[NOT SCHEDULED FOR ORAL ARGUMENT] NOS , , IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Transcription

1 USCA Case # Document # Filed: 08/04/2016 Page 1 of 105 [NOT SCHEDULED FOR ORAL ARGUMENT] NOS , , IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT JOHN A. TAYLOR, v. Petitioner, MICHAEL P. HUERTA, ADMINISTOR, FEDERAL AVIATION ADMINISTRATION, Respondent. ON PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL AVIATION ADMINISTRATION BRIEF FOR THE ADMINISTRATOR OF COUNSEL: MOLLY J. MORAN Acting General Counsel PAUL M. GEIER Assistant General Counsel for Litigation REGINALD C. GOVAN Chief Counsel LORELEI PETER Assistant Chief Counsel for Regulations Federal Aviation Administration BENJAMIN C. MIZER Principal Deputy Assistant Attorney General CHANNING D. PHILLIPS United States Attorney MICHAEL S. RAAB ABBY C. WRIGHT (202) Attorneys, Appellate Staff Civil Division, Room 7252 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C

2 USCA Case # Document # Filed: 08/04/2016 Page 2 of 105 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES PURSUANT TO CIR. R. 28(a)(1) A. Parties and Amici John A. Taylor is the petitioner. Michael P. Huerta, Administrator, Federal Aviation Administration (FAA) is respondent. TechFreedom is amicus supporting petitioner. B. Rulings Under Review Petitioner seeks review of the December 16, 2015, order issued by the Secretary of Transportation and the Administrator of FAA. 80 Fed. Reg. 78,594, 78,640 (Dec. 16, 2015). Petitioner also purports to seek review of FAA s September 2, 2015, Advisory Circular No A, 80 Fed. Reg. 54,367 (Sept. 9, 2015), and the October 19, 2015, Clarification and Request for Information issued by the Secretary of Transportation and the Administrator of FAA. 80 Fed. Reg. 63,912 (Oct. 22, 2015). C. Related Cases This case was not previously before this Court. Counsel is not aware of any related cases currently pending in this Court or in any other court within the meaning of Cir. R. 28(a)(1)(C). s/ Abby C. Wright Abby C. Wright Counsel for the Administrator

3 USCA Case # Document # Filed: 08/04/2016 Page 3 of 105 TABLE OF CONTENTS Page GLOSSARY STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUES... 1 PERTINENT STATUTES AND REGULATIONS... 2 STATEMENT OF THE CASE... 3 SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I. The Registration Rule is a Lawful Exercise of FAA s Regulatory Authority A. Model aircraft are aircraft subject to FAA s regulatory authority B. Section 336 of the Modernization Act does not withdraw FAA s authority to require owners of small unmanned aircraft operated as model aircraft to register their aircraft C. The registration rule is not arbitrary and capricious D. FAA permissibly issued the registration rule as an interim final rule II. Petitioner s Challenge to Advisory Circular 91-57A Should be Dismissed A. The petition challenging the Advisory Circular should be dismissed as out-of-time B. The challenged Advisory Circular does not alter any legal obligations and is therefore not final agency action... 33

4 USCA Case # Document # Filed: 08/04/2016 Page 4 of 105 C. In addition, petitioner s substantive challenges to the Advisory Circular are without merit CONCLUSION CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) CERTIFICATE OF SERVICE ADDENDUM ii

5 USCA Case # Document # Filed: 08/04/2016 Page 5 of 105 TABLE OF AUTHORITIES Cases: Page(s) Administrator v. Barrows, 7 N.T.S.B. 5 (1990) Avia Dynamics, Inc. v. FAA, 641 F.3d 515 (D.C. Cir. 2011) Bennett v. Spear, 520 U. S. 154 (1997) Chamber of Commerce of U.S. v. S.E.C., 443 F.3d 890 (D.C. Cir. 2006) Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) Hawaii Helicopter Operators Ass n v. FAA, 51 F.3d 212 (9th Cir. 1995) Hill v. NTSB, 886 F.2d 1275 (10th Cir. 1989) Huerta v. Pirker, NTSB Order No. EA-5730 (Nov. 17, 2014) Interstate Commerce Comm n v. Oregon Pac. Indus., Inc., 420 U.S. 184 (1975) J.A. Jones Mgmt. Servs. v. FAA., 225 F.3d 761 (D.C. Cir. 2000) Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004) * Authorities upon which we chiefly rely are marked with asterisks. iii

6 USCA Case # Document # Filed: 08/04/2016 Page 6 of 105 Mack Trucks, Inc. v. E.P.A., 682 F.3d 87 (D.C. Cir. 2012) National Fed n of Fed. Emps. v. Devine, 671 F.2d 607 (D.C. Cir. 1982) National Fed n of the Blind v. United States Dep t of Transp., Nos , , 2016 WL (D.C. Cir. June 28, 2016) North Am. Coal Corp. v. Director, Office of Workers Comp. Programs, U.S. Dep t of Labor, 854 F.2d 386 (10th Cir. 1988) Northern Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir. 1987) Puget Sound Traffic Ass n v. Civil Aeronautics Bd., 536 F.2d 437 (D.C. Cir. 1976)... 33, 34,, Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007)... 34, 35, 36 Sorenson Commc ns Inc. v. F.C.C., 755 F.3d 702 (D.C. Cir. 2014) U.S. Army Corps of Eng rs v. Hawkes Co., 136 S. Ct (2016) United States v. Healy, 376 U.S. 75 (1964) Washington State Farm Bureau v. Marshall, 625 F.2d 296 (9th Cir. 1980) Statutes: *FAA Modernization and Reform Act of 2012, Pub. L. No , 126 Stat , 4, 15, 16, 17, 19, 20, 21, 22, 23, 24 5 U.S.C. 553(b)(B) U.S.C. 706(2)(A) iv

