[Federal Register Volume 63, Number 225 (Monday, November 23, 1998)]
[Proposed Rules]
[Pages 64764-64769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30934]
[[Page 64763]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 129
Security Programs of Foreign Air Carriers; Proposed Rule
Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 /
Proposed Rules
[[Page 64764]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 129
[Docket No. FAA-1998-4758; Notice No. 98-17]
RIN 2120-AG13
Security Programs of Foreign Air Carriers
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of Proposed Rulemaking (NPRM); notice of public meeting.
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SUMMARY: The FAA proposes to amend the existing airplane operator
security rules for foreign air carriers and foreign operators of U.S.
registered aircraft. The proposed rule would implement provisions of
the Antiterrorism and Effective Death Penalty Act of 1996. The proposed
rule would condition the Administrator's acceptance of a foreign air
carrier's security program on a finding that the security program
requires adherence to the identical security measures that the
Administrator requires U.S. air carriers serving the same airports to
adhere to. The proposed rule is intended to increase the safety and
security of passengers aboard foreign air carriers on flights to and
from the United States. In addition, the FAA is announcing a public
meeting on the NPRM to provide an additional opportunity for the public
to comment.
DATES: Comments must be submitted on or before March 23, 1999.
A public meeting will be held on February 24, 1999.
ADDRESSES: The public meeting will be held at the Federal Aviation
Administration, 800 Independence Ave., SW, Washington, D.C., in the
main auditorium on the 3rd Floor. Registration: 8:30 a.m.; Meeting:
9:00 a.m.-5:00 p.m.
Comments on this proposed rulemaking should be mailed or delivered
in duplicate, to: U.S. Department of Transportation Dockets, Docket No.
FAA-1998-4758, 400 Seventh Street, SW, Room Plaza 401, Washington, DC
20590. Comments may also be sent electronically to the following
internet address: [email protected] Comments may be filed and/or
examined in Room Plaza 401 between 10 a.m. and 5 p.m. weekdays except
Federal holidays. Written comments to the docket will receive the same
consideration as statements made at the public meeting.
Comments that include or reference national security information or
sensitive security information should not be submitted to the public
docket. These comments should be sent to the following address in a
manner consistent with applicable requirements and procedures for
safeguarding sensitive security information: Federal Aviation
Administration, Office of Civil Aviation Security Operations,
Attention: FAA Security Control Point, Docket No. FAA-1998-4758, 800
Independence Avenue, SW., Washington, D.C. 20591.
FOR FURTHER INFORMATION CONTACT: Moira A. Lozada, Office of Civil
Aviation Security Policy and Planning, Civil Aviation Security Division
(ACP-100), Federal Aviation Administration, 800 Independence Ave., SW.,
Washington, D.C. 20591; telephone (202) 267-5961.
Requests to present a statement at the public meeting on the
Security Programs of Foreign Air Carriers NPRM and questions regarding
the logistics of the meeting should be directed to Elizabeth I. Allen,
Federal Aviation Administration, Office of Rulemaking (ARM-105), 800
Independence Avenue, SW, Washington, DC 20591, telephone (202) 267-
8199; fax (202) 267-5075.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in this rulemaking by
submitting such written data, views, or arguments as they may desire.
Comments relating to the environmental, energy, federalism, or economic
impact that might result from adopting the proposals in this document
are also invited. Substantive comments should be accompanied by cost
estimates.
Comments should identify the regulatory docket or notice number and
be submitted in duplicate to the Rules Docket (see ADDRESSES). All
comments received on or before the closing date for comments specified
will be considered by the Administrator before taking action on this
proposed rulemaking. The proposals contained in this document may be
changed in response to comments received. Comments received on this
proposal will be available, both before and after the closing date for
comments, in the Rules Docket for examination by interested persons.
However, the Assistant Administrator has determined that air carrier
security programs required by parts 108 and 129 contain sensitive
security information. As such, the availability of information
pertaining to airport security programs is governed by 14 CFR Part 191
(Withholding Security Information from Disclosure Under the Air
Transportation Security Act of 1974).
A report summarizing each substantive public contact with FAA
personnel concerned with this rulemaking will be filed in the docket.
