# Operation and Certification of Small Unmanned Aircraft Systems > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-15079 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 28, 2016 - **Citation:** 81 FR 42064 ## Text DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 21, 43, 61, 91, 101, 107, 119, 133, and 183 [Docket No.: FAA-2015-0150; Amdt. Nos. 21-99, 43-48, 61-137, 91-343, 101-9, 107-1, 119-18, 133-15, and 183-16] RIN 2120-AJ60 Operation and Certification of Small Unmanned Aircraft Systems AGENCY: Federal Aviation Administration (FAA) and Office of the Secretary of Transportation (OST), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is amending its regulations to allow the operation of small unmanned aircraft systems in the National Airspace System. These changes address the operation of unmanned aircraft systems and certification of their remote pilots. This rule will also prohibit model aircraft from endangering the safety of the National Airspace System. DATES: This final rule is effective August 29, 2016. ADDRESSES: For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For small UAS technical questions concerning this final rule, contact Lance Nuckolls, Flight Technologies and Procedures Division, AFS-400, 470 L'Enfant Plaza SW., Suite 4102, Washington, DC 20024; telephone 1-844-FLY-MYUAS; email UAShelp@faa.gov . For FAA small UAS policy questions concerning this final rule, contact Everette Rochon, Manager, Commercial Operations Branch, AFS-820, Flight Standards Service, Federal Aviation Administration, 55 M Street SE., 8th Floor, Washington, DC 20003; telephone 1-844-FLY-MYUAS; email UAShelp@faa.gov . SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Summary of the Major Provisions of the Regulatory Action C. Costs and Benefits II. Background A. Authority for This Rulemaking B. Analysis of Public Risk Posed by Small UAS Operations C. Current Statutory and Regulatory Structure Governing Small UAS D. Integrating Small UAS Operations Into the NAS Through Rulemaking E. Related UAS Integration Initiatives III. Discussion of the Final Rule A. Incremental Approach and Waiver B. Discussion of the Applicable Statutory Framework C. Applicability 1. Transporting Property for Compensation (Air Carrier Operations) 2. International Operations and Foreign-Owned Aircraft 3. Public Aircraft Operations 4. Model Aircraft 5. Moored Balloons, Kites, Amateur Rockets, and Unmanned Free Balloons 6. Current Treatment of UAS and Grandfathering of Section 333 Exemption Holders D. Definitions 1. Control Station 2. Corrective Lenses 3. Unmanned Aircraft 4. Small Unmanned Aircraft 5. Small Unmanned Aircraft System (Small UAS) 6. Other Definitions E. Operating Rules 1. Remote Pilot in Command a. Terminology b. Remote Pilot in Command c. Airman Certification Requirement d. Emergency Powers of a Remote Pilot in Command 2. See-and-Avoid and Visibility Requirements a. Visual Line of Sight b. Visual Observer i. Definition of Visual Observer ii. Operational Requirements When Using Visual Observer iii. Optional Use of a Visual Observer iv. No Airman Certification or Required Training of Visual Observer c. Additional Visibility Requirements i. Daytime Operations ii. Weather/Visibility Minimums iii. Yielding Right of Way d. Additional Technology/Conspicuity Requirements i. ADS-B, Transponders, and TCAS ii. Radio Equipment iii. Lighting iv. Conspicuity 3. Containment and Loss of Positive Control a. Confined Area of Operation Boundaries i. Horizontal Boundary and Moving Vehicles ii. Vertical Boundary (Maximum Altitude) b. Mitigating Loss of Positive Control Risk i. Maximum Speed ii. Operating Multiple Unmanned Aircraft iii. Micro UAS iv. Flight Over People v. Preflight Briefing vi. Preflight Assessment of the Operating Area and Ensuring That the Aircraft Poses No Undue Hazard 1. Preflight Assessment of the Operating Environment 2. Undue Hazard if There Is a Loss of Control vii. Automation viii. Other Equipage 1. Geo-Fencing 2. Flight Termination System 3. Other Technological Equipage 4. External Load and Dropping Objects a. External Load and Towing b. Dropping Objects 5. Limitations on Operations in Certain Airspace a. Operations in Class B, C, D, and Lateral Boundaries of the Surface Area of Class E Airspace Designated for an Airport b. Operations in Class A Airspace c. Prohibited or Restricted Areas d. Areas Designated by Notice to Airmen e. Operations in Class G Airspace 6. Inspection, Maintenance, and Airworthiness Directives a. Inspections and Maintenance i. Preflight Check and Maintenance Requirements ii. Discontinuing Flight iii. Control Link Check b. Airworthiness Directives 7. Additional Operating Provisions a. Careless or Reckless Operation b. Drug and Alcohol Prohibition c. Sufficient Power for the Small UAS F. Remote Pilot Certificate 1. Use of UAS Experience To Apply for Part 61 Pilot Certificate 2. Remote Pilot Certificate Eligibility and Issuance a. Minimum Age b. English Language Proficiency c. No Airman Medical Certificate Required d. Flight Proficiency and Aeronautical Experience e. Formal Training f. General Requirement for Initial Aeronautical Knowledge Test g. General Requirement for Recurrent Aeronautical Knowledge Test h. Pilots With Military Experience i. Credit to Holders of Part 61 Pilot Certificates j. Areas of Knowledge on the Aeronautical Knowledge Tests and Training Courses for Part 61 Pilot Certificate Holders i. Regulations Applicable to Small UAS ii. Airspace Classifications and Operating Requirements, and Flight Restrictions Affecting Small Unmanned Aircraft Operation iii. Obstacle Clearance Requirements iv. Aviation Weather Sources and Effects of Weather on Small Unmanned Aircraft Performance v. Small UAS Loading and Performance vi. Emergency Procedures vii. Crew Resource Management viii. Determining the Performance of the Small Unmanned Aircraft ix. Physiological Effects of Drugs and Alcohol x. Aeronautical Decision-Making and Judgment xi. Airport Operations xii. Radio Communication Procedures xiii. Other Areas of Knowledge Suggested by the Commenters k. Administration of the Knowledge Tests and Training Courses i. Location of the Knowledge Test and Online Option for Training Course ii. Cheating or Engaging in Unauthorized Conduct iii. Identification of the Test-Taker iv. Retesting After Failure l. Transportation Security Administration Vetting and Process for Issuance i. TSA Vetting and Temporary Remote Pilot Certificates ii. Issuance and Positive Identification 3. Remote Pilot Certificate Denial, Revocation, Suspension, Amendment, and Surrender a. Drugs and Alcohol Violations b. Change of Name c. Change of Address d. Voluntary Surrender of Certificate e. Additional Comments on Remote Pilot Certificate G. Registration and Marking H. Fraud and False Statements I. Oversight 1. Inspection, Testing, and Demonstration of Compliance 2. Accident Reporting J. Statutory Findings 1. Hazard to Users of the NAS or the Public 2. National Security 3. Airworthiness Certification K. Miscellaneous Provisions 1. Mandatory Insurance 2. Test Sites 3. Noise and Environmental a. The National Environmental Policy Act b. Noise c. Other Environmental Comments 4. Privacy 5. First Amendment a. First Amendment Law in the United States b. Restrictions on Speech in a Non-Public Forum c. Incidental Restrictions on Speech d. Time, Place, Manner Restrictions on Speech 6. Preemption 7. Agricultural Operations 8. Miscellaneous Comments IV. Regulatory Notices and Analyses A. Regulatory Evaluation B. Final Regulatory Flexibility Determination 1. A Statement of the Need for and Objectives of the Rule 2. A Statement of the Significant Issues Raised by the Public Comments in Response to the Initial Regulatory Flexibility Analysis, a Statement of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments 3. The Response of the Agency to Any Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in Response to the Proposed Rule, and a Detailed Statement of Any Change Made to the Proposed Rule in the Final Rule as a Result of the Comments 4. A Description and an Estimate of the Number of Small Entities to Which the Rule Will Apply, or an Explanation of Why No Such Estimate Is Available 5. A Description of the Projected Reporting, Recordkeeping and Other Compliance Requirements of the Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for Preparation of the Report or Record 6. A Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities Was Rejected 6. Describe Alternatives Considered C. International Trade Impact Assessment D. Unfunded Mandates Assessment E. Paperwork Reduction Act 1. Obtaining a Remote Pilot Certificate With a Small UAS Rating Summary 2. Accident Reporting. Summary 3. Emergency Powers 4. Certificate of Waiver 5. Total Annual Burden Estimate F. International Compatibility and Cooperation G. Environmental Analysis H. Regulations Affecting Intrastate Aviation in Alaska V. 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 VI. Additional Information A. Availability of Rulemaking Documents B. Comments Submitted to the Docket C. Small Business Regulatory Enforcement Fairness Act List of Abbreviations and Acronyms Frequently Used in This Document AC—Advisory Circular AGL—Above Ground Level ACR—Airman Certification Representative ADS-B—Automatic Dependent Surveillance-Broadcast ARC—Aviation Rulemaking Committee ATC—Air Traffic Control CAFTA-DR—Dominican Republic-Central America-United States Free Trade Agreement CAR—Civil Air Regulation CFI—Certificated Flight Instructor CFR—Code of Federal Regulations COA—Certificate of Waiver or Authorization DPE—Designated Pilot Examiner FR—Federal Register FSDO—Flight Standards District Office ICAO—International Civil Aviation Organization NAFTA—North American Free Trade Agreement NAS—National Airspace System NOTAM—Notice to Airmen NPRM—Notice of Proposed Rulemaking NTSB—National Transportation Safety Board PIC—Pilot in Command Pub. L.—Public Law PMA—Parts Manufacturer Approval TCAS—Traffic Collision Avoidance System TFR—Temporary Flight Restriction TSA—Transportation Security Administration TSO—Technical Standard Order UAS—Unmanned Aircraft System U.S.C.—United States Code I. Executive Summary A. Purpose of the Regulatory Action This rule finalizes the notice of proposed rulemaking entitled Operation and Certification of Small Unmanned Aircraft Systems 1 (the NPRM). The NPRM proposed operating and certification requirements to allow small unmanned aircraft systems (small UAS) to operate for non-hobby and non-recreational purposes. 2 A small UAS consists of a small unmanned aircraft (which, as defined by statute, is an unmanned aircraft weighing less than 55 pounds 3 ) and equipment necessary for the safe and efficient operation of that aircraft. The FAA has accommodated non-recreational small UAS use through various mechanisms, such as special airworthiness certificates, exemptions, and certificates of waiver or authorization (COAs). This rule is the next phase of integrating small UAS into the NAS. 1 80 FR 9544, Feb. 23, 2015. 2 As used here, “non-hobby and non-recreational purposes” refers to small UAS that are not operated in accordance with section 336 of Public Law 112-95. A discussion of section 336 can be found below in section III.C.4 of this preamble. 3 Public Law 112-95, sec. 331(6). The following are examples of possible small UAS operations that can be conducted under the framework in this rule: • Crop monitoring/inspection; • Research and development; • Educational/academic uses; • Power-line/pipeline inspection in hilly or mountainous terrain; • Antenna inspections; • Aiding certain rescue operations; • Bridge inspections; • Aerial photography; and • Wildlife nesting area evaluations. Because of the potential societally beneficial applications of small UAS, the FAA has been seeking to incorporate the operation of these systems into the national airspace system (NAS) since 2008. In 2012, Congress passed the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95). Section 333 of Public Law 112-95 directed the Secretary to determine whether UAS operations posing the least amount of public risk and no threat to national security could safely be operated in the NAS and, if so, to establish requirements for the safe operation of these systems in the NAS, prior to completion of the UAS comprehensive plan and rulemakings required by section 332 of Public Law 112-95. On February 23, 2015, as part of its ongoing efforts to integrate UAS operations in the NAS and in accordance with section 333 of Public Law 112-95, the FAA issued the NPRM proposing to amend its regulations to adopt specific rules for the operation of small UAS in the NAS. Over 4,600 public comments were submitted in response to the NPRM. The FAA has considered the comments, and now issues this final rule to integrate small UAS into the NAS. Based on its consideration of the comments submitted in response to the NPRM, and its experience with the certification, exemption, and COA process, the FAA has developed the framework in this rule to enable certain small UAS operations to commence upon adoption of this rule and accommodate technologies as they evolve and mature. This framework allows small UAS operations for many different non-recreational purposes, such as the ones discussed previously, without requiring airworthiness certification, exemption, or a COA. B. Summary of the Major Provisions of the Regulatory Action This rule will add a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for routine civil operation of small UAS in the NAS and to provide safety rules for those operations. Consistent with the statutory definition, this rule will define small UAS as UAS that use unmanned aircraft weighing less than 55 pounds. To mitigate risk, the rule will limit small UAS to daylight and civil twilight operations with appropriate collision lighting, confined areas of operation, and visual-line-of-sight operations. This rule will also address airspace restrictions, remote pilot certification, visual observer requirements, and operational limits in order to maintain the safety of the NAS and ensure that small UAS do not pose a threat to national security. Because UAS constitute a quickly changing technology, a key provision of this rule is a waiver mechanism to allow individual