Updated July 22, 2009 Section II Spreading Your Wings,
Chapter 8: Common Sense & The Law
So what exactly is a congested area?
Ultralight pilots (including
paramotorists) aren't allowed to fly over congested areas at any
altitude but "congested" is not defined.
The PPG Bible delves into several court cases that have defined it
variously from a busy road to a group of houses on 1/8 acre lots. The
basic gist is that if it seems congested, it probably will be considered
so by the law (FAA, in this case).
A side note: Yellow areas on
sectional charts do not define congested areas. That myth
continues to propagate but, to my knowledge, no documents support it,
including court cases. Charted yellow areas are approximately what the
light patterns look like at night, and they are notoriously outdated
even for that purpose.
John Fetz pointed me to an interesting resource
that adds some clarity: the FAA's inspector's handbook. Now mind you,
this isn't law. There is no requirement to follow this nor has it ever
been used in the court that I'm aware of. But it's important because it
guides the inspectors as to whether you have violated the rule. An FAA
administrative law judge will make the ultimate determination, but
knowing this information may prevent it from getting that far.
to Robert Laird for digging up this excerpt from the "General
Aviation Operations Inspector's Handbook, Order 8700.1". Don't
disregard this because it references airplanes, either. Court cases have
been lost by paramotor pilots where the law judge cited airplane
violations. Plus, this is the only documentation inspectors have to go
on regarding what is congested areas.
The congested nature of an area is defined by what
exists on the surface, not the size of the area. While the presence
of the nonparticipating public is the most important determination
of congested, the area may also be congested with structures or
objects. An area considered congested for airplane operations could
be equally congested for helicopters. If an airplane flying over a
congested area at less than 1,000 feet above ground level (AGL) is
in violation of 14 CFR § 91.119(b), the area may also be a congested
area for a helicopter conducting external load operations. However,
the most important word in this concept is 'over.' Helicopters can
operate over relatively small uncongested areas because of their
(b) Densely Populated Area. Title 14 CFR §§ 91.313 and 133.45(d) use
the term "densely populated" area. Those areas of a city, town, or
settlement that contain a large number of occupied homes, factories,
stores, schools, and other structures are considered densely
populated. Additionally, a densely populated area may not contain
any buildings but could consist of a large gathering of persons on a
beach, at an airshow, at a ball game, or at a fairground. NOTE:
While the presence of the nonparticipating public is the most
important determination of congested, this definition also applies
to structures, buildings and personal property. The congested nature
of an area is defined by what exists on the surface, not the size of
More Case Law and Other Interpretations
PPG Pilot Dana
Hague, whose focus on facts grant him much respect, did some digging and
came up with this treatise on the yahoo PPG Big List. Some of amounts to
wishful thinking but at least has other government backing. Like this
one from the European Regulations (JAR-OPS 3):
Congested areas," as defined in
JAR-OPS 3, are essentially any densely populated town or city where
no open spaces exist to permit a safe emergency landing in the event
of an engine failure.
Oh if only that were true, especially
given how small an area we can land in. Alas, that's not the case so
don't put any merit into it.
Over a few years I've poked around online
trying to get a handle on the "congested area" issue. I could find
surprisingly few cases involving ultralights, which could be a good
thing, indicating that we aren't considered too much of a problem, but
there are a few involving Part 91 operations (usually involving low
flying or aerobatics over congested areas). What follows is various
opinions, with links, and my own comments interspersed.
ntsb.gov NTSB Order No. EA-4188, about
low flying over a highway: "...The deputy sheriff riding in the
passenger seat testified that the aircraft operated over the freeway for
at least 30 seconds, at an altitude of 75-100 feet... In the Board's
view, even if Interstate 5, a major California freeway, is not "bumper
to bumper" on a late Saturday afternoon, moderate traffic in every lane
still renders it "congested," for purposes of the regulation. See also
Administrator v. Dutton, NTSB Order No. EA-3204 (1990)(Moderate traffic
on a highway at 12:55 p.m. is a congested area for purposes of the
"...the Shepard Mesa subdivision -- comprised of a minimum of 20 houses,
in an area approximately .5 mi. x .66 mi. -- would qualify as a
congested area." DMH note: .33 square miles = 211 acres, average 10 acre
"There is no regulatory definition of 'congested area'. Administrative
case law has determined what is congested on a case-by-case basis. [Case
references are available on request]). The public should be aware that
an area does not have to be completely free of persons or properties to
be considered noncongested. Additionally, it is possible that small,
noncongested areas as small as an acre
or two may allow aerobatics to be performed without violating 91.303's
stipulations." DMH note: 91.303 prohibits aerobatics over any congested
area of a city, town, or settlement or over an open air assembly of
persons (sounds like 103, doesn't it?)
The FAA has actually has stated in a 1979 Legal Opinion that it will be
determined on a case-by-case basis. Below is a copy of the Opinion--note
the FAR references have changed.
