[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Rules and Regulations]
[Pages 3669-3673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00765]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 48
[Docket No. FAA-2018-1084, Amdt. No. 48-2]
RIN 2120-AL32
External Marking Requirement for Small Unmanned Aircraft
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Interim final rule.
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SUMMARY: This interim final rule requires small unmanned aircraft
owners to display the unique identifier assigned by the FAA upon
completion of the registration process (registration number) on an
external surface of the aircraft. Small unmanned aircraft owners are no
longer permitted to enclose the FAA-issued registration number in a
compartment.
DATES: This rule is effective February 25, 2019.
Comments must be received on or before March 15, 2019.
ADDRESSES: Send comments identified by docket number FAA-2018-1084
using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to http://www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
http://www.dot.gov/privacy.
Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Natalie Wilkowske, Aircraft
Registration Branch, Civil Aviation Registry, Flight Standards Service,
Registry Bldg., Room 118, 6425 S Denning Ave., Oklahoma City, OK 73169-
6937; telephone 1-844-FLY-MYUA; email [email protected].
[[Page 3670]]
SUPPLEMENTARY INFORMATION:
I. Executive Summary
In the interim final rule titled ``Registration and Marking
Requirements for Small Unmanned Aircraft'' (Registration IFR), the FAA
provided a web-based aircraft registration process for the registration
of small unmanned aircraft to facilitate compliance with the statutory
requirement that all aircraft register prior to operation. See 80 FR
78593 (December 16, 2015). The Registration IFR also required that the
FAA-issued number assigned during the registration process be affixed
or marked on the small unmanned aircraft. To grant flexibility to the
diverse types of small unmanned aircraft commercially available, the
FAA required that the registration number marking be readily accessible
and maintained in a condition that is readable and legible upon close
visual inspection. The IFR further explained that markings in an
enclosed compartment, such as a battery compartment, will be considered
readily accessible if they can be accessed without the use of tools.
See id at 78627-28.
This interim final rule revises the small unmanned aircraft marking
requirement by requiring the registration number to be marked on the
exterior of the aircraft. The FAA is taking this action to address
concerns expressed by the law enforcement community and the FAA's
interagency security partners regarding the risk a concealed explosive
device poses to first responders who must open a compartment to find
the small unmanned aircraft's registration number.
II. Good Cause for Immediate Adoption
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5
U.S.C.) authorizes agencies to dispense with notice and comment
procedures for rules when the agency, for ``good cause,'' finds that
those procedures are ``impracticable, unnecessary, or contrary to the
public interest.'' Under this section, an agency, upon finding good
cause, may issue a final rule without seeking comment prior to the
rulemaking.
Members of the law enforcement and security communities have
expressed concern that the current rule, which allows registration
numbers to be marked in an enclosed compartment, presents an imminent
risk of harm to first responders. When responding to a security
incident involving an unmanned aircraft, first responders seek to
identify the owner or operator.\1\ One way to do that is to obtain the
registration number of the unmanned aircraft. Requiring first
responders to physically handle a small unmanned aircraft to obtain the
registration number poses an unnecessary safety and security risk to
those individuals, as well as to others in the immediate proximity to
the aircraft, because of the potential for the unmanned aircraft to
conceal an explosive device in an enclosed compartment (such as the
battery compartment), designed to detonate upon opening. Requiring
small unmanned aircraft owners to place the registration number on an
external surface of the aircraft helps to mitigate this risk because a
first responder can view the number without handling the aircraft, or
by using other technologies that allow for remote viewing of the
aircraft's external surface.
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\1\ During an interagency meeting on December 2, 2016, regarding
unmanned aircraft systems policy, several elements of the law
enforcement community and the FAA's interagency security partners
raised concerns regarding the part 48 provision that allows the
small unmanned aircraft registration number to be placed in an
enclosed compartment, such as a battery compartment. Additionally,
the National Protection and Programs Directorate of the Federal
Protective Service sent a letter to the FAA Administrator on May 5,
2017, to highlight its specific concerns about this provision and to
request that the FAA amend it.
