Flightdeck Security on Large Cargo Airplanes

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 18, 2003 (Volume 68, Number 138)]
[Rules and Regulations]
[Page 42873-42882]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy03-28]

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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 121 and 129
[Docket No.: FAA-2003-15653; Amendment Nos. 121-287 and 129-37]
RIN 2120-AH96

AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; request for comments.

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SUMMARY: This action provides an alternative means of compliance to
operators of all-cargo airplanes that are required to have a reinforced
security flightdeck door. This rule allows those operators to either
install reinforced doors or adopt enhanced security procedures approved
by the Transportation Security Administration.

DATES: This rule is effective on August 18, 2003. Comments must be
received by September 16, 2003.

ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. You must identify the docket number FAA-
2003-15653 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that the
FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://dms.dot.gov.
You may review the public docket containing comments to
these proposed regulations in person in the Dockets Office between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the NASSIF Building at the
Department of Transportation at the above address. Also, you may review
public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Joe Keenan, Program Management Branch
(AFS-200) Flight Standards Services, Federal Aviation Administration,
800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
9579; facsimile (202) 267-5229, e-mail joe.keenan@faa.gov.

SUPPLEMENTARY INFORMATION:

Comments Invited

This final rule is being adopted without prior notice and prior
public comment. The Regulatory Policies and Procedures of the
Department of Transportation (DOT) (44 FR 1134; February 26, 1979),
however, provide that, to the maximum extent possible, operating
administrations for the DOT should provide an opportunity for public
comment on regulations issued without prior notice. Accordingly,
interested persons are invited to participate in this rulemaking by
submitting such written data, views, or arguments, as they may desire.
Comments relating to environmental, energy, federalism, or
international trade impacts that might result from this amendment also
are invited. Comments must include the regulatory docket or amendment
number and must be submitted in duplicate to the address above. All
comments received, as well as a report summarizing each substantive
public contact with FAA personnel on this rulemaking, will be filed in
the public docket. The docket is available for public inspection before
and after the comment closing date.
The FAA will consider all comments received on or before the
closing date for comments. Late filed comments will be considered to
the extent practicable. This final rule may be amended in light of the
comments received.
Commenters who want the FAA to acknowledge receipt of their
comments submitted in response to this final rule must include a
preaddressed, stamped postcard with those comments on which the
following statement is made: ``Comments to Docket No. FAA-2003- .'' The
postcard will be date-stamped by the FAA and mailed to the commenter.
Comments that you may consider to be of a sensitive security nature
should not be sent to the docket management system. Send those comments
to the FAA, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW.,
Washington, DC 20591.

Availability of Final Rule

You can get an electronic copy using the Internet by taking the
following steps:
(1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) Web page (http://
dms.dot.gov/search).
(2) On the search page type in the last four digits of the Docket
number shown at the beginning of this notice. Click on ``search.''
(3) On the next page, which contains the Docket summary information
for the Docket you selected, click on the final rule.
You can also get an electronic copy using the Internet through the
Office of Rulemaking's Web page at http://www2.faa.gov/avr/arm/
nprm.cfm?nav=nprm or the Federal Register's Web page at
http://www.gpoaccess.gov/fr/index.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this final
rule.

What Is the Small Business Regulatory Enforcement Fairness Act?

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

What Rule Changes Are You Making?

We are issuing a rule that allows an alternative means of
compliance with a current FAA regulation. This rule allows operators of
large cargo airplanes to either install reinforced flightdeck doors or
adopt enhanced security procedures approved by the Transportation
Security Administration.

Isn't Airplane Security the Responsibility of an Agency Other Than the
FAA?

Yes, the Aviation and Transportation Security Act (ATSA) enacted by
Congress on November 19, 2001, transferred airplane security to the
Transportation Security Administration (TSA). The safety of the
physical airplane structure and the operational rules of airplanes are
still the responsibility of the FAA. We work with the TSA when our
interests overlap to further our missions of safety and security. We
coordinated this rule change closely with the TSA. The TSA has
significantly contributed to this rule and supports the rule change.

How Many Rules Are Affected by This Change?

This change has significant effects on two rules. First, Title 14
Code of Federal Regulations (14 CFR), 121.313(j), which applies to the
operation of U.S. transport category all-cargo airplanes, is amended to
permit operators to adopt a

[[Page 42875]]

TSA approved security program in lieu of installing reinforced doors.
The second rule, 14 CFR 129.28(c), applies to the operation of
transport category all-cargo airplanes by foreign operators within the
United States. This amendment permits foreign operators to adopt a TSA
approved security program in lieu of installing reinforced doors.

Why Were the Old Rules Adopted?

The former rules were adopted in response to the terrorist attacks
against the United States on September 11, 2001, and the ATSA enacted
by Congress on November 19, 2001. The terrorist acts demonstrated a
need to improve design as well as operational and procedural security
of the flightdeck.

What Are the Flightdeck and the Flightdeck Door?

