Section 336


Why the FAA’s Drone Registration Requirements Are ILLEGAL

This article lays out an in-depth discussion as to the three big reasons why the FAA’s FAR Part 48 drone registration regulations are illegal and should be struck down by a court. The registration regulations are currently being challenged in the D.C. Circuit Court of Appeals by John Taylor and I am assisting him with the lawsuit.

 

Key Point of the Rule:

Persons owning small unmanned aircraft, whether intended to be used as model aircraft or as other than model aircraft, are required to register those aircraft with the FAA[.]” “This rule applies to all owners of small unmanned aircraft which weigh more than 0.55 pounds and less than 55 pounds on takeoff.” It goes into effect Dec 21, 2015. If you do not comply, you could face civil penalties up to $27,500 and criminal penalties of $250,000[1] and/or imprisonment up to 3 years.[2]

 

While the electronic means of registration seems great and would be a wonderful thing for my commercial drone clients, the issue is NOT with the proposed regulations but (1) the apparent direct violation of Section 336 of the FMRA, (2) the improper use of the “good cause” bypass exception to the Administrative Procedures Act, and (3) the lack of statutory authority.

 

 

1. The Violation of Section 336

Section 336 of the FAA Modernization and Reform Act of 2012 says:

IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft[.]” The key word here is “any” and the major take away is that it prevents the promulgation of new rules or regulations, not the using of already existing regulations (i.e. Part 47 and § 91.203).The FAA believes that model aircraft operators are now subject to 91.203 which requires the drone to be registered prior to operation in the national airspace.

 

FAA responded to the Section 336 prohibition allegation in the registration rule document:

The FAA disagrees with the comments asserting that the registration of model aircraft is prohibited by section 336 of Public Law 112-95. While section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements. As previously addressed, Public Law 112-95 identifies model aircraft as aircraft and as such, the existing statutory aircraft registration requirements implemented by part 47 apply.

 

This action simply provides a burden-relieving alternative that sUAS owners may use for aircraft registration. Model aircraft operated under section 336 as well as other small unmanned aircraft are not required to use the provisions of part 48. Owners of such aircraft have the option to comply with the existing requirements in part 47 that govern aircraft registration or may opt to use the new streamlined, web-based system in part 48.”’[3]

Alternative or a New Regulation?

If this is a “burden-relieving alternative[,]” why does the rule seeks to amend the non-alternative current rules in Part 1, § 45.1, § 47.2, § 47.3, § 47.7, § 91.203, § 375.11, and § 375.38? This rule is a new rule coupled with multiple regulations being amended so as to harmonize the new rule in Part 48.

 

One key point is that this is being codified in Part 48 of the Code of Federal Regulations which brings us squarely back to the issue of the prohibition on the creation of rules or regulations.

What Does Section 336 Actually Prohibit?

If it is “not a complete bar on rulemaking[.]” what is it a bar actually on? It has to be a bar on something and it would be completely ludicrous to interpret it as a bar on nothing. The FAA’s interpretation is that it is a bar on “some” rulemaking, just not “any.” The scope of “some” is completely unclear.

 

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“Any” = “Some?”

Context is king. “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.[4] We must not seek the FAA’s interpretation of this statute, but Congress’ meaning of the FMRA.

 

Let’s look at the word “any” used elsewhere in Sections 331-336 of the FMRA and replace “any” with the FAA’s interpretation of “some” and see what happens.

“[E]nsure that any [some] civil unmanned aircraft system includes a sense and avoid capability[,]”[5]

“[I]ncorporation of the plan into the annual NextGen Implementation Plan document (or any [some] successor document) of the Federal Aviation Administration.”[6]

IN GENERAL.—Notwithstanding any [some] other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.”[7]

“[W]hich types of unmanned aircraft systems, if any [some], as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security[,]”[8]

“[O]utside of 5 statute miles from any [some] airport, heliport, seaplane base, spaceport, or other location with aviation activities.”[9]

IN GENERAL.—Notwithstanding any [some] other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any [some] rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft,”[10]

“[T]he aircraft is operated in a manner that does not interfere with and gives way to any [some] manned aircraft[.]”[11]

 

Using the redefined “any” causes havoc on the reading of the text. The context of all those sections using “any” used it just as if they would have used the word “all.”

