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Transponder Continuous Operation
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[Federal Register: January 14, 2003 (Volume 68, Number 9)]
[Proposed Rules]
[Page 1941-1947]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja03-13]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. FAA-2002-14081; NPRM No. 03-02]
RIN 2120-AH67
Transponder Continuous Operation
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposal would amend the instrument and equipment
requirements for airplanes operated in domestic, flag, and supplemental
operations. Specifically, the Federal Aviation Administration (FAA)
proposes to require affected airplanes to have the capability to help
assure immediate activation of the designated air traffic control (ATC)
hijack alert code, and continuous transmission of that code to ATC
during a hijack situation. The FAA is proposing this action in response
to the heightened threat to U.S. civil aviation. The FAA believes that
this capability would help provide ATC personnel with more time to
initiate a national security response to a potential airplane hijack
situation.
DATES: Send your comments on or before March 17, 2003.
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-14081 at the beginning of your comments.
You may also submit comments through the Internet to http://dms.dot.
gov. 
You may review the public docket containing comments to
these proposed regulations in person in the Dockets Office between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the NASSIF Building at the
Department of Transportation at the above address. Also, you may review
public dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Richard E. Jennings, Aircraft
Certification Service, Aircraft Engineering Division, AIR-130, Federal
Aviation Administration, c/o Atlanta ACO, 1895 Phoenix Boulevard, Suite
450, Atlanta, GA 30349; telephone (770) 703-6090; facsimile (770) 703-
6055, e-mail Richard.Jennings@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. We also
invite comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. We ask that you send us two copies of written
comments.
We will file comments we receive in the docket, as well as a report
summarizing each substantive public contact with FAA personnel
concerning this proposed rulemaking. The docket is available for public
inspection before and after the comment closing date. If you wish to
review the docket in person, go to the address in the ADDRESSES section
of this preamble between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. You may also review the docket using the
Internet at the web address in the ADDRESSES section.
Comments regarding national security information or sensitive
security information should not be submitted directly to the public
docket. These comments should be submitted according to procedures for
safeguarding sensitive security information and sent to: Armen A.
Sahagian, Office of Civil Aviation Security, Program Manager, Aircraft
Security, ACP-400, Room 323, Transportation Security Administration,
800 Independence Avenue, SW., Washington, DC 20591, Docket No. FAA-
2002-14081. Questions on these procedures may be directed to Armen
Sahagian. These comments will be reviewed to determine appropriateness
for inclusion in the public docket system.
Before acting on this proposal, we will consider all comments we
receive on or before the closing date for comments. We will consider
comments filed late if it is possible to do so without incurring
expense or delay. We may change this proposal in light of the comments
we receive.
If you want the FAA to acknowledge receipt of your comments on this
proposal, include with your comments a pre-addressed, stamped postcard
on which the docket number appears. We will stamp the date on the
postcard and mail it to you.
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by taking the
following steps:
(1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) web page (http://dms.dot.gov/
search).
(2) On the search page type in the last five digits of the Docket
number shown at the beginning of this notice. Click on ``search.''
(3) On the next page, which contains the Docket summary information
for the Docket you selected, click on the document number of the item
you wish to view.
You can also get an electronic copy using the Internet through the
Office of Rulemaking's web page at http://www.faa.gov/avr/armhome.htm
or the Government Printing Office's web page at http://www.access.gpo.gov/
su_docs/aces/aces140.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the docket number, notice number, or amendment number
of this rulemaking.
Background
On September 11, 2001, four U.S.-registered commercial airliners
operating under the provisions of 14 CFR part 121 were hijacked and
subsequently crashed, resulting in great loss of life and extensive
damage to occupied buildings. In order to reduce the likelihood of such
an event reoccurring, the FAA initiated a complete review of aircraft
and airport security procedures. Based on this review, the FAA has
determined that it is necessary to propose certain new regulations that
would increase the desired level of safety and security.
