Notice of Proposed Rule Making, Flight Deck Door

[Federal Register: August 15, 2007 (Volume 72, Number 157)]
[Rules and Regulations]
[Page 45629-45636]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au07-5]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2005-22449; Amendment No. 121-334]
RIN 2120-AI16


Flightdeck Door Monitoring and Crew Discreet Alerting Systems

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends Federal Aviation Administration (FAA)
regulations by requiring operators of passenger-carrying transport
category airplanes used in domestic, flag, and supplemental operations
to have a means for flightcrew to visually monitor the door area
outside the flightdeck. This means will allow the flightcrew to
identify persons requesting entry into the flightdeck and detect
suspicious behavior or potential threats. This final rule also amends
FAA regulations to require that, for operations requiring the presence
of flight attendants, the flight attendants have a means to discreetly
notify the flightcrew of suspicious activity or security breaches in
the cabin. This final rule addresses standards adopted by the
International Civil Aviation Organization (ICAO) following the
September 11, 2001 terrorist attacks.

DATES: Effective October 15, 2007.

FOR FURTHER INFORMATION CONTACT: Joe Keenan, Air Transportation
Division, Flight Standards Service, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone (202) 267-8166, facsimile (202) 267-
9579, e-mail: joe.keenan@faa.gov.

SUPPLEMENTARY INFORMATION:

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 Policies web page at http://

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 amendment number or docket number of this
rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.


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. If you are a small entity and you have a
question regarding this document, you may contact the person listed
under FOR FURTHER INFORMATION CONTACT. You can find out more about
SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/
sbre--act/.


Authority for This Rulemaking

This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701, ``General
requirements.'' Under that section, the FAA is charged with promoting
safe flight of civil aircraft in air commerce by prescribing:
Minimum standards required in the interest of safety for
the design and performance of aircraft, and;
Regulations for other practices, methods, and procedures
the Administrator finds necessary for safety in air commerce and
national security.
This regulation is within the scope of that authority because it
prescribes:
New standards for the safe operation of transport category
airplanes, and;
Practices, methods, and procedures that the Administrator
finds necessary for safety in air commerce and national security.

Background

Following the terrorists' acts on September 11, 2001, the Office of
the Secretary of Transportation, Congress, and the FAA took several
long term actions to prevent hijackings on passenger-carrying airplanes
used in air carrier service. As part of those actions, the FAA
published the notice of proposed rulemaking (NPRM), ``Flightdeck Door
Monitoring and Crew Discreet Alerting Systems'' (70 FR 55492; September
21, 2005). That NPRM proposed requiring operators of passenger-carrying
transport category airplanes used in domestic, flag, and supplemental
operations to have a means for flightcrew to visually monitor the door
area outside the flightdeck. The NPRM also proposed that, for
operations requiring the presence of flight attendants, flight
attendants have a means to discreetly notify the flightcrew of
suspicious activity or security breaches in the cabin. The proposed
changes addressed standards adopted by the International Civil Aviation
Organization following the September 11, 2001 terrorist attacks.
Before issuing the NPRM, the FAA participated in the rapid response
teams (RRTs) created by the Secretary of Transportation to develop
recommendations for improving security within the national aviation
system. One team was tasked with developing recommendations to improve
security at the nation's airports; the other team was tasked with
developing recommendations for aircraft integrity and security, with a
specific focus on cockpit access.
Members of the aircraft integrity and security RRT included
representatives from American Airlines, the Boeing Company, the
Association of Flight Attendants, and the Air Line Pilots Association.
Members of the Department of Transportation and the FAA supported the
security RRT. In addition to regular team meetings, this RRT met with
representatives from the airline operators, pilot and flight attendant
associations, and parts manufacturers. The security RRT also received
numerous recommendations from the public as the result of an e-mail
address on the FAA Web site.
On October 1, 2001, the RRT for aircraft integrity and security
presented its final report to the Secretary of Transportation. The
report made 17 recommendations. One recommendation recognized the need
for reinforced flightdeck doors and severe limitations on flightdeck
entry. Anticipating the new severe limitations on flightdeck entry, the
RRT made several recommendations for flightdeck access. These included:
Flight attendants must have a method for immediate
notification to

[[Page 45630]]

the flightcrew during a suspected threat in the cabin.
The flightcrew needs the capability to monitor the area
outside the flightdeck door.
On November 19, 2001, Congress passed the Aviation and
Transportation Security Act (ATSA) (Public Law 107-71). Section 104(b)
of the ATSA states that the FAA Administrator may develop and implement
methods--

(1) To use video monitors or other devices to alert pilots in
the flight deck to activity in the cabin, except that use of such
monitors or devices shall be subject to nondisclosure requirements
applicable to cockpit video records under [49 U.S.C. Sec. 1114(c)],
* * * and
(3) To revise the procedures by which cabin crews of aircraft
can notify flight deck crews of security breaches and other
emergencies, including providing for the installation of switches or
other devices or methods in an aircraft cabin to enable flight crews
to discreetly notify the pilots in the case of a security breach
occurring in the cabin.

