[Federal Register Volume 68, Number 31 (Friday, February 14, 2003)]
[Rules and Regulations]
[Pages 7684-7691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3777]



[[Page 7683]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 91



Enhanced Security Procedures for Operations at Certain Airports in the 
Washington, DC Metropolitan Area Special Flight Rules Area; SFAR 94; 
Final Rule

  Federal Register / Vol. 68, No. 31 / Friday, February 14, 2003 / 
Rules and Regulations  

[[Page 7684]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2002-11580; SFAR 94]
RIN 2120-AH62


Enhanced Security Procedures for Operations at Certain Airports 
in the Washington, DC Metropolitan Area Special Flight Rules Area; SFAR 
94

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action extends, for 2 years, the expiration date for SFAR 
94, which requires any person operating an aircraft to or from College 
Park Airport, Potomac Airfield, and Washington Executive/Hyde Field to 
conduct those operations in accordance with security procedures 
approved by the Administrator. This extension will allow the FAA, along 
with other Federal agencies, sufficient time to review current security 
threats and associated contingency plans and procedures and to 
determine future rulemaking efforts, if any.

DATES: This final rule is effective February 12, 2003 and SFAR 94 
published at 67 FR 7538 (February 19, 2002) as amended in this rule 
shall remain in effect until February 13, 2005.

FOR FURTHER INFORMATION CONTACT: Reginald C. Matthews, Federal Aviation 
Administration, 800 Independence Ave., SW., Washington, DC 20591, 
telephone (202) 267-8783; e-mail [email protected].

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 five digits of the docket 
number shown at the beginning of this document. 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 Government 
Printing Office'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. Be 
sure to identify the amendment number or docket number of this final 
rule.
    Privacy Act Statement: Anyone is able to search the electronic form 
of all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or 
you may visit http://dms.dot.gov.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or 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 aftermath of the September 11, 2001, terrorist attacks which 
resulted in the tragic loss of human life at the World Trade Center, 
the Pentagon, and in southwest Pennsylvania, the FAA prohibited all 
aircraft operations within the National Airspace System, with the 
exception of certain military, law enforcement, and emergency related 
aircraft operations. This general prohibition was lifted in part on 
September 13, 2001. In the Washington, DC Metropolitan area, however, 
aircraft operations remained prohibited at all civil airports within a 
25-nautical mile radius of the Washington (DCA) Very High Frequency 
Omnidirectional Range/Distance Measuring Equipment (VOR/DME). This 
action was accomplished via the United States Notice to airmen (NOTAM) 
system. Specifically, several NOTAMs were issued according to title 14 
Code of Federal Regulations (14 CFR) 91.139, Emergency Air Traffic 
Rules, and the implementation of temporary flight restrictions (TFRs) 
issued according to 14 CFR 91.137, Temporary Flight Restrictions in the 
Vicinity of Disaster/Hazard Areas.
    On October 4, 2001, limited air carrier operations were permitted 
to resume at Ronald Reagan Washington National Airport.
    On October 5, 2001, the FAA issued NOTAM 1/0989, which authorized 
instrument flight rules (IFR) operations and limited visual flight 
rules (VFR) operations within an 18 to 25 nautical mile radius from the 
DCA VOR/DME in accordance with emergency air traffic rules issued under 
14 CFR 91.139. Exceptions to the restrictions affecting part 91 
operations in the Washington, DC area issued since September 11th were 
made to permit the repositioning of aircraft from airports within the 
area of the TFR and to permit certain operations conducted under 
waivers issued by the FAA.
    On December 19, 2001, the FAA canceled NOTAM 1/0989 and issued 
NOTAM 1/3354 that, in part, set forth special security instructions 
under 14 CFR 99.7 and created a new TFR for the Washington, DC area. 
The NOTAM also created TFRs in the Boston and New York City areas. That 
action significantly decreased the size of the area subject to the 
earlier prohibitions on part 91 operations in the Washington, DC area 
and permitted operations at Freeway (W00), Maryland (2W5), and Suburban 
(W18) airports. At the same time, the FAA eliminated all ``enhanced 
Class B airspace flight restrictions.'' The Enhanced Class B airspace 
area consisted of that airspace underlying and overlying Class B 
airspace from the surface to flight level 180.
    As security concerns were resolved, most general aviation 
operations resumed with varying degrees of restriction. However, due to 
their proximity to important national Capitol area assets, three 
airports in Maryland (College Park Airport, Potomac Airfield, and 
Washington Executive/Hyde field) remained closed for a sustained period 
following the September 11 attacks because of the restrictions on 
aircraft operations in the airspace that overlies those airports.
    Although many of the restrictions on operations in the Washington, 
DC area were eliminated, NOTAM 1/3354 continued to prohibit aircraft 
operations under part 91 in airspace that overlies College Park 
Airport, Potomac Airfield, and Washington Executive/Hyde Field. On 
February 19, 2002, the FAA cancelled NOTAM 1/3354 and issued NOTAM 2/
1369. NOTAM 2/1369 (updated and reissued as 2/2263, on November 27, 
2002) contained the description of the Washington

[[Page 7685]]

Metropolitan Area Special Flight Rules Area, as published in SFAR 94, 
and prohibited flight by part 91 and certain other aircraft within the 
Special Flight Rules Area.
    On February 14, 2002, the FAA issued NOTAM 2/1257 which provided 
flight plan filing procedures and ATC arrival and departure procedures 
for pilots operating from the three airports in accordance with SFAR 
94. The FAA updated and reissued NOTAM 2/1257 as 2/2720 on December 10, 
2002. NOTAM 2/2720 permits pilots vetted at any one of the three 
Maryland airports to fly into any of the three airports.

