. Navy, UAS Insurance Association, 
and the Consumer Product Safety Commission. See ARC Report at 
Appendix A
    \53\ ARC Report at 4.
    \54\ ARC Report at 6.
    \55\ ARC Report at 6.
    \56\ ARC Report at 6.
---------------------------------------------------------------------------

    The FAA anticipates Category 1 operations would consist almost 
exclusively of aerial photography, due to the small size of aircraft 
eligible for such operations. For example, a small UAS qualified for 
Category 1 operations might be used to film a wedding, collect pictures 
of a school sporting event, or take a self-portrait. The FAA invites 
comments containing data on the risk of injury to persons posed by 
operations using small UAS that weigh 0.55 pounds or less.
    The FAA anticipates manufacturers would design small UAS to meet 
the Category 1 qualifications for marketing purposes, but 
responsibility for determining whether a small unmanned aircraft weighs 
0.55 pounds or less rests with the remote pilot in command. The remote 
pilot in command would be in the best position to determine, before 
flight, whether the small unmanned aircraft satisfies the weight 
limitation and can therefore conduct Category 1 operations. For 
example, the remote pilot in command may choose to add or change the 
small unmanned aircraft's batteries or camera, which may cause a small 
unmanned aircraft that previously satisfied the 0.55-pound limit to 
exceed that weight and no longer qualify for Category 1 operations. 
Overall, the remote pilot in command must ensure the small UAS is 
eligible for operations under Category 1 prior to operating the small 
UAS over people.
4. Category 2 and 3 Operations
    While the proposal for Category 1 operations is based on weight 
alone, the proposed amendments for enabling Category 2 and 3 operations 
require a more sophisticated analysis. This rule proposes categorizing 
eligibility for Category 2 and 3 operations based on the risk of human 
injury, which is consistent with the ARC's recommendations. The 
following discussion describes the level of safety this rule proposes 
as the standard for limiting human injuries from the energy a small 
unmanned aircraft transfers upon impact. This discussion also 
summarizes the sources of relevant information the FAA considered and 
will continue to monitor.

[[Page 3872]]

(a) International Activities and Ongoing Research
    Since the ARC, the FAA has carefully examined additional 
information with regard to injury risks and energy thresholds. The 
European Aviation Safety Agency (EASA) published a prototype regulation 
in August 2016, followed by a Notice of Proposed Amendment (NPA) on May 
4, 2017.\57\ The NPA introduces categories of permissible small UAS 
operations based on maximum takeoff masses; the ``open'' category is 
most permissive, and proposes a subcategory to permit small UAS 
operations over uninvolved people, but not over assemblies of people, 
as long as the aircraft does not exceed 250 grams maximum takeoff mass 
and does not have sharp edges. These aircraft would be limited to 50 
meters (approximately 164 feet) above ground level (AGL) and eligible 
for operations that remote pilots of any age could conduct, provided 
they have educational materials to ensure competence. Other 
commercially built small unmanned aircraft would be permitted to 
operate over uninvolved people if they fulfill several product safety 
requirements, including either an energy transmitted to the human body 
less than 80 joules upon impact or a maximum takeoff mass, including 
payload, of less than 900 grams and a maximum cruising speed of 18 
meters per second. These other aircraft would also be subject to the 
limit of 50 meters AGL unless the pilots conducting the operations take 
online training with a test, in which case they could conduct 
operations up to 120 meters AGL. The NPA proposes allowing other 
operations that do not fulfill these criteria, as long as they do not 
operate directly over uninvolved people and comply with certain 
operational restrictions.\58\
---------------------------------------------------------------------------

    \57\ Introduction of a Regulatory Framework for the Operation of 
Drones--Unmanned Aircraft System Operations in the Open and Specific 
Category, Notice of Proposed Amendment 2017-05, available at https://www.easa.europa.eu/system/files/dfu/NPA%202017-05%20%28A%29_0.pdf.
    \58\ Similar to the FAA, EASA may consider ongoing research as 
it determines the suitability of energy thresholds and the 
likelihood of human injury in attempting to categorize the risk 
small UAS operations over people may present.
---------------------------------------------------------------------------

    In the NPA, EASA also states it relied on the Joint Authorities for 
Rulemaking on Unmanned Systems (JARUS) concept that identifies three 
categories based on several factors concerning the intended operations. 
JARUS is a collaborative group of international participants that 
develop guidance material to assist governing authorities in 
promulgating standards. The FAA participates in JARUS in developing 
such materials, and has considered JARUS activities and proposed 
policies in furtherance of the FAA's goal of integrating UAS safely 
into the NAS. In this regard, the FAA continues to contribute to JARUS 
and its stated mission to develop a regulatory framework for unmanned 
aircraft operations and proposals for the regulation of operations the 
member states would consider ``low-risk.''
    Since 2015, the FAA has collaborated with the academic community 
and its affiliates by fostering cooperative research and developing 
intellectual capabilities of primary interest to the FAA and the UAS 
community, through the work of the UAS Center of Excellence under the 
Alliance for System Safety of UAS through Research Excellence (ASSURE). 
Recent research from one ASSURE study has informed the FAA's decision-
making concerning operations of small unmanned aircraft over 
people.\59\ The results of the study corroborate the FAA's impact 
severity estimates that form the basis for this rule, in that the 
ASSURE researchers used kinetic energy upon impact as a basis for 
estimating the severity of injury a small UAS impacting a person 
causes.
---------------------------------------------------------------------------

    \59\ Arterburn, et al., FAA UAS Center of Excellence Task A4: 
UAS Ground Collision Severity Evaluation: Revision 2 (Apr. 28, 2017) 
(hereinafter ``A4 Report''). The final report underwent peer review 
of researchers from FAA, the National Aeronautics and Space 
Administration, and industry participants. The report is available 
in the docket for this rulemaking.
---------------------------------------------------------------------------

    This research substantiates the need for the development of 
manufacturer standards that will address how to measure the potential 
for human injury that results from small UAS impacts with a person. In 
particular, given the significant variability in the impact dynamics 
and amounts of energy transfer that the report identified, the ASSURE 
research indicates addressing impact dynamics, aerodynamic drag, the 
shape and material properties of the small UAS, and other potential 
factors, will be persuasive aspects to consider for creating standards 
that ensure safety. The A4 Report also highlights the necessity for 
safer blade designs or restrictions that could limit the effects of 
exposed rotating parts.
(b) FAA Proposal
    This proposed rule would use the term ``safety level'' in the 
requirement applicable to means of compliance: In particular, 
applicants that submit means of compliance for FAA acceptance must show 
the means of compliance would achieve the safety level the proposed 
standards reach. This safety level refers to the limitation of injury 
severity caused by transfers of kinetic energy, exposed rotating parts, 
or safety defects. With regard to the impact kinetic energy limitations 
in this rule, the small unmanned aircraft must not be capable of 
causing an injury to a human being that is more severe than injury that 
would result from an impact kinetic energy transfer of 11 ft-lbs 
(Category 2) or 25 ft-lbs (Category 3) from a rigid object. In 
addition, this proposed rule would prohibit small UAS eligible for 
operations in either Category 2 or Category 3 from having exposed 
rotating parts that could lacerate human skin and from having any 
safety defects. Finally, to establish an appropriate safety level, this 
rule would also require certain operational limitations for Category 3 
operations. Consistent with the ARC recommendation, this rule proposes 
a performance-based standard that the FAA believes is equivalent to 
reducing the likelihood of causing a certain level of expected injury.
(1) Safety Level
    This proposed rule's establishment of a safety level that, in part, 
limits the effects of kinetic energy upon impact arises from the FAA's 
consideration of the AIS as a means of establishing the acceptable 
injury thresholds. In the Supplemental NPRM (SNPRM) titled ``Licensing 
and Safety Requirements for Launch,'' the FAA discussed the concept of 
levels of injury risk from impacts with inert debris resulting from 
commercial space launches.\60\ In determining the acceptable level of 
risk of injury from inert debris, the FAA stated: ``[o]ne must note 
that not every impact of debris at 11 ft-lbs or greater would 
necessarily result in a casualty. The probability of casualty due to 
such an impact is further dependent on a number of other factors 
specific to the debris and the impact scenario.'' \61\ The FAA 
considered the concept of the risk of injury from inert debris in 
proposing standards for small unmanned aircraft, as explained below.
---------------------------------------------------------------------------

    \60\ See Licensing and Safety Requirements for Launch, 
Supplemental Notice of Proposed Rulemaking, 67 FR 49456 (July 30, 
2002), which the FAA finalized on August 25, 2006. 71 FR 50508.
    \61\ 67 FR at 49465.
---------------------------------------------------------------------------

(a) Transfer of Energy From Rigid Object
    This rule proposes a performance-based standard that includes the 
term ``rigid object'' with regard to the transfer of energy. For 
purposes of this proposed rule, the FAA considers a rigid object to be 
a body on which the distance between two points never changes, 
notwithstanding the amount of force applied on it. Such a definition, 
therefore, includes a body that does not

[[Page 3873]]

deform under the influence of forces. The FAA is fully aware that many 
factors affect the transfer of kinetic energy. For example, elasticity, 
impact dynamics, impact orientation, and a variety of other factors 
would ostensibly reduce the amount of energy the object actually 
transfers. Research suggests a rigid object impacts someone with more 
kinetic energy and therefore could cause injuries more severe than 
those a small unmanned aircraft would cause upon impact.
    The A4 Report from ASSURE suggests a vertical drop test that 
measures kinetic energy upon impact alone is not the most accurate 
means of estimating injury that occurs as a result of the energy 
transfer. The ASSURE research also proposed alternatives to measuring 
injury that would result from a small unmanned aircraft that impacts a 
person. The study suggested other test methods that account for the 
design configuration and material properties of the small UAS may 
measure the severity of blunt trauma that results from an impact more 
accurately than kinetic energy measurements alone. ASSURE is conducting 
further research on alternative methodologies as indicators of the 
severity of injuries from impacts with small unmanned aircraft.
    The study strongly suggests the transfer of energy from a small 
unmanned aircraft, while difficult to measure, is unlikely to reach 100 
percent of the total kinetic energy. In this regard, the study states:

    The energy that is directly absorbed is the difference between 
the transferred energy and the change in kinetic energy of the 
impacted object. Absorbed energy is a function of the deformation of 
the impacted mass and the associated damping caused by the materials 
from which the impacted object is manufactured.\62\
---------------------------------------------------------------------------

    \62\ A4 Report at 32-33.

    The study indicates deformation and absorption of energy are 
influential factors to consider when measuring energy from a small 
unmanned aircraft falling on a person because ``[i]n the case of a 
person being hit by a UAS, deformation and absorbed energy contribute 
to the injuries associated with blunt force trauma.'' \63\
---------------------------------------------------------------------------

    \63\ Id.
---------------------------------------------------------------------------

    The study attempted to theorize the likelihood of injury that would 
result from an impact with a small unmanned aircraft as compared to an 
impact with blunt, dense objects such as a ball of steel and a block of 
wood.\64\ The risk of a serious injury from such objects varies, given 
the frangibility and dense nature of the object, among other factors. 
The research conducted impact testing of each of these objects and 
established that the transfer of energy from these objects varies 
greatly due to design characteristics and the variation of materials 
that compose the objects. The study showed the transfer of energy from 
a rigid object was more likely to cause injury than the energy 
transferred from an object that is less rigid, such as a small unmanned 
aircraft of the same weight. The FAA intends the practice of comparing 
the energy transferred from a rigid object to the transfer of energy 
from a small unmanned aircraft will permit manufacturers, likely by way 
of an industry consensus standard, to design small unmanned aircraft 
that fulfill the safety levels the FAA proposes in this rule. 
Ultimately, the FAA intends its inclusion of the term ``rigid object'' 
to provide flexibility applicable to each small unmanned aircraft 
design, based on limiting human injury caused by the transfer of 
energy.
---------------------------------------------------------------------------

    \64\ A-4 Report at 84.
---------------------------------------------------------------------------

    Along with the inclusion of the term ``rigid object'' in the 
standards that would govern the qualification of small UAS eligible to 
conduct operations in Category 2 and Category 3, the FAA proposes 
measurements of energy that would ensure a low likelihood that the 
small unmanned aircraft would cause a casualty or fatality upon impact. 
The FAA's use of 11 ft-lbs as the basis for the injury standard 
applicable to Category 2 operations is consistent with existing 
commercial space safety regulations at 14 CFR part 417, Launch Safety, 
and longstanding Range Commander's Council (RCC) standards. 
Specifically, 14 CFR 417.107(c) establishes 11 ft-lbs as the impact 
kinetic energy threshold for inert debris from a commercial space 
launch operation that could cause a casualty from blunt trauma to a 
person not under a covered structure. The FAA bases this threshold on 
extensive government research of human injury thresholds discussed in 
the RCC Common Risk Criteria Standards for National Test Ranges, RCC 
Standard 321 and associated supplements. The stated intent of RCC 
Standard 321 is to ``establish safety criteria and guidelines to 
provide definitive and quantifiable measures to protect mission-
essential personnel'' \65\ and the general public from launch and 
reentry hazards generated by guided and unguided missiles, missile 
intercepts, space launches and reentry vehicles. The RCC conducted 
extensive testing and analysis to address blunt force injuries that may 
result from falling inert debris. Based upon this information and human 
injury criteria, the RCC established threshold values that correlate to 
low probabilities of specific human injury levels. Section 6.2 of RCC 
321-07, for example, states ``the threshold criterion for protection 
against blunt trauma and crushing injuries is 11 ft-lbs impact kinetic 
energy.'' \66\ Section 6.2.1 of RCC 321-10 states, this criterion is 
designed to afford protection against injury levels of an Abbreviated 
Injury Scale (AIS) of level 3 or worse. This statement explains that 11 
ft-lbs is the appropriate standard for a ``low probability'' of an AIS 
level 3 injury. In addition, the standard is consistent with the use of 
11 ft-lbs as the threshold for casualties in commercial space launch 
safety analyses and with the ARC recommendation. The document further 
establishes 25 ft-lbs as a higher impact kinetic energy threshold for 
limiting fatalities due to blunt trauma. When modeling debris fragments 
and their impacts on unsheltered people, the RCC standard explains the 
impacts that transfer kinetic energy in the amount of 25 ft-lbs or less 
have a low probability of causing a fatality.
---------------------------------------------------------------------------

    \65\ RCC Range Safety Group, Common Risk Criteria Standards for 
National Test Ranges: Supplement 321-10 at sec. 1.3 (2010).
    \66\ RCC Range Safety Group, Common Risk Criteria Standards for 
National Test Ranges: Supplement 321-07 at sec. 6.2.a (2007).
---------------------------------------------------------------------------

    This research arose from criteria the RCC issued in 1999, which 
provided government and military Range Commanders a common approach to 
safety risk assessments.\67\ These documents refer to the impact 
kinetic energy data in RCC Document 321-00 as the basis for calculating 
the casualty expectation criteria for unmanned aircraft operations at 
national test ranges. Using the probability of fatality data developed 
in RCC 321-00, the RCC determined casualty expectation criteria with 
the same data the FAA uses in this proposed rule to establish the 
impact kinetic energy thresholds.
---------------------------------------------------------------------------

    \67\ RCC Range Safety Group, Range Safety Criteria for Unmanned 
Vehicles: Standard 323-99 (1999); see also Range Safety Criteria for 
Unmanned Vehicles--Rationale and Methodology Supplement (1999).
---------------------------------------------------------------------------

    Because the RCC impact kinetic energy thresholds are based on 
impacts from metallic fragments, the criteria does not take into 
account any potential loss of kinetic energy from non-rigid objects 
that can be shown to transfer only a portion of their total kinetic 
energy to person upon impact. The RCC thresholds presume all kinetic 
energy from a rigid object would transfer to a person upon impact. The 
ASSURE research, however, demonstrates that small UAS do not always 
impact a person or surface in the same manner that metallic fragments 
impact them.

[[Page 3874]]

The FAA proposal for using injury avoidance as a threshold, rather than 
an impact kinetic energy threshold alone, takes into account the 
disparity between impacts from metallic fragments and small unmanned 
aircraft. The performance-based standards the FAA proposes in this rule 
intend to encourage development of testing methodologies and other 
means of compliance that account for the transfer of kinetic energy 
that may occur upon impact from small unmanned aircraft.
    With regard to analyzing the transfer of energy, the FAA considers 
impact kinetic energy thresholds established in the RCC standards as 
instructive. The RCC based its thresholds primarily on the assumption 
that inert debris exists in rigid form. Because kinetic energy depends 
on weight and speed, the human injury models of the RCC report recorded 
data of impacting fragments for various weights, such as one, 10, or 80 
pounds. The resulting kinetic energy of these weights can be measured 
due to the changing velocity of the impacting fragments. For example, a 
lightweight unmanned aircraft flying at a certain speed could have the 
exact same impact kinetic energy as a heavier unmanned aircraft flying 
at a slower speed. Due to the variability in the kinematics of these 
systems, the FAA considers the transfer of this impact energy to be the 
determining factor for safe operations over people. For determining 
whether a means of compliance fulfills the safety levels the FAA 
proposes at Sec. Sec.  107.115(b)(1) and 107.120(b)(1), the FAA will 
consider long-held science on which the RCC standards are based, as 
well as other analytical models that may be relevant at the time of the 
FAA's analysis.
    Based on the foregoing, the FAA identified two existing impact 
kinetic energy thresholds that analyze public safety risk from 
commercial space launches, government space launches, and aircraft 
operations at national test ranges. The FAA concludes, based on the 
research cited above, that a small unmanned aircraft that transfers no 
more than 11 ft-lbs of kinetic energy to a person on impact would have 
a low probability of causing a casualty to that person. Therefore, the 
FAA considers this rule's proposed standard for Category 2 to consist 
of the limitation of the results, or injury, that arise from a transfer 
of 11 ft-lbs of kinetic energy from a rigid object upon impact. 
Similarly, the FAA proposes setting the standard for Category 3 as 
limiting the injury to that of an impact of 25 ft-lbs from a rigid 
object because a small unmanned aircraft that transfers no more than 25 
ft-lbs of kinetic energy to a person on impact would have a low 
probability of causing a fatality to that person. As discussed further 
below, the FAA also proposes standards for exposed rotating parts 
applicable to Categories 2 and 3 as well as operational restrictions 
for Category 3 operations.
(b) Measurements of Transfer of Energy
    With regard to energy transfer, the FAA proposes setting the safety 
level in this rule as the limitation of injuries caused by the total 
kinetic energy transferred from a rigid object to a person upon impact, 
rather than the impact kinetic energy per unit area. The FAA 
acknowledges the ARC recommended the FAA adopt a measurement of J/cm\2\ 
for the energy limitation aspect of this proposed rule, but declines to 
propose this measurement. This decision is the result of the fact that 
the contact area varies considerably, based on many factors (varying 
shapes of aircraft, size and positioning of the person, and so on). 
Further, the orientation of the aircraft at the time of impact will 
also greatly affect the contact area as well as the position of the 
person who is impacted. Impact kinetic energy thresholds alone consider 
neither the dimensions of the small unmanned aircraft nor the area of 
the small unmanned aircraft that makes contact with a person upon 
impact. Moreover, impact kinetic energy transferred to a person may 
result in blunt trauma injuries. Thresholds specified in units of 
energy per area, such as J/cm\2\, are used to measure the risk of non-
lacerating, or ``chunky penetration'' injuries, not blunt trauma 
injuries.\68\
---------------------------------------------------------------------------

    \68\ Impact kinetic energy per unit area, such as J/cm\2\ is the 
most appropriate means of measuring non-lacerating or ``chunky 
penetration'' injuries, not blunt trauma injuries. A4 Report at 83 
(Table 30, comparison of energy densities and related metrics for 
chunky penetration).
---------------------------------------------------------------------------

    Manufacturers or others who do not seek to use an industry 
consensus standard may also present a manner of measuring energy 
transfer the FAA deems acceptable, via a custom means of compliance. 
Once the FAA accepts a means of compliance for measuring the transfer 
of energy that accounts for mitigating factors, such as dissipation or 
absorption of post-impact kinetic energy by the small unmanned 
aircraft, the FAA would consider the means as fulfilling the 
performance-based requirements of Category 2 and 3, respectively. As 
described below, manufacturers would then take advantage of the 
accepted means of compliance by declaring a particular make and model 
of small UAS they have manufactured fulfills the appropriate standard 
by submitting a declaration of compliance.
    At present, no means of measuring exists to establish that a 
specific amount of energy equates with a likelihood of injury. 
Nevertheless, the FAA's adoption of a performance-based standard as a 
performance-based measurement should encourage development of various 
means of compliance to ensure small UAS do not present an unacceptable 
level of risk of injuring a person when operating over people. The FAA 
emphasizes further research is necessary on the subject of proper 
modeling of small unmanned aircraft impact physics as it correlates to 
human injury. From the variation of kinetic energy thresholds in the 
historical blunt trauma research, the FAA understands the rigidity of 
the small unmanned aircraft can have an effect on the impact dynamics, 
as seen when comparing small UAS data with rigid object data points. 
Additional research may suggest other ways of measuring injury that 
results from the transmission of energy upon impact.
    The FAA seeks comment on whether establishing an impact kinetic 
energy threshold and using kinetic energy transferred upon impact is 
the appropriate method to measure the potential injury a small unmanned 
aircraft could cause upon impact with a person.
(c) Reduction in Likelihood of Injury
    As noted above, the FAA uses the term ``safety level'' to refer to 
the limitation of injury severity caused by transfers of kinetic energy 
from a rigid object, exposed rotating parts, or safety defects. The FAA 
proposes to establish the safety levels set forth in Category 2 and 3 
based on a risk assessment that does not attempt to predict the precise 
types or probability of injuries. A chain of events must occur for a 
small UAS to cause an injury. A Category 2 operation resulting in a low 
probability of casualty and a Category 3 operation resulting in a low 
probability of fatality assumes a small UAS would experience a failure 
during an operation over people and that it would impact a person. A 
one hundred percent chance that each of these events would occur is 
impossible. Therefore, the probability of injury such thresholds would 
present is uncertain.
    This proposal also does not consider which part or section of a 
small unmanned aircraft impacts a person, but rather assumes the 
occurrence of the worst case in a typical failure mode. For example, 
the orientation of a small unmanned aircraft as it impacts a person 
might affect the amount of kinetic energy it transfers. Similarly, if

[[Page 3875]]

the arm of a small unmanned aircraft is bendable or breakable and comes 
into contact with a person, the full energy of the impact might not 
transfer to the person; therefore, that person may experience an injury 
of reduced severity. The FAA assumes that, to determine the maximum 
kinetic energy the small unmanned aircraft transfers upon impact with a 
person, the test would utilize the aircraft orientation likely to cause 
the most harm to the person. For example, the standard assumes the 
small unmanned aircraft would not impact the person at an angle or in a 
manner that curtails the fall of the small unmanned aircraft. The 
standard does not take into account these less hazardous orientations 
because a small unmanned aircraft's position at the time of impact with 
a person is unpredictable.
    In addition, the FAA is aware that different parts of the human 
body have different vulnerabilities depending on the weight of the 
impacting object. The 11 ft-lbs and 25 ft-lbs thresholds for Category 2 
and 3 consider these variations using data, analyses, and studies 
performed by the RCC. This threshold also considers these 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.
    The FAA seeks comment on methods, processes, or procedures used in 
the studies on which the FAA bases these proposed standards. In 
particular, the FAA invites comment on the costs associated with 
meeting these proposed standards, in light of such research. Collecting 
operational safety data for small UAS operations over people will 
assist in the FAA's evaluation of the effectiveness and continued 
applicability of the safety standards the agency proposes. The FAA also 
seeks comment on the need for a process, and the details of that 
process, to enable the FAA to reassess and possibly adjust the safety 
thresholds in this proposed rule based on such safety data. The FAA 
acknowledges the lack of certainty concerning failure rates and 
estimates of injury severity based on failures. The FAA seeks specific 
information regarding methods used to deal with such uncertainty.
(2) Exposed Rotating Parts
    Exposed rotating parts, which could cause lacerations or other 
serious injuries if these parts were to come into contact with a 
person, are a feature common to small UAS on the market today. Due to 
the hazards this feature can pose, the FAA has determined small UAS 
eligible for operations in Category 2 and 3 of this proposed rule must 
be designed such that they would not lacerate human skin upon impact 
with a person.
    The ARC recommended manufacturers limit the risk of injuries caused 
by exposed rotating parts because energy transfer requirements alone 
would not mitigate this risk sufficiently. The ARC stated the analysis 
of exposed rotating parts should ``focus on serious injury (level 3 or 
greater)'' without any distinction based on the category of operation. 
Although the ARC used the term ``exposed rotating parts'' to identify 
any rotating part that could cause an injury, the most common example 
of this on a small unmanned aircraft is a propeller. In a multi-rotor 
unmanned aircraft configuration, propellers are generally arranged 
symmetrically around the periphery of the unmanned aircraft. In a 
fixed-wing unmanned aircraft configuration, propellers are generally 
arranged in either a puller (propeller in front) or pusher (propeller 
in back) configuration. These propellers generally spin at high speeds, 
and could cause injuries, even if on small unmanned aircraft.
    The ASSURE study predicted that the severity of cutting or tearing 
injuries could be greater than impact injuries from existing rotorcraft 
designs on UAS.\69\ The study indicated blade tip speed, blade 
sharpness, and leading edge sharpness may all significantly affect the 
potential for laceration of human skin from UAS blades. The ASSURE 
study clarified that all propellers can lacerate skin. Based on this 
research, the FAA concludes any small UAS that conducts operations over 
people should not have exposed rotating parts capable of lacerating 
human skin upon impact with a person. Manufacturers would need to 
ensure the small UAS fulfills this standard using a means of compliance 
the FAA accepts. This requirement would not apply to operations of 
small UAS that occur pursuant to Category 1. The FAA invites public 
comment, however, on the issue of whether operations of small UAS 
eligible to operate pursuant to Category 1 should be subjected to a 
performance-based requirement for exposed rotating parts.
---------------------------------------------------------------------------

