Hobby Rules for Class B Airspace

[Kcgunesq]

All of my searches on this subject turn up with results that (a) predate Taylor, and/or (b) cite to Airspace Restrictions.

So post Taylor, what source of law authorizes the FAA to have any rule or regulation treating Class B airspace differently from other areas? Additionally, what regulations, valid, invalid or questionably valid, does the FAA actually have on the matter, other than simple, non-binding statements as to "best practices" or what one "should" do.

 

[Mark The Droner]

The following is my understanding:

Re the first Q, that would be 112-95 sec 336 (b).

https://www.faa.gov/uas/media/Sec_331_336_UAS.pdf

Re the second Q, that would be Part 101.43.

eCFR — Code of Federal Regulations

 

[FLYBOYJ]

Code of federal Regulations (CFR) Title 14 Part 91.131

§91.131 Operations in Class B airspace.
(a) Operating rules. No person may operate an aircraft within a Class B airspace area except in compliance with §91.129 and the following rules:

(1) The operator must receive an ATC clearance from the ATC facility having jurisdiction for that area before operating an aircraft in that area.

(2) Unless otherwise authorized by ATC, each person operating a large turbine engine-powered airplane to or from a primary airport for which a Class B airspace area is designated must operate at or above the designated floors of the Class B airspace area while within the lateral limits of that area.

(3) Any person conducting pilot training operations at an airport within a Class B airspace area must comply with any procedures established by ATC for such operations in that area.

(b) Pilot requirements. (1) No person may take off or land a civil aircraft at an airport within a Class B airspace area or operate a civil aircraft within a Class B airspace area unless—

(i) The pilot in command holds at least a private pilot certificate;

(ii) The pilot in command holds a recreational pilot certificate and has met—

(A) The requirements of §61.101(d) of this chapter; or

(B) The requirements for a student pilot seeking a recreational pilot certificate in §61.94 of this chapter;

(iii) The pilot in command holds a sport pilot certificate and has met—

(A) The requirements of §61.325 of this chapter; or

(B) The requirements for a student pilot seeking a recreational pilot certificate in §61.94 of this chapter; or

(iv) The aircraft is operated by a student pilot who has met the requirements of §61.94 or §61.95 of this chapter, as applicable.

(2) Notwithstanding the provisions of paragraphs (b)(1)(ii), (b)(1)(iii) and (b)(1)(iv) of this section, no person may take off or land a civil aircraft at those airports listed in section 4 of appendix D to this part unless the pilot in command holds at least a private pilot certificate.

(c) Communications and navigation equipment requirements. Unless otherwise authorized by ATC, no person may operate an aircraft within a Class B airspace area unless that aircraft is equipped with—

(1) For IFR operation. An operable VOR or TACAN receiver or an operable and suitable RNAV system; and

(2) For all operations. An operable two-way radio capable of communications with ATC on appropriate frequencies for that Class B airspace area.

(d) Other equipment requirements. No person may operate an aircraft in a Class B airspace area unless the aircraft is equipped with—

(1) The applicable operating transponder and automatic altitude reporting equipment specified in §91.215 (a), except as provided in §91.215 (e), and

(2) After January 1, 2020, the applicable Automatic Dependent Surveillance-Broadcast Out equipment specified in §91.225.

[Doc. No. 24458, 56 FR 65658, Dec. 17, 1991, as amended by Amdt. 91-282, 69 FR 44880, July 27, 2004; Amdt. 91-296, 72 FR 31678, June 7, 2007; Amdt. 91-314, 75 FR 30193, May 28, 2010]

And of Course FAR 101 Subpart E

Subpart E—Special Rule for Model Aircraft
Source: Docket FAA-2015-0150, Amdt. 101-9, 81 FR 42208, June 28, 2016, unless otherwise noted.


§101.41 Applicability.
This subpart prescribes rules governing the operation of a model aircraft (or an aircraft being developed as a model aircraft) that meets all of the following conditions as set forth in section 336 of Public Law 112-95:

(a) The aircraft is flown strictly for hobby or recreational use;

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

(c) 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;

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

(e) 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.



