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Why Flying a UAS Under a COA as Public Aircraft Operations May Be the Wrong Choice for Most Agencies and Pilots

Why Flying a UAS Under a COA as Public Aircraft Operations May Be the Wrong Choice for Most Agencies and Pilots

This is a tough article for me to write because I know off the bat many people are going to discount what I’m about to share. It’s not because it is wrong but because it flies in the face of assumptions and changing beliefs is difficult. Plus talking at length about UAS, COA, and public aircraft operations may make your head explode.

Many governmental organizations and public safety agencies have elected to organize their UAS or drone programs under a Certificate of Waiver or Authorization (COA).

This path may have been selected after talking with some people or some have expressed it is an easier way to get flying.

Just Because You Can Fly a UAS Under a COA Does Not Mean You Should

The Federal Aviation Administration (FAA) regulates aircraft and pilots in the National Air Space (NAS). But just because your agency may be eligible and the FAA will allow your group to apply for a COA, that does not mean you should.

I asked Fire Chief Brent Hayner with the Broad River Fire & Rescue for his opinion before I published this article. He has spent a lot of time studying this issue as well.

Here is what Chief Hayner had to say, “I had the opportunity to review this article before Steve published it and after careful study of my own over the past year I have also come to the conclusion that the COA was not the way for our department to go. My research started with me assuming the COA was the best path but my initial assumptions and beliefs, that were shared by others, were professionally challenged and in the end, the issues Steve raises here are important realities for any governmental agency considering flying under a COA.”

Many groups are leaping into drone operations without any experience in the FAA world. So it is completely understandable I get blank stares back when I ask a COA agency how they are dealing with Part 91 violations or the liability they face for any flight that is not qualified as a Public Aircraft Operation (PAO). Or what their plan is when a flight is retroactively ruled non-PAO and the pilot is not a Part 107 pilot. As the FAA has said, they will pull up and start writing violation 1 to 400 to the agency and pilot.

In fact, someone I know just had a run-in with one of those less kind and less friendly FAA enforcement folks. He and other FAA folks described her as a “pit bull.” The FAA is absolutely your friend until they are not.

Let’s Start at the Begining

A COA may make good sense for a professional aviation division with true public aircraft operations. For example, the helicopter operations of your State Police. But even then not all flights may qualify as PAO.

But a COA managed by poorly aware or qualified aviation professionals is a liability bomb waiting to explode.

Even a State program where department operators are not under direct supervision and have possession of individual drones is set up for failure if any member launches any drone for any reason that does not meet the strict standards you are going to read about below.

This has typically not been an issue with historic governmental aviation operations. No State Trooper is taking the helicopter home for the weekend or making a quick trip to the beach. But drones are small and can easily be thought of more as a piece of equipment, like a laptop, than an FAA regulated aircraft. There is a simple reason why all of these misperceptions are happening in the UAS field, click here.

It is true “PAO are limited by the statute to certain government operations within U.S. airspace. Although these operations must continue to comply with certain general operating rules, including those applicable to all aircraft in the National Airspace System (NAS), other civil certification and safety oversight regulations do not apply to these operations. Accordingly, most aspects of PAO are not subject to FAA oversight.”

Public aircraft operations and COA UAS activities receive little oversight but shift responsibility.

Just because the FAA does not provide oversight does not mean the COA agency is exempt from all oversight. The oversight responsibility shifts from the FAA to the COA holder. You may have also noticed that the definition of a PAO under a COA does not exempt your aircraft (drone) from all regulations.

“Any operation that does not meet the statutory criteria for a PAO is a civil aircraft operation and must be conducted in accordance with all FAA regulations applicable to the operation.” While a COA agency should know that every flight should qualify as a PAO flight, that is not something that can always be determined in advance.

So a flight later found to not be a qualified PAO now means that the flight, aircraft, aircraft owner, and pilot will have had to have complied with all applicable Part 91 civil rules previously waived and Part 107 regulations. As the FAA says, “A government entity may unintentionally conduct civil operations that would be subject to the regulations in 14 CFR.”

Any drone pilot flying a PAO flight who does not hold a Part 107 certification and the flight is later determined to not be PAO eligible will be an uncertificated pilot and may not have the required waivers to have conducted the flight.

This will leave the COA agency and it’s the governmental entity out to dry with liability and exposure to unlimited legal jeopardy. Insurance will not cover this flight and the pilot-in-command (PIC) bears the responsibility for a non-compliant flight and aircraft operations.

