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31 March 2008

[Federal Register: March 31, 2008 (Volume 73, Number 62)]
[Proposed Rules]
[Page 16826-16829]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



49 CFR Part 830

Notification and Reporting of Aircraft Accidents or Incidents and
Overdue Aircraft, and Preservation of Aircraft Wreckage, Mail, Cargo,
and Records

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Notice of proposed rulemaking.


SUMMARY: The NTSB is proposing to amend its regulations concerning
notification and reporting requirements with regard to aircraft
accidents or incidents. The existing version of the definitions section
does not address unmanned aircraft accidents; therefore, the NTSB
proposes to update the definitions section in order to define
``unmanned aircraft accident.''

DATES: Submit comments on or before June 30, 2008.

ADDRESSES: You may send written comments using any of the following
    1. Government-wide rulemaking Web site: Go to http://
www.regulations.gov and follow the instructions for sending your
comments electronically.
    2. Mail: Mail comments concerning this proposed rule to Dana
Schulze, AS-lO, National Transportation Safety Board, 490 L'Enfant
Plaza, SW., Washington, DC 20594-2000.
    3. Fax: (202) 314-6319, Attention: Dana Schulze.
    4. Hand Delivery: 6th Floor, 490 L'Enfant Plaza, SW., Washington,
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal

FOR FURTHER INFORMATION CONTACT: Dana Schulze, Office of Aviation
Safety, (202) 314-6323.


Statutory and Regulatory Evaluation

    This rule proposes to add a definition of ``unmanned aircraft
accident'' alongside the existing definition of ``aircraft accident,''
to include a requirement to report unmanned aircraft accidents under
the notification requirements of 49 CFR 830.5(a), which requires
immediate notification of any aircraft accident, as defined at 49 CFR
830.2. The NTSB also seeks to add a reference to this new definition in
the existing definition of ``aircraft accident.'' These additions will
enhance aviation safety by providing the NTSB with notification of
events in which persons are injured or the aircraft sustains
substantial damage. Such reports will enable the NTSB to conduct
investigations, influence corrective actions, and propose safety
recommendations with regard to unmanned aircraft in a timely manner. In
addition, these reports will assist the NTSB with safety studies and
analysis of any trends in aviation transportation that could affect
aviation safety.
    The NTSB has considered whether this rule is a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review, and has determined that this rule does
not meet the definition of ``significant regulatory action.'' In
particular, the rule will not: have an annual effect on the economy of
$100 million or more or adversely affect the economy; create a serious
inconsistency or interfere with an action that another agency has taken
or plans to take; materially alter the budgetary impact of any grants,
entitlements, or the like; or raise novel legal or policy issues. As
such, Executive Order 12866 does not require the NTSB to complete an
assessment of the potential costs and benefits under section 6(a)(3) of
that Order.
    Likewise, the NTSB has analyzed this rule under the Unfunded
Mandates Reform Act, 2 U.S.C. 1501-1571. The NTSB acknowledges that
this proposed reporting requirement may affect state, local, and tribal
entities because those entities may utilize unmanned aircraft for a
variety of purposes. However, the NTSB maintains that requiring such
entities to report to the NTSB transportation accidents arising from
the operation of unmanned aircraft will not result in any expenditure
by any private sector organization or entity that would exceed $100
million. As such, the NTSB asserts that the Unfunded Mandates Reform
Act does not prevent the NTSB's enactment of this proposed regulation.
Likewise, the NTSB has analyzed this proposed rule as required by the
National Environmental Policy Act, 42 U.S.C. 4321-4347, and has
determined that this proposed regulation does not necessitate further
analysis under the provisions of the National Environmental Policy Act.
    In addition, the NTSB has considered whether this rule would have a
significant economic impact on a substantial number of small entities,

[[Page 16827]]

