Security Programs of Foreign Air Carriers

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.

[[Page 64767]]

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).

---------------------------------------------------------------------------

\1\ This is calculated by multiplying 42.3% times $1.19 billion

and dividing by ten.

---------------------------------------------------------------------------

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]

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