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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 11/30/15: Immigration Executive Action Review; Airport Body Scanners & Drone Registration Recommendations

Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies

dawn over the capitol aocThanksgiving week is traditionally a slow government period, but a few timing tidbits deserve a nod. Immigration executive action remains a hot topic, even if only timing of when a decision on whether to review might occur. Timing of Department of Homeland Security (DHS) regulations managing whole body scanners at airports remains a problem, but a Department of Transportation (DOT) advisory task force delivered its drone registration recommendations on time.

Immigration Executive Action Review: As noted last week, the United States has sought a writ of certiorari from the United States Supreme Court (SCOTUS) in United States v. Texas (U.S. No. 15-674) to review the affirmance of the preliminary injunction of certain immigration executive actions. Texas requested more time to respond to the petition for certiorari, which is not uncommon, and the Solicitor General opposed that request, which is uncommon. SCOTUS has not decided the application and it may not affect the timing of the ultimate outcome even SCOTUS grants review.

► Substantial misunderstanding of the timing of review seems to hound this issue. While SCOTUS dislikes extending its argument calendar, and a grant after mid-January would nominally require extension or holding the case to the next Term, SCOTUS may, if it so choses, require briefing to be completed in time for oral argument to be held in April. The problem here is that everyone seems to assume a normal schedule for an abnormal petition. If the Solicitor General wants this case to be heard this Term, he may file his merits brief well before the end of the 45 days allotted after the order granting certiorari, and SCOTUS might well require him to do so. Appellant’s merits brief filing sets in motion Texas’ 30-day deadline for its merits brief – which might stand, or might be shortened.

Airport Body Scanners: DHS, through the Department of Justice (DOJ), responded to the United States Court of Appeals for the District of Columbia Circuit demand for an advanced imaging technology regulatory schedule. In short, the Transportation Security Administration (TSA) submitted a draft final rule to the Secretary on November 9, 2015; the Secretary’s office completed its review and transmitted a draft to the Office of Management and Budget (OMB) on November 19, 2015. Citing Executive Order 12866, DOJ argues, “OMB typically has ninety (90) calendar days to coordinate and complete interagency review of the draft of the final rule.” Thus, DOJ suggested that OMB review should be completed by February 18, 2016, “barring unexpected circumstances,” and, giving two weeks for the publication details, the final rule should be published by March 3, 2016.

► The DHS Unified Agenda suggests that TSA planned to publish the final rule in January 2016, but the DOJ filing is less optimistic. Additionally, DOJ’s notion that OMB “typically has 90 days” for executive and interagency review is not quite accurate: OMB’s Office of Information and Regulatory Affairs (OIRA) normally completes review within 90 days – but often more quickly, and sometimes that time is extended. True, the Executive Order could be interpreted as OMB typically having 90 days to review, but that says too little. The complexity of interagency and / or executive review, moreover, is not an “unexpected circumstance.” DOJ might have been better off saying less because what it has said begs for more.

Drone Registration Recommendations: DOT’s Federal Aviation Administration (FAA) last Monday released the recommendations of its Unmanned Aircraft Systems (UAS) Registration Task Force (RTF) Aviation Rulemaking Committee in the midst of its work to finalize new drone regulations. FAA gave the task force a narrow task and a short time to provide some post-public-comment advice. The result for FAA’s consideration contains three key elements for registration:

  • Registrants would complete an electronic web or application (app) form;
  • FAA should immediately send back an electronic certificate of registration and a personal universal registration number for use on all small Unmanned Aircraft Systems (sUAS) owned by that registrant; and
  • Registrants would mark all applicable drones with the registration number.

An alternative would permit the registration of a drone serial number. The details of the form (under the Paperwork Reduction Act (PRA)) were not included, except to recommend exclusion of contact information such as an email address or telephone number. Moreover, the task force recommended that the FAA exempt drone registration information from public disclosure under the Freedom of Information Act (FOIA).

The FAA also revised and reissued its policies regarding drones in a policy notice, Unmanned Aircraft Operations in the National Airspace System (NAS).

► The task force is merely an advisory committee and reflects the biases of its membership. The FAA faces a much more complex task of managing a heretofore-uncontrolled technology in a broader environment that includes privacy, insurance, and all of the other elements of manned aircraft. Some have suggested that the FAA will issue an interim final rule to get ahead of holiday gift giving, but that may in reality be a partial final rule, not the traditional good cause response, for example, to an emergency.

On a different tack, the task force suggested that, if the FAA is required to charge a registration fee, that it be a de minimis fee of 1/10th of one cent ($0.001), sometimes referred to in tax valuations as “one mil.” The task force does not address how the FAA would account for such a fee or how a registrant would pay such a fee. Nor would such a sum represent the cost recovery.