[Federal Register: August 27, 2007 (Volume 72, Number 165)]
[Proposed Rules]
[Page 48950-48952]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au07-9]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. FAA-2002-14081, Notice No. 03-02]
RIN 2120-AH67
Transponder Continuous Operation
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM), withdrawal.
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SUMMARY: The FAA is withdrawing the NPRM published on January 14, 2003,
that proposed to require airplanes operated in domestic, flag, and
supplemental operations to ensure immediate activation and continuous
transmission of the designated hijack alert code to air traffic control
(ATC) during a hijack situation. After September 11, 2001, the
increased threat of hijacking and realization that a plane could be
used as a weapon became the basis for the proposed rule. The intent was
to provide the flight crew of commercial airplanes with the ability to
initiate an immediate national security response in the event of a
hijacking. The overwhelming majority of comments opposed the proposal
for several reasons. Because of the reasons given, including completed
security enhancements to strengthen flightdeck doors, we are
withdrawing the proposal. Current regulations ensure an adequate level
of aviation security.
FOR FURTHER INFORMATION CONTACT: Richard E. Jennings, Aircraft
Certification Service, Aircraft Engineering Division, AIR-130, Federal
Aviation Administration, 470 L'Enfant Plaza, Suite 4102, Washington, DC
20024; telephone (202) 385-6090; e-mail Richard.Jennings@faa.gov.
SUPPLEMENTARY INFORMATION:
Background
On January 14, 2003, the FAA published a Notice of Proposed
Rulemaking (Notice No. 03-02, 68 FR 1942). The NPRM proposed to amend
the instrument and equipment requirements in 14 CFR 121.345 for
airplanes operated in domestic, flag, and supplemental operations.
Under 121.345 currently, air carrier aircraft must be equipped with an
air traffic control (ATC) transponder, which in normal operation
provides radar beacon identity code and altitude for ATC use in
controlling aircraft in en route and terminal areas of operation.
In response to the devastating events of September 11, 2001, the
FAA
[[Page 48951]]
initiated a complete review of aircraft and airport security procedures
that produced several recommendations to improve security and safety
during flight. The Secretary of Transportation established the Rapid
Response Teams (Team) for Aircraft and Airport Security to identify
weaknesses in the nation's security and produce recommendations for
improving aircraft and airport security. The Team consisted of
individuals from the aviation industry, including airplane designers
and manufacturers, airline operators, airline pilots, and flight
attendants. On October 1, 2001, the Team submitted its report on
aircraft security to the Secretary of Transportation. The report
(available in Docket No. FAA-2002-14081) included 17 recommendations to
help counter a situation in which an airplane might be hijacked and
used as a weapon.
In response to recommendation No. 16 regarding transponders, the
FAA established the FAA-Industry Transponder Task Force. The Task Force
examined options for enabling the flight crew to set and lock a
designated hijack code during an emergency situation, and to secure the
ATC transponder from being disabled by a hijacker.
Notice No. 03-02 was based, in part, on the efforts and
recommendations of the Task Force. The proposed rule would have
required all airplanes operated under part 121 to be capable of
immediately notifying ATC of a hijack situation. It would have required
that the ATC transponder continuously transmit the emergency code once
activated, without the possibility of interruption.
During normal operations a flight crew could manually dial in a new
ATC transponder beacon code in 5 to 10 seconds. The International Civil
Aviation Organization (ICAO) has designated a code for unlawful
interference (``7500'' or ``hijack code'') to be used during a
hijacking. Under the stressful conditions of a hijacking and the
presence of an intruder on the flightdeck, activation of this ``hijack
code'' would likely take longer than 10 seconds. The four planes that
were hijacked on September 11, 2001, were unable to enter the hijack
code to alert ATC of the trouble and therefore delayed ATC awareness.
In addition, three of the four planes stopped responding to ATC
interrogations minutes after departing from their assigned routes.