    \69\ A4 Report at 89.
---------------------------------------------------------------------------

    The FAA is aware that exposed rotating parts could be capable of 
injuries beyond just lacerations. For example, injuries to hair, teeth 
or eyes, rather than skin, may occur. The FAA, however, considered 
carefully the proposed limitation on exposed rotating parts that could 
lacerate human skin and determined the prohibition on skin lacerations, 
combined with the limitation on transfer of kinetic energy on impact 
and prohibition of safety defects, will mitigate the risk of injuries 
that may not involve skin. Moreover, the FAA is keenly aware that 
permanently disfiguring injuries could result from lacerations of 
skin.\70\ As a result, and based on the ASSURE research that 
highlighted the concern that exposed rotating parts present, the FAA 
proposes a general prohibition on such parts that could lacerate skin.
---------------------------------------------------------------------------

    \70\ In this regard, the FAA's decision to ensure protection of 
skin from lacerating injuries is similar to the logic the National 
Highway Traffic Safety Administration employs. See Federal Motor 
Vehicle Safety Standards: Glazing Materials, 65 FR 44710, 44711 
(July 19, 2000) (explaining NHTSA's decision to assess whether 
``advanced glazings'' are more likely to cause lacerations than 
``current glass,'' and stating, ``[a]lthough facial lacerations 
injuries are relatively minor (AIS 1 or 2), they . . . can be 
disfiguring'').
---------------------------------------------------------------------------

    This proposal is the result of the agency's determination that any 
allowance for serious injury from exposed rotating parts would have a 
compounding effect and would add to the overall level of risk for 
Category 2 and 3 operations. The FAA concluded that this proposed 
standard of prohibiting lacerations of human skin would maintain the 
risk posed by Category 2 operations as a low probability of causing a 
casualty, and Category 3 operations as a low probability of causing a 
fatality. As described below, manufacturers would fulfill this standard 
by either providing descriptions of their test methodology and test 
data; analyses with substantiating data; or inspection information.
    A manufacturer may establish it has fulfilled the limitation on 
exposed rotating parts by ensuring the small unmanned aircraft simply 
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, and the 
aircraft would satisfy this proposed requirement. The FAA may require 
testing and analysis to conclude the rotating parts could not become 
exposed as a result of an impact with a person. For example, if the 
forces on the small unmanned aircraft during an impact with a person 
could cause structural failures that result in the rotating parts 
becoming exposed, then that design would not achieve the requisite 
safety level of this proposed rule. The FAA seeks comment on other

[[Page 3876]]

means of compliance it could include in a final rule.
5. Means of Compliance
    This rule proposes several performance-based requirements that 
would accommodate varying means of compliance. In this manner, the FAA 
would build flexibility into the regulations, which would allow the 
regulatory scheme to progress alongside the fast pace of small UAS 
innovation and development. Additionally, this rule would establish a 
process by which the FAA could expedite the acceptance of voluntary 
consensus standards as means of compliance with requirements related to 
impact kinetic energy and exposed rotating parts. This proposal would 
align with the direction of the Office of Management and Budget (OMB) 
Circular A-119, which favors the use of performance-based regulations 
and voluntary consensus standards. The FAA proposes to accept both 
voluntary consensus standards and non-consensus standards as means of 
compliance with the proposed performance-based requirements.
    Given the current absence of voluntary consensus standards that 
could apply to operating small unmanned aircraft over people, the FAA 
is proposing one means of compliance for each proposed performance-
based standard for operations over people, to allow interested 
stakeholders to begin demonstrating compliance as soon as this rule 
goes into effect. Additionally, the FAA is proposing a process by which 
it would approve additional means of compliance. A voluntary consensus 
standards body, an industry, a manufacturer, or an individual may 
develop these means of compliance. Each means of compliance, including 
the FAA's proposed means, would constitute one way, but not the only 
way, to satisfy the proposed performance-based standards. The FAA would 
consider other means of compliance as entities or individuals develop 
and submit them to the FAA for review.
(a) Establishing Compliance
    The FAA proposes to require a manufacturer producing a small UAS 
eligible for Category 2 or 3 operations to establish compliance with 
the proposed safety level by using a means of compliance the FAA has 
accepted. A manufacturer would then declare on its Declaration of 
Compliance what means of compliance, or combination of them, it used. 
This proposal sets forth three ways of establishing compliance: (1) The 
FAA-proposed means of compliance, discussed in this preamble; (2) an 
FAA-accepted means of compliance developed by a voluntary consensus 
standards body; and (3) an FAA-accepted custom means of compliance 
developed independent of either the FAA or a voluntary consensus 
standards body. A custom means of compliance would require more 
extensive review by the FAA than a means of compliance developed by a 
voluntary consensus standards body.
(1) FAA-Provided Means of Compliance
    Under this proposed rule, any person may establish compliance with 
the applicable safety levels the FAA proposes in this rule in a variety 
of ways. The FAA must affirmatively accept the means of compliance 
before a manufacturer can rely upon it to demonstrate compliance. 
Because no means of compliance currently exist to address the 
requirements this rule proposes, the FAA proposes one means of 
compliance it would accept immediately, to allow manufacturers to 
demonstrate their small UAS would fulfill the level of safety the FAA 
proposes in this rule for operations over people. Section IV.B.5.c) 
provides a description of this means of compliance. The FAA may provide 
additional FAA-accepted means of compliance based on future research.
(2) Voluntary Consensus Standards Body Means of Compliance
    A voluntary consensus standards body develops standards that 
incorporate openness, balance, due process, appeals process and 
consensus. These characteristics also necessarily result in voluntary 
consensus standards being peer reviewed. Because voluntary consensus 
standards bodies are composed of a wide selection of industry 
participants, and often include FAA participation, the FAA expects its 
review of a means of compliance developed by a voluntary consensus 
standards body to be more expeditious than a custom means of compliance 
developed in the absence of a voluntary consensus standards body.
    The FAA has an extensive history of working with voluntary 
consensus standards bodies such as RTCA, ASTM International, Society of 
Automotive Engineers (SAE), and Institute of Electrical and Electronics 
Engineers (IEEE). In accordance with the ARC recommendation to use 
industry consensus standards for small UAS, and with the precedent 
already set for general aviation aircraft, the FAA anticipates 
voluntary consensus standards bodies to take the lead in offering means 
of compliance for FAA review.
(3) Custom Means of Compliance
    The FAA proposes that a manufacturer or other person may propose a 
custom means of compliance to fulfill the safety level set forth in 
this proposed rule's impact kinetic energy or exposed rotating parts 
standards. As discussed further in this section, a custom means of 
compliance would be subject to a more comprehensive review than a means 
of compliance submitted by a voluntary consensus standards body. If a 
person proposes an alternate means of compliance to the impact kinetic 
energy or exposed rotating parts requirements in the rule, or an 
alternate method to any FAA-accepted means of compliance, the FAA would 
evaluate the means of compliance on a case-by-case basis. A custom 
means of compliance would need to set forth a manner by which an 
applicant could comply with the impact kinetic energy and exposed 
rotating parts standards of Sec.  107.115(b)(1) or Sec.  107.120(b)(1), 
as applicable.
    Applicants should consider carefully the additional time and effort 
that could be necessary to coordinate a new or alternate means of 
compliance when scheduling their projects. FAA coordination may require 
the efforts of FAA technical specialists, Chief Scientific Technical 
Advisors, and other government agencies. The use of existing FAA-
accepted means of compliance would be more expeditious because the FAA 
has already reviewed them. Not all developers of custom means of 
compliance would be manufacturers who submit a Declaration of 
Compliance. The FAA, therefore, would provide a process by which an 
applicant could submit a custom means of compliance for FAA review 
separate from submitting a Declaration of Compliance. This process is 
described in further detail in Advisory Circular 107-2.
    When reviewing a custom means of compliance, the FAA would utilize 
a comprehensive set of criteria. To demonstrate compliance with the 
impact kinetic energy or exposed rotating parts requirements, the FAA 
would determine whether the applicant has shown compliance by testing, 
analysis, or inspection that demonstrates the manufacturer has met the 
appropriate level of safety provided in the proposed standards. The FAA 
would also determine whether the custom tests or analyses are performed 
in accordance with accepted methods used by the medical industry, 
consumer safety groups, or other peer-reviewed test methods. In 
addition, the FAA would determine whether the proposed

[[Page 3877]]

means of compliance required unreasonable skill on behalf of the remote 
pilot in command or incorporation of mitigations to meet the standards. 
Lastly, the FAA would determine whether the means of compliance 
addressed design features such as deployable devices, parachutes, or 
other features. Those additional features would require the FAA's 
review to determine whether they assist in achieving an acceptable 
means of compliance when those features function as intended.
    The FAA's proposed regulatory text in Sec.  107.125 of this rule 
sets forth the information the FAA must receive in determining whether 
to accept the means of compliance. This information would ensure FAA 
oversight at a level that is appropriate for the risk operations of 
small UAS over people present. In addition, the model for ensuring 
compliance that the FAA proposes in this rule would also permit the 
FAA's adoption of an industry consensus standard that fulfills the 
applicable standard.
(b) Submittal and FAA Acceptance of Means of Compliance
    As described previously, manufacturers or industry stakeholders may 
establish compliance in a variety of different ways; however, the FAA 
must affirmatively accept the means of compliance before the 
manufacturer can rely on it for self-certification.
    Any person may submit a means of compliance to the FAA for review. 
To submit a means of compliance, a person would be required to identify 
whether the manufacturer achieves compliance by way of test, analysis 
or inspection, and provide a detailed description of the means of 
compliance that establishes exactly how the testing, analysis, or 
inspection fulfills the safety level set forth in the standards of 
Sec.  107.115(b)(1) or Sec.  107.120(b)(1). The rule proposes requiring 
any person who submits such a custom means of compliance to provide any 
substantiating data, studies, information, or the like to explain 
precisely how their proposed means of compliance achieves the safety 
level that the standards of Sec.  107.115(b)(1) or Sec.  107.120(b)(1) 
represent. For example, if a manufacturer would achieve compliance by 
conducting testing, then the manufacturer's request for the FAA's 
acceptance of the means of compliance should include test procedures 
that outline the test methodology, an analysis to support the 
equivalency of the testing to the safety level identified in Sec.  
107.115(b)(1) or Sec.  107.120(b)(1), and all substantiating data that 
supports the test, methods, results, and conclusions. On the other 
hand, if a manufacturer seeks to achieve compliance by analysis, then 
the manufacturer should submit the standard to which the manufacturer 
compared his or her specific model of small unmanned aircraft and 
explain how the data and interpretation of it establishes that the 
manufacturer fulfills the applicable standard. For example, if the 
manufacturer has a simulation with modeling of the impact dynamics that 
the FAA has validated, then the FAA would evaluate the analysis that 
utilizes the impact dynamics data to confirm that the analysis 
establishes fulfillment of the standard. In sum, anyone may submit a 
variety of types of means of compliance using testing, analyses, 
inspections, or any combination of them, in seeking the FAA's 
acceptance of their means of compliance. As described previously, the 
FAA would more closely scrutinize custom means of compliance not 
submitted by a voluntary consensus standards body.
    The FAA would 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 sending a letter to the 
applicant accepting the proposed means of compliance. If a manufacturer 
referred to a custom means of compliance on its Declaration of 
Compliance, FAA acceptance of that Declaration of Compliance would also 
indicate acceptance of the custom means of compliance.
    Once the FAA has accepted a custom means of compliance, the FAA 
would consider it as equally valid as a voluntary consensus standard 
that the FAA had accepted. If the FAA did not accept a custom means of 
compliance, the FAA would notify the applicant of the rationale for its 
decision and would reject any associated Declarations of Compliance 
that rely on that particular custom means of compliance. For both 
custom means of compliance and voluntary consensus standards, the FAA 
could rescind a previously accepted 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.
(c) Types of Means of Compliance
    This proposal provides latitude for people who request acceptance 
of a means of compliance to show compliance by testing, analyses, 
inspections, or any combination of the three. In all proposed means of 
compliance cases, the FAA would review data based on the worst-case 
scenario of a typical failure of the small unmanned aircraft. The 
applications for approval of proposed means of compliance that include 
data and relevant information regarding a reasonably foreseeable worst-
case scenario will facilitate the most straightforward, efficient type 
of review from the FAA. In general, the FAA expects the amount of 
information needed to justify the proposed means of compliance will be 
proportionate to the complexity of factors relevant to both common and 
worst-case scenarios.
(1) Tests
    Anyone may submit test data to show their small UAS fulfills the 
safety level the FAA proposes in this rule. The description below 
describes tests used for both a pre-accepted means of compliance based 
solely on the impact kinetic energy measurement, as well as tests used 
for an alternate means of compliance.
(a) Impact Kinetic Energy Transfer
    As explained below, this proposed rule includes one potential means 
of compliance that manufacturers may use to declare compliance. For all 
potential means of compliance, the FAA expects manufacturers, during 
their testing, to install or enable any mechanisms that could affect 
the transfer of kinetic energy upon impact. For example, manufacturers 
must employ any systems that could limit the velocity of the small 
unmanned aircraft upon which the means of compliance relies. In such 
cases, the manufacturer should provide information on the proper use of 
those systems or equipment, as well as any restrictions, in the remote 
pilot operating instructions, as discussed in section IV.B.9.
    The FAA anticipates a person who seeks to comply via a custom means 
of compliance would implement these types of systems or equipment 
through hardware, software, or a combination of both. If an operator 
can operate the small UAS regardless of whether these systems or 
equipment are enabled or installed, such as in a variable-mode small 
UAS, then the manufacturer should provide information in the remote 
pilot operating instructions to ensure remote pilots in command 
understand any restrictions or limitations associated with the 
different modes.
Pre-Accepted Means of Compliance
    One means, but not the only means, of complying with the proposed 
limitation with regard to the transfer of kinetic energy upon impact 
would entail a manufacturer's calculation of kinetic energy transferred 
when a small

[[Page 3878]]

unmanned aircraft impacts a person. This type of means of compliance 
would not account for impact dynamics or other factors, but consists of 
using only the formula the FAA describes to measure kinetic energy upon 
impact. Use of this formula alone would establish the small unmanned 
aircraft fulfills one of the standards described above because 11 ft-
lbs (for Category 2 operations) and 25 ft-lbs (for Category 3 
operations) are thresholds that establish low probability of occurrence 
of a casualty or fatality would exist, respectively.
    This pre-accepted means of compliance would be based on the maximum 
performance capabilities of a small unmanned aircraft during a typical 
failure mode. To test a small unmanned aircraft using this means of 
compliance, a manufacturer would first determine the maximum forward 
airspeed that the small unmanned aircraft may attain at full power in 
level flight during typical environmental conditions. The manufacturer 
would use a reliable and accurate airspeed measurement method. For 
example, a manufacturer could measure the maximum speed using a GPS 
groundspeed indicator, a radar gun, or tape measure and stop watch. 
Next, the manufacturer would determine the ground impact speed 
resulting from an unpowered free-fall from the highest altitude the 
small UAS is capable of attaining at full power. The ground impact 
speed could be determined by performing a drop test from the altitude 
determined in the previous step using a reliable and accurate vertical 
speed measurement method under typical environmental conditions.\71\
---------------------------------------------------------------------------

    \71\ Small unmanned aircraft operated under part 107 may not 
exceed the speed limitations in part 107 unless authorized under a 
Certificate of Waiver or an exemption. See 14 CFR 107.51(a) (stating 
the ground speed of the small unmanned aircraft may not exceed 87 
knots (100 miles per hour)) and Sec.  107.205 (listing Sec.  
107.51(a) as a provision that is subject to waiver).
---------------------------------------------------------------------------

    If a manufacturer determines it is unreasonable to perform a drop 
test from the highest attainable altitude, then the manufacturer may 
perform a drop test from a lower altitude sufficient to determine the 
small unmanned aircraft free-fall aerodynamic characteristics, such as 
the coefficient of drag, to calculate accurately the ground impact 
speed from a free-fall from the highest attainable altitude. The 
substantiating data the manufacturer would submit would include 
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.
    The above tests account for speeds a small unmanned aircraft could 
reach prior to or during a typical failure mode, such as losing power 
and falling with both a vertical and horizontal speed component. The 
tests do not take into account small UAS failure modes or pilot actions 
that would cause the small unmanned aircraft to exceed the speeds 
determined in the previous steps. One example is a powered descent in 
which the ground impact speed of the small unmanned aircraft exceeds 
its unpowered free-fall ground impact speed. The FAA assumes these 
types of failure modes or pilot actions are not typical, and while 
possible, have a low likelihood of occurring. If a manufacturer 
determines these types of failure modes or pilot actions could 
typically occur and result in speeds greater than those determined in 
the previous steps, then the manufacturer should use higher speeds to 
determine the maximum impact kinetic energy.
    Once the manufacturer determines the maximum speeds associated with 
a horizontal and vertical impact, the manufacturer would ascertain the 
highest combination of these speeds that he or she could achieve as a 
result of a reasonably foreseeable failure. These conclusions would 
lead to the manufacturer's determination of the maximum impact kinetic 
energy. In such a case, the manufacturer should use the highest 
combination of horizontal and vertical impact speeds unless he or she 
can show the highest combination is not possible in a reasonably 
foreseeable failure and another combination is therefore more 
appropriate. The manufacturer should assess reasonably foreseeable 
failures caused by system or equipment loss of function or malfunction 
as well as those that pilot error could cause.
    To calculate the impact kinetic energy, manufacturers would use the 
following equation:

    KEimpact = 0.0155 * w * v\2\

Where KEimpact is the maximum impact kinetic energy in ft-
lbs, w is the weight of the small unmanned aircraft measured in pounds, 
and v is the maximum impact speed measured in feet per second (ft/
s).\72\
---------------------------------------------------------------------------

    \72\ The FAA used the constant 0.0155 in order to allow a person 
to plug in the weight, rather than the mass, of a small unmanned 
aircraft. Using the following equations, KE = \1/2\ 
*mass*velocity\2\ and mass= weight/gravity, the FAA determined that, 
in English units, KE = \1/2\ * weight/32.17 * velocity\2\ and KE = 
\1/2\ * (1/32.17) *weight* velocity\2\ therefore KE = 0.0155 * 
weight * velocity\2\. Note that 32.17 is the gravitational constant 
measured in English units.
---------------------------------------------------------------------------

    For example, a small UAS that weighs 1.0 pound and has a maximum 
impact speed of 26 ft/s has a maximum impact kinetic energy of:

KEimpact = 0.0155 * 1.0 * (26) \2\ = 10.5 ft-lbs

    Similarly, a small UAS that weighs 1.0 pound and has a maximum 
impact speed of 40 ft/s has an impact kinetic energy of:

KEimpact = 0.0155 * 1.0 * (40) \2\ = 24.8 ft-lbs

    Utilizing the formula KEimpact = 0.0155 * w * v \2\, the 
two tables below provide examples of maximum impact speeds, rounded to 
whole numbers, associated with the impact kinetic energy thresholds of 
the different categories and the weight of the small unmanned aircraft. 
One table provides speeds in feet per second and the other table 
provides speeds in miles per hour. Manufacturers could use these tables 
when following this proposed means of compliance based on the maximum 
performance of a small UAS. These tables do not consider any energy-
absorbing characteristics of a small unmanned aircraft that may reduce 
the amount of energy transferred to a person during an impact.
---------------------------------------------------------------------------

    \73\ The values provided in Tables 4 and 5 are based on the 
factors summarized in footnote 75.

  Table 4--Maximum Impact Speeds (ft/sec) for a Given Weight and Impact
                           Kinetic Energy \73\
------------------------------------------------------------------------
                                                 Maximum speed (ft/sec)
                                               -------------------------
                 Weight (lbs)                    Category 2   Category 3
                                                (11 ft-lbs)  (25 ft-lbs)
------------------------------------------------------------------------
1.0...........................................           26           40
1.5...........................................           22           33
2.0...........................................           19           28
2.5...........................................           17           25
3.0...........................................           15           23
------------------------------------------------------------------------


   Table 5--Maximum Impact Speeds (mph) for a Given Weight and Impact
                             Kinetic Energy
------------------------------------------------------------------------
                                                   Maximum speed (mph)
                                               -------------------------
                 Weight (lbs)                    Category 2   Category 3
                                                (11 ft-lbs)  (25 ft-lbs)
------------------------------------------------------------------------
1.0...........................................           18           27
1.5...........................................           15           22
2.0...........................................           13           19
2.5...........................................           11           17
3.0...........................................           10           16
------------------------------------------------------------------------

    This proposed means of compliance does not account for the use or 
testing of design features such as parachutes, ballistic recovery 
systems, or other deployable devices that, once deployed,

[[Page 3879]]

create drag to reduce the maximum impact speed. The discussion below, 
concerning custom means of compliance, addresses the potential use of 
such design features.
    As discussed in section IV.B.7.b), if a remote pilot in command or 
other person modified a small unmanned aircraft in a manner that 
increases its maximum speed or weight beyond what is identified in the 
remote pilot operating instructions, then the small unmanned aircraft 
would no longer fulfill the safety level set forth at Sec.  
107.115(b)(1)(i) or Sec.  107.120(b)(1)(i). To conduct operations over 
people, a manufacturer would have to verify that the modifications 
satisfied the impact kinetic energy requirements by re-testing and 
submitting a new Declaration of Compliance for the modified small UAS.
Custom Means of Compliance
    Under this proposal, any person may propose a custom means of 
compliance showing the small unmanned aircraft achieves the safety 
level the FAA proposes in Sec.  107.115(b)(1) or Sec.  107.120(b)(1). 
At the time of this proposal, the FAA has not identified a means 
available to determine the actual amount of kinetic energy that is 
transferred upon impact with a person. Nevertheless, research into this 
area is ongoing. Taking advantage of the opportunity to employ a 
customized solution that ensures compliance with the safety levels set 
forth in Sec. Sec.  107.115(b)(1) and 107.120(b)(1), the manufacturer 
would request the FAA's acceptance of a means of compliance that 
establishes how the manufacturer has made this determination.
    The 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. The FAA's proposed means of compliance described 
above does not take into account the effect of these aspects during an 
impact with a person, because it assumes that the total kinetic energy 
of the small unmanned aircraft would be transferred to the person upon 
impact. In reality, however, the small unmanned aircraft may transfer 
much less energy. 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. Under these 
circumstances, a manufacturer may wish to 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. In this regard, some small UAS manufacturers may 
seek to use design features such as parachutes or other deployable 
devices to establish that a reduced amount of transferred energy exists 
for their small unmanned aircraft. Such design features would require 
the FAA's review to determine whether they assist in achieving an 
acceptable means of compliance if the small UAS is reliant on the 
proper functioning of these features.
    The means of compliance discussed in the preceding paragraphs 
should not be confused with the Declaration of Compliance discussed in 
Section IV.B.7.b), below. The testing or analysis conducted to 
determine the maximum kinetic energy that a small unmanned aircraft 
could transfer to a person upon impact during a typical failure 
scenario would be the actual means of compliance under this rule. The 
Declaration of Compliance would be the ``evidence'' or ``artifact'' 
that is the final step in demonstrating to the FAA that the small UAS 
is in compliance with this proposed rule.
(b) Exposed Rotating Parts
    Anyone who seeks approval of a means of compliance may establish, 
using test descriptions, results, and data, that a small unmanned 
aircraft does not contain any rotating parts that could cause 
lacerations of human skin. An industry consensus organization could 
develop a standard for small unmanned aircraft that have rotating parts 
that are protected by safety features, such as propeller guards. The 
standard could require testing to support the determination that the 
protective safety features accomplish their intended function of 
preventing rotating parts from contacting a person during an impact. If 
the manufacturer has tested those safety features and established they 
would remain intact during an impact, this could be one means of 
demonstrating that exposed rotating parts would not be capable of 
lacerating human skin. If a small unmanned aircraft has rotating parts 
that are exposed without any protective safety features, this rule 
proposes to permit manufacturers or others to show through testing, 
analysis or inspection that the rotating parts are not capable of 
lacerating human skin upon impact with a person. Manufacturers or 
others who seek to obtain approval of a means of compliance could 
submit testing results and data that consider the size, shape, 
rotational speed, material, and orientation of the rotating parts, and 
concludes that these parts could not cause lacerations under any impact 
scenarios.
    The more sophisticated or complex the materials or design of the 
small unmanned aircraft, the more sophisticated the analysis or testing 
should be. If a small unmanned aircraft had propellers made out of 
soft, flexible material, a manufacturer would likely not need to employ 
a means of compliance that had used a sophisticated analysis or testing 
to demonstrate that the exposed rotating parts are not capable of 
causing a laceration. However, if a manufacturer chooses to design a 
small unmanned aircraft with exposed propellers that have sharp leading 
edges, are made of a rigid material such as a carbon fiber composite 
and are driven by high torque motors, that manufacturer would likely 
have to perform a more sophisticated analysis or testing to demonstrate 
that the propellers are not capable of lacerating human skin upon 
impact with a person.
    Tests and associated data could also consist of utilizing exposed 
rotating propellers at maximum revolutions per minute (RPM) and 
contacting a medium that accurately represents human skin to establish 
the propeller would not lacerate human skin. Similarly, for shrouded 
propellers, such a test would establish that the propellers, while 
turning, would not lacerate human skin. This test would establish the 
effectiveness of the shroud or covering in a dynamic impact scenario. 
Such a test may consist of a drop test or test using a pendulum to show 
the shrouds remain effective when the propeller did not lacerate the 
medium that represents human skin.
    Further, in the exemplar test described above, the test data 
manufacturers or others submit would likely require a description of 
the skin media used to determine that the shrouded propellers did not 
lacerate human skin. Research that has led to the development of 
standards and analyses on the subject of laceration injuries includes 
the use of media such as a medium that is 10 percent gelatin,\74\ a