7 USCA Case # Document # Filed: 08/04/2016 Page 7 of U.S.C U.S.C (a) U.S.C U.S.C (a)(3) *49 U.S.C (a)(6)... 3, 12, 14, 15, 16, 17, U.S.C (a)(16)... 19, U.S.C (a)(32) U.S.C (a)(41) U.S.C , U.S.C (b)... 14, U.S.C (b)(3)... 9, U.S.C U.S.C , 14, U.S.C (a) U.S.C (a)(1)(A) U.S.C , 14, U.S.C (a)(1)(B) U.S.C (c)(2) U.S.C , 14, 15, U.S.C , 13, 14, 32, 33, 34, 38 v

8 USCA Case # Document # Filed: 08/04/2016 Page 8 of 105 Regulations: 14 C.F.R. pt C.F.R , 7, C.F.R. 47 (2010) C.F.R , C.F.R , C.F.R , C.F.R C.F.R. 48.1(a) C.F.R , C.F.R. 48.5(b) C.F.R C.F.R (c) C.F.R (b) C.F.R (a) C.F.R (b) C.F.R (a) C.F.R C.F.R C.F.R C.F.R vi

9 USCA Case # Document # Filed: 08/04/2016 Page 9 of C.F.R C.F.R C.F.R (a)... 11, C.F.R Other Authorities: Advisory Circular 91-57A, Model Aircraft Operating Standards Including Change 1 Document Information, FAA, ment.information/documentid/ , 31, 32, 34, 36 Advisory Circular System, FAA Order D (Effective Apr. 7, 2015) 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)... 6, 12, 20, 21 FAA, NOTAM Advisory, Washington, D.C., Metropolitan Special Flight Rules Area and Washington Area Speed Restrictions (Dec. 1, 2010), 34, 35 FAA Order JO N (October 1, 2013)... 9 FAA, Press Release, FAA Registered Nearly 300,000 Unmanned Aircraft Owners (Jan. 22, 2016) Final Rule, Washington DC Metropolitan Area Special Flight Rules Area, 73 Fed. Reg. 76,195 (Dec. 16, 2008) Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap, First Edition 2013, FAA (Nov. 7, 2013) Interpretation of Special Rule for Model Aircraft, 79 Fed. Reg. at 36,172 (June 25, 2014)... 5, 15, 17, 21, 35 vii

10 USCA Case # Document # Filed: 08/04/2016 Page 10 of 105 Memorandum from Gary A. Norek, Manager, Airspace Policy and Regulations Group, canceling Advisory Circular 91-57, to Performance, Policy, and Records Management Branch (Oct. 10, 2014)... 5, Pilot/Controller Glossary, FAA PCG N-3, through N-4 (April 3, 2014), 9 * Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015)... 3, 5, 6, 7, 8, 9, 15, 20, 21, 23, 25, 26, 28, 30, 31, 37 Ultralight Vehicles; Operating Requirements, 47 Fed. Reg. 38, (Sept. 2, 1982) Unmanned Aircraft Systems Operations in the U.S. National Airspace System Interim Operational Approval Guidance, AFS-400 UAS Policy (Sept. 16, 2005) Fed. Reg. 45,250 (Aug 4, 2005) Fed. Reg (Feb. 13, 2007) Fed. Reg. 44,300 (July 23, 2013) Fed. Reg (Feb. 23, 2015)... 5, 6 80 Fed. Reg. 54, 367 (Sept. 9, 2015) Fed. Reg. 42,064 (June 28, 2016)... 5 viii

11 USCA Case # Document # Filed: 08/04/2016 Page 11 of 105 GLOSSARY Amicus Brief of TechFreedom Federal Aviation Administration FAA Modernization and Reform Act of 2012 Joint Appendix Notice to Airmen Petitioner s Brief Amicus Br. FAA Modernization Act JA NOTAM Pet. Br.

12 USCA Case # Document # Filed: 08/04/2016 Page 12 of 105 STATEMENT OF JURISDICTION In case no , petitioner challenges an interim final rule of the Federal Aviation Administration (FAA), issued on December 16, Petitioner timely filed his petition for review on December 24, This Court has jurisdiction under 49 U.S.C Petitioner also invokes this Court s jurisdiction under 49 U.S.C in case no , which was filed on January 12, That petition seeks to challenge Advisory Circular 91-57A, which was issued on September 2, For the reasons explained below, the petition in case no is untimely, and, in any event, should be dismissed for failure to challenge any final order under 49 U.S.C STATEMENT OF THE ISSUES I. On December 16, 2015, the Secretary of Transportation (the Secretary) and the FAA Administrator (the Administrator) jointly issued an interim final rule (the registration rule ). The registration rule allows owners of small unmanned aircraft operated recreationally to register their small unmanned aircraft with FAA by means of a streamlined online system, in place of the preexisting FAA paper-based aircraft registration system. Petitioner, who owns and recreationally operates an unmanned aircraft system, challenges the rule as outside FAA s authority. The issues presented in case no are: 1. Whether model aircraft are aircraft subject to FAA s regulatory authority.

