Flying over non-participating people is currently prohibited by the FAA with regulations 107.39. There are waivers that have been given to allow applicant to fly over people in certain circumstances. If you search the directory of waivers that have been issued, you’ll notice that there have not been to many 107.39 waivers.
But before we dive into the waiver, let’s look at what the regulation actually prohibits because many people misunderstand this.
Section 107.39 Operationover human beings.
No person may operate a small unmanned aircraft over a human being unless that human being is:
(a) Directly participating in the operation of the small unmanned aircraft; or
(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.
What Are Direct Participants?
The FAA only considers 4 types of people to be participating directly and discusses this all below in great depth. (1) the remote pilot in command, (2) visual observer, (3) person manipulating the controls, and (4) a person necessary for the safety of the flight.
No, your camera man, actor, boss, customer, etc. cannot be considered to be participating unless they are one of those 4 things.
So Flying Over a Road is OK?
Nope. Notice it is stationary vehicles, not moving vehicles. Yes, the vehicle CAN protect the non-participants from the drone but……..the big problem is that the person might get scared and then crash the vehicle into other things (trees, other cars, other people, etc.).
Future Over People Regulations
At the beginning of 2019, the FAA announced a proposed rule making that would eventually allow people to fly over people without waivers. This is a huge thing as everything has to be done with 107 waivers currently. The thing is that this most likely won’t happen for 3-5 years by my estimates. This means waivers are still the only way to go in the meantime. I wrote a brief summation on the rule making for a Forbes articles if you want to read it. Remember to not get your hopes up. This is only a proposal.
DronSystems stated that the proposed ban on operations over non-involved persons would impact e-commerce and “a number of other sectors,” and would be difficult to enforce. The University of Washington said that banning operations over non-operators is over-burdensome. WAG said the proposed prohibition “could have a significant chilling effect on both the commercial application of sUAS technology as well as the future development of sUAS technology,” and is inconsistent with the “model aircraft” protections afforded by part 101 and section 336 of Public Law 112-95. Similarly, Foxtrot Consulting suggested that adequate training and a performance evaluation is a better mitigation measure because it ensures that remote pilots can operate their small UAS safely, regardless of what is below.
The Small UAV Coalition, Aeromarine, and an individual commenter stated that the proposed prohibition is unduly restrictive because there is no prohibition on manned aircraft flying over people. The Coalition also asserted that, given the consequent reduction in risk associated with the visual-line-of-sight and see-and-avoid requirements, a small UAS may safely be operated over persons.
The International Center for Law and Economics and TechFreedom claimed that by prohibiting UAS operation over people who are not directly involved in the operation, the FAA is “essentially limiting commercial UAS operations to unpopulated or extremely sparsely populated areas,” and thus is “improperly ignor[ing] the important incentives for innovation suggested by Executive Order 12866 without apparent corresponding benefit.” The Consumers Energy Company (CEC) stated that the likelihood of injury from contact with a small UAS is low given the restrictions on the size of small UAS, as well as the fact that they use small rotors and carry small fuel loads. With respect to the maintenance of power lines, poles, and related facilities, in particular, CEC pointed out that most operations occur in remote or rural locations with low population densities, where the risk of contact between a small UAS and a non-involved person is minimal. CEC said the FAA needs to consider “whether the risk perceived from small UAS usage really justifies a restriction that could have a substantial impact on the ability to use sUAS on a commercial scale.”
Manned aircraft are generally permitted to fly over people because manned aircraft are formally evaluated for airworthiness through the airworthiness certification process. This process ensures that the manned aircraft has a level of reliability that would allow it to, among other things, safely fly over a person.
This rule does not require airworthiness certification. Because small unmanned aircraft have not been tested for reliability through the airworthiness certification process, they will likely have a higher failure rate than certificated aircraft. A small unmanned aircraft that fails may fall on a person standing under it at the time of failure, which is why this rule restricts small unmanned aircraft flight over people.
With regard to the risk caused by small UAS operations, the FAA agrees that, to date, the number of actual fatalities caused by small UAS operation has been low. However, that may be a function of the fact that, until recently, commercial civil small UAS operations have been prohibited in the United States. As discussed in the Regulatory Impact Assessment, the FAA expects the use of small UAS to increase after issuance of this rule, and thus, the agency has to ensure that part 107 implements appropriate mitigation to address potential risk caused by small unmanned aircraft flight over people.
The FAA agrees with WAG and Foxtrot Consulting that the knowledge that remote pilots in command will acquire during the certification process will help mitigate against small UAS accidents caused by human error. However, the safety concern underlying the flight-over-people restriction is not human error, it is mechanical failure. While a remote pilot in command may be able to detect some signs of potential mechanical failure during the preflight check, the preflight check does not, by itself, assure a level of mechanical reliability established by the formal airworthiness and maintenance processes that apply to other aircraft in the NAS. The appropriate mitigation to address this discrepancy, especially for heavier small unmanned aircraft, is an operational restriction on flying over people who could be hurt in the event of a mechanical failure.
The FAA disagrees with WAG’s assertion that model aircraft are subject to a lower flight-over-people standard than part 107 operations. In order to operate under section 336 of Public Law 112-95, a model aircraft must, among other things, be “operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization.”98 Today, the largest nationwide community-based organization that operates model aircraft is the Academy of Model Aeronautics (AMA). AMA’s safety code specifically prohibits “flying directly over unprotected people, vessels, vehicles or structures.”
Several commenters, including the American Council of Engineering Companies, AUVSI, and Consumer Electronics Association, urged the FAA to implement a risk-based approach to allow operations over people.
AUVSI asserted that “by allowing sUAS operations over human beings following a risk-based approach, the FAA would foster industry innovation to develop the proper equipment and software necessary to meet safety standards regarding such operations.” CEA provided an example of such a risk-based restriction used by another country that it said “would permit operations in less populated environments and continue to allow industry to gain experience and innovate.” Specifically, CEA noted that the Swiss have successfully used a permitting system for UAS operations over “gatherings of people,” defined as “several dozen people standing in close proximity to one another” or within a radius of 100 meters of such gatherings. Drawing on that example, CEA recommended the FAA “tailor the rules to prohibit operations over mass gatherings, such as concerts and sporting events.” Although CEA commended the FAA for rejecting as “unduly burdensome” a prohibition against the operation of small UAS over any person, it nevertheless asserted its belief “that the proposal is just as burdensome and that small UAS incorporate sufficient safety measures that make the prohibition unnecessary under the new rules. Boeing similarly recommended that the FAA reconsider proposed § 107.39 and “develop criteria using a risk-based approach to this issue, based upon population density and overflight, to take into account agriculture as well as law enforcement uses.” The Professional Helicopter Pilots Association suggested allowing small UAS to be operated over persons or property if they do so in a safe manner.