operations to deviate from many of the operational restrictions of this rule if the Administrator finds that the proposed operation can safely be conducted under the terms of a certificate of waiver. Below is a summary of the major provisions of the rule. Table 1—Summary of the Major Provisions of Part 107 Operational Limitations • Unmanned aircraft must weigh less than 55 lbs. (25 kg). • Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer. • At all times the small unmanned aircraft must remain close enough to the remote pilot in command and the person manipulating the flight controls of the small UAS for those people to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. • Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle. • Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting. • Must yield right of way to other aircraft. • May use visual observer (VO) but not required. • First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways. • Maximum groundspeed of 100 mph (87 knots). • Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure. • Minimum weather visibility of 3 miles from control station. • Operations in Class B, C, D and E airspace are allowed with the required ATC permission. • Operations in Class G airspace are allowed without ATC permission. • No person may act as a remote pilot in command or VO for more than one unmanned aircraft operation at one time. • No operations from a moving aircraft. • No operations from a moving vehicle unless the operation is over a sparsely populated area. • No careless or reckless operations. • No carriage of hazardous materials. • Requires preflight inspection by the remote pilot in command. • A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS. • Foreign-registered small unmanned aircraft are allowed to operate under part 107 if they satisfy the requirements of part 375. • External load operations are allowed if the object being carried by the unmanned aircraft is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft. • Transportation of property for compensation or hire allowed provided that— ○ The aircraft, including its attached systems, payload and cargo weigh less than 55 pounds total; ○ The flight is conducted within visual line of sight and not from a moving vehicle or aircraft; and ○ The flight occurs wholly within the bounds of a State and does not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession. • Most of the restrictions discussed above are waivable if the applicant demonstrates that his or her operation can safely be conducted under the terms of a certificate of waiver. Remote Pilot in Command Certification and Responsibilities • Establishes a remote pilot in command position. • A person operating a small UAS must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command). • To qualify for a remote pilot certificate, a person must: ○ Demonstrate aeronautical knowledge by either: Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center; or Hold a part 61 pilot certificate other than student pilot, complete a flight review within the previous 24 months, and complete a small UAS online training course provided by the FAA. ○ Be vetted by the Transportation Security Administration. ○ Be at least 16 years old. • Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application. • Until international standards are developed, foreign-certificated UAS pilots will be required to obtain an FAA-issued remote pilot certificate with a small UAS rating. A remote pilot in command must: • Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the rule. • Report to the FAA within 10 days of any operation that results in at least serious injury, loss of consciousness, or property damage of at least $500. • Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is in a condition for safe operation. • Ensure that the small unmanned aircraft complies with the existing registration requirements specified in § 91.203(a)(2). A remote pilot in command may deviate from the requirements of this rule in response to an in-flight emergency. Aircraft Requirements • FAA airworthiness certification is not required. However, the remote pilot in command must conduct a preflight check of the small UAS to ensure that it is in a condition for safe operation. Model Aircraft • Part 107 does not apply to model aircraft that satisfy all of the criteria specified in section 336 of Public Law 112-95. • The rule codifies the FAA's enforcement authority in part 101 by prohibiting model aircraft operators from endangering the safety of the NAS. C. Costs and Benefits Technological advances in small UAS have led to a potential commercial market for their uses by providing a safe operating environment for them and for other aircraft in the NAS. In addition to enabling this industry to develop, the FAA anticipates that this final rule will provide an opportunity to substitute small UAS operations for some risky manned flights, such as inspection of houses, towers, bridges, or parks, thereby averting potential fatalities and injuries. The FAA has analyzed the benefits and the costs associated with this final rule. The estimated out-of-pocket cost for an individual to become FAA certificated as a remote pilot with a small UAS rating is $150, which is less than the cost of any other airman certification that allows non-recreational operations in the NAS. 4 The final rule will enable a new industry to unfold while imposing relatively low individual costs. The private sector expected benefits exceed private sector expected costs because each entity voluntarily chooses to incur the compliance cost of this rule in anticipation that their benefits exceed the costs. The sum of these entities' actions results in societal benefits which exceed societal costs when government costs are also taken into account. The FAA has quantified these benefits by estimating consumer surplus resulting from future commercial operations. Benefits to society equal the consumer surplus minus certain additional costs discussed. 4 To become certificated as remote pilot with a small UAS rating, an individual is only required to pass a knowledge test. The certification does not require an individual to attend ground school or to pass a practical skills exam, both of which are required to receive an airman's certificate for sport pilot and above. The regulatory analysis for this final rule presents two scenarios in order to present a range for costs—a high case and a low case. The scenarios are based on two fleet forecasts that were prepared independently at separate times. As a result, the high case and low case projections for small UAS sales, fleet, and pilots differ significantly. Depending on which small UAS forecast is used, the FAA expects this rule will result in a net social benefit ranging from about $733 million in the low case to about $9.0 billion in the high case over five years. 5 5 See the full regulatory evaluation for a detailed description on the two small UAS forecasts the FAA used to estimate benefits and costs. II. Background This final rule addresses the operation and airman certification of civil small UAS. The following sections discuss: (1) The public risk associated with small UAS operations; (2) the current legal framework governing small UAS operations; and (3) the FAA's ongoing efforts to incorporate small UAS operations into the NAS. A. Authority for This Rulemaking This rulemaking is promulgated under the authority described in the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95). Section 333 of Public Law 112-95 directs the Secretary of Transportation 6 to determine whether “certain unmanned aircraft systems may operate safely in the national airspace system.” If the Secretary determines, pursuant to section 333, that certain unmanned aircraft systems may operate safely in the national airspace system, then the Secretary must “establish requirements for the safe operation of such aircraft systems in the national airspace system.” 7 6 The primary authority for this rulemaking is based on section 333 of Public Law 112-95 (Feb. 14, 2012). In addition, this rulemaking also relies on FAA statutory authorities. Thus, for the purposes of this rulemaking, the terms “FAA,” “the agency,” “DOT,” “the Department,” and “the Secretary” are used synonymously throughout this document. 7 Public Law 112-95, sec. 333(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. This rulemaking also establishes a new class of airman certificate tailored to remote pilots, consistent with the statutory obligation set forth in 49 U.S.C. 44703. The model-aircraft component of this rulemaking incorporates the statutory mandate in section 336(b) that preserves the FAA's authority, under 49 U.S.C. 40103(b) and 44701(a)(5), to pursue enforcement “against persons operating model aircraft who endanger the safety of the national airspace system.” B. Analysis of Public Risk Posed by Small UAS Operations Small UAS operations pose risk considerations that are different from the risk considerations typically associated with manned-aircraft operations. On one hand, certain operations of a small unmanned aircraft, discussed more fully in section III.E of this preamble, have the potential to pose significantly less risk to persons and property than comparable operations of a manned aircraft due to differences in the weight of the aircraft. The typical total takeoff weight of a general aviation aircraft is between 1,300 and 6,000 pounds as compared to a total takeoff weight of a small unmanned aircraft of less than 55 pounds. Consequently, because of the reduced weight, the small unmanned aircraft would pose significantly less risk to persons and property on the ground in the event of a mishap or pilot error. As such, a small UAS operation whose parameters are well defined to mitigate risk to other aircraft would also pose a smaller overall public risk or threat to national security than the operation of a manned aircraft. On the other hand, even though small UAS operations have the potential to pose a lower level of public risk in certain types of operations, the unmanned nature of the small UAS operations raises two unique safety concerns that are not present in manned-aircraft operations. The first safety concern is whether the person operating the small unmanned aircraft, who is physically separated from that aircraft during flight, would have the ability to see manned aircraft in the air in time to prevent a mid-air collision with that manned aircraft. As discussed in more detail below, the FAA's regulations currently require each person operating an aircraft to maintain vigilance “so as to see and avoid other aircraft.” 8 This is one of the fundamental principles for collision avoidance in the NAS. 8 14 CFR 91.113(b). For manned-aircraft operations, “see and avoid” is the responsibility of pilots on board an aircraft. Because the remote pilot in an unmanned aircraft operation is not physically on the unmanned aircraft, that remote pilot does not have the same visual perspective and ability to see other aircraft as a manned-aircraft pilot. Thus, the challenge for small unmanned aircraft operations is to ensure that the person operating the small unmanned aircraft is able to see and avoid other aircraft. The second safety concern with small UAS operations is the possibility that, during flight, the person piloting the small unmanned aircraft may lose control of the aircraft due to a failure of the control link between the aircraft and the remote pilot's control station. This is known as a loss of positive control and may result from a system failure or because the aircraft has been flown beyond the signal range or in an area where control link communication between the aircraft and the control station is interrupted. A small unmanned aircraft whose flight is unable to be directly controlled could pose a significant risk to persons, property, or other aircraft. C. Current Statutory and Regulatory Structure Governing Small UAS Due to the lack of an onboard pilot, small UAS operations cannot be conducted in accordance with many of the FAA's current operating regulations, codified in 14 CFR part 91, that apply to general aviation. The primary example of this conflict is § 91.113(b), which requires each person operating an aircraft to maintain vigilance “so as to see and avoid other aircraft.” The FAA created this requirement in a 1968 rulemaking, 9 which combined two previous aviation regulatory provisions (Civil Air Regulations (CAR) §§ 60.13(c) and 60.30) into the “see and avoid” requirement now found in § 91.113(b). These CAR provisions were intended to address aircraft collision-awareness problems by requiring a pilot on board the aircraft to look out of the aircraft during flight to observe whether other aircraft are on a collision path with his or her aircraft. Those provisions did not contemplate the use of technology to substitute for the human vision of a pilot on board the aircraft nor did they contemplate the manipulation of the aircraft from outside of the aircraft. To the contrary, CAR § 60.13(c) stated that one of the problems it intended to address was “preoccupation by the pilot with cockpit duties,” which indicates that the regulation contemplated the presence of a pilot on board the aircraft. 9 Pilot Vigilance, 33 FR 10505 (July 24, 1968). Based on this intent, § 91.113(b) requires an aircraft pilot to have the perspective of being inside the aircraft as that aircraft is moving in order to see and avoid other aircraft. Since the remote pilot of a small UAS does not have this perspective, operation of a small UAS cannot meet the see and avoid requirement of § 91.113(b). In addition to regulatory considerations, there are statutory considerations that apply to small UAS operations. For example, even though a small UAS is different from a manned aircraft, the operation of a small UAS still involves the operation of an aircraft under the FAA's statute, which defines an “aircraft” as “any contrivance invented, used, or designed to navigate or fly in the air.” 49 U.S.C. 40102(a)(6). Congress reaffirmed that an unmanned aircraft is an aircraft in the FAA Modernization and Reform Act of 2012, by defining unmanned aircraft as “an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.” Sec. 331(8), Public Law 112-95. In Administrator v. Pirker, the National Transportation Safety Board (NTSB) unanimously affirmed this understanding, finding that an unmanned aircraft is an aircraft for purposes of the FAA's statutes and regulations. 