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                                                                                           June 21, 2002

                                                                                           Part V

                                                                                           Department of
                                                                                           Federal Aviation Adminstration

                                                                                           14 CFR Part 129
                                                                                           Security Considerations for the Flightdeck
                                                                                           on Foreign Operated Transport Category
                                                                                           Airplanes; Final Rule

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     42450                Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules and Regulations

     DEPARTMENT OF TRANSPORTATION                            FOR FURTHER INFORMATION CONTACT: For                  this final rule. Details will be
                                                             part 25 issues contact Jeff Gardlin, FAA              announced in the Federal Register.
     Federal Aviation Administration                         Airframe and Cabin Safety Branch,
                                                                                                                   Availability of Rulemaking Documents
                                                             ANM–115, Transport Airplane
     14 CFR Part 129                                         Directorate, Aircraft Certification                      You can get an electronic copy using
                                                             Service, 1601 Lind Avenue SW.,                        the Internet by taking the following
     [Docket No. FAA–2002–12504; Amendment                   Renton, Washington 98055–4056;                        steps:
     No. 129–33]                                             telephone (425) 227–2136, facsimile                      (1) Go to the search function of the
                                                             (425) 227–1149; e-mail:                               Department of Transportation’s
     RIN 2120–AH70                                                                                                 electronic Docket Management System
                                                    For parts 121 and
                                                             129 issues contact Thomas Penland,                    (DMS) web page (
     Security Considerations for the
                                                             FAA Program Management Branch,                        search).
     Flightdeck on Foreign Operated                                                                                   (2) On the search page type in the last
     Transport Category Airplanes                            AFS–260, Flight Standards Service, 800
                                                             Independence Avenue, SW.,                             four digits of the Docket number shown
     AGENCY: Federal Aviation                                Washington, DC 20591; telephone (202)                 at the beginning of this notice. Click on
     Administration (FAA), DOT.                              267–3764, facsimile (202) 267–5229, e-                ‘‘search.’’
     ACTION: Final rule; request for                         mail:                           (3) On the next page, which contains
     comments.                                                                                                     the Docket summary information for the
                                                             SUPPLEMENTARY INFORMATION:
                                                                                                                   Docket you selected, click on the
     SUMMARY: This final rule requires                       Comments Invited                                      document number of the item you wish
     improved flightdeck security and                                                                              to view.
                                                                This final rule is being adopted                      You can also get an electronic copy
     operational and procedures changes to                   without prior notice and prior public
     prevent unauthorized access to the                                                                            using the Internet through FAA’s web
                                                             comment. The Regulatory Policies and                  page at
     flightdeck on passenger-carrying aircraft               Procedures of the Department of
     and some cargo aircraft operated by                                                                           nprm.cfm or the Federal Register’s web
                                                             Transportation (DOT) (44 FR 1134;                     page at
     foreign carriers under the provisions of                February 26, 1979), however, provide
     part 129. It is being adopted to further                                                                      su_docs/aces/aces140.html.
                                                             that, to the maximum extent possible,                    You can also get a copy by submitting
     enhance air carrier security in response                operating administrations of the DOT
     to the heightened threat to civil aviation                                                                    a request to the Federal Aviation
                                                             should provide an opportunity for                     Administration, Office of Rulemaking,
     in the United States. This final rule                   public comment on regulations issued
     applies the same flightdeck security                                                                          ARM–1, 800 Independence Avenue
                                                             without prior notice. Accordingly,                    SW., Washington, DC 20591, or by
     enhancements to foreign air carriers as                 interested persons are invited to
     apply to U.S. air carriers.                                                                                   calling (202) 267–9680. Make sure to
                                                             participate in this rulemaking by                     identify the docket number and
     DATES: This final rule is effective June                submitting such written data, views, or               amendment number of this rulemaking.
     21, 2002. Comments must be received                     arguments as they may desire.
     on or before August 20, 2002.                           Comments relating to the                              Small Business Regulatory Enforcement
     ADDRESSES: Address your comments to                     environmental, energy, federalism, or                 Fairness Act
     the Docket Management System, U.S.                      international trade impacts that might                   The Small Business Regulatory
     Department of Transportation, Room                      result from this amendment are also                   Enforcement Fairness Act (SBREFA) of
     Plaza 401, 400 Seventh Street, SW.,                     invited. Comments must include the                    1996 requires the FAA to comply with
     Washington, DC 20590–0001. You must                     regulatory docket or amendment                        small entity requirements for
     identify the docket number FAA–2002–                    number and must be submitted in                       information or advice about compliance
     12504 at the beginning of your                          duplicate to the DOT Docket                           with statutes and regulations within its
     comments, and you should submit two                     Management System address specified                   jurisdiction. Therefore, any small entity
     copies of your comments. If you wish to                 above.                                                that has a question regarding this
     receive confirmation that FAA received                     All comments received, as well as a                document may contact its local FAA
     your comments, include a self-                          report summarizing each substantive                   official, or the person listed under FOR
     addressed, stamped postcard.                            public contact with FAA personnel                     FURTHER INFORMATION CONTACT. You can
        You may also submit comments                         concerning this final rule, will be filed             find out more about SBFEFA on the
     through the Internet to http://                         in the docket. The docket is available for            Internet at our site, You may review the public                  public inspection before and after the                arm/sbrefa.htm. For more information
     docket containing comments to this                      comment closing date.                                 on SBREFA, e-mail us at 9-AWA-
     final rule in person in the Dockets                        The FAA will consider all comments       
     Office between 9:00 a.m. and 5:00 p.m.,                 received on or before the closing date
     Monday through Friday, except Federal                   for comments. Late filed comments will                Background
     holidays. The Dockets Office is on the                  be considered to the extent practicable.                 On September 11, 2001, the United
     plaza level of the Nassif Building at the               This final rule may be amended in light               States experienced terrorist attacks
     Department of Transportation at the                     of the comments received.                             when aircraft were commandeered and
     above address. Also, you may review                        Commenters wishing the FAA to                      used as weapons. These actions
     public dockets on the Internet at http:/                acknowledge receipt of their comments                 demonstrated that there is a need to
     /                                           must include a pre-addressed, stamped                 improve the design, operational, and
        Comments that you may consider to                    postcard with those comments on which                 procedural security of the flightdeck. On
     be of a sensitive security nature should                the following statement is made:                      November 19, 2001, Congress enacted
     not be sent to the docket management                    ‘‘Comments to Docket No. FAA–2002–                    Public Law 107–71, the Aviation and
     system. Send those comments to the                      12504.’’ The postcard will be date                    Transportation Security Act (the Act),
     FAA, Office of Rulemaking, ARM–1,                       stamped and mailed to the commenter.                  which specifies that improved
     800 Independence Avenue, SW.,                              The FAA will be holding a public                   flightdeck security must be applied to
     Washington, DC 20591.                                   meeting during the comment period for                 aircraft operating in air transportation.

