Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
Two rulemakings finalized several years ago removed regulatory language that implemented FAA Aviation Safety Inspector (ASI) statutory authority to access air operations areas, secured areas, and security identification display areas. This proposal reiterates and clarifies the authority of an ASI with the proper credentials to access air operations areas, secured areas, and security identification areas of an airport. The proposal would make sure ASIs have access to these areas of an airport so they can perform official duties in support of the FAA's safety mission.
Send your comments on or before October 19, 2007.
You may send comments identified by Docket Number FAA-2007-29237 by any of the following methods:
- DOT Docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically.
- Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
- Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
- Fax: 1-202-493-2251.
- Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
You may also read background documents or comments received at the addresses above.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Pat Hempen, Federal Aviation Administration, Flight Standards Service, Air Transportation Division (AFS-200), 800 Independence Avenue, SW., Washington, DC 20591; Telephone 202-267-8166, E-mail email@example.com. Start Printed Page 53505End Further Info End Preamble Start Supplemental Information
Later in this preamble under the Additional Information section, we discuss how you can comment on this proposal and how we will handle your comments. Included in this discussion is related information about the docket, privacy, and the handling of proprietary or confidential business information. We also discuss how you can get a copy of this proposal and related rulemaking documents.
Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
The FAA is issuing this rulemaking under the authority set forth in 49 U.S.C. section 44701(a)(5), section 40113, and section 44713. Under section 44701(a)(5), the Administrator is charged with promoting safe flight of civil aircraft by, among other things, prescribing regulations the Administrator finds necessary for safety in air commerce. Sections 40113 and 44713 relate to the Administrator's authority to conduct safety inspections.
Purpose of This Rule
The FAA proposes to re-codify in Title 14 of the Code of Federal Regulations existing statutory authority concerning Federal Aviation Administration (FAA) safety inspections. In order to execute such authority, FAA aviation safety inspectors (ASIs) must have access to air operations areas (AOA), secured areas, and security identification display areas (SIDAs) in airports. Airport operators grant authority to access these areas in airports in accordance with an Airport Security Program (ASP). An airport operator develops and submits an ASP to the Transportation Security Administration (TSA) for approval. It is the airport operator that implements the ASP and grants access to AOAs, secured areas, and SIDAs, to individuals such as ASIs, Customs Inspectors, Postal Inspectors, and other Federal Inspectors.
This rulemaking will not require changes in TSA documents for airport operators, such as the ASP, or for part 119 certificate holders, such as the Aircraft Operator's Standard Security Program (AOSSP). However, an airport operator or aircraft operator may decide to submit to TSA proposed changes to its security program, or TSA may decide to require changes to the program. The FAA has coordinated this rulemaking with TSA.
Congress has granted the FAA and its inspectors broad authority to carry out the Agency's mission by performing any necessary tests, inspections, surveillance, and investigations without limitations as to when and where those activities may be carried out to preserve the safety and integrity of the national airspace system.
Under Title 49 U.S.C. Section 40113, the FAA Administrator is empowered to conduct such investigations and inspections as necessary to ensure the safety of civil aviation (http://uscode.house.gov/search/criteria.shtml). The statute does not restrict such activities by time and place. Section 40113 states, in part, that the Administrator may take action that the Administrator “considers necessary to carry out this part, including conducting investigations, prescribing regulations, standards, and procedures, and issuing orders.”
Title 49 U.S.C. 44713 also clearly outlines the inspection duties and inspection authority of ASIs and does not restrict such activities by time and place (http://uscode.house.gov/search/criteria.shtml). This section states, in part, that the Administrator employs ASIs to “inspect aircraft, aircraft engines, propellers, and appliances designed for use in air transportation, during manufacture and when in use by an air carrier in air transportation, to enable the Administrator to decide whether the aircraft, aircraft engines, propellers, or appliances are in safe condition and maintained properly.”
Statement of the Problem
Recently, two rulemaking events have occurred that have unintentionally removed some rule language in Title 14 of the Code of Federal Regulations (14 CFR) that gave ASIs specific regulatory authority to access sterile areas, AOAs, secured areas, and SIDAs of an airport to conduct official duties.