The NPRM responded to the RRT's findings and to the legislation
passed by Congress.

Summary of NPRM

The FAA proposed to add the new paragraph (k) to Sec. 121.313.
This requirement would apply to all passenger-carrying airplanes that
must have a lockable flightdeck door pursuant to 14 CFR 121.313(f).
Operators of these airplanes must be able to monitor the area outside
the flightdeck door from the flightdeck. This measure would provide the
means to allow the flightcrew to identify persons requesting entry and
to detect suspicious behavior and potential threats.
The FAA proposed to add the new Sec. 121.582 that would require
all passenger-carrying airplanes required to have a lockable flightdeck
door to have an approved means by which the cabin crew can discreetly
notify the flightcrew in the event of suspicious activity or security
breaches in the cabin.
The FAA also proposed to add the new Sec. 121.584. This would
prohibit unlocking or opening the flightdeck door unless a person
authorized to be on the flightdeck uses an approved audio procedure and
an approved visual device to verify that: (1) The area outside the
flightdeck door is secure; and (2) if someone outside the flightdeck
door is seeking to have the flightdeck door opened, that person is not
under duress.

Summary of the Comments

The FAA received 88 comments. Of these comments, 45 stated strong
support for the rule; only 5 opposed the rule. Of the 45 stating strong
support for the rule, 6 commenters seemed to support the rule because
they thought a video camera was the only means to comply with the
requirement to monitor the flightdeck door. They may not have supported
the proposal had they realized that video is not the only means to
satisfy the requirement. The remaining comments did not directly
express support for or opposition to the rule. Many comments included
suggested changes, as discussed below.

I. Discussion of the Final Rule

A. Means of Monitoring the Area Outside the Flightdeck

The final rule sets a performance standard whereby air carriers
must choose a method of compliance to view the area outside the
flightdeck door. The performance standard may be met using a video
monitoring device, a peephole or viewport, or other viewing device. The
method of compliance must include procedures and training in existing
part 121 requirements for unlocking the flightdeck door and operating
all of the associated equipment for use in operations.
Several commenters including Boeing, Coalition of Airline Pilots
Associations (CAPA), Association of Professional Flight Attendants
(APFA), the Regional Airline Association (RAA), the Air Transport
Association (ATA), and the Allied Pilots Association (APA) supported
the use of current technology and procedures. The APA and CAPA stated
that in the few cases when there is a need to open the flightdeck door,
established procedures allow safe and secure passage from the
flightdeck. Those procedures have stood the test of time and have a
credible record of effectiveness. The RAA noted that nearly all their
members presently use the peephole/audio method of confirming that the
area outside the flightdeck door is secure before opening the door
during flight. They saw no additional security benefit to using a video
camera system over using their current peephole system to monitor the
area outside the flightdeck door. The APFA and Boeing supported a
viewing device in the flightdeck door that allows for the door and
forward cabin to be monitored.
Several of the commenters thought that the FAA had proposed to
require the use of video cameras to monitor the area outside the flight
deck door and require wireless devices for discreet communication
between cabin crewmembers and flight crewmembers. In particular, the
Air Crash Victims Families Group and Families of September 11 expressed
support for a requirement to install video cameras to monitor the area
outside of the flight deck door. They also supported requiring wireless
devices by the cabin crew to alert the flightdeck crew of a potential
problem.
The FAA developed this rule over a period of years following the
terrorist attacks of September 11, 2001, taking into consideration
recommendations concerning flightdeck security and crew communications.
While this action promulgates regulations for added protection of the
flightcrew compartment, most part 121 air carriers already have
procedures in place that perform this function. This rule allows U. S.
air carriers options to meet requirements while remaining flexible in
their methods. This flexibility provides an additional level of
security to the public because air carriers will use different methods
to provide flight deck security and crew communication. Different
methods of compliance will make attempts to breach security more
difficult because multiple systems will be more difficult to monitor
and defeat.
Two commenters, former Congressman Bob Barr and the American
Conservative Union, opposed the rule because of safety-related concerns
resulting from increased pilot workload to monitor video cameras. The
FAA does not believe that monitoring the area outside of the flightdeck
door by the flightcrew will distract pilots or add a significant burden
if video cameras are used. While air carriers may choose approved video
cameras, a FAA-approved procedure-based approach (using procedures and
hardware already installed, such as a peephole) is another option.
Accordingly, pilots will not have to continuously monitor a video
camera, they need only monitor the flightdeck door area when someone
seeks access to the flightdeck or when notified by a flight attendant.
Former Congressman Bob Barr and the American Conservative Union
also expressed concerns about passenger privacy in the cabin. The FAA
is not imposing any requirement to monitor passengers beyond the area
outside of the flight deck door. To the extent that a passenger is in
the flightdeck door area, the FAA has a security interest in monitoring
that passenger's activities.