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                          Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules and Regulations                                        42451

     Section 104 of the Act directed the FAA                    The FAA has discussed in numerous                  ICAO recently adopted standards
     to issue a final rule, without seeking                  international settings its intent to have             relating to the incorporation of security
     public comment prior to adoption,                       consistent flightdeck door security                   into the design of aircraft. The ICAO
     addressing the security requirement for                 requirements for parts 121 and 129.                   flightdeck security standards will
     aircraft that are currently required to                 Below is a listing of international                   require that passenger-carrying aircraft
     have flightdeck doors.                                  meetings with European and other                      of 60 passengers or more, or with a
        In response to section 104(a)(1) of the              authorities and industry where this                   maximum certificated takeoff weight of
     Act, the FAA issued Amendment 121–                      issue was discussed:                                  100,000 pounds, be protected from
     288 to 14 CFR Part 121, which requires                  October 17, 2001 FAA/Joint Aviation                   intrusion and ballistic threats.
     that certain U.S. air carriers install                     Authorities (JAA) Executive Board                     The FAA wholly supports this
     reinforced flightdeck doors that provide                   Meeting, Rome, Italy                               change. This requirement, however, is
     intrusion resistance and ballistic                      November 28–30, 2001 FAA/JAA                          not mandatory until November 2003, 7
     penetration resistance (67 FR 2881,                        Certification Management Team                      months after the FAA’s requirements
     January 15, 2002). Amendment 121–288                       Meeting, Washington, DC                            must be met. It does not apply to cargo
     applies to transport category airplanes                 January 8, 2002 Special FAA meeting                   aircraft, as does Amendment 121–288.
     operating in commercial service that are                   with regional Asian-Pacific Civil                  In addition, there is an ICAO
     required by § 121.313(f) to have a door                    Aviation Authorities and industry,                 requirement for the installation of
     installed between the flightdeck and the                   Kuala, Lumpur, Malaysia                            flightdeck door internal locking devices
     passenger cabin and to all cargo aircraft               January 22, 2002 FAA/European Civil                   by November 28, 2002. Absent
     that have such a door installed on or                      Aviation Conference Security                       additional action by the FAA, foreign
     after January 15, 2002. The reinforced                     Meeting, Washington, DC                            operators can operate to and from the
     doors must be installed by April 9,                     January 23, 2002 Aircraft Certification               U.S. without any mandatory flightdeck
     2003. Additionally, the amendment                          and Flight Standards directors visit               door security measures in the interim.
     requires that the operators adopt                                                                                The foreign operations subject to this
                                                                Brussels, Belgium, and meet with La
     operational changes restricting access to                              ´ ´                                    rule use the same aircraft and conduct
                                                                Direction General de l’Aviation Civile
     the flightdeck in flight.                                                                                     the same types of operations as U.S.
                                                                and Luftfahrt-Bundesamt
        The FAA also issued a series of                                                                            operators. They use many of the same
                                                                representatives, officials from
     Special Federal Aviation Regulations                                                                          airports into and out of the U.S. They
                                                                European Parliament, the European
     (SFAR–92) (66 FR 51546, October 9,                                                                            also present targets for a repeat of the
                                                                Commission’s Director of Aviation
     2001; 66 FR 52835, October 17, 2001; 66                                                                       September 11, 2001 terrorist attacks.
                                                                Safety, and the International Air                     Under SFAR 92, U.S. operators
     FR 58650, November 21, 2001; and 67
                                                                Transport Association (IATA)                       already have installed internal locking
     FR 12820, March 19, 2002) that first
