Morrison client alert…Is the FAA’s emergency rulemaking for drone registration valid?

On February 14, 2012, in the FAA Modernization and Reform Act of 2012 (the “2012 Act”), Congress instructed the FAA to issue rules for the “safe integration” of UAS by September 30, 2015.

Although the FAA has issued its Notice of Proposed Rulemaking, and comment period has closed, the FAA has yet to finalize these rules, despite nearly four years lapsing between Congress’s mandate and today. With that background, the FAA now intends to issue the Registration Rules directly within the next month, presumably before the massive influx of sUAS enters the NAS this holiday season.

If the holiday shopping “deadline” is the impetus for the FAA’s “emergency” rulemaking, it seems that the FAA is the cause of its own crisis, and its action may be vulnerable if challenged.

The FAA will likely try to justify this “emergency” treatment on the ground that the notice-andcomment period is “impracticable.”

If an agency can create its own emergency to bypass the APA’s notice-and-comment requirements, public comment will effectively be optional for agencies. This not only creates perverse incentives for agencies directed to make rules for hotly debated topics like drones to do so through emergency rulemaking in the hopes of avoiding extensive and controversial public comment, but it also, ironically, threatens to slow down the entire rulemaking process, as lawsuits will inevitably follow such actions.

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Interesting implications. (Flash forward a few months and this is being challenged for skipping the public comment period.)

From www.mofo.com

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