[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Rules and Regulations]
[Pages 12062-12065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06184]



[[Page 12062]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2019-0239]


Statement of Policy for Authorizations to Operators of Aircraft 
That are Not Equipped With Automatic Dependent Surveillance-Broadcast 
(ADS-B) Out Equipment

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Policy statement.

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SUMMARY: This action establishes the FAA's policy for issuing air 
traffic control (ATC) authorizations to persons seeking to operate 
aircraft that are not equipped with Automatic Dependent Surveillance-
Broadcast (ADS-B) Out equipment in ADS-B airspace after January 1, 
2020.

DATES: The policy described herein will be effective January 2, 2020.

FOR FURTHER INFORMATION CONTACT:  For technical information concerning 
this action, contact David E. Gray, Surveillance and Broadcast Group 
Manager, Air Traffic Organization at (202) 267-3615.

SUPPLEMENTARY INFORMATION: 

Authority for This Action

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code (49 U.S.C.). Subtitle I, Section 
106, describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the agency's 
authority.
    The ADS-B Out equipage and performance requirements were 
promulgated under the authority described in Subtitle VII, Part A, 
Subpart I, Section 40103, Sovereignty and use of airspace, and Subpart 
III, Section 44701, General requirements. Under section 40103, the FAA 
is charged with prescribing regulations on the flight of aircraft 
(including regulations on safe altitudes) for navigating, protecting, 
and identifying aircraft, and the efficient use of the navigable 
airspace. Under section 44701, the FAA is charged with promoting safe 
flight of civil aircraft in air commerce by prescribing regulations for 
practices, methods, and procedures the Administrator finds necessary 
for safety in air commerce.
    Under Sec.  91.225(g) of Title 14 of the Code of Federal 
Regulations (14 CFR), which was issued in accordance with the FAA's 
statutory authority in sections 40103 and 44701, the FAA may issue 
authorizations allowing certain operators to deviate from the ADS-B Out 
equipage requirements of Sec.  91.225. This policy statement is within 
the scope of the FAA's authority and provides guidance to operators on 
how ATC in its operational management of the national airspace system 
(NAS) intends to exercise its discretion to issue authorizations to 
operators of aircraft that are not equipped with ADS-B Out equipment.