                                                             February 19–20, 2002 International                    devices to deter entry to the flightdeck.
     allowed, then required, the installation
     of internal locking devices on the                         Civil Aviation Organization Aviation               Not all foreign operators have. After
     flightdeck doors. The internal locking                     Security Ministerial Meeting,                      April 2003, U.S. operators will have
     devices are intended to provide                            Montreal, Canada                                   reinforced flightdeck doors. Foreign
     enhanced flightdeck security pending                    March 2002 Latin American Civil                       operators may not.
                                                                Aviation Commission, Asuncion,  ´                     The FAA finds that it is unacceptable
     installation of the reinforced doors
     required by Amendment 121–288.                             Paraguay                                           to create two levels of flightdeck
        As discussed in the preamble to                      March 5, 2002 FAA/JAA Certification                   protection for the same operations to
     Amendment 121–288, the FAA                                 Management Team Meeting,                           and from U.S. airports. It would be
     expected that foreign operators                            Hoofddorp, Netherlands                             irresponsible to expose passengers, and
     conducting service to and from the                      March 18–20, 2002 Central America                     those on the ground, to greater risks
     United States under part 129 would                         and Panama Directors General                       based solely upon the country of
     have flightdeck security measures                          Meeting, Mexico City, Mexico                       registration of the aircraft. In this case
     commensurate with those of U.S.                         April 3, 2002 FAA/JAA Executive                       security considerations clearly demand
     carriers.                                                  Board Meeting, Washington, DC                      that this rule be issued as a necessary
        Part 129 governs foreign operators                   April 3, 2002 12th International Air &                complement to Amendment 121–288
     who operate either within the United                       Space Fair, FIDAE 2002, Santiago,                  and SFAR 92. And to meet this goal of
     States, or who operate solely outside the                  Chile                                              corresponding protection, it is essential
     United States, but with aircraft                        April 9, 2002 IATA Operations                         that the standards be imposed at the
     registered in the United States. In the                    Council Meeting, Brussels, Belgium                 same time. If the requirements do not
     case of operations within the United                    April 13–14, 2002 FAA/Asia-Pacific                    have a synchronized compliance time,
     States, part 129 is effectively equivalent                 Bilateral Partners Meeting, Tokyo,                 the security risk will be shifted to the
     to part 121 in terms of the types of                       Japan                                              unprotected aircraft. Unsynchronized
     operations conducted and the aircraft                   May 7, 2002 Transport Canada Civil                    implementation of the security
     used. With part 121 flightdeck security                    Aviation Annual Safety Meeting,                    measures should not create a more
     improved, the FAA was concerned that                       Niagara on the Lake, Canada                        attractive target for terrorists.
     part 129 operations would be more                          Since the adoption of Amendment                       Because of the need to synchronize
     attractive targets for terrorist actions if             121–288, the International Civil                      the effective dates, this rule must be
     security was not similarly improved.                    Aviation Organization (ICAO) has                      adopted immediately. The time required
     Amendment 121–288 solicited                             moved to adopt standards for flightdeck               for public notice and comment would
     comments on this issue and clearly                      security similar to those adopted by the              make compliance by the required date
     stated that the FAA intended to have                    FAA. The ICAO is an international body                impossible, and the resulting lack of
     consistent flightdeck door security                     consisting of 187 member countries. The               synchronization would increase
     requirements for parts 121 and 129. The                 ICAO adopts standards under                           vulnerability to terrorist attack.
     FAA received no comments objecting to                   Amendment 97 to Annex 8 to the                        Therefore, the FAA finds that it is
     the stated intention to adopt consistent                Convention on International Civil                     necessary to adopt a new rule for part
     standards.                                              Aviation (Chicago Convention). The                    129 operators, without prior notice and

