franklin_m

I contacted the FAA Airspace office to ask if they had granted any waivers to 49 USC 44809(a)(6), a.k.a. "the law," which is the 400 foot limit in class G.

My question:
"Has the FAA granted ANY waivers to 49 USC 44809(a)(6)? If so, can I get a list? Alternatively, are these listed anywhere so pilots operating at low altitude, for example crop dusters, helicopters, etc., can plan accordingly? Thanks."

The FAA response:
"Nothing in Section 44809 can be waived."

So there it is. Most of AMA flying sites, including Taj-Muncie, are in class G. Any number of AMA sanctioned events are in class G. I cannot imagine it looks good for a "CBO wanna-be" to be permitting participants at sanctioned events to blatantly violate law.

Take Kentucky Jets next week for example. It's in class G airspace. Since operations in violation of FARs increase the risk to the airport, its users, and spectators, does the CD of this sanctioned event have an obligation to inform the airport of his intent to allow participants to ignore the law? I argue the airport owner(s) deserve a vote in this risk decision, yet how many AMA "Agents" fail to inform?

Maybe our esteemed EC member will call the airport owner, inform them of the law, inform them of whether or not the AMA permits operations in violation of law, and then report back to us what happens?

Hydro Junkie

Did you really expect anything else from the FAA? They made the rules so why would they want to allow exceptions to said rules or, alternately, admit they are making exceptions to said rules? As I see it, if they start wavering the rules, sooner or later they will have to "draw a line in the sand" and say "NO MORE!!!", so why open Pandora's box right at the beginning and have to back track on it later?

franklin_m

No. This is what I've believed all along, that it's not waiverable. I asked the question and posted the response because there have been some in these pages that contend that because AMA events have been held that exceeded it, that means they had waivers. As it turns out they did not, which means AMA sanctioning events they know or should know are in direct violation of law.

Also, I just looked at the info on Kentucky Jets and see that their flight area includes a public road. I wonder if the CD informed the airport that not only are such overflights in violation of AMA safety code (note 1), but therefore also in violation of law [49 USC 44809(a)(2)] because they're not following the safety code of the CBO?

I thought AMA safety code did not permit overflight of vehicles? Apparently, AMA sanctions events that don't even comply with their own rules! I wonder if the CD informed the airport that this also is not allowed under CBO rules?



Note 1: AMA Doc 105 - "I will avoid flying directly over unprotected people, moving vehicles, and occupied structures."

invertmast

My Feedback: (23)

Being someone who has done alot of Legal “operations” that were explicitly prohibited by FAA regulations and “the law” i can tell you with 100% certainty that the FAA WILL issue waivers that allow you to legally break “the law(s)” of the FAA regulations.
That said, you better have a good reason to be asking for that waiver and have a sound plan for ensuring the risk increase is marginal (if at all) for the operations you want to do.

I’m pretty sure the high powered rocket guys have been dealing with the FAA for years on ways to get clearance to launch their rockets well above Class G airspace.

Having the FAA rep say “nothing is waiverable” is likely the answer they give every Tom, Dick and Nancy who asks bc 99.9% of the time, that is correct. That other 0.1%, it can be done.

tedsander

As the code says: "Moving vehicles". So the distinction rests on the definition of "directly over". If their paths don't intersect on a vertical axis, then they aren't "directly over". So there being a road doesn't violate it. Or even if there is a vehicle, as long as they don't fly over it. Maybe the plan is to block the road, to prevent the chance of "moving vehicles", or to have spotters to tell the pilots "There's a car, don't fly over the road till it passes"?

franklin_m

I can't speak to legal operations that were explicitly prohibited by LAW, but being waived by FAA. 23 years of military flying in tactical aircraft, I never had the need, even during developmental test work .. including envelope expansion and live weapon drops. But I'll push the "I believe" button that FAA waives regulations (CFRs). Not quite as sure that they waive explicit law. Yes, these are in CFRs, but they are word for word copy from law. I think one must be very careful when one says "break 'the law(s)' of CFR." CFRs are regulations. They are not law. The difference in words is important. There's a huge difference between inherent authority of an Executive Department agency to waive regulation - and that same department waiving law. I parse those words carefully. So I'd be really curious what LAW was waived by FAA in your experience. Though I don't believe FAA waives LAW absent specific authority IN LAW to do so. I'll continue.