I. Background

    In 2010, the FAA issued a final rule prescribing equipage 
requirements and performance standards for ADS-B Out equipment on 
aircraft operating in certain airspace after January 1, 2020.\1\ ADS-B 
Out equipment is an advanced surveillance technology that combines an 
aircraft's positioning source, aircraft avionics, and a ground 
infrastructure to create an accurate surveillance interface between 
aircraft and air traffic control (ATC). Use of ADS-B Out will move ATC 
from a radar-based system to an aircraft location system based on 
satellite-derived position and velocity.
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    \1\ Final Rule, Automatic Dependent Surveillance-Broadcast (ADS-
B) Out Performance Requirements to Support Air Traffic Control 
(ATC), 75 FR 30160 (May 28, 2010).
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    Aircraft equipped with ADS-B Out equipment are able to continually 
broadcast information, such as identification, current position, 
altitude, and velocity, through an onboard transmitter, which can be 
received by ADS-B ground stations and by other aircraft appropriately 
equipped to receive this information. ADS-B Out provides air traffic 
controllers with real-time position information that is, in most cases, 
more accurate than the information available with current radar-based 
systems. With more accurate information, ATC will be able to position 
and separate aircraft with improved precision and timing. With specific 
and limited exceptions, ADS-B Out equipage requirements and performance 
standards apply to all aircraft operating in certain U.S. airspace.\2\ 
Therefore, these requirements are applicable to operations conducted by 
both domestic and foreign operators. The surveillance provided by ADS-B 
Out will enhance ATC's ability to surveil and separate aircraft so that 
efficiency and capacity will increase beyond current levels to meet the 
predicted demand for ATC services while continually maintaining safety. 
To obtain the efficiency and capacity benefits that can be realized 
with ADS-B Out, all aircraft must be equipped with ADS-B Out equipment 
when operating in rule airspace.
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    \2\ ADS-B Out airspace consists of (1) Class A, B, and C 
airspace areas (within the United States and from the coastline of 
the United States out to 12 nautical miles), (2) the airspace within 
the Mode C veil (within 30 nautical miles of an airport listed in 
appendix D, section 1 of part 91) from the surface upward to 10,000 
feet MSL, (3) above the ceiling and within the lateral boundaries of 
a Class B or Class C airspace area designated for an airport upward 
to 10,000 feet MSL, (4) Class E airspace within the 48 contiguous 
states and the District of Columbia at and above 10,000 feet MSL, 
excluding the airspace at and below 2,500 feet above the surface, 
and (5) Class E airspace at and above 3,000 feet MSL over the Gulf 
of Mexico from the coastline of the United States out to 12 nautical 
miles. For purposes of Sec.  91.225, the United States includes 
Puerto Rico and the U.S. possessions. 14 CFR 1.1.
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    Section 91.225 of Title 14 of the Code of Federal Regulations (CFR) 
prescribes the ADS-B Out equipment and use requirements, and Sec.  
91.227 prescribes the ADS-B Out equipment performance requirements. 
After January 1, 2020, unless otherwise authorized by ATC, all aircraft 
operating in the airspace identified in Sec.  91.225 must comply with 
the ADS-B Out equipage and performance requirements.\3\ The FAA adopted 
a provision in Sec.  91.225(g), however, that allows persons to request 
authorization from ATC to operate in ADS-B Out airspace with aircraft 
that do not meet the ADS-B Out requirements. Section 91.225(g) 
addresses two types of aircraft that may not meet the ADS-B Out 
requirements: Aircraft with inoperative ADS-B Out equipment and 
aircraft that have not been equipped with ADS-B Out equipment. This 
notice announces the FAA's policy for handling requests for 
authorization from operators of aircraft that are not equipped with 
ADS-B Out equipment.
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    \3\ These requirements apply to all aircraft operating in ADS-B 
Out airspace including foreign-registered aircraft.
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    Under Sec.  91.225(g), for the operation of aircraft that are not 
equipped with ADS-B Out equipment, the operator must make the request 
for an authorized deviation at least 1 hour before the proposed 
operation to the ATC facility with jurisdiction over the airspace. The 
provision in Sec.  91.225(g) gives ATC the flexibility to address 
deviation requests from non-equipped aircraft on a case-by-case 
basis.\4\ In addition, in order to assist operators in making a 
decision whether to equip with ADS-B Out equipment, the preamble 
explained that ATC might not be able to grant

[[Page 12063]]

authorizations for a variety of reasons, including but not limited to 
workload, runway configurations, air traffic flows, and weather 
conditions.\5\ The ADS-B Out final rule contemplated that those 
operators with a need to operate regularly in airspace where ADS-B Out 
is required would equip, and that an exception for per-operation 
authorizations was designed to accommodate unforeseen or rare 
circumstances.
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    \4\ See Notice of Proposed Rulemaking, Automatic Dependent 
Surveillance-Broadcast (ADS-B) Out Performance Requirements to 
Support Air Traffic Control (ATC), 72 FR 56947, 56957-56959 (Oct. 5, 
2007) (explaining that an operator may request an ATC authorization 
to operate in the airspace and the FAA will address the requests on 
a case-by-case basis).
    \5\ Final Rule, 75 FR at 30167; NPRM, 72 FR at 66959
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II. Discussion of the Policy

    After January 1, 2020, unless otherwise authorized by ATC, all 
aircraft operating in the airspace identified in Sec.  91.225 must 
comply with the ADS-B Out equipage and performance requirements. 
Nothing in this notice shall be deemed to modify or alter those 
requirements established in the 2010 final rule. The purpose of this 
notice is only to announce publicly how ATC will manage Sec.  91.225(g) 
and issue authorizations to operators of aircraft that have not 
equipped with ADS-B Out equipment.
    In this notice, the FAA establishes: (1) A general policy that 
would apply to all operators of non-equipped aircraft seeking 
authorization to operate in ADS-B Out airspace; (2) specific policies 
for handling authorization requests from scheduled operators; (3) 
policies for other than scheduled operations at capacity constrained 
airports; (4) guidance on the provision of air traffic services to non-
equipped aircraft that have failed to obtain an authorization to 
operate in ADS-B Out airspace; and (5) plans for implementation of the 
authorization policy.