"In response to your
letter dated August 28, 1979, and subsequent telephone conversation,
we offer the following answers to your three questions. The facts on
which our interpretations are based are as follows:
A fixed wing aircraft
operating at an altitude of 600 feet flew directly over a populated
subdivision of Prince William County, Virginia. The subdivision
consisted of at least 40 residential homes on one acre lots. While
operating in this area, the aircraft made a number of steep turns
over one of these houses.
1. What is the
interpretation of the term "congested area of a city, town or
settlement" as that term is used in Section 91.79(b) of the FARs?
The meaning of the term "congested area" is determined on a
case-by-case basis. It first appeared in the Air Commerce
Regulations of 1926. No abstract regulatory definition has yet been
developed. However, the following guidelines indicate the
interpretations of the Civil Aeronautics board (now National
Transportation Safety Board) in attempting to give meaning to the
purpose of the rule is to provide minimum safe altitudes for flight
and to provide adequate protection to persons on the ground. Thus,
it distinguishes flight over sparsely settled areas as well as large
metropolitan areas from low flying aircraft. Thus, size of the area
is not controlling, and violations of
the rule have been sustained for operation of aircraft: (i) over a
small congested area consisting of approximately 10 houses and a
school (Allman, 5 C.A.B. 8 (1940)); (ii) over campus of a university
(Tobin, 5 C.A.B. 162, 164(1941); (iii) over a beach area along a
highway, and (iv) over a boy's camp
where there were numerous people on the docks and children at play
on shore. b. The presence of people is important to the
determination of whether a particular area is "congested." Thus, no
violation was found in the case of a flight over a large shop
building and four one-family dwellings because, in the
words of the CAB examiner, "it is not known (to the court) whether
the dwellings were occupied." In that case, the area surrounding the
buildings was open, flat and semiarid.
c. The term has been
interpreted to prohibit overflights that cut the corners of large,
heavily congested residential areas. As made clear in FAR 91.79, the
congested area must be an area of a city, town,
2. What is the interpretation of the term "sparsely populated areas"
as contained in Section 91.79(c)?
While this term is not expressly defined, we can conclude that it is
something other than a congested area under Section 91.79(a). A
subdivision of at least 40 occupied residential homes on adjacent
one acre lots in Price William County, VA, would not be considered a
sparsely populated area. Such a subdivision would well constitute a
"settlement" under the rule.
Please feel free to
contact us if we can be of further assistance.
EDWARD P. FABERMAN
Acting Assistant Chief Counsel
Regulation and Enforcement Division
Office of the Chief Counsel"
Interestingly, although the FAA doesn't
explicitly define "congested area",
other countries do:
IRISH AVIATION AUTHORITY (RULES OF THE AIR) ORDER, 2001
"'congested area' means in relation to a city, town or settlement, an
area substantially used for residential, commercial or recreational
purposes without adequate safe forced landing areas"
One other area where the FAA talks about
congested areas is for helicopter external load operations, which have
all kinds of requirements when done in congested areas, requiring a
"congested area plan". This is interesting because the low speed and
maneuverability of a ppg makes it similar to a chopper in some ways (one
can even say the pilot is an "external load" :) ):
(CHAPTER 102. EVALUATE A PART 133 CONGESTED AREA PLAN (CAP))
"(a) Congested Area. The congested nature of an area is defined by what
exists on the surface, not the size of the area. While the presence of
the nonparticipating public is the most important determination of
congested, the area may also be congested with structures or objects. An
area considered congested for airplane operations could be equally
congested for helicopters. If an airplane flying over a congested area
at less than 1,000 feet above ground level (AGL) is in violation of 14
CFR § 91.119(b), the area may also be a congested area for a helicopter
conducting external load operations. However, the most important word in
this concept is over. Helicopters can operate over relatively small
uncongested areas because of their maneuvering abilities."
In Europe, as they consolidate air law, they
are looking at the concept of "exposure time" as a way to evaluate
helicopter safety over congested areas. I don't think any of use would
like to see 103 go this way, but the idea is an interesting way of
looking at safety:
"Hostile environments," as defined under JAR-OPS 3.480, include areas
where "a safe forced landing cannot be accomplished because the surface
is inadequate"; where there is "an unacceptable risk of endangering
persons or property on the ground"; and "those parts of a congested area
without adequate safe forced landing areas."...
"Congested areas," as defined in JAR-OPS 3,
are essentially any densely populated town or city where no open spaces
exist to permit a safe emergency landing in the event of an engine
regulatory representatives agreed that the "congested area" concept is
made redundant by the distinction between "hostile" and "non-hostile"
created by JAR-OPS 3 was that of "exposure times." Performance Class 1,
Category A helicopters can fly over hostile and congested areas, but
JAR-OPS 3 allows Performance 2, Category A helicopters to fly over
hostile, non-congested areas with an exposure time, the length of which
depends on a target engine failure probability of 5 x 10-8.
"This translates, in practical terms, to
exposures ranging from a few seconds to several minutes."
Don't Piss 'em off
As always, nearly all conflicts stem from complaints by Joe and Jane
Q Public. If you'll fly in a way that doesn't attract undue attention
you'll probably be ok. Avoid being a noise nuisance or appearance
to endanger other. Fly fun and wind it up, just do so discreetly.