United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2017 Decided May 19, 2017

No. 15-1495

JOHN A. TAYLOR,

PETITIONER

v.

MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL 

AVIATION ADMINISTRATION,

RESPONDENT

Consolidated with 16-1008, 16-1011

On Petitions for Review of Orders

of the Federal Aviation Administration

John A. Taylor, pro se, argued the cause and filed the briefs 

for petitioner.

R. Ben Sperry was on the brief for amicus curiae 

TechFreedom in support of petitioner.

Abby C. Wright, Attorney, U.S. Department of Justice, 

argued the cause for respondent. With her on the brief were 

Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General at the time the brief was filed, Michael S. Raab, 

Attorney, and Paul M. Geier, Assistant General Counsel for 
2

Litigation, Federal Aviation Administration. Richard H. 

Saltsman, Attorney, Federal Aviation Administration, entered 

an appearance.

Before: KAVANAUGH and WILKINS, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: Congress has charged the 

Federal Aviation Administration with maintaining the safety of 

the Nation’s air traffic. As small unmanned aircraft

(sometimes known as drones) have become more popular, the 

number of unmanned aircraft-related safety incidents has 

increased. In 2015, in an effort to address that trend, the FAA 

promulgated a rule known as the Registration Rule. That Rule 

requires the owners of small unmanned aircraft operated for 

recreational purposes to register with the FAA. Unmanned 

aircraft operated for recreational purposes are known as “model 

aircraft,” and we will use that term throughout this opinion.

Separately, the FAA published a notice, known as Advisory 

Circular 91-57A, announcing that model aircraft would be 

subject to certain flight restrictions in the Washington, D.C., 

area.

Petitioner John Taylor is a model aircraft hobbyist who is 

now required to register with the FAA. He has operated model 

aircraft from his home in the Washington, D.C., area, and he 

wants to continue to do so without registering or complying 

with the new flight restrictions. Taylor filed petitions in this 

Court to challenge the FAA’s Registration Rule and the 

Advisory Circular.

To begin, Taylor does not think that the FAA had the

statutory authority to issue the Registration Rule and require 
3

him to register. Taylor is right. In 2012, Congress passed and 

President Obama signed the FAA Modernization and Reform 

Act. Section 336(a) of that Act states that the FAA “may not 

promulgate any rule or regulation regarding a model aircraft.” 

Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified 

at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration 

Rule, which applies to model aircraft, directly violates that

clear statutory prohibition. We therefore grant Taylor’s

petition and vacate the Registration Rule to the extent it applies 

to model aircraft.

Taylor challenges Advisory Circular 91-57A on the 

ground that the Circular likewise violates Section 336(a). That

Circular prohibits the operation of model aircraft in various 

restricted areas, including the Flight Restricted Zone around 

Washington, D.C. But Taylor’s petition challenging the

Advisory Circular is untimely. By statute, a petitioner must 

challenge an FAA order within 60 days of the order’s issuance

unless there are reasonable grounds for delay. 49 U.S.C. 

§ 46110(a). Taylor acknowledges that he filed his petition 

challenging the Advisory Circular outside the 60-day window. 

He did not have reasonable grounds for the late filing. His 

petition for review of Advisory Circular 91-57A is therefore 

denied.

I

Congress has directed the FAA to “promote safe flight of 

civil aircraft” and to set standards governing the operation of 

aircraft in the United States. 49 U.S.C. § 44701(a). Congress 

has also required “aircraft” to be registered before operation. 

See id. §§ 44101, 44103. To register, aircraft owners must 

complete a registration process that is quite extensive, as one 

would imagine for airplanes. 
4

But the FAA has not previously interpreted the general 

registration statute to apply to model aircraft. Instead, the FAA 

has issued an optional set of operational guidelines for model 

aircraft. The FAA’s Advisory Circular 91-57, titled Model 

Aircraft Operating Standards and published in 1981, provided 

suggestions for the safe operation of model aircraft. Under that 

Advisory Circular, compliance with the Circular by operators 

of model aircraft was voluntary. See J.A. 1.

As unmanned aircraft technology has advanced, small 

unmanned aircraft have become increasingly popular. In 

response, the FAA has taken a more active regulatory role. In 

2007, the FAA promulgated a notice announcing a new

regulatory approach to unmanned aircraft. See Unmanned 

Aircraft Operations in the National Airspace System, 72 Fed. 

Reg. 6689 (Feb. 13, 2007). In the notice, the FAA 

distinguished between commercial and recreational unmanned 

aircraft. Under the new regulatory approach, commercial 

unmanned aircraft are subject to mandatory FAA regulations. 

