Many commenters stated that the FAA’s decision to require registration of model aircraft is in violation of section 336 of the FAA Modernization and Reform Act of 2012, Public Law 112-95, which stipulates that the FAA “may not promulgate any rule or regulation regarding a model aircraft” that meets certain criteria. Commenters pointed out that one such criterion is that
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the model aircraft be operated “in accordance with a community-based set of Safety Guidelines and within the programming of a nationwide community-based organization.” Commenters stated that the AMA is one such organization, and that the FAA must therefore exempt AMA members from the registration requirement. Other commenters stated more generally that FAA must identify all nationwide community-based organizations and exempt their members from any rule or regulation (including registration) when the aircraft is operated in accordance with a community-based set of safety guidelines.
The Competitive Enterprise Institute asserted that the FAA conceded in its interpretation of section 336 that “a model aircraft operated pursuant to the terms of section 336 would
potentially be excepted from a UAS aircraft rule,” an interpretation that the commenter said
“would logically lend itself to a UAS aircraft registration rule as well.” This commenter accused the FAA of ignoring both the plain language of the statute and its own interpretation of it, and asked the FAA to explain how it has the jurisdiction to regulate small UAS operated by hobbyists.
Several commenters found fault with the FAA’s justification for requiring registration of model aircraft – i.e., that it is applying existing law that applies to all “aircraft” and not
promulgating new regulations regarding model aircraft. The Mercatus Center at George Mason University asserted that the current proceeding “relied quite directly on laws that by statute may not be used as justification for an expansion of the regulatory obligations of model aircraft operators;” namely, its UAS integration mandate under the FAA Modernization and Reform Act.
This commenter further asserted that if the FAA does not restart the process without references to that mandate there is a possibility that registration of non-commercial UAS will be overturned if challenged in court. An individual commenter stated that if, as the FAA asserts, the definition
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of model aircraft as “aircraft” means that all existing federal aviation regulations retroactively apply to model aircraft, the congressional prohibition on regulating them would be pointless.
This commenter further stated that the clear intent of Congress was to prohibit the FAA from regulating model aircraft at all, and that if Congress meant instead to apply the full array of existing aviation regulations to model aircraft, it would have said so. This commenter also asserted that, even if the FAA is correct that all existing aviation regulations apply to model aircraft, it is not acting consistently with that principle because it is picking only one of the many regulations that apply to manned aircraft and arbitrarily applying it to model aircraft. This
commenter further asserted that this “is the very epitome of arbitrary and capricious, and clearly shows that the FAA is being disingenuous when it claims it is merely applying existing
regulations.” This commenter went on to say that “[t]he fact that the FAA finds it necessary to request public comments in a sort of expedited unofficial NPRM, followed by assembling a special Task Force (somewhat like an Advisory Rulemaking Committee (ARC) to determine what steps are necessary to implement the registration process, clearly reveals the FAA’s proposal to be in fact a new regulation regarding model aircraft in direct contravention of [FAA Modernization and Reform Act] Sec. 336.”
Another individual stated that the FAA is not being forthright in averring that its decision not to register model aircraft until now was “discretionary.” This commenter expressed doubt that a regulatory document exists in which the agency explicitly stated that “model aircraft need not be registered, as a discretionary exclusion from 49 U.S.C. 44101,” and that if such a
document does exist it should have been referenced in the Clarification/Request for Information.
This commenter further asserted that the absence of such a document destroys the premise of the
“clarification” the FAA has now put forth.
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Two individual commenters challenged the agency’s reliance on the NTSB ruling in Administrator v. Pirker (NTSB Order No. EA-5739), noting that the ruling only held that model aircraft qualify as “aircraft” as the term is used in 14 CFR 91.13(a), which prohibits careless and reckless operation.42
Two individual commenters stated that the FAA’s authority to pursue enforcement action against persons who endanger the safety of the NAS (under section 336(b) of Public Law 112-95) cannot reasonably be interpreted to mean the agency has the blanket authority to mandate registration of model aircraft.
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.
42 The commenter cited to Administrator v. Pirker, NTSB Order No. EA-5739 at 12 (Nov. 17, 2014).
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2. Comments addressing requirements under the Administrative Procedure Act