The court’s decision in favor of the FAA regarding the Texas Equusearch matter has no bearing on the FAA’s authority to regulate UAS. The FAA remains legally responsible for the safety of the national airspace system. This authority is designed to protect users of the airspace as well as people and property on the ground.
The agency approves emergency Certificates of Authorization (COAs) for natural disaster relief, search and rescue operations and other urgent circumstances, sometimes in a matter of hours. We are not aware that any government entity with an existing COA has applied for an emergency naming Texas EquuSearch as its contractor.
Background on UAS Regulation
The FAA authorizes UAS operations that are not for hobby or recreation on a case-by-case basis. While flying model aircraft for a hobby or recreation does not necessarily require FAA approval, all model aircraft operators must operate according to the law. The FAA promotes voluntary compliance by educating individual UAS operators about how they can operate safely under current regulations and laws.
The FAA also has a number of enforcement tools available to address unauthorized use of UAS, including warning notices, letters of correction, and civil penalties. The FAA may take enforcement action against anyone who operates a UAS in a way that endangers the safety of the national airspace system. This authority is designed to protect users of the airspace as well as people and property on the ground.
On June 23, the FAA issued a notice to provide clear guidance to model aircraft/UAS operators on the “do’s and don’ts” of flying safely in accordance with the 2012 FAA Reform and Modernization Act. In the notice, the FAA restates the law’s definition of “model aircraft,” including requirements that they not interfere with manned aircraft, be flown within sight of the operator and be operated only for hobby or recreational purposes. The agency also explains that model aircraft operators flying within five miles of an airport must notify the airport operator and air traffic control tower. > See News Release
A flight that is not for hobby or recreation requires a certified aircraft, a licensed pilot and operating approval. To date, two operations have met these criteria, and authorization was limited to the Arctic. The FAA is continuing to review applications from UAS operators as they are received.
Background on the case
The United States Court of Appeals for the District of Columbia Circuit granted the FAA’s motion to dismiss Texas Equusearch’s case against the FAA. Texas Equusearch had filed a petition for review with the Court asserting that an FAA inspector had wrongly ordered it in an email correspondence for it to cease and desist search and rescue operations using its UASs. The Court found that the FAA’s inspector’s email to Texas Equusearch was “not a formal cease-and-desist letter representing the agency’s final conclusion … sufficient to constitute final agency action” for purposes of review in the courts of appeals. The Court found that “given the absence of any identified legal consequences flowing from the challenged email, this case falls within the usual rule that this court lacks authority to review a claim where an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party.”
Texas Eqqusearch and all UAS operators need to be aware that the FAA’s safety mandate under 49 U.S.C. § 40103 requires it to regulate aircraft operations conducted in the National Airspace System (NAS) to protect persons and property on the ground and to prevent collisions between aircraft and other aircraft or objects.
A UAS is an “aircraft” as defined in the FAA’s authorizing statutes and is therefore subject to regulation by the FAA. 49 U.S.C. § 40102(a)(6) defines an “aircraft” as “any contrivance invented, used, or designed to navigate or fly in the air.” The FAA’s regulations (14 C.F.R. § 1.1) similarly define an “aircraft” as “a device that is used or intended to be used for flight in the air.” Because an unmanned aircraft is a contrivance/device that is invented, used, and designed to fly in the air, it meets the definition of “aircraft.” The FAA has promulgated regulations that apply to the operation of all aircraft, whether manned or unmanned, and irrespective of the altitude at which the aircraft is operating. For example, 14 C.F.R. § 91.13 prohibits any person from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another.
An important distinction for UAS operators to be aware of is whether the UAS is being operated for hobby or recreational purposes or for some other purpose. This distinction is important because there are specific requirements in the FAA Modernization and Reform Act of 2012, Public Law 112-95, (the Act) that pertain to “Model Aircraft” operations, which are conducted solely for hobby or recreational purposes.
Model Aircraft Operations
Section 336(c) of the law defines “Model Aircraft” as “… an unmanned aircraft that is –
(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes.