Discussion of Comments

    As previously stated, on February 19, 2002, the FAA published SFAR 
94 as a final rule (67 FR 7538), and requested public comments 
regarding this action. The SFAR defined the Washington, DC Metropolitan 
Area Special Flight Rules Area and allowed operations over, to, and 
from the three Maryland airports that were closed for security reasons 
after September 11, 2001. However, the SFAR imposed new security 
procedures for pilots and aircraft operations at these airports.
    In response to the SFAR, the FAA received 30 comments. Among the 
commenters were pilots and business operators based at these airports, 
transient pilots who regularly used these airports prior to September 
11, and the Aircraft Owners and Pilots Association (AOPA).
    Since this action merely extends the expiration date of the SFAR in 
order to give concerned government agencies enough time to assess 
security requirements and determine appropriate regulatory action, the 
FAA is unable to fully address all of the comments received at this 
time. However, all comments will be considered prior to taking any 
permanent action regarding these airports. With this in mind, the FAA 
offers the following responses regarding the comments received.
    Comment: Many commenters stated that they did not see a compelling 
reason for this SFAR, as it is their opinion that general aviation 
aircraft, and general aviation pilots operating at these airports do 
not pose a threat to the nation. Commenters cited incidents in Miami, 
FL, and Washington, DC as evidence of the inability of general aviation 
aircraft to cause significant damage.
    FAA Response: The incidents identified above all involved very 
small aircraft and were all determined not to be associated with 
terrorism. These incidents are not representative of the potential 
threat posed by general aviation aircraft. FAA and TSA understand that 
the enhanced security measures implemented at these airports impact 
operations at these airports. However, based on information provided by 
Federal security and intelligence agencies, the measures addressed by 
this SFAR are necessary to ensure the protection of key assets and 
critical infrastructure in the Washington area from airborne attack.
    Initially, the restrictions included six local general aviation 
airports. The FAA and TSA, in coordination with other government 
agencies, reevaluated the threat and diminished the size of the TFR. 
Three airports were completely removed from the TFR restrictions. The 
other three airports remain under varying levels of restrictions 
because of the ongoing security threats to the government.
    The Federal Government does not currently regulate security at 
general aviation airports. With over 19,000 airports, heliports, and 
landing strips across the United States, the FAA is exploring alternate 
methods to enhance the security of general aviation airports. In the 
meantime, however, the Federal Government has determined that the three 
specific airports require additional security measures due to their 
proximity to the Washington, DC Metropolitan area.
    Comment: Several commenters believe that the SFAR should be 
rescinded and airports allowed to return to pre-September 11, 2001, 
operations.
    FAA Response: We do not agree with these commenters. The FAA has 
met with Federal security and intelligence officials, and has been 
advised that, at this time, the threat level is such that the FAA 
cannot rescind the SFAR. This extension is temporary and expires on 
February 13, 2005. The FAA is keeping the action temporary, because it 
is working with the agencies that will make up the Homeland Security 
Department to determine whether the SFAR and the airspace restrictions 
in the current Washington, DC, NOTAM should be adopted as a permanent 
rule.
    Aviation is still viewed as a target and potential weapon by 
terrorist organizations. After the events of September 11, 2001, 
security at commercial airports has been enhanced. Thus, terrorists may 
be looking to alternative methods to conduct terrorist acts. Consistent 
with this concern, the Federal Bureau of Investigation (FBI) issued 
alerts indicating that, based on threat reporting, the use of ``small 
aircraft'' and charters may be of interest to terrorists seeking to 
carry out suicide attacks.
    Comment: Numerous commenters would like to see the TFR boundaries 
adjusted, or minimized, and others stated that security, as well as air 
traffic procedures at these airports should be revised. Specifically, 
AOPA commented that the northeast boundary of the SFAR area overlaps a 
charted VFR waypoint used by VFR pilots in navigating along a charted 
VFR flyway through the Baltimore-Washington Class B airspace area. This 
conflict could result in pilots unintentionally violating the SFAR 
airspace. In addition, some commenters suggested that the TFR airspace 
be defined by the DCA VOR, in lieu of the Washington Monument.
    FAA Response: The TFR of concern to this commenter (NOTAM 1/3354) 
is not a part of the SFAR. The TFR issued through NOTAM 2/2263 imposes 
restrictions for security purposes. The TFR boundaries coincide with 
the Washington, DC Metropolitan Area Special Flight Rules Area that is 
described in SFAR 94. The current TFR over the Washington, DC 
metropolitan area serves to protect an area containing key assets and 
critical government infrastructure. The size of the TFR around 
Washington has been agreed to by all the Federal agencies that have 
responsibility for ensuring the security of key assets and critical 
infrastructure in the area. No changes are being made to the NOTAM at 
this time.
    However, the FAA notes that the VFR waypoint that was located on 
the northeast boundary of the TFR has been relocated so that it is no 
longer within the TFR boundary. In addition, the FAA issued a special 
edition of the Baltimore-Washington VFR Terminal Area chart, which 
depicts both the relocated waypoint, and the boundaries of the 
Washington DC, Metropolitan Area Special Flight Rules Area. Regarding 
the definition of the TFR area, originally, NOTAM 1/3354 described the 
area with reference to the Washington Monument. However, that NOTAM 
also included a detailed description of the TFR area using a 
combination of radials and DME from the DCA VOR/DME and latitude/
longitude coordinates for each point. SFAR 94 did not describe the area 
with reference to the Monument. Any reference to the Washington 
Monument has been deleted from subsequent NOTAMs.
    Comment: Several commenters submitted alternative proposals to the 
TFR, such as placing all of the airports under enhanced Class B 
airspace, developing an elevated response level that is commensurate 
with the National Security level as determined by

