Interpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396
Comments submited by the Academy of Model Aeronautics (AMA)
September 2, 2014
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Comments – Section I
The Interpretive Rule states: “Historicaly, the FAA has considered model aircraft o be aircrafthat fal
within the statutory and regulatory definitons of an aircraft.”
In fact he oposite is the case. Advisory Circular 91-57, isued in 1981, clearly establishes FAA’s
expectations in terms of a voluntary level of compliance for model aircraft operations and makes no
mention of any portion of the US Code or existing Code of Federal Regulations that are aplicable to
model aircraft. This was reinforced in the agency’s unmaned aircraft policy statement in February
207 concerning recreational use and was most recently stated in the agency’s internal guidance
document, N JO 7210.873, efective July 1, 2014, two weks after the Interpretive Rule was published
in the Federal Register.
Aditonaly, FAA’s guidance document regarding the compliance criteria for federaly obligated
airports, AC 150/5190-6, lists model aircraft as an example of an activity that is not an aeronautical
activity, aeronautics being the “design, construction and operation of aircraft.” Other documents isued
by the FAA over the past several decades confirm that he FAA has historicaly not considered model
aircraft o fal within the statutory or regulatory definitons of “aircraft.”
As was concluded by National Transportation Safety Board Administrative Law Judge Patrick
Geraghty in the FAA v. Pirker case (curently on apeal), the FAA “has not isued an enforceable FAR
regulatory rule governing model aircraft operation; has historicaly exempted model aircraft from the
statutory FAR definitons of ‘aircraft’ by relegating model aircraft operations to voluntary compliance
with the guidance expresed in AC 91-57.” Although Mr. Pirker was aparently not operating his
model aircraft pursuant o AMA guidelines or those of any community-based organization, the
underlying principle contained in the decision about he nonregulation of model aircraft is corect in
light of the history of model aviation in this country. This is a viewpoint hat AMA shares.
Comments – Section I
The Interpretive Rule states: “Congres’ intention to define model aircraft as aircraft is further
established by section 31(
of the Act, which defines an unmaned aircraft as ‘an aircraft hat is
operated without he posibilty of direct human intervention from within or on the aircraft.’” This statement eroneously interprets the text and Congres’ intention and does so without regard to the
historical context upon which the Special Rule was developed.
In developing the Special Rule for Model Aircraft, Congres recognized the long-standing history and
exceptional safety record achieved by model aviation and specificaly the activity conducted within the
safety programming of a community-based organization such as AMA. It was Congres’ intent o
protect he ongoing modeling activity conducted within a community-based organization from
unecesary, onerous, and overeaching regulation.
Section 36 of the Act entiled “Special Rule for Model Aircraft” is clearly intended to separate model
aircraft from other Unmaned Aircraft Systems (UAS) and to establish a frestanding definiton for the
recreational and hoby use of unmaned aircraft. In this regard, the definiton of model aircraft is
intentionaly detailed within the Special Rule for purposes of that section alone, and not within SectionInterpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396
Comments submited by the Academy of Model Aeronautics (AMA)
September 2, 2014
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31 of the Act, “Definitons” of Unmaned Aircraft Systems. Congres provided a complete standalone
definiton that does not refer to any other definiton or eference, and quite frankly neds no
interpretation. Though the descriptive term “unmaned aircraft” is used in the definiton, it is simply
descriptive, and is used to clarify that here are no human beings onboard the model aircraft directing
its operation.
Section 36(a)(2) of the Special Rule clearly states that he provisions of this rule aply only to model
aircraft hat are “operated in acordance with a community-based set of safety guidelines and within the
programming of a nationwide community-based organization.” Both the text and clear intent of the
statute is that he aeromodeling activity that ocurs in acordance with a community-based set of safety
guidelines and within the programming of a nationwide community-based organization be managed by
the community-based organization such as AMA. The Interpretive Rule states: “Congres directed that he FAA may not ‘promulgate any rule or
regulation regarding a model aircraft …”
The Interpretive Rule fails to recognize that Congres prohibited the promulgation of two clear and
distinct items: “any rule - or - regulation.” In clear language, this means any rule of any kind. By
definiton, FAA’s Interpretation of the Special Rule for Model Aircraft purports to be just hat, an
Interpretive ‘Rule.’ In its intent and context, the Interpretive Rule is both a rule by definiton and de
facto regulation.