The flightdeck, or cockpit, is that area where the pilots fly the
airplane. The flightdeck door is what separates the pilots from the
passengers on passenger airplanes. On passenger airplanes, there are
operating rules that require a door between the flightdeck and the
passenger compartment. These rules do not require that cargo airplanes
have a flightdeck door. Some cargo airplanes have flightdeck doors and
many do not.
Traditionally, the door merely served as a privacy door to assure
that the pilots were able to concentrate on flying the airplane. As
discussed in the original reinforced door rulemakings, efforts were
underway prior to the September 11, 2001, attacks to develop standards
for a stronger door. The attacks led to the immediate adoption of those
standards and the requirement for installation of stronger doors.

What Did the Old Rules Require?

On January 15, 2002, parts 25 and 121 were amended to set new
standards for flightdeck doors (Amendments 25-106 and 121-288; 67 FR
2118; Docket No. FAA-2002-11032). Section 25.795 was amended to set
standards for reinforcing flightdeck doors. The new standards require
them to resist forcible intrusion and ballistic penetration.
Section 121.313(f) was amended to mandate installation of the
reinforced doors on certain airplanes not later than April 9, 2003. The
affected airplanes included transport category all-cargo airplanes
operated under part 121 which had flightdeck doors installed on or
after January 15, 2002.
On June 21, 2002, part 129 was amended to apply similar standards
to foreign operators operating into the United States (Amendment 129-
33; 67 FR 42450; Docket No. FAA-2002-12504). Section 129.28 requires
installation of the reinforced door not later than April 9, 2003. The
affected airplanes include transport category all-cargo airplanes
operated under part 129 which had flightdeck doors installed on or
after June 21, 2002.
On December 23, 2002, the FAA issued amendment No. 129-36 as a
result of input received from a public hearing held on July 30, 2002,
and comments received as a result of the rulemaking. Amendment 129-36
clarifies the applicability of the part 129 regulation for foreign
operators.
In effect, section 355 of the Consolidated Appropriations
Resolution, Pub. L. 108-007, postponed the compliance date for this
section as to all-cargo aircraft until October 1, 2003. We have changed
the cargo portion of the rule to replace the April 9, 2003, compliance
date with October 1, 2003, to correspond to the Congressional action.

What Has Happened Since the Old Rules Were Adopted?

The old rule was an FAA response to the potential security threat
to cargo airplanes. Because of the urgency of the response, there was
little time for receiving and evaluating a broad range of inputs on the
issues and alternatives. But with time, and with additional input from
knowledgeable parties, the FAA has identified several elements that
convince us that a change is needed. Over the last year, the FAA has
received information from parties through comments responding to
several rulemakings, as well as petitions for exemption and a petition
for rulemaking.

Public Comments on Prior Reinforced Flightdeck Door Rulemakings

As discussed above, the FAA has had two rulemaking actions that
established reinforced door requirements. We received public comments
on both rules. The following discussion is limited to those comments
related to this specific rule change. The FAA will respond to the other
comments in a separate document that will be published later in the
Federal Register.

Part 121

Three pilot groups (Air Line Pilots Association International
(ALPA), FedEx Pilots Association, and the Coalition of Airline Pilots
Association (CAPA)), a public safety group (Aviation Policy Institute),
and one individual suggested expanding the reinforced door requirement
to all cargo airplanes. This would require installation of reinforced
doors on cargo airplanes that do not already have any door. The
principal arguments of those parties were centered on increased
flightdeck security. Those commenters expressed concerns about the
qualification, screening, and identification of the people authorized
to ride on the subject airplanes.
ALPA stated that meetings with safety representatives from many of
the cargo airlines revealed it is potentially easier for an intruder to
gain access to cargo airplanes because of limited ground security
procedures, less secure ramp areas, and less scrutiny of persons
carried on board cargo flights. ALPA stated that flight attendant and
passenger intervention have been discussed as a strategy to defeat the
attempts of an intruder to commandeer a passenger airplane. But cargo
operators lack the potential benefit of flight attendant or passenger
intervention.
Additionally, three commenters proposed enhancement of flightdeck
security beyond that provided by the reinforced doors, suggesting the
use of dual doors (FedEx Pilots Association) and reinforcing the
bulkheads between the flightdeck and other airplane areas (ALPA and the
CAPA).
Three operators and the Cargo Airline Association (CAA) and the Air
Transport Association opposed the installation of the reinforced
flightdeck doors in airplanes operated for the carriage of cargo. Those
comments included two comments that the application of the reinforced
flightdeck doors was impractical for the types of airplanes involved
and the installation of doors would compromise emergency egress. They
also stated it would be difficult to address issues, such as the rapid
decompression, when retrofitting flightdeck doors to airplanes in which
no door had been previously installed. Six commenters were opposed to
the installation of flightdeck doors on cargo airplanes based upon
economic considerations, including cost of the doors, installation
costs, and lost revenues while airplanes were out of service for
modifications. Further, two commenters indicated that the costs should
be borne by the government.
The CAA represents 13 all-cargo operators, including the largest
operators. In its comments, the CAA argued that the ATSA did not
require that cargo airplanes be equipped with the reinforced flightdeck
door. Therefore, the FAA rule was procedurally deficient because there
was inadequate justification for adopting the rule without prior public
comment. The CAA also argued that the unique nature of cargo operations
would

[[Page 42876]]

allow a screening program to provide the same level of security as a
retrofit flightdeck door.