Removal of 14 CFR parts 107 and 108
The Aviation and Transportation Security Act (ATSA) (Pub. L. 107-71, 115 Stat. 597, November 19, 2001) vested TSA with broad authorities and responsibilities over the security of all modes of transportation. These include authorities relating specifically to aviation security that were formerly vested in the FAA as well as general inter-modal authorities. FAA security rules, which clearly addressed FAA's authority to access airports to perform official security duties, were contained in 14 CFR parts 107 and 108. When responsibility for aviation security was transferred to TSA, the rules contained in parts 107 and 108 were removed from 14 CFR (67 FR 8339; February 22, 2002) and placed in TSA's regulations at 49 CFR parts 1542 and 1544.
A few months before the enactment of the Aviation and Transportation Security Act, the FAA issued the Airport Security Final Rule (66 FR 37274; July 17, 2001), which included extensive revisions to parts 107 and 108. When parts 107 and 108 were revised the FAA had a continuum of inspection authority sections showing its authority to inspect for compliance with aircraft operator safety rules (see 14 CFR 119.59), airport safety rules (see 14 CFR 139.105), and aircraft operator and airport operator security rules (see 14 CFR 107.7 and 108.5). Reading all these FAA rules together, it was evident that FAA inspectors, both security and safety, had the necessary authority to conduct inspections at any place on airports necessary to perform their official duties, including those areas that otherwise are controlled for security purposes. However, since parts 107 and 108 were removed and these authorities transferred to TSA, there has been some misunderstanding about the continuing authority of FAA safety inspectors to access various areas of the airport that are controlled for security purposes. This proposed rule makes clear that FAA aviation safety inspectors continue to have authority to access such areas as needed to perform their duties.
14 CFR Part 139 Certification of Airports, Final Rule (69 FR 6380) (http://dmses.dot.gov/docimages/pdf89/268866_web.pdf)
On February 10, 2004, the FAA revised the airport certification regulations and established certification requirements for airports serving scheduled air carrier operations in aircraft designed for more than 9 passenger seats. One change to § 139.105, Inspection Authority, updated language referencing statutory authority and deleted terms that were no longer applicable. The revised language in new § 139.105 was not as clear regarding ASI airport access. Start Printed Page 53506
The original § 139.105 required airport operators to allow ASIs to make any inspection to determine compliance with the broad safety provisions contained in the Federal Aviation Act of 1958. This included inspections of airports, aircraft, aircraft operators, and operations personnel. Revised § 139.105 deleted the reference to the Federal Aviation Act of 1958 and instead referenced the authority for ASIs to make inspections to determine compliance with the more current 49 U.S.C. 44706 and part 139, Certification of Airports. This revision to the regulatory language unintentionally made the operational implementation of FAA's statutory authority to conduct inspections more challenging.
ASI access to AOAs, secured areas, and SIDAs of airports extends beyond part 139 airports. Part 139 airports, which serve scheduled air carrier operations in aircraft designed for more than 9 passenger seats, represent only a portion of the airports in the United States. The intent of this proposed rule is to re-codify FAA statutory authority for ASI access to perform any necessary tests, inspections, surveillance, and investigations without limitations as to when and where those activities may be carried out, not just at part 139 airports. Therefore, we are not proposing to change part 139, but instead we propose adding a new part 153, with a subpart A devoted to ASI access.
New Part 153
This proposal would require airport operators to grant ASIs with proper credentials free and uninterrupted access to airports and facilities to conduct safety inspections. The FAA issues ASIs credentials (FAA Form 110A) for identification during the performance of official safety inspection duties. The FAA will continue the policy that its local inspectors should display access or identification media (such as the SIDA identification badge) issued or approved by the airport operator. However due to the transient nature of an FAA inspector, the 110A credential will continue as a stand-alone identification media. For example, during unannounced inspections, FAA personnel display their FAA credentials in the same manner they would display access or identification media issued by the airport to establish their authority to conduct such inspections. In addition, when entering the sterile area through the TSA screening checkpoint, FAA personnel will continue to comply with TSA's screening procedures.
This proposal would also define several terms previously contained in part 107 and currently used by TSA.