10 10 Administrator v. Pirker, NTSB Order No. EA-5730 (Nov. 17, 2014). A copy of the Pirker opinion may be found at: http://www.ntsb.gov/legal/alj/Documents/5730.pdf . Because a small UAS involves the operation of an “aircraft,” this triggers the FAA's registration and certification statutory requirements. Specifically, subject to certain exceptions, a person may not operate a civil aircraft that is not registered. 49 U.S.C. 44101(a). In addition, a person may not operate a civil aircraft in air commerce without an airworthiness certificate. 49 U.S.C. 44711(a)(1). Finally, a person may not serve in any capacity as an airman on a civil aircraft being operated in air commerce without an airman certificate. 49 U.S.C. 44711(a)(2)(A). 11 11 The statutes also impose other requirements that are beyond the scope of this rulemaking. For example, 49 U.S.C. 44711(a)(4) prohibits a person from operating as an air carrier without an air-carrier operating certificate. The term “air commerce,” as used in the FAA's statutes, is defined broadly to include “the operation of aircraft within the limits of a Federal airway, or the operation of aircraft that directly affects, or may endanger safety in foreign or interstate air commerce.” 49 U.S.C. 40102(a)(3). Because of this broad definition, the NTSB has held that “any use of an aircraft, for purpose of flight, constitutes air commerce.” 12 Courts that have considered this issue have reached similar conclusions that “air commerce,” as defined in the FAA's statute, encompasses a broad range of commercial and non-commercial aircraft operations. 13 12 Administrator v. Barrows, 7 N.T.S.B. 5, 8-9 (1990). 13 See, e.g., United States v. Healy, 376 U.S. 75, 84 (1964) (holding that the statutory definition of “air commerce” in the Federal Aviation Act is not limited to commercial airplanes); Hill v. NTSB, 886 F.2d 1275, 1280 (10th Cir. 1989) (“[t]he statutory definition of `air commerce' is therefore clearly not restricted to interstate flights occurring in controlled or navigable airspace”); United States v. Drumm, 55 F. Supp. 151, 155 (D. Nev. 1944) (upholding amendments of Civil Air Regulations, which among other things prohibited any person from piloting a civil aircraft unless the person held a valid pilot certificate and the aircraft possessed an airworthiness certificate, on the grounds that the regulatory action was within the scope of powers conferred by Congress). Accordingly, because “air commerce” encompasses such a broad range of aircraft operations, a civil small unmanned aircraft cannot currently be operated, for purposes of flight, if it does not comply with the above statutes. However, the FAA's current processes for issuing airworthiness and airman certificates were designed to be used for manned aircraft and do not take into account the considerations associated with civil small UAS. Because the pertinent existing regulations do not differentiate between manned and unmanned aircraft, a small UAS is currently subject to the same airworthiness certification process as a manned aircraft. These existing regulations do not contemplate small UAS operations that could, as a result of their operational parameters, safely be conducted without any airworthiness certification. This framework imposes an undue burden on such operations. Additionally, under current pilot certification regulations, depending on the type of operation, the remote pilot in command of the small UAS currently must obtain a sport, recreation, private, commercial, or airline transport pilot certificate. While a private pilot and commercial pilot may both operate an aircraft for the furtherance of a business, a private pilot may only do so if the flight is incidental to the pilot's business or employment and not for compensation or hire. Only a commercial or airline transport pilot certificate may be used to operate an aircraft for compensation or hire. 14 14 See 14 CFR 61.113, 61.133 and 61.167(a). Typically, to obtain a sport, private, recreational, commercial, or airline transport pilot certificate, the small UAS pilot currently has to: (1) Receive training in specific aeronautical knowledge areas; (2) receive training from an authorized instructor on specific areas of aircraft operation; and (3) pass an aeronautical knowledge test and a practical (skills) test. A certificate applicant also has to obtain minimum hours of flight time prior to applying for the certificate: (1) 20 hours for a sport pilot certificate; (2) 30 hours for a recreational pilot certificate; (3) 40 hours for a private pilot certificate; (4) 250 hours for a commercial pilot certificate; and (5) 1,500 hours for an airline transport pilot certificate. Finally, the certificate applicant has to establish his or her physical capability by: (1) Holding a valid and effective driver's license (for a sport pilot certificate); (2) obtaining a third-class airman medical certificate (for a recreational or private pilot certificate); (3) obtaining a second-class airman medical certificate (for a commercial pilot certificate or to exercise second-in-command privileges of an airline transport pilot certificate); or (4) obtaining a first-class airman medical certificate (to exercise pilot-in-command privileges of an airline transport pilot certificate). While these airman certification requirements are necessary for manned aircraft operations, they impose an unnecessary burden for many small UAS pilots because a person obtains a pilot certificate under part 61 by learning how to operate a manned aircraft. Much of that aeronautical experience/flight training is not applicable to small UAS operations because a small UAS is operated differently than a manned aircraft. In addition, the aeronautical/flight experience currently necessary to obtain a pilot certificate under part 61 does not equip the certificate holder with all of the tools necessary to safely pilot a small UAS. Specifically, applicants for a pilot certificate under part 61 currently are not trained in how to deal with those aspects of “see-and-avoid” and loss-of-positive-control safety issues that are unique to small unmanned aircraft. Thus, requiring persons wishing to operate a small UAS to obtain a pilot certificate under part 61 imposes the cost of airman certification on those persons, but does not result in a significant safety benefit because the process of obtaining the certificate does not equip those persons with all of the tools necessary to mitigate the public risk posed by small UAS operations. D. Integrating Small UAS Operations into the NAS through Rulemaking To address the issues discussed above, the Department has been engaged in a rulemaking to integrate small UAS into the NAS. 15 15 The FAA chartered the small UAS Aviation Rulemaking Committee (ARC), which provided it with recommendations on how small UAS could be safely integrated into the NAS. A copy of the ARC Report and Recommendations can be found in the docket for this rulemaking. In 2012, Congress passed the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95). In section 332(b) of Public Law 112-95, Congress directed the Secretary to issue a final rule on small unmanned aircraft systems that will allow for civil operations of such systems in the NAS. 16 In section 333 of Public Law 112-95, Congress also directed the Secretary to determine whether “certain unmanned aircraft systems may operate safely in the national airspace system.” To make a determination under section 333, the Secretary of Transportation must assess “which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security.” Public Law 112-95, Sec. 333(b)(1). The Secretary must also determine whether a certificate of waiver or authorization, or airworthiness certification is necessary to mitigate the public risk posed by the unmanned aircraft systems that are under consideration. Public Law 112-95, Sec. 333(b)(2). 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.” Public Law 112-95, Sec. 333(c). The flexibility provided for in section 333 did not extend to airman certification and security vetting, aircraft marking, or registration requirements. 16 As discussed in more detail further in the preamble, the FAA Modernization and Reform Act of 2012 also contained a provision prohibiting the FAA from issuing rules and regulations for model aircraft meeting certain criteria specified in section 336 of the Act. As discussed previously, the FAA's statute normally requires an aircraft being flown outdoors to possess an airworthiness certificate. 17 However, subsection 333(b)(2) allows for the determination that airworthiness certification is not necessary for certain small UAS. The key determinations that must be made in order for UAS to operate under the authority of section 333 are: (1) The operation must not create a hazard to users of the national airspace system or the public; and (2) the operation must not pose a threat to national security. 18 In making these determinations, the Secretary of Transportation must consider the following factors: size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight. 17 49 U.S.C. 44711(a)(1). 18 Public Law 112-95, sec. 333(b)(1). In 2013, the Department issued a comprehensive plan and subsequently the FAA issued a roadmap of its efforts to achieve safe integration of UAS operations into the NAS. 19 As a result of its ongoing integration efforts, the FAA seeks to change its regulations to take the first step in the process of integrating small UAS operations into the NAS. The NPRM proposed to utilize the airworthiness-certification flexibility provided by Congress in section 333 of Public Law 112-95, and allow some small UAS operations to commence in the NAS. 20 As noted earlier in this executive summary, the FAA published the NPRM on February 23, 2015, and received over 4,600 comments. The NPRM proposed to issue small UAS airman certificates to applicants who passed a knowledge test, and proposed to allow line-of-sight operations of small unmanned aircraft below 500 feet AGL at speeds of less than 100 miles per hour. Airworthiness certification would not be required under the proposed rule. The FAA has considered the public comments filed in response to the NPRM, and now issues this final rule. 19 http://www.faa.gov/uas/media/uas_roadmap_2013.pdf. 20 As discussed in section III.C.4 below, 14 CFR part 107 will not apply to model aircraft that satisfy all of the statutory criteria specified in section 336 of Public Law 112-95. The FAA has recently published an interpretive rule for public comment explaining the statutory criteria of § 336. See Interpretation of the Special Rule for Model Aircraft, 79 FR 36172, 36175 (June 25, 2014). E. Related UAS Integration Initiatives While this rulemaking was pending, the FAA recognized that there already exists a population of small UAS operators and remote pilots who are ready and able to operate safely. To address the needs of these operators and remote pilots while these regulations were being finalized, the Department issued thousands of exemptions under its section 333 authority to permit civil visual-line-of-sight small UAS operations in the NAS. 21 The operations permitted under those exemptions are similar to those that will be enabled by part 107. 21 http://www.faa.gov/uas/legislative_programs/section_333/. In addition, to further facilitate the integration of UAS into the NAS, the FAA has chosen six UAS research and test site operators across the country. In selecting the six test site operators, the FAA considered geography, climate, location of ground infrastructure, research needs, airspace use, safety, aviation experience, and risk. In totality, these six test site applications achieve cross-country geographic and climatic diversity and help the FAA meet its UAS research needs. As of December 2015, all of the UAS test sites are operational and are gathering operational data to foster further integration, as well as evaluating new technologies. The FAA has also selected, after a rigorous competition, a Mississippi State University team as the FAA's Center of Excellence for Unmanned Aircraft Systems. The Center of Excellence will focus on research, education, and training in areas critical to safe and successful integration of UAS into the NAS. 22 22 http://www.faa.gov/uas/legislative_programs/coe/ . In May 2015, the FAA announced the UAS Focus Area Pathfinders initiative, 23 a partnership with industry to explore the next steps in unmanned aircraft operations beyond the type of operations the agency proposed in the small UAS NPRM. Three companies reached out to the FAA to work on research to continue expanding use of UAS in the nation's airspace in three focus areas: Visual line-of-sight operations in urban areas; extended visual-line-of-sight operations in rural areas; and beyond visual line-of-sight in rural/isolated areas. In October 2015 a fourth Pathfinder initiative was added, testing technology to identify small UAS operating around airports. 