United States Court of Appeals, District of Columbia Circuit
John A. Taylor, Petitioner
Federal Aviation Administration, Respondent
January 25, 2018
Petition for Review of an Order of the Federal Aviation
A. Taylor, pro se, argued the cause and filed the briefs for
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
Before: Garland, Chief Judge, and Sentelle and Randolph,
Senior Circuit Judges.
Garland, Chief Judge.
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
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.
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).
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).
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
(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).
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.
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
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.
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).
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).
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.
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.
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). The result is that a section
336 model aircraft -- one that meets the ...