 

Though not as contextually persuasive as Sections 331-336, 14 CFR § 1.3 Rules of Construction differs from the FAA’s interpretation, ‘“a person may not * * *” mean[s] that no person is required, authorized, or permitted to do the act prescribed[.]”’ Why did I bring up § 1.3? Because that rule of construction applies to 91.203 which is going to be the regulation cited against individuals flying their drones unregistered, “no person may operate a civil aircraft unless it has within it the following: The FAA’s interpretation of Section 336 “may not promulgate any[,]” meaning some rules or regulations, is different than their interpretation of 91.203 “no person may[,]” meaning all persons, which is currently being used against one individual, Skypan, and will be used against any future individuals who choose to not register their drone prior to operation.

 

Does Any Mean Any Any Time?

The Second Federal Circuit Court of Appeals has said:

As the Supreme Court has frequently observed, use of the word “any” in statutory text generally indicates Congress’s intent to sweep broadly to reach all varieties of the item referenced. See, e.g., United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (quoting Webster’s Third New International Dictionary 97 (1976) in concluding that, ‘[r]ead naturally, the word `any’ has an expansive meaning, that is, `one or some indiscriminately of whatever kind'”); accord HUD v. Rucker, 535 U.S. 125, 131, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (same); Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) (noting that “Congress made [the phrase at issue] even broader when it chose the expansive word `any’ to precede the list” (internal quotation marks omitted)). The Court most recently applied this principle in interpreting the phrase “`any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air'” in the Clean Air Act. Massachusetts v. EPA, ___ U.S. ___, 127 S.Ct. 1438, 1460, 167 L.Ed.2d 248 (2007) (quoting 42 U.S.C. § 7602(g)) (ellipsis and emphases in original). It concluded that “[o]n its face,” the quoted language “embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word `any.[12]

 

The United States Supreme Court has said:

‘[A]ny’ can and does mean different things depending upon the setting. Compare, e. g., United States v. Gonzales, 520 U. S. 1, 5 (1997) (suggesting an expansive meaning of the term “`any other term of imprisonment'” to include state as well as federal sentences), with Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 542-546 (2002) (implying a narrow interpretation of the phrase ‘any claim asserted’ so as to exclude certain claims dismissed on Eleventh Amendment grounds). To get at Congress’s understanding, what is needed is a broader frame of reference, and in this litigation it helps if we ask how Congress could have envisioned the . . . clause actually working. . . . See, e. g., New Jersey Realty Title Ins. Co. v. Division of Tax Appeals of N. J., 338 U. S. 665, 673 (1950) (enquiring into ‘the practical operation and effect’ of a state tax on federal bonds).[13]

 

Contexts indicates that Congress practically intended that model aircraft would be free from the creation of rules or regulations. This is evidenced by sub-section (b) which says, “STATUTORY CONSTRUCTION.—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.”[14] The only thing in all of Section 336 that could even be read to limit the FAA is the language “may not promulgate[.]”

 

Buttressing that, sub-section (c) defines “model aircraft” more narrowly than the definition of unmanned aircraft in Section 331 which indicates that it is a “special” sub-classification of the broad classification of unmanned aircraft. This all points to Congress intending to mean any any time it is used in Section 331-336.

 

In conclusion, the United States Supreme Court, while acknowledging that any could mean different things, it is generally to be taken as a broad sweep of the category, unless context indicates otherwise. Furthermore, context indicates that sub-section (b) and (c) both look at (a) as providing something special that unmanned aircraft (non-model and public aircraft) do not get.

 

2. Good Cause Bypass Exception to the Administrative Procedures Act Requirements

5 U.S.C. § 553 says,

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply—

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

 

14 CFR § 11.11 echoes,

A final rule with request for comment is a rule that the FAA issues in final (with an effective date) that invites public comment on the rule. We usually do this when we have not first issued a [proposed rule] . . . , because we have found that doing so would be impracticable, unnecessary, or contrary to the public interest. We give our reasons for our determination in the preamble. The comment period often ends after the effective date of the rule. A final rule not preceded by an [proposed rule] is commonly called an ‘immediately adopted final rule.’