23 http://www.faa.gov/uas/legislative_programs/pathfinders/. In September 2015, the FAA issued Advisory Circular 91-57A, 24 Model Aircraft Operating Standards, replacing and superseding the guidance provided in the now-cancelled Advisory Circular 91-57, issued in 1981. The updated document provides guidance to persons operating unmanned aircraft for hobby or recreation purposes meeting the statutory definition of “model aircraft” contained in Section 336 of the FAA Modernization and Reform Act (Public Law 112-95), and describes means by which model aircraft may be operated safely in the NAS. 24 https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A.pdf. In February 2016, the FAA convened an aviation rulemaking committee (ARC) to provide recommendations for a performance-based standard that would allow certain UAS to be operated over people. Previously characterized as micro UAS in the NPRM for this final rule, this category of operations will now be considered in a separate rulemaking. The ARC submitted its recommendations to the FAA on April 2, 2016, and the FAA is currently evaluating the recommendations. A copy of the ARC's report is available in docket for this rulemaking, and more information regarding the status of this new rulemaking may be found in the Department's significant rulemakings report, available at www.transportation.gov/regulations . III. Discussion of the Final Rule As discussed in the previous section, in order to determine whether certain UAS may operate safely in the NAS pursuant to section 333, the Secretary must find that the operation of the UAS will not: (1) Create a hazard to users of the NAS or the public; or (2) pose a threat to national security. The Secretary must also determine whether small UAS operations subject to this rule pose a safety risk sufficient to require airworthiness certification. The following preamble sections discuss the specific components of this rule, and section III.J explains how these components work together and allow the Secretary to make the statutory findings required by section 333. A. Incremental Approach and Waiver In the NPRM, the FAA noted that this rulemaking is one step of a broader process to fully integrate UAS into the NAS. “Once the entire integration process is complete, the FAA envisions the NAS populated with UAS that operate well beyond the operational limits proposed in [the NPRM].” 25 However, because higher-risk UAS operations pose additional safety issues that require more time to resolve, the FAA proposed to limit this rulemaking to small UAS operations posing the least amount of risk so that the agency could move to quickly issue a final rule integrating those operations into the NAS. “In the meantime, the FAA will continue working on integrating UAS operations that pose greater amounts of risk, and will issue notices of proposed rulemaking for those operations once the pertinent issues have been addressed, consistent with the approach set forth in the UAS Comprehensive Plan for Integration and FAA roadmap for integration. 26 25 80 FR at 9552. 26 80 FR at 9552. Section 332(a) of Public Law 112-95 requires the Secretary of Transportation to develop a comprehensive plan to safely accelerate the integration of civil UAS into the NAS. This plan must be developed in consultation with representatives of the aviation industry, Federal agencies that employ UAS technology in the NAS, and the UAS industry. Section 332(a) also requires the Secretary of Transportation to develop a 5-year roadmap for the introduction of civil UAS into the NAS. Both the comprehensive plan and the roadmap were published in November 2013. The FAA also acknowledged that new technologies could come into existence after this rule is issued that could alleviate some of the risk concerns underlying the provisions of this rulemaking. As such, the FAA invited comment as to whether the final rule should include some type of waiver authority (such as a letter of deviation or a waiver) to better accommodate these new technologies. For the reasons discussed below, the FAA has decided to proceed with an incremental approach in this final rule but has added waiver authority to the regulatory text in order to accommodate new technologies and unique operational circumstances. A number of commenters, including NTSB, Airlines for America (A4A), and the Small UAV Coalition, supported the FAA's proposed incremental approach to issue a final rule immediately integrating low-risk UAS operations into the NAS while continuing to work on integrating UAS posing a higher risk in separate regulatory actions. Qualcomm Incorporated, Google, Inc., the Oregon Department of Aviation, and the North Dakota Department of Agriculture urged the FAA to move quickly to issue a final rule integrating small UAS operations into the NAS. Google emphasized that “[a]s the [small UAS] industry evolves, any lengthy delay in the issuance of a final [small UAS] rule would substantially reduce the benefits of the final rule. It will be difficult, if not impossible, for the FAA to adequately consider the many likely technological developments during a protracted rulemaking.” The National Association of Flight Instructors added that because UAS are a relatively new technology whose risks are still being studied, the FAA should use “a phased in set of regulations that ease into basic use of [small UAS] in the NAS with close attention to the degree of responsible use and compliance with regulations before considering relaxation of rules to allow increasing capability of the aircraft.” The Coalition of Airline Pilots Associations (CAPA) commented that “creating a set of regulations and standards that have a lower level of safety in the name of expedience is problematic.” CAPA asserted that this rulemaking “is an opportunity to develop a regulatory schema, using the hard lessons learned over the past one hundred years that has the long-range vision to be capable and integrated to handle the full spectrum of anticipated operations.” CAPA also claimed that there may ultimately be remotely piloted vehicles that are the size of commercial transport category aircraft, and that any system put in place to govern UAS must account for this eventuality and provide the appropriate level of regulation. The Flight School Association of North America recommended a 12 to 18-month extension to the rulemaking timeline, “so that more review can be accomplished.” Other commenters, including Amazon.com, Inc. (Amazon), the American Farm Bureau Federation, and several state farm bureaus, 27 raised concerns about the proposed incremental approach. These and other commenters, such as the U.S. Small Business Administration (SBA) Office of Advocacy and the George Washington University Regulatory Studies Center, argued that more flexibility is necessary in the final rule to keep pace with new and emerging technologies. In addition, the commenters asserted that by delaying the integration of certain operations, such as beyond-visual-line-of-sight operations, until a future rulemaking, the FAA would also delay the benefits associated with those operations until the pertinent future rulemaking is complete. The George Washington University Regulatory Studies Center suggested that the FAA set regular deadlines for issuing future final rules to further integrate UAS into the NAS. 27 Some of these commenters include the Michigan Farm Bureau, the Indiana Farm Bureau, the Louisiana Farm Bureau Federation, and the South Dakota Farm Bureau Federation. To address these concerns, a number of commenters including the SBA Office of Advocacy, the National Business Aviation Association (NBAA), and Google, urged the FAA to include deviation authority in the final rule. Google suggested that the FAA should grant a deviation from the provisions of part 107 if an applicant can establish that his or her small UAS operation would provide a level of safety equivalent to the one provided by the operating parameters of part 107. Several commenters including the National Ski Areas Association, EEI, 28 and the American Farm Bureau Federation (AFBF) asserted that there exist industries (such as agriculture, electrical utilities, and ski resorts) whose unique operating environments may allow them to mitigate some of the safety concerns underlying the operational parameters of the NPRM proposal. The Small UAV Coalition emphasized that the key to including deviation authority in the final rule would be for the FAA to establish a process by which it may authorize certain operations to exceed the other provisions of part 107 based on case-specific characteristics such as the operational circumstances of the mission, technological capabilities of the small UAS, and the training and experience of the operator. 28 EEI, NRECA, and APPA submitted a joint comment to the docket. For ease of reference, this preamble will refer to the joint submission simply by the name of the first organization on the letterhead, which is EEI. After considering the comments, the FAA has decided to proceed incrementally and issue a final rule that immediately integrates the lowest-risk small UAS operations into the NAS. As Qualcomm, Google, the Oregon Department of Aviation, and other commenters pointed out, delaying the integration of the lowest-risk small UAS operations until issues associated with higher-risk operations have been addressed would needlessly delay the realization of societal benefits associated with integrating UAS operations for which the pertinent safety issues have been addressed. In addition, the immediate integration of the lowest-risk small UAS operations into the NAS would provide the FAA with additional operational experience and data that could be used to assist with the integration of higher-risk operations. However, the FAA also agrees with the SBA Office of Advocacy and other commenters who pointed out that: (1) The rulemaking process for higher-risk UAS operations may lag behind new and emerging technologies; and (2) certain individual operating environments may provide unique mitigations for some of the safety concerns underlying this rule. To resolve these issues, this rule will, in § 107.200, include the option to apply for a certificate of waiver. This certificate of waiver will allow a small UAS operation to deviate from certain provisions of part 107 if the Administrator finds that the proposed operation can safely be conducted under the terms of that certificate of waiver. This is similar to the standard that the FAA utilizes to consider waivers to the requirements of 14 CFR part 91. 29 A discussion as to whether a provision of part 107 is waivable can be found in the preamble section discussing that provision. 29 See 14 CFR 91.903(a) (allowing a certificate of waiver from part 91 requirements “if the Administrator finds that the proposed operation can be safely conducted under the terms of that certificate of waiver”). To obtain a certificate of waiver, an applicant will have to submit a request containing a complete description of the proposed operation and a justification, including supporting data and documentation as necessary, that establishes that the proposed operation can safely be conducted under the terms of the requested certificate of waiver. The FAA expects that the amount of data and analysis required as part of the application will be proportional to the specific relief that is requested. Similarly, the FAA anticipates that the time required for it to make a determination regarding waiver requests will vary based on the complexity of the request. For example, a request for a major deviation from part 107 for an operation that takes place in a congested metropolitan area with heavy air traffic will likely require significantly more data and analysis than a request for a minor deviation for an operation that takes place in a sparsely populated area with minimal air traffic. If a certificate of waiver is granted, that certificate may include additional conditions and limitations designed to ensure that the small UAS operation can be conducted safely. The certificate-of-waiver process will allow the FAA to assess case-specific information concerning a small UAS operation that takes place in a unique operating environment and consider allowing additional operating flexibility that recognizes safety mitigations provided by the specific operating environment. The FAA anticipates that this process will also serve as a bridging mechanism for new and emerging technologies; allowing the FAA to permit testing and use of those technologies, as appropriate, before the pertinent future rulemaking is complete. Like information collected from § 333 exemptions, the FAA plans to collect useful data derived from waiver application and issuance such as what part 107 provisions have the greatest number of waiver requests, what technology is being utilized to enhance safety, and what safe operating practices are most effective. To evaluate the effectiveness of operating practices, the FAA plans to compare the mitigations imposed by waiver grants against accident and incident reports and observations made as part of the FAA's oversight. For example, an FAA inspector conducting an inspection of a small UAS that is operating under a waiver will be able to observe potential safety issues that may arise during the operation. This information will used to assess risk and be shared with various organizations in the FAA to inform policy decisions and rulemaking efforts. Some commenters requested authorization to deviate for specific activities. For example, the National Rural Electric Cooperative Association (NRECA) requested deviation authority for utility maintenance and operations of UAS in electric cooperative power line right-of-way corridors. The American Petroleum Institute (API) requested deviation authority in circumstances in which environmental protection and health and human safety issues are implicated. Princeton University recommended that the rule include an option for universities to certify that the aircraft is to be used for educational purposes and poses no unreasonable danger to the public. Vail Resorts requested that the FAA provide a vehicle for deviation authority through agency practices that will enable ski areas to obtain authorization or exemption from certain final rules. The FAA notes that the safety of a small UAS operation is a result of that operation's operating parameters and not the purpose for which the operation is conducted. For example, if a small UAS operation is conducted at a remote ski resort, the safety-pertinent factor is not that the operation is conducted for ski-area purposes, but that the operation is conducted in a remote area. However, at this time, the FAA does not have sufficient data to determine what (if any) operational mitigations are included when a small UAS operation is conducted in a given industry and how widespread those mitigations are within the industry. To take the earlier example of ski areas, the FAA does not have sufficient data to determine whether all ski areas are remotely located and the density of manned-aircraft traffic near each ski area. Accordingly, the FAA will evaluate operations seeking to go beyond the baseline part 107 requirements on a case-by-case basis as part of its evaluation of the waiver applications. Modovolate Aviation and Colorado Ski Country USA encouraged the FAA to make available class exemptions under section 333 of Public Law 112-95 if specific classes of small UAS cannot reasonably be accommodated within the final rule. Similarly, DJI recommended that, where technology or operating practice is widely available or known, the FAA could issue guidance allowing its inspectors to routinely grant deviation authority to all operators meeting certain standards rather than evaluating individual requests for deviation. Another commenter encouraged the FAA to consider issuing equipment-specific authorizations or waivers based on specific technologies rather than granting authorizations or waivers to specific operators flying specific aircraft. An individual urged the FAA to set up a program to let manufacturers self-certify that their aircraft models qualify for exemption from applicable rules. The FAA notes that the Administrative Procedure Act imposes certain requirements on agency rulemaking. When conducting a rulemaking, an agency must, among other things, issue a notice of proposed rulemaking, allow time for public comment, consider public comments, and issue a final rule after consideration of public comments. 