§101.43 Endangering the safety of the National Airspace System.
No person may operate model aircraft so as to endanger the safety of the national airspace system.

 

[FLYBOYJ]

Bottom line - if you're flying a manned aircraft or sUAV into controlled airspace you'd better have authorization.

 

[Kcgunesq]

The following is my understanding:

Re the first Q, that would be 112-95 sec 336 (b).

https://www.faa.gov/uas/media/Sec_331_336_UAS.pdf

Re the second Q, that would be Part 101.43.

eCFR — Code of Federal Regulations

Perhaps I'm just not seeing it, but I don't see anything in either link that says hobby flown drones are prohibited from Class B airspace. Regarding the first link, we have the well known language that states:

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. . .

(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)).

I don't see any basis for concluding that the FAA can restrict hobby flights in Class B airspace. Of particular note, the highlighted text was the basis for the court's holding in Taylor.

As for the second citation - presumably you are referring to the following text:

Subpart E—Special Rule for Model Aircraft
Source: Docket FAA-2015-0150, Amdt. 101-9, 81 FR 42208, June 28, 2016, unless otherwise noted.

Back to Top

§101.41 Applicability.
This subpart prescribes rules governing the operation of a model aircraft (or an aircraft being developed as a model aircraft) that meets all of the following conditions as set forth in section 336 of Public Law 112-95:

(a) The aircraft is flown strictly for hobby or recreational use;

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

(c) 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;

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

(e) 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.

Again - I don't see anything that states Class B airspace is off limits to hobby fliers. Additionally, even if this regulation has somehow been interpreted as providing such a restriction, one should note its passage pre-dates Taylor and accordingly, would be suspect.

 

[Kcgunesq]

Code of federal Regulations (CFR) Title 14 Part 91.131

§91.131 Operations in Class B airspace.
(a) Operating rules. No person may operate an aircraft within a Class B airspace area except in compliance with §91.129 and the following rules:

[snip]

And of Course FAR 101 Subpart E

Subpart E—Special Rule for Model Aircraft
Source: Docket FAA-2015-0150, Amdt. 101-9, 81 FR 42208, June 28, 2016, unless otherwise noted.


§101.41 Applicability.
This subpart prescribes rules governing the operation of a model aircraft (or an aircraft being developed as a model aircraft) that meets all of the following conditions as set forth in section 336 of Public Law 112-95:

[snip]


§101.43 Endangering the safety of the National Airspace System.
No person may operate model aircraft so as to endanger the safety of the national airspace system.

As to 91.131 - what is the authority for applying this section to hobby flights of model aircraft?
As to subpart E - as in my prior reply - where do you see the authorization for the FAA to impose distinct Class B restrictions?
As to 101.43 - fully agree that if a flight actually endangers the NAS, the hobby flyer would have a problem. But not all flights in Class B airspace will endanger the NAS.

 

[Kcgunesq]

Bottom line - if you're flying a manned aircraft or sUAV into controlled airspace you'd better have authorization.

That's not a bottom line. It isn't even a starting point. It might be common wisdom. It may even be sound practical advice. But I am asking about the law.

 

[FLYBOYJ]

As to 91.131 - what is the authority for applying this section to hobby flights of model aircraft?
As to subpart E - as in my prior reply - where do you see the authorization for the FAA to impose distinct Class B restrictions?
As to 101.43 - fully agree that if a flight actually endangers the NAS, the hobby flyer would have a problem. But not all flights in Class B airspace will endanger the NAS.

You are operating an aircraft, be it a sUAV in controlled airspace. The CFRs are the law. It doesn't matter if you're endangering anything or anyone within class B, if you bust the airspace and get caught, there's a good chance you will be violated. The Feds will apply 91.131 to your hobby aircraft if you violate the FAR.

That's not a bottom line. It isn't even a starting point. It might be common wisdom. It may even be sound practical advice. But I am asking about the law.

That is the bottom line. Again, all of of Title 14 is THE LAW and Part 91 airspace violations will be applied to sUAVs, hobby or not. Now I've only been in the aviation business for 40 years and dealing directly with the FAA for about 30, so I think I know a little about this (only the messenger here)

Code of Federal Regulations - Wikipedia

 

[Mark The Droner]

Perhaps I'm just not seeing it, but I don't see anything in either link that says hobby flown drones are prohibited from Class B airspace. ...

