Jim Williams 336: The Great Model Airplane Conundrum

Guest Post by Jim Williams, former Manager of the FAA’s Unmanned Aircraft Systems (UAS) Integration Office

On Valentine’s day in 2012, President Obama signed into law the FAA Modernization and Reform Act (FMRA) of 2012 (PUBLIC LAW 112–95). This 155-page reauthorization of the FAA’s authority to regulate and manage the US National Airspace System contained the first ever mention of Unmanned Aircraft Systems (a.k.a. UAS or Drone – I typically use “UAS” to describe professional operators and “drone” for the recreational quad/hex operators).

The six pages dedicated to the integration of UAS into the US airspace became my marching orders two weeks later when I was tapped to lead the FAA’s efforts to integrate UAS into the NAS.

The UAS sections of the law were truly groundbreaking for many reasons.

First, it clearly established that UAS were aircraft which immediately subjected them to all the rules in the thousands of pages of FAA and DOT regulations that applied to manned aircraft.

Second, Section 333 gave the FAA the authority to not require airworthiness for small (less than 55 lbs.) UAS. Before the FMRA the law required airworthiness certification for all aircraft. We were able to use Section 333 to start approving commercial operations which helped relieve some of the pent-up demand. The more lasting consequences for this section was to enable the new rules for small UAS to omit airworthiness requirements.

The rule that became Part 107 was redrafted because of this change and became the regulatory structure that we enjoy today. The House Transportation and Infrastructure committee staffers who put this into the FMRA don’t get enough credit for enabling the explosion of sUAS commercial operations that have occurred as a result.

The third legacy of the FMRA is Section 336 “Special Rule for Model Aircraft”. I have copied the complete text at the end of this document, so you can see exactly what it says. Congress created this provision based on some effective lobbying from the Academy of Model Aeronautics (AMA) that was needed (in their opinion) because the FAA was considering regulating model aircraft as a part of the overall small UAS rulemaking.

I won’t get into the legal issues because I am not a lawyer and would probably get it wrong, but the FAA did have the authority, and some said the responsibility, to regulate model aircraft. The only policy in place at the time was an FAA Advisory Circular, AC 91-57 – Model Aircraft Operating Standards, that was one page long and essentially said stay away from manned aircraft. That document has been replaced by a new version, AC-91-57A.

AMA members were concerned about Federal regulation of their hobby.

They believed that their existing record of safety and the fact that they had been around longer than the FAA justified their special treatment. Remember, the Wright Brothers started out with model aircraft! The Congressional committee staffers told me that they were concerned that the FAA would stop kids and grandparents from flying model aircraft safely in parks and at flying sites.

However, Congress and the AMA did not count on the quadcopter revolution that was about to take place. Remember that the FAA reauthorization was very long in the making (22 short term extensions) and the quadcopter market was small even in 2012, so the complications created by the new law could not be foreseen. Model aircraft of any size require training to fly or your first flight is your last.

Quads are good to go out of the box, and the
high-end ones fly themselves. No one realized that when Section 336 was drafted.

What has always bothered me is that many people believe Section 336 deregulated model aircraft but that is not true. This language: “(b) 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” clearly gives the FAA authority to punish the bad actors in the system.

The problem is how do you catch them? Unless someone gets hurt, or there is an actual collision, it is difficult for the FAA to find the clueless and careless idiots out their endangering bystanders and manned aircraft.

Most people don’t understand that the FAA resources for enforcement are very limited.

FAA inspectors don’t patrol looking for bad drone flyers! They don’t even wander the ramps of airports much anymore looking for manned aircraft violations. The FAA has been focused on education primarily as you can see from their Compliance and Enforcement Program Order, 2150.3B with change 12.

The approach is to educate first and enforce only for very serious violations, repeat offenders, or for intentional violations. The overall approach is to encourage self-reporting and voluntary compliance. This works well for the professional aviation community as can be seen by the amazing record of safety in the airline industry since 2009.

Most recreational drone flyers don’t know that they are aviators operating in the National Airspace System with legal responsibilities.

Consistent with the “educate to prevent problems” approach, the FAA in cooperation with the AMA, AUVSI, and other sponsors created the Know Before You Fly Education Campaign and a mobile app to help people follow the rules: B4UFLY. When I was leading the FAA UAS Programs, I worked closely with AMA and AUVSI to do everything we could to educate drone operators. The FAA works with all the aviation associations to promote safety across the entire
regulated population.

Because of the relatively small size of the safety workforce (about 4800 people nationwide for all aspects of aviation safety), the FAA uses delegation of authority extensively. Most pilots get their medical certification, flight checks, and knowledge exams from delegated individuals and companies. Major companies involved in the design and manufacture of aircraft are even delegated to certify their own modifications to certified aircraft designs (e.g. Boeing).