If adopted, these proposed amendments would require that a single
action by the pilot or copilot (or flight engineer, where appropriate)
immediately activate the air traffic control (ATC) transponder beacon
code ``7500,'' which is the International Civil Aviation Organization
(ICAO) code indicating to ATC that an aircraft is being subjected to
unlawful interference, that is, being hijacked.
Before the events of September 11, a flight crew would have
responded appropriately to an airborne hijack situation by acceding to
a hijacker's demands, flying the aircraft to the instructed
destination, and allowing the appropriate authorities to resolve the
situation. Before September 11, however, no one had envisioned a
hijacking situation in which a hijacker would take control of a
commercial
[[Page 1943]]
aircraft and successfully use that aircraft as a weapon. Of the four
aircraft involved in the events of September 11, none of the flight
crews were able to switch to the designated hijack alert code, thus
delaying ATC awareness of the unfolding situation. Further, the
transponders on three of the four airplanes ceased replying to ATC
radar interrogations within minutes of departing from their assigned
routes. These events have changed profoundly the way in which a future
hijack situation may be handled, and more generally, our concept of
what is considered appropriate aviation safety and security.
In response to the events of September 11, the Secretary of
Transportation established the Rapid Response Teams (RRT) for Aircraft
Security and Airport Security to identify measures to improve aviation
security. The Aircraft Security Team was composed of individuals from
the aviation industry, including airplane designers and manufacturers,
airline operators, airline pilots, and flight attendants. Additionally,
the teams consulted with and considered input from concerned private
citizens and other sectors of industry. The RRT for Aircraft Security
considered changes to aircraft design and operation that could (1) deny
or at least delay any unauthorized access to the flight deck, (2)
better train crewmembers to deal with security risks, and (3) ensure
the flow of information from an aircraft to ATC. The RRT for Airport
Security focused on such issues as improved screening of passengers,
baggage, and aircraft and airport personnel prior to direct contact
with an aircraft.
On October 1, 2001, the RRT for Aircraft Security submitted its
report to the Secretary of Transportation for consideration. [This
report is available in Docket No. FAA-2002-14081.]
The report included
17 recommendations to help counter a situation in which an airplane
might be hijacked and used as a weapon. Recommendation No. 16 called
for the creation of an FAA-industry task force to determine the
necessary modifications for airplane transponders to assure continuous
transmission of a hijack signal, even if the fight deck-selected code
or function is disabled. The task force was to examine the following:
all alternatives that would allow pilots the ability to set and lock-in
the hijack code so that a hijacker could not disable it; a ``panic
button'' that would initiate the hijack code during an emergency
situation; and an independent transponder that could not be disabled by
the hijacker.
Based on that RRT recommendation, the Air Transport Association of
America (ATA) volunteered to facilitate formation of an FAA-Industry
Transponder Task Force. The Task Force was composed of representatives
from U.S. and foreign passenger and cargo airlines; FAA; Transport
Canada; various industry associations; research and development centers
funded by the U.S. Government; and manufacturers of airplanes,
transponders, and transponder controls.
At the time the Task Force was formed, several design concepts that
could potentially satisfy RRT Recommendation No. 16 had been
formulated. In evaluating these concepts and other suggestions, the
Task Force assumed as its basis that any transponder system
modifications should (1) allow for the rapid selection of the hijack
alert code, and (2) assure continuous transmission of this code once it
had been activated. The Task Force also assumed that the flight deck
doors on airplanes operated under part 121 would be modified for
increased strength, allowing additional time for the flight crew to
initiate the hijack alert code.
The Task Force evaluated the three most promising design concepts
and submitted a final report to the FAA on November 5, 2001. The report
also identified potential vulnerabilities in the various design
concepts, and therefore, because of national security considerations,
the details of this report are not being released to the general public
for review or placed in the public docket. However, this proposed rule
is based, in part, on the efforts of the Task Force. A redacted version
of this report is available in Docket No. FAA-2002-14081.