This proposal clearly defines FAA's statutory authority to access secure areas by ASIs with proper credentials. Such access is necessary so ASIs can perform official duties in support of the FAA's safety mission. This proposal does not substantively change any requirements in 14 CFR. Also, reestablishing these requirements in new part 153 would not impose any additional requirements on operators affected by these rules.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that this rulemaking would impose no new information collection requirements.
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 proposed regulations.
Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, “Regulatory Planning and Review,” dated September 30, 1993 (58 FR 51736) directs the FAA to assess both the costs and the benefits of a regulatory change. We are not allowed to propose or adopt a regulation unless we make a reasoned determination that the benefits of the intended regulation justify the costs. Our assessment of this rulemaking indicates that its economic impact is minimal because it does not impose any costs on airport operators. Because the costs and benefits of this action do not make it a “significant regulatory action” as defined in the Order, we have not prepared a “regulatory evaluation,” which is the written cost/benefit analysis ordinarily required for all rulemaking under the DOT Regulatory Policies and Procedures. We do not need to do a full evaluation where the economic impact of a rule is minimal.
Economic Evaluation, Regulatory Flexibility Act, Trade Impact Assessment, and Unfunded Mandates Assessment
Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only after a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act also requires agencies to consider international standards and, where appropriate, use them as the basis of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-04) 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.)
The Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If it is determined that the expected cost impact is so minimal that a rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble; a full regulatory evaluation need not, then, be prepared. Such a determination has been made for this rule. The reasoning for that determination follows.
When parts 107 and 108 were revised the FAA had a continuum of inspection authority sections showing its authority to inspect for compliance with aircraft operator safety rules (see 14 CFR 119.59), airport safety rules (see 14 CFR 139.105), and aircraft operator and airport operator security rules (see 14 CFR 107.7 and 108.5). Reading all these FAA rules together, it was evident that FAA inspectors, both security and safety, had the authority to conduct inspections at any place on airports necessary to perform their official duties, including those areas that otherwise are controlled for security purposes. However, since parts 107 and 108 were removed and these authorities transferred to TSA, there has been some misunderstanding about the continuing authority of FAA safety inspectors to access various areas of the airport that are controlled for security purposes. This proposed rule makes clear that FAA aviation safety inspectors continue Start Printed Page 53507to have authority to access such areas as needed to perform their duties.
This proposed rule would put the specific regulatory authority into a new part 153 and clearly defines the authority of properly credentialed ASIs to access AOAs, secured areas, and SIDAs of an airport so they can perform official duties in support of the FAA's safety mission. Adding this language has a positive safety impact, because properly credentialed ASIs will be able to perform necessary inspections that support the FAA's safety mission. The intended effect of this proposed rule is to make sure ASIs have access to AOAs, secured areas, and SIDAs of an airport so they can perform official duties in support of the FAA's safety mission. Its economic impact on airport operators is minimal.
Regulatory Flexibility Act Determination
The Regulatory Flexibility Act of 1980 (RFA) directs the FAA to fit regulatory requirements to the scale of the business, organizations, and governmental jurisdictions subject to the regulation. We are required to determine whether a proposed or final action will have a “significant economic impact on a substantial number of small entities” as they are defined in the Act. If we find that the action will have a significant impact, we must do a “regulatory flexibility analysis.” 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.
The proposed rule clearly defines the authority of properly credentialed ASIs to access AOAs, secured areas, and SIDAs of an airport so they can perform official duties in support of the FAA's safety mission. Its economic impact for airport operators is minimal. Therefore, the FAA certifies that this action would not have a significant economic impact on a substantial number of small entities. The FAA solicits comments about this determination.
Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39) 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 has assessed the potential effect of this proposed rule and has determined that it would have only a domestic impact, and, therefore, no effect on international trade.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-04) 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). The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million.
This NPRM does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this regulation.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action would 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. Therefore, we determined that this proposed rule would not have federalism implications.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rule qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.
Regulations That Significantly Affect Energy Supply, Distribution, or Use
The FAA has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under FOR FURTHER INFORMATION CONTACT. You can find out more about SBRFA on the Internet at our site, http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. The docket is available for public viewing before and after the comment closing date, by any of the means discussed in the ADDRESSES section below.
Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.
