[Federal Register Volume 84, Number 138 (Thursday, July 18, 2019)]
[Rules and Regulations]
[Pages 34281-34288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15248]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No.: FAA-2019-0562; Amdt. No. 91-355]
RIN 2120-AL16
Revision to Automatic Dependent Surveillance-Broadcast (ADS-B)
Out Equipment and Use Requirements
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Interim final rule.
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SUMMARY: This interim final rule modifies the requirement that all
aircraft equipped with Automatic Dependent Surveillance-Broadcast Out
(ADS-B Out) must transmit at all times. This rulemaking provides an
exception to ADS-B requirements, removing the transmission requirement
for sensitive operations conducted by Federal, State and local
government entities in matters of national defense, homeland security,
intelligence and law enforcement. The changes provide relief to those
Federal, State and local government agencies that operate aircraft
equipped with ADS-B Out but need the ability to terminate the
transmission signal when conducting sensitive national defense,
homeland security, intelligence and law enforcement missions that could
be compromised by transmitting real time identification and positional
flight information over ADS-B. This rulemaking also allows the FAA to
except certain aircraft from operating a transponder or transmitting
ADS-B Out, when doing so would jeopardize Air Traffic Control (ATC)
functions.
DATES: This rule is effective on July 18, 2019.
Comments must be received on or before September 16, 2019.
ADDRESSES: Send comments identified by docket number FAA-2019-0562
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
[[Page 34282]]
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 www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
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 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: Scott Rosenbloom, Airspace Policy
Group, Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; telephone (202) 267-2943; email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Authority and Good Cause for This Rulemaking
A. Legal Authority
The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code (49 U.S.C.). 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
Subtitle VII, Part A, Subpart I, Section 40103, Sovereignty and use of
airspace, and Subpart III, Section 44701, General requirements. Under
section 40103, the FAA is charged with prescribing regulations on: (1)
The flight of aircraft, including regulations on safe altitudes; (2)
the navigation, protection, and identification of aircraft; and (3) the
safe and efficient use of the navigable airspace. Under section 44701,
the FAA is charged with promoting safe flight of civil aircraft in air
commerce by prescribing regulations for practices, methods, and
procedures the Administrator finds necessary for safety in air commerce
and national security.
This interim final rule is within the scope of sections 40103 and
44701 because it excepts certain operations from the ADS-B Out and
transponder-on requirements in order to preserve the security and
safety of these operations, and the safe execution of air traffic
control functions.
B. Good Cause for Dispensing With Notice and Comment and 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 notice and comment prior
to the rulemaking.
The FAA finds there is good cause to issue the rule without seeking
prior notice and comment because complying with the transmission
requirement while waiting for a proposed rule to be finalized will draw
greater attention to operational vulnerabilities that expose government
aircraft performing sensitive missions to immediate risk and compromise
the operations security of missions necessary for national defense,
homeland security, intelligence and law enforcement. In support of this
determination, the FAA notes that other organizations have discussed
these vulnerabilities and have urged FAA to address them promptly,
including in the 2018 GAO Report Urgent Need for DOD and FAA to Address
Risks and Improve Planning for Technology That Tracks Military Aircraft
(GAO-18-177), which can be found in the docket for this interim final
rule.
Additionally, the FAA finds good cause to revise the regulation to
permit pilots to turn off their transponders in certain circumstances
where the safe provision of air traffic control services would be
compromised. By regulation, a pilot is required in controlled airspace
to operate with his or her transponder on at all times. During the
development of this rule, the FAA determined there are circumstances
when air traffic control has directed the pilots of non-lead aircraft
engaged in formation flights to turn off their transponders.
Controllers took this action because the close proximity of the
aircraft in formation flight creates a risk to the safe execution of
ATC services through audio and visual collision alerts and overlapping
information displayed to the controller. As the safe provision of air
traffic services necessitates continuation of ATC's policy, seeking
prior public notice and comment on this provision is unnecessary.
In addition, in accordance with 5 U.S.C. 553(d)(1), the FAA is
making this interim final rule effective upon publication because it is
a substantive rule that relieves a restriction and there is an
immediate need for operators conducting sensitive government missions
to exercise relief from the transmission requirement.
II. 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. The
Department will consider late filed comments to the extent practicable.