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     42452                Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules and Regulations

     public comment, to prevent an                           flightdeck door is essential, as is                   submit their proposal to the Manager,
     unacceptable disparity in flight deck                   currently mandated in § 121.313. For                  Transport Airplane Directorate, Aircraft
     security between domestic and foreign                   the purposes of this requirement, the                 Certification Service, Federal Aviation
     operators in the United States. In                      FAA has assumed that all affected                     Administration, 1601 Lind Avenue SW.,
     accordance with § 553(b)(3)(B) of the                   aircraft are already equipped with                    Renton, WA 98055–4056.
     Administrative Procedures Act, the                      flightdeck doors. To ensure a consistent                 As also discussed in Amendment
     requirements of notice and opportunity                  level of flightdeck security, however,                121–288, § 129.28(c) requires design
     for comment do not apply when the                       § 129.28(a) mandates that there be a                  precautions to be taken to minimize the
     agency, for good cause, finds that those                flightdeck door on passenger carrying                 penetration of shrapnel from a
     procedures are ‘‘impracticable,                         operations. This requirement is                       fragmentation device and small arms
     unnecessary, or contrary to the public                  intended to prevent the removal of                    projectiles (i.e., ballistics) which might
     interest.’’                                             flightdeck doors, and is not expected to              be fired through the flightdeck doors
                                                             result in installation of flightdeck doors            from occupied compartments. These
     Authority To Amend Part 129                                                                                   requirements have been adopted by
                                                             where none existed. In the unlikely
        Under the Chicago Convention,                        event that an operator is compelled to                ICAO and will be effective November
     signatory states agree that the country of              install a flightdeck door as a result of              2003. The standards are key elements to
     registry regulates the airworthiness of                 this requirement, the FAA will address                protect the flightdeck from intrusion
     aircraft. The Convention also provides,                 such instances on a case by case basis.               because any compromise in the integrity
     however, that the state whose airspace                                                                        of the flightdeck door from a ballistic
     is being entered may require that its                   Internal Flight Deck Door Locking                     threat could enable an intruder to gain
     operational rules be followed. This case                Devices                                               access to the flightdeck.
     presents security issues, which have                      The SFAR 92 series rules initially                     The flightdeck door is already subject
     always been considered operational.                     permitted, and subsequently required,                 to several requirements that affect its
     The FAA has in the past required                        quick installation of simple                          structural integrity. These include
     foreign air carriers to implement                       enhancements to the flightdeck door for               protection during decompression where
     additional security measures for                        improved security. Section 129.28(a)                  the door may incorporate venting
     operations to and from the U.S. The                     adopts a requirement for a similar                    features to prevent a large pressure
     FAA has determined that safe operation                  improvement in flightdeck security.                   differential; egress considerations to
     in the U.S. and on overflights demands                  This requirement is consistent with                   permit the flightcrew to enter the cabin
     a minimum level of flightdeck security,                 SFAR 92 and requires that internal                    in the event the door becomes jammed
     in the same way as does collision                       locking devices be installed within 60                during an accident; and the capacity to
     avoidance equipment, or basic radio                     days of the effective date of this                    allow rescue personnel to enter the
     systems. Collision avoidance equipment                  amendment.                                            flightdeck in the event the flightcrew are
     and radio systems are operational                         As noted in the preamble to SFAR 92,                unable to egress on their own. The door
     requirements. Because flightdeck                        modifications required by this provision              may also be integral in meeting
     security is an operational issue, the U.S.              have the potential to compromise other                ventilation requirements. After
     and the FAA have authority to regulate                  airworthiness standards. As a result,                 reviewing several design proposals, the
     it irrespective of the country of registry.             § 129.28(b) of this rule provides relief              FAA has determined that all the
        Compliance with these requirements                   from the otherwise applicable                         requirements can be accommodated by
     may, in fact, result in modifications to                provisions of § 129.13. Because the FAA               proper design of the door installation.
     aircraft that affect airworthiness. The                 does not directly regulate airworthiness              As a result, aircraft meeting the
     issue in this rulemaking, however, is not               of foreign registered aircraft, however,              requirements of this rule should
     the airworthiness of the aircraft, but the              modifications to install the internal                 continue to meet all the requirements
     ability to operate the aircraft safely in               locking devices may also require relief               necessary to maintain a valid certificate
     the face of evident threats to security.                from the country of registry. Based on                of airworthiness from the country of
     The ICAO itself has reinforced this                     correspondence with other                             registry.
     position by adopting the requirements                   airworthiness authorities, the FAA has                   The rule requires installation of doors
     for intrusion resistant flightdeck doors                concluded that most are prepared to                   meeting this standard by April 9, 2003.
     into its requirements. Although the                     grant this relief, and this amendment                 The FAA evaluated several factors in
     ICAO compliance dates differ from                       should not create a conflict with the                 establishing this compliance time. The
     those adopted here, the intent is the                   standards of the local authority. In the              most important is synchronization of
     same.                                                   event that a country is not willing to                the compliance date with the
                                                             grant such relief, the FAA will work to               requirements of Amendment 121–288.
     Discussion of the Final Rule
                                                             reach a mutually acceptable solution.                 The FAA considers this synchronization
       This amendment requires changes to                                                                          to be essential. This is an aggressive
     aircraft operated by foreign operators in               Reinforced Flight Deck Doors
                                                                                                                   schedule; given the events of September
     accordance with part 129, similar to                      This amendment adopts increased                     11, 2001, however, the issue demands
     changes made on aircraft operated                       long-term standards for flightdeck                    aggressive action. Also, the prior
     under part 121. The requirements                        intrusion resistance in keeping with                  imposition of the door design standard
     consist of enhancements to protect                      standards adopted for part 121 operators              on part 121 operators means that
     against forcible intrusion by persons,                  in Amendment 121–288. This                            manufacturers have made substantial
     ballistic penetration of the flightdeck,                amendment also provides for                           progress in developing reinforced doors
     and access to the flightdeck while the                  compliance with an alternative                        to meet the standard. These new doors
     aircraft is operated. As discussed, the                 standard, acceptable to the                           can be installed on part 129 as well as
     intent of these requirements is to                      Administrator, in the event that the                  part 121 aircraft.
     provide a consistent level of flightdeck                country of registry adopts a different
     security among those aircraft that                      intrusion resistance standard. Operators              Flightdeck Access Provisions
     operate in parts 121 and 129.                           wishing to comply with this amendment                   A new § 129.28(d) is adopted to
     Accordingly, the presence of a                          using an alternative standard should                  require procedures to restrict access to

