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Case number 15-1495 at L, John A. Taylor Petitioner versus Michael P. Horta as Administrator, Federal Aviation Administration.

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Mr. Taylor for the petitioner, Ms.

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Wright for the respondent.

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Good morning.

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May it please the court?

[00:00:20] Speaker 04:
Good morning.

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My name's John Taylor.

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I'm the pro se petitioner in these matters.

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These cases are challenges to certain FAA regulation regarding recreational model aircraft.

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One of the regulations creates a mandatory registration process for recreational model aircraft in direct violation of Section 336A of the modernization and reform.

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That section created a prohibition on the FAA promulgating rules and regulations regarding recreational model aircraft.

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That's exactly what the FAA has done here.

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The FAA's defense to this is that this new Part 48 that they've created to do this is very similar to Part 47 registration that they already had regarding civil aircraft.

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And this is really just a new and improved, faster, slicker way of doing it.

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That may be the case.

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I don't believe it is.

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But even if it is, it's still the adoption of a rule or regulation regarding recreational model aircraft.

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It is still prohibited under Section 336A.

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Section 336A, that violation, is really at the heart of my case.

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And I'm reluctant to move on past it, but I don't really know what more to say about it.

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Congress specifically said, don't adopt rules and regulations regarding recreational model aircraft.

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And that's exactly what the FAA has done.

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Well, the FAA's argument, as I understand it, we'll obviously hear from them, is that

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What they've done essentially is just exercise discretion that they already had with respect to enforcement and that this isn't a new regulation in that sense.

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I think that's their argument.

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Well, Your Honor, it's not an enforcement action.

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It's rulemaking.

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Under Section 336B, which is certainly an important part of the statute, they certainly have the power to take enforcement action against people who are actually endangering

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the navigable airspace.

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That's not what they're doing here.

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They're engaging in new rulemaking.

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And I think that's clearly – this is exactly the sort of thing that Congress must have been contemplating and saying, we don't want you regulating model air traffic.

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They also say on page 20 of their brief that – well, 336A set forth

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the prohibition against regulation of certain model aircraft, not all model aircraft.

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But they don't really seem to press that argument.

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Well, what's your response to that?

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Well, Your Honor, if they had carved out the specific aircraft that are covered there and said, well, these don't have to register, but the others do, the regulation would still have a lot of problems, but it wouldn't violate Section 336A.

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That's not what they've done here.

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With respect to the timing issue, I'm sorry, the good cause for not proceeding with notice and comment.

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Do you care to say anything about that or are you just going to rest on your brief statement?

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No, Your Honor, I plan to address that and I'll address that now.

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There was no good cause here.

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This wasn't a situation where there was an emergency situation, as the cases talk about, where a delay would cause a real risk of injury or harm to people.

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The contention was that Christmas coming was the emergency.

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Well, Christmas coming was certainly a foreseeable event.

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If you believe the FAA's explanation here, registration had been required since 1926.

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They just hadn't been doing it.

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They certainly could have squeezed in 30 days for notice and comment, but they didn't do that.

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Then having claimed that this was an emergency, they then didn't make it effective to people who already owned model aircraft for another couple of months.

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So how could this really have been an emergency?

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It also didn't protect anyone from any real harm.

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The FAA's contention is that they really needed this registration process so that they could track model aircraft if somebody does something they shouldn't be doing.

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Well, I have problems with that in theory, but in practice, it's never been used.

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I sent a FOIA request and said, do you have any records of actually tracking model aircraft using this process?

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Nothing.

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And the FAA has certainly not come back in their filings and said, well, yes, this has actually been used.

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It's been important.

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But isn't it a deterrent?

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I mean, if someone knows that their model aircraft is on file, then they don't want to fly it someplace where they're in violation of rules or doing something dangerous.

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Well, the fact of the matter is people who are going to fly recklessly don't register in the first place.

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And even if they do, all they have to do is remove the registration number and then go fly it.

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So it doesn't really act as any kind of deterrent at all.

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What it does is it creates a

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This whole process has created a tremendous amount of confusion in the hobby, certainly.

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People don't know what's expected of them.

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They don't know what laws are going to be applied one day to the next.

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And it's a deterrent to engaging in the hobby.

