Summary
The D.C. Circuit dismissed EPIC's petition challenging the FAA's handling of a request for privacy-specific regulations governing civil drones. The court held that the challenge to the FAA's dismissal was untimely under 49 U.S.C. § 46110(a), and that the FAA's notice of proposed rulemaking was not a final, reviewable agency order.
Topics
Practice areas
Questions Presented
- Whether EPIC's petition for review of the FAA's November 26, 2014 dismissal was timely under 49 U.S.C. § 46110(a), or whether reasonable grounds justified filing after the 60-day deadline.
- Whether the FAA's February 23, 2015 notice of proposed rulemaking constituted a final, reviewable order under 49 U.S.C. § 46110.
- Whether the FAA's statement in the NPRM that privacy concerns were beyond the scope of the rulemaking was itself a final reviewable agency action.
Holdings
- EPIC's challenge to the FAA's dismissal was untimely because it was filed more than 60 days after the challenged order, and EPIC did not establish reasonable grounds for the delay.
- The FAA's notice of proposed rulemaking was not a final reviewable order under 49 U.S.C. § 46110.
- The FAA's statement in the NPRM that privacy concerns were beyond the scope of the rulemaking was not a separate final reviewable order.
Key quotations
“Because an NPRM neither marks the “consummation of the agency’s decisionmaking process” nor determines “rights or obligations” or imposes “legal consequences,” it is unreviewable.” (821 F.3d at 43)
“To allow review of an agency’s intent vel non—as expressed only in an NPRM—to address a particular matter in a final rule would upset our settled law that “[w]e do not have authority to review proposed agency rules.”” (821 F.3d at 43-44)
Factual background
The FAA Modernization and Reform Act of 2012 directed the FAA to develop a plan and regulations for integrating civil unmanned aircraft systems into the national airspace system, but did not expressly address privacy. EPIC petitioned the FAA to promulgate privacy-specific drone regulations. The FAA's November 26, 2014 letter both stated that the issue was not an immediate safety concern and stated that the FAA would consider EPIC's comments in an ongoing rulemaking. The FAA later issued an NPRM stating that privacy concerns were beyond the scope of that rulemaking.
Procedural history
EPIC petitioned the FAA for rulemaking on February 24, 2012. The FAA denied and dismissed the petition on November 26, 2014. EPIC filed its petition for review on March 31, 2015, 125 days after the FAA's dismissal. EPIC also sought to treat the FAA's February 23, 2015 notice of proposed rulemaking as the operative agency action. The D.C. Circuit dismissed the petition because the challenge to the dismissal was untimely and the challenge to the NPRM was premature.