These actions taken by the FAA and the aviation industry following
the events of September 11 are directly in line with the Aviation and
Transportation Security Act of 2001 (Act), Public Law 107-71. Section
104, Paragraph (b), Sub-Paragraph (2), of the Act states that ``the FAA
Administrator may develop and implement methods to ensure continuous
operation of an aircraft transponder in the event of an emergency.''
Related Activity
In response to the September 11 attacks, the FAA has initiated
several regulatory actions. On January 10, 2002, the FAA issued a final
rule temporarily authorizing variances from existing flightcrew
compartment door design standards for the doors and allowing for
approval for return to service of modified airplanes without prior
approved data if the modification constitutes a major alteration. This
rule mandated these modifications on aircraft in certain passenger and
cargo carrying operations. Also on January 10, 2002, the FAA issued a
final rule requiring certain airplanes operated under part 121 to be
equipped with a means to protect the flight deck from unauthorized
intrusion and small arms fire or fragmentation devices. The FAA
believes these related rulemaking activities will significantly reduce
the danger to the flying public by preventing future terrorists from
gaining access to an airplane's flight deck.
Since this document was drafted, a number of other security
measures have been adopted in response to the Aviation Security Act of
2001. The FAA welcomes and encourages comments about how this proposal,
when considering these other security measures that have been adopted,
would contribute further to safety and security and how this additional
proposal would affect the aviation industry.
Current Requirements
All air carrier aircraft are required to be equipped with an ATC
transponder (see 14 CFR 91.215 and 121.345), which in normal operation
provides a radar beacon identity code and altitude (Modes 3A/C) for ATC
use in controlling aircraft in en route and terminal areas of
operations. During normal operations it is expected that a flight crew
could manually dial-in a new ATC-directed Mode 3A transponder radar
beacon code, through the transponder control panel, in roughly five to
ten seconds. However, under the stress of a hijack situation it may
take considerably longer than ten seconds to dial-in the designated
hijack alert code, or it may not be possible at all if the flight crew
is distracted by a flight deck intruder. In addition, during a hijack
situation, the current requirements do not prevent an airplane's ATC
transponder from being switched to the ``standby'' position, or having
its circuit breaker ``pulled''--actions which would disable the
transponder's response to an ATC ground radar beacon interrogation.
The designated hijack alert code is ``7500,'' which is defined in
section 2.1.4 of Volume IV of the International Civil Aviation
Organization (ICAO) Annex 10 as the appropriate code to indicate to ATC
that an aircraft is being subjected to unlawful interference.
General Discussion of the Proposal
If an aircraft were to be used as a terrorist weapon, there are
numerous
[[Page 1944]]
targets of opportunity that could be destroyed by a large airplane.
With this in mind, the FAA proposes to add a new Sec. 121.346 to
require all airplanes operated under part 121 to be modified to provide
the capability for the immediate notification to ATC of a hijack
situation, and for the transponder to continuously transmit the
emergency transponder code once activated. At this time, the FAA is
proposing that the rule should apply only to passenger and cargo
airplanes operated under part 121. The FAA invites interested persons
to comment on the applicability of these requirements to aircraft
operated under 14 CFR parts 91, 125, 129, or 135. If the FAA determines
that additional aircraft should be included, a separate proposal will
be issued.
Paragraph (a) of the proposed rule would require that a single
action would immediately set the airplane's ATC transponder Mode 3A
beacon code to ``7500,'' which would be picked up by ATC ground
surveillance radar. The proposal would require the ``single action''
method of activation, for example a switch or a button, to be
accessible to both the pilot and copilot (and flight engineer, where
appropriate). The FAA believes that activation through a single action
would greatly enhance the flight crew's ability to quickly enable the
transponder hijack alert code and thus ensure faster recognition of the
hijack situation by ATC. However, the FAA also has determined that
there should be a means to protect against unintentional activation of
the hijack alert code. Therefore, as an example, a motion that lifts a
guarded switch or breaks a frangible wire in the process of activation
would still be considered a single action.