Commenters wishing the FAA to acknowledge receipt of their comments
must include a self-addressed, stamped postcard on which the following
statement is made: ``Comments to Docket No. FAA-1998-4758.'' The
postcard will be date-stamped and mailed to the commenter.
In order to give the public an additional opportunity to comment on
the NPRM, the FAA is planning a public meeting.
Requests from persons who wish to present oral statements at the
public meeting on the Security Programs of Foreign Air Carriers NPRM
should be received by the FAA no later than February 17, 1999. Such
requests should be submitted to Elizabeth I. Allen as listed in the
section titled FOR FURTHER INFORMATION CONTACT. Requests received after
February 17, will be scheduled if time is available during the meeting;
however the name of those individuals may not appear on the written
agenda. The FAA will prepare an agenda of speakers that will be
available at the meeting. To accommodate as many speakers as possible,
the amount of time allocated to each speaker may be less than the
amount of time requested. Those persons desiring to have available
audiovisual equipment should notify the FAA when requesting to be
placed on the agenda.
Public Meeting Procedures
The public meeting will be held on February 24, 1999, at the
Federal Aviation Administration, 800 Independence Ave., SW, Washington,
DC, in the main auditorium on the 3rd Floor. Registration: 8:30 a.m.;
meeting: 9:00 a.m.-5:00 p.m.
The following procedures are established to facilitate the public
meeting on the NPRM.
1. There will be no admission fee or other charge to attend or to
participate in the public meeting. The meeting will be open to all
persons who have requested in advance to present statements or who
register on the day of the meeting (between 8:30 and 9:00 a.m.) subject
to availability of space in the meeting room.
2. The public meeting may adjourn early if scheduled speakers
complete their statements in less time than currently is scheduled for
the meeting.
3. The FAA will try to accommodate all speakers; therefore, it may
be
[[Page 64765]]
necessary to limit the time available for an individual or group.
4. Participants should address their comments to the panel. No
individual will be subject to cross-examination by any other
participant.
5. Sign and oral interpretation can be made available at the
meeting, as well as an assistive listening device, if requested 10
calendar days before the meeting.
6. Representatives of the FAA will conduct the public meeting. A
panel of FAA personnel involved in this issue will be present.
7. The meeting will be recorded by a court reporter. A transcript
of the meeting and any material accepted by the panel during the
meeting will be included in the public docket (Docket No. FAA-1998-
4758). Any person who is interested in purchasing a copy of the
transcript should contact the court reporter directly. This information
will be available at the meeting.
8. The FAA will review and consider all material presented by
participants at the public meeting. Position papers or material
presenting views or information related to the interim final rule may
be accepted at the discretion of the presiding officer and subsequently
placed in the public docket. The FAA requests that persons
participating in the meeting provide 10 copies of all materials to be
presented for distribution to the panel members; other copies may be
provided to the audience at the discretion of the participant.
9. Statements made by members of the public meeting panel are
intended to facilitate discussion of the issues or to clarify issues.
Because the meeting concerning the Security Programs of Foreign Air
Carriers is being held during the comment period, final decisions
concerning issues that the public may raise cannot be made at the
meeting. The FAA may, however, ask questions to clarify statements made
by the public and to ensure a complete and accurate record. Comments
made at this public meeting will be considered by the FAA.
10. The meeting is designed to solicit public views on the NPRM.
Therefore, the meeting will be conducted in an informal and
nonadversarial manner.
Availability of NPRM
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Government Printing Office's electronic bulletin board service
(telephone: 202-512-1661).
Internet users may reach the FAA's web page at http://www.faa.gov
or the Government Printing Office's webpage at http://
www.access.gpo.gov/su__docs for access to recently published rulemaking
documents.
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Rulemaking, ARM-1,
800 Independence Ave., SW., Washington, D.C. 20591, or by calling (202)
267-9680. Communications must identify the notice number of this NPRM.
Persons interested in being placed on the mailing list for future
NPRM's should request from the above office a copy of Advisory Circular
No. 11-2A, Notice of Proposed Rulemaking Distribution System, which
describes the application procedure.
