USA – Removal of the Special Rule for Model Aircraft

The FAA Modernization and Reform Act of 2012, Pub. L. 112-95 (February 14, 2012) (FMRA) included a number of provisions related to unmanned aircraft systems (UAS) operating in the National Airspace System (NAS). Section 336 of the Act, titled “Special Rule for Model Aircraft,” defined “model aircraft” and specifically prohibited FAA from promulgating a rule or regulation regarding model aircraft that were operated under certain circumstances. That prohibition notwithstanding, section 336 preserved the right of FAA to pursue enforcement action against operators of model aircraft that
endanger the NAS.

On June 28, 2016, FAA issued a final rule to allow the operation of small unmanned aircraft systems (UAS) in the National Airspace System (NAS), Operation and This document is scheduled to be published in the Federal Register on 12/11/2020 and available online at federalregister.gov/d/2020-26726, and on govinfo.gov

Certification of Small Unmanned Aircraft Systems, 81 FR 42064. That rule also included a new subpart E to 14 CFR part 101, implementing section 336.

On October 5, 2018, the President signed into law the FAA Reauthorization Act of 2018
(Pub. L. 115-254) (FAARA 2018). Section 349 of that act repealed the “Special Rule for Model Aircraft” in section 336 of FMRA, and replaced it with the “Exception for limited recreational operations of unmanned aircraft,” creating a new framework for allowing certain small unmanned aircraft operations. As a result, 14 CFR part 101, subpart E, no longer reflects current statutory law.

This final rule removes 14 CFR part 101, subpart E, to remove the inconsistency between
FAA’s regulations and current statutory law. It also makes conforming amendments to remove references to part 101, subpart E, in both 14 CFR 61.8 (Inapplicability of unmanned aircraft operations) and 14 CFR 107.1(b)(2) (Applicability of part 107). Lastly, the final rule removes the obsolete definition of “model aircraft” from 14 CFR part 1.

Good Cause for Immediate Adoption

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C.) authorizes
agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. Section 553(d) also authorizes agencies to forgo the delay in the effective date of the final rule for good cause found and published with the rule.

In this instance, FAA finds good cause to forgo notice and comment. Section 349 of
FAARA 2018 repealed the statutory basis for Subpart E of part 101, putting the regulation into conflict with statutory law. Furthermore, FAA has no discretion to keep subpart E, irrespective of notice and comment. For these reasons, and the potential for public confusion resulting from regulations that are inconsistent with existing statutory law, notice and comment is unnecessary and contrary to the public interest.

In addition, FAA finds good cause to make the rule effective upon publication. FAARA 2018 superseded subpart E when the President signed the Act into law on October 5, 2018, repealing FMRA section 336. Subpart E has been ineffective since that date, eliminating any justification to delay the effective date of this final rule.

Authority for this Rulemaking

FAA’s authority to issue rules on aviation safety is found in Title 49 of the United States
Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency’s authority.

This rulemaking is promulgated pursuant to 49 U.S.C. 44809, which repealed section 336
of Public Law 112-95.

III. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic analyses. First, Executive
Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities.

Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this statute requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes FAA’s analysis of the impacts of this rule.

In conducting these analyses, FAA has determined that this rule is not a significant
regulatory action, as defined in section 3(f) of Executive Order 12866. As notice and comment under 5 U.S.C. 553 are not required for this 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
As previously discussed, Section 349 of Pub. L. 115-254 repealed section 336 of
Pub. L. 112-95 and thus subpart E of part 101 titled, Special Rule for Model Aircraft is no longer consistent with statutory law. As a result, this rule removes subpart E of part 101 and revises certain other provisions in 14 CFR to conform them to the removal of subpart E. This action will eliminate a conflict between FAA regulations and applicable statutory authority and reduce confusion for regulated entities. This rule does not convey additional regulations and does not result in additional regulatory costs.

Furthermore, in the 2016 final rule that added regulations to allow the operation of small
UAS in the National Airspace System, 81 FR 42064, FAA found subpart E of part 101 would not result in any costs or benefits since it would simply codify FAA’s enforcement authority.

Therefore, the removal of subpart E of part 101 will not result in a revision of the previous regulatory analysis of its implementing rule.

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 has found good cause for implementing an immediate effective date in this case. 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
likewise are similarly 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. FAA has assessed the potential effect of this final rule and determined that it relates to domestic operation of certain unmanned aircraft systems 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.” FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This 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 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. FAA has determined that there are no information collections associated with this rule.

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. FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to 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. FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 of this Order and involves no extraordinary circumstances.

VII. Executive Order Determinations

A. Executive Order 13132, Federalism

FAA has analyzed this immediately adopted 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 FAA analyzed this 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. FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

D. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
List of Subjects
14 CFR Part 1
Air transportation.
14 CFR Part 61
Aircraft, Airmen, Aviation safety, Recreation and recreation areas, Reporting and
recordkeeping requirements.
14 CFR Part 101
Aircraft, Aviation safety.
14 CFR Part 107
Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements.

The Amendment

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

PART 1—DEFINITIONS AND ABBREVIATIONS

  1. The authority citation for part 1 continues to read as follows:
    Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701.
    § 1.1 [Amended]
  2. In § 1.1, remove the definition of “Model aircraft”.
    PART 61—CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND
    INSTRUCTORS
  3. The authority citation for part 61 continues to read as follows:
    Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701-44703, 44707, 44709-44711, 44729, 44903,
    45102-45103, 45301-45302; Sec. 2307 Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note).
  4. Revise § 61.8 to read as follows:
    § 61.8 Inapplicability of unmanned aircraft operations.
    Any action conducted pursuant to part 107 of this chapter cannot be used to meet the
    requirements of this part.
    PART 101—MOORED BALLOONS, KITES, AMATEUR ROCKETS, AND
    UNMANNED FREE BALLOONS
  5. The authority citation for part 101 is revised to read as follows:
    Authority: 49 U.S.C. 106(f), 106(g), 40101 note, 40103, 40113-40114, 45302, 44502,
    44514, 44701-44702, 44721, 46308.
  6. The heading for part 101 is revised to read as set forth above.
    § 101.1 [Amended]
  7. Amend § 101.1 by removing paragraph (a)(5).
    Subpart E—[Removed]
  8. Remove subpart E.
    PART 107—SMALL UNMANNED AIRCRAFT SYSTEMS
  9. The authority citation for part 107 is revised to read as follows:
    Authority: 49 U.S.C. 106(f), 40101 note, 40103(b), 44701(a)(5), 44807.
    §107.1 [Amended]
  10. Amend §107.1 as follows:
    a. In paragraph (b)(1) by adding “or” after the semicolon;
    b. Removing paragraph (b)(2); and
    c. Redesignating paragraph (b)(3) as paragraph (b)(2).
    Issued under the authority of 49 U.S.C. 106(f) and 44809, in Washington, D.C., on November
    23, 2020.
    Steve Dickson,
    Administrator.
    [FR Doc. 2020-26726 Filed: 12/10/2020 8:45 am; Publication Date: 12/11/2020]