[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 
scott.rosenbloom@faa.gov.

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 9-ATOR-HQ-IFOS@faa.gov. To facilitate timely response, government 
organizations should ensure that the subject line of the email to 9-ATOR-HQ-IFOS@faa.gov 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]
 BILLING CODE 4910-13-P