This interim final rule may be amended based on comments received.
III. Background
On October 7, 2007, the FAA published a notice of proposed
rulemaking (NPRM) to mandate ADS-B Out.\1\ The FAA deemed it critical
to move from ground-based surveillance and navigation to more dynamic
and accurate airborne-based systems and procedures in order to
modernize America's air transportation system to make flying even
safer, more efficient, and more predictable. ADS-B equipment is an
advanced surveillance technology that combines an aircraft's
positioning source, aircraft avionics, and a ground infrastructure to
create an accurate surveillance interface between aircraft and air
traffic control.
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\1\ Automatic Dependent Surveillance--Broadcast (ADS-B) Out
Performance Requirements to Support Air Traffic Control (ATC)
Service, NPRM, 72 FR 56947 (Oct. 5, 2007).
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ADS-B Out, which is the subject of this rulemaking, periodically
broadcasts information about each aircraft, such as identification,
current position, altitude, and velocity, through an onboard
transmitter. ADS-B Out provides air traffic controllers with real-time
position information that is, in most cases, more accurate than the
information available with current radar-based systems. With more
accurate information, ATC will be able to position and separate
aircraft with improved precision and timing.
In response to the ADS-B Out NPRM published in 2007, the Department
of Defense (DOD) submitted a comment \2\ identifying concerns with the
mandate
[[Page 34283]]
for all aircraft equipped with ADS-B Out to transmit that information
at all times. The concern was based on this new standard being adopted
by a multitude of aviation authorities worldwide, advancing aircraft
surveillance capabilities, but subjecting it to potential security
vulnerabilities. On May 28, 2010, the FAA published the final rule,
Automatic Dependent Surveillance-Broadcast (ADS-B) Out Performance
Requirements to Support Air Traffic Control (ATC) Service.\3\ The final
rule was effective on August 11, 2010, and mandates that all aircraft
operating in the airspace described in Sec. 91.225 of the rule have
ADS-B Out technology operational by January 1, 2020. Additionally, the
final rule requires aircraft equipped with ADS-B Out technology to
transmit at all times, irrespective of the date of equipage. The final
rule did not include a national security or law enforcement exception
to the requirement that all aircraft that are equipped with ADS-B Out
must transmit ADS-B Out at all times, and the FAA noted that it was not
operationally feasible to assign different performance requirements
dependent on the nature of the operation. However, the FAA did state
that it would collaborate with the DoD and other federal agencies to
accommodate national defense missions while supporting the needs of all
other NAS users.
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\2\ https://www.regulations.gov/docket?D=FAA-2007-29305.
\3\ Automatic Dependent Surveillance-Broadcast (ADS-B) Out
Performance Requirements to Support Air Traffic Control (ATC)
Service, Final Rule, 75 FR 30193 (May 28, 2010).
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Over the last few years, the rapid evolution of flight tracking
technology in the private sector has impaired the ability of Federal,
State and local government entities to successfully execute sensitive
missions for the purposes of national defense, homeland security,
intelligence and law enforcement when required to transmit ADS-B Out.
The FAA has hosted multiple interagency meetings to discuss ADS-B
security risk mitigations for sensitive flights. Interagency
participants included DOD, Department of Homeland Security (DHS),
Federal Bureau of Investigation (FBI), and other intelligence and law
enforcement entities. All interagency participants voiced strong
concerns about the negative impact to their respective missions from
public access to real time ADS-B flight identification and positional
data.
Additionally, the FAA is aware of some instances where operating a
transponder or transmitting ADS-B Out would jeopardize the safe
execution of air traffic control functions. For example, when aircraft
are conducting formation flight, the close proximity of the aircraft to
each other causes distracting audio and visual alerts on a controller's
display. Controllers are able to silence these alerts, but are still
subject to multiple, overlapping information elements on the
controller's display that make it difficult to discern information.
This rule will give the FAA the necessary flexibility to adjust its
air traffic control procedures to accommodate sensitive government
missions and otherwise ensure the safe execution of air traffic control
functions. The FAA expects this rule to maintain the safety and
efficiency of the NAS without negative effect on users.
