On September 2, 2015, the FAA issued a replacement for the long standing Advisory Circular 91-57 that was issued on June 9, 1981. Advisory Circular 91-57 (AC 91-57) was originally issued as guidance for model aircraft operators. More recently, AC 91-57 has gained additional notoriety because it has been relied upon in judicial decisions regarding the applicability of the Federal Aviation Regulations to the operation of unmanned aircraft. See e.g. Huerta v. Pirker, NTSB Docket No. CP-217 (Nov. 18, 2014) (concluding that unmanned aircraft systems (UAS) meet the legal definition of “aircraft,” and that the FAA may take enforcement action against anyone who operates a UAS or model aircraft in a careless or reckless manner); rev’g, NTSB Docket No. CP-217 (Mar. 6. 2014) (finding that FAA has no enforcement authority to fine Respondent because there was no enforceable FAA rule regarding model aircraft at the time of the flight).
In cancelling AC 91-57, and issuing its replacement, Advisory Circular 9157A (AC 91-57A), the FAA has updated its guidance with respect to model aircraft to reflect the current law governing hobby or recreational use of unmanned aircraft. Specifically AC 91-57A:
- Incorporates the provisions of the FAA Modernization and Reform Act of 2012 that relate to model aircraft (Section 336 of P.L. 112-95). In particular, AC 91-57A provides guidance regarding whether a given unmanned aircraft operation may be considered a “model aircraft operation”;
- Explains that when Model Aircraft operations endanger the safety of the National Airspace System, such operations may be subject to FAA enforcement action. The FAA specifically cites operations that are careless or reckless and operations that interfere with or do not give way to manned aircraft;
- Explains that model aircraft operations must comply with Temporary Flight Restrictions (TFR), which may be issued over specific locations due to disasters, for national security reasons, or when FAA determines necessary for the management of air traffic control in the vicinity of aerial demonstrations or major sporting events;
- Explains that model aircraft may not be operated in Prohibited Areas, Special Flight Rule Areas, or the Washington National Capital Region Flight Restricted Zone, without specific authorization and that model aircraft operators need to be aware of and follow Notices to Airman (“NOTAM”) that address operations near other locations; and
- Retains the suggestion that model aircraft operators should limit operations to less than 400 feet above ground level.
In issuing the revised guidance, the FAA seems to be positioning itself to be able to take additional administrative action against operators of hobby aircraft, but only time will tell if that is truly the case. Click here for more information regarding Husch Blackwell’s UAS team or contact David Agee.