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21 June 2002
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html
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[Federal Register: June 21, 2002 (Volume 67, Number 120)]
[Rules and Regulations]
[Page 42449-42456]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn02-9]
[[Page 42449]]
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Part V
Department of Transportation
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Federal Aviation Adminstration
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14 CFR Part 129
Security Considerations for the Flightdeck on Foreign Operated
Transport Category Airplanes; Final Rule
[[Page 42450]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 129
[Docket No. FAA-2002-12504; Amendment No. 129-33]
RIN 2120-AH70
Security Considerations for the Flightdeck on Foreign Operated
Transport Category Airplanes
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; request for comments.
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SUMMARY: This final rule requires improved flightdeck security and
operational and procedures changes to prevent unauthorized access to
the flightdeck on passenger-carrying aircraft and some cargo aircraft
operated by foreign carriers under the provisions of part 129. It is
being adopted to further enhance air carrier security in response to
the heightened threat to civil aviation in the United States. This
final rule applies the same flightdeck security enhancements to foreign
air carriers as apply to U.S. air carriers.
DATES: This final rule is effective June 21, 2002. Comments must be
received on or before August 20, 2002.
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-
2002-12504 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that FAA
received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://
dms.dot.gov. You may review the public docket containing comments to
this final rule in person in the Dockets Office between 9:00 a.m. and
5:00 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.
Comments that you may consider to be of a sensitive security nature
should not be sent to the docket management system. Send those comments
to the FAA, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW.,
Washington, DC 20591.
FOR FURTHER INFORMATION CONTACT: For part 25 issues contact Jeff
Gardlin, FAA Airframe and Cabin Safety Branch, ANM-115, Transport
Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue
SW., Renton, Washington 98055-4056; telephone (425) 227-2136, facsimile
(425) 227-1149; e-mail: jeff.gardlin@faa.gov. For parts 121 and 129
issues contact Thomas Penland, FAA Program Management Branch, AFS-260,
Flight Standards Service, 800 Independence Avenue, SW., Washington, DC
20591; telephone (202) 267-3764, facsimile (202) 267-5229, e-mail:
thomas.pendland@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
This final rule is being adopted without prior notice and prior
public comment. The Regulatory Policies and Procedures of the
Department of Transportation (DOT) (44 FR 1134; February 26, 1979),
however, provide that, to the maximum extent possible, operating
administrations of the DOT should provide an opportunity for public
comment on regulations issued without prior notice. Accordingly,
interested persons are invited to participate in this rulemaking by
submitting such written data, views, or arguments as they may desire.
Comments relating to the environmental, energy, federalism, or
international trade impacts that might result from this amendment are
also invited. Comments must include the regulatory docket or amendment
number and must be submitted in duplicate to the DOT Docket Management
System address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel concerning this final
rule, will be filed in the docket. The docket is available for public
inspection before and after the comment closing date.
The FAA will consider all comments received on or before the
closing date for comments. Late filed comments will be considered to
the extent practicable. This final rule may be amended in light of the
comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
must include a pre-addressed, stamped postcard with those comments on
which the following statement is made: ``Comments to Docket No. FAA-
2002-12504.'' The postcard will be date stamped and mailed to the
commenter.
The FAA will be holding a public meeting during the comment period
for this final rule. Details will be announced in the Federal Register.
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 four 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
FAA's web page at http://www.faa.gov/avr/arm/nprm.cfm or the Federal
Register'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 and amendment number of this
rulemaking.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requirements for
information or advice about compliance with statutes and regulations
within its jurisdiction. Therefore, any small entity that has a
question regarding this document may contact its local FAA official, or
the person listed under FOR FURTHER INFORMATION CONTACT. You can find
out more about SBFEFA on the Internet at our site, http://www.gov/avr/
arm/sbrefa.htm. For more information on SBREFA, e-mail us at 9-AWA-
SFREFA@faa.gov.
