[Federal Register: December 30, 2002 (Volume 67, Number 250)]
[Rules and Regulations]
[Page 79821-79825]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de02-11]
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Part V
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 129
Security Consideration for the Flightdeck on Foreign Operated Transport
Category Airplanes; Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 129
[Docket No. FAA-2002-12504; Amendment No. 129-36]
RIN 2120-AH70
Security Considerations for the Flightdeck on Foreign Operated
Transport Category Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
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SUMMARY: This action clarifies the applicability of regulations
addressing flightdeck security and operational procedures for foreign
carriers operating to and from the United States. It also makes other
technical corrections to the regulation.
DATES: This rule is effective on December 30, 2002. Comments must be
received by February 28, 2003.
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-12504 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 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The Dockets
Office is on the plaza level of the Nassif Building at the Department
of Transportation at the above address. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
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, D.C. 20591.
FOR FURTHER INFORMATION CONTACT: Mike E. Daniel, International Programs
and Policy Office, AFS-50, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 385-4510; facsimile (202) 385-4561; e-mail
mike.e.daniel@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.
If you want the FAA to acknowledge receipt of your comments on this
proposal, include with your comments a pre-addressed, stamped postcard
on which the docket number appears. We will stamp the date on the
postcard and mail it to you.
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by taking the
following steps:
(1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) web page (http://dms.dot.gov/search
).
(2) On the search page type in the last 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 FAA to comply with small entity requests 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 their local FAA official, or the person
listed under FOR FURTHER INFORMATION CONTACT. You can find out more
about SBRFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm.
For more information on SBREFA, e-mail us 9-AWA-
SBREFA@faa.gov.
Background
On June 21, 2002, the FAA issued a final rule to require improved
flightdeck security and operational and procedure changes to prevent
unauthorized access to the flightdeck on passenger carrying aircraft
and some cargo aircraft operated by foreign carriers under the
provisions of 14 CFR part 129 (67 FR 42450; Amendment No. 129-33). Part
129 was amended with the objective of ensuring that foreign operators
conducting service to and from the United States under 14 CFR part 129
would have flightdeck security measures commensurate with those of 14
CFR part 121 carriers operating in the United States.
In addition to opening a 60-day comment period for Amendment 129-
33, the FAA held a public meeting on July 30 to allow the public an
additional opportunity to participate in the rulemaking process. A copy
of the transcript of the public meeting has been placed into the
docket; comments from the public meeting as well the comments in the
docket will be dispositioned, and a notice will be published by the FAA
in the Federal Register.
After reviewing several issues raised at the public meeting, the
FAA decided that certain issues need to be clarified immediately.
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Applicability
Part 129 governs foreign operators who operate either within the
United States, except for overflights, 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, except for
overflights, part 129 is effectively equivalent to both part 121 and
135 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.
In Amendment 129-33, the FAA's intent was ``to have consistent
flight deck security requirements for parts 121 and 129.'' This action
is consistent with, but more restrictive than the new International
Civil Aviation Authority (ICAO) Security of the Flight Crew Compartment
standards, which will apply only to airplanes with a maximum takeoff
weight of 45,500 kg (about 100,000 lbs) or with a passenger seating
capacity greater than 60, because the ICAO requirement is not inclusive
of all the types of airplanes that would be required to operate under
part 121 in the United States. Even though part 129 covers the
operational equivalent of both parts 121 and 135, the FAA has not
applied the flightdeck security requirements to carriers operating
under part 135 in the United States. In amendment No. 129-33, no
distinction was made regarding foreign air carrier operations that are
equivalent to part 135 operations.
Section 129.28(a) mandates that there be a flightdeck door on
passenger carrying operations'' that parallels the requirement in Sec.
121.313. We also indicate ``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.'' As the rule is
presently written, however, it would require doors meeting the
requirements of Sec. 129.28 on such aircraft as Learjets, Falcons,
etc., and helicopters, which was not the FAA's intent. To resolve this
situation, the FAA is adding a new paragraph to restrict the
applicability to transport category airplanes with 20 or more passenger
seats. While this is not an exact correlation with part 121, it is a
reasonable approximation, and there are currently no known airplane
types that would be excluded under part 129 that are required to comply
under part 121.
In addition, the final rule uses the term, ``transport category
aircraft,'' which includes transport category rotorcraft (type
certificated under part 29), as well as transport category airplanes.
As with the parallel part 121 rule, the FAA intended that the
requirements apply only to transport category airplanes, and Sec.
129.28 is revised accordingly.
Finally, the flightdeck security requirements in Amendment 129-33
apply to any passenger carrying transport category aircraft
``operated'' by the foreign air carrier. This would include operations
of newly manufactured aircraft that are being delivered to the foreign
air carrier, and would have the effect of requiring installation of the
strengthened flightdeck door before the delivery flight. In many cases,
the foreign air carriers, like their domestic counterparts, have made
arrangements to have the door strengthened by a third party after
delivery of the airplane, and the FAA did not intend to interfere with
these arrangements. As with the part 121 regulation, the FAA intends
that the door be strengthened before entering revenue service.
