[Federal Register Volume 67, Number 120 (Friday, June 21, 2002)]
[Rules and Regulations]
[Pages 42450-42456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15524]



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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

  Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules 
and Regulations  

[[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: [email protected]. 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: 
[email protected].

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 [email protected].

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

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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

[[Page 42455]]

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

[[Page 42456]]

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