Background
On September 11, 2001, the United States experienced terrorist
attacks when aircraft were commandeered and used as weapons. These
actions demonstrated that there is a need to improve the design,
operational, and procedural security of the flightdeck. On November 19,
2001, Congress enacted Public Law 107-71, the Aviation and
Transportation Security Act (the Act), which specifies that improved
flightdeck security must be applied to aircraft operating in air
transportation.
[[Page 42451]]
Section 104 of the Act directed the FAA to issue a final rule, without
seeking public comment prior to adoption, addressing the security
requirement for aircraft that are currently required to have flightdeck
doors.
In response to section 104(a)(1) of the Act, the FAA issued
Amendment 121-288 to 14 CFR Part 121, which requires that certain U.S.
air carriers install reinforced flightdeck doors that provide intrusion
resistance and ballistic penetration resistance (67 FR 2881, January
15, 2002). Amendment 121-288 applies to transport category airplanes
operating in commercial service that are required by Sec. 121.313(f) to
have a door installed between the flightdeck and the passenger cabin
and to all cargo aircraft that have such a door installed on or after
January 15, 2002. The reinforced doors must be installed by April 9,
2003. Additionally, the amendment requires that the operators adopt
operational changes restricting access to the flightdeck in flight.
The FAA also issued a series of Special Federal Aviation
Regulations (SFAR-92) (66 FR 51546, October 9, 2001; 66 FR 52835,
October 17, 2001; 66 FR 58650, November 21, 2001; and 67 FR 12820,
March 19, 2002) that first allowed, then required, the installation of
internal locking devices on the flightdeck doors. The internal locking
devices are intended to provide enhanced flightdeck security pending
installation of the reinforced doors required by Amendment 121-288.
As discussed in the preamble to Amendment 121-288, the FAA expected
that foreign operators conducting service to and from the United States
under part 129 would have flightdeck security measures commensurate
with those of U.S. carriers.
Part 129 governs foreign operators who operate either within the
United States, or who operate solely outside the United States, but
with aircraft registered in the United States. In the case of
operations within the United States, part 129 is effectively equivalent
to part 121 in terms of the types of operations conducted and the
aircraft used. With part 121 flightdeck security improved, the FAA was
concerned that part 129 operations would be more attractive targets for
terrorist actions if security was not similarly improved. Amendment
121-288 solicited comments on this issue and clearly stated that the
FAA intended to have consistent flightdeck door security requirements
for parts 121 and 129. The FAA received no comments objecting to the
stated intention to adopt consistent standards.
The FAA has discussed in numerous international settings its intent
to have consistent flightdeck door security requirements for parts 121
and 129. Below is a listing of international meetings with European and
other authorities and industry where this issue was discussed:
October 17, 2001 FAA/Joint Aviation Authorities (JAA) Executive Board
Meeting, Rome, Italy
November 28-30, 2001 FAA/JAA Certification Management Team Meeting,
Washington, DC
January 8, 2002 Special FAA meeting with regional Asian-Pacific Civil
Aviation Authorities and industry, Kuala, Lumpur, Malaysia
January 22, 2002 FAA/European Civil Aviation Conference Security
Meeting, Washington, DC
January 23, 2002 Aircraft Certification and Flight Standards directors
visit Brussels, Belgium, and meet with La Direction
G[eacute]n[eacute]ral de l'Aviation Civile and Luftfahrt-Bundesamt
representatives, officials from European Parliament, the European
Commission's Director of Aviation Safety, and the International Air
Transport Association (IATA)
February 19-20, 2002 International Civil Aviation Organization
Aviation Security Ministerial Meeting, Montreal, Canada
March 2002 Latin American Civil Aviation Commission, Asunci[oacute]n,
Paraguay
March 5, 2002 FAA/JAA Certification Management Team Meeting,
Hoofddorp, Netherlands
March 18-20, 2002 Central America and Panama Directors General
Meeting, Mexico City, Mexico
April 3, 2002 FAA/JAA Executive Board Meeting, Washington, DC
April 3, 2002 12th International Air & Space Fair, FIDAE 2002,
Santiago, Chile
April 9, 2002 IATA Operations Council Meeting, Brussels, Belgium
April 13-14, 2002 FAA/Asia-Pacific Bilateral Partners Meeting, Tokyo,
Japan
May 7, 2002 Transport Canada Civil Aviation Annual Safety Meeting,
Niagara on the Lake, Canada
Since the adoption of Amendment 121-288, the International Civil
Aviation Organization (ICAO) has moved to adopt standards for
flightdeck security similar to those adopted by the FAA. The ICAO is an
international body consisting of 187 member countries. The ICAO adopts
standards under Amendment 97 to Annex 8 to the Convention on
International Civil Aviation (Chicago Convention). The ICAO recently
adopted standards relating to the incorporation of security into the
design of aircraft. The ICAO flightdeck security standards will require
that passenger-carrying aircraft of 60 passengers or more, or with a
maximum certificated takeoff weight of 100,000 pounds, be protected
from intrusion and ballistic threats.
