[Federal Register Volume 71, Number 31 (Wednesday, February 15, 2006)]
[Proposed Rules]
[Pages 7892-7894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2178]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 121 and 135

[Docket No. FAA-2005-22593]


Mode S Transponder Requirements in the National Airspace System

AGENCY: Federal Aviation Administration (FAA), DOT.

[[Page 7893]]


ACTION: Policy notice and disposition of comments.

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SUMMARY: On October 7, 2005, the Federal Aviation Administration (FAA) 
published a document in the Federal Register announcing its long-term 
policy for Mode S transponder equipment requirements. The policy also 
sought comment on the proposed termination date of March 1, 2007, for 
operators currently exempted from the Mode S transponder requirement of 
14 CFR parts 121 and 135. This action responds to the comments and 
adopts the proposed date for which all applicable exemptions will 
terminate.

ADDRESSES: The complete docket for the proposed exemption policy may be 
examined at the DOT Docket Web site: http://dms.dot.gov. Interested 
persons may perform a Simple Search at that Web site, entering the 
docket number 22593. Comments may also be examined in Room PL-401, on 
the Plaza Level of the Department of Transportation Building, 400 
Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ida Klepper, Office of Rulemaking, 
Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591, telephone (202) 267-9677.

SUPPLEMENTARY INFORMATION

Background

    On October 7, 2005, the FAA published two notices in the Federal 
Register concerning the Mode S transponder equipment requirements in 14 
CFR parts 121 and 135. The first notice withdrew Notice No. 96-5, which 
proposed to withdraw the Mode S transponder requirements for part 135 
and certain 121 operations. The first October 7 notice summarized our 
reassessment of the requirements and articulated the basis for our 
conclusion to retain the Mode S transponder equipment requirements. 
(See 70 FR 58966.) Accordingly, the FAA withdrew Notice No. 96-5.
    The second notice published on October 7 announced our policy with 
respect to the exemptions granted from the Mode S transponder equipment 
requirements. (See 70 FR 58976.) We explained that since Notice 96-5 
was published in May 1996, the agency granted several exemptions to the 
Mode S transponder requirements because we were progressing toward the 
removal of this equipment requirement from all aircraft, except those 
aircraft operated under part 121 and that have TCAS II. As we 
subsequently revised our long-term plan for Mode S transponders, we 
sought comment on the appropriate date for which all current exemptions 
should terminate. The notice proposed March 1, 2007, as the appropriate 
termination date.

Discussion of Comments

    We received comments from AirTran Airways, Inc., Federal Express 
(FedEx), the Regional Airlines Association (RAA), and one individual. 
However, while the notice specifically sought comment on whether March 
1, 2007 was the appropriate date to terminate current exemptions, no 
comment responded to that request. Although all comments were beyond 
the scope of the request, we respond to those comments below.
    AirTran Airways fully supported that all applicable aircraft comply 
with the Mode S transponder equipment requirements.
    FedEx commented on two aspects of the notice. First, it questioned 
whether it must request an extension of its current exemption to 
continue to use the Mode C and Mode A transponders installed on its 
Caravan airplanes until March 1, 2007. (FedEx's exemption expires on 
March 1, 2006.) Second, FedEx stated that it has both Mode A and Mode C 
transponders installed on its Caravan airplanes. FedEx questioned 
whether it must replace each transponder with a separate Mode S 
transponder.
    The FAA does not intend to grant new exemptions or subsequent 
extensions of current exemptions during this interim period unless 
circumstances warrant. FedEx may continue to operate its Caravan 
airplanes with Mode A and Mode C installed, even after expiration of 
its exemption, until the transponders are no longer repairable and must 
be replaced. If FedEx finds that the transponders must be replaced 
after its exemption terminates, it must do so in accordance with the 
regulations and install a Mode S transponder. The FAA proposed the 
March 2007 date to provide a reasonable time for operators to plan for 
the need to replace outdated equipment when necessary. The FAA did not 
suggest this date to provide a vehicle for operators to quickly seek an 
exemption or extension to bide more time for which to equip their 
aircraft. We do not find that the public interest is served by simply 
granting additional exemptions for yet another year.
    It appears to be a business decision by FedEx to have two 
transponders installed in its aircraft. This is not a regulatory 
requirement. Consequently, if FedEx needs to install a Mode S 
transponder in its aircraft, it only needs to install one transponder 
under the regulations. Any election to install a second transponder is 
at FedEx's discretion.
    An individual commented that the ADS-B system is far superior to 
Mode S because it has the capability to receive other traffic and 
weather information and urged the adoption of a nationwide Capstone 
policy to benefit all operators (including general aviation) as opposed 
to enforcing outdated Mode S equipment. Also, RAA commented it would 
expect the Mode S requirement to be consistent with the FAA's long term 
objectives for ADS-B to avoid costly retrofits.
    Capstone is a successful initiative, but is a limited concept for a 
defined and remote area in southwest Alaska. Capstone does not rely on 
ADS-B technology but rather on Global Positioning Systems (GPS) and 
Wide Area Augmentation Systems (WAAS) in areas where ground sensors are 
not yet available. ADS-B is not considered an alternative to the more 
mature Mode S technology at this time due to the uncertain timeframe of 
widespread availability of the technology. FAA plans for expanding the 
ADS-B technology to the lower 48 states are still under review. Lastly, 
any requirement to equip and use ADS-B technology must be established 
through rulemaking.
    RAA requested that the agency complete a cost benefit analysis of 
the Mode S policy and provide an opportunity for public comment on that 
analysis.
    The FAA is required to economically analyze its intended 
regulations.\1\ (A regulatory evaluation, including cost-benefit 
analysis, was completed for both the final rule adopting the Mode S 
requirement \2\ and the notice proposing to withdraw the 
requirement.\3\) The FAA is not required to conduct an economic review 
because it determines not to proceed with a proposed regulation. A 
number of exemptions were granted between 1996 and 2005. The FAA could 
have simply denied all requests for exemptions until the Mode S 
transponder equipment requirement was in fact rescinded. However, we 
did not view this as supporting the public interest and concluded that 
certain exemptions were justified given the agency position on Mode S 
in 1996. Several operators have benefited from