A. General Policy

    In accordance with the ADS-B Out final rule, the FAA anticipates 
that operators who intend to operate routinely in ADS-B Out airspace 
have been taking the necessary steps to equip aircraft with ADS-B Out 
equipment to ensure there is no disruption to their operations. The 
regulatory provision for issuing authorizations to operators of non-
equipped aircraft addresses rare instances in which an operator who 
does not routinely operate in ADS-B Out airspace has a need to do so. 
As contemplated in the ADS-B Out rulemaking, the per-operation 
authorizations were not intended to support routine and regular 
operations of non-equipped aircraft in ADS-B Out airspace.
    To that point, the FAA has not planned nor does it plan to expend a 
significant amount of its limited budgetary resources to establish a 
new system to issue authorizations for the small number of operators of 
non-equipped aircraft seeking occasional access to ADS-B Out airspace. 
The FAA anticipates that the need to obtain authorizations under Sec.  
91.225(g) will quickly diminish over time as universal equipage grows. 
Likewise, the FAA does not intend to divert ATC facility resources from 
other critical functions that directly support air traffic controllers 
performing their duties in order to prioritize and manage 
authorizations for operators of non-equipped aircraft. Notably, as 
plans to divest radar begin to take effect, the authorization policy 
will necessarily evolve as accommodation of non-equipped aircraft in 
ADS-B Out airspace becomes more complicated.
    Under the 2010 ADS-B Out rulemaking, the FAA determined that, to 
the maximum extent possible, operators of equipped aircraft should not 
be penalized or have their ATC services affected by operators who 
choose not to equip their aircraft with ADS-B Out equipment. Therefore, 
an ATC authorization allowing an operator to deviate from the equipage 
requirements of Sec.  91.225 must be requested and obtained prior to 
the operation. Consistent with the rule's requirement that an operator 
request an authorization at least 1 hour prior to the operation, the 
policy will preclude an operator from requesting and the FAA from 
issuing in-flight authorizations to operators of non-equipped aircraft. 
Additionally, in view of the resource issues identified earlier, the 
FAA will not accept requests for authorizations by telephone to ATC 
facilities.

B. Policy for Scheduled Operations in ADS-B Out Airspace

    Consistent with the rule, scheduled operators may request an 
authorization to deviate from the ADS-B Out equipage requirements. 
However, as previously noted, the rule requires an operator to make an 
authorization request at least 1 hour before each proposed operation to 
the ATC facility that has jurisdiction over the airspace. Given the 
express language of the regulation, the rule as written was not 
intended to accommodate scheduled operators who are transiting ADS-B 
Out airspace under the jurisdiction of multiple ATC facilities on a 
routine or regular basis. Therefore, as discussed in this section and 
consistent with the statements in the NPRM indicating that not all 
requests for authorization will be granted, the FAA will not issue 
daily or routine authorizations for scheduled operations. While ATC 
will consider requests from scheduled operators, it is very unlikely to 
issue an authorization to a scheduled operator on more than an 
occasional basis and is most likely to issue an authorization when a 
compelling or unanticipated need to deviate from the ADS-B Out equipage 
requirements exists.
    The FAA's policy for handling authorization requests from scheduled 
operators is consistent with the per-operation, facility-level relief 
established in the rule and with the general policy discussed above, 
which supports the issuance of authorizations only for limited 
operations in ADS-B Out airspace. A scheduled operator offers in 
advance of the operation the departure location, departure time, and 
arrival location.\6\
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    \6\ Section 110.2 of 14 CFR defines a scheduled operation as any 
common carriage passenger-carrying operation for compensation or 
hire conducted by an air carrier or commercial operator for which 
the certificate holder or its representative offers in advance of 
the departure location, departure time, and arrival location. It 
does not include any passenger-carrying operation that is conducted 
as a public charter operation under part 380 of this chapter.
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    The preamble to the final rule made it apparent that no operator is 
guaranteed an ATC authorization to deviate from ADS-B Out equipage 
requirements. Because ATC may not be able to grant every authorization 
request, it would be detrimental for an operator to make its scheduled 
operations into ADS-B Out airspace dependent solely on obtaining an ATC 
authorization to deviate from the equipage requirements of Sec.  
91.225. Relying solely on an ATC authorization--which may not be 
granted--to operate a non-equipped aircraft in ADS-B Out airspace would 
put the operator's scheduled operations in jeopardy.
    Furthermore, the final rule that promulgated Sec.  91.225 was 
issued on May 28, 2010. Therefore, scheduled operators have known for 
over eight years that authorization requests under Sec.  91.225(g) will 
be handled on a case-by-case basis. Likewise, since 2010, air carriers 
and commercial operators conducting scheduled operations have known 
which airspace and airports will require them to use aircraft equipped 
with ADS-B Out equipment. Because with very limited exceptions 
scheduled operations take place almost wholly within ADS-B Out airspace 
(i.e., over 10,000 feet and at airports located within Class B and C 
airspace), these operators--understanding that authorizations were not 
guaranteed to