DJI pointed out that “the proposed performance standards already impose an obligation on the operator to familiarize himself with the operating environment and take steps to assure the operation does not present an ‘undue hazard’.” Depending on the nature of the operation, DJI continued, “the risk associated with an inadvertent loss of positive control may require that there be no third parties exposed to any risk,” or “the risk may be so minimal as to merit notification but not evacuation or taking cover,” or “the required safety measure may fall within this range of options.” As such, DJI suggested that “the best way to address the risk to individuals not directly involved in the operation is through the proposed performance standard.”
Trimble Navigation proposed the FAA rely on a performance-based regime for operations over persons. Noting that the onus and obligation should be primarily on the small UAS operator to assess the overall safety environment before operating over persons, the company said the FAA “should avoid trying to specify precise design-based criteria in favor of a general standard of care that requires the operator to take into account the full range of operational safety protections and procedures at the site in question.”
A commenter suggested the final regulations should discern between UAS weighing 5 pounds or less (which could be operated over “populated” areas at a maximum speed of 40 mph), UAS weighing between 5 and 25 pounds (which could be operated over “sparsely populated” areas at a maximum speed of 70 mph), and UAS weighing between 25 and 55 pounds (which could be operated according to the limitations imposed in the NPRM). The commenter further suggested that COAs be available for UAS between 25 and 55 pounds to be operated in populated and sparsely populated areas.
The FAA agrees that for certain types of small unmanned aircraft, a more performance-based set of operational mitigations may be appropriate because the lighter weight or other characteristics of those aircraft may result in less impact force if they should collide with a person. That is why, as discussed in the previous section, the FAA will be issuing an NPRM inviting public comment on a framework under which micro UAS will be allowed to operate over people. However, other small unmanned aircraft that do not meet the characteristics of a micro UAS may result in more impact force if they should collide with a person and that greater force may seriously injure or kill the person. The risk associated with flight over people is due to mechanical reliability issues that a remote pilot in command may have a limited opportunity to evaluate without airworthiness certification or a more extensive maintenance process. At this time, the FAA has no data establishing how that risk could be mitigated through operational constraints (whether performance-based or otherwise), other than a prohibition on flight over people. Accordingly, this rule will retain the general prohibition on flight over people. However, as discussed below, this prohibition will be waivable to allow the FAA to consider case specific mitigations. The FAA will use data and operating experience gained as a result of the waiver process to help inform future UAS rulemakings.
A number of commenters said the proposed restriction should be narrowed to apply only to certain crowded or heavily populated areas. The American Petroleum Institute urged the FAA not to apply the prohibition in cases of “intentional acts to disrupt lawful UAS operations” (e.g., anti-oil and gas activists placing themselves in generally accessible areas of operation to frustrate or halt routine activities). Event 38 Unmanned Systems proposed that “certain events and other areas with high people concentration locations be designated as no-fly zones,” instead of a total ban on operations over non-participants. The company suggested that local and State entities could be involved in this part of the rulemaking.
Matternet similarly recommended that the only overhead operations that should be restricted are operations “over an open air assembly of persons if such operation endangers the life or property of another.” The company compared the proposed regulation to regulations for ultralight vehicles (ULV)—which weigh up to 250 pounds, plus the weight of the person, and are permitted to be operated over persons—and suggested that a device weighing less than one-sixth the weight of a ULV with a passenger, and operated at an altitude of only 500 feet or less (compared to thousands of feet for the ULV), poses far less risk to persons on the ground. Several individuals also recommended that the final rule prohibit any operation in congested areas or over open-air assemblies of people. As an initial matter, the FAA notes that there is a significant difference between the terms “congested area” and “open-air assembly of people.” While the term “open-air assembly of people” applies only to a large group of people, the term “congested area” could apply to an area that has no people in it. For example, a town’s commercial/business district can be considered a congested area, even in the middle of the night when there are no people in the area.
As pointed out by the commenters, a number of existing operations that take place in the NAS, such as the operation of ULV, are prohibited from taking place over congested areas.101 The FAA considered imposing a similar restriction on small UAS operations conducted under this rule. However, the FAA ultimately rejected this approach as needlessly restrictive because it would prohibit small UAS operations over certain parts of a town even when there are no people in the area of operation who could be hurt by a small unmanned aircraft.
With regard to operations that are not conducted over an open-air assembly of people, the FAA agrees that this may be a consideration for some small unmanned aircraft that pose a lower injury risk if they collide with a person, consistent with the micro UAS ARC’s recommendations.. Accordingly, the FAA may consider this approach as part of the micro UAS rulemaking. However, other small unmanned aircraft pose a higher injury risk and in the event of a mechanical failure, those aircraft could seriously injure or kill a person in their path, even if that person is not part of a larger group. Accordingly, this rule will not allow flight over people even when they are not part of an open-air assembly. We will continue to evaluate this issue and address it in rulemaking in response to the Micro UAS ARC recommendations, as noted earlier.
The FAA declines to add an exception for intentional acts to disrupt lawful small UAS operations. A person who is standing under an uncertificated small unmanned aircraft is subject to the same amount of risk regardless of his or her subjective motivation for standing under the aircraft. The FAA notes, however, that State and local laws, such as trespassing, may provide a remedy for companies whose small UAS operations are deliberately interfered with by people entering the area of operation without permission. Finally, with regard to State and local entity involvement in this rulemaking, the FAA notes that the comment period for the NPRM was open to everyone, including State and local entities. The FAA received a number of comments from State and local entities, and it considered those comments when formulating this final rule.