30 As part of its process to integrate UAS into the NAS, the FAA may, in the future, consider categories of UAS and UAS operations, but absent changes to the statute, the method by which the agency will integrate those categories into the NAS will have to comply with the Administrative Procedure Act. With regard to manufacturer self-certification, the FAA notes that part 107 will not contain airworthiness certification requirements and thus, there will be no part 107 requirement to which a manufacturer could self-certify. 31 30 See 5 U.S.C. 553(b) and (c). 31 Part 107 does require the remote pilot to conduct a preflight check to ensure that the small UAS is in a condition for safe operation, but the manufacturer would be unable to self-certify for that requirement because a small UAS may become damaged after it leaves the manufacturer's possession. NetMoby encouraged the FAA to circumscribe very specific rules establishing standards for UAS deviation authority at the outset of the UAS regulatory environment to avoid being immediately overwhelmed with waiver requests and other requests for deviation authority. Google proposed a specific process for the deviation authority. Google explained that the FAA would be able to tailor different operational restrictions, as appropriate, if a petitioner can demonstrate that: (i) The small UAS has enhanced safety technology; (ii) the small UAS meets a higher level of airworthiness or complies with a more detailed maintenance and inspection protocol; or (iii) the small UAS operator (pilot) has a higher level of pilot and small UAS operator qualification, training, and/or certification than the proposed part 107 would require. As discussed earlier, the standard that an applicant seeking a waiver will be required to meet is to demonstrate that his or her proposed small UAS operation can safely be conducted under the terms of a certificate of waiver. This waiver process is intended to allow for case-specific mitigations that could take many different forms or combinations. These mitigations could even be based on technology that does not exist at this time. Because prescriptive requirements imposed on the waiver process as part of this rulemaking may limit the FAA's flexibility to consider new or unique operational circumstances and safety mitigations, the FAA declines to add more prescriptive requirements to this process. The International Air Transport Association urged the FAA to adopt a final rule that allows for regular and systemic review to ensure the appropriate level of regulation or oversight. The Agricultural Retailers Association similarly recommended timely reauthorization of the rules “to mirror technological advances and risk mitigation.” The Virginia Department of Aviation asserted that the rules “should be reviewed as quickly as the safety data permits,” which the commenter estimated to be every 24 months “until we achieve full integration of the technology into the NAS.” Several commenters urged the FAA to specifically address the timeline for implementation, so that the industry can prepare appropriately. One individual questioned whether the FAA intends to create a forecast for UAS “rule evolution.” Specifically, the commenter questioned when the FAA expects to develop rules for UAS greater than 55 pounds and what constraints the agency expects to put on operations for these larger vehicles. Another individual recommended the FAA set regular deadlines for issuing final rules to update UAS integration standards, and commit to removing some of the requirements ( e.g., size, visual line of sight) by a date certain, unless experience justified maintaining them. The FAA notes that it has issued a comprehensive plan and roadmap laying out its long-term vision for UAS integration into the NAS. The FAA is currently updating these documents with an FAA strategic plan for UAS integration into the NAS. 32 32 http://www.faa.gov/uas/publications/ . With regard to review of the rules once they are in place, the FAA notes that Executive Order 13610 requires the FAA to review its regulations to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the advent of new technologies. The FAA regularly conducts a retrospective review of its regulations, and the regulations of this rule will be no exception. B. Discussion of the Applicable Statutory Framework The Mercatus Center at George Mason University and the Competitive Enterprise Institute questioned the Department's reliance on Public Law 112-95, section 333 as the authority for the proposed rule. Both commenters stated that Public Law 112-95, § 332 includes Congress' mandate to the FAA to promulgate rules for small UAS integration into the NAS. The Competitive Enterprise Institute urged the Department to clearly articulate why it is invoking section 333 authority, as opposed to § 332(b) authority, as the basis for this rulemaking. Section 332(b)(1) requires the Secretary to publish a final rule allowing for the civil operation of small UAS in the NAS “to the extent the systems do not meet the requirements for expedited authorization under section 333.” Conversely, section 333(a) requires the Secretary to determine whether certain UAS may operate safely in the NAS “before completion of the plan and rulemaking required by section 332. . . .” As part of the consideration under section 333, section 333(b)(2) directs the Secretary to determine whether “. . . airworthiness certification under section 44704 of title 49, United States Code is required for the operation of unmanned aircraft systems.” If the Secretary determines that certain UAS may operate safely in the NAS, then section 333(c) requires the Secretary to “establish requirements for the safe operation” of those UAS in the NAS. Because the statutory text of section 332(b)(1) applies only to those UAS that do not meet the requirements of section 333, sections 332 and 333 cannot both apply to the same UAS. The Department is pursuing this rulemaking under section 333 because section 333(b)(2) allows it to find that airworthiness certification is not necessary for small UAS that will be subject to this rule. As discussed in section III.J.3 of this preamble, the Department has indeed found that mandatory airworthiness certification is unnecessary to ensure the safety or security of these types of small UAS operations. However, unlike section 333(b)(2), section 332 does not contain a provision that would allow the Department to find that airworthiness certification should not be required for a small UAS. Because airworthiness certification is normally a statutory requirement imposed by 49 U.S.C. 44704 and 44711(a)(1), the FAA would have to include an airworthiness certification requirement in this rule if it were to conduct this rulemaking under section 332 rather than section 333. This would impose an additional requirement on small UAS whose operational parameters do not pose a hazard to users of the NAS or a threat to national security. Matternet, Inc. argued that Public Law 112-95 compels the FAA to develop a regulatory framework for unmanned aircraft systems, but does not bind or limit the Agency to existing statutes concerning aviation, or to decades-long aviation regulatory doctrines that, Matternet asserted, do not apply to these new technologies. Furthermore, Matternet argued that because Public Law 112-95, section 333 expressly contemplates that “certain unmanned aircraft systems [would] operate safely in the NAS before completion of the plan and rulemaking required by section 332,” Congress gave the FAA a “blank slate” to create small UAS regulations “without any suggestion that existing statutes or regulations would act as impediments to the rulemaking process.” Matternet also stated that it “is concerned that the FAA's proposal is impeded by an apparent notion that statutes, regulations or doctrines that were created decades ago to address manned aircraft operations are mandated to apply to unmanned aircraft, without any safety or economic rationale.” Matternet's argument that existing statutes and regulatory doctrines are limited to manned aircraft operations is foreclosed by precedent. In Administrator v. Pirker, 33 the NTSB considered the issue of whether an unmanned aircraft is an “aircraft” within the meaning of FAA statutes and regulations and whether it is subject to the existing FAA regulations of part 91, which “prescribes rules governing the operation of aircraft.” 34 The NTSB found that the statutory and regulatory definitions of aircraft are “clear on their face” and “draw no distinction between whether a device is manned or unmanned.” 35 Thus, the NTSB concluded that the existing regulatory provision of § 91.13 (which prohibits careless or reckless operation of an aircraft) apply to the unmanned aircraft operation that was at issue in Pirker. 36 33 A copy of the Pirker decision can be found at: http://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5730.pdf . 34 14 CFR 91.1(a). 35 Pirker at 4-5. 36 Pirker at 8-12. The FAA is also unpersuaded by Matternet's other argument that Public Law 112-95 overturned all existing aviation statutes and regulations, leaving the FAA with a “blank slate” for this rulemaking. The Supreme Court has held that “[w]hile a later enacted statute . . . can sometimes operate to amend or even repeal an earlier statutory provision . . . repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” 37 The Court added that “[w]e will not infer a statutory repeal “unless the later statute expressly contradict[s] the original act or unless such a construction is absolutely necessary in order that the words of the later statute shall have any meaning at all.” 38 Implied repeals of a longstanding statutory provision are particularly disfavored. 39 37 Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (internal citations and punctuation marks omitted). 38 Id. 39 Andrus v. Glover Constr. Co., 446 U.S. 608, 618 (1980) (noting “the axiom that repeals by implication of longstanding statutory provisions are not favored”). The aviation statutes at issue here were enacted in 1958 as part of the Federal Aviation Act of 1958 (which created the Federal Aviation Agency). 40 Because these statutory provisions have been in place for 58 years, they are longstanding statutory provisions whose implied repeal would be particularly disfavored. Many of the pertinent regulatory provisions at issue in this rulemaking are similarly longstanding. For example, the “see and avoid” requirement of § 91.113(b) was created in 1968. 41 Thus, for the reasons discussed below, the FAA finds that, with the exception of 49 U.S.C. 44704 and 44711(a)(1), Public Law 112-95 did not repeal these existing statutes and regulations. 40 Federal Aviation Act of 1958, Public Law 85-726, 72 Stat. 731 (1958). 41 Pilot Vigilance, 33 FR 10505, July 24, 1968. Section 333 of Public Law 112-95 directs the Secretary of Transportation to determine whether certain UAS may operate safely in the NAS and if so, to establish requirements for the safe operation of such UAS in the NAS. 42 With the exception of section 333(b)(2), which allows the Secretary to determine whether the airworthiness-certification requirements of 49 U.S.C. 44704 and 44711(a)(1) should be imposed on certain UAS, section 333 does not expressly contradict any existing statute or regulation. Furthermore, interpreting section 333 as repealing all prior aviation statutes and regulations is unnecessary in order to give meaning to section 333, which simply directs the Secretary to determine whether existing aircraft regulations prohibit or otherwise burden certain UAS operations that could operate safely in the NAS. If the Secretary determines that this is the case, then section 333(c) directs the Secretary to make the appropriate changes to the pertinent regulations. Because, with the exception of section 333(b)(2), section 333 can be given meaning without repealing other existing aviation statutes or regulations, we decline Matternet's suggestion that section 333 impliedly repeals those statutes or regulations. 42 Public Law 112-95, sec. 333(a) and (c). We also note that section 333(b)(2) provides further evidence that Congress intended section 333 to work in conjunction with the existing aviation statutes. This subsection provides the Secretary with discretion to determine whether airworthiness certification is necessary for UAS subject to this rule. The FAA normally does not possess this discretion because 49 U.S.C. 44711(a)(1) requires airworthiness certification for any civil aircraft that is operated in air commerce. Subsection 333(b)(2) also expressly cross-references 49 U.S.C. 44704, which specifies the process by which the FAA may issue an airworthiness certificate. If Congress had intended section 333 to repeal all other aviation statutes and regulations, there would be no need to cross-reference § 44704 or explicitly give the Secretary the power to determine whether airworthiness certification should be required because a repeal of § 44711(a)(1) and § 44704 would automatically remove the statutory constraints on FAA's airworthiness certification discretion. Thus, interpreting section 333 as repealing all other aviation statutes would also render meaningless the Congressional directive in section 333(b)(2) for the Secretary to determine whether the airworthiness certification requirements of §§ 44711(a)(1) and 44704 should be applied to UAS subject to this rule. The North Dakota Department of Agriculture noted that the FAA has authority over the NAS and requested clarification on how UAS operations will operate in an interstate manner. In response, the FAA notes that, as the North Dakota Department of Agriculture pointed out, the FAA's authority extends over the entire national airspace system. 