How the new FAA Reauthorization Act affects Hobby Drone Flying and the 400 Ft. Rule

Where can hobbyist drone Pilots fly with the new FAA Reauthorization Act and repeal of Section 336?  Should hobby drone pilots need no longer comply with the 400 ft. rule?

Drone hobbyists in the U.S. are in a tough spot right now with the release of the FAA Reauthorization Act. Well, maybe “confusing” is a better description than “tough”. If you’ve spent any time at all on the drone forums, you know that any time someone asks about hobby rules, it doesn’t take long for the thread to go off the rails.

Especially if the question is about the 400’AGL “rule”.

So what is the straight answer about hobby rules? The straight answer is “it depends, sort of”. I know, not exactly a clarifying answer, but stick with me for a bit. To answer that question, you first need a bit of backstory.

Understanding Section 336 of the 2012 FAA Modernization and Reform Act

The 2012 FAA Modernization and Reform Act (2012 FMRA) started this entire craziness. Section 336 of that Act states, “…The administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft…”

It then goes on to list the five exceptions. Those are listed below under 14CFR Part 101 (e). 14CFR Part 101(e) “Special Rule for Model Aircraft” is the publication and codification of Section 336, and states:

The confusion stems from the safety rules of the most common CBO, the Academy of Model Aeronautics (AMA). Most people took the AMA rules as their rules of choice to fly under according to Section 336. And to fly according to those safety guidelines, you needed to stay under 400’ if within 3 miles of an airport, unless you notify the airport. No other AGL limits are part of the AMA Safety Guidelines.

Add to that the 400’ limit stated in 14CFR Part 107.51(b), and it’s easy to see where the confusion comes from. But wait…

Let’s add the FAA’s tendency to interchange the words “rules” and “guidelines” on their official UAS web pages. They routinely, even to this day, mention the 400’ limit under “Rules” instead of “suggested safety guidelines”.

Put the information garnered from all three of these sources together, and 400’ AGL Limit easily becomes a hard-set “rule” believed by those within the UAS community. This is in spite of it never being part of hobbyist rules to begin with. I’ve even seen comments from FAA employees mentioning the 400’ limit as a rule.

Confused yet? No? Well, hang on and you will be, at least temporarily.

So that sets the groundwork, now for the really confusing part of the equation.

Does the FAA Reauthorization Act Mean That Hobby Pilots Need Not Comply with the 400 ft. Rule?

On October 5^th, 2018, President Trump signed the 2018 FAA Reauthorization Act and it became Public Law 115-254. That in and of itself was a very good thing. However, and there always seems to be a “however”, Section 349 of the 2018 Act repealed Section 336 of the 2012FMRA. So that in theory invalidates PL112-95 since it is based on “conditions as set forth in section 336 of Public Law 112-95”.

Okay, so if 14CFR Part 101(e) is based on PL112-95, and PL112-95 is based on the 2012FMRA, section 336, and, section 349 of the 2018 FAA Reauthorization Act (now Public Law 115-254) repealed Section 336 of the 2012 FMRA, the rules under 14CFR Part 101(e) are no longer enforceable. At least that’s the interpretation from those much smarter than I, including some inside the FAA. Others may disagree.

There is one major problem though; Congress didn’t put anything into effect to replace the hobby rules. So technically, there are no* FAA enforceable UAS Hobby rules.

*see last two sentences of paragraph above…

Hence the confusion.

However (there’s that word again), this does not mean it’s the Wild Wild West for hobby droners. Because the FAA always has the “reckless and careless” charge to fall back on. And trust me, you don’t want a call from your local FSDO asking to speak with you about a “reckless and careless” flight someone reported you for. That’s rarely a conversation that will end in your favor.

If you’re interested in seeing what is coming down the road for U.S. Hobby operators, please read Section 349 of the 2019 FAA Reauthorization Act. This section includes all of the upcoming rules. Pay close attention to all parts of Section (a). Especially this part: “(6) In Class G airspace, the aircraft is flown from the surface to not more than 400 feet above ground level and complies with all airspace restrictions and prohibitions.” So, as you can see, the 400’ AGL rule is coming. So pay attention to your groups and forums so you can stay informed. This only mentions Class G, but the other airspace classifications are listed in part (5) above. So there will be AGL limits for all of the NAS.

Hopefully there will be an NPRM comment period for this. Because the 400’ limit in G, would be very problematic for many aspects of the hobby industry, such as Soaring Wings, and jets.

But that’ll be another article when that happens, so keep an eye out.

Congress didn’t give the FAA a deadline (except in part g) for implementation of Section 349, so we don’t really have a good idea of when all of this will come about. So in the meantime, what do we do about hobby drone flights?

Conclusion

Rather than spending too much time deciding if you really can go fly your drone willy-nilly all over the NAS at 1200’AGL, you need to sit down and spend some serious time deciding if you really should. Because that’s the question you need to answer for yourself. And don’t forget about “reckless and careless”.

One definition of integrity is doing the right thing when you think no one is looking. I’d like to add to that definition by including integrity is also doing the right thing, even if no one is officially saying what that right thing is.

And the FAA has even gone as far as asking us to be responsible and safe. One week after President Trump signed the 2018 FAA Reauthorization Act, they put out a news release stating it will take a while to implement the Act and asking us to “please continue to follow all current policies and guidance with respect to recreational use of drones”. They also included the 7 guidelines for us to follow when flying for hobby. You can find that HERE.

Here in Colorado we have a group of commercial drone pilots called Colorado Aerial Media Pros (CAMP). The creators of CAMP came up with a motto. Our motto is “Don’t be that guy”.  So I’ll end this article with that motto. Be smart, fly smart, fly safe, and “Don’t be that guy”. Or gal…

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~Vic Moss~

Moss Photography/Drone U

Vic Moss is a commercial photographer with over 30 years experience. He is also a national voice for drone safety and reasonable drone regulation. Vic has worked with numerous cities and states to help craft drone regulations that don’t inhibit safe and responsible drone use. Vic is also a FAASTeam member and one of three UAS specialists in the Denver FSDO Service Area. As a frequent contributor in many UAS forums, Vic keeps tabs on the pulse of all things UAS. Vic’s duties as a co-owner of Drone U include photography instruction, legislative liaison, and Elite pilot instructor. Vic was recently appointed to the FAA’s Drone Advisory Committee Waiver Task Group. You can get in touch with Vic by emailing him at [email protected]

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