The FAA wholly supports this change. This requirement, however, is
not mandatory until November 2003, 7 months after the FAA's
requirements must be met. It does not apply to cargo aircraft, as does
Amendment 121-288. In addition, there is an ICAO requirement for the
installation of flightdeck door internal locking devices by November
28, 2002. Absent additional action by the FAA, foreign operators can
operate to and from the U.S. without any mandatory flightdeck door
security measures in the interim.
The foreign operations subject to this rule use the same aircraft
and conduct the same types of operations as U.S. operators. They use
many of the same airports into and out of the U.S. They also present
targets for a repeat of the September 11, 2001 terrorist attacks.
Under SFAR 92, U.S. operators already have installed internal
locking devices to deter entry to the flightdeck. Not all foreign
operators have. After April 2003, U.S. operators will have reinforced
flightdeck doors. Foreign operators may not.
The FAA finds that it is unacceptable to create two levels of
flightdeck protection for the same operations to and from U.S.
airports. It would be irresponsible to expose passengers, and those on
the ground, to greater risks based solely upon the country of
registration of the aircraft. In this case security considerations
clearly demand that this rule be issued as a necessary complement to
Amendment 121-288 and SFAR 92. And to meet this goal of corresponding
protection, it is essential that the standards be imposed at the same
time. If the requirements do not have a synchronized compliance time,
the security risk will be shifted to the unprotected aircraft.
Unsynchronized implementation of the security measures should not
create a more attractive target for terrorists.
Because of the need to synchronize the effective dates, this rule
must be adopted immediately. The time required for public notice and
comment would make compliance by the required date impossible, and the
resulting lack of synchronization would increase vulnerability to
terrorist attack. Therefore, the FAA finds that it is necessary to
adopt a new rule for part 129 operators, without prior notice and
[[Page 42452]]
public comment, to prevent an unacceptable disparity in flight deck
security between domestic and foreign operators in the United States.
In accordance with Sec. 553(b)(3)(B) of the Administrative Procedures
Act, the requirements of notice and opportunity for comment do not
apply when the agency, for good cause, finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.''
Authority To Amend Part 129
Under the Chicago Convention, signatory states agree that the
country of registry regulates the airworthiness of aircraft. The
Convention also provides, however, that the state whose airspace is
being entered may require that its operational rules be followed. This
case presents security issues, which have always been considered
operational. The FAA has in the past required foreign air carriers to
implement additional security measures for operations to and from the
U.S. The FAA has determined that safe operation in the U.S. and on
overflights demands a minimum level of flightdeck security, in the same
way as does collision avoidance equipment, or basic radio systems.
Collision avoidance equipment and radio systems are operational
requirements. Because flightdeck security is an operational issue, the
U.S. and the FAA have authority to regulate it irrespective of the
country of registry.
Compliance with these requirements may, in fact, result in
modifications to aircraft that affect airworthiness. The issue in this
rulemaking, however, is not the airworthiness of the aircraft, but the
ability to operate the aircraft safely in the face of evident threats
to security. The ICAO itself has reinforced this position by adopting
the requirements for intrusion resistant flightdeck doors into its
requirements. Although the ICAO compliance dates differ from those
adopted here, the intent is the same.