Background
The Current FAA Security Program for Foreign Air Carriers
The FAA's present Civil Aviation Security Program was initiated in
1973. Part 129 of Title 14 of the Code of Federal Regulations governs
the operations of foreign air carriers that hold a permit issued by the
Department of Transportation (DOT) under 49 U.S.C. Subtitle VII,
section 41301 or that hold another appropriate economic or exemption
authority issued by DOT.
The foreign air carrier security regulations were promulgated in
1976 (41 FR 30106; July 22, 1976). In 1989, the FAA issued an amendment
to Sec. 129.25(e) (41 FR 11116; March 16, 1989) that requires foreign
air carriers flying to or from the U.S. to submit their security
programs to the FAA for acceptance by the Administrator. The submitted
programs must describe the procedures, facilities, and equipment that
foreign air carriers will use to ensure the security of persons and
property traveling in air transportation. The rule applies to foreign
air carrier operations at U.S. airports and at foreign airports that
are a last point of departure before landing in the United States.
For airports that are last points of departure to the United States
and for which a government authority on the carrier's behalf performs
certain security procedures, the FAA's policies allow the foreign air
carrier to refer the FAA to the appropriate foreign government
authority that performs those security procedures (54 FR 25551; June
15, 1989).
Currently, 171 foreign air carriers are required to have a security
program that is acceptable to the Administrator. The programs contain
sensitive security procedures and are not available to the public, in
accordance with 14 CFR Part 191 (41 FR 53777; December 9, 1976), which
establishes the requirements for withholding security information from
disclosure under the Air Transportation Security Act of 1974 (Public
Law 93-366).
Recent Changes To Tighten Security
The Aviation Security Improvement Act of 1990 (Pub. L. 101-604),
enacted on November 16, 1990, after the bombing of Pan Am Flight 103
(December 1988), mandated many changes to air carrier security
programs. It was the intent of Congress to ensure that all Americans
would be guaranteed adequate protection from terrorist attacks on
international flights arriving in or departing from the United States,
regardless of the nationality of the air carrier providing the service.
The 1990 Act required the FAA to ensure that foreign air carriers
operating under security programs provide a similar level of security
to that of programs required of U.S. carriers. Accordingly, current
Sec. 129.25(e), as amended in 1991 (56 FR 30122; July 1, 1991),
requires that a foreign air carrier's security program must provide
passengers with a level of protection similar to the level provided by
U.S. air carriers serving the same airports.
Since 1990, the meaning of the term ``similar'' has been considered
by some to be ambiguous. On April 24, 1996, the Antiterrorism and
Effective Death Penalty Act of 1996 (Pub. L. 104-132) (the
Antiterrorism Act) was enacted. Subtitle B, section 322 of that Act,
amends 49 U.S.C. section 44906, to clarify the ambiguous term by
requiring the following:
The Administrator of the Federal Aviation Administration shall
continue in effect the requirement of section 129.25 of title 14,
Code of Federal Regulations, that a foreign air carrier must adopt
and use a security program approved by the Administrator. The
Administrator shall not approve a security program of a foreign air
carrier under section 129.25, or any successor regulation, unless
the security program requires the foreign air carrier in its
operations to and from airports in the United States to adhere to
the identical security measures that the Administrator requires air
carriers serving the same airports to adhere to. The foregoing
requirement shall not be interpreted to limit the ability of the
Administrator to impose additional security measures on a foreign
air carrier or an air carrier when the Administrator determines that
a specific threat warrants such additional measures. The
Administrator shall prescribe regulations to carry out this section.
In accordance with the Antiterrorism Act, Congress intends that the
FAA will establish a level of necessary security measures for
international flights from each airport that both foreign and U.S.
carriers will be required to employ.
[[Page 64766]]
Moreover, Congress does not in any way intend the Antiterrorism Act to
restrict the ability of the FAA to impose additional measures on any
airline at any time that a particular threat warrants additional
measures. (Conference Report 104-518, Terrorism Prevention Act, pg.
113-114, Government Printing Office, Washington, D.C., April 1996.)