Several commenters, including the Small UAV Coalition, Google, and Statoil, suggested that the prohibition on flight over people should be subject to waiver or some other type of deviation authority. The Small UAV Coalition urged the FAA to revise proposed § 107.39 to allow the Administrator or his delegate to authorize small UAS operations over non-participating persons through exemption, deviation authority (certificate of waiver or authorization), or certification, “upon a showing that any risk to persons on the ground is sufficiently mitigated.”
Google pointed out that an outright ban on operations over people not directly participating in the operation of the UAS or not located under a covered structure would limit beneficial uses for small UAS which involve operations above nonparticipants. Google proposed that operators be able to “present a safety case” to the FAA for operations over non-participants.
The National Ski Area Association (NSAA) said the final rule should recognize and accommodate technological innovations, which could be required for use of UAS at ski areas when operating near open-air assemblies of persons. Such technologies include geofencing, return-to-home capabilities, pre-programmed waypoint software, landimmediately function, GPS, signal processing, and increasingly reliable navigation systems.
CEA suggested that the FAA allow small UAS to be eligible to obtain airworthiness certifications, and that UAS with such certifications not be subject to the prohibition on operations over people. CEA asserted that such an approach “will create a vibrant market for UAS and encourage manufacturers to seek airworthiness certification.”
Airware pointed out that standards have been developed by ASTM subgroup F38 to ensure higher levels of safety for operations that pose a higher risk like flight over populated areas. In addition to those existing standards, Airware asserted that the combination of the use of fly-away protections like geo-fencing and contingency management, applying design and testing to industry standards, the use of reliable flight control systems, and the use of parachutes to mitigate against the risk of all out failure “provides an equivalent level of safety for flight in populated areas.” Airware further asserted that this goes well beyond the requirements imposed in the countries that currently allow for operations over populated areas like France, the Czech Republic, Austria, Denmark, Italy, and Sweden (among others), which “are currently being conducted with extremely high levels of safety.”
ASTM pointed out that there are multiple approved industry consensus standards under development to support operations over people, in case the FAA decides to require compliance with industry consensus standards for this requirement in the final rule. ASTM also noted that precedent exists for the utilization of industry consensus standards by Federal agencies in the United States. The commenter went on to point out that the National Technology Transfer and Advancement Act (NTTAA) mandates that all Federal agencies use technical standards developed and adopted by voluntary consensus standards bodies, as opposed to using government-unique standards. In addition, ASTM asserted that, consistent with Section 12(d) of the NTTAA, OMB Circular A-119 directs agencies to use voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. ASTM further noted that OMB Circular A119 also provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements of the Act. The FAA agrees that technology or additional mitigation, such as airworthiness certification, may allow small unmanned aircraft to safely fly over people in certain circumstances. Accordingly, the flight-over-people restriction in this rule will be waivable. In order to obtain a waiver, an applicant will have to demonstrate that he or she has implemented mitigations such that small unmanned aircraft flight over people can safely be conducted under the terms of a certificate of waiver.
The FAA also agrees with CEA that while this rule does not require airworthiness certification, this rule also does not prohibit a small UAS from voluntarily obtaining this certification. The FAA generally agrees that having a small UAS meet an appropriate airworthiness standard could increase safety to the point of permitting a small unmanned aircraft to operate over persons who are not directly involved in the flight operation (i.e., non-participants) and who are not under a covered structure. The FAA may consider airworthiness certification of the small UAS as mitigation to support an application for waiver that would allow a small unmanned aircraft to operate over unprotected nonparticipants.
With regard to the use of industry consensus-standards, as noted by ASTM, consensus standards for operations such as flight over people are currently in development. As of this writing, those standards have not yet been published. The FAA notes, however, that the level of safety that must be demonstrated in order to obtain a waiver may be demonstrated in a number of different ways. Once consensus standards are published, the FAA may consider whether compliance with the published consensus standards would be one way to demonstrate that the proposed operation can be conducted safely under the terms of a certificate of waiver. The FAA will also consider UAS-specific consensus standards, once they are published, in future UAS rulemakings.
Several commenters said the proposed prohibition should not apply when additional risk mitigating measures are employed. Southern Company said the FAA should allow operations over any person who is located on the property, easement, or right of way of the person or entity for whom the small UAS is operated, and any person who is participating in the activity for which the small UAS is being operated. The commenter said such mitigating restrictions could include a lower operating ceiling, lateral-distance limits, a lower speed restriction, and a prohibition on operations over large gatherings of people.
Qualcomm similarly proposed that FAA permit operations over uninvolved persons where risks are mitigated by the use of “proven means of avoiding harm to individuals via technologies that allow the device to land safely under even extreme circumstances.” The Rocky Mountain Farmers Union urged the FAA to allow operations over non-participants “under circumstances when the UAS operator can maintain safe operation of the UAS and either depart the area or safely land the UAS without risk to unrelated persons on the ground.” The Newspaper Association of America asserted that the FAA should not prohibit news organizations from overhead flight, “provided that adequate precautionary measures are taken to ensure that [UAS] are operated safely at all times.”
The Mercatus Center at George Mason University said that the FAA did not consider the benefits of allowing UAS operations over persons not involved in the operation, and that the FAA overstates the risks of operation in populated areas. The University asserted that, “[u]pon loss of positive control, unmanned aircraft can be programmed to safely return to a base, or to simply hover in place.” Thus, the University continued, the risk to bystanders can be mitigated without a ban on operation over uninvolved persons.
NAMIC recommended that the FAA allow small UAS operations over people not directly involved in the operation, as long as those operations follow enhanced safety protocols, including, for example: (1) that the small unmanned aircraft not loiter over a person or persons for an extended period of time, but transition over them as needed to reach a location where operating is permitted to complete the flight; and (2) that an operator must operate the UAS at a sufficient altitude so that if a power unit fails, an emergency landing can be accomplished without undue hazard to persons or property on the ground. Exelon Corporation said that the final rule should include reasonable accommodations to allow for brief, low-risk exceptions to the ban on flights over nonparticipating persons (e.g., flying across a road during a survey of damage to power distribution lines in suburban areas), and that “proper safety precautions as well as signage, education, and protocol can be put in place to mitigate any safety concerns.”