 

So unless the proposed regulation falls into the good cause bypass exception, it has to go through the rule making process required by Congress. It is ubiquitously called “notice and comment.” To make it simple, unless bypassed, the FAA must publish the proposed rule in the Federal Register, the public is given an opportunity to comment on it, the FAA must digests the comments and then publish a final rule. There are many steps involved that are beyond the scope of this article, but if you want more info, I wrote a chapter on the FAA rule making process for the American Bar Association book located here.

 

The green arrow is where Part 48 was with the registration task force’s proposal on November 21, 2015. The blue arrow is where the current Part 107 commercial rule is located that was started back in 2009 and was only just published as a proposed rule in February of 2015 and became a final rule in August 29, 2016. The red arrow is  where the current registration rule, Part 48, is located in the rule making process.  The point I’m making is it bypassed all that stuff in the middle.

FAA registration rule making process

FAA registration rule making process

 

 

The FAA can only do this if it can show that going the notice and comment route is either “impracticable, unnecessary, or contrary to the public interest.

 

The FAA acknowledges the comments of individuals saying this violates the APA in pages 156-159 and points us back to the preamble (page 11) of the document.

 

The FAA’s justifications for the good cause exception were not completely clear on which of the three justifications categories they fall into so I attempted to categorize them from pages 11-20. I was unclear as to where most of the “impracticable” justifications should go and made a good faith effort to represent the FAA’s position accurately because I’m assuming they didn’t throw in non-exception factual justifications.

  • Impracticable
    • “Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.”[15]
    • The Registration Branch can’t handle the influx of Part 47 registrations soon to come in by the FAA now requiring all drones over 250 grams to be registered prior to operation.[16]
    • Part 47 registration was not designed for drones.[17]
    • Part 47 registration will cost the FAA 775 million over the next 5 years.[18]
    • Waiting longer for the notice and comment is impracticable.[19]
  • Unnecessary
    • Drones are already considered aircraft and all aircraft are required to be registered.[20]
    • Congress has directed the FAA to ensure safety of aircraft and airspace.[21]
    • No one would object because it “relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”[22]
  • Contrary to the Public Interest
    • FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold.[23]
    • Individuals are commercially operating without authority.[24]
    • The FAA lists multiple stories on drone sightings.[25]
    • The FAA lists two tables of drone reports from 2014 and 2015.[26]
    • The FAA details 7 stories of drone reports.[27]
    • Commercial drone sales will “rapidly accelerate” to 11 million by 2020.[28]
    • Many individuals are new and have no clue of the national airspace.[29]

 

Governing Authority

We are going to look at case law where applicable that will explain the good cause exception from 5 U.S.C. 553 and we will also look to the Federal Aviation Regulations, Part 11, which “applies to the issuance, amendment, and repeal of any regulation for which FAA (“we”) follows public rulemaking procedures under the Administrative Procedure Act (“APA”) (5 U.S.C. 553).[30]

 

This is an excerpt from my American Bar Association book chapter on FAA rule making which deals specifically with these areas. Keep in mind I’m not going through the footnotes and trying to correct all the supra’s.

 

Airworthiness Directives are subject to the rulemaking process as described elsewhere in this chapter. The FAA has an Airworthiness Directives Manual[31] which explains these three good cause exceptions that will now be discussed.

  1. When Notice and Comment is Impracticable

            “This exception can be used when an urgent and unsafe condition exists that must be addressed quickly, and there is not enough time to carry out Notice and Comment procedures without compromising safety.”[32] The manual goes on to say the urgency must be explained and the time to give individuals to comply with the AD must reflect the urgency.[33] “For example, it would make little sense to say immediate action is necessary to prevent a landing gear failure and then allow 60 days compliance time to resolve the unsafe condition.[34] Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.’”[35] In Air Transport Association of America vs. the Department of Transportation,[36] the FAA’s penalty enforcement action was vacated by the U.S. Supreme Court because:

 

[T]he FAA is foreclosed from relying on the good cause exception[, from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).[37]

 

  1. When Notice and Comment Is Unnecessary

 This type of direct final rule is in effect a “final rule with request for comments. [The FAA’s] reason for issuing [this type of] direct final rule without an NPRM is that [the FAA] would not expect to receive any adverse comments, and so an NPRM is unnecessary.”[38] The FAA plans “the comment period to end before the effective date” so if there are any adverse comments, it can withdraw the final rule and issue an NPRM.[39] If the FAA publishes a rule, but a legitimate adverse comment comes up, the FAA will publish in the Federal Register a notification of withdrawal, part or whole, of the previous direct final rule.[40]  The FAA can then either publish a new direct final rule with the comments taken into account or publish a NPRM.[41]