[[Page 7894]]

the exemptions and were able to defer the equipage costs for several 
years. Since that time, technology developments and the availability of 
Mode S avionics dictate that we revise our policy. As we are retaining 
the Mode S transponder requirements, the basis for the current 
exemptions no longer exists. Operators are not entitled to an exemption 
as a matter of right. Consequently, we do not agree with RAA's 
assertion that the previous grant of exemptions is tantamount to a rule 
and thus deserving of a cost-benefit analysis. We did view, as critical 
and warranting public input, the appropriate date for which the 
exemptions would terminate and that affected operators would be 
required to install a Mode S transponder if their Mode C or Mode A 
transponder could not be repaired and specifically requested comment on 
that aspect.
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    \1\ Executive Order 12866, Regulatory Flexibility Act of 1980 (5 
U.S.C. 5601, et seq.), Trade Agreements Act (19 U.S.C. 4 Sec. Sec.  
2531-2533, Unfunded Mandate Reform Act of 1995 (Pub. L. 104-4).
    \2\ 52 FR 3380; February 3, 1987.
    \3\ 61 FR 26036; May 23, 1996.
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    RAA also stated that there are more than 130,000 general aviation 
users who are not required to install Mode S and questioned why the 
Mode S transponder are required for part 135 operators.
    The Mode S transponder requirement for part 91 operations was 
rescinded in 1992 (57 FR 34614; August 5, 1992). The agency concluded 
that the expense of requiring the equipment for all part 91 operators 
could not be justified since the vast majority of general aviation 
operators do not operate in congested airspace. Furthermore, to impose 
a Mode S requirement on all such operators would be unduly burdensome 
with little safety benefit. At this time, we do not see evidence that 
this rationale is no longer valid.
    As stated previously, any new exemption or request for extension 
will be evaluated carefully as to whether it would serve the public 
interest. Requesting an exemption simply because previous exemptions 
have been granted is not considered in the public interest.

Adoption of the March 1, 2007 Date

    The FAA concludes that March 1, 2007, provides a reasonable 
timeframe for the exemptions to terminate. We intend to judiciously 
exercise our authority in reviewing any petitions for exemption or 
requests for extension under 14 CFR 11.81.
    Operators are advised that this policy does not require the 
installation of Mode S transponders on March 1, 2007. Operators may 
continue to use Mode A and Mode C transponders beyond the expiration of 
their exemption and past March 1, 2007, until they can no longer be 
repaired and must be replaced.

    Issued in Washington, DC, on February 9, 2006.
James J. Ballough,
Director, Flight Standards Service.
 [FR Doc. E6-2178 Filed 2-14-06; 8:45 am]
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