The Dreaded 400' Altitude Limit - A NEW TWIST!

[FLYBOYJ]

This was sent to a member of a FB page yesterday. It seems the administrator considers hobbyist operations over 400' a hazard to the NAS. First time I seen this in writing. I contacted the Feds as well asking where this is indicated as regulation. I'll post their response (not holding my breath)

 

[msinger]

Flying above 400 feet is not illegal per US law. However, if you do something that endangers other aircraft/people, you could certainly be fined under US law. The same goes for doing dangerous things below 400 feet too.

 

[microlinux]

I contacted the Feds as well asking where this is indicated as regulation. I'll post their response (not holding my breath)

They appear to be applying the arbitrary generic clause codified in 336 (b):

"Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system."

 

[FLYBOYJ]

Agree - The FAA Administrator is basically creating policy with little or no regulatory direction. Sure, you could be violated for hazardous operations above or below 400' per 101.43 but there is still no direct FAR that says "no operations above 400'. I see lawsuits.

 

[microlinux]

Agree - The FAA Administrator is basically creating policy with little or no regulatory direction.

Yeah, it's kind of an end-around. I'm not sure it would hold up in a court unless they could explicitly prove it was hazardous in a specific instance . . . but then again, who is going to spend the money to fight them in court?

Government!

 

[FLYBOYJ]

. . but then again, who is going to spend the money to fight them in court?

John A. Taylor?

 

[tcope]

Yet another example of the FAA attempting to do an end run around Section 336. I suspect that the powers that be at the FAA would state that the information in that letter is not the FAA official position on this matter. It is not like the FAA has lied about things in the past... oh wait... they lied about 400' being a regulation! Now (at least) this person is simply trying to do an end run about that whole being wrong thing. Next the FAA will simply claim that flying a drone at all is a "safety issue".

I think there would be nothing easier then showing a judge that 1) all flights above 400' are not always a safety issue and 2) that the FAA has no authority to make that claim. Heck, I can prove that very easily... what makes a commercial flight above 400's safe when the hobby person standing right next to them flying at the same height, "unsafe"?

[flying next to a 300' water tower, for example]

Another example... what makes flying next to a 500' cliff at 400', automatically "unsafe"?

In the _real world_ the FAA would not to be able to show why that one flight posed a threat. Simply flying legally does not make something "unsafe".

Another example (these are easy). The speed limit is 70mph. I can't be given a ticket for driving unsafe _just_ because I'm driving 70mph (something that is legal).

The statement in that letter is simply stupid.

 

[ac0j]

If they say they don’t want you doing it. Then it shouldn’t surprise anyone that they call you out if you do. As a government agency, their regulations have full force of law. Look it up if you want. Even though they are not called laws. Same with national parks services.
But, as I always say, you can do whatever you want at your own peril. I enjoy the reading


regulations
n. rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes, and often include penalties for violations. One problem is that regulations are not generally included in volumes containing state statutes or federal laws but often must be obtained from the agency or located in volumes in law libraries and not widely distributed. The regulation-making process involves hearings, publication in governmental journals which supposedly give public notice, and adoption by the agency. The process is best known to industries and special interests concerned with the subject matter, but only occasionally to the general public. Federal regulations are adopted in the manner designated in the Administrative Procedure Act (A.P.A.) and states usually have similar procedures.

 

[tcope]

If they say they don’t want you doing it. Then it shouldn’t surprise anyone that they call you out if you do. As a government agency, their regulations have full force of law. Look it up if you want. Even though they are not called laws. Same with national parks services.

Flying in an unsafe manner is not being questioned at all. What _is_ being questioned and which is _not_ a regulation is this person at the FAA's inturpetation of what is "unsafe".

 

[swooshdave]

If they say they don’t want you doing it. Then it shouldn’t surprise anyone that they call you out if you do. As a government agency, their regulations have full force of law. Look it up if you want. Even though they are not called laws. Same with national parks services.
But, as I always say, you can do whatever you want at your own peril. I enjoy the reading


regulations
n. rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes, and often include penalties for violations. One problem is that regulations are not generally included in volumes containing state statutes or federal laws but often must be obtained from the agency or located in volumes in law libraries and not widely distributed. The regulation-making process involves hearings, publication in governmental journals which supposedly give public notice, and adoption by the agency. The process is best known to industries and special interests concerned with the subject matter, but only occasionally to the general public. Federal regulations are adopted in the manner designated in the Administrative Procedure Act (A.P.A.) and states usually have similar procedures.

Is there actually an FAA regulation that says you can't fly over 400 ft? I believe it's just a guideline.