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The FAA had intended to make this change shortly after various
members of the law enforcement and security communities communicated
their concerns in late 2016 and early 2017. The FAA was not able to act
immediately, however, due to litigation challenging the applicability
of the Registration IFR to model aircraft as defined in section 336 of
Public Law 112-95.\2\ The FAA was reluctant to act during the pendency
of the litigation because model aircraft comprise the largest segment
of registered unmanned aircraft that would be subject to the revised
marking requirement.\3\ The National Defense Authorization Act for
Fiscal Year 2018 (NDAA) \4\ resolved the uncertainty when it was signed
into law on December 12, 2017 by restoring the applicability of the
Registration IFR to model aircraft. Having resolved the applicability
issue, the FAA finds that notice and comment would be contrary to the
public interest. After highlighting this vulnerability in a proposed
rule, first responders could be exposed to additional risk during the
notice and comment period as a result of the attention drawn to the
vulnerability. Given that the vulnerability would remain unmitigated
while the proposed rule is being finalized, the agency has determined
there is good cause to issue the rule without seeking prior notice and
comment.
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\2\ Taylor v. Huerta, Case No. 15-1495, (D.C. Cir. May 19,
2017).
\3\ As of May 31, 2018, 936,957 model aircraft owners completed
the registration process and 218,033 non-model aircraft were
registered. Model aircraft owners may apply a single registration
number to multiple small unmanned aircraft. See 14 CFR 48.115 and
48.200.
\4\ Public Law 115-91.
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Additionally, the APA requires agencies to delay the effective date
of regulations for 30 days after publication, unless the agency finds
good cause to make the regulations effective sooner. See 5 U.S.C.
553(d). Good cause exists for making this regulation effective 10 days
from the date of publication based on the same rationale in the
previous discussion regarding forgoing notice and comment in accordance
with 5 U.S.C. 553(b)(3)(B).
III. Comments Invited
Consistent with the Regulatory Policies and Procedures of the
Department of Transportation (DOT) (44 FR 11034; February 26, 1979),
which provide that to the maximum extent possible, operating
administrations for the DOT should provide an opportunity for public
comment on regulations issued without prior notice, the Department
requests comment on this interim final rule. The Department encourages
persons to participate in this rulemaking by submitting comments
containing relevant information, data, or views. The Department will
consider comments received on or before the closing date for comments.
The Department will consider late filed comments to the extent
practicable. This interim final rule may be amended based on comments
received.
IV. Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code. Subtitle I, Section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in 49
U.S.C. 106(f), which establishes the authority of the Administrator to
promulgate regulations and rules; and 49 U.S.C. 44701(a)(5), which
requires the Administrator to promote safe flight of civil aircraft in
air commerce by prescribing regulations and setting minimum standards
for other practices, methods, and procedures necessary for safety in
air commerce and national security.
This rule is also promulgated pursuant to 49 U.S.C. 44101-44106 and
44110-44113, which require aircraft to
[[Page 3671]]
be registered as a condition of operation and establish the
requirements for registration and registration processes.
V. Discussion of the Interim Final Rule
The Registration IFR established a web-based aircraft registration
process for the registration of small unmanned aircraft to facilitate
compliance with the statutory requirement that all aircraft register
prior to operation. See 80 FR 78593 (December 16, 2015). The
Registration IFR required that the FAA-issued registration number be
affixed or marked on the small unmanned aircraft. To grant flexibility
to the diverse types of small unmanned aircraft commercially available,
the FAA required that the registration number marking be readily
accessible and maintained in a condition that is readable and legible
upon close visual inspection. 14 CFR 48.205(c). The IFR further
explained that markings in an enclosed compartment, such as a battery
compartment, will be considered readily accessible if they can be
accessed without the use of tools. See 80 FR at 78628. The FAA included
this provision in the Registration IFR to accommodate the television
and motion picture industry, which did not want markings to show in
theatrical and television productions, and hobbyists who wanted to
preserve the authenticity of model aircraft that replicate other
aircraft. The FAA also included this provision to allow future
consideration of the use of a serial number as a unique identifier for
purposes of registration. See 80 FR at 78628.