IV. Discussion of the Rule
This rulemaking amends Title 14, Code of Federal Regulations (CFR),
Sec. 91.225(f), to add exceptions to the requirement that each person
operating an aircraft equipped with ADS-B Out must operate such
equipment in the transmit mode at all times. Section 91.225, paragraph
(f), is revised to provide relief from the mandatory transmit
requirement for sensitive missions for the purposes of national
defense, homeland security, intelligence and law enforcement where
transmitting ADS-B Out would compromise safety or the security of the
mission. Paragraph (f) is further revised to allow ATC to direct
aircraft not to transmit if transmitting would jeopardize the safe
execution of air traffic control functions. This rulemaking also amends
14 CFR 91.215(c) to expressly allow ATC to direct aircraft to cease
transponder operations in situations where operating the transponder
would jeopardize the safe execution of ATC functions.
A. Exception for Aircraft Performing a Sensitive Mission for National
Defense, Homeland Security, Intelligence or Law Enforcement Purposes
The FAA acknowledges that there will be some sensitive missions
conducted by Federal, State, or local governments that could be
compromised by sending flight data over ADS-B. Therefore, this
rulemaking allows the aircrew to disable ADS-B transmissions if the
aircraft is performing a sensitive mission for the purposes of national
defense, homeland security, intelligence or law enforcement and if
transmitting could reasonably be expected to compromise the security
security of the mission or pose a risk to the aircraft, crew, or people
and property in the air or on the ground.
Aircraft that transmit in compliance with Sec. 91.225(f) may be
detectable by the general public using readily available and
inexpensive open source third party networked receivers. ADS-B Out
avionics transmit flight data information once per second, including
critical information such as the aircraft identification, Global
Positioning System position, velocity, and altitude. Independent third
party flight tracking software is capable of interpreting the raw ADS-B
Out data and presenting a graphical display of the aircraft's exact
flight path over the ground in real time.
The proliferation of open source third party flight tracking
networks is generally not a concern for non-sensitive flight
operations, which comprise the overwhelming majority of total flight
operations. Commercial airlines, in particular, have embraced open
information sharing of their flight data since the late 1990s. However,
if the success of a sensitive flight mission is dependent on its
ability to operate undetected by the potential adversary or target, a
third party's ability to independently track who and where an aircraft
is in real time can pose a risk to the success of the mission, and, at
times, to the safety of the personnel and assets conducting the
mission.
The operations security of a sensitive government mission is
considered compromised when an adversary is able to obtain critical
information about that mission because the adversary now has the
potential to use that critical information to prevent the successful
completion of the mission, including endangering the aircraft.
Specifically, special U.S. Federal flights, State or local government
flights, including contractual flights in support of those operations,
conducting sensitive missions, such as but not limited to, combat air
patrol, intercept, counter-drug, counter-terrorism, VIP transport,
homeland security, and border surveillance may be relieved from openly
broadcasting their identity and position over a link that is easily
received and resolved by third-party actors and the general public.
The FAA will defer to each agency regarding whether a mission falls
under this exception, and determine whether transmitting would
compromise the operations security of the mission or pose a safety risk
to the aircraft, crew, or people and property in the air or on the
ground. Once the FAA receives a request to terminate broadcasting, the
FAA will issue authorizations to turn ADS-B Out off following an
assessment that the operations can be accommodated without any negative
impact on the safety and efficiency of
[[Page 34284]]
the NAS. The FAA will not make an independent assessment of national
security, homeland security, or law enforcement considerations. The
purpose of the rule is to allow law enforcement and other security
agencies to take appropriate measures to protect operational security
and the safety of their operators. The FAA expects that each agency
will establish its own policies and conduct its own assessment to
determine whether the mission should be excepted from the transmitting
requirement. Because this relief is being granted to support sensitive
security operations, however, the FAA anticipates that non-transmission
of ADS-B Out will not be routinely used by agencies that have been
granted this relief. The FAA further expects that each agency will
conduct this assessment on a broad mission set basis; there is no
intent for the FAA to administer ADS-B Out off authorizations on a
dynamic, per flight, per mission or per unit basis. The FAA believes
there will be no impact to safety or the efficient use of the NAS, and
as such per mission authorizations are unnecessary and could result in
disruption to sensitive operations that must be conducted with
immediacy. However, as with all operations in the NAS, ATC will
continue to monitor trends and changes that could impact safety and
will modify or amend authorizations to the extent that operations have
a negative effect.
