[Federal Register Volume 67, Number 250 (Monday, December 30, 2002)]
[Rules and Regulations]
[Pages 79822-79825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32946]



[[Page 79821]]

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Part V





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 129



Security Consideration for the Flightdeck on Foreign Operated Transport 
Category Airplanes; Final Rule

  Federal Register / Vol. 67, No. 250 / Monday, December 30, 2002 / 
Rules and Regulations  

[[Page 79822]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 129

[Docket No. FAA-2002-12504; Amendment No. 129-36]
RIN 2120-AH70


Security Considerations for the Flightdeck on Foreign Operated 
Transport Category Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This action clarifies the applicability of regulations 
addressing flightdeck security and operational procedures for foreign 
carriers operating to and from the United States. It also makes other 
technical corrections to the regulation.

DATES: This rule is effective on December 30, 2002. Comments must be 
received by February 28, 2003.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-12504 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that FAA 
received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
this final rule in person in the Dockets Office between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The Dockets 
Office is on the plaza level of the Nassif Building at the Department 
of Transportation at the above address. Also, you may review public 
dockets on the Internet at http://dms.dot.gov.
    Comments that you may consider to be of a sensitive security nature 
should not be sent to the docket management system. Send those comments 
to the FAA, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., 
Washington, D.C. 20591.

FOR FURTHER INFORMATION CONTACT: Mike E. Daniel, International Programs 
and Policy Office, AFS-50, Flight Standards Service, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591; 
telephone (202) 385-4510; facsimile (202) 385-4561; e-mail 
[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.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) web page (http://dms.dot.gov/search).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the document number of the item 
you wish to view.
    You can also get an electronic copy using the Internet through 
FAA's web page at http://www.faa.gov/avr/arm/nprm.cfm or the Federal 
Register's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket number and amendment number of this 
rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official, or the person 
listed under FOR FURTHER INFORMATION CONTACT. You can find out more 
about SBRFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail us [email protected].

Background

    On June 21, 2002, the FAA issued a final rule to require improved 
flightdeck security and operational and procedure changes to prevent 
unauthorized access to the flightdeck on passenger carrying aircraft 
and some cargo aircraft operated by foreign carriers under the 
provisions of 14 CFR part 129 (67 FR 42450; Amendment No. 129-33). Part 
129 was amended with the objective of ensuring that foreign operators 
conducting service to and from the United States under 14 CFR part 129 
would have flightdeck security measures commensurate with those of 14 
CFR part 121 carriers operating in the United States.
    In addition to opening a 60-day comment period for Amendment 129-
33, the FAA held a public meeting on July 30 to allow the public an 
additional opportunity to participate in the rulemaking process. A copy 
of the transcript of the public meeting has been placed into the 
docket; comments from the public meeting as well the comments in the 
docket will be dispositioned, and a notice will be published by the FAA 
in the Federal Register.
    After reviewing several issues raised at the public meeting, the 
FAA decided that certain issues need to be clarified immediately.

[[Page 79823]]

Applicability

    Part 129 governs foreign operators who operate either within the 
United States, except for overflights, or who operate solely outside 
the United States, but with aircraft registered in the United States. 
In the case of operations within the United States, except for 
overflights, part 129 is effectively equivalent to both part 121 and 
135 in terms of the types of operations conducted and the aircraft 
used. With part 121 flightdeck security improved, the FAA was concerned 
that part 129 operations would be more attractive targets for terrorist 
actions if security was not similarly improved.
    In Amendment 129-33, the FAA's intent was ``to have consistent 
flight deck security requirements for parts 121 and 129.'' This action 
is consistent with, but more restrictive than the new International 
Civil Aviation Authority (ICAO) Security of the Flight Crew Compartment 
standards, which will apply only to airplanes with a maximum takeoff 
weight of 45,500 kg (about 100,000 lbs) or with a passenger seating 
capacity greater than 60, because the ICAO requirement is not inclusive 
of all the types of airplanes that would be required to operate under 
part 121 in the United States. Even though part 129 covers the 
operational equivalent of both parts 121 and 135, the FAA has not 
applied the flightdeck security requirements to carriers operating 
under part 135 in the United States. In amendment No. 129-33, no 
distinction was made regarding foreign air carrier operations that are 
equivalent to part 135 operations.
    Section 129.28(a) mandates that there be a flightdeck door on 
passenger carrying operations'' that parallels the requirement in Sec.  
121.313. We also indicate ``this requirement is intended to prevent the 
removal of flightdeck doors, and is not expected to result in 
installation of flightdeck doors where none existed.'' As the rule is 
presently written, however, it would require doors meeting the 
requirements of Sec.  129.28 on such aircraft as Learjets, Falcons, 
etc., and helicopters, which was not the FAA's intent. To resolve this 
situation, the FAA is adding a new paragraph to restrict the 
applicability to transport category airplanes with 20 or more passenger 
seats. While this is not an exact correlation with part 121, it is a 
reasonable approximation, and there are currently no known airplane 
types that would be excluded under part 129 that are required to comply 
under part 121.
    In addition, the final rule uses the term, ``transport category 
aircraft,'' which includes transport category rotorcraft (type 
certificated under part 29), as well as transport category airplanes. 
As with the parallel part 121 rule, the FAA intended that the 
requirements apply only to transport category airplanes, and Sec.  
129.28 is revised accordingly.
    Finally, the flightdeck security requirements in Amendment 129-33 
apply to any passenger carrying transport category aircraft 
``operated'' by the foreign air carrier. This would include operations 
of newly manufactured aircraft that are being delivered to the foreign 
air carrier, and would have the effect of requiring installation of the 
strengthened flightdeck door before the delivery flight. In many cases, 
the foreign air carriers, like their domestic counterparts, have made 
arrangements to have the door strengthened by a third party after 
delivery of the airplane, and the FAA did not intend to interfere with 
these arrangements. As with the part 121 regulation, the FAA intends 
that the door be strengthened before entering revenue service. 
Therefore, Sec.  129.28(a) and (c) are amended to create an exception 
for newly manufactured airplanes on non-revenue delivery flights.