13 USCA Case # Document # Filed: 08/04/2016 Page 13 of Whether the registration rule is consistent with section 336 of the FAA Modernization and Reform Act of Whether the registration rule is arbitrary and capricious. 4. Whether FAA s decision to proceed through an interim final rule rather than through notice-and-comment rulemaking was justified by good cause. II. In case no , petitioner challenges a September 2015 FAA Advisory Circular, Advisory Circular 91-57A, which provides guidance to persons operating unmanned aircraft for recreational purposes and refers to FAA restrictions on aircraft operating within the Washington, D.C., Flight Restricted Zone and Special Flight Rules Area. The issues presented in case no are: 1. Whether the petition for review should be dismissed as untimely. 2. Whether the petition for review should be dismissed because Advisory Circular 91-57A is not reviewable final agency action. 3. If this Court reaches the merits of the petition, whether issuance of the Advisory Circular was consistent with the Administrative Procedure Act and the FAA Modernization Act of PERTINENT STATUTES AND REGULATIONS Pertinent statutes are reproduced in the addendum to this brief. 2

14 USCA Case # Document # Filed: 08/04/2016 Page 14 of 105 STATEMENT OF THE CASE 1. This case concerns the operation of unmanned aircraft, which are defined as aircraft that [are] operated without the possibility of direct human intervention from within or on the aircraft. See FAA Modernization and Reform Act of 2012, Pub. L. No , 331(8), 126 Stat. 11 (Modernization Act). The number of unmanned aircraft has increased rapidly, creating significant concerns about the safety of the national airspace system, as well as the safety of persons and property on the ground. This is especially true given that many, if not most, owners of unmanned aircraft have no prior aviation experience and lack an understanding of the requirements for safe operation of their unmanned aircraft. 80 Fed. Reg. 78,594, 78,598 (Dec. 16, 2015). 2. Congress has directed FAA to promote safe flight of civil aircraft in air commerce by prescribing standards that govern the operation of aircraft in the United States. 49 U.S.C Congress defined aircraft as any contrivance invented, used, or designed to navigate, or fly in, the air. See 49 U.S.C (a)(6); see also 14 C.F.R. 1.1 (implementing regulation defining aircraft as a device that is used or intended to be used for flight in the air ). In 2012, Congress enacted the FAA Modernization Act, which addressed, among other things, unmanned aircraft systems. The Act defines unmanned aircraft system as an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are 3

15 USCA Case # Document # Filed: 08/04/2016 Page 15 of 105 required for the pilot in command to operate safely and efficiently in the national airspace system. Modernization Act 331(9). Section 331 of the Act expressly defines the term unmanned aircraft as a type of aircraft. Id. 331(8). In section 336(c) of the Modernization Act, Congress delineated a class of model aircraft, which it defined as unmanned aircraft that are (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. Modernization Act 336(c). Section 336(a) further provides that FAA cannot promulgate future regulations with regard to a model aircraft so long as the model aircraft is operated in accordance with the additional limitations set forth in section 336(a), which include that the aircraft is operated in accordance with a communitybased set of safety guidelines and within the programming of a nationwide community-based organization and operated in a manner that does not interfere with and gives way to any manned aircraft. Id. 336(a)(2), (4). Congress expressly provided, however, that FAA retains the authority to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system. Id. 336(b). 1 1 In the Modernization Act, Congress also directed the Secretary to determine which unmanned aircraft systems do not create a hazard to users of the national airspace system or the public or pose a threat to national security. Modernization Act 333(a), (b). To this end, in February 2015, the Secretary and the Administrator issued a notice of proposed rulemaking entitled Operation and Certification of Small Continued on next page. 4

16 USCA Case # Document # Filed: 08/04/2016 Page 16 of 105 In response to the Modernization Act, FAA issued an Interpretation of the Special Rule for Model Aircraft, 79 Fed. Reg. 36,172 (June 25, 2014). FAA also canceled Advisory Circular 91-57, a 1981 advisory circular which encouraged, voluntary compliance with[] safety standards, including operating model aircraft at a safe distance from populated areas, flying below 400 feet, giving the right of way to manned aircraft, and notifying airport operators when flying near airports. Advisory Circular was ultimately replaced with Advisory Circular 91-57A. See Memorandum from Gary A. Norek, Manager, Airspace Policy and Regulations Group, to Performance, Policy, and Records Management Branch (Oct. 10, 2014) (canceling Advisory Circular 91-57). Advisory Circular 91-57A reminds unmanned aircraft operators that airspace restrictions apply to all model aircraft and that operators should follow best practices, including limiting operations to below 400 feet above ground level. 3. By statute, all aircraft must be registered prior to operation. 49 U.S.C , FAA s original registration system, developed with passenger airplanes in mind, is a lengthy paper-based process. See 80 Fed. Reg. at 78,600; see also 14 C.F.R. 47 (2010). Prior to the registration rule at issue here, FAA exercised Unmanned Aircraft Systems. 80 Fed. Reg (Feb. 23, 2015). The final rule was issued on June 21, Fed. Reg. 42,064 (published June 28, 2016, effective Aug. 29, 2016). 5

17 USCA Case # Document # Filed: 08/04/2016 Page 17 of 105 enforcement discretion in excusing model aircraft from the statutory registration requirement. See 80 Fed. Reg. 9544, 9550 (Feb. 23, 2015); 80 Fed. Reg. at 78,603. a. On October 19, 2015, the Secretary and the Administrator requested information from the public regarding registration for small unmanned aircraft systems and how best to streamline the process. 80 Fed. Reg. 63,912 (Oct. 22, 2015). FAA received over 4,500 comments in response to this request. See 80 Fed. Reg. at 78,601. FAA also established a Registration Task Force comprised of a diverse group of representatives from trade groups representing manned and unmanned aviation, unmanned aircraft system manufacturers and retailers, and law enforcement. The Registration Task Group was tasked with developing recommendations in three areas: (1) the minimum requirements for unmanned aircraft systems to be registered; (2) the registration process; and (3) the means of proving registration and marking the aircraft. 80 Fed. Reg. at 78,601. The Registration Task Force delivered its recommendations to FAA on November 23, b. On December 16, 2015, the Secretary and the Administrator issued an interim final rule providing an alternative, streamlined and simple, web-based aircraft registration process for the registration of small unmanned aircraft, including small unmanned aircraft operated as model aircraft, to facilitate compliance with the statutory requirement that all aircraft register prior to operation. 80 Fed. Reg. at 78,594 (registration rule); see also 14 C.F.R. 48. The web-based registration system is available for small unmanned aircraft (defined as those weighing less than 55 pounds 6