This notice proposes to amend Sec. 129.25(e) to reflect the recent
legislation by stating that a security program of a foreign air carrier
is acceptable only if the Administrator finds that the security program
requires the foreign air carrier in its operations to and from airports
in the United States to adhere to the identical security measures that
the Administrator requires U.S. air carriers serving the same airports
to adhere to.
Role of the European Civil Aviation Conference
The European Civil Aviation Conference (ECAC) requested, and was
granted, an opportunity to present to the Associate Administrator for
Civil Aviation Security its observations on the underlying issues and
potential solutions associated with FAA implementation of section 322
of the Antiterrorism Act.
In October 1996, the ECAC expressed disagreement with several
underlying issues associated with the proposed revision to part 129.
First, according to ECAC, the implementation of the proposed revision
to part 129 is the ``unequivocal imposition of extraterritorial
legislation.'' Instead of using domestic legislation to adjust
implementation of aviation security, the ECAC believes enhanced
security cooperation can be best achieved through consultation. The
ECAC voiced its concern that the implementation of revisions of part
129 as required by the domestic legislation will lead to divisiveness
among countries.
Second, the ECAC believes that amendments to rulemaking and
security program requirements associated with part 129 have
historically been tied to changes in the nature and scope of the threat
posed to the security of the aircraft. This proposal does not appear to
be consistent with a threat-based standard, according to the ECAC.
Third, ECAC analysis shows that practical and physical
implementation of the security measures associated with the proposed
revision to part 129 is ``impossible'' at many European airports. The
ECAC estimates that the costs associated with the implementation of the
proposed revisions to part 129 at a single airport in the Netherlands
would be prohibitive.
Fourth, the ECAC is attempting to implement comprehensive security
measures at all airports. In the estimation of the ECAC, the
implementation of ``identical measures'' would inhibit such a
comprehensive approach by introducing requirements generating
distinctive security requirements to a selected portion of air
carriers.
Finally, the ECAC expressed concern that the implementation of
security measures ``identical'' to those required of U.S. air carriers
at last points of departure to the U.S., may have the unintended effect
of lowering the current security measures of some foreign air carriers.
For example, a non-European air carrier operating an originating flight
from a region with political instability or strife would need to
implement extraordinary security measures. These security measures
reflect the higher associated threat to its aircraft than the threat
associated with a U.S. air carrier not originating operations from the
same region, but departing the same airport for the United States.
The FAA values the opportunity to have heard the preliminary
observations of the ECAC regarding the legislative mandate for
``identical security measures.'' Through such frank discussions, as
well as from comments received from this Notice, the FAA anticipates
the assistance of the affected parties to implement the Congressional
mandate. The concerns of the ECAC are addressed in the following
section.
Discussion of the Proposal in Response to ECAC Concerns
Questions have been raised about the implementation of this
proposed rule. Specifically, certain foreign governments have expressed
concern about the FAA seeking security programs from foreign air
carriers which would include the procedures at foreign airports where
government authorities implement security measures. These governments
believe that the more appropriate source of security programs for these
operations is the responsible foreign government, not the foreign air
carriers.
The proposed rule would be consistent with U.S. international
obligations. As the FAA has stated in the past, the applicability of
this rule to foreign air carrier operations at foreign airports that
are a last point of departure to the United States is necessary for the
FAA to assure that foreign air carrier operations into the U.S.
territory are secure. This rule is an exercise of authority recognized
in the Convention on International Civil Aviation (Chicago Convention)
and U.S. air transport agreements and is not intended to undermine the
sovereignty of other nations. Under the Chicago Convention and U.S.
bilateral air transport agreements, foreign air carriers are required
to comply with the laws and regulations governing admission to or
departure from the United States and the operation and navigation of
those aircraft while within U.S. territory. The provisions of the
proposed rule are within the scope of those laws and regulations.
Moreover, the implementation of this proposed rule will be done in
accordance with these international obligations.
Historically, the aviation community implemented security measures
based upon the assumption that the threat to an aircraft was directly
related to the specific nationality of the air carrier. The implication
of the Act is that the terrorist threat to U.S. interests relates not
only to U.S. air carriers but also to air carriers of any nationality
engaged in commerce with the United States. Therefore, security
measures for U.S. and foreign air carriers operating at last points of
departure to the U.S. or from airports in the United States should be
identical.