 

Other unnecessary situation are when: (1) no one in the U.S. would be affected by the regulation and (2) the FAA makes “minor corrections, clarifications, and editorial changes.”[42]

 

  1. When Notice and Comment Is Contrary To the Public Interest

Generally, this exception is coupled with either the impracticable or unnecessary exception. This exception’s purpose “is to excuse an agency from the Notice requirement if providing advance Notice would defeat the purpose of the agency action. For example, issuing advance Notice that the government is contemplating financial controls could cause public reactions so excessive that the financial system could be placed in jeopardy.”[43]

 

The Federal Circuit Court of Appeals for DC said,

Generally, the “good cause” exception to notice and comment rulemaking, see 5 U.S.C. § 553(b)(3)(B), is to be “narrowly construed and only reluctantly countenanced.” Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C.Cir.1992) (quoting New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980)). The exception excuses notice and comment in emergency situations, Am. Fed’n of Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981), or where delay could result in serious harm. See Hawaii Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir.1995).[44]

 

Simply put, impracticable means you have no time (emergency), unnecessary means uncontested, and contrary to public interest is where the public would be harmed rather than benefited by the publication of the rule.

 

In light of the above, I will address the factual justifications for the bypass point by point.

 

Impracticable (Emergency)

The DC Circuit Court of Appeals examined this bypass carefully a 2014 case.

Impracticability is an “inevitably fact-or-context dependent” inquiry. See Mid-Tex Elec. Coop. v. FERC, 822 F.2d 1123, 1132 (D.C.Cir.1987). In the past, we have approved an agency’s decision to bypass notice and comment where delay would imminently threaten life or physical property. See, e.g., Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.Cir.2004) (upholding assertion of good cause when rule was “necessary to prevent a possible imminent hazard to aircraft, persons, and property within the United States”); Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C.Cir.1981) (noting the case was one of “life-saving importance” involving miners in a mine explosion); see also Jifry, 370 F.3d at 1179 (observing the good-cause exception should be invoked only in “emergency situations … or where delay could result in serious harm” (emphasis added)).[45]

  • Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.”[46]
    • The FAA had data as far back as 2014 on drone reports which the FAA believes shows an “immediate proliferation.” The AUVSI Economic Report published in March 2013 said, “we used 100,000 unit sales per year as a conservative benchmark.” The FAA did not publish any rule till December 14, 2015. This is almost 3 years after the AUVSI report and around 1-2 years after the FAA started gathering drone sightings. “But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).[47]
  • The Registration Branch can’t handle the influx of Part 47 registrations soon to come in by the FAA now requiring all drones over 250 grams to be registered prior to operation.[48]
    • Once again, the 2014 drone reports have been around for 1-2 years and the 2013 AUVSI report for almost 3 years. The reports cannot be used for justification for immediate implementation when the FAA and DOT waited. Waiting around till a problem becomes an emergency is bad public policy because it allows agencies to sidestep the comment period that was designed to put the public on notice and give the public a means of communicating their grievances.
  • Part 47 registration was not designed for drones.[49]
    • I don’t know why this is cited as a justification for impracticability or contrary to public interest.
  • Part 47 registration will cost the FAA 775 million over the next 5 years.[50]
    • I don’t know why this is cited as a justification for impracticability or contrary to public interest.
  • Waiting longer for the notice and comment is impracticable.[51]
    • Why? The idea behind implacability is this is an emergency, not an inconvenience. When someone call 911, does anyone expect 911 to say, “Yes, we can help you. We first need to create a taskforce on how to solve this problem, the taskforce will propose solutions to us, we will call you and let you know, and then we will be over there one week later.”

Unnecessary (Uncontested.)