18 USCA Case # Document # Filed: 08/04/2016 Page 18 of 105 on takeoff, including everything that is on board or otherwise attached to the aircraft) that are part of an unmanned aircraft system. 80 Fed. Reg. at 78,594; 14 C.F.R. 1.1; 80 Fed. Reg. at 78,595, 78,638. The registration rule thus provides a means to register both small unmanned aircraft that are used as model aircraft and small unmanned aircraft that are used for commercial purposes or that otherwise fail to meet the operational definition of model aircraft. Individuals owning small unmanned aircraft operated solely as model aircraft need only obtain a single unique identifier (i.e., registration number) for all model aircraft they own. 14 C.F.R (a). To register a model aircraft, an individual must supply name, address, and address. Id (b). 2 The fee to register is $5, regardless of the number of aircraft, though FAA provided a rebate for the full amount of the registration cost for registrations within the first thirty days. Id (b). At the end of the registration process, registrants are asked to acknowledge that they have read and understood certain safety guidance. And registration is not required at all for small unmanned aircraft that weigh.55 pounds or less. 14 C.F.R Upon registration, aircraft owners receive a unique identification number that they must affix to each small unmanned aircraft they own prior to the operation of 2 Those registering small unmanned aircraft for non-hobby uses must register each unmanned aircraft separately and provide the aircraft manufacturer, model name, and serial number. 14 C.F.R (a); see also 14 C.F.R. 48.5(b). 7

19 USCA Case # Document # Filed: 08/04/2016 Page 19 of 105 that aircraft. 14 C.F.R , For aircraft operated before December 21, 2015, FAA provided a grace period allowing those aircraft to continue to be operated without registration for sixty additional days after issuance of the interim final rule. Id c. FAA explained in the registration rule that registration and marking provide a means by which to quickly identify... small unmanned aircraft in the event of an incident or accident. 80 Fed. Reg. at 78,595. Registration also provides FAA with an immediate and direct opportunity for the agency to educate the hundreds of thousands of operators of unmanned aircraft systems. Id. FAA also explained in the registration rule its basis for proceeding via an interim final rule. In explaining why proceeding quickly was necessary to protect the public interest, FAA listed numerous serious safety incidents involving unmanned aircraft systems. 80 Fed. Reg. 78,597. FAA also noted that in 2014 there were 238 reports of potentially unsafe operations, when approximately 200,000 unmanned aircraft systems were operated. Id. Estimates at the time suggested that 1.6 million aircraft systems would be sold in 2015, leading to a significant increase in safety incidents. Id. As FAA explained, [s]ince February 2015, reports of potentially unsafe [unmanned aircraft systems] operations have more than doubled. Id. For example, the agency has received reports of unmanned aircraft at high altitudes in congested airspace, unmanned aircraft operations near passenger-carrying aircraft or major 8

20 USCA Case # Document # Filed: 08/04/2016 Page 20 of 105 airports, and interfering with emergency response operations such as efforts to combat wildfires. Id. FAA received over 5,500 comments on the registration rule, and the comment period closed on January 15, FAA is currently evaluating those comments and plans to issue a final rule. 4. As relevant in case number , Advisory Circular 91-57A in addition to encouraging owners of unmanned aircraft operated as model aircraft to follow safety guidance refers to preexisting flight restrictions in the Washington, D.C. area. Specifically, the Advisory Circular explains that [m]odel aircraft must not operate in Prohibited Areas, Special Flight Rules Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization. Advisory Circular 91-57A 6(d). FAA restricted the airspace around Washington, D.C., following the September 11, 2001, terrorist attacks. After the attacks, FAA acted pursuant to its authority to protect airspace in the interest of national defense, 49 U.S.C (b)(3), and established restrictions on the operation of aircraft in the Washington, D.C., Metropolitan Area airspace. See Notice to Airmen (NOTAM) 3 3/2126 (Effective Mar. 3 NOTAMs contain information concerning the establishment, condition, or change in any component (facility, service, or procedure of, or hazard in the National Airspace System). Pilot/Controller Glossary, FAA PCG N-3, through N-4 (April 3, 2014), see also FAA Order JO N (October 1, 2013) (discussing use of NOTAMs for Continued on next page. 9