In accordance with the Conference Report on the Act, the FAA
intends to identify Annex 17 to the Chicago Convention as the baseline
of necessary security measures required of foreign air carrier
operations to and from the United States. Currently, the majority of
foreign air carrier flights to and from the United States operate under
this standard.
Under existing authority, the FAA will review and update the
security requirements that need to be levied on U.S. carriers. This
will be done on a country-by-country basis, and in some cases an
airport-by-airport basis within a country. To implement this proposed
rule, the FAA would then impose identical security measures on all
foreign carriers flying from those airports as last points of departure
to the United States.
The FAA has found that similar levels of protection, for
practically all foreign carriers' flights from the United States, and
most flights from overseas, have been provided by meeting the standards
of Annex 17. However, the FAA's assessments in the past of terrorist
threats have indicated the necessity for some foreign flag carriers to
implement additional measures to afford a level of protection similar
to that of U.S. carriers.
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The foreign flag carriers may initiate implementation of the
additional measures based on their own national threat assessments, or
the foreign air carriers and their respective national authorities may
agree to the implementation of additional security measures following
consultations with the FAA.
If, however, specific temporary threats affect a particular foreign
air carrier or U.S. air carrier, the FAA may require it to implement
additional appropriate security measures. In such instances, the FAA
intends that any additional security measures will not apply to
airlines that are not threatened.
The FAA does not intend to diminish the security measures of any
foreign air carrier that may currently exceed the security measures
required of U.S. air carriers serving the same airport and the proposed
rule language so states.
The FAA will consult the foreign government authority whenever
changes to security measures are deemed necessary at a foreign airport.
Proposed Implementation of the Proposal
The FAA would initiate implementation of the ``identical measures''
provisions of the Antiterrorism and Effective Death Penalty Act of 1996
by amending Sec. 129.25(e) and by amending the foreign air carriers'
security programs. The FAA anticipates publication of the final rule in
the Federal Register by the end of June 2000. The effective date of the
regulation would be at least a month from publication.
The final stage of implementation of a final rule would occur with
amendment to the security programs of the regulated foreign air
carriers. Toward that end, the FAA anticipates development of specific
security amendments in a parallel process to the public rulemaking. The
process will be predicated on a revalidation of the currently required
security measures for air carriers. The FAA will retain all of the
security measures for which there is a continuing security
justification. The FAA will evaluate how identical measures may be
implemented by foreign air carriers in the most effective manner from a
security standpoint. Special attention will be paid to the more complex
measures, such as profiling.
The FAA has devoted considerable resources toward developing
security standards and regulations as well as the type of equipment
that helps to keep international civil aviation secure for not only the
citizens of the United States, but for all persons using the
international civil aviation system. The FAA believes that it is
through such continued international cooperation that all flights can
be more secure in an increasingly dangerous world.
Regulatory Evaluation Summary
The FAA has determined that this proposed rule is a ``not
significant rulemaking action,'' as defined by Executive Order 12866
(Regulatory Planning and Review). The anticipated costs and benefits
associated with this proposed rule are summarized below. (A detailed
discussion of costs and benefits is contained in the full evaluation in
the docket for this proposed rule.)
Because the Antiterrorism Act prohibits the Administrator from
approving any security program of a foreign air carrier ``unless the
security program requires the foreign air carrier * * * to adhere to
identical security measures'' that apply to U.S. carriers serving the
same airports, the FAA has determined that there are not any
potentially effective and reasonably feasible alternatives to the
proposed regulation that need to be assessed. However, the FAA has
drafted the proposed rule to permit flexibility in two respects. It
would allow a foreign air carrier to exceed the security measures
required of U.S. carriers. The proposal also would permit a foreign air
carrier to refer the FAA to appropriate foreign government authorities
that perform security functions on the carrier's behalf in lieu of
specifying the procedures.
