John Taylor v. FAA , 895 F.3d 56 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2018 Decided July 6, 2018
No. 16-1302
JOHN A. TAYLOR,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
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.
Opinion for the Court filed by Chief Judge GARLAND.
2
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.
I
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
3
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;
4
(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.
5
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-
6
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
five criteria in the statutory Special Rule -- is exempt from the
new part 107 requirements. By contrast, a model aircraft that
fails to meet one or more of the section 336 criteria is subject to
the regulations of part 107.
1
Section 107.1 accomplishes this by providing that part 107
“does not apply to . . . [a]ny aircraft subject to the provisions of part
101.” Id. § 107.1(b)(2). And § 101.1 states that part 101 “prescribes
rules governing the operation” of “[a]ny model aircraft that meets the
conditions specified in § 101.41.” Id. § 101.1(a)(5).
7
II
Taylor has petitioned for review of the Small UAS Rule.
His challenges fall into four categories, which we address
below.
A
Taylor contends that the rule violates the Modernization Act
by regulating the forbidden category of section 336 model
aircraft. As we noted above, section 336(a) of the Act states that
the FAA “may not promulgate any rule or regulation regarding
a model aircraft” if that aircraft meets the five operational
criteria listed in the statute. Modernization Act § 336(a). Taylor
argues that the rule violates section 336(a) in two respects: by
imposing new regulations on section 336 model aircraft, and by
exposing section 336 model aircraft to pre-existing regulations.
The FAA did not request Chevron deference for its statutory
interpretation, see Chevron U.S.A. Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). Because we conclude that the
petition should be denied on de novo review, we do not address
the Chevron standard. See Fed. Election Comm’n v. Craig for
U.S. Senate, 816 F.3d 829, 839 n.6 (D.C. Cir. 2016).
Taylor’s first argument is that the newly promulgated 14
C.F.R. § 101.41 is a rule or regulation regarding model aircraft
and is inconsistent with section 336(a). Taylor’s argument fails
because § 101.41 does not regulate section 336 model aircraft
at all. To the contrary, it simply defines the model aircraft that
fall within section 336(a) and, in so doing, does no more than
repeat the five criteria that Congress itself listed in section
336(a).
8
Section 101.41 states:
This subpart prescribes rules governing the operation
of a model aircraft . . . that meets all of the following
conditions as set forth in section 336 of Public Law
112–95:
(a) The aircraft is flown strictly for hobby or
recreational use;
(b) The aircraft is operated in accordance with a
community-based set of safety guidelines and within
the programming of a nationwide community-based
organization;
(c) The aircraft is limited to not more than 55
pounds . . . ;
(d) The aircraft is operated in a manner that does not
interfere with and gives way to any manned aircraft;
and
(e) 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.
14 C.F.R. § 101.41 (emphasis added); compare Modernization
Act § 336(a). Section 101.43 then subjects model aircraft that
meet those criteria to only one requirement: the anti-
endangerment provision expressly permitted by Modernization
Act § 336. 14 C.F.R. § 101.43; see Modernization Act § 336(b).
And the new § 107.1(b)(2) then exempts model aircraft that
satisfy the § 101.41 criteria from the regulations imposed by the
new part 107. 14 C.F.R. § 107.1(b)(2).
9
Accordingly, the Small UAS Rule’s § 101.41 is nothing like
the Registration Rule that we invalidated in Taylor’s previous
challenge. See Huerta, 856 F.3d at 1092. The Registration Rule
“create[d] a new regulatory regime for model aircraft.” Id. at
1093. It “impose[d] new requirements . . . on people who
previously had no obligation to . . . the FAA” and “impose[d]
new penalties . . . on model aircraft owners who [did] not
comply.” Id. By contrast, § 101.41 simply mirrors the statutory
category of section 336 model aircraft and imposes no
requirements on them (except for the anti-endangerment
requirement permitted by section 336(b)). See Modernization
Act § 336(b).2
Taylor’s second claim is that the Small UAS Rule
unlawfully subjects section 336 model aircraft to pre-existing
regulations that were previously applicable only to traditional,
full-size aircraft. According to Taylor, the rule exposes section
336 model aircraft to the “entire weight of traditional aircraft
statutes and regulations,” yielding “results that are as legally
inescapable as they are absurd.” Taylor Br. 24, 25. He claims,
for example, that all hobbyists must now obtain pilots’ licenses,
comply with minimum altitude requirements, and service their
aircraft at licensed aircraft mechanics. Id. at 25-26, 44-47.