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                          Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules and Regulations                                          42453

     the flightdeck, except as authorized in                 requires agencies to consider                         collateral damage far exceeding that to
     that section. This action is consistent                 international standards, and use them                 the aircraft and passengers. The losses
     with the requirements of Amendment                      where appropriate as the basis for U.S.               from the September 11 terrorist attack
     121–288 and adopts many of the same                     standards. Fourth, the Unfunded                       are estimated to be several billions of
     provisions, but provides additional                     Mandates Act of 1995 requires agencies                dollars, and the costs of another
     flexibility with respect to the                         to prepare a written assessment of the                incident could possibly be even higher
     allowances made by the airworthiness                    costs and benefits, and other effects of              due to the economic impact of
     authority of the country of registry.                   proposed and final rules. An assessment               passengers choosing not to fly and
        Finally, the FAA is amending                         must be prepared only for rules that                  thereby losing the benefits of air
     § 129.11(a) by adding a new paragraph                   impose a Federal mandate on State,                    transportation.
     (5). This paragraph requires that the                   local, or tribal governments, or on the                  The FAA is not able to accurately
     operator identify those aircraft that are               private sector, likely to result in a total           estimate the actual net social cost and
     subject to these requirements in the                    expenditure of $100 million or more                   the corollary benefit gained by
     operator’s operations specification. This               (adjusted for inflation) in any one year.             preventing future aviation-related
     requirement is necessary to identify the                  In conducting these analyses, the FAA               terrorist acts. The insurance industry’s
     specific aircraft that will be operated                 determined that this rule has benefits                cancellation of war risk coverage for
     within the United States and on                         that justify the costs; will not have a               aircraft indicates both the difficulty of
     overflights, because part 129 operators                 significant impact on a substantial                   estimating the benefits of preventing
     typically have some aircraft in their                   number of small entities; has no effect               future incidents, and the broad impact
     fleets that do not operate within the                   on trade-sensitive activity; and does not             of those terrorist acts. There is, however,
     United States.                                          impose an unfunded mandate on State,                  ample basis for judging the likelihood of
                                                             local, or tribal governments, or on the               attaining benefits by averting future
     Paperwork Reduction Act                                 private sector.                                       attacks to justify this rule.
       In accordance with the Paperwork                                                                               The rule applies to aircraft belonging
                                                             Benefits and Costs                                    to foreign carriers, engaged in air
     Reduction Act of 1995 (44 U.S.C.
     3507(d)), the FAA has determined that                      This rule is part of a series of FAA               transportation serving the U.S. As
     there are no requirements for                           rules to improve aviation safety and                  discussed previously, any of these
     information collection associated with                  security, as directed by the Aviation and             aircraft operated by foreign carriers
     this rule.                                              Transportation Security Act. This rule                could provide a likely target for
                                                             establishes the requirements for                      terrorists interested in their massive
     International Compatibility                             flightdeck door enhancements on                       destructive power. The FAA estimates
       In keeping with U.S. obligations                      aircraft operated to and from the U.S. by             that 4,689 aircraft are operated by air
     under the Convention on International                   foreign operators. Accordingly, the                   carriers certificated under part 129, and
     Civil Aviation, it is FAA policy to                     benefits of this rule are to ensure the               could be potentially affected by this
     comply with ICAO Standards and                          safety and security of the flying public.             rule. Not all of these aircraft, however,
     Recommended Practices to the                            Because this rule is one of several being             will be utilized for operations to the
     maximum extent practicable. The need                    promulgated to avoid a reoccurrence of                U.S.
     for improved flightdeck security is an                  an event like that of September 11,                      A review of the air carriers’ fleets and
     operational and security issue and is                   2001, the benefits will be shared by the              the Official Airline Guide allowed the
     demonstrably necessary to provide safe                  entire set of rules designed to prevent               FAA to significantly reduce the number
     operation within the United States.                     such a recurrence.                                    of aircraft potentially affected by this
     Even though this amendment may result                      The September 11, 2001, attacks                    rule. The selection process eliminated
     in modifications to aircraft, the basis of              demonstrated that foreign terrorists may              those aircraft that, although in a foreign
     the rule is to provide for safe operation               choose civil aviation as a tool as well as            carrier’s fleet, could not be feasibly
                                                             a target. They have demonstrated their                utilized for service to the U.S. An
     and is appropriately an operational
                                                             ability to circumvent security practices              example would include turboprops,
     requirement of part 129.
                                                             and gain possession of improvised                     regional jets, and some smaller
     Regulatory Evaluation Summary                           weapons in flight. Flightdeck doors                   narrowbody aircraft based in Europe
                                                             provide a last line of defense and can                and Asia. With the remaining aircraft,
     Regulatory Evaluation, Regulatory
                                                             either prevent entry or delay entry while             the FAA recognizes that some carriers
     Flexibility Determination, Trade Impact
                                                             other intervention occurs.                            have dedicated aircraft to fly to the U.S.,
     Assessment, and Unfunded Mandates
                                                                The most recent compelling evidence                but conservatively estimated that any
     Act Assessment
                                                             of the benefit provided by fortifying                 aircraft in the carrier’s fleet could be put
       Changes to Federal regulations must                   flightdeck doors was seen on February                 in service on a route to the U.S., and
     undergo several economic analyses.                      7, 2002, when a man on a United                       will therefore need to be retrofitted. An
     First, Executive Order 12866 directs                    Airlines flight from Miami to Buenos                  example is the large contingent of
     each Federal agency proposing or                        Aires was able to insert his torso                    Boeing 747s in Japan Airlines’ and
     adopting a regulation to first make a                   through the lower blowout panel of the                British Airways’ fleets. Although only a
     reasoned determination that the benefits                flightdeck door. The door had been                    portion of those aircraft might be
     of the intended regulation justify its                  retrofitted with a steel bar and was                  dedicated to U.S. routes, the FAA
     costs. Second, the Regulatory Flexibility               locked, preventing the man from                       assumes that they will all be retrofitted.
     Act of 1980 requires agencies to analyze                completely entering the flightdeck, and               The aforementioned analysis resulted in
     the economic impact of regulatory                       enabling the flightcrew to subdue the                 an estimate of 1,921 aircraft that will be
     changes on small entities. Third, the                   intruder before another disaster                      affected by this rule. This figure does
     Trade Agreements Act prohibits                          occurred.                                             not include aircraft in charter service.
     agencies from setting standards that                       As was witnessed on September 11,                     For this analysis, the FAA assumed
     create unnecessary obstacles to the                     2001, terrorist acts can result in the                that the estimated costs of future
     foreign commerce of the United States.                  complete destruction of an aircraft with              compliant flightdeck doors will be
     In developing U.S. standards, this act                  the loss of all on board, with the                    approximately $17,000, installed. The