[[Page 3880]]

pig cadaver,\75\ plasticine,\76\ and a medium that may include chamois, 
among other components.\77\ In this rulemaking, the FAA does not 
endorse any of the aforementioned media as substitutions for human 
skin. Rather, a manufacturer or industry consensus group that seeks 
acceptance from the FAA of a means of compliance for establishing 
exposed rotating parts would not lacerate human skin may provide test 
data, analyses, or information that employs one of the above media, or 
another medium. The FAA would review the entire submission of 
information in order to determine whether the agency will accept the 
potential means of compliance.
---------------------------------------------------------------------------

    \74\ Nicholas and Welsch, Ballistic Gelatin 2, Pennsylvania 
State University Applied Research Laboratory, (2004), available at 
http://www.firearmsid.com/Gelatin/Ballistic%20Gelatin%20Report.pdf.
    \75\ Sullivan et al, The Pig as a Model for Human Wound Healing, 
The International Journal of Tissue Repair and Regeneration (2001); 
Simon and Maibach, The Pig as an Experimental Animal Model of 
Percutaneous Permeation in Man: Qualitative and Quantitative 
Observations An Overview, Skin Pharmacology and Physiology 13.5 at 
229-34 (2000).
    \76\ R[ouml]hrich et al, Skin Injury Model Classification Based 
on Shape Vector Analysis, BMC Medical Imaging (2012), available at 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3599354/.
    \77\ Bir, et al., Skin Penetration Surrogate for the Evaluation 
of Less Lethal Kinetic Energy Munitions, 220 Forensic Science 
International 126, 127 (2012), available at http://www.sciencedirect.com/science/article/pii/S0379073812000801?via%3Dihub.
---------------------------------------------------------------------------

(2) Analysis
    A person may submit means of compliance that consist of analyses to 
establish they have achieved the level of safety set forth in Sec.  
107.115(b)(1) or Sec.  107.120(b)(1). In general, the FAA envisions 
many proposed means of compliance could employ computer modeling 
analysis to comply with the energy transfer standard or the exposed 
rotating parts standard.
(a) Impact Kinetic Energy Transfer
    A proposed means of compliance may involve the use of analyses to 
predict the amount of kinetic energy transferred upon impact with a 
person. For example, a person who submits a means of compliance for 
acceptance may seek to incorporate the aerodynamic effects (including 
drag) of the small unmanned aircraft in a dynamic model of impact with 
a person. The person could utilize computational fluid dynamics (CFD) 
and finite element modeling (FEM) into the simulation. Such a 
simulation would analyze the aerodynamic properties of the 
aircraft.\78\ The model would calculate the interaction of the geometry 
of the object in a flow field of the medium. Further, the model may 
also simulate the dynamic interaction of the aircraft structure with a 
validated model of a person to calculate the amount of kinetic energy 
that is transferred.
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    \78\ CFD, as used in the example above, refers to a simulation 
that incorporates Navier-Stokes equations in a mathematical and 
computational program that utilizes a multi-dimensional model of an 
object. Constantin and Fioas. Navier-Stokes Equations. Univ. of 
Chicago (1988).
---------------------------------------------------------------------------

    The person who seeks FAA acceptance of the means of compliance 
would need to document the justification by including any analysis or 
validation testing. Such records should establish validity of the 
aerodynamic modeling as well as any other modeling techniques used in 
the computation of impact kinetic energy values. Therefore, in 
evaluating the proposed means of compliance based on analysis, the FAA 
would expect submission of a full description of the process and an 
explanation of the precise effect of the aerodynamic or other 
characteristics that influence the flight envelope in which the small 
unmanned aircraft operates. As with all proposed custom means of 
compliance, the FAA would expect to evaluate information and data 
concerning the worst-case scenario of a typical failure, combined with 
mean data that depicts common scenarios within the aircraft's flight 
envelope.
(b) Exposed Rotating Parts
    A person may also choose to confirm that exposed rotating parts on 
the small unmanned aircraft they have manufactured would not lacerate 
human skin by submitting analysis. Such analysis could include verified 
data from relatable studies that models the small unmanned aircraft's 
propellers at a maximum RPM, and the material choice of the propeller 
and strength characteristics of an average human's skin in an FEM 
simulation,\79\ and performs a finite element analysis (FEA) \80\ to 
determine the laceration characteristics of the propeller. In such a 
case, the FAA would expect the justification related to this method to 
explain the rationale for concluding that the use of the previously 
accepted data and FEA methodology is appropriate for the small UAS 
design at issue.
---------------------------------------------------------------------------

    \79\ FEM, as used in the example above, refers to the 
utilization of multi-dimensional model of an object that subdivides 
the model into smaller components with attached algebraic equations 
to help represent complex geometry and the dynamics associated to 
such geometry during simulated stresses or impacts.
    \80\ FEA, as used in this example, is a numerical analysis of a 
system to simulate the impact dynamic reaction when developed with 
the material and design characteristics of the small unmanned 
aircraft and surrounding objects that are relevant to the analysis. 
Manufacturers may use FEA in computer modeling by using boundary 
value problems for partial differential equations and variation 
methods from calculus disparities to approximate a solution using 
algebraic equations attached to small, subdivided pieces of the 
model and by minimizing an associated error function.
---------------------------------------------------------------------------

(3) Inspection
    Manufacturers may also opt to confirm that the small UAS they have 
manufactured would fulfill the safety level set forth in this proposed 
rule by submitting information based on inspection. The FAA would 
expect a full description of the inspection and the results or 
conclusions from that inspection in order to accept the means of 
compliance. Often, manufacturers may use the inspection option when a 
small UAS has undergone modifications.
(a) Impact Kinetic Energy Transfer
    For purposes of establishing that the kinetic energy a small 
unmanned aircraft transfers upon impact does not exceed the applicable 
standard, a manufacturer may submit records to establish the 
manufacturer has performed an inspection verifying that the small UAS 
adheres to the standard. For example, a small UAS model the FAA has 
previously determined fulfills the standard may continue to do so after 
a modification when the manufacturer has simply replaced a part on the 
small unmanned aircraft that weighs less than the original part. The 
manufacturer would provide justification to verify the new part does 
not alter the small unmanned aircraft such that it would increase the 
kinetic energy the small unmanned aircraft transfers upon impact. In 
this example, the manufacturer would present information to establish 
that the overall weight and structure of the small unmanned aircraft 
did not change to render it out of compliance with the applicable 
standard regarding energy transfer.
(b) Exposed Rotating Parts
    In addition, a manufacturer's design with propeller blade guards to 
fulfill the prohibition on exposed rotating parts may lend itself to a 
verification of the means of compliance by way of inspection. For 
example, a manufacturer with a previously accepted means of compliance 
who wishes to replace or upgrade propellers could do so with a 
propeller design of the same size, fit and weight that has fulfilled 
the previously accepted means of compliance, and thus demonstrate 
compliance through inspection means and not need to retest or perform 
another analysis. When the manufacturer has completed previous tests 
the FAA had verified demonstrated the effectiveness of blade guards, 
the Administrator may presume

[[Page 3881]]

replacement of propellers would not have an effect on the function of 
the guard to prevent laceration.
6. Aircraft with Variable Modes and Configurations
    Although this rule proposes three distinct categories of operations 
over people, the FAA proposes to allow small UAS to be configured to 
conduct operations within more than one category. For example, an 
aircraft may be designed in such a way that it would be qualified to 
conduct Category 2 operations in one mode or configuration, and 
Category 3 operations in another mode or configuration. Alternatively, 
a small UAS could meet the requirements to operate over people in one 
mode or configuration, but not in another. For example, an aircraft 
could operate within the restrictions of an operation over people, but 
could also operate using higher performance characteristics when not 
operating over people.
    To transition between various modes or configurations, a 
manufacturer may choose to use a variety of methods, such as software-
enabled performance limitations including altitude or groundspeed 
limitations, hardware configurations, or any combination thereof. Using 
different modes or configurations, a manufacturer could design a small 
UAS to meet the performance capabilities of multiple categories of 
operations over people. Additionally, a manufacturer could design a 
small UAS that has removable propeller guards or cages that would need 
to be installed for operations over people but could be removed when 
not operating over people.
    The design of a small UAS should not permit a remote pilot to 
change the mode or configuration inadvertently. Regardless of whether 
the method of transitioning between various modes or configurations 
involves software or control station selections, a change of mode or 
configuration must result only from a deliberate action on the part of 
the remote pilot in command. For example, a remote pilot in command 
could be required to enter a passcode that would intentionally alter 
the mode of operation, thereby switching the category of operation for 
the aircraft.
    To test a small UAS with multiple modes or configurations, a 
manufacturer should test the small UAS in the mode or configuration 
that allows the small UAS to meet the requirements for the category to 
which a manufacturer wishes to declare compliance. If a small UAS could 
meet the requirements for operations in both Category 2 and Category 3 
based on the mode or configuration in which the small UAS is operated, 
then the manufacturer must submit to the FAA a Declaration of 
Compliance that includes each category for which the manufacturer has 
tested or analyzed the small UAS.
    The FAA seeks comment on the need for means of compliance that 
address incorporation of software, including software updates or 
changes, to enable performance limitations, variable modes, or variable 
configurations to meet the safety level proposed in this rule. The FAA 
also seeks comment on how the FAA should review an acceptable 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 the small UAS performance to meet the safety level 
proposed in this rule.
7. Declaring Compliance
    The FAA agrees with the ARC recommendation that self-certification 
is the appropriate method for manufacturers to declare compliance with 
a performance standard. Self-certification, combined with the FAA's 
determination that the means of compliance the manufacturer has used is 
acceptable, will ensure the small UAS meets the appropriate safety 
level the FAA proposes in this rule. In addition, the FAA's other 
proposed measures for overseeing manufacturers, as described in section 
IV.B.12, below, would result in a level of oversight and accountability 
the FAA has determined is appropriate for manufacturers of small UAS 
that certify eligibility to operate over people in accordance with this 
proposed rule.
(a) Applicability to Manufacturers
    In this proposed rule, the FAA would consider a manufacturer to be 
any person or entity that designs, produces, or modifies a small UAS 
that is eligible to operate over people within the United States under 
part 107. The FAA expects the most common form of manufacturer under 
this proposed rule would be an entity that produces and sells a 
complete and operable small UAS.
    Additionally, an entity that sells a kit that contains all the 
components and parts from which to build an operable small UAS would be 
considered a manufacturer. The kit would contain all the components 
necessary to build the small UAS and would not require the owner to 
purchase any additional materials to meet the requirements of this 
proposed rule. A kit manufacturer would be required to test the 
assembled, completed small UAS, rather than its component parts, to 
demonstrate the small UAS satisfies the standard for Category 2 or 3 
operations.
    A person who builds a small UAS from parts not provided as a kit 
would also be a manufacturer under this proposal. For example, anyone 
may purchase the component parts of a small UAS separately and build 
small UAS themselves. The FAA would consider such a person to be a 
manufacturer, and would require submission of a Declaration of 
Compliance regarding the eligibility of the small UAS to conduct 
Category 2 or 3 operations.
    A manufacturer would also be a person who modifies a small UAS 
covered under an existing Declaration of Compliance to a condition that 
is non-compliant with the original declaration. ``Non-compliant'' means 
the small UAS has been altered such that it no longer matches the 
configuration that was originally declared. Any person who makes this 
kind of a change would be required to submit a new Declaration of 
Compliance for the modified configuration(s) prior to conducting 
operations over people within that category. Not all modifications 
would cause a previously determined small UAS to become non-compliant, 
however. A manufacturer may include a list of acceptable modifications 
in the remote pilot operating instructions to ensure that a remote 
pilot in command who may replace parts or otherwise modify the small 
UAS is aware of which modifications would allow it to remain compliant 
in the category to which compliance has been declared.
    Additionally, a manufacturer may be a person who modifies a small 
UAS to be compliant with one or more categories of operations over 
people. For example, this would include a person who modifies a small 
UAS not previously eligible to conduct operations over people to a 
small UAS that is eligible to conduct Category 2 or 3 operations over 
people. Similarly, a person who modifies a small UAS that was 
previously qualified to conduct only Category 2 operations so that it 
may now conduct only Category 3 operations, by, for example, increasing 
the weight of the small unmanned aircraft, would be a manufacturer. The 
manufacturer identified on the most recent FAA-accepted Declaration of 
Compliance would not carry the responsibility for the new configuration 
of the small UAS that is the subject of the Declaration. Instead, the 
person who made the modification assumes the role of the manufacturer. 
A person making such modifications and still seeking to operate over 
people would have to first

[[Page 3882]]

submit a new Declaration of Compliance.
    The FAA would not consider a person performing maintenance on a 
small UAS, including replacement of components and parts in accordance 
with the manufacturer's maintenance or operating instructions, to be a 
manufacturer as long as the maintenance or replacement does not alter 
the configuration or characteristics of the small UAS such that it no 
longer meets its Declaration of Compliance. As a result, such a person 
would not need to submit a new Declaration of Compliance. For example, 
if a manufacturer provides replacement propellers with instructions on 
how to install them, someone could install the parts in accordance with 
the manufacturer's instructions. If the manufacturer, however, does not 
provide or identify propellers in the remote pilot operating 
instructions with specific maintenance instructions, the owner could 
inadvertently become a manufacturer by virtue of replacing those 
propellers with different replacement parts.
    The FAA applies the term manufacturer as described in this section 
for the purposes of proposed subpart D of part 107 only. For example, a 
UAS manufacturer that holds a type certificate (TC) or production 
certificate (PC) would not be a manufacturer under this proposal 
because the regulatory oversight for a TC/PC holder is codified at 14 
CFR part 21. Rather, this discussion applies only to manufacturers of 
non-type-certificated or non-production-certificated small UAS who 
declare compliance with the standards of either Category 2 or Category 
3 for operations over people.
(b) Declarations of Compliance
    For a small UAS to be eligible to conduct Category 2 or 3 
operations over people, this proposed rule would require a manufacturer 
to declare compliance with the impact kinetic energy and exposed 
rotating parts standards applicable to aircraft eligible to conduct 
Category 2 or 3 operations demonstrated through an FAA-accepted means 
of compliance. The manufacturer would do this by submitting a 
Declaration of Compliance via an electronic form available on the FAA's 
website. For Category 1 operations, manufacturers would not be required 
to submit a Declaration of Compliance.
    By submitting a Declaration of Compliance, a manufacturer would 
also certify that it (1) established and maintained a process to notify 
owners of small UAS and the FAA of any unsafe conditions that render 
those small UAS non-compliant with proposed 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 UAS and witness any tests necessary to determine 
compliance with this subpart. As explained below in section 
IV.B.7.b)(4), a manufacturer would be permitted to label its small UAS 
for Category 2 or 3 operations after it receives notification of 
acceptance of its Declaration of Compliance from the FAA.
(1) Contents of Declaration of Compliance
    The proposed Declaration of Compliance would be an electronic form 
available on the FAA's website. A manufacturer interested in labeling a 
small UAS as eligible for Category 2 or 3 operations over people would 
submit a Declaration of Compliance to the FAA. A completed Declaration 
of Compliance would include information the Administrator would require 
for both determining that a small UAS complied with the regulation and 
tracking those models of small UAS that were declared compliant with 
the regulation. A manufacturer would declare compliance with the safety 
level established by the impact kinetic energy and the exposed rotating 
parts standards and include the following information:

     Means of compliance used,
     Name of the manufacturer,
     Physical address of the manufacturer,
     Email address of the manufacturer,
     Small UAS make and model
     Serial number or range of serial numbers for the small 
unmanned aircraft (open-ended are permitted), and
     Whether the Declaration of Compliance was an initial or 
an amended Declaration of Compliance.

    In the event a manufacturer is re-submitting the Declaration of 
Compliance, the manufacturer would be required to include the reason 
for such re-submittal. For example, the re-submittal could be to 
correct a safety defect, or it could be to correct the misspelling of 
the manufacturer's name or an incorrect address.
    The FAA would make information contained in Declarations of 
Compliance publicly available. By posting the Declarations or otherwise 
making the information in the Declarations publicly available, the FAA 
and the public would be able to determine which make and model of small 
UAS are eligible to conduct Category 2 and 3 operations over people.
(2) Declaring Compliance for Multiple Small UAS With the Same Make and 
Model
    The FAA understands that manufacturers who are 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 UAS meets the 
requirements of this proposal. The FAA would encourage these 
manufacturers to establish and maintain a production quality system and 
design configuration control system to provide for consistent 
repeatability. Such a system would provide increased confirmation that 
each individual small UAS meets the requirements of the category of 
operations for which the manufacturer declared compliance, so that a 
manufacturer could avoid testing every unit it constructed. If a 
manufacturer utilizes a quality assurance system, the FAA would remain 
confident that each unit subsequently manufactured would comply with 
the proposed impact kinetic energy, exposed rotating parts, and safety 
defects standards.
(3) Multiple Categories of Operation
    This proposal would also allow a manufacturer to design a small UAS 
that could meet the performance requirements of multiple categories of 
operations over people. If a manufacturer conducts testing or engages 
in analysis or inspection to determine a small UAS could meet the 
requirements for operations in both Category 2 and Category 3 in the 
appropriate modes or configurations, the small UAS manufacturer would 
need to submit only one Declaration of Compliance to the FAA. On that 
Declaration of Compliance, the manufacturer would identify the 
categories of operation for which it determined the small UAS was 
compliant, and the means of compliance used for each category.
(4) FAA Acceptance of Declaration of Compliance
    This proposed rule would require a manufacturer to provide 
information on its Declaration of Compliance regarding whether it has 
used an FAA-accepted means of compliance or a custom means of 
compliance the FAA has not yet accepted. A manufacturer would label its 
small UAS for Category 2 or 3 operations once it receives notification 
of acceptance of its Declaration of Compliance from the FAA. Once the 
FAA accepts a Declaration of Compliance, the FAA would make the 
Declaration of Compliance, or

[[Page 3883]]

information from the Declaration, publicly available.
    If a manufacturer uses a custom means of compliance that the FAA 
has not yet accepted, the FAA must review and accept the means of 
compliance before it accepts the Declaration of Compliance. This could 
result in additional review time prior to acceptance of the Declaration 
of Compliance. The FAA would notify the manufacturer upon its decision 
regarding acceptance of the custom means of compliance and Declaration 
of Compliance.
(5) Modifying a Small UAS and Resubmitting a Declaration of Compliance
    Any person who modifies a small UAS in a way that could affect the 
eligibility of the small UAS to operate over people under Category 2 or 
Category 3 of this proposed rule would be required to submit a new 
Declaration of Compliance before the small UAS could be operated over 
people. This requirement would not apply to those situations in which 
an individual performs a modification that the manufacturer identifies 
in the remote pilot operating instructions as an allowable change or 
modification for that small UAS, as discussed in section IV.B.9. When a 
manufacturer seeks to submit a Declaration of Compliance for a small 
UAS that was not previously eligible for operations over people, 
however, the FAA would undertake the same review process to verify the 
small UAS fulfills the performance-based standards described 
previously.
    The requirement to submit a new Declaration of Compliance would 
ensure any small UAS operated under this framework meets the applicable 
requirements for operations over people. In this way, the FAA would 
have the ability to track the responsible manufacturer as well as any 
modifications that the small UAS may undergo during its lifetime. For 
these reasons, the FAA would require any person who modifies a 
previously declared small UAS to take on the responsibilities of a 
manufacturer and submit a new Declaration of Compliance if the 
modification took the small UAS outside the configuration originally 
declared.
(6) Rescission Process
    Under this proposed rule, the FAA would rescind a manufacturer's 
Declaration of Compliance if the agency becomes aware that a small UAS 
for which a manufacturer has declared compliance is no longer qualified 
for operations over people. The FAA is proposing new procedural rules, 
described below, to govern any action to rescind a Declaration of 
Compliance. Therefore, the FAA's rules under 14 CFR part 13 would not 
apply.
(a) Notification of Safety Issues
    The FAA proposes in Sec.  107.135(c) that it would notify the 
manufacturer when the FAA becomes aware of a safety issue that could 
affect a manufacturer's Declaration of Compliance, either because the 
small unmanned aircraft is not compliant with the exposed rotating 
parts or kinetic energy standards, or because the small UAS has a 
safety defect as described in section IV.B.11. (a). If a safety issue 
arises in which the small UAS no longer fulfills the safety level set 
forth in this proposed rule, either by way of a safety defect, 
material, component, or feature on the small UAS, then the manufacturer 
must notify the FAA. At that point, the manufacturer would have the 
opportunity to discuss the potential safety issue with the FAA. As a 
result of such a discussion, the FAA may determine that a safety issue 
does not actually exist, that the manufacturer has incorporated an 
adequate mitigation to address and correct the safety issue, or that a 
safety issue still exists.
(b) Proposed Rescission of a Declaration of Compliance
    If the FAA determines, as a result of the discussion described 
above, that a safety issue remains unaddressed, the FAA would send the 
manufacturer a notice of proposed rescission of a Declaration of 
Compliance. The notice would set forth the agency's basis for the 
proposed rescission and provide the manufacturer 10 business days to 
submit evidentiary information to refute the proposed notice of 
rescission.
(c) Notice of Rescission of a Declaration of Compliance
    After receiving a proposed notice of rescission, a manufacturer may 
provide information demonstrating the small UAS meets the requirements 
of this part within 10 business days. If a manufacturer fails to 
establish that a safety issue does not exist, or if the manufacturer 
fails to respond within 10 business days, the FAA would issue a notice 
rescinding the Declaration of Compliance. At this point, the FAA would 
publish this rescission. The FAA would also specify on its website for 
which category the Declaration of Compliance has been rescinded. Remote 
pilots in command would not be permitted to operate the particular 
small UAS over people if the FAA has rescinded the Declaration of 
Compliance.
    If the FAA rescinds a Declaration of Compliance as a result of a 
safety issue, a manufacturer would be able to modify the small UAS such 
that the safety issue is resolved, at which point the manufacturer 
could submit a new Declaration of Compliance. The FAA would review the 
new Declaration of Compliance and notify the manufacturer of whether 
the FAA has deemed it acceptable.
(d) Petition for Reconsideration of a Rescission of a Declaration of 
Compliance
    Once a Declaration of Compliance is rescinded, a manufacturer would 
have the opportunity to petition the FAA for reconsideration. A 
manufacturer seeking reconsideration under this rule 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) 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. A manufacturer could 
appeal the final agency decision as provided in 49 U.S.C. 46110.
(e) Emergency Rescission of a Declaration of Compliance
    Prior to rescission of a Declaration of Compliance, the FAA would 
typically initiate the safety issue notification process with the 
manufacturer as discussed previously. However, if the Administrator 
determines an emergency exists and safety of persons on the ground 
requires an immediate rescission of a Declaration of Compliance, the 
FAA may exercise its authority under 49 U.S.C. 46105(c) \81\ to issue 
an emergency order rescinding a Declaration of Compliance. Under these 
circumstances, rescission would go into effect immediately, prior to 
the FAA initiating the notification process or the rescission 
procedures described above. The order would remain in effect until the 
basis for issuing the order no longer

[[Page 3884]]

exists. The emergency order would be considered a final agency 
decision; as such, a manufacturer may appeal the decision as provided 
in 49 U.S.C. 46110 following the issuance of the order.
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    \81\ When the Administrator determines that an emergency exists 
related to safety in air commerce and requires immediate action, the 
Administrator may issue an immediately effective order to meet the 
emergency, with or without notice. 49 U.S.C. 46105(c).
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8. Recordkeeping Requirements
    This proposed rule would require manufacturers maintain small UAS 
records related to their Declarations of Compliance for a minimum of 
two years after ceasing production. The FAA also proposes to require 
manufacturers to retain the substantiating data for a custom means of 
compliance for as long as the means of compliance remains accepted. In 
the event of a safety defect, or if the FAA initiated an action against 
a manufacturer, this information would be critical to determine the 
cause, scope, and severity of the defect or infraction. The FAA 
requests comment on the appropriateness of this proposed amount of time 
for record retention.
    For a Declaration of Compliance that uses an accepted means of 
compliance, the manufacturer would keep substantiating data that 
includes a description of the method used to demonstrate compliance as 
well as the results. Specifically, if the manufacturer established 
compliance by testing, the manufacturer would retain detailed 
information on the test method and the results used to demonstrate the 
small UAS meets the applicable impact kinetic energy and exposed 
rotating parts standards.
    For a custom means of compliance submitted independently of a 
Declaration of Compliance, the submitter would keep:

     Test procedures that outline the test methodology (if 
the manufacturer established compliance by testing);
     An analysis or record of inspection to establish the 
equivalency of the means of compliance to the safety level 
identified in this proposal; and
     Substantiating data that supports the test (if 
applicable), methods, results and conclusions.