Once an agency has determined the broad mission sets that should be
excepted from the transmitting requirement using its internal policies
and assessment criteria, it must contact the FAA for authorization to
conduct these broad mission sets without transmitting. In order to
maintain both the security of the qualifying mission sets and the
safety of the NAS, the FAA must verify the following: Aircraft equipage
and the inclusion of that aircraft into existing FAA support and
protection processes for the classified and sensitive unclassified
missions conducted in the NAS. This verification is necessary to ensure
safe separation when qualifying mission sets are excepted from the
transmitting requirement. The FAA does not intend to coordinate ADS-B
Out off authorizations on a dynamic, per flight, per mission, or per
unit basis. Rather, the FAA expects coordination for ADS-B Out off
authorization to be handled at the highest possible agency organization
level. For instance, ADS-B Out off authorizations for DoD aircraft
should be handled at the DoD agency level, not at an individual service
level (i.e., Air Force, Army, Navy), and not at an individual unit
level (i.e., 89th Airlift Wing at Joint Base Andrews).
To initiate the process, Federal, State and local government
organizations should contact FAA System Operations Security via email
at [email protected]. To facilitate timely response, government
organizations should ensure that the subject line of the email to [email protected] contains ``ADS-B Authorization under 14 CFR
91.225(f)(1)'', and that the body of the email includes the government
organization point-of-contact name and contact information. Once a
Federal, State or local government entity receives authorization by
following the process listed above, it may conduct those operations for
which it received authorization without transmitting. The FAA will make
adjustments if there is an impact on air traffic control systems,
including ADS-B, or the NAS that makes such changes necessary.
There may be some broad mission sets conducted by Federal, State,
or local governments that do not meet their internal assessment
determination for national security risk or risk to the aircraft, crew,
or people and property in the air or on the ground, but may still
require relief from the transmission requirement. In these situations,
an agency can still seek relief through the exemption process. As such,
the FAA recommends that agencies review exemptions where the FAA has
provided relief from current transponder requirements, as these current
exemptions will provide valuable guidance regarding how FAA will
consider additional requests in a way that does not compromise the
safety or efficient operation of the NAS. After review, an agency could
then request an amendment to those exemptions and add a request for
relief from the applicable ADS-B Out requirements under 14 CFR 91.225.
For example, the U.S. Navy and U.S. Air Force have exemptions for
transponder off areas. These exemptions could be amended to include
ADS-B Out relief, or an agency could petition the FAA to designate new
operational training areas exempt from the ADS-B transmitting
requirement. If no current exemptions exist, an agency could petition
for a new exemption under 14 CFR part 11. As in the case of the other
provisions of this rule, FAA does not believe that the use of such
exemptions should become routine, and should be limited to areas in
which such relief represents and integral mission need of the
requestor.
B. Exception To Preserve the Safe Execution of Air Traffic Control
Functions
This rulemaking also excepts certain aircraft from operating a
transponder or transmitting ADS-B, when such transmissions would
compromise the safe execution of air traffic control functions as
determined by ATC. The exception allows ATC to direct aircraft not to
transmit only when ATC has determined that such transmissions would
compromise the safe execution of ATC functions.
One instance during which aircraft operating a transponder or
transmitting ADS-B in accordance with Sec. 91.215(c) and Sec.
91.225(f), respectively, causes distracting alerts for air traffic
controllers is when all aircraft flying in formation are transmitting.
Formation flight involves more than one aircraft which, by prior
arrangement between the pilots, operate as a single aircraft with
regard to navigation and position reporting to ATC. Separation between
aircraft within the formation is the responsibility of the flight lead
and the pilots of the other aircraft in the flight. This includes
transition periods when aircraft within the formation are maneuvering
to attain separation from each other to effect individual control, and
during join-up and breakaway. A standard formation is one in which a
proximity of no more than 1 mile laterally or longitudinally and within
100 feet vertically from the flight leader is maintained by each
wingman.\4\ Formation flying is used by both military and civilian
pilots.
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\4\ Aeronautical Information Manual, Pilot/Controller Glossary.
