[Federal Register Volume 63, Number 225 (Monday, November 23, 1998)]
[Proposed Rules]
[Pages 64764-64769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30934]



[[Page 64763]]

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Part II





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 129



Security Programs of Foreign Air Carriers; Proposed Rule

  Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / 
Proposed Rules  

[[Page 64764]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 129

[Docket No. FAA-1998-4758; Notice No. 98-17]
RIN 2120-AG13


Security Programs of Foreign Air Carriers

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Proposed Rulemaking (NPRM); notice of public meeting.

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SUMMARY: The FAA proposes to amend the existing airplane operator 
security rules for foreign air carriers and foreign operators of U.S. 
registered aircraft. The proposed rule would implement provisions of 
the Antiterrorism and Effective Death Penalty Act of 1996. The proposed 
rule would condition the Administrator's acceptance of a foreign air 
carrier's security program on a finding that the security program 
requires adherence to the identical security measures that the 
Administrator requires U.S. air carriers serving the same airports to 
adhere to. The proposed rule is intended to increase the safety and 
security of passengers aboard foreign air carriers on flights to and 
from the United States. In addition, the FAA is announcing a public 
meeting on the NPRM to provide an additional opportunity for the public 
to comment.

DATES: Comments must be submitted on or before March 23, 1999.
    A public meeting will be held on February 24, 1999.

ADDRESSES: The public meeting will be held at the Federal Aviation 
Administration, 800 Independence Ave., SW, Washington, D.C., in the 
main auditorium on the 3rd Floor. Registration: 8:30 a.m.; Meeting: 
9:00 a.m.-5:00 p.m.
    Comments on this proposed rulemaking should be mailed or delivered 
in duplicate, to: U.S. Department of Transportation Dockets, Docket No. 
FAA-1998-4758, 400 Seventh Street, SW, Room Plaza 401, Washington, DC 
20590. Comments may also be sent electronically to the following 
internet address: [email protected]. Comments may be filed and/or 
examined in Room Plaza 401 between 10 a.m. and 5 p.m. weekdays except 
Federal holidays. Written comments to the docket will receive the same 
consideration as statements made at the public meeting.
    Comments that include or reference national security information or 
sensitive security information should not be submitted to the public 
docket. These comments should be sent to the following address in a 
manner consistent with applicable requirements and procedures for 
safeguarding sensitive security information: Federal Aviation 
Administration, Office of Civil Aviation Security Operations, 
Attention: FAA Security Control Point, Docket No. FAA-1998-4758, 800 
Independence Avenue, SW., Washington, D.C. 20591.

FOR FURTHER INFORMATION CONTACT: Moira A. Lozada, Office of Civil 
Aviation Security Policy and Planning, Civil Aviation Security Division 
(ACP-100), Federal Aviation Administration, 800 Independence Ave., SW., 
Washington, D.C. 20591; telephone (202) 267-5961.
    Requests to present a statement at the public meeting on the 
Security Programs of Foreign Air Carriers NPRM and questions regarding 
the logistics of the meeting should be directed to Elizabeth I. Allen, 
Federal Aviation Administration, Office of Rulemaking (ARM-105), 800 
Independence Avenue, SW, Washington, DC 20591, telephone (202) 267-
8199; fax (202) 267-5075.

SUPPLEMENTARY INFORMATION:

Comments Invited

    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 economic 
impact that might result from adopting the proposals in this document 
are also invited. Substantive comments should be accompanied by cost 
estimates.
    Comments should identify the regulatory docket or notice number and 
be submitted in duplicate to the Rules Docket (see ADDRESSES). All 
comments received on or before the closing date for comments specified 
will be considered by the Administrator before taking action on this 
proposed rulemaking. The proposals contained in this document may be 
changed in response to comments received. Comments received on this 
proposal will be available, both before and after the closing date for 
comments, in the Rules Docket for examination by interested persons. 
However, the Assistant Administrator has determined that air carrier 
security programs required by parts 108 and 129 contain sensitive 
security information. As such, the availability of information 
pertaining to airport security programs is governed by 14 CFR Part 191 
(Withholding Security Information from Disclosure Under the Air 
Transportation Security Act of 1974).
    A report summarizing each substantive public contact with FAA 
personnel concerned with this rulemaking will be filed in the docket. 
Commenters wishing the FAA to acknowledge receipt of their comments 
must include a self-addressed, stamped postcard on which the following 
statement is made: ``Comments to Docket No. FAA-1998-4758.'' The 
postcard will be date-stamped and mailed to the commenter.
    In order to give the public an additional opportunity to comment on 
the NPRM, the FAA is planning a public meeting.
    Requests from persons who wish to present oral statements at the 
public meeting on the Security Programs of Foreign Air Carriers NPRM 
should be received by the FAA no later than February 17, 1999. Such 
requests should be submitted to Elizabeth I. Allen as listed in the 
section titled FOR FURTHER INFORMATION CONTACT. Requests received after 
February 17, will be scheduled if time is available during the meeting; 
however the name of those individuals may not appear on the written 
agenda. The FAA will prepare an agenda of speakers that will be 
available at the meeting. To accommodate as many speakers as possible, 
the amount of time allocated to each speaker may be less than the 
amount of time requested. Those persons desiring to have available 
audiovisual equipment should notify the FAA when requesting to be 
placed on the agenda.

Public Meeting Procedures

    The public meeting will be held on February 24, 1999, at the 
Federal Aviation Administration, 800 Independence Ave., SW, Washington, 
DC, in the main auditorium on the 3rd Floor. Registration: 8:30 a.m.; 
meeting: 9:00 a.m.-5:00 p.m.
    The following procedures are established to facilitate the public 
meeting on the NPRM.
    1. There will be no admission fee or other charge to attend or to 
participate in the public meeting. The meeting will be open to all 
persons who have requested in advance to present statements or who 
register on the day of the meeting (between 8:30 and 9:00 a.m.) subject 
to availability of space in the meeting room.
    2. The public meeting may adjourn early if scheduled speakers 
complete their statements in less time than currently is scheduled for 
the meeting.
    3. The FAA will try to accommodate all speakers; therefore, it may 
be

[[Page 64765]]

necessary to limit the time available for an individual or group.
    4. Participants should address their comments to the panel. No 
individual will be subject to cross-examination by any other 
participant.
    5. Sign and oral interpretation can be made available at the 
meeting, as well as an assistive listening device, if requested 10 
calendar days before the meeting.
    6. Representatives of the FAA will conduct the public meeting. A 
panel of FAA personnel involved in this issue will be present.
    7. The meeting will be recorded by a court reporter. A transcript 
of the meeting and any material accepted by the panel during the 
meeting will be included in the public docket (Docket No. FAA-1998-
4758). Any person who is interested in purchasing a copy of the 
transcript should contact the court reporter directly. This information 
will be available at the meeting.
    8. The FAA will review and consider all material presented by 
participants at the public meeting. Position papers or material 
presenting views or information related to the interim final rule may 
be accepted at the discretion of the presiding officer and subsequently 
placed in the public docket. The FAA requests that persons 
participating in the meeting provide 10 copies of all materials to be 
presented for distribution to the panel members; other copies may be 
provided to the audience at the discretion of the participant.
    9. Statements made by members of the public meeting panel are 
intended to facilitate discussion of the issues or to clarify issues. 
Because the meeting concerning the Security Programs of Foreign Air 
Carriers is being held during the comment period, final decisions 
concerning issues that the public may raise cannot be made at the 
meeting. The FAA may, however, ask questions to clarify statements made 
by the public and to ensure a complete and accurate record. Comments 
made at this public meeting will be considered by the FAA.
    10. The meeting is designed to solicit public views on the NPRM. 
Therefore, the meeting will be conducted in an informal and 
nonadversarial manner.

Availability of NPRM

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the FAA regulations section 
of the Government Printing Office's electronic bulletin board service 
(telephone: 202-512-1661).
    Internet users may reach the FAA's web page at http://www.faa.gov 
or the Government Printing Office's webpage at http://
www.access.gpo.gov/su__docs for access to recently published rulemaking 
documents.
    Any person may obtain a copy of this NPRM by submitting a request 
to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 
800 Independence Ave., SW., Washington, D.C. 20591, or by calling (202) 
267-9680. Communications must identify the notice number of this NPRM.
    Persons interested in being placed on the mailing list for future 
NPRM's should request from the above office a copy of Advisory Circular 
No. 11-2A, Notice of Proposed Rulemaking Distribution System, which 
describes the application procedure.

