[Federal Register Volume 66, Number 193 (Thursday, October 4, 2001)]
[Rules and Regulations]
[Pages 50531-50534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24918]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2001-10738; SFAR 91]
RIN 2120-AH49


Aircraft Security Under General Operating and Flight Rules

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action requires certain aircraft operators to search 
aircraft and screen passengers, crewmembers, and other persons, and 
their accessible property prior to departure. This action is being 
taken to counter possible threats in the wake of the September 11, 2001 
terrorist attacks.

DATES: This action is effective October 1, 2001, and shall remain in 
effect until further notice. The compliance date for persons conducting 
operations specified in paragraph 1(a) of SFAR 91 is October 6, 2001.

FOR FURTHER INFORMATION CONTACT: Questions on this rulemaking: Lon M. 
Siro, Aviation Security Specialist, ACP-100, Office of Civil Aviation 
Security Policy and Planning, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
8058.
    Questions on security procedures or waivers: Any FAA Regional Civil 
Aviation Security Division office. You can find a list of all Regional 
Civil Aviation Security Division offices and contract information at 
http://cas.faa.gov/usa.html. These offices are identified by the 
appropriate FAA regional designation followed by
``-700.''

SUPPLEMENTARY INFORMATION:

Availability of This Action

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to 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 final rule.
    You can also get an electronic copy using the Internet through 
FAA's web page at http://www.faa.gov/avr/armhome.htm or the Federal 
Register's web page at http://www.access.gpo.gov/su_docs/aces/aces140html.
    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 amendment number or docket number of this final 
rule.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of

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1996 requires the FAA to comply with small entity requests for 
information advice about compliance with statutes and regulations 
within the FAA's jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact its local FAA official. 
Internet users can find additional information on SBREFA on the FAA's 
web page at http:www.faa.gov/avr/arm/sbrefa.htm and send electronic 
inquiries to the following Internet address: [email protected].

