Section 336 under attack
Rich Hanson
richh@modelaircraft.org
Throughout this past year, there has been mounting pressure for Congress to either fix Section 336 or to outright repeal the federal statute that has protected the aeromodeling community for the past six years. In November 2017, Section 336 was put into question during a drone security summit panel with Homeland Security and the Department of Defense. Later that same month, in its prepared testimony to the House Subcommittee on Aviation, the Air Line Pilots Association (ALPA) concluded that Section 336 needed to be repealed.
The Small UAV Coalition has been outspoken in its belief that Section 336 needs to be modified to allow the FAA to impose regulation on recreational UAS, such as the proposed requirement for sUAS identification and tracking. Several other entities have expressed concern regarding what they perceive as failings of the federal statute.
Section 336, better known as the Special Rule for Model Aircraft, was passed by Congress as part of the FAA Modernization and Reform Act of 2012, and was codified into federal statute as P.L. 112-95, Section 336. The clamoring for modification and/or repeal of 336 stems from the misbelief that somehow the statute creates a “gap” in the rules for the operation of unmanned aircraft that allows recreational users to do as they please and to operate outside of the regulatory structure. Nothing could be further from the truth.
Congress was clear in its construction of Section 336. The Special Rule for Model Aircraft was never intended to allow recreational users to operate outside of an established and proven safety program. To be afforded the provisions of the rule, the statute clearly states that model aircraft must be “operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization (CBO).” The requirement to operate within the programming of a nationwide CBO is a provision that is often understated by the FAA and, at times, omitted completely.
In response to an inquiry to the FAA’s UAS help line, that concerned whether membership in a CBO is required to follow Section 336, the FAA responded, “The FAA does not interpret P.L. 112-95, Section 336 as requiring membership in a CBO, nor does the FAA list any CBOs. You must only follow the guidelines of a CBO.”
This stated position ignores Congress’ requirement to operate within the programming of a nationwide CBO and has led to thousands of UAS operations outside of any structured safety program.
In its 2012 FAA reauthorization, Congress made clear its intention and defined a CBO in the conference report of the FAA Modernization and Reform Act. Congress stated that CBOs are membership-based associations that provide their members with a comprehensive set of safety guidelines that underscore safe aeromodeling operations within the national airspace and the protection and safety of people on the ground.
The guidelines develop and maintain mutually supportive programming with educational institutions, government entities, and other aviation associations, and act as a liaison with government agencies to advocate for its members. AMA is clearly one such organization and arguably the only such organization existing today.
In a letter dated February 27, 2014, Bob Brown, the AMA president at that time, formally requested that the FAA recognize the AMA as a nationwide CBO, as defined by Congress. AMA further provided a 25-page document validating the AMA’s compliance with all of the criteria established for a CBO. To date, the FAA has not responded to this request.
The perceived gap created by Section 336 stems in part from the misbelief that the new 14 CFR Part 107 is exclusively for commercial and business operators. This certainly is not the case. FAA codified Section 336 into federal regulation under Part 101, and clearly states that UAS operations that do not fully comply with Part 101 must comply with Part 107. Recreational fliers must either operate in accordance with a community-based set of safety guidelines and within the programming of a nationwide CBO, or comply with Part 107 to include obtaining a remote pilot’s license.
To operate with AMA’s community-based safety program one must: 1) affirm that you will abide by AMA’s safety guidelines as a condition of membership; 2) provide the AMA with up-to-date contact information so we can communicate with you concerning relevant safety matters; and 3) be financially responsible (e.g., you must have adequate insurance to respond to any third-party claim for injury or property damage). In short, you must be a member.
AMA will continue to do everything it can to set the record straight and to dissuade the pressure being brought to bear to modify or repeal Section 336, but we will likely need your help.
As Congress renews its efforts to pass a new FAA reauthorization bill, please stay engaged and be ready to respond to your elected representatives if and when the time comes.