B. Means of Notifying the Flightcrew

Several commenters, including Capitol Electronics, Inc., expressed
concern over the interphone system and its inability to be used
discreetly. They stated that the interphone is an obvious piece of
equipment, could be compromised, and would be difficult to

[[Page 45631]]

use without arousing suspicion. They noted that when passengers or
equipment (such as beverage carts) are in the aisles, the crew could
find it difficult to reach the interphone quickly. These commenters
stressed that a wireless system is the only discreet means for the
cabin crew to notify the flightdeck of a problem.
The FAA notes that the interphone system is not intended to be an
encrypted or a secure communication means, rather it is a way for all
crewmembers to be able to communicate among themselves throughout the
passenger cabin and the flightdeck. Nevertheless, if a crewmember uses
the existing technology of the interphone system while adhering to the
air carrier's communication procedures, discreet communication may be
maintained. Conversations between crewmembers on the interphone are
generally not broadcast over the aircraft's public address system and
the system has the ability for all crewmembers to participate on the
call, as company procedures may dictate. The ability of the crewmembers
to communicate discreetly in many instances currently exists, primarily
by following the operator's procedures.
Some commenters, including the Professional Flight Attendants
Association and the Association of Professional Flight Attendants,
recommended that flight attendants carry or have in their possession a
wireless device to contact the flightdeck. Some suggested the flight
attendant carry a wireless device in a pocket or around the neck.
The FAA does not believe requiring flight attendants to carry or
have in their possession a wireless device to contact the flight deck
is a good idea. A wireless device that is carried on the person (in a
pocket or around the neck) may be problematic because an attacker could
threaten or assault the flight attendant in order to obtain the
wireless device and then use the device fraudulently to gain access to
the flightdeck. Additionally, devices carried by an individual are
subject to events that may be beyond the control of the air carrier. An
entire security system could be compromised if a device in the personal
possession of a flight attendant is lost or stolen.
Additionally, the cost to supply a wireless device to each flight
attendant could be an unreasonable burden, as there are approximately
130,600 part 121 flight attendants. While the wireless communication
device is an option for discreet communication, wireless communication
is not the only available option. This rule is permissive in the sense
that an air carrier may elect to use a sophisticated (for example,
wireless) communication method, but this rule does not impose a new
requirement for such devices.
In the NPRM, the FAA suggested that the evacuation system could be
used as a compliant communication method. As noted by the Association
of Professional Flight Attendants, not all aircraft have an emergency
evacuation system available.