In Taylor’s view, this parade of horribles arises because
§ 107.1(a) states that, “[e]xcept as provided in paragraph (b) of
this section, this part applies to . . . civil small unmanned aircraft
systems.” 14 C.F.R. § 107.1(a). Taylor concludes from this
language that section 336 model aircraft are to be treated as a
type of “civil small unmanned aircraft system,” and thus a type
2
Of course, a rule that defines the category of aircraft that it does
not regulate could be described as a rule “regarding” such aircraft.
But we do not read section 336(a) as barring the FAA from advising
operators which aircraft are not subject to the Small UAS Rule.
10
of “aircraft,” for all statutory and regulatory purposes. Taylor
Br. 24.
This reads too much into the rule’s reference to “civil small
unmanned aircraft systems.” As noted above, none of the new
requirements of part 107 apply to section 336 model aircraft at
all. That is because the “paragraph (b)” exception referred to in
the above quotation states that “[t]his part does not apply to . . .
[a]ny aircraft subject to the provisions of part 101,” 14 C.F.R.
§ 107.1(b)(2), and § 101.41 mirrors the section 336(a) criteria,
see id. § 101.41; supra note 1.
Nor does any other part of the Small UAS Rule subject
section 336 model aircraft to the pre-existing regulations Taylor
identifies. To the contrary, in the rule’s preamble, the FAA
explained that it had not proposed “any changes to its existing
regulations with regard to section 336 operations” and that such
changes were beyond the scope of the rulemaking. 81 Fed. Reg.
at 42,083. The challenged rule itself, therefore, imposes no
restrictions on section 336 model aircraft apart from the anti-
endangerment regulation, 14 C.F.R. § 101.43, which Taylor
does not challenge.3 At oral argument, the FAA agreed with this
interpretation.4 Accordingly, because Taylor’s petition for
3
Taylor does not challenge the FAA’s authority to promulgate
the anti-endangerment regulation for good reason. As noted in Part I,
the statutory Special Rule contains an exception to the section 336(a)
regulatory bar for this type of FAA regulation. See Modernization Act
§ 336(b) (“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.”).
4
Oral Arg. Recording at 48:20-48:57 (Court: “Do you regard
anything that the agency did in the rulemaking that is challenged here
as imposing any regulations on model aircraft that satisfy the statute’s
11
review was limited to the Small UAS Rule, see Pet. for Rev.,
Taylor v. FAA, No. 16-1302 (D.C. Cir. Aug. 29, 2016), he will
have to file a new petition should he ever wish to challenge an
attempt by the FAA to apply a pre-existing rule to section 336
model aircraft.
Because the challenged rule’s only regulation of section 336
model aircraft is permitted by the Modernization Act, the FAA
has honored the statutory safe harbor for these aircraft. We
therefore reject this challenge.
B
Taylor’s next contention concerns the FAA’s statutory
authority to regulate non-section 336 model aircraft. Unlike
section 336 model aircraft, these recreational aircraft fall outside
the statutory (and regulatory) safe harbor and are subject to the
new operating requirements of part 107.5 Taylor argues that the
FAA lacks statutory authority to regulate non-section 336 model
aircraft.
According to Taylor, prior to passage of the Modernization
Act, “the FAA consistently acknowledged it did not have
regulatory authority over recreational model aircraft.” Taylor
Br. 30. Taylor maintains that, at the time the Modernization Act
336 requirements?” FAA Counsel: “No.” Court: “No requirements
of any kind?” Counsel: “No. . . . There is a regulation that prohibits
reckless operations, but . . . 336(b) expressly permits FAA to prevent
reckless operation even of model aircraft.”).
5
Part 107 applies to “civil small unmanned aircraft systems”
except, as relevant here, to “[a]ny aircraft subject to the provisions of
part 101.” 14 C.F.R. § 107.1 (a), (b)(2). Because only those model
aircraft that meet all of the section 336(a) criteria are subject to part
101, part 107 governs model aircraft that do not meet those criteria.