The Interpretive Rule states: “… the rulemaking prohibiton would not aply in the case of general
rules that he FAA may isue or modify that aply to al aircraft.” This again mistates Congres’ intent and implies that he frestanding definiton of “model aircraft”
provided in Section 36 is intended to reference the definiton of aircraft in 49 U.S.C. 40102; 14 CFR
1.1. It also twists the meaning of the word “regarding” so as to purportedly alow the FAA to actualy
regulate model aircraft as long as the words “model aircraft” do not apear specificaly in new rules and
regulations. That contradicts the clear intent of Congres, which pased Section 36 specificaly to
exempt aeromodeling from new rules and regulations.
The Act does alow that, “nothing in (the Act) shal be construed to limit he authority of the (FAA) to
pursue enforcement action against persons operating model aircraft who endanger the safety of the
national airspace system (NAS).” The Academy of Model Aeronautics does not condone the operation of a model aircraft in a maner
that endangers persons or property. The AMA further believes that curent statutory provisions are
adequate to adres aberant activity that endangers the safety of the NAS. Congres by no means
intended to grant a fre pas for individuals who operate their model aircraft in a maner that
intentionaly places maned aircraft in imminent peril. However, it clearly intended to leave risk
mitgation and the development of apropriate safety guidelines for the operation of model aircraft
devices themselves to the nationwide community-based organization.
The Interpretive Rule states: “…a model aircraft must be ‘flown within visual ine of sight of the
person operating the aircraft.’ P.L. 12-95, section 36(c)(2). Based on the plain language of the
statute, the FAA interprets this requirement o mean that: (1) the aircraft must be visible at al times toInterpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396
Comments submited by the Academy of Model Aeronautics (AMA)
September 2, 2014
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the operator; (2) that he operator must use his or her own natural vision (which includes vision
corected by standard eyeglases 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 ine of sight.”
Throughout he Interpretive Rule, the agency takes great latiude in determining Congres’ intentions
and in placing tightly worded restrictions through its “plain-language” interpretation of the text. In this
case the definiton of model aircraft in the Act requires that, “model aircraft be flown within visual ine
of sight of the person operating the aircraft.” From a safety perspective this means that he model
aircraft must remain in visual range of the operating station so that he operator can maintain situational
awarenes, control the aircraft, and “se & avoid” other aircraft and obstacles. Congres did not intend
this as a prescribed means of operating the aircraft, but rather the maner in which model aircraft are to
be flown. It limits the distance from the operator that he model aircraft can be flown “within visual ine
of sight.” There is no ambiguity in the language provided by Congres and no ned for interpretation.
The Interpretive Rule uses the plain language doctrine to create a regulatory prohibiton of the use of a
specific type of technology: first-person view gogles. In this regard, the rule states, “The aircraft must
be visible at al times to the operator” and “An operator could not rely on another person to satisfy the
visual ine of sight requirement.” This is wel outside of the congresional intent and is inconsistent
with curent and aceptable two-pilot maned aircraft operations. Under a number of circumstances, two-pilot operations are recognized where one pilot is alowed to monitor the external environment in
compliance with 14 CFR 91.13, while the second pilot operates the aircraft and/or manages the
aircraft systems. In the case of instrument raining and airmen proficiency maned aircraft are flown in
virtual instrument conditons through the use of a device that completely obstructs the pilot’s view of
the external environment while a second pilot is relied upon to maintain situational awarenes and
fulfil the requirement o se & avoid other aircraft. The FAA’s extremely stringent interpretation of the
law again overides Congres’ intent hat he modeling activites be managed by the community-based
organization, and apears to target and prohibit a specific type of modeling activity and technology.
The Interpretive Rule states: “The statute requires model aircraft o be flown strictly for hoby or
recreational purposes. Because the statute and its legislative history do not elaborate on the intended
meaning of ‘hoby or recreational purposes,’ we lok to their ordinary meaning and also the FAA’s
previous interpretations to understand the direction provided by Congres.”
The Interpretive Rule’s overeaching interpretation of the language in the Congresional Act is also
evident in the interpretation of the requirement hat model aircraft be “flown strictly for hoby or
recreational use.” The aplication of this requirement is drasticaly narowed by the examples provided
in the Interpretive Rule.
