Monday, September 3, 2018

FAA Prevails in Challenge to Drone Regulatory Scheme


John Taylor, an attorney in the Washington D.C. area and a model aircraft enthusiast, has been actively challenging the Federal Aviation Administration ("FAA") rules regarding unmanned aircraft systems ("UAS"s, more popularly known as "drones") since the time the rules were enacted, with varying success..


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 Systemsin 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.