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Homeland Security, or upgrading Hyde Field as DCA alternative.
    FAA Response: The FAA finds that under existing circumstances, SFAR 
94 continues to provide adequate security for the National Capitol 
Area. These comments will be addressed as part of any final decision 
regarding the three Maryland airports in question.

Petition for Rulemaking

    On October 16, 2002, the FAA received a petition for rulemaking 
from the Aircraft Owners and Pilots Association (AOPA). The petition 
seeks relief from the security requirement for pilots at the three 
affected airports. Specifically, the petition requests that the FAA 
amend SFAR 94 to allow security vetted pilots at the three airports to 
conduct flights to any of the other three airports (College Park 
Airport, Washington Executive/Hyde Field, Potomac Airport), allow 
traffic pattern work at these three airports, and allow transient 
pilots to operate at these airports, subject to the security provisions 
of this rule. On December 23, 2002, the FAA notified AOPA that the 
petition would be considered a comment and placed in the docket for 
this SFAR.
    FAA Response: Since SFAR 94 was published, the FAA has issued NOTAM 
2/2720 under the Administrator's authority in SFAR 94 to permit 
operators based at one of the three Maryland airports to fly into, out 
of or between any of the three airports, provided they do the 
following:
    1. File an IFR or VFR flight plan with Leesburg Automated Flight 
Service Station;
    2. Obtain an Air Traffic Control clearance with a discrete 
transponder code; and
    3. Follow arrival/departure procedures contained in the NOTAM.

Justification for Immediate Adoption

    Because the circumstances described herein warrant immediate 
action, the Administrator finds that notice and public comment under 5 
U.S.C. 553(b) is 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 less than 30 days after 
publication in the Federal Register. The Washington, DC area has a 
number of critical governmental and national assets. The U.S. 
government believes that terrorists still are looking to use general 
aviation aircraft to conduct terrorist activity. General aviation is an 
attractive means for terrorism because the training period for learning 
to fly many of the smaller aircraft is shorter, and security at most 
general aviation airports is not as tight as security at commercial 
airports. In fact, the FBI issued terrorist alerts in May and July of 
2002 regarding small airports. By extending the effective period of 
this SFAR, critical national assets will continue to be protected 
against an airborne threat while permitting operations at these 
airports.
    This action is taken in accordance with the Administrator's 
statutory mandate found in section 44701(a)(5) of Title 49, United 
States Code (49 U.S.C.) to promote the safe flight of civil aircraft in 
air commerce by proscribing regulations and minimum standards necessary 
for safety in air commerce and national security. This action is 
necessary to permit aircraft operations to resume at the affected 
airports while preventing possible hazardous actions directed against 
aircraft, persons, and property within the United States. This action 
is also being taken pursuant to the statutory authority in 49 U.S.C. 
section 40103(b)(3).

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

    This final rule contains information collection activities subject 
to the Paperwork Reduction Act (44 U.S.C. 3507(d)). In accordance with 
the Paperwork Reduction Act, documentation describing the information 
collection activities was submitted to the Office of Management and 
Budget (OMB) for review and approval, and assigned control number 2120-
0677.
    This rule constitutes a recordkeeping and third party disclosure 
burden on persons conducting operations at specific airports in the 
Washington, DC area. The respondents are three airports, the State of 
Maryland, and persons flying to or from these airports.
    A protection provided by the Paperwork Reduction Act states that an 
agency may not conduct or sponsor, and a person is not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number. As stated above, the OMB control number is 
2120-0677.