The Property Drone Consortium said that any UAS with “special safety features” should be exempt from the ban on flight over non-participants. Furthermore, the Consortium suggested the FAA mitigate any safety concerns by requiring appropriate insurance coverage or creating a suggested list of “best practices” for use in the insurance industry. Similarly, the University of Illinois at Urbana-Champaign said the proposed prohibition “is onerous and overprotective,” and suggested instead that insurance and equipment requirements could be employed “to promote responsible use of the UAS.”
As discussed earlier, the restriction on flight over people in this rule will be waivable. This will allow the FAA to consider, on a case-by-case basis, any additional mitigations that are incorporated into a small UAS operation. The FAA will grant a waiver request allowing small unmanned aircraft flight over people if the applicant establishes that his or her operation can safely be conducted under the terms of a certificate of waiver. In response to comments suggesting an insurance requirement in place of the flight-overpeople restriction, the FAA notes that, as discussed in section III.K.1 of this preamble, the FAA lacks jurisdiction to mandate the purchase of liability insurance.
An individual commenter suggested that operations in congested areas be permitted with additional licensure, which the commenter said “will assist the operator in recognizing potential hazards and risks as well as the ability to assess those risks to ensure that these hazards to the public be minimized.” Another individual commenter recommended an additional rating for operators to allow them to fly “in cities and other crowded areas.” The commenter said the operators could be required to go through a more comprehensive certification process, and the UAS could be required to have annual or semiannual maintenance checks and be equipped with an automatically deployable parachute system.
As discussed earlier, the FAA considered and rejected additional limitations on operations over congested areas because that approach would needlessly limit small UAS operation over congested areas during times when those areas are devoid of people. The FAA also does not agree that additional remote pilot certification should be required to operate over an empty area of operation, even if that area of operation happens to be located in a congested area.
The Stadium Managers Association suggested modifying proposed § 107.39 to mirror the current section 333 exemption language which, in addition to prohibiting flights over people, includes a prohibition against flight over vehicles, vessels, and structures. Vision Services Group similarly recommended prohibiting flight over people in a covered structure.
On the other hand, Edison Electric Institute, NRECA, the American Public Power Association, and Continental Mapping suggested that the exception allowing flight over people located under a covered structure that can provide reasonable protection from a falling small unmanned aircraft should be clarified to indicate that persons under cover in a vehicle “may qualify as being in a structure providing reasonable protection.”
This rule will allow flight over people located under a covered structure capable of protecting a person from a falling small unmanned aircraft because such a structure mitigates the risk associated with a small unmanned aircraft flying over people. The FAA also agrees with Edison Electric Institute, NRECA, the American Public Power Association, and Continental Mapping that a small unmanned aircraft should be allowed to fly over a person who is inside a stationary covered vehicle that can provide reasonable protection from a falling small unmanned aircraft. The FAA has modified this rule accordingly. This rule will not, however, allow operation of a small unmanned aircraft over a moving vehicle because the moving vehicle operating environment is dynamic (not directly controlled by the remote pilot in command) and the potential impact forces when an unmanned aircraft impacts a moving road vehicle pose unacceptable risks due to headon closure speeds. Additionally, impact with a small unmanned aircraft may distract the driver of a moving vehicle and result in an accident.
Several commenters sought clarification on the NPRM’s use of the phrases “directly participating in the operation” (as used in proposed § 107.39(a)) and “directly involved in the operation” (as used in the preamble). Associated Equipment Distributors noted that the preamble to the NPRM indicates that direct participation is limited to the operator and the visual observer, but the proposed regulatory language “does not afford clarity on this point.” SkySpecs proposed allowing anyone who has permission to be on a construction site and is covered by liability insurance to be covered by the definition. Edison Electric Institute, NRECA, and the American Public Power Association said the definition of “directly participating” “should be expanded to include personnel engaged in related activities, such as workers at a power plant a small UAS is being used to monitor or an electric utility crew whose work the small UAS is being used to assist.” The organizations further proposed that such individuals would qualify as “directly participating in an operation” if they had received the pre-flight briefing described in proposed § 107.49.
Some commenters, including NBAA, the American Insurance Association, FLIR Systems, the North Carolina Association of Broadcasters, and Skycatch, felt that FAA should permit small UAS operations over individuals not involved in the UAS operations when those individuals consent to, or are made aware of, the operations. Several State farm bureaus and NBAA urged the FAA to allow small UAS operations over people not directly involved in an operation so long as the operator notifies those people of the operation before it starts. The American Farm Bureau Federation and a number of state farm bureau federations said the definition should be expanded to include individuals “who have been made aware of the presence and approximate flight path of the sUAS in their vicinity.” The farm bureau federations claimed that the risk of a small UAS endangering a consenting individual working in a field who is not directly involved in, but is aware of, a small UAS operation “is simply too remote to justify a blanket prohibition.”102 AED proposed including consenting individuals, such as employees and contractors at a construction site, Other commenters who urged FAA to reconsider the proposed prohibition as it applies to agricultural operations include the National Farmers Union, National Corn Growers Association, National Association of heat Growers, and the Virginia Agribusiness Council.
The International Association of Amusement Parks and Attractions also suggested that the definition of “directly participating in the operation” include persons who have consented to the operation of theU AS overhead.
Associated Builders and Contractors also proposed lifting the restriction on flightover non-participants on a construction site, so long as those people have been notified of the small UAS operations, wear hard hats, and have been provided orientation regarding the equipment prior to entering the work site.
Kapture Digital Media questioned whether people can become “directly involved” in an operation if they are notified of the operation by signs posted around the area of operation, or, alternatively, whether people can only become “directly involved” in an operation by signing a waiver. Vail Resorts noted that many of the best uses of UAS technology at ski areas would necessarily involve some temporary amount of flight over individuals who are not “necessary for the safe operation” of the small UAS, which is how the NPRM defined “directly involved in the operation.” Consequently, Vail asserted that a strict ban on operations over people not “directly involved” in the operation “could have the unintended consequence of making many potentially critical ski resort drone operations noncompliant with FAA regulations.” As such, Vail said FAA should broaden the definition of “directly involved” to include “those people who are aware of and have consented to being involved in the drone operation by, for example, reading particular signage or signing a release.” Similarly NoFlyZone.org said operations over nonparticipants should be permitted provided the operator has advised all non-participants to remain clear of the small UAS launch/recovery area, and also advised all non-participants that the small UAS does not comply with Federal safety regulations for standard aircraft.