Even the FAA is not certain what may qualify as a PAO function. “We would like to caution everyone that the current FAA guidance concerning public aircraft operations is confusing, and in some instances does not reflect current agency policy or legal interpretation. While those materials are being updated, my office is considering public aircraft operation determinations on a case-by-case basis starting with the terms of the current statute, 49 USC §§ 40102(a)(41) and 40125.” – Source

In 2011, John Allen from the FAA is reported to have said about the issue of groups trying to deal with the lack of clarity on PAO, “This is a subject I’ve been beating my brains out on for the last six or seven years.” “It is a complex issue. The statute is hard to understand,” he said.

The FAA also says, “whether there is a governmental function that supports a proposed operation is but one of the considerations that goes into determining whether there is a valid public aircraft operation under the terms of the statute.” – Source

And has also stated regarding Public Aircraft Operations, “An equally troubling challenge is the persistent confusion concerning where responsibility lies for safety oversight. In the air carrier world and in general aviation, it is very clear that the FAA has regulatory authority over all aspects of aircraft operation and airworthiness, but those clear lines do not exist when it comes to public aircraft operations.

It has been said that success has many fathers, but failure is an orphan. This is never truer than after an accident, particularly with a contract operation, where no one wants to accept responsibility for oversight. Or with an organization that stands alone with no real oversight but their own – this lack of custody effectively makes public aircraft operations the orphans of aviation safety.” – Source

It’s Not Safe to Assume You Are Always Conducting Public Aircraft Operations

The appropriate statute provides several examples of governmental functions in 49 U.S.C. § 40125(a)(2), the list is not inclusive and other governmental functions may exist. However the FAA provides the following warning, “Functions not listed should not be presumed to be acceptable; contact the International Law, Legislation, and Regulations Division (AGC-200) regarding a legal interpretation to identify additional functions.” – Source

Do Not Assume

Something that appears clearly to be a COA flight of a PAO, just simply may not be. “The memo’s second set of circumstances describes a “Countryside Police Department mission” funded solely by department resources with the Police Department having operational control, and concludes that “public use aircraft status” can be claimed. We caution that this conclusion may be faulty since the statute requires consideration of both the purpose of the flight and the status of the personnel on board under the statute. Simply having an aircraft funded by and under the operational control of the Countryside Police Department does not render any flight the Department makes a public aircraft operation.” – Source

Let’s Say a COA Wanted to Try and Avoid Liability by Contracting With an Outside Organization for UAS Flights

That doesn’t waive the underlying issue and opens up everyone to issues. Here is what the FAA has to say about that.

What are the Legal Implications of Conducting a PAO? Contracting government entities must be aware that PAO performed by civil operators create a significant transfer of responsibility to the contracting government entity, and that most FAA oversight ceases.

(1) Contracted civil operators must be aware that unless there is a declaration of public aircraft status on file with the agency, the FAA considers all operations civil; civil operations must be conducted in accordance with all applicable civil aviation regulations. The FAA retains oversight and enforcement authority for any deviation from the provisions of 14 CFR until the agency is informed of the change in status to PAO by means of a written declaration.

(2) Additionally, civil operators are cautioned that it is their responsibility to refuse a contract to perform operations that would violate applicable 14 CFR regulations unless the operator is sure that the government entity offering the contract will be declaring them a public aircraft operation. It is the responsibility of the government entity and the operator to determine that each flight meets eligibility requirements for a PAO as required by the statute. – Source

Some Q&As

Here are some scenarios and questions I have sought clarification from the FAA on.

Q: If a PAO self-certified UAS pilot is found to have flown a flight which is retroactively found to not be a PAO flight then they would have to fall back on their civil qualifications which would leave them under Part 107 and all the Part 91 FARs the COA PAO may not assume apply.

A: Yes.

Q: The PIC is ultimately responsible for determining if the flight is truly a covered governmental operation as a PAO.

A: Yes.

Q: I’ve been asked to fly a demo flight at an event in my community. Would that be a PAO?

A: An argument can be made that the event is either public relations or educational. Neither function would qualify, on face value, as a PAO governmental function. “The term “governmental function” means an activity undertaken by a government, such as national defense, intelligence missions, firefighting, search and rescue, law enforcement (including transport of prisoners, detainees, and illegal aliens), aeronautical research, or biological or geological resource management.” The COA agency may rationalize the event is part of their law enforcement or firefighting work but what the COA agency thinks, is immaterial. It is only what the FAA thinks that matters. The final determination can only be made in advance with a legal opinion from the FAA or an examination of the facts by the FAA after the flight.