Economic Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall 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. sections 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, to be the basis of U.S. standards. Fourth, the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 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 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 that justify its costs, is a ``significant regulatory action'' 
as defined in section 3(f) of Executive Order 12866, and is 
``significant'' as defined in DOT's Regulatory Policies and Procedures; 
(2) will have a significant economic impact on a substantial number of 
small entities; (3) will have no effect on international trade; and 
does not impose an unfunded mandate on state, local, or tribal 
governments, or on the private sector. These analyses, available in the 
docket, are summarized below.

Costs

    The FAA has performed an analysis of the expected costs and 
benefits of this SFAR; specific parts of the SFAR resulted in costs 
only during its first year, and this analysis will mention them in the 
course of discussing the different cost elements. The TSA performed the 
analysis for the SFAR's first year; a copy of their final regulatory 
evaluation of the economic impacts has been placed in Docket No. FAA-
2002-11580; SFAR 94.
    The FAA was able to obtain limited historical financial and 
operational data for College Park and Potomac Field Airports and was 
also able to obtain this data for part of their first year under the 
SFAR. Additional data restrictions,

[[Page 7687]]

however, limited the analysis of the rule's impact on the Washington 
Executive Airport/Hyde Field. Thus, as will be seen below, FAA was 
required to make additional assumptions in doing the analysis for this 
airport.
    In 2000, approximately 89,000 part 91 operations were conducted 
from these airports. The 2001-2002 flight restrictions have caused 
significant economic hardship for these airport operators, aircraft 
owners and operators based at the airports, and businesses located on, 
or dependent upon, the continued operation of the airports.
    To provide a basis for comparison, the operational and financial 
data provided by the three airports has been adjusted to reflect full 
years of operation. The projected cost of compliance for all three 
airports is estimated to be $12.51 million ($11.22 million, discounted) 
over the 2 years that the SFAR is in effect. In addition, the cost to 
the Federal and state governments sums to approximately $245,800 
($220,500, discounted), so that the total cost of this final rule is 
$12.76 million ($11.44 million, discounted).

College Park Airport

    The College Park Airport was opened in 1909 and is the oldest 
continuously operating airport in the world. With the exception of 
about 100 annual air taxi operations, the College Park Airport serves a 
combination of private pilots and fliers who use their aircraft to 
conduct business. This annualized revenue loss was increased by a 
factor of 20% to account for revenues losses not included in the 
analysis. Thus, the estimate of losses to College Park Airport 
associated with complying with the operational restrictions in SFAR 94 
is $1.62 million for each of the 2 years examined by this analysis. In 
doing these analyses, the FAA assumes no change in annual revenue per 
year.
    The cost to the College Park Airport and its pilots of complying 
with the security provisions of this rule will be approximately 
$347,700 per year. Security costs, which include airport security 
program maintenance, airport security program modification, and airport 
physical security provision, sum to $181,500. Security costs for pilots 
sum to $166,200 and are based on the ground and in-flight delays.

Potomac Airfield

    The Potomac Airfield is a small privately owned airport located in 
Fort Washington, Maryland. Based on information from the first 8 months 
of 2002, and assuming that these revenues derived during the period 
stay the same for the 2 years examined by this analysis, the FAA 
estimates annual revenue loss to be $1.36 million. This annualized 
revenue loss was increased by a factor of 20% to account for revenue 
losses not included in the analysis. Thus the FAA estimates losses of 
$1.63 million for each of the 2 years examined by this analysis.
    The estimated cost to Potomac Airfield Airport and its pilots of 
complying with the security provisions of this rule will be 
approximately $411,000 over each year that SFAR 94 is in effect. 
Security costs, which include airport security program maintenance, 
airport security program modification, and airport physical security 
provision, sum to $63,100. Security costs for pilots sum to $347,900 
and are based on the ground and in-flight delays.

Washington Executive/Hyde Field Airport

    Washington Executive/Hyde Field Airport is a small privately owned 
airport located in Clinton, Maryland. The airport largely serves the 
needs of private fliers and pilots who occasionally fly for business 
reasons. This airport was closed longer than the other two; operations 
resumed at Hyde Field on March 2, 2002. However, on May 17, 2002, the 
airport was closed again because of a security violation. The airport 
reopened on September 28, 2002. For costing purposes, the FAA assumes 
that this airport will remain open for the 2 years of the SFAR 94 
extension.
    Because the airport had been closed for much of 2002, revenue data 
is very sketchy. The FAA was able to obtain information on some 
components, such as fuel sales, aircraft storage fees, landing fees, 
and miscellaneous sales, but was unable to obtain information on other 
components, such as aircraft maintenance, aircraft rental, and avionic 
services. Accordingly, the cost of compliance for the Washington 
Executive Airport has been adjusted to compensate for the lack of 
financial data. To offset this shortcoming, the average of the 
estimated costs of the operational restrictions incurred by the two 
other airports has been added to the cost of compliance for the 
Washington Executive Airport. The similarities in size, operations, and 
geographic location of these airports add credibility to the 
extrapolation of financial losses. This resulted in the estimate of 
losses associated with complying with the operational restrictions of 
SFAR 94 for this airport to be $1.52 million for each of the 2 years 
examined by this analysis. The FAA does not have historical data on 
revenue growth at this airport. Accordingly, the FAA will assume no 
annual change in revenue from either the base period or the contrast 
period.
    The estimated cost to this airport and its pilots of complying with 
the security provisions of this rule will be approximately $641,900 
over each year that SFAR 94 is in effect. Security costs, which include 
airport security program maintenance, airport security program 
modification, and airport physical security provision, sum to $78,600 
annually. Security costs for pilots sum to $563,300 annually and are 
based on the ground and in-flight delays.