  • Drones are already considered aircraft and all aircraft are required to be registered.[52]
    • That is what the United States Code, Code of Federal Regulations, the FAA and the NTSB say; however, while they have no problem with this rule, 99% of the model aircraft flyers out there will oppose this. 14 CFR § 11.13 says, “Our reason for issuing a direct final rule without [notice and comment] is that we would not expect to receive any adverse comments, and so an [notice and comment] is unnecessary. However, to be certain that we are correct, we set the comment period to end before the effective date. If we receive an adverse comment or notice of intent to file an adverse comment, we then withdraw the final rule before it becomes effective and may issue an [notice and comment].” The unnecessary exception is for no contest type of regulations. If this regulation was narrowly tailored to only the Section 333 guys who have to register anyways, this rule would have 99% of the commercial guys supporting it and it would be completely unnecessary to do notice and comment.
  • Congress has directed the FAA to ensure safety of aircraft and airspace.[53]
    • Congress most likely won’t contest this, but the model aircraft guys will; therefore, it still doesn’t fall into unnecessary because it is contested.
  • No one would object because it “relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”[54]
    • Only the Section 333 guys currently are required to do this and would not contest this rule. Hidden in this proposed regulations is that 14 CFR 91.203 registration requirement now applies to all aircraft above 250 grams. 91.203 requires the Part 47 route which is difficult. What is happening is the FAA is now “activating” a regulation that has laid dormant to model aircraft individuals and using that now activated difficult regulation as a justification to fall into the unnecessary. Here is the problem with that argument, 99% of the model aircraft community does not even know 91.203 now applies to them; therefore, you can’t have a rule being uncontested if the individuals affected don’t even know what is going on! The whole idea behind the Federal Register Act of 1934 and the Administrative Procedures Act was to keep the public informed.

 

Contrary to the Public Interest (Public Would Be Harmed Rather than Benefited by Notice and Comment)

  • FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold.[55]
    • See below.
  • Even commercial guys are operating without authority.[56]
    • Yes, unfortunately that is the case. Many are doing so because they feel the FAA is unjustifiably regulating this area or the Section 333 restrictions are unreasonable. This is why it is extremely important for the FAA and DOT to work within the restrictions of Section 336 and the APA so as to not add fuel to the fire.
  • The FAA lists multiple stories on drone sightings.[57]
    • See the next one.
  • The FAA details 7 stories of drone reports.[58]
    • Out of the 7 stories, 4 of them resulted in the individual being identified without mandatory drone registration, 2 would have never even been remedied by drone registration, and only 1 would have been helped by mandatory drone registration. I’m not sure why these stories were put in here other than to maybe illustrate that education on the front end could have possibly prevented all 7 and in 1 of the stories, the individual could have been identified by registration alone. These facts don’t translate into justifying the good cause exception for notice being against the public interest. Maybe this was used as a justification for impracticability? Even so, there are 7 stories and this does not constitute an emergency.
  • The FAA lists two tables of drone reports from 2014 and 2015.[59]
    • The court’s review of agency rulemaking is highly deferential, limited to determining “whether the agency has considered the relevant factors and articulated a ‘rational connection between the facts found and the choice made.’”[60] The AMA responded to the drone sightings in a report that brings into question the facts being used for justification. https://www.modelaircraft.org/gov/docs/AMAAnalysis-Closer-Look-at-FAA-Drone-Data_091415.pdf It is not clear how many of the sightings of drones are in locations they should not be or how many are seen in areas where they could fly under the FAA’s own guidance documents.
    • Furthermore, compounding the problem is that the FAA has not clearly come out and stated that under AC 91-57, AC 91-57A, FMRA Section 336, and 2014 Model Interpretation and many other areas listed online, that flying a drone near an airport is “illegal.” The lack of clarity leads everyone to believe that this is completely prohibited, and there has been no clarification by the FAA on this common misconception. Therefore, people report drones flying in places they could be flying in accord with the FAA guidance which causes the drone sightings to be inflated and unreliable for rule making.
  • Commercial drone sales will “rapidly accelerate” to 11 million by 2020.[61]
    • See above.
  • Many individuals are new and have no clue of the national airspace.[62]
    • This is a problem and should be remedied according to the APA and getting Congress to change Section 336.

 

 3. Lack of Statutory Authority

This is a major point. If you study out all the statutes where the U.S. Congress delegated authority to the FAA to registered aircraft, you’ll notice they are only give power to register – aircraft. They were never given power to register people anywhere. The statutes always say register and aircraft. Let this sink in. This is a “Do not go pass go” situation. Before we even get to the discussion of 336 and the APA’s good cause exception the FAA needs to answer this.