Cost of Compliance
The FAA has performed an analysis of the expected costs and
benefits of this regulatory proposal. In this analysis, the FAA
estimated costs for a 10-year period, from 1998 through 2007. As
required by the Office of Management and Budget (OMB), the present
value of this stream was calculated using a discount factor of 7
percent. All costs in this analysis are in 1995 dollars.
To calculate the costs, the FAA examined the differences between
the Air Carrier Standard Security Program (ACSSP), which sets the
security standards and procedures that all certificated U.S. air
carriers use, and the Model Security Program (MSP), which sets the
security standards and procedures that all certificated part 129
(foreign) air carriers use. These differences were examined at both
domestic airports and foreign airports that serve as the last point of
departure (LPD) to the U.S. Due to the sensitive nature of these
documents, most of these specific differences cannot be discussed in
this economic summary or the regulatory analysis (both of which are
public documents). The Associate Administrator for Civil Aviation
Security (ACS-1) has determined that this information is sensitive to
Civil Aviation Security operations; the disclosure or dissemination of
this information is prohibited in accordance with 14 CFR Part 191.
Sensitive security details related to the cost section of this
Regulatory Evaluation are available to regulated foreign air carriers
and their national regulatory authorities upon request. A request made
by the foreign air carrier should be directed to its Principal Security
Inspector (PSI); requests by the appropriate national regulatory
authority should be made to the FAA's Civil Aviation Security Liaison
Officer (CASLO) for that country.
Total ten year costs sum to $1.19 billion (net present value, $826
million). Given that in 1997, 42.3% of passengers on foreign flag air
carriers were U.S. citizens, the impact on the U.S. economy would
average $50.7 million a year.\1\ Hence, because this proposed rule
would not impose costs exceeding $100 million annually on the U.S.
economy, this proposed rule is not a ``significant regulatory action''
as defined by Executive Order 12866 (Regulatory Planning and Review).
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\1\ This is calculated by multiplying 42.3% times $1.19 billion
and dividing by ten.
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Because security requirements at each location are subject to
change, it is impossible to know, at any given time, which aviation
security procedures foreign air carriers are performing and on which
flights. Accordingly, all differences were calculated assuming that no
foreign air carrier is currently performing any security functions in
excess of the minimum required under the MSP. This may lead to an
overstatement of costs, as some carriers may already perform some
functions not currently required.
The FAA consulted the Official Airline Guide (OAG) to determine the
number of scheduled part 129 flights, with more than 60 seats, from
U.S. gateway airports and from foreign last point of departure airports
where U.S. air carriers also operate. An annual growth rate of 5.2% was
applied to these flights over the ten year period of time. The number
of passengers affected was calculated by multiplying the average number
of passengers per U.S. international flight by the number of
international flights. The analysis also assumed an average of 2
checked bags and 2 carry-on bags per international passenger.
[[Page 64768]]
Foreign air carriers would need additional equipment and personnel
for these new requirements. Equipment needs were based, in part, on
peak hour requirements at U.S. airports. In the absence of information
about wages, employment growth rates, and annual employee turnover
rates in each individual country, this analysis used the equivalent
rates of U.S. employees; this may overstate costs, assuming that U.S.
wages exceed those in most other countries. All hourly wage rates were
increased by 26% to account for all fringe benefits. Since additional
training would be needed for some of the new proposed requirements, the
number of additional classes was calculated assuming 20 people per
class. The FAA also assumed, in most cases, an average of one
supervisor for every nine employees and that the supervisor salary was,
on average, 20 percent higher than the employee salary.
The FAA is requesting information on one of the new measures that
could result from the proposal. This measure would limit air carriers
to accepting baggage only inside the terminal building for flights to
the U.S. from foreign LPD's where U.S. air carriers also operate.
Currently, the FAA does not have adequate data on which air carriers
would be affected by such a measure and no data on the additional
terminal capacity (facilities, labor, etc.) that would be necessary to
accommodate the checked baggage that is currently handled outside the
airport terminal. Additional information needed also includes the
percent of passengers who currently check their baggage outside the
terminal building.
The FAA also requests cost information on any other airport or
terminal space issues that could result from this proposed rule.