Part 129

Seven of the 32 commenters to Amendment 129-33 addressed all-cargo
operations. Except for the following three comments, commenters raised
similar issues described in the discussion of part 121 above. One
commenter stated that of all the various types of operators serving the
U.S., cargo operators, particularly those that operate on a charter
basis, pose the least risk of having their aircraft used as weapons by
terrorists. The commenter contends that cargo charter operations do not
publish a schedule for services and it would be difficult to know in
advance when or where the airplane would be operated.
Another commenter explained that crewmembers leave the flightdeck
on a regular basis to visit the galley or lavatory and to perform in-
flight duties. There is no flight attendant to ensure the area is clear
and secure before a flight crewmember leaves. Also, in the event of an
intrusion when a flightcrew member is absent from the flightdeck, a
reinforced door will prevent reentry to assist other flightcrew
members. This commenter also states that this rule will place it at a
competitive disadvantage compared to operators whose fleets are
designed and operated with no doors.
At the public meeting, one foreign cargo operator explained that he
might not know until 3 hours before a flight which airplane would be
used on flights to or from the U.S. The operator believed it would be
much more efficient and effective to establish security procedures
controlling who has access to the airplanes rather than modifying the
doors.

Requests for Exemptions

Since January 30, 2002, 11 cargo operators have filed exemption
requests from the reinforced door requirements. Two sought relief from
the requirement for internal locking devices on existing doors (Special
Federal Aviation Regulation (SFAR) 92), three sought relief from part
121, and six sought relief from part 129. In supporting the need for an
exemption, requesters cited economic burden caused by the need to make
modifications to their airplanes. In several instances, operators
indicated that they have a small fleet of airplanes and engineering and
design costs would be borne by them alone. The requesters also
identified a safety concern with the requirements to close and lock the
flightdeck doors. The safety concern is the lack of adequate emergency
exits available to persons on either side of a locked reinforced door.
Also, four operators indicated their security measures for allowing
riders on their cargo airplanes are strict and would compensate for not
reinforcing the door.

Petition for Rulemaking

Atlas Air submitted a petition for rulemaking that requested the
FAA allow cargo carriers to adopt enhanced security plans in lieu of
the reinforced flightdeck doors. Most of the issues raised by Atlas
were also raised by commenters on the prior reinforced flightdeck
rulemakings discussed above. Atlas supported its request with the
following points:
? The original rule was premised on the inadequacy of then
existing security procedures
? The FAA has since issued detailed procedures for access to
cargo airplane flightdecks
? The TSA has since issued additional security requirements
that cover certain cargo airplanes
? Reinforced doors are necessary on passenger but superfluous
on cargo airplanes
? Cargo operations do not depend on riders
? The number of persons on cargo airplanes is quite small
? Pilots of cargo airplanes are more willing to exclude
suspicious persons
? Cargo operators can impose more screening without
disrupting schedules
? Access to cargo airplanes is tightly controlled by practice
and regulation
? A reinforced door is less effective on a cargo airplane
since a terrorist may have an unfettered opportunity to penetrate it
? Keeping terrorists off cargo airplanes is a better
alternative
? Cargo doors are expensive and resources could be better
utilized elsewhere
? Cost of reinforced doors is much higher than the FAA
estimates
? Money is better spent on security procedures keeping
terrorists off cargo airplanes
? Passenger airplanes are a higher priority for reinforced
doors than cargo airplanes
? Congress is urging a review of reinforced door requirements
for cargo airplanes
? ATSA mandated reinforced doors on passenger airplanes, not
cargo airplanes
? Two proposed bills before Congress would require
reexamination of the issue

Why Are the Changes Better Than the Old Rule?

This rule provides an alternative means of compliance for
operators. It allows them to meet the security needs for their
particular operation through security procedures rather than doors.
This option will be available through the security expertise of the
TSA. As the economic analysis later in this rule reflects, many
operators have airplanes both with and without flightdeck doors. If
they adopt security procedures for the airplanes with the doors, they
must apply those same procedures to airplanes without doors. By
providing the option, operators can decide where to concentrate their
limited economic resources. Also, nothing in this rule prevents
operators from using both doors and security procedures if they choose.

What Factors Influenced the Decision To Change the Rule?

Viability of Enhanced Security Procedures
In acting quickly to establish current standards, the FAA included
cargo airplanes with doors in the same security category with passenger
carrying airplanes. At the time, security procedures for riders on
cargo airplanes had not been enhanced. With a diverse population flying
on commercial passenger airplanes, a reinforced door to the flightdeck
is essential. In comparison, cargo operations transport far fewer
riders, those riders are authorized by the company, and cargo operators
have greater discretion in deciding who rides on the airplane. Security
procedures can be adapted to fit the needs of cargo operations making
the reinforced door less significant in terms of airplane security.
Safety Issues Unique to Cargo Designs
People behind the locked doors on passenger airplanes have multiple
exits from the plane. Cargo riders may not. On several models of cargo
airplanes, some exits are blocked by cargo or by airplane
modifications. Often, modifications of cargo airplanes result in
emergency exits being on the other side of the flightdeck door. As a
result, rider safety may be significantly compromised if a locked door
blocks access to the exits. Without a better security option, the FAA
originally concluded that this safety concern was outweighed by the
security concern with highjacking. However, since enhanced security
procedures are now a viable option, the safety of occupants in an
emergency evacuation takes on a higher priority.

