Sunday, June 18, 2017

The U.S. Court of Appeals Deals Major Blow to FAA

As noted previously in this blog, the FAA determined in 2015 that it was time in the development of UAS regulation and operation  to enforce the applicability of the statutory requirements regarding aircraft registration to UAS, including those operating as model aircraft. In response to the Clarification and Request For Information document in Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration (“Clarification”) in Docket No. FAA-2015-4378, 80 FR 63912 (October 22, 2015),  the FAA issued an Interim Final Rule clarifying these statutory requirements and issuing a request for further information.  See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,59  (December 16, 2015)  (the “Registration Rule”).  The Registration Rule extended to

Unmanned aircraft weighing less than 55 pounds and more than 0.55 pounds (250 grams) on takeoff, including everything that is on board or otherwise attached to the aircraft and operated outdoors in the national airspace system.

The FAA determined that “Owners of small unmanned aircraft must register their aircraft
prior to operation of the sUAS.”  No exception was created for model aircraft.

Required information from individuals registering small unmanned aircraft intended to be used exclusively as model aircraft are as follows: 
• Applicant name.
• Applicant physical address (and mailing address if different than physical address
• Applicant e-mail address.
• Other information as required by the Administrator.
§ 48.100

However, the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) specifically provided that the FAA “may not promulgate any rule or regulation regarding a model aircraft”, which model aircraft met all of the following statutory criteria:

• The aircraft is flown strictly for hobby or recreational use;
• The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
 The aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
 The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
 When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation.

John Taylor, an attorney in the Washington D.C., area and a model aircraft enthusiast, in challenged the Registration Rule in the U.S. Court of Appeals for the District of Columbia Circuit on this very basis, i.e., Taylor argued that the FAA did not have  the statutory authority to issue the Registration Rule and require him to register his model aircraft due to this  language in the FAA Modernization and Reform Act of 2012.  The Court of Appeals agreed.  In a recent decision, Taylor v. Huerta, No. 15-1495 (D.C. Cir. 2017), the U.S. Court of Appeals vacated the Registration Rule to the extent it applied to model aircraft.  See the text of the decision here.


This is a major blow to the FAA’s plan to integrate sUAS safely into the National Airspace (“NAS”) .  As  noted on a previous post, the FAA on the anniversary of the adoption of the Registration Rule stated that the rule and the registration system were primarily aimed at the thousands of drone hobbyists who had little or no experience with the U.S. aviation system. The agency saw registration as an excellent way to give them a sense of responsibility and accountability for their actions as the agency incorporates drones into the National Airspace System.   At that point the FAA noted that the registration system has registered more than 616,000 owners and individual drones. Now that the Court of Appeals has removed this requirement, the FAA is left with very little ability to track the ownership of the vast majority of registered UAS owners.    

The Court of Appeals did note that:

Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

The Court of Appeals did perhaps provide  some enforcement leeway to the FAA stating that: 

We note that Section 336(b) expressly preserves the FAA’s  authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.  (Citation omitted.)  That  provision, however, is tied to safety. It does not authorize  the FAA  to enforce any pre-existing registration requirement.

As NASA in conjunction with the FAA and its development partners develops its UTM for the traffic management of sUAS in the NAS, it would appear that the safety element addressed in this dicta may allow the FAA to impose some type of registration requirement, not pre-existing,  in order to participate in the UTM for flights of sUAS,


However, one thing is clear from the language in the Taylor decision: the FAA would appear to be barred from making any rule with respect to model aircraft that contravenes the language in the FAA Modernization and Reform Act of 2012. 

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