43 Thus, with the exception of operations discussed in section III.C of this preamble, the provisions of part 107 will apply to small UAS operations operating in any State or manner in the United States. 43 See, e.g., Public Law 112-95, section 333(a) (directing the Secretary of Transportation to determine whether certain UAS may operate safely in the “ national airspace system”) (emphasis added). C. Applicability To integrate small UAS operations into the NAS, this rule will create a new part in title 14 of the CFR: Part 107. The regulations of part 107, which are tailored to address the risks associated with small UAS operations, will apply to small UAS operations in place of certain existing FAA regulations that impede civil small UAS operations. Specifically, for small UAS operations, the requirements of part 107 will generally replace the airworthiness provisions of part 21, the airman certification provisions of part 61, the operating limitations of part 91, and the external load provisions of part 133. However, part 107 will not apply to all small UAS operations. For the reasons discussed below, part 107 will not apply to: (1) Air carrier operations; (2) international operations; (3) public aircraft operations; (4) certain model aircraft; and (5) moored balloons, kites, amateur rockets, and unmanned free balloons. Additionally, part 107 will allow current holders of an exemption issued under section 333 of Public Law 112-95 to continue operating under the terms of their exemption rather than under part 107. 1. Transporting Property for Compensation (Air Carrier Operations) The NPRM proposed to allow transportation of property provided it is not done for compensation. The reasoning for the limitation on accepting payment or compensation for such transport is that, in general, when someone is transporting persons or property by air for compensation, that person may be considered an “air carrier” by statute and would then be required to obtain OST economic authority and additional FAA safety authority. 44 Because the traveling and shipping public have certain expectations of safety and consumer protection when payment is exchanged for carriage, air carriers are subject to both economic and safety regulations to mitigate the risks to persons or non-operator-owned property on the aircraft, including statutory requirements for liability insurance coverage. 44 See 49 U.S.C. 41101 (noting that an air carrier may provide air transportation only if the air carrier holds a certificate issued under this chapter [chapter 411—Economic Regulation of Air Carrier Certificates] authorizing the air transportation), 49 U.S.C. 44705 (requiring the FAA Administrator to “issue an air carrier operating certificate to a person desiring to operate as an air carrier when the Administrator finds, after investigation, that the person properly and adequately is equipped and able to operate safely under this part and the regulations and standards prescribed under this part”), and 49 U.S.C. 44711(a)(4) (prohibiting a person from operating as an air carrier without an air carrier operating certificate). Air transportation is defined in 49 U.S.C. 40102(a)(5) as “foreign air transportation, interstate air transportation, or the transportation of mail by aircraft.” The Department sought comment on whether the rule should go further—that is, whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule, e.g., the ban on flights over uninvolved persons, the requirements for line of sight, and the intent to limit operations to a confined area. The Department also sought comment on whether a special class or classes of air carrier certification should be developed for UAS operations. Commenters including NAAA, International Brotherhood of Teamsters, and ALPA supported the proposed prohibition on carrying property for compensation. These commenters generally asserted that allowing air carrier operations at this time would be premature. NAAA stated that a more stringent regulatory regime, including certification of the safety of a small UAS for air carrier operations, should be developed before air carrier operations are permitted. The International Brotherhood of Teamsters stated that weakening the regulations before “package delivery technologies” are proven safe and reliable could endanger not only the public but also the warehouse and operational staff involved in the loading and maintenance of small UAS. ALPA stated that until there is a demonstrated safety record for UAS air carrier operations, the Department should not authorize such operations. Other commenters, including FAST Robotics, NBAA, and Small UAV Coalition argued that the FAA should permit such operations. Life Drone argued that the final rule should allow small UAS to deliver “medical AED units” to emergency and remote locations where there is little or no risk of interference with the NAS. MAPPS requested a “geospatial exemption” to allow companies to obtain air carrier services for various geospatial sensors owned by those other than the small UAS operator. The Small UAV Coalition, Matternet, and the Information Technology and Innovation Foundation opposed the prohibition on the basis that allowing a company to use a small UAS to transport property in furtherance of the company's own business, but not for compensation, is an arbitrary distinction. Matternet and the Small UAV Coalition argued that there is no safety or economic rationale to justify allowing property transport for business purposes but not for compensation. The Information Technology and Innovation Foundation asserted that the safety of goods transported by UAS does not depend on whether the UAS operator receives payment. This commenter further stated that “[the] goal should be to optimize both safety and commercial value when it comes to the integration of UAS into the NAS,” but the prohibition on air carrier operations places “unnecessary restrictions on commercial activity.” Matternet noted that UAS analysis shows that over 80% of goods intended for delivery by UAS will be in the range of two kilograms or less, and that the total weight of the small UAS, including payload, will therefore be 6 kilograms or less. Thus, Matternet argued, the safety risks associated with manned air carrier operations—where the aircraft weighs considerably more and has significant fuel capacity, and where the operation could impact people both on the aircraft and on the ground—do not exist for unmanned air carrier operations. Google and the Consumer Electronics Association also pointed out that most UAS cargo delivery will consist of relatively low-weight items that create minimal safety concerns. Google argued that UAS cargo operations are very similar to operations that require external payloads, such as sensors or cameras, and then noted that FAA has already authorized several small UAS operators to carry such external payloads. Amazon and American Farm Bureau Federation similarly noted that there are circumstances in which FAA already permits certain commercial operations ( e.g., aerial work operations, crop dusting, banner towing, ferry or training flights, and some transport of persons or property for compensation) without requiring an air carrier certificate, and a similar carve-out should be established for low-risk transport using small UAS. Pointing to the low risks associated with the transport of property by small UAS under the operating limitations of the proposed rule, Amazon, Matternet, American Farm Bureau Federation, and Michigan Farm Bureau stated that an air carrier certification is not necessary for small UAS air carrier operations. If, however, the Department determines that some type of air carrier certification is required by statute, those four commenters, the Small UAV Coalition, and Continental Mapping suggested that the Department develop an alternative certification process that is tailored to small UAS operations. NBAA and UPS stated that FAA can ensure safe operations by defining performance-based standards to enable transport of property for compensation. For example, UPS suggested weight limitations for small UAS involved in transporting property. AUVSI said risks could be mitigated by compliance with industry standards for design and build that would normally occur through the aircraft certification process. Aviation Management noted that small UAS should be permitted to transport property if they have received approval to do so— i.e., through compliance with an advisory circular or with an industry standard for design and build, such as one developed by ASTM. The Consumer Electronics Association and Small UAV Coalition pointed out that companies that want to transport property by UAS for compensation have powerful business incentives to ensure safe, efficient, and complete operations. Other commenters, including NetMoby, FAST Robotics, and Planehook Aviation Services, LLC (Planehook Aviation), said that a special class of air carrier certification should be required for UAS to transport property for payment. Planehook Aviation stated that, at a minimum, FAA should create a “common carriage certification” that mirrors the care and safety requirements for manned aviation under 14 CFR part 119. The Department has reviewed the comments and legal authorities that govern the transport of property for compensation and has determined that it is appropriate to allow some limited operations involving the transport of property for compensation to be done under the other provisions of part 107, as analyzed below. As noted earlier, in general when someone is transporting persons or property by air for compensation, that person may be considered an “air carrier” by statute and would then be required to obtain economic authority from the Office of the Secretary and additional FAA safety authority. Historically, the FAA has also required, through regulation, that certain commercial operators who may be transporting people or property for compensation wholly within a State, and thus not triggering the statutory requirements for air carriers, be certificated and comply with heightened safety requirements, based on the Administrator's authority in § 44701(a)(5) to prescribe regulations that are necessary for safety in air commerce. The rationale for this is that even aircraft operating wholly within a State could be operated in such a manner that directly affects, or may endanger safety in foreign or interstate air commerce. In contrast, the FAA has also recognized that some commercial operations should not be subject to these heightened operator certification requirements and should be allowed to operate under the general operating rules of 14 CFR part 91. Some examples of this include student instruction, sightseeing flights conducted in hot air balloons, and non-stop flights conducted within a 25-statute mile radius of the airport of takeoff for the purpose of conducting parachute operations, as well as certain helicopter flights conducted within a 25-mile radius of the airport of takeoff. 45 These exceptions are narrow and well-defined, and must be conducted in accordance with operating limitations set forth in § 119.1(e) and 14 CFR part 91. 45 See 14 CFR 119.1(e)(1-10). In light of our experience with certification of other commercial operations, and with particular attention to the safe integration of new technologies, applications that are emerging, and limited nature of the transportation that could occur given the operating limits of the final rule, the Department has determined that a similar exception from air carrier operations for unmanned aircraft involving limited transport of property for compensation is appropriate. As adopted, the final rule provides immediate flexibility for remote pilots to engage in the limited carriage of property by small UAS, provided that the operations are conducted within a confined area and in compliance with the operating restrictions of 14 CFR part 107. It does not, however, allow individuals or corporations, acting as “air carriers,” to engage in “air transportation” as those terms are defined in 49 U.S.C. 40102. 46 As technology develops in the future, the Department will evaluate the integration of more expansive UAS air carrier operations into the NAS and will propose further economic and safety regulations if warranted. 46 See 49 U.S.C. 40102(a)(2) (defining “air carrier”) and (a)(5) (defining “air transportation”). In order to not be considered “air transportation,” first, the transport must occur wholly within the bounds of a state. It may not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession, as this is defined by statute as interstate air transportation and would otherwise trigger the Department's statutory requirements for air carrier operations. Thus, remote pilots may not offer or conduct “air transportation,” in which goods move across State or national borders. By statute and regulation, individuals seeking to carry more than a de minimis volume of property moving as part of a continuous journey over state, territorial, or international boundaries are considered by the Department of Transportation to be “air carriers” engaging in “air transportation.” 47 The assessment of whether an operator is engaging in “air transportation” is specific to the facts and circumstances of each case. Generally, the Department looks to how the transportation is being marketed and offered to customers, whether the transporting entity has existing aviation economic authority, and the extent to which the people or goods are being transported as part of an inter- or multi-State network. 