[Federal Register Volume 73, Number 159 (Friday, August 15, 2008)]
[Rules and Regulations]
[Pages 47824-47827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18804]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 153

[Docket No.: FAA-2007-29237; Amendment No. 153-1]
RIN 2120-AJ07


Aviation Safety Inspector Airport Access

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: Two rulemakings finalized several years ago removed regulatory 
language regarding the statutory authority of Aviation Safety 
Inspectors to access airport operations areas (AOAs), security 
identification display areas (SIDAs), and other secured and restricted 
airport areas. This final rule clarifies the authority of a properly 
credentialed Aviation Safety Inspector (ASI) to access AOAs, SIDAs, and 
other secured areas of a public-use airport allowing performance of 
their official duties supporting the FAA's safety mission.

DATES: This amendment becomes effective September 15, 2008.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this final rule contact Pat Hempen, Federal Aviation Administration, 
Flight Standards Service, Air Transportation Division (AFS-200), 800 
Independence Avenue, SW., Washington, DC 20591; Telephone (202) 267-
8166; facsimile (202) 267-5229, e-mail [email protected]. For 
legal questions concerning this final rule contact Bruce Glendening, 
Federal Aviation Administration, Office of the Chief Counsel, 
Regulations Division (AGC-220), 800 Independence Avenue, SW., 
Washington, DC 20591; Telephone (202) 267-8011; facsimile (202) 267-
7971, e-mail [email protected].

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking

    The FAA is issuing this rulemaking under the authority set forth in 
49 U.S.C. section 44701(a)(5), section 40113, and section 44713. Under 
section 44701(a)(5), the Administrator is charged with promoting safe 
flight of civil aircraft by, among other things, prescribing 
regulations the Administrator finds necessary for safety in air 
commerce. Sections 40113 and 44713 relate to the Administrator's 
authority to conduct safety inspections.

Background

    The FAA is re-codifying in Title 14 of the Code of Federal 
Regulations, that public-use airports are required to give Federal 
Aviation Administration (FAA) aviation safety inspectors (ASIs) access 
to air operations areas (AOAs), security identification display areas 
(SIDAs) and other secured areas. Since the transfer of most aviation 
and transportation security functions to Transportation Security 
Administration (TSA), ASIs have encountered difficulty accessing 
airport restricted areas to perform their safety oversight duties. FAA 
ASIs must have access to public-use airport secured areas to do their 
job.

Summary of the Notice of Proposed Rulemaking (NPRM)

    On September 19, 2007, the FAA published a notice of proposed 
rulemaking (NPRM) (72 FR 53504) restoring, clarifying, and reiterating 
authority of properly credentialed ASIs to access AOAs, SIDAs, and 
other secured areas of an airport. FAA security rules were formerly 
contained in 14 CFR parts 107 and 108. These security rules were 
transferred to Transportation Security Administration (TSA) by the 
Aviation and Transportation Security Act (ATSA) (Pub. L. 107-71, 115 
Stat. 597, November 19, 2001) and promulgated

[[Page 47825]]

TSA regulations found in 49 CFR parts 1542 and 1544.
    The 30-day comment period ended on October 19, 2007.