under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB
certifies under 5 U.S.C. 605(b) that this rule would not have a
significant economic impact on a substantial number of small entities.
Indeed, the changes to part 830 that the NTSB proposes herein will only
result in a potential increase in the number of reports that small
entities must submit to the NTSB; the NTSB does not anticipate that
submitting such reports will have a significant economic impact on
small entities. Moreover, in accordance with 5 U.S.C. 605(b), the NTSB
has submitted this certification to the Chief Counsel for Advocacy at
the Small Business Administration.
    This rule proposes no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) but will require
that the public notify the NTSB of more events. As such, the NTSB has
submitted this NPRM to the Office of Management and Budget (OMB) for
review under the Paperwork Reduction Act. The NTSB will continue to use
Form No. 6120.1 to receive notification of events that are reportable
under 49 CFR Part 830. OMB last approved the use of Form No. 6120.1 on
June 30, 2006, and this approval will expire on June 30, 2009 (OMB
Control No. 3147-0001). The NTSB estimates that the number of
respondents for the submission of this notification using the
aforementioned form will increase by a very modest amount:
approximately five additional reports per year. As such, after this
rule becomes effective, the NTSB anticipates receiving reports on Form
No. 6120.1 from approximately 2,205 respondents per year; this estimate
includes approximately 2,200 reports on Form 6120.1 that the NTSB
receives from all notification requirements in 49 CFR Part 830, as well
as approximately five additional reports that the NTSB expects to
receive each year due to the new definition that is the subject of this
NPRM. All other information regarding the use of Form No. 6120.1 will
remain the same. The public may submit comments regarding the
collection of this information to the OMB desk officer for the NTSB.
    The NTSB recognizes that Congress's intent in promulgating the
Paperwork Reduction Act was to reduce the burden on individuals and
ensure that the information collected would not be duplicative of other
federal information collections. The NTSB notes that some individuals
or entities from which the NTSB must receive notification of an event
under part 830 may also be required to report the event to the Federal
Aviation Administration (FAA). However, this reporting is currently not
required under FAA regulations but is required in individual agreements
authorizing the operation of unmanned aircraft. See 72 FR 6689 (Feb.
13, 2007). Therefore, any duplicative reporting that may occur will be
uncommon, as it will be limited to individual agreements into which the
FAA has entered with specific operators or parties and will occur
infrequently at the NTSB, given the NTSB's estimate that it will
receive approximately five additional reports per year. In any event,
the NTSB asserts that such duplicative reporting, while minimal, is
necessary for the NTSB to fulfill its statutory mission of improving
safety. The NTSB's response to unmanned aircraft accidents could
include immediately dispatching an investigator to the location of the
damaged aircraft to evaluate the circumstances of the accident and
observe various components of the aircraft, or other locations where
perishable information exists or requires collection for the
investigation. Such a response would not be possible if the operator
only reported the event to the FAA. The NTSB also notes that it has
experienced impediments to some investigations, such as an inability to
recover and examine critical parts, when the NTSB belatedly received
notification of the event. Overall, the NTSB does not anticipate that
duplicative reporting will be commonplace, and, to the extent that
duplicate reports occur, the NTSB asserts that such reports are
necessary and will not cause an undue burden on the public.
    Moreover, the NTSB does not anticipate that this rule will have a
substantial, direct effect on State or local governments or preempt
state law; as such, this rule does not have implications for federalism
under Executive Order 13132, Federalism. This rule also complies with
all applicable standards in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden. In addition, the NTSB has evaluated this
rule under: Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights; Executive
Order 13045, Protection of Children from Environmental Health Risks and
Safety Risks; Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments; Executive Order 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use; and the National Technology Transfer and Advancement Act, 15
U.S.C. 272 note. The NTSB has concluded that this rule does not
contravene any of the requirements set forth in these Executive Orders
or statutes, nor does this rule prompt further consideration with
regard to such requirements. With regard to these aforementioned legal
considerations, the NTSB notes that this proposed requirement is an
extension of its existing requirements for the reporting of manned
aircraft accidents; as such, the NTSB's analyses of the aforementioned
statutes and Executive Orders is analogous to its considerations with
regard to notification of other aircraft accidents in which a person is
on board the aircraft.

Discussion of Proposed Addition to Section 830.2

    The NTSB proposes to add the definition of ``Unmanned aircraft
accident'' by adding the following text: ``Unmanned aircraft accident
means an occurrence associated with the operation of a public or civil
unmanned aircraft that takes place between the time that the aircraft
is activated with the purpose of flight and the time that the aircraft
is deactivated at the conclusion of its mission, in which any person
suffers death or serious injury, or in which the aircraft receives
substantial damage.'' The NTSB also proposes to add a brief reference
at the end of the existing definition of ``aircraft accident'' in
section 830.2, which will state: ``For purposes of this part, the
definition of `aircraft accident' includes `unmanned aircraft
accident,' as defined herein.''