Other Costs

    This rule will impose costs on both Federal and state governmental 
agencies, totaling $122,900 per year, which is made up of:
    [sbull] A security specialist at TSA will mandate periodic 
modifications to each airport's security procedures as well as check 
each airport's compliance with these mandates.
    [sbull] Flight service station specialists will need to file the 
flight plans.
    [sbull] An airport inspector at TSA will inspect each airport on a 
monthly basis. This inspector will need to liaison with the state 
government law enforcement agency involved in the program and will need 
to fill out airport inspection forms for each airport inspection.

Benefits

    This final rule is intended to provide an increased level of safety 
and security against the threat of airborne terrorist attacks. The 
primary benefit of the rule will be enhanced protection for the 
vulnerability of a significant number of vital government assets in the 
National Capital Region. The temporary security provisions and flight 
restrictions contained in this rule are an integral part of the effort 
to identify and defeat the threat posed by terrorists.
    For the past two decades, the major goal of aviation security has 
been the prevention of in-flight bombings and acts of sabotage. Thus, 
the major line of defense against an aviation-related criminal or 
terrorist act has been the prevention of an explosive or incendiary 
device from getting on board an airplane. The February 1993 attack on 
the World Trade Center (WTC) raised public awareness that the scope of 
the foreign terrorist threat in the U.S. was more serious and 
technically more sophisticated than previously thought. The ensuing 
investigation revealed that foreign terrorists operating in the U.S. 
are capable of building sophisticated explosive devices and covertly 
carrying out their plans. The attacks of September 11, 2001, introduced 
the

[[Page 7688]]