You don’t even have to own an aircraft to register. The FAA’s own Marke Gibson said he didn’t even own an aircraft but registered. [63]

 

Proposed Solutions for the FAA:

  • Get Congress to pass an amendment to Section 336 so the regulations will not be in violation of it.
  • Go the notice and comment route with the regulations. Don’t skip this because it is inconvenient.
  • Publish a document that has everything a drone pilot needs to know in ONE place. There are multiple things being said in multiple places. Certain parts of the regulations apply and other parts do not. It needs to be listed in one place if individuals are going to be educated; otherwise, it is far easier to just fly than try and figure out what is actually required of you. See my blog post where I discuss further. I had to actually create a chart in my drone book, Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them, of all the do’s and do not’s because they are scattered all over.
  • Go through the drone reports and do your best to “clean up” the data. The data is lacking and because the whole flying near airports misconception has not been full clarified, the data is over inflated and inaccurate. Seek to implement quality controls on the data gathering and properly classify and represent it.
  • Reach out to highly-viewed social media celebrities to collaborate with in educating the community.

 

Why Am I Proposing These?

My fear is this rule will “delegitimize” the FAA and DOT in the eyes of many drone flyers.

Why?

Hope this helps guys. Fly safe. J

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[1] 18 U.S.C. 3571

[2] 49 U.S.C. 46306

[3] Page 155.

[4] United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988)

(citations omitted).

[5] Section 332(a)(2)(A)(ii).

[6] Section 332(a)(2)(I).

[7] Section 333(a).

[8] Section 333(b)(1).

[9] Section 334(c)(2)(C)(v).

[10] Section 336(a).

[11] Section 336(a)(4).

[12] Cohen v. JP Morgan Chase & Co., 498 F. 3d 111, 117-18  (2nd Cir. 2007).

[13] Nixon v. Missouri Municipal League, 541 US 125, 132-33 (2004).

[14] Section 336(b).

[15] Page 19.

[16] Page 18.

[17] Page 18.

[18] Page 18.

[19] Page 19.

[20] Page 11.

[21] Pages 11-12.

[22] Page 20.

[23] Page 12.

[24] Page 12.

[25] Pages 12-13.

[26] Pages 13-14.

[27] Page 14-16.

[28] Page 17.

[29] Page 17.

[30] 14 C.F.R. 1.1.

[31] Fed. Aviation Admin., FAA-IR-M-8040.1C, Airworthiness Directives Manual (2010) [hereinafter “AD Manual”], available at http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/66ddd8e1d2e95db3862577270062aabd/$FILE/FAA-IR-M-8040_1C.pdf

[32] Id. at 15.

[33] See id.

[34] See

[35] Id.

[36] Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369 (D.C. Cir. 1990), vacated without opinion and

remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).

[37] Id. at 379.

[38] 14 C.F.R. § 11.13.

[39] Id.

[40] See 14 C.F.R. § 11.31(c).

[41] See id.

[42] AD Manual, supra note 302, at 15.

[43] AD Manual, supra note 302, at 15.

[44] Jifry v. FAA, 370 F. 3d 1174, 1179 (D.C. Cir. 2004).

[45] Sorenson Communications Inc. v. FCC, 755 F. 3d 702, 706 (D.C. Cir. 2014).

[46] Page 19.

[47] Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369, 378 (D.C. Cir. 1990), vacated without opinion and

remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).

[48] Page 18.

[49] Page 18.

[50] Page 18.

[51] Page 19.

[52] Page 11.

[53] Pages 11-12.

[54] Page 20.

[55] Page 12.

[56] Page 12.

[57] Pages 12-13.

[58] Page 14-16.

[59] Pages 13-14.

[60] Jifry v. FAA, 370 F. 3d 1174, 1180 (D.C. Cir. 2004).

[61] Page 17.

[62] Page 17.

[63] At 27:47 https://www.youtube.com/watch?v=fOeoHJZdwuw


Rupprecht Law’s Analysis of the FAA’s New Educational Use Exception for Drones

drone-law-education-teacher-professor-schoolUPDATE:  On August 29, 2016, Part 101 went into effect. Part 101 is essentially just a copy-paste of Section 336.  It is currently being challenged in a lawsuit up in the D.C. Circuit Court of Appeals.