21 USCA Case # Document # Filed: 08/04/2016 Page 21 of , 2003) (establishing Washington, D.C., restricted airspace, known as an Air Defense Identification Zone ); see also Final Rule, Washington DC Metropolitan Area Special Flight Rules Area, 73 Fed. Reg. 76,195 (Dec. 2008) (discussing history of D.C. airspace restrictions). In August 2005, FAA initiated a rulemaking to codify the restricted airspace around Washington, D.C., as a Special Flight Rules Area; FAA issued a final rule in December See 70 Fed. Reg. 45,250 (Aug. 4, 2005); 73 Fed. Reg. 76,195; 14 C.F.R The regulations establish both the DC Special Flight Rules Area, which is the airspace within a thirty-mile radius around Reagan National Airport, and the DC Flight Restricted Zone, which is a fifteen-mile radius inner subset of the Special Flight Rules Area. 14 C.F.R ; see also 14 C.F.R , (describing requirements of operation within the DC Special Flight Rules Area and Flight Restricted Zone). Any pilot conducting any type of flight operation in the DC Special Flight Rules Area [] must comply with... all special instructions issued by the FAA... in any manner... including a NOTAM. 14 C.F.R FAA has issued numerous NOTAMs restricting aircraft operations, including model aircraft operations, within the DC Special Flight Rules Area. The initial NOTAM s explicit ban no person may operate an aircraft without an operable restricted airspace). NOTAMs are publically available on FAA s website, and those relevant to this case are reproduced in the addendum. See The NOTAMs at issue in this case have a location of ZDC. 10

22 USCA Case # Document # Filed: 08/04/2016 Page 22 of 105 two-way radio, among other requirements, NOTAM 3/2126, pt. 3 (effective Mar. 18, 2003) has been echoed in subsequent NOTAMs and the 2009 regulations. See 14 C.F.R (a); NOTAM 6/2550 (effective Mar. 1, 2006) (same requirements for operating an aircraft, including ultralight vehicles, unmanned air systems, civil aircraft, and public aircraft ); see also NOTAM 7/0206 (effective Aug. 30, 2007); NOTAM 6/2062 (effective Feb. 10, 2016); NOTAM 6/2060 (effective Feb. 10, 2016); NOTAM 0/8326 (effective Dec. 1, 2010). On February 10, 2016, FAA relaxed its restriction on model aircraft operating within the DC Special Flight Rules Area. Model aircraft that are registered under the registration rule, weigh less than 55 pounds, and operate below 400 feet may fly within the DC Special Flight Rules Area (outside the Flight Restricted Zone) as long as they are operated during the day and within the visual line of sight of the operator. See NOTAM 6/2069 (effective Feb. 10, 2016). This understanding is reflected in FAA s B4UFLY application for mobile application for mobile devices. SUMMARY OF ARGUMENT I. Before operating a small unmanned aircraft system in the national airspace, an owner of a small unmanned aircraft must register the aircraft. Individuals may do so by accessing a website, providing their name and address, and affixing a registration number to their unmanned aircraft. Petitioner urges that FAA lacks authority to 11

23 USCA Case # Document # Filed: 08/04/2016 Page 23 of 105 implement such a registration rule for unmanned aircraft operated recreationally. 4 But FAA has authority to regulate aircraft, defined as any contrivance invented, used, or designed to navigate, or fly in, the air. See 49 U.S.C (a)(6). Petitioner makes no attempt to argue that his model aircraft falls outside the terms of that definition. Instead, he urges that Congress created a class of unmanned aircraft, called model aircraft that are not aircraft. That argument finds no basis in the text or purpose of the Modernization Act. Petitioner further contends that the Modernization Act deprived FAA of the authority to require operators of model aircraft, as defined in the Act, to register with FAA. But Congress has required, by statute, that owners of aircraft register those aircraft. The registration rule, rather than imposing any new obligations on operators of model aircraft, declares that FAA will no longer exercise its discretion to withhold enforcement of preexisting registration requirements with respect to model aircraft and creates an easier process for registration. Requiring the agency to exempt model 4 In case no , petitioner also challenges FAA s Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for [Unmanned Aircraft Systems], published in the Federal Register on October 22, Pet. Br. 31; see 80 Fed. Reg. 63,912 (Oct. 22, 2015). Petitioner does so in an abundance of caution. Pet. Br. 31; see also Pet. Br. 40, 53, (incorporating by reference arguments made against the registration rule without advancing independent arguments). Petitioner s timely challenge to the merits of the registration rule make it unnecessary to consider petitioner s challenge to the Clarification and Request for Information, and, by extension, his argument that untimely review is justified. See Pet. Br

24 USCA Case # Document # Filed: 08/04/2016 Page 24 of 105 aircraft operators from registration requirements would create a gaping hole in FAA s enforcement authority and threaten the safety of the national airspace system. Petitioner also argues that the registration rule could not have been implemented as an interim final rule. FAA explained, however, that the agency had good cause to determine that waiting to require registration following a notice-andcomment rulemaking would be impracticable and would harm the public interest. Petitioner has provided no basis for calling into question the need for a registration system to be in place prior to the 2015 holiday season when an unprecedented number of unmanned aircraft systems were purchased and given as gifts. II. Petitioner also challenges an FAA Advisory Circular reiterating FAA s restrictions on model aircraft operations in the Washington, D.C., Special Flight Rules Area. As petitioner acknowledges, however, his challenge to that rule is untimely. Moreover, because the Advisory Circular is not the source of those restrictions which date back to 2003 the Advisory Circular itself is not final agency action subject to challenge under 49 U.S.C If this Court were to reach the merits of petitioner s challenge, his petition for review should be denied. FAA quite reasonably imposes restricted flight operations around our Nation s capital. And because the Advisory Circular did not put those rules into place, it did not need to explain the rationale for those restrictions in great detail, nor was it required to be adopted through notice-and-comment rulemaking. 13