12
was passed, the FAA’s interpretation of the pre-existing Federal
Aviation Act was that only “commercial use small unmanned
vehicles” were aircraft; recreational model aircraft, by contrast,
were not “aircraft” at all. Id. Moreover, he continues, the
Modernization Act “codified” that FAA interpretation. Id. The
FAA disputes Taylor’s claims about its previous interpretation,
stating that its previous failure to regulate recreational model
aircraft was an exercise of enforcement discretion, not statutory
interpretation. See Operation and Certification of Small
Unmanned Aircraft Systems, 80 Fed. Reg. 9544, 9550 (proposed
Feb. 23, 2015); FAA Br. 43-44.
We do not need to resolve the parties’ dispute about the
FAA’s previous interpretation of the pre-existing statutory
provisions, or their dispute about whether those provisions alone
would have been sufficient to authorize the Small UAS Rule.
The primary authority upon which the FAA relies for that rule
is a new statutory section: section 333 of the Modernization
Act, passed in 2012. See 81 Fed. Reg. at 42,067 n.6. And there
is no doubt that this section permits the agency to apply the
regulations of the Small UAS Rule to recreational model aircraft
that do not fall within the section 336 safe harbor.
Modernization Act § 333 directs the FAA to determine
“which types of unmanned aircraft . . . may operate safely in the
national airspace system,” and then directs the agency to
“establish requirements for the safe operation of such aircraft.”
Modernization Act § 333(b), (c). Section 336, in turn, defines
a “model aircraft” as “an unmanned aircraft that is . . . flown for
hobby or recreational purposes.” Modernization Act
§ 336(c)(3) (emphases added). And it provides that the FAA
may not promulgate regulations regarding “a model aircraft . . .
if . . . the aircraft” satisfies the five operational criteria of the
safe harbor. Id. § 336(a) (emphasis added). Thus, the text
makes clear that Congress has authorized the FAA to regulate
13
recreational model aircraft, so long as they are outside the safe
harbor of section 336(a).6
There is nothing to support Taylor’s contention that,
notwithstanding the above, the Modernization Act was intended
to codify the alleged prior understanding that the FAA could not
regulate any recreational model aircraft.7 To begin, we note that
Taylor has cited neither statutory language nor legislative
history that indicates such an intent. It is true, as Taylor notes,
that “Congress is presumed to be aware of an administrative . . .
interpretation of a statute and to adopt that interpretation when
it re-enacts a statute without change.” Lorillard v. Pons, 434
U.S. 575, 580 (1978). But even if we were to accept Taylor’s
claim regarding the FAA’s interpretation of pre-existing
statutory provisions, Congress did not re-enact a statute without
change here. To the contrary, it enacted a new statute with
6
The statutory text likewise contradicts Taylor’s contention that
an aircraft is solely “a tool of manned flight, used, by a person, to
achieve that person’s flight.” Taylor Br. 31 n.16. At least with respect
to the Modernization Act, “aircraft” includes “unmanned aircraft.”
See Modernization Act § 331(8).
7
In Taylor v. Huerta, we did say that section 336(a) “codified the
FAA’s longstanding hands-off approach to the regulation of model
aircraft.” 856 F.3d at 1091. But that codification extended only to
model aircraft falling within the safe harbor of section 336(a). The
problem with the Registration Rule at issue in Huerta was that it
applied to all model aircraft, not just to model aircraft outside the safe
harbor. See id. at 1092; see also Order, Taylor v. Huerta, No. 15-1495
(D.C. Cir. Aug. 3, 2017) (denying petitioner’s motion for a contempt
sanction against the FAA for applying registration requirements to
non-section 336 model aircraft).
14
entirely new provisions regarding the regulation of unmanned
aircraft.8
Taylor insists that the structure of the Modernization Act
indicates that Congress “adopted the FAA’s [allegedly]
consistent interpretation that recreational model aircraft are
neither ‘civil aircraft’ nor ‘public aircraft’ (the only two types of
aircraft that exist),” and that, as such, “they are not aircraft at
all.” Taylor Br. 35 (citing 49 U.S.C. § 40102(a)(16)). He
argues that the structure so indicates because it “create[s]
separate regimes for: 1) civil unmanned aircraft, in § 332 and
§ 333; 2) public unmanned aircraft, in § 334; and 3) recreational
model aircraft, in § 336.” Id. at 34-35. We disagree.
