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A Basic Explanation of FAA UAS Regulations for Hobbyists Flying Model Aircraft

Introduction

Back in 2012, Congress passed the FAA Modernization and Reform Act of 2012. Amongst many other things, it introduced Section 336 - the rules by which model aircraft - including Unmanned Aerial Systems - or "drones" - are flown. Section 336, in turn, created a totally confusing mess that has caused seemingly endless misunderstandings about what the law actually says. In this article, we will explore Section 336 - now codified as part of Part 101 of the Federal Air Regulations - aka 14 CFR Part 101, and also commonly known as the "Special Rule for Model Aircraft".

First Things First

The Federal Air Regulations (14 CFR) govern all flight in the United States. Simply put, if you aren't permitted under these regulations to fly, you cannot fly in FAA regulated airspace, which is essentially anything outdoors and within 3 nautical miles of the coast. The various parts of 14 CFR govern different categories of aircraft and pilots; Part 91, for example, governs civil aviation. Part 135 governs commercial air carriers. The parts we are interested in here are Part 101 (subsection "E" covers recreational unmanned aircraft) and Part 107 (all other unmanned aircraft). However, first we must examine where Part 101 came from - the aforementioned Section 336.

Section 336 - The Misunderstood Section

First, let's examine what section 336 defines as a "model aircraft". Unfortunately, this is the LAST part of 336 - and - quite frankly - apparently is often overlooked:

(c)Model aircraft defined
In this section, the term model aircraft means an unmanned aircraft that is—

(1)capable of sustained flight in the atmosphere;
(2)flown within visual line of sight of the person operating the aircraft; and
(3)flown for hobby or recreational purposes.

Therefore, to be authorized for flight under Section 336/Part 101(E), the aircraft must be one that meets those requirements. But what do they mean? For this, we turn to the FAA's Interpretation of the Special Rule for Model Aircraft. The first requirement - capable of sustained flight in the atmosphere - isn't open for much interpretation, so let's look at the latter two.

(2)flown within visual line of sight of the person operating the aircraft;

The FAA says the following about this requirement:

By definition, a model aircraft must be “flown within visual line of sight of the person operating the aircraft.” P.L. 112-95, section 336(c)(2). Based on the plain language of the statute, the FAA interprets this requirement to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the aircraft; and (3) people other than the operator may not be used in lieu of the operator for maintaining visual line of sight. Under the criteria above, visual line of sight would mean that the operator has an unobstructed view of the model aircraft. To ensure that the operator has the best view of the aircraft, the statutory requirement would preclude the use of vision-enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, and goggles designed to provide a “first-person view” from the model. Such devices would limit the operator’s field of view thereby reducing his or her ability to see-and-avoid other aircraft in the area. Additionally, some of these devices could dramatically increase the distance at which an operator could see the aircraft, rendering the statutory visual-line-of-sight requirements meaningless. Finally, based on the plain language of the statute, which says that aircraft must be “flown within the visual line of sight of the person operating the aircraft,” an operator could not rely on another person to satisfy the visual line of sight requirement. See id. (emphasis added). While the statute would not preclude using an observer to augment the safety of the operation, the operator must be able to view the aircraft at all times.
(For purposes of the visual line of sight requirement, “operator” means the person manipulating the model aircraft’s controls.)

Simply put, the operator must:

  • Have "eyes-on" and be able to see the aircraft at all times.
  • Cannot use another person to meet this requirement.
  • Cannot have their view of the aircraft aided by binoculars or other aids to vision.
  • Cannot use "First Person View" (FPV) goggles. Yes, I know that the AMA's Safety Code says that you can use FPV goggles. They are wrong to the extent that you cannot use them anywhere that the FAA controls, which is outdoors. Indoors, members adhere to the AMA's Safety Code voluntarily, or perhaps to the extent that they wish to participate in AMA-sponsored events.

(3)flown for hobby or recreational purposes.

Similarly, the FAA expands on this:

The statute requires model aircraft to be flown strictly for hobby or recreational purposes. Because the statute and its legislative history do not elaborate on the intended meaning of “hobby or recreational purposes,” we look to their ordinary meaning and also the FAA’s previous interpretations to understand the direction provided by Congress. A definition of “hobby” is a “pursuit outside one's regular occupation engaged in especially for relaxation.” Merriam-Webster Dictionary, available at www.merriam-webster.com (last accessed June 9, 2014). A definition of recreation is “refreshment of strength and spirits after work; a means of refreshment or diversion.” Id. These uses are consistent with the FAA’s 2007 policy on model aircraft in which the Agency stated model aircraft operating guidelines did not apply to “persons or companies for business purposes.”

