[Federal Register Volume 67, Number 208 (Monday, October 28, 2002)]
[Rules and Regulations]
[Pages 65858-65861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27411]



[[Page 65857]]

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Part IV





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 61



Picture Identification Requirements; Final Rule

  Federal Register / Vol. 67, No. 208 / Monday, October 28, 2002 / 
Rules and Regulations  

[[Page 65858]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 61

[Docket No. FAA-2002-11666; Amendment No. 61-107]
RIN 2120-AH76


Picture Identification Requirements

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This rule revises the pilot certificate requirements to 
require a person to carry a photo identification acceptable to the 
Administrator when exercising the privileges of a pilot certificate. 
Additionally, this final rule requires a pilot certificate holder to 
present a photo identification when requested by the Administrator, an 
authorized representative of the National Transportation Safety Board 
(NTSB) or Transportation Security Administration (TSA), or a law 
enforcement officer. These measures address security concerns regarding 
the identification of pilots.

DATES: This final rule is effective October 28, 2002. You may send your 
comments to reach us on or before November 27, 2002.

ADDRESSES: Mail or hand deliver your comments to Docket Management 
System, Attention: Docket No. FAA-2002-11666, U.S. Department of 
Transportation, 400 Seventh Street, SW (Nassif Building), Room 401, 
Plaza Level, Washington, DC 20590-0001. Send electronic comments to: 
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: John D. Lynch, Certification Branch, 
AFS-840, General Aviation and Commercial Division, Flight Standards 
Service, Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591; Telephone No. (202) 267-3844.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to the economic, environmental, energy, 
federalism, or security impacts that might result from this rule. The 
most helpful comments reference a specific portion of the rule, explain 
the reason for any recommended change, and include supporting data. We 
ask that you send us two copies of written comments.
    All comments received will be filed in the docket. The FAA will 
develop a report that summarizes each substantive public contact with 
the FAA personnel concerning this rulemaking. The docket is available 
for public inspection before and after the comment closing date. If you 
wish to review the docket in person, go to the address in the ADDRESSES 
section of this preamble between 9:00 a.m. and 5:00 p.m., Monday 
through Friday, except Federal holidays. You may also review the docket 
using the Internet at the web address in the ADDRESSES section.
    We will consider all comments we receive on or before the closing 
date for comments. We may change this rule based on the comments we 
receive.
    If you want the FAA to acknowledge receipt of your comments, 
include with your comments a pre-addressed, stamped postcard that 
identifies the docket number. We will stamp the date on the postcard 
and mail it to you.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last five digits of the Docket 
number of this notice (10910). Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the document number for the item 
you wish to view.
    You can also get an electronic copy using the Internet through the 
Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm 
or the Federal Register's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this 
rulemaking.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires the FAA to report inquiries from small entities 
concerning information on, and advice about, compliance with statutes 
and regulations within the FAA's jurisdiction, including interpretation 
and application of the law to specific sets of facts supplied by a 
small entity.
    If your organization is a small entity and you have a question, 
contact your local FAA official. If you don't know how to contact your 
local FAA official, you may contact the Program Analyst Staff, Office 
of Rulemaking, ARM-27, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591, telephone (888) 551-
1594. Internet users can find additional information on SBREFA on the 
FAA's web page at www.faa.gov and may send electronic inquiries to the 
following internet address: [email protected].

Background

    The Aviation and Transportation Security Act (ATSA), Public Law 
107-71, enacted on November 19, 2001, requires the Under Secretary of 
Transportation for Security (``Under Secretary'') to consider a 
requirement for a photo identification pilot certificate. In relevant 
part, Sec.  109(a) of ASTA provides that the Under Secretary in 
consultation with the Administrator of the Federal Aviation 
Administration, may ``consider whether to require all pilot licenses to 
incorporate a photograph of the license holder and appropriate bio-
metric imprints.'' The Under Secretary is required to report annually 
to Congress on the progress in evaluating and taking such actions.
    In addition, Sec.  129 of ATSA amends 49 U.S.C. 44703(g), by adding 
the phrase ``combating acts of terrorism'' as an additional purpose for 
revising the FAA airman certification system. The FAA now must consider 
terrorism as a factor in addition to the needs of pilots and officials 
responsible for enforcing drug-related laws when making modifications 
to the airman certification system.
    Congress first mandated modification of the airman certification 
system in the Federal Aviation Administration Drug Enforcement 
Assistance Act of 1988 (DEA Act) (Subtitle E of the Anti-Drug Abuse Act 
of 1988 (Pub. L. 100-690)) with the objective of assuring positive and 
verifiable identification of each person applying for or holding a 
pilot certificate. The DEA Act was intended to assist Federal, State, 
and local agencies involved in the enforcement of the nation's drug 
laws. In response to the DEA Act, the FAA issued a Notice of Proposed 
Rulemaking on March 12, 1990 (55 FR 9270). The proposed rule would have 
required a two part pilot certificate; part A was an Airman Identity 
Card and part B would include all ratings and limitations. This new 
certificate would be issued to private,

[[Page 65859]]

commercial, and airline transport pilots. As proposed, the Airman 
Identity Card portion of the pilot certificate would be non-forgeable 
and contain a photograph of the pilot, his or her signature, address, 
and identification number. In addition, the certificates would be 
machine-readable by equipment in use by the United States Customs 
Service, and have a variety of other security features. The FAA's 
proposed rule to modify the airman certification system has not been 
issued as a final rule by the FAA.