Discussion of the Final Rule

    This final rule creates a new part 153 governing ASI access to 
public-use airports and facilities to perform official duties. The rule 
defines airport, and an airport's secured areas including the air 
operations area (AOA), security identification display area (SIDA), and 
``secured area.'' It also defines an aviation safety inspector (ASI) 
and FAA Form 110, (FAA-issued credential authorizing ASIs to perform 
inspections and investigations). Lastly, the rule details what access 
airports, aircraft operators, aircraft owners, airport tenants, and 
agencies must grant ASIs bearing FAA Form 110A (and optionally airport-
issued identification media) to perform inspections, test compliance, 
or perform other duties as the FAA may direct.
    The FAA received 10 comments. Seven comments were from individuals, 
two from airports, and one from a labor organization. Commenters 
generally supported the final rule, but suggested changes discussed 
below.
    Six individual commenters supported the rule. One commenter thought 
that ``creating 14 CFR 153 is a very positive thing for national 
security and aviation safety, and as a tool, it will streamline the 
aviation inspection process.'' Another commenter offered that ``the 
main premise of the proposal is simply a reinforcement of the existing 
powers for inspection provided for Airport [sic] ASIs, as agents of the 
FAA and also creates legal basis for enforcement or basis for 
litigation.'' A third commenter supported the proposed rule and stated 
that ``Inspectors must be permitted to enter air operations and other 
secured and controlled areas in order to perform effective safety 
inspections.''
    The Air Line Pilots Association (ALPA) strongly supported the 
proposed rulemaking stating in part ``We find the statement and 
analysis of the problem addressed by this proposal to be sound, and the 
cost, methods of implementation of changes, and projected timeframe for 
completion of changes to be reasonable.''
    Two airport operators submitted comments on the proposed rule. The 
commenter from Lambert-St. Louis International Airport suggested the 
FAA ``should make clear that any inspector that needs access to the 
SIDA must have identification approved by the airport operator or 
escorted by a person with escort privileges.'' The second airport 
commenter from the Houston Airport System ``agrees with the proposed 
rule concerning access'' but stated that ASIs should comply with FAA 
and airport requirements for movement within AOA and that Sec.  153.3 
of the proposed rule should be expanded to require compliance with the 
Airport Certification Manual, 14 CFR 139.303 and 329, and Advisory 
Circular 150/5210 5b. The Houston Airport System commenter further 
stated that at non-139 airports, ASIs should comply with requirements 
established by the airport manager.
    The comments from Lambert-St. Louis International Airport and the 
Houston Airport System raise important issues concerning an ASI's 
unrestricted airport access to perform their Federally mandated duties, 
an airport's safety and security program, and Transportation Security 
Administration (TSA) security procedures.
    The FAA has established codes of conduct for ASIs. ASIs must 
perform their duty consistent with FAA rules and regulations and 
airport safety rules when in the AOA and secured areas. In order to 
familiarize an ASI to airport rules and procedures, the airport 
operator may elect to issue SIDA badges (with additional training that 
may include airport layout review and safety and security procedures). 
Consideration of airport rules are expected when, for example, an ASI 
makes an unannounced inspection, he/she will display their FAA Form 
110A and airport credentials (if issued) establishing their inspection 
authority.
    We will make all reasonable efforts for local ASIs to have local 
airport credentials and such identification media should be displayed 
with the FAA Form 110A. The FAA-issued Form 110A will continue to serve 
as a standalone identification (allowing FAA staffing flexibility to 
assign ASIs where needed). The Form 110A will also continue to be the 
primary credential allowing ASIs unrestricted access to those areas of 
an airport necessary to perform their official duties supporting our 
safety mission.
    Additionally, when entering a sterile area through a screening 
checkpoint, FAA personnel will continue to comply with TSA screening 
procedures.
    While the FAA agrees that AOA safety is of paramount importance, we 
do not agree that additional rule language is necessary to ensure ASIs 
carry out safe practices. ASI safety practices are reinforced by 
additional training and adherence to best practices. Safety practices 
are also contained in several FAA orders including Orders 8000-38G and 
8900.1. (FAA orders, advisory circulars, and other regulatory guidance 
can be accessed online at http://rgl.faa.gov.) The airport operator 
also has the option of conducting additional training on their specific 
safety procedures.
    The FAA believes the new rule, with our stringent ASI requirements, 
and continued coordination and cooperation with individual airport 
operators and the local TSA will allow ASIs to perform their official 
duties without compromising airport safety or security.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that there 
is no current or new requirement for information collection associated 
with this amendment. None of the 10 received comments addressed 
Paperwork Reduction Act requirements or raised concerns about 
additional paperwork requirements if the final rule is implemented.
    An agency may not collect or sponsor the collection of information, 
nor may it impose an information collection requirement unless it 
displays a currently valid Office of Management and Budget (OMB) 
control number.

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 has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these regulations.

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

    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 (Pub. L. 96-354) requires 
agencies to analyze the economic impact of regulatory changes on small 
entities. Third, the Trade Agreements Act (Pub. L. 96-39) 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

[[Page 47826]]

international standards and, where appropriate, that they 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 with 
base year of 1995).

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review,'' dated 
September 30, 1993 (58 FR 51736) directs the FAA to assess both the 
costs and the benefits of a regulatory change. We are not allowed to 
propose or adopt a regulation unless we make a reasoned determination 
that the benefits of the intended regulation justify the costs. Our 
assessment of this rulemaking indicates that its economic impact is 
minimal because it does not impose any costs on airport operators. 
Because the costs and benefits of this action do not make it a 
``significant regulatory action'' as defined in the Order, we have not 
prepared a ``regulatory evaluation'' which is the written cost/benefit 
analysis ordinarily required for all rulemaking under the DOT 
Regulatory Policies and Procedures. We do not need to do a full 
evaluation where the economic impact of the rule is minimal.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this final rule. The reasoning 
for this determination follows:
    After parts 107 and 108 were removed and these authorities 
transferred to TSA there has been some misunderstanding about the 
continuing authority of FAA safety inspectors to access various areas 
of the airport that are controlled for security purposes. This rule 
makes clear that FAA aviation safety inspectors continue to have 
authority to access such areas as needed to perform their duties.
    This final rule will put the specific regulatory authority into a 
new part 153 and clearly defines the authority of properly credentialed 
ASIs to access AOAs, secured areas, and SIDAs of a public-use airport 
so they can perform official duties in support of the FAA's safety 
mission. Adding this language has a positive safety impact, because 
properly credentialed ASIs will be able to perform necessary 
inspections that support the FAA's safety mission. The intended effect 
of this proposed rule is to make sure ASIs have access to AOAs, secured 
areas, and SIDAs of an airport so they can perform official duties in 
support of the FAA's safety mission. Its economic impact for airport 
operators is minimal.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives 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 this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' 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 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 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.
    The rule clearly defines the authority of properly credentialed 
ASIs to access AOAs, secured areas, and SIDAs of an airport to perform 
official duties in support of the FAA's safety mission. Because this 
final rule only reiterates and clarifies ASI authority to access an 
airport's secured areas, there will only be minimal costs since some 
airports will choose to issue SIDA badges as an airport specific 
credential. When airports issue SIDA badges for ASIs, these will be 
carried in addition to the FAA-issued Form 110A.
    Therefore, as the Acting FAA Administrator, I certify that this 
rule will not have a significant economic impact on a substantial 
number of small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing any standards or engaging in 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 final rule and has determined that it will 
respond to a domestic safety objective and is not considered an 
unnecessary obstacle to trade.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 an expenditure of $100 million or more 
(adjusted annually for inflation with the base year 1995) 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.'' The FAA currently uses an inflation-adjusted value 
of $136.1 million in lieu of $100 million.
    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 to this regulation.