Discussion of the Final Rule
This amendment requires changes to aircraft operated by foreign
operators in accordance with part 129, similar to changes made on
aircraft operated under part 121. The requirements consist of
enhancements to protect against forcible intrusion by persons,
ballistic penetration of the flightdeck, and access to the flightdeck
while the aircraft is operated. As discussed, the intent of these
requirements is to provide a consistent level of flightdeck security
among those aircraft that operate in parts 121 and 129. Accordingly,
the presence of a flightdeck door is essential, as is currently
mandated in Sec. 121.313. For the purposes of this requirement, the FAA
has assumed that all affected aircraft are already equipped with
flightdeck doors. To ensure a consistent level of flightdeck security,
however, Sec. 129.28(a) mandates that there be a flightdeck door on
passenger carrying operations. This requirement is intended to prevent
the removal of flightdeck doors, and is not expected to result in
installation of flightdeck doors where none existed. In the unlikely
event that an operator is compelled to install a flightdeck door as a
result of this requirement, the FAA will address such instances on a
case by case basis.
Internal Flight Deck Door Locking Devices
The SFAR 92 series rules initially permitted, and subsequently
required, quick installation of simple enhancements to the flightdeck
door for improved security. Section 129.28(a) adopts a requirement for
a similar improvement in flightdeck security. This requirement is
consistent with SFAR 92 and requires that internal locking devices be
installed within 60 days of the effective date of this amendment.
As noted in the preamble to SFAR 92, modifications required by this
provision have the potential to compromise other airworthiness
standards. As a result, Sec. 129.28(b) of this rule provides relief
from the otherwise applicable provisions of Sec. 129.13. Because the
FAA does not directly regulate airworthiness of foreign registered
aircraft, however, modifications to install the internal locking
devices may also require relief from the country of registry. Based on
correspondence with other airworthiness authorities, the FAA has
concluded that most are prepared to grant this relief, and this
amendment should not create a conflict with the standards of the local
authority. In the event that a country is not willing to grant such
relief, the FAA will work to reach a mutually acceptable solution.
Reinforced Flight Deck Doors
This amendment adopts increased long-term standards for flightdeck
intrusion resistance in keeping with standards adopted for part 121
operators in Amendment 121-288. This amendment also provides for
compliance with an alternative standard, acceptable to the
Administrator, in the event that the country of registry adopts a
different intrusion resistance standard. Operators wishing to comply
with this amendment using an alternative standard should submit their
proposal to the Manager, Transport Airplane Directorate, Aircraft
Certification Service, Federal Aviation Administration, 1601 Lind
Avenue SW., Renton, WA 98055-4056.
As also discussed in Amendment 121-288, Sec. 129.28(c) requires
design precautions to be taken to minimize the penetration of shrapnel
from a fragmentation device and small arms projectiles (i.e.,
ballistics) which might be fired through the flightdeck doors from
occupied compartments. These requirements have been adopted by ICAO and
will be effective November 2003. The standards are key elements to
protect the flightdeck from intrusion because any compromise in the
integrity of the flightdeck door from a ballistic threat could enable
an intruder to gain access to the flightdeck.
The flightdeck door is already subject to several requirements that
affect its structural integrity. These include protection during
decompression where the door may incorporate venting features to
prevent a large pressure differential; egress considerations to permit
the flightcrew to enter the cabin in the event the door becomes jammed
during an accident; and the capacity to allow rescue personnel to enter
the flightdeck in the event the flightcrew are unable to egress on
their own. The door may also be integral in meeting ventilation
requirements. After reviewing several design proposals, the FAA has
determined that all the requirements can be accommodated by proper
design of the door installation. As a result, aircraft meeting the
requirements of this rule should continue to meet all the requirements
necessary to maintain a valid certificate of airworthiness from the
country of registry.