The FAA announced on May 4, 2016 in a memorandum some helpful changes regarding the use of UAS in education.

The reason why this memo was created was that many universities were wanting to offer classes where students would be required to fly the aircraft. This brought up questions such as “does the university need a Section 333 Exemption?” or “does the student need a pilot license?” There were also spin-off questions such as “can we teach the local 4-H, Boy Scouts, etc. about drones?”

The FAA summed it up in three points:

  • A person may operate an unmanned aircraft for hobby or recreation in accordance with Section 336 of the FAA Modernization and Reform Act of 2012 (FMRA) at educational institutions and community-sponsored events[1] provided that the person is (1) not compensated or (2) any compensation received is neither directly or incidentally related to that person’s operation of the aircraft at such events;
  • A student may conduct model aircraft operations in accordance with Section 336 of the FMRA in furtherance of his or her aviation related education at an accredited educational institution;
  • Faculty teaching aviation-related courses at accredited education institutions may assist students who are operating a model aircraft under Section 336 and in common with a course that requires such operations, provided that the student maintains operational control of the model aircraft such that the faculty member’s manipulation of the model aircraft’s controls is incidental and secondary to the students (e.g. the faculty member steps in to regain control in the event the student begins to lose control, to terminate flight, etc.)

Section 336 of the FMRA says:

(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)).

 

There needs to be one point of clarification on this section in that Section 336 is focused on the FAA, not the public, and tells the FAA that they “may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if a model aircraft[2] is meeting all the 5 elements above. The FAA has misapplied this section repeatedly, most notoriously in the recent registration requirement which is currently being sued over by John Taylor and me in the D.C. Circuit. A lengthy blog post on 336 and the registration regulations is here.

The FAA is redefining its interpretation of “hobby or recreational use” as found in Section 336 as “to include operation of UAS to conduct demonstrations at accredited educational institutions or at other community-sponsored events provided the aircraft is not being operated for compensation, in furtherance of a business or incidental to a business.”[3]

UAS Demonstrations

Hobbyists or enthusiasts can fly at an “accredited educational institution or other community-sponsored events to promote the safe use of UAS and encourage students’ interest in aviation as a hobby or for recreational purposes provided the hobbyist receives no compensation of any kind (honorarium or reimbursement of costs), or any such compensation neither directly or indirectly furthers the hobbyists’ business or operation of the UAS.[4]

Keep in mind that the last portion is very broad. If you think this might apply to you, the work around is to just do demos inside a completely enclosed building and avoid all these legal gymnastic problems.

Student Use

The FAA went on to say that just because a student learns about the knowledge of flight does not make the flight not hobby and recreational when they will use that knowledge to get a degree.[5] The link between knowledge, to degree, to job is just “too attenuated” to be considered outside of hobby or recreational use.

The FAA concluded that UAS flying for “students at accredited educational institutions as a component of science, technology, and aviation-related educational curricula or other coursework such as television or film production or the arts more closely reflects and embodies the purposed of ‘hobby and recreation[.]’”[6]

If the student receives any reimbursement for costs or an honorarium then that is NOT hobby and recreational; however, a student may receive financial aid, participating in a work-study program, or being a paid research assistant to a faculty member teaching the course.[7]

Faculty Use

Faculty teaching a course or curricula that uses unmanned aircraft as a component of that course may provide limited assistance to students operating the unmanned aircraft” without changing the student’s hobby and recreational classification or the need for the faculty to obtain FAA authorization.[8]

This limited assistance exception is only where the UAS operation is secondary in the course; however, if UAS operations is the primary reason for the course, the faculty member would need authorization, but the student, as defined above, would not.

If you are an accredited institution interested in obtaining a flight instructing exemption, to date there has only been one exemption ever granted for public flight instructing. Keep in mind that if an educational institution obtains a Section 333 Exemption, they can flight instruct their own faculty because the new 333 Exemptions say, “All training operations must be conducted during dedicated training sessions and may or may not be for compensation or hire.”

It is NOT considered hobby and recreational for a faculty member or assistant to operate a drone as part of their professional duties. Additionally, a professor cannot do a “work around” and get the students to fly the drone for purposes of the faculty member’s professional research objectives.

When Does a University’s Class/Operations NOT Fall Into This Exception?