C. Entry to the Flightdeck

This regulation states that no person may unlock or open the
flightdeck door unless a person authorized to be on the flightdeck uses
an approved audio procedure and an approved visual device to verify
that a person seeking entry to the flightdeck is not under duress.\1\
The FAA has made a technical correction to Sec. 121.584. We state that
the requirements of the entire paragaph (a) must be satisfactorily
accomplished before the crew member in charge on the flightdeck will
authorize unlocking and opening the door.
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\1\ Use of the word ``approved'' is a common term used in FAA
regulations. Unless otherwise specified, it means approved by the
Administrator. The approval for the audio and visual procedures is
accomplished by letter from the Principal Operations Inspector for
the air carrier. The approval for the viewing device was
accomplished by the FAA's Aircraft Certification Office as part of
the Supplemental Type Certificate issued for the design changes for
the flightcrew compartment door.
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Bosch Security Systems, CAPA, and the APA recommended that the FAA
require installation of a secondary barrier, in addition to the
flightdeck door, on all airplanes that are used in operations affected
by this rule. Requiring installation of a secondary barrier would mean
reconfiguring each airplane affected. Such an operation would require a
major effort that is outside of the scope of this rulemaking and is
therefore not adopted.
The International Brotherhood of Teamsters requested the FAA define
``the area outside the flightdeck door.'' Such a definition would vary
depending upon the configuration differences among airplanes. There are
many areas adjacent to flightdeck doors where an intruder could hide.
This fact tends to validate the importance of the audio check from
inside the flightdeck with a crewmember in the cabin prior to opening
the flightdeck door.
Boeing requested the FAA change the requirement to confirm that a
person seeking flightdeck access is not under duress. They noted that
``duress'' may take the form of both visible and non-visible actions.
They further stated that there is ``no definable or verifiable means of
compliance for this as a requirement.'' Boeing suggests changing the
requirement that a crewmember evaluate whether a person is under
duress, to simply require identification of a person seeking access to
the flightdeck. FAA rules already require any person seeking flightdeck
access to be identified before admittance. Section 121.587(b) limits
persons on the flightdeck to those eligible under Sec. 121.547. In
addition, air carriers already have procedures in place regarding how
and when to open a flightdeck door. The concept of determining whether
someone is under duress is already applied in current procedures and
appears to be readily understood. Air carriers should use the FAA-
approved procedures already in place to determine whether someone is
under duress. Because duress remains a threat not fully accommodated by
the existing requirement that the person seeking access to the
flightdeck is authorized to enter, the requirement to check that a
person is not under duress remains unchanged.
Boeing also commented on the proposed requirement for both an audio
and a visual check before opening the flightdeck door. They stated that
most operators have adopted a visual procedure using the door peephole
or an installed flightdeck entry visual surveillance system. Boeing
made the assumption that use of the cabin interphone system is required
to meet the audio procedure requirement. Boeing suggested revising the
rule to require ``an approved procedure and approved visual device,''
which does not include a requirement for an audio check. Boeing stated
that most major airlines are using a visual procedure/device, but not
an audio procedure. It maintained that a robust visual device and an
approved procedure to verify that the area around the flightdeck door
is secure will satisfy the intent of the rule. It also claimed that
requiring both a visual and an audio procedure could create an
undesirable operational impact on the flightdeck. This could occur if
the interphone equipment was not easily accessible to the person making
a visual check of the door area. It did not state the basis for this
observation. The FAA has determined that both a visual and audio check
is required to provide an appropriate amount of security prior to
opening the flightdeck door. Neither check alone provides adequate
security. A video camera system may not provide complete coverage of
the area outside of the flightdeck door or confirm that any

[[Page 45632]]

lavatory in that area is unoccupied. An audio check with a crewmember
in the cabin that has verified that the area is clear is required.
Likewise, it would be very difficult to determine if a person seeking
access to the flightdeck was under duress without an audio as well as a
visual check. An air carrier's procedures for opening the flightdeck
door are already required to include both checks. Therefore, the
requirement for both an audio and visual check remains unchanged from
current practice.
Boeing requested the FAA change the requirement in Sec.
121.584(a)(2) concerning authorization to unlock the flightdeck door
from ``the crewmember in charge'' to ``an authorized crewmember.''
Boeing stated its concern that the phrase ``the crewmember in charge''
can be interpreted always to require the pilot-in-command (PIC) to
authorize unlocking and opening of the flightdeck door. While the FAA
agrees with Boeing's interpretation of the proposed requirement, it
does not share Boeing's apparent concern. Section 91.3(a) states, ``The
pilot in command of an aircraft is directly responsible for, and is the
final authority as to, the operation of that aircraft.'' While the PIC
may delegate functions to other crewmembers, the PIC remains
responsible for the outcome of those functions. An air carrier's
approved procedures are required to address opening of the flightdeck
door while flight crewmembers leave or return to the pilot's
compartment. While functions, such as unlocking and opening the
flightdeck door may be delegated, the responsibility for such action
rests with the PIC. Therefore, the requirement for ``the crewmember in
charge'' remains unchanged.
Aircraft Operators should be aware that the Transportation Security
Administration (TSA) is reviewing the procedures that are in use for
ingress and egress through the flight deck door during flight, and is
considering additional procedures that may be necessary to address
security concerns. TSA will coordinate with the FAA during the
development of any proposed additional requirements.