[[Page 42877]]

Differences in Locations of Persons on Flightdeck of Cargo and
Passenger Airplanes
The number and variety of persons who frequently ride on the
flightdeck of cargo airplanes are different from those who ride on
passenger airplane flightdecks. Under current screening procedures,
persons may have access to the flightdeck on cargo airplanes without
having undergone the same level of screening used on passenger
airplanes. These persons may be in front of the door or behind it. As
one commenter pointed out, locking a reinforced door could result in a
``bad'' person being in front of the door, while preventing a ``good''
person seated behind the door from assisting the pilots. This may
render reinforced doors less valuable on cargo airplanes.
Need for Tools and Equipment
Cargo operators carry diverse cargo, such as animals and dangerous
goods. This requires them to carry persons who need specialized tools
and equipment during the flight. This necessary equipment is prohibited
on passenger flights. Also, on passenger flights, crewmembers, Federal
Air Marshals, and passengers can intervene to inhibit efforts to
penetrate the reinforced doors. On cargo operations, the limited number
of riders means a terrorist might have time and equipment to defeat the
protection offered by the doors.
The Cost of the Doors
The original analysis of reinforced door costs was made before
designs had been proposed and approved. The FAA has learned that the
door will cost substantially more than originally estimated. Instead of
$17,000, nearly all doors will cost at least $50,000, and some as much
as $210,000. This cost would be acceptable if it were the only
alternative to preventing highjackings. But, with the enhanced security
procedures now available, it is incumbent on the FAA to allow operators
to select the option that best fits their needs.

What Comments Do You Believe Support This Rule Change?

As discussed above, the petition of Atlas Air contained many
suggestions and comments that were common to comments received on the
original rules. As should be obvious from the rationale explained in
the preceding answer, we found many of their points to be persuasive
and thus supportive of this rule change.

What Comments Do You Believe Would Not Support This Rule Change?

Many comments were received supporting the original rule. In
particular, pilots and organizations representing pilots believed that
the reinforced door was a valuable step toward assuring the safety of
the flightcrew and ultimately the airplanes. These commenters urged
additional steps for cargo airplanes, to include expanding the rule to
require installation of reinforced doors on all cargo airplanes. This
would require installation of reinforced doors on those cargo airplanes
that have not had doors. This option will be discussed later.
We expect that these commenters would not favor this rule change
and would see it as a lessening of security. We expect to receive
comments on this during the comment period. At this point, we are
confident that the plans that will be approved by the TSA will be
comparable to the security provided by the doors. As discussed above,
we believe the change will be better than the reinforced doors in some
respects.

Were There Comments Submitted on the Original Rules That Were Not
Considered in This Rule Change?

Yes. Some comments dealt with issues other than cargo airplanes.
Some comments on cargo airplanes were not relevant to this rule change.
We will respond to these comments in a separate document that will be
published later in the Federal Register.

What Other Options Were Considered?

Maintaining the Status Quo
We considered this option but decided that the status quo was no
longer justified. When the rule was originally adopted, there was no
alternative that would provide security for the flightdeck. As
discussed previously, this is no longer the case and security
procedures can provide a viable security alternative. Operators should
have the option of selecting which alternative to use to meet the
security goal.
Expanding the Reinforced Door Rule to All Cargo Airplanes
As mentioned previously, this was an option originally supported by
pilots and pilot organizations. Whether this is still the case in light
of changes since adoption of the original rule will be revealed during
the comment period on this rule.
We do not believe that this expansion is either practical or
necessary. Many cargo airplanes have no door between the pilot area and
aft portions of the flightdeck. On some airplanes, there is existing
structure that would readily support a new door. On many other
airplanes, however, there is no structure to which a door could be
fitted. We have spent over a year administering the current reinforced
door rule. We have learned that simply replacing existing doors can be
expensive and time-consuming, particularly in design development and
approval. Undertaking a retrofit requirement for all cargo airplanes
could not be done in the time frame relevant to this rule.
Further, since we have identified security procedures as a valid
alternative to a reinforced door in cargo operations, there is
currently no justification for the substantial cost involved in
retrofit.
As discussed in the next question and answer, responsibility for
aviation security and threat assessment resides with the TSA. If the
TSA decides that the threat warrants expansion of the reinforced door
requirement, the FAA will assist them in developing relevant rules and
standards.
Expanding Cargo Security Requirements to All Cargo Operations
The old rule, and this new rule change, cover only those cargo
airplanes that had doors. With the transfer of security responsibility,
the TSA assumed responsibility for developing and imposing security
requirements on all aviation operations. As a result, the FAA no longer
has the authority to unilaterally establish security requirements
applicable to all cargo operators.
Several operators, including Atlas Air, suggested that expansion of
security programs to the entire air cargo industry would be beneficial.
The FAA and TSA agree with those comments. The TSA will commence a
separate rulemaking on this subject. We hope this expansion will be, in
part, a consequence of this rule change. The FAA supports this
expansion and will assist the TSA in implementing any changes it deems
appropriate.
Eliminating the Ability of Cargo Carriers To Carry Supernumeraries
We considered reducing the ability of cargo operators to carry
supernumeraries. Under 14 CFR 121.547 and 121.583, supernumeraries are
persons who may be on board but who are not essential to the actual
operation of the airplane. Limiting the carriage of supernumeraries
would have a crippling effect on many cargo operations. Although not in
the passenger carrying business, cargo operators need to carry riders
who can handle cargo either