Those regulations require operators to report the aircraft’s 

intended use, time or number of flights, and area of operation, 

among other things. Id. at 6690. By contrast, this notice did 

not alter the longstanding voluntary regulatory approach for 

model aircraft. Id.

In 2012, Congress weighed in on the debate over 

regulation of unmanned aircraft. Congress passed and 

President Obama signed the FAA Modernization and Reform 

Act of 2012, Pub. L. No. 112–95, 126 Stat. 11 (codified at 49 

U.S.C. § 40101 note). The Act codified the FAA’s 

longstanding hands-off approach to the regulation of model

aircraft. Specifically, Section 336 of the Act, called the 

“Special Rule for Model Aircraft,” provides that the FAA “may 

not promulgate any rule or regulation regarding a model 

aircraft.” Id. § 336(a). The Act defines “model aircraft” as “an 
5

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).

Notwithstanding that clear statutory restriction on FAA 

regulation of model aircraft, in December 2015 the FAA issued 

a final rule requiring owners of all small unmanned aircraft, 

including model aircraft, to register with the FAA. See

Registration and Marking Requirements for Small Unmanned 

Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The 

Registration Rule requires model aircraft owners to provide 

their names; physical, mailing, and email addresses; and any 

other information the FAA chooses to require. Id. at 78,595-

96. The Registration Rule also creates an online platform for 

registration, establishes a $5 per-individual registration fee, 

sets compliance deadlines, and requires all small unmanned 

aircraft to display a unique identifier number issued by the 

FAA. Id. Model aircraft owners who do not register face civil 

or criminal monetary penalties and up to three years’

imprisonment. Id. at 78,630.

Also in 2015, the FAA withdrew Advisory Circular 91-57 

and replaced it with Advisory Circular 91-57A. See J.A. 3-5. 

Among other things, the revised Circular provided that model 

aircraft could not fly within the Flight Restricted Zone covering 

Washington, D.C., and the surrounding areas without specific 

authorization. See id. at 5. 

Petitioner Taylor is a model aircraft hobbyist living in the 

Washington, D.C., area. Taylor argues that Section 336 of the 
6

FAA Modernization and Reform Act bars both the FAA’s

Registration Rule and Advisory Circular 91-57A.

1

 

II

We first consider Taylor’s challenge to the Registration 

Rule. 

Section 336 of the FAA Modernization and Reform Act of 

2012 provides that the FAA “may not promulgate any rule or 

regulation regarding a model aircraft.” Pub. L. No. 112–95, 

§ 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 

note). The FAA’s 2015 Registration Rule is undoubtedly a 

rule. By requiring the prospective registration of all model 

aircraft, the Registration Rule announces an FAA “statement 

of general or particular applicability and future effect designed 

to implement, interpret, or prescribe law or policy.” 5 U.S.C. 

§ 551(4) (defining “rule” for purposes of the Administrative 

Procedure Act). In addition, the Registration Rule is a rule

“regarding a model aircraft.” FAA Modernization and Reform 

Act § 336(a). The Registration Rule sets forth requirements for

“small unmanned aircraft, including small unmanned aircraft 

operated as model aircraft.” Registration and Marking 

Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 

78,594, 78,594 (Dec. 16, 2015) (emphasis added). Lest there 

be any doubt about whether the Registration Rule is a rule 

“regarding a model aircraft” for purposes of Section 336, the 

 

1 Taylor also purports to challenge the FAA’s October 2015 

announcement that it was reviewing its registration requirements for 

model aircraft. See Clarification of the Applicability of Aircraft 

Registration Requirements for Unmanned Aircraft Systems (UAS) 

and Request for Information Regarding Electronic Registration for 

UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is 

subsumed by Taylor’s challenge to the Registration Rule. We 

therefore do not separately consider it here.
7

Registration Rule states that its “definition of ‘model aircraft’ 

is identical to the definition provided in section 336(c) of 

Public Law 112–95,” the FAA Modernization and Reform Act. 

Id. at 78,604. 

In short, the 2012 FAA Modernization and Reform Act 

provides that the FAA “may not promulgate any rule or 

regulation regarding a model aircraft,” yet the FAA’s 2015 

Registration Rule is a “rule or regulation regarding a model 

aircraft.” Statutory interpretation does not get much simpler. 

The Registration Rule is unlawful as applied to model aircraft.

The FAA’s arguments to the contrary are unpersuasive. 

First, the FAA contends that the Registration Rule is 

authorized by pre-existing statutory provisions that are 

unaffected by the FAA Modernization and Reform Act.