Background

The Current FAA Security Program for Foreign Air Carriers

    The FAA's present Civil Aviation Security Program was initiated in 
1973. Part 129 of Title 14 of the Code of Federal Regulations governs 
the operations of foreign air carriers that hold a permit issued by the 
Department of Transportation (DOT) under 49 U.S.C. Subtitle VII, 
section 41301 or that hold another appropriate economic or exemption 
authority issued by DOT.
    The foreign air carrier security regulations were promulgated in 
1976 (41 FR 30106; July 22, 1976). In 1989, the FAA issued an amendment 
to Sec. 129.25(e) (41 FR 11116; March 16, 1989) that requires foreign 
air carriers flying to or from the U.S. to submit their security 
programs to the FAA for acceptance by the Administrator. The submitted 
programs must describe the procedures, facilities, and equipment that 
foreign air carriers will use to ensure the security of persons and 
property traveling in air transportation. The rule applies to foreign 
air carrier operations at U.S. airports and at foreign airports that 
are a last point of departure before landing in the United States.
    For airports that are last points of departure to the United States 
and for which a government authority on the carrier's behalf performs 
certain security procedures, the FAA's policies allow the foreign air 
carrier to refer the FAA to the appropriate foreign government 
authority that performs those security procedures (54 FR 25551; June 
15, 1989).
    Currently, 171 foreign air carriers are required to have a security 
program that is acceptable to the Administrator. The programs contain 
sensitive security procedures and are not available to the public, in 
accordance with 14 CFR Part 191 (41 FR 53777; December 9, 1976), which 
establishes the requirements for withholding security information from 
disclosure under the Air Transportation Security Act of 1974 (Public 
Law 93-366).

Recent Changes To Tighten Security

    The Aviation Security Improvement Act of 1990 (Pub. L. 101-604), 
enacted on November 16, 1990, after the bombing of Pan Am Flight 103 
(December 1988), mandated many changes to air carrier security 
programs. It was the intent of Congress to ensure that all Americans 
would be guaranteed adequate protection from terrorist attacks on 
international flights arriving in or departing from the United States, 
regardless of the nationality of the air carrier providing the service. 
The 1990 Act required the FAA to ensure that foreign air carriers 
operating under security programs provide a similar level of security 
to that of programs required of U.S. carriers. Accordingly, current 
Sec. 129.25(e), as amended in 1991 (56 FR 30122; July 1, 1991), 
requires that a foreign air carrier's security program must provide 
passengers with a level of protection similar to the level provided by 
U.S. air carriers serving the same airports.
    Since 1990, the meaning of the term ``similar'' has been considered 
by some to be ambiguous. On April 24, 1996, the Antiterrorism and 
Effective Death Penalty Act of 1996 (Pub. L. 104-132) (the 
Antiterrorism Act) was enacted. Subtitle B, section 322 of that Act, 
amends 49 U.S.C. section 44906, to clarify the ambiguous term by 
requiring the following:

    The Administrator of the Federal Aviation Administration shall 
continue in effect the requirement of section 129.25 of title 14, 
Code of Federal Regulations, that a foreign air carrier must adopt 
and use a security program approved by the Administrator. The 
Administrator shall not approve a security program of a foreign air 
carrier under section 129.25, or any successor regulation, unless 
the security program requires the foreign air carrier in its 
operations to and from airports in the United States to adhere to 
the identical security measures that the Administrator requires air 
carriers serving the same airports to adhere to. The foregoing 
requirement shall not be interpreted to limit the ability of the 
Administrator to impose additional security measures on a foreign 
air carrier or an air carrier when the Administrator determines that 
a specific threat warrants such additional measures. The 
Administrator shall prescribe regulations to carry out this section.

    In accordance with the Antiterrorism Act, Congress intends that the 
FAA will establish a level of necessary security measures for 
international flights from each airport that both foreign and U.S. 
carriers will be required to employ.

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Moreover, Congress does not in any way intend the Antiterrorism Act to 
restrict the ability of the FAA to impose additional measures on any 
airline at any time that a particular threat warrants additional 
measures. (Conference Report 104-518, Terrorism Prevention Act, pg. 
113-114, Government Printing Office, Washington, D.C., April 1996.)
    This notice proposes to amend Sec. 129.25(e) to reflect the recent 
legislation by stating that a security program of a foreign air carrier 
is acceptable only if the Administrator finds that the security program 
requires the foreign air carrier in its operations to and from airports 
in the United States to adhere to the identical security measures that 
the Administrator requires U.S. air carriers serving the same airports 
to adhere to.