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 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, and, therefore, does not have federalism implications.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances.

[[Page 47827]]

The FAA has determined this rulemaking action qualifies for the 
categorical exclusion identified in paragraph 312f and involves no 
extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). We have determined that it is not 
a ``significant energy action'' under the executive order because it is 
not a ``significant regulatory action'' under Executive Order 12866, 
and it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the 
Internet by:
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this 
rulemaking.
    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://DocketsInfo.dot.gov.

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. If you are a small entity and you have a question 
regarding this document, you may contact your local FAA official, or 
the person listed under the FOR FURTHER INFORMATION CONTACT heading at 
the beginning of the preamble. You can find out more about SBREFA on 
the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act .

List of Subjects in 14 CFR Part 153

    Airports, Aviation safety.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends Chapter I of Title 14, Code of Federal Regulations by adding 
part 153 to read as follows:

PART 153--AIRPORT OPERATIONS

Subpart A--Aviation Safety Inspector Access
Sec.
153.1 Applicability.
153.3 Definitions.
153.5 Aviation safety inspector airport access.
Subpart B--[Reserved]

    Authority: 49 U.S.C. 106(g), 40113, and 44701.

Subpart A--Aviation Safety Inspector Access


Sec.  153.1  Applicability.

    This subpart prescribes requirements governing Aviation Safety 
Inspector access to public-use airports and facilities to perform 
official duties.


Sec.  153.3   Definitions.

    The following definitions apply in this subpart:
    Air Operations Area (AOA) means a portion of an airport, specified 
in the airport security program, in which security measures specified 
in Title 49 of the Code of Federal Regulations are carried out. This 
area includes aircraft movement areas, aircraft parking areas, loading 
ramps, and safety areas, for use by aircraft regulated under 49 CFR 
parts 1542, 1544, and 1546, and any adjacent areas (such as general 
aviation areas) that are not separated by adequate security systems, 
measures, or procedures. This area does not include the secured area.
    Airport means any public-use airport, including heliports, as 
defined in 49 U.S.C. 47102, including:
    (1) A public airport; or
    (2) A privately-owned airport used or intended to be used for 
public purposes that is--
    (i) A reliever airport; or
    (ii) Determined by the Secretary to have at least 2,500 passenger 
boardings each year and to receive scheduled passenger aircraft 
service.
    Aviation Safety Inspector means a properly credentialed individual 
who bears FAA Form 110A and is authorized under the provisions of 49 
U.S.C. 40113 to perform inspections and investigations.
    FAA Form 110A means the credentials issued to qualified Aviation 
Safety Inspectors by the FAA for use in the performance of official 
duties.
    Secured area means a portion of an airport, specified in the 
airport security program, in which certain security measures specified 
in Title 49 of the Code of Federal Regulations are carried out. This 
area is where aircraft operators and foreign air carriers that have a 
security program under 49 CFR part 1544 or part 1546 enplane and 
deplane passengers and sort and load baggage and any adjacent areas 
that are not separated by adequate security systems, measures, or 
procedures.
    Security Identification Display Area (SIDA) means a portion of an 
airport, specified in the airport security program, in which security 
measures specified in Title 49 of the Code of Federal Regulations are 
carried out. This area includes the secured area and may include other 
areas of the airport.


Sec.  153.5   Aviation safety inspector airport access.

    Airports, aircraft operators, aircraft owners, airport tenants, and 
air agencies must grant Aviation Safety Inspectors bearing FAA Form 
110A free and uninterrupted access to public-use airports and 
facilities, including AOAs, SIDAs, and other secured and restricted 
areas. Aviation Safety Inspectors displaying FAA Form 110A do not 
require access media or identification media issued or approved by an 
airport operator or aircraft operator in order to inspect or test 
compliance, or perform other such duties as the FAA may direct.

Subpart B--[Reserved]

    Issued in Washington, DC on August 4, 2008.
Robert A. Sturgell,
Acting Administrator.
[FR Doc. E8-18804 Filed 8-14-08; 8:45 am]
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