Which brings me to your point. If indeed they do waive explicit law, I completely believe that it's exceedingly rare, authorized in that LAW, done only in writing, and only with a mountain of professionally staffed operational risk analysis - and a long list of mandatory risk mitigations. What I do not see is the FAA waiving explicit law because some AMA CD asks for it or because participants have some perceived 'need' for a waiver.

franklin_m

WRT to the last point, I realize you're a contest director and therefore an expert on the spirit and intent of AMA rules. Absent blocking the road to preclude traffic, just because AMA makes the distinction about moving vehicles or not in no way negates 14 CFR 107. I'm thinking specifically 14 CFR 107.23(a) which prohibits the operation of "a small unmanned aircraft system in a careless or reckless manner so as to endanger the life or property of another." Operations of large, high speed turbine powered sUAS over people or vehicles, parked or not, would clearly "endanger the life or property of another." Whether something is careless or reckless won't be determined by the AMA, it'll be determined by the FAA / NTSB. I can just imagine someone going before an administrative law judge and trying to make the case that because the paths didn't intersect, it wasn't a risk.

Regardless, I remain curious if the CD has even mentioned: (a) the explicit 400 foot limit to the airport management and/or if indeed they have a written waiver to the law for operations above it, (b) whether the CD will enforce the limit, and (c) the need to close / tightly manage traffic on the road outside the airport?

The interesting thing will be to watch this develop over the next few years and see just how many CDs are willing to assume the risk of being THE decision maker as to whether something is compliant with law or not. It's their fanny that will be on the line. Just because AMA insures against financial loss doesn't mean they're insulated from government administrative action / penalties or even criminal charges if the event is bad enough.

franklin_m

Of course the easy answer is to ensure that both the airport management AND the county elected officials are FULLY and COMPLETELY informed as to the planned operations as they relate to law and then let them make the risk decision. After all, the airport management is accountable to the county officials, who are accountable to the taxpayers that would ultimately bear the cost of any litigation. Why? Because in my experience as a government official, regardless of supplemental coverage, the lawyers always go after the deep pockets first - which is the municipality. Seen it first hand.

tedsander

I'll pretend that wasn't an uncalled for snarky comment.

No expert, just parsing the language, as you are wont to do.

mongo

My Feedback: (15)

parked vehicles are considered property.

franklin_m

Not at all. You're a CD, it says so in your tag line. As one, you're empowered as an "Agent of the AMA" to both interpret and enforce it's rules at events you supervise. That makes you and expert on them in my mind.

However, AMA's safety code is one thing, the law and FAA regulations are another. I had the good fortune to have a dedicated SJA on my staffs for the last ten years of my career, and I learned a lot about the importance of language and understanding when the language makes a distinction in words because there is a difference. For example, there is law and regulation. Different words because they are different things. As noted, Executive Department Agencies generally have the inherent authority to waive their own REGULATIONS. Examples include any number of waivers granted by the FAA. However, Executive Agencies are subordinate to law, which means they generally do enjoy the authority to waive LAW, unless that authority is delegated to them in LAW.

So when engaged in developmental test, it was important to understand what was set forth in law, FARs, and Navy aviation regulations (OPNAV 3710.7 series) and other subordinate documents when planning and flying test events. Test plans I wrote were subjected to review to ensure compliance, as was my execution and compliance with those plans (and all of the above) subject to regular review. Later in my career, when we opened the first new training airspace in the US in two decades, my staff worked closely with FAA (DC, LA and SF centers and various approach facilities) to write procedures that were compliant law, FARs, OPNAV 3710.7, Navy Region SW aviation regulations, and even my own published base aviation regulations. Again language and word choice was important, as was extensive knowledge of the rules as well as the limits of my authority to approve procedures under the law, FARs, and various other governing documents. So while some might say I know enough to make others think I know more, I'm actually quite familiar with this exact issue of language in the real world of full scale aviation. And that's where the standards are much higher and language is subject to much greater scrutiny than the AMA rules. Language was important, because it drove operations. and therefore word choice was critical and thus precise. So it's not parsing words to note the distinction between "law" and "regulation" when speaking of operations in the airspace and waivers, for there is indeed a significant difference.

