Monday Morning Regulatory Review – 5/22/17: De-Regulating Model Aircraft

The United States Court of Appeals for the District of Columbia Circuit, last Friday in Taylor v. Huerta, partially vacated the Department of Transportation (DOT) Federal Aviation Administration (FAA) Registration and Marking Requirements for Small Unmanned Aircraft interim final rule (IFR).  The panel concluded that Congress explicitly barred the FAA from promulgating “any rule or regulation regarding a model aircraft.”  The opinion, statute, and regulation all require further explication, for all is not quite what it seems, and potentially dangerously so.

Congress’s statutory provision – the Special Rule for Model Aircraft – specifies that the FAA “may not promulgate any rule or regulation regarding a model aircraft.”  Within that bar, Congress defines “model” aircraft as “an 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.”  If the breadth of the jurisdictional bar cannot be understated, the limitations appear equally highly restrictive, and there is much more to their meaning.

The FAA – responding to the “unprecedented proliferation” of small Unmanned Aerial Systems (sUAS) (aka drones) (in the millions) that are driven by the increasing availability of wireless controls (see cell phone technology) – promulgated an IFR.  The IFR required that all sUAS owners – including model aircraft owners – to register their sUAS (both general individual data and specific craft data), pay a nominal registration fee, and, after registration, display the FAA registration number on the sUAS.  The rule did not distinguish “model” aircraft – a fateful omission.  At the time, this blog noted other problems with the IFR:  the FAA’s “good cause” for partially inverting the normal Administrative Procedure Act (APA) advance notice and an opportunity for public comment before promulgation of any rule.

The D.C. Circuit presumably reached a “plain meaning” conclusion:  “Statutory interpretation does not get much simpler.  The Registration Rule is unlawful as applied to model aircraft.”  The panel felt that Congress had tied its hands:  “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.”  The panel rejected the FAA’s “other statute” interpretation and rested on the statutory bar.  The panel was not explicit as to its Chevron Step One view of the FAA’s jurisdiction, but never discussed ambiguity or deference to the agency’s interpretation of its jurisdiction under City of Arlington.  What happens in reality is more complicated.

Initially, note that breadth of the concept of a bar to regulations “regarding” model aircraft that the panel did not need to address.  The registration rule fell well within the logical bounds of a regulation concerning or with respect to model aircraft – the breadth of regarding has ambiguous yet clearly expansive contours.  Not yet raised, but imminent, are questions of whether Taylor v. Huerta would also bar the FAA from prohibiting model flying near airports, military facilities, or other flight restricted areas.

The second and third statutory limitations raise different (contrary) problems of interpretation.  The statutory “visual line of sight of the operator” requires some additional definition because visual acuity is already a foundational control for the FAA to license pilots – just as visual acuity is foundational to the ubiquitous but not universal driving license (and commercial driving licenses (CDLs)).  Licensing schemes include “aided” sight within parameters, but how much aid is permitted in this context remains unclear.  Since line of sight is a limitation within the statute, and the lack of clarity somewhat obvious and raised in public comments on the FAA’s proposed rule, the FAA likely has maneuvering room to provide greater definition of the limitations on the statutory jurisdictional limit.  What is unstated, but obvious, is that any obstruction to “visual line of sight” renders the bar in applicable, and the regulation applicable, together with the civil and criminal penalties that Congress has authorized.

Equally mystifying is the statutory limitation on the FAA’s jurisdiction if the model of “flown for hobby or recreational purposes.”  Many different definitions could be applied to the stated purposes – including the Internal Revenue Code (IRC) distinction between business deductions and non-business (hobby) non-deductions, to reach a bit.  Indeed, any question of “purpose” raises an issue of the individual’s state of mind.  Science, information acquisition, technological development, and many notions of substantial profit, displaces a non-hobby or recreational purpose.  The point may be that the FAA has latitude to fill this gap.

The court’s vacatur is limited “to the extent” that the Registration Rule “applies to model aircraft.”  But the statutory and regulatory problem is not in the typology definition of the aircraft, but the manner in which the individual flies that aircraft and his or her state of mind.  The hobby or recreational flyer of a sUAS can easily and inadvertently cross the statutory border from non-applicability to potential criminal sanctions.

The next move remains with the FAA, or perhaps Congress, but some move will be needed before the court issues its mandate.

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