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And I think that may be, well, I don't want to speculate on any of those matters.

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But that's the only real deterrent.

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It's no deterrent to flying recklessly, unfortunately.

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I don't know how you'd read the language to be so pointed.

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The Modernization Act talks about in 332, the agency is required to integrate unmanned aircraft systems into the national system, model aircraft that clearly recognizes unmanned, and they have enforcement obligations in the statute.

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It's not as clear as you said.

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I've always had the authority before the misstatute to require registration.

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The language is just not as clear as you would like.

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the Modernization Act in its entirety and coupled with what it's laid on to?

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I don't see how it works there.

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Well, Your Honor, it's important that if you look at 336, it specifically says notwithstanding any other part of this act.

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So they're basically saying, you know, you can ignore for this purpose is what we may have said elsewhere.

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We're telling you, don't adopt rules and regulations regarding recreational model aircraft.

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And I think it's important to understand all of these sections in the context of what the FAA was doing at the time.

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The FAA since 2007 had drawn a clear distinction between civil aircraft, which included in their definition

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unmanned aircraft that were used commercially, those were civil aircraft.

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The recreational model aircraft were something different in a part.

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You had this dichotomy between the two of them.

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And I think what Congress is doing in 332 through 336 was codifying what the FAA had been saying.

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Let me see if I understand the logical implication of what you're arguing right now.

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Let's suppose the interim final rule said we're only requiring registration of model aircraft that meet the criteria of 336A1 through five.

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I'm sorry, we're exempting all of them.

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But all other recreational model aircraft will have to register.

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Are you saying and let's say they did that by notice and comments.

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We don't have that issue.

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Are you saying that they could do that?

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Are you saying that they couldn't?

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Well, your honor, I I don't believe that would violate section 3 36 a

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But I think then you get into the issue of whether these are truly aircraft, whether Congress intended to make them civil aircraft and bring the full weight of FAA regulation.

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As the FAA acknowledges, there are many regulations.

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Where in the statute can you say then that they wouldn't be able to regulate model aircraft in that fashion?

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What basis do you have in the statute for that?

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Not in that statute.

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I don't believe they would be authorized to do it under the defining statute of what defines aircraft.

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And the way the FAA has interpreted it.

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Aircraft is basically anything that flies, right?

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Well, if that's true, then paper airplanes are aircraft.

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Frisbees are aircraft.

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It becomes an unworkable definition.

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And the FAA likes that.

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Not if they define it.

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Unmanned aircraft can include model.

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Statutorily, I don't see how you can say otherwise.

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The fact that you can dream up other possibilities seems to me irrelevant, but unmanned aircraft clearly includes modeling.

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Well, Your Honor, if a paper airplane is an aircraft that is required by statute to be registered, and someone operating it is required by statute to have an Airman certificate and a pilot's license, it's required to have an airplane... Then they would have been in violation of the statute for the past, what, 80 years?

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Yes, if you accept the FAA's definition.

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I mean, you're, I think, going way out on a limb that you don't need to go out on here by making, I think, an extreme argument either that they have to regulate everything or they can regulate nothing.

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Well, Congress has said that they have to register, that aircraft have to be registered.

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So if you're using this definition, then they have to register paper.

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Well, they don't have to register them.

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The operators of them have to register.

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I'm pointing out the absurdity of applying this definition and how it leaves an unworkable definition that no one's going to really know.

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I mean, it's what agencies do every day is where if the statute has got some imprecision,

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they exercise their judgment and discretion and expertise to narrow and focus in on the proper definition and scope?

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Well, there's nothing in the FAA's regulations that exempt paper airplanes and frisbees.

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There's nothing in there that... I mean, they don't do that.

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I don't know that they could under the statute.

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Nobody really knows where the line is drawn, and I think the FAA likes that.

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Well, I mean, the regulation as drafted doesn't cover frisbees and paper airplanes.

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The interim final rule doesn't.

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That doesn't, but the statute does.

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If you accept the FAA's definition of what constitutes an aircraft.

[00:12:10] Speaker 01:
You don't need to win on this argument, though, in this case.

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I don't believe I do.

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Yes.

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The argument is raised in the fear that the FAA would then take part 47 and say, well, if you don't want to do the online process, you've got to fill out all these forms and bring them in and apply the same way you do a 747.

