Section 336


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

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.

“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.

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Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

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

drone-law-education-teacher-professor-school

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.)

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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:

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

pilotheadshot

If you an educational institution getting into this area, I would highly suggest you seek out competent aviation legal advice. 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).