Background

    In the wake of the September 11, 2001, terrorist attacks against 
four U.S. commercial aircraft resulting in the tragic loss of human 
life at the World Trade Center, the Pentagon, and southwest 
Pennsylvania, the potential for additional terrorist attacks exists. 
Those responsible for the attacks are believed to be affiliated with an 
organization possessing a near-global terrorist network. The leaders of 
the groups constituting this organization have publicly stated they 
will attack the United States for incarcerating extremist members and 
are vehemently opposed to U.S. foreign policy and presence in the 
Middle East. They retain a capability and willingness to conduct 
airline bombings, hijackings, and suicide attacks against U.S. targets. 
These tragedies resulting from the attacks also indicate that the 
terrorists are willing to use aircraft as weapons to inflict 
significant damage to persons and property in the United States.
    While the FAA has issued emergency security procedures under title 
14, Code of Federal Regulations (14 CFR) parts 108 and 129 to counter 
the threat posed by deadly and dangerous items brought into an 
aircraft, these actions do not address the threat to certain operations 
that are currently not subject to mandated security procedures. 
Accordingly, the FAA is requiring operators to implement security 
procedures: (1) By October 6, 2001 for all aircraft operations in which 
passengers, crewmembers, or other persons are enplaned from or deplaned 
into a sterile area regardless of aircraft weight (except for scheduled 
passenger operations and public charter passenger operations); and (2) 
when notified, for all aircraft operations conducted under part 91 in 
aircraft with a maximum certificated takeoff weight exceeding 12,500 
pounds. The requirement to implement security procedures for operations 
conducted in aircraft with a maximum certificated takeoff weight 
exceeding 12,500 pounds applies regardless of whether passengers, 
crewmembers, or other persons are enplaned from, or deplaned into, a 
sterile area.
    Persons conducting operations described in 1(a) of this SFAR must 
implement security procedures by October 6, 2001. These operators use 
sterile areas that also are used by scheduled passenger and public 
charter passenger operations subject to security measures under 14 CFR 
parts 108 and 129. It is critical that stringent security be maintained 
in sterile areas to ensure the safety of the traveling public, and that 
uniform security measures be applied to all persons in this area. We 
note that when an operator affected by this rule enplanes passengers, 
crewmembers, or other persons from, or deplanes those persons into, an 
existing sterile area, there are screening checkpoints in place and 
personnel trained to conduct aircraft searches that may be under the 
control of other operators. These resources may be used by an operator 
affected by this rule. Accordingly, this SFAR permits operators to 
contract for such services to meet the requirements of this rule. We 
also note that the requirements of paragraph 1(a) of this SFAR do not 
apply to aircraft operations conducted in a security identification 
display area (SIDA) as defined in Sec. 107.25.
    Further, effective on November 14, 2001, private charter operators 
enplaning passengers from, and deplaning passengers into, sterile areas 
will be subject to security requirements set forth in a revision to 
part 108. See ``Aircraft Operator Security: Final Rule'' (66 FR 37330; 
July 17, 2001). This SFAR has the effect of advancing the date on which 
private charter operators must apply security procedures required under 
revised part 108 to conduct operations into or out of sterile areas. 
The FAA intends to provide private charter operators conducting these 
operations portions of the security program that will apply to them 
under revised part 108. The FAA will also provide portions of the 
security program to operators of private or corporate aircraft that 
enplane persons from, or deplane persons into, sterile areas. Affected 
operators may obtain those portions of the security program that 
contain the approved procedures by contacting an office specified in 
FOR FURTHER INFORMATION CONTACT.
    The security program is sensitive security information under part 
191 and those portions provided to private charter operators or other 
persons to meet the requirements of paragraph 1(a) of this SFAR must be 
protected from unauthorized disclosure. Sensitive security information 
in the possession of other than those with a need to know may be 
detrimental to the safety of the traveling public. Accordingly, 
paragraph 2(b) of this SFAR provides that the operator must restrict 
the distribution, disclosure, and availability of information contained 
in the security procedures approved to comply with paragraph 1(a) of 
this SFAR to persons with a need to know as described in part 191.
    Paragraph 1(b) of this SFAR establishes a process that can be used 
by the Administrator to rapidly address various types of threats. 
Security procedures approved to meet paragraph 1(b) of this SFAR will 
be tailored to meet various threats and could apply to any or all of 
the operations subject to the rule. Persons conducting operations 
described in 1(b) of this SFAR are not required to implement security 
procedures to meet this rule unless notified by the Administrator. The 
FAA will notify operators by NOTAM when they must apply these security 
procedures and will make the procedures available to affected 
operators. We expect threat conditions may change rapidly, and 
therefore may require the implementation of different security 
procedures at certain times for for certain operations. The 
Administrator will require operators to implement these procedures only 
when it is determined that threat conditions warrant.
    All security procedures used to meet the requirements of this SFAR 
must be approved by the Administrator. Similar to the procedures 
specified in paragraph 2(a) of this SFAR, the procedures specified in 
paragraph 2(b) may require that affected aircraft be searched. They may 
also require that passengers, crewmembers, and other persons and their 
accessible property (carry-on items) be screened prior to boarding. 
Screening may include inspection for explosives, incendiaries, and 
deadly or dangerous weapons, and other measures verifying the 
identities of passengers, crewmembers, and other persons.
    Paragraph 4 of this SFAR specifies that the FAA may issue a waiver 
if it finds that the operation can be conducted safely under the terms 
of the waiver. We note, for instance, that many of the aircraft 
operations subject to this SFAR are conducted by corporations that may 
have strong corporate security practices. The FAA may consider whether 
these or other practices warrant the grant of a waiver.

Justification for Immediate Adoption

    Because the circumstances described herein warrant immediate 
action, the Administrator finds that notice and

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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 rule effective immediately 
upon date of filing for public inspection at the Office of the Federal 
Register. This action is necessary to prevent a possible imminent 
hazard to aircraft and persons and property within the United States.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to this SFAR.

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 new requirements for 
information collection associated with this SFAR.