47 See 49 U.S.C. 41101; 14 CFR 298.2. Second, as with other operations in part 107, small UAS operations involving the transport of property must be conducted within visual line of sight of the remote pilot. While the visual-line-of-sight limitation can be waived for some operations under the rule, the restriction is a critical component of the Department's finding that these part 107 operations do not warrant further safety or economic authority at this time. The visual-line-of-sight restriction limits the area of operation to a circle with only about a 1-mile radius around the remote pilot in command, depending on the visibility conditions at the time of the operation. This limited area of operation mitigates the safety concerns that underlie the additional requirements that the FAA normally imposes on commercial operators under part 119. Operating within visual line of sight of the remote pilot is also critical to the Department's finding that these operations are so limited such that at this time, they could not be considered air transportation, or part of a broader network of interstate commerce warranting economic authority to ensure adequate protection of consumers' interests at this time. Accordingly, any waivers that the FAA may grant to the visual-line-of-sight provisions of part 107 will not allow the operation to transport property for compensation or hire beyond visual line of sight. For these reasons, this rule will also not allow the operation of a small UAS from a moving vehicle if the small unmanned aircraft is being used to transport property for compensation or hire. Allowing operation from a moving vehicle could allow the remote pilot in command to significantly expand the area of operation, raising the same safety and economic concerns as operations conducted beyond visual line of sight. Third, the provisions of part 107 limit the maximum total weight of the small unmanned aircraft (including any property being transported) to under 55 pounds. This limits the size and weight of any property transported by the unmanned aircraft. Additionally, other provisions of the final rule require the remote pilot to know the unmanned aircraft's location; to determine the unmanned aircraft's attitude, altitude and direction; to yield the right of way to other aircraft; and to maintain the ability to see-and-avoid other aircraft. In the aggregate, the provisions of the final rule are designed to create an integrated framework and strike a balance that, on the one hand, allows limited transportation of property for compensation, but, on the other hand, ensures safety in the NAS and the opportunity to evaluate more expansive carriage of property that would require both OST economic authority and additional FAA safety authority. Fourth, the FAA notes that the carriage of hazardous materials poses a higher level of risk than the carriage of other types of property. For example, in the context of external load operations conducted under 14 CFR part 133, the FAA has found, that “the transport of hazardous materials, especially forbidden [by PHMSA] hazardous materials, in external load operations creates a hazard to persons or property in the surface.” 48 Because the carriage of hazardous materials poses a higher level of risk, part 107 will not allow the carriage of hazardous materials. 48 Memorandum to Christopher Bonanti from Rebecca MacPherson, Assistant Chief Counsel, AGC 200 (Aug. 17, 2009). PHMSA is the abbreviation for “Pipeline and Hazardous Materials Safety Administration.” Based on these operational limits, the Department at this time does not view the limited transport of property for compensation that could occur via a small UAS that is operated within visual line of sight of the remote pilot to constitute “interstate air transportation.” The final rule, therefore, creates a new exception under 14 CFR part 119 for these operations authorized by part 107. This approach will encompass the vast majority of transportation by small UAS that could be conducted under part 107, including many of the specific scenarios suggested by commenters, without requiring the Department to design and develop a new infrastructure for issuance and administration of a new air carrier economic and safety licensing regime. We note that while the operations permitted by this rule do not rise to the level of air transportation, they are still considered to be commercial operations. Thus as discussed in the next section, if a person does not satisfy U.S. citizenship requirements, he or she must seek authority under 14 CFR part 375 before conducting these operations. 2. International Operations and Foreign-Owned Aircraft The International Civil Aviation Organization (ICAO) has recognized that UAS are aircraft, and as such, existing standards and recommended practices (SARPs) that apply to aircraft apply to UAS. ICAO currently is reviewing the existing SARPs to determine what modifications, if any, need to be made to accommodate UAS. In the U.S., however, UAS may operate with DOT authorization, under the authority of section 333 49 of Public Law 112-95, in a much less restrictive manner than current ICAO SARPs require. Thus, the FAA proposed to limit the applicability of part 107 to small UAS operations that are conducted entirely within the United States. Persons who wish to conduct operations outside of the United States would be able to do so, provided they seek and obtain the proper authorization from the requisite foreign civil aviation authority. 49 In addition to granting authorization through section 333 exemptions, the FAA may authorize UAS operations under sections 334 and 336 of Public Law 112-95, as well as through Experimental Airworthiness Certification of UAS and OPA (FAA Order 8130.34). In addition, based on the ICAO framework and the current review that ICAO is conducting, the FAA proposed to limit the rule to operations of U.S.-registered UAS. Under 49 U.S.C. 44103 and 14 CFR 47.3, an aircraft can be registered in the United States only if it is not registered under the laws of a foreign country and meets one of the following ownership criteria: • The aircraft is owned by a citizen of the United States; • The aircraft is owned by a permanent resident of the United States; • The aircraft is owned by a corporation that is not a citizen of the United States, but that is organized and doing business under U.S. Federal or State law and the aircraft is based and primarily used in the United States; or • The aircraft is owned by the United States government or a State or local governmental entity. In proposing this requirement, the FAA noted that existing U.S. international trade obligations, including the North American Free Trade Agreement (NAFTA), cover certain kinds of operations known as specialty air services. Specialty air services are generally defined as any specialized commercial operation using an aircraft whose primary purpose is not the transportation of goods or passengers, including but not limited to aerial mapping, aerial surveying, aerial photography, forest fire management, firefighting, aerial advertising, glider towing, parachute jumping, aerial construction, helilogging, aerial sightseeing, flight training, aerial inspection and surveillance, and aerial spraying services. The FAA invited comments on whether foreign-registered small unmanned aircraft should be permitted to operate under part 107, or recognized as specialty air services under international trade obligations. With respect to limiting UAS operations under part 107 to operations within the United States, the National Agricultural Aviation Association (NAAA), DJI, and another commenter supported the limitation, but sought clarification and additional guidance material on what steps individuals may need to complete to obtain the proper authorization from foreign civil aviation authorities and the FAA to operate outside the United States. Article 8 of the Chicago Convention specifies that no unmanned aircraft “shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization.” Article 8 also calls on States to undertake “to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft.” In accordance with this obligation, the provisions of part 107 set forth the necessary authorizations for operations conducted by U.S. citizens only within the United States. For those seeking to operate outside the United States, special authorization from the foreign civil aviation authority will be required. Thus, remote pilots wishing to conduct operations over another country's airspace should review that country's statutes, regulations, and guidance for clarification about how to operate in its airspace. The Small UAV Coalition sought clarification regarding whether UAS operations over water and beyond 12 nautical miles from the U.S. coast could be conducted under part 107, provided the operations are within U.S. flight information regions and not over the territory of a contracting member state. Until such time as agreements are reached with other countries, the FAA has determined that operations will be restricted to the land areas, internal waters, and territorial sea of the United States. U.S. flight information regions that are more than 12 nautical miles from the coast of the United States do not satisfy these criteria, and as such, part 107 will not apply to operations in those areas. Planehook Aviation argued that the rule should be consistent with applicable articles of the Chicago Convention, which, as noted previously, deal with unmanned aircraft operations and the safe separation from manned civil aircraft operations. As discussed earlier, ICAO has recognized that existing SARPs that apply to aircraft apply to UAS. ICAO currently is reviewing the existing SARPs to determine what modifications, if any, need to be made to accommodate UAS and in fact, recently amended the standard contained in paragraph 3.1.9 of Annex 2 (Rules of the Air). This standard requires that “[a] remotely piloted aircraft shall be operated in such a manner as to minimize hazards to persons, property or other aircraft and in accordance with the conditions specified in Appendix 4.” That appendix sets forth detailed conditions ICAO Member States must require of civil UAS operations for the ICAO Member State to comply with the Annex 2, paragraph 3.1.9 standard. Consistent with the recent amendment to 3.1.9 of Annex 2, the provisions of part 107 are designed to minimize hazards to persons, property or other aircraft operating within the United States. Given the on-going evaluation of the SARPs by ICAO, this rule will, for the time being, limit the applicability of part 107 to small UAS operations that are conducted entirely within the United States. The FAA envisions that operations in international and foreign airspace will be dealt with in a future FAA rulemaking as ICAO continues to revise and more fully develop its framework for UAS operations to better reflect the diversity of UAS operations and types of UAS and to distinguish the appropriate levels of regulation in light of those differences. Transport Canada stated that there is a discrepancy between the proposed rule's description of U.S. territorial waters extending to 12 nautical miles from the U.S. coast, and text in 14 CFR 91.1 that makes reference to “waters within 3 nautical miles of the U.S. Coast.” Under Presidential Proclamation 5928, the territorial sea of the United States, and consequently its territorial airspace, extends to 12 nautical miles from the baselines of the United States determined in accordance with international law. Thus, UAS operations that occur within 12 nautical miles from the baselines of the United States will be considered as operations occurring within the United States consistent with the applicability of part 107. The FAA notes that this approach is consistent with part 91. While, as Transport Canada pointed out, § 91.1(a) refers to waters within 3 nautical miles of the U.S. Coast, the applicability of part 91 is not limited to the 3-nautical-mile area. Specifically, § 91.1(b) clarifies that certain part 91 regulations also apply to aircraft operations taking place between 3 and 12 nautical miles from the coast of the United States. Thus, the 12-nautical-mile metric used in this rule is consistent with the FAA's agency practice (as codified in § 91.1(b)) and reflects the directive of Presidential Proclamation 5928. With respect to operation of foreign-registered aircraft for non-recreational and non-hobby purposes, NBAA, NetMoby, and Planehook Aviation supported the Department's decision not to include foreign-registered UAS in this rulemaking. DJI, however, recognized that the current statutory restrictions in 49 U.S.C. 44102(a)(1) impose constraints on who can register an aircraft in the United States. DJI urged the FAA to consider asking Congress either to drop the aircraft registration requirement for all small UAS altogether or to withdraw the citizenship requirement (including its limited exceptions) as part of the agency's upcoming reauthorization. Additionally, to the extent some of these operations could be conducted by foreign citizens using foreign-registered small UAS, DJI suggested that DOT evaluate whether existing agreements allow the use of small UAS and, to the extent they cannot be reasonably construed as including these aircraft, explore a diplomatic solution that would allow their use in U.S. airspace. Similarly, Textron Systems, Predesa, LLC, and the Aerospace Industries Association (AIA) suggested that FAA evaluate existing bilateral agreements and consider new bilateral agreements as the mechanism to permit foreign-registered UAS to operate in the United States. The Small UAV Coalition endorsed this approach as well and urged the Department to authorize the operation of specialty air services by foreign-owned small UAS in the United States. In the NPRM, the FAA proposed to exclude foreign-registered aircraft from part 107 because the proposed rule included a registration component and foreign-registered aircraft may not be registered by the FAA. The FAA has since promulgated a separate interim final rule, titled Registration and Marking Requirements for Small Unmanned Aircraft 50 (Registration Rule), to address the registration and marking of all small unmanned aircraft, including unmanned aircraft that will be subject to part 107. In the Registration Rule, the Department acknowledged that under 49 U.S.C. 41703, the Secretary may authorize certain foreign civil aircraft to be navigated in the United States only if: (1) The country of registry grants a similar privilege to aircraft of the United States; (2) the aircraft is piloted by an airman holding a certificate or license issued or made valid by the U.S. government or the country of registry; (3) the Secretary authorizes the navigation; and (4) the navigation is consistent with the terms the Secretary may prescribe. 