Paragraph (b) of the proposed rule would require that three
conditions be met upon activation of the hijack alert code. Paragraph
(b)(1) would require that the transponder's Mode C, or altitude
reporting function, be maintained with activation of the hijack alert
code. Altitude reporting would help ATC positively identify the
hijacked airplane, and keep other aircraft safely out of its projected
path.
Paragraph (b)(2) would require that a visual indication be provided
to the flight crew as positive feedback of activation. A recent
incident has shown the FAA the importance of this feedback to the
flight crew. An airplane with a system similar to that proposed by this
rule departed on a flight without realizing that the hijack alert code
had been activated. Upon takeoff, ATC immediately detected the hijack
alert code and challenged the flight crew. The airplane subsequently
returned to its departure airport, escorted by two military fighter
aircraft. On further investigation, it was determined that the
airplane's hijack alert code had been activated unintentionally by
ground personnel. Had the flight crew been provided a visual indication
that the system had been activated, the crew could have corrected the
situation before departure, averting a cost to the airline and
disruption to the flow of the local air traffic.
Paragraph (b)(3) would require installation considerations to help
ensure continuous operation of the ATC transponder hijack alert code
once it is activated. The FAA believes that continuous operation
considerations should include inhibiting any further inputs from the
ATC transponder control panel, for example any attempts to change
beacon codes or to switch the transponder to standby, as well as for
improving the security for electrical power to the transponder
equipment. In addition, the FAA believes that resetting the ATC
transponder to a normal mode of operation should be through a ground
action by appropriate personnel. Where practical, this resetting action
should not be accessible from within the airplane. Because inhibiting
any further inputs to the transponder control panel would also prevent
turning off altitude reporting at the request of ATC, the flight crew
would be unable to comply with the requirements of Sec. 91.217(a).
Therefore, paragraph (b)(3) also would provide relief from Sec.
91.217(a) when the capability described in proposed Sec. 121.346 is
activated.
Common airplane transponder installations provide for separate
electrical power breakers in the flight deck for each of the two
installed ATC transponders. As proposed, this rule would require (upon
activating the hijack alert code) the removal of power from the
electrical breakers for the ATC transponders in the flight deck, and
the transfer of power to remotely mounted breakers not accessible from
the flight deck or cabin. This design change would prevent removing
electrical power from the transponders as flight crews would perform
when required to do so.
Because the FAA does not want to cause a complete redesign of an
airplane's electrical system, and because the FAA realizes that
transponder operation could be silenced by the removal of all
electrical power, the FAA has used the phrase ``* * * must not be able,
by reasonable means, to disable the transponder * * * '' to mean that
no person onboard the airplane should be able to remove power from the
transponder simply by pulling the associated circuit breaker.
Deactivation of the ATC transponder by means of removal of
significant airplane electrical power to the detriment of airplane
operations or obtaining access to a part of the airplane normally not
accessible by the crew, are not considered reasonable.
It is expected that most part 121 operators will add the capability
required by Sec. 121.346 to function with the existing ATC transponder
equipment installed on their airplanes. However, some operators may
desire not to alter their existing equipment configuration, and instead
choose to install an additional and dedicated ATC transponder to meet
the requirements of this proposed rule. Because one cannot assure that
a hijacker will, in fact, disable an airplane's normally operating ATC
transponder, it is possible that more than one transponder could be
operating and attempting to respond to the ATC secondary surveillance
interrogation. This could result in an inaccurate reply, and subsequent
rejection of both transponders' Mode 3A/C beacon codes by the ATC
ground interrogator. To prevent this situation, operators who choose to
install an additional and dedicated transponder to meet these proposed
requirements should provide a means to inhibit replies from all other
ATC transponders installed on the airplane at the time that this
dedicated ATC transponder is activated.