So while I fully accept that FAA routinely waives REGULATION, I've yet to see an example where they have waived LAW in a case where that authority is not specifically delegated to them by Congress in LAW. If you have one, please share. Because in the case of 49 USC 44809(a)(6) for example, the 400 foot limit, the FAA office that processes waivers to part 107 (the regulation to which the 49 USC 44808 provides limited specific exceptions) - says that it is not waiverable.

PopeyeCharlotte

The one-sided nature of these conversations is tiring... these posts are not for "discussion", rather they are to piss at anyone with a different viewpoint to the OP.

The very first paragraph of the referenced regulation states: "a person may operate a small unmanned aircraft without specific certification or operating authority from the Federal Aviation Administration if the operation adheres to all of the following limitations:" [emphasis mine] Then it goes on to list the limitations, include the 400' limitation among others.

If operating authority is granted to exceed 400', there is no "waiver" to 44809. As correctly stated by the FAA email.

Further, a quick google search brings up this webpage, which lists 175 pages of granted waivers: https://www.faa.gov/uas/commercial_o...aivers_issued/

Drum roll... the very first one, for Max Moerles is a waiver to exceed 400'. (Note - I am not sure how dynamic this listing is, so it may not be the first anymore.)

Back to the topic, and not the nits of conversation, is the granting of a "permanent" waiver for a given flying site. Has anyone on the forum seen one? (Specifically for non-licensed part 107 drone pilots.)

franklin_m

And yet not one of them was for recreational operations under the limited exceptions to 107.

aymodeler

My Feedback: (3)

Again, I am no expert on legal language, but it is my understanding is that you can never simply "waive" a law, so the FAA's answer is technically correct and not at all surprising. However, 44809 only defines the requirements by which recreational flyers can operate "without specific certification or operating authority from the Federal Aviation Administration" (as was pointed out by PopeyeCharlotte). There is nothing here that prevents the FAA from granting such "certification or operating authority" in situations which do not conform to the criteria spelled out, including the altitude limit specified for class G airspace. And based on the current draft of AC 91-57C it appears as though there will be such processes in place. Here are two excerpts from this draft:
.
The language does seem to indicate that the FAA will have a process in place to grant limited operating authority for recreational flights above 400 feet at fixed flying sites in uncontrolled airspace (presumably using a risk review process like the one that has already been used to grant such authorization at fixed flying sites in controlled airspace). Similarly, it seems like there will be a process for temporary events held in in uncontrolled airspace.

All of this hoop jumping seems to be a consequence of a the specific language used in 44809, where it specifically called out the 400 foot limit in class G airspace uniquely as opposed to controlled airspace where no such call out is necessary as the limit would be defined based on the airspace class and location as defined on the UAS Facility Maps. It makes no sense to have a law which intentionally has a process for allowing exceptions to be granted in controlled airspace (where the risks are higher) but not allowing for a similar process in uncontrolled airspace.

As these details continue to be worked out, there seems to be a bit of wink-wink "don't ask - don't tell" going on between the FAA and recreational flyers. In other words, the FAA seems to be choosing to simply not enforce the law at this time. This goes on all the time with certain federal laws. Of course, all of that will come crashing down (pardon the pun) if something bad happens, so everyone is rolling the dice here a bit.

franklin_m

Yep, saw that. It'll be fascinating, as I don't see blanket exceptions for all sites. What I'm happy to see is that the FAA is most definitely formalizing the process. That means the AMA and clubs are going to need to be a lot more professional ... which ought to be interesting. Why? Because you see AMA commenting all the time about difficulties with clubs getting paperwork complete and submitted on time. Not their strength. Furthermore, all those "wink-wink" clubs that just pretend not to notice are one pi**ed off neighbor complaint away from being shut down.