The rule requires installation of doors meeting this standard by
April 9, 2003. The FAA evaluated several factors in establishing this
compliance time. The most important is synchronization of the
compliance date with the requirements of Amendment 121-288. The FAA
considers this synchronization to be essential. This is an aggressive
schedule; given the events of September 11, 2001, however, the issue
demands aggressive action. Also, the prior imposition of the door
design standard on part 121 operators means that manufacturers have
made substantial progress in developing reinforced doors to meet the
standard. These new doors can be installed on part 129 as well as part
121 aircraft.
Flightdeck Access Provisions
A new Sec. 129.28(d) is adopted to require procedures to restrict
access to
[[Page 42453]]
the flightdeck, except as authorized in that section. This action is
consistent with the requirements of Amendment 121-288 and adopts many
of the same provisions, but provides additional flexibility with
respect to the allowances made by the airworthiness authority of the
country of registry.
Finally, the FAA is amending Sec. 129.11(a) by adding a new
paragraph (5). This paragraph requires that the operator identify those
aircraft that are subject to these requirements in the operator's
operations specification. This requirement is necessary to identify the
specific aircraft that will be operated within the United States and on
overflights, because part 129 operators typically have some aircraft in
their fleets that do not operate within the United States.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FAA has determined that there are no requirements for
information collection associated with this rule.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with ICAO
Standards and Recommended Practices to the maximum extent practicable.
The need for improved flightdeck security is an operational and
security issue and is demonstrably necessary to provide safe operation
within the United States. Even though this amendment may result in
modifications to aircraft, the basis of the rule is to provide for safe
operation and is appropriately an operational requirement of part 129.
Regulatory Evaluation Summary
Regulatory Evaluation, Regulatory Flexibility Determination, Trade
Impact Assessment, and Unfunded Mandates Act Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs each Federal agency
proposing or adopting a regulation to first 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 use them where
appropriate as the basis for U.S. standards. Fourth, the Unfunded
Mandates Act of 1995 requires agencies to prepare a written assessment
of the costs and 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, 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 that this rule has
benefits that justify the costs; will not have a significant impact on
a substantial number of small entities; has no effect on trade-
sensitive activity; and does not impose an unfunded mandate on State,
local, or tribal governments, or on the private sector.
Benefits and Costs
This rule is part of a series of FAA rules to improve aviation
safety and security, as directed by the Aviation and Transportation
Security Act. This rule establishes the requirements for flightdeck
door enhancements on aircraft operated to and from the U.S. by foreign
operators. Accordingly, the benefits of this rule are to ensure the
safety and security of the flying public. Because this rule is one of
several being promulgated to avoid a reoccurrence of an event like that
of September 11, 2001, the benefits will be shared by the entire set of
rules designed to prevent such a recurrence.
The September 11, 2001, attacks demonstrated that foreign
terrorists may choose civil aviation as a tool as well as a target.
They have demonstrated their ability to circumvent security practices
and gain possession of improvised weapons in flight. Flightdeck doors
provide a last line of defense and can either prevent entry or delay
entry while other intervention occurs.
The most recent compelling evidence of the benefit provided by
fortifying flightdeck doors was seen on February 7, 2002, when a man on
a United Airlines flight from Miami to Buenos Aires was able to insert
his torso through the lower blowout panel of the flightdeck door. The
door had been retrofitted with a steel bar and was locked, preventing
the man from completely entering the flightdeck, and enabling the
flightcrew to subdue the intruder before another disaster occurred.
As was witnessed on September 11, 2001, terrorist acts can result
in the complete destruction of an aircraft with the loss of all on
board, with the collateral damage far exceeding that to the aircraft
and passengers. The losses from the September 11 terrorist attack are
estimated to be several billions of dollars, and the costs of another
incident could possibly be even higher due to the economic impact of
passengers choosing not to fly and thereby losing the benefits of air
transportation.
