[Federal Register Volume 72, Number 165 (Monday, August 27, 2007)]
[Proposed Rules]
[Pages 48950-48952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16846]


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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 [email protected].

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]
BILLING CODE 4910-13-P