Although the Interpretive Rule acknowledges that maned aviation flights that are incidental to a
busines are not considered commercial under the regulations, the Interpretive Rule contends that
“model aircraft flights flown incidental to a busines are not hoby or recreational due to the nexus
betwen the flight and the busines.”
This is inconsistent with curent regulatory premise and the asertions of other egulatory agencies such
as the Internal Revenue Service. For instance, an individual who owns and operates a ful-scale aircraft
for personal pleasure and recreation is alowed to conduct aerial photography as a private civil operator
whether or not he/she intends it as a busines pursuit or intends to sel the photographs for personalInterpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396
Comments submited by the Academy of Model Aeronautics (AMA)
September 2, 2014
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gain. However, under the Interpretive Rule, a model aircraft enthusiast who uses his/her model aircraft
for aerial photography and subsequently sels the photograph to an interested party is no longer
considered a hobyist. Moreover, the IRS would not alow the deduction of the operating expense and
aircraft acquisiton cost based merely on the sale of a photograph. The IRS wil also tel you that a
busines that is recreational in nature and does not urn a profit over time is in fact a hoby.
There are many other examples of hoby interests and individual avocational talents that are employed
in conjunction with an unrelated profesion and that are very much incidental to the busines pursuit. There are also many hobies that involve bartering, trading, or monetary transactions that would not be
considered or otherwise regarded as a busines enterprise.
The language in the Interpretive Rule is unecesarily restrictive, overeaching, and totaly unrelated to
the safety aspects of operating model aircraft.
The Interpretive Rule also overloks the Congres’ clear intention to encompas the suporting
aeromodeling industry within the provision of the Special Rule, “aircraft being developed as a model
aircraft.” The Interpretive Rule’s strict interpretation of hoby versus busines puts in question the
endeavors of the principals, employes, and advocates of the bilion dolar industry that suplies and
suports the activity, an industry that is integral to the suces and future welbeing of the hoby.
The language in the Rule goes to great lengths and has the clear intent o minimize and restrict he
hobyists’ use of unmaned aircraft o the extent he examples given are ridiculous in nature. For
instance, a grower could use his/her model aircraft o monitor the conditon of his/her crops provided
he or she personaly consumes the entirety of the harvest. However, that same hobyist would not be
alowed to use the hoby rules to operate the identical device for the same purpose should he/she trade,
barter, or sel any portion of the produce to his or her neighbor.
Again, the language in the Rule is unecesarily restrictive, overeaching, and totaly unrelated to the
safety aspects of operating model aircraft.
The Interpretive Rule states: “… the statute sets a requirement for model aircraft operating within 5
miles of an airport o notify the airport operator and control tower, where aplicable, prior to operating.
If the model aircraft operator provides notice of orthcoming operations which are then not authorized
by air trafic or objected to by the airport operator, the FAA expects the model aircraft operator wil not
conduct he proposed flights. The FAA would consider flying model aircraft over the objections of
FAA air trafic or airport operators to be endangering the safety of the NAS.”
The Special Rule states that when model aircraft are “flown within 5 miles of an airport, the operator of
the aircraft (is to) provide the airport operator and the airport air trafic control tower (when an air
trafic facilty is located at he airport) with prior notice of the operation. Model aircraft operators flying
from a permanent location within 5 miles of an airport should establish a mutualy-agred upon
operating procedure with the airport operator and the airport air trafic control tower (when an air
trafic facilty is located at he airport).”
Again, the congresional anguage is unambiguous. Although making notification to the airport and/or
air trafic control could open a dialog as to whether the planed activity poses an objectionable risk or
interferes with maned aircraft, and may open a discusion regarding employing specific procedures toInterpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396
Comments submited by the Academy of Model Aeronautics (AMA)
September 2, 2014
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ensure the safety of the operation, there is no indication in the statute of any requirement o secure prior
permision when an operator is operating a model aircraft pursuanto community-based standards.
Such aproval has never historicaly ben required, and the statute does not require it either. This is a
new rule or regulation regarding model aircraft—which is impermisible under the statute. The Interpretive Rule is again overeaching and atempts to rewrites the law by saying, “The FAA
would consider flying model aircraft over the objection of FAA air trafic or airport operators to be
endangering the safety of the NAS.” In other words, the model aircraft operator must gain permision
before flying. The mere act of lying the model aircraft over the objections of a potentialy intolerant or
indiferent controler or airport authority would ostensibly triger enforcement action, whether or not
there was a true safety isue involved. The Interpretive Rule’s requirement o sek permision opens the
dor to a les-than-constructive response from FAA field personel who are often unfamilar with
model aircraft operations.