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During formation flight, the close proximity of aircraft and their
data/identification tags displayed on the radar display can, at a
minimum, clutter the ATC display making it hard for ATC to determine
the exact location of the aircraft to provide appropriate separation
from other aircraft. Additionally, an air traffic controller will
receive repeated audio and visual alerts (flashing data tag) that
aircraft are within close proximity to each other. These alerts can
distract controllers and redirect their attention to aircraft with
approved separation and away from other instances where the controller
may need to provide control instruction to maintain necessary
separation. In these cases, once aircraft are ``joined up'' as a
flight, it is in the best interest of flight safety to direct
subsequent ``wingmen'' in the flight to squawk stand-by or stop squawk
since control instructions are provided to only the lead and there are
established
[[Page 34285]]
separation minima from formation flights. In the instance of non-
standard formation, it is general practice to have the lead aircraft
squawk, along with the trail/last aircraft, a subset beacon code with
altitude. In order to minimize these conflicting or overlapping data
reports, this rule allows ATC to direct only the lead aircraft flying
in formation to transmit ADS-B or operate his or her transponder.
The previous example illustrates one instance the FAA has
identified where operating a transponder or transmitting ADS-B
jeopardizes the safe execution of air traffic control functions. This
requirement should not be construed as requiring that all aircraft
equip such that the pilot can turn ADS-B transmission off. Rather, this
requirement provides ATC with the flexibility to direct pilots to turn
ADS-B or transponder equipment off in certain situations. If a pilot is
directed to turn ADS-B off, and is unable to do so, ATC will work with
the pilot to determine a safe alternative course of action. Ultimately,
this rule allows a controller to direct pilots to turn off ADS-B or
transponder equipment if ATC determines that leaving the equipment on
would jeopardize the safe execution of air traffic control functions.
The FAA expects operators to continue using the exemption process for
operations that do not meet the safe execution of air traffic control
functions standard included in this rule.
V. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Orders 12866 and 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. 603 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), as codified in 2 U.S.C. Chapter 25, 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).
In conducting these analyses, the FAA has determined that this
interim final rule has benefits that justify its costs. This rule is a
significant regulatory action, as defined in section 3(f) of Executive
Order 12866, as it raises novel policy issues contemplated under that
Executive Order. As notice and comment under 5 U.S.C. 553 are not
required for this interim final rule, the regulatory flexibility
analyses described in 5 U.S.C. 603 and 604 regarding impacts on small
entities are not required. This rule will not create unnecessary
obstacles to the foreign commerce of the United States. This rule will
not impose an unfunded mandate on State, local, or tribal governments,
or on the private sector, by exceeding the threshold identified
previously.
A. Regulatory Evaluation
Prior to initiating this interim final rule, the FAA considered
three alternatives, all of which were deemed inadequate because they
failed to meet sensitive U.S. Government operations security needs,
were deemed untimely with regard to implementation prior to January 1,
2020, or may result in higher costs than this rule.
The first alternative to this rule that was considered was masking
the identity of a sensitive aircraft while still transmitting ADS-B
Out. In this scenario, third parties would still be able to receive
ADS-B Out data on the aircraft's precise location/track, velocity, and
altitude. DoD aircraft routinely enter and exit Special Use Airspace,
so third parties can reasonably assume that ADS-B tracks entering and
exiting Special Use Airspace are associated with DoD aircraft, thus
rendering the masked identity ineffective. Likewise, low altitude
surveillance conducted by Federal agencies or state/local law
enforcement agencies has a distinctive track/flight pattern that also
renders the masked identity ineffective. In addition, FAA held a face-
to-face meeting with interagency participants on June 30, 2017, and
asked interagency participants whether masking would be a sufficient
alternative to address their operations security concerns (OPSEC).
Interagency representatives unanimously stated that masking was
insufficient; their preferred solution to mitigate operational security
issues was authority to turn ADS-B Out off.
The second alternative considered by the FAA was encryption of the
ADS-B Out transmissions for sensitive aircraft; however, no encryption
solution currently exists. The FAA will monitor technological advances
and consider using future technological solutions that could be
feasible alternatives, including encryption.
The third alternative considered by the FAA is the use of the
exemption process for agencies to petition the FAA for authority to
turn ADS-B Out off. For this alternative, the technical solution is the
same as the technical solution for this rule; however it is less
efficient. The exemption process would require review by multiple FAA
offices, instead of review by the one FAA office designated by this
rule. Review by multiple FAA offices and the requirement to publish
certain information for each exemption in the Federal Register would
increase overall FAA processing time for each request. Finally, the
exemption process requires agencies to submit their requests to the FAA
at least 120 days in advance of the date they need the exemption to be
in place.