Q: My Town tax department wants us to capture some pictures for them for their work. Certainly, because they are part of the same governmental unit that would be oaky.

A: If the COA is issued to a fire department or police department for their work, assisting other agencies under the same governmental unit would not qualify as a PAO. Taking photos for a different department is not a law enforcement or firefighting function. What actually constitutes a PAO is limited by statute.

In another matter which seems like it would be covered under PAO the FAA said, “While we agree that your client meets the requirements of 49 USC 40102(a)(41)(C) as a valid government entity under the statutory definition, we are unable to conclude that a “public power utility” whose function is “providing safe, reliable and low-cost electric power” meets even an expanded test of governmental function under 49 USC 40125(a)(2) so as to support the use of an unmanned aircraft (UAS) in a PAO.”

The FAA also said, “Congress limited the reach of the public aircraft statute to governmental functions, and the FAA has agreed that the language of the statute indicates that the list in §40125(a)(2) is not exclusive. But the FAA is aware that the list Congress did provide demonstrates that there are limits in those functions, which the FAA characterizes on the state level as those activities that are core functions necessary to operate as a state. That a state may choose to expand the reach of its own government to provide any number of services or goods for its residents is not at issue. But the actions of state legislatures to create entities such as public vendors of electrical power cannot be read to bind the terms of the public aircraft statute so as to allow any decision of a state legislature to be the basis for PAO. The statutory limits on operations have been shrinking historically, from the idea that anything operated by a government was PAO, to the much stricter, if uneven, addition of restrictions on governmental functions and commercial purpose.” – Source

So just because your city, town, county, or state believes what you do as a COA PAO pilot is a governmental function, it does not mean your services all comply with PAO and if any flight does not, well you get the point.

Q: If we want to avoid the issue of compensation then we just make sure the agency and PIC are not paid, right?

A: The FAA definition of compensation is much more expansive than you should assume. “The FAA has consistently construed compensation broadly. Compensation “does not require a profit, a profit motive, or the actual payment of funds.” Legal Interpretation to Joseph Kirwan (May 27,2005). Rather, compensation is the receipt of anything of value. The FAA has previously found that reimbursement of expenses (fuel, oil, transportation, lodging, meals, etc.), accumulation of flight time, and goodwill in the form of expected future economic benefit could be considered compensation. Legal Interpretation to John W. Harrington (Oct. 23, 1997); Blakey v. Murray, NTSB Order No. EA-5061 (Oct. 28, 2003).” “We note that whether a private pilot is receiving something of value in exchange for acting as pilot in command is determined on a case-by-case basis and depends greatly on the purpose and objective of the flight.” – Source

So a PAO flight could receive compensation in forms other than you may assume.

Q: Since we hold a COA can we provide education to others in public safety flying or UAS training?

A: No. Even for approved COA universities, education is not an approved function. “Accordingly, we are unable to conclude that §40125(a)(2) may be expanded to include education as a general governmental function. While a school at any level may validly qualify for a public aircraft UAS COA as a part of a state, operation of a public aircraft UAS is limited to one of the listed governmental functions. A COA may not be used to operate a UAS flight school, or conduct other UAS operations to provide education as part of any curriculum that does not otherwise qualify as a governmental function.” – Source

Q: As the COA holder I can determine the type and amount of training our UAS pilots need, right?.

A: It is up to the COA holder to determine what the selection, qualification standards, and recurrent training requirement are for their pilots. The COA holder is fully responsible for figuring that out and providing the “proper” oversight of anyone and any aircraft that flies under its COA. This includes things like crew duty times, crew rest, etc. The list of items the COA agency must define, support, and supervise is nearly endless and will not be eligible for FAA review until an issue occurs or the COA holder is under FAA surveillance and gets a knock at the door. And don’t forget, this applies to all pilots flying under the COA held by a broader entity like a city, town, county, or state.

If there is an accident or injury the FAA will then evaluate if the training, supervision, documentation, and oversight met the standards of the FAA. You are expected to deliver FAA compliant supervision even though the FAA does not provide oversight of COA activities. This is particularly difficult given the fact the COA holder may not know what they don’t know.

Q: Since we are a COA holder surely all of our activities and liability is covered by the government entity we work for?