Analysis of Benefits
The primary benefit of the proposed rule would be to strengthen air
carrier security and the safety of all passengers on foreign air
carriers. Aviation security is achieved through an intricate set of
interdependent requirements. It would be difficult to separate out any
current existing requirement or any proposed change, and identify to
what extent any requirement or any change, alone, would have on
preventing a criminal or terrorist act in the future.
Since 1987, the FAA has initiated rulemaking and promulgated
security-related amendments that have amended parts 107 (airport
operator security), 108 (air carrier security), and 129 (foreign air
carriers). These amendments have added to the effectiveness of all
these parts by addressing certain aspects of the total security system
directed at preventing criminal and terrorist activities.
Some benefits can be quantified--prevention of fatalities and
injuries and the loss of aircraft and other property. Other benefits,
no less important, are probably impossible to quantify. Since the mid-
1980's, the major goals of aviation security have been to prevent
bombing and sabotage incidents. Preventing an explosive or incendiary
device from getting on board an airplane is one of the major lines of
defense against an aviation-related criminal or terrorist act. In the
ten year period from 1986 through 1995, eleven separate explosions
occurred on commercial airlines. These eleven incidents of sabotage (of
which nine occurred on foreign airlines) caused a total of 722
fatalities and at least 112 injuries. In addition, in December 1993, a
hijacking incident occurred on a U.S.-bound foreign airline.
An example of the type of explosion that aviation security is
trying to prevent is the Pan Am 103 tragedy that occurred over
Lockerbie, Scotland in 1988. A conservative estimate of the costs
associated with this accident is $1.4 billion.
Comparison of Costs and Benefits
This proposed rule would cost approximately $1.19 billion (net
present value, $826 million) over ten years. This cost needs to be
compared to the possible tragedy that could occur if an explosive or
incendiary device were to get onto an airplane and cause a catastrophe.
Recent history not only points to Pan Am 103's explosion over
Lockerbie, Scotland, but also the potential of up to twelve American
airplanes being destroyed by explosive devices in Asia in early 1995.
Congress has mandated that the FAA take action to require security
measures identical to those required of U.S. air carriers for all
foreign air carrier operations to and from any U.S. airport where U.S.
air carriers operate. Congress, which reflects the will of the American
public, has determined that this proposed regulation is in the best
interest of the nation.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA, which was
amended May 1996, requires regulatory agencies to review rules that may
have a ``significant economic impact on a substantial number of small
entities.'' The Small Business Administration suggests that ``small''
represent the impacted entities with 1,500 or fewer employees.
The proposed amendments to the regulations would not apply to any
small domestic air carriers and, therefore, the FAA has initially
determined that they would not have a significant impact on a
substantial number of small entities.
International Trade Impact Statement
These proposed regulations would make the security requirements
between U.S. and foreign air carriers identical. Foreign air carriers
would incur costs. However, mandating identical security measures for
both foreign and domestic operators would give neither U.S. nor foreign
carriers a competitive advantage; both U.S. and foreign carriers would
have to follow identical security measures to accomplish passenger and
aircraft safety and security.
The international trade implications of this rulemaking are
difficult to predict at this time. A number of foreign governments
expressed strong opposition to the legislation, on both legal and
policy grounds, during and after its passage by the Congress. Officials
of the European Civil Aviation Conference (ECAC) have informed the FAA
that its members strongly oppose any regulatory action to implement the
statute. This rulemaking could be a factor in future bilateral
negotiations, but any attempt to quantify possible impacts on U.S.
carriers would be premature and speculative.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Public Law 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Act is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for
[[Page 64769]]
inflation) in any one year. Section 203 of the Act, 2 U.S.C. 1533,
which supplements section 204(a), provides that before establishing any
regulatory requirements that might significantly or uniquely affect
small governments, the agency shall have developed a plan that, among
other things, provides for notice to potentially affected small
governments, if any, and for a meaningful and timely opportunity to
provide input in the development of regulatory proposals.
This proposed rule does not contain any Federal intergovernmental
mandates or private sector mandates.