The National Ski Area Association (NSAA) pointed out that for UAS operations that may involve operations near skiers and snowboarders, or participants and spectators in special events, ski areas could inform participants of the event and associated risks and could obtain consent prior to using a UAS. NSAA suggested further that ski areas “could be obligated to determine, based on the event or assemblage of persons, acceptable proximity parameters, either laterally or vertically.”
The term “directly participating” refers to specific personnel that the remote pilot in command has deemed to be involved with the flight operation of the small unmanned aircraft. These include the remote pilot in command, the person manipulating the controls of the small UAS (if other than the remote pilot in command), and the visual observer. These personnel also include any person who is necessary for the safety of the small UAS flight operation. For example, if a small UAS operation employs a person whose duties are to maintain a perimeter to ensure that other people do not enter the area of operation, that person would be considered a direct participant in the flight operation of the small UAS. Anyone else would not be considered a direct participant in the small UAS operation. Due to the potential for the small unmanned aircraft to harm persons on the ground, the FAA does not consider consent or the need to do other work in the area of operation to be a sufficient mitigation of risk to allow operations over people. The FAA considers the risks associated with allowing operations over directly participating persons to be a necessary risk associated with the safety of flight because if UAS crewmembers are prohibited from standing near a flying unmanned aircraft, they may be unable to complete their duties. Additionally, some small UAS operations require the aircraft to be hand launched or retrieved by a person, so it would not be possible to conduct such operations without permitting operations over those people.
Further, the FAA notes that people directly participating in the flight operation of a small unmanned aircraft have situational awareness that provides them with increased ability to avoid a falling unmanned aircraft. Conversely, a non-participant who has consented to allowing operations overhead may not share the same situational awareness and consequently may not be able to avoid being struck by a small unmanned aircraft. For this reason, a remote pilot intending to operate small unmanned aircraft over nonparticipants must apply for a waiver under this part, which will allow the FAA to evaluate each applicant’s operation on a case-by-case basis.
The American Fuel & Petrochemical Manufacturers and Employees, Associated General Contractors of America, Skycatch, Clayco, AECOM, DPR Construction, and the State of Utah Governor’s Office of Economic Development said operations over uninvolved persons should be permitted at areas closed to the public (e.g., construction sites, movie sets), as long as the uninvolved persons are aware of and consent to the activity. The National Association of Broadcasters, National Cable & Telecommunications Association, and Radio Television Digital News Association, commenting jointly, pointed out that the FAA has already granted a number of section 333 exemptions for aerial photography and filming which have allowed small UAS flights over consenting production personnel, and thus urged the FAA to define “directly participating in the operation” to include persons who have “implicitly consented to the operation of the sUAS overhead by nature of their presence on a set where sUAS filming is occurring.” The Motion Picture Association of America similarly asked the FAA to specify that “all parties on a closed set” qualify as “directly participating in the operation,” thereby ensuring that current practices under the filming exemptions are consistent with § 107.39.
As pointed out by the commenters, the FAA currently allows small unmanned aircraft flight over people in only one type of situation: a closed-set movie set which is a controlled-access environment where the person in charge has extensive control over the positioning of people who are standing near the small unmanned aircraft. The FAA currently considers each movie-set exemption on a case-by-case basis through the section 333 exemption process. The FAA will continue considering flight over people on a movieset on a case-by-case basis through the waiver process in this rule. The FAA notes that this framework is consistent with the regulatory framework used for motion picture and television filming in manned-aircraft operations, where a waiver is usually required prior to using an aircraft for filming purposes.103 The FAA also notes that, as discussed in section II.C of this preamble, current section 333 exemption holders who are allowed to fly over people when filming a movie will be permitted to continue operating under their section 333 exemption until they are able to obtain a waiver under part 107. With regard to flight over people in other controlled-access environments, such as construction sites, the FAA will consider that issue on a case-by-case basis through the waiver process. This process will allow the FAA to consider the specific nature of the 103 See FAA Order 8900.1, vol. 3, ch. 8, sec. 1. controlled-access environment to determine how that environment would mitigate the risk associated with flight over people.
The Association of American Railroads said operations over railroad personnel during a railroad incident investigation or routine railroad inspections should be permitted. The Association noted that the risks associated with such operations can be mitigated by giving those personnel a small UAS operations and safety briefing before flight is commenced.
The FAA disagrees. While this rule will allow flight over direct participants in a small UAS operation after they receive important safety information, the information does not, by itself, completely mitigate the risk posed by flight over people. As discussed earlier, the reason this rule allows flight over direct participants in a small UAS flight operation is because without this exception, those people may be unable to complete their duties to ensure the safety of the small UAS flight operation. People who are not directly participating in the small UAS flight operation are not needed to ensure the safety of that operation, and as such, this rule will not allow flight over those people without a waiver.
The Property Drone Consortium said homeowners inside their homes while an inspection operation is conducted overhead, or homeowners who are in their back yards while an inspection operation is conducted in their front yards, should be considered “protected” for purposes of the ban on flight over non-participants.
A homeowner who is inside his or her home would be under a covered structure and flight over him or her would be permitted if the home can provide reasonable protection from a falling small unmanned aircraft. However, a person who is inside his or her backyard would presumably not be under a covered structure and could be injured by a falling small unmanned aircraft. Accordingly, a person who is in his or her backyard would not be considered protected if that backyard is not covered.
The Institute of Makers of Explosives asked the FAA to expand or clarify the proposed prohibition on operation of a small UAS over “most persons” to clearly define the persons over whom UAS operations may not be conducted. IME specifically recommended that a UAS not be allowed to operate over any person conducting operations with explosives under the jurisdiction of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and that the restriction apply to unauthorized, unrelated operators.
As discussed earlier, this rule will prohibit operations over people who are not directly participating in the flight operation of a small UAS and who are not under a covered structure or in a stationary covered vehicle that could reasonably protect them from a falling small unmanned aircraft. This prohibition applies regardless of what the person who is not directly participating in the small UAS flight operation is doing. A number of commenters sought clarification as to what the FAA considers to be an operation “over a human being.” Southern Company asserted that, as written, the proposed provision could either be read strictly, to prohibit operations directly overhead, or it could be read more broadly, to prohibit operations directly overhead and within a short lateral distance of the person. Kansas University UAS Program similarly said the FAA needs to clarify whether by “over a human being” means directly overhead or “within an area that the aircraft could come down on the person.”
