Last Trump EO’s Published – Includes UAS Order

Amid the news reports about the series of Executive Orders published this week by President Biden, reporters have missed that four new EO’s signed by President Trump on Monday were published in today’s Federal Register. Those EO’s include:

• Agency Rulemaking; Efforts To Ensure Democratic Accountability (EO 13979),

• Federal Buildings and Facilities: Building the National Garden of American Heroes (EO 13978),

• Regulatory Reform; Efforts To Protect Americans From Overcriminalization (EO 13980), and

• Unmanned Aircraft Systems; Efforts To Protect U.S. (EO 13981)

Each of these EO’s are legitimate executive orders that have almost the force of law on the incoming Biden Administration. I say ‘almost the force of law’ because President Biden can eliminate the requirements imposed by these EO’s with a stroke of his own pen as he did on Wednesday with his signature on EO 13992, Federal Regulation; Revocation of Certain Executive Orders (which will be published in Monday’s Federal Register).

None of the EO’s published today were on the list of revoked EO’s in paragraph 2 of EO 13992. That may be due (I’m guessing here) to the fact that the incoming Administration was not cognizant of these EO’s when they prepared EO 13992, but as likely (again I’m guessing), these four did not raise the same level of concern as the 7 EO’s revoked by Biden’s order.

UAS EO

According to the preamble to the EO, it was issued due to Trump’s concerns “that additional actions are necessary to ensure the security of Unmanned Aircraft Systems (UAS) owned, operated, and controlled by the Federal Government; to secure the integrity of American infrastructure, including America's National Airspace System (NAS); to protect our law enforcement and warfighters; and to maintain and expand our domestic industrial base capabilities.”

Most of the EO deals with limiting the Federal government’s use of UAS that are “manufactured by foreign adversaries or have significant components that are manufactured by foreign adversaries” {§3(a)}.

There is one section, however, that has nothing to do with the use of UAS by the Federal Government. Section 4 calls for restricting the use of UAS on or over critical infrastructure or other sensitive sites. It requires the FAA, within 270 days, to propose regulations pursuant to section 2209 of the FAA Extension, Safety, and Security Act of 2016 (Public Law 114-190, 130 STAT 634).

Those regulations were supposed to establish “a process to allow applicants to petition the Administrator of the Federal Aviation Administration to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility” {§2209(a)}. The required regulations were supposed to have already been proposed within 180 days of the bill’s enactment on July 15^th, 2016. In other words, the regulations were supposed to have all ready been written by Trump’s FAA.

It will be interesting to see how the Biden Administration deals with this portion of EO 13981.