    This information would likely include details on the method and the 
results the submitter used to demonstrate the small unmanned aircraft 
meets the applicable impact kinetic energy and exposed rotating parts 
standards. Substantiating data could include detailed information on 
whether the testing or analysis was done consistent with accepted 
methods used by the medical industry, consumer safety groups, or other 
peer-reviewed test methods. Such information should also indicate 
whether the proposed means of compliance required unreasonable skill or 
mitigation to meet the requirements.
    For a Declaration of Compliance that uses a custom means of 
compliance that requires direct FAA review, a manufacturer would keep 
both the records for its Declaration of Compliance and its custom means 
of compliance, as discussed above. The FAA may require access to that 
information in several types of situations. For example, if the FAA 
rescinded a Declaration of Compliance, it may request the original set 
of substantiating data from a manufacturer if a manufacturer elects to 
correct the safety issue and submit a new Declaration of Compliance for 
the same small UAS. Upon resubmittal, the FAA would likely require all 
substantiating data from prior to the identification of the safety 
issue, as well as supporting data after anyone had made modifications. 
Additionally, if a manufacturer submitted a Declaration of Compliance 
and identified a custom means of compliance the FAA had not previously 
accepted, the FAA would require the manufacturer to submit 
substantiating data to facilitate the FAA's review of the means of 
compliance.
9. Remote Pilot Operating Instructions
    In order to operate a small UAS safely over people, the remote 
pilot in command would be responsible for knowing what category of 
operations his or her small UAS is eligible to conduct, and what 
technical and operational limitations apply to the operations. 
Accordingly, the FAA proposes to require manufacturers to provide 
remote pilot operating instructions with product-specific information 
related to operations over people that would occur in Category 2 or 
Category 3.
    This proposed requirement is consistent with the ARC's 
recommendation. Specifically, the ARC recommended small UAS 
manufacturers provide operating manuals to the operators of the small 
UAS that would include operating instructions for Category 2 and 3 
operations.\82\ The ARC did not provide any information regarding the 
contents of the operating manual, leaving that determination to future 
voluntary consensus standards. The ARC recommended the FAA require the 
operator to comply with the operating manual.
---------------------------------------------------------------------------

    \82\ ARC Report at 7-8. The FAA uses the term ``remote pilot 
operating instructions'' in this proposal in lieu of the ARC's 
suggested term of ``operating manual,'' to avoid confusion with 
manned aircraft flight manuals.
---------------------------------------------------------------------------

    This rule proposes to require manufacturers to provide operating 
instructions upon sale, transfer, or use of the aircraft by someone 
other than the manufacturer. This requirement would apply to anyone who 
is a manufacturer for the purposes of this proposed rule, as described 
above in section (IV.B.7.(a). In addition, the manufacturer would be 
required to keep the instructions up-to-date to account for any changes 
it makes to an aircraft over time.
    Specifically, the FAA proposes in Sec. Sec.  107.115(b)(3) and 
107.120(b)(3) that the remote pilot operating instructions include, at 
a minimum, the following information:

     General information, including system description and 
system limitations, and the category or categories of operations 
over people for which the manufacturer of the small UAS has declared 
compliance;
     If modifications of the small UAS can occur, those 
modifications the manufacturer has determined do not bring the small 
UAS out of compliance with the category declared; and
     If the small UAS has variable modes or configurations, 
information regarding those modes or configurations.

    Existing regulations require remote pilots to conduct a preflight 
inspection and ensure that the small UAS is in a condition for safe 
operation.\83\ These existing regulations would continue to apply to 
operations over people conducted under the terms of this proposed rule. 
The additional information contained in the remote pilot operating 
instructions would serve to inform a remote pilot in command of the 
characteristics of the small UAS, which in turn would assist the remote 
pilot in conducting his or her preflight check and ensuring the small 
UAS is in a condition for safe operation prior to conducting a Category 
2 or 3 operation.
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    \83\ The remote pilot in command must check the small UAS to 
ensure it is in a condition for safe operation prior to each flight. 
14 CFR 107.15(a). Further, no person may continue flight of the 
small unmanned aircraft when he or she knows or has reason to know 
that the small UAS is no longer in a condition for safe operation. 
Sec.  107.15(b). Section 107.49(a) requires that, prior to flight, 
the remote pilot in command must assess the operating environment, 
considering risks to persons and property in the immediate vicinity 
both on the surface and in the air. This assessment must include 
becoming aware of: (1) Local weather conditions; (2) local airspace 
and any flight restrictions; (3) the location of persons and 
property on the surface; and (4) other ground hazards. The preflight 
assessment must also include verification that all control links 
between the ground control station and the small unmanned aircraft 
are working properly. 14 CFR 107.49(c). Finally, Sec.  107.49 
requires that, if the small UAS is powered, the remote pilot in 
command must ensure that there is enough available power for the 
small UAS to operate for the intended operational time.
---------------------------------------------------------------------------

    Manufacturer-required components that make up the small UAS must be 
listed in the remote pilot operating instructions to help the remote 
pilot ensure that all components of the small UAS are present. This is 
necessary

[[Page 3885]]

because, if a small UAS is missing any components, the small UAS would 
not comply with the category of operations over people for which the 
manufacturer declared compliance. A manufacturer must also clarify the 
category or categories of operations over people for which the small 
UAS is eligible.
    The FAA proposes requiring in Sec. Sec.  107.115(b)(3)(ii) and 
107.120(b)(3)(ii) that a manufacturer include in the remote pilot 
operating instructions all modifications the manufacturer has 
determined would not change the ability of the small UAS to meet the 
requirements for the category of operation for which the manufacturer 
declared compliance. The FAA acknowledges that modification of a small 
UAS is a routine event for some remote pilots. Some modifications may 
not change the flight characteristics of the small unmanned aircraft; 
for example, replacing one camera with another that has the same weight 
and size but better optics. However, changing small unmanned aircraft 
components such as propellers or other articles necessary for flight 
may change the flight characteristics of the small unmanned aircraft, 
and could potentially change the small UAS eligibility to conduct 
operations over people.
    The modifications described in proposed Sec. Sec.  
107.115(b)(3)(ii) and 107.120(b)(3)(ii) could consist of adding or 
exchanging products and evaluating them based on characteristics such 
as weight, size and shape. For example, a manufacturer could list 
certain makes and models of payload cameras, or provide weight and size 
limits along with a generic shape description. A remote pilot would 
then be able to switch out any payload cameras that meet the described 
parameters and continue to operate over people. The manufacturer would 
have to ensure, through an accepted means of compliance, that the small 
UAS with the included modifications would remain in compliance with the 
performance-based requirements for the applicable categories of 
operations. If a person modified a small UAS in a manner not included 
in the remote pilot operating instructions, the small UAS may no longer 
comply with its associated Declaration of Compliance. This is because 
if a person changed anything related to design, performance, 
coefficient of drag, or energy-absorbing materials, the original test 
results or analyses concerning the transfer of impact kinetic energy 
could change, and such alteration could change the category of 
operations or cause the small UAS to exceed the applicable standard. 
The same principle would apply concerning the presence of exposed 
rotating parts. Therefore, should a person make a modification that is 
not listed in the remote pilot operating instructions, the FAA would 
consider that person as the new manufacturer of the small UAS, and 
would require compliance with manufacturer requirements to operate the 
aircraft over people.
    The remote pilot operating instructions must also state whether the 
small UAS has modifications that will change the determination of the 
small UAS fulfilling the standard for the category of operation the 
small UAS is eligible to conduct. For example, a manufacturer may add 
an interchangeable camera to the small unmanned aircraft that would 
affect the small unmanned aircraft's eligibility for operating over 
people in Category 2 or 3 operations.\84\ By this proposed rule, the 
FAA would require the manufacturer to inform remote pilots of the 
effect of such options to the extent the exercise of those options may 
affect compliance with the applicable standards. Without this 
information, a person could change the flight characteristics of the 
small unmanned aircraft and make it non-compliant with Category 2 or 3 
requirements.
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    \84\ As discussed in section IV.B.5. (b), manufacturers must 
submit a declaration of compliance that identifies a means of 
compliance the FAA has accepted. When verification of compliance 
assumes the presence of a component affixed to the aircraft, the FAA 
must receive information concerning this because it would likely 
affect the mass of the small unmanned aircraft.
---------------------------------------------------------------------------

    For a small UAS that has variable modes or configurations, the FAA 
would require a manufacturer to provide instructions on how to verify 
what mode or configuration the small UAS is in, and how to switch 
between modes or configurations. This information would facilitate a 
remote pilot's verification that his or her small UAS is in the correct 
mode or configuration to conduct a certain category of operations over 
people. Similarly, if a remote pilot chooses to operate in a different 
category of operations over people, or in a mode or configuration that 
is not permitted for operations over people but is permitted under part 
107, he or she could consult the remote pilot operating instructions to 
determine how to change the mode or configuration to the desired 
settings.
    The FAA would not require the manufacturer to provide remote pilot 
operating instructions in a particular format. For example, a 
manufacturer could choose to provide the operating instructions as part 
of the packaging of a small UAS, make them available electronically, or 
provide them in some other way. Manufacturers with products currently 
on the market would be free to choose whether to incorporate the 
instructions into existing materials, or they could create a new set of 
instructions that are specific to operations over people. For products 
in production before this rule is finalized but subsequently declared 
to be in compliance and eligible for operations over people, the 
manufacturer would be responsible for developing remote pilot operating 
instructions and making them available to remote pilots and owners. The 
FAA would not prescribe the method for making the instructions 
available, but acknowledges publishing them online would be an 
efficient and effective way.
    Although the FAA does not propose requiring the remote pilot 
operating instructions to contain information in addition to the items 
enumerated above, the FAA encourages small UAS manufacturers to provide 
additional operational information to remote pilots. Examples of such 
information appear in Advisory Circular 107-2, which accompanies this 
NPRM.
10. Labeling Requirements
    The FAA proposes to require that manufacturers label any small 
unmanned aircraft that are qualified for Category 2 or 3 operations 
over people. Such labeling would assist the FAA in its oversight role 
by providing a simple and efficient way to determine whether an 
operation is consistent with this proposal. In addition, it would 
provide notice to the remote pilot of which category of operations he 
or she is eligible to conduct using that aircraft.
    In its report, the ARC recommended a manufacturer of a small UAS 
``label the product or product retail packaging in accordance with 
industry consensus standards,'' \85\ and that the operator be 
responsible for knowing the category in which his or her small UAS 
qualifies to operate. Therefore, the operator would presumably know 
which operating limitations he or she must follow. The proposed 
labeling requirement would assist the FAA in its oversight role because 
it provides an efficient means for an inspector to evaluate whether an 
operation is consistent with the category or categories of operation 
the small UAS may conduct. Because Category 3 operations would entail 
unique operating limitations, the label on small unmanned aircraft 
eligible to conduct Category 3 operations would indicate to the remote 
pilot that he or she must

[[Page 3886]]

adhere to the applicable operating limitations.\86\
---------------------------------------------------------------------------

    \85\ ARC Report at 10.
    \86\ The labeling requirement this rule proposes is not the sole 
means by which a remote pilot in command will be aware of the 
operating limitations applicable to Category 3 operations. Remote 
pilots in command must maintain awareness of updated regulations, as 
required by proposed Sec. Sec.  107.73(a) and 107.74(a) in this 
rule. As a result, initial knowledge testing and recurrent training 
implemented after the effective date of a final rule implementing 
this proposed rule would include operations over people as a subject 
area on both the test and training.
---------------------------------------------------------------------------

    The FAA is not proposing a specific location for label placement 
due to the numerous design variations of small unmanned aircraft. In 
the case of very small unmanned aircraft, manufacturers may need to 
exercise creativity in determining the location best suited to 
satisfying the proposed labeling requirement. Labeling a non-critical 
surface would likely prevent wear and removal during normal operations.
    The FAA declines to propose a prescriptive labeling requirement 
that specifies exactly how a manufacturer must label an aircraft, what 
size font to use, and so on. Due to the large variety of small UAS 
models that exist, such a prescriptive requirement would be 
unnecessarily limiting for manufacturers. Instead, a manufacturer could 
label the aircraft by any means as long as the label is in English, 
legible, prominent, and permanently affixed to the aircraft. For 
example, a manufacturer could use the following labels: ``Category 2'', 
``Category 3'', ``Cat. 2'', or ``Cat. 3''.
    Given that a small UAS could be qualified to conduct more than one 
category of operations, the FAA proposes requiring a manufacturer label 
the small UAS with each category of operations the small UAS is 
qualified to conduct. For example, a small UAS qualified to conduct 
Category 2 operations may also be qualified to conduct Category 3 
operations. The manufacturer would label such a small UAS with each 
category, as follows: ``Cat. 2, 3'' or ``Category 2, 3''. The label 
could be painted onto, etched into, or affixed to the aircraft by some 
other permanent means.
    Some small UAS manufactured prior to final publication of this rule 
may qualify for a category of operations over people. In a situation in 
which a manufacturer declared a previously existing make/model of small 
UAS eligible for Category 2 or 3 operations and has provided remote 
pilot operating instructions as described in section IV.B.9., the 
remote pilot could then label that small unmanned aircraft in 
accordance with the Declaration of Compliance.
    In addition to the proposed requirement that a manufacturer label 
the aircraft, the FAA also proposes requiring a remote pilot ensure his 
or her small unmanned aircraft is properly labeled before conducting 
any operations over people. A clear and legible label will enable a 
remote pilot, an inspector, or a member of the public to identify the 
types of operations a small UAS may conduct. If a label degrades such 
that it is no longer legible or attached to the aircraft, the remote 
pilot is responsible for providing a new label before operating over 
people. The proposed labeling requirement would apply regardless of 
whether a person obtains a small UAS directly from a manufacturer or as 
a subsequent transfer. No pilot would be able to operate the small UAS 
over people unless he or she verifies the label meets the requirements 
of this rule.
11. Manufacturer Accountability
    After a manufacturer has declared that a specific small UAS 
fulfills the standard of a particular category, this proposal would 
require the manufacturer to monitor the small UAS to ensure it complies 
with the requirements of this subpart. Specifically, a manufacturer 
should monitor the validity of the means of compliance used to ensure 
the continued fulfillment of the safety level the standards at 
Sec. Sec.  107.115(b)(1) and 107.120(b)(1) establish. The manufacturer 
should also 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 UAS operation 
over people. Moreover, the manufacturer has a continuing obligation to 
ensure that the remote pilot operating instructions satisfy the 
regulatory requirements. To satisfy these obligations, a manufacturer 
may have to monitor its manufacturing processes, small UAS operational 
usage, and collection of accident and incident data. Manufacturer 
monitoring could also include information that owners and operators of 
the small UAS provide. Should the FAA identify a safety issue that 
warrants review of a manufacturer's data, records, or facilities, a 
manufacturer would be required to grant such access.
(a) Safety Defects
    The FAA proposes to require that a manufacturer build a small UAS 
qualified to conduct Category 2 or 3 operations such that it does not 
contain any safety defects. For the purposes of this proposal, a safety 
defect refers to a material, component, or feature on a small UAS that 
increases the likelihood that the small UAS could cause a casualty or 
fatality to a person during an operation over people. Under this 
proposal, a safety defect would cause a small UAS to exceed a low 
probability of causing a casualty (Category 2) or a fatality (Category 
3) to a person during an operation over people. For example, exposed 
wires or hot surfaces on a small unmanned aircraft could cause 
electrocution or burns to a person upon impact. Many small unmanned 
aircraft utilize lithium polymer or lithium-ion batteries as the 
primary energy source; damaged or defective batteries could cause 
casualties from battery fires or explosions. Sharp edges or projections 
on a small unmanned aircraft could cause lacerations or puncture wounds 
as a result of an impact with a person. As small UAS designs evolve 
over time, potentially hazardous features or characteristics, unknown 
at the present time, could emerge.
    The FAA would identify safety defects through a variety of means. 
The FAA may receive consumer complaints, industry safety bulletins, or 
an individual manufacturer's notification that a safety defect has 
arisen. Once the FAA has formally identified a safety defect, it would 
notify the manufacturer of the defect. The manufacturer would have an 
opportunity to respond by either correcting the defect or demonstrating 
the small UAS does not contain any materials, components, or features 
that increase the probability of casualty or fatality for the category 
of operations for which the manufacturer declared the small UAS as 
compliant. If the manufacturer is unable to demonstrate the small UAS 
does not contain any safety defects, the FAA may initiate proceedings 
to rescind the manufacturer's Declaration of Compliance.
    As an ongoing requirement, manufacturers would be responsible for 
correcting any safety defects they identify after manufacturing the 
small UAS, to ensure continued qualification for Category 2 or 3 
operations. In the event the FAA rescinds a Declaration of Compliance, 
no small UAS covered by that declaration could operate over people. The 
small UAS could resume operations only after the FAA reinstates 
acceptance of the Declaration of Compliance, accepts an amended 
Declaration of Compliance, or accepts a new Declaration of Compliance 
that applies to that small UAS. Either the original or a subsequent 
manufacturer could submit a new Declaration of Compliance in accordance 
with this proposed rule.

[[Page 3887]]

    The FAA would publish any final rescission of a Declaration of 
Compliance on the FAA website, and may publish notification of the 
safety defect in the Federal Register as a Notice of Availability. 
These actions would serve two purposes: First, to notify remote pilots 
that the identified aircraft are no longer safe to conduct operations 
over people and second, to put manufacturers on notice not to 
incorporate the material, component, or feature into any future small 
UAS a manufacturer wishes to qualify for Category 2 or 3 operations 
over people without appropriate mitigations. The FAA notes the 
rescission of a Declaration of Compliance would not render a small UAS 
inoperable, but rather only unsafe for operations over people. The FAA 
seeks comment on whether this process provides sufficient opportunity 
for notice and comment for manufacturers aside from those whose 
products the safety directive directly implicates, and whether the 
process provides the public sufficient opportunity for notice and 
comment.
    If the FAA rescinds a Declaration of Compliance, the FAA would 
publish the applicable makes and models of small UAS that are no longer 
eligible to operate over people. Remote pilots would be required to 
refrain from using those aircraft to operate over people until the 
manufacturer institutes an acceptable correction. To correct a safety 
defect, a manufacturer could develop a correction and test the aircraft 
to ensure the aircraft does not increase the probability of causing a 
casualty or fatality when operated over people with the correction. The 
manufacturer would then submit a new Declaration of Compliance to the 
FAA identifying the means of compliance the manufacturer used to 
correct the safety defect.
    Alternatively, the owner or remote pilot of a small UAS may elect 
to correct a safety defect associated with his or her aircraft. Should 
any person choose this option, he or she could submit a Declaration of 
Compliance to the FAA identifying the means of compliance used to 
correct the safety defect. That person, by means of modifying the small 
UAS such that it is again in compliance with the operation over people 
requirements, would become the manufacturer of his or her specific 
small UAS, and would assume all responsibilities that apply to 
manufacturers under this proposal.
(b) Public and FAA Notification Process
    This proposed rule would require a manufacturer to certify on its 
Declaration of Compliance that it has established a process to notify 
the public and the FAA if the manufacturer identifies an issue with its 
small UAS that would render the small UAS ineligible for operations 
over people. Reporting a safety defect to the FAA would not 
automatically result in the rescission of a Declaration of Compliance. 
The FAA would evaluate the report and correspond with a manufacturer to 
determine whether taking corrective action or rescission would be 
appropriate.
    A manufacturer must notify the FAA of any safety issues it 
identifies. Reporting such issues would both assist the FAA in 
discovering product hazards and identifying risks of injury the FAA 
could address through direct communication with manufacturers, 
publication of Notices of Availability in the Federal Register, or 
education. Manufacturers' reporting would provide a timely and 
effective source of information about small UAS because manufacturers 
often learn of potential product safety problems at an early stage. For 
this reason, this proposed rule would require manufacturers to develop 
a system for maintaining and reviewing information about their products 
that might identify when their product may have a defect that increases 
the probability of causing injury during operations over people. Such 
information would include, but is not limited to, consumer complaints, 
warranty returns, insurance claims or payments, product liability 
lawsuits, reports of production problems, product testing, or other 
critical information concerning their products.
    Subsequent to manufacturers' discovery of noncompliance, this rule 
would require manufacturers notify the FAA and the public of the 
existence of the safety defect. Manufacturers' notification to the FAA 
should describe the nature of the noncompliance and how the 
manufacturer plans to address it. As stated above, such notification 
would not automatically result in the rescission of the Declaration of 
Compliance, but would involve the FAA corresponding with manufacturers 
to resolve the issue to ensure safety.
    Notification to the public and owners of that make/model would also 
be a critical step in ensuring continued safety. Such notification 
could take the form of a notice on a manufacturer's website, electronic 
notification to owners who have registered the small UAS with the 
manufacturer, or an update to the small UAS software advising the 
remote pilot of the change in status. The FAA encourages manufacturers 
to exercise diligence to ensure the intended audience receives 
communications involving any potentially non-compliant conditions. In 
this regard, the FAA encourages manufacturers to design and utilize a 
system that would facilitate communication between the manufacturer and 
the owners of the small UAS and would successfully inform members of 
the public at large. In general, the FAA contends potential consumers 
and the public have an important interest in being aware that proximity 
to a particular small unmanned aircraft may pose an undue hazard.
(c) Falsification
    As defined in this proposal, a Declaration of Compliance would be a 
record submitted by a manufacturer for a small UAS that certifies the 
small UAS is eligible for operations pursuant to Category 2 or Category 
3 under subpart D of this part. Records are subject to compliance with 
the falsification provisions of the existing terms of Sec.  107.5. 
These provisions prohibit any fraudulent or intentionally false record 
from being made, kept, or used to show compliance with any requirement 
of part 107. Accordingly, falsifying any part of any record intended to 
constitute proof of compliance with manufacturer requirements under 
this proposal could subject the person who submitted the record to a 
civil penalty, and would be a basis for rescinding a Declaration of 
Compliance.
(d) Access to Facilities
    Under this proposed rule, a manufacturer must grant the FAA access 
to its facilities upon the FAA's request as described in Sec.  107.7, 
to validate compliance with this subpart. As part of a manufacturer's 
Declaration of Compliance, the manufacturer would agree to allow the 
FAA to inspect its facilities, technical data, and any manufactured 
small UAS and witness any tests necessary to determine compliance with 
this subpart. Some occurrences may necessitate facility inspection. For 
example, facility access would likely become necessary when the FAA and 
the manufacturer are working together to address a safety defect.
(e) FAA Publication of Status of Declarations of Compliance
    The FAA proposes making available on the FAA website the status of 
each manufacturer's Declaration of Compliance for public access to 
enable remote pilots to determine which small UAS (by make, model, 
serial number, and/or category declared) are eligible for operations 
over people. If the FAA rescinds a Declaration of Compliance,

[[Page 3888]]

the FAA would notify the public of the rescission and would identify 
the small UAS associated with the rescinded Declaration of Compliance 
as no longer eligible for operations over people. In this way, remote 
pilots would be aware of whether the model of small UAS they are 
utilizing was eligible for operations over people.
12. Operational Requirements and Remote Pilot Restrictions
    The FAA proposes to include in Sec.  107.49 a requirement that a 
remote pilot ensure he or she is using a small UAS eligible to conduct 
an operation over people. This verification would need to occur as part 
of the pre-flight inspection. Advisory Circular 107-2 would include 
updates with suggestions concerning the pre-flight procedures a remote 
pilot could follow to be compliant with this proposed rule.
    As a general matter, the FAA acknowledges pilot experience may be 
relevant in determining whether the operation of a small UAS qualified 
to operate in either Category 2 or 3 adheres to the safety level the 
FAA contemplates in this proposed rule. In this regard, the ARC 
recommended that remote pilots conducting operations over crowds be 
required to have more training or experience than other pilots, but did 
not recommend specifically what such training or experience would 
involve. The FAA sees value in an experience requirement, however, at 
this time, lacks information and data to assess how much training or 
time piloting a particular aircraft is warranted. In order to gather 
information on what mitigations would be appropriate, the FAA requests 
comments 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 upon 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? The FAA will consider carefully all input it receives on 
this topic.
    To conduct Category 1 operations, Sec.  107.110 would require a 
remote pilot to ensure the small unmanned aircraft weighs 0.55 pounds 
or less on takeoff and for the duration of the flight, including 
everything that is on board or otherwise attached to the aircraft. To 
confirm a small UAS aircraft is eligible to conduct Category 1 
operations, a remote pilot could weigh the aircraft. To conduct 
Category 2 and 3 operations, Sec. Sec.  107.115(a) and 107.120(a)(1) 
would require a remote pilot in command to use a small UAS that is 
qualified and labeled to conduct those operations.
    To confirm a small UAS is eligible to conduct Category 2 or 3 
operations, a remote pilot must ensure an FAA-accepted Declaration of 
Compliance exists for his or her small UAS. A situation may occur in 
which a small UAS previously eligible for operations over people in 
either Category 2 or Category 3 would either no longer be compliant 
with the standards with which compliance was declared or would be 
ineligible for such operations due to rescission of the Declaration of 
Compliance that previously applied to it. The remote pilot would have 
to verify the flight eligibility status of his or her small UAS.
(a) Distances From People
    The FAA declines to propose that the remote pilot maintain a 
specific minimum distance from people during small UAS operations 
because the existing requirements of part 107, combined with the new 
proposed subpart D, provide a sufficient manner of mitigating risks. 
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 for any 
reason.\87\ In addition, a prescriptive minimum distance from people is 
not appropriate; for some operations, such a distance may be too 
burdensome, and for others, it might be too conservative. The FAA 
acknowledges, however, that the ARC recommended a ``small UAS must be 
operated at a minimum distance of 20 feet above people's heads, or 10 
feet laterally away from people'' for Category 2 and 3 operations.\88\
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    \87\ See Sec. Sec.  107.19(c), 107.23(a), 107.31(a)(4) and 
107.49(a)(3).
    \88\ ARC Report at 11.
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    Section 107.19(c) requires the remote pilot in command to ensure 
the operation will not pose any undue hazard to other people, other 
aircraft, or other property in the event of a loss of control of the 
small UAS. The FAA believes Sec.  107.19(c), as a performance-based 
requirement, allows a remote pilot in command to determine what 
specific stand-off distance (if any) is appropriate to the specific 
small unmanned aircraft and operation that he or she is conducting. To 
determine this stand-off distance, the preamble of the 2016 final rule 
stated that a remote pilot should consider the small unmanned 
aircraft's course, speed, and trajectory to determine whether the small 
unmanned aircraft would go over or impact a person who is not directly 
involved in the flight operation (uninvolved person).\89\ To comply 
with Sec. Sec.  107.19(c), 107.23(a), 107.31(a)(4), and 107.49(a)(3), 
therefore, a remote pilot conducting operations over people would 
likely consider several factors when making the determination of a 
stand-off distance from uninvolved people, all of which the remote 
pilot must tailor to the intended operation.
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    \89\ 81 FR 42064, 42129. In addition, Sec.  107.23(a) prohibits 
operating a small UAS ``in a careless or reckless manner so as to 
endanger the life or property of another.'' Section 107.31(a)(4) 
requires that the remote pilot in command maintain an ability to see 
the aircraft and make a determination that the unmanned aircraft 
does not endanger others. Section 107.49(a)(3) requires the remote 
pilot in command to conduct a preflight assessment of the risk to 
persons and property, factoring in their locations.
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    The FAA has not received information to demonstrate that a 
prescriptive stand-off distance would provide a safety benefit beyond 
complying with part 107's current requirements; therefore, the FAA 
maintains the position it articulated in the 2016 final rule. Due to 
the large variety of operations and types of small UAS that exist, and 
consistent with the mitigations in part 107, the importance of 
providing flexibility to the remote pilot outweighs any benefit of 
having a prescriptive standard.
    The remote pilot is best suited to determine what distance would be 
safe and thereby ensure operation of the small UAS would pose no undue 
hazard to other aircraft, people, or property in the event of a loss of 
control of the aircraft for any reason. For example, a remote pilot 
might factor in the traffic along nearby roads, current and forecasted 
weather conditions, the likelihood of people gathering or transiting 
under or near the flight path, and property located in or near the 
flight path. The remote pilot would use this information, in addition 
to his or her knowledge of the performance of the small UAS under 
normal operating conditions and probable failure modes such as lost 
link, fly-away, and power failure, to identify a suitable horizontal 
and vertical distance from people and property to ensure the small UAS 
operation would not create an undue hazard. These distances may include 
an area around people and property.
    The FAA requests comment on the following question: Does a 
prescriptive standard exist for a minimum vertical or horizontal 
distance that would apply equally across a large variety of