First, the suggestion that recreational model aircraft are
neither “public” nor “civil” aircraft, and hence “not aircraft at
all,” is at best a counterintuitive interpretation of the pre-existing
statutory definition.9 In any event, the contention that a model
aircraft is not an “aircraft” for purposes of the Modernization
Act is directly contradicted by the Act itself, which, as we have
just noted, defines “model aircraft” as “an unmanned aircraft
that is . . . flown for hobby or recreational purposes.”
Modernization Act § 336(c)(3); see id. § 331(8) (defining
“unmanned aircraft” as a type of “aircraft”).
8
Nor did it merely “adopt[] a new law incorporating sections of
a prior law.” Lorillard, 434 U.S. at 581.
9
Section 40102(a) defines an “aircraft” as “any contrivance . . .
designed to navigate, or fly in, the air.” 49 U.S.C. § 40102(a)(6). It
defines a “public aircraft” as a government aircraft. Id.§ 40102(a)(41). And it then defines a “civil aircraft” as “an aircraft
except a public aircraft.” Id. § 40102(a)(16).
15
Second, the Act does not create the three separate regimes
that Taylor perceives. Section 332 does apply to “civil
unmanned aircraft,” and section 334 does apply to “public
unmanned aircraft.” Id. §§ 332, 334. But section 333 (which is
the directly relevant section here and directs expedited
rulemaking) simply applies to “certain unmanned aircraft” --
those the FAA determines may operate safely in the national
airspace system. Id. § 333.
Nor does section 336 constitute a statutory bar against any
regulation of recreational model aircraft. As set forth above,
that section provides that the FAA may not promulgate
regulations regarding “a model aircraft . . . if . . . the aircraft”
satisfies the five operational criteria of the safe harbor. Id.
§ 336(a) (emphasis added). The expressio unius est exclusio
alterius canon -- “the expression of one thing implies the
exclusion of others” -- suggests that the FAA may promulgate
regulations if an aircraft does not satisfy those criteria.10 And
while that canon’s “force in particular situations depends
entirely on context,” In re Sealed Case No. 97-3112, 181 F.3d
128, 132 (D.C. Cir. 1999) (en banc) (internal quotation marks
omitted), here the context indicates that Congress expected that
10
Cf. Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (holding
that a statutory provision authorizing release from detention in certain
circumstances implies that there are no other circumstances under
which individuals detained under the provision may be released);
POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2238 (2014)
(“By taking care to mandate express pre-emption of some state laws,
Congress if anything indicated it did not intend the [statute] to
preclude requirements arising from other sources.”); In re Sealed Case
No. 97-3112, 181 F.3d 128, 132 (D.C. Cir. 1999) (en banc) (applying
the canon to conclude that a Sentencing Guidelines section providing
“that if the government moves the court may depart [from the
Guidelines],” means, in context, “that if the government does not
move the court may not depart”).
16
a model aircraft would be subject to regulation if it did not come
within the safe harbor. After all, why would Congress go to the
trouble of defining (by listing five criteria) a protected
subcategory of “model aircraft” if it thought the FAA had no
authority to regulate model aircraft at all?
Finally, although we hold that the FAA has authority to
apply the part 107 requirements to recreational model aircraft
outside the safe harbor (that is, to non-section 336 model
aircraft), we do not decide whether the agency may apply any
other regulations to these aircraft. We do not read part 107 -- or
anything else that the FAA promulgated in the Small UAS Rule
that is the sole subject of the petition before us -- to make other
regulatory provisions applicable to these recreational model
aircraft, except for those provisions expressly cross-referenced
in the rule. See, e.g., 14 C.F.R. § 107.27 (requiring compliance
with 14 C.F.R. §§ 91.17 and 91.19). At oral argument, the FAA
again agreed with this reading.11 If the FAA were to apply
other, pre-existing regulatory provisions to non-section 336
model aircraft, that decision may be subject to a separate
challenge.12
11
Oral Arg. Recording at 53:46-54:09 (Court: “In your view, the
only -- the only requirements that apply to unmanned aircraft that
don’t meet 336 are those contained in 107, [is] that right?” FAA
Counsel: “That’s right . . . to be clear, it’s a subset of operations, so
. . . it has to be during the day, you have to have visual line of sight
observer, all of those things.”).