I guess you didn't read my post. I'm not referring to sec 336 (a). I'm referring to sec 336 (b).

I'm not referring to Part 101.41. I'm referring to Part 101.43.

Please read my post again.

Hope this helps.

 

[FLYBOYJ]

This is from the FAA FSIMS - it is their policy on how they conduct themselves and how they will interpret the law and take enforcement action. It is basically the "FAA Inspector's Rule Book". Be advised its contents has been reviewed and vetted by an army of lawyers.

http://fsims.faa.gov/PICResults.aspx?mode=EBookContents&restricttocategory=all~menu

Read Volume 16 Chapters 1 through 5

16-4-4-11 ACTION.The FAA could apply several regulations in 14 CFR part 91 when determining whether to take enforcement action against a model aircraft operator for endangering the NAS. Part 91 regulations are the baseline rules that apply to all aircraft operated in the United States with limited exceptions, and are the appropriate rules to apply when evaluating model aircraft operations. When determining which rules are relevant to model aircraft operations, inspectors should consider:

· How the aircraft is operated;
· Operating rules for designated airspace; and
· Special restrictions such as TFRs and Notices to Airmen (NOTAM).

 

[FLYBOYJ]

101.43 Endangering the safety of the National Airspace System.

No person may operate model aircraft so as to endanger the safety of the national airspace system.

Again - if you enter controlled airspace unauthorized you will be considered a "danger to the national airspace system." Hobby drone or not.

 

[BigAl07]

One thing keep in mind... that UAS flight into Class BRAVO airspace is not a given unlike other classes of airspace. It's specifically required for the UAS Operator (Civil or hobby) to get permission (note I didn't say merely notify) from ATC prior to entering Class BRAVO. Key differences are PERMISSION not just "hey letting you know".

 

[BigAl07]

Hobbyists are permitted to fly in Class B Airspace -- with a big BUT attached to it. What you are required to do as a recreational flier is notify the ATC of your intent to fly in that Class B airspace before you launch. BUT, if they deem your location or operation to be a danger to that airspace, they can order you to remain grounded and deny you the flight. They have the authority and responsibility to keep that airspace safe in their view, and it's their view that counts at that moment. Be as polite as you can to them. They might be fine with your location and low altitude if outside of any flight paths. The rule just says "notify", but in essence you are providing them an opportunity to evaluate the situation and stop a dangerous situation from occurring if they view it as that.

This one does require permission:

Airports
Recreational operators are required to give notice for flights within five miles of an airport to both the airport operator and air traffic control tower, if the airport has a tower. However, recreational operations are not permitted in Class B airspace around most major airports without specific air traffic permission and coordination.

(color applied by me to add emphasis to the key phrase)

 

[BigAl07]

All of my searches on this subject turn up with results that (a) predate Taylor, and/or (b) cite to Airspace Restrictions.

So post Taylor, what source of law authorizes the FAA to have any rule or regulation treating Class B airspace differently from other areas? Additionally, what regulations, valid, invalid or questionably valid, does the FAA actually have on the matter, other than simple, non-binding statements as to "best practices" or what one "should" do.

The Taylor ruling has nothing to do with airspace and it's restrictions. Basically is boils to to making Hobby Registration illegal simply because the FAA did not follow the required procedures for implementing "New" rules against hobby operators. I can assure you "Airspace Regulations" are not new rules and do apply to UAS.

If the FAA had not jumped the gun and applied the hobby registration rule using the prescribed methods of notification etc I'm confident it would still be in place today. I also think it will come back around again and this time with more "Bite" than it had before. That's my 2 cents and only my 2 cents.

 

[MapMaker53]

"One thing keep in mind... that UAS flight into Class BRAVO airspace is not a given unlike other classes of airspace. It's specifically required for the UAS Operator (Civil or hobby) to get permission (note I didn't say merely notify) from ATC prior to entering Class BRAVO. Key differences are PERMISSION not just "hey letting you know".

I did not know that, though I knew ATC could deny you. Post with misleading info deleted. Thanks, Al.