Similarly, NAMIC asked the FAA to provide further guidance as to whether the small UAS operation is prohibited directly above persons or “within a proximate area over persons.” NAMIC acknowledged that it does not have the FAA’s understanding of aeronautics or physics, but nevertheless stated its belief that a terminated UAS at 500 feet and 100 mph seems unlikely to fall directly onto a person standing directly under the UAS at the time of the termination. An individual commenter asserted that a small UAS flying towards a person, even if not directly above that person, could still pose a threat. By way of example, the commenter stated that a multi-rotor helicopter flying at a ground speed of 30 mph at 400 feet AGL that experiences a catastrophic failure “will transcribe a parabolic arc that will extend horizontally several hundred feet in the direction of travel.”
Matternet also stated that the proposed restriction “appears to be based on the faulty premise that aircraft only fall straight down when they malfunction or when pilots err” when, in fact, an aircraft in flight will typically follow its original trajectory, subject to aerodynamic forces and gravity. Thus, the company asserted, an operation that passes directly over a person is not significantly more dangerous than an operation that passes several linear feet, or even tens of linear feet, away from that person on the ground.
The term “over” refers to the flight of the small unmanned aircraft directly over any part of a person. For example, a small UAS that hovers directly over a person’s head, shoulders, or extended arms or legs would be an operation over people. Similarly, if a person is lying down, for example at a beach, an operation over that person’s torso or toes would also constitute an operation over people. An operation during which a small UAS flies over any part of any person, regardless of the dwell time, if any, over the person, would be an operation over people.
The remote pilot needs to take into account the small unmanned aircraft’s course, speed, and trajectory, including the possibility of a catastrophic failure, to determine if the small unmanned aircraft would go over or strike a person not directly involved in the flight operation (non-participant). In addition, the remote pilot must take steps using a safety risk based approach to ensure that: (1) the small unmanned aircraft does not operate over nonparticipants who are not under a covered structure or in a stationary covered vehicle; (2) the small unmanned aircraft will pose no undue hazard to other aircraft, people, or property in the event of a loss of control of the aircraft for any reason (§ 107.19); and (3) the small UAS is not operated in a careless or reckless manner so as to endanger the life or property of another (§ 107.23). If the remote pilot cannot comply with these requirements, then the flight must not take place or the flight must be immediately and safely terminated.
Several commenters recommended that the FAA include specific vertical and horizontal minimum-distance requirements. Continental Mapping and MAPPS recommended that no operations be permitted “within 50 meters vertically or horizontally from people, animals, buildings, structures, or vehicles, with a particular emphasis on takeoff and landing.” MAPPS pointed out that its testing has shown this is a safe distance to perform emergency landings should something go wrong, particularly with rotary wing platforms. NAMIC recommended that FAA prohibit persons from “intentionally operat[ing] a small UAS over or within 100 feet” from a human being who is not directly participating in its operation or not located under a covered structure.
State Farm suggested that FAA remove the word “over” from proposed § 107.39, and instead prohibit persons from “intentionally operat[ing] a small UAS within 100 feet” from a human being who is not directly participating in the operation or not located under a covered structure. Aviation Management similarly suggested that the FAA provide protection to humans on the ground “in close proximity to” small UAS operations by requiring that a small UAS remain a minimum of 100 feet from the nearest human who is not directly participating in the operation (a requirement the commenter pointed out is imposed by Canada and Australia). Stating that an aircraft “needs a fall radius that contemplates kinetic energy, max speed, max altitude,” an individual commenter suggested that small UAS flight be restricted to a vertical cylinder with a radius of 200 feet, centered over an animal or persons not directly involved in the operation.
Several other commenters made suggestions as to how the FAA can more precisely define the requisite separation between a small UAS and persons not involved in an operation. The Civil Aviation Authority of the Czech Republic said the proposed prohibition “should be extended to a safety horizontal barrier, not only directly above people, but also not in an unsafe proximity (for multicopters this should be twice the actual height AGL).” NOAA and Southern Company said proposed § 107.39 should be revised to include specific lateral distances. Colorado Ski Country USA said the final rule should include a definition of “Operations Over a Human Being” that sets out “the proximity in which UAS operations would be prohibited.” The New Hampshire Department of Transportation suggested that the final rule include a “specified three-dimensional space that a small UAS is prohibited from when operating over any person not directly involved with the operation.” The Hillsborough County Aviation Authority suggested that the lateral separation from people or structures be revisited to consider a safety area around the UAS “with regards to momentum, wind drift, malfunction, etc. that would affect people or structures nearby.”
The National Association of Flight Instructors (NAFI) advocated for a larger separation between small UAS and non-participants, and recommended that proposed § 107.39 be revised to prohibit operation of a small UAS “closer than 400 feet” to persons not directly participating in the operation or not located under a covered structure or to “any vessel, vehicle, or structure not controlled by the operator or for which written permission by the owner or licensee of that vessel, vehicle or structure has not been obtained.” NAFI went on to assert that there is no reliable or sufficient database from which to project accident or injury rates, and to urge FAA to “proceed cautiously and relatively slowly in significantly reducing the protection currently afforded to persons and property on the surface from the hazards of small unmanned aircraft systems. Green Vegans asserted that under Public Law 112-95, Congress directed the FAA to implement restrictions for small UAS operations which “include maintaining a distance of 500 feet from persons.”
The FAA considered requiring minimum stand-off distances in this rule, but ultimately determined that, due to the wide range of possible small unmanned aircraft and small UAS operations, a prescriptive numerical stand-off distance requirement would be more burdensome than necessary for some operations while not being stringent enough for other operations. For example, a 5-pound unmanned rotorcraft flying at a speed of 15 mph in a remote area with natural barriers to stop a fly-away scenario would likely not need a stand-off distance as large as a 54-pound fixed-wing aircraft traveling at a speed of 100 mph in an urban area with no barriers.