As discussed previously, after the Registration IFR became
effective, the law enforcement community and FAA's interagency security
partners highlighted the risk to first responders when registration
numbers are permitted to be concealed. To address this safety and
security risk, the FAA is amending 14 CFR 48.205(c) to require the
registration number be displayed and visible on an external surface of
the small unmanned aircraft. The FAA has determined that the importance
of mitigating the risk to first responders outweighs the previously
discussed aesthetic interests and justifies the minimal burden and
inconvenience this change could impose on small unmanned aircraft
owners.
This interim final rule does not change the acceptable methods of
external marking provided in Sec. 48.205(a) and (b). Additionally, the
FAA does not specify a particular external surface upon which the
registration number must be placed. The requirement is that it can be
seen upon visual inspection of the aircraft's exterior. This interim
final rule is effective February 25, 2019. Owners must ensure each
aircraft meets this requirement for any operation that occurs after
February 25, 2019.
VI. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
that each Federal agency shall 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 (Pub.
L. 96-354), as codified in 5 U.S.C. 601 et seq., requires agencies to
analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (Pub. L. 96-39, as amended, 19 U.S.C.
chapter 13) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States. In
developing U.S. standards, the Trade Agreements 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 (Pub. L. 104-4) 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 annually (adjusted
for inflation with base year of 1995). This portion of the preamble
summarizes the FAA's analysis of the economic impacts of this interim
final rule.
A. Regulatory Evaluation
This rule revises the requirements regarding the placement of the
registration number assigned to a small unmanned aircraft. Under the
Registration IFR, the FAA allowed the registration number to be placed
in an enclosed compartment (e.g., the battery compartment) on the small
unmanned aircraft, but the FAA now requires the number to be placed on
the exterior of the aircraft. While this rule changes one possible
location where the registration number may be displayed, the cost to
operators/owners is minimal as they will continue to use the same
methods to mark the aircraft. The FAA acknowledges that there may be
some minimal costs associated with reduced aesthetic freedom for UAS
designed to look a particular way.
As previously discussed, if the registration number is not readily
visible on the exterior of the small unmanned aircraft, first
responders or other persons seeking to identify the small unmanned
aircraft owner must open such enclosed compartments to view the unique
identifier. Requiring first responders to physically handle a small
unmanned aircraft to obtain a registration number adds an unnecessary
safety and security risk to those individuals, as well as to others in
the immediate proximity to the aircraft. This rule helps to mitigate
those risks.
The Office of Information and Regulatory Affairs has determined
that this interim final rule is a significant regulatory action
pursuant to Executive Order 12866. It requires that owners of small
unmanned aircraft mark the registration number on an external surface
of the aircraft, which poses a minimal burden and inconvenience if an
owner must re-mark the aircraft to comply with this rule.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act, in 5 U.S.C. 603, requires an agency
to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever an agency is required by 5 U.S.C.
553, or any other law, to publish a general notice of proposed
rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an
agency to prepare a final regulatory flexibility analysis when an
agency issues a final rule under 5 U.S.C. 553, after being required by
that section or any other law to publish a general notice of proposed
rulemaking. The FAA found good cause to forgo notice and comment and
any delay in the effective date for this rule. As notice and comment
under 5 U.S.C. 553 are not required in this situation, the regulatory
flexibility analyses described in 5 U.S.C. 603 and 604 are not
required.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
[[Page 3672]]
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this interim final rule and determined
that it has a legitimate domestic objective--the protection of safety--
and does not operate in a manner that excludes imports that meet this
objective.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $155 million in lieu of $100
million.
This interim final rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.
E. 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. The FAA has determined that
there is no new requirement for information collection associated with
this interim final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. As stated in
the Registration IFR, the registration and marking requirements for
small unmanned aircraft apply only to operations within the United
States and there are no ICAO standards for marking small unmanned
aircraft.\5\
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\5\ Standard Practice for UAS Registration and Marking
(Excluding Small Unmanned Aircraft Systems), ASTM F2851-10 (2018),
available at https://www.astm.org/Standards/F2851.htm.