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But this has broader ramifications beyond just this one regulation.

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Thank you.

[00:12:40] Speaker 01:
Thank you.

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Good morning.

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Abby right on behalf of the FAA.

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I want to start with the

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the goals of the registration rule, which are twofold, the enforcement, the ability to enforce because these unmanned aircraft are not going to be identified, and also that it emphasized that one of FAA's goals here was to educate unmanned aircraft users.

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So when the user purchases an unmanned aircraft and goes to register online, FAA has a direct and immediate ability to educate that user on safe operations, which is crucial because, as we explained in our brief, there are close to

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2 million of these operating Now 1.6 million were sold in 2015 to many times Congress put this language in the act though.

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You're not starting with the text of the act

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So I think Congress, FAA acknowledges that Congress was limiting its ability to promulgate new regulations in certain respects.

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But it does not, 336A does not repeal the pre-existing statutory requirement that aircraft register.

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But it bars the FAA from doing any rule or regulation regarding model aircraft in this, unless I'm missing something, is a rule or regulation regarding

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model aircraft.

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There was no pre-existing rule.

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Well, there was a pre-existing rule for registration, which was Part 47.

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A model?

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It applied to unmanned aircraft as well.

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FAA required unmanned aircraft to register when granted an exemption.

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FAA did not extend that requirement to model aircraft.

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So there was no regulation for model aircraft.

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But there was nothing in Part 47.

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Part 47 restricted the aircraft.

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If you had a possibility, it didn't mean that you exercised it.

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There was no regulation of model aircraft.

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FAA did regulate model aircraft.

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I want to be clear about that.

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So beginning in 2007, FAA said, with respect to public and civil, which means commercially operated or not fitting in the model definition, aircraft, you have to get a case by case exemption.

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And then FAA said, for model aircraft, that permission is the advisory circular.

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So it's not the case that FAA has ever disclaimed authority to regulate modeling.

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I understand, but I thought the point of the statute reading it was to bar FAA from doing any new regulations of

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FAA agrees that it does bar FAA from doing, from imposing new obligations on model aircraft.

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So for example, FAA.

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And that's what this is though.

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It's a regulation that was promulgated after the date of this statute and it regards model aircraft.

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Our reading of the statute is that it didn't repeal the pre-existing statutory requirement.

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And there's no reason to think that Congress... Well, the statute said that persons operating aircraft have to operate.

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Let's say we know that you had a prior possibility to quickly do something and claim it to be authorized under the prior possibility, but going forward you can't do anything.

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I don't think it is for two reasons, Your Honor.

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So we have 336B, which clearly expresses Congress's intent that the FAA will continue to enforce against unmanned aircraft to operate recklessly.

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Continue with your answer, but I read that as hurting your argument, but go ahead with the rest of your answer to Judge Edwards.

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That's too bad.

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The FAA, it cannot enforce when it doesn't know who is

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operating the unmanned aircraft.

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And so some of these unmanned aircraft can be operated from up to four miles away.

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So I can be four miles almost to my house from here that I can be operating an unmanned aircraft.

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I crash it.

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I do whatever with it.

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And FAA has no idea who it belongs to.

[00:16:42] Speaker 01:
Well, I think that's a great policy argument.

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And this statute is surprising to me.

[00:16:46] Speaker 05:
Well, I think Congress, I mean, I think subsection B is there, Congress recognizing where there is this preexisting statutory requirement.

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Congress has nothing about registration in the Modernization Act.

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It does elsewhere talk about airworthiness certificates.

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But back to my point on be the reason, I think it.

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potentially hurt your argument, is that it does seem to say, OK, no regulations, but just to be clear, the FAA can continue to do enforcement for safety violations and the like, so that there would be no argument that doing such an enforcement action violated 336A.

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But the two of them together seem to say no rules, but yes on safety-related enforcement actions.

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Well, I think Congress must have known that

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The unmanned aircraft poses a very unique enforcement problem.

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And if they wanted enforcement actions, registration is a key component.

[00:17:37] Speaker 01:
But that, again, you're making a good policy argument.

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The statute surprises me.

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But I don't know.

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It's pretty.