[[Page 3889]]

operations and aircraft and that would provide a safety benefit that 
outweighs the importance of allowing the remote pilot the flexibility 
to assess each unique situation? The FAA further requests data to 
support any comments identifying a prescriptive standard.
(b) Prohibition on Operations Over a Moving Vehicle
    Part 107 currently prohibits the operation of a small UAS over a 
moving vehicle in the absence of a waiver. The FAA established this 
prohibition because the moving vehicle operating environment is 
dynamic, as the remote pilot in command cannot control it directly. In 
addition, the potential forces that would result when a small unmanned 
aircraft impacts a moving vehicle on a road pose unacceptable risks due 
to head-on closure speeds. For example, the impact kinetic energy of a 
small unmanned aircraft on a person who is moving at 40 miles per hour 
on a motorcycle would be much greater than on a person who is 
stationary. Impact with a small unmanned aircraft may also distract the 
driver of a moving vehicle and result in an accident.
    The FAA is considering, however, allowing the operation of small 
UAS over moving vehicles in absence of a waiver. The agency seeks 
public comment on whether it should take this action, in this or a 
future rulemaking. The most useful comments on this issue will include 
data on whether operations over moving vehicles would either increase 
or decrease safety risks, including distracted driving or other hazards 
to traffic. The FAA encourages commenters to include information, with 
supporting data, on how to mitigate any risks they identify.
(c) Restricted Areas of Operation
    Due to the increased risk of injury associated with the higher 
impact kinetic energy threshold, the FAA proposes restricting the areas 
where Category 3 operations may occur. This rule would permit small UAS 
eligible for operations in Category 3 to fly over people only when the 
operator conducts the operation over a closed- or restricted-access 
site and when people with access to the site have been notified that a 
small unmanned aircraft may fly over them. In the alternative, if the 
operation was over people not within a closed- or restricted-access 
site, the small UAS operating in Category 3 must not sustain flight 
over one or more people during its operation. For example, small UAS 
conducting operations pursuant to Category 3 would be limited to 
transient flights over people unless the operation occurs in a closed- 
or restricted-access site in which the people within the site have 
received notice. Moreover, unlike Categories 1 and 2, all Category 3 
operations would be prohibited from occurring over open-air assemblies 
of people.
    For Categories 1 and 2, the FAA proposes to permit operations at 
any location, in accordance with the other requirements of this 
proposed rule, part 107, and any other applicable laws and regulations. 
The absence of any restrictions on the location of Category 1 or 2 
operations is due to the fact that these categories present a low risk 
of injuring people. A small UAS qualified to conduct Category 1 or 2 
operations could operate over open air assemblies and in public spaces 
with no applicable restrictions.
    In its report, the ARC recommended the FAA prohibit flight over 
crowds or dense concentrations of people for ARC Category 3 operations. 
The ARC also stated:

    Category 3 UAS may only operate over people if: (1) the 
operation is conducted over a closed- or restricted-access work site 
with the permission of the site's owner or operator; or (2) 
overflight of people is limited to those who are transient or 
incidental to the operation, i.e., the overflight of people is 
incidental to the operation and is not sustained.\90\
---------------------------------------------------------------------------

    \90\ ARC Report at 4.

    Compared to Categories 1 and 2, Category 3 operations under this 
proposed rule present a higher likelihood of causing a casualty by 
blunt trauma. In this regard, Category 3 operations could utilize 
heavier, faster, or higher-operated small UAS. Permitting Category 3 
operations would allow for continued and uninterrupted operation at a 
site, minimize disruption of normal site operations, and limit 
situations that could compromise the site's operational safety. 
Examples of closed- or restricted-access sites over which Category 3 
---------------------------------------------------------------------------
operations could be conducted include, but are not limited to:

     Agricultural fields in which workers are conducting 
agricultural operations;
     Bridge inspections that include workers who may be 
conducting inspection or construction activities;
     Filming operations that include movie set location 
employees, such as caterers, set designers, and actors; and
     A wedding in which access is available only to guests 
and a small UAS is conducting aerial photography or filming 
operations.

    Based on the increased risk associated with Category 3 operations, 
the FAA proposes to prohibit operating over open-air assemblies of 
people, as well as the other restrictions described above. The FAA 
proposes allowing Category 3 operations at closed- or restricted-access 
sites because the general public would be unable to access the site. In 
this regard, a closed- or restricted-access site would permit access to 
those involved in the activity that occurs on the site, but not to the 
general public. Those people who are permitted access to the closed- or 
restricted-access site could be advised of precautions or other 
recommended actions to ensure safety during a small UAS operation.
    The FAA would expect a remote pilot to ascertain whether a site is 
closed- or restricted-access prior to conducting Category 3 operations 
under this provision. A remote pilot could accomplish this by 
identifying sites that restrict access to the general public through, 
for example, public notices and signage, flagging and barricading, 
erecting temporary fencing, or providing escorts, as appropriate. 
Remote pilots would be responsible for monitoring activity during the 
small UAS operation to ensure access to the site remains closed or 
restricted. Remote pilots must control vehicle and pedestrian access 
routes onto the site to prevent inadvertent or unauthorized entry of 
persons onto the closed- or restricted-access site.
    In addition, this rule proposes to require that a remote pilot 
verify that people with access to the closed- or restricted-access site 
were provided notice that a small UAS may operate over them within the 
site. The FAA anticipates this notice will enhance the situational 
awareness of the people over whom the operations will occur. For the 
purposes of this proposal, actual notice could include a written notice 
posted at the entry point to the restricted area. When a person 
receives a letter or contract stating small UAS 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 UAS operation. By this proposed rule, the FAA 
encourages operators to provide verbal notice in addition to the 
written notice in cases in which a verbal notification is necessary to 
ensure the information is received and understood. The remote pilot 
would not have to be the person who provides the notice, but he or she 
must ascertain people below the small unmanned aircraft have received 
notice before conducting a Category 3 operation over a closed- or 
restricted-access site.
    Alternatively, Category 3 operations could take place outside a 
closed- or restricted-access site as long as the small unmanned 
aircraft does not maintain

[[Page 3890]]

sustained flight over a person who is not directly involved in the 
operation. This requirement would prohibit holding above, or 
maintaining sustained flight above, any part of any person during a 
Category 3 operation that occurs outside a closed- or restricted-access 
site. This would include hovering above any person's head, flying back 
and forth over a person, or circling above an uninvolved person in such 
a way that the small unmanned aircraft remains above some part of that 
person. The intent of this proposed requirement is ensuring only 
momentary exposure to any one person occurs for Category 3 
operations.\91\ Overall, restricting Category 3 operations from 
maintaining sustained flight over people enhances safety by reducing 
the likelihood of injury by limiting protracted duration of a flight 
over a person or persons.
---------------------------------------------------------------------------

    \91\ The FAA considers ``exposure,'' to mean the amount of time 
during which the small unmanned aircraft would be in a position over 
or a near a person in which, if it were to experience a failure, it 
would likely impact the person. For example, in the event a person 
is lying down, this rule would not permit a small unmanned aircraft 
to maintain sustained flight over any part of that person.
---------------------------------------------------------------------------

    The ARC suggested permitting flights to occur only over uninvolved 
people who may loiter beneath the aircraft. The FAA declines to adopt 
such a suggestion because doing so would place a heavy burden on the 
remote pilot to anticipate constantly a person's actions during an 
operation, which could affect the remote pilot's ability to operate the 
small UAS safely, as the obligation may present a distraction.
    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 requirements for Category 3 operations would allow 
for takeoffs and landings to occur outside the site and transition to 
the site to conduct the desired operation provided the aircraft does 
not maintain sustained flight over uninvolved persons when outside the 
site.
13. Provisions Applicable to Existing Small UAS
    The FAA recognizes a significant number of small UAS have already 
been sold and are operating in the NAS under part 107. Some remote 
pilots and manufacturers of small UAS may wish to use existing small 
UAS to conduct operations over people. The FAA does not seek to 
preclude existing small UAS from conducting these operations, and 
recognizes the economic benefits of not requiring current owners of 
small UAS to procure new aircraft solely for the purpose of operations 
over people when existing aircraft may fulfill the proposed safety 
level of this rule.
    Accordingly, manufacturers of existing small UAS may follow the 
procedures in this proposed rule to establish the eligibility of their 
small UAS to operate over people. Once a manufacturer has demonstrated 
through an FAA-accepted Means of Compliance that the existing small UAS 
meets the safety levels in this proposed rule, it would submit a 
Declaration of Compliance establishing compliance with the proposed 
requirements in Sec. Sec.  107.115(b)(5) and 107.120(b)(5). A 
manufacturer would identify those small UAS to which the declaration 
applied by listing the aircraft serial numbers on the Declaration of 
Compliance submitted to the FAA. Once submitted, the FAA would handle a 
Declaration of Compliance for an existing small UAS in the same manner 
it proposes to handle a Declaration of Compliance submitted for a newly 
manufactured small UAS. A manufacturer would also 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 FAA emphasizes this proposal would require a manufacturer make 
the remote pilot operating instructions available; the FAA does not 
propose requiring a manufacturer to locate owners or remote pilots 
operating these small UAS and provide the instructions personally to 
them. Rather, if a remote pilot owns an existing aircraft that a 
manufacturer has identified on a Declaration of Compliance as eligible 
for Category 2 or 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 
manufacturer posted them online.
    Finally, the FAA proposes the remote pilot be permitted to label an 
existing small unmanned aircraft, not previously labeled, in accordance 
with the labeling requirements of this rule. The FAA recognizes that 
requiring a manufacturer to contact all remote pilots of a particular 
make and model of small UAS and provide labels to those persons would 
be unreasonable. However, the option for a remote pilot to label the 
aircraft would not preclude a manufacturer from making a label 
available, either as a website download or for cost, which a remote 
pilot could then affix to the aircraft. A remote pilot could choose to 
label his or her existing aircraft in any manner that meets the 
requirements of the regulations.

C. Waivers

    In the 2016 final rule, the FAA noted its process to integrate UAS 
is ongoing. As such, the FAA decided to proceed with an incremental 
approach, which included waiver authority in the regulatory text of 
part 107 to permit new technologies and unique operational 
circumstances that part 107 may currently restrict. The FAA does not 
propose any changes to the existing waiver process in part 107. The FAA 
proposes, however, to amend 14 CFR 107.205 to allow waivers for 
specific types of operations over people this proposal would otherwise 
limit, as well as to allow waivers for the anti-collision light 
requirement that applies to operations at night and during civil 
twilight.
1. Prohibition on Operations Over a Moving Vehicle
    This proposal would allow small UAS operations over people in 
moving vehicles through the part 107 waiver process. Although this rule 
does not address mitigations concerning the types of risks associated 
with operating a small UAS over a person located in a moving vehicle, 
the FAA would allow these operations if a waiver applicant is able to 
demonstrate that these operations can be conducted safely pursuant to 
the terms of the certificate of waiver. As stated above, the FAA does 
not propose altering the prohibition on operating over a moving vehicle 
in this NPRM, but seeks comments on this topic.
2. Operations Over People
    While this proposal would enable certain routine operations over 
people, other operations would remain prohibited. For example, 
operations using small UAS that exceed the Category 2 or 3 thresholds 
for kinetic energy transfer would remain prohibited. Under current 
regulations, an operator that wishes to conduct prohibited operation 
over people may request a waiver under Sec.  107.205(g). The FAA does 
not propose to change that provision. Operators seeking to operate over 
people, but beyond the limits of this rule's requirements, would be 
able to request a waiver under Sec.  107.205(g).
    Some operators of small UAS may seek a waiver of more than simply 
the operational restrictions applicable to Category 3. For operations 
over people that would occur, for example, in an aircraft that does not 
achieve the safety level the FAA proposes in this rule, the FAA may 
consider an application for waiver of the proposed prohibition of Sec.  
107.39. The FAA anticipates such

[[Page 3891]]

applications would consider the rationale the FAA has provided in this 
proposed rule, in an effort to understand the FAA's views on the 
acceptable level of risk, as well as the agency's expectations with 
regard to safety of operations over people. As such, the FAA would 
continue to scrutinize applications for waiver of Sec.  107.39 in light 
of the agency's risk-based decision-making process, and determine 
whether any waiver application fulfills the waiver application 
requirements. In this regard, the FAA expects any person who seeks a 
waiver of Sec.  107.39 would present a unique risk assessment of the 
intended area of operation that proves the operation would either 
present a de minimis risk or that the operator's proposed limitations 
or provisions would mitigate the risk sufficiently.\92\
---------------------------------------------------------------------------

    \92\ For example, one waiver for operations over people included 
a small unmanned aircraft that only weighed 18.5 grams, while 
another waiver relies primarily on containment of the operational 
environment and conclusions regarding reliability of the small 
unmanned aircraft, which weighs 8 kg. or 17.7 lbs. See Waiver No. 
107W-2016-00993A (May 3, 2017) and Waiver No. 107W-2017-03788 (Sept. 
25, 2017). In both cases, the FAA first assessed the risks, then 
provided mitigation measures sufficient to address the level of risk 
that the operation presented.
---------------------------------------------------------------------------

D. Remote Pilot in Command Requirements

    Since promulgating part 107, the FAA determined that certain 
amendments to part 107 would enhance clarity as well as consistency 
with other FAA regulations. As a result, this rule includes a proposal 
to add to Sec.  107.7 the requirement for remote pilots to present 
their remote pilot in command certificate with small UAS rating, as 
well as a form of identification, to authorized individuals upon 
request. Lastly, this rule proposes permitting remote pilots to 
maintain currency of their remote pilot in command certificates by 
participating in recurrent training, rather than knowledge testing.
1. Presentation of Remote Pilot in Command Certificate
    Section 107.7 (``Inspection, testing, and demonstration of 
compliance'') requires a remote pilot in command, owner, or person 
manipulating the controls of a small UAS to present to the 
Administrator, upon request, the remote pilot certificate with small 
UAS rating and any other document, record, or report the regulations of 
this chapter require. This proposed rule will align the text of Sec.  
107.7 with 14 CFR 61.3(l), which requires pilots to present airman 
certificates upon request.
    The FAA proposes amending Sec.  107.7 to require remote pilots to 
present their remote pilot in command certificates to the 
Administrator, authorized representatives of the National 
Transportation Safety Board (NTSB) or Transportation Security 
Administration (TSA), or any Federal, State, or local law enforcement 
officer, upon request from any such officials. As noted above, Sec.  
61.3(l) includes a parallel requirement for airman certificates, 
medical certificates, and other similar documents, along with photo 
identification. When the FAA promulgated 14 CFR 61.3(l), the agency 
cited security concerns regarding the identification of pilots as the 
primary impetus for the requirement. 67 FR 65858 (Oct. 28, 2002). The 
same rationale applies to remote pilots. Law enforcement officials, the 
Administrator, and the NTSB and TSA must be capable of correctly 
identifying remote pilots in command in the event that an operation 
raises security concerns or issues concerning safety in the NAS. Such a 
provision will enhance the ability of other government agencies and 
officials to conduct timely investigations in the interest of ensuring 
safety and security pursuant to their authority.
    The FAA proposes requiring presentation of both the remote pilot in 
command certificate and one of the types of identification the remote 
pilot could use to establish his or her identity at a knowledge testing 
center. Section 107.67(b) states a person's application for a knowledge 
test must include proof of the applicant's identity that contains the 
person's photograph, signature, date of birth, and permanent mailing 
address. This proposed requirement would apply equally to remote pilots 
who hold a certificate under 14 CFR part 61 and obtained their remote 
pilot certificate by fulfilling the requirements of Sec.  107.61(d)(2).
2. Changes to Knowledge Testing Framework
    Following the implementation of part 107, the FAA re-evaluated its 
testing requirements for remote pilots. This proposed rule would amend 
the knowledge testing framework by requiring remote pilots to complete 
recurrent training, rather than pass knowledge tests, to maintain a 
current remote pilot in command certificate with small UAS rating.
(a) Recurrent Knowledge Testing and Training
    The FAA maintains the current initial testing requirement to 
evaluate a remote pilot's knowledge for operating in the NAS is 
critical, given the absence of a requirement for a practical test or 
proficiency course in obtaining a remote pilot certificate. The FAA 
proposes requiring recurrent training every 24 months, in lieu of 
recurrent knowledge testing, however, so remote pilots maintain ongoing 
familiarity with small UAS operations and the provisions of part 107. 
Moreover, recurrent training, which a remote pilot can complete online, 
presents a less costly option and will achieve a level of assurance of 
knowledge that is comparable to the assurance a recurrent test 
provides. In this regard, the FAA's current use of online training 
enables the FAA to tailor the training to address the pilot's areas of 
knowledge in which improvement is necessary. The FAA intends to employ 
this type of mechanism to remote pilot training, in order to customize 
the training.
    The recurrent training the FAA contemplates in this proposal may 
take different formats. The primary way the FAA anticipates remote 
pilots may fulfill the recurrent training requirement would be to 
complete questions throughout the training, the completion of which the 
FAA will consider satisfactory once the applicant achieves a score of 
100 percent. The FAA may also allow small UAS training to occur within 
a proficiency program or other approved program. The FAA would either 
offer, or review and approve, all such training that could fulfill the 
requirement of the proposed version of Sec.  107.65(b) and (c).
    The FAA anticipates the proposed change from recurrent knowledge 
testing to completion of recurrent training will continue to serve as 
an important risk mitigation measure. As UAS operations in the NAS 
continue to evolve, training provides the opportunity to re-emphasize 
the requirements of part 107 and incorporate any changes the FAA has 
made to part 107 as a part of subsequent rulemakings, such as this one. 
A training course provides the FAA with a way to ensure remote pilots 
are aware of the key requirements that affect them, address new or 
changed requirements in part 107 as a result of subsequent rulemakings, 
and highlight the tools and resources available to remote pilots. Such 
training would ensure remote pilots maintain awareness of 
recommendations for decision-making so they can continue to operate 
safely within the boundaries part 107 has established.
    Because pilots could complete online training to fulfill the 
recurrent training requirement, this rule would not require travel to 
any kind of knowledge testing center every 24 calendar months. Upon 
completion of the training course, the

[[Page 3892]]

pilot would be able to print a completion certificate, which the pilot 
would use to demonstrate aeronautical knowledge recency in accordance 
with the proposed revisions to Sec.  107.65.
    The FAA uses the term ``training'' rather than ``training course'' 
in the proposed regulatory text in the relevant sections that address 
training requirements, which would provide the opportunity for the FAA 
to consider completion of special pilot proficiency programs, such as 
an FAA-provided WINGS course \93\ specific to small UAS operations, to 
suffice for fulfillment of the training requirements. Such a program 
would offer tools and resources to strengthen decision-making skills 
and thereby enable the remote pilot to continue to ensure he or she 
operates safely in accordance with part 107. Overall, the FAA expects a 
recurrent online training course, pilot proficiency program, or similar 
option would keep remote pilots informed about enhancements to the 
small UAS industry while reducing costs associated with travel to 
knowledge testing centers.
---------------------------------------------------------------------------

    \93\ WINGS is a voluntary pilot education and proficiency 
program the FAA offers. The program addresses accident causal 
factors associated with common pilot errors, lack of proficiency, 
and faulty knowledge, and is available online. WINGS provides the 
opportunity and the structure for pilots to continue pilots' 
aviation education.
---------------------------------------------------------------------------

(b) Aeronautical Knowledge Areas
    The FAA re-evaluated the knowledge topics that are required for 
initial knowledge tests and those required for training currently 
identified in Sec. Sec.  107.73 and 107.74, respectively. In 
particular, the FAA reviewed the associated knowledge testing standards 
identified in the Remote Pilot--Small Unmanned Aircraft System Airman 
Certification Standards (sUAS ACS) document \94\ and the resource 
guidance identified in the Remote Pilot sUAS ACS. As explained above, 
knowledge regarding operations at night is one of the measures the FAA 
seeks to employ to ensure the safety of operations at night. As such, 
the FAA proposes adding a knowledge area that would cover night 
operations for the initial knowledge test and the training. This area 
would include questions on night physiology and night illusions.
---------------------------------------------------------------------------

    \94\ The FAA's sUAS ACS is available at https://www.faa.gov/training_testing/testing/acs/media/uas_acs.pdf.
_____________________________________-

    The FAA also plans to update its guidance, training, and testing 
material, including the associated knowledge testing standards 
identified in the sUAS ACS document and the resources listed in that 
ACS, to ensure the information is available for those remote pilots who 
seek to operate a small UAS at night. In addition, the FAA would 
provide educational items to the small UAS community through various 
means of communication such as FAASafety.gov, FAA.gov/UAS, and industry 
organizations.
    The existing subject areas on the recurrent knowledge test for 
remote pilots include fewer topic areas than subject areas on the 
initial knowledge test. This proposed rule would amend this by 
requiring inclusion of the same list of subject areas on both the 
initial test and the recurrent training for pilots who hold a remote 
pilot certificate under Sec.  107.65(b). As for pilots who already hold 
a pilot certificate under 14 CFR part 61 as described in Sec.  
107.65(c), this proposed rule would likewise require the initial 
training and the recurrent training cover identical subject areas. The 
FAA has carefully evaluated the topics applicable in each category and 
concludes that consistency in pilots' adequate knowledge in all topic 
areas listed is important for ensuring safety of small UAS operations 
in the NAS. Topics such as weather, small unmanned aircraft loading, 
determining the performance of the small UAS, the effects of drugs and 
alcohol, and radio communication procedures are all sufficiently 
important to warrant a place in recurrent small UAS training.
    In addition, pilots who hold a part 61 certificate and therefore 
need to complete only an abbreviated listing of topic areas should be 
required to complete training on weather, small unmanned aircraft 
loading, and determining the performance of the small UAS. Although the 
2016 final rule stated that the validation of skills necessary for a 
pilot who holds a part 61 certificate to complete flight review for 
manned aircraft obviated the need to address these topics in recurrent 
training for unmanned aircraft, the FAA has now revisited its analysis 
and concluded such a distinction is not well-founded.\95\ For example, 
although a pilot who holds a part 61 certificate will understand the 
effects of weather on a manned aircraft, such effects could be very 
different for operations of small UAS. Likewise, determining the 
performance of a manned aircraft is distinct from the manner in which a 
pilot should determine the performance of a small UAS; in this regard, 
the preflight check requirements of Sec.  107.49 are distinct from 
those codified in part 91 and in other, similar regulations specific to 
manned aircraft.
---------------------------------------------------------------------------

    \95\ See 81 FR 42064, 42162.
---------------------------------------------------------------------------

    The fact that remote pilots operating under part 107 are not 
subject to flight reviews or any practical test criteria from the FAA 
also forms a basis for the FAA's rationale in making the recurrent 
training area topics match the initial topic areas. The FAA has no 
means of knowing remote pilots' weaknesses or areas in which they lack 
experience or recollection. As a result, the FAA's presumption that 
each pilot may lack recollection with regard to every subject area is 
reasonable. For the foregoing reasons, the FAA now proposes to abandon 
the distinctions in the topic areas of initial knowledge tests (or 
training courses) and recurrent training.
    Those remote pilots who hold a remote pilot certificate with a 
small UAS rating who completed initial knowledge testing or training 
prior to this rule becoming final would not have been tested or 
initially trained on operations at night. Although all remote pilots 
who choose to exercise the privileges of their remote pilot in command 
certificate could receive training through an online recurrent training 
course that would cover the subject matter, a period of time would 
exist for some remote pilots in which operations over people would be 
permitted and those remote pilots would not have completed recurrent 
training that includes instruction on night operations. As with all 
airman certificate holders, the FAA expects such remote pilots would 
adhere to the regulations under which they operate even when those 
regulations change. As a result, remote pilots who operate at night 
without having first completed the updated training this rule proposes 
would be operating in violation of Sec.  107.29. The FAA would update 
its guidance, training, and testing material to ensure information is 
available for those remote pilots who seek to exercise this new 
privilege, and would alert the small UAS community accordingly, through 
various means of communication.
    In addition, the regulatory text the FAA proposes with regard to 
eligibility and recency requirements for a remote pilot certificate 
includes the phrase ``in a manner acceptable to the Administrator.'' 
The FAA's addition of this phrase would serve to ensure remote pilots 
who already hold a remote pilot in command certificate under part 107 
and are not yet required to complete their recurrent training would not 
need to re-take a knowledge test or complete training immediately, 
simply because the subject area listings of Sec. Sec.  107.73 and 
107.74 have changed. Instead, remote pilots who wish to operate a small 
UAS at night must take the updated knowledge test or training before 
operating at night.