Thus, instead of imposing a prescriptive stand-off distance requirement, this rule will include a performance standard requiring that: (1) the small unmanned aircraft does not operate over a person who is not directly involved in the flight operation unless that person is under the appropriate covered structure or vehicle; and (2) the remote pilot ensure that the small unmanned aircraft will pose no undue hazard to other aircraft, people, or property in the event of a loss of control of the aircraft for any reason (§ 107.19(c)). This performance-based approach is preferable, as it will allow a remote pilot in command to determine what specific stand-off distance (if any) is appropriate to the specific small unmanned aircraft and small UAS operation that he or she is conducting. In response to Green Vegans, the FAA notes that Public Law 112-95 does not direct the FAA to promulgate a small UAS rule that includes a requirement for a small unmanned aircraft to maintain a distance of 500 feet from persons.
Some commenters proposed specific vertical distances that they claimed could permit safe operations of a small UAS over persons not directly involved in its operation. Asserting that flights “well above” a person’s head pose minimal additional safety risks, the News Media Coalition recommended that the FAA permit overhead flight so long as the UAS remains at least 50 feet vertically from any person not involved in the operation of the UAS. Cherokee National Technologies and an individual commenter recommended that operations be permitted above people not directly involved in an operation, so long as those operations are not conducted less than 100 feet above those people.
These commenters did not provide data that the FAA could use to evaluate this assertion. The FAA notes, however, that a small unmanned aircraft falling from a higher altitude may actually pose a higher risk because the higher altitude would provide the small unmanned aircraft with more time to accelerate during its fall (until it reaches terminal velocity). This may result in the small unmanned aircraft impacting a person on the ground at a higher speed and with more force than if the small unmanned aircraft had fallen from a lower altitude.
The National Association of Broadcasters, the National Cable & Telecommunications Association, and the Radio Television Digital News Association, commenting jointly, said the proposed rule would limit the potential of unmanned aircraft to serve the public interest, particularly with respect to newsgathering. The associations recommended a few changes to “increase the utility of sUAS for newsgathering and video programming production purposes.” First, the associations said the FAA “should clarify that only flights directly over non-participating people are barred”—i.e., the “FAA should specify that the rule would still permit sUAS with a camera that is capable of filming—at an angle—an area where people are present.” Second, because “the proposed rule raises the question of what level of knowledge a reasonable operator can be expected to have,” the associations said the FAA “should clarify that the operator must have a good faith belief that sUAS will not be flying over people.” Third, the associations said “the FAA should consider relaxing or removing this requirement for sparsely populated areas,” which “would give newsgatherers and video programming producers the freedom to cover events and film entertainment programming with sUAS in areas where the risk to human beings on the surface is extremely low.”
NSAA and several individual commenters recommended that the final rule make clear that the prohibition does not extend to incidental or momentary operation of a UAS over persons on the ground. The Organization of Fish and Wildlife Information Managers requested that exemptions for “unintentional flyovers” be included in the final rule. The Organization noted that, while conducting fish and wildlife surveys in remote areas, UAS may inadvertently be flown over hunters, anglers, hikers, campers, and other individuals participating in recreational activities. The Organization went on to say that “[i]n areas where a UAS may be flown over a person, either intentionally or unintentionally, public notice of the planned survey activity could be issued in advance of the survey.”
In response, the FAA clarifies that this rule allows filming of non-participants at an angle as long as the small unmanned aircraft does not fly over those non-participants. With regard to sparsely populated areas, as discussed earlier, the restriction on flight over people is focused on protecting the person standing under the small unmanned aircraft, which may occur in a sparsely populated area. The FAA notes, however, that because sparsely populated areas have significantly fewer people whose presence may restrict a small UAS operation, a newsgathering organization will likely have significant flexibility to conduct small UAS operations in those areas.
With regard to the remote pilot’s good-faith belief and momentary operation of a small unmanned aircraft over a person on the ground, the FAA notes that the remote pilot in command is responsible for ensuring that the small UAS does not fly over any nonparticipant who is not under a covered structure or vehicle. This may require creating contingency plans or even terminating the small UAS operation if a non-participant unexpectedly enters the area of operation. The FAA declines to amend this requirement because, as discussed earlier, this requirement creates a performance-based standard for a stand-off distance that the remote pilot in command must use to ensure that his or her small unmanned aircraft does not fly over a person.
The National Association of Realtors suggested that more guidance is needed to clarify the operator’s obligations for communicating with bystanders that a UAS flight will occur in the area. Specifically, the commenter wondered: (1) how much notice is required to clear an area of bystanders before the flight takes place; (2) how the notice should be given; (3) for how long an area should be required to be cleared of bystanders; and (4) within what distance bystanders should be provided notice.
This rule will not require that notice be given to non-participants prior to the operation of a small unmanned aircraft. Likewise, the rule will not prohibit the remote pilot from employing whatever means necessary to ensure that the small unmanned aircraft does not endanger the safety of bystanders, such as providing prior notice of operations. Providing notice to bystanders is simply one method that a remote pilot in command can utilize to clear the operating area (assuming that non-participants comply with the notice). However, providing such notice will not relieve the remote pilot in command of his or her duty to ensure the safety of non-participants.
An individual commenter asserted that, taken literally, the proposed prohibition “would require a UA operator to know at all times, the exact location of all people on the ground who are within VLOS of his or her UA.”
As stated earlier, this rule imposes a performance-based requirement concerning flight over people. It is up to the remote pilot in command to choose the specific means by which he or she will satisfy this requirement. The guidance issued concurrently with this rule provides some examples of means that a remote pilot in command could utilize to satisfy the prohibition against flight over non-participants in part 107.
NAMIC sought guidance with respect to when the presence of a third party “can prevent or interrupt UAS use.” Specifically, NAMIC questioned whether, if an insurance review of a private building requires some limited flight over a public street, the street needs to be closed or, alternatively, if the flight can simply take place when there are no pedestrians on the street. An individual commenter similarly questioned what happens when a person enters the operational area once the operation has commenced and the UAS is airborne—i.e., whether the UAS may loiter until the person clears the area or whether the operation must be terminated.
