FAA issues Notice re UAS Enforcement/ Education

by | Apr 8, 2015 | FAA, Legal, UAS, Unmanned Aerial Vehicles

FAA DIRECTOR OF FLIGHT STANDARDS SERVICE ISSUES NOTICE RELATING TO ENFORCEMENT/ EDUCATION IN TERMS OF UAS OPERATIONS

FAA NOTICE N8900.292

On April 8, 2015, the FAA issued FAA Notice N8900.292 relating to a National Policy concerning Aviation-Related Videos or Other Electronic Media on the Internet depicting UAS operations. The audience for the Notice consists of various Flight Standards District Offices throughout the United States, and Flight Standards Branches and Divisions in Regions of FAA Headquarters. The background discussed in the Notice is the fact that a number of UAS operations have appeared on the internet as videos which may be suggestive of using unmanned aircraft systems for commercial purposes without a waiver issued by the FAA. According to the Notice, FAA personnel charged with enforcing aviation safety are encouraged to em- ploy education as a means of ensuring compliance with the Federal Aviation Regulations and employ legal action or adminis- trative action only when “necessary to maintain safety within the NAS (National Airspace System).”

The Notice is issued in conjunction with FAA Notice N8900.268, Education, Compliance, and Enforcement of Un- authorized, Unmanned Aircraft Systems Operators.

Appended to FAA Notice N8900.292 is a letter marked Appendix A, the Notice reciting: “The letter must not be altered other than to fill in the appropriate address of the operator in the FSDO along with your contact information and signa- ture.”

FAA aviation safety inspectors are to follow the guidance in FAA Order 8900.1, Flight Standards Information Man- agement System (FSIMS), Volume 14, and also the FAA Enforcement Handbook, FAA Order 2150.3.

FAA personnel are cautioned that electronic media posted on the internet must be authenticated. They also cau- tioned that electronic media on the internet is “ordinarily not sufficient evidence alone to determine that an operation is not in compliance with 14 C.F.R…” Further, FAA personnel are cautioned that aviation safety inspectors “have no authority to direct or suggest that electronic media posted on the internet must be removed.” The Notice also declares: “Electronic media posted on a video website does not automatically constitute a commercial operation or commercial purpose, other than non- hobby or non-recreational use.”

The author of the Notice is John S. Duncan, Director, Flight Standards Service, and questions about the Notice should be directed to Ronald Forsyth, Commercial Operations Branch, AFS-820, or ronald.a.forsyth@faa.gov.

AN EXAMINATION OF THE INFORMATION TEMPLATE LETTER FOR AVIATION SAFETY INSPECTORS CONCERNING UAS OPERATIONS

Exhibit A to FAA Notice N8900.292 is a template letter that is to be employed by aviation safety inspectors in an unaltered manner. The author of the letter recites that an aircraft is defined as “any contrivance invented, used, or designed to navigate, or fly in the air.” 49 U.S.C. §40102(a)(6). Similar language appears in the definitions of 14 C.F.R. §1.1. The FAA

takes the position that any operation of an aircraft may be subject to enforcement action under 14 C.F.R. §91.13 that deals with the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another.

The sample letter written for distribution by FAA personnel recites that there is a distinction between hobby or recreational purposes and other purposes. The author of the letter further maintains that under Public Law (PL) 112-95, “model aircraft” operations are conducted solely for hobby or recreational purposes. Under §336(c) of Public Law 112- 95, an unmanned aircraft (1) is capable of sustained flight in the atmosphere, (2) is flown within visual line of sight of the person operating the aircraft, and (3) is flown for hobby or recreational purposes.

The author of the letter appended to the Notice declares that the FAA is restricted from conducting further rule making specific to model aircraft defined in §336(c) of Public Law 112-195 so long as the aircraft meets the require- ments of §336(a), to-wit: (1) that the aircraft is flown strictly for hobby or recreational use; (2) if the aircraft is operated in accordance with a community-based set of safety guidelines; (3) that the model aircraft does not weigh more than 55 pounds unless certified through a design, construction, inspection, flight test, and operational safety program; (4) the aircraft is operated in a manner that does not interfere manned aircraft; and (5) the model aircraft, when flown within five miles of an airport necessitates that prior notice by the operator be given to the operator of the airport and air traffic control personnel. The FAA maintains that even in the case of model aircraft, it has the authority to take enforcement action in the event operations endanger safety in the National Airspace System.

The author of the letter appended to the Notice takes the position that UAS operations are not model aircraft operations. UAS operations require that issuance of a certificate of waiver or authorization (COA) and (2) the issuance of a special airworthiness certificate under 14 C.F.R. Part 21. The contents of the letter recites there is a third avenue for operation of UAS, and this applies in the event the operator obtains an exemption.

The letter appended to the Notice relates that a certificate of waiver or authorization has historically been pro- vided to government entities. With regard to the airworthiness certification requirements, a special airworthiness certifi- cate must be obtained under 14 C.F.R. Part 21, a reference being made to FAA Order 8130.34, Airworthiness Certifica- tion of Unmanned Aircraft Systems and Optionally Piloted Aircraft. Finally, discussed in the letter appended to the No- tice is the exemption process contemplating that a person desiring relief from the need for a COA and a special airwor- thiness certificate may apply for an exemption under 14 C.F.R. Part 11. The petition for exemption must demonstrate that the issuance of the waiver is in the public interest and must demonstrate reasons why granting the petition will not adversely affect safety and will provide a level of safety equal to the rules from which exemption is sought. The contents of the letter indicate that §333 of Public Law 112-95 may afford a basis for the issuance of a waiver. In all cases, how- ever, when UAS operations are not operated pursuant to a waiver or as model aircraft under §336, the FAA has taken the position that flights currently allowed by the FAA’s regulations require (1) a certificated aircraft, (2) operated by a certi- ficated pilot, and (3) with specific FAA authorization.

SUMMARY AND CONCLUSION

The FAA’s response to the explosion of UAS operations has met with criticism by those who would endeavor to employ unmanned aircraft systems in commercial applications. With the vast supply of UAS systems employing video technology, without doubt, there has been an explosion of UAS video recordings on the internet depicting all sorts of filming from and of these devices. To preclude an explosion in litigation arising out of these video images posted on the internet, the Director of the FAA Flight Standards Service has directed FAA personnel charged with enforcing the regulations do so in a restrained manner in hopes of ensuring compliance with the Federal Aviation Regulations without the necessity of initiating numerous FAA enforcement actions.

According to the Notice, FAA policy on this subject matter will be incorporated into FAA Order 8900.1 before the Notice expires on April 8, 2016.

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