[[Page 3893]]

V. Other Amendments

    For purposes of consistency throughout part 107, as well as 
clarity, this rule also includes proposals to make certain, specific 
amendments to various provisions of part 107. These amendments are 
minor and concise.

A. UAS Exemption-Holders

    The existing text of Sec.  107.1 excludes from the applicability of 
part 107 remote pilots who hold an exemption for a UAS operation 
pursuant to section 333 of Public Law 112-95. The text identifies the 
remote pilot as the person who is excluded from the applicability of 
part 107. The FAA has concluded this identification is imprecise, as 
the text should identify the excluded party as the exemption-holder, 
rather than the remote pilot. In addition, on October 5, 2018, the 
President signed the FAA Reauthorization Act of 2018.\96\ The statute 
codified within title 49 of the United States Code the authority 
previously provided in section 333 of Public Law 112-95. As a result, 
the citation within Sec.  107.1(b)(3) should reflect 49 U.S.C. 44807 as 
the exemption authority. The FAA proposes re-phrasing the text of Sec.  
107.1(b)(3), accordingly.
---------------------------------------------------------------------------

    \96\ Public Law 115-254.
---------------------------------------------------------------------------

B. Remote Pilot in Command

    Section 107.19 outlines the responsibilities of the remote pilot in 
command under part 107. Following the promulgation of part 107, the FAA 
identified the need for a minor edit to paragraph (c) of Sec.  107.19, 
which currently requires each remote pilot in command to ``ensure 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 aircraft for any reason.'' The FAA amends the phrase ``loss of 
control of the aircraft'' to say ``loss of control of the small 
unmanned aircraft,'' for clarity. The FAA's intention in promulgating 
Sec.  107.19(c) was to ensure the remote pilot in command remains 
responsible for the safe operation of a small unmanned aircraft when a 
loss of control of that small unmanned aircraft occurs. The remote 
pilot in command is not responsible for ensuring the safety of another 
person's aircraft in the event of loss of control; as a result, this 
proposed rule amends the text of Sec.  107.19(c), accordingly.

C. Operation of Multiple Small UAS

    The FAA proposes amending the existing text of Sec.  107.35, which 
prohibits contemporaneous operation of more than one small unmanned 
aircraft. Following the promulgation of part 107, the FAA realized its 
use of the term ``operate'' in Sec.  107.35 could result in the 
perception that a single company or operator was prohibited from 
employing more than one remote pilot in command and conducting more 
than one small UAS operation at the same time. The FAA's proposed 
change to this section would allow companies to run two or more 
simultaneous small UAS operations, provided each aircraft is under the 
control of its own remote pilot in command.

VI. Privacy

    In the 2016 final rule, the FAA acknowledged various organizations' 
and commenters' concerns regarding the use of small UAS to collect 
information about individuals. In that rule, the FAA noted that privacy 
concerns were beyond the scope of the FAA's mission to ensure safety 
and efficiency of aviation operations in the NAS, but discussed various 
methods by which the FAA intended to continue addressing privacy 
concerns through engagement and collaboration with the public, 
stakeholders, and other agencies with authority and subject matter 
expertise in privacy law and policy.
    Proposed regulations to address privacy concerns are beyond the 
scope of the FAA's mission. Nonetheless, the FAA has consistently 
recognized the importance of stakeholder engagement regarding privacy 
implications associated with UAS integration and incorporated privacy 
considerations into the UAS Test Site Program and the UAS Integration 
Pilot Program, under its contracting authority.
    The FAA acknowledges unique characteristics and capabilities of UAS 
may pose uncertainties with regard to individual privacy. However, 
these concerns are generally related to technology and equipment, which 
may be installed on an unmanned (or manned) aircraft, but are unrelated 
to the safe operation of the aircraft. News helicopters, aerial 
surveys, film/television production, law enforcement, and other such 
manned aircraft have long placed cameras and other sensors on them, for 
a variety of purposes.
    Although the FAA regulates the safe and efficient operation of 
aircraft within the NAS, the FAA has never extended its administrative 
reach to regulate the use of cameras and other sensors extraneous to 
the airworthiness or safe operation of the aircraft in order to protect 
individual privacy. Substantial, ongoing debate among policymakers, 
industry, advocacy groups and members of the public has occurred 
regarding: The extent to which UAS operations pose novel privacy 
issues, whether those issues are addressed by existing legal 
frameworks, and the means by which privacy risks should be further 
mitigated. In recognizing the importance of addressing privacy concerns 
in the proper forum, the FAA has partnered with other agencies with the 
mandate and expertise to identify, develop, and implement appropriate 
mitigation strategies to address such concerns. The FAA's discussions 
with stakeholders have informed the FAA as it furthers plans for UAS 
integration. As the FAA stated in a July 20, 2018 press release,\97\ 
Congress exclusively authorized the FAA to regulate aviation safety, 
the efficiency of navigable airspace, and air traffic control, among 
other things. The FAA further stated, ``[l]aws traditionally related to 
state and local police power--including land use, zoning, privacy, and 
law enforcement operations--generally are not subject to federal 
regulation.'' As a result, cities and municipalities, while not 
permitted to have their own rules or regulations governing the 
operation of aircraft, may generally determine the location of aircraft 
landing sites. The FAA expects the Department of Transportation's UAS 
Integration Pilot Program \98\ to provide the FAA with insight on how 
best to involve local jurisdictions in the integration of UAS into the 
airspace while considering local interests in conjunction with aviation 
safety.
---------------------------------------------------------------------------

    \97\ Federal Aviation Administration, Press Release--FAA 
Statement--Federal vs. Local Drone Authority, available at https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938.
    \98\ 82 FR 51903 (Nov. 8, 2017); Presidential Memorandum for the 
Secretary of Transportation (Oct. 25, 2017), available at https://www.whitehouse.gov/the-press-office/2017/10/25/presidential-memorandum-secretary-transportation.
---------------------------------------------------------------------------

    With regard to the information manufacturers and operators may 
submit in accordance with this proposed rule's requirements, the FAA 
conducted a privacy impact assessment (PIA) under section 522(a)(5) of 
division H of the FY 2005 Omnibus Appropriations Act, Public Law 108-
447, 118 Stat. 3268 (Dec. 8, 2004) and section 208 of the E-Government 
Act of 2002, Public Law 107-347, 116 Stat. 2889 (Dec. 17, 2002). As 
part of the PIA, the FAA analyzed the effect the proposed rule might 
have on collecting, storing, and disseminating personally identifiable 
information (PII) of manufacturers and UAS operators. The FAA also 
examined and evaluated protections and alternative information-handling 
processes in developing the proposed rule to mitigate potential privacy 
risks. A copy of the draft PIA is

[[Page 3894]]

posted in the docket for this rulemaking.\99\
---------------------------------------------------------------------------

    \99\ Upon finalization, PIAs are posted on the Department of 
Transportation's Privacy Program page, available at https://www.transportation.gov/individuals/privacy/privacy-impact-assessments#Federal%20Aviation%20Administration%20(FAA).
---------------------------------------------------------------------------

VII. Section 44807 Statutory Findings

    To determine whether certain UAS may operate safely in the NAS 
pursuant to 49 U.S.C. 44807, the Secretary must find that the operation 
of the UAS would not create a hazard to users of the NAS or the public. 
The Secretary must also determine whether a certificate under 49 U.S.C. 
44703 (``Airman certificates'') or section 44704 (``Type certificates, 
production certificates, and airworthiness certificates, and design and 
production organization certificates''), or a certificate of waiver or 
certificate of authorization, is required for the operation of small 
UAS subject to this proposed rule. Using a risk-based approach, the 
Secretary proposes to determine that small UAS operations under this 
proposed rule would operate safely in the NAS; the individual findings 
section 44807 requires are as follows.

A. Hazard to Users of the NAS or the Public

    Section 44807(b)(1) requires the Secretary to determine which types 
of small UAS operations, as a result of their size, weight, speed, 
operational capability, proximity to airports and populated areas, 
operation over people, and operation within or beyond visual line of 
sight, or operation during the day or night do not create a hazard to 
users of the NAS or the public. In the 2016 final rule, the Secretary's 
finding of acceptable risk was based on the following mitigations: 
Requiring operations to be conducted within visual line of sight; 
limiting maximum gross weight of the small unmanned aircraft to be 55 
pounds; limiting the operating altitude to below 400 feet above ground 
level (AGL); requiring remote pilots to hold valid, current 
certificates; defining the area of operation; and prohibiting 
operations over any person who is not directly participating in the 
operation. This proposed rule would allow operations over uninvolved 
people; however, these aircraft would still be required to comply with 
the other restrictions codified in part 107. The additional hazard 
posed by operating directly over people would be mitigated through 
manufacturer requirements and operational restrictions, including 
limited areas of operation for Category 3 aircraft. This rule would 
also allow for operations at night. The proposed risk mitigation 
measures of an illuminated anti-collision light and increased airman 
knowledge would provide sufficient risk mitigation for such operations.
    Accordingly, the Secretary proposes to find that small UAS 
operations subject to this proposed rule would not create a hazard to 
users of the NAS or the public. The FAA invites comments on this 
proposed finding.

B. Certificate Requirements

    Additionally, 49 U.S.C. 44807(b)(2) requires the Secretary to 
determine whether small UAS operations subject to this proposed rule 
pose a safety risk sufficient to require airworthiness certification or 
airman certification.
    Due to the provisions in this proposed rule, in addition to the 
existing provisions in part 107, the risks associated with small UAS 
operations over people are significantly distinct from the risks that 
other types of aircraft operations present. Under part 107, a remote 
pilot must make a determination of whether the small UAS is in a 
condition for safe operation prior to and during flight operations. 
This proposed rule would also require a remote pilot to ensure that his 
or her unmanned aircraft weighs 0.55 pounds or less or has an FAA-
accepted Declaration of Compliance prior to operating over people. 
Similarly, operations at night may only occur after the remote pilot 
has taken the updated knowledge test or training that includes content 
on night operations and when the small unmanned aircraft maintains an 
illuminated anti-collision light. These proposed requirements serve to 
mitigate the risks the proposed operations would present.
    Small UAS operations that occur in accordance with this proposal 
and the requirements of part 107 would pose significantly less risk 
than the level of risk that heavier aircraft present. Moreover, small 
UAS operating under part 107 must remain in a condition for safe 
operation. Therefore, the Secretary proposes to find, pursuant to 49 
U.S.C. 44807(b)(2), that airworthiness certification would be 
unnecessary for small UAS subject to this proposed rule.
    Part 107 currently requires a remote pilot in command certificate 
prior to conducting operations under part 107. The FAA has carefully 
tailored the knowledge and training requirements of part 107, subpart 
C, to ensure remote pilots in command are adequately aware of the 
restrictions and requirements of part 107. This framework is a key 
component of the Secretary's determination. As a result, the Secretary 
proposes to find, in this proposed rule, that a certificate under 49 
U.S.C. 44703 is required. The FAA invites comments on these findings.

VIII. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 
(Public Law 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreement Act of 
1979 (Public Law 96-39) prohibits agencies from setting standards that 
create unnecessary obstacles to the foreign commerce of the United 
States. In developing U.S. standards, the Trade Agreement Act of 1979 
requires agencies to consider international standards and, where 
appropriate, that they be the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires 
agencies to prepare a written assessment of the costs, benefits, and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or Tribal 
governments, in the aggregate, or by the private sector, of $155 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this proposed rule. We suggest readers seeking 
greater detail read the full regulatory evaluation, a copy of which is 
available in the docket for this rulemaking.
    In conducting these analyses, FAA has determined that this proposed 
rule: (1) Has benefits that exceed costs; (2) is not an economically 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866; (3) is ``significant'' as defined in DOT's 
Regulatory Policies and Procedures; (4) would have a significant 
positive economic impact on a substantial number of small entities; (5) 
would not create unnecessary obstacles to the foreign commerce of the 
United States; and (6) would not create a Federal mandate likely to 
result in the expenditure of more than $155 million annually under the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4). These analyses 
are summarized below.

[[Page 3895]]

1. Assumptions and Data
    The benefit and cost analysis for the regulatory evaluation is 
based on the following assumptions:

     The analysis is conducted in constant dollars with 2016 
as the base year.
     Because the commercial small UAS industry may evolve 
differently from current expectations, the FAA determines that a 
five-year period of analysis is appropriate.
     We use a three percent and seven percent discount rate 
for the costs and benefits as prescribed by OMB in Circular A-
4.\100\
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    \100\ https://www.whitehouse.gov/omb/circulars_a004_a_4. 
Accessed August 3, 2017.
---------------------------------------------------------------------------

     The small UAS vehicle forecasts used in this analysis 
are based on the Federal Aviation Administration's FAA Aerospace 
Forecast 2017-2037.\101\
---------------------------------------------------------------------------

    \101\ FAA Aerospace Forecast Fiscal Years 2017-2037 at 30-33, 
available at http://www.faa.gov/data_research/aviation/aerospace_forecasts/media/FY2017-37_FAA_Aerospace_Forecast.pdf.
---------------------------------------------------------------------------

     Small unmanned aircraft that weigh 0.55 lbs. or less 
(Category 1) are not part of this analysis as costs are zero to 
minimal.
     The FAA estimates that 15 existing models may satisfy 
the performance-based requirements of the rule for Category 2 and 
Category 3 operations with little or no modification. These 
operations would be subject to the cost of obtaining a Declaration 
of Compliance. The FAA also assumes manufacturers would likely 
introduce a comparable number of compliant models in each of the 
subsequent years of the analysis.
     The FAA estimates that the remote pilot operating 
manual is 6 pages in length and requires 150 hours to develop at an 
hourly rate of $72.91.
     The FAA assumes that five percent of submitted 
Declarations of Compliance (DoC) documents would be rescinded, 
rewritten, and resubmitted for acceptance. It is assumed that DoCs 
resubmitted to the FAA would be accepted.
     The FAA assigns the United States Department of 
Transportation guidance on the hourly value of time and hourly value 
of travel time savings as to equal $25.40 for the analysis 
period.\102\

    \102\ Time savings is estimated to be median hourly wage plus 
benefits as described in the U.S. Department of Transportation 
Revised Departmental Guidance on Valuation of Travel Time in 
Economic Analysis dated September 27, 2016.
---------------------------------------------------------------------------

2. Benefits Summary
    This proposed rulemaking would further integrate small UAS into the 
NAS by enabling operations over people and nighttime operations. These 
would benefit the economy and encourage innovation and growth across a 
variety of sectors, such as construction, education, infrastructure 
inspection, insurance, marketing, and event, film and sports 
photography.
    Today, remote pilots who comply with part 107 can fly a small UAS 
within a safe distance from people, but are not able to operate over 
people who are not participating in the operation. Without this 
proposed rule, the only entities allowed to operate small UAS over 
people in the NAS are public entities holding an active certificate of 
waiver or authorization (COA), entities with an FAA-issued exemption, 
entities that hold a waiver to the prohibition on operations over 
people provision of part 107, or small UAS that have received 
airworthiness certification from the FAA who also operate with a COA. 
When this proposed rule is finalized, individuals would be able to 
conduct operations of a small UAS over people in the NAS and at night 
under part 107, so long as the activity is conducted by a small UAS 
that complies with the proposed provisions.
3. Costs and Savings Summary
    A manufacturer would incur costs for demonstrating compliance with 
the safety requirements of this proposed rule and providing a 
Declaration of Compliance to the FAA. For both Category 2 and Category 
3 operations, this proposed rule would also require the manufacturer to 
label the aircraft for the appropriate category of operation and to 
provide remote pilot operating instructions for the small UAS upon 
sale, transfer, or use by someone other than the manufacturer. 
Additionally, a small UAS manufacturer would be responsible for the 
development of a website or other notification process for the purpose 
of notifying the public of the continued eligibility of small UAS for 
operations over people under this proposed rule. The costs to the FAA 
from this proposed rule include notice to a manufacturer that a 
Declaration of Compliance has been accepted (or rescinded); the 
development of a website for the FAA to notify the public of small UAS 
that have a Declaration of Compliance rescinded; and altering knowledge 
test questions into a training format. FAA costs are minimal.
    Over the five-year period of analysis, the total present value cost 
of the proposed rule is about $14 million with annualized costs of $3 
million (using a seven percent discount rate).
    This proposed rulemaking would have quantified cost savings. Part 
107 currently requires an applicant for a remote pilot certificate with 
a small UAS rating to go to a knowledge testing center and take the 
initial knowledge test to be eligible for the remote pilot in command 
certificate. To maintain the privileges of that certificate, remote 
pilots currently must pass a recurrent knowledge test at a knowledge 
testing center every 24 calendar months thereafter. This proposed rule 
would remove the requirement for completing a recurrent aeronautical 
knowledge test at a knowledge testing center and replace the 
requirement with completing online training.
    As a result, the remote pilot in command who does not also hold a 
current certificate under part 61 would be relieved of costs associated 
with recurrent knowledge testing every 24 months. The cost savings 
include the elimination of the knowledge test fee; the elimination of 
the mileage expense for travel to and from the knowledge testing 
center; and the elimination of the opportunity cost of time studying 
for the knowledge test and travelling to the knowledge testing center. 
In total, these costs savings average $460 every 24 calendar months per 
affected remote pilot.
    The full regulatory evaluation for this proposed rule presents a 
range of cost savings based on three varying fleet forecasts. 
Subsequently, over the five-year period of analysis, this proposed 
change would provide a total present value cost savings between $38 
million and $135 million with annualized cost savings between $9 
million and $33 million (using a seven percent discount rate).
    The net present value cost savings (less costs) of the proposed 
rule ranges from $24 million to $121 million at a seven percent 
discount rate with net annualized costs savings between $6 million and 
$29 million. The following table presents quantified costs to 
manufacturers and the FAA and savings to remote pilots.

[[Page 3896]]



              Table 6--Costs and Savings of Proposed Rule ($ Millions) 5-Year Period of Analysis *
----------------------------------------------------------------------------------------------------------------
                                                       7% PV       7% Annualized       3% PV       3% Annualized
----------------------------------------------------------------------------------------------------------------
Low case:
    Costs (Manufacturers and FAA)...............             $14              $3             $15              $3
    Cost Savings (Remote Pilots)................            (38)             (9)            (44)            (10)
                                                 ---------------------------------------------------------------
        Net Cost Savings........................            (24)             (6)            (29)             (6)
----------------------------------------------------------------------------------------------------------------
Base case:
    Costs (Manufacturers and FAA)...............              14               3              15               3
    Cost Savings (Remote Pilots)................            (49)            (12)            (57)            (12)
                                                 ---------------------------------------------------------------
        Net Cost Savings........................            (35)             (9)            (42)             (9)
----------------------------------------------------------------------------------------------------------------
High case:
    Costs (Manufacturers and FAA)...............              14               3              15               3
    Cost Savings (Remote Pilots)................           (135)            (33)           (158)            (34)
                                                 ---------------------------------------------------------------
        Net Costs Savings.......................           (121)            (29)           (143)            (31)
----------------------------------------------------------------------------------------------------------------
* Columns may not sum to total due to rounding. Savings are shown in parenthesis to distinguish from costs.

4. Benefit Cost Summary
    This rulemaking responds to Congressional direction that instructs 
the Secretary of Transportation to determine whether ``certain unmanned 
aircraft systems may operate safely in the national airspace 
system.\103\ This proposed rule has been initiated at the request of 
the Administrator and the Secretary of Transportation after 
consultation with the Office of Management and Budget, and the Office 
of Science and Technology Policy in the Executive Office of the 
President. This high-level interest reflects a strong desire from 
industry for operating small UAS over people and is another step toward 
an eventual full integration of unmanned aircraft systems operating in 
the NAS. This rule would expand the opportunities for part 107 remote 
pilots and supports innovation in the emerging UAS industry.
---------------------------------------------------------------------------

    \103\ See Public Law 115-254 347 (2018), codified at 49 U.S.C. 
44807.
---------------------------------------------------------------------------

    The operation of small UAS over people may increase safety risk. 
Although the FAA believes the probability of injury from operating 
small UAS over people is small, when that small probability is 
multiplied by an increased number of operations, the risk of the 
occurrence of injury increases. The proposed performance-based 
standards would establish three categories of small UAS operations 
defined primarily by level of risk of injury posed. Additional 
manufacturer and operational requirements would also apply to certain 
categories of small UAS to mitigate the risks of operating over people.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    The FAA believes this proposed rule would have a significant impact 
on a substantial number of small entities. Therefore, under Section 
603(b) of the RFA, the initial analysis must address:

     Description of reasons the agency is considering the 
action.
     Statement of the legal basis and objectives for the 
proposed rule.
     Description of the record-keeping and other compliance 
requirements of the proposed rule.
     All Federal rules that may duplicate, overlap, or 
conflict with the proposed rule.
     Description and an estimated number of small entities 
to which the proposed rule will apply.
     Description of Significant Regulatory Alternatives for 
Small Entities.
1. Description of Reasons the Agency Is Considering the Action
    This rulemaking proposes performance-based requirements to allow 
small UAS to operate over people or at night under part 107 without 
obtaining a waiver or exemption. Currently under part 107, a remote 
pilot must obtain a waiver or exemption explicitly allowing operations 
over people or at night. As of July 10, 2017, the FAA has received 
2,155 requests for waiver to permit operation at night, 477 requests to 
permit operating over people, and 228 requests to permit operating over 
people at night.\104\
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    \104\ As of September 2017, part 107 Non-Airspace Waivers 
totaled 5,835. Of these 5,835 waivers, 3,915 have been disapproved 
and 1,060 have been approved. Of the remaining waivers, 543 are in 
process, with another 317 withdrawn.
---------------------------------------------------------------------------

    The proposed requirements would allow small UAS to operate over 
people and during the hours of night while minimizing the risk these 
operations may pose to the general public. For operations over people, 
the FAA's proposed performance-based standards would establish three 
categories of small UAS operations defined primarily by level of risk 
of injury posed. Additional manufacturer requirements and operational 
restrictions beyond those already in part 107 would apply to certain 
categories of small UAS to mitigate the risks associated with each 
category.
    This rulemaking also proposes to remove the requirement for 
completing a recurrent aeronautical knowledge test at a knowledge 
testing center and replaces the requirement with completing training 
that requires passing an online knowledge check by achieving a 100% 
score. As a result, the remote pilot in command who does not

[[Page 3897]]

also hold a certificate under part 61 would be relieved of costs 
associated with recurrent knowledge testing every 24 months.
2. Statement of the Legal Basis and Objectives for the Proposed Rule
    The FAA promulgates this rulemaking pursuant to the authority set 
forth in 49 U.S.C. 44807. Section 44807 directs the Secretary of 
Transportation to determine whether ``certain unmanned aircraft systems 
may operate safely in the national airspace system.'' If the Secretary 
determines that certain unmanned aircraft systems may operate safely in 
the NAS, then the Secretary must ``establish requirements for the safe 
operation of such aircraft systems in the national airspace system, 
including operation related to research, development, and testing of 
proprietary systems.'' \105\
---------------------------------------------------------------------------

    \105\ 49 U.S.C. 44807(c).
---------------------------------------------------------------------------

