“2-for-1” Executive Order May Delay Drone Regulatory Frameworks

By: Jacek M. Wnuk 

On January 30, President Donald Trump signed Executive Order 13771, colloquially referred to as the “2-for-1” executive order, requiring “For fiscal year 2017, … whenever an executive department or agency … promulgates a new regulation, it shall identify at least two existing regulations to be repealed” and also requiring that “costs associated with the new regulations shall … be offset by the elimination of existing costs associated with” the regulations to be repealed.

While the executive order appears to be aimed mostly at sectors that are already highly regulated, it does not carve out any exceptions for newer sectors without established regulatory frameworks. In August 2016, the Federal Aviation Administration (FAA) put rules in place generally requiring small commercial Unmanned Aircraft Systems (UAS) to remain under 400 feet in the air, in uncrowded areas, and within sight of a pilot. Additional regulations concerning UAS, such as regulations permitting direct overflight of people, flight beyond sight of an operator, or autonomous operations – were originally to be proposed in December 2016, but have not yet materialized. The future of such rules is uncertain as a result of the executive order, meaning that many commercial applications of UAS, such as package delivery, may not be fully realized for some time. Other sectors without fully-formed regulatory frameworks, such as the self-driving car and the 3D printing sectors, could also face issues with establishing their respective regulatory frameworks.

Because the Executive Order’s duration is currently limited to fiscal year 2017, creation of such regulatory frameworks may simply be delayed rather than grounded fully to a halt. Nonetheless, the delay has prevented further rulemaking, thereby limiting UAS commercial UAS operations in the near term to low-altitude, within visual-line-of-sight. 

The fate of President Trump’s Executive Order also remains to be seen, as a suit challenging its constitutionality was filed in the U.S. District Court for the District of Columbia on February 8.