House Passes FAA Reauthorization Bill: What Does It Mean for Drones? Will It Reform the 'Hobbyist' Loophole?
May 4, 2018
Last week, the House passed H.R. 4, a bill that reauthorizes the Federal Aviation Administration (FAA) through 2023. In addition to providing renewed funding for the FAA, the bill covers a wide range of topics related to aviation, from airport planning and development to noise requirements to details regarding “mothers’ rooms” at airports. But the bill has particular importance to the unmanned aircraft community, and (assuming similar provisions are passed by the Senate) will have significant effects on the regulation of unmanned aircraft systems (UAS or drones) going forward.
Impact on Modelers and Recreational Users
Perhaps most importantly, the House bill contains two different amendments that seek to reform the Section 336 modeler exception for FAA jurisdiction. Section 336 comes from the FAA Modernization and Reform Act of 2012 and forbids the FAA from enacting regulations that would apply to model aircraft operators, which encompasses recreational or hobbyist drone users that meet certain requirements. The DC Circuit interpreted this restriction broadly in Taylor v. Huerta, striking down FAA attempts to impose registration requirements on operators covered by Section 336 (and suggesting that any additional regulation of hobbyists would not fly). Congress fixed that specific issue last year, but did so in a way that only reinstated the drone registration requirements. It did not give the FAA the ability to impose other regulations on modelers, like requirements for remote identification (“Remote ID”) and tracking of drones in flight.
It's clear that Section 336 needs to be fixed. The provision was targeted at a relatively small community of enthusiasts who have been building and flying model aircraft for decades, and sought to exempt this community from the FAA’s efforts to adopt regulations that apply to the burgeoning new UAS market. But Section 336 ended up creating a fair amount of confusion, as many new recreational users simply assumed they were covered by it and did not comply with the processes and procedures of the Academy of Model Aeronautics (AMA)—the “community-based organization” referred to in Section 336.
In addition, the exemption (as interpreted by the court in Taylor) left a large category of UAS outside the FAA’s control for things like Remote ID and other regulations necessary to integrate drones into the national airspace. The FAA has made clear that Remote ID needs to be implemented to address the security concerns that are preventing future rulemakings that would expand routine operations, including flights over people and beyond visual line of sight. It is becoming clearer and clearer that Remote ID solutions aren’t really workable if they don’t apply to hobbyists. Indeed, just this week at the AUVSI XPONENTIAL conference, General Counsel for the Department of Transportation Steven Bradbury said it is critical that “all civilian drones” that transit the national airspace system be equipped with Remote ID.
There are two amendments to H.R. 4 that seek to address this gap in FAA authority. Although both were adopted as part of the bill, in some sense they represent competing visions as to how to deal with these concerns. Rep. Mark Sanford’s amendment would clarify and tighten the modeler exemption, and require the FAA to create additional rules for recreational UAS—a category distinct from model aircraft. While the Sanford amendment expands the scope of the FAA’s authority to impose new requirements on certain model aircraft that are able to operate beyond visual line of sight, it would continue to bar anything beyond registration for simpler model aircraft.
Rep. Peter DeFazio’s amendment would also tighten the scope of the model aircraft rule, but would give the FAA general authority to adopt regulations that are “generally applicable to unmanned aircraft,” including Remote ID and any “other standards” that are consistent with maintaining “safety and security” of the airspace—and it doesn’t create the third category of “recreational UAS” that Sanford’s amendment does. The DeFazio amendment thus would give the agency authority to impose certain regulations on all UAS, regardless of Section 336.
Of course, since both of these amendments were adopted by the House, the final engrossed House bill contains some internal tension. For example, how to reconcile Section 343 (added by the Sanford amendment), which says “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 [other than those noted above],” with Section 45509 (added by the DeFazio amendment), which states “Nothing in this section prohibits the Administrator from promulgating rules generally applicable to unmanned aircraft, including those unmanned aircraft eligible for the exception set forth in this section, relating to [remote ID and certain other topics]”?
As these competing amendments to H.R. 4 show, there is not yet consensus on how best to fix the Section 336 gap in authority. Creating a “recreational UAS” category has the benefit of tracking the existing universe of drone users. There is a vast pool of people who don’t fit the term “hobbyist” in the AMA sense, but who also are flying casually and recreationally and may find the Part 107 rules, which were designed for commercial UAS operations, too onerous to comply with. At the same time, because this new category would presumably be more lenient than Part 107 or Section 336 and would also cover the vast majority of casual drone users, there are legitimate questions to raise about its impact on safety. More importantly, just creating a new recreational user category doesn’t fully close the Section 336 gap; it might make the number of aircraft covered by the exemption in Section 336 smaller, but as the comments of DOT’s General Counsel show, it is increasingly apparent that it just won’t work to have any significant category of aircraft excluded from safety and security regulations like Remote ID.
Other UAS Amendments
A number of other UAS-related amendments also made it into the bill prior to passage, including those that:
- Codify the Administration’s Integration Pilot Program;
- Direct the FAA to establish a program to utilize available remote detection and identification technologies, and to report on drones entering restricted airspace;
- Require the FAA to issue regulations related to use of certain tethered public UAS without the need for a waiver;
- Require coordination between the National Telecommunications and Information Administration (NTIA), Federal Communications Commission (FCC), and FAA on whether small UAS operations should be permitted on aviation spectrum;
- Require the FAA to review interagency coordination and standards for federal use of counter-UAS systems;
- Mandate that the FAA act within one year to set rules for Section 2209 “critical infrastructure” designations;
- Establish prohibitions at the federal level for using unmanned aircraft as weapons;
- Modify the scope of a Department of Transportation Inspector General study on appropriate roles of state and local governments to include the role of states and localities in emergency situations;
- Align FAA programs supporting UAS integration and development of the Unmanned Traffic Management (UTM) system; and
- Direct the FAA to partner with non-governmental organizations and state and local agencies to prevent recreational UAS from interfering with first responders.
These amendments join a series of other UAS-related provisions in the main text of the bill. Of note there, one of the main text’s provisions would require the FAA to develop rules for carriage of property for hire by small UAS. The FAA’s Part 107 rules currently allow this, but only on an intrastate basis. The FAA took this approach to avoid package delivery drones and other drones carrying property needing to be classified as interstate air carriers, subjecting them to a complex suite of statutory and regulatory requirements. The provision in H.R. 4 would fix this problem, requiring the FAA to establish a process for small UAS air carrier certification that is “streamlined, simple, performance-based, and risk-based.”
H.R. 4 next faces the Senate’s legislative process, where these provisions may be altered or dropped completely. The UAS community should pay close attention, though, because small changes in the law could lead to big impacts on this growing industry.