[[Page 42878]]

during the flight or at remote destinations where trained support is
not available. They often carry additional pilots for long flights and
mechanics to service the airplane at remote locations. These concerns
were identified in the petitions for exemption mentioned earlier. As a
result, we conclude this is not a viable option for protecting the
flightdeck of cargo airplanes.
Supernumeraries were partially addressed by the original rule
changes that accompanied the reinforced door requirements. In the
original rules, we modified Sec. 121.547 and added Sec. 129.28(d) to
limit the number of persons authorized on the flightdeck and required
additional approvals for such access.
Case-by-Case Exemptions Allowing Security Programs in Lieu of
Reinforced Doors
We considered requiring individual exemption applications from
cargo operators instead of a rule change. This has been the process for
dealing with problems raised under SFAR 92 with its requirement for
internal locking devices on flightdeck doors. This has not been
efficient, even for the relatively small number of SFAR exemptions.
We anticipate that most, if not all, cargo operators would file
exemption requests should we adopt this option instead of a rule
change. Dealing with exemption requests would be inefficient and lead
to lengthy delays and uncertainty, even if most petitioners raised the
same issues. Our immediate adoption of this rule seeks to avoid
uncertainty. Also, just as the operators wish to focus their resources
on addressing security, we want to use our resources on matters other
than individual exemption requests.

Does This Rule Establish Specific Security Requirements?

This rule does not require specific security procedures. Rather, a
carrier may choose to adopt a security program rather than harden its
doors. Security programs may vary from operator to operator because
airplanes used, routes and missions flown, and persons carried are not
uniform. Instead of establishing specific criteria for a security
program, this rule provides flexibility to the operator and the TSA to
meet specific needs and threats.

Who Will Approve New Security Procedures?

The TSA is the agency with approval authority for security programs
and procedures related to alternative compliance with this rule.
Operators who have principal security inspectors should work with them
in preparing programs and procedures.

Is This an Airplane Security Issue or an Economic Issue?

Implementation of any security measure carries with it some costs.
The subsequent economic analysis discusses the relative costs of
installing reinforced doors versus adopting a security program.
Adopting the security program option will cost operators less than
installing the reinforced doors. If this were not the case, operators
would opt for the doors instead of the security program. But this rule
is not just about money. As discussed previously, reinforced doors are
not as effective a security measure on cargo airplanes as on passenger
airplanes. On many cargo designs, reinforced doors raise safety issues
that do not exist on passenger airplanes. Although cost is an issue, it
is not the deciding factor in adopting this rule. Security is
paramount.

Will Cargo Airplanes Be Less Secure if Reinforced Doors Are Not
Required?

Airplanes would be less secure if the requirement were dropped
without any compensating action. The compensating action expected in
this rule is development and implementation of alternative security
plans to control who enters cargo aircraft. This will compensate for
the lack of doors by keeping potential terrorist's out of the airplane.
As explained above, this rule does not itself establish the
criteria for the new program. That program will come from the TSA.
Most importantly, when a security plan is developed, it can be used
by all cargo operators, not just those with doors. The result will be
greater security for all cargo operations, not just those with existing
doors.
Also as discussed above, we believe that the reinforced doors
produce vulnerabilities both from a safety and security standpoint that
are not present in passenger carrying operations. Providing an
alternative to installing reinforced doors reduces those risks.

What Airplanes or Operations Will Be Affected by This Rule Change?

This rule will affect both U.S. and foreign operators. For foreign
operators, this rule also clarifies the coverage of the rule.
For U.S. certificated operators, only those operations conducted
under part 121, utilizing transport category airplanes, for the sole
purpose of the carriage of cargo, will be affected. And those
operations are only affected if they had a flightdeck door installed on
or after January 15, 2002. Those all-cargo operators electing to
achieve compliance through a TSA approved security program must apply
the security program to the operator's entire fleet of aircraft, not
just those with doors. There will be no change for those cargo
operators who elect to install the reinforced flightdeck door.
Foreign operators conducting cargo operations under Sec. 129.1(a)
are covered when they are operating airplanes with a payload capacity
greater than 7,500 pounds and with a flightdeck door installed on or
after June 21, 2002. Those all-cargo operators electing to achieve
compliance through a TSA approved security program must apply the
security program to the operator's entire fleet of aircraft, not just
those with doors. There will be no change for those cargo operators who
elect to install the reinforced flightdeck door. In addition, nothing
precludes a foreign all-cargo air carrier from implementing a TSA
security program in addition to reinforcing its flightdeck doors.

Why Does the Rule Have a June 21, 2002, Threshold Date for Foreign
Operators and a January 15, 2002, Threshold Date for U.S. Operators?

