Monday, October 17, 2016

Federal Rulemaking, In Case of Emergency

Over the last few weeks, you have probably heard about Samsung's Galaxy Note 7, which was recalled by its manufacturer after numerous reports of spontaneous battery fires. Last week, the company announced that it had ceased production of the Android phone, now under one of the largest recalls ever issued for consumer electronics. Late last week, the Federal Aviation Administration announced a ban of the devices on all U.S. flights, via an emergency order to be published in the Federal Register later this week.

The ban, officially known as Emergency Restriction/Prohibition Order No. FAA-2016-9288, took effect at noon on Saturday. It now prohibits passengers and crew from carrying the banned Galaxy devices "on their person, in carry-on baggage, in checked baggage, or as cargo." Passengers caught carrying the device will be denied boarding of the aircraft. If a person accidentally does bring the Galaxy Note 7 on board, the device must be immediately powered off, with activation prevented for the remainder of the flight. Violators are subject to "civil penalties of up to $179,933 for each violation" and may be criminally prosecuted, as well. The order will remain in effect until the Secretary of Transportation "determines that an imminent hazard no longer exists or a change in applicable statute or federal regulation occurs that supersedes the requirements of this Order, in which case the Secretary will issue a Rescission Order."

This news serves as a reminder that not every federal agency rule is subject to the notice and comment (informal) rulemaking process outlined by the Administrative Procedure Act. Under the APA, proposed agency rules are published in the Federal Register with an opportunity for the public to submit comments on the proposal, and rules are eventually republished in final form along with a summary of the comments and any agency response. 5 U.S.C. § 553(B) provides that agencies may skip the more protracted public comment process "when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." The FAA's emergency order notes that federal statutes give the Secretary of Transportation jurisdiction to regulate transport of lithium ion batteries, and also allows for emergency restrictions when needed "to abate the imminent hazard."

On the Federal Register website, emergency notices like the FAA's Galaxy Note 7 ban appear on the online Public Inspection Desk as a "Special Filing." As a reminder, the Public Inspection Desk allows readers to preview recently-released administrative rules and other documents before they appear in the printed edition of the daily Federal Register. also allows users to search or browse issues of the Federal Register back to 1994.

Regulations.Gov is another important federal rulemaking bookmark, which provides access to proposed rules during their comment period, and allows users to submit or review comments to the agency. For more information about the federal rulemaking process, and options for researching pending or enacted federal regulations, check out the Goodson Law Library research guide to Federal Administrative Law or Ask a Librarian.