§ 107.7 Inspection, testing, and demonstration of compliance.
(a) A remote pilot in command, owner, or person manipulating the flight controls of a small unmanned aircraft system must, upon request, make available to the Administrator:
(1) The remote pilot certificate with a small UAS rating; and
(2) Any other document, record, or report required to be kept under the regulations of this chapter.
(b) The remote pilot in command, visual observer, owner, operator, or person manipulating the flight controls of a small unmanned aircraft system must, upon request, allow the Administrator to make any test or inspection of the small unmanned aircraft system, the remote pilot in command, the person manipulating the flight controls of a small unmanned aircraft system, and, if applicable, the visual observer to determine compliance with this part.
My Commentary on § 107.7 Inspection, testing, and demonstration of compliance:
Notice in paragraph (a) there are three people that are required to turn over certain information: the remote pilot in command, the owner of the aircraft, and a person manipulating the flight controls. This creates an interesting scenario where the OWNER of the aircraft has to turn over the remote pilot certificate of the pilot.
Paragraph (b) is broader than (a). (b) lists the owner and operator which were not listed in paragraph (a) as ALSO being on the hook to allow the FAA to do testing and inspection. Interestingly, the FAA can test and inspect: the UAS, the remote pilot in command, person manipulating the controls, and a visual observer if there is one used.
1. Inspection, Testing, and Demonstration of Compliance
The FAA’s oversight statutes, codified at 49 U.S.C. 44709 and 46104, provide the FAA with broad investigatory and inspection authority for matters within the FAA’s jurisdiction. Under section 46104, the FAA may subpoena witnesses and records, administer oaths, examine witnesses, and receive evidence at a place in the United States that the FAA designates. Under section 44709, the FAA may “reinspect at any time a civil aircraft, aircraft engine, propeller, appliance, design organization, production certificate holder, air navigation facility, or agency, or reexamine an airman holding a certificate issued [by the FAA].”
The NPRM proposed to codify the FAA’s oversight authority in proposed § 107.7. First, § 107.7 would require the airman, visual observer, or owner of a small UAS to, upon FAA request, allow the FAA to make any test or inspection of the small unmanned aircraft system, the airman, and, if applicable, the visual observer to determine compliance with the provisions of proposed part 107. Second, § 107.7 would require an airman or owner of a small UAS to, upon FAA request, make available to the FAA any document, record, or report required to be kept by the applicable FAA regulations. For the reasons discussed below, this rule will finalize these provisions as proposed.
The Department of Defense Policy Board on Federal Aviation suggested that § 107.7(a) be reworded to limit its applicability to “civil operators,” not operators in general. The commenter asserted that this change would preserve public operators’ statutory authorities.
As discussed in section III.C.3 of this preamble, the applicability of part 107 is limited to civil aircraft. Thus, part 107 will not apply to public aircraft operations. Because public aircraft operations will not be subject to § 107.7 (or any other provision of part 107) there is no need to amend the regulatory text of § 107.7 with regard to civil aircraft.
The Kansas State University UAS Program asked the FAA to clarify, with respect to §107.7(b), what types of tests or inspections could be performed on the remote pilot or visual observer. Specifically, the commenter suggested that the FAA define whether such persons could be subjected to blood alcohol tests, drug tests, or knowledge tests. They also recommend that the section be reworded to reference § 91.17(c).
Section 107.7(b) codifies the FAA’s authority under 49 U.S.C. 44709 and 46104, which allow the FAA to inspect and investigate the remote pilot. This may involve a review, reinspection, or requalification of the remote pilot. With regard to requalification, 49 U.S.C. 44709 and § 107.7(b) allow the FAA to reexamine a remote pilot if the FAA has sufficient reason to believe that the remote pilot may not be qualified to exercise the privileges of his or her certificate. Additional guidance concerning the reexamination process can be found in FAA Order 8900.1, ch. 7, sec. 1. Pertaining to the visual observer, as an active participant in small UAS operations, this person may be questioned with regard to his or her involvement in the operation. For example, if an FAA inspector has reason to believe that a visual observer was not provided with the preflight information required by § 107.49, the inspector may ask the visual observer questions to ascertain what happened. Because the visual observer is not an airman, the visual observer will not be subject to reexamination.
With regard to § 91.17(c), the FAA notes that, as discussed in section III.E.7.b of this preamble, § 107.27 will, among other things, require the remote pilot in command, the visual observer, and the person manipulating the flight controls of a small UAS to comply with § 91.17. This includes compliance with the alcohol-testing requirements of § 91.17(c).
The City and County of Denver, Colorado suggested that airports be given the same rights as those granted to the FAA under §107.7(b). The commenter argued that airport operators have a duty to protect airport property, and that that duty can be fulfilled only when the airport operator has the opportunity to determine the nature and airworthiness of a small UAS. AUVSI suggested that the FAA allow designated representatives pursuant to 14 CFR part 183 to act on behalf of the Administrator in order to determine compliance with the new regulatory standards. The commenter asserted that the FAA will not have the necessary manpower or financial resources required to allow the UAS industry and its technology to continue to evolve at its own pace. An individual commenter suggested that the FAA delegate compliance and enforcement authority to law enforcement officers and NTSB representatives.
The FAA’s statute does not authorize the agency to delegate its formal enforcement functions. Because it lacks the pertinent statutory authority, the FAA cannot delegate its enforcement functions in the manner suggested by the commenters. The FAA notes, however, that even though it cannot delegate its formal enforcement functions, it has worked closely with outside stakeholders to incorporate their assistance in its oversight processes. For example, the FAA has recently issued guidance to State and local law enforcement agencies to support the partnership between the FAA and these agencies in addressing unauthorized UAS activities. The FAA anticipates continuing its existing partnerships to help detect and address unauthorized UAS activities, and the agency will consider other stakeholders’ requests to be part of the process of ensuring the safe and lawful use of small UAS.
One individual suggested that a remote pilot in command must enable and make available to the FAA any flight log recording if the aircraft and/or control station is capable of creating such a recording. In response, the FAA notes that this rule does not require that a small UAS operation have the capability to create a flight log recording. However, if a small UAS does create such a recording, § 107.7(b) will allow the FAA to inspect the small UAS (including the recording made by the small UAS) to determine compliance with the provisions of part 107.
One individual suggested that the wording of §107.7(b) be modified to permit the FAA to conduct only “non-destructive testing” in the event of a reported violation of one or more provisions of part 107. The commenter asserts that, as written, § 107.7(b) would permit the FAA to “destructively test” every small UAS “on whim.”
The FAA declines this suggestion because there could be circumstances where destructive testing of a small UAS may be necessary to determine compliance with part 107. The FAA emphasizes, however, that this type of decision would not be made lightly and would not be part of a typical FAA inspection. For example, the FAA’s guidance to FAA inspectors about how to conduct a typical ramp inspection specifically focuses on non-destructive methods that the inspector can use to determine whether an aircraft is in compliance with FAA regulations. The FAA anticipates that, just as with manned aircraft, destructive testing of a small UAS will, if ever conducted, occur highly infrequently.
One individual recommended that §107.7 be modified to require a remote pilot to make a photo ID available to the FAA on demand. The FAA did not propose this requirement in the NPRM, and as such, it is beyond the scope of this rule.