Regulatory Analyses

    This rulemaking action is taken under an emergency situation within 
the meaning of section 6(a)(3)(D) of Executive Order 12866, Regulatory 
Planning and Review. It also is considered an emergency regulation 
under Paragraph 11g of the Department of Transportation (DOT) 
Regulatory Policies and Procedures. In addition, it is a significant 
rule within the meaning of the Executive Order and DOT's policies and 
procedures. No regulatory analysis or evaluation accompanies this rule. 
The FAA is not able to assess whether this rule will have a significant 
economic impact on a substantial number of small entities as defined in 
the Regulatory Flexibility Act of 1980, as amended. The FAA recognizes 
that this rule may impose significant costs on some operators, 
including delaying their operations until they are able to carry out 
the security procedures. The current security threat requires, however, 
that operators take all necessary measures to ensure the safety and 
security of their operations.

Executive Order 13132, Federalism

    The FAA has analyzed this SFAR under the principles and criteria of 
Executive Order 13132, Federalism. We determined that this action will 
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 have determined that this final rule does not have 
federalism implications.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995 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 SFAR does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

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 this SFAR 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 this SFAR is not a major regulatory action under the provisions of 
the EPCA.

List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Airports, Aviation safety.

The Amendment

    For the reasons stated in the preamble, the Federal Aviation 
Administration amends 14 CFR part 91 as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

    1. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 40101, 
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 
articles 12 and 29 of the Convention on International Civil Aviation 
(61 stat. 1180).

    2. Add Special Federal Aviation Regulation (SFAR) No. 91 to read as 
follows:

SFAR NO. 91--AIRCRAFT SECURITY UNDER GENERAL OPERATING AND FLIGHT 
RULES

    1. Applicability. This SFAR applies to:
    (a) All aircraft operations in which passengers, crewmembers, or 
other persons are enplaned from or deplaned into a sterile area, 
except for scheduled passenger operations and public charter 
passenger operations. For purposes of this SFAR, ``sterile area,'' 
``scheduled passenger operations,'' and ``public charter'' are 
defined in Sec. 108.3 of this chapter.
    (b) Each aircraft operation conducted in an aircraft with a 
maximum certificated takeoff weight of more than 12,500 pounds 
except for those operations specified in paragraph 1(a) of this SFAR 
and those operations conducted under a security program under part 
108 or 129 of this chapter.
    2. Procedures.
    (a) Any person conducting an operation identified in paragraph 1 
of this SFAR must conduct a search of the aircraft prior to 
departure and screen passengers, crewmembers, and other persons and 
their accessible property (carry-on items) prior to boarding in 
accordance with security procedures approved by the Administrator.
    (b) The security procedures approved by the Administrator for 
operations specified in paragraph 1(a) of this SFAR are sensitive 
security information. The operator must restrict the distribution, 
disclosure, and availability of information contained in the 
security procedures to persons with a need to know as described in 
part 191 of this chapter.
    3. Compliance Date. Persons conducting operations identified in 
paragraph 1(a) of this SFAR must implement security procedures on 
October 6, 2001. Persons identified in paragraph 1(b) of this SFAR 
must implement security procedures when notified by the 
Administrator. The FAA will notify operators identified in 1(b) of 
this SFAR by NOTAM when they must implement security procedures.
    4. Waivers. The Administrator may permit a person conducting an 
operation identified in paragraph 1 of this SFAR to deviate from the 
provisions of this SFAR if the Administrator finds that the 
operation can be conducted safely under the terms of the waiver.
    5. Delegation. The authority of the Administrator under this 
SFAR is also exercised by the Associate Administrator for Civil 
Aviation Security and the Deputy Associate Administrator for Civil 
Aviation Security.
    6. Expiration. This Special Federal Aviation Regulation shall 
remain in effect until further notice.


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    Issued in Washington, DC on October 1, 2001.
Jane F. Garvey,
Administrator.
[FR Doc. 01-24918 Filed 10-1-01; 3:09 pm]
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