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     42454                Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules and Regulations

     flightdeck door applications to meet the                $11.2 million ($8.3 million, discounted)              significant impact on a substantial
     new standards have not yet been                         over the next decade.                                 number of small entities, therefore a full
     approved; therefore, the FAA used an                       When all costs are accounted for, the              Regulatory Flexibility Analysis is not
     upper bound cost of what the agency                     total cost of this rule over the next                 necessary. The rule affects only foreign
     believes is a door that meets the intent                decade is expected to be $43.8 million                air carriers, not U.S. businesses.
     of the rule.                                            ($40.9 million discounted). Using an
        Not knowing exactly how many                         average cost of $36,000 per door, instead             International Trade Impact Assessment
     aircraft have doors that are already                    of the base case cost of $17,000, the total              The Trade Agreement Act of 1979
     compliant with the rule, the FAA                        cost of this rule would increase to $83.1             prohibits Federal agencies from
     proceeded with the assumption that all                  million ($80.2 million discounted).                   engaging in any standards or related
     1,921 aircraft will be required to be                      This rule will ensure that any                     activities that create unnecessary
     retrofitted with new doors, at a base                   attempts to enter through the flightdeck              obstacles to the foreign commerce of the
     case cost of approximately $17,000                      door of foreign operated aircraft flying              United States. Legitimate domestic
     each. This will result in a base case cost              to the U.S. will be very difficult. The               objectives, such as safety and security,
     of $32.7 million. Because no foreign                    new standards will deter terrorists from              are not considered unnecessary
     repair stations have applied for door                   attempting to take over the flightdeck. If            obstacles. The statute also requires
     certification, it is possible that several              an attempt is made, implementation of                 consideration of international standards
     foreign carriers will opt to have their                 the standards will significantly delay                and, where appropriate, that they be the
     doors installed by the aircraft’s original              efforts to gain entry, thus allowing                  basis for U.S. standards.
     equipment manufacturer. This will                       additional security efforts to be                        A single level of safety among aircraft,
     mean an increased cost to about $27,500                 implemented. In addition to meeting a                 regardless of registry, is paramount to
     per door for narrowbody aircraft, and                   requirement of the Aviation and                       the protection of the American public,
     $39,900 for widebody aircraft. Based on                 Transportation Security Act, the                      as well as for the passengers on-board
     the affected fleet, the average cost per                potential benefits of this rule greatly               the aircraft. In January 2002, the FAA
     door will be just under $36,000, plus                   exceed the costs. Accordingly, the FAA                adopted a rule requiring, by April 2003,
     installation. These figures, released by                believes that the rule is cost-beneficial             the hardening of cockpit doors on all
     Boeing and partner C&D Interiors, are                   and is necessary to ensure the level of               U.S. aircraft in scheduled commercial
     consistent with a door that far exceeds                 aviation security expected by the                     service requiring a door between the
     the intent of the rule, but it is still likely          American public, and passengers flying                passenger and crew compartments and
     to be the choice of carriers due to                     to/from the U.S. on foreign carriers.                 transport category cargo aircraft with
     convenience. The upper bound cost to                                                                          flightdeck doors. U.S. carriers have not
                                                             Regulatory Flexibility Determination                  been the first to fortify flightdeck doors.
     foreign air carriers to purchase and
     install the compliant door could,                          The Regulatory Flexibility Act of 1980             In fact, recognizing the terrorist threat,
     therefore, be as high as $72.0 million.                 (RFA) establishes ‘‘as a principle of                 El Al Israel Airlines’ aircraft have had
        Many flightdeck door manufacturers                   regulatory issuance that agencies shall               secure cockpits for many years, and so
     claimed that their version of a secure                  endeavor, consistent with the objective               have several other aircraft in various
     flightdeck door could be installed by                   of the rule and of applicable statutes, to            fleets around the world.
     airline technicians overnight, or during                fit regulatory and informational                         To promote uniformity in the security
     an extended overnight. Some claim that                  requirements to the scale of the                      of aircraft, in March 2002, ICAO
     their kit can be installed in four hours                business, organizations, and                          established a universally acceptable
     or less. The plan is for the                            governmental jurisdictions subject to                 international standard, requiring that all
     manufacturers’ mechanics to train the                   regulation.’’ To achieve that principle,              of the world’s airlines meet the standard
     airlines’ technicians, supervise the first              the RFA requires agencies to solicit and              by November 2003. Some carriers, such
     several installations, and then allow the               consider flexible regulatory proposals                as British Airways and All Nippon
     airlines to complete the installations on               and to explain the rationale for their                Airways, voluntarily opted to strengthen
     their own. Based on this information,                   actions. The RFA covers a wide range of               their flightdeck doors soon after
     the FAA believes that there will be no                  small entities, including small                       September 11. Despite the fact that some
     need to take aircraft out of service for                businesses, not-for-profit organizations,             aircraft are already compliant, the 7-
     any significant amount of time.                         and small governmental jurisdictions.                 month gap between the FAA regulation
        Commercial air carrier operators will,                  Agencies must perform a review to                  and ICAO mandate, and the lack of an
     however, incur costs attributable to the                determine whether a proposed or final                 ICAO cargo aircraft requirement, could
     increased fuel consumption resulting                    rule will have a significant economic                 pose a threat to the American public
     from heavier doors. The industry                        impact on a substantial number of small               and the passengers of those carriers who
     estimates that a typical door currently                 entities. If the determination is that it             are not voluntarily protecting their
     weighs approximately 25 pounds, and                     will, the agency must prepare a                       flightdecks.
     that a new compliant door will weigh                    regulatory flexibility analysis as                       The FAA therefore feels that
     approximately 75 pounds. The weight                     described in the RFA.                                 extending the same requirements
     increase of approximately 50 pounds                        If an agency determines, however,                  imposed on U.S. carriers to foreign
     will translate into increased fuel                      that a proposed or final rule is not                  carriers serving U.S. airports is
     consumption for aircraft affected by the                expected to have a significant economic               warranted. The fortification will be
     rule. The increase in fuel consumption                  impact on a substantial number of small               required by ICAO just several months
     was calculated based on the projected                   entities, section 605(b) of the RFA                   later, and is likely to be required by
     aircraft utilization of 8.6 block hours per             provides that the head of the agency                  insurance companies extending war risk
     day and rate of fuel burn increase. At a                may so certify and a regulatory                       insurance.
     current cost of $0.62 per gallon, and                   flexibility analysis is not required. The                The FAA has assessed the potential
     forecasted price based on the FAA                       certification must include a statement                effect of this rule and has determined
     Aerospace Forecast, the additional                      providing the factual basis for this                  that the objective of this rule is the
     weight is expected to impose an                         determination, and the reasoning should               safety and security of the United States;
     additional cost to foreign air carriers of              be clear. This rule will not have a                   the rule is therefore not considered an