Elimination of the Overflight Provision

    Section 129.1(a) covers foreign carrier operations ``within the 
United States,'' which conflicts with the requirement in Sec.  129.28 
that imposes the requirement both for operations ``within the United 
States or on overflights.'' In general, the FAA has no practical means 
of conducting surveillance of foreign carriers other than on the ground 
within the United States. Accordingly, we are changing the phrase 
``within the United States or on overflights'' to read ``within the 
United States, except for overflights'' in Sec.  129.28.

Compliance Date

    In section 129.28(a)(2), we indicate that foreign carriers cannot 
operate in the United States without the door installed between the 
pilot compartment and any other occupied compartment after January 15, 
2002. The intent of the compliance date in Sec.  129.28 (a)(2) for all-
cargo airplanes was to prevent a foreign carrier from removing a door 
that was installed as of that date. Amendment 129-33, which imposed the 
requirement, was not issued until June 21, 2002, and no advance public 
notice of this requirement was provided to the foreign carriers. To 
resolve this issue, the FAA is changing the compliance date contained 
in paragraph Sec.  129.28 (a)(2) to read ``June 21, 2002,'' the 
issuance date of the final rule.

Justification for Immediate Adoption

    This action is necessary to clarify the applicability and 
requirements of the existing part 129 regulations. The deadline for 
compliance with these regulations is imminent, and delaying issuance of 
this action pending notice and public comment would place numerous 
affected operators in potential non-compliance, contrary to the FAA's 
intent in adopting the part 129 regulations. Because the circumstances 
described herein warrant immediate action by the FAA, the Administrator 
finds that notice and public comment under 5 U.S.C. 553(b) are 
impracticable and contrary to the public interest. Further, the 
Administrator finds that good cause exists under 5 U.S.C. 553(d) for 
making this final rule effective immediately upon publication.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to implement ICAO 
Standards and Recommended Practices to the maximum extent practicable. 
The need for improved flightdeck security is an operational and 
security issue and is demonstrably necessary to provide safe operation 
within the United States. This amendment clarifies Amendment 129-33.

Economic Evaluation, Regulatory Flexibility Determination, Trade Impact 
Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs each Federal agency to 
propose or adopt a regulation only upon a reasoned determination that 
the benefits of the intended regulation justify its costs. Second, the 
Regulatory Flexibility Act of 1980 requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act (19 U.S.C. section 2531-2533) prohibits agencies 
from setting standards that create unnecessary obstacles to the foreign 
commerce of the United States. In developing U.S. standards, this Trade 
Act requires agencies to consider international standards and, where 
appropriate, use them as the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires 
agencies to prepare a written assessment of the costs, benefits, and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal

[[Page 79824]]

governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation.)
    In conducting these analyses, FAA has determined this rule (1) Has 
benefits which justify its costs; (2) is a ``significant regulatory 
action'' as defined in Executive Order 12866 and is ``significant'' as 
defined in DOT's Regulatory Policies and Procedures; (3) will not have 
a significant impact on a substantial number of small entities; (4) 
will have little effect on international trade; and (5) does not impose 
an unfunded mandate on state, local, or tribal governments, or on the 
private sector.
    For regulations with an expected minimal impact the above-specified 
analyses are not required. The Department of Transportation Order DOT 
2100.5 prescribes policies and procedures for simplification, analysis, 
and review of regulations. If it is determined that the expected impact 
is so minimal that the proposal does not warrant a full evaluation, a 
statement to that effect and the basis for it is included in the 
proposed regulation. The FAA has determined that there are no costs 
associated with this final rule. Instead, this rule change relieves 
operators of foreign registered airplanes from costs that would have 
been inadvertently imposed on them in the adoption of Amendment 129-33. 
This change effectuates the original intent of Amendment 129-33 
revisions.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
businesses, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The RFA covers a side-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA. However, if an agency determines that a proposed or final rule 
is not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    This action is cost relieving. Therefore, the FAA certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. The FAA has assessed the potential effect of this rulemaking 
and has determined that it will have a minimal effect on international 
trade.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.''
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA has determined that there are no requirements for 
information collection associated with this rule.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect on the States, or the 
relationship between the national Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, we determined that this final rule does not have 
federalism implications.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this rulemaking action qualifies for a 
categorical exclusion.