D. International Standards

As stated in the NPRM, the International Civil Aviation
Organization (ICAO) adopted standards on March 15, 2002 that require
installing flightdeck doors, locking and unlocking such doors,
monitoring the area on the passenger side of the flightdeck door, and
discreetly notifying the flightcrew in the event of security breaches
in the cabin. The standards are located in ICAO Annex 6, Part 1,
Chapter 13, provision 13.2, which state:

13.2.1 In all aeroplanes which are equipped with a flight crew
compartment door, this door shall be capable of being locked, and
means shall be provided by which cabin crew can discreetly notify
the flight crew in the event of suspicious activity or security
breaches in the cabin.
13.2.2 From 1 November 2003, all passenger-carrying airplanes of
a maximum certificated take-off mass in excess of 45500 kg or with a
passenger seating capacity greater than 60 shall be equipped with an
approved flight crew compartment door that is designed to resist
penetration by small arms fire and grenade shrapnel, and to resist
forcible intrusions by unauthorized persons. This door shall be
capable of being locked and unlocked from either pilot's station.
13.2.3 In all aeroplanes which are equipped with a flight crew
compartment door in accordance with 13.2.2:
(a) This door shall be closed and locked from the time all
external doors are closed following embarkation until any such door
is opened for disembarkation, except when necessary to permit access
and egress by authorized persons; and
(b) Means shall be provided for monitoring from either pilot's
station the entire door area outside the flight crew compartment to
identify persons requesting entry and to detect suspicious behavior
or potential threat.

In the NPRM, the FAA identified three areas where the proposed rule
did not appear to meet ICAO standards. We stated in the NPRM:
The proposal in this action will not be implemented before
the November 1, 2003 ICAO deadline.
Any passenger-carrying airplanes operated under parts 91,
125, and 135 including international commercial air transport
operations with a maximum certificated takeoff mass in excess of 45500
kg or with a seating capacity of greater than 60 (as ICAO requires),
are not covered by this proposed rule.
The proposed rule will permit an alternative means to
monitor the area outside the flightdeck door from the flightdeck side
of the door, instead of from either pilot station, as ICAO requires.
L-3 Communications and the International Brotherhood of Teamsters
state that the rule falls well short of ICAO standards and ATSA
requirements because the viewport option and existing interphone
systems do not adequately address ICAO requirements. L-3 Communications
expresses support for cameras and wireless devices in meeting these
requirements.
The International Air Transport Association (IATA) commented that
it is concerned that the United States (U.S.) will continue to have
differences with the ICAO standard. IATA is concerned that other
national authorities may take a different view on the applicable ICAO
standards. They ask that the FAA work with its international partners.
Several commenters, including Delta Airlines, the Transport Workers
Union of America, the CAPA, the Air Transport Association, and the APA
generally agree with the FAA that the new rule meets the intent of ICAO
standards addressing flightdeck security. ICAO implementation guidance
provides for a procedural-based approach.
Upon further review of the ICAO standards associated guidance and
FAA actions, we have determined that only one of three perceived
differences remains. First, concerning the ICAO implementation date,
the FAA discovered that if an ICAO member country has policies in place
before the implementation date for the ICAO standard, the member
country is considered to be in compliance with the ICAO standard. The
FAA published Notice N8400.51, Procedures for Opening, Closing, and
Locking of Flightcrew Compartment Doors before November 1, 2003. This
notice addresses air carrier procedures to open the flightdeck door
during flight operations and addresses the intent of the ICAO standards
for monitoring the area outside the flightdeck door. In accordance with
ICAO guidance, the FAA met the intent of the standard before the ICAO
implementation date of November 1, 2003.
Second, the FAA has met the intent of the ICAO requirement to
monitor from either pilot's station the entire door area outside the
flight crew compartment. ICAO guidance permits operators to use
different methods to monitor the area outside the flightdeck door. The
monitoring does not have to take place from ``either pilot's station,''
as a plain reading of the ICAO standard indicates. According to ICAO,
use of a spyhole or peephole would satisfy the requirement to monitor
the area outside the flightdeck door. Since this final rule adopts a
performance standard that contemplates the type of system that ICAO
states is sufficient to meet the ICAO standard, the FAA determines no
difference exists.
Finally, the ICAO standard is applicable to passenger-carrying
airplanes based on weight or seating capacity. The FAA regulations
differ from the ICAO standard regarding applicability. As explained in
the NPRM, ICAO provisions apply to passenger-carrying airplanes of a
maximum certificated take-off mass in excess of 45,500 kg or with a
passenger seating capacity greater than 60. The