Petition From the Aircraft Owners and Pilots Association

    By letter, dated February 21, 2002, Mr. Philip Boyer, President, 
Aircraft Owners and Pilots Association (AOPA), 421 Aviation Way, 
Frederick, MD 21701, petitioned the FAA to revise 14 CFR 61.3(a) and 
(l) to require a pilot to carry, and present for appropriate 
inspection, a form of photo identification acceptable to the 
Administrator of the Federal Aviation Administration. Specifically, the 
AOPA requested that 14 CFR 61.3(a) be amended to provide that a person 
may not act as a pilot of a civil aircraft of U.S. registry unless that 
person has a form of photo identification acceptable to the 
Administrator in that person's physical possession or readily 
accessible in the aircraft while exercising the privileges of a pilot 
certificate or special purpose pilot authorization. The AOPA also 
suggested 14 CFR 61.3(l) be amended to provide that each person 
required to have a form of photo identification by 14 CFR 61.3(a) be 
required to present it for inspection upon request from the 
Administrator or any Federal, State, or local law enforcement officer.
    In its petition, the AOPA expressed the view that the intent of the 
DEA Act and ATSA provisions on pilot identification would be met by its 
recommended rule changes, and that its approach would be far less 
costly and quicker to implement than would any significant modification 
to the airman certification system. The AOPA notes that all fifty 
States and the District of Columbia issue a photo identification 
driver's license, and that currently candidates for a pilot certificate 
examination are required to present photo identification. Thus, the 
requirement to present a photo identification acceptable to the 
Administrator could be met with a driver's license, at no cost to 
pilots or the government. Precisely because of the very minimal burden 
of the recommended changes, the AOPA believes that its recommendation 
should be implemented through a direct final rule, and suggests that 
the FAA find notice and comment to be impractical, unnecessary, or 
contrary to the public interest.

The FAA's Acceptance of the Petition

    By letter dated March 27, 2002, the FAA responded to the AOPA 
petition by stating that the proposal ``provides a positive short-term 
measure to enhance security throughout the general aviation 
community.'' While the AOPA's recommendations are a good interim 
measure, neither the FAA nor the Transportation Security Administration 
has concluded that these measures address fully the concerns reflected 
in the DEA Act or ATSA. Although requiring a pilot to carry an 
acceptable photo identification will provide more security than not 
requiring an identification, the overlap of key information between the 
pilot certificate and the required photo identification will be limited 
and potentially inconsistent. For example, it is quite likely the 
addresses on the two documents will not match, because the address on a 
pilot certificate is not updated when a pilot moves. Moreover, an 
improved pilot certificate could include a variety of security 
enhancements in addition to simply having a photograph of the holder on 
the certificate.
    This rule adopts the core of the AOPA's recommendations for pilot 
identification requirements. The FAA will continue to work in 
conjunction with the TSA to determine what further actions need to be 
taken to improve airman certification process. The FAA considers the 
AOPA's recommendations to be an expeditious and cost effective measure 
that will provide additional security through enhanced identification 
of pilots exercising the privileges of their certificate. Requiring 
pilots to carry photographic identification with a pilot certificate 
will be cost effective because most pilots already carry an 
identification acceptable to the Administrator, such as a driver's 
license, and the cost of obtaining a government issued photo 
identification is minimal. The TSA recognizes the ongoing security 
concerns regarding the use of an aircraft to conduct terrorist acts 
within the United States. Therefore, TSA has requested that the FAA 
issue a final rule, without prior notice and public comment, effective 
upon publication, adopting the AOPA petition to require that pilots 
properly identify themselves. The TSA believes this action is necessary 
to prevent further terrorist acts which may result in grave hazards to 
aircraft, persons, and property within the United States.

The Rule Change

    The chart below is a brief summary of the regulatory changes 
contained in this final rule. The list is followed by a more detailed 
discussion of the rule.