Section 129.28(a)(2) establishes a compliance threshold date of
June 21, 2002. Section 121.313(j)(2) establishes a compliance threshold
date of January 15, 2002. These threshold dates identify the airplanes
that must comply with the rule, and maintains the applicability of the
requirement even if operators remove the non-reinforced doors after
that date. If an airplane had a non-reinforced door in place
(installed) on the threshold date, or if one is installed on the
airplane after that date, then the rule requires that such a door be
replaced with a reinforced door. Without the threshold date, operators
could avoid compliance with the rule by removing the non-reinforced
doors. The threshold dates correspond with the issue dates of the
original rules imposing the reinforced door requirement on operators.
The dates differ because the original rules were not issued at the same
time.

How Will Compliance Be Monitored?

The FAA is working with the TSA to establish procedures to share
information and monitor compliance with various aspects of aircraft
security. This is a new relationship and details on specific aspects of
the cooperative monitoring effort are not currently in place. We
expect, however, that the TSA approval of programs under this rule will
occur in cooperation with the FAA

[[Page 42879]]

and the FAA will receive information on approved programs either
directly from the TSA or through reporting requirements placed on
operators. A formal process for either of these alternatives will be
established to assure compliance by affected operators.

Regulatory Evaluation Summary

Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs each Federal agency to
propose or adopt a regulation only upon a reasoned determination that
the benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. sections 2531-2533) prohibits agencies
from setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act requires agencies to consider international standards and, where
appropriate, use them as the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation.)
In conducting these analyses, the FAA has determined this rule (1)
has benefits which justify its costs; (2) is a ``significant regulatory
action'' as defined in section 3(f) of Executive Order 12866 and is
``significant'' as defined in DOT's Regulatory Policies and Procedures;
(3) will not have a significant impact on a substantial number of small
entities; (4) will have little effect on international trade; and (5)
does not impose an unfunded mandate on state, local, or tribal
governments, or on the private sector. The FAA has placed these
analyses in the docket and summarizes them below.

How Many Operators and Airplanes Are Affected by the Rule?

The FAA determined that 46 U.S. air cargo carriers with 1,132
transport category cargo airplanes operate under part 121. Brokers and
leasing companies currently hold 125 turbojet cargo airplanes that
could be operated under part 121. Thus, 1,257 cargo airplanes could be
affected by this rule. The FAA determined that 540 of these airplanes
have a flightdeck door, while 26 air cargo carriers operate at least
one airplane with a flightdeck door. Of these 26 air cargo operators, 3
are likely to be large operators (more than 50 airplanes), 9 are likely
to be medium sized operators (between 10 and 50 airplanes), and 14 are
likely to be small operators (fewer than 10 airplanes).

What Are the Uncertainties Affecting the Potential Costs of This Rule?

The cost of a security program could be significantly reduced if
the air cargo carrier does not transport any people other than its own
employees. To avoid underestimating the potential total cost, the FAA
assumed that every affected air cargo operator will occasionally
transport people other than their employees. Further, the TSA has not
finalized its requirements. This regulatory evaluation does not assume
that the TSA will require the screening of cargo. The next question
identifies some assumptions about the content of the potential security
program. We have not included the potential costs of screening air
cargo itself in the estimated costs of these security programs.

What Are the Bases for the Estimated Costs of a Security Program?

For the purpose of this economic analysis, we have assumed, for
cost purposes only, that the following types of costs might be
incurred. Actual costs may vary between programs sought by operators
and approved by the TSA. Further, the TSA may choose to require certain
components of a security plan that will differ from the assumptions
included in the FAA cost analysis. The FAA assumes that air cargo
carriers will incur costs from reviewing their employee employment
files, performing employee background checks, developing procedures to
perform security clearances on non-employee passengers, and applying to
the TSA for approval in creating their programs. They will incur
similar annual costs in operating the program.

How Much Will It Cost To Establish and Operate a Security Program?

The FAA estimates that establishing a security program will cost,
on average, about $250,000 for a large air cargo airline, about $75,000
for a medium sized air cargo airline, and about $20,000 for a small air
cargo airline. The annual cost to operate a security program will
average about $120,000 at a large air cargo airline, about $40,000 at a
medium sized air cargo airline, and about $10,000 at a small air cargo
airline. Thus, if all of the affected air cargo carriers chose to
establish security programs, the total first-year cost will be $1.705
million. However, several air cargo operators have voluntarily
developed personnel security programs that include some or most of the
activities envisioned by the FAA in its cost estimates. Thus, those air
cargo operators have already made many of these expenditures and their
estimated costs will be lower than those projected. Nevertheless, in
order to ensure that the costs are not underestimated, the FAA assumed
that no air cargo operator has such a program. Using an anticipated 5.3
percent growth rate of the air cargo industry, the annual costs of
operating security programs for 10 years would be $10.265 million.
Thus, it will cost air cargo operators a total of $12.330 million,
which has a present value of $9.217 million using the 7 percent
discount rate required by the Office of Management and Budget.

How Much Will It Cost To Install Reinforced Flightdeck Security Doors?

The FAA calculated that installing reinforced doors on the 540
cargo airplanes would cost air cargo operators $66.5 million in 2003.