    This rulemaking is also promulgated pursuant to 49 U.S.C. 
40103(b)(1) and (2), which charge the FAA with issuing regulations: (1) 
To ensure the safety of aircraft and the efficient use of airspace; and 
(2) to govern the flight of aircraft for purposes of navigating, 
protecting and identifying aircraft, and protecting individuals and 
property on the ground. In addition, 49 U.S.C. 44701(a)(5) charges the 
FAA with prescribing regulations that the FAA finds necessary for 
safety in air commerce and national security. Lastly, 49 U.S.C. 
46105(c) allows the Administrator to issue immediate orders to address 
an emergency related to safety in air commerce.
    The FAA intends this rule will be an important step in further 
integrating small UAS operations into the NAS. This rule would permit 
operations of small UAS over people and operations at night without 
first obtaining a waiver. This proposed rule would also amend the 
knowledge testing requirements in part 107 to provide for recurrent 
training to substitute for in-person knowledge testing. With this 
proposed rule, the FAA expects the small UAS industry to continue 
finding new and creative ways for utilizing small UAS, and thereby grow 
the industry through innovation. The FAA's overall objective in this 
proposed rule is to ensure safety while encouraging new uses of small 
UAS in the NAS.
3. Description of the Record-Keeping and Other Compliance
Requirements of the Proposed Rule
    The proposed rule would require the manufacturer to declare that a 
small UAS meets applicable performance-based requirements by using a 
means of compliance by test, analysis, or inspection, or any 
combination of these options. A manufacturer could perform any 
necessary tests contained in the means of compliance in-house or they 
could rent a testing facility with the necessary equipment to show 
compliance with the injury limitation based on transfer of kinetic 
energy upon impact. The manufacturer would certify the results from 
this means of compliance testing on its Declaration of Compliance to 
the FAA.
    The proposed rule would require manufacturers of small UAS who use 
a means of compliance the FAA has accepted for Category 2 or Category 3 
operations, to make available to the Administrator the Declaration of 
Compliance and any other document, record, or report that the proposal 
requires, upon the FAA's request. The proposed rule would provide 
record retention requirements for manufacturers who submit either a 
Declaration of Compliance or a means of compliance to the FAA. With 
today's minimal cost of producing electronic documents and mass storage 
hardware devices, the FAA expects manufacturers would keep all relevant 
documents, records, or reports required in an electronic format and 
properly back up their storage systems. Therefore, this requirement 
would add minimal to no costs to the manufacturers because 
manufacturers would already have computer systems, with sufficient 
memory available, to store and produce the documents this proposal 
requires.
    The proposed rule would require a manufacturer to label a small 
unmanned aircraft qualified for Category 2 or Category 3 operations 
with each category for which the small UAS is qualified to operate such 
that the label is in English, legible, prominent, and affixed onto the 
small unmanned aircraft by some permanent means. In addition, the FAA 
proposes requiring remote pilots to ensure their small unmanned 
aircraft are properly labeled before conducting any operations over 
people. The FAA believes the cost of adding the additional labeling 
information for the category for which the small UAS is qualified to 
operate would be minimal given that UAS typically come with a label 
containing information such as the name of the manufacturer, serial 
number, and model name or number. In addition, if the label has worn 
out due to use or age, the remote pilot could satisfy the proposal by 
using a permanent marker, or etching the category into the body of the 
small unmanned aircraft.
    The proposed rule would require a small UAS manufacturer to 
establish and maintain a product support and notification process to 
notify the public and the FAA of any safety issues that would render 
the aircraft ineligible for operations over people. The FAA believes 
manufacturers of small UAS would have such a system already developed 
and in place to handle their warranties and to inform users of their 
small UAS about new developments and new products they are bringing to 
the marketplace. This proposal does not require the owner of a small 
UAS to send in a warranty card or provide the manufacturer any personal 
contact information. Therefore, the FAA believes the cost of this 
requirement would be minimal. The FAA notes a manufacturer could be an 
individual that modifies a small UAS and then sells it. According to 
the proposal, this individual would also be required to have a 
notification and support process in place. The FAA envisions this 
process would be scaled to the production, so the individual who sells 
a single aircraft could establish a much smaller scale process. For 
example, the manufacturer could simply email the owner of the small UAS 
and advise them of any safety issues. The FAA also believes for a 
small-scale manufacturer or a modifier, the requirement to maintain a 
product support and notification process would also result in minimal 
costs.
4. All Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    The FAA is unaware that the proposed rule will overlap, duplicate 
or conflict with existing Federal rules.
5. Description and an Estimated Number of Small Entities to Which the 
Proposed Rule Will Apply
    This proposed rule would apply to two separate communities of small 
entities: Manufacturers of small UAS and entities that operate small 
UAS. The FAA has not quantified the number of manufacturers that would 
be subject to the proposed rule because the FAA cannot reasonably 
predict how the market will develop for individual commercial uses of 
small UAS. However, one database that the FAA has access to identifies 
2,126 manufacturers of UAS worldwide.\106\ Out of these 2,126 
manufacturers, over 72 percent are foreign entities. Additionally, 
Association of Unmanned Vehicle Systems International (AUVSI)

[[Page 3898]]

examined the top 15 platforms used by section 333 exemption holders, 
and determined that only 3 of the 15 platforms are manufactured by U.S. 
entities, with over half (8 platforms) manufactured by DJI Industries, 
a company based in China. It is not known how many of these 
manufacturers currently build, or will build in the future, small UAS 
that may fit within the bounds of this rulemaking. The FAA requests 
comments on the number of U.S. owned and operated small manufacturers 
of small UAS that would be affected by this proposed rule.
---------------------------------------------------------------------------

    \106\ AUVSI Air Platform Database (accessed August 2018).
---------------------------------------------------------------------------

    To be eligible for operations over people, a manufacturer must 
submit a Declaration of Compliance that would generally include the 
test report that is generated by following an acceptable means of 
compliance. Based on information from industry, the FAA estimated the 
one-time cost for developing the means of compliance to be 
$200,000.\107\ The FAA considers this cost as an upper bound; as 
methods become standardized, the cost will be reduced. To provide 
flexibility to small entities, this rule proposes several performance-
based requirements that would accommodate varying means of compliance. 
In this manner, the FAA would build flexibility into the regulations, 
which would adapt to the fast pace of small UAS innovation and 
development. The FAA requests information and data on the cost of 
developing varying means of compliance for small manufacturers.
---------------------------------------------------------------------------

    \107\ The FAA received aggregated cost data that included the 
full rental of a research facility that has a drop tower, the set-up 
of the facility, testing equipment costs, the cost of small UAS to 
be tested, and the cost of time experts spend on testing and 
analysis among other information. The FAA did not receive itemized 
cost data to perform a sensitivity analysis of the costs for varying 
means of compliance.
---------------------------------------------------------------------------

    The FAA determines many of the small UAS operations over people or 
at night will be conducted by small business entities. Based on 
analysis conducted by AUVSI, over 85 percent of waivers granted have 
been to small businesses.\108\ Therefore, the FAA determines this 
proposed rule would have a positive significant economic impact on a 
substantial number of small entities.
---------------------------------------------------------------------------

    \108\ (AUVSI) Association of Unmanned Vehicle Systems 
International. As of July 31, 2017, 1,074 waivers had been issued of 
which 85 percent were granted to small entities (entities with less 
than 10 employees).
---------------------------------------------------------------------------

6. Description of Significant Regulatory Alternatives Considered for 
Small Entities
    The FAA considered both more and less costly alternatives as part 
of its NPRM because the RFA requires the agency to consider significant 
regulatory alternatives that meet the agency's statutory objectives and 
minimize the costs to small entities. The FAA rejected the costlier 
alternatives due to policy considerations and the undue burden imposed 
on small UAS operators. The less costly alternatives and the FAA's 
reasons for rejecting those alternatives are discussed below. In 
addition, the FAA discusses performance-based means of compliance that 
may provide additional flexibility and minimize costs to small 
entities.

     The FAA considered hands-on remote pilot flight 
training as part of the requirements for operating a small UAS over 
people or at night. However, at this time, the FAA does not have 
enough knowledge or experience with the operation of small UAS on a 
large scale to assess whether training beyond part 107 requirements 
is warranted.
     The FAA considered allowing Category 3 operations on a 
closed- or restricted-access site without requiring notice that the 
operation was taking place. The FAA rejected this alternative due to 
the increased severity of an injury resulting from a small unmanned 
aircraft impacting a person with up to 25 foot-pounds of kinetic 
energy.
     The FAA considered proposing a Category 4 to include 
operations in which a small UAS may operate over people, including 
flights over crowds or dense concentrations of people, if: (1) The 
manufacturer of the small UAS certifies the aircraft satisfies the 
same impact energy threshold as small UAS eligible to conduct 
Category 3 operations; (2) the small UAS complies with industry 
consensus standards; and (3) the operation is conducted in 
compliance with a documented risk mitigation plan. The FAA rejected 
this alternative due to the increased severity of an injury 
resulting from a small unmanned aircraft impacting a person with up 
to 25 foot-pounds of kinetic energy.
     The FAA considered incorporating the standards of 14 
CFR 23.1401 or 27.1401 (``Anti-collision light system'') for night 
operations under part 107. Part 107 does not contain aircraft 
certification rules or standards, and the FAA concludes the reduced 
risk small UAS operations pose does not warrant application of such 
standards. In addition, the diverse range of aircraft that may 
operate under part 107 render prescriptive lighting requirements for 
all types of operations at night impractical. Prescribing lighting 
requirements would be overly burdensome for both the FAA and 
manufacturers of small UAS, because they would be forced to make 
tradeoffs that affect both the weight of the aircraft and the 
aircraft's power source and supply.
     The FAA considered the status quo. In other words, 
requiring those entities that want to perform operations over people 
or operations at night to go through the process of obtaining a 
waiver. The FAA rejected this alternative due to the undue burden it 
would impose on small UAS operators without an expectation of an 
increased level of safety.

    As previously discussed in this section, the FAA considered and 
incorporated performance-based requirements that would accommodate 
varying means of compliance and potentially provide flexibility to 
small manufacturers. However, the FAA did not identify itemized cost 
data to perform a sensitivity analysis of the costs for varying means 
of compliance for small manufacturers. Instead, the FAA estimates the 
cost of developing a means of compliance assuming it would involve the 
full costs of testing in a research facility. The FAA requests 
information and data on types of means of compliance that would be 
flexible and scalable and minimize costs to small manufacturers.

C. International Trade Impact Assessment

    The Trade Agreement Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
considered the ongoing work of international organizations and other 
countries. No international standards currently exist for the types of 
operations the FAA proposes in this rule. In addition, the FAA's 
proposed requirements would not create any obstacle to foreign 
commerce. The FAA will maintain its awareness of other countries' and 
international organizations' work in developing potential standards 
relevant to small UAS operations.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently

[[Page 3899]]

uses an inflation-adjusted value of $155.0 million in lieu of $100 
million. The assessment may be included in conjunction with other 
assessments, as it is here.
    Although this proposed rule is a significant regulatory action, it 
does not contain a mandate that would impose costs on the private 
sector of more than $155 million annually.\109\ As a result, the 
requirements of Title II of the Act do not apply.
---------------------------------------------------------------------------

    \109\ The Unfunded Mandates Reform Act of 1995 defines ``Federal 
private sector mandate'' as ``any provision in legislation, statute, 
or regulation that . . . would impose an enforceable duty upon the 
private sector . . . or would reduce or eliminate the amount of 
authorization of appropriations for Federal financial assistance 
that will be provided to the private sector for the purposes of 
ensuring compliance with such duty.'' Public Law 104-4 section 658 
(1995).
---------------------------------------------------------------------------

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. According to the 1995 
amendments to the Paperwork Reduction Act (as implemented by 5 CFR 
1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection 
of information, nor may it impose an information collection 
requirement, unless it displays a currently valid Office of Management 
and Budget (OMB) control number.
    This rule proposes to add a new information collection for the 
Operation of Small Unmanned Aircraft over People. This information 
collection includes the estimated burdens for the Declaration of 
Compliance, Means of Compliance, and the development of remote pilot 
operating instructions.
    This proposed rule also eliminates information collection 
requirements from the 2016 final rule as a result of changes to the 
recurrent knowledge testing requirement. In addition, it may reduce the 
number of waiver applications the FAA receives because under this 
proposed rule, most operations at night and some operations over people 
would be permissible in the absence of a waiver.
    Below is a discussion of each of these information-collection 
requirements in detail. As required by the Paperwork Reduction Act of 
1995 (44 U.S.C. 3507(d)), the FAA has submitted these proposed 
information collection amendments to OMB for its review.
    Summary for Declaration of Compliance and Means of Compliance: The 
information collection addresses a manufacturer's submission of the 
Declaration of Compliance and the Means of Compliance to the FAA for 
the purpose of demonstrating that the small UAS fulfills the applicable 
standards for Category 2 and Category 3 operations. It also addresses 
manufacturers' compliance with the record retention requirements 
associated with submitting justification to establish compliance.
    The Declaration of Compliance includes the following information:

     Manufacturer's name, physical address, and email 
address;
     the small unmanned aircraft system make, model name, 
and serial number;
     whether the Declaration of Compliance is an initial 
declaration or an amended declaration, and if amended, the reason 
for resubmittal;
     A process for notifying customers of conditions that 
could render the small UAS ineligible for operations over people; 
and
     certification that the manufacturer has demonstrated 
that the small unmanned aircraft satisfies the kinetic energy and 
exposed rotating parts standards through an accepted Means of 
Compliance.

    The Means of Compliance demonstrates through test, analysis, or 
inspection that the small UAS is eligible for operations pursuant to 
Category 2 and/or Category 3. The Means of Compliance includes the 
following information: Detailed description of the means of compliance, 
and justification (including any substantiating material) showing the 
means of compliance establishes achievement of or equivalency to the 
safety level identified.
    Use: The FAA uses the Declaration of Compliance and Means of 
Compliance to either accept or not accept that the manufacturer has 
demonstrated compliance with the requirements applicable to Category 2 
and/or Category 3 operations.

              Table 7--Annual Burden Estimate for Declaration of Compliance and Means of Compliance
                                                   [In hours]
----------------------------------------------------------------------------------------------------------------
              Year                    Initial       Resubmitted        Pages      Hours per page   Hourly burden
----------------------------------------------------------------------------------------------------------------
1...............................              15            0.75              50               1           787.5
2...............................              15            0.75              50               1           787.5
3...............................              15            0.75              50               1           787.5
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............  ..............  ..............         2,362.5
----------------------------------------------------------------------------------------------------------------

    The cost for the information collection on an hourly basis is a 
wage of $72.91, for an annual cost of $57,417 for the small UAS 
manufacturers to submit their declarations. Over the 3-year analysis 
period, the total cost is approximately $172,250 in 2016 dollars.
    Summary for Remote Pilot Operating Instructions: The information 
collection addresses the manufacturer's recordkeeping associated with 
the development and maintenance of remote pilot operating instructions 
for small UAS operating over people. The remote pilot operating 
instructions must address, at a minimum:

     A system description that includes the required small 
UAS components, any system limitations, and the declared category or 
categories of operation;
     Modifications that will not change the ability of the 
small UAS to meet the requirements for the category or categories of 
operation the small UAS is eligible to conduct, and
     Instructions for how to verify and change the mode or 
configuration of the small UAS, if they are variable.

    Use: In order to operate a small UAS safely over people, the remote 
pilot would be responsible for knowing what category of operations his 
or her small UAS is eligible to conduct, and what technical and 
operational limitations apply to the operations. Accordingly, the FAA 
proposes to require manufacturers to provide remote pilot operating 
instructions with product-specific information.

[[Page 3900]]



                    Table 8--3-Year Burden Estimates for Remote Pilot Operating Instructions
                                                     [Hours]
----------------------------------------------------------------------------------------------------------------
                                                     Operating
                      Year                         instructions        Pages      Hours per page   Hourly burden
----------------------------------------------------------------------------------------------------------------
1...............................................              15               6              25             150
2...............................................              15               6              25             150
3...............................................              15               6              25             150
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............             450
----------------------------------------------------------------------------------------------------------------

    The cost per hour for the information collection is a wage of 
$72.91, for an annual cost of $10,937 for small UAS manufacturers to 
develop and maintain remote pilot operating instructions. Over the 3-
year analysis period, the total cost is approximately $32,810 in 2016 
dollars.
    Summary for Labeling of Unmanned Aircraft: Given that a small UAS 
could be qualified to conduct more than one category of operations, the 
FAA proposes requiring a manufacturer label the small UAS with each 
category of operations the small UAS is qualified to conduct. For 
example, a small UAS qualified to conduct Category 2 operations may 
also be qualified to conduct Category 3 operations. The manufacturer 
would label such a small UAS with each category, as follows: ``Cat. 2, 
3'' or ``Category 2, 3''. The label could be painted onto, etched into, 
or affixed to the aircraft by some other permanent means.
    Use: The proposed labeling requirement would assist the remote 
pilot to know what category of operations his or her small UAS is 
eligible to conduct, and what technical and operational limitations 
apply to the operations. The proposed labeling requirement would also 
assist the FAA in its oversight role because it provides an efficient 
means for an inspector to evaluate whether an operation is consistent 
with the category or categories of operation the small UAS may conduct. 
Because Category 3 operations would entail unique operating 
limitations, the label on small unmanned aircraft eligible to conduct 
Category 3 operations would indicate to the remote pilot that he or she 
must adhere to the applicable operating limitations.\110\
---------------------------------------------------------------------------

    \110\ The labeling requirement this rule proposes is not the 
sole means by which a remote pilot in command will be aware of the 
operating limitations applicable to Category 3 operations. Remote 
pilots in command must maintain awareness of updated regulations, as 
required by proposed Sec. Sec.  107.73(a) and 107.74(a) in this 
rule. As a result, initial knowledge testing and recurrent training 
implemented after the effective date of this proposed rule would 
include operations over people as a subject area on both the test 
and training.

                         Table 9--3-Year Burden Estimates for Labeling Unmanned Aircraft
                                                     [Hours]
----------------------------------------------------------------------------------------------------------------
                                                                     Number of       Hours per
                              Year                                   platforms       redesign      Hourly burden
----------------------------------------------------------------------------------------------------------------
1...............................................................              15               2              30
2...............................................................              15               2              30
3...............................................................              15               2              30
                                                                 -----------------------------------------------
    Total.......................................................  ..............  ..............              90
----------------------------------------------------------------------------------------------------------------

    The FAA assumes that a manufacturer would redesign a label already 
affixed to the aircraft, and that the label redesign and redesign 
approval would take a maximum of two hours at an hourly wage of $72.91, 
for an annual cost of $2,187. Over the 3-year analysis period, the 
total cost is approximately $6,562 in 2016 dollars.
    Summary for Replacing Recurrent Knowledge Testing Requirement with 
Recurrent Training. The FAA is proposing to revise existing information 
collection 2120-0021, Certification: Pilots and Flight Instructors, to 
reflect a reduction in the information collection burden as a result of 
replacing recurrent in-person knowledge testing with recurrent online 
training.
    Following the implementation of part 107, the FAA re-evaluated its 
testing requirements for remote pilots. The FAA maintains the current 
initial testing requirement to evaluate a remote pilot's knowledge for 
operating in the NAS is critical, given the absence of a requirement 
for a practical test or proficiency course in obtaining a remote pilot 
certificate. The FAA, however, has concluded that requiring recurrent 
training in lieu of recurrent knowledge testing will achieve the 
necessary assurance the FAA seeks with regard to remote pilots' ongoing 
familiarity with small UAS operations and the provisions of part 107. 
Recurrent training, which a remote pilot can complete online, presents 
a less costly option and will achieve a level of assurance of knowledge 
that is comparable to the assurance a recurrent test provides.
    The FAA maintains that completion of training every two years is 
important in ensuring the remote pilots' familiarity with small UAS 
operations under part 107. As a result, this proposed rule would 
replace the recurrent knowledge testing requirement with a requirement 
to complete an online recurrent training, which the FAA may tailor to 
address any knowledge areas in which the remote pilot needs 
improvement. Thus, each remote pilot eligible to take recurrent 
knowledge training as a result of this proposed rulemaking would no 
longer be required to take a knowledge test.
    Use: A training course affords the FAA the ability to ensure remote 
pilots are aware of the key requirements that affect them, address new 
or changed requirements in part 107 as a result of subsequent 
rulemakings, and highlight the tools and resources available to remote 
pilots. Such training would

[[Page 3901]]

ensure remote pilots stay current and aid in their decision-making so 
they can continue to operate safely within the boundaries part 107 has 
established. The table below shows the hourly savings in terms of the 
annual information collection burden.

                                      Table 10--3-Year Burden Estimate--Savings From Eliminating Recurrent Testing
                                                                         [Hours]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Applicant
                      Year                         Pages per       time       Low case     Low case    Base case    Base case    High case    High case
                                                  application    (hours)       pages        hours        pages        hours        pages        hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...............................................           70            3      915,692       39,244    1,039,015       44,529    2,264,918       97,068
2...............................................           70            3    1,673,944       71,740    1,899,440       81,405    4,140,494      177,450
3...............................................           70            3    2,164,218       92,752    2,868,812      122,949    8,362,221      358,381
                                                 -------------------------------------------------------------------------------------------------------
    Total.......................................           70            3    4,753,854      203,737    5,807,267      248,883   14,767,633      632,899
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rows and Columns may not sum to total due to rounding. Recurrent testing is not required until 2018.


                       Table 11--3-Year Burden Estimates for Relief From Recurrent Testing
                                                   [$Millions]
----------------------------------------------------------------------------------------------------------------
                                                                         Savings ($Millions)--by scenario
                      Year                         Hourly value  -----------------------------------------------
                                                      of time           Low            Base            High
----------------------------------------------------------------------------------------------------------------
1...............................................          $25.40            $1.0            $1.1            $2.5
2...............................................           25.40             1.8             2.1             4.5
3...............................................           25.40             2.4             3.1             9.1
                                                 ---------------------------------------------------------------
    Total.......................................  ..............             5.2             6.3            16.1
----------------------------------------------------------------------------------------------------------------
Rows and Columns may not sum to total due to rounding.

    Individuals and organizations may send comments on the information 
collection requirement to the address listed in the ADDRESSES section 
at the beginning of this preamble by April 15, 2019. Comments also 
should be submitted to the Office of Management and Budget, Office of 
Information and Regulatory Affairs, Attention: Desk Officer for FAA, 
New Executive Office Building, Room 10202, 725 17th Street NW, 
Washington, DC 20053.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified no differences with these regulations.

G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this notice of proposed rulemaking action qualifies for the 
categorical exclusion identified in paragraph 5-6.6 of FAA Order 
1050.1F and involves no extraordinary circumstances.

IX. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism.\111\ The agency has 
determined this action would not have a substantial direct effect on 
the States, or the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government and therefore would not have federalism 
implications.
---------------------------------------------------------------------------

    \111\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use.\112\ The agency has determined this rule would 
not be a ``significant energy action'' under the executive order and 
would not be likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
---------------------------------------------------------------------------

    \112\ 66 FR 28355 (May 18, 2001).
---------------------------------------------------------------------------

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation,\113\ promotes international regulatory cooperation to meet 
shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this proposed rule under the policies and agency 
responsibilities of Executive Order 13609, and has determined this 
proposal would have no effect on international regulatory cooperation.
---------------------------------------------------------------------------

    \113\ 77 FR 26413 (May 1, 2012).
---------------------------------------------------------------------------

D. Executive Order 13771, Reducing Regulation and Controlling 
Regulatory Costs

    This proposed rule is expected to be an Executive Order 13771 
deregulatory action. Details on the estimated cost savings of this 
proposed rule can be found in the rule's economic analysis.

X. Tribal Outreach

    Consistent with Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments,\114\ and FAA Order 
1210.20, American Indian

[[Page 3902]]

and Alaska Native Tribal Consultation Policy and Procedures,\115\ the 
FAA ensures that federally recognized Tribes (Tribes) are given the 
opportunity to provide meaningful and timely input regarding proposed 
Federal actions that have the potential to affect uniquely or 
significantly their respective Tribes. At this point, the FAA has not 
identified any unique or significant effects, environmental or 
otherwise, on tribes resulting from this proposed rule. As the FAA 
contemplated in the 2016 final rule, the FAA has conducted outreach to 
tribes and responded to those tribes seeking information about small 
UAS operations conducted within their territory.
---------------------------------------------------------------------------

    \114\ 65 FR 67249 (Nov. 6, 2000).
    \115\ FAA Order No. 1210.20 (Jan. 28, 2004), available at http://www.faa.gov/documentLibrary/media/1210.pdf.
---------------------------------------------------------------------------

    The FAA continues to evaluate how it might address such concerns 
within the broader UAS integration effort.\116\ In particular, the FAA 
is currently engaged in steps to fulfill the President's recent 
direction to the Secretary to establish a pilot program under which 
State, local, and tribal governments can submit proposals to the 
Secretary to test and evaluate the integration of civil and public UAS 
operations into the low-altitude NAS.\117\ The pilot program involves 
cultivating relationships with State, local, and tribal jurisdictions 
to promote the safe operation of UAS and enable the development of UAS 
technologies and their use in agriculture, commerce, emergency 
management, human transportation, and other sectors.
---------------------------------------------------------------------------

    \116\ 81 FR 42064, 42189.
    \117\ 82 FR 51903 (Nov. 8, 2017); Presidential Memorandum for 
the Secretary of Transportation (Oct. 25, 2017), available at 
https://www.whitehouse.gov/the-press-office/2017/10/25/presidential-memorandum-secretary-transportation.
---------------------------------------------------------------------------

    The FAA has also conducted outreach to tribes to ensure they are 
familiar with the provisions of part 107 and how they might apply in 
Indian country, and that they are aware of FAA's plans for additional 
rulemakings to integrate UAS into the NAS. As part of that outreach, 
the FAA has:

     Provided material on the 2016 final rule to 
participants at the mid-year conference of the National Congress of 
American Indians (Spokane, Washington, June 27-30, 2016);
     Presented at a workshop at the National Tribal 
Transportation Conference (Anaheim, California, October 4, 2016);
     Responded to inquiries from the Shoshone-Bannock Tribes 
and Muscogee (Creek) Nation regarding use of UAS (September and 
October 2016);
     Presented information on UAS at a meeting of the Tribal 
Transportation Self-Governance Program Negotiated Rulemaking Meeting 
(Shawnee, Oklahoma, October 18, 2016); and
     Provided information to The Choctaw Nation of Oklahoma, 
which is participating in the UAS Integration Pilot Program.\118\ 
Through this program, the FAA will work with The Choctaw Nation to 
ensure safe UAS operations for the purposes of agriculture, public 
safety, and infrastructure inspections. Such operations may include 
operations over people and operations at night.
---------------------------------------------------------------------------

    \118\ Federal Aviation Administration, UAS Integration Pilot 
Program (May 7, 2018), available at https://www.faa.gov/uas/programs_partnerships/uas_integration_pilot_program/. See also

    The FAA will continue to respond to tribes that express interest in 
or concerns about UAS operations, and will engage in government-to-
government consultation with tribes as appropriate, in accordance with 
Executive Orders and FAA guidance.