25 USCA Case # Document # Filed: 08/04/2016 Page 25 of 105 STANDARD OF REVIEW This Court may affirm, amend, modify, or set aside a final order of FAA. 49 U.S.C Challenges under 49 U.S.C may be set aside only when arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and [f]indings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive. 5 U.S.C. 706(2)(A); 49 U.S.C ; see also J.A. Jones Mgmt. Servs. v. FAA, 225 F.3d 761, 764 (D.C. Cir. 2000) (applying arbitrary and capricious standard to suit under section 46110). ARGUMENT I. The Registration Rule is a Lawful Exercise of FAA s Regulatory Authority. A. Model aircraft are aircraft subject to FAA s regulatory authority. 1. Congress has charged FAA with promoting safe flight and ensuring safe and efficient use of the national airspace through, among other things, prescrib[ing] air traffic regulations on the flight of aircraft. 49 U.S.C (b), Congress has also directed that a person may operate an aircraft only when the aircraft is registered. 49 U.S.C ; see also id Federal law defines aircraft as any contrivance invented, used, or designed to navigate, or fly in, the air. See 49 U.S.C (a)(6). The FAA Modernization Act creates a subset of aircraft, called model aircraft, that are unmanned aircraft capable of sustained flight in the atmosphere; 14

26 USCA Case # Document # Filed: 08/04/2016 Page 26 of 105 flown within visual line of sight of the person operating the aircraft; and flown for hobby or recreational purposes. Modernization Act 336(c). 2. Because model aircraft, as defined in the Modernization Act, are plainly contrivance[s] invented, used, or designed to navigate, or fly in, the air, 49 U.S.C (a)(6), model aircraft are subject to regulation by FAA as aircraft. See 80 Fed. Reg. at 78,599; see also Huerta v. Pirker, NTSB Order No. EA-5730, at 12 (Nov. 17, 2014) (affirming that model aircraft are aircraft ). By recognizing that model aircraft are aircraft, the registration rule confirms FAA s longstanding position that the statutory term aircraft includes unmanned aircraft, whether operated recreationally or commercially. See 79 Fed. Reg. 36,172, 36,172 (June 25, 2015) ( Historically, the FAA has considered model aircraft to be aircraft that fall within the statutory and regulatory definitions of an aircraft, as they are contrivances or devices that are invented, used, or designed to navigate, or fly in, the air. ); see also 72 Fed. Reg. 6689, 6690 (Feb. 13, 2007) ( The current FAA policy for [unmanned aircraft system] operations is that no person may operate [an unmanned aircraft system] in the National Airspace System without specific authority [from FAA].... [F]or model aircraft the authority is AC ); 78 Fed. Reg. 44,300 (July 23, 2013) (announcing rulemaking pursuant to 49 U.S.C for small unmanned aircraft, including model aircraft); Unmanned Aircraft Systems Operations in the U.S. National Airspace System Interim Operational Approval Guidance, AFS-400 UAS Policy 05-01, FAA 6.13 (Sept. 16, 2005) (defining model aircraft as 15

27 USCA Case # Document # Filed: 08/04/2016 Page 27 of 105 unmanned aircraft and unmanned aircraft falling within 14 C.F.R. 1.1); Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap, First Edition 2013, at 14, 42 (Nov. 7, 2013) ( Because unmanned aircraft [whose definition encompasses model aircraft] are considered aircraft... existing regulations and procedures are largely applicable. ). 3. Petitioner s arguments that FAA lacks authority to regulate model aircraft as aircraft are without merit. Because the meaning of the statute is clear, and model aircraft fall within the statute s plain terms, petitioner and amici s discussion of deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), is misplaced. Pet. Br , 33; Amicus Br , 16, 23. a. As discussed above, Congress has expansively defined aircraft to include any contrivance invented, used, or designed to navigate, or fly in, the air, 49 U.S.C (a)(6), and conferred on FAA regulatory authority over aircraft. See 49 U.S.C (b), 49 U.S.C Petitioner presents no argument based on the text of the statute that model aircraft are not designed to navigate, or fly in, the air and are therefore not aircraft. Id (a)(6). Unsurprisingly, petitioner fails to offer a viable alternative interpretation of the statutory term aircraft, variously arguing that aircraft are only manned aircraft, Pet. Br. 34 n.11, 51; aircraft are all aircraft other than those that fall within the description of model aircraft found in section 336(c) of the Modernization Act, Pet. Br ; aircraft are all aircraft other than model 16

28 USCA Case # Document # Filed: 08/04/2016 Page 28 of 105 aircraft that meet the additional requirements in section 336 (a) of the Modernization Act, Pet. Br ; and aircraft are only aircraft used commercially, Pet. Br. 17. The fact that model aircraft are aircraft does not conflict with other regulatory provisions. See Pet. Br , 44-45, Certain of FAA s regulations for manned aircraft cannot apply by their terms to unmanned aircraft; others would be overly burdensome to apply to unmanned aircraft (indeed, that is the genesis of the registration rule s alternate, streamlined registration procedure). But this does not indicate that model aircraft do not meet the statutory definition of aircraft. See, e.g., Interpretation of Special Rule for Model Aircraft, 79 Fed. Reg. at 36, (citing particular regulations that would commonly apply to model aircraft operations). Petitioner s argument that the modifier model indicates that his unmanned aircraft is not an aircraft is similarly unavailing. Pet. Br (putting forth example of model train ). The question is whether a model aircraft meets the definition of aircraft under the statute, not what the modifier model may mean in various contexts. In this case, Congress has defined aircraft as any contrivance invented, used, or designed to navigate, or fly in, the air. 49 U.S.C (a)(6) (emphasis added). Model aircraft, as defined in Modernization Act 336(c), comfortably fit within that definition, and petitioner cannot reasonably contend otherwise. Moreover, the expansive definition of aircraft under the statute does not mean, as petitioner suggests, Pet. Br. 43, that paper airplanes and Frisbees must 17

