Ralph Seeley, Petitioner, v. Department of Transportation, National Transportation Safetyboard; Federal Aviation Administration, Respondents, 967 F.2d 590 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 967 F.2d 590 (9th Cir. 1992)

Submitted June 4, 1992. *Decided June 9, 1992

Before FARRIS, WILLIAM A. NORRIS and KOZINSKI, Circuit Judges.


Federal aviation regulations require aircraft operating within 30 miles of 24 designated airports to be equipped with a Mode C transponder, which allows air traffic controllers to monitor both position and altitude of planes within the controlled airspace. 14 C.F.R. 91.215(b) (2). Seeley complained that this rule adversely affects general aviation in the Seattle area, and requested that the FAA repeal or modify it as it applies to Seattle-Tacoma International Airport. After his request was pending for two months with no agency action, Seeley petitioned this court for review. While this action was pending, the FAA denied Seeley's request to repeal or modify the Mode C regulation. We construe this action as a petition to review that denial.1  See 49 U.S.C.App. § 1486(a).

Upon receipt of Seeley's request for repeal or modification, the FAA published a summary thereof in the Federal Register, 56 Fed.Reg. 10383 (1991), and solicited comments during a 60-day period. The agency then denied Seeley's request, explaining its reasons in a detailed memorandum. The FAA complied with the APA and applicable regulations. 5 U.S.C. § 553(e); 14 C.F.R. § 11.27. Its decision is not arbitrary or capricious, nor is it an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2) (a). The FAA is charged with administering a complex statutory scheme, and its decision to require Mode C transponders at certain airports because of high volumes of air traffic is a reasonable one. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). If Mr. Seeley wishes to fly within 30 miles of Seattle-Tacoma International Airport, he can install a Mode C transponder; otherwise he will have to avoid the controlled airspace.

Petition for review DENIED.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Some of the arguments in Seeley's briefs go to the merits of the underlying regulation, rather than the FAA's refusal to repeal or modify it as applied to Seattle-Tacoma International Airport. We lack jurisdiction to address those arguments, as petitions for review of agency rulemaking must be filed within 60 days of the rule's promulgation. 49 U.S.C.App. § 1486(a)