Given the importance of these proposed requirements, the FAA would
prefer to put them into effect as quickly as possible. However, the FAA
is aware that operators will need approved installation data in order
to accomplish the airplane modifications required by this proposed
rule. Therefore, the FAA proposes a compliance date of March 29, 2005.
This date also was selected to coincide with the current compliance
date for Terrain Awareness and Warning Systems (14 CFR 121.354(b)), to
minimize the amount of downtime for any given airplane. Assuming that
the final rule for this proposal is issued by December 31, 2002,
operators would have approximately 27 months to accomplish the required
modifications. This would allow approximately 6 months to support
development of the approved installation data, including for example
equipment modifications, manufacturer's service bulletins, and
Supplemental Type Certificates, and 21 months for operators to schedule
the necessary airplane downtime to complete the actual modification.
Because the airplanes in question are maintained under a continuous
[[Page 1945]]
airworthiness maintenance program, which includes a heavy maintenance
visit scheduled approximately each 12 months, the FAA believes that
operators could conclude any modifications required by this proposed
rule within the time constraints of a single heavy maintenance cycle.
The FAA believes the March 2005 compliance date would minimize the
financial burden for affected operators as well as provide a long-term
aviation safety benefit.
Initial Economic Evaluation, Regulatory Flexibility Determination,
Trade Impact Assessment, and Unfunded Mandates Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs each Federal agency
proposing or adopting a regulation to make a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act prohibits agencies from setting standards that
create unnecessary obstacles to the foreign commerce of the United
States. In developing U.S. standards, this act requires agencies to
consider international standards and, where appropriate, use them as
the basis for U.S. standards. Fourth, the Unfunded Mandates Reform Act
of 1995 requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed and final rules. An assessment
must be prepared only for rules that impose a Federal mandate on State,
local, or tribal governments, in the aggregate, or on the private
sector, likely to result in a total expenditure of $100 million or more
(adjusted for inflation) in any one year.
In conducting these analyses, the FAA determined the following: the
benefits of this proposed rule justify its costs; it would be a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866; it would be ``significant'' as defined in DOT's
Regulatory Policies and Procedures; it would not have a significant
impact on a substantial number of small entities; it would have no
effect on trade-sensitive activity; and it would not impose an unfunded
mandate on State, local, or tribal governments, or on the private
sector. These analyses, available in the docket, as summarized below.
Benefits and Costs
This proposed rule is part of a series of rulemaking actions aimed
at preventing or deterring a similar occurrence to the September 11
attacks. It is designed to ensure immediate ATC notification of a
hijack situation, and to assist in maintaining ATC tracking of the
hijacked airplanes for purposes of national security. As such, the
benefits of this proposed rule are to ensure the security of the
American public.
The cost of another catastrophic terrorist act cannot be reasonably
measured in dollars. As it was witnessed on September 11, terrorist
acts can result in the complete destruction of an aircraft with the
loss of all on board, and with collateral damage far exceeding that of
the aircraft and passengers. The main benefit related to this proposed
rule is the averted loss of life by taking corrective action.
The economic and social costs of the September 11 attacks have been
measured in the billions of dollars, and another terrorist attack could
be far more costly. Therefore, the FAA attributes the benefits of this
proposed rule to the series of rules designed to ensure the safety and
security of the American public. Such benefits cannot be reasonably
quantified nor allocated between the multiple actions taken to avoid a
repeat of the attack. In addition to preventing the extraordinary costs
of another attack, this proposed rule responds to the interest of the
U.S. Congress as specified in the Aviation and Transportation Security
Act.
The FAA estimates that 7,394 airplanes would be potentially
affected by the proposed rule. Given that the deadline to comply with
this proposed rule is tentatively set for March 2005 (27 months after
the expected issuance of the final rule), the FAA assumes that all
retrofitting expenses would be spread evenly, on a monthly basis,
between January 2003 and March 2005.