Role of the European Civil Aviation Conference

    The European Civil Aviation Conference (ECAC) requested, and was 
granted, an opportunity to present to the Associate Administrator for 
Civil Aviation Security its observations on the underlying issues and 
potential solutions associated with FAA implementation of section 322 
of the Antiterrorism Act.
    In October 1996, the ECAC expressed disagreement with several 
underlying issues associated with the proposed revision to part 129. 
First, according to ECAC, the implementation of the proposed revision 
to part 129 is the ``unequivocal imposition of extraterritorial 
legislation.'' Instead of using domestic legislation to adjust 
implementation of aviation security, the ECAC believes enhanced 
security cooperation can be best achieved through consultation. The 
ECAC voiced its concern that the implementation of revisions of part 
129 as required by the domestic legislation will lead to divisiveness 
among countries.
    Second, the ECAC believes that amendments to rulemaking and 
security program requirements associated with part 129 have 
historically been tied to changes in the nature and scope of the threat 
posed to the security of the aircraft. This proposal does not appear to 
be consistent with a threat-based standard, according to the ECAC.
    Third, ECAC analysis shows that practical and physical 
implementation of the security measures associated with the proposed 
revision to part 129 is ``impossible'' at many European airports. The 
ECAC estimates that the costs associated with the implementation of the 
proposed revisions to part 129 at a single airport in the Netherlands 
would be prohibitive.
    Fourth, the ECAC is attempting to implement comprehensive security 
measures at all airports. In the estimation of the ECAC, the 
implementation of ``identical measures'' would inhibit such a 
comprehensive approach by introducing requirements generating 
distinctive security requirements to a selected portion of air 
carriers.
    Finally, the ECAC expressed concern that the implementation of 
security measures ``identical'' to those required of U.S. air carriers 
at last points of departure to the U.S., may have the unintended effect 
of lowering the current security measures of some foreign air carriers. 
For example, a non-European air carrier operating an originating flight 
from a region with political instability or strife would need to 
implement extraordinary security measures. These security measures 
reflect the higher associated threat to its aircraft than the threat 
associated with a U.S. air carrier not originating operations from the 
same region, but departing the same airport for the United States.
    The FAA values the opportunity to have heard the preliminary 
observations of the ECAC regarding the legislative mandate for 
``identical security measures.'' Through such frank discussions, as 
well as from comments received from this Notice, the FAA anticipates 
the assistance of the affected parties to implement the Congressional 
mandate. The concerns of the ECAC are addressed in the following 
section.

Discussion of the Proposal in Response to ECAC Concerns

    Questions have been raised about the implementation of this 
proposed rule. Specifically, certain foreign governments have expressed 
concern about the FAA seeking security programs from foreign air 
carriers which would include the procedures at foreign airports where 
government authorities implement security measures. These governments 
believe that the more appropriate source of security programs for these 
operations is the responsible foreign government, not the foreign air 
carriers.
    The proposed rule would be consistent with U.S. international 
obligations. As the FAA has stated in the past, the applicability of 
this rule to foreign air carrier operations at foreign airports that 
are a last point of departure to the United States is necessary for the 
FAA to assure that foreign air carrier operations into the U.S. 
territory are secure. This rule is an exercise of authority recognized 
in the Convention on International Civil Aviation (Chicago Convention) 
and U.S. air transport agreements and is not intended to undermine the 
sovereignty of other nations. Under the Chicago Convention and U.S. 
bilateral air transport agreements, foreign air carriers are required 
to comply with the laws and regulations governing admission to or 
departure from the United States and the operation and navigation of 
those aircraft while within U.S. territory. The provisions of the 
proposed rule are within the scope of those laws and regulations. 
Moreover, the implementation of this proposed rule will be done in 
accordance with these international obligations.
    Historically, the aviation community implemented security measures 
based upon the assumption that the threat to an aircraft was directly 
related to the specific nationality of the air carrier. The implication 
of the Act is that the terrorist threat to U.S. interests relates not 
only to U.S. air carriers but also to air carriers of any nationality 
engaged in commerce with the United States. Therefore, security 
measures for U.S. and foreign air carriers operating at last points of 
departure to the U.S. or from airports in the United States should be 
identical.
    In accordance with the Conference Report on the Act, the FAA 
intends to identify Annex 17 to the Chicago Convention as the baseline 
of necessary security measures required of foreign air carrier 
operations to and from the United States. Currently, the majority of 
foreign air carrier flights to and from the United States operate under 
this standard.
    Under existing authority, the FAA will review and update the 
security requirements that need to be levied on U.S. carriers. This 
will be done on a country-by-country basis, and in some cases an 
airport-by-airport basis within a country. To implement this proposed 
rule, the FAA would then impose identical security measures on all 
foreign carriers flying from those airports as last points of departure 
to the United States.
    The FAA has found that similar levels of protection, for 
practically all foreign carriers' flights from the United States, and 
most flights from overseas, have been provided by meeting the standards 
of Annex 17. However, the FAA's assessments in the past of terrorist 
threats have indicated the necessity for some foreign flag carriers to 
implement additional measures to afford a level of protection similar 
to that of U.S. carriers.