12
Because those pre-existing regulations and the statutory
provisions upon which they were based (including their definition of
“aircraft”) are not before us, we do not address Taylor’s complaint
that, by deferring consideration of how such regulations and
provisions apply to recreational unmanned aircraft systems, the FAA
rendered those regulations and provisions arbitrary, capricious, or
unconstitutionally vague.
17
C
We turn next to Taylor’s contention that the Small UAS
Rule is “arbitrary and capricious.” Taylor Br. 40 (citing 5
U.S.C. § 706(2)(A)). Under the familiar “arbitrary or
capricious” standard for reviewing agency action, the scope of
our review is “narrow,” and we will not “substitute [our]
judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency
action survives such review as long as the agency “examine[d]
the relevant data and articulate[d] a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.” Id. (internal quotation marks
omitted). Taylor’s five arguments do not persuade us that the
FAA acted arbitrarily or capriciously in this matter.
1. Taylor first asserts that the Small UAS Rule creates
“absurd and contradictory results [by] applying full-size aircraft
regulations” to model aircraft. Taylor Br. 41. We reject this
challenge because the rule does not do so. As explained above,
the Small UAS Rule does not apply any regulations to section
336 model aircraft except the anti-endangerment regulation.
Nor does the rule apply full-size aircraft regulations to non-
section 336 model aircraft. As also explained above, the only
regulations the rule applies to such aircraft are those in (and
referenced in) the new part 107, which was specifically crafted
for small unmanned aircraft.13
13
We do not understand Taylor to be charging that the small
unmanned aircraft regulations of part 107 are themselves “absurd and
contradictory” as applied to non-section 336 model aircraft. In any
event, his briefs do not do so with sufficient specificity for us to
discern such a charge. The FAA crafted the regulations of part 107
because it recognized that pre-existing regulations did “not
differentiate between manned and unmanned aircraft” and hence could
18
2. So far as Taylor challenges the FAA’s decision to
regulate recreational non-section 336 model aircraft at all, rather
than limiting its regulations solely to commercial (non-
recreational) craft, the FAA appropriately accounted for that
choice. The agency explained that, “from a safety point of view,
there is no difference between the risk posed by recreational
operations . . . and non-recreational . . . operations.” 81 Fed.
Reg. at 42,081. In particular, the agency was concerned that an
unmanned aircraft operator would not have the ability to see and
avoid other aircraft, and that a loss of positive control of the
aircraft could pose a risk to persons, property, and other aircraft.
Id. at 42,068. Because “[t]here is no data indicating that a small
UAS operation whose operational parameters raise the safety
risks addressed by part 107 would become safer simply as a
result of being conducted for recreational or salutary purposes,”
id. at 42,081, the agency’s decision to regulate recreational non-
section 336 model aircraft was reasonable.
3. Taylor also argues that the agency arbitrarily changed its
position regarding the regulation of recreational model aircraft.
In Taylor’s view, the agency historically treated such aircraft as
“toys . . . rather than as a type of ‘aircraft’” subject to the FAA’s
statutory authority. Taylor Br. 11. He contends that the Small
UAS “Rule’s application of [p]art 107 . . . to recreational [non-
section 336] model aircraft” thus marks a “radical change” that
the agency cannot lawfully ignore. Id. at 43-44; see FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) (“An agency
may not . . . depart from a prior policy sub silentio or simply
disregard rules that are still on the books.”).
result in an “undue burden” on small unmanned aircraft operations.
81 Fed. Reg. at 42,069. The part 107 provisions were specifically
“designed to impose the minimal burden necessary to ensure the safety
and security of a small UAS operation.” Id. at 42,082.
19
Once again, it is unnecessary for us to wade into the
agency’s historical practice because the “primary authority” for
the rule was a new statute, the Modernization Act. 81 Fed. Reg.
at 42,067 n.6 (noting that the agency relied primarily on section
333 of the Act, as well as on other FAA statutory authorities).