The estimated capital cost to upgrade airplanes with transponders
capable of continuous operation in hijack mode is approximately $3,000
for each airplane. This figure was provided by transponder and
transponder control manufacturers, aircraft manufacturers, and airlines
that received quotes from suppliers. Purchasing the compliant
transponder controls or software upgrade for a fleet of 7,394 airplanes
would cost $22.2 million, over the three-year period. The industry also
estimated overall certification costs for the software and hardware to
be $1,000,000, to be incurred in 2002.
The software or hardware investment is only a portion of the cost
to the industry. Locking a transponder into continuous operation is a
relatively inexpensive and easy solution. Every transponder
manufacturer claimed that a software upgrade would not require any
downtime. The transponder could be removed from the airplane in a
matter of minutes, replaced by a substitute transponder while the
software upgrades were implemented (airlines indicated an abundance of
transponders), and then reinstalled. The simplest, and quickest,
solution for some operators is a transponder software upload, which is
expected to be on the market for less than $3,000, and which could be
accomplished on the airplane (that is, the transponder would not have
to be removed). This update could be accomplished in about 5 minutes,
and would allow the transponder to lock out all other inputs after the
hijack alert code is entered.
To comply with the proposed rule, operators also would need to
install a method of rapid activation and isolate electrical power to
the transponder control equipment. The labor cost, therefore, would
likely be the same, regardless of the solution chosen, because there
would be a need to wire a method of rapid activation and isolate the
electrical power. Industry identified these tasks as being labor-
intensive. Airline technicians would require approximately 52 work
hours per aircraft to wire a method of rapid activation and/or install
a transponder control in the avionics bay. At an average hourly rate of
$50, this translates into $19.2 million to retrofit the entire affected
fleet. The upgrade would have to be performed during a ``C'' or ``D''
check, or place the aircraft out of service for a 2-day period.
Alternatively, because the task would not need to be completed in one
setting, the wiring could be performed in stages during several
overnight maintenance sessions. In addition, the parts and supplies for
this wiring would cost about $1,000 per aircraft. For the entire fleet,
this would mean approximately $7.4 million over the 3 years.
The FAA conservatively estimated that all passenger and cargo
airplanes affected by the proposed rule would incur downtime costs, at
a fleet-wide average opportunity cost of $5,178 per aircraft. This
opportunity cost of capital represents the return foregone by having
invested in the airplane rather than investing in securities. This
figure reflects a fleet-wide average value of $15.0 million per
airplane, multiplied by the industry's return on investment of 6.3
percent for the year 2000, for 2 days of lost service. The total cost
of airplane downtime is calculated to be approximately $38.3 million,
spread over the 3 years. The FAA believes the estimate of downtime is a
high-side estimate because most operators will
[[Page 1946]]
perform the conversion during normal scheduled maintenance. A
compliance date of 2005 will allow operators adequate time to schedule
the upgrades within regular maintenance intervals.
Cumulatively, the proposed rule is expected to cost the industry up
to $88.1 million ($78.9 million discounted) between 2002 and 2005.
However, the cost to the industry could be as low as $49.8 million
($44.6 million discounted), if no downtime costs were incurred.
Accordingly, the FAA believes that the proposed rule is cost-beneficial
and is necessary to ensure the level of aviation security expected by
the American public.
The FAA solicits comments from affected entities with respect to
these findings and determinations, and requests that all comments be
accompanied by clear documentation.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612,
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objective of the proposed rule and of
applicable statutes, to fit regulatory and informational requirements
to the scale of the business, organizations, and governmental
jurisdictions subject to regulation.'' To achieve that principle, the
RFA requires agencies to solicit and consider flexible regulatory
proposals and to explain the rationale for their actions. The RFA
covers a wide range of small entities, including small businesses, not-
for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear. This proposed rule will not have a significant impact on a
substantial number of small entities, therefore a full Regulatory
Flexibility Analysis is not necessary.