A: Public Aircraft COA holders need to really understand what liability and responsibility they take on when they operate as a Public Aircraft. Most do not fully appreciate the significance of operating as a Public Aircraft, nor the potential landmines that exist to get it wrong because of how Congress wrote the law. Most COA holders are unaware of what is being shifted to them by Public Aircraft Operations. Most public safety departments, their leadership, legal, and risk management really don’t fully grasp the potential liability they are putting on their city, town, county, and/or state by operating as a Public Aircraft, and how easily they can conduct a non-qualified mission thereby nullifying Public Aircraft status.

Q: Certainly the FAA would not find our police or fire department flights don’t meet the PAO qualifications or they would not have approved our COA.

A: Not true at all. And let’s not forget the FAA does not operate in a vacuum. In the case of an accident, the National Transportation Safety Board (NTSB) may get involved as well. Such was the case of an Alaska State Trooper flying a search and rescue flight. The NTSB found fault with the PAO organization, “The investigation also identified that the Alaska DPS lacked organizational policies and procedures to ensure that operational risk was appropriately managed both before and during the mission. Such policies and procedures include formal pilot weather minimums, preflight risk assessment forms, and secondary assessment by another qualified person trained in helicopter flight operations. These risk management strategies could have encouraged the pilot to take steps to mitigate weather-related risks, decline the mission, or stay on the ground in the helicopter after rescuing the snowmobiler. The investigation also found that the Alaska DPS lacked support for a tactical flight officer program, which led to the unavailability of a trained observer on the day of the accident who could have helped mitigate risk.” – Source

So what roles and responsibilities are your COA agency missing that you don’t know about? You can’t answer that because you don’t know what you don’t know. But this 75 page NTSB report that cast blame on a professional PAO operation may help to scare you straight.

I Could Go On But You Get the Point

So as you can see, flying under a COA is a greased pig on a slippery slope. The safest way for any entity, including governmental units, to conduct operations is to require all of their pilots to be Part 107 certificated and comply with all Part 107 regulations, including those that apply under Part 91.

If I was a pilot flying under a COA and I did not hold a Part 107 certification and required waivers, I would ground myself until I had those in hand. Otherwise, in the case of any unforeseen event, the PIC will be totally on the line for liability and violations along with the COA holder, city, town, county and/or state. As the FAA says, the PIC is the person who is ultimately responsible for its operation and safety during flight.

So What Should a COA Holder Look to Do?

Since the FAA is unable to provide clear guidance and by their own admission, the guidance changes with specific flights and situations, and changes with the statutes then the best we can do is look at what a professional flight program looks like in the eyes of the FAA.

It is completely up to the COA holder to build a supervisory, training, management, compliance, and documentation program the FAA would consider to be compliant with professional commercial aircraft operations.

Rules and regulations already exist for professional flight departments. You can find this material in FAR Part 119 and 135.

Truly the question is not if a best practices COA flight program can be built and maintained but if any agency or department is willing to commit the significant time and resources to do this.

Here is a quick overview from the NBAA about what it takes to start a compliant Part 135 aviation program which may seem like overkill but also may the most thorough and exhaustive approach.

The suggestions I am about to give you may seem excessive but they are the same requirements in the Federal Aviation Regulations that the FAA expects from professional flight operations.

Staffing

You should consider having the following management personnel supervising your COA flight operations.

(a) Each certificate holder must have sufficient qualified management and technical personnel to ensure the highest degree of safety in its operations. The certificate holder must have qualified personnel serving full-time in the following or equivalent positions:

(1) Director of Safety.
(2) Director of Operations.
(3) Chief Pilot.
(4) Director of Maintenance.
(5) Chief Inspector.

(d) The individuals who serve in the positions required or approved under paragraph (a) or (b) of this section and anyone in a position to exercise control over operations conducted under the operating certificate must –

(1) Be qualified through training, experience, and expertise;

(2) To the extent of their responsibilities, have a full understanding of the following materials with respect to the certificate holder’s operation –

(i) Aviation safety standards and safe operating practices;
(ii) 14 CFR Chapter I (Federal Aviation Regulations);
(iii) The certificate holder’s operations specifications;
(iv) All appropriate maintenance and airworthiness requirements of this chapter (e.g., parts 1, 21, 23, 25, 43, 45, 47, 65, 91, and 121 of this chapter); and
(v) The manual required by § 121.133 of this chapter; and

(3) Discharge their duties to meet applicable legal requirements and to maintain safe operations. – Source

Extensive Documentation and Procedure Requirements

Part 119 and Part 135 both contain significant requirements for procedures, documentation, testing, and inspections. While not everything in those sections applies, there is still sufficient information showing what the FAA would expect to see from a professional flight operation.