This interim final rule allows the FAA to except certain aircraft
from operating a transponder or transmitting ADS-B Out, when doing so
would compromise certain sensitive government missions or jeopardize
the safe execution of ATC functions. In both scenarios, the aircraft
will continue to rely on existing equipment to transmit with ATC
thereby maintaining safety of flight operations.
In the first instance, to preserve the safety and security of
certain sensitive government missions, this rule excepts aircraft
performing missions for the purposes of national defense, homeland
security, intelligence or law enforcement from transmitting ADS-B Out
if transmitting out could reasonably be expected to compromise the
mission or pose a risk to the aircraft, crew, or people and property on
the ground. The FAA recognizes that the lack of encryption over the
ADS-B Out data link could compromise certain missions or put aircrew,
aircraft and personnel and property on the ground at risk. As
previously stated in this preamble, those agencies performing safety
and security sensitive missions will notify the FAA one-time at the
highest possible agency organizational level as opposed to on a
dynamic, per mission, per flight or per unit basis to exclude them from
the requirement.
In the second instance, this rule excepts certain aircraft from
operating a transponder or transmitting ADS-B Out when transmitting
would compromise
[[Page 34286]]
the safe execution of air traffic services. At this time, the only
operation of which the FAA is aware that would jeopardize the safe
execution of air traffic control functions due to operating a
transponder or transmitting ADS-B Out requirements is formation flight.
Specifically, formation flight causes unnecessary and distracting
alerts on ATC displays when all aircraft performing the flight are
transmitting out. This rule allows the FAA to except certain aircraft
from operating a transponder or transmitting ADS-B Out when doing so
would jeopardize ATC functions.
The FAA expects this interim final rule will have benefits that
justify its costs since it maintains the safety and security of certain
sensitive government missions and allows the FAA to except certain
aircraft from operating a transponder or transmitting ADS-B Out when
doing so would jeopardize ATC functions. In addition, affected aircraft
will continue to rely on existing equipment to transmit with ATC
thereby maintaining safety of flight operations.
As stated above, the FAA does not expect this authority to be
routinely used by agencies that have been granted this relief. As such,
the FAA does not believe that this process will induce a significantly
greater volume of flights receiving permission to operate without ADS-B
Out broadcasting and will not reduce the general advantages conveyed by
ADS-B Out deployment in the U.S. airspace in terms of cost savings and
traffic management efficiency.
The FAA also considered potential costs to the public. The FAA does
not believe permitting certain categories of missions from operating
without ADS-B Out broadcasting will reduce any of the benefits
identified in earlier ADS-B Out rulemakings related to other users of
the NAS, including safety and efficiency gains through improved
situational awareness to pilots voluntarily operating with ADS-B In. In
addition, the FAA does not foresee that the authorizations will
negatively impact unmanned aircraft system (UAS) integration efforts.
This rule will provide unquantified cost savings by relieving
affected operators from applying for exemptions. In the absence of this
rule, operators seeking to be excepted from the requirement to operate
a transponder or transmit ADS-B Out would have to seek an exemption
from the FAA in the future. The cost savings associated with avoiding
applying for exemptions will accrue to both the FAA and the agencies
seeking exemptions. The FAA does not currently maintain data on the
number or type of flights receiving ADS-B Out broadcasting exemptions
through the existing exemption process, nor on the length of time it
takes agencies to request and receive an exemption and thus is unable
to quantify the value of any potential time savings.
B. Regulatory Flexibility Determination
Section 603 of the Regulatory Flexibility Act (RFA) 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 to publish a general notice of proposed rulemaking for any proposed
rule. Similarly, section 604 of the RFA 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 to publish a general
notice of proposed rulemaking. RFA analysis requirements are limited to
rulemakings for which the agency ``is required by section 553 or any
other law, to publish a general notice of proposed rulemaking for any
proposed rule.'' 5 U.S.C. 603(a). FAA found good cause for implementing
an immediate effective date. As prior notice and comment under 5 U.S.C.