----------------------------------------------------------------------------------------------------------------
              Final rule No.                      Part 61 Sec. No./Para. No.             Summary of the rule
----------------------------------------------------------------------------------------------------------------
1........................................  Sec.   61.3(a)..........................  Each person must carry a
                                                                                      photo identification
                                                                                      acceptable to the
                                                                                      Administrator when
                                                                                      exercising the privileges
                                                                                      of a pilot certificate.
2........................................  Sec.   61.3(l)..........................  Each person must present
                                                                                      such photo identification
                                                                                      when requested to do so by
                                                                                      the Administrator, an
                                                                                      authorized representative
                                                                                      of the NTSB or the TSA, or
                                                                                      a law enforcement officer.
----------------------------------------------------------------------------------------------------------------

    (1) 14 CFR 61.3(a) is amended to require each person to carry a 
photo identification when exercising the privileges of a pilot 
certificate.
    The FAA revises 14 CFR 61.3(a) to require each person to carry a 
photo identification when exercising the privileges of a pilot 
certificate. The photo identification in most instances likely will be 
a driver's license issued by a State, the District of Columbia, or a 
territory or possession of the United States. It may also be a 
government identification card issued by the Federal government or a 
State, the District of Columbia, or a territory or possession of the 
United States, a military identification card, or a passport. Under 
this rule, a credential with a photo issued by an air carrier or 
airport operator that provides unescorted access to a security 
identification display area at an airport regulated under 49 CFR part 
1542 is acceptable. The rule also permits other forms of photo 
identification that the Administrator finds acceptable.
    (2) 14 CFR 61.3(l) is revised to require a person to present a 
photo identification when requested to do so

[[Page 65860]]

by the Administrator, an authorized representative from the NTSB or the 
TSA, or a law enforcement officer.
    The FAA revises 14 CFR 61.3(l) so as to require a person to present 
a photo identification when requested to do so by the Administrator, an 
authorized representative of the NTSB or the TSA, or a law enforcement 
officer. A request from the Administrator for a person to present a 
photo identification includes a request from any FAA Aviation Safety 
Inspector or designated examiner. A request from an authorized 
representative of the NTSB for a person to present a photo 
identification includes a request from an Accident Investigator of the 
NTSB. A request from a law enforcement officer for a person to present 
a photo identification includes a request from any city, municipality, 
county, parish, borough, State, or Federal law enforcement officer.

Justification for Immediate Adoption

    This action is being taken without providing the opportunity for 
prior notice and public comment. The TSA requests immediate adoption of 
this rule to require pilots to carry and present identification and the 
FAA finds this action is necessary to assist in preventing hazards to 
aircraft, persons, and property within the United States. The TSA, in 
consultation with the security agencies of the Executive Branch, 
monitors threats to aviation security on a constant basis. The TSA has 
issued other regulatory documents that became effective immediately in 
order to minimize security threats and potential security 
vulnerabilities to the fullest extent possible, and the FAA issues this 
rule without prior notice and public comment for the same reason. The 
FAA, TSA, and other federal security agencies have been concerned about 
the potential misuse of an aircraft to carry out terrorist acts in the 
United States since September 11, and the TSA and FAA now believe it is 
necessary to require pilots to carry and present picture identification 
to help minimize the threat of such acts.
    The FAA finds that prior notice and public comment are 
impracticable and contrary to the public interest, pursuant to section 
553 of the Administrative Procedure Act (APA). Section 553(b)(B) of the 
APA permits an agency to forego notice and comment rulemaking when 
``the agency for good cause finds * * * that notice and public 
procedures thereon are impracticable, unnecessary or contrary to the 
public interest.'' The use of notice and comment prior to issuance of 
this rule would delay the potential security benefit of this rulemaking 
and increase the public's exposure to the risk of another terrorist act 
unnecessarily. FAA asks for comment with publication of this rule, and 
will consider all comments received during the comment period. If 
changes to the rule are necessary to address aviation security more 
effectively, or in a less burdensome but equally effective manner, FAA 
will make such changes. The FAA finds that that the circumstances 
described herein warrant immediate action, and finds that notice and 
public comment under 5 U.S.C. 553(b) are impracticable and contrary to 
the public interest.

Economic Evaluation

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866, Regulatory Planning and Review, 
directs that each Federal agency propose or adopt a regulation only 
upon a reasoned determination that the benefits of the intended 
regulation justify its costs. Second, the Regulatory Flexibility Act of 
1980 requires agencies to analyze the economic impact of regulatory 
changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 
2531-2533) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, this Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more, in any one year (adjusted for inflation).
    The Department of Transportation Order DOT 2100.5 prescribes 
policies and procedures for simplification, analysis, and review of 
regulations. This rule is considered significant under that Order. If 
we determine that the expected impact is so minimal that the regulation 
does not warrant a full evaluation, we include a statement to that 
effect and the basis for it in the preamble. The FAA has determined 
that the expected economic impact of this rule is so minimal that it 
does not warrant a full regulatory evaluation. This action imposes no 
costs on pilots subject to this rule because most persons already have 
some form of photo identification. It does, however, provide 
unquantifiable security benefits by helping establish the identity of 
pilots. The FAA also has determined that this rule is consistent with 
the objectives of Executive Order 12866.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the Act requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The Act covers a wide range of small 
entities, including small businesses, not-for-profit organizations and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    This final action imposes no costs on any small entities subject to 
this rule. Consequently, the FAA certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. The FAA solicits comments on this certification.