Point being, the regulatory noose is tightening. There's vast groups of people in the hobby (witness flite test) who are perfectly happy to operate below 400 feet. Which means AMA will increasingly become the group that serves those with "need" to fly above 400 feet. Not hard to imagine that some will tire of driving long distances to the one site in the area that has formal authority to exceed that limit. The AMA is already facing a demographic problem. There just aren't that many young people entering this side of the hobby to replace those lost. Additional regulations and requirements will only accelerate that. I suspect those groups looking to drive the hobby in one direction (out of 400 foot and above space) are playing the long game. Death of a thousand cuts, and all the AMA types that openly ignore the rules are just playing into their hands.

aymodeler

My Feedback: (3)

I agree that the AMA (and any other CBO) will need to be much more vigilant with regards to enforcement of the rules going forward. I also agree (as you know from my previous posts) that the AMA has a very serious demographic problem. However, I see this as more of a long term opportunity for the AMA. It all depends on the remaining popularity of those classes of recreational flying that need the ability to fly above 400 feet. For example, sometime down the road, you might see a rebirth of the AMA as the organization for sailplane flyers with soaring clubs being the predominant form. Obviously, this just a hypothetical example, but the point being that if there is sufficient market demand for high altitude recreational flying, some organization will form a CBO to supply that demand and over time, I could envision the AMA morphing into that organization.

aymodeler

My Feedback: (3)

One other subtle (but IMHO important) point is that the mere existence of the language I referenced above in AC 91-57C confirms that the FAA is willing to work with the hobby and not, as many have implied in the past, out to shut us down. There was nothing that compelled the FAA to find such solutions. In fact, if crushing the hobby was their goal, they could have used the simple language to that end. Another example is the knowledge test requirement which could have easily been turned into a killer requirement.

It certainly appears that the AMA's efforts to lobby the FAA and congress have had positive influence and helped the hobby to achieve a more balanced outcome than many of us feared we would have. So while being far from perfect, I still believe that credit should be given to the AMA where credit is due.

franklin_m

I never saw the FAA as trying to shut down the hobby. Outside groups perhaps, but the FAA itself no. However, I do not think AMA should be patting itself on the back. There is a clear and unambiguous progression of increasing regulation, narrowing of operational limits, and heavier administrative requirements. All of which combine to drive a move away from "the way we've always done it" loose and seldom if ever enforced CBO rules, FAA regulations, or law. Over the past few years, registration was imposed, 336 eliminated, operational limits established, remote ID required, testing implemented, and now specific language in safety guidelines and other requirements for CBO recognition. It's hard to look at this and say "great job."

There is no reason to think this won't continue. And as you said, it's all one ugly incident from getting a lot worse very fast. Particularly if that event involves an AMA member who, the AMA contents, are the ones setting the example. God help us if anyone peels back the onion and starts taking a close look at what's actually happening in the field at AMA clubs and events. I'm sure some are pretty compliant, however I'm less convinced this is widespread. If an outside group, say one of the commercial groups who ARE interested in shutting down the hobby, starts systematically observing events and collecting data, what FAA will see is that much of what AMA HQ says is just gaslighting. If they're really smart, they'll sit on all that proof until there is a mishap, then stack that big pile on the desks of legislators who will feel a strong need to "do something."

So I see this as yet another step down the road toward professionalization of the hobby. Which means paperwork is going to matter (not AMA's strong suit), compliance will matter, and accurate reporting (of the AC safety data) will be critical. I seriously doubt there will be enough of an influx of new members interested in the unique aspects of AMA that are not available for free through another CBO. Yes, the FW turbine, LMA, IMAC, sailplane, and those groups will still "need" the AMA, but many of those are deep pocket activities, far from the type of thing that draws big numbers of new members. I know AMA sees JROTC as a cash cow, but that remains to be seen. Schools have trouble finding time to teach what's already required by state and federal law, I find it hard to see how they're going to get big numbers out of that. In that sense, I see the JROTC impact on revenue much like a dues increase. Temporary boost, then withing 2-5 years the total revenue is back down below what it was before the boost (as NON-JROTC membership continues to decline due to demographics, cost of entry, and lack of interest in toy planes).