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     unnecessary obstacle to international                   rulemaking action qualifies for a                     States or on overflights unless the
     trade.                                                  categorical exclusion.                                aircraft is equipped with a door between
                                                                                                                   the passenger and pilot compartment
     Unfunded Mandates Assessment                            Energy Impact
                                                                                                                   that incorporates features to restrict the
        Title II of the Unfunded Mandates                      The energy impact of the rule has                   unwanted entry of persons into the
     Reform Act of 1995 (the Act), 2 U.S.C.                  been assessed in accordance with the                  flightdeck that are operable from the
     1531–1571, requires each Federal                        Energy Policy and Conservation Act                    flightdeck only; or
     agency, to the extent permitted by law,                 (EPCA) Pub. L. 94–163, as amended (42                    (2) A transport category all-cargo
     to prepare a written assessment of the                  U.S.C. 6362) and FAA Order 1053.1. It                 airplane, within the United States or on
     effects of any Federal mandate in a                     has been determined that the rule is not              overflights, that has a door installed
     proposed or final agency rule that may                  a major regulatory action under the                   between the pilot compartment and any
     result in the expenditure by State, local,              provisions of the EPCA.                               other occupied compartment on or after
     and tribal governments, in the aggregate,               List of Subjects in 14 CFR Part 129                   January 15, 2002, unless the door
     or by the private sector, of $100 million                                                                     incorporates features to restrict the
     or more (adjusted annually for inflation)                 Aircraft, Aviation safety, Reporting                unwanted entry of persons into the
     in any one year.                                        and recordkeeping requirements, Safety,               flightdeck that are operable from the
        This rule does not contain any                       Transportation.                                       flightdeck only.
     Federal intergovernmental or private                    The Amendment                                            (b) To the extent necessary to meet the
     sector mandate. Therefore, the                                                                                requirements of paragraph (a) of this
     requirements of Title II of the Unfunded                  In consideration of the foregoing, the              section, the requirements of § 129.13(a)
     Mandates Reform Act of 1995 do not                      Federal Aviation Administration (FAA)                 to maintain airworthiness certification
     apply.                                                  amends part 129 of Title 14 Code of                   are waived until April 9, 2003. After
                                                             Federal Regulations, as follows:                      that date, the requirements of
     Good Cause for Immediate Adoption                                                                             § 129.13(a) apply in full.
        As discussed previously, the FAA                     PART 129—OPERATIONS: FOREIGN                             (c) After April 9, 2003, no foreign air
     finds that notice and public comment                    AIR CARRIERS AND FOREIGN                              carrier covered by § 129.1(a) may
     on this final rule are impracticable,                   OPERATORS OF U.S.-REGISTERED                          operate a passenger carrying transport
     unnecessary, and contrary to the public                 AIRCRAFT ENGAGED IN COMMON                            category airplane, or a transport
     interest. The rule requires                             CARRIAGE                                              category all-cargo airplane that has a
     implementation of security                                 1. The authority citation for part 129             door installed between the pilot
     requirements related to protection of the               is revised to read as follows:                        compartment and any other occupied
     flightdeck. It provides means to protect                                                                      compartment on or after June 21, 2002,
                                                               Authority: 49 U.S.C. 1372, 40113, 40119,
     the flightdeck from small arms fire or                                                                        within the United States or on
                                                             44101, 44701–44702, 44705, 44709–44711,
     fragmentation devices, as well as means                 44713, 44716–44717, 44722, 44901–44904,               overflights unless the aircraft’s
     to protect against intrusion by                         44906, 44912, 46105, Pub. L. 107–71 sec.              flightdeck door installation meets the
     unauthorized persons. Providing one                     104.                                                  requirements of paragraphs (c)(1) and
     standard for U.S. operators while                                                                             (2) of this section or an alternative
     allowing a lower standard for foreign                     2. Section 129.11 is amended by                     standard found acceptable to the
     operators only invites a shift of terrorist             adding a new paragraph (a)(5) to read as              Administrator.
     focus. It is essential that the rules                   follows:                                                 (1) Resist forcible intrusion by
     impose the same standards at the same                                                                         unauthorized persons and be capable of