  • Faculty operating the drone for research and development
  • Faculty supervising students doing research and development using a drone
  • UAS flight instruction where the faculty instructor is actively involved in the operation (not incidental and secondary); however, just teaching without touching the controls would be fine. (Think of it like the faculty is the air traffic controller teaching the student how to land the aircraft.)

Problems I See:

Will the FAA continue to honor this Pre-Part 101 memo? 

Part 101 is really a copy-paste of 336. The FAA MAY continue to honor it but also might change their mind as time goes on. Interpretations are NOT the law, but the FAA’s view on how to follow the law. Nothing locks this interpretation in stone. They can easily switch it up on everyone tomorrow.

Does the Model Aircraft Have to Be Registered?

Nothing is said in the memo about whether the aircraft must be registered or not. This is most likely an oversight on the FAA’s part since they have been campaigning hard about the need for all aircraft 250 grams or above to be registered.

The FAA’s interpretation of Section 336 is that it prohibits the specific regulation of model aircraft, not the regulation of all aircraft as a whole like it is some sort of civil rights for drones equal protection clause which does not in any way work with the meaning of “special” in the title to Section 336. In other words, how are model aircraft special (as indicated in title of 336) if model aircraft are required to be treated like everyone else?

Are Model Aircraft Special or Not?

There is something seriously incongruous with the FAA’s view of Section 336 and how Section 336 actually reads. The FAA seems to view 336 as a means of allowing model aircraft flights without “authorization”[9] when in reality it is specifically addressed at the FAA telling them to not create any rule or regulation governing model aircraft.

Setting Educational Institutions Up for Failure?

The FAA said, “If an unmanned aircraft is operated as a model aircraft in accordance with the above, then it does not require FAA authorization.” Is there anything else they should do besides authorization? Any operating rules, etc.? This becomes problematic because some of the educational institutions are right NEXT TO AIRPORTS! Furthermore, some are in D.C. right smack dab in the SFRA or FRZ!  For example, Massachusetts Institute of Technology is within Logan’s Class B airspace and George Washington University is within the FRZ. Can MIT students merely notify Logan’s tower and manager in accord with 336 and fly? Wouldn’t that also violate the FAA’s current view that ALL regulations in Part 91 apply to unmanned aircraft such as the requirement to get clearance prior to entering Class B airspace?[10] If you are an educational institution reading this, you definitely need an aviation attorney on your team to help you navigate this area.

FPV Flying

The FAA in their 2014 policy interpretation on the model aircraft rules indicated that FPV racing would NOT fall within Section 336’s definition of model aircraft.[11] An interesting point here is the Federal Aviation Regulations require the pilot to “see and avoid” other aircraft[12] and Section 336 defines the model aircraft as being “flown within visual light of sight of the person flying the aircraft.”[13] This all logically follows that the FAA’s interpretation would be that FPV racing, while possibly permitted under this interpretation, would NOT be permitted under their model aircraft interpretation from 2014 since it would not be considered a “model aircraft” for purposes of Section 336.

Summary

If you an educational institution getting into this area, I would highly suggest you seek out competent aviation legal advice. I created a large article on drone law for educators which talks about Section 333, Part 101, and Part 107 with regards to educators, universities, etc.

When shopping around for legal help, consider the background of the attorney and if they have any experience because………Posers will keep your program grounded while an attorney who is a pilot will help it soar.

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[1] This would include “demonstrations at schools, Boy or Girl Scout meetings, Science Club, etc.” Page 1.

[2] (c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model

aircraft’’ means an unmanned aircraft that is—

  • 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.

[3] Page 3.

[4] Page 3.

[5] Page 4.

[6] Page 4.

[7] Footnote 9 on page 4.

[8] Page 5.

[9] Page 3.

[10] 14 CFR 91.131.

[11] “The FAA is aware that at least one community-based organization permits “first person view” (FPV) operations during which the hobbyist controls the aircraft while wearing goggles that display images transmitted from a camera mounted in the front of the model aircraft. While the intent of FPV is to provide a simulation of what a pilot would see from the flight deck of a manned aircraft, the goggles may obstruct an operator’s vision, thereby preventing the operator from keeping the model aircraft within his or her visual line of sight at all times.” Footnote 2 on Page 8-9 of https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf

[12] 14 CFR 91.113.

[13] Pub. L. 112-95, Section 336(c).