Energy Impact

    The energy impact of the rule has been assessed in accordance with 
the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as 
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined 
that the rule is not a major regulatory action under the provisions of 
the EPCA.

List of Subjects in 14 CFR Part 129

    Aircraft, Aviation safety, Reporting and recordkeeping 
requirements, Safety, Transportation.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends part 129 of Title 14 Code of Federal Regulations, 
as follows;

PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF 
U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE

    1. The authority citation for part 129 continues to read as 
follows:

    Authority: 49 U.S.C.1372, 40113, 40119, 44101, 44701-44702, 
44705, 44709-44711, 44713, 44716-44717, 44722, 44901-44904, 44906, 
44912, 46105, Pub.L. 107-71 sec. 104.49 U.S.C.


    2. Revise Sec.  129.28 to read as follows:


Sec.  129.28  Flightdeck security.

    (a) After August 20, 2002, except for a newly manufactured airplane 
on a non-revenue delivery flight, no foreign air carrier covered by 
Sec.  129.1(a), may operate:
    (1) A passenger carrying transport category airplane within the 
United States, except for overflights, unless the airplane is equipped 
with a door between the passenger and pilot compartment that 
incorporates features to restrict the unwanted entry of persons into 
the flightdeck that are operable from the flightdeck only; or
    (2) A transport category all-cargo airplane within the United 
States,

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except for overflights, that has a door installed between the pilot 
compartment and any other occupied compartment on or after June 21, 
2002, unless the door incorporates features to restrict the unwanted 
entry of persons into the flightdeck that are operable from the 
flightdeck only.
    (b) To the extent necessary to meet the requirements of paragraph 
(a) of this section, the requirements of Sec.  129.13(a) to maintain 
airworthiness certification are waived until April 9, 2003. After that 
date, the requirements of Sec.  129.13(a) apply in full.
    (c) After April 9, 2003, except for a newly manufactured airplane 
on a non-revenue delivery flight, no foreign air carrier covered by 
Sec.  129.1(a) may operate a passenger carrying transport category 
airplane, or a transport category all-cargo airplane that has a door 
installed between the pilot compartment and any other occupied 
compartment on or after June 21, 2002, within the United States, except 
for overflights, unless the airplane's flightdeck door installation 
meets the requirements of paragraphs (c)(1) and(2) of this section or 
an alternative standard found acceptable to the Administrator.
    (1) Resist forcible intrusion by unauthorized persons and be 
capable of withstanding impacts of 300 joules (221.3 foot-pounds) at 
the critical locations on the door, as well as a 1,113-newton (250 
pounds) constant tensile load on the knob or handle, and
    (2) Resist penetration by small arms fire and fragmentation devices 
to a level equivalent to level IIIa of the National Institute of 
Justice Standard (NIJ) 0101.04.
    (d) After August 20, 2002, no foreign air carrier covered by Sec.  
129.1 may operate a passenger carrying transport category airplane, or 
a transport category all-cargo airplane that has a door installed 
between the pilot compartment and any other occupied compartment on or 
after June 21, 2002, within the United States, except for overflights, 
unless the carrier has procedures in place that are acceptable to the 
civil aviation authority responsible for oversight of the foreign air 
carriers operating under this part to prevent access to the flightdeck 
except as authorized as follows:
    (1) No person other than a person who is assigned to perform duty 
on the flight deck may have a key to the flight deck door that will 
provide access to the flightdeck.
    (2) Except when it is necessary to permit access and egress by 
persons authorized in accordance with paragraph (d)(3) of this section, 
a pilot in command of an airplane that has a lockable flight deck door 
in accordance with Sec.  129.28(a) and that is carrying passengers 
shall ensure that the door separating the flight crew compartment from 
the passenger compartment is closed and locked at all times when the 
airplane is being operated.
    (3) No person may admit any person to the flight deck of an 
airplane unless the person being admitted is--
    (i) A crewmember,
    (ii) An inspector of the civil aviation authority responsible for 
oversight of the part 129 operator, or
    (iii) Any other person authorized by the civil aviation authority 
responsible for oversight of the part 129 operator.
    (e) The requirements of paragraph (a) through (d) except (d)(3), do 
not apply to transport category passenger carrying airplanes originally 
type certificated with a maximum passenger seating configuration of 19 
seats or less, or to all-cargo airplanes with a payload capacity of 
7,500 pounds or less.

    Issued in Washington, DC, on December 23, 2002.

Marion Blakey,
Administrator.
[FR Doc. 02-32946 Filed 12-27-02; 8:45 am]
BILLING CODE 4910-13-P