Specifically, the FAA notes that, under longstanding statutes,

aircraft are statutorily required to register before operation. See

49 U.S.C. §§ 44101, 44103. But the FAA has never previously 

interpreted that registration requirement to apply to model 

aircraft. The FAA responds that nothing in the 2012 FAA 

Modernization and Reform Act prevents the FAA from 

changing course and applying that registration requirement to 

model aircraft now. The FAA claims that the Registration Rule 

is therefore not a new requirement at all, but merely a “decision 

to cease its exercise of enforcement discretion.” FAA Br. 20. 

We disagree. The Registration Rule does not merely 

announce an intent to enforce a pre-existing statutory 

requirement. The Registration Rule is a rule that creates a new 

regulatory regime for model aircraft. The new regulatory 

regime includes a “new registration process” for online 

registration of model aircraft. 80 Fed. Reg. at 78,595. The new 

regulatory regime imposes new requirements – to register, to 

pay fees, to provide information, and to display identification –
8

on people who previously had no obligation to engage with the 

FAA. Id. at 78,595-96. And the new regulatory regime 

imposes new penalties – civil and criminal, including prison

time – on model aircraft owners who do not comply. See id. at 

78,630. 

In short, the Registration Rule is a rule regarding model 

aircraft.

2

Second, the FAA argues that the Registration Rule is 

consistent with one of the general directives of the FAA 

Modernization and Reform Act: to “improve aviation safety.” 

FAA Modernization and Reform Act preamble. 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.

In short, Section 336 of the FAA Modernization and 

Reform Act prohibits the FAA from promulgating “any rule or 

regulation regarding a model aircraft.” The Registration Rule 

is a rule regarding model aircraft. Therefore, the Registration 

Rule is unlawful to the extent that it applies to model aircraft. 

 

2 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.” FAA Modernization and Reform Act § 336(b). That 

provision, however, is tied to safety. It does not authorize the FAA 

to enforce any pre-existing registration requirement.
9

III

We next consider Taylor’s challenge to FAA Advisory 

Circular 91-57A. The Circular prohibits the operation of model 

aircraft in certain areas, including in the Washington, D.C., 

Flight Restricted Zone. Taylor argues, among other things, that 

the Circular violates Section 336(a) of the FAA Modernization 

and Reform Act of 2012 because it too is a rule regarding

model aircraft. 

We need not consider that question because Taylor’s 

challenge is untimely. A person seeking to challenge an FAA 

order must file the challenge within 60 days of the order’s 

issuance. 49 U.S.C. § 46110(a). The FAA published notice of 

Advisory Circular 91-57A in the Federal Register on 

September 9, 2015. See Revision of Advisory Circular 91–57 

Model Aircraft Operating Standards, 80 Fed. Reg. 54,367 

(Sept. 9, 2015). Taylor filed his petition for review on January 

12, 2016 – more than two months after the 60-day deadline had

passed. 

A court may allow a late petition filed if the petitioner has

“reasonable grounds” for missing the deadline. 49 U.S.C. 

§ 46110(a). Taylor advances two grounds for his delay. But 

neither constitutes reasonable grounds under this statute.

First, Taylor argues that the FAA did not provide adequate

notice that it had issued the new Circular. But on September 9, 

2015, the FAA published its revisions in the Federal Register. 

See 80 Fed. Reg. 54,367. And Congress has determined that 

publication in the Federal Register “is sufficient to give notice 

of the contents of the document.” 44 U.S.C. § 1507.
10

Second, Taylor contends that the Advisory Circular itself 

was so confusing that it did not provide notice about the

conduct it prohibited. That is inaccurate. The Circular states: 

“Model aircraft must not operate in Prohibited Areas, Special 

Flight Rule Areas or, the Washington National Capital Region 

Flight Restricted Zone, without specific authorization.” J.A. 5. 

Ultimately, Taylor admits that he simply did not know 

about the revised Circular until the FAA launched a “media 

blitz” to publicize it. Taylor Br. 68. That may be

understandable. But under our precedent, Taylor must point 

“to more than simply ignorance of the order” as reasonable 

grounds for his delay. Avia Dynamics, Inc. v. FAA, 641 F.3d

515, 521 (D.C. Cir. 2011). Taylor has not done so. His petition 

for review of Advisory Circular 91-57A is therefore untimely. 

* * *

The FAA’s Registration Rule violates Section 336 of the 

FAA Modernization and Reform Act. We grant Taylor’s 

petition for review of the Registration Rule, and we vacate the 

Registration Rule to the extent it applies to model aircraft. 

Because Taylor’s petition for review of Advisory Circular 91-

57A is untimely, that petition is denied.

So ordered.