To determine the potential economic impact on small entities
conducting business as part 121 operators, the FAA first estimated the
number of small entities affected by this proposed rule. The FAA then
estimated the compliance cost and, subsequently, the economic impact.
Using the criterion from the North American Industry Classification
System of the Small Business Administration (SBA), the FAA identified
approximately 100 operators that qualify as small businesses, and
developed a random list of 50 air carriers to further analyze.
Estimating the compliance cost and economic impact for each small
entity involved several analytical steps. First, we obtained from the
BACK Associates Fleet Database the fleet of aircraft operated by the
small entities. Second, we estimated the purchase and installation cost
of the transponder solution and method of rapid activation for the
fleet of each small entity. The purchase cost of the transponder
solution was estimated to be approximately $3,000 per airplane, with an
additional $1,000 in parts and supplies, and $2,600 in labor.
Additionally, downtime costs were estimated at approximately $5,178 per
aircraft, resulting in a total per airplane cost of $11,778. This per
airplane cost was then multiplied by the number of affected aircraft in
the air carrier's fleet to obtain a total cost per operator.
The degree to which small entities can ``afford'' the cost of
compliance is determined by the availability of financial resources.
The implementation costs of this proposed rule could be financed, paid
for using existing company assets, or borrowed. As a proxy for the
firm's ability to afford the cost of compliance, the FAA calculated the
ratio of the total cost of the rule as a percentage of annual revenue.
The FAA expects that the cost of the proposed rule would exceed 2
percent of total revenue for no more than two entities. The FAA does
not believe that two is a substantial number of small entities.
In the interest of fully assessing the impact of this proposed rule
on small entities, the FAA explored the potential competitive impact.
The FAA examined the route structures and specific markets of the three
firms who would be most affected (as a percentage of revenues) by the
proposed rule, Chautauqua Airlines, Pan Am, and Grand Canyon Airlines.
Chautauqua Airlines operates under a codeshare agreement at major hubs
as an America West, American Airlines (since the purchase of TWA), and
U.S. Airways affiliate, whereas Pan Am is an independent airline
operating mostly at second-tier airports. These two air carriers
sometimes compete with large airlines (which would incur the same fixed
and marginal cost per airplane), but many routes served could be
considered local monopolies in which the affected airline is the only
provider of service. As a result of operating in these ``niche''
markets, an air carrier would be able to pass some of the cost to its
customers. In the more competitive air tour business, keeping costs
down is critical, because affected air carriers likely would not be
able to pass costs down to customers. However, Grand Canyon Airlines is
a dominant player in that market and its main competitors are not other
airplane tour operators, but rather helicopter tour operators, with
significantly higher operating costs. Thus, as a result of this
proposed rule, there is expected to be little change in competition,
and little change in market share within the industry.
Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C.
605(b), the Federal Aviation Administration certifies that this
proposed rule would not have a significant impact on a substantial
number of small entities.
Trade Impact Assessment
The Trade Agreement Act of 1979, 19 U.S.C. 2531-2533, prohibits
Federal agencies from engaging in any standards or related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
In accordance with the above statute, the FAA has assessed the
potential effect of this proposed rule and has determined that the
objective of this proposed rule is the safety and security of the
United States, and therefore not considered an unnecessary obstacle to
international trade.
Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 2
U.S.C. 1531-1571, requires each Federal agency, to the extent permitted
by law, to prepare a written assessment of the effects of any Federal
mandate in a proposed or final agency proposed rule that may result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more (adjusted
annually for inflation) in any one year. Section 204(a) of the Act,
requires the Federal agency to develop an effective process to permit
timely input by elected officers (or their designees) of State, local,
and tribal governments on a
[[Page 1947]]
proposed ``significant intergovernmental mandate.'' A ``significant
intergovernmental mandate'' under the Act is any provision in a Federal
agency regulation that will impose an enforceable duty upon State,
local, and tribal governments, in the aggregate, of $100 million
(adjusted annually for inflation) in any one year. Section 203 of the
Act, 2 U.S.C. 1533, which supplements section 204(a), states that
before establishing any regulatory requirements that might
significantly or uniquely affect small governments, the agency shall
have developed a plan that, among other things, provides for notice to
potentially affected small governments, if any, and for a meaningful
and timely opportunity to provide input in the development of
regulatory proposals or proposed rules.