Under current requirements, the airplane's ATC transponder is not
prevented from being switched to the ``standby'' position, or having
its circuit breaker ``pulled,'' disabling the transponder's response to
an ATC secondary ground radar beacon interrogation.
For these reasons, we proposed that airplanes operating under part
121 must have the capability to allow each flight crewmember to quickly
activate the ATC transponder ``hijack code'' through a single action
that includes protection from inadvertent activation. Once activated,
the ATC transponder would have been able to:
Continue to report the airplane's altitude.
Provide visual indication to the flight crew that the
activation has occurred.
Be protected from any person onboard the plane attempting
to disable the transponder or change its code during the remainder of
the flight.
This rule would have been incorporated into 14 CFR part 121 by
creating Sec. 121.346. The comment period closed on April 18, 2003.
Discussion of Comments
The FAA received 146 comments on this NPRM. Comments were received
from industry operators, air carriers, trade associations, pilots, and
manufacturers. The overwhelming majority opposed the proposed rule.
Most commenters felt that the continuous transponder rule was
unnecessary because of the improved security measures implemented since
the September 11, 2001, terrorist hijackings. We agree with these
comments, and the FAA finalized the other security improvements since
the NPRM was written. One hundred and twenty-six commenters opposed the
proposed rule. Nine commenters expressed support for the rule. Ten
commenters supported only part of the proposed rule or took a neutral
position.
Opposition was almost universal from industry operators, air
carriers, and trade associations. Nearly every commenter cited recently
completed security improvements like strengthened flightdeck doors and
more thorough screening of passengers and baggage as justification for
their opposition. They believe that installing continuous ATC
transponders would not increase safety or security, and that the cost
of compliance would be harmful to the industry at this time. Commenters
also believed the FAA underestimated the cost of compliance in the
NPRM, stating that many planes would need rewiring or replacement of
current ATC transponder equipment.
The Air Transport Association (ATA) submitted a lengthy comment
that recommended withdrawing the NPRM. ATA noted that Congress gave
discretion for ATC transponder modifications and did not specifically
mandate a change. Rather than implement this rule, ATA would prefer
that the FAA focus on improving ATC equipment to monitor more types of
air traffic. Like the majority of commenters, they felt that the
flightdeck is now secure with new strengthened flightdeck doors. ATA
also questioned the analysis of benefits in the proposal and claimed
the NPRM did not satisfy the requirements of the Administrative
Procedures Act. They also question the ``propriety of continuing
unfunded mandates for aircraft modifications under the umbrella of
national security.'' Finally, ATA conducted a survey of its members
(the majority of U.S. scheduled air carriers) to compare the cost
estimates presented in the NPRM to show that the FAA underestimated the
cost to the industry. Before issuing the NPRM, with the help and input
from the industry, the FAA estimated the total 3-year cost at
approximately $88.1 million in the NPRM. The ATA survey estimated it
would cost $258.8 million to comply with the rule. The FAA concedes
that the cost to comply may exceed our estimate in the NPRM but we
cannot verify the accuracy or source for ATA's numbers, even though a
detailed summary of the survey was included in the comment.
Twenty international air carriers and associations from Europe,
South America, Asia, and Canada submitted comments opposing the
proposal. One common reason they expressed was that there was no such
ICAO requirement for ATC transponders and that the lack of
harmonization could have a ``negative impact'' on flight safety for
international operators. The International Air Transport Association
(IATA) and International Air Carriers Association (IACA) both stated
this as one reason for their opposition.