The FAA is not able to accurately estimate the actual net social
cost and the corollary benefit gained by preventing future aviation-
related terrorist acts. The insurance industry's cancellation of war
risk coverage for aircraft indicates both the difficulty of estimating
the benefits of preventing future incidents, and the broad impact of
those terrorist acts. There is, however, ample basis for judging the
likelihood of attaining benefits by averting future attacks to justify
this rule.
The rule applies to aircraft belonging to foreign carriers, engaged
in air transportation serving the U.S. As discussed previously, any of
these aircraft operated by foreign carriers could provide a likely
target for terrorists interested in their massive destructive power.
The FAA estimates that 4,689 aircraft are operated by air carriers
certificated under part 129, and could be potentially affected by this
rule. Not all of these aircraft, however, will be utilized for
operations to the U.S.
A review of the air carriers' fleets and the Official Airline Guide
allowed the FAA to significantly reduce the number of aircraft
potentially affected by this rule. The selection process eliminated
those aircraft that, although in a foreign carrier's fleet, could not
be feasibly utilized for service to the U.S. An example would include
turboprops, regional jets, and some smaller narrowbody aircraft based
in Europe and Asia. With the remaining aircraft, the FAA recognizes
that some carriers have dedicated aircraft to fly to the U.S., but
conservatively estimated that any aircraft in the carrier's fleet could
be put in service on a route to the U.S., and will therefore need to be
retrofitted. An example is the large contingent of Boeing 747s in Japan
Airlines' and British Airways' fleets. Although only a portion of those
aircraft might be dedicated to U.S. routes, the FAA assumes that they
will all be retrofitted. The aforementioned analysis resulted in an
estimate of 1,921 aircraft that will be affected by this rule. This
figure does not include aircraft in charter service.
For this analysis, the FAA assumed that the estimated costs of
future compliant flightdeck doors will be approximately $17,000,
installed. The
[[Page 42454]]
flightdeck door applications to meet the new standards have not yet
been approved; therefore, the FAA used an upper bound cost of what the
agency believes is a door that meets the intent of the rule.
Not knowing exactly how many aircraft have doors that are already
compliant with the rule, the FAA proceeded with the assumption that all
1,921 aircraft will be required to be retrofitted with new doors, at a
base case cost of approximately $17,000 each. This will result in a
base case cost of $32.7 million. Because no foreign repair stations
have applied for door certification, it is possible that several
foreign carriers will opt to have their doors installed by the
aircraft's original equipment manufacturer. This will mean an increased
cost to about $27,500 per door for narrowbody aircraft, and $39,900 for
widebody aircraft. Based on the affected fleet, the average cost per
door will be just under $36,000, plus installation. These figures,
released by Boeing and partner C&D Interiors, are consistent with a
door that far exceeds the intent of the rule, but it is still likely to
be the choice of carriers due to convenience. The upper bound cost to
foreign air carriers to purchase and install the compliant door could,
therefore, be as high as $72.0 million.
Many flightdeck door manufacturers claimed that their version of a
secure flightdeck door could be installed by airline technicians
overnight, or during an extended overnight. Some claim that their kit
can be installed in four hours or less. The plan is for the
manufacturers' mechanics to train the airlines' technicians, supervise
the first several installations, and then allow the airlines to
complete the installations on their own. Based on this information, the
FAA believes that there will be no need to take aircraft out of service
for any significant amount of time.
Commercial air carrier operators will, however, incur costs
attributable to the increased fuel consumption resulting from heavier
doors. The industry estimates that a typical door currently weighs
approximately 25 pounds, and that a new compliant door will weigh
approximately 75 pounds. The weight increase of approximately 50 pounds
will translate into increased fuel consumption for aircraft affected by
the rule. The increase in fuel consumption was calculated based on the
projected aircraft utilization of 8.6 block hours per day and rate of
fuel burn increase. At a current cost of $0.62 per gallon, and
forecasted price based on the FAA Aerospace Forecast, the additional
weight is expected to impose an additional cost to foreign air carriers
of $11.2 million ($8.3 million, discounted) over the next decade.