Any operation not conducted strictly for hobby or recreation purposes could not be operated under the special rule for model aircraft. Clearly, commercial operations would not be hobby or recreation flights. Likewise, flights that are in furtherance of a business, or incidental to a person’s business, would not be a hobby or recreation flight.

Or, in short, the flight must be purely for recreation - which by definition means that any flight for any purpose other than recreation does not meet the criteria for operation as a "model aircraft" under the Special Rule/Sec 336/Part 101(E).

So, that defines a model aircraft. What rules pertain to model aircraft?

Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

(1)the aircraft is flown strictly for hobby or recreational use;
(2)the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3)the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4)the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5)when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

Essentially what this section says is that the FAA may not - from the time this became law - create an rule regarding a model aircraft (which we already defined above) as long as (and let's take these one by one):

(1)the aircraft is flown strictly for hobby or recreational use;

This was discussed above.

(2)the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

This has been the subject of much debate. Essentially, the only legitimate CBO as of this writing is the Academy of Model Aeronautics. Many have opined that any organization - even a Facebook Group - could be designated as a "nationwide community-based organization" - and, indeed, some organizations (such as the Drone User Group have published safety guideline that they say meets the requirements. However, Congress was very specific in what they considered to be a legitimate CBO - you have to read the Conference Report to find it, however:

In this section the term ‘‘nationwide community-based organization’’ is intended to mean a membership based association that represents the aeromodeling community within the United States; provides its members a comprehensive set of safety guidelines that underscores safe aeromodeling operations within the National Airspace System and the protection and safety of the general public on the ground;
develops and maintains mutually supportive programming with educational institutions, government entities and other aviation associations; and acts as a liaison with government agencies as an advocate for its members.

Drone User Group does not appear to meet most of these requirements.

(3)the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

Basically, the model must be under 55 pounds.

(4)the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft;

This is fairly self-explanatory; you have a requirement to "see and avoid" manned aircraft.

(5)when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

Simply put, if you plan to fly within 5 miles of an airport, you must notify the airport management AND the tower - if the airport has one - before you fly. However, either the airport or the tower can object to your flight, in which case, you cannot fly. Unfortunately, the FAA only makes this clear in the aforementioned Interpretation:

Finally, the statute sets a requirement for model aircraft operating within 5 miles of an airport to notify the airport operator and control tower, where applicable, prior to operating. If the model aircraft operator provides notice of forthcoming operations which are then not authorized by air traffic or objected to by the airport operator, the FAA expects the model aircraft operator will not conduct the proposed flights. The FAA would consider flying model aircraft over the objections of FAA air traffic or airport operators to be endangering the safety of the NAS.

Unfortunately, many have concluded that, based solely on the text of the section, that the airport operator and tower have no say, and cannot object to the flight. This is patently mistaken.

The notification requirement in general has also been the source of confusion. There have been numerous reports of airport operators and towers who either did not understand the reason why they were being notified, became angry at being contacted, or outright denied any and all flight activities for no valid reason. Some simply never answered the phone. Some airports appear on aviation charts but are, in fact, permanently closed. At least one "seaplane base" near my home was actually a private residence on a lake where the owner docked his seaplane. The seaplane base was no longer in operation - the owner had died in a plane crash some years ago. There is no guidance on what course of action is to be taken when an airport cannot be notified despite the model aircraft operator's best faith efforts.

Finally, there is this section:

(b)Statutory construction
Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

This covers all manner of Federal Air Regulations such as those governing Temporary Flight Restrictions - TFRs - which prohbit some or all flight within a given area for a specific time period. Some are event related - such as over sports stadiums during games. Others are related to movements of VIPs such as the President of the United States. If the TFR says that model aircraft cannot fly, then they are prohibited from flight in that area until the TFR is lifted.

Enforcement

One of the common arguments from the uninformed holds that the FAA's regulations (or just the model regulations) are only guidelines; and that they cannot be enforced. Sometimes the genesis of this assertion is the language in the FMRA stating that the FAA cannot promulgate new regulations regarding model aircraft. However, the Federal Aviation Regulations are indeed law - 14 CFR - and can hold civil or criminal penalties for violations. While criminal prosecutions are generally reserved for intentional safety-related violations (just ask anyone who disregarded the instructions of a crewmember aboard a commercial flight or made a bomb-related joke), there are many safety issues inherent to model flight, such as interference with manned aircraft or violating a TFR - something the FAA takes a very dim view of.

Summary

Operating a model aircraft legally and safely is easy once you understand how the current messy regulations are laid out, what they mean, and how the FAA interprets them. Join me next time, when I'll examine the rules for non-recreational UAS flight under Part 107.

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