29 USCA Case # Document # Filed: 08/04/2016 Page 29 of 105 be registered with FAA. As FAA has explained to the public, almost all children s toys that cost less than $100 will be exempted from the rule by virtue of the provision s minimum weight limit (equivalent to approximately two sticks of butter). Paper airplanes, toy balloons, Frisbees, and similar items are also not subject to registration because the registration requirement applies only to unmanned aircraft that are part of a small unmanned aircraft system. 14 C.F.R. 48.1(a). Furthermore, FAA does not require registration for unmanned aircraft that are not part of unmanned aircraft systems. See Pet. Br. 50. Contrary to petitioner s suggestion (Pet. Br ), the fact that FAA does not require the registration of ultralight vehicles does not alter the analysis. As FAA made clear in promulgating the exception for such vehicles, FAA reserves the authority to revisit the registration exception and to discontinue its exercise of enforcement discretion if circumstances require. See Ultralight Vehicles; Operating Requirements, 47 Fed. Reg. 38, (Sept. 2, 1982) ( While this rule does not, at this time, require... vehicle registration... a continuation of burgeoning growth of the ultralight population could necessitate further regulation. ). b. Petitioner also argues that the Modernization Act creates a distinction among civil aircraft (commercially operated aircraft subject to FAA regulation), public aircraft (an aircraft owned and operated by the government), and model aircraft, which he asserts are not aircraft. Pet. Br. 7, 34, In addition to not grappling 18

30 USCA Case # Document # Filed: 08/04/2016 Page 30 of 105 with the plain text of the statutory definition of aircraft in 49 U.S.C (a)(6), this argument fails on its own terms. Congress applied the statutory registration requirement to all aircraft, making no distinction with respect to the kind of operation for which the aircraft may be used. See 49 U.S.C (a). Thus, unless the aircraft is registered, no person may operate an unmanned aircraft that is associated with an unmanned aircraft system, regardless of the nature of the operation. Contrary to petitioner s assertions, model aircraft are aircraft and therefore must be registered. The relevant statutory scheme makes clear that model aircraft are a subset of civil aircraft. Congress divided aircraft operations into public aircraft and civil aircraft. See 49 U.S.C (a)(16), (a)(41), The Modernization Act does not purport to alter the basic distinction between public and civil aircraft operations. The definition of civil aircraft, which is any aircraft other than a public aircraft, remains unchanged by the Modernization Act. See Modernization Act (discussing both public and civil unmanned aircraft systems). Indeed, sections 332(b)-(d), 333, and 335 of the Act mandate FAA rulemaking for and assessment of all unmanned aircraft systems. Petitioner correctly notes that FAA sometimes uses the term civil aircraft as shorthand for aircraft flown commercially, rather than for other purposes. Pet. Br. 15 n.3, 16, 33-35, 52. But FAA shorthand is not an interpretation of the statutory definitions in 49 U.S.C ; nor could FAA s description alter these statutory 19

31 USCA Case # Document # Filed: 08/04/2016 Page 31 of 105 definitions. And accepting petitioner s theory that civil aircraft are only those flown commercially leads to the untenable conclusion that manned aircraft flown for recreational purposes would also not be aircraft, as they, too, would be neither civil aircraft, nor public aircraft. B. Section 336 of the Modernization Act does not withdraw FAA s authority to require owners of small unmanned aircraft operated as model aircraft to register their aircraft. FAA s decision to cease its exercise of enforcement discretion and require owners of small unmanned aircraft operated as model aircraft to register their aircraft is fully consistent with section 336 of the Modernization Act. Section 336 states that the agency may not promulgate any rule or regulation regarding a model aircraft that meet particular criteria, including being flown strictly for hobby or recreational use and operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization. Modernization Act 336(a)(1), (2). Section 336 plainly does not withdraw FAA s preexisting statutory authority to require owners of aircraft to register those aircraft. 1. As explained, by statute, all aircraft must be registered prior to operation. 49 U.S.C , Until recently, however, FAA exercised enforcement discretion regarding registration and other requirements as applied to unmanned aircraft. See, e.g., 80 Fed. Reg. 78,594, 78,640 (Dec. 16, 2015) (noting past and future exercise of enforcement discretion with regard to registration); 80 Fed. Reg. 63,914 (Oct. 22, 2015). In the registration rule, FAA announced its intention to begin 20

32 USCA Case # Document # Filed: 08/04/2016 Page 32 of 105 enforcing the statutory registration requirement against owners of small unmanned aircraft operated as model aircraft, and provided those operators with a less burdensome alternative registration process in place of the existing paper-based registration process implementing the statutory registration requirement. Because section 336(a) bars only future FAA regulation of model aircraft, not implementation of preexisting statutory requirements, the registration rule does not run afoul of that provision. As FAA explained in the registration rule, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements. 80 Fed. Reg. 78,634 (emphasis added); see also Interpretation of the Special Rule for Model Aircraft, 79 Fed. Reg. 36,172, 36,173 (June 25, 2014) ( [B]ased on the language of [section 336], we conclude that aircraft that meet the statutory definition and operational requirements... would be exempt from future FAA rulemaking action.... (emphasis added)). Registration is likewise consistent with the purposes of the Modernization Act. A major impetus for the FAA Modernization Act was to improve aviation safety. Modernization Act Preamble. Congress reiterates that focus throughout subtitle B of the Modernization Act (titled Unmanned Aircraft Systems ). See Modernization Act 332(a)(1) (requiring FAA to develop a comprehensive plan to safely integrate unmanned aircraft systems into the national airspace system); id. 333(a) (requiring FAA to determine if certain unmanned aircraft systems may operate safely in the 21