XI. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
also invites comments relating to the economic, environmental, energy, 
or federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, commenters should send only one copy of written 
comments, or if comments are filed electronically, commenters should 
submit only one time.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this proposed rulemaking. Before acting on this 
proposal, the FAA will consider all comments it receives on or before 
the closing date for comments. The agency may change this proposal in 
light of the comments it receives.

B. Proprietary or Confidential Business Information

    Commenters should not file proprietary or confidential business 
information in the docket. Such information must be sent or delivered 
directly to the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this document, and marked as proprietary or 
confidential. If submitting information on a disk or CD ROM, mark the 
outside of the disk or CD ROM, and identify electronically within the 
disk or CD ROM the specific information that is proprietary or 
confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary 
information filed with a comment, the agency does not place it in the 
docket. It is held in a separate file to which the public does not have 
access, and the FAA places a note in the docket that it has received 
it. If the FAA receives a request to examine or copy this information, 
it treats it as any other request under the Freedom of Information Act 
(5 U.S.C. 552). The FAA processes such a request under Department of 
Transportation procedures found in 49 CFR part 7.

C. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the 
internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or
    3. Accessing the Government Publishing Office's web page at https://www.govinfo.gov/.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule, 
including economic analyses and technical reports, may be accessed from 
the internet through the Federal eRulemaking Portal referenced above.

D. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. A small entity with questions regarding this 
document may contact its local FAA official, or the person listed under 
the FOR FURTHER INFORMATION CONTACT heading at the beginning of the 
preamble. To find out more about SBREFA online, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 107

    Aircraft, Airmen, Aviation safety, Reporting and recordkeeping 
requirements, Security measures, Signs and symbols, Small unmanned 
aircraft, Unmanned aircraft.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration

[[Page 3903]]

proposes to amend chapter I of title 14, Code of Federal Regulations as 
follows:

PART 107--SMALL UNMANNED AIRCRAFT SYSTEMS

0
1. The authority citation for part 107 is revised to read as follows:

    Authority:  49 U.S.C. 106(f), 40101 note, 40103(b), 44701(a)(5), 
46105(c), 46110, 44807.

0
2. Amend Sec.  107.1 by revising paragraphs (a) and (b)(3) to read as 
follows:


Sec.  107.1  Applicability.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to the registration, airman certification, and operation of 
civil small unmanned aircraft systems within the United States. This 
part also applies to the qualification of civil small unmanned aircraft 
systems to operate over human beings in the United States.
    (b) * * *
    (3) Any operation that the holder of an exemption under section 333 
of Public Law 112-95 or 49 U.S.C. 44807 elects to conduct pursuant to 
the exemption, unless otherwise specified in the exemption.
0
3. Amend Sec.  107.3 by adding the definitions of ``Casualty'' and 
``Declaration of Compliance'' in alphabetical order to read as follows:


Sec.  107.3  Definitions.

* * * * *
    Casualty means an Abbreviated Injury Scale level 3 or greater 
injury.
* * * * *
    Declaration of Compliance means a record submitted to the FAA that 
certifies the small unmanned aircraft system conforms to the Category 2 
or Category 3 requirements under subpart D of this part.
* * * * *
0
4. Amend Sec.  107.5 by revising paragraphs (b)(2) and (3) and adding 
paragraph (b)(4) to read as follows:


Sec.  107.5  Falsification, reproduction or alteration.

* * * * *
    (b) * * *
    (2) Denial of a Declaration of Compliance;
    (3) Suspension or revocation of any certificate, waiver, or 
Declaration of Compliance issued or accepted by the Administrator under 
this part and held by that person; or
    (4) A civil penalty.
0
5. Amend Sec.  107.7 by revising paragraph (a) and adding paragraphs 
(c) and (d) to read as follows:


Sec.  107.7  Inspection, testing, and demonstration of compliance.

    (a)(1) A remote pilot in command, owner, or person manipulating the 
flight controls of a small unmanned aircraft system must present his or 
her remote pilot certificate with a small UAS rating and identification 
that contains the information listed at Sec.  107.67(b) for inspection 
upon a request from:
    (i) The Administrator;
    (ii) An authorized representative of the National Transportation 
Safety Board;
    (iii) Any Federal, State, or local law enforcement officer; or
    (iv) An authorized representative of the Transportation Security 
Administration.
    (2) A remote pilot in command, owner, or person manipulating the 
flight controls of a small unmanned aircraft system must, upon request, 
make available to the Administrator any document, record, or report 
required to be kept under the regulations of this chapter.
* * * * *
    (c) Any person holding an FAA-accepted Declaration of Compliance 
under subpart D of this part must, upon request, make available to the 
Administrator:
    (1) The Declaration of Compliance required under subpart D of this 
part; and
    (2) Any other document, record, or report required to be kept under 
the regulations of this chapter.
    (d) Any person holding an FAA-accepted Declaration of Compliance 
under subpart D of this part must, upon request, allow the 
Administrator to inspect its facilities, technical data, and any 
manufactured small UAS and witness any tests necessary to determine 
compliance with that subpart.
0
6. Amend Sec.  107.19 by revising paragraph (c) to read as follows:


Sec.  107.19  Remote pilot in command.

* * * * *
    (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.
* * * * *
0
7. Amend Sec.  107.29 by revising paragraph (a) to read as follows:


Sec.  107.29  Operation at night.

    (a) No person may operate a small unmanned aircraft system at night 
unless:
    (1) The remote pilot in command of the small unmanned aircraft has 
completed an initial knowledge test or training, as applicable, under 
Sec.  107.73 or Sec.  107.74, after [the effective date of a subsequent 
final rule]; and
    (2) The small unmanned aircraft has lighted anti-collision lighting 
visible for at least 3 statute miles. The remote pilot in command may 
reduce the intensity of, but may not extinguish, the anti-collision 
lighting if he or she determines that, because of operating conditions, 
it would be in the interest of safety to do so.
* * * * *
0
8. Revise Sec.  107.35 to read as follows:


Sec.  107.35  Operation of multiple small unmanned aircraft.

    A person may not manipulate flight controls or act as a remote 
pilot in command or visual observer in the operation of more than one 
unmanned aircraft at the same time.
0
9. Revise Sec.  107.39 to read as follows:


Sec.  107.39  Operation over human beings.

    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.
0
10. Amend Sec.  107.49 by revising paragraphs (d) and (e) and adding 
paragraph (f) to read as follows:


Sec.  107.49  Preflight familiarization, inspection, and actions for 
aircraft operation.

* * * * *
    (d) If the small unmanned aircraft is powered, ensure that there is 
enough available power for the small unmanned aircraft system to 
operate for the intended operational time;
    (e) Ensure that any object attached or carried by the small 
unmanned aircraft is secure and does not adversely affect the flight 
characteristics or controllability of the aircraft; and
    (f) If the operation will be conducted over human beings under 
subpart D of this part, ensure that the aircraft meets the requirements 
of Sec.  107.110, Sec.  107.115(a), or Sec.  107.120(a), as applicable.
0
11. Amend Sec.  107.61 by revising paragraph (d) to read as follows:


Sec.  107.61  Eligibility.

* * * * *

[[Page 3904]]

    (d) Demonstrate aeronautical knowledge by satisfying one of the 
following conditions, in a manner acceptable to the Administrator:
    (1) Pass an initial aeronautical knowledge test covering the areas 
of knowledge specified in Sec.  107.73; or
    (2) If a person holds a pilot certificate (other than a student 
pilot certificate) issued under part 61 of this chapter and meets the 
flight review requirements specified in Sec.  61.56, complete training 
covering the areas of knowledge specified in Sec.  107.74.
0
12. Revise Sec.  107.65 to read as follows:


Sec.  107.65  Aeronautical knowledge recency.

    A person may not exercise the privileges of a remote pilot in 
command with small UAS rating unless that person has accomplished the 
following in a manner acceptable to the Administrator within the 
previous 24 calendar months:
    (a) Passed an initial aeronautical knowledge test covering the 
areas of knowledge specified in Sec.  107.73;
    (b) Completed recurrent training covering the areas of knowledge 
specified in Sec.  107.73; or
    (c) If a person holds a pilot certificate (other than a student 
pilot certificate) issued under part 61 of this chapter and meets the 
flight review requirements specified in Sec.  61.56, completed training 
covering the areas of knowledge specified in Sec.  107.74.
    (d) A person who has passed a recurrent aeronautical knowledge test 
in a manner acceptable to the Administrator or who has satisfied the 
training requirement of paragraph (c) of this section prior to [the 
effective date of a subsequent final rule] within the previous 24 
calendar months is considered to be in compliance with the requirement 
of paragraph (b) or (c) of this section, as applicable.
0
13. Revise Sec.  107.73 to read as follows:


Sec.  107.73  Knowledge and training.

    An initial aeronautical knowledge test and recurrent training 
covers the following areas of knowledge:
    (a) Applicable regulations relating to small unmanned aircraft 
system rating privileges, limitations, and flight operation;
    (b) Airspace classification, operating requirements, and flight 
restrictions affecting small unmanned aircraft operation;
    (c) Aviation weather sources and effects of weather on small 
unmanned aircraft performance;
    (d) Small unmanned aircraft loading;
    (e) Emergency procedures;
    (f) Crew resource management;
    (g) Radio communication procedures;
    (h) Determining the performance of the small unmanned aircraft;
    (i) Physiological effects of drugs and alcohol;
    (j) Aeronautical decision-making and judgment;
    (k) Airport operations;
    (l) Maintenance and preflight inspection procedures; and
    (m) Operation at night.
0
14. Revise Sec.  107.74 to read as follows:


Sec.  107.74  Small unmanned aircraft system training.

    Training for pilots who hold a pilot certificate (other than a 
student pilot certificate) issued under part 61 of this chapter and 
meet the flight review requirements specified in Sec.  61.56 covers the 
following areas of knowledge:
    (a) Applicable regulations relating to small unmanned aircraft 
system rating privileges, limitations, and flight operation;
    (b) Effects of weather on small unmanned aircraft performance;
    (c) Small unmanned aircraft loading;
    (d) Emergency procedures;
    (e) Crew resource management;
    (f) Determining the performance of the small unmanned aircraft;
    (g) Maintenance and preflight inspection procedures; and
    (h) Operation at night.

Subpart D--[Redesignated as Subpart E]

0
15. Redesignate subpart D as subpart E.
0
16. Add new subpart D to read as follows:

Subpart D--Operations Over Human Beings

Sec.
107.100 Applicability.
107.105 Prohibition on operations over moving vehicles.
107.108 Limitations on operations over human beings.
107.110 Category 1 operations.
107.115 Category 2 operations.
107.120 Category 3 operations.
107.125 Means of compliance.
107.130 Variable mode and variable configuration of small unmanned 
aircraft systems.
107.135 Declaration of Compliance.
107.140 Previously manufactured small unmanned aircraft systems.
107.145 Record retention.
107.150 Relabeling by remote pilot in command for Category 2 and 3 
operations.


Sec.  107.100  Applicability.

    This subpart prescribes the eligibility standards and operating 
requirements for small unmanned aircraft systems that may conduct 
operations over human beings, in addition to those permitted by Sec.  
107.39(a) and (b).


Sec.  107.105  Prohibition on operations over moving vehicles.

    No person may operate a small unmanned aircraft over a human being 
located in a moving vehicle.


Sec.  107.108  Limitations on operations over human beings.

    Except as provided in Sec.  107.39(a) and (b), a remote pilot in 
command may conduct operations over human beings only as Category 1, 2, 
or 3 operations authorized by Sec. Sec.  107.110, 107.115, and 107.120.


Sec.  107.110  Category 1 operations.

    To conduct Category 1 operations, a remote pilot in command must 
use a small unmanned aircraft that weighs 0.55 pounds or less on 
takeoff and throughout the duration of each operation under this 
category, including everything that is on board or otherwise attached 
to the aircraft.


Sec.  107.115  Category 2 operations.

    (a) Remote pilot in command requirements. To conduct Category 2 
operations, a remote pilot in command must use a small unmanned 
aircraft system that is qualified and labeled for Category 2 operations 
pursuant to paragraph (b) of this section.
    (b) Eligibility. To be qualified to conduct Category 2 operations, 
the small unmanned aircraft system must:
    (1) Be designed, produced, or modified such that it:
    (i) Will not cause injury to a human being that is equivalent to or 
greater than the severity of injury caused by a transfer of 11 foot-
pounds of kinetic energy upon impact from a rigid object;
    (ii) Does not contain any exposed rotating parts that could 
lacerate human skin upon impact with a human being; and
    (iii) Does not contain any safety defects identified by the 
Administrator.
    (2) Display a label indicating eligibility to conduct Category 2 
operations. The label must be in English and be legible, prominent, and 
permanently affixed to the small unmanned aircraft.
    (3) Have current remote pilot operating instructions that apply to 
the operation of the small unmanned aircraft system. The person who 
designed, produced, or modified the small unmanned aircraft system must 
make available the instructions upon sale, transfer, or use of the 
aircraft by someone other than the person who designed, produced, or 
modified the small unmanned aircraft system. Such

[[Page 3905]]

instructions must address, at a minimum:
    (i) A system description that includes the required small unmanned 
aircraft system components, any system limitations, and the declared 
category or categories of operation;
    (ii) Modifications that will not change the ability of the small 
unmanned aircraft system to meet the requirements for the category or 
categories of operation the small unmanned aircraft system is eligible 
to conduct; and
    (iii) Instructions for how to verify and change the mode or 
configuration of the small unmanned aircraft system, if they are 
variable.
    (4) Be subject to a product support and notification process. 
Anyone who designs, produces, or modifies a small unmanned aircraft 
system under this paragraph (b) must maintain product support and 
notification procedures to notify the public and the FAA of:
    (i) Any defect or condition that causes the small unmanned aircraft 
system to no longer meet the requirements of this subpart; and
    (ii) Any identified safety defect that causes the small unmanned 
aircraft system to exceed a low probability of casualty.
    (5) Operate only after the person who designed, produced, or 
modified the small unmanned aircraft system has received notification 
that the FAA has accepted the Declaration of Compliance for that small 
unmanned aircraft system in accordance with Sec.  107.135.


Sec.  107.120  Category 3 operations.

    (a) Remote pilot in command requirements. To conduct Category 3 
operations, a remote pilot in command:
    (1) Must use a small unmanned aircraft system that is qualified and 
labeled for Category 3 operations pursuant to paragraph (b) of this 
section;
    (2) Must not operate the small unmanned aircraft over open air 
assemblies of human beings; and
    (3) May only operate the small unmanned aircraft above any human 
being if the operation meets one of the following conditions:
    (i) The operation is within or over a closed- or restricted-access 
site, and any human being located within the closed- or restricted-
access site is on notice that a small unmanned aircraft may fly over 
them; or
    (ii) The small unmanned aircraft does not maintain sustained flight 
over any human being not directly participating in the operation of the 
small unmanned aircraft or located under a covered structure or inside 
a stationary vehicle that can provide reasonable protection from a 
falling small unmanned aircraft.
    (b) Eligibility. To be qualified to conduct Category 3 operations, 
the small unmanned aircraft system must:
    (1) Be designed, produced, or modified such that it:
    (i) Will not cause injury to a human being that is equivalent to or 
greater than the severity of the injury caused by a transfer of 25 
foot-pounds of kinetic energy upon impact from a rigid object;
    (ii) Does not contain any exposed rotating parts that could 
lacerate human skin upon impact with a human being; and
    (iii) Does not contain any safety defects identified by the 
Administrator.
    (2) Display a label indicating eligibility to conduct Category 3 
operations. The label must be in English and be legible, prominent, and 
permanently affixed to the small unmanned aircraft.
    (3) Have current remote pilot operating instructions that apply to 
the operation of the small unmanned aircraft system. The person who 
designed, produced, or modified the small unmanned aircraft system must 
make available the instructions upon sale, transfer, or use of the 
aircraft by someone other than the person who designed, produced, or 
modified the small unmanned aircraft system. Such instructions must 
address, at a minimum:
    (i) A system description that includes the required small unmanned 
aircraft system components, any system limitations, and the declared 
category or categories of operation;
    (ii) Modifications that will not change the ability of the small 
unmanned aircraft system to meet the requirements for the category or 
categories of operation the small unmanned aircraft system is eligible 
to conduct; and
    (iii) Instructions for how to verify and change the mode or 
configuration of the small unmanned aircraft system, if they are 
variable.
    (4) Be subject to a product support and notification process. 
Anyone who designs, produces, or modifies a small unmanned aircraft 
system under this paragraph (b) must maintain product support and 
notification procedures to notify the public and the FAA of:
    (i) Any defect or condition that causes the small unmanned aircraft 
system to no longer meet the requirements of this subpart; and
    (ii) Any identified safety defect that causes the small unmanned 
aircraft system to exceed a low probability of fatality.
    (5) Operate only after the person who designed, produced, or 
modified the small unmanned aircraft system has received notification 
that the FAA has accepted a Declaration of Compliance for that small 
unmanned aircraft system in accordance with Sec.  107.135.


Sec.  107.125  Means of compliance.

    (a) To meet the requirements of Sec.  107.115(b)(1) for operations 
in Category 2, or the requirements of Sec.  107.120(b)(1) for 
operations in Category 3, the means of compliance must consist of test, 
analysis, or inspection that the Administrator has determined is 
acceptable. The means of compliance may include consensus standards.
    (b) An applicant requesting FAA acceptance of a means of compliance 
must submit the following information to the FAA in a manner specified 
by the Administrator:
    (1) Detailed description of the means of compliance; and
    (2) Justification, including any substantiating material, showing 
the means of compliance establishes achievement of or equivalency to 
the safety level identified in Sec. Sec.  107.115(b)(1) and 
107.120(b)(1).


Sec.  107.130  Variable mode and variable configuration of small 
unmanned aircraft systems.

    A small unmanned aircraft system may be eligible for one or more 
categories of operation over human beings under this subpart, as long 
as a remote pilot in command cannot inadvertently switch between modes 
or configurations.


Sec.  107.135  Declaration of Compliance.

    (a) Required information. Prior to declaring a small unmanned 
aircraft system to be compliant with the requirements of this subpart 
for Category 2 or 3 operations, an applicant must submit a Declaration 
of Compliance for acceptance by the FAA, in a manner specified by the 
Administrator, that includes the following information:
    (1) Applicant's name;
    (2) Applicant's physical address;
    (3) Applicant's email address;
    (4) The small unmanned aircraft system make and model name;
    (5) The small unmanned aircraft system serial number or range of 
serial numbers that are the subject of the Declaration of Compliance;
    (6) Whether the Declaration of Compliance is an initial declaration 
or an amended declaration;
    (7) If the Declaration of Compliance is an amended declaration, the 
reason for the re-submittal;
    (8) Certification that the applicant:
    (i) Has demonstrated that the small unmanned aircraft, or specific

[[Page 3906]]

configurations of that aircraft, satisfies Sec.  107.115(b)(1)(i) and 
(ii), or Sec.  107.120(b)(1)(i) and (ii), or both, through an accepted 
means of compliance;
    (ii) Has satisfied Sec.  107.115(b)(4) or Sec.  107.120(b)(4), or 
both; and
    (iii) Will, upon request, allow the Administrator to inspect its 
facilities, technical data, and any manufactured small unmanned 
aircraft system and witness any tests necessary to determine compliance 
with this subpart; and
    (9) Other information as required by the Administrator.
    (b) FAA acceptance. If the FAA determines the applicant has 
demonstrated compliance with the requirements of this subpart, it will 
notify the applicant that it has accepted the Declaration of 
Compliance. If the FAA determines the applicant has not provided 
sufficient evidence to demonstrate compliance, the FAA will notify the 
applicant that it has not accepted the Declaration of Compliance.
    (c) Notification of a safety issue. Prior to initiating rescission 
proceedings pursuant to paragraphs (d)(1) through (3) of this section, 
the FAA will notify the applicant if a safety issue has been identified 
for the Declaration of Compliance.
    (d) Rescission. (1) No person may operate a small unmanned aircraft 
system identified on a Declaration of Compliance that the FAA has 
rescinded pursuant to this subpart while that Declaration of Compliance 
is rescinded.
    (2) The FAA may rescind a Declaration of Compliance if any of the 
following conditions occur:
    (i) A small unmanned aircraft system for which a Declaration of 
Compliance was accepted no longer complies with Sec.  107.115(b)(1) or 
Sec.  107.120(b)(1);
    (ii) The FAA finds a Declaration of Compliance is in violation of 
Sec.  107.5(a); or
    (iii) The Administrator determines an emergency exists related to 
safety in accordance with the authority in 49 U.S.C. 46105.
    (3) If a safety issue identified under paragraph (c) of this 
section has not been resolved, the FAA may rescind the Declaration of 
Compliance as follows:
    (i) The FAA will issue a notice proposing to rescind the 
Declaration of Compliance. The notice will set forth the agency's basis 
for the proposed rescission and provide the holder of the Declaration 
of Compliance with 10 business days from the date of issuance of the 
proposed notice to submit evidentiary information to refute the 
proposed notice.
    (ii) The holder of the Declaration of Compliance must submit 
information demonstrating how the small unmanned aircraft system meets 
the requirements of this subpart within 10 business days from the date 
of issuance of the proposed notice.
    (iii) If the FAA does not receive the information required by 
paragraph (d)(3)(ii) of this section within 10 business days from the 
date of the issuance of the proposed notice, the FAA will issue a 
notice rescinding the Declaration of Compliance.
    (4) If the Administrator determines that an emergency exists in 
accordance with paragraph (d)(2)(iii) of this section, the FAA will 
exercise its authority under 49 U.S.C. 46105(c) to issue an order 
rescinding a Declaration of Compliance without initiating the process 
in paragraph (d)(3) of this section.
    (e) Petition to reconsider the rescission of a Declaration of 
Compliance. A person subject to an order of rescission under paragraph 
(d)(3) of this section may petition the FAA to reconsider the 
rescission of a Declaration of Compliance by submitting a request to 
the FAA in a manner specified by the Administrator within 60 days of 
the date of issuance of the rescission.
    (1) A petition to reconsider the rescission of a Declaration of 
Compliance must demonstrate at least one of the following:
    (i) A material fact that was not present in the original response 
to the notification of the safety issue and an explanation for why it 
was not present in the original response;
    (ii) The FAA made a material factual error in the decision to 
rescind the Declaration of Compliance; or
    (iii) The FAA did not correctly interpret a law, regulation, or 
precedent.
    (2) Upon consideration of the information submitted under paragraph 
(e)(1) of this section, the FAA will issue a notice either affirming 
the rescission or withdrawing the rescission.
    (f) Inapplicability of part 13, subpart D, of this chapter. Title 
14 CFR part 13, subpart D, does not apply to the procedures of 
paragraphs (d) and (e) of this section.


Sec.  107.140  Previously manufactured small unmanned aircraft systems.

    A remote pilot in command may operate a small unmanned aircraft 
system manufactured prior to [the effective date of a subsequent final 
rule] over human beings under the following circumstances:
    (a) Category 1 operations. The small unmanned aircraft weighs 0.55 
pounds or less on takeoff, including everything that is on board or 
otherwise attached to the aircraft; or
    (b) Category 2 and 3 operations. (1) The FAA has accepted a 
Declaration of Compliance in accordance with Sec.  107.135; and
    (2) The small unmanned aircraft is labeled for the appropriate 
category of operations in English such that the label is legible, 
prominent, and permanently affixed to the small unmanned aircraft.


Sec.  107.145  Record retention.

    A person who submits a Declaration of Compliance or means of 
compliance under this subpart must retain the following substantiating 
data:
    (a)(1) For the Declaration of Compliance, the holder of the 
Declaration of Compliance must store the detailed description of the 
means of compliance and justification, including any substantiating 
material, for two years after the cessation of production of the small 
unmanned aircraft system to support the Declaration of Compliance; and
    (2) Any accompanying data must contain detailed information on the 
type of means of compliance and the results or justification used to 
demonstrate the small unmanned aircraft system meets Sec. Sec.  
107.115(b) and 107.120(b), as applicable.
    (b)(1) For a means of compliance, the information described in 
paragraph (a) of this section must be stored for as long as the means 
of compliance is accepted by the FAA; and
    (2) Accompanying data or information must contain:
    (i) Test procedures that outline the test methodology, if 
applicable; and
    (ii) Justification, including any substantiating material, showing 
the means of compliance establishes achievement of or equivalency to 
the safety level identified in Sec. Sec.  107.115(b)(1) and 
107.120(b)(1), as applicable.


Sec.  107.150  Relabeling by remote pilot in command for Category 2 and 
3 operations.

    If a Category 2 or Category 3 label affixed to a small unmanned 
aircraft is damaged or destroyed such that it is no longer legible, a 
remote pilot in command must relabel the aircraft in English such that 
the label is legible, prominent, and will remain on the small unmanned 
aircraft for the duration of the operation before conducting operations 
over human beings. The label must correctly identify the category or 
categories of operation over human beings that the small unmanned 
aircraft is qualified to conduct in accordance with this subpart.

[[Page 3907]]

0
17. Amend Sec.  107.205 by revising paragraph (b) and adding paragraph 
(j) to read as follows:


Sec.  107.205   List of regulations subject to waiver.

* * * * *
    (b) Section 107.29(a)(2) and (b)--Anti-collision light required for 
operations at night and during periods of civil twilight.
* * * * *
    (j) Section 107.105--Prohibition on operations over moving 
vehicles.

    Issued under the authority provided by 49 U.S.C. 106(f), 40101 
note; and 44807, in Washington, DC on January 29, 2019.
Elaine L. Chao,
Secretary, Department of Transportation.
Daniel K. Elwell,
Acting Administrator, Federal Aviation Administration.
[FR Doc. 2019-00732 Filed 2-12-19; 8:45 am]
 BILLING CODE 4910-13-P