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Taylor v. Federal Aviation Administration

United States Court of Appeals, District of Columbia Circuit

July 6, 2018

John A. Taylor, Petitioner
Federal Aviation Administration, Respondent

          Argued January 25, 2018

          On Petition for Review of an Order of the Federal Aviation Administration

          John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.

          Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, Federal Aviation Administration.

          Before: Garland, Chief Judge, and Sentelle and Randolph, Senior Circuit Judges.


          Garland, Chief Judge.

         The Federal Aviation Administration (FAA) has issued a rule that regulates certain unmanned aircraft, popularly known as “drones.” Petitioner John Taylor, a model aircraft hobbyist, seeks review of that rule. He contends that the rule exceeds the agency's statutory authority, is arbitrary and capricious, and has miscellaneous additional infirmities. For the following reasons, we deny the petition for review.


         In the FAA Modernization and Reform Act of 2012, Congress tasked the Secretary of Transportation with developing "a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system." Pub. L. 112-95, § 332(a)(1), 126 Stat. 11, 73 (codified at 49 U.S.C. § 40101 note) (hereinafter "Modernization Act"). The Act defines an "unmanned aircraft" as "an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft." Modernization Act § 331(8). A "small unmanned aircraft" is a craft that meets this definition and weighs less than 55 pounds. Id. § 331(6). And an "unmanned aircraft system" is "an unmanned aircraft and associated elements," such as communication links and components that control the unmanned aircraft. Id. § 331(9).

         Section 332 of the Modernization Act instructs the Secretary to conduct a rulemaking "to implement the recommendations" of the comprehensive plan, and to issue "a final rule on small unmanned aircraft systems that will allow for civil operation of such systems in the national airspace system." Id. § 332(b). Section 333 of the Act, entitled "Special Rules for Certain Unmanned Aircraft Systems," directs the Secretary to determine whether some unmanned aircraft systems may operate safely in the national airspace system before completion of the comprehensive plan and rulemaking required by section 332. Id. § 333(a).

         Section 333 is one of two sections of the Modernization Act that are most directly relevant to this petition. It directs the Secretary to determine "(1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and (2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under [49 U.S.C. § 44704] is required for the operation of [such] unmanned aircraft systems." Id. § 333(b). If the Secretary determines "that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system." Id. § 333(c).

         The other directly relevant section is section 336, which creates a statutory "Special Rule for Model Aircraft." Id. § 336. The section defines a "model aircraft" as "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." Id. § 336(c). Section 336 provides that, notwithstanding any other provision of law regarding incorporation of unmanned aircraft systems into FAA plans and policies, the FAA (a component of the Department of Transportation) "may not promulgate any rule or regulation regarding a model aircraft" that satisfies the following five operational criteria:

(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 . . .;
(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 . . . with prior notice of the operation . . . .

Id. § 336(a).

         Section 336 also provides, however, that nothing in it "shall be construed to limit the authority of the [FAA] Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system." Id. § 336(b). In short, section 336's statutory Special Rule creates a safe harbor from FAA regulation for those model aircraft that meet its five operational criteria. That safe harbor itself has an exception for dangerous model aircraft operations.

         For the purposes of this opinion, we will use the phrase "section 336 model aircraft" to refer to model aircraft that meet the five operational criteria of the statutory Special Rule. We will use the term "non-section 336 model aircraft" to refer to model aircraft that do not meet one or more of the safe harbor requirements.

         After Congress passed the Modernization Act, the FAA took two related regulatory actions that are relevant as background but are not the subject of this case.

         In 2014, the agency issued an Interpretation of the Special Rule for Model Aircraft, which interpreted several terms contained in the statutory Special Rule. 79 Fed. Reg. 36, 172 (June 25, 2014). The FAA sought public comments on the Interpretation and is currently reviewing those comments. Status Report, UAS Am. Fund, LLC v. FAA, No. 14-1156 (D.C. Cir. June 19, 2018).

         In 2015, the FAA promulgated a rule requiring the registration of small unmanned aircraft, including model aircraft. Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78, 594 (Dec. 16, 2015). Taylor challenged the registration rule, and this circuit held that it violated the Modernization Act in certain respects. Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017). Soon thereafter, Congress restored the registration rule to effect. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1092(d), 131 Stat. 1283, 1611 (2017).

         Finally, in 2016, the agency promulgated the rule that is the subject of this case, Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42, 064 (June 28, 2016) (hereinafter "Small UAS Rule"). Two provisions of the Small UAS Rule are at the heart of Taylor's petition for review.

         First, the rule adds a new part 107 to the Code of Federal Regulations (C.F.R.) to "allow for routine civil operation" of small unmanned aircraft systems and "to provide safety rules for those operations." Id. at 42, 066. Consistent with the statutory definition noted above, the rule defines a small unmanned aircraft as one that weighs less than 55 pounds. Id. at 42, 085-86; see 14 C.F.R. § 107.3. To mitigate risk, the rule limits small unmanned aircraft systems to "daylight and civil twilight operations with appropriate collision lighting, confined areas of operation, and visual-line-of-sight operations." 81 Fed. Reg. at 42, 066; see 14 C.F.R. §§ 107.29, 107.31, 107.43, 107.45. Part 107 also addresses "airspace restrictions, remote pilot certification, visual observer requirements, and operational limits." 81 Fed. Reg. at 42, 066; see, e.g., 14 C.F.R. §§ 107.33, 107.37, 107.41, 107.61.

         Second, the Small UAS Rule adds a new subpart E to part 101 of the C.F.R., as well as a § 107.1 to part 107. Those provisions codify the statutory Special Rule for Model Aircraft contained in Modernization Act § 336. Subpart E's § 101.41 lists the five operational criteria required to qualify for the statutory safe harbor from FAA regulation. 14 C.F.R. § 101.41. Subpart E's § 101.43 provides that the safe harbor does not extend to operations that endanger the safety of the national airspace system. Id. § 101.43. And § 107.1 completes the package by providing that the small unmanned aircraft system requirements of part 107 do not apply to any aircraft that falls within the safe harbor of § 101.41. Id. § 107.1(b)(2).[1] The result is that a section 336 model aircraft -- one that meets the ...

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