Problem 9: How Does this Work with Section 336 of the FMRA?
Section 336 of the FAA Modernization and Reform Act says:
(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.
Congress passed this to protect recreational flyers. What the FAA is now doing is not “promulgating” any new regulations but merely repurposing the existing “locked in time because of the FMRA” regulations to try and get jurisdiction over drones. This is evidenced in the latest $1.9 million fine against Skypan where the FAA cited multiple violations of regulations other than the 91.13 careless and reckless prohibition. If the regulations cited above in Problem 7 cannot cover drones being sold in a store because they are not “operating,” the FMRA essentially just locked the FAA out from creating any new regulations.