Interpretation of Proposed Definition

    The NTSB's reference to ``substantial damage'' in the proposed
definition is appropriate given that substantial damage includes
``damage or failure to an aircraft that adversely affects the
structural strength, performance, or flight characteristics of the
aircraft, and would normally require major repair or replacement of the
affected component.'' The NTSB does not propose altering the definition
of ``substantial damage'' and will apply the full definition, including
all exclusions that the definition contains, to the proposed addition
of unmanned aircraft accidents. Likewise, the NTSB does not intend to
alter its definition of the term, ``serious injury,'' which is also
defined in section 830.2. Overall, the NTSB notes that this proposed
addition does not contravene, alter, or in any way affect any of the
other terms that section 830.2 defines.
    The NTSB's proposed addition to the existing definition of
``aircraft accident,'' to include a reference to unmanned aircraft
accidents, will

[[Page 16828]]

ensure that the reporting requirement within section 830.5
unambiguously applies to aircraft accidents in which manned and
unmanned aircraft are involved. Except with regard to the NTSB's
proposed addition of this reference via a short sentence at the end of
the definition of ``aircraft accident,'' this reference does not change
the existing interpretation or applicability of ``aircraft accident.''
    Moreover, the NTSB's use of the term ``aircraft'' is similarly
appropriate given that this reference does not contradict or supersede
the existing definition of ``aircraft'' at 14 CFR 1.1 (which defines
``aircraft'' as ``a device that is used or intended to be used for
flight in the air''). Similarly, the NTSB intends its reference to the
term ``unmanned aircraft'' to be consistent with the FAA's definition
of ``unmanned aircraft'' at 72 FR 6689 (Feb. 13, 2007), wherein the FAA
defines an ``'unmanned aircraft'' as ``a device that is used, or is
intended to be used, for flight in the air with no onboard pilot.''
Further, the NTSB intends for this proposed rule to apply to the
category of unmanned aircraft used as public aircraft or civil
aircraft, not those used as model aircraft; hence, the NTSB has
included the terms ``civil'' and ``public'' within this definition and
incorporates the existing definitions of those terms in section 830.2
as applicable to this definition. Moreover, the incorporation of these
terms is consistent with the FAA's categorization of unmanned aircraft,
as described at 72 FR 6689, 6690 (Feb. 13, 2007) (explaining three
unique ways in which an operator may obtain authority to operate three
types of unmanned aircraft, which include public, civil, and model
aircraft), and conforms to the statutory directive that Congress issued
to the NTSB, at 49 U.S.C. 1131(a)(1)(A) and 1132(a) (directing the NTSB
to investigate civil and public aircraft accidents). In summary, the
text of the NTSB's proposed definition does not affect and is not
inconsistent with any of the definitions that the FAA has promulgated;
as such, the NTSB does not anticipate that this definition will create