[[Page 45633]]

FAA standard applies to all part 121 operations. U.S. aviation
regulations governing airplanes operated under parts 91, 125, and 135
may be within the weight and passenger seating capacity required by the
ICAO standard; however, airplanes operating under these parts are not
specifically required to have a flightdeck door. We therefore find it
impractical to impose a viewing requirement on airplanes operating
under these parts. We also find it impracticable to impose a
communication procedure requirement when there is no way to prevent
access to the flightdeck.
We will carefully monitor these types of operations and if it
becomes a matter of concern in the future, we will consider adopting
the ICAO standard, based on weight, instead of by operating rule. In
addition, if an air carrier is subject to the ICAO requirement (or
foreign regulations) because of weight or seating capacity but not
subject to FAA requirements, the FAA will, upon request, work with any
operator to consider any approvals necessary to satisfy requirements by
another civil aviation authority that an operator have approved
procedures in place. We do not believe there will be any need to
provide accommodation for the ICAO requirement on monitoring the area
outside the flightdeck because we believe all of the reinforced
flightdeck doors are already outfitted with a peephole.
The Association of European Airlines states that any final rule on
flightdeck door monitoring and crew discreet alerting should not apply
to non-U.S. operators to the United States. This rule does not apply to
non-U.S. operators, including those operating under part 129. These
operations are covered by adequate regional and international rules and
standards.

E. Compliance Dates

In the NPRM, the FAA proposed to give part 121 passenger-carrying
operators not already in compliance with the rule, two years to install
a monitoring device to meet the proposed performance standard on the
existing fleet. We also proposed a 180-day compliance date for the
discreet communications procedure.
Several individual commenters, including the Air Transport
Association, expressed concerns about compliance dates. These comments
all stated that the compliance period was too short. Some expressed
concern with the immediate effective date for operations of airplanes
that already have a means to monitor the flightdeck door area, required
by Sec. 121.584(b). ATA expressed concern that two years would not be
enough time to install a video surveillance system. ATA recommended a
five- or six-year interval.
After further review, the FAA has determined that every part 121
passenger-carrying operator should already have a means to monitor the
flightdeck door area. The FAA learned from flightdeck door
manufacturers that every reinforced flightdeck door that meets the
requirements of section 25.795 (required for passenger-carrying
operations in part 121) has a peephole that meets the requirements of
this rule. As a result of this information, the FAA has determined that
there should be no retrofit of airplanes operated by part 121 carriers.
Accordingly, the FAA has decided against adopting a two-year compliance
period in proposed section 121.584(b). If a part 121 passenger-carrying
operator does not have a means to monitor the flightdeck door area, the
operator can: (1) Operate without opening the flightdeck door until the
airplane is retrofitted; or (2) seek relief by applying to the FAA for
exemption from this rule.
As discussed above, we are issuing this final rule with a reduced
compliance period. The NPRM proposed to give operators that do not have
a means to view the area outside the flightdeck door two years to
install such a means. The FAA proposed to require operators that have a
means to monitor the area outside the flightdeck door to comply on the
effective date of the final rule. After review of the comments to the
NPRM and FAA actions regarding reinforced doors, we decided to change
the compliance date for all affected parts to 60 days.
First, air carriers conducting passenger-carrying operations under
part 121 were required to install a reinforced door by April 9, 2003.
The FAA concluded, by review of supplemental type certificates, that no
airplanes operating passenger-carrying service under part 121 have a
flightdeck door without a means to monitor the area outside the
flightdeck door. Second, no commenter specifically stated that they
were currently not in compliance with the rule. The only comment
relevant to this inquiry was from ATA, which stated that if an operator
chose to install video, it would take more than two years to do so.
Similarly, the FAA confirmed that part 121 passenger-carrying
operators should already have an approved means in place for a cabin
crew to discreetly notify the flightcrew in the event of suspicious
activity or security breaches in the cabin. Therefore, the FAA removed
the 180-day compliance date from Sec. 121.582. The compliance period
for the entire rule is now 60 days.
The FAA is limiting the compliance period without providing an
opportunity for prior public notice and comment as is normally required
by the Administrative Procedure Act (APA). See 5 U.S.C. 553. The APA
authorizes agencies to dispense with certain notice and comment
procedures if the agency finds good cause that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the
public interest. See 5 U.S.C. 553(b)(3)(B). The FAA finds good cause
for shortening the compliance period in this final rule because it
would be contrary to the public interest not to do so. A two-year
compliance period is contrary to the public interest because we
determined that every operator already has equipment installed to
comply with this rule. The only outstanding compliance concern could be
that some operators need to develop and implement procedures to monitor
the area outside the flightdeck (for example, by looking through the
peephole) before opening the flightdeck door. Therefore, the FAA is
allowing a 60-day compliance period, so any operator that must adopt
procedures will have time to do so.