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    The foreign flag carriers may initiate implementation of the 
additional measures based on their own national threat assessments, or 
the foreign air carriers and their respective national authorities may 
agree to the implementation of additional security measures following 
consultations with the FAA.
    If, however, specific temporary threats affect a particular foreign 
air carrier or U.S. air carrier, the FAA may require it to implement 
additional appropriate security measures. In such instances, the FAA 
intends that any additional security measures will not apply to 
airlines that are not threatened.
    The FAA does not intend to diminish the security measures of any 
foreign air carrier that may currently exceed the security measures 
required of U.S. air carriers serving the same airport and the proposed 
rule language so states.
    The FAA will consult the foreign government authority whenever 
changes to security measures are deemed necessary at a foreign airport.

Proposed Implementation of the Proposal

    The FAA would initiate implementation of the ``identical measures'' 
provisions of the Antiterrorism and Effective Death Penalty Act of 1996 
by amending Sec. 129.25(e) and by amending the foreign air carriers' 
security programs. The FAA anticipates publication of the final rule in 
the Federal Register by the end of June 2000. The effective date of the 
regulation would be at least a month from publication.
    The final stage of implementation of a final rule would occur with 
amendment to the security programs of the regulated foreign air 
carriers. Toward that end, the FAA anticipates development of specific 
security amendments in a parallel process to the public rulemaking. The 
process will be predicated on a revalidation of the currently required 
security measures for air carriers. The FAA will retain all of the 
security measures for which there is a continuing security 
justification. The FAA will evaluate how identical measures may be 
implemented by foreign air carriers in the most effective manner from a 
security standpoint. Special attention will be paid to the more complex 
measures, such as profiling.
    The FAA has devoted considerable resources toward developing 
security standards and regulations as well as the type of equipment 
that helps to keep international civil aviation secure for not only the 
citizens of the United States, but for all persons using the 
international civil aviation system. The FAA believes that it is 
through such continued international cooperation that all flights can 
be more secure in an increasingly dangerous world.

Regulatory Evaluation Summary

    The FAA has determined that this proposed rule is a ``not 
significant rulemaking action,'' as defined by Executive Order 12866 
(Regulatory Planning and Review). The anticipated costs and benefits 
associated with this proposed rule are summarized below. (A detailed 
discussion of costs and benefits is contained in the full evaluation in 
the docket for this proposed rule.)
    Because the Antiterrorism Act prohibits the Administrator from 
approving any security program of a foreign air carrier ``unless the 
security program requires the foreign air carrier * * * to adhere to 
identical security measures'' that apply to U.S. carriers serving the 
same airports, the FAA has determined that there are not any 
potentially effective and reasonably feasible alternatives to the 
proposed regulation that need to be assessed. However, the FAA has 
drafted the proposed rule to permit flexibility in two respects. It 
would allow a foreign air carrier to exceed the security measures 
required of U.S. carriers. The proposal also would permit a foreign air 
carrier to refer the FAA to appropriate foreign government authorities 
that perform security functions on the carrier's behalf in lieu of 
specifying the procedures.