Effect of Proposed Definition on Transportation Safety

    The Independent Safety Board Act of 1974 (codified, as amended, at
49 U.S.C. 1101-1155) directs the NTSB to investigate the facts,
conditions, and circumstances relating to transportation accidents and
to recommend steps to reduce or eliminate such accidents. The NTSB also
has the authority to conduct special studies and investigations on
matters pertaining to safety and for the prevention of accidents. The
NTSB anticipates that this proposed amendment will enhance aviation
safety by providing the NTSB with direct and timely notification of
events that involve safety concerns regarding unmanned aircraft. Such
notification will consequently enable the NTSB to conduct
investigations, through which the NTSB can influence or enable
necessary corrective actions in a timely manner. Such corrective
actions function to prevent future transportation accidents and improve
safety. The NTSB also anticipates that this regulatory amendment will
assist the NTSB in improving safety via the agency's safety
recommendation process, under 49 U.S.C. 1116, 1131, and 1136.
    The NTSB notes that congress has directed the NTSB to carry out
special studies and investigations concerning transportation safety and
evaluate the effectiveness of transportation safety consciousness of
other departments, agencies, and instrumentalities in the interest of
improving transportation safety. See 49 U.S.C. 1116(b). In addition,
Congress has recognized the NTSB's process of issuing safety
recommendations as one that has successfully prevented potential
transportation accidents. See H.R. Rep. No. 103-239(I) at 1 (1993),
which emphasizes the importance of the NTSB's safety recommendations
and states that such recommendations ``have saved countless human
lives.'' In addition to performing these duties, the NTSB significantly
influences transportation safety in conducting its aviation accident
investigations. Often, organizations, such as state or local agencies;
other Federal agencies; foreign governments; and private entities from
the aviation industry, will implement changes during the course of an
NTSB investigation to improve safety and prevent future accidents.
Consequently, the NTSB is effective in improving safety in a variety of
ways; the NTSB anticipates that the proposed notification requirement
will assist the NTSB in improving safety via the NTSB's investigative
process, safety recommendations, and identification of safety concerns.
    For example, the NTSB investigated the April 25, 2006, crash of an
unmanned aircraft system (UAS) that the United States Customs and
Border Protection (CBP) agency was operating near Nogales, Arizona. The
NTSB found that several factors related to pilot training and
proficiency in dealing with emergency situations contributed to the
accident. In addition to these findings, the NTSB identified several
other safety deficiencies regarding the UAS equipment design and
maintenance, the CBP's operational contingency plans, and the safety
risk management process used to ensure safety while operating the
aircraft in the United States National Airspace System (NAS) The
investigation also revealed a number of safety issues related to the
FAA's air traffic management of the unmanned aircraft and the FAA's
practice of monitoring unmanned aircraft operations under the current
system of authorization. As a result of these findings, the CBP took
action to improve certain aspects of its UAS equipment design and
operation. Likewise, the FAA also took action to reconsider its current
means of monitoring UAS operations in the NAS. Although these actions
addressed some of the investigation's safety findings, the NTSB
remained concerned about other potential safety deficiencies and the
risk they presented for a possible midair collision between an unmanned
aircraft and a human-piloted aircraft or a possible collision involving
an unmanned aircraft and persons or property on the ground; the NTSB
also remained concerned that these deficiencies may not be adequately
addressed by current UAS operating procedures. As a result, the NTSB
issued 22 safety recommendations to address the specific findings and
concerns identified in the CBP accident investigation, as well as to
improve the safety of other unmanned aircraft operations in the NAS.
See Safety Recommendations A-07-065 through A-07-086, available at
    In the course of conducting the CEP investigation, the NTSB also
became aware that the framework of safety standards and regulations
related to the design, operation, and continuing airworthiness of
unmanned aircraft systems for use in the NAS is insufficient when
compared to that of manned aircraft and that the development of these
regulations and standards is a new and evolving area of civil aviation.
Given this assessment, combined with the knowledge that numerous public
use and civil entities are already currently operating their unmanned
aircraft in the NAS today under specific approval from the FAA, the
NTSB determined that it should receive notification of accidents
involving unmanned aircraft. The NTSB anticipates that it will
investigate these occurrences and make determinations and issue safety
recommendations that other entities will use to develop safety
improvements. Such a purpose is

[[Page 16829]]

consistent with Congress's intent in creating the NTSB and supplying
the NTSB with its broad investigative authority. The NTSB also notes
that the investigation of such occurrences will provide critical data
and lessons learned that can assist regulators and industry in the
development of safety regulations and standards and the monitoring of
their effectiveness in improving the safety of unmanned aircraft
operations in the NAS.
    The NTSB has carefully considered the safety concerns that unmanned
aircraft accidents could present. The NTSB notes that Congress's
intention in creating the NTSB and providing it with broad authority
with regard to investigating transportation accidents indicates a
general purpose of preventing transportation accidents, because such
accidents can cause death or physical harm. In recognizing this
statutory purpose, the NTSB proposes to amend section 830.2 by
including a definition of unmanned aircraft accidents, in accordance
with the proposed language, below.

List of Subjects in 49 CFR Part 830

    Aircraft accidents, Aircraft incidents, Aviation safety, Overdue
aircraft notification and reporting, Reporting and recordkeeping
    For the reasons discussed in the preamble, the NTSB proposes to
amend 49 CFR Part 830 as follows:


    1. The authority citation for 49 CFR part 830 is revised to read as

    Authority: Independent Safety Board Act of 1974, as amended (49
U.S.C. 1101--1155); Federal Aviation Act of 1958, Pub. L. No. 85-
726, 72 Stat. 731 (codified as amended at 49 U.S.C. 40101).

    2. Amend Sec.  830.2 as follows:
    A. Add a new sentence at the end of the definition of ``Aircraft
accident'' to read as set forth below; and
    B. Add a definition of ``Unmanned aircraft accident'' in
alphabetical order to read as follows:

Sec.  830.2  Definitions.

* * * * *
    Aircraft accident * * * For purposes of this part, the definition
of ``aircraft accident'' includes ``unmanned aircraft accident,'' as
defined herein.
* * * * *
    Unmanned aircraft accident means an occurrence associated with the
operation of a public or civil unmanned aircraft that takes place
between the time that the aircraft is activated with the purpose of
flight and the time that the aircraft is deactivated at the conclusion
of its mission, in which any person suffers death or serious injury, or
in which the aircraft receives substantial damage.

    Dated: March 24, 2008.
Vicky D'Onofrio,
Federal Register Liaison Officer.
[FR Doc. E8-6393 Filed 3-28-08; 8:45 am]