F. Miscellaneous Issues

Several commenters, including the CAPA and Air Line Pilots
Association International, recommended the FAA include all-cargo
operations in this rule. These commenters noted that cargo operations
should be as safe and secure as passenger operations. They recommended
the FAA require installation of a secure flightdeck door on part 121
cargo airlines.
While all-cargo operators may implement the requirements of this
rule, they are not specifically required to do so. All-cargo flights
carry only those individuals allowed under 14 CFR 121.583; all
individuals carried on cargo flights are screened through TSA approved
procedures. The general traveling public is not allowed onboard these
flights. ICAO standards in this area reflect this awareness in that
they apply only to passenger-carrying operations. In keeping with ICAO
standards and security requirements, the FAA developed a performance-
based approach for operations conducted under the passenger-carrying
requirements of part 121. The FAA and TSA believe that security
measures in place to protect the flightdecks of all-cargo operations
are adequate for those operations, considering the small number of
persons allowed onboard for those flights. Therefore, the FAA does

[[Page 45634]]

not apply this rule to all-cargo operations.
Several commenters, including the Air Transport International,
L.L.C., expressed concerns about the rule's applicability to part 121
operations. They stated the rule should not apply to Combi-configured
aircraft that mainly transport cargo. While these aircraft can
transport up to 32 passengers, the commenters believe they have
sufficient security measures in place to prevent anyone from gaining
access to the flightdeck. The FAA notes that the requirements of this
rule apply to passenger-carrying operations conducted under part 121.
When operations are conducted that are subject to the passenger-
carrying requirements of part 121, including flights carrying
passengers and cargo, those operations must also meet the requirements
of this rule.
Several commenters, including the Transport Workers Union of
America and the Association of Professional Flight Attendants, refer to
the ``lessons learned'' from the Operation Atlas exercise. The FAA was
not a participant in this exercise to measure response and recovery
efforts. Comments about the Operation Atlas exercise are outside of the
scope of this rulemaking activity.
US Airways requested clarification on use of Minimum Equipment
Lists (MEL) with regard to the equipment required by this rule. Since
this is a rule of general applicability it does not impact an
individual operator's MEL. Each individual MEL is developed by the
operator and approved by its Principal Operations Inspector. Pertinent
MEL relief is provided through the Master Minimum Equipment List
(MMEL). Development of the MMEL is beyond the scope of this rule,
especially because this rule is a performance standard. Since this rule
does not require any new equipment, each air carrier should refer to
its already established MEL and question its POI for further
information.

II. Regulatory Notices and Analyses

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FAA has determined that there are no requirements for
information collection associated with this rule.

Economic Assessment, Regulatory Flexibility Determination, Trade Impact
Assessment, and Unfunded Mandate Assessment

Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall 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 (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, the Trade Act requires agencies to consider international
standards and, where appropriate, that they be 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 with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this final rule.
Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final 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 if a
full regulatory evaluation of the cost and benefits is not prepared.
Such a determination has been made for this final rule. The reasoning
for this determination follows:
Every reinforced cockpit door has a peephole, which meets the final
rule requirement to visually identify anyone attempting to enter the
flightdeck. Operators can comply by developing appropriate procedures.
Most operators have already developed these procedures and we
determined that there will be minimal expense to the operators that
still need to develop them to meet the requirement.
Further, the final rule requirement that the crew members be able
to alert the flightdeck of any cabin problems can also be met by a
variety of measures such as special signals through the interphone
system or modifications of existing crew notification devices or
procedures. We also determined that there will be minimal expense to
the operators to implement these measures.
In the NPRM, we had estimated the costs of operators installing
video camera surveillance systems. As the final rule does not require
such a system, the costs for an operator that chooses to install such a
system are not a cost of compliance with the final rule. We received
several comments on our estimated costs and these can be reviewed in
the docket for this rulemaking.
In general, we believe these comments support the estimates in the
NPRM after taking into account the experience of the commenters in
installing such systems. While Boeing's estimate was significantly
higher than ours, its system is far more sophisticated than any video
system designed to minimally meet the performance standard. Since all
of the costs are associated with a monitoring system that is not
required by the rule and is redundant to existing, compliant systems
already aboard all affected aircraft, we are not discussing the
comments further.
The rule is one of a series of rulemaking actions aimed at
preventing or deterring an occurrence similar to the September 11
terrorist attacks. It is designed to ensure that pilots do not open the
flightdeck door and admit a potential hijacker because the pilots will
be able to recognize who is trying to gain entry. It is also designed
to alert the pilots to problems in the cabin through the crew discreet
monitoring system and allow them to take the appropriate actions.
This rule responds to the interest of the U.S. Congress as
specified in the ATSA and to the ICAO flightdeck surveillance
requirement for international travel airplanes with more than 60 seats.
We conclude that the benefits of this final rule will exceed the
minimal costs.
The FAA has, therefore, determined that this final rule 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.

Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives 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 this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,

[[Page 45635]]

including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
Agencies must perform a review to determine whether a 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 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.
Due to its minimal costs, the final rule will have a minor effect
upon small businesses. We also received no comments from the public on
the economic impact of the proposed rule on small entities. We are
sensitive to the needs of small businesses and thus have found a
minimal cost solution that meets our security needs.
Therefore, as the FAA Administrator, I certify that this rule will
not have a significant economic impact on a substantial number of small
entities.

Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal
agencies from establishing any standards or engaging in 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 final rule and has determined that it will
have only a domestic impact and, therefore, no affect on international
trade.

Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 an expenditure of $100 million or more
(adjusted annually for inflation with the base year 1995) 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.'' The FAA currently uses an inflation-adjusted value
of $128.1 million in lieu of $100 million.
This final rule does not contain such a mandate.

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.

Regulations Affecting Intrastate Aviation in Alaska

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat.
3213) requires the FAA, when modifying its regulations in a manner
affecting intrastate aviation in Alaska, to consider the extent to
which Alaska is not served by transportation modes other than aviation,
and to establish appropriate regulatory distinctions. In the NPRM, we
requested comments on whether the proposed rule should apply
differently to intrastate operations in Alaska. We did not receive any
comments, and we have determined, based on the administrative record of
this rulemaking, that there is no need to make any regulatory
distinctions applicable to intrastate aviation in Alaska.

Environmental Analysis

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 rulemaking action 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 final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (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.

List of Subjects in 14 CFR Part 121

Air carriers, Aircraft, Aviation safety, Reporting and
recordkeeping requirements.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration
amends 14 CFR chapter I as follows:

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

0
1. The authority citation for part 121 is revised to read as follows:

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


0
2. Section 121.313 is amended by adding paragraph (k) to read as
follows:


Sec. 121.313 Miscellaneous equipment.

* * * * *
(k) Except for all-cargo operations as defined in Sec. 119.3 of
this chapter, for all passenger-carrying airplanes that require a
lockable flightdeck door in accordance with paragraph (f) of this
section, a means to monitor from the flightdeck side of the door the
area outside the flightdeck door to identify persons requesting entry
and to detect suspicious behavior and potential threats.

0
3. Add Sec. 121.582 as follows:


Sec. 121.582 Means to discreetly notify a flightcrew.

Except for all-cargo operations as defined in Sec. 119.3 of this
chapter, after October 15, 2007, for all passenger carrying airplanes
that require a lockable flightdeck door in accordance with Sec.
121.313(f), the certificate holder must have an approved means by which
the cabin crew can discreetly notify the flightcrew in the event of
suspicious activity or security breaches in the cabin.

0
4. Add Sec. 121.584 as follows:


Sec. 121.584 Requirement to view the area outside the flightdeck
door.

From the time the airplane moves in order to initiate a flight
segment through the end of that flight segment, no person may unlock or
open the flightdeck door unless:
(a) A person authorized to be on the flightdeck uses an approved
audio procedure and an approved visual device to verify that:
(1) The area outside the flightdeck door is secure, and;
(2) If someone outside the flightdeck is seeking to have the
flightdeck door opened, that person is not under duress, and;

[[Page 45636]]

(b) After the requirements of paragraph (a) of this section have
been satisfactorily accomplished, the crewmember in charge on the
flightdeck authorizes the door to be unlocked and open.

Issued in Washington, DC, on August 6, 2007.
Marion C. Blakey,
Administrator.
[FR Doc. E7-16063 Filed 8-14-07; 8:45 am]

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