Table 1.--Average Cost Per Airplane To Install a Reinforced Door by Type of Airplane
--------------------------------------------------------------------------------------------------------------------------------------------------------
Numbers of Number of Lost net Total
Type of airplane Door kit labor hours Total labor days out-of- revenue per Total lost costs to
cost to install costs service day net revenue install
--------------------------------------------------------------------------------------------------------------------------------------------------------
727......................................................... $65,000 96 $7,680 2 $20,500 $41,000 $113,680
737......................................................... 50,000 96 7,680 2 4,500 9,000 66,680
747/100/200/300............................................. 210,000 172 13,760 4 24,500 98,000 321,760
747/400..................................................... 51,500 96 7,680 2 24,500 49,000 112,020
757......................................................... 50,000 96 7,680 2 20,500 41,000 98,680
767......................................................... 50,000 96 7,680 2 20,500 41,000 98,680
DC-10....................................................... 50,000 96 7,680 2 24,500 49,000 106,680

[[Page 42880]]

DC-8........................................................ 42,000 72 5,760 2 20,500 41,000 88,760
DC-9........................................................ 42,000 72 5,760 1.5 4,500 6,750 54,530
MD-10/11.................................................... 45,000 96 7,680 2 24,500 49,000 101,680
A-300....................................................... 50,000 192 15,360 4 20,500 82,000 147,360
A-300-600................................................... 50,000 192 15,360 4 20,500 82,000 147,360
A-310....................................................... 50,000 192 15,360 4 20,500 82,000 147,360
--------------------------------------------------------------------------------------------------------------------------------------------------------

Are There Any Other Costs That Would Be Associated With These
Reinforced Doors?

Reinforced flightdeck security doors have electronic systems that
would need to be periodically inspected, maintained, and possibly
repaired. It would take 8 additional maintenance labor hours every year
for these tasks, and the average annual materials costs are minimal.
These increased maintenance costs would total 4.4 million between 2004
and 2013, which has a present value of 3.0 million.
Reinforced flightdeck security doors and associated doorway
strengthening materials would add weight to the airplane, which would
increase fuel consumption. The FAA estimated that the installed door
would add 120 pounds to a large cargo airplane, 90 pounds to a medium
sized cargo airplane, and 75 pounds to a small cargo airplane. Each
additional pound increases annual fuel consumption by 12.25 gallons for
a large cargo airplane, 19.1 gallons for a medium sized cargo airplane,
and 5.75 gallons for a small cargo airplane. Using a price of $0.80 per
gallon, the annual additional fuel cost would be $700,000 in 2004,
increasing to $1.1 million in 2013. These additional fuel costs would
total $9.5 million between 2004 and 2013, which has a present value of
$6.7 million.

What, Then, Are the Total Costs of Installing These Doors?

As shown in Table 2, the total costs of installing reinforced
security flightdeck doors would be about $80.450 million, which has a
present value of about $76.225 million. Of particular note is that the
biggest expenditure of $66.5 million would occur in 2003, the first
year.

Table 2.--Total and Present Values in 2003 of Costs To Install Reinforced Security Doors in Cargo Airplanes That
Currently Have Flightdeck Doors
[In millions of dollars]
----------------------------------------------------------------------------------------------------------------
Increased
Cost to maintenance Present value Increased Present value Present value
retrofit doors cost (2004- increased fuel costs increased fuel Total cost total cost
2013) maintenance (2004-2013) cost
----------------------------------------------------------------------------------------------------------------
$66.499 $4.406 $3.007 $9.542 $6.722 $80.447 $76.228
----------------------------------------------------------------------------------------------------------------

What Is the Net Economic Impact of This Rule?

If all air cargo operators affected by the final rule chose to
develop a TSA-approved security program instead of installing
reinforced flightdeck security doors, they would save about $68.117
million between 2003 and 2013, which has a present value of $67.011
million. More importantly, they would save $64.704 million by April 9,
2003. It should be noted that to the extent that several air cargo
operators have voluntarily developed these programs, the cost savings
have been underestimated. Further, an individual operator has the
option to install the reinforced flightdeck security door if it would
be financially advantageous. Thus, the FAA determined that this rule
provides substantial cost savings to affected air cargo operators.

Regulatory Flexibility Act

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

Trade Impact Assessment

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

[[Page 42881]]

regulatory relief to both U.S. (under part 121) and foreign air cargo
carriers (under part 129). Therefore, the FAA determined that this rule
will have a minimal effect on international trade.

Unfunded Mandates Assessment

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

What Other Assessments Has the FAA Conducted?

Paperwork Reduction Act

There are no current or new requirements for information collection
associated with this amendment.

International Compatibility

In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.

Executive Order 13132, Federalism

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

Environmental Analysis

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

Energy Impact

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

Plain English

Executive Order 12866 (58 FR 51735, October. 4, 1993) requires each
agency to write regulations that are simple and easy to understand. We
invite your comments on how to make this final rule easier to
understand, including answers to questions such as the following:
? Are the requirements in the regulations clearly stated?
? Do the regulations contain technical language or jargon
that interferes with their clarity?
? Would the regulations be easier to understand if they were
divided into more (but shorter) sections?
? Is the question and answer format helpful in understanding
the regulations?
Please send your comments to the address specified in the ADDRESSES
section.