Liberty Mutual Insurance Company said that, given the fact that almost any operation of a small UAS over urban areas will necessarily result in flight over human beings, “the final rule should include a reasonableness standard whereby, through a safety assessment such as currently permitted in section 333 exemptions, an operator may determine that a flight over a particular area does not pose a reasonable threat to persons who are not covered by a structure.” If such a reasonable determination is made, Liberty Mutual said, the flight should be allowed. Liberty Mutual noted that this change “would be particularly important for assessing disaster situations or performing surveys over areas larger than a single structure.”
As discussed earlier, this rule prohibits any small unmanned aircraft from flying over a person who is not a direct participant in the small UAS flight operation and is not under a covered structure or vehicle. This is a performance standard: it is up to the remote pilot in command to choose the best way to structure his or her small UAS operation to ensure that prohibited flight over a person does not occur and that the small unmanned aircraft will not impact a person if it should fall during flight. The FAA anticipates that the remote pilot in command will need to determine an appropriate stand-off distance from nearby persons in order to comply with this requirement. With regard to the specific examples provided by the commenters, the FAA notes that the remote pilot in command is not required to cease small UAS flight if he or she can continue operating in a manner that ensures that the small unmanned aircraft will not fly over an unprotected non-participant. Several individual commenters suggested proposed §107.39 be expanded to prohibit operation over any personal property without the permission of the property owner.
Property rights are beyond the scope of this rule. However, the FAA notes that, depending on the specific nature of the small UAS operation, the remote pilot in command may need to comply with State and local trespassing laws.
NAMIC questioned whether a UAS operation over private property is prohibited if the owner wants to watch, “even if the owners agree that they may be in danger.” Southern Company suggested that FAA allow operations over any person who is located on the property, easement, or right of way of the person or entity for whom the small UAS is operated, and any person who is participating in the activity for which the small UAS is being operated. This commenter said such mitigating restrictions could include a lower operating ceiling, lateral-distance limits, a lower speed restriction, and a prohibition on operations over large gatherings of people.
The flight-over-people restriction is intended to address the risk of a small unmanned aircraft falling on and injuring a person. Being the owner or easement-holder of the area of operation does not reduce a person’s risk of being hit by the small unmanned aircraft. Accordingly, this rule will not impose a different safety standard based on the ownership status of the person over whom the small unmanned aircraft is operating. With regard to additional operational mitigations, the FAA will consider those on a case-by-case basis through the waiver process.
The Wisconsin Department of Transportation (WisDOT) expressed “concern that this (107.39) restriction may severely limit the ability of public sector agencies to incorporate UAS” into certain activities, such as bridge inspections, traffic and incident management activities on public highways, and search and rescue operations. NSAA also said operations over the public should be permitted “in non-normal or emergency operations where life, limb, and property are at risk.” UAS Venture Partners similarly sought an exemption from the proposed prohibition on operations over persons not directly involved in the operation for Civic Municipal Rescue Service agencies and the trained rescue first responders who will be operating the UAS devices. Vail also said the final rule should include specific exemptions from the “directly involved” requirement “for temporary flight over uninvolved persons for emergency and safety uses.”
As discussed in section III.C.3 of this preamble, this rule applies only to civil small UAS operations. It does not apply to public UAS operations which may include governmental functions such as public road and bridge inspections, traffic control and incident management on public highways, and search and rescue operations. To that end, a public UAS operator such as WisDOT may apply for a COA to use its UAS for specific governmental functions instead of operating and complying with the provisions of part 107. With regard to emergency and search-and-rescue operations, it should be noted that those operations are typically conducted by local, State, or Federal government agencies (such as fire departments or police) as public aircraft operations. Public aircraft operations will be granted operational authority by way of a COA and will not be subject to part 107. With regard to civil small UAS operations, the FAA emphasizes that the remote pilot in command’s ability to deviate from the requirements of part 107 to address an emergency (discussed in section III.E.1.d of this preamble) is limited to emergency situations that affect the safety of flight. For emergency situations that do not affect the safety of flight, the remote pilot in command should contact the appropriate authorities who are trained to respond to emergency situations.
The Professional Helicopter Pilots Association suggested that the FAA provide a means by which individuals or companies can limit or eliminate the overhead or adjacent operation of UAS by anyone other than properly certified public service/public safety operators.
Though a governmental entity may choose to operate a small UAS under the civil regulatory structure of part 107, the FAA does not agree that operational distinctions should be made within part 107 regarding the specific entity that is conducting a civil operation. To that end, under part 107 all civil small unmanned aircraft operations are prohibited from operating over a person not directly participating in the operation of the small unmanned aircraft and not under a covered structure or in a covered vehicle and not directly participating in the flight operation of the small unmanned aircraft.
The International Association of Amusement Parks and Attractions (IAAPA) stated safety and privacy concerns are implicated by third-party small UAS operations. IAAPA stated that the operation of UAS over amusement parks and attractions by third parties is also implicated by proposed section 107.39. IAAPA asserted that the facility operator can carefully control the use of UAS over a person who is not directly participating in its operation if the UAS is operated by the facility or its designee, but this degree of control is impossible when hobbyists or other third-parties who do not have the facility owner’s permission operate UAS near or over the perimeter or interior of amusement parks and attractions. IAAPA stated that amusement parks and attractions generally contain large numbers of people, and that the safety risks posed to employees and to visitors enjoying rides potentially traveling 100 miles per hour, watching shows, or walking through amusement parks and attractions are considerable and outside the control of facility operators.
The restriction on flight over people applies regardless of the location in which that flight occurs. Thus, a remote pilot in command may not operate a small unmanned aircraft over a non-participant in an amusement park who is not under a covered structure or in a vehicle. Additionally, the remote pilot in command must ensure that the small unmanned aircraft does not pose an undue hazard to a person in the event of a loss of control for any reason. The FAA also notes that hobbyists or other third parties who do not have the facility owner’s permission to operate UAS near or over the perimeter or interior of amusement parks and attractions may be violating State or local trespassing laws. Aerial Services, the National Society of Professional Surveyors, Continental Mapping, MAPPS, and 12 members of the Wisconsin Legislature said the ban on flights “over populated areas” needs to be removed or modified, because the definition of “populated area” is inadequate and seems to mean “any single person within the area of operation that is not inside a structure.” In response, the FAA notes that this rule does not ban flights over a “populated area.” This rule only restricts flights over a person who is not directly participating in the flight operation and who is not inside a covered structure or vehicle.