Therefore, Sec. 129.28(a) and (c) are amended to create an exception
for newly manufactured airplanes on non-revenue delivery flights.
Elimination of the Overflight Provision
Section 129.1(a) covers foreign carrier operations ``within the
United States,'' which conflicts with the requirement in Sec. 129.28
that imposes the requirement both for operations ``within the United
States or on overflights.'' In general, the FAA has no practical means
of conducting surveillance of foreign carriers other than on the ground
within the United States. Accordingly, we are changing the phrase
``within the United States or on overflights'' to read ``within the
United States, except for overflights'' in Sec. 129.28.
Compliance Date
In section 129.28(a)(2), we indicate that foreign carriers cannot
operate in the United States without the door installed between the
pilot compartment and any other occupied compartment after January 15,
2002. The intent of the compliance date in Sec. 129.28 (a)(2) for all-
cargo airplanes was to prevent a foreign carrier from removing a door
that was installed as of that date. Amendment 129-33, which imposed the
requirement, was not issued until June 21, 2002, and no advance public
notice of this requirement was provided to the foreign carriers. To
resolve this issue, the FAA is changing the compliance date contained
in paragraph Sec. 129.28 (a)(2) to read ``June 21, 2002,'' the
issuance date of the final rule.
Justification for Immediate Adoption
This action is necessary to clarify the applicability and
requirements of the existing part 129 regulations. The deadline for
compliance with these regulations is imminent, and delaying issuance of
this action pending notice and public comment would place numerous
affected operators in potential non-compliance, contrary to the FAA's
intent in adopting the part 129 regulations. Because the circumstances
described herein warrant immediate action by the FAA, the Administrator
finds that notice and public comment under 5 U.S.C. 553(b) are
impracticable and contrary to the public interest. Further, the
Administrator finds that good cause exists under 5 U.S.C. 553(d) for
making this final rule effective immediately upon publication.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to implement 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. This amendment clarifies Amendment 129-33.
Economic Evaluation, Regulatory Flexibility Determination, Trade Impact
Assessment, and Unfunded Mandates Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs each Federal agency to
propose or adopt a regulation only upon 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 (19 U.S.C. section 2531-2533) prohibits agencies
from setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act requires agencies to consider international standards and, where
appropriate, use them as the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
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governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation.)
In conducting these analyses, FAA has determined this rule (1) Has
benefits which justify its costs; (2) is a ``significant regulatory
action'' as defined in Executive Order 12866 and is ``significant'' as
defined in DOT's Regulatory Policies and Procedures; (3) will not have
a significant impact on a substantial number of small entities; (4)
will have little effect on international trade; and (5) does not impose
an unfunded mandate on state, local, or tribal governments, or on the
private sector.
For regulations with an expected minimal impact the above-specified
analyses are not required. The Department of Transportation Order DOT
2100.5 prescribes policies and procedures for simplification, analysis,
and review of regulations. If it is determined that the expected impact
is so minimal that the proposal does not warrant a full evaluation, a
statement to that effect and the basis for it is included in the
proposed regulation. The FAA has determined that there are no costs
associated with this final rule. Instead, this rule change relieves
operators of foreign registered airplanes from costs that would have
been inadvertently imposed on them in the adoption of Amendment 129-33.
This change effectuates the original intent of Amendment 129-33
revisions.
Regulatory Flexibility Act
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
businesses, 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 side-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 agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA. However, if an agency determines that a proposed or final rule
is not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
This action is cost relieving. Therefore, the FAA certifies that
the rule will not have a significant economic impact on a substantial
number of small entities.
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, 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. The FAA has assessed the potential effect of this rulemaking
and has determined that it will have a minimal effect on international
trade.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.''
This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply.
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.
Executive Order 13132, Federalism
The FAA has analyzed this final 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, or 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 final rule does 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 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 continues 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. 104.49 U.S.C.
2. Revise Sec. 129.28 to read as follows:
Sec. 129.28 Flightdeck security.
(a) After August 20, 2002, except for a newly manufactured airplane
on a non-revenue delivery flight, no foreign air carrier covered by
Sec. 129.1(a), may operate:
(1) A passenger carrying transport category airplane within the
United States, except for overflights, unless the airplane 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,
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except for overflights, that has a door installed between the pilot
compartment and any other occupied compartment on or after June 21,
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, except for a newly manufactured airplane
on a non-revenue delivery flight, 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, except
for overflights, unless the airplane'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, except for overflights,
unless the carrier has procedures in place that are acceptable to the
civil aviation authority responsible for oversight of the foreign air
carriers operating under this part 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 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 airplane 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
airplane is being operated.
(3) No person may admit any person to the flight deck of an
airplane 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.
(e) The requirements of paragraph (a) through (d) except (d)(3), do
not apply to transport category passenger carrying airplanes originally
type certificated with a maximum passenger seating configuration of 19
seats or less, or to all-cargo airplanes with a payload capacity of
7,500 pounds or less.
Issued in Washington, DC, on December 23, 2002.
Marion Blakey,
Administrator.
[FR Doc. 02-32946 Filed 12-27-02; 8:45 am]
BILLING CODE 4910-13-P