specter of terrorists using civil aviation aircraft as a missile 
against civilian targets, government control centers, political 
targets, and economic, and/or socially prominent assets. This raises 
concern regarding the vulnerability of critical government and military 
facilities to the threat of terrorism. National security demands that a 
terrorist strike within the National Capital Region must be taken into 
consideration.
    The experience of the past 30 years combating acts of air piracy 
confirms that the losses associated with aircraft bombings and 
hijackings are identifiable, measurable, and confined. The cost of a 
catastrophic terrorist act against a civilian aircraft can be estimated 
in terms of lives lost, property damage, decreased public utilization 
of air transportation, etc. A terrorist attack using a weapon of mass 
destruction on an urban area would inflict casualties and property 
damage on a far greater scale than any act perpetrated against a 
commercial aircraft. If successful, the economic impact would be 
enormous and in many ways incalculable as demonstrated by the September 
11, 2001, attacks, for which the economic costs will not be fully 
realized for several years. However, even if such an attack failed, 
there would be a direct economic cost of reduced travel and tourism due 
to individuals' perceptions of safety and security.
    The rule's objective is to reduce the risk that an airborne 
terrorist attack initiated from an airport moments away from vital 
national assets will occur. The cost of a major act of terrorism 
against a nationally prominent target or critical government 
infrastructure is extremely difficult to quantify. Dependent upon the 
target and extent of damages, etc., this type of terrorist act would 
have far reaching economic consequences and long lasting social and/or 
political implications. As such, losses associated with such an act are 
virtually impossible to estimate.
    The following analysis describes an attempt at quantifying some of 
the elements involved with the impact of a small general aviation 
aircraft within the National Capital Region. This is intended to allow 
the reader to judge the likelihood of benefits of the rule equaling or 
exceeding its cost. The FAA recognizes that such an impact may not 
cause substantial damage to property or a large structure; however, it 
could potentially result in an undetermined number of fatalities and 
injuries and reduced tourism.
    The FAA is unable to predict which target or location such an 
aircraft would crash into. In a worst-case scenario, a general aviation 
aircraft could be flown into the dome of the Capitol Building. While 
the destruction of the aircraft is almost certain, it is not known to 
what extent the dome or the building would be damaged. Fatalities and 
casualties could number into the thousands in the case of a direct 
attack. According to the Capitol Visitor Center website, as many as 
18,000 individuals visited the Capitol Building each day during peak 
season, and this does not take into account those who work or do 
business in the Capitol Building on a daily basis when Congress is in 
session. Due to the number of unknowns involved in a terrorist attack 
in the National Capital Region, the economic cost due to fatalities, 
casualties and property damage are inestimable.
    In addition to casualties and property damage, which are difficult 
to quantify, there would be the potential loss of revenue from a 
decrease in travel and tourism resulting from a terrorist incident in 
the nation's capital. This negative impact that a terrorist attack, 
successful or not, would have on tourism is quantifiable. The 
heightened state of alert that follows a terrorist strike is typified 
by halted public tours, obstructed streets, off limits public 
buildings, closed down landmarks, and increased public apprehension. 
After the September 11th attacks, tours at the Capitol Building were 
curtailed and tourism as a whole declined. A terrorist attack 
specifically against the nation's capital would draw significant 
national and international media attention. The adverse publicity would 
weaken consumer confidence and further discourage travel and tourism to 
the Washington, DC Metropolitan area. The U.S. National Park Service 
and the District of Columbia Government's Office of Planning and 
Economic Development cite that tourism is the number one private sector 
Industry in the region. An estimated 22 million visitors come to the 
Washington Region each year, and spent, on average, about $116.00 per 
person.
    Assuming that each person spends $116 per visit, multiplying this 
times 22,000,000 tourist yields $2.552 billion as the annual 
contribution visitors make to the Washington, DC economy. Based on the 
experience of September 11, 2001, the FAA believes that a decline of 
three percent is a conservative estimation as to the decline in overall 
tourism. Three percent of the $2.552 billion would result in a $76.56 
million decline in revenues to the District of Columbia economy. The 
FAA believes that the casualty and property loss added to the estimated 
$76.56 million revenue decline from reduced tourism could easily be in 
the hundreds of millions of dollars.
    This SFAR was promulgated on February 13, 2002 and will last for 3 
years. Accordingly, these benefits need to be applied over this 3-year 
period. This analysis looks at the costs and benefits of the SFAR 
extension, for the final 2 years of this SFAR, so the benefits 
calculations need to be examined for this 2-year period, meaning that 
only two-thirds of the $76.56 million can be applied to this rule; 
benefits sum to $51.04 million ($45.78 million, discounted); these 
benefits assume an equally likely chance that this incident will be 
avoided during any time over the 3-year period. The TSA regulatory 
evaluation will analyze the benefits for the first year of the SFAR.
    The cost of this rule is estimated to be $12.76 million ($11.44 
million, discounted). This cost needs to be compared to the possible 
unfortunate consequences that could occur if a terrorist attack using a 
small general aviation aircraft is carried out against a public 
facility or congested public assembly area located within National 
Capital Region. Using conservative assumptions, the FAA estimates that 
the costs of an airborne attack could equal $76.56 million in terms of 
fatalities, injuries, the destruction of the airplane, and reduced 
tourism. Two-thirds of these costs can be counted as the benefits for 
this SFAR extension, and they need to be contrasted with the cost of 
implementing SFAR 94 for all three airports. The FAA concludes that the 
benefits vastly outweigh the costs.

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 agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act. However, if an

[[Page 7689]]

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 1980 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.
    The FAA is not required to provide a regulatory flexibility 
analysis for this rulemaking action, because there was not a previous 
Notice of Proposed Rulemaking (NPRM). (See ``Justification for 
Immediate Adoption,'' above.) The FAA has provided one, however, 
because it believes that it is important to show the potential impact 
on these entities for completeness.
    For this SFAR, the small entity group is considered to be small 
general aviation airports (Standard Industrial Classification Code 
[SIC] 4581--Airports, Flying Fields, and Airport Terminal Services). 
The small entity size standards criteria used by the FAA in past 
analyses involving airports defines a small airport as one with annual 
revenues of less than $5 million. In addition, all privately owned, 
public-use airports are considered small.
    Three airports are affected by this rule. The College Park Airport 
is owned and partially funded by two Maryland Counties, Montgomery and 
Prince Georges. The 2000 census discloses that the combined population 
of the two counties is approximately 1.7 million. As such, the College 
Park Airport is not a small entity. Both the Potomac Airfield Airport 
and Washington Executive Airport/Hyde Field are privately owned and 
considered small in this analysis.
    As a basis for comparison among small airports, the FAA examined 
the revenue base for all Part 139 small airports. Small general 
aviation airports are not required to have security programs; only 
those airports that have scheduled service are required to have such a 
program. Air carrier airports are funded from tax revenues and 
generally have greater aviation traffic activity than general aviation 
airports and airports without scheduled service. The two small airports 
subject to SFAR 94 are not supported from tax revenues, as the revenues 
that sustain the two airports are derived solely from the pilots who 
use the airports. The estimated annual cost of compliance, based on 
known costs and revenues for the Washington Executive Airport is 
$290,700 and the burden on the Potomac Airfield Airport is $220,700; 
they increase to $333,100 and $252,200 when the anticipated airport 
revenue losses are increased by 20%, as discussed above. These costs 
are considered burdensome because they are well in excess of one 
percent of the median annual revenue of small airport operators (one 
percent of the annual median revenue for small operators is $28,000). 
Therefore, the FAA has determined that the rule will have a significant 
economic impact on a substantial number of small entities.