 

[ac0j]

If you squint just right when you read that letter, it can say whatever you want it too. You might re-read it with one eye closed. It is pretty cut and dried, and it appears to be official.

400' AGL has been deemed unsafe by the administrator..... Thats all that matters.
He (or she) is the one that gets to make the rules. If they make sense to you or me is of no consequence.

AGAIN, interpret this however you want. I dont care, its your "up to $27,500.00" up for grabs!

 

[swooshdave]

Getting Started

On this page it specifically says "Drone Safety Tips". That is very interesting wording. Not "rule" or "regulation". If it were either of those I'm sure the wording would be much stronger than "Tips".

 

[microlinux]

As a government agency, their regulations have full force of law. Look it up if you want. Even though they are not called laws. Same with national parks services.

It's not a regulation, either. Even the FAA letter referenced above doesn't argue that. They refer to the generic "we can fine you for anything we think is dangerous" clause of 336. The letter is cleverly worded.

I'm not commenting on whether the concept is right or wrong, but there is no actual law or regulation limiting recreational flights to 400' AFAIK . . . just a man speaking loudly to project authority under a legally generic statement that nobody is going to pay to fight in court anyway. At then end of the day it accomplishes the same thing as a bonafide law or regulation without actually being such. Tomorrow they could say flying over 50' is a hazard to the NAS as the FAA's assertion appears to stand.

 

[ac0j]

In the OP is what I assume an "official" letter. It is pretty clear that even "it sounds like there is leeway but...."
Kind of leaves the door open to trouble IF, THEY deem the flight unsafe, Not up to us to decide.

However, I do not see this being an issue if you are not reported or caught doing something stupid. I doubt the FAA is going to hire nation wide "drone police" to patrol and watch you

 

[FLYBOYJ]

In the OP is what I assume an "official" letter. It is pretty clear that even "it sounds like there is leeway but...."
Kind of leaves the door open to trouble IF, THEY deem the flight unsafe, Not up to us to decide.

However, I do not see this being an issue if you are not reported or caught doing something stupid. I doubt the FAA is going to hire nation wide "drone police" to patrol and watch you

This was sent as an e mail from the FAA sUAS information center. This is a policy loosely on verbiage found in section 336 and FAR 101.43. While I actually agree with a 400' ceiling limit, the FAA needs to validate this with codified regulation. They (the FAA) did the same thing when they originally mandated sUAV registration.

 

[Taylor1430]

I took the letter as having leeway. In the event you are at 800ft bad encounter an aircraft, one can’t say “I’m not doing anything wrong”....when they can argue that you flying that high during an encounter was unsafe.

 

[FLYBOYJ]

I took the letter as having leeway. In the event you are at 800ft bad encounter an aircraft, one can’t say “I’m not doing anything wrong”....when they can argue that you flying that high during an encounter was unsafe.

Exactly. The thing that's unique about this is we have a document from an FAA source actually verifying was has been assumed since 336 was enacted.

 

[tcope]

I took the letter as having leeway. In the event you are at 800ft bad encounter an aircraft, one can’t say “I’m not doing anything wrong”....when they can argue that you flying that high during an encounter was unsafe.

However, that is not what the letter states. It states _regardless_ of anything else... if you are at 401' or above you are automatically flying unsafe. Nothing to do with the encounter of a plane or anything else. This is like the speed limit being 70mph and the police saying anyone driving 70mph will be ticketed automatically for driving unsafe. Nothing else involved.. just for driving the legal speed limit.

 

[tcope]

It's not a regulation, either. Even the FAA letter referenced above doesn't argue that. They refer to the generic "we can fine you for anything we think is dangerous" clause of 336. The letter is cleverly worded.

That is what I keep saying. Just because the FAA _says_ they inturpete something a certain way in no way means they are correct. They used to claim 400' was a regulation. They started out claiming that they had the right to create a registration. Turns out... they were wrong.

While I highly doubt this is actually the official stance of the FAA, it clearly attempts to do an end run around actual regulations.

 

[FLYBOYJ]

That is what I keep saying. Just because the FAA _says_ they inturpete something a certain way in no way means they are correct. They used to claim 400' was a regulation. They started out claiming that they had the right to create a registration. Turns out... they were wrong.

While I highly doubt this is actually the official stance of the FAA, it clearly attempts to do an end run around actual regulations.

The posted e mail came from their (the FAA) sUAV office so the talking head who sent this had to be pre-programmed. The problem is if you're violated over this policy, its up to you to prove the FAA wrong and when you go before an "NTSB judge" the cards are usually stacked against you.