The clueless, careless and criminal operators are basically anonymous.

The FAA’s first attempt to address this problem was the registration rule published in 2015 (PART 48 – Registration of Small UAS) that was struck down by the federal appeals court in May of 2017, then legalized again in the DOD Reauthorization passed in December of 2017.

The court found that Section 336 prohibited this rulemaking as violating this clause from the FMRA: “…Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft…” It is important to note that the court case was not brought by AMA but by an individual operator who objected to the FAA exceeding its mandate from Congress.

AMA is on record as agreeing with a registration requirement, but pushed the FAA to allow registration with AMA as a member to be considered equivalent to registering with the FAA.

However, registration is not sufficient for the law enforcement community. When the FAA attempted to publish rules for sUAS flight over people in 2016, the federal law enforcement agencies objected that they would not be able to tell the difference between an authorized flight over people and one that had bad intent. Consequently, the rule was placed on hold until a solution could be found for remote identification of all commercial drones approved for flight over people.

The FAA convened an industry advisory group to advise them on how to establish a requirement, but that group did not reach consensus on a single method. They made many recommendations but also included dissenting opinions in their report which you can find here: FAA UAS ID ARC Final Report.

The FAA has hinted that a Remote ID rule will be announced soon and that it will be based on the recommendations of the ARC.

Many in the industry and the law enforcement community believe that the Remote ID rule should apply to all sUAS, drones, and model aircraft. If the FAA agrees then this new rule will likely be challenged successfully in court unless FMRA Section 336 is modified.

Everyone in the industry (even AMA) agrees that Remote ID is a good idea. What everyone does not agree on is how it would be implemented and on what subset of sUAS it would apply to.

When I was at the FAA, I discussed the issue of regulation of drones with the Congressional staffers. I recommended that they reclassify drones with cameras as something other than model aircraft. This seemed like a good idea then, but now you can buy a 1-ounce Cheerwing Firefly drone that has a camera and the ability to display the video on a smartphone as you fly.

Do we really want to regulate a 1-ounce toy?

Hopefully, the FAA and Congress can find a meaningful way to differentiate between aircraft that can be a hazard and toys. I also think it would be a shame if traditional model aircraft (i.e. miniature versions of manned aircraft that require stick and rudder skills of a pilot on the ground) have to be retrofitted with some sort of transponder in order to be legal to fly.

The bottom line is that Section 336 is likely to change but it is very unlikely that it will go away.

The House version of the FAA Reauthorization working its way through Congress still includes the key provisions of the old Section 336 (see page 138). Associations like the Commercial Drone Alliance are made up of companies who can make donations to Congressional campaigns, but corporations can’t vote. AMA members can vote and are vocal about their passion to protect their hobby.

Text of Section 336

SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT. (a) 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, if—

(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)).

(b) 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.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is— (1) 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.

Jim Williams is the Founder and President of JHW Unmanned Solutions LLC. Jim advises his clients on issues related to aircraft and space operations with specific emphasis on all things related to unmanned aircraft systems (UAS)—a.k.a. drones.
With over 30 years of experience in the Aerospace sector, Jim recently served as Manager of the FAA’s Unmanned Aircraft Systems (UAS) Integration Office at the Department of Transportation, Federal Aviation Administration (FAA). This office functions as the single agency focal point for all UAS-related activities and is uniquely positioned to develop and coordinate solutions to UAS challenges across the FAA and with external organizations.
UAS are often described as the most disruptive aviation technology since the invention of the jet engine, and the FAA’s UAS Integration Office has the daunting challenge of accomplishing the safe, efficient and timely integration of this technology into the National Airspace System (NAS), while balancing the political pressure and economic needs of the nation. In early 2015, Jim testified before the House Committee on Science, Space and Technology on UAS integration issues.
Before taking the helm of the UAS Integration Office in March 2012, Jim spent six years as the Director of Engineering Services in the FAA’s NextGen Organization, where he led the coordination and integration of all systems engineering work needed to move the NAS toward NextGen. This work gave him a deep understanding of how FAA research progresses into a mature concept and eventually into the many technologies that become operational in the NAS. His office also led the development of the NAS Enterprise Architecture and NAS-level Requirements. Together these engendered a great appreciation for the interrelationships of the many systems which will be touched by the UAS integration effort.
During his lengthy career with the FAA, Jim led the organization tasked with lifecycle management of all FAA communications systems and the implementation of the Safety Management System in the Technical Operations Service Unit. He has also worked with the FAA Command Center to transition personnel into the Air Traffic Organization, directed the team that developed, procured and installed all air/ground communications services for the FAA, and led the team that designed, procured and fielded the FAA’s prototype Air/Ground Data Link Communications System. Jim also led the FAA Team that negotiated with other federal agencies to create a second civil GPS frequency.


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