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I'll go to my second point, which is that the statute is interesting because the way a model aircraft is defined is defined based on the functionality of the aircraft.

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not on whether that you can't go on Amazon and search for a model aircraft.

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It's the same thing.

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It can be operated under the model aircraft definition.

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It can be operated commercially.

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It can be operated simply outside this definition.

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And so at the time of registration, all you have is the person's, I guess, promise that in the future they won't operate outside the model aircraft definition.

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Registration takes place when you purchase before you operate.

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And so it would be very easy for people to say, well, I don't need to register because I'm sure I'll keep operating it within this definition, even though I won't really have any education because I won't have registered.

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And then start to operate outside of the definition and not have registered.

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And again, then FAA is really hamstrung with enforcement in that case.

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So explain to me, so that I understand your theory of how to interpret 336A, what work does 336A do?

[00:18:54] Speaker 05:
So there are perspective regulations that FAA acknowledges it could not enact with respect to model aircraft.

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I mean, the most obvious is FAA couldn't modify the definition of model aircraft, so couldn't say, well, you've got to have two visual observers, or it's got to be under 20 pounds, or that sort of thing.

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FAA also believes it could not, for example, impose limitations on the type of unmanned aircraft, so couldn't say model aircraft

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can only be aircraft capable of flying under 10 minutes or capable of flying only under 10 miles an hour or other requirements like that.

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Also, couldn't outside restricted flight zones say that model aircraft could only fly during the day?

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So there are things going forward.

[00:19:37] Speaker 03:
So why are those the only things that regard a model aircraft?

[00:19:42] Speaker 05:
Well, I think we're not relying on the regard to model aircraft language as much as the pre-existing nature of the requirement for registration.

[00:19:50] Speaker 03:
What does regarding mean in your view, then?

[00:19:54] Speaker 05:
Regarding, I think, means affecting a model aircraft.

[00:19:58] Speaker 05:
So we haven't really made the argument here that it doesn't.

[00:20:02] Speaker 05:
It doesn't affect a model aircraft.

[00:20:04] Speaker 05:
We model aircraft have to register under this rule, which is why a petitioner is objecting.

[00:20:07] Speaker 05:
But we are relying on the fact that the statutory requirement of registration predated the Modernization Act, and Part 47 also predated the Modernization Act.

[00:20:15] Speaker 05:
So Part 48.

[00:20:16] Speaker 03:
So what does notwithstanding any other provision of law mean?

[00:20:20] Speaker 05:
Well, that is specific to provision of law within the Modernization Act.

[00:20:24] Speaker 05:
So the Modernization Act directs FAA to.

[00:20:28] Speaker 05:
Why does it say that?

[00:20:28] Speaker 05:
Well, because.

[00:20:29] Speaker 02:
Your mooting must have been interesting.

[00:20:33] Speaker 02:
I don't know where you're getting these words from.

[00:20:37] Speaker 02:
You're just making stuff up.

[00:20:38] Speaker 02:
That's not what the statute says.

[00:20:39] Speaker 02:
Notwithstanding any other provisions.

[00:20:40] Speaker 05:
Relating to the incorporation of unmanned aircraft systems, including in the subtitle.

[00:20:44] Speaker 05:
So what Congress is saying is that in the Modernization Act, Congress directed FAA to engage in specific rulemaking.

[00:20:52] Speaker 05:
And the argument could have been made that, in fact, well, you said to engage in this rulemaking, so we can do it for model aircraft.

[00:20:59] Speaker 02:
You know, I like my colleague who says,

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It's a very perplexing statute, but you know it is what it is.

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And judges get themselves in trouble when we start going around.

[00:21:11] Speaker 02:
There are some judges that I can point to naturally and would say, wow, this isn't what Congress said.

[00:21:16] Speaker 02:
This is what Congress said.

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And you have five, as good as you have, you have it framed.

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If the model is within these five, you're done.

[00:21:29] Speaker 02:
That's that.

[00:21:34] Speaker 02:
I would find ways to work within those five and come up with regulation that would include safety considerations and squeeze it in within so that it doesn't... But I don't see how you can say... The argument is very strange to read.

[00:21:50] Speaker 02:
We had the authority before.

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We didn't exercise it.

[00:21:54] Speaker 02:
So there's no pre-existing regulation.

