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New Rulemaking Creates Uncertainty for Model Aircraft Flyers

With all the media attention focused on the new commercial small UAS rules finally issued by the FAA last week, scant attention has been paid to the changes made by the same rulemaking effort to hobby or recreational flying regulations. But the changes are significant. And worrisome.

The FAA has added model aircraft flying requirements to Part 101 of the Federal Aviation Regulations, adding recreational drone flying to already existing rules for moored balloons, kites and so on. The new regulations basically incorporate statutory language from Section 336 of the FAA Reauthorization and Modernization Act of 2012. But the incorporation is not a simple transfer of statutory requirements to regulatory form. That is because the statutory language of FMRA Section 336 was never directed at model aircraft flyers but at the FAA: “…the [FAA] may not promulgate any rule or regulation regarding a model aircraft…if”, the statute then lists the very requirements that have now been made regulatory. So a requirement that previously only applied to the FAA has been made a regulatory requirement binding on model aircraft flyers.

I would argue that this new rule — disguised as a reiteration of a Congressional mandate — in fact violates the proscription on promulgating new rules. But the likelihood of someone challenging this rule is remote. This means that model aircraft flyers are considered to be operating under Part 101 — instead of Part 107 with its requirement for a remote pilot certificate — only if they can meet each and every one of the specific requirements that Congress enumerated as prohibiting FAA rulemaking:

(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)).

Failing to meet anyone of these requirements, even unintentionally, could expose a hobby flyer to FAA penalties for violating Part 107. Yes, that’s correct. By FAA’s enforcement reasoning, if you don’t meet a Part 101 requirement you will be deemed to be required to operate under Part 107 – which if you happen not to hold a Part 107 certificate or meet the other Part 107 requirements, will subject you to an $1100 per regulation per flight civil penalty.

One concern I have is how exactly do you know whether you’re flying “in accordance with a community based set of safety guidelines” or “within the programming of a community-based organization”? Everyone assumes the AMA fits the CBO definition but the problem is there is no CBO definition. And what if you don’t want to be an AMA member and belong to a different drone group?

The FAA states in the rule’s preamble that a definition of a CBO is beyond the scope of this rulemaking. So that leaves all us hobby flyers uncertain as to whether we will be able to continue to fly our model aircraft as hobby flyers once the new Part 101 and 107 rules go into effect in August.

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