Regulatory Flexibility Analysis

    Under section 603 (b) of the RFA (as amended), each final 
regulatory flexibility analysis is required to address the following 
points: (1) Reasons why the FAA considered the rule, (2) the objectives 
and legal basis of the rule, (3) the kind and number of small entities 
to which the rule will apply, (4) the reporting, record keeping, and 
other compliance requirements of the rule, and (5) all Federal rules 
that may duplicate, overlap, or conflict with the rule. The FAAA will 
perform an analysis for the two small airports impacted by this rule.
    Reasons why the FAA considered the rule--The catastrophic events of 
September 11, 2001, introduced the awareness that terrorists will use 
civil aviation aircraft as a missile or possible carriers of 
biological, chemical, radioactive and/or conventional weaponry against 
civilian targets. The airports affected by this rule are located within 
a few minutes flight from vital civilian and military control centers. 
This final rule recognizes that the terrorist threat is changing and 
growing and that extraordinary steps must be taken to safeguard 
vulnerable critical national assets and counter the increased threat 
level.
    The objectives and legal basis for the rule--The objective of the 
rule is to restore operations at the affected airports while attempting 
to counter the threat of a possible terrorist airborne attack carried 
out against vital national assets located within the National Capital 
Region. The Legal basis for the rule is found in 49 U.S.C. 44901 et 
seq. Both the FAA and the TSA must consider, as a matter of policy, 
maintaining and enhancing safety and security in air commerce as its 
highest priorities (49 U.S.C. 40101(d)).
    The kind and number of small entities to which the rule will 
apply--The rule applies to two small general aviation airports subject 
to SFAR 94. Private fliers and some pilots who occasionally operate 
their aircraft for business reasons use the two airports.
    The reporting, record keeping, and other compliance requirements of 
the rule--As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA has submitted a copy of these sections to the Office 
of Management and Budget (OMB) for its review:
    Paragraph 4.--Airport Security procedures, Subparagraph (a) 
requires the two airports to modify or submit the security procedures 
program at the request of the TSA as well as maintain their security 
program. The cost and time required for these activities is estimated 
to be $672 at Potomac, taking 16 hours, and $600 at Washington 
Executive/Hyde, taking 15 hours for a total of $1,272, taking 31 hours.
    All Federal rules that may duplicate, overlap, or conflict with the 
rule--The FAA is unaware of any Federal rules that duplicate, overlap, 
or conflict with this rule.

Other Considerations

    Affordability analysis--The extent to which a small airport can 
``afford'' the cost of compliance is directly related on the 
availability of income and earnings. The small airports subject to this 
rule generate income to sustain their operations from landing fees, 
tie-down charges, rent and other compensation paid by airport tenants, 
fuel sales, flight school instruction, sightseeing rides, aircraft 
rentals, and miscellaneous local sales. All of these sources of income 
are influenced directly by the number of operations at the airport. The 
reduction in operations experienced by the airports as a consequence of 
the flight restrictions in place before and after this rule became 
effective is significant.
    The decrease in operations corresponds directly to the decline in 
working capital at the airports. Working capital is defined as the 
excess of current assets over current liabilities. The financial 
strength and viability of a business entity's financial strength is 
substantially influenced by its working capital position and its 
ability to meet its short-term liabilities. As fixed-base operator and 
pilots have relocated to other airfield, revenues have continued to 
decline. Besides laying-off staff, without other sources of revenue, 
the airports are unable to implement offsetting cost-saving 
efficiencies that could ameliorate the loss of income.
    At this time, there is no comprehensive source of information 
available that would account for a total financial picture of these 
airports. There is also no information about the airports' ability to 
obtain credit. The only evidence is limited to the fact that the 
airport and its tenants generated revenues in previous years and were 
able to pay their taxes. As such, it can

[[Page 7690]]

be assumed that these small entities were generating sufficient 
revenues to meet tax and other obligations; however, the costs of 
complying with SFAR 94 are very high relative to the current revenues 
reported by the airports. As discussed in more detail in the full 
analysis, the security costs alone are more than 20 percent of the 
projected revenues, $63,100 out of total airport revenue of $259,000 at 
Potomac and $78,600 out of total airport revenue of $291,300 at 
Washington Executive Airport/Hyde Field.
    The financial impact of the flight restrictions in place before the 
effective date of SFAR 94 is significant relative to the size of these 
airports. The reopening of the airports has not improved the financial 
posture of the airports. The May 17, 2002 temporary closing again of 
Washington Executive Airport/Hyde Field imperiled the survival of this 
airport. The complex and burdensome flight restrictions now in place 
are intimidating and have caused many private pilots to relocate to 
other airports. On the basis of the above, the FAA considers that the 
rule will threaten the viability of the impacted airports.
    Competitiveness analysis--Airports located further away from the 
DCA VOR/DME are not subject to the security provisions and air traffic 
restrictions now in effect for College Park Airport, Potomac Airfield 
Airport, and Washington Executive Airport/Hyde Field. These airports 
offer a convenient alternative location for pilots seeking to avoid 
costly operational restrictions and security requirements. The 
availability of these airports has contributed to reducing the 
competitiveness of the affected airports. Pilots flying into the 
airports covered by this SFAR face additional costs in filing flight 
plans which they would not have at alternative airport; these costs sum 
to $347,900 annually ($33.13 per operation) at Potomac and $563,300 
annually ($33.14 per operation) at Washington Executive Airport/Hyde 
Field.
    Business Closure--The FAA is unable to determine with certainty 
whether the two small airports significantly impacted by this rule will 
remain open. On the basis of the Affordability Analysis provided above, 
the FAA considers that the rule will threaten the viability of the 
impacted airports.