 

[BigAl07]

"One thing keep in mind... that UAS flight into Class BRAVO airspace is not a given unlike other classes of airspace. It's specifically required for the UAS Operator (Civil or hobby) to get permission (note I didn't say merely notify) from ATC prior to entering Class BRAVO. Key differences are PERMISSION not just "hey letting you know".

I did not know that, though I knew ATC could deny you. Post with misleading info deleted. Thanks, Al.

My pleasure bud.

Yea BRAVO requires permission while the other classes only require notification but ATC can "Deny" you flight (as correctly stated above) if it poses a potential safety risk to NAS.

 

[Kcgunesq]

101.43 Endangering the safety of the National Airspace System.

No person may operate model aircraft so as to endanger the safety of the national airspace system.

Again - if you enter controlled airspace unauthorized you will be considered a "danger to the national airspace system." Hobby drone or not.

That some flights into class b airspace can endanger the Nas, does not mean that all such flights do so. You seem to make no distinction.

In any event I am not asking what the FAA is saying. I am asking if anyone can point to the source of the FAAs authority.
Just because a federal agency says you must or must not do something doesn't mean they are justified in that position. See Taylor.

Congress can override regulations. Arguably, section 336 did that. Or at least constrained it.

If you are so inclined, please explain why the later passed specific law doesn't change an earlier, general regulation.

For the record, I agree that if you actually endanger the Nas, you have problems. But certainly we can agree that if I am at or below, e.g.,100 feet 2 miles from the runway, any issue won't be caused by the drone.

 

[Kcgunesq]

"One thing keep in mind... that UAS flight into Class BRAVO airspace is not a given unlike other classes of airspace. It's specifically required for the UAS Operator (Civil or hobby) to get permission (note I didn't say merely notify) from ATC prior to entering Class BRAVO. Key differences are PERMISSION not just "hey letting you know".

I did not know that, though I knew ATC could deny you. Post with misleading info deleted. Thanks, Al.

And that is the point of this thread. Where does the FAA's authority to treat class b differently come from given Sec. 336 mandate?

 

[Kcgunesq]

The Taylor ruling has nothing to do with airspace and it's restrictions. Basically is boils to to making Hobby Registration illegal simply because the FAA did not follow the required procedures for implementing "New" rules against hobby operators. I can assure you "Airspace Regulations" are not new rules and do apply to UAS.

If the FAA had not jumped the gun and applied the hobby registration rule using the prescribed methods of notification etc I'm confident it would still be in place today. I also think it will come back around again and this time with more "Bite" than it had before. That's my 2 cents and only my 2 cents.

True, Taylor wasn't concerned exclusively with airspace. Rather, it was concerned with the notion that the FAA could simply say that "hey, this isn't a new rule, we are just applying this old rule to UAS's". Precisely as you argue they are properly doing with airspace regulations. But just to be clear, it isn't because they didn't follow the proper process for implementing a new rule. Rather, Congress forbids the creation of any new rules so long as it impacts the Section 336 described conduct. There aren't any required procedures that they could follow. The course of conduct is forbidden.

Straight from Taylor:

The FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103. But the FAA has never previously interpreted that registration requirement to apply to model aircraft. The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a "decision to cease its exercise of enforcement discretion." FAA Br. 20.


We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft.

So, arguably, the question is did any previous regulation or law cover the operation of model aircraft within Class B airspace? If so, then they might have justification. But if not, they probably don't. But certainly the FAA has plenary authority when it comes to safety, right? Wrong. Also directly from Taylor:


Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to "improve aviation safety." FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) ("Policy considerations cannot override our interpretation of the text and structure of the Act . . . ."). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

 

[Kcgunesq]

This one does require permission:

Airports
Recreational operators are required to give notice for flights within five miles of an airport to both the airport operator and air traffic control tower, if the airport has a tower. However, recreational operations are not permitted in Class B airspace around most major airports without specific air traffic permission and coordination.

(color applied by me to add emphasis to the key phrase)

Yes. I know the FAA publishes that on public facing web pages. But is it within their authority to actually enforce such a statement, absent demonstrable endangerment to the national air space? That is the question.