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G. Environmental Analysis
FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6f of this order and involves no
extraordinary circumstances.
The FAA has reviewed the implementation of the rule and determined
it is categorically excluded from further environmental review
according to FAA Order 1050.1F, ``Environmental Impacts: Policies and
Procedures,'' paragraph 5-6.6f. The FAA has examined possible
extraordinary circumstances and determined that no such circumstances
exist. After careful and thorough consideration of the action, the FAA
finds that this Federal action does not require preparation of an
Environmental Assessment or Environmental Impact Statement in
accordance with the requirements of NEPA, Council on Environmental
Quality (CEQ) regulations, and FAA Order 1050.1F.
VII. Executive Order Determinations
A. Executive Order 13132, ``Federalism''
The FAA has analyzed this interim final rule under the principles
and criteria of Executive Order 13132, ``Federalism.'' The agency has
determined that this action will not have a substantial direct effect
on the States, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government, and, therefore, does not have
Federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this interim final rule under Executive Order
13211, ``Actions Concerning Regulations that Significantly Affect
Energy Supply, Distribution, or Use'' (May 18, 2001). The agency has
determined that it is not a ``significant energy action'' under the
executive order, and it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
C. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation (77 FR 26413, May 4, 2012) promotes international
regulatory cooperation to meet shared challenges involving health,
safety, labor, security, environmental, and other issues and to reduce,
eliminate, or prevent unnecessary differences in regulatory
requirements. The FAA has analyzed this action under the policies and
agency responsibilities of Executive Order 13609, and has determined
that this action would have no effect on international regulatory
cooperation.
D. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
This rule is not subject to the requirements of Executive Order
13771 (82 FR 9339, Feb. 3, 2017) because the costs associated with the
rule are considered de minimis.
VIII. How To Obtain Additional Information
A. Rulemaking Documents
An electronic copy of a rulemaking document may be obtained by
using the internet--
Search the Federal Document Management System (FDMS)
Portal (http://www.regulations.gov);
Visit the FAA's Regulations and Policies web page at
http://www.faa.gov/regulations_policies/ or
Access the Government Publishing Office's web page at:
http://www.gpo.gov/fdsys/.
Copies may also be obtained by sending a request (identified by
amendment or docket number of this rulemaking) to the Federal Aviation
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue
SW, Washington, DC 20591, or by calling (202) 267-9677.
All documents the FAA considered in developing this rule, including
economic analyses and technical reports, may be accessed from the
internet through the Federal eRulemaking Portal referenced above.
B. Comments Submitted to the Docket
Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the
docket number for this action. Anyone is able to search the electronic
form of all comments received into any of the FAA's dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
C. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601), as
amended, requires FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. A small entity with questions regarding this
document may contact its local FAA official, or the person listed under
[[Page 3673]]
the FOR FURTHER INFORMATION CONTACT section at the beginning of the
preamble. You can find out more about SBREFA on the internet at: http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects in 14 CFR Part 48
Aircraft, Reporting and recordkeeping requirements, Signs and
symbols, Small unmanned aircraft, Unmanned aircraft.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations, as follows:
PART 48--REGISTRATION AND MARKING REQUIREMENTS FOR SMALL UNMANNED
AIRCRAFT
0
1. The authority citation for part 48 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40113-40114,
41703, 44101-44103, 44105-44106, 44110-44113, 45302, 45305, 46104,
46301, 46306.
0
2. In Sec. 48.205, revise paragraph (c) to read as follows:
Sec. 48.205 Display and location of unique identifier.
* * * * *
(c) The unique identifier must be legibly displayed on an external
surface of the small unmanned aircraft.
Issued under the authority provided by 49 U.S.C. 106(f), 41703,
44101-44103, in Washington, DC, on December 21, 2018.
Daniel K. Elwell,
Acting Administrator.
[FR Doc. 2019-00765 Filed 2-12-19; 8:45 am]
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