Alternatives

    This rule was brought about by the need to restore operations at 
the affected airports while providing increased protection against the 
threat of a terrorist strike to the Nation's capital. The FAA found 
that the urgent need to provide relief made the use of advance notice 
impractical and contrary to public interests. The fact that the rule is 
in effect reduces the number of options to be examined in this 
analysis; meanwhile, the FAA and the TSA are considering all comments 
and reviewing other alternatives. Moreover, both agencies believe that 
any change to the security requirements or air traffic restrictions 
would be the equivalent of revoking the rule and increasing the 
vulnerability of the National Capital Region. Thus, the FAA has 
examined the following three alternatives.
    Alternative 1--Rescind the rule immediately--This alternative would 
provide immediate relief to the airports by removing security 
provisions and restoring former air traffic control procedures and air 
space configurations. Implementation of this alternative would 
facilitate the return of pilots who, for the sake of operating 
simplicity and reduced flying costs, relocated to other airports. This 
would be the least costly option. The FAA believes that the threat of 
terrorists using aircraft as missiles must be guarded against. This 
makes this regulation necessary until such time that this threat is 
neutralized.
    Conclusion: Rescinding the rule would increase the vulnerability 
and diminish the level of protection now in place to safeguard vital 
national assets located within the National Capital Region. This 
alternative is rejected because it would compromise the security of 
vital national assets and increase their vulnerability.
    Alternative 2--Status Quo--Under this alternative, the FAA and TSA 
would maintain the present security and air traffic operational 
restrictions. The annual cost of compliance for the affected airports 
totals $511,400; they increase to $585,400 when the anticipated airport 
revenue losses are increased by 20% The rule ensures that any aircraft 
operating to and from the affected airports and transiting the 
restricted area specified in the SFAR has been properly identified and 
cleared.
    Conclusion: This alternative is preferred because it balances the 
security concerns against the impact on the three airports and related 
businesses.
    Alternative 3--Close Airports Permanently--Under this alternative, 
the FAA would completely close the three airports to all aviation 
operations. This would effectively close all aviation-related 
businesses at or near the affected airports. They would be forced to 
move to other airports or close their businesses permanently. All 
pilots who have aircraft permanently based at the airports would also 
be forced to move their aircraft to other locations, thereby imposing 
moving costs, including new hanger, tie-down, storage fees, etc. 
Workers at the airports would be forced to seek employment at one of 
the other general aviation airports in the Washington Metro area. This 
is the most costly option.
    Conclusion: This alternative is not preferred because it causes the 
greatest financial burden on the airports, their tenants and aviation-
related businesses, and individuals who work or store aircraft at the 
three affected airports.

International Trade Impact Statement

    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. In addition, consistent with the Administration's belief in 
the general superiority and desirability of free trade, it is the 
policy of the Administration to remove or diminish to the extent 
feasible, barriers to international trade, including both barriers 
affecting the export of American goods and services to foreign 
countries and barriers affecting the import of foreign goods and 
services into the United States.
    In accordance with the above statute and policy, the FAA has 
assessed the potential effect of this final rule and has determined 
that it will have only a domestic impact and therefore no affect on any 
trade-sensitive activity.

Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. The FAA has 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

[[Page 7691]]

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 rule does not contain such a mandate. Additionally, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply when no notice of proposed rulemaking has first been 
published. Accordingly, the FAA has not prepared a statement under the 
Act.

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, 
Security.

The Amendment

    For the reasons stated in the preamble, the Federal Aviation 
Administration amends 14 CFR chapter I 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. Amend Special Federal Aviation Regulation (SFAR) No. 94 by 
revising section 7 to read as follows:
SFAR NO. 94--ENHANCED SECURITY PROCEDURES FOR OPERATIONS AT CERTAIN 
AIRPORTS IN THE WASHINGTON, DC METROPOLITAN AREA SPECIAL FLIGHT RULES 
AREA
* * * * *
    7. Expiration. This Special Federal Aviation Regulation shall 
remain in effect until February 13, 2005.

    Issued in Washington, DC on February 11, 2003.
Marion C. Blakey,
Administrator.
[FR Doc. 03-3777 Filed 2-12-03; 9:25 am]
BILLING CODE 4910-13-P