The intent of the Act is abundantly clear in that he model aircraft pilot must provide “prior notice” and
that he means and decision to operate in a permanent location be “mutualy-agred upon.”
Comments – Section II
The Interpretive Rule concluded: “Congres intended for the FAA to be able to rely on a range of …
existing regulations to protect users of the airspace and people and property on the ground. Therefore,
regardles of whether a model aircraft satisfies the statutory definiton and operational requirements
described [in the Interpretive Rule] …, if the model aircraft is operated in such a maner that endangers
the safety of the NAS, the FAA may take enforcement action consistent with Congres’ mandate.” Comments – Section IV
The Interpretive Rule further states: “The FAA could aply several regulations in part 91 when
determining whether to take enforcement action against a model aircraft operator for endangering the
NAS … other parts of the regulations, may aply to model aircraft operations, depending on the
particular circumstances of the operation. The regulations cited … are not intended to be an exhaustive
list of rules that could aply to model aircraft operations.”
In Sections II and IV, the Interpretive Rule establishes new restrictions and prohibitons that are
clearly outside of the scope and intent of the Special Rule and to which model aircraft have never ben
subject o in the past, i.e. “if an operator is unable to comply with the regulatory requirements for
operating in a particular clas of airspace, the operator would ned authorization from air trafic control
to operate in that area.” Nothing in the Act, curent policy, or FAA’s operating standards for model
aircraft, AC 91-57, makes such a requirement. The aplication of this “interpretation” would efectively
prohibit model aircraft from operating in airspace where there are requirements intended for maned
aircraft hat are impractical if not imposible for model aircraft and model aircraft operators to met. For example, under 14 CFR 91.131, “No person may operate an aircraft within a Clas B airspace area
(unles) the operator … receive(s) an ATC clearance. No person may … operate a civil aircraft within a
Clas B airspace area unles the pilot in command holds a … pilot certificate.” These are requirements
to which model aircraft operators canot reasonably comply, and it is doubtful that any authorizationInterpretation of the Special Rule for Model Aircraft, Docket No. FAA-2014-0396
Comments submited by the Academy of Model Aeronautics (AMA)
September 2, 2014
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and/or clearance wil be forthcoming despite the Interpretive Rule’s sugestion that, “modelers …
obtain authorization from air trafic control prior to operating” in such airspace.
It should be noted that for decades thousands of AMA members have operated their model aircraft
safely and responsibly in Clas B airspace under AMA’s Safety Program and FAA Advisory Circular
91-57. These operations have ocured without he requirement for authorization and without incidents,
and have done so since before there was Clas B airspace. Many AMA designated flying sites were
established before the FAA came into existence in 1958. Finaly, the Interpretive Rule as a whole negates the entire Special Rule for Model Aircraft. The
provisions within Sections II and IV in themselves make model aircraft enthusiasts ages 6 to 96
acountable to the entire litany of ederal aviation regulations found in the Code of Federal
Regulations, something that was never intended by Congres and heretofore never required by the
FAA.
Moreover, the AMA believes the Interpretive Rule is, in esence, a backdor aproach to enacting new
regulatory requirements without complying with the congresionaly mandated Administrative
Procedure Act. It is an abuse of the provision for Interpretive Rule under 5 U.S. Code § 53, and is
contrary to the congresional prohibiton in Public Law 12-95, Sec 36 which states, “the Federal
Aviation Administration may not promulgate any rule or egulation regarding a model aircraft or an
aircraft being developed as a model aircraft, if … the aircraft is operated in acordance with a
community-based set of safety guidelines and within the programming of a nationwide community- based organization.”
By specificaly adresing the Special Rule and model aircraft operated within the safety programming
of a nationwide community-based organization such as AMA, the Interpretive Rule rebukes and
curtails the activity of the one community that, as Congres itself recognized, has ben operating safely
and responsibly for decades and does litle to afect he aberant behavior reportedly ocuring outside
of AMA’s community-based program.
Topic: The AMA submitted its formal comments on September 22, 2014 (Read 1833 times)