33 USCA Case # Document # Filed: 08/04/2016 Page 33 of 105 [national airspace system] before completing unmanned aircraft systems rulemaking); id. 333(c) ( If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems. ); id. 335 (requiring FAA to carry out all safety studies necessary for unmanned aircraft systems integration into the national airspace system). Recognizing this overarching goal safe integration of unmanned aircraft systems into the national airspace system Congress included section 336(b), which expressly confirmed that section 336(a) s carve-out did not limit FAA authority to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system. Id. 336(b). In order for FAA to exercise its enforcement authority with respect to unmanned aircraft, it must have the ability to connect unsafe unmanned aircraft systems operation with the individual responsible for the aircraft. Because the Modernization Act defines model aircraft based on the method and purpose of operation, not based solely on any inherent features of the aircraft, see, e.g., Modernization Act 336(a)(1), (c)(2), there is no way for FAA to know in advance of registration whether an aircraft will qualify as a model aircraft. If FAA were forced to exempt model aircraft from the statutory registration requirement, individuals could simply decline to register their unmanned aircraft by asserting that they plan to operate their aircraft as model aircraft, leaving FAA unable to identify and pursue 22

34 USCA Case # Document # Filed: 08/04/2016 Page 34 of 105 appropriate enforcement action against those who later renege on that intention or engage in unsafe operation. And FAA would be without a means to identify small unmanned aircraft owners and provide them with educational materials regarding safe operation. That leads to the very kind of safety incidents described in the registration rule, see 80 Fed. Reg. at 78,595, and undermines Congress s intent that FAA protect the national airspace system while integrating unmanned aircraft systems. 2. Petitioner s and amicus arguments that the registration requirement violates section 336 are unavailing. 5 Both argue that the registration rule s streamlined, webbased registration is a prohibited new rule or regulation regarding a model aircraft, under the Modernization Act 336(a). Pet. Br. 7, 26-27; Amicus Br As discussed above, the registration rule does not contravene section 336(a) because it modifies preexisting enforcement discretion rather than creating a new regulatory burden. FAA has repeatedly indicated that it has regulatory authority over model aircraft. See supra Indeed, as amicus acknowledges, FAA previously exempt[ed] model aircraft from registration. Amicus Br. 14. The rescission of FAA s enforcement discretion does not constitute a new regulation. And there is no reason to argue that FAA must remain tied to a paper-based system; indeed, this would be counter to the interests of both petitioner and amicus. Pet. Br , As explained, the registration rule applies to small unmanned aircraft weighing under 55 pounds, regardless of operation. Petitioner s arguments apply only to the registration rule s application to owners of small unmanned aircraft operated as model aircraft, and, therefore, even if accepted, would not invalidate the rule generally. 23

35 USCA Case # Document # Filed: 08/04/2016 Page 35 of 105 Petitioner and amicus fail to take account of the relationship between section 336(a) s prohibition on future rulemaking and section 336(b) s enforcement authority. See Pet. Br , Amicus Br. 23. The limited exception in Section 336(a) should not be permitted to prevent FAA from satisfying Congress s simultaneously expressed mandate to maintain the safety of the national airspace system and pursue enforcement actions against unsafe operators of unmanned aircraft. Modernization Act 336(b). C. The registration rule is not arbitrary and capricious. Petitioner s various challenges to the substance of the registration process also lack merit. See Pet. Br. 8, 31, Petitioner contends that FAA is using the registration process to impose substantive requirements. Pet. Br. 8. At the time of registration, a registrant is provided with safety guidance. When the online registration system was first implemented, the registrant was asked to agree to follow such guidance. Recognizing that there might be confusion as to whether this guidance was mandatory, however, FAA has since modified the language in question. The current language requires registrants to indicate only that they have read and understood the safety guidance provided on the webpage. Petitioner s argument that the registration rule creates an impermissible registry of... people, rather than of aircraft, is similarly unavailing. Pet. Br Petitioner appears to be advocating a more intrusive registration process. See Pet. Br. 60. In any event, the statutory registration requirement does not focus solely on an 24

36 USCA Case # Document # Filed: 08/04/2016 Page 36 of 105 aircraft. For example, registering an aircraft requires the aircraft owner to satisfy certain criteria which can include demonstrating that the aircraft is owned by a U.S. citizen. 49 U.S.C (a)(1)(A). And the certificate of registration is issued to the aircraft owner, thus connecting the aircraft to its owner. 49 U.S.C (a)(1)(B). By allowing recreational operators to register once and keep track of a single identification number and certificate, FAA permissibly tailored registration for model aircraft to streamline the process, minimize the burden on owners of small unmanned aircraft operated as model aircraft, and maximize registration. 80 Fed. Reg. at 78,628. Petitioner also advances the argument that registration is insufficient to meet FAA s goal of national airspace system safety. Pet. Br. 60 & n.26. He contends that, because registration is not evidence of ownership of an aircraft in a proceeding in which ownership is or may be in issue, 49 U.S.C (c)(2); 14 C.F.R (c), registration cannot ensure personal accountability through enforcement actions. 80 Fed. Reg. at 78,597. Contrary to petitioner s contention, however, registration is a critical enforcement tool, providing FAA with a means to link a small unmanned aircraft system to its owner, even if other evidence is ultimately dispositive in situations where legal ownership is disputed. Cf. 14 C.F.R , 47.33, (identifying items such as bills of sale, instruments showing transaction history, and instruments creating trusts (for aircraft owned by trusts) as relevant evidence in title disputes). In addition, registration and marking requirements provide a means by which to quickly identify small unmanned aircraft in the event of an accident or other 25