When all costs are accounted for, the total cost of this rule over
the next decade is expected to be $43.8 million ($40.9 million
discounted). Using an average cost of $36,000 per door, instead of the
base case cost of $17,000, the total cost of this rule would increase
to $83.1 million ($80.2 million discounted).
This rule will ensure that any attempts to enter through the
flightdeck door of foreign operated aircraft flying to the U.S. will be
very difficult. The new standards will deter terrorists from attempting
to take over the flightdeck. If an attempt is made, implementation of
the standards will significantly delay efforts to gain entry, thus
allowing additional security efforts to be implemented. In addition to
meeting a requirement of the Aviation and Transportation Security Act,
the potential benefits of this rule greatly exceed the costs.
Accordingly, the FAA believes that the rule is cost-beneficial and is
necessary to ensure the level of aviation security expected by the
American public, and passengers flying to/from the U.S. on foreign
carriers.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the 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.
If an agency determines, however, 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 rule will not have a significant impact on a substantial
number of small entities, therefore a full Regulatory Flexibility
Analysis is not necessary. The rule affects only foreign air carriers,
not U.S. businesses.
International Trade Impact Assessment
The Trade Agreement Act of 1979 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 and security, 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.
A single level of safety among aircraft, regardless of registry, is
paramount to the protection of the American public, as well as for the
passengers on-board the aircraft. In January 2002, the FAA adopted a
rule requiring, by April 2003, the hardening of cockpit doors on all
U.S. aircraft in scheduled commercial service requiring a door between
the passenger and crew compartments and transport category cargo
aircraft with flightdeck doors. U.S. carriers have not been the first
to fortify flightdeck doors. In fact, recognizing the terrorist threat,
El Al Israel Airlines' aircraft have had secure cockpits for many
years, and so have several other aircraft in various fleets around the
world.
To promote uniformity in the security of aircraft, in March 2002,
ICAO established a universally acceptable international standard,
requiring that all of the world's airlines meet the standard by
November 2003. Some carriers, such as British Airways and All Nippon
Airways, voluntarily opted to strengthen their flightdeck doors soon
after September 11. Despite the fact that some aircraft are already
compliant, the 7-month gap between the FAA regulation and ICAO mandate,
and the lack of an ICAO cargo aircraft requirement, could pose a threat
to the American public and the passengers of those carriers who are not
voluntarily protecting their flightdecks.
The FAA therefore feels that extending the same requirements
imposed on U.S. carriers to foreign carriers serving U.S. airports is
warranted. The fortification will be required by ICAO just several
months later, and is likely to be required by insurance companies
extending war risk insurance.
The FAA has assessed the potential effect of this rule and has
determined that the objective of this rule is the safety and security
of the United States; the rule is therefore not considered an
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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 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.
This 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.
Good Cause for Immediate Adoption
As discussed previously, the FAA finds that notice and public
comment on this final rule are impracticable, unnecessary, and contrary
to the public interest. The rule requires implementation of security
requirements related to protection of the flightdeck. It provides means
to protect the flightdeck from small arms fire or fragmentation
devices, as well as means to protect against intrusion by unauthorized
persons. Providing one standard for U.S. operators while allowing a
lower standard for foreign operators only invites a shift of terrorist
focus. It is essential that the rules impose the same standards at the
same time. The only way to make this requirement effective concurrently
with the previously adopted requirement for U.S. operators is to
immediately adopt this requirement.
Executive Order 13132, Federalism
The FAA has analyzed this 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 rule would not have federalism
implications.
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 rulemaking action qualifies for a
categorical exclusion.
Energy Impact
The energy impact of the rule has been assessed in accordance with
the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined
that the rule is not a major regulatory action under the provisions of
the EPCA.
List of Subjects in 14 CFR Part 129
Aircraft, Aviation safety, Reporting and recordkeeping
requirements, Safety, Transportation.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration (FAA) amends part 129 of Title 14 Code of Federal
Regulations, as follows:
PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF
U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE
1. The authority citation for part 129 is revised to read as
follows:
Authority: 49 U.S.C. 1372, 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901-44904, 44906,
44912, 46105, Pub. L. 107-71 sec. 104.