[00:21:57] Speaker 02:
We never regulate it.

[00:21:59] Speaker 02:
Now the statute says, don't regulate it.

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unless you meet the five criteria.

[00:22:06] Speaker 02:
And you're saying, well, all that means is we can quickly do it now, but going forward, we can't.

[00:22:14] Speaker 02:
That just doesn't work.

[00:22:15] Speaker 02:
I wouldn't write anything like that.

[00:22:17] Speaker 02:
I'd be laughed out of the business.

[00:22:20] Speaker 02:
We can't write something like that.

[00:22:21] Speaker 05:
There are two different classes of regulations in our view.

[00:22:26] Speaker 05:
So there are the regulations that stem from pre-existing statutory requirements that Congress did not repeal in the Modernization Act.

[00:22:32] Speaker 05:
Those forward-looking ones are ones FAA might think are a good idea, but Congress has clearly said that there are some things that FAA cannot do.

[00:22:40] Speaker 05:
I think we draw a line in a different place than Your Honor is suggesting.

[00:22:43] Speaker 02:
What's the pre-existing regulation that you're resting on?

[00:22:46] Speaker 02:
There isn't any.

[00:22:48] Speaker 02:
You're talking about pre-existing authorities.

[00:22:51] Speaker 05:
There is a regulation that covers aircraft that was applied to unmanned aircraft prior to the Modernization Act.

[00:22:58] Speaker 05:
And that's what we are relying on.

[00:22:59] Speaker 05:
Now, Part 48 provides a way for people to do it easily for $5 online.

[00:23:03] Speaker 05:
700,000 people have registered, 700,000 model aircraft users have registered in addition to the commercial books.

[00:23:16] Speaker 02:
And you can read that to include model.

[00:23:23] Speaker 02:
You never enforced it that way.

[00:23:24] Speaker 02:
Now Congress has come forward and said, no.

[00:23:27] Speaker 02:
It's as if to say, unless there's any confusion, no, you cannot regulate in this way, unless you're outside of the five exceptions.

[00:23:35] Speaker 05:
Well, imagine, Your Honor, that FAA had not

[00:23:39] Speaker 05:
passed Part 48, but had simply said, had not promulgated Part 48, but FAA had not promulgated Part 48, but had instead said, model aircraft, you now have to use Part 47.

[00:23:48] Speaker 05:
Under that,

[00:23:50] Speaker 05:
state of affairs, there would be no promulgation of a rule or regulation.

[00:23:53] Speaker 05:
There would simply be a ceasing of the exercise of enforcement discretion and a direction that you need to use Part 48 of Part 47.

[00:24:02] Speaker 05:
What FAA did here was say, be realistic and say, 700,000 model aircraft users are not going to go through a paper-based product, paper-based process.

[00:24:11] Speaker 05:
We're going to do an online web-based

[00:24:14] Speaker 05:
registration system where we can directly educate users, where we can, you know, show them our web pages.

[00:24:19] Speaker 02:
Again, that's a policy argument.

[00:24:20] Speaker 02:
The fact that the thing that you're doing has good effect doesn't mean that the thing is lawful.

[00:24:27] Speaker 05:
Well, I agree with you, Your Honor.

[00:24:28] Speaker 05:
I agree with you.

[00:24:29] Speaker 05:
And we are reading the statute to say that it did not withdraw FAA's authority to require model aircraft.

[00:24:34] Speaker 01:
Did the FAA express any views at the time this statute was being considered that you're aware of?

[00:24:40] Speaker 05:
I'm not aware of any, I know there is nothing in the legislative history speaking to these issues.

[00:24:46] Speaker 01:
This would strike me as something FAA would have been alarmed by, but maybe it was tucked in.

[00:24:52] Speaker 05:
There's a lot of new direction in the Modernization Act.

[00:24:57] Speaker 01:
Right, tucked in in the dark of night before FAA could project perhaps.

[00:25:01] Speaker 03:
So help me understand, just trying to make sure I understand your argument.

[00:25:08] Speaker 03:
So in 336A,

[00:25:11] Speaker 03:
You're saying that relating to the incorporation of unmanned aircraft systems into FAA plans and policies, that that somehow should be read to mean that the notwithstanding any other provision of law doesn't mean everything in this

[00:25:41] Speaker 03:
in this subsection, but only certain provisions.