It is true that a new law does not necessarily give an agency a
blank check to depart from prior policies. See Am. Fed’n of
Labor & Cong. of Indus. Orgs. v. Brock, 835 F.2d 912, 917-18
(D.C. Cir. 1987) (rejecting an agency’s assertion that its
“dramatic shift” in policy reflected a “contemporaneous
interpretation of new legislation” where the new legislation
“made absolutely no alteration to the statutory mandate”
underlying the policy). But as we have discussed, in this case
the Modernization Act directed the FAA to establish
requirements for the safe operation of unmanned aircraft
systems, including recreational model aircraft outside the safe
harbor. See supra Section II.B. Congress’ directive to integrate
such aircraft into the national airspace system adequately
supports any shift in the FAA’s policy toward recreational non-
section 336 model aircraft that is reflected in the Small UAS
Rule.
4. Taylor further contends that the agency acted arbitrarily
and capriciously by imposing a notice requirement on operators
of section 336 model aircraft. Specifically, he objects to the
requirement that model aircraft operators who want an
exemption from part 107 must “provide[] [an] airport operator
and the airport air traffic control tower . . . with prior notice of
the operation” when flying within five miles of the airport. 14
C.F.R. § 101.41(e). This requirement is arbitrary, he maintains,
because the agency does not require similar notice by part 107
operators. Taylor Br. 48 (citing 14 C.F.R. § 107.43).
We reject Taylor’s argument because it is the statute, not
the regulation, that imposes the notice requirement. See
20
Modernization Act § 336(a)(5). As we have said,
Modernization Act § 336(a) lists five operational criteria,
including the notice requirement, that model aircraft must satisfy
to fall within the statutory safe harbor. Section 101.41 faithfully
tracks those requirements, including the notice requirement.
Compare 14 C.F.R § 101.41(e), with Modernization Act
§ 336(a)(5). And we decline to strike down a rule that merely
implements an unchallenged governing statute. See AT&T
Corp. v. Iowa Utilities Bd., 525 U.S. 366, 396 (1999) (“[I]t is
hard to declare the FCC’s rule unlawful when it tracks the
pertinent statutory language almost exactly.”); see also Purepac
Pharm. Co. v. Friedman, 162 F.3d 1201, 1205 (D.C. Cir. 1998);
Metro. Wash. Airports Auth. Prof’l Fire Fighters Ass’n v.
United States, 959 F.2d 297, 300 (D.C. Cir. 1992).
5. Fifth, we reject Taylor’s contention that the FAA acted
unreasonably by declining to define certain terms in the Small
UAS Rule. Taylor maintains that the FAA should have clarified
what makes an organization a “nationwide community-based
organization,” what qualifies as “programming,” and what
activities “endanger the safety of the national airspace.” See 14
C.F.R. §§ 101.41(b), 101.43. The first two terms are part of one
of the criteria for the safe harbor exemption from part 107, id.§ 101.41(b); the third is the anti-endangerment provision
applicable to section 336 model aircraft, id. § 101.43. All three
precisely mirror the language of section 336 of the
Modernization Act.
In the notice accompanying the Small UAS Rule, the FAA
stated that “issues concerning the specific meaning of section
336 (such as what makes an organization a nationwide
community-based organization) are beyond the scope of this
rule.” 81 Fed. Reg. at 42,082. The agency explained that it was
“considering the specific meaning of section 336 provisions in
a separate regulatory action,” and that, “in order to avoid
21
duplication, [it] limited the scope of the model-aircraft
component of th[e] rulemaking simply to codifying the FAA’s
enforcement authority over model-aircraft operations that
endanger the safety” of the national airspace. Id.
The “separate regulatory action” to which the agency
referred was the proceeding for issuance of an Interpretation of
the Special Rule for Model Aircraft. See 79 Fed. Reg. 36,172(June 25, 2014); supra Part I. The initial interpretation, issued
in 2014, did in fact interpret several terms in section 336,
including several of interest to Taylor. See 79 Fed. Reg. at
36,174 (identifying Congress’ intended definition of
“nationwide community-based organization”); id. n.7
(explaining that “community-based organizations” include
groups such as the Academy of Model Aeronautics); see also 81
Fed. Reg. at 42,124 (identifying the Academy of Model
Aeronautics as a nationwide community-based organization).