What Urgency Requires Immediate Adoption of These Changes?

Under current rules, operators should have installed reinforced
doors by April 9, 2003, or the airplane could not be operated after
that date. However, the 2003 Consolidated Appropriations Resolution
mentioned previously effectively postponed the compliance date for all-
cargo aircraft. Absent additional action by Congress, this legislative
provision will expire on September 30, 2003. As a result, effective
October 1, 2003, cargo operators will have to have installed doors on
the affected aircraft or not operate those aircraft.
We have changed the April 9, 2003, date to October 2003, to
correspond with the Congressional action. Time is of the essence to
operators. The doors are expensive and there is a significant lead-time
required to order and install the doors. Cargo operators need to know
immediately that there is an alternative to installation of reinforced
doors.
Additionally, operators need time to evaluate the requirements of
the TSA security procedures, and determine if they can adopt a new
security program before the deadline. Delaying the rule for notice and
comment would create uncertainty for operators, and frustrate the
purpose of the rule.
Further, the FAA received a large number of public comments on this
subject through the other rulemakings discussed in this document. We
considered those comments in developing this rule.
Sections 553(b)(3)(B) and 553(d)(3) of the Administrative
Procedures Act (APA) (5 U.S.C. sections 553(b)(3)(B) and 553(d)(3))
authorize agencies to dispense with certain notice procedures for rules
when they find ``good cause'' to do so. Under section 553(b)(3)(B), the
requirements of notice and opportunity for comment do not apply when
the agency, for good cause, finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.'' In
the context of the APA, impracticable means that, if notice and comment
procedures were followed, they would defeat the purpose of the rule. As
explained above, the delay associated with notice and comment would
negate the security option as a viable alternative to the reinforced
door requirement.
For the reasons discussed previously in this document, the FAA
finds that notice and public comment on this final rule are
impracticable, unnecessary, and contrary to the public interest. This
final rule must be adopted promptly to create the certainty and the
time needed by cargo operators to meet the airplane security
requirements.

Lists of Subjects

14 CFR Part 121

Air carriers, Aircraft, Airmen, Aviation safety, Reporting and
recordkeeping requirements, Safety, Transportation.

14 CFR Part 129

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

The Amendment

? In consideration of the foregoing, the Federal Aviation Administration
amends 14 CFR parts 121 and 129 as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS

? 1. The authority citation for part 121 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105.

? 2. Sections 121.313(j)(1) and (2) are revised to read as follows:

[[Page 42882]]

Sec. 121.313 Miscellaneous equipment.

* * * * *
(j) * * *
(1) After April 9, 2003, for airplanes required by paragraph (f) of
this section to have a door between the passenger and pilot or crew
rest compartments,
(i) Each such door must meet the requirements of Sec. 25.795(a)(1)
and (2) in effect on January 15, 2002; and
(ii) Each operator must establish methods to enable a flight
attendant to enter the pilot compartment in the event that a flightcrew
member becomes incapacitated. Any associated signal or confirmation
system must be operable by each flightcrew member from that flightcrew
member's duty station.
(2) After October 1, 2003, for transport category, all-cargo
airplanes that had a door installed between the pilot compartment and
any other occupied compartment on or after January 15, 2002, each such
door must meet the requirements of Sec. 25.795(a)(1) and (2) in effect
on January 15, 2002; or the operator must implement a security program
approved by the Transportation Security Administration (TSA) for the
operation of all airplanes in that operator's fleet.

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

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

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

? 4. Sections 129.28(c)(1), (2), and (3) are revised to read as follows:

Sec. 129.28 Flightdeck security.

* * * * *
(c) * * *
(1) Except for a newly manufactured airplane on a non-revenue
delivery flight, no foreign air carrier covered by Sec. 129.1(a) may
operate:
(i) After April 9, 2003, a passenger carrying transport category
airplane within the United States, except on overflights, unless the
airplane's flightdeck door installation meets the requirements of
paragraphs (c)(2) and (c)(3) of this section or an alternative standard
found acceptable to the Administrator.
(ii) After October 1, 2003, a transport category all-cargo airplane
that had a door installed between the pilot compartment and any other
occupied compartment on or after June 21, 2002, within the United
States, except on overflights, unless the airplane's flightdeck door
installation meets the requirements of paragraphs (c)(2) and (c)(3) of
this section or an alternative standard found acceptable to the
Administrator; or the operator must implement a security program
approved by the Transportation Security Administration (TSA) for the
operation of all airplanes in that operator's fleet.
(2) The door must resist forcible intrusion by unauthorized persons
and be capable of withstanding impacts of 300 joules (221.3 foot-
pounds) at the critical locations on the door, as well as a 1,113-
newton (250 pounds) constant tensile load on the knob or handle, and
(3) The door must resist penetration by small arms fire and
fragmentation devices to a level equivalent to Level IIIa of the
National Institute of Justice Standard (NIJ) 0101.04.
* * * * *

Issued in Washington, DC, on July 11, 2003.
Marion C. Blakey,
Administrator.
[FR Doc. 03-18075 Filed 7-17-03; 8:45 am]
BILLING CODE 4910-13-P

Notices For
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Flightdeck Security on Large Cargo Airplanes

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