Cost of Compliance

    The FAA has performed an analysis of the expected costs and 
benefits of this regulatory proposal. In this analysis, the FAA 
estimated costs for a 10-year period, from 1998 through 2007. As 
required by the Office of Management and Budget (OMB), the present 
value of this stream was calculated using a discount factor of 7 
percent. All costs in this analysis are in 1995 dollars.
    To calculate the costs, the FAA examined the differences between 
the Air Carrier Standard Security Program (ACSSP), which sets the 
security standards and procedures that all certificated U.S. air 
carriers use, and the Model Security Program (MSP), which sets the 
security standards and procedures that all certificated part 129 
(foreign) air carriers use. These differences were examined at both 
domestic airports and foreign airports that serve as the last point of 
departure (LPD) to the U.S. Due to the sensitive nature of these 
documents, most of these specific differences cannot be discussed in 
this economic summary or the regulatory analysis (both of which are 
public documents). The Associate Administrator for Civil Aviation 
Security (ACS-1) has determined that this information is sensitive to 
Civil Aviation Security operations; the disclosure or dissemination of 
this information is prohibited in accordance with 14 CFR Part 191. 
Sensitive security details related to the cost section of this 
Regulatory Evaluation are available to regulated foreign air carriers 
and their national regulatory authorities upon request. A request made 
by the foreign air carrier should be directed to its Principal Security 
Inspector (PSI); requests by the appropriate national regulatory 
authority should be made to the FAA's Civil Aviation Security Liaison 
Officer (CASLO) for that country.
    Total ten year costs sum to $1.19 billion (net present value, $826 
million). Given that in 1997, 42.3% of passengers on foreign flag air 
carriers were U.S. citizens, the impact on the U.S. economy would 
average $50.7 million a year.\1\ Hence, because this proposed rule 
would not impose costs exceeding $100 million annually on the U.S. 
economy, this proposed rule is not a ``significant regulatory action'' 
as defined by Executive Order 12866 (Regulatory Planning and Review).
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    \1\ This is calculated by multiplying 42.3% times $1.19 billion 
and dividing by ten.
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    Because security requirements at each location are subject to 
change, it is impossible to know, at any given time, which aviation 
security procedures foreign air carriers are performing and on which 
flights. Accordingly, all differences were calculated assuming that no 
foreign air carrier is currently performing any security functions in 
excess of the minimum required under the MSP. This may lead to an 
overstatement of costs, as some carriers may already perform some 
functions not currently required.
    The FAA consulted the Official Airline Guide (OAG) to determine the 
number of scheduled part 129 flights, with more than 60 seats, from 
U.S. gateway airports and from foreign last point of departure airports 
where U.S. air carriers also operate. An annual growth rate of 5.2% was 
applied to these flights over the ten year period of time. The number 
of passengers affected was calculated by multiplying the average number 
of passengers per U.S. international flight by the number of 
international flights. The analysis also assumed an average of 2 
checked bags and 2 carry-on bags per international passenger.

[[Page 64768]]

    Foreign air carriers would need additional equipment and personnel 
for these new requirements. Equipment needs were based, in part, on 
peak hour requirements at U.S. airports. In the absence of information 
about wages, employment growth rates, and annual employee turnover 
rates in each individual country, this analysis used the equivalent 
rates of U.S. employees; this may overstate costs, assuming that U.S. 
wages exceed those in most other countries. All hourly wage rates were 
increased by 26% to account for all fringe benefits. Since additional 
training would be needed for some of the new proposed requirements, the 
number of additional classes was calculated assuming 20 people per 
class. The FAA also assumed, in most cases, an average of one 
supervisor for every nine employees and that the supervisor salary was, 
on average, 20 percent higher than the employee salary.
    The FAA is requesting information on one of the new measures that 
could result from the proposal. This measure would limit air carriers 
to accepting baggage only inside the terminal building for flights to 
the U.S. from foreign LPD's where U.S. air carriers also operate. 
Currently, the FAA does not have adequate data on which air carriers 
would be affected by such a measure and no data on the additional 
terminal capacity (facilities, labor, etc.) that would be necessary to 
accommodate the checked baggage that is currently handled outside the 
airport terminal. Additional information needed also includes the 
percent of passengers who currently check their baggage outside the 
terminal building.
    The FAA also requests cost information on any other airport or 
terminal space issues that could result from this proposed rule.