Each element of this definition must be met for a UAS to be considered a Model Aircraft under the Act. Under Section 336(a) of the Act the FAA is restricted from conducting further rulemaking specific to Model Aircraft as defined in section 336(c) so long as the Model Aircraft operations are conducted in accordance with the requirement of section 336(a). Section 336(a) requires that—
(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)).
Section 336(b) of the law, however, makes clear that the FAA has the authority under its existing regulations to pursue legal enforcement action against persons operating Model Aircraft in accordance with section 336(a) and 336(c) when the operations endanger the safety of the NAS. Nothing in section 336 otherwise alters or restricts the FAA’s statutory authority to pursue enforcement action against any UAS operator, even those whose operations are conducted in accordance with sections 336(a) and (c) that endanger the safety of the NAS. So, for example, a Model Aircraft operation conducted in accordance with section 336(a) and (c) may be subject to an enforcement action for violation of 14 C.F.R. § 91.13 if the operation is conducted in a careless or reckless manner so as to endanger the life or property of another.
UAS Operations that are not Model Aircraft Operations
Operations of UASs that are not Model Aircraft operations as defined in section 336(c) of the law and conducted in accordance with section 336(a) of the law may only be operated with specific authorization from the FAA. The FAA currently authorizes UAS operations that are not for hobby or recreational purposes through one of two avenues: (1) the issuance of Certificates of Waiver or Authorization; and (2) the issuance of special airworthiness certificates. The FAA also has a third avenue with which to potentially authorize UAS operations through its exemption process when it determines that such operations are in the public interest.
1. Certificate of Waiver or Authorization (COA). In accordance with 14 C.F.R. § 91.903 the FAA grants Certificates of Waiver or Authorization to applicants waiving compliance with certain regulatory requirements listed in 14 C.F.R. § 91.905. The applicants must be able to show that they are able to safely conduct operations in the national airspace system. The COA contains terms with which the applicant must comply in order to conduct operations. The FAA generally has restricted the issuance of these certificates to government entities that operate UASs as it is implements the provisions in its “Integration of Civil Unmanned Aircraft Systems in the National Airspace System Roadmap.” The entireRoadmap is available on our website. The FAA also issues COAs on an emergency basis when: 1) a situation exists in which there is distress or urgency and there is an extreme possibility of a loss of life; 2) the proponent has determined that manned flight operations cannot be conducted efficiently; and 3) the proposed UAS is operating under a current approved COA for a different purpose or location. The FAA is also using the COA process to expand the use of civil UASs in the arctic region as required under section 332 of the law.
2. Airworthiness Certification. For civil operators, you can apply for a special airworthiness certificate under 14 C.F.R. Part 21. See FAA Order 8130.34B–Airworthiness Certification of Unmanned Aircraft Systems and Optionally Piloted Aircraft. The full civil type certification process allows for production and commercial operation of UAS and is a lengthy process typically undertaken by aircraft manufacturers. UASs holding an airworthiness certificate will still need a COA in order to operate in the NAS.
3. Issuance of Exemptions. In accordance with 14 C.F.R. §§ 11.15 and 11.61-11.103 and the FAA’s authority in 49 U.S.C. § 44701(f), the FAA may grant exemptions from regulatory requirements. The exemption process allows for the submission of a petition to the FAA outlining why the granting of an exemption would be in the public interest, the need for the exemption, and the reasons why granting the petition would not adversely affect safety or would provide a level of safety equal to the rules from which the exemption is sought. The FAA has indicated its willingness to review petitions for exemption by civil UAS operators that want to operate for other than hobby or recreational purposes. Under section 333 of the Act, operators in appropriate circumstances can be exempted from airworthiness certification and other related regulatory provisions.
Finally, UAS operators must understand that all UAS operations that are not operated as Model Aircraft under section 336 of the Act are subject to current and future FAA regulation. At a minimum, any such flights are currently required under the FAA’s regulations to be operated with a certificated aircraft, with a certificated pilot, and with specific FAA authorization.