[00:25:46] Speaker 03:
I'm just trying to understand what your construction is.

[00:25:49] Speaker 05:
To be clear, I don't think that provision of law is part of our, provision of the statute is part of our positive argument.

[00:25:54] Speaker 05:
I'm arguing as to why it doesn't mean that we couldn't promulgate the part 48.

[00:26:01] Speaker 05:
So notwithstanding any other provision of law,

[00:26:03] Speaker 05:
relating to the incorporation of unmanned aircraft systems.

[00:26:06] Speaker 05:
The Modernization Act has a number of directions for rulemaking, for a roadmap, for a sort of policy outline.

[00:26:13] Speaker 05:
And Congress there is saying, imagining that someone would come in and say, well, you've directed this rulemaking for small unmanned aircraft systems, so surely you meant model aircraft too.

[00:26:24] Speaker 05:
And so there they're just saying, for the Modernization Act, for the directions to the FAA to integrate unmanned aircraft systems in,

[00:26:32] Speaker 05:
That doesn't provide you with a separate source of authority there.

[00:26:36] Speaker 05:
So again, it's not part of our positive argument, but I was explaining why it doesn't mean notwithstanding any provision governing aircraft.

[00:26:46] Speaker 05:
It's more specific to the integration of unmanned aircraft systems, which was a specific set of rulemaking directions and policy directions.

[00:26:57] Speaker 03:
So why didn't the FAA just say we're going to change how we enforce part 47 and given 336A, we're just going to require registration of model aircraft?

[00:27:17] Speaker 05:
So you're saying we're pouring it through Part 47?

[00:27:20] Speaker 05:
I mean, I think it's just a realistic assessment that the agency can provide an alternative means of doing that in a way that people will actually do.

[00:27:31] Speaker 05:
Again, the agency charged $5, 700,000 Mollicarp users have done it so far.

[00:27:39] Speaker 05:
We really operate in an online system now, and it really is just an update of Part 47.

[00:27:45] Speaker 03:
I mean, many commentators challenged the FAA's authority to do this prior to promulgating the interim final rule and cited 336A.

[00:27:55] Speaker 03:
And the FAA just kind of waved them all off, right?

[00:28:01] Speaker 05:
Well, I think FAA made the arguments that we made in our brief, which include the fact that the registration requirement was a statutory requirement that predates the Modernization Act.

[00:28:12] Speaker 05:
There were a few comments along those lines.

[00:28:14] Speaker 05:
The vast bulk of the comments were directed towards the kind of mechanics of the rule, when it should apply and when it should not apply.

[00:28:20] Speaker 05:
There was a lot of discussion about the FAA exempts if you're under 0.55 pounds, you don't need to register.

[00:28:27] Speaker 05:
And so there was a lot of discussion about that.

[00:28:29] Speaker 02:
I'm wondering what you think you can't do going forward, percentage of 336?

[00:28:34] Speaker 05:
Sure, so FAA believes, for example, that it could not regulate the type of model aircraft, so it couldn't say model aircraft modelers cannot operate, you know, high functionality unmanned aircraft systems, could not say, for example, that outside of restricted zones model.

[00:28:52] Speaker 02:
But the other thing with respect to registration, you think you can continue going forward?

[00:28:56] Speaker 05:
That's right, we think we can require model aircraft to register.

[00:28:59] Speaker 05:
So it would be, it would be new requirements.

[00:29:02] Speaker 02:
Well, I don't think we could modify that.

[00:29:10] Speaker 05:
I think FAA could, if the web-based system wasn't working in the right way, could modify that slightly.

[00:29:16] Speaker 02:
Your argument is that because of the pre-existing statutory requirement, you can do anything you want with respect to registration requirements.

[00:29:23] Speaker 05:
Well, I would say we can't go outside of what the statute requires, but we can change the process, the procedures, that sort of thing, which is what Part 48 does, which makes it something that

[00:29:34] Speaker 05:
your average layperson can do, can register, can go online and do that.

[00:29:39] Speaker 05:
Approximately seven minutes is the time estimate FBI gives for that.