Federalism Implications
The rule proposed herein would not have substantial direct effects
on the States, on the relationship between the National Government and
the States, or on the distribution of power and responsibilities among
the various levels of Government. Therefore, in accordance with
Executive Order 12612, it is determined that this proposal would not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Paperwork Reduction Act
In this proposed amendment to part 129--Operations: Foreign Air
Carriers and Foreign Operators of U.S. Registered Aircraft Engaged In
Common Carriage, Sec. 129.25 contains information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the FAA has submitted a copy of this proposed section
to the Office of Management and Budget (OMB) for its review.
The information to be collected is needed to estimate the costs to
foreign air carriers with accepted security programs: (1) to check
radiation leakage on x-ray equipment used for property security
screening at part 107 airports at least annually; (2) to report
aircraft piracy as part of the required security program; and (3) to
maintain training records for personnel involved in security
activities.
It is estimated that this proposal will affect 171 part 129
aircraft operators annually. The estimated annual reporting and
recordkeeping burden hours is estimated to be 5,193 hours and is broken
down as follows:
(1) Reporting and recordkeeping requirements for foreign air
carriers' security programs requiring:
(i) Preparation of new security program documentation--6 hours for
each new part 129 air carrier operator; and,
(ii) Necessary security amended program documentation--1.5 hours
for each part 129 air carrier operator.
(2) Maintaining copies and availability of the security programs
for use by civil aviation security inspectors of the FAA upon request--
1 hour for each part 129 air carrier operator.
(3) Reporting and record keeping requirements for the training
records for crew members, air carrier security representatives, and
individuals performing security-related functions--24 hours for each
part 129 air carrier operator. (This includes preparation and record
keeping of training records for personnel applying extraordinary
security requirements for flights departing from designated overseas
locations.)
(4) Record keeping by the air carrier of each x-ray survey
conducted for use by FAA officials upon request--.5 hours for each part
129 air carrier operator.
(5) Reporting of acts or suspected acts of aircraft piracy to the
FAA. This report is not normally in written form and it is determined
to be a request for assistance--.2 hours for each part 129 air carrier
operator.
Individuals and organizations may submit comments on the
information collection requirements by January 22, 1999, to the address
for comments listed in the ADDRESSES section of this document. These
comments should reflect whether the proposed collection is necessary;
whether the agency's estimate of the burden is accurate; how the
equality, utility, and clarity of the information to be collected can
be enhanced; and, how the burden of the collection can be minimized.
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Impact Analysis, the FAA has determined that this
proposed regulation is not significant under Executive Order 12866. In
addition, the FAA certifies that this proposal, if adopted, will not
have a significant economic impact, positive or negative, on small
entities under the criteria of the Regulatory Flexibility Act. This
proposal is considered significant under DOT Regulatory Policies and
Procedures (44 FR 11034; February 26, 1979).
List of Subjects in 14 CFR Part 129
Air carriers, Aircraft, Airports, Aviation safety, Weapons.
The Proposed Amendment
In consideration of the foregoing the Federal Aviation
Administration proposes to amend part 129 of title 14 of the Code of
Federal Regulations (14 CFR part 129) as follows:
PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF
U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE
1. The authority citation for part 129 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40104-40105, 40113, 40119, 44701-
44702, 44712, 44716-44717, 44722, 44901-44904, 44906.
2. Section 129.25 is amended by revising the introductory text of
paragraph (e) to read as follows:
Sec. 129.25 Airplane security.
* * * * *
(e) Each foreign air carrier required to adopt and use a security
program pursuant to paragraph (b) of this section shall have a security
program acceptable to the Administrator. A foreign air carrier's
security program is acceptable only if the Administrator finds that the
security program requires the foreign air carrier in its operations to
and from airports in the United States to adhere to the identical
security measures that the Administrator requires U.S. air carriers
serving the same airports to adhere to. A foreign air carrier is not
considered to be in violation of this requirement if its security
program exceeds the security measures required of U.S. air carriers
serving the same airport. The following procedures apply for acceptance
of a security program by the Administrator:
* * * * *
Issued in Washington, D.C., on November 13, 1998.
Anthony Fainberg,
Director, Office of Civil Aviation Security Policy and Planning.
[FR Doc. 98-30934 Filed 11-19-98; 8:45 am]
BILLING CODE 4910-13-P