51 50 80 FR 78594, Dec. 16, 2015. 51 See also 14 CFR part 375, Navigation of Foreign Civil Aircraft in the United States. A foreign civil aircraft is defined in 14 CFR 375.1 as (a) an aircraft of foreign registry that is not part of the armed forces of a foreign nation, or (b) a U.S.-registered aircraft owned, controlled or operated by persons who are not citizens or permanent residents of the United States. For those that fall within this definition and wish to operate under the provisions of part 107, they must first apply with the Office of the Secretary's Foreign Air Carrier Licensing Division for permission to operate in the United States. The Department only will authorize operations of foreign-registered UAS in the United States if it determines that such operations are recognized under international agreements or via findings of reciprocity, consistent with the statutory obligations under section 41703, and via the process as described below. The notion of reciprocity has a long-standing tradition in international relations and has been used in the realm of specialty air services for years. While there are many types of specialty air operations authorized under free trade agreements, it has been the long-standing policy of DOT to require a finding of reciprocity before allowing foreign-owned specialty air services to operate in the United States, even when the United States has no obligation under a trade agreement. The Department also will continue to review whether existing international agreements address the operation of UAS, and if not, what negotiations will need to occur to address these operations in the future. With respect to the supply of specialty air services in the United States by foreign-owned or controlled entities, DOT may allow these operations to occur provided that the UAS are registered and the owners have provided proof of reciprocity by their homeland of the ability for U.S. investment in UAS operations. Additional conditions may be imposed as necessary to satisfy the statutory requirements of section 41703. The FAA notes that, initially, all airmen operating under part 107 will be required to obtain a remote pilot certificate. Currently, ICAO has not adopted standards for the certification of pilots of unmanned aircraft that the FAA could rely on in determining whether it is obligated under international law to recognize a foreign-issued UAS-specific airman certificate. However, once an ICAO standard has been developed, this rule will allow the FAA to determine whether a foreign-issued UAS-specific airman certificate was issued under standards that meet or exceed the international standards, and therefore must be recognized by the FAA for purposes of operating a foreign-registered aircraft within the United States. The FAA also notes that remote pilots of foreign-registered aircraft will need to comply with any applicable requirements imposed by their country of registration that do not conflict with part 107. For example, while part 107 will not require airworthiness certification, the small unmanned aircraft will need to obtain airworthiness certification if required to do so by its country of registration. 3. Public Aircraft Operations The FAA is not making any changes to the final rule regarding public aircraft operations because this rule applies to civil aircraft operations only. In the NPRM, the FAA explained that this rulemaking would not apply to “public aircraft operations with small UAS that are not operated as civil aircraft. This is because public aircraft operations, such as those conducted by the Department of Defense, the National Aeronautics and Space Administration (NASA), Department of Homeland Security (DHS) and NOAA, are not required to comply with civil airworthiness or airman certification requirements to conduct operations. However, these operations are subject to the airspace and air-traffic rules of part 91, which include the `see and avoid' requirement of § 91.113(b).” 52 The proposed rule did point out, however, that it “would provide public aircraft operations with greater flexibility by giving them the option to declare an operation to be a civil operation and comply with the provisions of proposed part 107 instead of seeking a COA from the FAA.” 53 52 NPRM, 80 FR at 9554. 53 NPRM, 80 FR at 9554-9555. DJI generally supported the FAA's approach to small UAS public aircraft operations. The Nez Perce Tribe—which also supported the proposal to give public aircraft operations the option to declare an operation to be a civil operation and comply with the provisions to proposed part 107—asserted that the proper statutory interpretation of “public aircraft” includes federally recognized Indian tribes. Conversely, NAAA stated that public aircraft operations should continue to be conducted under the COA process. One individual said proposed § 107.11 should be amended to indicate that public agencies may choose to voluntarily operate under part 107. The City of Arlington, Texas requested the ability to follow the small UAS rules, not the COA process. Aerial Services, Inc. also said that public entities should be allowed to operate like commercial operators, but only for research and instructional purposes. Under this rule, a public aircraft operation can continue to operate under a COA or can voluntarily operate as a civil aircraft in compliance with part 107. As stated in the NPRM, this rule will not apply to public aircraft operations of small UAS that are not operated as civil aircraft. These operations must continue to comply with the FAA's existing requirement to obtain a COA providing the public aircraft operation with a waiver from certain part 91 requirements such as the “see and avoid” requirement of § 91.113(b). However, this rule will provide greater flexibility to public aircraft operations because it allows small UAS public aircraft operations to voluntarily opt into the part 107 framework. In other words, a remote pilot may elect to operate his or her small UAS as a civil rather than a public aircraft and comply with part 107 requirements instead of obtaining a COA. With regard to Nez Perce's assertion that aircraft operated by federally recognized Indian tribes are public aircraft, that issue is beyond the scope of this rule. The FAA also disagrees with NAAA's comment that public aircraft operations should all be required to obtain a COA. As discussed in III.J.1 of this preamble, the FAA has found that small UAS operations conducted within the parameters of part 107 will not create a hazard to users of the NAS or pose a threat to national security. Consequently, there will be no adverse safety or security impact by the FAA providing public entities with an option to conduct their small UAS operations under part 107. NASA stated that the proposed rule should be written to specifically authorize NASA small UAS use without a COA because “it is incorrect to infer that NASA's high aviation certification standards do not meet the rigors of civil standards.” NASA asserted that the proposed rule conflicts with statutory authority and does not align with the current FAA/NASA memorandum of agreement for the operation of small UAS. The Department of Defense Policy Board on Federal Aviation (DOD) also supported operations without a COA, “commensurate with civil provisions.” DOD suggested several changes to language in the preamble regarding the option for government entities to conduct a civil UAS operation under part 107. DOD argued that “public operator statutory authorities” need to be preserved and the regulation needs to “enable operations without a COA commensurate with civil provisions.” To that end, DOD stated that the FAA should clarify that public agencies currently operating under memoranda of agreement or understanding will be authorized to continue operating in that manner even where provisions of part 107 are more restrictive in nature. DOD also asked that the FAA explicitly exclude aircraft operating under a COA from the applicability of part 107. Finally, DOD recommended that the FAA further amend § 107.1 to clarify that part 107 does not apply to aircraft operated by or for the National Defense Forces of the United States, but could be used as an alternative means of compliance. These comments are largely beyond the scope of the proposed rulemaking. The proposed rule addressed only civil small UAS operations. As stated above, the NPRM would enable remote pilots of public aircraft to opt into the civil framework for small UAS operations, but does not address public aircraft operations beyond that. In response to NASA, the FAA points out that under this rule, NASA may operate small UAS without a COA as long as it complies with part 107. With regard to DOD's suggestions, there is no need to amend part 107 because § 107.1 expressly limits the applicability of part 107 to civil small UAS. After the effective date of this rule, the FAA does not anticipate issuing a public aircraft operations COA that is less flexible than the regulations promulgated in this rule, provided that all the circumstances are identical to that available to a civil operator. 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 uses an inflation-adjusted value of $155.0 million in lieu of $100 million. One commenter suggested that the FAA should designate a special status for public UAS operating in a civil capacity that exempts them from visual-line-of-sight and daylight-only operation limitations. However, this is unnecessary because public aircraft operations are not required to be conducted as civil aircraft subject to part 107. Thus, a public aircraft operation that does not wish to comply with part 107 can operate under the existing public-aircraft framework rather than under part 107. Agreeing that the proposed rules should not apply to small UAS operations by DOD, NASA, NOAA, DHS or FAA, one individual stated that the proposed rule should apply to “second and third tier public agencies not directly tied to constant aeronautical activities, testing and research.” Two other individuals stated that any commercial rules for small UAS should apply to both private and public sectors. This rule will allow any public agency, regardless of the “tier” of operations, to choose to operate a small UAS as a civil aircraft under part 107. The Association for Unmanned Vehicle Systems International (AUVSI) recommended that the FAA modify the current limitation in § 107.11 concerning “civil” aircraft to include “public aircraft” as well. This is necessary, AUVSI asserted, because some current operation rules for manned aircraft (such as those found in part 91) apply to both “public aircraft” and “civil aircraft.” The FAA disagrees. This rulemaking applies to civil aircraft only. Expanding its application to public aircraft is beyond the scope of the proposed rule. The Next Gen Air Transportation Program at North Carolina State University indicated that proposed § 107.3 needs a definition of “civil operation.” The commenter asked how a public agency declares a civil operation. The commenter also implied that part 107 does not make clear that there would be no adverse safety effects from allowing public aircraft operations under part 107. Twelve members of the Wisconsin Legislature signed a joint letter stating that “[t]he NPRM states public entities must get a Certificate of Waiver or Authorization because they are not `exempt' from restrictions in the proposed rules. However, the proposed rules allow public entities to `declare an operation to be a civil operation' and therefore operate commercially and be exempted from flight restrictions.” The members also stated that the FAA has not “promulgated, clarified or made public its rules, policies, and legal opinions on public versus commercial UAS.” The Wisconsin Society of Land Surveyors stated that “government agencies have been getting a head start on the market, at the expense of the private sector, by obtaining certificates to perform UAS services that are commercial in nature,” and “[a]s a result, government and universities are conducting operational missions, developing markets and cultivating clients.” This commenter concluded that there “should not be unfair competitive advantages granted to government or university UAS vis-à-vis the private sector.” These comments reflect some misunderstanding of public aircraft operations in general and the FAA's role in such operations. The authority to conduct a public aircraft operation is determined by statute (49 U.S.C. 40102(a)(41) and 40125). The FAA has no authority to prohibit a qualified government entity from conducting public aircraft operations, manned or unmanned. Consequently, many of the FAA's regulations, such as aircraft certification and pilot requirements, do not apply to public aircraft operations. Some of the general operating rules apply to all aircraft operations, public aircraft and civil, and that is where the need for COAs affects public aircraft operations of UAS. For example, all aircraft must comply with 14 CFR 91.113, and UAS require a conditional waiver of that regulation in order to operate in the NAS; the conditions are specified in the COA. Qualified governmental entities may choose to operate a public aircraft operation as long as they do so within the limits of the public aircraft statute. Under this rule, they may choose to operate their UAS as a civil aircraft instead, and opera [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-15079. Public record. Not legal advice.