[00:29:45] Speaker 03:
So, why, we haven't spent any time on the notice and comment issue.

[00:29:53] Speaker 03:
Is there anything you want to say in addition to your brief on that?

[00:29:56] Speaker 05:
Sure, I just would point the court to, it's discussed in the rule, but that

[00:30:00] Speaker 05:
Incredible increase in the number of unmanned aircraft systems and the increase in the number of safety incidents reported.

[00:30:05] Speaker 05:
So 2014 has a total of 238 safety incidents.

[00:30:09] Speaker 05:
August 2015 single month has almost that many as well.

[00:30:14] Speaker 05:
So what FAA saw in the fall of 2015

[00:30:16] Speaker 05:
is a huge spike in the number of reported safety incidents.

[00:30:20] Speaker 05:
And then a huge, so there were 200,000 unmanned aircraft systems operating in 2014.

[00:30:26] Speaker 05:
There were 800,000 predicted to be sold in the holiday season in 2015.

[00:30:30] Speaker 05:
And so FAA knew that the need for enforcement was going to increase incredibly and that the rule needed to be in place before the holiday season so that

[00:30:42] Speaker 05:
FAA would have a way to identify and also to educate those new purchasers of unmanned aircraft systems, a huge number of which had never operated a model aircraft or had any experience with aviation at all, and just wake up this morning, open your present.

[00:30:58] Speaker 05:
FAA needed a way to reach those people to let them know the serious safety concerns that can be posed by unmanned aircraft systems.

[00:31:04] Speaker 05:
And so that was the cause provided by FAA.

[00:31:09] Speaker 05:
No further questions, thank you.

[00:31:18] Speaker 04:
There's a second regulation that's subject of a petition here, and that's what's referred to as Advisory Circular 9157A.

[00:31:27] Speaker 04:
And what that did in the meaningful part... Are you too late to challenge that?

[00:31:35] Speaker 04:
Well, the question is whether there was a justifiable cause for the delay, and I believe there was, and it's tied in with the Administrative Procedure Act issues.

[00:31:49] Speaker 04:
Had the FAA published a notice of proposed rulemaking saying that they wanted to adopt a regulation, that the effect of the regulation would be to extend these flight zones to model aircraft, and had I not filed within that time,

[00:32:06] Speaker 04:
then I think that would be problematic.

[00:32:09] Speaker 04:
But here what the FAA did was they said they were updating an old advisory circular, which can't create new obligations.

[00:32:21] Speaker 04:
It's just advice.

[00:32:23] Speaker 04:
And they specifically said what they were doing was to give guidance

[00:32:26] Speaker 04:
to model aircraft operators.

[00:32:29] Speaker 04:
In the previous version, 9157, specifically said that they were just giving guidance, they were seeking voluntary compliance with safety guidelines.

[00:32:39] Speaker 04:
So anyone reading this would not have interpreted this, it wouldn't have been adequate notice as to what this rule was going to do.

[00:32:52] Speaker 04:
If I can move into the substance of the argument on that, these flight zones were created as a post-9-11 initiative, and they specifically in the rulemaking said that they were to address the danger of terrorists hijacking or stealing airplanes.

[00:33:10] Speaker 04:
and attacking the Washington, D.C.

[00:33:12] Speaker 04:
area, or actually the nation's capital.

[00:33:15] Speaker 04:
And in establishing the size of these zones, they said they were specifically considering the flight and intercept time that would be necessary for defensive aircraft to reach these aircraft.

[00:33:30] Speaker 04:
Those considerations have absolutely no application whatsoever to recreational model aircraft.

[00:33:36] Speaker 04:
The FAA acknowledges they never even considered it.

[00:33:38] Speaker 04:
Page 35 of their brief, they point out that they didn't consider it because model aircraft or aircraft, which, as I said, I think if the court were to

[00:33:54] Speaker 04:
authorize that and say that they are actually civil aircraft, that would create a lot of confusion and bring down on hobbyists and everyone else a lot of regulations and statutes that can't reasonably be compliant.

[00:34:14] Speaker 01:
Okay, we have your argument.

[00:34:15] Speaker 01:
Thank you very much.

[00:34:16] Speaker 01:
The case is submitted.

[00:34:18] Speaker 01:
Thank you.