I recently wrote about the decision to no longer fly the DJI matrice drone. You can read that post here.
In public safety UAS flying, we are entering a unique period of a lack of clarity for the first time in the field as drone manufacturers drop development and support for the aircraft we fly.
Poll Results Surprised Me
A great friend put up this poll as a result of my article and the results surprised me.
It Lands on Your Back
If you fly under a COA the COA agency and you as the pilot are responsible for all flight operations, incidents, and accidents.
Part 107 pilots have to look at CFR 107.15 to see what is required before flight. This is the part that I can’t wrap my head around to see a way forward.
§ 107.15 Condition for Safe Operation
(a) No person may operate a civil small unmanned aircraft system unless it is in a condition for safe operation. Prior to each flight, the remote pilot in command must check the small unmanned aircraft system to determine whether it is in a condition for safe operation.
(b) No person may continue flight of the small unmanned aircraft when he or she knows or has reason to know that the small unmanned aircraft system is no longer in a condition for safe operation.
But There is the Problem
If the manufacturer has closed the door and turned their back on development, firmware support, or updates then how can you possibly know of any material defect that would render the drone unsafe?
In this situation you are not certifying the drone is safe to fly you are either guessing or praying things will go well.
Ignorance is never a defense. “I didn’t know” is not a winning strategy when you should have known.
For the manned aircraft that holds an airworthiness certification, I can turn to the certificated FAA mechanic and confirm the aircraft has complied with all known manufacturer Service Bulletins, Airworthiness Directives, and annual inspections. More frequent inspections are required for aircraft used in commerce.
As a drone pilot, you can’t do that and can’t obtain any sort of assurance once the manufacturer stops responsibility for the drone.
I once even asked DJI to examine our drone and provide a letter the drone was in a condition for safe operation and safe to fly. They said they could not do that. However, they could provide a statement the drone was in the condition it was when manufactured. That’s not even close to the same thing.
So I Asked the FAA What They Thought About This Head Scratcher Situation
You are probably not going to be thrilled with the answer. It puts all the weight on the pilot that elects to put the UAS in the air.
Here is What I Asked
“How can an agency continue to fly their drone under Part 107.15 when any issues identified to [the manufacturer] after development has ended are not addressed and the language of 107.15 requires the RPIC to attest the drone is in a condition for “safe operation.”
I have never found any waiver from the FAA definition of safe operation for a UAS.
If the regulation is the drone must just be in a condition similar to what the manufacturer said before they discontinued active development and the manufacturer is no longer working on fixing safety issues, development, or support then how can a pilot be in strict compliance with 107.15?
AC 107-2A states 5.2 “Aircraft Operation. Just like a manned-aircraft PIC, the remote PIC of a small unmanned aircraft is directly responsible for and is the final authority for the safe operation of the small unmanned aircraft (§ 107.19).”
But I’m not sure we can compare apples to apples here because in manned aviation the aircraft is subject to an annual inspection to determine if the aircraft is still in airworthy condition. As the pilot of a manned aircraft, I can ask my certificated FAA mechanic if my aircraft is in compliance with all Service Bulletins, Airworthiness Directives, and appears to be in a condition for continued safe operation.
But there is the crux of the issue, while a UAS pilot is the final authority to say the drone is safe to fly, it seems to me that is the opinion of the pilot and not an accurate statement about the condition of the aircraft. As 107-2A says, “The remote PIC assuming control of the small UAS maintains responsibility for the safe operation of the small UAS.”
AC 107-2A also says, “5.5 Small Unmanned Aircraft Maintenance, Inspections, and Condition for Safe – Operation. A small unmanned aircraft must be maintained in a condition for safe operation. Prior to flight, the remote PIC is responsible for conducting a check of the small unmanned aircraft to verify it is actually in a condition for safe operation (§ 107.15). Guidance regarding how to determine that a small unmanned aircraft is in a condition for safe operation is found in Chapter 7, Small Unmanned Aircraft Maintenance and Inspection.” Here is a direct link to the checklist section that should be used before each flight.
Chapter 7 is all about looking the drone over. If the FAA Part 107 regulations came up with an alternative definition of what “safe operation” is just for drones weighing less than 55 pounds then why were those specific words used if not intended to refer to the FAA definition for safe operation.”
Here is the FAA Response and Advice
“The FAA view is stated in the preamble to part 107 and AC 107-2A. Those documents essentially say that under part 107, the remote pilot makes the determination that the UA system is safe to operate and is the final authority (and accountable).”
“Flying UA systems that are no longer supported by the manufacturer is a question best suited to the department’s risk management and legal departments, not the FAA. That determination and assignment of responsibility may not suffice for the department’s legal and risk management departments, however, so best to check with them.”
So here we are. You are responsible for the operation of the UAS with no information to make your decision on. Yet all the liability from the operation of the aircraft is solely resting on the pilot in command.
In AC 107-2A there is this little nugget, “If the operator or other maintenance personnel are unable to repair, modify, or overhaul a small UAS or component back to its safe operational specification, the operator should replace the small UAS or component with one that is in a condition for safe operation.
You can elect to make whatever decision you want based on your willingness to accept the personal risk for any incident or accident. If you feel comfortable defending your decision to fly in the face of no known information then “You do you boo.”
However, if you are flying for any public safety agency or department that might get sucked into the lawsuit against you, I agree with the FAA. You should absolutely make sure the public safety agency attorney and risk management are aware of the issues and will not abandon you when it is discovered you had no way to know the drone was safe to fly.
Keep in mind that an official FAA investigation and examination of all flight operations, records, and flight data records do not require a crash. A deep investigation can begin after a member of the public files a concern about the safety of any flight you make.
So you might as well come up with your defendable answer on how you knew the drone was in a condition of safe operation now.
2 thoughts on “This is a Rare And Unique UAS Conundrum With No Good Answer”
Your issues seem to be more applicable to the insurance that you have. A lot of the risk is covered within that policy. If you have to buy new equipment, you need to price that into the quotes you are giving to your customers.
Most municipal and government insurance policies specifically exclude aviation. The question is how much risk is the pilot willing to personally take on for the non-compliant flights. You always have to keep in mind the public safety agency can’t shield the pilot from personal liability since it is the pilot that is solely responsible for the operation and condition of the aircraft. At the very least the pilot should confirm some coverage is in place to address issues of non-compliant flight.
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