IATA added concerns that unintentional hijack-code selection would
certainly occur, and they are also concerned that many pilots said they
would be reluctant to use the hijacking code if it resulted in a
possible military response. IATA believes an unintentionally activated
ATC transponder would put passengers at greater, rather than reduced,
risk. The inability to turn the ATC transponder off would increase risk
even more, they contend. IACA felt that no benefit would be gained by
adding the continuous ATC transponder because of the reinforced
flightdeck doors. These doors are meant to deny potential hijackers
access to the flightdeck, thereby providing pilots enough time to
initiate the hijacking code and
[[Page 48952]]
communicate with ATC, they argued. British Airways, Austrian Airlines,
Singapore Airlines, Lufthansa, and Swiss International Air Lines echoed
concerns about accidental ATC transponder activation and the belief
that recent enhancements have secured the flightdeck.
The Aircraft Owners and Pilots Association (AOPA) and National Air
Transportation Association (NATA) commented separately on the rule's
applicability to general aviation aircraft. Both groups summarized the
comments of many of those in opposition by strongly opposing the
application of this rule to general aviation operations. The FAA asked
interested persons to comment on the applicability of this rule to
aircraft operated under 14 CFR parts 91, 125, 129, and 135. AOPA noted
that general aviation pilots personally know the passengers that are on
board the aircraft, therefore eliminating the possibility of a
passenger hijacking the plane. They also contend general aviation
aircraft are primarily used for personal or business transportation and
that these aircraft pose no greater threat than an average automobile.
NATA cited ``multiple discussions with security officials at all levels
of government,'' and based on these discussions they assert that there
is no specific or credible terrorist threat related to these aircraft
operations.'' Many individual pilots and general aviation supporters
believed that there was no record of a general aviation aircraft ever
being hijacked. Three commenters suggested a continuous ATC transponder
might be better suited for Ryder trucks or cars.
The Air Line Pilots Association (ALPA) submitted one of few
comments in favor of the NPRM. ALPA agreed that the rule would ensure
acceptable aviation security, but also wished to distinguish the
difference between safety and security. ALPA cited strengthened
flightdeck doors as a preventive safety measure, but they believe the
ATC transponder modification should not be seen as a similar measure.
They pointed out that modifying the flightdeck doors and other security
changes are aimed at preventing a hijacking, while the ATC transponder
modification would deter disaster should an aircraft become
commandeered. Because they believe this is a security issue and not a
safety issue, ALPA felt that the government should fund the changes.
The FAA received 15 comments in favor of the proposed rule. The
comments in favor of the proposal came from pilots and interested
individuals for the most part. Seven commenters felt the proposed rule
was appropriate and that it would provide additional needed security
after September 11, 2001. Six commenters were opposed to the proposed
rule if it were applied to general aviation aircraft but felt the
application to commercial aircraft was ``great'' and ``very positive.''
Reason for Withdrawal
We are withdrawing Notice No. 03-02 because the level of security
provided by the proposed rulemaking has been accomplished by other
completed rules and because of reasons given in overwhelming opposition
to the proposal. Several recently implemented security measures in
response to the hijackings of September 11, 2001, such as strengthened
flightdeck doors, make the modification of the ATC transponder
equipment unnecessary. Due to the current security of the flightdeck
against intrusion, measures to prevent the disabling of the ATC
transponder are unnecessary. Likewise, current safety and security
requirements allow pilots time to transmit the necessary hijack alert
code and to communicate any danger to air traffic control.
The Transportation Security Administration (TSA) carefully
evaluated the NPRM and considered changes that have already been made
to the commercial aviation system. TSA does not see sufficient added
security value to justify proceeding with this type of aircraft
modification at this time. This position has been fully coordinated
within TSA and the Department of Homeland Security.
Conclusion
Withdrawal of Notice No. 03-02 does not preclude the FAA from
issuing another notice on the subject matter in the future or
committing the agency to any future course of action.
The FAA has determined that this regulatory course of action is no
longer necessary. Therefore, the FAA withdraws Notice No. 03-02,
published at 68 FR 1982 on January 14, 2003.
Issued in Washington, DC, on June 20, 2007.
John J. Hickey,
Director, Aircraft Certification Service.
[FR Doc. E7-16846 Filed 8-24-07; 8:45 am]
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