                                                             § 129.11    Operations specifications.
     time. The only way to make this                                                                               withstanding impacts of 300 joules
                                                               (a) * * *                                           (221.3 foot-pounds) at the critical
     requirement effective concurrently with                   (5) Registration and markings of each
     the previously adopted requirement for                                                                        locations on the door, as well as a 1,113-
                                                             aircraft that meets equipment
     U.S. operators is to immediately adopt                                                                        newton (250 pounds) constant tensile
                                                             requirements of § 129.28(a).
     this requirement.                                         3. In § 129.13, paragraph (a) is revised            load on the knob or handle, and
                                                                                                                      (2) Resist penetration by small arms
     Executive Order 13132, Federalism                       to read as follows:
                                                                                                                   fire and fragmentation devices to a level
       The FAA has analyzed this rule under                  § 129.13 Airworthiness and registration               equivalent to level IIIa of the National
     the principles and criteria of Executive                certificates.                                         Institute of Justice Standard (NIJ)
     Order 13132, Federalism. We                               (a) Except as provided in § 129.28(b)               0101.04.
     determined that this action would not                   of this part, no foreign air carrier may                 (d) After August 20, 2002, no foreign
     have a substantial direct effect on the                 operate any aircraft within the United                air carrier covered by § 129.1 may
     States, on the relationship between the                 States unless that aircraft carries current           operate a passenger carrying transport
     national Government and the States, or                  registration and airworthiness                        category airplane, or a transport
     on the distribution of power and                        certificates issued or validated by the               category all-cargo airplane that has a
     responsibilities among the various                      country of registry and displays the                  door installed between the pilot
     levels of government. Therefore, we                     nationality and registration markings of              compartment and any other occupied
     determined that this rule would not                     that country.                                         compartment on or after June 21, 2002,
     have federalism implications.                           *     *     *      *    *                             within the United States or on
                                                               4. Part 129 is amended by adding a                  overflights unless the carrier has
     Environmental Analysis                                                                                        procedures in place that are acceptable
                                                             new § 129.28 to read as follows:
       FAA Order 1050.1D defines FAA                                                                               to the civil aviation authority
     actions that may be categorically                       § 129.28    Flightdeck security.                      responsible for oversight of the part 129
     excluded from preparation of a National                   (a) After August 20, 2002, no foreign               operator to prevent access to the
     Environmental Policy Act (NEPA)                         air carrier covered by § 129.1(a), may                flightdeck except as authorized as
     environmental impact statement. In                      operate:                                              follows:
     accordance with FAA Order 1050.1D,                        (1) A passenger carrying transport                     (1) No person other than a person who
     appendix 4, paragraph 4(j), this                        category aircraft within the United                   is assigned to perform duty on the flight

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     42456                Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules and Regulations

     deck may have a key to the flight deck                  separating the flight crew compartment                  (iii) Any other person authorized by
     door that will provide access to the                    from the passenger compartment is                     the civil aviation authority responsible
     flightdeck.                                             closed and locked at all times when the               for oversight of the part 129 operator.
        (2) Except when it is necessary to                   aircraft is being operated.
                                                                                                                     Issued in Washington, DC, on June 14,
     permit access and egress by persons                        (3) No person may admit any person
     authorized in accordance with                           to the flight deck of an aircraft unless
     paragraph (d)(3) of this section, a pilot               the person being admitted is—                         Jane F. Garvey,
     in command of an aircraft that has a                       (i) A crewmember,                                  Administrator.
     lockable flight deck door in accordance                    (ii) An inspector of the civil aviation            [FR Doc. 02–15524 Filed 6–18–02; 12:01 pm]
     with § 129.28(a) and that is carrying                   authority responsible for oversight of                BILLING CODE 4910–15–P
     passengers shall ensure that the door                   the part 129 operator, or

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