International Trade Impact Analysis

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, aren't considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. The FAA accordingly has assessed the potential effect of 
this rule to be minimal and therefore has determined that this rule 
will not result in an impact on international trade.

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Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act) 
requires each Federal agency, to the extent permitted by law, to 
prepare a written assessment of the effects of any Federal mandate in a 
proposed or final agency rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. The Act requires the Federal agency to 
develop an effective process to permit timely input by elected officers 
(or their designees) of State, local and tribal governments on a 
proposed ``significant intergovernmental mandate.'' Under the Act, a 
``significant intergovernmental mandate'' is any provision in a Federal 
agency regulation that would impose an enforceable duty upon State, 
local, and tribal governments, in the aggregate, of $100 million 
(adjusted annually for inflation) in any one year. Section 203 of the 
Act, 2 U.S.C. 1533, which supplements section 204(a), provides that 
before establishing any regulatory requirements that might 
significantly or uniquely affect small governments, the agency shall 
have developed a plan that, among other things, provides for notice to 
potentially affected small governments, if any, and for a meaningful 
and timely opportunity to provide input in the development of 
regulatory proposals.
    This rule does not contain such a mandate. The requirements of 
Title II of the Act, therefore, do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. We determined that this rule would 
not have a substantial direct effect on the States, or the relationship 
between the national Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
We determined that this rule, therefore, would not have federalism 
implications.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that there 
are no requirements for information collection associated with this 
rule.

Environmental Analysis

    FAA Order No. 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental assessment or environmental impact statement. In 
accordance with FAA Order No. 1050.1D, Appendix 4, paragraph 4(j), 
regulations, standards, and exemptions (excluding those that may cause 
a significant impact on the human environment if implemented) qualify 
for a categorical exclusion. The FAA has determined that this rule 
qualifies for a categorical exclusion because no significant impacts to 
the environment are expected to result from its implementation.

Energy Impact

    We assessed the energy impact of this rule in accordance with the 
Energy Policy and Conservation Act (EPCA) and Public Law 94-163, as 
amended (42 U.S.C. 6362). We have determined that this rule is not a 
major regulatory action under the provisions of the EPCA.

List of Subjects in 14 CFR Part 61

    Aircraft, Airmen, Aviation safety, and Reporting and recordkeeping 
requirements.

The Amendment

    For the reasons stated in the preamble, the Federal Aviation 
Administration amends part 61 of Title 14 of the Code of Federal 
Regulations as follows:

PART 61--CERTIFICATION: PILOTS AND FLIGHT INSTRUCTORS

    1. The authority citation for part 61 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.


    2. Amend Sec.  61.3 by revising paragraph (a) and the introductory 
text of paragraph (l) and by adding paragraph (l)(4) to read as 
follows:


Sec.  61.3  Requirement for certificates, ratings, and authorizations.

    (a) Pilot certificate. A person may not act as pilot in command or 
in any other capacity as a required pilot flight crewmember of a civil 
aircraft of U.S. registry, unless that person--
    (1) Has a valid pilot certificate or special purpose pilot 
authorization issued under this part in that person's physical 
possession or readily accessible in the aircraft when exercising the 
privileges of that pilot certificate or authorization. However, when 
the aircraft is operated within a foreign country, a current pilot 
license issued by the country in which the aircraft is operated may be 
used; and
    (2) Has a photo identification that is in that person's physical 
possession or readily accessible in the aircraft when exercising the 
privileges of that pilot certificate or authorization. The photo 
identification must be a:
    (i) Valid driver's license issued by a State, the District of 
Columbia, or territory or possession of the United States;
    (ii) Government identification card issued by the Federal 
government, a State, the District of Columbia, or a territory or 
possession of the United States;
    (iii) U.S. Armed Forces' identification card;
    (iv) Official passport;
    (v) Credential that authorizes unescorted access to a security 
identification display area at an airport regulated under 49 CFR part 
1542; or
    (vi) Other form of identification that the Administrator finds 
acceptable.
* * * * *
    (l) Inspection of certificate. Each person who holds an airman 
certificate, medical certificate, authorization, or license required by 
this part must present it and their photo identification as described 
in paragraph (a)(2) of this section for inspection upon a request from:
* * * * *
    (4) An authorized representative of the Transportation Security 
Administration.

    Issued in Washington, DC, on October 23, 2002.
Marion C. Blakey,
Administrator.
[FR Doc. 02-27411 Filed 10-23-02; 4:10 pm]
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