Analysis of Benefits

    The primary benefit of the proposed rule would be to strengthen air 
carrier security and the safety of all passengers on foreign air 
carriers. Aviation security is achieved through an intricate set of 
interdependent requirements. It would be difficult to separate out any 
current existing requirement or any proposed change, and identify to 
what extent any requirement or any change, alone, would have on 
preventing a criminal or terrorist act in the future.
    Since 1987, the FAA has initiated rulemaking and promulgated 
security-related amendments that have amended parts 107 (airport 
operator security), 108 (air carrier security), and 129 (foreign air 
carriers). These amendments have added to the effectiveness of all 
these parts by addressing certain aspects of the total security system 
directed at preventing criminal and terrorist activities.
    Some benefits can be quantified--prevention of fatalities and 
injuries and the loss of aircraft and other property. Other benefits, 
no less important, are probably impossible to quantify. Since the mid-
1980's, the major goals of aviation security have been to prevent 
bombing and sabotage incidents. Preventing an explosive or incendiary 
device from getting on board an airplane is one of the major lines of 
defense against an aviation-related criminal or terrorist act. In the 
ten year period from 1986 through 1995, eleven separate explosions 
occurred on commercial airlines. These eleven incidents of sabotage (of 
which nine occurred on foreign airlines) caused a total of 722 
fatalities and at least 112 injuries. In addition, in December 1993, a 
hijacking incident occurred on a U.S.-bound foreign airline.
    An example of the type of explosion that aviation security is 
trying to prevent is the Pan Am 103 tragedy that occurred over 
Lockerbie, Scotland in 1988. A conservative estimate of the costs 
associated with this accident is $1.4 billion.

Comparison of Costs and Benefits

    This proposed rule would cost approximately $1.19 billion (net 
present value, $826 million) over ten years. This cost needs to be 
compared to the possible tragedy that could occur if an explosive or 
incendiary device were to get onto an airplane and cause a catastrophe. 
Recent history not only points to Pan Am 103's explosion over 
Lockerbie, Scotland, but also the potential of up to twelve American 
airplanes being destroyed by explosive devices in Asia in early 1995.
    Congress has mandated that the FAA take action to require security 
measures identical to those required of U.S. air carriers for all 
foreign air carrier operations to and from any U.S. airport where U.S. 
air carriers operate. Congress, which reflects the will of the American 
public, has determined that this proposed regulation is in the best 
interest of the nation.

Initial Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) was enacted by 
Congress to ensure that small entities are not unnecessarily and 
disproportionately burdened by Federal regulations. The RFA, which was 
amended May 1996, requires regulatory agencies to review rules that may 
have a ``significant economic impact on a substantial number of small 
entities.'' The Small Business Administration suggests that ``small'' 
represent the impacted entities with 1,500 or fewer employees.
    The proposed amendments to the regulations would not apply to any 
small domestic air carriers and, therefore, the FAA has initially 
determined that they would not have a significant impact on a 
substantial number of small entities.

International Trade Impact Statement

    These proposed regulations would make the security requirements 
between U.S. and foreign air carriers identical. Foreign air carriers 
would incur costs. However, mandating identical security measures for 
both foreign and domestic operators would give neither U.S. nor foreign 
carriers a competitive advantage; both U.S. and foreign carriers would 
have to follow identical security measures to accomplish passenger and 
aircraft safety and security.
    The international trade implications of this rulemaking are 
difficult to predict at this time. A number of foreign governments 
expressed strong opposition to the legislation, on both legal and 
policy grounds, during and after its passage by the Congress. Officials 
of the European Civil Aviation Conference (ECAC) have informed the FAA 
that its members strongly oppose any regulatory action to implement the 
statute. This rulemaking could be a factor in future bilateral 
negotiations, but any attempt to quantify possible impacts on U.S. 
carriers would be premature and speculative.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
enacted as Public Law 104-4 on March 22, 1995, 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. 
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the Act is any 
provision in a Federal agency regulation that will impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for

[[Page 64769]]

inflation) in any one year. Section 203 of the Act, 2 U.S.C. 1533, 
which supplements section 204(a), provides that before establishing any 
regulatory requirements that might significantly or uniquely affect 
small governments, the agency shall have developed a plan that, among 
other things, provides for notice to potentially affected small 
governments, if any, and for a meaningful and timely opportunity to 
provide input in the development of regulatory proposals.
    This proposed rule does not contain any Federal intergovernmental 
mandates or private sector mandates.