This proposed rule does not contain any Federal intergovernmental
or private sector mandate. Therefore, the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply.
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. We have determined that there
are no new information collection requirements associated with this
proposed rule.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that this proposed rule will have no effect on ICAO
Standards and Recommended Practices or ICAO Procedures for Air
Navigation Services during normal airplane operations. However, it
should be noted that, upon activation of the hijack code, the flight
crew would not be able to perform the transponder actions outlined in
ICAO Procedures for Air Navigation Services. These actions include
modifying the Mode 3A transponder code, turning the transponder to
standby or off, or inhibiting the transponder altitude reporting
function. It is not expected that ATC personnel would request any of
these actions during an actual hijack situation.
Regulations Affecting Interstate Aviation in Alaska
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat.
3213) requires the Administrator, when modifying regulations in title
14 of the CFR in manner affecting interstate aviation in Alaska, to
consider the extent to which Alaska is not served by transportation
modes other than aviation, and to establish such regulatory
distinctions as he or she considers appropriate. Because this proposed
rule would apply to all aircraft operated under the provisions of part
121, it could, if adopted, affect interstate aviation in Alaska. The
FAA therefore specifically requests comments on whether there is
justification for applying the proposed rule differently in interstate
operations in Alaska.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, we determined that this notice of proposed
rulemaking would not have federalism implications.
Plain English
Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each
agency to write regulations that are simple and easy to understand. We
invite your comments on how to make these proposed regulations easier
to understand, including answers to questions such as the following:
? Are the requirements in the proposed regulations clearly
stated?
? Do the proposed regulations contain technical language or
jargon that interferes with their clarity?
? Would the regulations be easier to understand if they were
divided into more (but shorter) sections?
? Is the description in the preamble helpful in understanding
the proposed regulations?
Please send your comments to the address specified in the ADDRESSES
section.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies
for a categorical exclusion.
Energy Impact
The energy impact of the proposal has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been
determined that the proposal is not a major regulatory action under the
provisions of the EPCA.
List of Subjects in 14 CFR Part 121
Air carriers, Air transportation, Air traffic control, Aircraft,
Aviation safety, Federal Aviation Administration, Radio equipment,
Transponder.
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter I of Title 14, Code of Federal
Regulations, as follows:
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
1. The authority citation for part 121 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105, Sec. 104, Pub. L. 107-71, 115
Stat. 597-647.
2. Add Sec. 121.346 to read as follows:
Sec. 121.346 ATC transponder operation.
(a) After March 29, 2005, no person may operate an airplane unless
that airplane has the capability to allow each flight crewmember to
quickly activate the ATC transponder Mode 3A beacon code ``7500''
through a single action that includes protection from inadvertent
activation.
(b) Upon activation of the ATC transponder Mode 3A beacon code, as
described in paragraph (a) of this section:
(1) The ATC transponder must continue to report the airplane's
altitude;
(2) There must be a visual indication to the flight crew that the
activation has occurred; and
(3) A person onboard that airplane must not be able, by reasonable
means, to disable the transponder or change its code during the
remainder of the flight. In this case, the pilot-in-command need not
comply with the requirements of Sec. 91.217(a) of this chapter.
Issued in Washington, DC, on January 8, 2003.
John J. Hickey,
Director, Aircraft Certification Service.
[FR Doc. 03-685 Filed 1-13-03; 8:45 am]
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