FAR Part 119 covers Certification: Air Carriers and Commercial Operator and Part 135 covers Operating Requirements: Commuter and On Demand Operations and Rules Governing Persons On Board Such Aircraft.

You can read Part 119 here and read Part 135 here.

I keep a well-worn copy of the FAR/AIM close at hand and refer to it often.

COA holders must be familiar with UAS public aircrft operations and regulations.

While the FAA does say, “All aircraft, even those conducting eligible PAO, must comply with certain operating rules of the NAS (e.g., 14 CFR § 91.119, Minimum Safe Altitudes: General). Other requirements imposed through the terms of the contract, such as the requirement to hold an FAA 14 CFR part 135 certificate, would not be enforced or overseen by the FAA when PAO are being conducted.”

That does not mean the public aircraft operator is not held to those standards as the supervisory entity. Under a COA the responsibility for enforcement, oversight, and supervision is shifted to the COA holder and they will be held responsible.

For example, the FAA expects UAS operations to comply with the following statements, “However, an equivalent level of safety will be provided using the manufacturer’s recommended preflight procedures per the supplied information manual with the UAS craft, as well as other necessary preflight steps deemed advantageous to the safety of flight by the operator from gained experience that supplements the UAS information manual. The PIC will take further actions, including reviewing weather, flight battery requirements, radio control communication checks and interference considerations, landing and takeoff distances, the flight environment, airspace considerations, and aircraft performance data before each flight. Other risk management tools, such as the IMSAFE and PAVE models will be used a basis to determine flight readiness.” – Source

So these and many other procedures and items should be documented and enforced by the COA holder to minimize liability. Without sufficient professional supervision, you’ve only laid out the welcome mat for the pilot to be sued along with the city, town, county, or state.

As a public safety UAS pilot myself there are many instances where flights must take place quickly to prevent the loss of life or damage to property. Yet even the process above that was included in a COA like waiver (333) would significantly delay a COA public safety pilot.

Will the FAA Change the Rules?

People have postulated the FAA should or will change the rules regarding UAS COA flight under public aircraft operations. But while that is always a possibility all we can do is be informed as to the current set of rules and positions and then operate accordingly.

Logic and laws from Congress are often at odds with each other.

Under the current set of guidance or lack of it, I just can’t see where the risks are worth flying under a COA for either the pilot or the COA holder.

So What Are The Odds of a Public Safety Agency Getting in Trouble Over These Issues?

I actually think the chances of issues while flying under a COA are increasing exponentially for a number of reasons.

  1. More poorly informed entities are pursuing COAs to fly.
  2. More COA pilots are coming online with little experience and/or the correct supervision, operational rules, and they are not getting enough flying hours.
  3. There are no UAS demonstrable practical test standards for a COA pilot to prove they can operate the aircraft safely before being released to fly as required for manned aircraft. So how can competence be shown as meeting acceptable standards?
  4. Some civilians are litigious and some look to create issues. Especially surrounding concerns over privacy, surveillance, and certainly in the event of a UAS accident or alleged injury caused by a UAS.
  5. Some UAS COA aircraft will have software and hardware issues and crash. Inexperienced pilots will make mistakes.
  6. Smart attorneys will gladly go after the deep pockets of government agencies to pursue or settle cases and pilots who make mistakes may not be covered by the public agency they flew for. Remember FAR 91.3, “The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.” I can easily imagine a poorly trained and supervised COA pilot having an accident that leads to tremendous personal liability when it becomes public the COA holder did not run their program in a manner that provided the same level of oversight that the FAA would have required. That would leave the COA pilot exposed for not exercising final authority and turning down an unsafe flight.

The facts seem to clearly show that all public safety pilots should be flying under their own Part 107 certification with additional supervision, policies, and procedures if flying for a governmental agency.

Any agency who has accepted to full and complete shifting of responsibility from the FAA to the COA holder entity should reconsider that acceptance of liability and responsibility.

I also strongly recommend that all Part 107 pilots consider purchasing legal protection assistance through the AOPA Pilot Protection Services program Plus-Level. COA pilots are not covered by this legal protection policy.

In this type of technical and difficult flying, it is not a question if you will need such coverage but when.

I hold this coverage myself and I’m a very experienced UAS public safety pilot.

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About Steve Rhode

Steve is an experienced and certificated UAS pilot and aircraft instrument rated pilot. He is also the Chief Pilot with the Wake Forest Fire Department and North Carolina Public Safety Drone Academy.
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