[[Page 12064]]

be issued in all instances--should have planned to equip any aircraft 
routinely used in scheduled operations. Therefore, while a scheduled 
operator may request a deviation from the ADS-B Out equipage 
requirements on a per-operation basis in accordance with Sec.  
91.225(g), it is unlikely that the FAA will issue repeated 
authorizations to deviate from ADS-B Out equipage requirements.\7\ 
Accordingly, operators who conduct routine and regular operations into 
ADS-B Out airspace should be taking the necessary steps to equip their 
aircraft with ADS-B Out equipment to ensure their scheduled operations 
are not disrupted.
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    \7\ Scheduled operators with a compelling or unanticipated need 
to enter ADS-B Out airspace with a non-equipped aircraft will be 
considered differently under this policy.
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    The FAA notes that, for scheduled operations into slot controlled 
and slot facilitated airports subject to minimum usage requirements,\8\ 
this policy makes it even more critical for operators to adjust their 
fleets to ensure they are using ADS-B Out equipped aircraft for any 
scheduled operations.\9\
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    \8\ Section 93.213(2) of 14 CFR defines ``slot'' as the 
``operational authority to conduct one IFR landing or takeoff 
operation each day during a specific hour or 30-minute period at one 
of the High Density Traffic Airports, as specified in subpart K of 
[part 93].''
    \9\ Pursuant to Sec.  93.227 of 14 CFR and FAA orders, an 
operator's slots at an airport may be subject to withdrawal if the 
operator does not utilize the slot at least 80 percent of the time 
over the time-frame authorized by the FAA.
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C. Policy for Operations Other Than Scheduled Operations in ADS-B Out 
Airspace