2. Section 129.11 is amended by adding a new paragraph (a)(5) to
read as follows:
Sec. 129.11 Operations specifications.
(a) * * *
(5) Registration and markings of each aircraft that meets equipment
requirements of Sec. 129.28(a).
3. In Sec. 129.13, paragraph (a) is revised to read as follows:
Sec. 129.13 Airworthiness and registration certificates.
(a) Except as provided in Sec. 129.28(b) of this part, no foreign
air carrier may operate any aircraft within the United States unless
that aircraft carries current registration and airworthiness
certificates issued or validated by the country of registry and
displays the nationality and registration markings of that country.
* * * * *
4. Part 129 is amended by adding a new Sec. 129.28 to read as
follows:
Sec. 129.28 Flightdeck security.
(a) After August 20, 2002, no foreign air carrier covered by
Sec. 129.1(a), may operate:
(1) A passenger carrying transport category aircraft within the
United States or on overflights unless the aircraft is equipped with a
door between the passenger and pilot compartment that incorporates
features to restrict the unwanted entry of persons into the flightdeck
that are operable from the flightdeck only; or
(2) A transport category all-cargo airplane, within the United
States or on overflights, that has a door installed between the pilot
compartment and any other occupied compartment on or after January 15,
2002, unless the door incorporates features to restrict the unwanted
entry of persons into the flightdeck that are operable from the
flightdeck only.
(b) To the extent necessary to meet the requirements of paragraph
(a) of this section, the requirements of Sec. 129.13(a) to maintain
airworthiness certification are waived until April 9, 2003. After that
date, the requirements of Sec. 129.13(a) apply in full.
(c) After April 9, 2003, no foreign air carrier covered by
Sec. 129.1(a) may operate a passenger carrying transport category
airplane, or a transport category all-cargo airplane that has a door
installed between the pilot compartment and any other occupied
compartment on or after June 21, 2002, within the United States or on
overflights unless the aircraft's flightdeck door installation meets
the requirements of paragraphs (c)(1) and (2) of this section or an
alternative standard found acceptable to the Administrator.
(1) Resist forcible intrusion by unauthorized persons and be
capable of withstanding impacts of 300 joules (221.3 foot-pounds) at
the critical locations on the door, as well as a 1,113-newton (250
pounds) constant tensile load on the knob or handle, and
(2) Resist penetration by small arms fire and fragmentation devices
to a level equivalent to level IIIa of the National Institute of
Justice Standard (NIJ) 0101.04.
(d) After August 20, 2002, no foreign air carrier covered by
Sec. 129.1 may operate a passenger carrying transport category
airplane, or a transport category all-cargo airplane that has a door
installed between the pilot compartment and any other occupied
compartment on or after June 21, 2002, within the United States or on
overflights unless the carrier has procedures in place that are
acceptable to the civil aviation authority responsible for oversight of
the part 129 operator to prevent access to the flightdeck except as
authorized as follows:
(1) No person other than a person who is assigned to perform duty
on the flight
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deck may have a key to the flight deck door that will provide access to
the flightdeck.
(2) Except when it is necessary to permit access and egress by
persons authorized in accordance with paragraph (d)(3) of this section,
a pilot in command of an aircraft that has a lockable flight deck door
in accordance with Sec. 129.28(a) and that is carrying passengers shall
ensure that the door separating the flight crew compartment from the
passenger compartment is closed and locked at all times when the
aircraft is being operated.
(3) No person may admit any person to the flight deck of an
aircraft unless the person being admitted is--
(i) A crewmember,
(ii) An inspector of the civil aviation authority responsible for
oversight of the part 129 operator, or
(iii) Any other person authorized by the civil aviation authority
responsible for oversight of the part 129 operator.
Issued in Washington, DC, on June 14, 2002.
Jane F. Garvey,
Administrator.
[FR Doc. 02-15524 Filed 6-18-02; 12:01 pm]
BILLING CODE 4910-15-P