Privacy Act Statement
You should be aware that anyone can find and read the comments received into any of our dockets, including the Start Printed Page 53508name of the individual sending the comment (or signing the comment on behalf of an association, business, labor union, etc.) via the Internet using the Docket Number. You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.
Proprietary or Confidential Business Information
Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD-ROM, mark the outside of the disk or CD-ROM and identify electronically within the disk or CD-ROM the specific information that is proprietary or confidential.
Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.
Sensitive Security Information
Do not submit comments that include sensitive security information (SSI) to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
Upon receipt of such comments, we will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. FAA will hold them in a separate file to which the public does not have access and place a note in the public docket that FAA has received such materials from the commenter. If we receive a request to examine or copy this information, we will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552).
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search);
(2) Visiting the FAA's Regulations and Policy Web page at http://www.faa.gov/regulations_policies/; or
(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking.Start List of Subjects
List of Subjects in 14 CFR Part 153End List of Subjects
The Proposed Rule
In consideration of the foregoing the Federal Aviation Administration proposes to amend Chapter I of Title 14 Code of Federal Regulations by adding part 153 to read as follows:Start Part
PART 153—AIRPORT OPERATIONS
Subpart A—Aviation Safety Inspector Access
This subpart prescribes requirements governing Aviation Safety Inspector access to airports to perform official duties.
The following definitions apply in this subpart:
Air Operations Area (AOA) means a portion of an airport, specified in the airport security program, in which security measures specified in Title 49 of the Code of Federal Regulations are carried out. This area includes aircraft movement areas, aircraft parking areas, loading ramps, and safety areas, for use by aircraft regulated under 49 CFR parts 1542, 1544, and 1546, and any adjacent areas (such as general aviation areas) that are not separated by adequate security systems, measures, or procedures. This area does not include the secured area.
Airport means any public use airport, including heliports, as defined in 49 U.S.C. 47501, including:
(1) Any airport which is used or to be used for public purposes, under the control of a public agency, the landing area of which is publicly owned;
(2) Any privately owned reliever airport; and
(3) Any privately owned airport which is determined by the Secretary of Transportation to enplane annually 2,500 or more passengers and receive scheduled passenger service of aircraft, which is used or to be used for public purposes.
Airport Operator means the operator of an airport as defined in 49 U.S.C. 47501.
Aviation Safety Inspector means a properly credentialed individual who bears FAA Form 110A and is authorized under the provisions of 49 U.S.C. 40113 to perform inspections and investigations.
FAA Form 110A means the credentials issued to qualified Aviation Safety Inspectors by the FAA for use in the performance of official duties.
Secured area means a portion of an airport, specified in the airport security program, in which certain security measures specified in Chapter 1 of Title 49 of the Code of Federal Regulations are carried out. This area is where aircraft operators and foreign air carriers that have a security program under 49 CFR part 1544 or part 1546 enplane and deplane passengers and sort and load baggage and any adjacent areas that are not separated by adequate security systems, measures, or procedures.
Security Identification Display Area (SIDA) means a portion of an airport, specified in the airport security program, in which security measures specified in Chapter 1 of Title 49 of the Code of Federal Regulations are carried out. This area includes the secured area and may include other areas of the airport.
Airport operators, aircraft operators, aircraft owners, airport tenants, and air agencies must grant Aviation Safety Inspectors bearing FAA Form 110A free and uninterrupted access to airports and facilities, including AOAs, secured areas, SIDAs, and other restricted areas. Aviation Safety Inspectors displaying FAA Form 110A do not require access media or identification media issued or Start Printed Page 53509approved by an airport operator or aircraft operator in order to inspect or test compliance, or perform other such duties as the FAA may direct.
Subpart B—[Reserved]Start Signature
Issued in Washington, DC, on September 12, 2007.
James J. Ballough,
Director, Flight Standards Service.
1. Generally, the Assistant Secretary for Homeland Security (Transportation Security Administrator) (hereinafter “Administrator”), “shall be responsible for security in all modes of transportation, including—(1) Carrying out chapter 449, relating to civil aviation security, and related research and development activities; and (2) security responsibilities over other modes of transportation that are exercised by the Department of Transportation.” 49 U.S.C. 114(d).Back to Citation
[FR Doc. E7-18349 Filed 9-18-07; 8:45 am]
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