The initial interpretation also discussed the scope of the FAA’s
enforcement authority against operators who endanger the safety
of the national airspace system. 79 Fed. Reg. at 36,175-76. As
we noted in Part I, the FAA sought public comments on the
initial interpretation and is currently reviewing those comments.
Petitions for review challenging the initial interpretation, filed
in this circuit, have been held in abeyance pending issuance of
a final interpretive rule. See Order, UAS Am. Fund, LLC v. FAA,
No. 14-1156 (D.C. Cir. Nov. 18, 2014).
Contrary to Taylor’s complaint, it was not unreasonable (or
unconstitutional) for the FAA to use the instant rulemaking
merely to codify section 336 and to consider the specific
meaning of section 336’s provisions in the separate regulatory
action that it had already begun. “An agency enjoys broad
discretion in determining how best to handle related, yet
discrete, issues in terms of . . . priorities” and “need not solve
every problem before it in the same proceeding.” Mobil Oil
22
Expl. & Producing Se. Inc. v. United Distrib. Cos., 498 U.S.
211, 230-31 (1991).14 In announcing the Small UAS Rule, the
FAA explained that it had “received over 33,000 public
comments” on the initial interpretation and was “currently
considering the issues raised by these commenters and will issue
a final Interpretive Rule that reflects its consideration.” 81 Fed.
Reg. at 42,082. Delaying issuance of the Small UAS Rule until
it finalized the interpretive rule, the FAA said, “would prejudice
non-model small UAS operations.” Id. at 42,083. In light of
these considerations -- coupled with the Modernization Act’s
directive to expedite rulemaking for unmanned aircraft systems
where possible, see Modernization Act §§ 332(b), 333 -- it was
reasonable for the agency to place further definition of those
terms in a holding pattern while it landed the Small UAS Rule.
We therefore reject all of Taylor’s “arbitrary and
capricious” challenges to the rule.
D
Finally, Taylor contends that the FAA violated the
Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501 et seq.
That Act requires agencies to follow specific procedures prior to
“conduct[ing] or sponsor[ing] the collection of information,”
including publishing notice in the Federal Register and obtaining
approval from the Office of Management and Budget (OMB).
Id. § 3507(a).
14
See Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1032
(D.C. Cir. 2008); cf. Charter Commc’ns, Inc. v. FCC, 460 F.3d 31, 43
(D.C. Cir. 2006) (holding that “[t]he FCC has discretion ‘to defer
consideration of particular issues to future proceedings when it thinks
that doing so would be conducive to the efficient dispatch of business
and the ends of justice’” (quoting U.S. Telecom Ass’n v. FCC, 359
F.3d 554, 588 (D.C. Cir. 2004))).
23
According to Taylor, the agency did not follow the required
procedures before mandating that operators of section 336(a)
model aircraft provide notice to airports. As we have explained,
however, that notification provision is one of the five statutory
criteria required of operators who wish to take advantage of the
safe harbor provided by section 336(a). See supra Part II.C.4.
The FAA’s regulation merely repeats that criterion, without any
elaboration or specification of the form of notice required.
Hence, the PRA is inapplicable because it was Congress, not the
agency, that made notification a prerequisite for entry into the
safe harbor. Compare Saco River Cellular, Inc. v. FCC, 133
F.3d 25, 32 (D.C. Cir. 1998) (holding that the FCC was required
to comply with the PRA where “Congress merely authorized,
[but] did not require” the collection of information).
Taylor also faults the FAA for failing to follow PRA
procedures for the B4UFLY smartphone application, an app
designed to give unmanned aircraft operators real-time
information about flight restrictions and other requirements.
Because B4UFLY was not part of the challenged Small UAS
Rule, it is beyond the scope of the petition for review that is now
before us. We note, however, the FAA’s representation that
PRA procedures were in fact followed and that OMB approved
the collection of information with respect to B4UFLY. FAA Br.
48. We also note Taylor’s failure to dispute the point in his
reply brief.
III
The FAA has promulgated a rule that regulates section 336
model aircraft only to the extent expressly permitted by
Congress. The rule regulates recreational non-section 336
model aircraft more broadly, but that regulation is likewise
consistent with Congressional directives. Because the rule is
24
within the agency’s statutory authority and is neither arbitrary
nor capricious, the petition for review is
Denied.