553 are not required to be provided in this situation, the analyses 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
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 will respond to a domestic safety objective and is not
considered an unnecessary obstacle to trade.
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. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
The FAA has determined that there would be no new information
collection associated with the revision to Sec. 91.225, paragraph (f),
to exempt certain ADS-B Out-equipped entities from the requirement to
transmit at all times.
F. International Compatibility
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. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these modified regulations.
However, the FAA has recently learned that in 2018 the European
Aviation Safety Agency (EASA) has proposed changes to their ADS-B
requirements to accommodate the operations security needs of State
aircraft. The EASA final report proposes the following major change to
amend the existing implementing rule, (EU) 1206/2011 ACID IR:
Add to point 3 of ANNEX II
(d) State aircraft engaged on nationally sensitive operations or
training, that require security and confidentiality.
This change would provide the opportunity for State aircraft
operators to revert back to Secondary Surveillance Radar (SSR) for such
categories of flights in order to prevent their flight data
[[Page 34287]]
information from becoming publicly available on internet platforms. The
EASA change for State aircraft is the same technical solution chosen by
the FAA for sensitive U.S. Government operators in this rule.
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 in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6 and involves no extraordinary
circumstances.
VI. 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 would 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, would 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 would not be a ``significant energy action'' under the
executive order and would not be likely to have a significant adverse
effect on the supply, distribution, or use of energy.
C. Executive Order 13609, International Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation, 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 interim final rule is expected to be an E.O. 13771
deregulatory action. Details on the deregulatory effects of this rule
can be found in the Regulatory Evaluation section. This rule will
provide unquantified cost savings by relieving affected operators from
applying for exemptions. In the absence of this interim final rule,
operators seeking to be excepted from the requirement to operate a
transponder or transmit ADS-B Out would have to seek an exemption from
the FAA. The cost savings associated with avoiding applying for
exemptions will accrue to both the FAA and the operators seeking
exemptions. The FAA requests comment on this designation of the rule
for E.O. 13771 purposes.
VII. Additional Information
A. Availability of Rulemaking Documents
An electronic copy of rulemaking documents may be obtained from the
internet by--
1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
2. Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies or
3. Accessing the Government Publishing Office's web page at https://govinfo.gov.
Copies may also be obtained by sending a request 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 in item (1)
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) 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
the FOR FURTHER INFORMATION CONTACT heading at the beginning of the
preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen, Airports, Aviation Safety.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 1155, 20101, 40103, 40105,
40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712,
44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-56507,
47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49
U.S.C. 44703 note); articles 12 and 29 of the Convention on
International Civil Aviation (61 stat. 1180), (126 Stat. 11).
0
2. Amend Sec. 91.215 by revising paragraph (c) to read as follows:
Sec. 91.215 ATC transponder and altitude reporting equipment and use.
* * * * *
(c) Transponder-on operation. While in the airspace as specified in
paragraph (b) of this section or in all controlled airspace, each
person operating an aircraft equipped with an operable ATC transponder
maintained in accordance with Sec. 91.413 of this part shall operate
the transponder, including Mode C equipment if installed, and shall
reply on the appropriate code or as assigned by ATC, unless otherwise
directed by ATC when transmitting would jeopardize the safe execution
of air traffic control functions.
* * * * *
0
3. Amend Sec. 91.225 by revising paragraph (f) to read as follows:
Sec. 91.225 Automatic Dependent Surveillance-Broadcast (ADS-B) Out
equipment and use.
* * * * *
(f) Each person operating an aircraft equipped with ADS-B Out must
operate this equipment in the transmit mode at all times unless--
[[Page 34288]]
(1) Otherwise authorized by the FAA when the aircraft is performing
a sensitive government mission for national defense, homeland security,
intelligence or law enforcement purposes and transmitting would
compromise the operations security of the mission or pose a safety risk
to the aircraft, crew, or people and property in the air or on the
ground; or
(2) Otherwise directed by ATC when transmitting would jeopardize
the safe execution of air traffic control functions.
* * * * *
Issued under authority provided by 49 U.S.C. 106(f), 106(g),
40103, and 44701(a), in Washington, DC, on July 11, 2019.
Daniel K. Elwell,
Acting Administrator.
[FR Doc. 2019-15248 Filed 7-17-19; 8:45 am]
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