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) (“FAA Modernization and Reform Act”).
In 2015, the FAA issued a rule requiring
registration of all UAS including model aircraft. 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.
Taylor challenged
the Registration Rule in the U.S. Court of Appeals for the District of Columbia
Circuit on this 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 decision issued March 19, 2017, Taylor v. Huerta, 856 F.3d 1089,
1093 (D.C. Cir. 2017), the U.S.
Court of Appeals vacated the Registration Rule to the extent it applied to
model aircraft.
However, Taylor’s victory was short-lived. In December, 2017, Congress passed the National
Defense Authorization Act for Fiscal Year 2018, Pub.
L. No.115-91, § 1092(d), 131 Stat. 1283, 1611 (2017). Section `1092 9d) of the bill provides:
(d)
Restoration of Rules for Registration and Marking of Unmanned
Aircraft.--The
rules adopted by the Administrator of the Federal
Aviation
Administration in the matter of registration and marking
requirements
for small unmanned aircraft (FAA-2015-7396; published on
December
16, 2015) that were vacated by the United States Court of
Appeals
for the District of Columbia Circuit in Taylor v. Huerta (No.
15-1495;
decided on May 19, 2017) shall be restored to effect on the
date
of enactment of this Act.
Undeterred,
Taylor was back at it again with a subsequent petition for review filed in the U.S. Court of Appeals for the District
of Columbia Circuit challenging the FAA’s entire regulatory scheme for
drones.
In 2016, pursuant to the instruction of the FAA
Modernization and Reform Act, the FAA promulgated the rule establishing the
regulatory scheme for drones in Operation and Certification of Small Unmanned
Aircraft Systems, 81 Fed. Reg. 42,064 (June 28,
2016) (hereinafter “Small UAS Rule”).
This rule finalized
the notice of proposed rulemaking entitled Operation and Certification of
Small Unmanned Aircraft Systems in Docket No. FAA-2015-0150, 80 Fed. Reg.
9,544 (February 23, 2015). This rule added
a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for
routine civil operation of small UAS (i.e., drones) in the NAS and to provide
safety rules for those operations.
The Small UAS Rule also added part 101 pursuant to section
336 of the FAA Modernization and Reform Act, which authorized a statutory “Special
Rule for Model Aircraft.”
It
was Part 107 which Taylor challenged, primarily because, as was his objection
in Taylor v. Huerta, Taylor contended
that the Part 107 rule contained provisions
with respect to Part 336 of the Modernization Act’s safe harbor exception which
exceeded the agency’s statutory authority and were arbitrary and capricious. The Court, in an opinion written
by Chief Judge Merrick B. Garland , denied Taylor’s petition for review. See Taylor v. FAA, No. 16-1302 (D.C. Cir. 2018).
The
decision in Taylor v. FAA I singularly important
because it upholds the FAA’s regulatory scheme for small UAS. The agency and the drone industry can now
move forward with confidence that the rules in place for integration of UAS into the national airspace system have
withstood a serious legal challenge.