Federalism Implications

    The rule proposed herein would not have substantial direct effects 
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, in accordance with 
Executive Order 12612, it is determined that this proposal would not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Paperwork Reduction Act

    In this proposed amendment to part 129--Operations: Foreign Air 
Carriers and Foreign Operators of U.S. Registered Aircraft Engaged In 
Common Carriage, Sec. 129.25 contains information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the FAA has submitted a copy of this proposed section 
to the Office of Management and Budget (OMB) for its review.
    The information to be collected is needed to estimate the costs to 
foreign air carriers with accepted security programs: (1) to check 
radiation leakage on x-ray equipment used for property security 
screening at part 107 airports at least annually; (2) to report 
aircraft piracy as part of the required security program; and (3) to 
maintain training records for personnel involved in security 
activities.
    It is estimated that this proposal will affect 171 part 129 
aircraft operators annually. The estimated annual reporting and 
recordkeeping burden hours is estimated to be 5,193 hours and is broken 
down as follows:
    (1) Reporting and recordkeeping requirements for foreign air 
carriers' security programs requiring:
    (i) Preparation of new security program documentation--6 hours for 
each new part 129 air carrier operator; and,
    (ii) Necessary security amended program documentation--1.5 hours 
for each part 129 air carrier operator.
    (2) Maintaining copies and availability of the security programs 
for use by civil aviation security inspectors of the FAA upon request--
1 hour for each part 129 air carrier operator.
    (3) Reporting and record keeping requirements for the training 
records for crew members, air carrier security representatives, and 
individuals performing security-related functions--24 hours for each 
part 129 air carrier operator. (This includes preparation and record 
keeping of training records for personnel applying extraordinary 
security requirements for flights departing from designated overseas 
locations.)
    (4) Record keeping by the air carrier of each x-ray survey 
conducted for use by FAA officials upon request--.5 hours for each part 
129 air carrier operator.
    (5) Reporting of acts or suspected acts of aircraft piracy to the 
FAA. This report is not normally in written form and it is determined 
to be a request for assistance--.2 hours for each part 129 air carrier 
operator.
    Individuals and organizations may submit comments on the 
information collection requirements by January 22, 1999, to the address 
for comments listed in the ADDRESSES section of this document. These 
comments should reflect whether the proposed collection is necessary; 
whether the agency's estimate of the burden is accurate; how the 
equality, utility, and clarity of the information to be collected can 
be enhanced; and, how the burden of the collection can be minimized.

Conclusion

    For the reasons discussed in the preamble, and based on the 
findings in the Regulatory Flexibility Determination and the 
International Trade Impact Analysis, the FAA has determined that this 
proposed regulation is not significant under Executive Order 12866. In 
addition, the FAA certifies that this proposal, if adopted, will not 
have a significant economic impact, positive or negative, on small 
entities under the criteria of the Regulatory Flexibility Act. This 
proposal is considered significant under DOT Regulatory Policies and 
Procedures (44 FR 11034; February 26, 1979).

List of Subjects in 14 CFR Part 129

    Air carriers, Aircraft, Airports, Aviation safety, Weapons.

The Proposed Amendment

    In consideration of the foregoing the Federal Aviation 
Administration proposes to amend part 129 of title 14 of the Code of 
Federal Regulations (14 CFR part 129) 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. 106(g), 40104-40105, 40113, 40119, 44701-
44702, 44712, 44716-44717, 44722, 44901-44904, 44906.

    2. Section 129.25 is amended by revising the introductory text of 
paragraph (e) to read as follows:


Sec. 129.25  Airplane security.

* * * * *
    (e) Each foreign air carrier required to adopt and use a security 
program pursuant to paragraph (b) of this section shall have a security 
program acceptable to the Administrator. A foreign air carrier's 
security program is acceptable only if the Administrator finds that the 
security program requires the foreign air carrier in its operations to 
and from airports in the United States to adhere to the identical 
security measures that the Administrator requires U.S. air carriers 
serving the same airports to adhere to. A foreign air carrier is not 
considered to be in violation of this requirement if its security 
program exceeds the security measures required of U.S. air carriers 
serving the same airport. The following procedures apply for acceptance 
of a security program by the Administrator:
* * * * *
    Issued in Washington, D.C., on November 13, 1998.
Anthony Fainberg,
Director, Office of Civil Aviation Security Policy and Planning.
[FR Doc. 98-30934 Filed 11-19-98; 8:45 am]
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