If this is a "win," I'd sure hate to see a "loss." Just because it's "less bad" is not a reason for celebration. FAA got everything they wanted in this and more. As they have at every step of the way.

aymodeler

My Feedback: (3)

I know that you personally never expressed that opinion, but many others have. In fact, I recall a particularly impassioned posting (on another forum) where it was said that anyone not willing to fight against the FAA was in league with "Satan".

My point was simply that the FAA appears willing to find solutions that will allow the hobby to continue. I do agree that we will become increasingly boxed in to a specific set of rules, but that is inevitable given that both recreational and commercial use of UAS is becoming increasingly ubiquitous. There is no way we could continue "under the radar" anymore. This same trend is playing out around the world too, not just here in the US where the FAA and the AMA are key players. So far, the "paperwork" has been kept to a minimum and most of us can operate more or less as we have before. The big losers are those who wanted to operate with impunity flying drones wherever they wanted, at whatever altitude they wanted, over people, in the way of firefighters, chasing police helicopters, near airports, etc. etc. etc.

Loss would have been imposition of the draft RID NPRM as is. Loss would have been a recreational knowledge test based on the part 107 testing as was originally proposed. Loss would be no flexibility to accommodate high altitude operations. Loss would be no system such as LAANC that allows you to operate with minimal hassles.

To your point, there are now stricter rules enforcing what the FAA has expected of us all along. And yes, those rules will get stricter and stricter if infractions continue unabated. But that is not the FAA's "fault".

franklin_m

Perhaps we can agree that one thing that will definitely NOT help preserve the hobby is if a major CBO is seen tolerating a culture among its members that ignoring the rules is ok?

aymodeler

My Feedback: (3)

BTW, I am curious, what would a realistic "win" look like in your opinion? And by realistic, I mean something that acknowledges and addresses the political, commercial, domestic security, and social forces that have been arrayed against the hobby these last 10+ years (i.e.; not just saying everything as it always has been).

aymodeler

My Feedback: (3)

Of course, I am in agreement with that. How the AMA behaves in light of our new reality is yet to be seen though.

Hydro Junkie

Guys, I love the conversation you have been having but there is one thing that you need to also consider. It doesn't really matter what the FAA does if the AMA powers that be in Muncie don't change what they are doing. As Franklin has pointed out, over several threads and several years, those running the show in Muncie are doing the same thing as the Democrats in Congress, spending money like they have no real concerns on getting more. This will only lead to the AMA going bankrupt by the end of the decade and, if that is the case, your conversation becomes nothing more than moot points.

aymodeler

My Feedback: (3)

I due tend to agree that the AMA needs to make some serious changes, particularly in its finances, but it really doesn't matter to the original topic of this thread, i.e.; the ability for the FAA to grant authorization for recreational flyers to operate above 400 feet in uncontrolled airspace. As of right now, there does seem to be hope for a process that will allow for that. It appears that this will require the coordination of a CBO, so if the AMA is the ONLY CBO, then your point about the AMA's potential future demise is relevant. However, if there is sufficient demand for such operation, then new CBO's are sure to arise.

I agree with Franklin that the AMA (along with all of us) will need to be much more vigilant about following the rules and take them much more seriously. But I also still maintain that the AMA has had some positive influence on the FAA and on Congress throughout this process. Was the end result perfect? No, but for most participants in the hobby, things are not going to change all that much and we could have ended up in a much worse place. OK, is it just less bad than it could have been? Maybe, but more bad is certainly not the direction I want to go!

If the point of this conversation is to simply bash away at the AMA, then as you know, I feel that is pointless. I am all for constructive dialogue pointing out needed changes, but I also do believe that baring some significant change, the AMA will eventually collapse due to its finances and due to its serious demographic problem. In the mean time, they are the horse we have and they are making at least some positive contributions.

Hydro Junkie

I didn't intend for my post to be an "AMA bashing". In fact, your last post's first paragraph's last few sentences kind of backed up what I was saying. I've also grown tired of the threads all turning into "AMA bash sessions" and all of the "anti-AMA" defensive posts that go along with them. Just wanted to throw out a friendly reminder that the AMA is financially weak and that they need to do something to shore up their financial deficiencies or they will be gone and all of the discussions, like this one, will have been a waste of time and that is something I would prefer to not see happen