# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2017 Decided May 19, 2017

No. 15

- 1495

J OHN A. T AYLOR

, P ETITIONER

v.

M ICHAEL P. H UERTA

, AS A DMINISTRATOR

, F EDERAL

A VIATION A DMINISTRATION

, R ESPONDENT

Consolidated with 16

- 1008, 16

- 1011

On Petitions for Review of Order s 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 P aul M. Geier , Assistant General Counsel for2

Litigation, Federal Aviation Administration. Richard H.

Saltsman , Attorney, Federal Aviation Administration, entered

an appearance.

Before: K AVANAUGH and W ILKINS

, Circuit Judges , and

E DWARDS

, Senior Circuit Jud ge

.

Opinion for the Court filed by Circuit Judge K AVANAUGH

.

K AVANAUGH

, Circuit Judge : Congress has charged the Federal Aviation Administration with maintaining the safety of

the N ation’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 unman ned 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 A dvisory

C ircular 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 require3

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 app lies 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 th e 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 un timely. 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 out side the 60

- day window.

H e did not have reasonable grounds for the late filing

. His petition for review of A dvisory C ircular 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 t he 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 Operati ng Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that Advisory Circular, c ompliance with the Circular by operators

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

As unmanned aircraft technology has advanced, small

unmanned aircraft have beco me increasingly popular. In
response, t he 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 recre ational unmanned

aircraft. Under the new regulatory approach, c ommercial

unmanned aircraft are subject to mandatory FAA regulation s. 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

“ S pecial R ule for M odel A ircraft, ” provides that the FAA “may not promulgate any rule or regulation regarding a model
aircraft.” Id. § 336(a). The Act defines “ m odel aircraft” as “an5

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 purpos es.” Id. § 336(c).

Not withstanding that clear statutory restriction on FAA regulation of model aircraft

, i n December 2015 the FAA issued

a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA

. S ee 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 F AA cho o se s to require. Id. at 78,595

- 96. The Registration R ule also creates an online platfo rm for registration, establishes a $5 per

- individual registration fee,

set s 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 ci vil or criminal monetary penalties and up to three years ’ imprisonment. Id. at 78,630.

Also in 2015, the FAA w it hdrew 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 the6

FAA Modernization and Refor m Act bars both the FAA’s Registration Rule and Advisory Circular 91

- 57 A

. 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 .” P ub. L. No. 112

– 95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note)

. T he FAA’s 2015 Registration Rule is undoubtedly a rule. By requirin g 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 “ru le” 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, incl uding 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 r ule “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 review ing its registration requirements for

model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regar ding Electronic Registra tion for UAS, 80 Fed. Reg. 63,91 2 (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, t he 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 regula tion regarding a model

aircraft. ” Sta tutory interpretation does n o t get much simpler.

The Registration Rule is unlawful as applied to model aircraft

.

The FAA ’s arguments to the contrary are unpersuasive

. First , t he 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 statute s
, aircraft are statutorily required to register before operation. See

49 U.S.C. §§ 44101, 44103. B ut t he FAA has never previously interpreted that registration requirement to apply to model

aircraft

. T he 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 t he 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. T he Registration Rule does not merely

announce an intent to enforce a pre

- existing statutory requirement

. T he Registration R ule 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. 8 0 Fed. Reg. at 78,595. The new regulatory regime imposes new re quirements

– to register, to pay fees, to provide information, and to display identificatio n

–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 an d criminal, including prison

time

– on model aircraft owners who do not comply. See id. at 78,630.

In short, t he Registration Rule is a rule regarding model

aircraft

. 2

Second

, t he FAA argue s that the Registration Rule is

consistent with one of the g eneral directives of the FAA

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

FAA Modernization and Reform Act preamble

. Aviation safety is obviously a n 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

cons iderations cannot override our interpretation of th e 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.

I n 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.” T he 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 F AA’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

air craft 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 aircra ft.

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 t wo months a fter 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

n either constitutes reas onable grounds under this statute

.

First

, Taylor argues that the FAA did not provide adequate

notice that it had issued the new Circular. But o n September 9, 2015, t he 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 a bout 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 tha n 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 petitio n for review of Advisory Circular 91

- 57A is untimely , that petition is denied

.

So ordered.