    Operators who are not conducting scheduled operations 
(``unscheduled operators'') \10\ and are seeking to operate non-
equipped aircraft in rule airspace may request ATC authorizations 
consistent with Sec.  91.225(g). However, operators should be aware 
that requests for authorization to operate aircraft that are not 
equipped with ADS-B Out equipment might not be accommodated for a 
variety of reasons. The FAA notes that many commercial operators 
currently conduct regular but unscheduled operations in ADS-B Out 
airspace. In accordance with the requirements of the ADS-B Out 
rulemaking, these operators, like scheduled operators, should be 
equipping their aircraft rather than relying on repeated ATC 
authorizations to enter ADS-B Out airspace. Under the rule, the FAA 
determined that, to the maximum extent possible, operators of equipped 
aircraft should not be penalized or have their ATC services affected by 
operators who choose not to equip their aircraft with ADS-B Out 
equipment. Therefore, under the policy, ATC will make determinations as 
necessary to ensure equipped operators are not adversely impacted and 
that efficiency of operations is maintained.
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    \10\ For purposes of this notice, an ``unscheduled operator'' 
means an operator conducting an operation that does not meet the 
definition of scheduled operation as defined in 14 CFR 110.2. These 
operations include other commercial operations (e.g. part 135 
operations) as well as general aviation operations conducted under 
part 91.
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    Consistent with this principle, it will be difficult for 
unscheduled operators conducting operations at capacity constrained 
airports to obtain authorizations. Given the complex and dynamic nature 
of operations within this airspace, it is unlikely that ATC will 
prioritize authorization requests for unequipped aircraft over 
providing air traffic services to aircraft equipped with ADS-B Out 
equipment. Unscheduled operators with a need to access this airspace on 
more than an occasional basis should equip with ADS-B Out to ensure no 
disruption to operations.
    For purposes of this notice, a capacity constrained airport is an 
airport that is operating at 85% capacity or greater. Based on FAA's 
current analysis, this includes the following airports: Boston Logan 
International Airport (BOS); Charlotte Douglas International Airport 
(CLT); Chicago O'Hare International Airport (ORD); Dallas/Fort Worth 
International Airport (DFW); Hartsfield-Jackson Atlanta International 
Airport (ATL); John F. Kennedy International Airport (JFK); LaGuardia 
Airport (LGA); Los Angeles International Airport (LAX); McCarran 
International Airport (LAS); Philadelphia International Airport (PHL); 
Ronald Reagan Washington National Airport (DCA); San Diego 
International Airport (SAN); San Francisco International Airport (SFO); 
and Seattle-Tacoma International Airport (SEA).
    These airports are where demand is consistently at 85% capacity or 
greater, and operations are often constrained. For that reason, it is 
far more likely that the FAA will deny rather than issue authorization 
requests from unscheduled operators to operate non-equipped aircraft at 
these airports. The FAA advises that unscheduled operators with a 
pressing or routine need to access ADS-B Out airspace near these 
airports should take the appropriate steps to equip before January 2020 
in order to ensure that their operations are not disrupted.
    For ADS-B Out airspace outside capacity constrained airports, the 
FAA reiterates that ATC might not issue a requested authorization. For 
this reason, the only way to ensure seamless access to ADS-B Out 
airspace is to equip pursuant to Sec. Sec.  91.225 and 91.227.

D. Continued Provision of ATC Services to Non-Equipped Aircraft

    ATC is responsible for providing services to aircraft to enable the 
safe and efficient operation of the NAS. Therefore, under the 
authorization policy, ATC will continue to provide air traffic services 
to all aircraft operating within its airspace, including those aircraft 
that have not equipped with ADS-B Out equipment and have not obtained 
proper authorizations under Sec.  91.225(g). The FAA notes, however, 
that the provision of air traffic services to a non-equipped operator 
whose filed flight plan transits ADS-B Out airspace will not constitute 
authorization under Sec.  91.225(g). Although ATC will be able to 
observe that an aircraft is not equipped with ADS-B Out equipment, ATC 
will not be responsible for determining whether non-equipped aircraft 
operating in the NAS are properly authorized to operate in ADS-B Out 
airspace.\11\ The provision of air traffic services is separate from 
and will not constitute an authorization to deviate from the ADS-B Out 
equipage requirements while operating in that airspace. The non-
equipped operator, as always, will have the responsibility to ensure 
compliance with the regulations,\12\ which includes obtaining a 
preflight authorization in accordance with Sec.  91.225(g).
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    \11\ The FAA notes that, if an ATC facility within capacity 
constrained airspace has determined that it will not issue 
authorizations at a given time on a given day, non-equipped aircraft 
operating in that airspace will be presumed to have acted in non-
compliance with Sec.  91.225. Notwithstanding the presumed non-
compliance, ATC will provide air traffic services to the aircraft. 
As noted, the provision of services will not overcome the operator's 
failure to obtain an authorization.
    \12\ It is the pilot's responsibility to comply with the 
applicable requirements of Title 14 of the Code of Federal 
Regulations. Receiving ATC services or an ATC clearance does not 
relieve a pilot of his or her responsibility to comply with the 
regulations.
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E. Implementation

    The FAA's Air Traffic Organization is responsible for issuing the 
preflight authorizations under Sec.  91.225(g). The FAA's Aviation 
Safety Organization is responsible for providing post-flight oversight 
of the operations. Any operator who operates a non-equipped aircraft in 
ADS-B Out airspace without obtaining a preflight authorization in 
accordance with Sec.  91.225(g)(2) will be presumed to have violated 
the regulations.\13\ The Administrator is

[[Page 12065]]

authorized to assess sanctions for such violations pursuant to the 
FAA's statutory authority. General guidance applicable to FAA sanction 
determinations is in FAA Order 2150.3C, FAA Compliance and Enforcement 
Program, Chapter 9.\14\
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    \13\ The FAA acknowledges that, in certain circumstances, an 
operator of a non-equipped aircraft who had not planned to enter 
rule airspace and, therefore, did not seek a preflight 
authorization, may receive an in-flight clearance that would place 
the aircraft in airspace for which ADS-B Out equipage is required. 
Because ATC needs the flexibility to address real-time conditions in 
the NAS (e.g., adverse weather conditions), ATC may elect to provide 
a clearance into ADS-B airspace. The FAA advises that the pilot 
should accept the clearance and immediately advise ATC of the lack 
of authorization. The FAA will normally not take enforcement action 
for non-equipage in these circumstances.
    \14\ Order 2150.3C applies to the compliance and enforcement 
programs and activities of all FAA offices that have statutory and 
regulatory compliance and enforcement responsibilities.
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    The FAA continues to develop the process and system for requesting 
authorizations.\15\ The system under development will issue or deny an 
authorization consistent with the policy set forth in this 
document.\16\ An operator of a non-equipped aircraft will not be 
allowed to operate in ADS-B Out airspace without a preflight 
authorization obtained through the system. If an operator obtains an 
authorization through the system to enter certain ADS-B Out airspace, 
the operator will be presumed to have complied with the requirements of 
Sec.  91.225(g) with respect to that ADS-B Out airspace. Having a 
system that issues trackable authorizations and denials to the operator 
will also enable the FAA to provide proper oversight to ensure 
compliance.
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    \15\ The FAA notes that simply obtaining a preflight clearance 
from ATC under another regulatory requirement will not satisfy the 
requirement for a preflight authorization to deviate from Sec.  
91.225(g). For example, if ATC has provided the operator of a non-
equipped aircraft a pre-departure ATC clearance under Sec.  91.173 
(ATC clearance and flight plan required), that clearance would not 
constitute an authorization to operate the non-equipped aircraft in 
the ADS-B Out airspace. Likewise, a preflight authorization to 
operate a non-equipped aircraft in ADS-B Out airspace would not 
constitute an ATC clearance for entering Class B airspace. If an 
operator plans to operate a non-equipped aircraft in airspace that 
requires ADS-B Out and an ATC clearance, the responsibility is on 
that operator to obtain both a preflight authorization pursuant to 
Sec.  91.225(g)(2) and an ATC clearance.
    \16\ This policy will not result in additional costs to 
operators affected by the 2010 ADS-B Out rule establishing equipage 
and performance requirements that apply to all aircraft operating in 
certain U.S. airspace. The FAA determined these aircraft will equip 
in order to operate in ADS-B Out airspace. These costs are 
summarized in the final rule (75 FR 30160) and detailed in the Final 
Regulatory Impact Analysis available in the docket (FAA-2007-29305).
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F. Summary

    After January 1, 2020, unless otherwise authorized by ATC, all 
aircraft operating in the airspace identified in Sec.  91.225 must be 
equipped with ADS-B Out equipment. Pursuant to Sec.  91.225(g), 
however, persons may request authorization from ATC to operate in ADS-B 
airspace with aircraft that do not transmit ADS-B Out.
    To operate in ADS-B airspace, an operator who has chosen not to 
equip with ADS-B Out equipment must obtain a preflight authorization in 
accordance with Sec.  91.225(g). The operator has the responsibility to 
obtain a preflight authorization from ATC for all ADS-B Out airspace on 
the planned flight path. For the reasons explained above, however, the 
FAA will be very unlikely to issue routine and regular authorizations 
to scheduled operators seeking to operate non-equipped aircraft in rule 
airspace. Likewise, although unscheduled operators may request 
authorizations for airspace at capacity constrained airports, issuance 
of an authorization may prove difficult to obtain.
    The FAA continues to develop the specific mechanisms that would be 
used to issue authorizations to operators of aircraft that are not 
equipped with ADS-B Out equipment.

    Issued in Washington, DC, on March 26, 2019.
Teri L. Bristol,
Chief Operating Officer, Air Traffic Organization.
[FR Doc. 2019-06184 Filed 3-29-19; 8:45 am]
 BILLING CODE 4910-13-P


